Opinion

Lindsay, Courtland v. Western Express

  • 2018 TN WC 166
Court
Tennessee Court of Workers' Compensation Claims
Filed
Oct 11, 2018
Status
Published
On the bench
Joshua Davis Baker
Cited by
0 cases

The opinion

FILED

Oct 11, 2018

11:08 AM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT NASHVILLE

COURTLAND LINDSAY, ) Docket No. 2018-06-1247

Employee, )

v. )

WESTERN EXPRESS, ) State File No. 46898-20018

Employer )

and )

PMA INSURANCE CO., ) Judge Joshua Davis Baker

Carrier. )

EXPEDITED HEARING ORDER DENYING REQUESTED BENEFITS

This claim came before the Court on October 9, 2018, for an expedited hearing of

Mr. Lindsay’s request for temporary disability and medical benefits. Western Express

opposed his request, arguing that he would be unlikely to prevail at a hearing on the

merits in proving he suffered an injury arising primarily out of and in the course and

scope of his employment due a negative medical causation opinion. The Court agrees

and denies his request for benefits.

Claim History

This claim concerns an alleged fall, or a series of alleged falls, that injured Mr.

Lindsay’s right knee. According to his Petition for Benefit Determination and testimony,

on June 18, 2018, Mr. Lindsay slipped and nearly fell down steps while training in “load

securement.”

A few days before the June 18 incident, Mr. Lindsay injured his right knee in a

non-work-related accident.1 He went to the emergency room following that accident and

was diagnosed with a patella fracture. He wore a brace and used crutches because of the

non-work-related accident. Mr. Lindsay claimed the June 18 incident aggravated his

patella injury.

1

The cause of the non-work-related accident prompted significant testimony and dispute. According to

Mr. Lindsay, he injured his knee when he slipped while jogging. Jeff Partlow, another Western Express

employee, provided an affidavit and stated he heard Mr. Lindsay tell co-employees that he hurt himself

when he slipped on wet grass while trying to jump over a fence.

Western Express provided a panel for the alleged June 18 injury, and Mr. Lindsay

first went to Concentra. According to the medical notes, he told the Concentra physician

he continued to suffer from knee pain after a jogging accident and developed “new pain”

in his right ankle. He also complained of foot bruising. The Concentra physician

diagnosed a right ankle sprain and a right knee contusion. He referred Mr. Lindsay for an

MRI, which showed a complete tear of the patellar tendon and a partial tear of the lateral

patellar tendon. The notes from Concentra made no mention of a patella fracture.

After the MRI, Mr. Lindsay went to see Dr. Joseph Wieck, a neurosurgeon he

chose from a panel. At the first visit, Mr. Lindsay told Dr. Wieck he previously injured

his knee when he fell while jogging. Dr. Wieck reviewed the x-ray from Concentra and

the MRI results. He confirmed the patella-fracture diagnosis and the tendon tears. He

recommended surgical repair for the tendon but also indicated that Mr. Lindsay’s injuries

arose from the jogging accident rather than the June 18 incident.2 After receiving this

opinion, Western Express denied Mr. Lindsay’s claim.

Mr. Lindsey testified that the workplace accident aggravated his previous patella

injury. He also stated that Dr. Wieck failed to treat his injuries appropriately. He

expressed a belief that Western Express denied his claim as a form of retaliation.

Western Express asked that the claim be denied for lack of proof of medical causation.

Findings of Fact and Conclusions of Law

As in all workers’ compensation actions, Mr. Lindsay has the burden to prove the

essential elements of his claim. However, since this is an expedited hearing, he need only

present sufficient evidence from which the Court can determine he is likely to prevail at a

hearing on the merits. McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp.

App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). The Court holds he failed to carry his

burden of proving a causal relationship between his injury and a workplace accident.

While most of the testimony centered on factual disputes, the problem with this

claim for temporary benefits concerned the medical proof. To recover benefits, Mr.

Lindsay must prove he suffered an “injury” or “aggravation of a preexisting condition” as

that term is defined by the Workers’ Compensation Law. This includes evidence of a

causal link between the injury or aggravation and a work-related accident. To that end,

Mr. Lindsay must produce evidence of medical causation.

2

Mr. Lindsay took issue with the medical note’s indication he fell while jogging on June 17, arguing that

the jogging accident occurred before that date. The Court finds the importance of the opinion concerned

the finding that Mr. Lindsay’s injury stemmed from the non-work-related injury that predated the alleged

work-related incident, rather than the specific date the jogging injury occurred.

2

To establish medical causation, Mr. Lindsay must prove “to a reasonable degree of

medical certainty that [the injury] contributed more than fifty percent (50%) in causing

the injury, aggravation or need for medical treatment, considering all causes.” A

“reasonable degree of medical certainty” means that “in the opinion of the physician, it is

more likely than not considering all causes, as opposed to speculation or possibility.” See

Tenn. Code Ann. § 50-6-102(14)(C)-(D) (2017). Thus, causation must be established by

expert medical testimony.

Mr. Lindsay failed to carry his burden of proving medical causation. The

authorized treating physician, Dr. Wieck, determined Mr. Lindsay’s injury occurred as a

result of his non-work-related jogging injury that predated June 18. His causation

opinion carries a presumption of correctness, and the presumption can only be overcome

by contrary expert medical proof. See id. at § 50-6-102(14)(E). Mr. Lindsay presented

no contrary expert medical proof, only lay testimony. The Court, therefore, holds Mr.

Lindsay would be unlikely to prevail at a hearing on the merits in proving medical

causation of his injury.

It is ORDERED as follows:

1. Mr. Lindsay’s claim for medical and temporary disability benefits is denied at this

time.

2. This matter is set for a status conference on Monday, November 26, 2018, at 10:00

a.m. (CST). You must call 615-741-2113 or toll-free 855-874-0474 to

participate in the Hearing. Failure to call may result in a determination of

issues without your further participation.

IT IS SO ORDERED.

ENTERED ON OCTOBER 11, 2018.

________________________________________

Judge Joshua Davis Baker

Court of Workers’ Compensation Claims

3

APPENDIX

Exhibits:

1. Medical records

2. Affidavit of Courtland Lindsay

3. C-42 Choice of Physician Form

4. First Report of Injury

5. Notice of Claim Denial

6. Affidavit of Jerry Partlow

Technical Record:

1. Petition for Benefit Determination

2. Dispute Certification Notice

3. Request for Expedited Hearing

4. Mr. Lindsay’s Statement of Additional Issues

5. Western Express’ Position Statement

4

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing was sent to the following

recipients by the following methods of service on October 11, 2018.

Name Certified Via Via Address

Mail Fax Email

Courtland Lindsay X live08feed@gmail.com

D. Andew Saulters X dsaulters@ortalekelley.com

_______________________________________

Penny Shrum, Court Clerk

Wc.courtclerk@tn.gov

5

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. If a 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 business days of the filing the Notice of

Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both

parties within ten business 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 ten

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 ten 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.

.

ll .I

Tennessee Bureau of Workers' Compensation

220 French Landing Drive, 1-B

Nashville, TN 37243-1002

800-332-2667

AFFIDAVIT OF INDIGENCY

I, , having been duly sworn according to law, make oath that

because of my poverty, I 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:_ _ _ _ _ _ _ _ _ _ __ 2. Address: - - - - - - - - - - - - -

3. Telephone Number: - - - - - - - - - 4. Date of Birth: - - - - - - - - - - -

5. Names and Ages of All Dependents:

- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

- - - - - - - - - - - - - - -- - Relationship: - - - - - - - - - - - --

- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

6. I am employed by: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , -

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. I receive or expect to receive money from the following sources:

AFDC $ per month beginning

SSI $ per month beginning

Retirement $ per month beginning

Disability $ per month beginning

Unemployment $ per month beginning

Worker's Camp.$ per month beginning

Other $ per month beginning

LB-1108 (REV 11/15) RDA 11082

9. My expenses are: ' ; !•

'

Rent/House Payment $ per month 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

I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete

and that I am financially unable to pay the costs of this appeal.

APPELLANT

Sworn and subscribed before me, a notary public, this

_ _ _ dayof _____________ ,20____

NOTARY PUBLIC

My Commission Expires:_ _ _ _ _ __ _

LB-1108 (REV 11/15) 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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