                                                                                    FILED
                                                                                  Nov 22, 2019
                                                                                  01:52 PM(CT)
                                                                              TENNESSEE COURT OF
                                                                             WORKERS' COMPENSATION
                                                                                    CLAIMS




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

RONNIE CRAIG,                                 )       Docket No. 2017-08-0862
         Employee,                            )
                                              )       State File No. 25414-2017
                                              )
v.                                            )       Judge Allen Phillips
MEMPHIS LIGHT, GAS & WATER,                   )
         Self-Insured Employer.               )


                           COMPENSATION HEARING ORDER


       This case came before the Court for a Compensation Hearing on November 4,
20 19. The issue is whether Mr. Craig proved by a preponderance of the evidence that his
injury arose primarily out of his employment. For the reasons below, the Court holds he
did not and dismisses the case.

                                    History of Claim

       Mr. Craig claimed he injured his back in a fall on March 29, 2017. MLG&W did
not dispute the incident and provided him a panel of physicians. When he saw the initial
provider, Mr. Craig reported only the work injury and no other back problems. The
provider recommended an orthopedic evaluation, and MLG& W provided a panel of
orthopedic surgeons. Mr. Craig chose Dr. Gregory Wolf.

       At his first visit with Dr. Wolf, Mr. Craig reported the work injury but denied
"previous difficulties." Dr. Wolf also noted a "23-point system review" mentioned only
that Mr. Craig gave a history of hypertension. Based on the history, Dr. Wolf believed the
"mechanism of [the work incident] matched the reported complaints" and said Mr.
Craig's condition was "100% work related." He also restricted Mr. Craig from work.

      Later, while investigating the claim, MLG& W obtained records from Dr. Phillip
Northcross, Mr. Craig's primary care physician. Those records indicated Mr. Craig saw
Dr. Northcross for back pain on several occasions, beginning in 2016 and continuing

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until March 28, 2017, the day before the work incident. MLG& W presented these records
to Dr. Wolf and also told him that Mr. Craig denied any previous back problems when he
gave his recorded statement. After learning that information, Dr. Wolf changed his
opinion that Mr. Craig's condition was 100% work-related, instead stating that Ms.
Craig's condition was "60% pre-existing and 40% work-related." Based on Dr. Wolfs
revised opinion, MLG&W terminated Mr. Craig's benefits.

       After the termination of benefits, Mr. Craig deposed Dr. Northcross on August 20,
2018. Dr. Northcross testified that Mr. Craig complained of"episodic" back pain in 2016,
leading to diagnoses of a lumbar strain. However, on March 23, 2017, Dr. Northcross
said he changed his diagnosis to "acute lumbar back pain with radiculopathy." He
continued that diagnosis the next week, on March 28, the day before the incident at
MLG&W. As to the cause of Mr. Craig's injury, Dr. Northcross testified that the
symptoms were "commiserate [sic] with" the work incident. However, to the extent that
the radiculopathy resulted from a herniated disc, Dr. Northcross said it was only "a
possibility" that the herniation existed before the incident, adding that it was "just
difficult to say" that it did. There was no record of Dr. Northcross restricting Mr. Craig
from work.

        On August 27, 2018, the Court conducted an Expedited Hearing. There, Mr. Craig
downplayed his previous back problems, claiming they caused only minor back pain,
unlike the pain he had after the incident. He asserted that he denied previous back
difficulties when Dr. Wolf asked because he thought difficulties meant "injuries" and he
had not suffered any. He further contended that he missed no work before the incident but
was unable to work after it. Finally, he argued that Dr. Wolf"would have to admit," if he
were deposed, that the symptoms he now suffers resulted from the work incident.

        For its part, MLG& W questioned Mr. Craig's credibility. Specifically, it argued
his purported belief that questions about previous "difficulties" meaning only "injuries"
was disingenuous. Further, it was only because of that inaccurate history that Dr. Wolf
said Mr. Craig's condition was "100%" to his work. Thus, MLG&W argued Dr. Wolfs
latter opinion was more accurate and was presumed correct because Mr. Craig chose Dr.
Wolf from a panel. See Tenn. Code Ann. 50-6-102(14)(E) (2019).

       After the Expedited Hearing, the Court held Mr. Craig did not offer sufficient
evidence that he would prevail at a hearing on the merits and denied his request for
benefits. Specifically, the Court found Dr. Wolfs second causation opinion was correct
because it was based on an accurate history. Further, Dr. Northcross offered no more than
a possibility of when Mr. Craig's anatomic condition occurred.

       After the Expedited Hearing, Mr. Craig deposed Dr. Wolf regarding his revised
causation opinion. Dr. Wolf provided the following pertinent testimony:


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          •   "[I]t appears Mr. Craig was pretty miserable with ... symptoms the week
              prior to his injury ... So in light of that, I think it's reasonable to say that
              this problem preexisted his injury."
          •   "I see your point in terms of me having taken him off of work and [Dr.
              Northcross] not having taken him off work ... but it's just hard to ignore
              the fact that ... he was literally being seen for this the day before and the
              week before for this same problem ... And that's kind of where I came up
              with my 60/40 number ... So I do think the fall contributed to this, but he
              obviously was having this pain [before]. .. So I'm just kind of sticking with
              my 60/40 determination."
          •    "I do feel the fall made his symptoms worse. But I also feel that, you
              know, he was having the symptoms prior to his injury."
          •   "[M]y opinion at the time and it still is the opinion that it's more of a 60/40
              thing ... and the pain radiating down his leg preexisted his injury, which to
              me indicates that he had these disc issues prior to his injury."

        At the Compensation Hearing, Mr. Craig offered the deposition of Dr. Wolf, and
the parties agreed to readmission of Dr. Northcross's deposition. As at the Expedited
Hearing, Mr. Craig testified the work incident worsened his condition, and he again
attributed his disability and need for medical treatment to it. MLG& W relied on Dr.
Wolfs opinion.

                          Findings of Fact and Conclusions of Law

                                      Standard applied

        Mr. Craig has the burden of proof on all essential elements of his claim. Scott v.
Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18,
20 15). At a compensation hearing, he must establish those elements by a preponderance
of the evidence. Tenn. Code Ann. § 50-6-239(c)(6).

                                          Analysis

       The essential element at issue is causation. To prevail on that issue, Mr. Craig
must establish his injury, or any aggravation of a pre-existing condition, arose primarily
out of his employment. Tenn. Code Ann. § 50-6-102(14). To do so, he must show his
employment "contributed more than fifty percent (50%) in causing the injury,
considering all causes." Tenn. Code Ann. § 50-6-102(14)(8). He must show that
contribution "to a reasonable degree of medical certainty," which means that "in the
opinion of the physician, it is more likely than not considering all causes, as opposed to
speculation or possibility.:!.! Tenn. Code Ann.§ 50-6-102(14)(C)::-&-(D).



                                                 3
       Dr. Wolf testified that the incident at MLG& W contributed only 40% in causing
Mr. Craig's injury. Despite repeated questioning by Mr. Craig, he did not recant that
opinion. Therefore, Mr. Craig cannot rely upon Dr. Wolf's opinion to establish causation.
Further, Dr. Northcross offered no more than a possibility as to when the anatomic
condition occurred. Therefore, the Court holds Mr. Craig did not establish by a
preponderance of the evidence that his injury arose primarily out of his employment and
dismisses the case.

        IT IS, THEREFORE, ORDERED as follows:

   1. This case is dismissed with prejudice to its refiling.

   2. The Court assesses the $150.00 filing fee to MLGW to be paid to the Court Clerk
      within five business days of this order becoming final under Tennessee
      Compilation Rules and Regulations 0800-02-21-.06, for which execution may
      issue if necessary.
   3. Absent an appeal, this order shall become final thirty days after issuance.
   4. MLGW shall file a Statistical Data Form (SD-2) with the Court Clerk within five
      business days of the date this order becomes final.

ENTERED November 22,2019.




                                                               Compensation Claims




                                       APPENDIX

Exhibits:

   1.   Deposition of Dr. Gregory Wolf
   2.   Deposition of Dr. Philip Northcross
   3.   Wage Statement
   4.   Choice of Physician Form (Baptist Minor Medical)
   5.   Choice of Physician Form (Dr. Wolf)
   6.   CD of Mr. Craig's recorded statement


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       Technical record:

       1.   Post-Discovery Dispute Certification Notice
       2.   Scheduling Order
       3.   Employer's Exhibit List
       4.   Employer's Witness List
       5.   Employer's Pre-Hearing Statement
       6.   Order of Continuance and Setting Status Hearing
       7.   Order Resetting Compensation Hearing


                                CERTIFICATE OF SERVICE

     I certify that a copy of this Compensation Hearing Order was sent as indicated on
November 22, 2019.

Name                             Certified    First     Via     Service Sent To:
                                  Mail        Class    Email
                                              Mail
Christopher L. Taylor,                                   X     ctaylor@taylortoon.com
Attorney for Employee
Sean Antone Hunt and                                     X     sean@tbehuntfirm.com
Salwa Adnan Bahhur,                                            salwa@thehuntfirm.com
Attorneys for Employer




                                        ~~~~ -
                                      ~hrum, Clerk of Court
                                      Court of Workers' Compensation Claims
                                      WC.CourtClerk@tn.gov




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