Malone, Torrey v. NIssan North America, Inc. , 2021 TN WC 239 ( 2021 )

FILED
Nov 03, 2021
01:37 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION CLAIMS
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
TORREY MALONE, ) Docket No. 2021-05-0255
Employee, )
v. )
)
NISSAN NORTH AMERICA, INC., ) State File No. 15450-2021
Employer, )
And )
)
SAFETY NAT. CAS. CORP., ) Judge Dale Tipps
Carrier. )
EXPEDITED HEARING ORDER DENYING BENEFITS
This case came before the Court on October 28, 2021, for an Expedited Hearing on
whether Mr. Malone is likely to prove at trial that he is entitled to medical treatment for his
carpal tunnel syndrome. For the reasons below, the Court cannot find he is likely to prove
that his condition arose primarily out of his employment. The Court must therefore deny
his request for benefits.
History of Claim
After working a production job at Nissan for several years, Mr. Malone developed
pain in his right hand. He reported the problem and received a panel of physicians, from
which he selected Dr. Terri Walker.
Dr. Walker examined Mr. Malone and assessed carpal tunnel syndrome and overuse
tendonitis. Although she noted other personal risk factors, she said that his work activities
were “more likely . . . the primary cause of his current condition by greater than 50%.” She
placed Mr. Malone on light duty, prescribed a splint, and ordered physical therapy. When
he failed to improve, Dr. Walker ordered an x-ray and EMG/NCS testing. These tests
confirmed carpal tunnel syndrome, and Dr. Walker referred Mr. Malone to Dr. Jeffery
Kutsikovich “for further evaluation, treatment and final causation.”
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Dr. Kutsikovich also diagnosed carpal tunnel syndrome and recommended surgery.
However, he wrote:
Given the EMG nerve study and his lack of improvement with time off work,
in addition to the etiology of carpal tunnel syndrome, I believe that this is
less likely than not related to his work at Nissan. There is less than 50%
chance that his job is the primary cause of his carpal tunnel syndrome.
Based on Dr. Kutsikovich’s causation opinion, Nissan denied the claim.
Mr. Malone then sought treatment on his own from Dr. James Wiseman, who also
diagnosed carpal tunnel syndrome and recommended surgery. Dr. Wiseman agreed with
Dr. Walker’s causation opinion and said that the nerve compression was due to Mr.
Walker’s work and his frequent use of the right hand and wrist. He specified, “I think it is
greater than 51% that it is due to his work.”
Nissan sent Dr. Wiseman’s notes to Dr. Walker, along with Dr. Kutsikovich’s
records and a document authored by the Bureau Medical Director entitled “Important
Information for Physicians to Understand Before Responding to Questions on ‘Causation’
in Workers’ Compensation Cases.” Dr. Walker then provided a lengthy response to
Nissan’s questions about her causation opinion. That response included the following:
I initially thought that the force, vibration and repetitive nature of his work
activities and the fact that he potentially had swelling due to overuse were
specific causes of CTS; but after review of the literature there is no indication
that this is the case. After review of the literature and the possible causes of
CTS, personal risk factors seem to be more causative for CTS than any work-
related activities. . . . There is no doubt that Mr. Torrey’s [sic] work
activities at Nissan involve some repetitive activities, force and vibration, but
the research does not support this as being a significant cause of CTS. . . .
After reviewing the evidence based data, and not relying on opinion or
speculation, I feel that his work activities at Nissan more likely brought on
his symptoms but are not likely to have caused the condition by greater than
50% given research based evidence of stronger associations of genetics, age,
obesity and other personal risk factors.
At the hearing, Mr. Malone requested medical treatment, specifically the surgery
recommended by both Dr. Kutsikovich and Dr. Wiseman. Nissan contended that Mr.
Malone is not entitled to benefits because he did not prove that his injury was primarily
caused by work.
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Findings of Fact and Conclusions of Law
Mr. Malone must provide 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) (2020); 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. Malone must show that his alleged injuries
arose primarily out of and in the course and scope of his employment. This includes the
requirement that he must show, “to a reasonable degree of medical certainty that [the
incident] 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. See Tenn. Code Ann. § 50-
6-102(14).
In this case, the Court is faced with three medical opinions. Dr. Wiseman said that
Mr. Malone’s carpal tunnel syndrome is most likely work related; Drs. Walker and
Kutsikovich said it was not.
Because Mr. Malone selected her from a panel of physicians, Dr. Walker’s opinion
is presumed to be correct. See Tenn. Code Ann. § 50-6-102(14)(E). The question,
therefore, is whether the preponderance of the evidence would be sufficient to rebut that
presumption at trial.
The only medical proof supporting Mr. Malone’s claim is Dr. Wiseman’s short
statement that he agreed with Dr. Walker’s original opinion and that he thought the carpal
tunnel syndrome was due to Mr. Malone’s work. However, unlike Dr. Walker’s later
effort, he failed to provide any detailed explanation as to how he reached that conclusion
or how it was supported by the facts and literature. Without more information, the mere
existence of a contrary opinion is insufficient for the Court to find the presumption rebutted
by a preponderance of the evidence.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Malone’s claims against Nissan for medical and temporary disability benefits
are denied at this time.
2. This case is set for a Scheduling Hearing on January 13, 2022, at 9:00 a.m. You
must call toll-free at 855-874-0473 to participate. Failure to call might result in a
determination of the issues without your further participation. All conferences are
set using Central Time.
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ENTERED November 3, 2021.
_____________________________________
Judge Dale Tipps
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Mr. Malone’s Rule 72 statement
2. Nissan’s indexed exhibits
3. Dr. James Wiseman’s treatment notes
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Nissan’s Response to Employee’s Request for Expedited Benefits
CERTIFICATE OF SERVICE
I certify that a copy of the Expedited Hearing Order was sent as indicated on
November 3, 2021.
Name Certified Fax Email Service sent to:
Mail
Torrey Malone, X X 643 E. Jefferson St.
Employee Pulaski, TN 38478
twmalone34@gmail.com
Steven Morton, X stephen.morton@mgclaw.com
Employer’s Attorney
_____________________________________
Penny Shrum, Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
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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: “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.
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