                                                                                                               F~ED

                                                                                                             l\llay 17,2016

                                                                                                            TN COURI OF
                                                                                                       WORKERS ' COMPE NSATION
                                                                                                               CLAIMS

                                                                                                               Time: l:Sl Pl\1

               TENNESSEE BUREAU OF WORKERS' COMPENSATION
              IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                             AT CHATTANOOGA

Ned Eugene Murphy                                          )   Docket No.: 2015-01-0473
           Employee,                                       )
v.                                                         )   State File Number: 98556 2014
ADM Trucking, Inc.                                         )
            Employer,                                      )   Judge Audrey A. Headrick
And                                                        )
Old Republic Insurance Company                             )
            Insurance Carrier.                             )
                                                           )

                                  EXPEDITED HEARING ORDER
                                 GRANTING MEDICAL BENEFITS


       This matter came before the undersigned Workers' Compensation Judge on the
Request for Expedited Hearing filed by the employee, Ned Eugene Murphy, on February
23, 2016. The central legal issue is whether the evidence is sufficient for the Court to
determine that Mr. Murphy is likely to prevail at a hearing on the merits. The employer,
ADM Trucking, Inc., disputes that Mr. Murphy is entitled to a panel of physicians. For
the reasons set forth below, the Court finds Mr. Murphy is entitled to the requested
medical benefits. 1

                                               History of Claim

       Mr. Murphy is a fifty-three-year-old resident of Walker County, Georgia. He
worked at ADM as a truck driver. Mr. Murphy allegedly injured his back on December
9, 2014, while cranking an 18-wheeler yard truck to the correct height for
hooking/unhooking. He testified he used the cranking mechanism in the weeks leading
up to December 9, 2014, while hooking/unhooking at a sweetener facility. Mr. Murphy
reported his back injury to Darren Crow, the driver supervisor at ADM, on the morning
ofDecember 10, 2014.

1
   A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.

                                                          1
       Mr. Crow testified by deposition that Mr. Murphy notified him around the
beginning of December 20 14 about the following situation:

         [Mr. Murphy], a couple ofweeks or so prior to that, had run into [having to
         lower a trailer from a truck using a crank mechanism] over at the Sweetener
         station. He talked about how a couple weeks before that, he was hooking
         up to a trailer and it was too high. And he was rolling the landing gear
         down and felt a little pain in his back. And he just thought it was some
         soreness, it would go away. And we had a little conversation about that and
         then went on our way. You know, a couple of weeks later or so, I get the
         phone call that, hey, I'm in a lot of pain because of this. I thought it would
         get better. I tried to work through it, but it didn't get better.

(Ex. 1 at 51-52.)

        Mr. Murphy testified Mr. Crow did not offer him a choice of doctors. Instead, Mr.
Murphy stated Mr. Crowe told him he would meet him at Workforce Corporate Health on
Third Street in Chattanooga. Although ADM provided Mr. Murphy with three authorized
visits at Workforce, the parties stipulated that ADM did not provide Mr. Murphy with a
written panel of physicians.

       Mr. Crow further testified that he was unaware of the statutory requirement to
provide an employee with a written panel until after the incident involving Mr. Murphy.
(Ex. 1 at 27.) When Mr. Murphy notified him of his injury on December 10, 2014, Mr.
Crow stated he offered Mr. Murphy a verbal panel "to an extent." !d. at 30. He
explained that ADM sent employees to two Workforce locations "98 percent of the time."
Id. at 34. Mr. Crow stated he asked Mr. Murphy "[w]here do you want to go?'' in
relation to the choice of going to one of the Workforce locations. 2 ld. at 30-34; 48.

       On December 10, 2014, Mr. Crow met Mr. Murphy at the Workforce location on
Third Street. ld. at 49. When Mr. Murphy saw Dr. Jayant Eldurkar at Workforce, he
gave a history of hurting his low back two weeks ago while "lowering a trailer from a
truck using a crank mechanism when he had a sudden onset of low back pain on the right
side." (Ex. 6.) ld. However, he diagnosed Mr. Murphy with a lumbar sprain/strain and

2
  Eric Oliver, counsel for Mr. Murphy, called Mr. Crow by deposition as his first witness to impeach his testimony.
Mr. Oliver sought to admit into evidence a recorded telephone conversation allegedly occurring on May 11, 2015,
between Mr. Murphy and Mr. Crow, without Mr. Crow's consent or knowledge, pursuant to Tennessee Compilation
Rules and Regulations 0800-02-21-.18 (2015). Defense counsel, John Huisman, objected to the recording. He
argued the Rule cited refers to live testimony. Mr. Huisman also argued the recording was irrelevant since ADM
stipulated it had not given Mr. Murphy a panel. Mr. Oliver argued ADM previously asserted in a pleading that Mr.
Crow offered Mr. Murphy a verbal choice of physicians by allegedly telling Mr. Murphy he could see any physician
of his choice. Mr. Huisman withdrew the argument that there is any legal significance regarding the manner in
which Mr. Crow offered treatment to Mr. Murphy. The Court sustained the objection to the recording, and the DVD
was marked for identification purposes only.

                                                        2
released him to return to work with restrictions.                    !d.    Dr. Eldurkar also prescribed
Tramadol, Skelaxin, and prednisone. !d.

        Mr. Murphy returned to Workforce on December 16, 2014. (Ex. 6.) At the visit,
Mr. Murphy stated he had "no pain today." !d. The physical exam indicated Mr. Murphy
had full range of motion with "very mild tenderness at the right side L4-L5 region." !d.
Dr. Eldurkar released him to return to work without restrictions. !d. Mr. Murphy
testified he was actually not pain-free when Dr. Eldurkar discharged him on December
16, 2014. However, he stated he needed to return to work as a driver since he was single
with no emergency fund. 3 After returning to work as a driver, Mr. Murphy indicated he
purchased an inversion chair and driving seat to try to get relief from his back pain. (Ex.
3.)

       Mr. Murphy testified he called Mr. Crow on May 11, 2015, because his pain was
worse and he needed to see a doctor. Mr. Crow confirmed Mr. Murphy told him he "had
really bad pain," "had never felt any better" after he was released, and "could barely
walk." (Ex. 1 at 62-63.) He asked Mr. Murphy, "[d]o you want me to meet you out there
towards Volkswagen [at the Workforce located there] or do you want to come downtown
[to the Workforce on Third Street]?" !d. at 64. Mr. Crow stated he attended the
appointment with Mr. Murphy even though it was not an initial appointment because five
months had passed since the December incident, so he viewed it as "another first report
of incident." !d. Mr. Murphy testified he was upset after he spoke with Mr. Crow
because he felt Workforce had not done anything to help him when he previously went
there.

        On May 11, 2015, Mr. Murphy saw Dr. David Darden at Workforce. (Ex. 6.) Mr.
Murphy complained of acute low back pain with radiation down his left leg. !d. Dr.
Darden noted he was lying on the exam table and said he could not stand or sit due to his
pain. !d. He also noted, "[i]t is very important to note that he did drive from the ADM
facility to the clinic without apparent difficulty." Dr. Darden stated he questioned Mr.
Murphy about why he was at the clinic on that day when his original injury was on
December 10, 2014. !d. Mr. Murphy told Dr. Darden he had never been pain free, and
he had bought an inversion chair for pain relief while driving. !d.

       Dr. Darden ordered lumbar spine x-rays, which were performed during the visit.
!d. In addition to advanced degenerative disc disease and facet arthropathy, the x-rays
reference "a moderate circumferential disc bulge and associated osteophytes" as well as
"a chronic, incompletely healed fracture" at Ll. !d. Dr. Darden diagnosed Mr. Murphy
with "[ s]evere degenerative arthritis of the spine with sciatica L5 distribution to the left
hip." !d. He explained to Mr. Murphy that degenerative spine disease "is generally
considered a non-work-related injury." !d. Dr. Darden prescribed Tramadol 50 mg and

3
    For the one week he was on restricted duty, Mr. Murphy stated he worked in ADM's office doing paperwork.

                                                         3
Skelaxin 800 mg for back pain. !d. He told Mr. Murphy "not to drive any commercial
vehicle while he was experiencing this acute pain and that he also should not even drive
his personal vehicle." !d.

     In his office note, Dr. Darden added the following commentary regarding Mr.
Murphy's condition:

       I asked him to get dressed and stop at the front desk before he left. His
       exam room was in the back of the clinic and he had to walk from the front
       of the clinic and then out to his car and I made a point of observing him and
       he got dressed in an appropriate period and as he ambulated down the hall
       and stopped at the front desk and ambulated through the waiting room,
       open [sic] the heavy clinic door and more or less moseyed out to his car
       without any signs, symptoms or evidence of any abnormality in his gait or
       any pain related to his back. His gait was basically what we refer to in the
       south as that he just moseyed out and got in his car and drove off. This
       further reinforces to me that potentially he was doing a little magnification
       of his symptoms for whatever reason. !d.

      During Mr. Crow's deposition, he testified he had two conversations with Dr.
Darden regarding Mr. Murphy. He stated the first conversation occurred after Dr. Darden
saw Mr. Murphy on May 11, 2015, and Dr. Darden told him that Mr. Murphy had
"degenerative spine disease" that "was not work related." (Ex. 1 at 70.) The second
conversation he had with Dr. Darden was thirty to forty minutes later. Mr. Crow testified
Dr. Darden called him on his work cell phone and told, in part, the following:

       Then [Dr. Darden] said he observed [Mr. Murphy] walking down the
       hallway from there, noticed that at that point he was not limping or showing
       any gait. Walked out, opened the door, no problem. He said he stepped
       outside and observed him walking to his car and showed no obvious sign of
       distress or anything near to the extent it was when he showed up.

!d. at 71.

        Mr. Crow stated his understanding of Dr. Darden's communication to him "was
not that [Mr. Murphy] was faking an injury, that he was overexaggerating [sic] the extent
of his injury that day." !d. at 72. He also stated Dr. Darden indicated Mr. Murphy's
demeanor and behavior changed after he told him he did not have a work-related injury.
!d. Although Mr. Crow considered Mr. Murphy a good worker, he stated the grounds for
firing Mr. Murphy was "[f]or filing a claim or a false claim that the company can be held
liable for." !d. at 81. He explained Mr. Murphy's claim evolved into a false claim "when
[ADM] got word that- when [Mr. Murphy] found out it was no longer work related or a
workers' comp. issue, that according to the medical professional, that the extent of his

                                            4
injury seemed to go away to the level that it was when he showed up there." !d.

     Dr. Darden also testified by deposition regarding his evaluation of Mr. Murphy on
May 11, 2015. 4 Regarding Mr. Murphy's physical examination, he opined that:

         [W]hen you put everything together with him driving himself to the clinic
         and sitting in the waiting room for a while until we could get him back, I
         thought there was a conflict in my - in the way he presented himself to me
         and what I knew of his history of how he got to the clinic.

(Ex. 5 at 17.)

       Dr. Darden clarified he believed Mr. Murphy was in pain, but he "didn't think his
pain was as severe." !d. at 63. He explained there is a difference between faking and
magnifying symptoms. !d. at 77. When shown a June 1, 2015 office note from
Cleveland Physician's Office for Mr. Murphy, Dr. Darden stated the physical exam
indicated "patient exhibited abnormal pain behavior during the exam." !d. at 26. The
examination note also reflected "Waddell's signs are one plus positive." !d. Dr. Darden
indicated the findings in the June 1, 2015 office note were consistent with his findings of
symptom magnification. !d. at 27. After reviewing the June 1, 2015 office note, Dr.
Darden opined that, "[b]ased on the severe degenerative spine disease, it would still be
my recommendation that he should not drive a truck that's going to probably enhance the
degenerative spine disease, make it more progressive." !d. at 28.

       During Dr. Darden's deposition, he was asked to explain how he knew that Mr.
Murphy drove to Workforce without apparent difficulty as cited in his office note. !d. at
80. Dr. Darden responded it was "[b]ecause of knowing people that have severe back
problems, the last thing they want to do is sit down and drive. !d. He identified "the big
red flag" as the fact that Dr. Eldurkar saw Mr. Murphy and discharged him as pain-free,
"[s]o in occupational medicine and workers' comp, he was over that initial thing." !d. at
81. Five months later on May 11, 2015, Mr. Murphy returned to Workforce with acute
pain. !d. Dr. Darden explained that "on a workers' comp, [Mr. Murphy] should have
been over that initial injury." !d. at 82.

        Dr. Darden testified he instructed Mr. Murphy not to drive and gave him a Toradol
injection (non-narcotic analgesic) and a Depo-Medrol (anti-inflammatory) injection due
primarily to his pain. !d. at 63; 95. He also prescribed Tramadol, for pain, and Skelaxin,
4
  Mr. Oliver objected to the admissibility of Dr. Darden's deposition as an expert medical witness pursuant to Rules
702 and 703 of the Tennessee Rules of Civil Procedure. Consistent with his pre-hearing brief, he cited various
portions of Dr. Darden's testimony to show that his opinions were not reliable and lacked trustworthiness. Mr.
Huisman argued Mr. Oliver had not shown that Dr. Darden was not qualified to testify as an expert pursuant to Rule
702 and or that his opinion was unreliable or inadmissible pursuant to Rule 703. The Court overruled the objection
to the admission of Dr. Darden's deposition testimony and held the issues raised by Mr. Oliver will go to the weight
given to Dr. Darden's opinion.

                                                         5
a muscle relaxant. ld. at 96. On the return to work status sheet, Dr. Darden confirmed he
checked "undetermined etiology" instead of work-related or not work-related because he
"couldn't say 100 percent that some of [Mr. Murphy's] problems were not related to that
injury." ld. at 92-93. After again reviewing Dr. Eldurkar's prior office note, he opined
"more likely than not, it was not related to that because he got over that initial phase." ld.
at 93. However, Dr. Darden recalled Mr. Murphy told him he had "never been pain free"
and "wouldn't have bought the inversion chair and seat and most of the things for relief
while driving" if he had been pain-free. ld. at 16.

       Dr. Darden testified he received a verbal reading of Mr. Murphy's lumbar x-rays
from the radiologist, Dr. Noe, whose interpretation indicated severe degenerative arthritis
of the spine, or degenerative disc disease. ld. at 17-18. Dr. Darden described
degenerative disc disease as the discs acting as shock absorbers with the spine collapsing
when discs deteriorate, which can result in impingement on the nerves. ld. at 18. He
stated degenerative disc disease exhibits itself as pain and sciatica radiculopathy with
nerve impingement as the disease progresses. ld. at 18-19. Throughout his deposition,
he reiterated that degenerative disc disease is part of the aging process. In addition to
degenerative disc disease, Dr. Darden also diagnosed Mr. Murphy with "[ s]ciatica L5
distribution to the left hip." ld. at 47. Although he acknowledged that Mr. Murphy's x-
rays showed a bulging disc, he stated an x-ray does not show if a bulging disc is
impinging on a nerve. ld. at 48-49. He stated an MRI is necessary to see nerve
impingement. ld. at 51.

      During his deposition, Dr. Darden testified regarding his opinion as to causation of
degenerative disc disease. He opined, "degenerative disease in the joints, more likely
than not, are not related to any kind of work-related activity, especially of the spine
whether it's in the neck or the low back." ld. at 19-20. Dr. Darden and Mr. Oliver,
counsel for Mr. Murphy, had the following exchange:

       Q:     And can [degenerative disc disease] be exacerbated by work-related
       injury?
       A:     Yeah.   It could be exacerbated, but then they get back to their
       baseline.
       Q:     How do you get back to your baseline if the mJury causes disc
      protrusion that is encroaching on a nerve?
       A:     You can't say that something like this caused a disc protrusion.
       What [Dr. Noe, the radiologist] is saying here is that advanced degenerative
      disc disease-that's an aging process. You can have an acute injury where


                                              6
they will-herniated disc on a nerve.        But they-those-generally, that
does not resolve on its own. That generally requires a surgical intervention.
Q:     Do you treat disc protrusions?
A:     No.




Q:     How does anyone with degenerative disc disease ever have a work-
related accident?
A:     You're asking me to theorize something that I-
Q:     Well, Mr. Murphy had degenerative disc disease in your opinion,
correct?
A:     Uh-huh.
Q:     And all of us in this room have it, right?
A:     I would-to a degree, we all would have. I probably have more than
you all will because I am older than you all.
Q:     Could you ever have a back injury?
A:     I could have a back injury. But whether it's work-related or not, you
have to get back to the definition of what's work-related. If they have a
preexisting condition, generally that is-and they have something that
causes a flare-up, that is not considered work-related, I know under the
current law if it's pre-existing. Because if they did not have that severe
degenerative disease, then they would not have had that injury.


A:     From what I understand, the current law-now, this is what you all
do and what the insurance companies do. That if you have a preexisting
condition and have you have a flare-up or something, then it is not
considered work-related.      Because, again, if not for the preexisting
condition, you would not have had that injury.



                                        7
!d. at 52-56.

        While acknowledging that he is not "an anatomist" or "a spine surgeon or a
neurologist," Dr. Darden testified that his role is to consider an x-ray and "put everything
together and then render an opinion as to whether it's work-related, not work-related, or
so forth." !d. at 72. After reviewing Dr. Eldurkar's office note indicating, "[Mr.
Murphy] said he was lowering a trailer from a truck using a crank mechanism when he
had a sudden onset of low back pain on the right side," Dr. Darden's response to whether
it could cause a bulging disc was that the question asked him "to theorize on something I
don't know." !d. at 98. When asked whether he knew if Mr. Murphy was upset when he
was at Workforce on May 11, 2015, Dr. Darden confirmed he appeared upset based upon
"the way he was sitting and his demeanor and so forth." !d. at 75.

        Mr. Murphy testified that, after returning to work without restrictions on
December 16, 2015, he continued to have to use the crank mechanism to adjust the height
of the truck for loading/unloading. He also stated he used the front door when he left
Workforce on May 11, 2015, which is not a heavy door. Mr. Murphy specifically
testified the door was light enough that it could open with the use of a finger.
Additionally, Mr. Murphy stated he did not return to work at ADM after the May 11,
2015 visit with Dr. Darden. Instead, Mr. Murphy testified that ADM terminated him on
May 26, 2015, and Mr. Crow informed him his termination was due to workers'
compensation fraud.

       On June 1, 2015, Mr. Murphy saw Dr. Scott Hodges, an orthopedic surgeon, at
Cleveland Physician's Office. (Ex. 8.) Mr. Murphy gave a history of a work injury
occurring on December 10, 2014, while manually tightening his trailer. !d. He stated he
saw his primary care physician, who ordered a lumbar MRI, after the closure of his
workers' compensation case. 5 !d. Mr. Murphy rated his pain level as a ten. !d. Dr.
Hodges noted abnormal pain behavior and positive Waddell signs. !d. He diagnosed Mr.
Murphy with lumbar degenerative disc disease, radiculopathy, and stenosis. !d. Dr.
Hodges prescribed a Medrol pack; Robaxin, for muscle spasms; and, Neurontin, for nerve
pain. !d. He noted, "[o]bserve for lumbar epidural steroid injections." !d. The lumbar
MRI performed on May 19, 2015, indicated an L2-L3 disc protrusion with nerve root
encroachment. (Ex. 4.)

       Subsequent to his termination from ADM, Mr. Murphy testified he was involved
in a motor vehicle accident (MVA) on July 27, 2015, and went to the emergency room by
ambulance. However, he stated he did not receive any other treatment related to the
MVA and was released that evening. Mr. Murphy acknowledged treating with three
chiropractors on his own for his back condition: (1) Dr. Marlow, whom he saw four to

5
  On May 18, 2015, a practitioner at Chickamauga Family Practice saw Mr. Murphy and requested a lumbar MR1
for his worsening lumbago. (Ex. 7.)

                                                    8
five times; (2) Dr. Packston, whom he saw fifteen times; and, (3) Chiro Health. He now
works full-time as a driver for Tranco, but he does not currently have health insurance.

       At the expedited hearing, Mr. Murphy requested that the Court either designate
Dr. Hodges as his authorized physician or order ADM to provide him with a panel of
physicians. Mr. Murphy argued ADM accepted his December 10, 2014 report of a back
injury as compensable, but it failed to comply with the statutory requirement of providing
him with a panel of physicians and instead verbally required him to go to Workforce.
After ADM's verbal directive requiring Mr. Murphy to go to Workforce, it denied his
claim after that physician stated it was not work-related. He cited McCord v. Advantage
Human Resourcing, infra, and Buchanan v. Carlex Glass Co., infra, to argue that a lesser
burden of proof is required at the expedited hearing level than for a compensation
hearing. Mr. Murphy also cited Valentine v. Dollar General, No. 2015-06-0841, 2016
TN Wrk. Comp. LEXIS 2, at *8-*9 (Tenn. Ct. Workers' Comp. Cl. Jan. 4, 2016), as
being instructive to support his position that he provided sufficient evidence for the Court
to conclude he is entitled to continue treating with Dr. Hodges or, in the alternative, be
provided with a panel of physicians.

       ADM asked the Court to deny Mr. Murphy's request in its entirety. Mr. Murphy
sustained a back injury or strain in December 2014 as documented by Dr. Eldurkar's
records. On December 16, 2014, Mr. Murphy stated he was no longer in pain, and Dr.
Eldurkar released him to return to work. The panel issue did not resurface until October
2015 after Mr. Murphy's termination. In May 2015, Dr. Darden diagnosed him with
degenerative disc disease and opined his current symptoms were not work-related. Dr.
Darden also observed and documented multiple signs of symptom magnification.
Physician's Assistant Pulver in Dr. Hodges' office also confirmed and observed signs of
symptom magnification. Instead of returning to Dr. Hodges for follow-up, Mr. Murphy
was in an MVA and sought treatment with chiropractors. The burden is to show Mr.
Murphy is likely to prevail on a hearing on the merits, but the evidence shows otherwise.
Therefore, ADM argued Mr. Murphy's current condition is not work-related, and he is
not entitled to a panel.

      Mr. Murphy filed a Petition for Benefit Determination seeking medical benefits.
The parties did not resolve the disputed issues through mediation, and the mediator filed
a Dispute Certification Notice on February 23, 2016. Mr. Murphy filed a Request for
Expedited Hearing on February 23, 2016. This Court heard the matter on April21, 2016.

                       Findings of Fact and Conclusions of Law

       In Mr. Murphy's workers' compensation claim, he has the burden of proof on all
essential elements of his claim. Scott v. Integrity Staffing Solutions, No. 2015-01-0055,
2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn. Workers' Comp. App. Bd. Aug.
18, 2015). However, Mr. Murphy is not required to prove every element of his claim by

                                             9
a preponderance of the evidence in order to obtain relief at an expedited hearing.
McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015). At an
expedited hearing, Mr. Murphy has the burden to come forward with sufficient evidence
from which the trial court can determine that Mr. Murphy is likely to prevail at a hearing
on the merits. I d. This lesser evidentiary standard "does not relieve an employee of the
burden of producing evidence of an injury by accident that arose primarily out of and in
the course and scope of employment at an expedited hearing, but allows some relief to be
granted if that evidence does not rise to the level of a 'preponderance of the evidence."'
Buchanan v. Carlex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd.
LEXIS 39, at *6 (Tenn. Workers' Comp. App. Bd. Sept. 29, 2015).

       During Mr. Murphy's expedited hearing, it was undisputed that he sustained a
work-related sprain or strain due to using a cranking mechanism a couple of weeks prior
to December 9, 2014, at a sweetener facility. The parties also stipulated that ADM did
not provide Mr. Murphy with a panel of physicians after he reported on December 10,
2014, that he had a work-related back injury. Instead, Mr. Murphy credibly testified Mr.
Crow, the driver supervisor at ADM, told him he would meet him at Workforce on Third
Street in Chattanooga. Mr. Murphy's assertion is consistent with the deposition
testimony of Mr. Crow. A thorough reading of Mr. Crow's deposition in its entirety
indicates he offered Mr. Murphy a verbal choice between going to the Workforce at
Volkswagen or the Workforce on Third Street. (Ex. 1.)

        The Workers' Compensation Law required ADM to offer Mr. Murphy a panel in
writing with a choice of three physicians. See Tenn. Code Ann. § 50-6-204(a)(3)(D)(i)-
(ii) (20 15). However, ADM verbally directed Mr. Murphy to one medical provider. In
an effort to return to work as a driver without restrictions, Mr. Murphy testified on
December 16, 2014, he told Dr. Eldurkar he had no pain on that day because he needed to
return to work as a driver for financial reasons. He testified he subsequently purchased
an inversion chair and driving seat to help alleviate his back pain. (Ex. 3.) Mr. Murphy
also testified his job required him to use the cranking mechanism at the sweetener facility
after December 16, 2014.

      The testimony of Mr. Murphy and Mr. Crow are consistent as to what occurred
when Mr. Murphy called Mr. Crow on May 11, 2015. Mr. Murphy reported his back
pain was worse and never improved. Mr. Crow asked Mr. Murphy, "[d]o you want me to
meet you out there towards Volkswagen [at the Workforce located there] or do you want
to come downtown [to the Workforce on Third Street]?" (Ex. 1 at 64.) On May 11,
2015, Mr. Murphy saw Dr. Darden at Workforce. This Court overruled the objection to
the admission of Dr. Darden's medical deposition because it did not find that Dr. Darden
was disqualified to testify as an expert witness pursuant to Rules 702 and 703 of the
Tennessee Rules of Civil Procedure. However, after carefully reviewing and considering
Dr. Darden's testimony, this Court gives little weight to his testimony and medical

                                            10
opmwns.

       Dr. Darden's opinion that degenerative disc disease is rarely, if ever, work-related,
because it is a pre-existing condition is based upon a faulty premise. If an injured worker
offers evidence medical proof within a reasonable of medical certainty "that the
aggravation [of a pre-existing condition] arose primarily out of and in the course and
cope of employment," the injury may be compensable under the Workers' Compensation
Law. See Tenn. Code Ann. § 50-6-102(14)(A) (2015). Additionally, the Workers'
Compensation Appeals Board clarified that "an aggravation or exacerbation need not be
permanent for an injured worker to qualify for medical treatment reasonably necessitated
by the aggravation." Miller v. Lowe's Home Centers, Inc., No. 2015-05-0158, 2015 TN
Wrk. Comp. App. Bd. LEXIS 40, at *18 (Tenn. Workers' Comp. App. Bd. Oct. 21,
2015). Further, the fact that Dr. Darden, and Dr. Hodge's physician's assistant, noted
symptom magnification regarcling Mr. Murphy's pain level does not negate his statutory
entitlement to a panel of physicians. 6

        After ADM denied Mr. Murphy's claim based upon Dr. Darden's opinion on May
11, 2015, he sought treatment on his own at Chickamauga Family Practice on May 18,
2015, and with Dr. Scott Hodges on June 1, 2015. Although the May 19, 2015 !viRl
indicated an L2-L3 disc protrusion with nerve root encroachment, the records are silent as
to whether there is a causal relationship between Mr. Murphy's back condition and his
work injury on or about December 9, 2014. (Ex. 4, 7, and 8.) However, the medical
evidence presented supports Mr. Murphy's allegation that he experienced a sudden onset
of low back pain while using a cranking mechanism, which resulted in a back sprain or
strain. There is no medical proof establishing otherwise. Therefore, as matter of law,
Mr. Murphy has come forward with sufficient evidence from which this Court concludes
he is likely to prevail at a hearing on the merits on the issue of entitlement to a panel of
physicians.

    IT IS, THEREFORE, ORDERED as follows:

     1. ADM or its workers' compensation carrier shall provide Mr. Murphy with a panel
        of orthopedic surgeons compliant with Tennessee Code Annotated section 50-6-
        204(a)(3) (2015) for evaluation and/or treatment of the injury of December 9,
        2014. Mr. Murphy or the providers shall furnish ADM, or its carrier, bills for the
        charges incurred for compensable care, and ADM or its carrier shall timely pay
        said charges.

     2. This matter is set for an Initial (Scheduling) Hearing on July 20, 2016, at 10:00
        a.m. Eastern Time.

6
 Although Mr. Murphy briefly testified regarding a motor vehicle accident and chiropractic treatment, the parties
did not seek to introduce those records into evidence.

                                                       11
   3. Unless interlocutory appeal of the Expedited Hearing Order is filed,
      compliance with this Order must occur no later than seven business days
      from the date of entry of this Order as required by Tennessee Code
      Annotated section 50-6-239(d)(3) (2015).   The Insurer or Self-Insured
      Employer must submit confirmation of compliance with this Order to the
      Bureau by email to WCCompliance.Program@tn.gov no later than the
      seventh business day after entry of this Order. Failure to submit the
      necessary confirmation within the period of compliance may result in a
      penalty assessment for non-compliance.

   4. For questions regarding compliance, please contact the Workers' Compensation
      Compliance Unit via email W Compliance.Program@tn..gov or by calling (615)
      253-1471 or (615) 532-1309.

   ENTERED this the 17th day ofMay, 2016.



                                Judge Audrey   Headnck
                                Court of Workers' Compensation Claims

Initial (Scheduling) Hearing:

      A Scheduling Hearing has been set with Judge Audrey A. Headrick, Court of
Workers' Compensation Claims. You must call 423-634-0164 or toll free at 855-
383-0001 to participate in the Initial Hearing.

       Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation. All conferences are set using Eastern Time.

Right to Appeal:

       Tennessee Law allows any party who disagrees with this Expedited 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: "Expedited Hearing Notice of Appeal."

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


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

4. The appealing party is responsible for payment of a filing fee in the amollDt 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
   Indigency in accordance with this section shall result in dismissal of the
   appeal.

5. The parties, 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 ten calendar days of the filing of the Expedited
   Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
   the evidence within ten calendar days of the filing of the Expedited 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.

6. If the appellant elects to file a position statement in support of the interlocutory
   appeal, the appellant shall file such position statement with the Court Clerk within
   five business days of the expiration of the time to file a transcript or statement of
   the evidence, specifYing the issues presented for review and including any
   argument in support thereof. A party opposing the appeal shall file a response, if
   any, with the Court Clerk within five business days of the filing of the appellant's
   position statement. All position statements pertaining to an appeal of an
   interlocutory order should include: ( 1) a statement summarizing the facts of the
   case from the evidence admitted during the expedited hearing; (2) a statement
   summarizing the disposition of the case as a result of the expedited hearing; (3) a
   statement of the issue(s) presented for review; and (4) an argument, citing
   appropriate statutes, case law, or other authority.




                                         13
                                               APPENDIX

Exhibits:
1.     Deposition of Darren Crow, filed AprilS, 2016;
2.     Affidavit ofNed E. Murphy, filed February 23, 2016;
3.     Photographs (2) of inversion chair and driving seat;
4.     Medical records of John Nelson, M.D., filed April 8, 2016;
5.     Deposition of David D. Darden, DO, MPH, NRCME, filed April 8, 2016;
6.     Medical records of Workforce Corporate Health;
7.     Medical records of Chickamauga Family Practice, filed April 8, 2016; and,
8.     Medical records of Scott D. Hodges, D.O.

Marked for Identification Purposes Onlv:
1.   DVD recording oftelephone conversation between Darren Crow and Ned Murphy
     on May 11, 2015

Technical record: 7
1.    Petition for Benefit Determination, filed October 29, 2015;
2.    Dispute Certification Notice, filed February 23, 2016;
3.    Request for Expedited Hearing, filed February 23, 2016;
4.    Motion to Take Depositions, filed February 23, 2016;
5.    Objection to Request for Expedited Hearing/Ruling, filed March 1, 2016;
6.    Objection to Motion for Depositions, filed March 1, 2016;
7.    Order for Expedited Hearing, issued March 9, 2016;
8.    Order Granting Motion to Take Depositions, issued March 9, 2016;
9.    Notice of Scheduled Hearing, filed April 7, 2016;
10.   Employee's Evidence Table of Contents, filed April 8, 2016;
11.   Employer's Evidence Table of Contents, filed April 8, 20 16;
12.   Employer's Pre-Hearing Brief, filed AprilS, 2016; and,
13.   Expedited Hearing Brief on Behalf of Ned Murphy, filed April12, 2016.




7
    The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as
allegations unless established by the evidence.

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                           CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Expedited Hearing Order
Granting Medical Benefits was sent to the following recipients by the following methods
of service on this the 17th day of May, 2016.

        Name             Certified Via Via       Service sent to:
                         Mail      Fax Email
Eric J. Oliver,                          X       eoliver@lewisoliver .com
Employee's Attorney
John G. Huisman,                           X     j olm (Zi),huisman lawtirm. com
Em_l)_loyer's Attorney




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