Craig, Ronnie v. Memphis Light, Gas & Water , 2019 TN WC 165 ( 2019 )

FILED
Nov 22, 2019
01:52 PM(CT)
TENNESSEE COURT OF
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
RONNIE CRAIG, ) Docket No. 2017-08-0862
Employee, )
) State File No. 25414-2017
)
Vv. ) Judge Allen Phillips
MEMPHIS LIGHT, GAS & WATER, )
Self-Insured Employer. )
COMPENSATION HEARING ORDER
This case came before the Court for a Compensation Hearing on November 4,
2019. The issue is whether Mr. Craig proved by a preponderance of the evidence that his
injury arose primarily out of his employment. For the reasons below, the Court holds he
did not and dismisses the case.
History of Claim
Mr. Craig claimed he injured his back in a fall on March 29, 2017. MLG&W did
not dispute the incident and provided him a panel of physicians. When he saw the initial
provider, Mr. Craig reported only the work injury and no other back problems. The
provider recommended an orthopedic evaluation, and MLG&W provided a panel of
orthopedic surgeons. Mr. Craig chose Dr. Gregory Wolf.
At his first visit with Dr. Wolf, Mr. Craig reported the work injury but denied
“previous difficulties.” Dr. Wolf also noted a “23-point system review” mentioned only
that Mr. Craig gave a history of hypertension. Based on the history, Dr. Wolf believed the
“mechanism of [the work incident] matched the reported complaints” and said Mr.
Craig’s condition was “100% work related.” He also restricted Mr. Craig from work.
Later, while investigating the claim, MLG&W obtained records from Dr. Phillip
Northcross, Mr. Craig’s primary care physician. Those records indicated Mr. Craig saw
Dr. Northcross for back pain on several occasions, beginning in 2016 and continuing
1
WORKERS' COMPENSATION
until March 28, 2017, the day before the work incident. MLG&W presented these records
to Dr. Wolf and also told him that Mr. Craig denied any previous back problems when he
gave his recorded statement. After learning that information, Dr. Wolf changed his
opinion that Mr. Craig’s condition was 100% work-related, instead stating that Ms.
Craig’s condition was “60% pre-existing and 40% work-related.” Based on Dr. Wolf’s
revised opinion, MLG&W terminated Mr. Craig’s benefits.
After the termination of benefits, Mr. Craig deposed Dr. Northcross on August 20,
2018. Dr. Northcross testified that Mr. Craig complained of “episodic” back pain in 2016,
leading to diagnoses of a lumbar strain. However, on March 23, 2017, Dr. Northcross
said he changed his diagnosis to “acute lumbar back pain with radiculopathy.” He
continued that diagnosis the next week, on March 28, the day before the incident at
MLG&W. As to the cause of Mr. Craig’s injury, Dr. Northcross testified that the
symptoms were “commiserate [sic] with” the work incident. However, to the extent that
the radiculopathy resulted from a herniated disc, Dr. Northcross said it was only “a
possibility” that the herniation existed before the incident, adding that it was “just
difficult to say” that it did. There was no record of Dr. Northcross restricting Mr. Craig
from work.
On August 27, 2018, the Court conducted an Expedited Hearing. There, Mr. Craig
downplayed his previous back problems, claiming they caused only minor back pain,
unlike the pain he had after the incident. He asserted that he denied previous back
difficulties when Dr. Wolf asked because he thought difficulties meant “injuries” and he
had not suffered any. He further contended that he missed no work before the incident but
was unable to work after it. Finally, he argued that Dr. Wolf “would have to admit,” if he
were deposed, that the symptoms he now suffers resulted from the work incident.
For its part, MLG&W questioned Mr. Craig’s credibility. Specifically, it argued
his purported belief that questions about previous “difficulties” meaning only “injuries”
was disingenuous. Further, it was only because of that inaccurate history that Dr. Wolf
said Mr. Craig’s condition was “100%” to his work. Thus, MLG&W argued Dr. Wolf’s
latter opinion was more accurate and was presumed correct because Mr. Craig chose Dr.
Wolf from a panel. See Tenn. Code Ann. 50-6-102(14)(E) (2019).
After the Expedited Hearing, the Court held Mr. Craig did not offer sufficient
evidence that he would prevail at a hearing on the merits and denied his request for
benefits. Specifically, the Court found Dr. Wolf’s second causation opinion was correct
because it was based on an accurate history. Further, Dr. Northcross offered no more than
a possibility of when Mr. Craig’s anatomic condition occurred.
After the Expedited Hearing, Mr. Craig deposed Dr. Wolf regarding his revised
causation opinion. Dr. Wolf provided the following pertinent testimony:
e “[I]t appears Mr. Craig was pretty miserable with . . . symptoms the week
prior to his injury .. . So in light of that, I think it’s reasonable to say that
this problem preexisted his injury.”
e “I see your point in terms of me having taken him off of work and [Dr.
Northcross] not having taken him off work. . . but it’s just hard to ignore
the fact that . . . he was literally being seen for this the day before and the
week before for this same problem. . . And that’s kind of where I came up
with my 60/40 number. . . So I do think the fall contributed to this, but he
obviously was having this pain [before]. . . So I’m just kind of sticking with
my 60/40 determination.”
e “I do feel the fall made his symptoms worse. But I also feel that, you
know, he was having the symptoms prior to his injury.”
e “[Mly opinion at the time and it still is the opinion that it’s more of a 60/40
thing . . . and the pain radiating down his leg preexisted his injury, which to
me indicates that he had these disc issues prior to his injury.”
At the Compensation Hearing, Mr. Craig offered the deposition of Dr. Wolf, and
the parties agreed to readmission of Dr. Northcross’s deposition. As at the Expedited
Hearing, Mr. Craig testified the work incident worsened his condition, and he again
attributed his disability and need for medical treatment to it. MLG&W relied on Dr.
Wolfs opinion.
Findings of Fact and Conclusions of Law
Standard applied
Mr. Craig has the burden of proof on all essential elements of his claim. Scott v.
Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18,
2015). At a compensation hearing, he must establish those elements by a preponderance
of the evidence. Tenn. Code Ann. § 50-6-239(c)(6).
Analysis
The essential element at issue is causation. To prevail on that issue, Mr. Craig
must establish his injury, or any aggravation of a pre-existing condition, arose primarily
out of his employment. Tenn. Code Ann. § 50-6-102(14). To do so, he must show his
employment “contributed more than fifty percent (50%) in causing the injury,
considering all causes.” Tenn. Code Ann. § 50-6-102(14)(B). He must show that
contribution “to a reasonable degree of medical certainty,” which means that “in the
opinion of the physician, it is more likely than not considering all causes, as opposed to
| speculation or possibility.”" Tenn. Code Ann. § 50-6-102(14)(C)--&(D).
Dr. Wolf testified that the incident at MLG&W contributed only 40% in causing
Mr. Craig’s injury. Despite repeated questioning by Mr. Craig, he did not recant that
opinion. Therefore, Mr. Craig cannot rely upon Dr. Wolfs opinion to establish causation.
Further, Dr. Northcross offered no more than a possibility as to when the anatomic
condition occurred. Therefore, the Court holds Mr. Craig did not establish by a
preponderance of the evidence that his injury arose primarily out of his employment and
dismisses the case.
IT IS, THEREFORE, ORDERED as follows:
1. This case is dismissed with prejudice to its refiling.
2. The Court assesses the $150.00 filing fee to MLGW to be paid to the Court Clerk
within five business days of this order becoming final under Tennessee
Compilation Rules and Regulations 0800-02-21-.06, for which execution may
issue if necessary.
3. Absent an appeal, this order shall become final thirty days after issuance.
4. MLGW shall file a Statistical Data Form (SD-2) with the Court Clerk within five
business days of the date this order becomes final.
wT
Judge llen Py:
Court of Workers AG ompensation Claims
ENTERED November 22, 2019.
APPENDIX
Exhibits:
Deposition of Dr. Gregory Wolf
Deposition of Dr. Philip Northcross
Wage Statement
Choice of Physician Form (Baptist Minor Medical)
Choice of Physician Form (Dr. Wolf)
CD of Mr. Craig’s recorded statement
An RW >
Technical record:
Post-Discovery Dispute Certification Notice
Scheduling Order
Employer’s Exhibit List
Employer’s Witness List
Employer’s Pre-Hearing Statement
Order of Continuance and Setting Status Hearing
Order Resetting Compensation Hearing
SS te he
CERTIFICATE OF SERVICE
I certify that a copy of this Compensation Hearing Order was sent as indicated on
November 22, 2019.
Name Certified First Via Service Sent To:
Mail Class | Email
Mail
Christopher L. Taylor, X | ctaylor@taylortoon.com
Attorney for Employee
Sean Antone Hunt and X | sean@thehuntfirm.com
Salwa Adnan Bahhur, salwa(@thehuntfirm.com
Attorneys for Employer
fy
/
J AA Atcan
| Re den
Penny(Shrum, Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
Compensation Hearing Order Right to Appeal:
If you disagree with this Compensation Hearing Order, you may appeal to the Workers’
Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers’
Compensation Appeals Board, you must:
1, Complete the enclosed form entitled: “Compensation Hearing Notice of Appeal,” and file
the form with the Clerk of the Court of Workers’ Compensation Claims within thirty
calendar days of the date the compensation hearing order was filed. When filing the
Notice of Appeal, you must serve a copy upon the opposing party (or attorney, if
represented).
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 filing 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 your 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. A licensed court
reporter must prepare a transcript and file it with the court clerk within fifteen calendar
days of the filing the Notice of Appeal. Alternatively, you may file a statement of the
evidence prepared jointly by both parties within fifteen calendar 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
of the evidence before the record is s-hmitted 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. After the Workers’ Compensation Judge 2pproves the record and the court clerk transmits
it to the Appeals Board, a docketing notice will be sent to the parties. The appealing
party has fiffeen calendar days after the date of that notice to submit a brief to the
Appeals Board. See the Practices and Procedures of the Workers’ Compensation
Appeals Board.
To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing
Order must be final and you must comply with the Tennessee Rules of Appellate
Procedure. If neither party timely files an appeal with the Appeals Board, the trial court’s
Order will become final by operation of law thirty calendar days after entry. See Tenn.
Code Ann. § 50-6-239(c)(7).
For selj-represented litigants: Help from an Ombudsman is available at 800-332-2667.
Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, I-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT GY INDIGENCY
I, , Naving 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. AOdress:
3. Telephone Number; 4. Date of Birth:
5. Names and Ages of Ail Dependents:
Relationship:
reiatianship:
Retaitionship:
Remtionship:
6. | am employed by:
My employer's address is:
My employer's phone number is:
7. My present monthly household income, after federal inserne end social security taxes are deducted, is:
$
8. | receive or expect to receive money from the following scurces:
AFDC $ per month beginning -
ssl $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month dagicsing .
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
per month
per month
per month
per month
per month
Groceries $ per month Telephone $
Electricity $ per month School Supplies $
Water $ _ per month Clothing $
Gas $_ per month Child Care $
Transportation $ per month Child Support $
Car $ per month
Other $ per month (describe:
10. Assets:
Automobile $ (FMV)
Checking/Savings Acct. $
House $ (Flviv)
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
LB-1103
ppritars
Mey?
COMPENSATION HEARING NOTICE OF APPEAL
Tennessee Division of Workers’ Compensation
wwe topov/labor wld /weomp.shtnt
we.courtclerk@tn.gov
1-800-332-2667
Docket #:
State File #/YR:
Employee
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:
List of Parties
Appellant (Requesting Party}: At Hearing: [_]EmployerL_lemployee
Address: eee ne a te
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 euch additional Appellant *
rev, 10/18 Page 1 of 2 RDA 11082
Employee Name: SPH: DOI:
Appellee(s)
Appellee (Opposing Party):__ At Hearing:[_JEmployerL_]Employee
Appellee’s Address:
Appellee’s Phone: Email:
Attorney’s Name: BPR#:
Attorney’s Address: Phone:
Attorney’s City, State & Zip code:
Attorney’s Ernail:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
\, , certify that | have forwarded a true and exact copy of this
Compensation 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
[Signature of appellant or attorney for appellant]
Attention: This form should only be used when filing an appeal to the Workers’ Compensation Appeals
Board. If you wish to appeal a case to the Tennessee Supreme Court, please utilize the form provided by
the Court which can be found on their website at the following address:
http://www. tncourts.gov/sites/default/files/docs/notice of appeal - civil or criminal. pdf
LB-1103 rev. 10/18 Page 2 of 2 RDA 11082