Wilson, Bradley v. Dana Holding Corporation

FILED

July 27~20 1 7

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TENNESSEE BUREAU OF WORKERS' COMPENSATION

IN THE COURT OF WORKERS' COMPENSATION CLAIMS

AT JACKSON

BRADLEY WILSON, ) Docket No. 2015-07-0143

Employee, )

v. ) State File No. 50922-2015

)

DANA HOLDING CORPORATION, ) Judge Amber E. Luttrell

Employer. )

COMPENSATION HEARING ORDER

GRANTING EMPLOYER'S MOTION FOR INVOLUNTARY DISMISSAL

UNDER TENNESSEE RULE OF CIVIL PROCEDURE 41.02(2)

This matter came before the Court on June 22, 2017, for a Compensation Hearing.

The central legal issues are whether Bradley Wilson met his burden of establishing by

expert medical proof that his bilateral carpal tunnel injury arose primarily out of and in

the course and scope of his employment at Dana Holding Corporation (Dana) and

whether Mr. Wilson gave proper notice of a work injury.

For the following reasons, the Court holds that Mr. Wilson did not establish by a

preponderance of the evidence that he sustained an injury primarily arising out of and in

the course and scope of his employment with Dana. Accordingly, the Court grants Dana's

motion for involuntary dismissal under Rule 41.02(2).

History of Claim 1

Facts and Procedural History

Mr. Wilson worked for Dana as a press operator for three years. He worked on a

production line assembling oil coolers, where he performed the same tasks repetitively,

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In determining this claim, the Court takes judicial notice of testimony heard at the prior in-person Expedited

Hearing. See Hughes v. New Life Dev. Corp., 387 S.W.3d 453, 457 n.l (Tenn. 2012) ("we are permitted to take

judicial notice of the facts from earlier proceedings in the same action").

often for eleven hours per day. He testified he regularly used a rubber mallet to remove

pieces off a fixture during the assembly process and worked five to seven days almost

every week. Mr. Wilson alleged an injury to both wrists diagnosed as carpal tunnel

syndrome, which he associated with his repetitive, strenuous work and extensive weekly

work hours.

Mr. Wilson initially sought treatment from his family physician, Dr. Ken Berry,

for shoulder and hand complaints and took intermittent FMLA leave from work. Dr.

Berry ultimately referred Mr. Wilson to Dr. Blake Chandler, an orthopedist, for

evaluation of his complaints. Following a nerve conduction study, Dr. Chandler

diagnosed moderately severe bilateral carpal tunnel syndrome on May 13, 2015.

Prior to his carpal tunnel diagnosis, Dana terminated Mr. Wilson's employment on

May 1, 2015, for violation of its attendance policy. According to Dana, Mr. Wilson was

scheduled to return to work from FMLA leave on April 29, 2015; however, he did not

return and did not contact Dana for three consecutive days contrary to its attendance

policy.

Mr. Wilson notified Dana of his alleged work injury by letter dated June 4, 2015.

The letter advised Dana of his carpal tunnel diagnosis, requested a panel of physicians,

and requested to file a workers' compensation claim. Mr. Wilson also sent an email dated

June 5, 2015, to Ms. Andrea Gooch, Dana's Human Resources Manager, reporting an

injury and requesting a panel. Dana did not offer Mr. Wilson a panel. Instead, it denied

the claim, stating the basis as "late reporting and no report of an accident."

First Expedited Hearing

Mr. Wilson filed an expedited hearing request seeking medical and temporary

disability benefits. Following an evidentiary hearing, the Court held Mr. Wilson was

likely to prevail at a hearing on the merits regarding the issues of notice and medical

causation, ordered medical benefits, and denied temporary disability benefits. The Court

held Mr. Wilson gave adequate notice of his work injury and came forward with

sufficient medical proof, based on Dr. Berry's opinion from which the Court concluded

he was likely to prevail at a hearing on the merits.

Specifically, the Court determined Dr. Berry and Dr. Chandler provided the only

expert opinions addressing medical causation. Mr. Wilson selected neither doctor from a

panel. Thus, neither opinion carried a statutory presumption of correctness. Dana relied

on Dr. Chandler's opinion, who responded in a letter, "I cannot say with any medical

certainty that the bilateral carpal tunnel syndrome is more than 50% caused by his work."

Mr. Wilson relied on Dr. Berry's opinion, who stated in an affidavit, "It is my

professional opinion, considering Mr. Bradley Wilson's past medical and work history,

that his most recent employment as a Press Operator for Dana Corporation; [sic] is the

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sole cause for his severe bilateral carpal tunnel syndrome."

The Court weighed the conflicting opinions and found Dr. Chandler's opm10n

lacking because it failed to state any basis for his opinion nor did it indicate he was aware

of Mr. Wilson's job position at Dana or his work duties. In contrast, the Court held Dr.

Berry's opinion more persuasive based on his familiarity with Mr. Wilson's job at Dana

and duties as a press operator, his knowledge of Mr. Wilson's medical history, and his

unequivocal opinion that Mr. Wilson's work as a press operator was the sole cause for his

severe bilateral carpal tunnel syndrome.

Under the expedited hearing order, Dana provided Mr. Wilson a panel, from

which he selected Dr. Michael Dolan for treatment. Dr. Dolan confirmed the diagnosis of

bilateral carpal tunnel syndrome and performed surgery on Mr. Wilson's arms. The

parties agreed that Dana initiated temporary total disability benefits during his treatment

with Dr. Dolan. Dr. Dolan released Mr. Wilson at maximum medical improvement on

August 25, 2016, following extensive post-operative treatment. Dr. Dolan assigned a

three-percent permanent impairment rating to the body as a whole.

Second Expedited Hearing

Dana filed a second expedited hearing request captioned "Motion to Terminate

Temporary Total Disability Benefits." Dana asserted it initiated temporary total disability

payments while Dr. Dolan had Mr. Wilson on restricted duty. Dana submitted it

continued paying temporary benefits beyond Mr. Wilson's attainment ofMMI on August

25, 2016, because it was unsure whether it could terminate temporary disability benefits

absent a court order and whether Tennessee Code Annotated 50-6-234 applied. The Court

held an evidentiary hearing where Mr. Jason Almand, Dana's Health and Safety

Manager, testified that Dr. Dolan released Mr. Wilson to work with a twenty-pound

lifting limit on June 27, 2016. He further testified that Dana could have accommodated

Mr. Wilson's restriction but for the violation of Dana's attendance policy. Ms. Gooch

also testified by affidavit regarding the attendance policy and the circumstances

surrounding Mr. Wilson's termination.

Following the second expedited hearing, the Court held Dana presented sufficient

proof that Mr. Wilson's actions precipitating his dismissal qualified as misconduct under

ordinary workplace rules and his violation of the attendance policy was the true

motivation for his termination. The Court concluded Mr. Wilson's entitlement to

temporary disability benefits ceased on June 27, 2016. The Court further held Tennessee

Code Annotated 50-6-234(b) (20 15) did not apply in this case and Mr. Wilson was not

entitled to additional temporary disability subsequent to his attainment ofMMI.

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Summary Judgment

Following the completion of Mr. Wilson's treatment, Dana took Dr. Dolan's

deposition for its expert medical proof. In his deposition, Dr. Dolan testified in a couple

of different ways that he "cannot state that Mr. Wilson's employment at Dana was more

than fifty-percent responsible for his carpal tunnel complaints." As a basis for his

opinion, Dr. Dolan testified, "The underlying cause of carpal tunnel is unknown." Dana

also obtained Dr. Chandler's C-32, in which he checked "no" to the question, "Was the

employment activity more likely than not, primarily responsible for the injury or

primarily responsible for the need for treatment?"

Subsequently, Dana filed a Motion for Summary Judgment and contended Mr.

Wilson's evidence was insufficient to establish the essential element of medical

causation. Specifically, Dana argued Dr. Berry's causation opinion was insufficient to

overcome the statutory presumption of correctness afforded Dr. Dolan's opinion. In

opposing Dana's motion, Mr. Wilson relied on Dr. Berry's causation opinion and

disputed that Dr. Dolan was familiar with his work duties when he gave his causation

opinion. Based on the proof produced by Mr. Wilson at the summary judgment stage, the

Court denied the motion.

Compensation Hearing

At the Compensation Hearing, Mr. Wilson testified he has not sought additional

medical treatment for his carpal tunnel condition since Dr. Dolan released him. Mr.

Wilson has not worked for another employer since his termination from Dana. He

currently works odd jobs for income for his family and estimated he earns on average

"anywhere from $500 to $1,000 per month."

Regarding causation, Mr. Wilson did not submit an expert medical opinion from

Dr. Berry or any physician into evidence stating that his carpal tunnel injury arose

primarily out of his employment at Dana. Instead, Mr. Wilson challenged Dr. Dolan's

medical opinion by testifYing that Dr. Dolan informed him at his first visit that he was to

provide treatment for Mr. Wilson's condition and not a causation opinion. Mr. Wilson

further challenged Dr. Dolan's and Dr. Chandler's causation opinions, arguing neither

doctor knew his specific job duties at Dana. For these reasons, Mr. Wilson contended

their opinions lacked credibility and the Court should not consider them.

At the close of Mr. Wilson's proof, Dana moved for Involuntary Dismissal under

Tennessee Rule of Civil Procedure 41.02(2). The Court took the motion under

advisement and allowed Dana to present its evidence.

For its proof, Dana renewed its notice argument and contended Mr. Wilson did not

establish medical causation. In support of its notice defense, Dana employees Keith

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Henegar, Ms. Gooch, and Mr. Almand testified.

Mr. Henegar testified he was formerly "over all [Dana] maintenance employees,"

and Mr. Wilson "never reported issues with his hands to him." On cross examination, Mr.

Henegar testified he did not have direct contact with Mr. Wilson very often, stating he

was "spread pretty thin over three buildings."

Ms. Gooch was the custodian of personnel records for the plant. She testified

regarding the circumstances surrounding Mr. Wilson's FMLA leave and termination. She

also testified regarding her receipt of Mr. Wilson's June 4, 2015 letter, in which he first

notified Dana of his alleged work injury. Prior to the letter, she stated she had no notice

of his injury.

Mr. Almand was the local contact for Dana's workers' compensation claims. He

echoed Ms. Gooch's testimony regarding Mr. Wilson first notifying Dana of his work

injury in the June 4 letter. Mr. Almand further testified that Dana paid Mr. Wilson

temporary total disability benefits from March through September 20 16, representing

twenty-eight weeks of benefits for a total payment of $17.593.52. Dana argued this

amount represented both the temporary disability benefits to which Mr. Wilson would

have been entitled and an overpayment of temporary disability for benefits paid

subsequent to his attainment of MMI.

For medical proof, Dana relied on the causation opinions expressed in Dr. Dolan's

deposition and Dr. Chandler's C-32. It argued Dr. Dolan's opinion carries a presumption

of correctness and Mr. Wilson failed to offer any expert medical opinion to rebut Dr.

Dolan's testimony.

Findings of Fact and Conclusions of Law

Mr. Wilson, as the employee in a workers' compensation claim, has the burden of

proof on all essential elements of the claim. Scott v. Integrity Staffing Solutions, 2015 TN

Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 20 15). At a Compensation Hearing, Mr.

Wilson must establish by a preponderance of the evidence that he is entitled to the

requested benefits. Willis v. All Staff, TN Wrk. Comp. App. Bd. LEXIS 42, at* 18 (Nov.

9, 2015); see also Tenn. Code Ann.§ 50-6-239(c)(6) (2016).

Motion to Dismiss

Dana moved for involuntary dismissal at the close of Mr. Wilson's proof under

Tennessee Rule of Civil Procedure 41.02(2), which provides:

After the plaintiff in an action tried by the court without a jury has

completed the presentation of plaintiffs evidence, the defendant, without

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waiving the right to offer evidence in the event the motion is not granted,

may move for dismissal on the ground that upon the facts and the law the

plaintiff has shown no right to relief.

Dana argued Mr. Wilson failed to prove medical causation because he did not offer any

expert medical proof of causation and his testimony, alone, as a lay witness, is

insufficient to prove causation. The Court agrees.

To prove a compensable injury, Mr. Wilson must show that his alleged injury

arose primarily out of and in the course and scope of her employment. Tenn. Code Ann. §

50-6-102(14). To do so, he must show an incident, or specific set of incidents,

identifiable by time and place of occurrence, caused his injury. !d. at§ 50-6-102(14)(A).

Further, he must show, "to a reasonable degree of medical certainty that [the

employment] contributed more than fifty percent (50%) in causing the ... disablement or

need for medical treatment, considering all causes." !d. at§ 50-6-102(14)(C).

Applying these principles to these facts, the Court cannot find that Mr. Wilson met

this burden. Specifically, Mr. Wilson introduced no medical proof into evidence at the

compensation hearing to establish that his employment activities at Dana contributed

more than fifty percent in causing his carpal tunnel syndrome considering all causes.

Absent any medical opinion regarding the cause of Mr. Wilson's carpal tunnel syndrome,

he cannot show "to a reasonable degree of medical certainty" that his work contributed

more than fifty percent (50%) in causing the . . . disablement or need for medical

treatment, considering all causes."

The Court recognizes Mr. Wilson disputes Dr. Dolan's and Dr. Chandler's

conclusions; however, Mr. Wilson's disagreement with the physicians' opinions, while

genuine, is legally insufficient to refute their conclusions. Neither Mr. Wilson nor the

Court has the medical qualifications to revise the doctors' medical opinions. As our

Appeals Board observed, "Judges are not well-suited to second guess a medical expert's

treatment, recommendations, and/or diagnoses absent some conflicting medical evidence

or some other countervailing evidence properly admitted into the record." Scott v.

Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *8 (Aug. 18,

20 15).

Accordingly, the Court grants Dana's Motion for Involuntary Dismissal.

Request for Repayment ofTemporary Disability

Finally, given the holding in this case, the Court turns to Dana's argument that it is

entitled to recover from Mr. Wilson temporary disability benefits of $17,593.52. This

amount represented the temporary benefits to which Mr. Wilson would have been entitled

had he proven a compensable claim and Dana's overpayment to Mr. Wilson subsequent

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to his attainment of MMI. Dana further raised as a defense in the May 3, 2017 DCN that

"Employer is due a credit for overpayment of temporary disability benefits." The Court

notes Dana did not cite any authority supporting its position it is entitled to repayment of

TTD.

Upon review, the Court finds no authority from the Appeals Board providing

guidance under the 2013 Reform Act for a trial court's consideration of such a request.

Therefore, the Court turns to Tennessee authority on the similar issue of whether an

employee might be compelled to repay a TTD overpayment in the absence of an award of

permanent disability.

In Frazier v. AFG Indus., No. 03S01-9308-CV-00058, 1994 Tenn. LEXIS 396, at

*6 (Tenn. Workers' Comp. Panel June 14, 1994), the court noted the issue was, at that

time, "apparently [one] of first impression in Tennessee." Looking to other jurisdictions,

the court noted New Mexico had addressed the issue in at least two cases. The panel then

"paraphrased" certain guidelines from those cases to follow in future Tennessee "cases of

this nature." !d. at *8. Namely, when considering whether to order repayment of TID, a

court should consider 1) the culpability of the employee, if any, in accepting the TTD

payments; 2) the negligence, if any, of the employer in making the overpayments; and 3)

both the employee's ability to repay the TTD and the hardship upon him if ordered to do

so. !d. The panel described these factors as "the dimensions of what constitutes

fundamental fairness." !d. at *8-9.

Importantly, in Frazier, "there was no evidence introduced in the trial court

concerning the reasons for the overpayment, nor was there an examination of any of the

circumstances surrounding the payment of the temporary total disability." !d. at *9. The

panel noted that such examination "should be done before ordering or denying

repayment" ofTTD. !d.

Here, the Court notes the absence of any testimony at the compensation hearing

regarding the specific breakdown of the amounts and dates of temporary disability

benefits paid. The Court further notes the absence of sufficient testimony at the

compensation hearing concerning the "fundamental fairness" guidelines in Frazier.

Given the lack of this information and the relative novelty of this question under the 2013

Reform Act, the Court reserves ruling on Dana's request and will entertain a post-trial

motion and response on this issue.

IT IS, THEREFORE, ORDERED as follows:

1. Mr. Wilson's case against Dana and its workers' compensation carrier is dismissed

with prejudice against refiling it.

2. Costs of this cause of $150.00 are assessed against Dana under Tenn. Comp. R.

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and Reg. 0800-02-21-.07 (20 16), to be paid within five days of this order

becoming final.

3. Dana shall prepare and file a statistical data form within ten business days of the

date ofthis order under Tennessee Code Annotated section 50-6-244 (2016).

ENTERED this the 27th day of July' / f

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-'- L. . L. . .L-1-4

JUDGE AMBER E. LUTTRELL

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Court of Workers' Compensation Claims

APPENDIX

Stipulations ofF act:

1. The alleged date of injury is May 1, 2015.

2. Mr. Wilson is thirty-one years of age and resident of Benton County, Tennessee.

3. Mr. Wilson has a twelfth-grade education.

4. Mr. Wilson received authorized medical care with Dr. Dolan.

5. Mr. Wilson's maximum medical improvement date is August 25, 2016.

6. The compensation rate is $628.34.

7. Mr. Wilson has not returned to work for Dana due to his termination for cause.

Exhibits:

1. Dr. Dolan's Deposition and Exhibits

2. Dr. Chandler's C-32

3. Notice of Medical Records Certification Filing- Dr. Dolan

4. Wage Statement

5. The Berry Clinic note dated April 24, 2015

6. Medical records of Drs. Michael Dolan and Blake Chandler

7. Dana's Employee Counseling Sessions

8. Dr. Berry's off work note

9. Separation Notice

10.Employee's June 4, 2015 notice letter

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Technical record: 2

1. Petition for Benefit Determination

2. Dispute Certification Notice

3. Request for Expedited Hearing

4. Expedited Hearing Order Granting Medical Benefits and Denying Temporary

Disability Benefits

5. Employee's Motion of Contempt

6. Employer's Motion to Reconsider

7. Order Denying Employee's Motion for Contempt and Denying Employer's

Motion to Reconsider

8. Employer's Motion to Terminate Temporary Total Disability Benefits

9. Second Expedited Hearing Order

10. Initial Hearing Order

11. Motion for Relief from Initial Hearing Order

12. Order Denying Employer's Motion for Relief from Initial Hearing Order

B. Employer's Motion for Summary Judgment

14. Concise Statement of Undisputed Material Facts in Support of Employer's Motion

for Summary Judgment

15.Memorandum ofLaw in Support ofEmployer's Motion for Summary Judgment

16. Employer's Notice of Filing Exhibits

17. Amended Scheduling Hearing Order Resetting Compensation Hearing

18.Employee's Position Statement

19.Employee's Response to Employer's Concise Statement of Undisputed Material

Facts

20. Employee's Notice of Filing Exhibits

21. Post-Discovery Petition for Benefit Determination

22. Post-Discovery Dispute Certificate Notice

23. Order Denying Employer's Motion for Summary Judgment

24. Employer's Witness and Exhibit List

25. Employer's Pre-Compensation Hearing Position Statement

26. Employee's Pre-Compensation Hearing Statement

27. Employer's Pre-Compensation Hearing Statement of Employer

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The Court did not consider attachments to Technical Record filings unless admitted into evidence during the

Compensation Hearing. 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 Compensation Hearing Order

was sent to the following recipients by the following methods of service on this the 27th

day of July, 2017.

Name First Via Service sent to:

Class Email

Mail

Bradley Wilson, X X 935 Chalk Hill Church Rd.

Self-Represented Employee Camden, TN 38320

Bwoldschool65@yahoo.com

Terri Bernal, Esq., X tbemal@chartwelllaw .com

Employer's Counsel

Clerk of Court

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