The opinion
FILED
Jan 25, 2019
10:31 AM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT KNOXVILLE
JACK T. HUFFAKER, ) Docket No. 2017-03-1196
Employee, )
Vv. )
CAC OF KNOX COUNTY, ) State File No. 13120-2016
Employer, )
And )
TENNESSEE MUNICIPAL LEAGUE )_ Judge Lisa A. Lowe
RISK MANAGEMENT-THE POOL, )
Carrier. )
EXPEDITED HEARING ORDER DENYING BENEFITS
(DECISION ON THE RECORD)
This matter initially came before the Court for an Expedited Hearing on August
14, 2018. Following that hearing, the Court found Mr. Huffaker established entitlement
to medical evaluations of his knee and back, which CAC provided.
On November 28, Mr. Huffaker filed a motion seeking MRIs of his neck,
shoulders, elbows, arms, and left leg and a second opinion on his ankle. The Court
considered the motion as a request for expedited hearing on the record and issued a
docketing notice. The parties agreed on a January 18, 2019 deadline for submission of
information, objections to items listed in the docketing notice, and position statements.
Both parties submitted position statements.
The legal issue is whether Mr. Huffaker is likely to establish at a hearing on the
merits his entitlement to the requested MRIs and second opinion for his ankle. For the
following reasons, the Court holds he did not come forward with sufficient evidence to
meet his burden and denies the requested relief.
History of Claim
Mr. Huffaker’s work injury occurred when he fell while exiting his bus. After
some initial treatment, orthopedist Dr. William R. Fly provided conservative treatment
including a boot walker and physical therapy from February to June 2016. Due to Mr.
Huffaker’s persistent left-ankle swelling, Dr. Fly referred him to fellow orthopedist and
foot specialist Dr. Mary Testerman. Dr. Testerman treated him from June to November
2016 with medications and physical therapy then released him with permanent
restrictions and an impairment rating.
Following the first Expedited Hearing, the Court held that Mr. Huffaker presented
sufficient evidence entitling him to a panel of physicians for evaluation and treatment of
any work-related back or knee injury but not evaluations of his elbows or shoulders. As a
result of that order, CAC provided two panels of orthopedic physicians, and Mr. Huffaker
selected Dr. Michael Casey for evaluation of his knee and Dr. Colin Booth for his back.
Dr. Casey evaluated Mr. Huffaker and noted:
I do not feel that over two years later that this is truly an event from his fall.
My diagnosis today is more patellofemoral pain with some early
patellofemoral wear. I see no other evidence of internal derangement. I do
not feel that this is directly related to his workers’ compensation injury
back in February 2016.
Dr. Booth evaluated Mr. Huffaker and wrote “the patient’s issues are due to
degenerative disc disease, which is long standing. His injury may have aggravated these
symptoms but at two years out, I cannot say his current symptoms are due to any work
injury.”
Having received the above opinions, Mr. Huffaker requested MRIs of his neck,
shoulders, elbows, arms, and left leg. Additionally, he was not satisfied with the ankle
treatment received from Drs. Fly and Testerman and requested a second opinion under
Tennessee Code Annotated section 50-6-204(3)(C) (2018).
CAC argued it provided Mr. Huffaker medical treatment related to his work injury
and he is not entitled to a second opinion of his ankle injury. Further, neither Dr. Casey
nor Dr. Booth related Mr. Huffaker’s current complaints to the work injury, and no
treating physician recommended the requested MRIs. Finally, CAC argued Mr.
Huffaker’s request for additional treatment should be denied because he offered no
medical proof establishing a connection between his current need for treatment and the
work injury.
Findings of Fact and Conclusions of Law
Mr. Huffaker need not prove every element by a preponderance of the evidence to
receive relief at an expedited hearing. Instead, he must present sufficient evidence
showing he would likely prevail at a hearing on the merits. McCord vy. Advantage
Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
To prove a compensable injury, Mr. Huffaker must establish that the injury arose
primarily out of and in the course and scope of employment. To establish that the injury
arose primarily out of the employment, he must show “to a reasonable degree of medical
certainty that [the injury] contributed more than fifty percent (50%) in causing the death,
disablement or need for medical treatment, considering all causes.” The term “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). Thus, causation must be established by expert medical
testimony.
First, Mr. Huffaker seeks MRIs, which no physician recommended, for multiple
body parts. Although the Court is aware of Mr. Huffaker’s sincerely held belief that his
current conditions and need for treatment arose primarily out of his work injury, his lay
opinion alone is legally insufficient to establish the essential element of medical
causation. Thus, the Court holds Mr. Huffaker failed to establish he is likely to prevail at
a hearing on the merits that he is entitled to the requested MRIs.
Second, Mr. Huffaker seeks a second opinion for his ankle under Tennessee Code
Annotated section 50-6-204(3)(C), which affords an employee a second opinion on the
issue of surgery and diagnosis. Petty v. Convention Prod. Rigging, 2016 TN Wrk. Comp.
App. Bd. LEXIS 95, at *19-21 (Dec. 29, 2016). None of the treating physicians
recommended surgery. Therefore, the Court holds Mr. Huffaker failed to establish he is
likely to prevail at a hearing on the merits that he is entitled to a second opinion.
IT IS, THEREFORE, ORDERED as follows:
1. CAC is not obligated to provide the requested MRIs or a second opinion on his
ankle injury. However, Mr. Huffaker may return to Dr. Testerman for ongoing
reasonable, necessary, and related medical treatment for his work-related left ankle
injury.
2. This matter is set for a Status Hearing/Scheduling Conference on March 28,
2019, at 2:30 p.m. Eastern Time. The parties must call 865-594-0109 or 855-
383-0003 toll-free to participate in the Status Hearing. Failure to appear by
telephone may result in a determination of the issues without the party’s
participation.
ENTERED on January 25, 2019.
nb au
LISA A. LOWE, JUDGE
Court of Workers’ Compensation Claims
APPENDIX
Technical Record:
I.
CO HMNAARWH
10.
Exhibits:
9.
10.
11.
12.
13,
14.
15.
16.
Petition for Benefit Determination
Dispute Certification Notice
Motion for Extension of Time
Order Granting Motion for Extension of Time
Order Granting Employee’s Second Motion for Extension of Time
Request for Expedited Hearing
Expedited Hearing Order Granting Medical Benefits
Motion for Further Diagnostic Testing with photographs
Employer’s Response and Memorandum in Opposition to Employee’s Motion
for Further Diagnostic Testing
Mr. Huffaker’s position statement (email dated January 13, 2019)
Affidavit of Jack T. Huffaker
Hand-written Statement of Jack T. Huffaker
First Report of Work Injury
MRI of Outpatient Diagnostic Center at Knoxville, dated March 7, 2016
Panel of Physicians, Form C-42, Selection Date of February 19, 2016
Medical Report of Dr. M. Chris Testerman, dated November 8, 2016
Medical Records of Knoxville Orthopedic Clinic
Photographs of Lower Extremities
Text Message to Susan Dowling, dated August 29, 2016
Email of Kellie Earls, dated October 12, 2016
Affidavit of Kellie Earls
Executed Panel of Physicians for Back Injury
Executed Panel of Physicians for Knee Injury
August 30, 2018 letter from The Poole to Mr. Huffaker
September 26, 2018 Medical Record of Dr. Michael Casey and causation
response
October 3, 2018 Medical Record of Dr. Colin Booth
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 January 25, 2019.
Self-Represented
Employee
Name Certified | Fax | Email | Service sent to:
Jack T. Huffaker, xX x Jack T. Huffaker
516 Kay Drive
Strawberry Plains, TN 37871
debandjack(@comcast.net
Hanson R. Tipton,
Employer’s Attorney
x htripton(@watsonroach.com
LD
RUM, Court Cler
WC.CourtClerk@tn.gov
EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers’ Compensation
www.tn.gow/labor- wid/weomp.shtm|
wc.courtclerk@tn.gov
1-800-332-2667
Docket #:
State File #/YR:
Employee
Vv.
Employer
Notice
Notice is given that
(List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s) of the Court of Workers’ Compensation Claims at
to the Workers’ Compensation Appeals
Board. [List the date(s) the order(s) was filed in the court clerk’s office]
Judge
Statement of the Issues
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Additional Information
Type of Case [Check the most appropriate item]
L] Temporary disability benefits
LCL] Medical benefits for current injury
LCL) Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): At Hearing: DEmployer (JEmployee
Address:
Party’s Phone: Email:
Attorney’s Name: BPR#:
Attorney's Address: Phone:
Attorney's City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 10/18 Page 1 of 2 RDA 11082
Employee Name: SF#: —— DOI:
Appellee(s)
Appellee (Opposing Party): At Hearing: Employer LJEmployee
Appellee’s Address:
Appellee’s Phone: Email:
Attorney's Name: BPR#:
Attorney's Address: Phone:
Attorney's City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, , certify that | have forwarded a true and exact copy of this
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules
of Board of Workers’ Compensation Appeals on this the day of ,20_
[Signature of appellant or attorney for appellant]
LB-1099 rev. 10/18 Page 2 of 2 RDA 11082
Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, I-B
Nashville, TN 37243-1002
AFFIDAVIT OF INDIGENCY
800-332-2667
, 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. lam 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:
AFDC $
SS] $
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
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV 11/15)
, 20
RDA 11082
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 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. AII 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.