White, Randy v. Boles Trucking ( 2016 )


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  •             TENNESSEE BUREAU OF WORKERS’ COMPENSATION
    WORKERS’ COMPENSATION APPEALS BOARD
    Randy White                                 )   Docket No. 2016-04-0074
    )
    v.                                          )
    )   State File No. 17376-2015
    Boles Trucking, et al.                      )
    )
    )
    Appeal from the Court of Workers’           )
    Compensation Claims                         )
    Robert V. Durham, Judge                     )
    Affirmed and Remanded – Filed November 14, 2016
    In this interlocutory appeal, the employee reported suffering two work-related injuries to
    his lower back. Although the employer accepted the compensability of the first injury
    and authorized medical care, it denied the compensability of the second injury and
    declined to authorize part of a surgical procedure recommended by the treating physician.
    Following an expedited hearing, the trial court determined the employee would likely
    prevail at a hearing on the merits with respect to the compensability of the second injury
    and ordered the recommended treatment as well as temporary disability benefits. The
    employer has appealed. Having concluded the evidence does not preponderate against
    the trial court’s determination, we affirm and remand this case for any further
    proceedings that may be necessary.
    Judge Timothy W. Conner delivered the opinion of the Appeals Board in which Judge
    Marshall L. Davidson, III, and Judge David F. Hensley joined.
    David M. Drobny, Nashville, Tennessee, for the employer-appellant, Boles Trucking
    Jill T. Draughon, Nashville, Tennessee, for the employee-appellee, Randy White
    1
    Memorandum Opinion1
    Randy White (“Employee”) worked for Boles Trucking (“Employer”) as a truck
    driver. On July 6, 2014, he suffered pain in his lower back while moving a valve at work.
    This claim was accepted as compensable, and Employee was treated by Dr. Juris
    Shibayama. After undergoing surgery on December 1, 2014 for his work-related injury,
    Dr. Shibayama released Employee to return to work without restrictions on January 15,
    2015.
    On February 11, 2015, Employee climbed onto the front tire of his truck to add
    antifreeze. As he was lowering himself to the ground, his foot slipped and he fell back,
    resulting in pain in his lower back and legs. He reported this incident to Employer within
    ten minutes of the occurrence. Employee testified that he felt “throbbing and burning” in
    his legs. Within several hours, he also reported experiencing numbness in his legs.
    Employer’s office manager, Chastity Boles, confirmed that Employee reported the
    incident, but testified that he reported experiencing “hurting and burning” in his legs for
    two days prior to the February 11 incident.
    Employee returned to Dr. Shibayama on February 24, 2015 and, in completing a
    “patient in-take” form, marked on a diagram of a human form two lines going down both
    legs to indicate the location of certain of his symptoms. However, Dr. Shibayama noted
    in his February 24 report that Employee reported no leg pain that day. When questioned
    about this discrepancy, Dr. Shibayama testified that he “probably disregarded the leg pain
    because he was more focused on the back pain.” After a course of physical therapy,
    injections, and several more office visits, Dr. Shibayama ordered an MRI that revealed
    spondylolisthesis at L4-5 “translating 4.5 mm with severe disc degeneration at L5-S1.”
    Dr. Shibayama also concluded that Employee’s spondylolisthesis was “exacerbated from
    his work related accident.” In June 2015, Dr. Shibayama released Employee to return to
    work with restrictions.
    Employee testified that he attempted to return to work for several months, but
    experienced persistent and increasing symptoms. He reported being unable to sit for long
    periods of time, difficulty walking long distances, difficulty using dollies, and missing
    work due to pain. Employee returned to Dr. Shibayama in January 2016 and asked about
    surgery. Employee testified that, at the time of the January 2016 examination, he
    complained, “I couldn’t do my job” and “I can’t stand to work.”
    Dr. Shibayama testified that Employee reported experiencing pain going down the
    back of his right leg in January 2016. An updated MRI revealed “spondylolisthesis at
    1
    “The Appeals Board may, in an effort to secure a just and speedy determination of matters on appeal and
    with the concurrence of all judges, decide an appeal by an abbreviated order or by memorandum opinion,
    whichever the Appeals Board deems appropriate, in cases that are not legally and/or factually novel or
    complex.” Appeals Bd. Prac. & Proc. § 1.3.
    2
    L4-5” and “post-surgical changes at L5-S1 on the left with some impingement on the
    right.” He described the latter finding as “new.” However, Dr. Shibayama also
    acknowledged that the spondylolisthesis “was not structurally changed on the MRI.” He
    recommended a “micro-discectomy at L5-S1 and a fusion at L4-5.” Although Employer
    expressed a willingness to authorize the micro-discectomy at L5-S1 as part of the 2014
    claim, it denied authorization for the recommended fusion surgery to address the
    spondylolisthesis at L4-5.
    Thereafter, Employee filed a petition for benefit determination, requesting
    additional medical treatment as recommended by Dr. Shibayama, as well as additional
    temporary disability benefits. At the expedited hearing, the parties stipulated that if the
    court found sufficient evidence that Employee was likely to prevail on the compensability
    of the 2015 accident and the need for medical treatment caused by that accident, then
    Employer would pay temporary disability benefits in accordance with statutory
    requirements. Following the expedited hearing, the trial court concluded that Employee
    “is likely to prevail at trial as to the issue of whether he sustained a fall at work that was
    the primary cause of the aggravation of his spondylolisthesis.” Accordingly, it ordered
    the additional medical treatment as recommended by Dr. Shibayama and temporary
    disability benefits. Employer has appealed.
    The dispositive issues in this case are whether the preponderance of the evidence
    submitted to date supports the trial court’s conclusion that Employee is likely to prevail at
    a hearing on the merits in proving (1) the compensability of the February 11, 2015
    accident, and (2) the causal relationship between that accident and the need for the
    recommended fusion surgery. As to the first issue, it is undisputed that Employee
    reported the February 11 incident, and his description of the event was corroborated by
    Employer. It is further undisputed that Employee was working without restrictions prior
    to that accident and had no difficulties performing his job. Moreover, Employee’s
    testimony regarding the severity of his symptoms after the accident was unrefuted.
    Under these circumstances, we have no difficulty concluding that the evidence
    preponderates in favor of the trial court’s determination that Employee is likely to prevail
    in proving a compensable accident occurring on February 11, 2015.
    The more difficult issue is whether the medical evidence supports a finding that
    Employee is likely to prevail in proving that the need for the fusion surgery arose
    primarily out of the employment. An injury “‘arises primarily out of and in the course
    and scope of employment’ only if it has been shown by a preponderance of the evidence
    that the employment contributed more than fifty percent (50%) in causing the injury,
    considering all causes.” Tenn. Code Ann. § 50-6-102(14)(B) (2015). When an employee
    alleges an aggravation of a pre-existing condition, the employee has the burden of
    proving that the aggravation arose primarily out of and in the course and scope of
    employment. See Tenn. Code Ann. § 50-6-102(14)(A).
    3
    However, at an expedited hearing, an employee need not prove entitlement to
    temporary disability or medical benefits by a preponderance of the evidence, but must
    establish that he or she “would likely prevail” in meeting the ultimate burden of proof at a
    hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(1) (2015); McCord v. Advantage
    Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9
    (Tenn. Workers’ Comp. App. Bd. Mar. 27, 2015).
    Here, Dr. Shibayama was the only medical expert to testify. In addition to his
    deposition testimony, his medical records were admitted into evidence. While aspects of
    this evidence could be interpreted to support either party’s position, the trial court
    carefully weighed the evidence and concluded that Employee was likely to prevail in
    establishing that the February 11, 2015 accident was the primary cause of the aggravation
    of his pre-existing spondylolisthesis. While reasonable minds may view the same
    evidence differently, we cannot conclude that the trial court erred in its weighing of the
    medical evidence in light of the lesser standard of proof applicable at an expedited
    hearing.
    We note Employer’s argument that the radiological proof, consisting of MRI films
    taken before and after the February 11, 2015 accident, revealed no anatomical change in
    Employee’s spondylolisthesis according to Dr. Shibayama. However, Dr. Shibayama
    also testified that “the condition was exacerbated . . . to the point where treatment and
    now surgery is necessary.” He further explained that Employee’s spondylolisthesis was
    previously asymptomatic and the February 11 accident “increased the instability between
    L4 and L5, which [exacerbated] his symptoms.” Although the expert medical proof is
    close on this issue, we conclude that the trial court did not err in finding Employee is
    likely to prevail in establishing a compensable aggravation at a trial on the merits.
    Conclusion
    For the foregoing reasons, we hold that the evidence does not preponderate against
    the trial court’s decision at this interlocutory stage of the case. Nor does the trial court’s
    decision violate any of the standards set forth in Tennessee Code Annotated section 50-6-
    217(a)(3). Accordingly, the trial court’s decision is affirmed, and the case is remanded
    for any further proceedings that may be necessary.
    4
    TENNESSEE BUREAU OF WORKERS’ COMPENSATION
    WORKERS’ COMPENSATION APPEALS BOARD
    Randy White                                              )   Docket No.   2016-04-0074
    )
    v.                                                       )   State File No. 17376-2015
    )
    Boles Trucking, et al.                                   )
    CERTIFICATE OF SERVICE
    I hereby certify that a true and correct copy of the Appeals Board’s decision in the
    referenced case was sent to the following recipients by the following methods of service
    on this the 14th day of November, 2016.
    Name                    Certified   First Class   Via   Fax      Via     Email Address
    Mail        Mail          Fax   Number   Email
    Jill T. Draughon                                                   X     JDraughon@hughesandcoleman.com
    David M. Drobny                                                    X     ddrobny@manierherod.com
    Robert V. Durham,                                                  X     Via Electronic Mail
    Judge
    Kenneth M. Switzer,                                                X     Via Electronic Mail
    Chief Judge
    Penny Shrum, Clerk,                                                X     Penny.Patterson-Shrum@tn.gov
    Court of Workers’
    Compensation Claims
    Matthew Salyer
    Clerk, Workers’ Compensation Appeals Board
    220 French Landing Dr., Ste. 1-B
    Nashville, TN 37243
    Telephone: 615-253-1606
    Electronic Mail: Matthew.Salyer@tn.gov
    

Document Info

Docket Number: 2016-04-0074

Judges: Marshall L. Davidson III, David F. Hensley, Timothy W. Conner

Filed Date: 11/14/2016

Precedential Status: Precedential

Modified Date: 1/10/2021