The opinion
COURT OF WORKERS' COMPENSATION CLAIMS
AT KINGSPORT
Bobby James ) Docket No.: 2015-02-0024
Employee, )
v. ) State File No.: 76452-2014
)
Landair Transport, Inc. ) Date of Injury: August 20, 2014
Employer, )
And ) Judge: Brian K. Addington
)
Starnet Ins. Co./Key Risk )
Insurance Carrier/ )
Administrator. )
EXPEDITED HEARING ORDER DENYING REQUESTED RELIEF
(RECORD REVIEW ONLY)
THIS CAUSE came before the undersigned Workers' Compensation Judge on July
15, 2015, upon the Request for Expedited Hearing (REH) filed by Bobby James (Mr.
James), the Employee, on June 23, 2015, pursuant to Tennessee Code Annotated section
50-6-239 (2014) to determine if the Employer, Landair Transport, Inc. (Landair), is
obligated to provide medical and temporary disability benefits. Considering the positions
of the parties, the applicable law, and all of the evidence submitted, the Court concludes
that Mr. James is not entitled to the requested medical and temporary disability benefits.
ANALYSIS
Issues
1. Whether Mr. James sustained an injury that arose primarily out of and in the
course and scope of employment with Landair.
2. Whether Landair is obligated to provide a panel of physicians upon notice from
Mr. James of an alleged injury.
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3. Whether Landair is obligated to pay for any past medical expenses and/or mileage
expenses.
4. Whether Mr. James is entitled to additional medical care as recommended by a
physician.
5. Whether Mr. James is entitled to any past or future temporary total disability
benefits, and if so, in what amount.
6. Whether Mr. James is entitled to any past or future temporary partial disability
benefits, and if so, in what amount.
Evidence Submitted
The Court admitted into evidence the exhibits below:
1. First Report of Injury;
2. Police Report four;
3. Medical Records: UNC Health Care (UNC) submitted by Mr. James;
4. Medical Bills from various providers;
5. Medical Records: Tacoma/Industricare (Tacoma);
6. Medical Records: UNC submitted by Landair;
7. Medical Records: WakeMed Health and Hospitals (WakeMed);
8. Medical Records: UNC-Physical Medicine and Rehab (UNC-PR) and,
9. Medical Records: Raleigh Orthopedic Therapy Services (ROTS).
The Court designated the following as the technical record:
• Petition for Benefit Determination (PBD), February 6, 2015
• Dispute Certification Notice (DCN), April23, 2015
• REH, June 23,2015
• Landair's Response to the REH, June 30, 2015.
The Court did not consider attachments to the above filings unless admitted into
evidence during the Expedited Hearing. The Court considered factual statements in the
above filings or any attachments thereto as allegations unless established by the evidence.
History of Claim
Mr. James is a forty-two-year-old resident of Raleigh, North Carolina. He drove
trucks for Landair. Mr. James alleged he suffered an injury on August 20, 2014, as a
result of an automobile accident while transporting a load for Landair. The police report
indicated Mr. James did not suffer injury. (Ex. 4, p. 2). Mr. James, however, reported to
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Landair that he blacked out. (Ex. 1).
Mr. James sought treatment at Tacoma. It is unclear from the record whether Mr.
James chose Tacoma from a panel of physicians; however, Landair authorized the
treatment. Mr. James told PA-C Dennis Volek that he hit his head on the steering wheel
and suffered minimal neck pain. (Ex. 5, p. 1). Diagnostic testing revealed no acute
injury but did indicate degenerative and congenital conditions. (ld., pp. 8-9). Dr. Remy
Sagadraca, the supervising physician, diagnosed cervical and back sprains and prescribed
pain medication. (ld., p. 25). Tacoma scheduled a follow-up appointment and therapy
with Dr. William Filer at UNC-PR in Raleigh, North Carolina. (ld., p. 34). Tacoma gave
Ms. James conflicting instructions regarding his work status. One document released him
to work with no restrictions and the other document recommended that he not work until
his appointment with Dr. Filer on September 30, 2014. (ld., pp.26, 34). 1
When Mr. James attempted a return to work, Landair became concerned about his
behavior and requested a medical clearance. (Ex. 7, p. 1).
On September 3, 2014, Mr. James went to the emergency room at UNC with
complaints of headache, photophobia, memory problems, and generalized body aches for
a week's duration. (Ex. 6, p. 1). CT results were negative. (ld., p. 11). The discharge
diagnosis was migraine. (!d., p. 12). Mr. James underwent an MRI of the head at UNC
on September 16, 2014. The MRI indicated no abnormalities. (ld., p. 17).
Mr. James underwent a neurological consult with Dr. John Mann on September
17, 2014. Mr. James complained of memory loss and head, neck, and back pain. (!d., p.
29). Dr. Mann diagnosed confusion, altered mental status, and probable post-traumatic
brain injury. (!d., p. 33). UNC recommended that Mr. James see Dr. Filer. (!d., p. 82).
On September 25, 2014, Mr. James appeared at the emergency room at WakeMed
and discussed a history of dizziness, falling, blurred vision, and headache prior to the
incident in question, and headache, nausea, vomiting, and confusion following the
accident. (Ex. 7, p. 1). Mr. James had a normal CT scan and EKG. Dr. Cecilia McKay's
impression was "[a]ltered mentation after trauma from motor vehicle accident on
08/20/2014, history of recurrent head trauma and past loss of conscious and headaches."
(!d., p. 2). Dr. McKay recommended a neurological consult and EEG. !d. Dr. David
Konanc performed the EEG that day with normal results. (ld., p. 11). Dr. James Ferrell's
physician assistant, Thomas Binford, performed Mr. James' neurologic evaluation. He
believed Mr. James had suffered a concussion during the incident in question and
suffered an altered mental state with headache. (ld., p. 6).
Mr. James met with Dr. Filer on September 30, 2014, with a complaint of a
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It appears to the Court that p. 34 of Exhibit 5 may belong with Exhibit 6, the records from UNC.
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headache, memory loss, and sleep impairment. (Ex. 8, p. 4). Mr. James underwent
diagnostic and neuropsychological testing over the following months. Dr. Filer took Mr.
James offwork from November 19, 2014, until he completed testing. (Ex. 3, p. 7). Dr.
Filer determined on January 20, 2015, that Mr. James suffered mood disorder that was
unlikely to be due to on-going, post-concussive disorder. (Ex. 8, p. 28). On February 10,
2015, Dr. Filler last met with Mr. James. He noted Mr. James suffered a recent syncope
incident at the facility but opined that the August 20, 2014 incident did not cause the
syncopal event. (!d., p. 91). Dr. Filler made a referral to a pain clinic. He determined
Mr. James did not have any work restrictions due to the event of August 20, 2014. !d.
Mr. James filed a PBD on February 6, 2015 , seeking medical/temporary disability
benefits. The parties did not resolve the disputed issues through mediation and the
Mediation Specialist filed the DCN on April 23 , 2015. Mr. James requested the record
review on June 23, 2015.
Mr. James' Contentions
Mr. James asserts that he suffered an injury on August 20, 2014. He avers that he
is entitled to ongoing medical treatment. He contends that authorized treating physicians
had restricted him from all work activities ince Augu t 20, 2014. He requests temporary
total disability benefits since he has been unable tow rk. 2
Landair's Contentions
Landair acknowledges that Mr. James was involved in an automobile accident on
August 20, 2014, but asserts that he did not miss any work due to the accident. Landair
contends that the August 20, 2014 event did not cause Mr. James' alleged mental injury.
Landair avers that Mr. James' non-work related psychological issues caused his absences
from work; therefore, Mr. James is not entitled to temporary disability benefits.
Findings of Fact and Conclusions of Law
Standard Applied
The Workers' Compensation Law shall not be remedially or liberally construed in
favor of either party but shall be construed fairly, impartially and in accordance with
basic principles of statutory construction favoring neither the employee nor employer.
Tenn. Code Ann. § 50-6-116 (20 14 ). An employee need not prove every element of his
or her claim by a preponderance of the evidence in order to obtain relief at an expedited
hearing. McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk.
Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).
2 The Court took Mr. James' contentions from the PBD. Mr. James did not file a pre-hearing statement or brief.
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At an expedited hearing, an employee has the burden to 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. /d.
Factual Findings
Mr. James was involved in a motor vehicle accident (MVA) on August 20, 2014,
while driving for Landair. He suffered no injury in the accident, but Mr. James later had
symptoms of back pain neck pain and memory loss he associated with the MVA. Landair
initially paid for Mr. James' treatment at Tacoma and for physical therapy. Mr. James
had pre-existing memory loss, head trauma, and associated symptoms related to head
trauma. Mr. James did not miss any work due to the August 20, 2014 injury.
Application of Law to Facts
The Workers' Compensation Law defines "injury" and "personal injury" to mean
an injury by accident "arising primarily out of and in the course and scope of
employment[.]" Tenn. Code Ann. § 50-6-102(13)(A) (2014). An injury is "accidental"
only if the injury is 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. !d. 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 cause[.]" Tenn. Code Ann.§ 50-6-102(13)(B) (2014).
At various times, Mr. James changed his story regarding what happened to him on
August 20, 2014. He told the officer who investigated the MVA that he was not injured.
He told the providers at Tacoma that he hit his head on the steering wheel. He told
Landair that he blacked out. Mr. James has not presented sufficient evidence to prove he
suffered a physical injury at work. All diagnostic testing has been normal. Tacoma
records do not indicate any injury (bruising, cuts, etc.) to Mr. James' head from hitting it
on a steering wheel. Mr. James presented to medical providers with only subjective
complaints.
Concerning his alleged mental injury, Mr. James has a history of pre-existing head
trauma and mental conditions. An employee may suffer a mental injury as a result of a
compensable physical injury or an identifiable work-related event resulting in sudden or
unusual stimulus. Tenn. Code Ann. § 50-6-102(16)(2014). Although Mr. James
continues to complain of symptoms, Dr. Filer opined he suffers from a mood disorder not
related to the MVA.
Mr. James has not come forward with sufficient evidence from which this Court
concludes that he is likely to prevail at a hearing on the merits.
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IT IS, THEREFORE, ORDERED as follows:
1. Mr. James' claim against Landair and its workers' compensation carrier for the
requested medical and temporary disability benefits is denied. At this time, Mr.
James has not come forward with sufficient evidence from which this Court
concludes that he is likely to prevail at a hearing on the merits.
2. This matter is set for Initial Hearing on September 14,2015, at 2:00p.m.
ENTERED this the 27th day of July 2015.
Judge~K.A~
Court of Workers' Compensation Claims
Initial Hearing:
An Initial Hearing has been set with Judge Addington, Court of Workers'
Compensation Claims. You must call 865-594-6538 or toll free at 855-543-5044 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. 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.
4. The appealing party is responsible for payment of a filing fee i_n tbe amount of
$75.00. Within ten calendar days after the filing of a notice of appeal, payment
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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 statement of the
evidence within ten calendar days of the filing of the Expedited Hearing Notice of
Appeal. The Judge must approve the statement of the evidence before the Court
Clerk may submit the record to the Clerk of the Appeals Board.
6. If the appellant elects to file a position statement in support of the interlocutory
appeal, the appealing party shall file such position statement with the Court Clerk
within three business days of the filing of the Expedited Hearing Notice of Appeal,
specifying the issues presented for review and including any argument in support
thereof. If the appellee elects to file a response in opposition to the interlocutory
appeal, appellee shall do so within three business days of the filing of the
appellant's position statement.
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 27th day
of July, 2015.
Name Certified Via Via Service sent to:
Mail Fax Email
V. Hood-Schneider, Esq. X vhslaw 1@gmail.com
Mike Jones, Esq. X mjones@wimberlylawson.com
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Penny Shrum, Clerk of Court
Court of Workers' Compensation Claims
WC.CourtClerk@tn.gov
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