COURT OFWORKERS' COMPENSATION CLAIMS AT KINGSPORT BobbyJames Employee, ) DocketNo.: 2015-02-0024 ) 

### v. LandairTransport,Inc. Employer, And ) StateFileNo.: 76452-2014 ) ) Date ofInjury: August20, 2014 ) ) Judge: Brian K. Addington ) StarnetIns. Co./KeyRisk Insurance Carrier/ Administrator. ) ) )

EXPEDITEDHEARING ORDERDENYING REQUESTED RELIEF (RECORDREVIEW ONLY)

THIS CAUSE came before the undersigned Workers' CompensationJudge onJuly 15, 2015, upon the Request for Expedited Hearing (REH) filed by Bobby James (Mr. James), the Employee, on June 23, 2015, pursuant to Tennessee Code Annotated section 50-6-239 (2014) to determine if the Employer, Landair Transport, Inc. (Landair), is obligated to provide medical and temporary disability benefits. Considering the positions ofthe parties, the applicable law, and all ofthe evidence submitted, the Court concludes thatMr. James is not entitledto the requested medical and temporary disability benefits. ANALYSIS Issues 1. Whether Mr. James sustained an injury that arose primarily out ofand in the course andscope of employmentwithLandair. 2. Whether Landair is obligated to provide apanel of physicians upon noticefrom Mr. James of an allegedinjury.

13. WhetherLandair is obligatedtopay for anypastmedical expenses and/or mileage expenses. 4. Whether Mr. James is entitled to additional medical care as recommended by a physician. 5. Whether Mr. James is entitled to any past orfuture temporary total disability benefits, and

### if so, in whatamount. 6. Whether Mr. James is entitled to anypast orfuture temporarypartial disability benefits, and

### if so, in whatamount. Evidence Submitted The Court admitted into evidence the exhibits below: 1. FirstReport ofInjury; 2. PoliceReport four; 3. Medical Records: UNC Health Care (UNC) submitted by Mr. James; 4. Medical Bills from various providers; 5. Medical Records: Tacoma/Industricare (Tacoma); 6. Medical Records: UNC submitted by Landair; 7. Medical Records: WakeMedHealth and Hospitals (WakeMed); 8. Medical Records: UNC-Physical Medicine and Rehab (UNC-PR) and, 9. Medical Records: Raleigh OrthopedicTherapy Services (ROTS). The Court designated the following as the technical record:

• Petition for BenefitDetermination (PBD), February 6, 2015 • Dispute CertificationNotice (DCN), April23, 2015 • REH, June 23,2015 • Landair's Response to the REH, June 30, 2015. The Court did not consider attachments to the above filings unless admitted into evidence during the Expedited Hearing. The Court considered factual statements in the above filings or any attachments thereto as allegations unless establishedby the evidence. History ofClaim Mr. James is a forty-two-year-old resident ofRaleigh, North Carolina. He drove trucks for Landair. Mr. James alleged he suffered an injury on August 20, 2014, as a result ofan automobile accident while transporting a load for Landair. The police report indicated Mr. James did not suffer injury. (Ex. 4, p. 2). Mr. James, however, reported to 2Landairthat he blacked out. (Ex. 1). Mr. James soughttreatment at Tacoma. Itis unclear from the record whether Mr. James chose Tacoma from a panel of physicians; however, Landair authorized the treatment. Mr. James told PA-C Dennis Volek that he hit his head on the steering wheel and suffered minimal neck pain. (Ex. 5, p. 1). Diagnostic testing revealed no acute injury but did indicate degenerative and congenital conditions. (ld., pp. 8-9). Dr. Remy Sagadraca, the supervisingphysician, diagnosed cervical and back sprains and prescribed pain medication. (ld., p. 25). Tacoma scheduled a follow-up appointment and therapy with Dr. William Filer atUNC-PRin Raleigh, North Carolina. (ld., p. 34). Tacomagave Ms. James conflictinginstructions regarding his work status. Onedocumentreleasedhim to work with no restrictions and the other document recommended that he not work until his appointmentwith Dr. Filer on September 30, 2014. (ld., pp.26, 34). 1 When Mr. James attempted a return to work, Landair became concerned about his behaviorand requested a medical clearance. (Ex. 7, p. 1 ). On September 3, 2014, Mr. James went to the emergency room at UNC with complaints ofheadache, photophobia, memory problems, and generalized body aches for a week's duration. (Ex. 6, p. 1). CT results were negative. (ld., p. 11). The discharge diagnosis was migraine. (!d., p. 12). Mr. James underwent an MRI ofthe head at UNC on September 16, 2014. TheMRI indicated no abnormalities. (ld., p. 17). Mr. James underwent a neurological consult with Dr. John Mann on September 17, 2014. Mr. James complained ofmemory loss and head, neck, and back pain. (!d., p. 29). Dr. Mann diagnosed confusion, altered mental status, and probable post-traumatic brain injury. (!d., p. 33). UNC recommended thatMr. James see Dr. Filer. (!d., p. 82). On September 25, 2014, Mr. James appeared at the emergency room at WakeMed and discussed a history of dizziness, falling, blurred vision, and headache prior to the incident in question, and headache, nausea, vomiting, and confusion following the accident. (Ex. 7, p. 1). Mr. James had a normal CT scan and EKG. Dr. CeciliaMcKay's impression was "[a]ltered mentation after trauma from motor vehicle accident on 08/20/2014, history ofrecurrent head trauma and past loss ofconscious and headaches." (!d., p. 2). Dr. McKay recommended a neurological consult and EEG. !d. Dr. David Konancperformedthe EEGthat day with normal results. (ld., p. 11). Dr. James Ferrell's physician assistant, Thomas Binford, performed Mr. James' neurologic evaluation. He believed Mr. James had suffered a concussion during the incident in question and suffered an altered mental state with headache. (ld., p. 6). Mr. James met with Dr. Filer on September 30, 2014, with a complaint of a

1Itappears to the Courtthat p. 34 ofExhibit 5 maybelong with Exhibit 6, the records from UNC. 3headache, memory loss, and sleep impairment. (Ex. 8, p. 4). Mr. James underwent diagnostic and neuropsychological testing over the following months. Dr. Filertook Mr. James offwork from November 19, 2014, until he completed testing. (Ex. 3, p. 7). Dr. Filer determined on January 20, 2015, that Mr. James suffered mood disorder that was unlikely to be due to on-going, post-concussive disorder. (Ex. 8, p. 28). On February 10, 2015, Dr. Filler last met with Mr. James. He noted Mr. James suffered a recent syncope incident at the facility but opined that the August 20, 2014 incident did not cause the syncopal event. (!d., p. 91). Dr. Filler made a referral to a pain clinic. He determined Mr. James did not have any workrestrictions due to the event ofAugust 20, 2014. !d. Mr. James filed a PBD on February 6, 2015, seeking medical/temporary disability benefits. The parties did not resolve the disputed issues through mediation and the Mediation Specialist filed the DCN on April 23, 2015. Mr. James requested the record review onJune 23, 2015. Mr. James' Contentions Mr. James asserts that he suffered an injury on August 20, 2014. He avers thathe is entitled to ongoing medical treatment. He contends that authorized treating physicians had restricted him from all work activities ince Aug u t 20, 2014. He requests temporary total disability benefits since hehas been unabletow rk.2 Landair's Contentions Landair acknowledges that Mr. James was involved in an automobile accident on August 20, 2014, but asserts that he did not miss any work due to the accident. Landair contends that the August 20, 2014 event did not cause Mr. James' alleged mental injury. Landair avers that Mr. James' non-work related psychological issues caused his absences from work; therefore, Mr. James is not entitledto temporary disability benefits. Findings ofFact and Conclusions ofLaw StandardApplied The Workers' Compensation Law shall not be remedially or liberally construed in favor of either party but shall be construed fairly, impartially and in accordance with basic principles of statutory construction favoring neither the employee nor employer. Tenn

. Code Ann. § 50-6-116 (2014). An employee need not prove every element ofhis or her claim by a preponderance ofthe evidence in order to obtain reliefat an expedited hearing. McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).

2 The Courttook Mr. James' contentions from the PBD. Mr

.James did not file apre-hearing statement orbrief. 4At an expedited hearing, an employee has the burden to come forward with sufficient evidence from which the trial court can determine that the employee is likely to prevail at a hearingon the merits. /d. FactualFindings Mr. James was involved in a motor vehicle accident (MVA) on August 20, 2014, while driving for Landair. He suffered no injury in the accident, but

### Mr. James later had symptoms ofbackpainneckpain and memory loss he associatedwiththe MVA. Landair initially paid for Mr. James' treatment at Tacoma and for physical therapy. Mr. James had pre-existing memory loss, head trauma, and associated symptoms related to head trauma. Mr. James did not miss any workdue to theAugust 20, 2014 injury. Application of Law to Facts The Workers' Compensation Law defines "injury" and "personal injury" to mean an injury by accident "arising primarily out of and in the course and scope of employment[.]" Tenn. Code Ann. § 50-6-102(13)(A) (2014). An injury is "accidental" only ifthe injury is caused by a specific incident, or set ofincidents, arising primarily out ofand in the course and scope ofemployment, and is identifiable by time and place of occurrence. !d. 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 cause[.]" Tenn. CodeAnn.§ 50-6-102(13)(B) (2014). Atvarious times, Mr. James changedhis story regarding what happenedto him on August 20, 2014. He told the officer who investigated the MV A that he was not injured. He told the providers at Tacoma that he hit his head on the steering wheel. He told Landairthat he blacked out. Mr. James has not presented sufficient evidence to prove he suffered a physical injury at work. All diagnostic testing has been normal. Tacoma records do not indicate any injury (bruising, cuts, etc.) to Mr. James' head from hitting it on a steering wheel. Mr. James presented to medical providers with only subjective complaints. Concerning his alleged mental injury, Mr. James has a history ofpre-existinghead trauma and mental conditions. An employee may suffer a mental injury as a result ofa compensable physical injury or an identifiable work-related event resulting in sudden or unusual stimulus. Tenn. Code Ann. § 50-6-102(16)(2014). Although Mr. James continues to complain ofsymptoms, Dr. Filer opined he suffers from a mood disorder not relatedtotheMVA. Mr. James has not come forward with sufficient evidence from which this Court concludes thathe is likelyto prevail at a hearing on the merits. 5ITIS, THEREFORE, ORDERED as follows: 1. Mr. James' claim against Landair and its workers' compensation carrier for the requested medical and temporary disability benefits is denied. At this time, Mr. James has not come forward with sufficient evidence from which this Court concludesthathe is likely to prevail at ahearing on the merits. 2. This matteris set for Initial Hearing on September 14,2015, at 2:00p.m. ENTEREDthis the 27thday ofJuly 2015.

# Judge~K.A~ CourtofWorkers' Compensation Claims InitialHearing: An Initial Hearing has been set with Judge Addington, Court of Workers' Compensation Claims. You must call 865-594-6538 or toll free at 855-543-5044 to participateintheInitialHearing. Please Note: You must call in on the scheduled date/time to participate. Failure to call in may result in a determination of the issues without yourfurther participation. All conferences are setusing CentralTime (CT). Right to Appeal: Tennessee Law allows any party who disagrees with this Expedited Hearing Order to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of Appeal, you must: 1. Complete the enclosed form entitled: "ExpeditedHearing Notice ofAppeal." 2. File the completed form with the Court Clerk 

### within seven business days ofthe date the Workers' CompensationJudge enteredthe Expedited Hearing Order. 3. Serve a copy ofthe ExpeditedHearingNotice ofAppeal uponthe opposingparty. 4. The appealing party is responsible for payment ofa filing fee i_n tbe amount of $75.00. Within ten calendar days after the filing ofa notice ofappeal, payment 6must be received by check, money order, or credit card payment. Payments canbe made in person at any Bureau office or by United States mail, hand-delivery, or other delivery service. In the alternative, the appealing party may file an Affidavit ofIndigency, on a form prescribed by the Bureau, seeking a waiver ofthe filing fee. The Affidavit ofIndigency may be filed contemporaneously with the Notice ofAppeal or mustbe filed within ten calendar days thereafter. The Appeals Board will consider the Affidavit ofIndigency and issue an Order granting or denying the request for a waiver of the filing fee as soon thereafter as is practicable. Failure to timely pay the filing fee or file the Affidavit of Indigency in accordance with this section shall result 

### in dismissal of the appeal. 5. The parties, having the responsibility of ensuring a complete record on appeal, may request, from the Court Clerk, the audio recording of the hearing for the purpose ofhaving a transcript prepared by a licensed court reporter and filing it with the Court Clerk within ten calendar days of the filing of the Expedited Hearing Notice ofAppeal. Alternatively, the parties may file a statement ofthe evidence within ten calendar days ofthe filing ofthe Expedited Hearing Notice of Appeal. The Judge must approve the statement ofthe evidence before the Court Clerkmay submitthe recordto the Clerk ofthe Appeals Board. 6. Ifthe appellant elects to file a position statement in support ofthe interlocutory appeal, the appealing party shall file such position statement with the Court Clerk within three business days ofthe filing ofthe Expedited HearingNotice ofAppeal, specifying the issues presented for review and including any argument in support thereof. Ifthe appellee elects to file a response in opposition to the interlocutory appeal, appellee shall do so within three business days of the filing of the appellant'sposition statement. CERTIFICATE OF SERVICE I hereby certify that a true and correct copy ofthe Expedited Hearing Order was sent to the following recipients by the following methods ofservice on this the 27th day ofJuly, 2015.

Name Certified Via Via Service sentto: Mail Fax Email V. Hood-Schneider, Esq

. X vhslaw1@gmail.com Mike Jones, Esq

. X mjones@wimberlylawson.com

7Penny Shrum, ClerkofCourt CourtofWorkers' Compensation Claims WC.CourtClerk@tn.gov

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