The opinion
FILED
Jan 19, 2024
12:05 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT COOKEVILLE
JEFFERY EMERSON, ) Docket No. 2021-04-0282
Employee, )
v. ) State File No. 12856-2021
CITY OF COOKEVILLE, )
Employer. ) Judge Brian K. Addington
EXPEDITED HEARING ORDER
Jeff Emerson worked as firefighter for the City of Cookeville, Tennessee for twenty-
four years. During his employment, he developed colorectal cancer and filed a claim for
workers’ compensation benefits, which Cookeville eventually denied. The question is
whether Mr. Emerson’s work was the primary cause of his cancer. The Court held a hearing
on January 9, 2024, and holds that Mr. Emerson is not likely to prove that his work was
the primary cause of his cancer.
Claim History
As part of his job with Cookeville, Mr. Emerson underwent yearly physicals by Dr.
Toney Hudson through its voluntary program. Unfortunately, in November 2021, a colon
cancer screen detected cancerous cells, and Mr. Emerson notified Cookeville.
Dr. Hudson referred Mr. Emerson to a gastroenterologist for a colonoscopy, which
found cancer. The gastroenterologist referred Mr. Emerson to oncologist Dr. Algis Sidrys,
who ordered chemotherapy and radiation, and now Mr. Emerson’s cancer is in remission.1
After receiving notice, Cookeville offered Mr. Emerson a panel, and he chose Dr.
Hudson. Cookeville asked Dr. Hudson for a causation opinion on Mr. Emerson’s cancer.
Dr. Hudson responded that another oncologist, Dr. Venumada Kotla, would be better suited
to give an opinion.
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Mr. Emerson received this care through his personal health insurance.
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At Cookeville’s request, Dr. Kotla saw Mr. Emerson and gave a causation
statement. He wrote: “In my best clinical judgment, it would not be possible to assign a
numerical risk of causation of 50% or more given the limitations of available epidemiologic
data.” He assigned the causative effect of Mr. Emerson’s work on his cancer at thirty
percent. Cookeville denied Mr. Emerson’s claim based on the assessment.
In response, Mr. Emerson asked Dr. Sidrys to address causation. Dr. Sidrys noted:
Given the lack of other risk factors for Mr. Emerson and given the clear proof
that firefighters are at an increased risk of GI cancers, specifically rectal
cancers, I do believe that Mr. Emerson’s employment as a fireman has a
significant (greater than 51%) chance of having been a causative agent in his
malignancy.
(Emphasis added).
Mr. Emerson testified that he was exposed to toxins from structure, vehicle, and
brush fires. He gave approximate monthly numbers for each type of incident. He said that
he ate grilled red meat in moderation and drank from twelve to twenty beers a week. He
quit smoking fourteen years ago but smoked a pack and a half daily before. He testified
that during his employment, he often got soot on his work uniform, was exposed to diesel
exhaust fumes, and inhaled smoke from various types of fires. He said that he regularly
exercised to stay in shape for his job. He requested medical and temporary benefits for his
injury.
Cookeville, through the affidavit of its human resource director, asserted that Dr.
Kotla was Mr. Emerson’s authorized treating physician, and that it had properly denied his
claim after Dr. Kotla gave his opinion.
The parties also obtained expert medical opinions from two other physicians, Dr.
Danny Whu (Mr. Emerson), and Dr. Sarkis Chobanian (Cookeville). Both doctors
acknowledged that they do not know the cause of Mr. Emerson’s cancer but gave their
opinion based on risk factors to which they believed his work exposed him.
Dr. Whu is a retired firefighter and physician who serves as the Chief Medical
Officer of the International Association of Firefighters. He is an advocate for firefighters
across the nation. He prepared a report on Mr. Emerson’s cancer and testified by
deposition.
In his report, he stated he reviewed literature on the subject, Mr. Emerson’s
treatment records, and colorectal cancer generally. He found an absence of non-work-
related risk factors and pointed out Mr. Emerson’s job exposed him to multiple
carcinogens. He ended his report by saying “his occupation as a fire fighter resulted in a
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numerical risk value greater than 51% specific to his development of rectal cancer.” He
also equated Mr. Emerson’s exposure to “easily” greater than 51% and then explained that
Tennessee law does not require a preponderance of evidence because the law provides a
presumption that his cancer was caused by his work. He also stated that the benefit of the
doubt should be found in Mr. Emerson’s favor.2
Dr. Whu further testified that in his job he advocates for firefighters to receive the
benefits they were due and testified before legislative bodies to help accomplish the unions
goals. He firmly stated that Mr. Emerson’s job was the primary risk that caused his cancer
and discounted other risk factors.
Dr. Chobanian is a board-certified gastroenterologist. He has performed over
100,000 colonoscopies in his career. Cookeville paid Dr. Chobanian a significant fee for
his time spent on the file and his trial testimony.
He testified in person that more likely Mr. Emerson’s colorectal cancer was caused
by the adenoma-carcinoma sequence, in which a colon lining cell mutates and becomes
more and more abnormal until it becomes cancerous. He excluded genetic causes because
pathologists found none during Mr. Emerson’s treatment. He noted that Mr. Emerson’s
colon contained another non-cancerous polyp, which the surgeon removed, different from
the cancer in his lower colon ̶ which shows the process had also started in the front of his
colon. He acknowledged Mr. Emerson’s risk factor as a firefighter and determined that his
firefighting duties may have increased his risk of cancer but did not cause it. He also
discussed Mr. Emerson’s drinking and smoking and pointed out that they were significant
risk factors as well.
Findings of Fact and Conclusions of Law
Mr. Emerson must show that he would likely prevail at a hearing on the merits that
his cancer and need for treatment arose primarily out of and in the course and scope of his
employment. Tenn. Code Ann. §§ 50-6-239(d)(1), 50-6-102(12) (2023). Specifically, he
must show “to a reasonable degree of medical certainty that [the work] contributed more
than fifty percent (50%) in causing the . . . disablement or need for medical treatment,
considering all causes.” “Shown to a reasonable degree of medical certainty” means that,
in the opinion of the treating physician, it is more likely than not considering all causes as
opposed to speculation or possibility. Id. at -102(12)(C)-(D).
For his part, Mr. Emerson testified credibly about his employment and exposure to
various toxins in the smoke from fires, soot that collected on his gear, and diesel exhaust
fumes from the firetruck engines in the firehouse garage. He testified about the
2
Dr. Whu’s testimony about presumptions in the workers’ compensation law is inaccurate. The Court relies
on his report solely as to his understanding of Tennessee workers’ compensation law.
3
approximate times he fought structure fires, vehicle fires, and vegetation fires. However,
he did not supply exact information of this nature for the experts to consider. He also
testified about his diet, weight, smoking, and alcohol intake.
For medical causation, both parties relied on experts to support their contentions.
All four experts were competent to testify about Mr. Emerson’s condition. 3 However,
neither Dr. Sidrys or Kotla fully explained how they reached their conclusions, based on
the information they received from Mr. Emerson and from medical studies.
Dr. Whu provided helpful insight about firefighting and exposure to toxins.
However, he is an advocate for firefighters nationwide, and his testimony can be construed
as biased in favor of Mr. Emerson by that very role. He also did not have a correct
understanding of the Tennessee Workers’ Compensation Law, nor is he qualified to testify
as to what the law means. For these reasons, the Court gives little weight to his causation
analysis.
Although Cookeville paid Dr. Chobanian well for his opinion, he was unbiased as
to his causation analysis. He reviewed each risk factor and testified that some were
mitigated, and others were more serious. He reasoned that it is impossible to say for sure
what caused Mr. Emerson’s cancer but most likely the major cause was the adenoma-
carcinoma sequence.
In summary of the experts’ causation opinions, Dr. Sidrys stated that Mr. Emerson’s
job had a significant chance of being “a” causative agent of his cancer. (Emphasis added.)
He did not say that his job “primarily” caused his cancer but only that it was a main risk,
and the opinion contains an impermissible degree of speculation. Dr. Kotla assigned a
thirty-percent risk to his job as causing Mr. Emerson’s cancer but did not adequately
explain how arrived at this numeric value. It too seems speculative. Dr. Whu assigned over
fifty-one percent, but as explained above his opinion carries little weight. In contrast, Dr.
Chobanian, whom the Court fully accredits, considered the risk factors and assigned them
an appropriate weight. He found that Mr. Emerson’s job was not the primary risk factor of
his cancer.
Under these circumstances, the Court finds that Mr. Emerson’s job increased the
risk of him getting colorectal cancer, but the weight of the evidence does not establish that
Mr. Emerson’s job was the primary cause. The Court holds he is unlikely to prevail at a
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Cookeville made two evidentiary objections to Mr. Emerson’s medical experts. First, the City moved to
exclude Dr. Sidrys’s and Dr. Whu’s testimony due to speculation. The Court overrules the motion, as both
doctors explained that they did not just speculate but evaluated the risk factors for Mr. Emerson’s condition.
Second, Cookeville moved to exclude Dr. Whu’s testimony based on a violation of Tennessee Rules of
Civil Procedure 34.02 (2023) and his unauthorized investigation of fire stations. Neither Mr. Emerson nor
his attorney asked Dr. Whu to conduct these investigations. Dr. Whu did not obtain permission from
Cookeville’s attorney to conduct the investigation. The Court grants the motion in part and excludes only
his testimony about and pictures of his investigation of the local fire stations.
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hearing on the merits in proving that his cancer and the need for treatment arose primarily
out of and in the course and scope of his employment.
IT IS THEREFORE ORDERED as follows:
1. Mr. Emerson’s claim against the City of Cookeville for the requested benefits is
denied at this time.
2. The Court sets a Status Hearing on March 19, 2024, at 9:00 a.m. Central. The
parties must call 855-543-5044 to participate in the hearing.
ENTERED January 19, 2024.
/s/ Brian K. Addington
______________________________________
JUDGE BRIAN K. ADDINGTON
Court of Workers’ Compensation Claims
APPENDIX
Exhibits
1. Mr. Emerson’s Affidavits
2. Wage Statement
3. Physician Panel
4. Notice of Denial
5. Transcribed Statement of Mr. Emerson
6. Job Description
7. Employment records
8. Carl Sells’s affidavit
9. Medical Bills
10. Stipulated Medical Records
11. Dr. Sidrys’s deposition
12. Dr. Kotla’s deposition
13. Stipulated transcript of the previous expedited hearing
14. Dr. Whu’s deposition volume 1
15. Dr. Whu’s deposition volume 2
16. CV Dr. Chobanian
17. Dr. Chobanian’s causation report
18. Tobacco Use and Colon Cancer abstract.
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Technical Record
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Transfer Order
4. Hearing Request
5. Motion for Scheduling Order Prior to Expedited Hearing
6. Order Setting Expedited Hearing
7. Employer’s Plain Concise Statement Why Relief Requested Should Not be
Granted
8. Employer’s Witness and Exhibit List
9. Employee’s Notice of Filing Exhibit/Witness List
10. Employee’s Response to Employer’s Plain and Concise Statement
11. Order Granting Extension of Deadline
12. Motion to Exclude Testimony on the issue of Medical Causation by Dr. Sidrys
13. Order Continuing Expedited Hearing
14. Employee’s Response to Employer’s Motion to Exclude Testimony of Dr. Sidrys
with Respect to his Causation Opinion
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent on January 19, 2024.
Name Certified Fax Email Service sent to:
Stephan Karr, X steve@flexerlaw.com
Employee’s Attorney cindy@flexerlaw.com
meredith@flexerlaw.com
Richard Lane Moore, X lane@moorerader.com
Employer’s Attorney jenna@moorerader.com
______________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
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NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________
Employer
Notice is given that ____________________________________________________________________
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ Other Order filed on_____________________
issued by Judge _________________________________________________________________________.
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
Parties
Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee
Address: ________________________________________________________ Phone: ___________________
Email: __________________________________________________________
Attorney’s Name: ______________________________________________ BPR#: _______________________
Attorney’s Email: ______________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________
Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee
Appellee’s Address: ______________________________________________ Phone: ____________________
Email: _________________________________________________________
Attorney’s Name: _____________________________________________ BPR#: ________________________
Attorney’s Email: _____________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, _____________________________________________________________, certify that I have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the __________ day of ___________________________________, 20 ____.
______________________________________________
[Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082