                  TENNESSEE BUREAU OF WORKERS' COMPENSATION
                    COURT OF WORKERS' COMPENSATION CLAIMS
                        AT COOKEVILLE BY INTERCHANGE

Randall Harper,                                              )    Docket No.: 2015-06-1067
           Employee,                                         )
v.                                                           )    State File No.: 47262-2015
                                                             )
USF Holland Trucking Co.,                                    )
           Employer,                                         )
                                                             )    Judge Robert Durham


                 COMPENSATION HEARING ORDER DENYING BENEFITS


        On October 15, 2015, Randall Harper filed a Petition for Benefit Determination to
determine if USF Holland Trucking, Co. is obligated to provide medical and temporary
disability benefits for an alleged work-related injury on June 16, 2015. The dispositive
issue is whether Mr. Harper's cellulitis in his left leg causally relates to his employment
with USF Holland. 1 The Court finds the evidence submitted by Mr. Harper is insufficient
to establish a causal connection, thus requiring the Court to deny his request for workers'
compensation benefits. 2

                                                 History of Claim

       Mr. Harper is a fifty-two-year-old resident of Wilson County, Tennessee, who
works as an over-the-road truck driver for USF Holland. On June 15, 2015, Mr. Harper
left home and, after picking up his truck at USF Holland's Nashville terminal, drove to
Grand Rapids, Michigan, arriving on the morning of June 16. USF Holland provided a
shuttle bus that took him to the 13 1 Motel, where USF Holland authorized him to stay
during his layover in Grand Rapids.

           Mr. Harper went to bed and slept until a dispatcher from USF Holland called him

1
 The parties raised additional issues in the DCN; however, given that the Court is denying workers' compensation
benefits based on this threshold issue, it will not consider the remaining issues.
2
    Additional information regarding the technical record and exhibits is attached to this Order as an Appendix.

                                                            1
that evening at 7:00p.m. Upon awakening, he found he was suffering from nausea and
feeling light-headed. He called in sick and went to a local hospital to check his blood
pressure, which was normal. The next day, his dispatcher instructed him to seek medical
care at a local clinic called Med 1 to certifY his ability to drive.

       As he prepared to take a shower, Mr. Harper pulled off his socks and noticed a red
mark on his left leg just above the sock line. On cross-examination, Mr. Harper testified
he had stayed at the 131 Motel before, and never had any problems there. He did not
notice anything unusual about the motel during his stay. He further testified he never saw
any bug or spider while at the motel.

       After his shower, Mr. Harper went to Med 1, where he treated with Dr. Nicolas
Pietrangelo. (Ex. 2 at 1.) Dr. Pietrangelo opined Mr. Harper was capable of driving back
home. Id. He also observed that Mr. Harper suffered from a "Rash secondary to some
type of bite," and prescribed antibiotics for cellulitis. !d.

       Mr. Harper testified USF Holland did not let him return home immediately, but
instead sent him to Toledo, Ohio. While there, his condition worsened, and USF Holland
recommended he seek emergency treatment.

      Mr. Harper went to Wood County Hospital in Bowling Green, Ohio on June 18.
According to the records, his "Chief Complaint" was "There is something wrong with my
leg. Not sure ifl got bit by something or what." (Ex. 3 at 1.) The history section states:

      Patient reported that on Tuesday evening he began feeling nauseated and
      fatigued. He is a truck driver and he reports he never removes his socks
      when he is on the road. When he did remove his socks on Wednesday, he
      noted redness and swelling to his left lower extremity. He denies
      trauma/injury.

Id. On examination, Mr. Harper suffered from marked redness and edema in the left
lower extremity "with erythema streaking all the way to the groin." The area was marked
with blisters, but no bleeding under the skin. Id. at 14. Allison Dollman, M.D. diagnosed
Mr. Harper with cellulitis, admitted him into the hospital, and treated him with IV
antibiotics. !d.

       While in the hospital, Mr. Harper underwent a variety of diagnostic tests, which
were negative. !d. at 5, 7, and 14. Dr. Dollman placed Mr. Harper in an "unna boot" and
discharged him on June 20. !d. She also excused him from work beginning June 18 until
he could follow-up with his PCP. !d. at 25.

      Mr. Harper returned to Tennessee and filed an "Employee Notice of Injury" form
with USF Holland. (Ex. 9.) The form asked Mr. Harper to describe the physical

                                            2
conditions that contributed to the injury, and he responded, "Unknown." He also
responded "Unknown" to a question asking him to describe other conditions or hazards
that contributed to the injury. !d.

        On June 22, 2015, Mr. Harper saw Dr. Cathy Hammond-Moulton with Concentra
for a physical evaluation to determine his ability to drive. (Ex. 4.) Dr. Hammond-
Moulton restricted Mr. Harper from driving "a company vehicle due to functional
limitations" until he saw his PCP. However, she stated Mr. Harper had reached
maximum medical improvement (MMI) as of June 22. !d. at 4.

       On June 26, Mr. Harper followed up with his PCP, Lisa Kellogg, D.O. (Ex. 5.)
Mr. Harper reported he "noticed an area on his leg ... and felt nauseated and feverish."
!d. at 1. Dr. Kellogg noted resolving cellulitis and continued Mr. Harper's antibiotics.
She referred him to Sumner Wound Care and kept him off work. !d. at 3.

        On June 30, Mr. Harper saw Dr. John Pinkston with Sumner Wound Care. (Ex.
6.) Dr. Pinkston noted, "About two weeks ago, [Mr. Harper] got what was a small bite he
thought on his left lower extremity. It became infected." !d. at 1. Dr. Pinkston noted
cellulitis of the left calf with multiple small open areas. In his assessment, Dr. Pinkston
stated Mr. Harper had a history of "what sounds like some chronic venous stasis, received
a bite and got severe cellulitis." !d. at 2. Dr. Pinkston kept Mr. Harper off work while he
recovered. (Ex. 7 at 2.)

       On July 10, Mr. Harper returned to Dr. Pinkston, who noted Mr. Harper had a
history of severe cellulitis that was "perhaps following an insect bite." !d. at 3. He
continued to keep Mr. Harper off work. !d. In a July 17 follow-up note, Dr. Pinkston did
not refer to causation. !d. at 4. He noted the wound had healed, but wanted Mr. Harper
to return in two weeks before sending him back to work. !d. On July 31, Dr. Pinkston
stated Mr. Harper "developed what started as a small bite on his left lower extremity" and
progressed into cellulitis. !d. at 5. He opined Mr. Harper was at MMI, although he
would suffer from chronic venous stasis. !d. He returned Mr. Harper back to work with
no restrictions. !d. at 6.

        Mr. Harper filed a Petition for Benefit Determination on September 1, 2015, after
USF Holland denied his claim based on compensability. (T.R. 1.) The Court entered an
Initial Hearing Order on December 28, 2015. (T.R. 2.) The parties were unable to reach a
post-discovery mediated agreement, and the Mediator filed a DCN on October 12, 2015.
(T.R. 5.) The Court held a Compensation Hearing on April 18, 2015.

                       Findings of Fact and Conclusions of Law

       The Workers' Compensation Law must be interpreted fairly, impartially and
consistent with basic principles of statutory construction, favoring neither the employee

                                            3
nor employer. Tenn. Code Ann. § 50-6-116 (2014). The employee in a workers'
compensation claim "has the burden of proving every element of his case by a
preponderance of the evidence." Tindall v. Waring Park Ass'n, 725 S.W.2d 935, 937
(Tenn. 1987). 3

       Mr. Harper alleges an insect or spider must have bitten him while he was on the
road driving for USF Holland, and this bite caused the cellulitis in his left lower
extremity. In order to prevail, Mr. Harper must establish by a preponderance of the
evidence that an insect did in fact bite him, and the bite "arose primarily out of and in the
course and scope of his employment." Tenn. Code Ann.§ 50-6-102(12) (2014).

       Mr. Harper offered little evidence establishing causation. He did not recount when
he was bitten, what might have bitten him, or indeed, whether he was bitten at all. He did
not offer any evidence as to whether the 131 Motel had an insect problem; in fact, he
candidly admitted he never saw an insect or spider while staying at the motel. At best,
Mr. Harper's evidence only leads to the conclusion that he developed symptoms while on
his route for USF Holland, and discovered a "mark" on his leg when he pulled off his
sock to take a shower.

       The documentary evidence is not enough to prove by a preponderance of the
evidence that Mr. Harper suffered an insect bite. Dr. Pietrangelo at Med 1 did remark
that Mr. Harper suffered from a rash "secondary to some kind of bite" and prescribed
antibiotics for cellulitis. (Ex. 2 at 1.) However, the note does not reference any
observation of an actual bite mark or puncture wound.

       Furthermore, the only reference to a possible bite or puncture mark in the records
from Wood County Hospital was in the admission form, where Mr. Harper's "Chief
Complaint" was "There is something wrong with my leg. Not sure if I got bit by
something or what." (Ex. 3 at 1.) The history section goes on to note "When he did
remove his socks on Wednesday, he noted redness and swelling to his left lower
extremity. He denies trauma/injury." !d. There was no other reference in the hospital
records to a bite or puncture wound on Mr. Harper's left lower extremity, or even to the
possibility that the cellulitis originated with an insect bite.

       When Mr. Harper returned home, he completed an "Employee Notice of Injury
Form." (Ex. 9.) On the form, he did not attribute his condition to an insect bite, but
instead responded "Unknown" when asked to describe the conditions or hazards that
contributed to the injury. !d. On June 22, Mr. Harper treated with Dr. Hammond-
3
  The Tennessee Workers' Compensation Appeals Board allows reliance on precedent from the Tennessee Supreme
Court "unless it is evident that the Supreme Court's decision or rationale relied on a remedial interpretation of pre-
July I, 2014 statutes, that it relied on specific statutory language no longer contained in the Workers' Compensation
Law, and/or that it relied on an analysis that has since been addressed by the general assembly through statutory
amendments." McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, at *13 n.4 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).

                                                          4
Moulton, but the note does not refer to an insect bite causing Mr. Harper's cellulitis. (Ex.
4.) Mr. Harper saw his family physician, Dr. Kellogg, on June 26, who also made no
reference to an insect bite or puncture wound as the cause of the cellulitis. (Ex. 5.)

         No other record refers to an insect bite until Mr. Harper saw Dr. Pinkston,
approximately two weeks after he first became ill; however, even these references are
qualified. On June 30, Dr. Pinkston's note stated Mr. Harper "got what he thought was a
small bite[,]" and, Mr. Harper had a history "of what sounds like some chronic venous
stasis, received a bite, and got severe cellulitis." (Ex. 6 at 1, 2.) On July 10, Dr. Pinkston
noted that the cellulitis "was perhaps following an insect bite." (Ex. 6 at 3.) On July 31,
Dr. Pinkston made the only affirmative statement regarding causation when he wrote Mr.
Harper developed cellulitis that "started as a small bite on his left lower extremity." (Ex.
6 at 5.)

       As illustrated, there is little documentation of an insect bite, and nothing to
establish a physician, or anyone else, actually observed a bite mark on Mr. Harper's leg.
Therefore, the Court finds Mr. Harper failed to prove by a preponderance of the evidence
that he suffered an insect bite that precipitated his cellulitis. Tindall, supra, at 93 7.

       Furthermore, even if the proof linked Mr. Harper's cellulitis to an insect bite, the
Court finds there is insufficient evidence to establish that the "bite" "primarily arose out
of and in the course and scope of employment" with USF Holland. See Tenn. Code Ann.
§ 50-6-102(12) (2014). As stated earlier, Mr. Harper's only evidence in this regard is that
he began experiencing symptoms and first noticed a mark on his leg when he woke up at
the motel while working out of state. As to when the "bite" actually occurred, Mr.
Harper offered only speculation and conjecture, which cannot serve as justification for
the provision of benefits. See Shelton v. Torrington Co., No. 01SOI-9704-CV-00092,
1998 Tenn. LEXIS 133, at *10 (Tenn. Workers' Comp. Panel Mar. 13, 1998) (citing
Reeser v. Yellow Freight, 938 S.W.2d 690, 692 (Tenn. 1997)). This premise is
particularly true given that the Workers' Compensation Law no longer allows a remedial
construction by the court. See Tenn. Code Ann.§ 50-6-116 (2014).

        In addition, medical evidence is generally required in order to establish a causal
relationship, "[e]xcept in the most obvious, simple and routine cases." Cloyd v. Hartco
Flooring Co., 274 S.W.3d 638, 643 (Tenn. 2008) (quoting Orman v. Williams Sonoma,
Inc., 803 S.W.2d 672, 676 (Tenn. 1991)). Even if Dr. Pietrangelo's record and Dr.
Pinkston's note of July 31 were sufficient to prove that Mr. Harper's cellulitis originated
from an insect bite, there is no medical proof establishing that the progression of his
condition was consistent with the bite primarily arising out of and occurring while he was
in the course and scope of his employment. Thus, the Court finds Mr. Harper failed to
provide sufficient medical evidence to establish causation by a preponderance of the
evidence. Cloyd, supra, at 643.


                                              5
       Accordingly, the Court finds Mr. Harper failed to prove he sustained an injury that
primarily arose out of and in the course and scope of his employment with USF Holland.
See Tenn. Code Ann. § 50-6-102(12) (2014). Given the above finding, it is unnecessary
to address other issues raised by the parties.

     IT IS, THEREFORE, ORDERED that Mr. Harper's request for workers'
compensation benefits is denied.



ENTERED THIS THE 22ndD4-~



                                  Robert V. Durham, Judge
                                  Court of Workers' Compensation Claims


Right to Appeal:

      Tennessee Law allows any party who disagrees with this Compensation Hearing
Order to appeal the decision to the Workers' Compensation Appeals Board. To file a
Notice of Appeal, you must:

   1. Complete the enclosed form entitled: "Compensation Hearing Notice of Appeal."

   2. File the completed form with the Court Clerk within thirty days of the date the
      Workers' Compensation Judge entered the Compensation Hearing Order.

   3. Serve a copy of the Compensation Hearing Notice of Appeal upon the opposing
      party.

   4. The appealing party is responsible for payment of a filing fee in the amount of
      $75.00. Within ten calendar days after the filing of a notice of appeal, payment
      must be received by check, money order, or credit card payment. Payments can be
      made in person at any Bureau office or by United States mail, hand-delivery, or
      other delivery service. In the alternative, the appealing party may file an Affidavit
      of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
      fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
      of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
      will consider the Affidavit of Indigency and issue an Order granting or denying
      the request for a waiver of the filing fee as soon thereafter as is
      practicable. Failure to timely pay the filing fee or file the Affidavit of


                                            6
   Indigency in accordance with this section shall result in dismissal of the
   appeal.

5. The party filing the notice of appeal, having the responsibility of ensuring a
   complete record on appeal, may request, from the Court Clerk, the audio recording
   of the hearing for the purpose of having a transcript prepared by a licensed court
   reporter and filing it with the Court Clerk within fifteen calendar days of the filing
   of the Compensation Hearing Notice of Appeal. Alternatively, the party filing the
   appeal may file a joint statement of the evidence within fifteen calendar days of
   the filing of the Compensation Hearing Notice of Appeal. The statement of the
   evidence must convey a complete and accurate account of what transpired in the
   Court of Workers' Compensation Claims and must be approved by the workers'
   compensation judge before the record is submitted to the Clerk of the Appeals
   Board. See Tenn. Comp. R. & Regs. 0800-02-22-.03 (2015).

6. After the Workers' Compensation Judge approves the record and the Court Clerk
   transmits it to the Workers' Compensation Appeals Board, the appeal will be
   docketed and assigned to an Appeals Board Judge for review. At that time, a
   docketing notice shall be sent to the parties. Thereafter, the parties have fifteen
   calendar days to submit briefs to the Appeals Board for consideration. See Tenn.
   Comp. R. & Regs. 0800-02-22-.02(3) (2015).

7. If neither party appeals the judgment to the Board of Appeals within thirty days of
   its entry by the Trial Court, the judgment becomes final. Either party may then
   appeal directly to the Tennessee Supreme Court. See Tenn. Code Ann. § 50-6-
   239(c)(7) (2015). Please review the Tennessee Rules of Appellate Procedure for
   specific information on procedure. See Tenn. Code Ann. § 50-6-225 (2015).




                                         7
                                    APPENDIX

Exhibits:

1.    First Report of Injury;
2.    Medical Records from Med 1;
3.    Medical Records from Wood County Hospital;
4.    Medical Records from Concentra;
5.    Medical Records from Lisa Kellogg, D.O.;
6.    Medical Records from Sumner Wound Center;
7.    Medical bills;
8.    Various photographs of Mr. Harper's left leg;
9.    Employee Notice of Injury Form;
10.   Job Description; and,
11.   Mr. Harper's payroll summary;
12.   Excerpt from Union Agreement; and,
13.   Deposition ofMr. Harper.


Technical Record:

1.    Petition for Benefit Determination;
2.    Initial Hearing Order;
3.    Mr. Harper's Pre-Compensation Hearing Statement;
4.    USF Holland's Pre-Compensation Hearing Statement;
5.    Dispute Certification Notice; and,
6     USF Holland's Pre-Trial Brief.




                                         8
                           CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Compensation Hearing Order
Denying Benefits was sent to the following recipients by the following methods of
service on this the 22nd day of April, 2016.

Name                     Certified   Via        Via    Service sent to:
                          Mail       Fax       Email
Randall Harper              X                   X      randharoer2@gmai1.com
Stephen Heard                                   X      skheard@comelius-collins.com




                                       Penny Shrum, Clerk of Court
                                       Court of Workers' Compensation Claims
                                       WC.CourtCierk@tn.gov




                                           9
