                                                                                        FILED
                                                                                      Apr 08, 2019
                                                                                      09:16 AM(CT)
                                                                                   TENNESSEE COURT OF
                                                                                  WORKERS' COMPENSATION
                                                                                         CLAIMS




                TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                                AT MEMPHIS

DONELL JOYNER,                                       )   Docket No.: 2018-08-0754
         Employee,                                   )
v.                                                   )
LEHMAN ROBERTS CO.,                                  )   State File No.: 59334-2017
         Employer,                                   )
And                                                  )
TRUMBULL INSURANCE CO.,                              )   Judge Deana Seymour
         Insurance Carrier.                          )


                             EXPEDITED HEARING ORDER
                        DENYING REQUESTED MEDICAL BENEFITS


       Danny Joyner requested additional medical benefits for a neck and right shoulder
injury. Lehman Roberts Company insisted it paid all medical benefits to which Mr.
Joyner is entitled. The Court considered the issue of additional medical benefits at an
Expedited Hearing on April 3, 2019, and holds Mr. Joyner is not entitled to them at this
time.

                                             History of Claim

        Mr. Joyner injured his neck and right shoulder when he overturned an asphalt
roller on July 27, 2017. Lehman accepted his claim as compensable and sent him to an
urgent care clinic. 1 Later, Mr. Joyner chose Dr. Mark Harriman from a panel of
physicians for authorized orthopedic treatment.

      Dr. Harriman ordered cervical and right shoulder MRIs, which revealed chronic
degenerative changes. After comparing Mr. Joyner’s current cervical MRI to his 2004
MRI, Dr. Harriman diagnosed a chronic central disk herniation at C4-5 and cervical


1
    The parties did not provide those records.


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spondylosis. 2 He also diagnosed tendonitis and shoulder impingement. Dr. Harriman
treated Mr. Joyner with physical therapy and placed him at maximum medical
improvement on December 7 with no permanent impairment.

       Mr. Joyner returned to Dr. Harriman complaining of neck and right shoulder pain
on February 22, 2018. Dr. Harriman examined Mr. Joyner and returned him to full duty.
He again concluded that Mr. Joyner retained no permanent impairment from the work
incident.

       Four months later, Mr. Joyner filed a Petition for Benefit Determination and asked
for an appointment with Dr. Harriman, but Dr. Harriman refused to see him. Lehman
agreed to provide Mr. Joyner with another panel selection, and he selected Dr.
Christopher Ferguson.

       Dr. Ferguson reviewed Mr. Joyner’s medical history and performed a physical
examination. 3 He agreed with Dr. Harriman that Mr. Joyner could work full duty and had
no permanent impairment. Dr. Ferguson concluded that Mr. Joyner’s neck and shoulder
conditions were chronic and “clearly not related to the work event of July 27, 2017.” He
suggested Mr. Joyner consult a neurosurgeon for non-work-related neck pain.

      Lehman sent a letter to Dr. Ferguson to clarify whether his neurosurgical
suggestion primarily related to Mr. Joyner’s work injury. Dr. Ferguson responded that it
did not, so Lehman denied the treatment. Mr. Joyner pursued a consultation with a
neurosurgeon, Dr. Thirukandeeswaram Swaminathan, on his own.

       Dr. Swaminathan examined Mr. Joyner for neck and right shoulder pain on
January 18, 2019. Mr. Joyner also reported numbness in his right little and ring fingers.
He told Dr. Swaminathan that he had a right rotator cuff tear. Dr. Swaminathan reviewed
the 2017 cervical MRI, which showed a disc bulge at C4-C5 but no other abnormalities.
He noted “pain restriction of right shoulder movements.” Dr. Swaminathan ordered a
nerve study to investigate Mr. Joyner’s complaints of pain down his arm and numbness in
his fingers. Dr. Swaminathan explained to him on February 2 that the nerve study
revealed mild bilateral carpal tunnel syndrome. Otherwise, the study was normal. He
suggested Mr. Joyner see an orthopedist for his right shoulder and ordered physical
therapy. Dr. Swaminathan did not offer a causation opinion.

      Mr. Joyner filed a second Petition for Benefit Determination, requested this
Expedited Hearing, and introduced Dr. Swaminathan’s records to support his claim. He
2
 Mr. Joyner testified he injured his neck in 2004, had an MRI, and healed shortly afterward. Neither party
presented records regarding the 2004 injury.
3
  Dr. Ferguson stated that he did not provide treatment or treatment advice; rather he performed an
independent medical evaluation.

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insisted that his work injury caused his neck and right shoulder symptoms that began the
day of the injury.

        Lehman countered that Mr. Joyner’s neck problem began in 2004. Further,
medical records and opinions of Dr. Harriman and Dr. Ferguson did not relate Mr.
Joyner’s neck and shoulder symptoms to his work injury. Both suggested an evaluation
for his non-work-related neck condition. Dr. Harriman found Mr. Joyner’s neck and right
shoulder conditions “chronic,” and Dr. Ferguson concluded Mr. Joyner’s condition was
“clearly not related to” his work injury. Lehman insisted these authorized physicians are
presumed correct and that Mr. Joyner failed to demonstrate the work injury required the
requested treatment.

                       Findings of Fact and Conclusions of Law

       At an Expedited Hearing, Mr. Joyner must present sufficient evidence that he is
likely to prevail at a hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(1) (2017).
The central legal issue is whether Mr. Joyner presented sufficient evidence to show his
work injury required the requested treatment. The Court finds that he did not.

       An injury “arises primarily out of and in the course and scope of employment”
only if it has been shown by a preponderance of the evidence that the employment
contributed more than fifty percent (50%) in causing the injury, considering all causes.”
Tenn. Code Ann. § 50-6-102(14)(B) (2018). Medical evidence is generally required in
order to establish a causal relationship, “[e]xcept in the most obvious, simple and routine
cases.” Willis v. All Staff, No. M2016-01143-SC-R3-WC, 2017 Tenn. LEXIS 455, at *13
(Tenn. Workers’ Comp. Panel Aug. 3, 2017).

       The opinion of the treating physician, selected by the employee from the
employer’s designated panel of physicians under section 50-6-204(a)(3) shall be
presumed correct on the issue of causation, but this presumption shall be rebuttable by a
preponderance of the evidence. Tenn. Code Ann. § 50-6-102(14)(E). Also, “a trial judge
has the discretion to determine which testimony to accept when presented with
conflicting expert opinions.” Bass v. The Home Depot U.S.A., Inc., 2017 TN Wrk. Comp.
App. Bd. LEXIS 36, at *9-10 (May 26, 2017) (internal citations omitted).

      The Court recognizes that Mr. Joyner disputes Drs. Harriman’s and Ferguson’s
conclusions. However, Mr. Joyner’s disagreement with the physicians’ opinions, while
genuine, is legally insufficient to refute their opinions. Concerning the employee’s
burden to produce medical proof, our Appeals Board held:

       In cases . . . where an employer has presented expert medical proof that the
       employee’s condition is not work-related, the employee must present expert
       medical proof that the alleged injury is causally related to the employment

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      when the case is not “obvious, simple [or] routine.” While lay testimony
      may be probative on the issue of causation, it is insufficient to meet an
      employee’s burden of proof in the absence of medical evidence.

Berdnik v. Fairfield Glade Cmty. Club, 2017 TN Wrk. Comp. App. Bd. LEXIS 32, at *10
(May 18, 2017).

       Here, the authorized treating physician, Dr. Harriman, found Mr. Joyner’s neck
and shoulder conditions chronic. His opinion is presumed correct. Likewise, Dr.
Ferguson, selected from a panel, agreed with Dr. Harriman and added that Mr. Joyner’s
condition was “clearly not related to” his work injury. Dr. Swaminathan did not
overcome Dr. Harriman’s opinion that the conditions were chronic, which Dr. Ferguson
supported. In addition, Dr. Swaminathan did not address causation.

       For these reasons, the Court holds Mr. Joyner did not come forward with sufficient
medical evidence from which the Court may conclude he is likely to prevail at a hearing
on the merits in establishing his work injury required the requested treatment.

      IT IS, THEREFORE, ORDERED as follows:

   1. The Court denies Mr. Joyner’s claim against Lehman for the requested medical
      benefits at this time.

   2. Dr. Christopher Ferguson shall be the authorized treating physician under
      Tennessee Code Annotated section 50-6-204 for reasonable and necessary medical
      treatment related to Mr. Joyner’s July 27, 2017 injury.

   3. This matter is set for a telephonic Scheduling Hearing on May 20, 2019, at 1:00
      p.m. Central Time. You must call toll-free at 866-943-0014 to participate in the
      hearing. Failure to call may result in a determination of the issues without your
      participation.

      ENTERED April 8, 2019.



                                  ____________________________________
                                  Judge Deana C. Seymour
                                  Court of Workers’ Compensation Claims




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                                       APPENDIX

Technical record:

TR1.   Petition for Benefit Determination
TR2.   Dispute Certification Notice
TR3.   Request for Expedited Hearing, along with Affidavit of Donell Joyner
TR4.   Employer’s Position Statement for Expedited Hearing

Exhibits:

1.     First Report of Work Injury
2.     Employee’s Choice of Physician Form
3.     Supervisor’s Accident Investigation report
4.     Medical Records from Memphis Orthopaedic Group
5.     Medical Records from Dr. Thirukandeeswaram Swaminathan


                             CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of this Order was sent to the following
recipients by the following methods of service on April 8, 2019.

 Name                        Certified USPS      Via      Service sent to:
                             Mail                Email
 Donell Joyner,                 X        X                1534 East Alcy Road
 Self-Represented                                         Memphis, TN 38114
 Employee
 Gary Nichols                                       X     gary.nichols@thehartford.com
 Employer’s Attorney



                                          ________________________
                                          Penny Shrum, Clerk of Court
                                          Court of Workers’ Compensation Claims
                                          WC.CourtClerk@tn.gov




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