             IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                            AT MURFREESBORO

ANTHONY LEAS,                                                Docket No.: 2015-05-0415
          Employee,
v.                                                           State File No.: 57188-2015
OPUS INSPECTION, INC.,
          Employer,                                          Judge Dale Tipps
and
LIBERTY MUT. FIRE INS. CO.,
          Carrier.



                               EXPEDITED HEARING ORDER
                              DENYING REQUESTED BENEFITS
                                  (REVIEW OF THE FILE)


        This matter came before the undersigned workers’ compensation judge on the
Request for Expedited Hearing filed by the employee, Anthony Leas, pursuant to
Tennessee Code Annotated section 50-6-239 (2015). The present focus of this case is
whether Mr. Leas is entitled to medical and temporary disability benefits. The central
legal issue is whether the evidence is sufficient for the Court to determine that Mr. Leas
is likely to establish at a hearing on the merits he suffered an injury arising primarily out
of and in the course and scope of his employment. For the reasons set forth below, the
Court finds Mr. Leas is not entitled to the requested medical and temporary disability
benefits at this time.1

                                             History of Claim

      Mr. Leas is a twenty-six-year-old resident of Rutherford County, Tennessee. He
worked as an inspector for the employer, Opus Inspection, Inc.

      Records from Stonecrest Medical Center show that Mr. Leas went to the
emergency department on July 21, 2015, complaining of pain in his left ankle for two
1
  A complete listing of the technical record and exhibits considered by the Court is attached to this Order as an
appendix.

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days. The emergency provider report indicates the mechanism of injury was “unknown.”
After examining Mr. Leas and reviewing his x-rays, Dr. Robert Young diagnosed ankle
sprain, fitted him with a splint, and discharged him with a Tramadol prescription. (Ex.
9.)

        The next day, July 22, 2015, Mr. Leas filled out an Employee Report of
Accident/Injury. In his report, Mr. Leas claimed he injured his left knee on July 15,
2015, while stepping out of his car. Over the next three days, his knee improved, but his
left foot and ankle began to hurt. (Ex. 8.) Opus provided a panel of physicians, and Mr.
Leas selected Dr. Joseph Wieck as his authorized treating physician. (Ex. 6.)

        Dr. Wieck saw Mr. Leas on August 27, 2015. He noted Mr. Leas complained of
“a three-month history of left foot pain. This began without specific injury. He was
getting out of a car on 15 May and felt pain in his knee and ankle initially. He now
complains of pain in his foot. The pain is medial in his instep.” Dr. Wieck also noted
Mr. Leas “was evaluated 3 years ago with a normal MRI of his left foot for foot pain.”
He diagnosed a foot sprain, but noted Mr. Leas “is convinced that he has torn something
in his foot.” He ordered an MRI and indicated he would follow up with Mr. Leas after
the MRI was complete. (Ex. 3.)

       A claims specialist from Opus’ workers’ compensation carrier sent Dr. Wieck a
questionnaire asking “if Mr. Leas’ left foot sprain is 50% or greater caused by him
getting out a car and feeling pain in his knee 07/15/2015?” On September 16, 2015, Dr.
Wieck checked the “No” response. (Ex. 7.)

        Mr. Leas filed a Petition for Benefit Determination seeking temporary disability
and medical benefits. The parties did not resolve the disputed issues through mediation,
and the Mediating Specialist filed a Dispute Certification Notice. Mr. Leas filed a
Request for Expedited Hearing, and asked the Court to issue a ruling based on a review
of the file without an evidentiary hearing.

       In his affidavit, Mr. Leas alleged he sprained his right ankle and foot while getting
out of a vehicle. He claimed he has not worked since July 21, 2015, because Opus could
not provide light duty that would accommodate his need to use crutches.

       Opus contended in its position statement that Mr. Leas is not entitled to any
additional benefits. It relies on Dr. Wieck’s opinion that Mr. Leas’ foot sprain is not
causally related to the alleged July 15, 2015 injury.




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                       Findings of Fact and Conclusions of Law

       In general, an employee bears the burden of proof on all prima facie elements of
his or her workers’ compensation claim. Tenn. Code Ann. § 50-6-239(c)(6) (2015); see
also 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). At an expedited
hearing, an employee need not prove every element of his or her claim by a
preponderance of the evidence, but must come forward with sufficient evidence from
which the trial court can determine that the employee is likely to prevail at a hearing on
the merits consistent with Tennessee Code Annotated section 50-6-239(d)(1) (2014).
McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *9 (Tenn. Workers’ Comp. App. Bd. Mar. 27, 2015).

       To be compensable under Workers’ Compensation Law, an injury must arise
primarily out of and occur in the course and scope of the employment. Tenn. Code Ann.
§ 50-6-102(13) (2015). The term “injury” is defined as “an injury by accident . . . or
cumulative trauma condition . . . arising primarily out of and in the course and scope of
employment, that causes death, disablement or the need for medical treatment of the
employee.” Id. For an injury to be accidental, it must be “caused by a specific incident,
or set of incidents, arising primarily out of and in the course and scope of employment,
and is identifiable by time and place of occurrence.” Tenn. Code Ann. § 50-6-
102(14)(A) (2015). “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) (2015).

      Mr. Leas selected Dr. Wieck from a panel of physicians provided by Opus.
Therefore, Dr. Wieck’s causation opinion is presumed to be correct, pursuant to
Tennessee Code Annotated section 50-6-102(14)(E) (2015). That opinion is that Mr.
Leas’ work did not contribute more than fifty percent to his diagnosed foot sprain.

       Mr. Leas disagrees with Dr. Wieck’s causation opinion, arguing Dr. Wieck based
his opinion on a three-year-old MRI report. He also contends Dr. Wieck “did not really
put in any effort to see what has happened to me.” These contentions are insufficient to
overcome the presumption of correctness because Mr. Leas presented no expert medical
evidence to support them. The Court cannot substitute its lay opinion, or that of Mr.
Leas, for Dr. Wieck’s expert conclusion. Absent a contrary medical opinion, Mr. Leas
cannot rebut the presumption of correctness afforded Dr. Wieck’s opinion by the
Workers’ Compensation Law. Scott v. Integrity Staffing Solutions, No. 2015-01-0055,
2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *8 (Tenn. Workers’ Comp. App. Bd. Aug.
8, 2015).

      Therefore, as a matter of law, Mr. Leas has not come forward with sufficient

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evidence from which this Court may conclude he is likely to prevail at a hearing on the
merits. The Court must deny his requests for medical and temporary disability benefits at
this time.

IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Leas’ claim against Opus and its workers’ compensation carrier for the
      requested temporary disability and medical benefits is denied.

   2. This matter is set for an Initial (Scheduling) Hearing on March 17, 2016, at 1:00
      p.m.

      ENTERED this the 11th day of February, 2016.


                                  _____________________________________
                                  Judge Dale Tipps
                                  Court of Workers’ Compensation Claims

Initial (Scheduling) Hearing:

      An Initial (Scheduling) Hearing has been set with Judge Dale Tipps, Court of
Workers’ Compensation Claims. You must call 615-741-2112 or toll free at 855-
874-0473 to participate.

       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 Central Time (CT).


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.

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


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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
   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.




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                                              APPENDIX

Exhibits:
      1. Affidavit of Anthony Leas
      2. First Report of Injury
      3. August 27, 2015 Progress note of Dr. Joseph Wieck
      4. Form C-27 Notice of Controversy
      5. Form C-23 Notice of Denial
      6. Form C-42 Physician Panel
      7. September 16, 2015 causation response of Dr. Wieck
      8. Employee Accident Report
      9. C-41 Wage Statement
      10. July 21, 2015 Emergency Provider Report from Stonecrest Medical Center

Technical record:2
      1. Petition for Benefit Determination
      2. Dispute Certification Notice
      3. Request for Expedited Hearing




2
   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
Denying Requested Benefits was sent to the following recipients by the following
methods of service on this the 11th day of February, 2016.


         Name           Certified   Via        Via    Service sent to:
                         Mail       Fax       Email
Anthony Leas                                    X     a.leas@yahoo.com
Shaterra Reed, Esq.                             X     Shaterra.Reed@LibertyMutual.
                                                      com




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




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