Burton, Darnell v. Memphis Light, Gas & Water , 2019 TN WC 105 ( 2019 )

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
DARNELL BURTON, ) Docket No. 2018-08-1370
Employee, )
V. )
MEMPHIS LIGHT, GAS & WATER, __)_ State File No. 96632-2017
Employer, )
and )
ABIGAIL HUDGENS, as )
ADMINISTRATOR of the BUREAU ) Judge Deana Seymour
OF WORKERS’ COMPENSATION, __ )
SUBSEQUENT INJURY AND )
VOCATIONAL RECOVERY FUND. _ )
EXPEDITED HEARING ORDER
The Court convened an Expedited Hearing on July 10, 2019, to determine whether
Memphis Light, Gas & Water should provide Darnell Burton additional medical benefits
for complaints allegedly stemming from a work-related motor vehicle accident. MLGW
argued it provided all benefits to which Mr. Burton is entitled and contended his current
complaints are not primarily related to the accident. The Court holds Mr. Burton is not
likely to prevail at trial regarding his claim for additional medical benefits at this time.
History of Claim
Mr. Burton worked as an operator for MLGW. On December 14, 2017, he injured
his right knee and low back following an accident in a company vehicle. MLGW
provided a panel of physicians from which he chose Dr. F. Gregory Wolf.
Dr. Wolf treated Mr. Burton’s right knee and back with medication, physical
therapy, and epidural steroid injections. He ordered a lumbar MRI, which revealed no
acute abnormalities but showed multilevel degenerative changes. On February 28, 2018,
he released Mr. Burton at maximum medical improvement. According to Dr. Wolf, Mr.
Burton was “basically back to baseline” and retained no permanent impairment to his
knee or back.
In August, Mr. Burton returned to Dr. Wolf with continued complaints of low-
back pain. Dr. Wolf prescribed additional medication, placed Mr. Burton on restricted
work duty, and instructed him to return in two weeks.
Before he returned, MLGW provided Dr. Wolf with medical records from Mr.
Burton’s primary care physician, which indicated that he complained of low-back pain
and radiation into both legs since 2014. MLGW then asked Dr. Wolf whether Mr.
Burton’s December 14, 2017 work injury contributed more than fifty percent to his
current symptoms. He said “no” and indicated a pre-existing condition, injury, or
degenerative condition caused his complaints. MLGW denied further treatment based on
this response, and Mr. Burton sought treatment on his own.
The treatment included additional physical therapy and epidural steroid injections
from Dr. Andrew Crenshaw, whose October 4, 2018 office note indicated low-back and
bilateral leg pain that began “a couple of years” before.
Later, Mr. Burton saw Dr. Keith Williams, who diagnosed chronic back pain. Dr.
Williams noted that he mentioned back pain “throughout the years,” which worsened
after his December 14, 2017 motor vehicle accident. Another lumbar MRI showed
multilevel foraminal stenosis, disc bulging and facet hypertrophy that caused mild L2-3
and moderate L3-4 central canal stenosis.
Mr. Burton asked the Court to order MLGW to provide additional medical
treatment for his low back. He contended his symptoms worsened after Dr. Wolf released
him to full duty and now they affect his ability to work. He argued the accident caused
his condition and suggested the strenuous activities at work aggravated it.
MLGW argued it provided Mr. Burton with all benefits to which he is entitled. It
relied on Dr. Wolf’s opinion that Mr. Burton’s current complaints were not primarily
related to his work accident. It further claimed that Mr. Burton complained of low-back
pain and radiation into his legs since 2014 but failed to mention those symptoms to Dr.
Wolf.
Findings of Fact and Conclusions of Law
At an Expedited Hearing, Mr. Burton must provide sufficient evidence that he is
likely to prevail at a hearing on the merits. McCord v. Advantage Human Resourcing,
2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). Specifically,
resolution of the present issue turns on whether Mr. Burton established that the accident
or his physical work duties following his release to full duty primarily caused or
aggravated his lumbar spine condition and led to his current complaints.
To prevail, Mr. Burton must prove that his condition “arose primarily out of and in
the course and scope of employment” or that he suffered an aggravation of a pre-existing
condition that “arose primarily out of and in the course and scope of employment.” Tenn.
Code Ann. § 50-6-102(14)(A) (2018). 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). Medical evidence is
generally required to establish a causal relationship, except in the most “obvious, simple
[or] routine cases.” Berdnik v. Fairfield Glade Cmty. Club, 2017 TN Wrk. Comp. App.
Bd. LEXIS 32, at *10-11 (May 18, 2017).
To establish an aggravation of a pre-existing condition, Mr. Burton must present
expert medical evidence that the work incident “contributed more than fifty percent” in
causing his need for medical treatment of the pre-existing condition when considering all
other potential causes. Tenn. Code Ann. § 50-6-102(14)(C)-(D); Miller v. Lowe’s Home
Centers, Inc., 2015 TN Wrk. Comp. App. Bd. LEXIS 40, at *13 (Oct. 21, 2015). The
opinion of the treating physician, selected by the employee from the employer’s
designated panel of physicians under § 50-6-204(a)(3), shall be presumed correct on the
issue of causation, but this presumption shall be rebuttable by a preponderance of the
evidence. Tenn. Code Ann. § 50-6-102(14)(E).
Applying these legal principles, Mr. Burton selected Dr. Wolf from MLGW’s
designated panel of physicians. According to Dr. Wolf, Mr. Burton’s December 14, 2017
work injury did not contribute more than fifty percent to his current symptoms when
considering all other potential causes. MRIs of Mr. Burton’s lumbar spine revealed no
acute abnormalities but showed multilevel degenerative changes. Moreover, medical
records from his PCP indicate that he complained of low-back pain and radiation into
both legs since 2014. While Mr. Burton argued he was able to perform his job duties
without difficulty before his accident, he did not submit any medical evidence to oppose
Dr. Wolfs opinion or to establish a work-related aggravation of a pre-existing condition
causing his current symptoms.
For these reasons, Mr. Burton is not likely to prevail at a hearing on the merits on
his request for additional medical benefits.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Burton’s request for medical benefits is denied at this time.
2. This case is set for a telephonic Status Hearing on August 26, 2019, at 9:30
a.m. Central Time. You must call toll-free at 866-943-0014 to participate in the
hearing.
ENTERED July 12, 2019.
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Judge Deana C. Seymour
Court of Workers’ Compensation Claims
APPENDIX
Technical record:
TRI. Petition for Benefit Determination
TR2. Dispute Certification Notice
TR3. Show Cause Order
TR4. Request for Expedited Hearing, with Mr. Burton’s affidavit
TR5. Transfer Order
TR6. Order on Show Cause Hearing and Setting Expedited Hearing
TR7. Employer’s Response in Opposition to Employee’s Request for Expedited Hearing
Exhibits:
1. Employer’s First Report of Work Injury
2. Employee’s Choice of Physician
3. Wage Statement
4, Medical records filed by Mr. Burton
5. Medical records filed by MLGW
6. Medical bills and prescription costs
7. Dispute Certification Notice
8. Automobile Accident Report
9, Summary of Mr. Burton’s December 16, 2017 statement
10. _ Brake Inspection Report
11. Tennessee Department of Safety & Homeland Security documents (Collective)
12. City Court Clerk report
13. MLGW’s Response in Opposition to Employee’s Request for Expedited Hearing,
with attachments
14.
X-ray report dated July 8, 2014
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on July 12, 2019.
Name Certified | Via Via Service sent to:
Mail US. Email
Mail
Darnell Burton, 4 4 X | 4816 Berrydale Ave.
Employee Memphis, TN 38118
darnellburton62 @ gmail.com
Sean Hunt, xX sean @thehuntfirm.com
Employer’s Attorney
Timothy Kellum, X | tmothy.kellum @tn.gov
SIF Attorney
/) | /
f Lipa | PUL tee
Penny Shrujy, Court Clerk
Court of Workers’ Compensation Claims
WC.CourtClerk @ tn.gov
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