The opinion
FILED
April 17,2018
TN COURT OF
WORKERS’ COMPENSATION
CLAIMS
Time 3:20 PM
TENNESSE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT CHATTANOOGA
Gary Branam, )
Employee, ) Docket No.: 2017-01-0018
V. )
Dunlap Stone, Inc., )
) State File No.: 1451-2017
Employer, )
And )
Travelers Insurance, ) Judge Thomas Wyatt
Insurance Carrier. )
EXPEDITED HEARING ORDER DENYING MEDICAL AND TEMPORARY
DISABILITY BENEFITS
This matter came before the Court on April 13, 2018, on Mr. Branam’s Request
for Expedited Hearing seeking medical and disability benefits. The issues presented for
decision are whether Mr. Branam’s neck condition, cardiac evaluation, and
hospitalization and treatment for neck surgery arose primarily out of and in the course
and scope of employment. For the reasons set forth below, the Court denies Mr.
Branam’s interlocutory claim for benefits.
History of Claim
Mr. Branam retired in 2012 following a career in construction, heavy equipment
operation, and bail bonding. Dunlap Stone, Inc. hired Mr. Branam in 2014 as a driver of
the large off-road dump trucks utilized in its shale quarry. Mr. Branam testified that
driving the large trucks over rough terrain jarred his body, as did the loading of his truck.'
Before working for Dunlap Stone, Mr. Branam experienced what he described as
pain “all over” his body in 2012. His primary care physician ordered x-rays at a facility
* The loading process took place while Mr. Branam remained in the truck.
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where physicians noted a history of “[c]hronic neck pain and stiffness-has-No trauma.”
The x-rays revealed “slight foraminal narrowing at C3-C4 bilaterally” with
“uncorvertebral joint hypertrophy.” Mr. Branam testified that other testing in 2012
revealed shoulder and knee problems for which he underwent surgical repairs. He denied
treatment for a neck problem in 2012, or neck problems before the date of injury that
precluded him from working at Dunlap Stone or anywhere else.
On June 16, 2016, Dunlap assigned Mr. Branam and his co-worker, Kenneth
Bartlett, to clear surface dirt and rock, called overburden, so co-employees could later set
explosives to loosen underlying deposits of shale. Mr. Bartlett dug overburden with a
track-hoe scoop and transferred it into the bed of Mr. Branam’s truck.
After working about four hours, Mr. Branam experienced numbness and tingling
in his left arm and hand, and pain around his left shoulder and collarbone, when jarred by
Mr. Bartlett transferring a load of overburden into Mr. Branam’s truck. Mr. Branam
thought he might be having a heart attack and told Mr. Bartlett, who drove him to Dunlap
Stone’s nearby office. Dunlap Stone’s safety manager then took Mr. Branam to an urgent
care facility.
Providers at the clinic transferred Mr. Branam to Erlanger Hospital where
physicians hospitalized him for a cardiac assessment. When cardiac testing failed to
reveal a reason for Mr. Branam’s symptoms, a neurosurgeon, Dr. Lee Kern, diagnosed a
herniated disk in Mr. Branam’s neck and performed surgery to repair it. Mr. Branam
remained hospitalized at Erlanger for nearly two weeks following the date of injury. He
has not returned to work at Dunlap Stone, and Dunlap Stone denied his workers’
compensation claim.
Mr. Branam filed a workers’ compensation claim against Dunlap Stone, which it
denied. Mr. Braaum filed a Petition for Benefit Determination and requested this
hearing.
At the hearing, both parties relied on opinions given by Dr. Kern in support of
their positions.” Mr. Branam claimed entitlement to benefits based on a C-32 Standard
Form Medical Report completed by Dr. Kern on January 8, 2018. The C-32, which Dr.
Kern did not completely fill out, contained Dr. Kern’s diagnosis of a cervical disk
herniation. Regarding causation, Dr. Kern stated that, more likely than not, Mr.
Branam’s “whiplash” primarily arose out of and in the course and scope of an incident at
work when he experienced jerking and shaking while sitting in a truck as it was being
loaded.
* Each party objected to the introduction of the other party’s evidence of Dr. Kern’s opinions. The Court overruled
the objections for the reasons set out below.
Dunlap Stone objected to the C-32 but never took Dr. Kern’s deposition. Instead,
it filed Dr. Kern’s unsworn, undated declaration? stating that he completed the C-32 form
for Mr. Branam without having reviewed any of Mr. Branam’s medical records. Dr.
Kern related that the records he reviewed indicated Mr. Branam told a provider of
chronic neck pain and stiffness in 2012. He also indicated that he reviewed a diagnostic
report from 2012 that indicated Mr. Branam had osteophytes at the C3-4 through C5-6
levels of his cervical spine. Finally, Dr. Kern stated he reviewed a record revealing that
Mr. Branam told a provider that he experienced the same symptoms as those he reported
on June 16, 2016, three days before the incident at Dunlap Stone.
Upon reconsidering his causation opinion in view of the described records, Dr.
Kern wrote in his declaration:
Based on my treatment of Mr. Branam and my review of medical
records occurring prior to June 16, 2016 [sic] and the history given at the
time of admission on June 16, 2016, I cannot opine within a reasonable
degree of medical certainty that the injuries for which I treated Mr.
Branam arose primarily from the work event on July 16, 2016."
(Emphasis in original.)
Findings of Fact and Conclusions of Law
Evidentiary Issues
The Court first addresses objections each party made to the other’s offer of
documents signed by Dr. Kern. First, Mr. Branam submitted a C-32, to which Dunlap
Stone objected based on the failure to identify Mr. Branam as the patient.
Dunlap Stone is correct that Dr. Kern did not completely fill out the C-32.
However, Dr. Kern stated in the declaration filed by Dunlap Stone that he completed the
C-32. Additionally, the following factors convinced the Court that Dr. Kern provided the
information contained in the C-32 about Mr. Branam: the diagnosis Dr. Kern provided in
his declaration verified the diagnosis given in the C-32; the mechanism of injury
described in the C-32 matched Mr. Branam’s testimony about how he suffered injury;
and Dunlap Stone provided no proof that Dr. Kern did not sign the C-32 or considered
> Tennessee Rule of Civil Procedure 72 allows a party to submit a witness’s testimony by declaration under penalty
of perjury.
“Mr. Branam objected to the introduction of Dr. Kem’s declaration into evidence because this date was inaccurate.
The Court overruled the objection, holding that the inaccuracy went to the weight given the declaration but did not
render the declaration inadmissible.
information about another patient in providing the information he provided in the C-32.
Thus, the Court overruled Dunlap Stone’s objection.
On the other hand, Mr. Branam objected to Dunlap Stone’s submission of Dr.
Kern’s declaration. The primary objection Dunlap Stone asserted was that Tennessee
Code Annotated section 50-6-235 requires a party to rebut a signed C-32 by deposition,
rather than by another written document signed by the physician.
Section 50-6-235(c)(1) provides that “[a]ny party may introduce direct testimony
from a physician through a written medical report on a form established by the
administrator.” Section 50-6-235(c)(2) provides a means for a party to object to the
introduction of a physician’s testimony by use of the indicated form. The statute requires
an objection within ten days from a party’s receipt of the form and, upon objecting,
charges the objecting party to take the physician’s deposition “within a reasonable period
of time.” If the objecting party does not take the physician’s deposition, the statute
deems the objection “to be waived.”
Here, Dunlap Stone objected to the C-32 but did not depose Dr. Stone. Thus, it
waived the objection, and the Court allowed Mr. Branam to place the C-32 into
evidence. The Court finds no indication in the statute that a party objecting to a C-32
must challenge the C-32 by deposition or not at all. The only sanction for the objecting
party’s failure to depose the C-32 doctor is waiver of the objection, not exclusion of
contrary opinions. Thus, the Court overruled Mr. Branam’s objection and admitted Dr.
Kern’s declaration into evidence.
General Legal Principles
Under Tennessee law, Mr. Branam bears the burden of proof on all
elements of his workers’ compensation claim. Tenn. Code Ann. § 50-6-239(c)(6) (2017);
see also Buchanan v. Carlex Glass Co, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *5
(Sept. 29, 2015). However, he need not prove his claim by a preponderance of the
evidence at an Expedited Hearing in order to obtain relief. McCord v. Advantage Human
Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). Rather,
he must present sufficient evidence to indicate he is likely to prevail at a hearing on the
merits. Id.; Tenn. Code Ann. § 50-6-239(d)(1) (2017).
The Workers’ Compensation Law requires that the employee establish an original
injury or an aggravation of a pre-existing condition “arose primarily out of and in the
course and scope of employment.” See Tenn. Code Ann. section 50-6-102(14)(A) (2017)
To prove his injury caused a disability and/or required medical treatment, the employee
must show his alleged injury contributed more than 50% in necessitating the treatment
and/or causing his disability. Tenn. Code Ann. § 50-6-102(14)(C). Sections 50-6-
102(14)(A),(C), and (E) require the employee to establish the causation by “a reasonable
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degree of medical certainty.”
Analysis
Here, Dunlap Stone denied the compensability of Mr. Branam’s claim.
Specifically, it claimed that Mr. Branam did not establish by requisite medical expert
opinion that his cardiac assessment and neck treatment arose primarily out of and in the
course and scope of employment. It also contended that Mr. Branam did not prove that a
compensable injury caused his absence from work since June 16, 2016.
The Court must reconcile differing causation opinions offered by Dr. Kern in
deciding this claim. Those differences are reconciled when the Court considers that when
Dr. Kern gave his sworn declaration, he had information regarding Mr. Branam’s pre-
injury medical history that he did not have when he completed the C-32 form. In view of
the above, the Court accepts Dr. Kern’s declaration as the most probative evidence of his
causation opinion.
Dr. Kern’s declaration negated his earlier C-32 opinion. He explained his change
of opinion because the records he reviewed after filling out the C-32revealed that Mr.
Branam experienced neck-related symptoms before the date of the incident at Dunlap
Stone. Dr. Kern concluded in his declaration that he could not give an opinion relating
Mr. Branam’s injury to work-related events on June 26, 2016. Hence, based on the proof
presently in evidence, the Court holds that Mr. Branam will not likely prevail at a hearing
on the merits in proving the work-relatedness of his injury.
The Court also notes that Mr. Branam failed to introduce medical expert opinion
establishing that the cardiac assessment he underwent constituted reasonable and
necessary treatment of a compensable injury. Nor did Mr. Branam offer medical
evidence that a compensable injury disabled him from working. Thus, at this time, the
Court denies Mr. Branam’s interlocutory claim for medical benefits for his cardiac care
and for temporary disability benefits.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Branam’s claim for medical and temporary disability benefits is denied at this
time.
2. The Courts sets this matter for a telephonic Status Hearing on June 13, 2018, at
10:30 a.m. Eastern Time/9:30 a.m. Central Time. You must call (615) 741-
3061 or toll-free at (855) 747-1721 to participate in the Status Hearing. You must
call on the scheduled date/time to participate. Failure to call may result in a
determination of the issues without your further participation.
ENTERED April 17, 2018.
Joanboodp—
Judge Thomas Wyatt
Court of Workers’ Compensation Claims
APPENDIX
Exhibits: The Court admitted the following exhibits into evidence during the Expedited
Hearing:
WN —
NM
. Affidavit of Gary Branam;
First Report of Injury;
. Medical Records of Premier Radiology/Diagnostic Imaging of
Chattanooga;
Medical Records of Erlanger Sequatchie Valley, Erlanger Chattanooga, and
University of Tennessee Erlanger Neurosurgery Group/Dr. Lee Kern;
Form C-32 Standard Form Medical Report Completed by Dr. Lee Kern;
Declaration of Dr. Lee Kern;
Medical Records Provided to Dr. Lee Kern by Counsel for Employer; and
Photograph of truck driven by Mr. Branam.
Technical Record: The Court considered the following filings in deciding the issues
raised by the parties during the Expedited Hearing:
SNIAUMPWNH YS
o
Amended Petition for Benefit Determination;
Dispute Certification Notice;
Request for Expedited Hearing;
Notice of Expedited Hearing;
Employer’s Response to Employee’s Request for Expedited Hearing;
Employee’s Pre-Hearing Statement;
Employee’s Motion for Extension of Time and/or Continuance;
Employer’s Response to Employee’s Motion for Extension or Time and/or
Continuance;
Order Continuing Expedited Hearing;
10. Notice of Objection to Use of Form C32 of Dr. Lee Kern;
11. Amended Notices of Expedited Hearing; and
12.Employer’s Response to Employee’s Request for Expedited Hearing.
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 April 17, 2018.
Name Certified Mail | Via Email Email Address
Jerry Bible, X lawoffice@biblelawoffice.net
Employee’s tpeardon@biblelawoffice.net
Attorney
Ben Reese, x Ben.reese@leitnerfirm.com
Employer’s
Attorney
onan ene pw pormasuteY)
PENNY SHRUM, COURT CLERK |
we.courtclerk@tn.gov
Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
form with the Clerk of the Court of Workers’ Compensation Claims within seven
business days of the date the expedited hearing order was filed. When filing the Notice
of Appeal, you must serve a copy upon all parties.
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of 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 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 the appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. Ifa transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten calendar days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten calendar days of the filing of the Notice of Appeal. The statement of
the evidence must convey a complete and accurate account of the hearing. The Workers’
Compensation Judge must approve the statement before the record is submitted to the
Appeals Board. If the Appeals Board is called upon to review testimony or other proof
concerning factual matters, the absence of a transcript or statement of the evidence can be
a significant obstacle to meaningful appellate review.
4. If you wish to file a position statement, you must file it with the court clerk within five
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within five business
days after you file your position statement. All position statements should include: (1) a
statement summarizing the facts of the case from the evidence admitted during the
expedited hearing; (2) a statement summarizing the disposition of the case as a result of
the expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an
argument, citing appropriate statutes, case law, or other authority.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, |-B
Nashville, TN 37243-1002
800-332-2667
|
AFFIDAVIT OF INDIGENCY
, having been duly sworn according to law, make oath that
because of my poverty, | am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name:
3. Telephone Number:
5. Names and Ages of All Dependents:
6. |am employed by:
2. Address:
4. Date of Birth:
Relationship:
Relationship:
Relationship:
Relationship:
My employer's address is:
My employer's phone number is:
7. My present monthly household income, after federal income and social security taxes are deducted, is:
8. | receive or expect to receive money from the following sources:
Seas
AFDC $
SSI $
Retirement $
Disability $
Unemployment $
Worker's Comp.$
Other $
LB-1108 (REV 11/15)
per month
per month
per month
per month
per month
per month
per month
beginning
beginning
beginning
beginning
beginning
beginning
beginning
RDA 11082
9. My expenses are:
Rent/House Payment $ permonth Medical/Dental $ per month
Groceries $ per month Telephone $ per month
Electricity $ per month School Supplies $ per month
Water $ per month Clothing $ per month
Gas $ per month Child Care $. per month
Transportation $ per month Child Support $ per month
Car $ per month
Other $ per month (describe: )
10. Assets:
Automobile $ (FMV)
Checking/Savings Acct. $
House $ (FMV)
Other $ Describe:
11. My debts are:
Amount Owed To Whom
| hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that | am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
day of , 20
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV 11/15) RDA 11082