FILED
February 14, 2017
TN COURT OF
WORKERS’

COMPENSATION
CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION Time 1:35 PM
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

 

AT MEMPHIS

GILES COLE, ) Docket No. 2016-08-0935
Employee, )

Vv. )

YRC, INC., ) State File No. 63710-2016
Employer, )

And )

OLD REPUBLIC INS. CO., ) Judge Allen Phillips
Insurance Carrier. )

 

EXPEDITED HEARING ORDER DENYING MEDICAL AND
TEMPORARY DISABILITY BENEFITS

 

This matter came before the undersigned Workers’ Compensation Judge on
January 20, 2017, upon the Request for Expedited Hearing filed by Giles Cole. Mr. Cole
requested additional medical and temporary disability benefits for alleged injuries
sustained in a truck accident on September 23, 2015. YRC contended he failed to
establish the need for further treatment related to the injury and failed to establish
entitlement to temporary disability benefits. Accordingly, the central legal issue is
whether Mr. Cole came forward with sufficient evidence at this interlocutory stage of the
case to show that he is likely to prevail at a hearing on the merits to entitlement of the
requested benefits. For the following reasons, the Court holds Mr. Cole did not.

History of Claim

Mr. Cole worked for YRC as a truck driver. On September 23, 2015, he was
involved in an accident when his truck rolled over. He claimed he sustained injuries to his
head, back, and legs.

Following the accident, YRC provided Mr. Cole medical benefits through Nova
Medical Center. Dr. Bonnie Randolph saw Mr. Cole at Nova on five separate occasions,
beginning the day after the accident, September 24 and ending on November 20. (Ex. | at
1-15.) Throughout her care of Mr. Cole, Dr. Randolph diagnosed a concussion with no
loss of consciousness and contusions of the face, scalp, and right hand. Jd. at 2.

During her treatment of Mr. Cole, Dr. Randolph recommended a CT scan of his
head that was normal. /d. at 5. However, an MRI of the head was interpreted as showing
sinusitis, cerebral atrophy, and small vessel disease of the brain. /d. at 14. Dr. Randolph
released Mr. Cole and placed him at maximum medical improvement. She instructed him
to “seek medical care with PCP for sinusitis as this is most likely the cause for his
persistent [symptoms].” Id.

As instructed, Mr. Cole sought care from his primary physician, Dr. Oliver Hardy,
in December 2015. (Ex. | at 46.) He reported the accident and that he struck his head. /d.
at 48. Dr. Hardy noted a laceration on Mr. Cole’s head and diagnosed, among other
things, “post-concussion syndrome.” At this visit and at three more over the next two
months, Dr. Hardy also listed diagnoses of sleep apnea, obstructive sleep apnea
syndrome, and a left inguinal hernia. (See generally Ex. | at 46-62.)

Later, when he added two additional diagnoses of insomnia and hyperlipidemia,
Dr. Hardy noted Mr. Cole needed, “special screening for other and unspecified endocrine,
nutritional, metabolic, and immunity disorders.” Jd. at 56. He noted, without defining the
responsible diagnosis, that Mr. Cole, “should not and cannot return to work with his
present symptoms and diagnosis. At present status, he is at risk to himself and others if he
would be allowed to return to work.” The Court finds no other references to work
restrictions in the limited records of Dr. Hardy placed into evidence. The same is true
regarding records from a sleep disorder clinic and other providers performing diagnostic
tests including an abdominal ultrasound, peripheral vascular exam, and x-rays of the
knees and hips. (See generally Ex. | at 69-81.)

Mr. Cole contended he sought care from Dr. Hardy on his own because YRC
ceased paying for Nova’s treatment by Dr. Randolph. He claimed out-of-pocket expenses
for Dr. Hardy’s treatment but offered no proof of the amount. Mr. Cole further contended
he has been unable to work since the accident and that Dr. Hardy still restricts him from
work. Mr. Cole conceded that not all of his problems were related to the accident.

YRC offered a statement from Nova that YRC, through Sedgwick, authorized
Nova to treat Mr. Cole. (Ex. 2.) The statement further noted that Nova never “turned
away” Mr. Cole and that YRC and Sedgwick never denied or revoked any recommended
treatment. Kevin English, the Sedgwick adjuster assigned to the case, testified, in accord
with the Nova statement, that he neither failed to authorize any treatment recommended
by Nova nor refused to pay for any treatment actually rendered.
Findings of Fact and Conclusions of Law
Standard applied

Because this case is in a posture of an Expedited Hearing, Mr. Cole need not prove
every element of his claim by a preponderance of the evidence in order to obtain relief.
McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6
(Mar. 27, 2015). Instead, he must come forward with sufficient evidence from which this
Court might determine he is likely to prevail at a hearing on the merits. /d.; Tenn. Code
Ann. § 50-6-239(d)(1) (2015). Though Mr. Cole has elected to represent himself, as is his
right, he still “must comply with the same standards to which parties with legal counsel
must adhere.” Thurmond v. Yates Servs., 2015 TN Wrk. Comp. App. Bd. LEXIS 34
(Sept. 8, 2015).

Medical benefits

To be compensable, Mr. Cole must show that his alleged injury arose primarily
out of and in the course and scope of his employment and that it was caused by an
incident, or specific set of incidents, identifiable by time and place of occurrence. Tenn.
Code Ann. § 50-6-102(14)-(14)(A) (2016). Further, he must show, “to a reasonable
degree of medical certainty that [his alleged work injury] contributed more than fifty
percent (50%) in causing the . . . disablement or need for medical treatment, considering
all causes.” Tenn. Code Ann. § 50-6-102(14)(C) (2016). “Shown to a reasonable degree
of medical certainty” means that, in the opinion of the treating physician, it is more likely
than not considering all causes as opposed to speculation or possibility. Tenn. Code Ann.
§ 50-6-102(14)(D) (2016).

Weighed against these requirements, the Court will first address the lay proof
regarding the alleged injury that consisted solely of Mr. Cole’s own testimony. Based
upon his uncontroverted testimony, the Court finds Mr. Cole came forward with
sufficient evidence demonstrating that he is likely to prevail at a hearing on the merits in
proving a specific event identifiable by time and place of occurrence. Specifically, he was
involved in an accident on September 23, 2015, while driving a truck for YRC.

However, upon careful review of the medical records, the Court finds Mr. Cole
failed to come forward with any proof demonstrating that he is likely to prevail at a
hearing on the merits that his alleged injuries caused his need for further medical
treatment. Thus, he cannot establish the second required element of his claim for benefits;
namely, that the incident contributed more than fifty percent to his need for further
medical treatment. The absence of any expert medical opinion on this point is fatal to his
claim at this hearing.
In so finding, the Court notes that Dr. Randolph released Mr. Cole on November
20, 2015, with no permanent impairment. Her only recommendation was for Mr. Cole to
follow up with his primary care provider because she found his complaints were not
related to the accident. Because she is the authorized physician, her opinion is presumed
correct. Tenn. Code Ann. § 50-6-102(14)(E) (2016).

The Court finds nothing in the other medical evidence that rebuts Dr. Randolph’s
opinion. To the contrary, the records of Dr. Hardy, Mr. Cole’s primary physician, record
histories of physical maladies unrelated to the subject accident. For example, Mr. Cole
suffers from a hernia, sleep apnea and perhaps “other and unspecified endocrine,
nutritional, metabolic, and immunity disorders.” (Ex. 1 at 56.) Though Dr. Hardy
recommended Mr. Cole remain off work, he did not at any time render an opinion that he
should be off work due to the work incident. Likewise, the other assorted medical records
do not address a causal relationship between the work incident and any of Mr. Cole’s
alleged conditions.

Even though the statute does not require an employee to establish all elements of
his claim by a preponderance of the evidence at an expedited hearing, 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[.]” Buchanan y. Carlex Glass Co., 2015 TN Wrk.
Comp. App. Bd. LEXIS 39, at *6 (Sep. 29, 2015). In this case, Mr. Cole has not met the
relaxed burden placed upon him by the expedited hearing standard. Accordingly, the
Court denies his request for further medical benefits.

However, the parties do not dispute that Dr. Randolph is the authorized treating
physician. Further, YRC introduced proof from Dr. Randolph’s clinic, Nova, that it never
“turned away [Mr. Cole] from care or treatment.” Likewise, Nova confirmed that YRC’s
administrator, Sedgwick, never “revoked” its authorization for Dr. Randolph to see Mr.
Cole. Jd. Mr. English confirmed these facts in his testimony. Therefore, Mr. Cole may
contact YRC and Sedgwick regarding a follow-up with Dr. Randolph for work-related
conditions.

Temporary disability benefits

Mr. Cole requested temporary total disability (TTD) from September 23, and
ongoing. Under Tennessee law, to establish entitlement to TTD, Mr. Cole must show (1)
he was totally disabled to work by a compensable injury; (2) a causal connection between
the injury and his inability to work; and, (3) the duration of that period of disability.
Jones v. Crencor Leasing and Sales, 2015 TN Wrk. Comp. App. Bd. LEXIS 48 (Dec. 11,
2015). Mr. Cole has not come forward with any medical evidence demonstrating that he
is likely to prevail at a hearing on the merits in establishing a causal connection between
his alleged injury and any inability to work. Thus, his claim for temporary disability
benefits is denied at this time.

IT IS, THEREFORE, ORDERED as follows:

1. The Court denies Mr. Cole’s claim for the requested benefits at this time. Mr. Cole
may contact YRC regarding a return to Dr. Randolph, the authorized physician.

2. This matter is set for a Scheduling (Status) Hearing on April 6, 2017, at 10:30
a.m. Central time. You must call toll-free at 731-422-5263 or toll-free 855-543-
5038 to participate in the Hearing. Failure to call in may result in a determination

of the issues without your further participation.

Allen Phillips, WN
Court of Workers’ Camo sation Claims

ENTERED this the 14" day of February, 2017.
|

  

APPENDIX

Exhibits:
1. Medical records of Mr. Cole (collectively):
Nova Medical Center—Dr. Bonnie Randolph
Cleveland Heart Lab
Dr. Oliver Hardy
Sleep Diagnostic Center
The Flinn Clinic
Baptist One Care
St. Francis Hospital

2. Correspondence from Nova Medical Center regarding no refusal to see Mr. Cole

Technical record:
1. Petition for Benefit Determination
Dispute Certification Notice
Request for Expedited Hearing
YRC’s Pre-Trial Brief
YRC’s Anticipated Stipulations, Witnesses and Exhibits
YRC’s Amended Exhibit to Anticipated Stipulations, Witnesses and Exhibits

She aa

5
CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of this Expedited Hearing Order was sent
to the following recipients by the following methods of service on this the 14" day of

February, 2017.

 

 

Name Certified | First Class | Via Service Sent To:

Mail Mail Email
Giles Cole, x x 1137 Lucy Kelly Rd.
Self-Represented Employee Brighton, TN 38011; and

2440 Solo Rd.
Covington, TN 38019

Stephen K. Heard, Esq., X | skheard@cclawtn.com
Attorney for Employer ealimon@cclawtn.com

favs pr o—

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

 

 

 

 

 

 

 

 

 
