Craig, Ronnie v. Memphis Light, Gas & Water

2019 TN WC 165

• Court: Tennessee Court of Workers' Compensation Claims
• Decided: November 20, 2019
• Docket: 2017-08-0862
• Status: Published

Opinion

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

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 *

\, , 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