The opinion
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
DALE HUNTER, )
Employee, ) Docket No. 2017-08-1268
)
V. )
) State File No. 88488-2017
DOUG’S AUTOMOTIVE, )
Employer. )
) Judge Dale Tipps
)
EXPEDITED HEARING ORDER
DENYING BENEFITS
(DECISION ON THE RECORD)
This matter came before the Court on August 21, 2019, for an Expedited Hearing
decided on the record without an in-person hearing. The present focus of this case is
whether Mr. Hunter is entitled to additional medical treatment for his alleged back injury.
The central legal issue is whether he is likely to establish at a hearing on the merits that
his need for the requested MRI arose primarily out of and in the course and scope of his
employment. For the reasons below, the Court holds Mr. Hunter failed to do so and is
not entitled to benefits at this time.
History of Claim
This is Mr. Hunter’s second Expedited Hearing. Following the first hearing, the
Court was unable to find that Mr. Hunter was likely to prove medical causation at a
hearing on the merits but issued an order for a panel of physicians.’ Doug’s Automotive
provided a panel, from which Mr. Hunter selected Dr. Sam Murrell.
" The Court summarized the full history of Mr. Hunter’s injury and medical treatment in its prior order
and finds it unnecessary to repeat that summary here.
1
Mr. Hunter treated with Dr. Murrell but filed a Motion to Compel Medical
Treatment on June 4, 2019, claiming that Dr. Murrell recommended an epidural injection
that Doug’s Automotive refused to authorize. Because Mr. Hunter provided no medical
records or other information regarding the treatment or its relationship to his work injury,
the Court found it could not order Doug’s Automotive to authorize it.
Mr. Hunter then filed another Motion for Medical Treatment on July 26, this time
with an accompanying letter from Dr. Murrell. The Court determined that the motion
was actually a request to decide his interlocutory claim for medical benefits based on a
review of the file without an evidentiary hearing. The Court deemed the request for a
decision on the record appropriate and issued a Docketing Notice.
Doug’s Automotive filed a Response and an Objection to Dr. Murrell’s letter, and
the Court took up the hearing request on August 21.
Dr. Murrell’s letter is the only proof offered by either party. It states:
Dale Hunter has been under my care with complaints of low back
pain and leg pain. He was first seen by me on September 7, 2018
complaining of pain following an injury on 10/15/2017. He was ultimately
found to have degenerative changes of the lumbar spine at multiple levels
with a more focal right L5 foraminal disc protrusion. When he was seen by
me on January 28, 2019, he was offered an epidural steroid injection. He
ultimately requested to be released to full duty, but then later he followed
up with me and indicated that he wished to proceed with further treatment.
In April of this year, an epidural steroid injection was again recommended,
and he continues under my care awaiting performing of the procedure.
Findings of Fact and Conclusions of Law
The Court first addresses the objections to Dr. Murrell’s letter. Doug’s
Automotive contends the letter is irrelevant because “it does not negate any of the
previous findings that Employee is and has been released . . . at maximum medical
improvement.” This argument is unsupported by any evidence, as Doug’s Automotive
has never provided the Court with any medical records from Dr. Murrell. More
importantly, even if Mr. Hunter were at maximum medical improvement, Doug’s
Automotive provides no authority for the proposition that a finding of maximum medical
improvement terminates an employee’s right to medical treatment made reasonably
necessary by a work injury.
Doug’s Automotive also argues that Dr. Murrell’s letter is hearsay. This argument
overlooks Court of Workers’ Compensation Claims and Alternative Dispute Resolution
2
Rule 0800-02-21-.16(2)(b), which provides that medical records are self-authenticating
and admissible when signed by a physician. As Dr. Murrell signed the letter in question,
it is properly admitted as evidence.
Turning to the merits of Mr. Hunter’s claim, he need not prove every element of
his claim by a preponderance of the evidence to obtain relief at an expedited hearing.
Instead, he must come forward with sufficient evidence from which this Court might
determine he is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-
239(d)(1) (2018); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App.
Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). To prove a compensable injury, Mr. Hunter
must show that his alleged injury arose primarily out of and in the course and scope of his
employment. That means he must show, “to a reasonable degree of medical certainty that
it contributed more than fifty percent (50%) in causing the . . . disablement or need for
medical treatment, considering all causes.”
Applying these principles, the Court cannot find that Mr. Hunter would likely
meet his burden of proof at a hearing on the merits. Dr. Murrell’s letter, the only medical
proof introduced in this matter, states that Mr. Hunter has degenerative changes of the
lumbar spine and a L5 disc protrusion. It also shows that Dr. Murrell continues to
recommend an epidural steroid injection. However, the letter does not address whether
the diagnosis or the need for the epidural injection arose primarily out of and in the
course and scope of Mr. Hunter’s employment. Without a medical opinion addressing
this issue, Mr. Hunter cannot prove at this time “to a reasonable degree of medical
certainty” that his work contributed more than fifty percent in causing the injury or the
need for the treatment recommended by Dr. Murrell.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Hunter’s claim against Doug’s Automotive for the requested epidural steroid
injection is denied at this time.
2. This case is set for a Status Hearing on September 24, 2019, at 9:30 a.m. Please
call toll-free at 855-874-0473 to participate. Failure to call or appear might result
in a determination of the issues without your further participation. All conferences
are set using Central Time (CT).
ENTERED August 23, 2019.
See IZA
Judge Dale Tipps
Court of Workers’ Compensation Claims
3
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.
LB-1099
EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers’ Compensation
www. tn.gov/labor-wid/weomp.shtml
wce.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
L] Medical benefits for current injury
LC Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): At Hearing: LJEmployer LJEmployee
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 *
rev. 10/18 Page 1 of 2 RDA 11082
Employee Name: SF#: DOI:
Appellee(s)
Appellee (Opposing Party): At Hearing: L]JEmployer 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,
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
, certify that | have forwarded a true and exact copy of this
[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
800-332-2667
AFFIDAVIT OF INDIGENCY
I, , 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: 2. Address:
3. Telephone Number: 4. Date of Birth:
5. Names and Ages of Ail Dependents:
Relationship:
Relationship:
Relationship:
Relationship:
6. lam 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. | receive or expect to receive money from the following sources:
AFDC $ per month beginning
ssl $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Comp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) 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 I 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
APPENDIX
Exhibits:
1. Dr. Murrell’s July 16, 2019 letter
Technical record:
1. Motion for Medical Treatment
Response to Motion to Have Employer Pay Medical Expenses
Response to Admission of the Purported Letter of Dr. Murrell
Petition for Benefit Determination
Dispute Certification Notice
July 3, 2018 Expedited Hearing Order
AMR WDS
CERTIFICATE OF SERVICE
I certify that a copy of the Expedited Hearing Order was sent as indicated on
August 23, 2019.
Name Certified | Fax | Via Service sent to:
Mail Email
Dale Hunter xX Dale. hunter29 @ yahoo.com
James Jones, Jr., xX attorneyjamesjones @ gmail.com
Employer’s Attorney
/) |
‘ Za Pi if A (Lan
Eb AMA — NaF
Penny/Shrum, “jerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk @tn.gov