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

Steven Kelly Lambert,                                     )   Docket No.: 2016-01-0100
             Employee,                                   )
v.                                                       )    State File No.: 99928-2015
The Roberts Company,                                     )
            Employer,                                    )    Judge Thomas Wyatt
And                                                      )
                                                         )
National Union Fire Ins. Co.,                            )
            Carrier.                                     )

                  EXPEDITED HEARING ORDER DENYING BENEFITS


        This case came before the undersigned Workers' Compensation Judge on
September 23, 2016, upon the Request for Expedited Hearing filed by the employee,
Steven Kelly Lambert, pursuant to Tennessee Code Annotated section 50-6-239 (2015).
The hearing focused on whether Mr. Lambert submitted sufficient evidence to establish
he is likely to prevail at a hearing on the merits that his alleged injuries arose primarily
out of and in the course and scope of employment. For the reasons set forth below, the
Court fmds Mr. Lambert is not likely to prevail at a hearing on the merits on the stated
issue and is not entitled to the benefits requested. 1

                                              History of Claim

        Mr. Lambert is a fifty-two-year-old resident of luka, Mississippi. (T.R. 1 at 1.)
He is a travelling pipefitter who ·~ follows the work" to various construction sites. On
November 11, 201 5 he hired on with The Roberts Company (TRC) a contractor
installing industrial pumps at Resolute Forest Products, a paper mill in Calhoun, McMinn
County, Tennessee. (Ex. 8 at 1.) Mr. Lambert alleged he sustained an aggravation of
bleeding hemorrhoids and a back injury on December 2, 2015, while carrying an 1-beam
in the course and scope of his employment by TRC.
1
 A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.


                                                         1
       TRC hired Mr. Lambert to work ten hours per day, seven days per week; however,
he only worked four of the first fourteen days after the date of hire. (Ex. 19.) During the
Expedited Hearing, Mr. Lambert testified he "missed a few days" at the beginning of the
job because of "truck problems" that resulted in him having to rent a room. Charles
Smith, TRC's general foreman and Mr. Lambert's direct supervisor, testified that, during
these periods of absence, Mr. Lambert texted him to explain he missed work because he
had gotten hurt setting up his camper. 2

       Concerned about his job status, Mr. Lambert asked Mr. Smith if he still had a job
at TRC. Because he needed good pipefitters on the project, Mr. Smith had Mr. Lambert's
previously-filed termination "pulled," with the expectation that Mr. Lambert would return
to work after a scheduled Thanksgiving break. TRC's records confirmed Mr. Lambert
returned to work on November 30. (Ex. 19.) The records indicated he worked a full shift
on November 30, three and one-half hours the next day due to rain, and a full shift on
December 2, the date of injury. Id.

       Mr. Lambert testified that, on the date of injury, Mr. Smith brought him a section
of a steel I-beam and instructed him to carry it to a location for use as a support for
TRC's pipe installation. 3 Mr. Lambert stated he carried the I-beam without assistance up
a flight of stairs, across a catwalk, and down another flight of stairs. He then sat the
beam on end at a comer and scooted it along the deck to its ultimate destination. (Ex. 13
at 5.) Mr. Lambert testified he knew at the time he was handling the I-beam that he had
hurt his back.

       Mr. Lambert fmished his shift on December 2. (Ex. 19.) He testified that, when
the shift ended, he sought out Carl Clark, TRC's safety manager, to tell him he thought
                                                            4
he "may have pulled a muscle in my back or something. ' Mr. Clark denied this
conversation took place. Mr. Lambert went home and, when he next had a bowel
movement, noticed bright red blood in his discharge. The next morning, Mr. Lambert

2
 On cross-examination, Mr. Lambert testified he did not think he sent the alleged text to Mr. Smith. Under further
cross-examination, he testified he did not remember sending the text, but stated he may have done so.
3
 Mr. Lambert testified during the hearing that the I-beam he carried weighed two hundred pounds. He told a doctor
he saw at Doctors Express that the beam weighed one hundred sixty pounds and testified during his recorded
statement that the beam weighed two hundred sixty-five pounds. (Ex. 2 at 3; Ex. 13 at 5.) Mr. Lambert set the
weight of the beam at two hundred forty pounds in his filings before this Court. (T.R. 1 at 1; T.R. 4 at 1.) Mr.
Lambert's supervisor testified the I-beam weighed forty-eight pounds.
4
  When questioned in his recorded statement about reporting his injury, Mr. Lambert stated he reported his injury to
"Mr. Carl." (Ex. 13 at 6.) However, as to the timing of the report, Mr. Lambert said that, at the end of the shift on
December 2, 2015, "[t]here's nobody really to talk to. No foremen or [the foremen were] scattered out here and
there and everything. So like I came on home[.]" Later during the recorded statement, Mr. Lambert stated, "[w]ell,
three or four days rolled around, I called Carl. I said I need to see a doctor." !d.


                                                         2
called TRC to inform them he was not coming to work. He stated in a voicemail
message, "I'm off going to a doctor today. I'm bleeding real bad. I don't know what
happened yesterday at work. I didn't notice it until I got home last night." (Ex. 12.)

       Mr. Lambert sought emergent care at Skyridge Medical Center in Cleveland,
Tennessee late in the afternoon on December 3, reporting rectal bleeding and left-sided
low back and flank pain. (Ex. 1 at 2, 11.) The Skyridge records indicated Mr. Lambert
reported working all day the previous day with "fairly heavy activity." !d. at 11. A rectal
exam revealed the presence of bright red blood. !d. at 12. After aCT scan failed to show
an acute problem requiring hospitalization, the emergency room doctor diagnosed
bleeding hemorrhoids and a muscle strain of the back and released Mr. Lambert with
medication for his hemorrhoids. !d. at 14-15, 17.

       Mr. Lambert did not return to work at TRC in the days following the emergency
room visit. (Ex. 19.) He testified he unsuccessfully attempted to telephone Mr. Clark
during this period to arrange for treatment of his injuries. According to Mr. Clark,
someone in TRC's human resources department called him to inquire what he knew
about Mr. Lambert sustaining a work injury. Mr. Clark contacted Mr. Lambert and
offered him transportation to see a doctor for his injuries. Mr. Lambert declined, stating
he was in too much pain and it was too late in the afternoon to go to the doctor that day.
He agreed to meet Mr. Clark the following morning at the doctor's office.

       Mr. Lambert saw a doctor at Doctors Express, a walk-in clinic in Cleveland,
Tennessee, on the morning of December 8. (Ex. 2 at 3.) He reported a history of back,
left leg, and hip pain beginning December 2, when he "lifted a 4ft by 8in I-beam
weighing approximately 160 lbs." !d. Mr. Lambert told the doctor he had not had a
previous back injury or surgery. Mr. Lambert also reported his bleeding hemorrhoids and
his previous history of hemorrhoid surgery approximately sixteen years previously. !d.

        Doctors Express released Mr. Lambert with prescriptions for his back pain and
hemorrhoids. (Ex. 2 at 5.) According to Mr. Clark, the doctor restricted Mr. Lambert to
sedentary work. Mr. Clark testified he told Mr. Lambert TRC could accommodate the
restriction and instructed him to report back to work that afternoon. Mr. Lambert
testified he told Mr. Clark he accepted the light duty assignment, but testified he
understood he was to go in the next morning.

        Mr. Lambert never returned to work for TRC. (Ex. 19.) Mr. Clark and Mr. Smith,
testified Mr. Lambert did not report back to the work site, nor did he call in before his
scheduled shifts began to explain why he was not coming to work. Mr. Smith testified
that TRC's rule requires termination of an employee when he or she is a "no call/no
show" for three consecutive days. Based on this rule, he terminated Mr. Lambert on
December 11, the third day Mr. Lambert was a no call/no show after Doctors Express


                                            3
released him to return to work on light duty. 5

        Contrary to Mr. Smith's and Mr. Clark's testimony, Mr. Lambert testified he
appeared for work on December 9, 6 but found his "brass was not on the board" when he
attempted to enter the site. 7 He stated he called Mr. Clark later that day to tell him he
could not work because he was still bleeding and in pain. Mr. Lambert testified he called
TRC's office manager, Tammy Whitehurst, the next day to tell her he was bed-ridden due
to his injuries. He testified he later spoke to Mr. Clark, who authorized him to return to
Doctors Express. 8 Mr. Clark testified he never talked to Mr. Lambert after they parted
from Doctors Express on December 8.

       By December 21, Mr. Lambert had returned to his home in Mississippi. He
sought treatment at Baptist Memorial Hospital in Columbus, Mississippi for back pain
and numbness in his left leg. (Ex. 3 at 2, 7.) The Baptist records note that Mr. Lambert
related his pain to a December 2, injury while "picking up a beam at work." ld. at 7. The
emergency room doctor ordered an MRI, which Mr. Lambert underwent on January 7,
2016. (Ex. 5 at 1.) The MRl revealed mild multilevel degenerative changes, a central
annular tear at the T 12-L 1 level and a bilateral L5 pars defect. Id.

       After he returned to Mississippi, TRC's carrier offered Mr. Lambert a panel for
treatment of his alleged back injury, from which he selected Dr. Slater Lowry, an
orthopedic surgeon in Columbus, Mississippi. (Ex. 16.) Mr. Lambert saw Dr. Lowry on
January 8, reporting he "hurt [h]is back and left hip on the job last month." (Ex. 4 at 1,
4.) Dr. Slater also noted the presence of blood on the rectal exam he performed. Jd. at 4.
He ordered a colonoscopy, prescribed pain medication, and recommended injections and
physical therapy to treat Mr. Lambert's back pain. Id. at 4, 8, 25-6. By March 31, Dr.
Slater's note indicates "the workman's comp case has been put on hold for now." Id. at
8.9

      In February 2016, Mr. Lambert filed a Petition for Benefit Determination, seeking
medical and temporary disability benefits. (T.R. 1.) When mediation failed to resolve

5
 TRC's records indicate Mr. Lambert's termination date was December 8, 2015, the fourth date following the date
of injury on which TRC listed Mr. Lambert as a "no calVno show." (Ex. 8 at 1; Ex. 19.)
6
  However, during his recorded statement, Mr. Lambert testified, "[b]ut the next morning I couldn't go in. I couldn't.
It was-there was no way." (Ex. 13 at 7.)
7
 TRC assigns its employees a brass tag with a number on it, which the employee picks up at a "brass shack" to gain
entry to the worksite.
8
    Mr. Lambert never returned to Doctors Express. (Ex. 2.)
9
 Mr. Lambert saw another orthopedic surgeon in Columbus, Mississippi, Dr. Justin Hall, in February and March
2016. (Ex. 6). Dr. Hall placed restrictions on Mr. Lambert's work activities. !d. at I.


                                                          4
the parties' disputes, the mediating specialist issued a Dispute Certification Notice (T. R.
2) and this hearing ensued.

                       Findings of Fact and Conclusions of Law

       The 2013 Workers' Compensation Reform Act requires that an injury for which an
employee seeks benefits arise "primarily" out of and in the course and scope of
employment. Tenn. Code Ann. § 50-6-102(13) (2015). In Buchanan v. Carlex Glass
Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *5 (Tenn.
Workers' Comp. App. Bd. Sept. 29, 2015), the Workers' Compensation Appeals Board
held the employee has the burden of proving all elements of a workers' compensation
claim. See also Tenn. Code Ann. §50-5-239(c)(1) (2015). As to the standard of proof
applicable at an Expedited Hearing, the Appeals Board held in McCord v. Advantage
Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9-
10 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015), an employee need not establish his
or her claim by a preponderance of the evidence, but must only come forward with
sufficient evidence to enable the trial court to conclude that the employee "would likely
prevail at a hearing on the merits."

       Tennessee Code Annotated section 50-6-102(10(C) (2015), provides that "an
injury causes death, disablement or the need for medical treatment only if it has been
shown to a reasonable degree of medical certainty that it contributed more than fifty
percent (50%) in causing the death, disablement or need for medical treatment,
considering all causes." In other words, the employee must establish the work-
relatedness of his or her injury by expert medical opinion.

       In Brees v. Escape Day Spa & Salon, No. 2014-06-0072, TN Wrk. Comp. App.
Bd. LEXIS 5, at 17-8 (Tenn. Workers' Comp. App. Bd. Mar. 12, 2015), the Workers'
Compensation Appeals Board reversed a decision of the trial court because it rejected the
probative weight of the medical opinion relied upon by the trial court and accepted the
opinion of another physician. The Appeals Board rejected the causation opinion on
which the trial judge relied because that doctor rendered his opinion without either
reviewing diagnostic testing or considering other potential causes for the employee's
condition. The Appeals Board's decision in Brees exemplifies the established principle
of Tennessee law that the probative value of a doctor's causation opinion hinges on the
accuracy and completeness of the facts the doctor considered in rendering the opinion.
See Tennessee Rule of Evidence 703, providing, in part, "[t]he court shall disallow
testimony in the form of an opinion or inference if the underlying facts or data indicate
lack of trustworthiness."

        The requirement that a doctor obtain accurate and complete facts for consideration
in formulating his or her causation opinion is of critical importance in a claim, such as
this claim, where the employee's alleged injuries were not obvious to human observation,

                                             5
nor caused by an incident which, if observed, would lead the observer to the obvious
conclusion that the employee sustained injury. With injuries such as those alleged here,
only Mr. Lambert can truly know if his injuries occurred on the job. Accordingly, the
Court must first assess Mr. Lambert's credibility in determining whether the doctors who
rendered causation opinions in this claim possessed accurate and complete information
upon which to formulate their causation opinions. If they did not, their opinions will not
assist the Court in determining this claim.

       The Court closely observed Mr. Lambert's demeanor during his in-court
testimony. On direct examination, his spoke confidently and assertively. However, his
demeanor changed when confronted on cross-examination with discrepancies between
his testimony and documentary evidence introduced into the record. During cross-
examination, the Court observed that Mr. Lambert testified with less certainty and
provided no viable explanations for several discrepancies between his testimony and the
documentary evidence.

        Among the many discrepancies are the following. Mr. Lambert provided
conflicting testimony on why he missed work during the first fourteen days of his
employment as noted above. He provided widely divergent stories about the weight of
the I-beam he carried. At times he claimed it weighed two hundred, one hundred and
sixty, two hundred forty and two hundred sixty-five pounds.

        Additionally, the Court is troubled about the inconsistencies between Mr.
Lambert's in-person testimony and the recorded statement he gave on December 22 to a
representative of TRC's carrier. Mr. Lambert testified at trial he told Mr. Clark on the
date of injury that he may have injured his back. However, when describing in his
recorded statement whether he gave notice of his alleged injury on the date it occurred, he
stated, "[t]here's nobody really to talk to. No foremen or [they were] scattered out here
and there and everything. So like I came on home[.]" Later during the same recorded
statement, Mr. Lambert stated, "[w]ell, three or four days rolled around, I called Carl. I
said I need to see a doctor." (Ex. 13 at 6.)

       The Court also noted Mr. Lambert's recorded statement testimony contradicted his
in-person testimony that he appeared for light-duty work on December 9. During his
recorded statement, Mr. Lambert testified, "[b]ut the next morning [after I went to
Doctors Express on December 8,] I couldn't go in. I couldn't. It was-there was no
way." !d. The Court sees no means by which to reconcile the above discrepancy.

       Moreover, the Court also finds that Mr. Lambert mischaracterized the nature and
extent of hemorrhoid bleeding and back pain he experienced prior to December 2. He
both testified and told medical providers he had little or no hemorrhoid problems since he
underwent surgery more than fifteen years previously. To the contrary, records of The
Clinic at Elm Lake, P.A., in Columbus, Mississippi indicate Mr. Lambert saw a

                                            6
gastroenterologist on April 29, 2015, reporting bleeding and profound anemia. (Ex. 7 at
7.) The physician stated in his report he presumed the anemia related to Mr. Lambert's
bleeding hemorrhoids. !d.

       Mr. Lambert also testified he had little or no back pain prior to December 2, 2015.
The Elm Lake records indicated he presented with back and knee pain on April21, 2015,
for which a nurse practitioner prescribed muscle relaxers. (Ex. 7 at 1.) This note also
indicated another provider had prescribed muscle relaxers for Mr. Lambert previously.
!d. The Elm Lake records further indicated a provider prescribed Mr. Lambert
medications including narcotic pain medication, on July 6, 2015, and August 31, 2015,
for condi.tions including lumbago and muscular pain. !d. at 9, 11. 10

       In view of the above-described discrepancies between Mr. Lambert's trial
testimony and the documentary evidence introduced into the record, the Court finds Mr.
Lambert without credibility. The Court is aware Mr. Lambert introduced evidence that
Dr. Lowry opined Mr. Lambert's bleeding hemorrhoids and back condition related to his
work at TRC.II (Ex. 4 at 25-6.) However, the Court gives no weight to Dr. Lowry's
opinion because Dr. Lowry can only give an opinion based on the version of facts given
him by Mr. Lambert. As stated previously, the Court gives no weight to Mr. Lambert's
version of the facts and, thus, cannot accredit Dr. Lowry's causation opinion.
Accordingly, the Court holds Mr. Lambert is unlikely to prevail at a hearing on the merits
in establishing his alleged injuries arose primarily out of and in the course and scope of
employment. Therefore, the Court denies Mr. Lambert's claim for benefits. 12

          IT IS, THEREFORE, ORDERED as follows:

     1.      Mr. Lambert's request for an interlocutory order of medical and temporary
             disability benefits is denied at this time.

     2.      This matter is set for a telephonic Initial (Scheduling) Hearing on December
             12,2016, at 9:00a.m., Eastern Time. The parties shall call in to 855-747-1721
             (toll-free) or 615-741-3061 to participate.


10
  The Court also noted that Mr. Lambert testified in his recorded statement that, in the days before Christmas 2015,
he suffered severe back and leg pain, even when he pushed the gas pedal of his truck. However, the Court also
noted that Mr. Lambert's Facebook postings during the same period indicate he went deer hunting. The Court did
not deem credible Mr. Lambert's testimony that his Facebook postings described another hunter's activities, noting
the information in the postings indicated the writer of the posts, and not someone else, engaged in the activity
described and depicted.
11
  The Court also noted TRC introduced evidence that a doctor at Doctors Express and Dr. Hall opined Mr.
Lambert's injuries did not primarily arise out of and in the course and scope of employment. (Ex. 2 at 3; Ex. 14.)
12
  The Court's decision pretermits the need to decide the Motion in Limine Mr. Lambert filed in connection with Dr.
Jason Hall's deposition.

                                                         7
       ENTERED this the 4th day     of   Octo:1~/ID

                                  Thomas Wyatt, Judge
                                  Court of Workers' Compensation Claims

Initial (Scheduling) Hearing:

      An Initial (Scheduling) Hearing has been set with Judge Thomas Wyatt, Court
of Workers' Compensation Claims. You must call 855-747-1721 (toll-free) or 615-
741-3061 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.


Right to Appeal:

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

   I. 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.

   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 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 lndigency, 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 lndigency 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


                                            8
       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.


                                      APPENDIX

Exhibits:

1. Medical records of Skyridge Medical Center;
2. Medical records of Doctors Express;
3. Medical records of Baptist Memorial Hospital;
4. Medical records of Lowry Medical Clinic/Dr. Slater B. Lowry;
5. Medical records of Imaging Center of Columbus;
6. Medical records of Columbus Orthopedic Clinic/Dr. Justin Hall;
7. Medical records ofElm Lake/Stephanie Gale, NP;
8. Personnel records of Steven Kelly Lambert;
9. Handwritten statement of Charles Smith;
10.Diagram ofbeam;
11. December 3, 20 15 Face book post;

                                            9
12. Transcript of voicemail left by Steven Kelly Lambert on The Roberts Company
    phone;
13. Transcript of recorded statement of Steven Kelly Lambert taken December 22, 2015;
14. Transcript of the deposition ofDr. Justin Hall;
15. Accident reports and typed notes of Carl Clark, safety manager of The Roberts
    Company;
16. Unsigned Agreement Between Employer/Employee Choice of Physician form (C-42);
17.Facebookposts betweenDecember26, 2015, and January 1, 2016;
18. November 2015 and December 2015 calendars; and
19. Email from Tammy Whitehurst to Ambre Wachter containing Steven Kelly Lambert's
    attendance record from November 11, 2015, to December 8, 2015.

Technical record: 13

1.   Petition for Benefit Determination, filed February 12, 2016;
2.   Dispute Certification Notice, filed April1, 2016;
3.   Request for Expedited Hearing, filed July 21, 2016;
4.   Affidavit of Steven Kelly Lambert, filed August 2, 2016.




13
    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.




                                                      10
                            CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 4th day of
October, 2016.


Name                      Certified    Via         Via    Service sent to:
                           Mail        Fax        Email
Matthew Coleman,                                   X      MColeman@loganthomQson la
Attorney                                                  w.com
Charles Poss, Attorney                             X      Charlie.poss@leitnerfirm.com




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




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