Opinion

COX, BRIAN v. LOWE’S INVESTMENT CORPORATION

  • 2026 TN WC 51
Court
Tennessee Court of Workers' Compensation Claims
Filed
Apr 21, 2026
Status
Published
On the bench
Lowe
Cited by
0 cases
Authority
More cited than 40.4%

The opinion

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT KNOXVILLE

BRIAN COX, Docket No. 2025-30-3946

Employee,

v. State File No. 26796-2021

LOWE’S INVESTMENT

CORPORATION, Judge Lisa A. Lowe

Employer.

EXPEDITED HEARING ORDER DENYING BENEFITS

In this accepted claim, Mr. Cox seeks a panel of psychiatrists for a mental

injury, back surgery, and temporary disability benefits. For the reasons below, the

Court holds Mr. Cox did not prove that he is likely to prevail on these benefits at a

hearing on the merits.

Claim History

On March 18, 2021, Mr. Cox was loading 100 bags of concrete. While lifting,

he felt a pop followed by back pain. Lowe’s authorized treatment with several

neurosurgeons, as the first two retired.

Only the second neurosurgeon recommended surgery to treat Mr. Cox’s back

and left leg pain. But Mr. Cox declined surgery. Later, when he decided to undergo

surgery, that neurosurgeon had retired and Dr. Jody Helms was treating Mr. Cox.

Dr. Helms thought surgery would be aggressive and would not guarantee any

significant improvement in Mr. Cox’s back or leg pain. Instead, he recommended

continued conservative management.

During treatment with Dr. Helms, Mr. Cox saw his primary care provider, Dr.

Douglas Davis, who observed Mr. Cox’s “increasing sadness from his inability to

1

work and [that] he should see a psychiatrist.” Dr. Helms referenced Dr. Davis’s

psychiatrist referral and Mr. Cox’s depression about being fired. However, he did

not adopt the referral or relate it to the work injury.

On March 26, 2026, Dr. Helms assigned restrictions of no lifting more than

15 pounds, repetitive bending, stooping, or squatting, and the ability to change

positions on an as-needed basis.

After an evaluation, Dr. C.M. Salekin recommended back surgery and

psychiatric care for the work injury.

Mr. Cox testified that he could not perform his job at Lowe’s. He applied for

several positions but has not found employment within his restrictions. He also

testified that he suffers daily from back pain and depression.

Findings of Fact and Conclusions of Law

At an expedited hearing, Mr. Cox must show that he is likely to prevail at a

hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(1) (2025)1; McCord v.

Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9

(Mar. 27, 2015).

Mr. Cox requested a panel of psychiatrists. However, psychological or

psychiatric services “shall be limited to those ordered” by the authorized treating

physician. Id. § 50-6-204(h).

Here, Mr. Cox’s primary care physician referred him to psychiatric care.

Although Dr. Helms mentioned that referral, he did not adopt the referral or relate it

to the work injury. Similarly, while Dr. Salekin recommended a psychiatric

evaluation, he is not the authorized treating physician either.

Regardless, the circumstances of Mr. Cox’s mental injury do not meet the

statutory definition of a mental injury, which is defined in section 50-6-102(15) as

follows:

[A] loss of mental faculties or a mental or behavioral disorder, arising

1

Mr. Cox argued the 2021 statutes should apply based on his date of injury. However, the 2021

statutes relating to mental injuries, § 50-6-102(17) and § 50-6-204(h), are identical to the 2025

statutes about mental injuries, § 50-6-102(15) and § 50-6-204(h).

2

primarily out of a compensable physical injury or an identifiable work-related

event resulting in a sudden or unusual stimulus, and shall not include a

psychological or psychiatric response due to the loss of employment or

employment opportunities.” (Emphasis added).

Mr. Cox told Dr. Davis that he was depressed because he could not work, and

Dr. Helms referenced Mr. Cox’s depression about being fired because he could not

stand for long periods. Apparently, the root of Mr. Cox’s depression is his inability

to work, which is not covered under the statute.

Given that his authorized physician has not made a psychiatric referral and

the circumstances do not meet the statutory definition of a mental injury, Mr. Cox is

not likely to prevail at trial on a panel of psychiatrists.

Regarding the requested surgery, the authorized treating physician has not

ordered nor recommended surgery at this time. However, Dr. Salekin thinks Mr.

Cox would benefit from the surgery.

When medical testimony conflicts, “it is within the discretion of the trial judge

to conclude that the opinion of certain experts should be accepted over that of other

experts and that [the accepted opinion] contains the more probable explanation.”

Goodman v. Schwarz Paper Co., 2018 Tenn. LEXIS 8, at *8 (Tenn. Workers’ Comp.

Panel Jan. 18, 2018). Additionally, it seems reasonable that the physician having

greater contact with the employee would have the advantage and opportunity to

provide a more in-depth opinion, if not a more accurate one. Orman v. Williams

Sonoma, Inc., 803 S.W.2d 672, 677 (Tenn. 1991).

Here, Dr. Helms is the authorized treating neurosurgeon and has treated Mr.

Cox. Dr. Salekin did not; he was hired to perform an evaluation. The Court credits

Dr. Helms’s records over Dr. Salekin’s report. So, Mr. Cox is not likely to prevail

at trial on entitlement to back surgery.

Dr. Helms assigned Mr. Cox restrictions, so he might be entitled to temporary

partial disability benefits. To obtain those benefits, Mr. Cox must show that his

treating physician returned him to work with restrictions that Lowe’s either could

not or would not accommodate. Jones v. Crencor Leasing and Sales, 2015 TN Wrk.

Comp. App. Bd. LEXIS 48, at *7, 8 (Dec. 11, 2015). Mr. Cox testified that he could

not perform his regular job duties at Lowe’s. However, he did not testify that he

informed Lowe’s of his restrictions to see if they could or would offer

accommodated duty. Thus, Mr. Cox is not likely to prevail on temporary disability

3

benefits at this time.

IT IS, THEREFORE, ORDERED as follows:

1. The Court denies Mr. Cox’s request for a panel of psychiatrists, back surgery,

and temporary benefits at this time.

2. The Court sets this matter for a Status/Scheduling Hearing on August 18,

2026, at 10:00 a.m. Eastern Time. The parties must call 855-383-0003 to

participate.

ENTERED April 21, 2026.

____________________________________

JUDGE LISA A. LOWE

Court of Workers’ Compensation Claims

APPENDIX

Exhibits:

1. Affidavit of Brian Cox

2. Panels of Physicians

3. Form C-32 of Dr. C.M. Salekin

4. Medical Records of Abercrombie Radiology

5. Medical Records of Blount Memorial Hospital

6. Medical Records of Campbell Clinic

7. Medical Records of Dr. Douglas Davis

8. Medical Records of Dr. Paul Johnson

4

CERTIFICATE OF SERVICE

I certify that a copy of this order was sent as shown on April 21, 2026.

Name Mail Email Service sent to:

David H. Dunaway, X dhdunaway@aol.com

Employee’s Attorney

Allison P. King, X apking@mijs.com

Employer’s Attorney

____________________________________

PENNY SHRUM, COURT CLERK

wc.courtclerk@tn.gov

5

Right to Appeal:

If you disagree with the Court’s Order, you may appeal to the Workers’ Compensation

Appeals Board. To do so, you must:

1. Complete the enclosed form entitled “Notice of Appeal” and file it with the Clerk of the

Court of Workers’ Compensation Claims before the expiration of the deadline.

¾ If the order being appealed is “expedited” (also called “interlocutory”), or if the

order does not dispose of the case in its entirety, the notice of appeal must be filed

within seven (7) business days of the date the order was filed.

¾ If the order being appealed is a “Compensation Order,” or if it resolves all issues

in the case, the notice of appeal must be filed within thirty (30) calendar days of

the date the Compensation Order was filed.

When filing the Notice of Appeal, you must serve a copy on the opposing party (or attorney,

if represented).

2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten calendar

days after filing the Notice of Appeal. Payments can be made in-person at any Bureau office

or by U.S. mail, hand-delivery, or other delivery service. In the alternative, you may file an

Affidavit of Indigency (form available on the Bureau’s website or any Bureau office)

seeking a waiver of the filing fee. You must file the fully-completed Affidavit of Indigency

within ten calendar days of filing the Notice of Appeal. Failure to timely pay the filing

fee or file the Affidavit of Indigency will result in dismissal of your appeal.

3. You are responsible for ensuring a complete record is presented on appeal. If no court

reporter was present at the hearing, you may request from the Court Clerk the audio

recording of the hearing for a $25.00 fee. If you choose to submit a transcript as part of your

appeal, which the Appeals Board has emphasized is important for a meaningful review of

the case, a licensed court reporter must prepare the transcript, and you must file it with the

Court Clerk. The Court Clerk will prepare the record for submission to the Appeals Board,

and you will receive notice once it has been submitted. For deadlines related to the filing of

transcripts, statements of the evidence, and briefs on appeal, see the applicable rules on the

Bureau’s website at https://www.tn.gov/wcappealsboard. (Click the “Read Rules” button.)

4. After the Workers’ Compensation Judge approves the record and the Court Clerk transmits

it to the Appeals Board, a docketing notice will be sent to the parties.

If neither party timely files an appeal with the Appeals Board, the Court Order

becomes enforceable. See Tenn. Code Ann. § 50-6-239(d)(3) (expedited/interlocutory

orders) and Tenn. Code Ann. § 50-6-239(c)(7) (compensation orders).

For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.

NOTICE OF APPEAL

Tennessee Bureau of Workers’ Compensation

www.tn.gov/workforce/injuries-at-work/

wc.courtclerk@tn.gov | 1-800-332-2667

Docket No.: ________________________

State File No.: ______________________

Date of Injury: _____________________

___________________________________________________________________________

Employee

v.

___________________________________________________________________________

Employer

Notice is given that ____________________________________________________________________

[List name(s) of all appealing party(ies). Use separate sheet if necessary.]

appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the

Workers’ Compensation Appeals Board;ĐŚĞĐŬŽŶĞŽƌŵŽƌĞĂƉƉůŝĐĂďůĞďŽdžĞƐĂŶĚŝŶĐůƵĚĞƚŚĞĚĂƚĞĨŝůĞͲ

ƐƚĂŵƉĞĚŽŶƚŚĞĨŝƌƐƚƉĂŐĞŽĨƚŚĞŽƌĚĞƌ;ƐͿďĞŝŶŐĂƉƉĞĂůĞĚͿ͗

ප Expedited Hearing Order filed on _______________ ප Motion Order filed on ___________________

ප Compensation Order filed on__________________ ප Other Order filed on_____________________

issued by Judge _________________________________________________________________________.

Statement of the Issues on Appeal

Provide a short and plain statement of the issues on appeal or basis for relief on appeal:

________________________________________________________________________________________

________________________________________________________________________________________

________________________________________________________________________________________

________________________________________________________________________________________

Parties

Appellant(s) (Requesting Party): _________________________________________ ‫܆‬Employer ‫܆‬Employee

Address: ________________________________________________________ Phone: ___________________

Email: __________________________________________________________

Attorney’s Name: ______________________________________________ BPR#: _______________________

Attorney’s Email: ______________________________________________ Phone: _______________________

Attorney’s Address: _________________________________________________________________________

* Attach an additional sheet for each additional Appellant *

LB-1099 rev. 01/20 Page 1 of 2 RDA 11082

Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________

Appellee(s) (Opposing Party): ___________________________________________ ‫܆‬Employer ‫܆‬Employee

Appellee’s Address: ______________________________________________ Phone: ____________________

Email: _________________________________________________________

Attorney’s Name: _____________________________________________ BPR#: ________________________

Attorney’s Email: _____________________________________________ Phone: _______________________

Attorney’s Address: _________________________________________________________________________

* Attach an additional sheet for each additional Appellee *

CERTIFICATE OF SERVICE

I, _____________________________________________________________, certify that I have forwarded a

true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described

in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this

case on this the __________ day of ___________________________________, 20 ____.

______________________________________________

[Signature of appellant or attorney for appellant]

LB-1099 rev. 01/20 Page 2 of 2 RDA 11082

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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