1 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
,

a nd ABIGAIL HUDGENS, as

ADMINISTRATOR of the BUREAU OF WORKERS’ COMPENSATION, SUBSEQUENT INJURY AND

VOCATIONAL RECOVERY FUND

. ) ) ) ) ) ) ) Judge Deana Seymour

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 i s 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

h is right knee and low back following a n 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 Febru ary 28, 2018, he released Mr. Burton at maximum medical improvement. According to Dr. Wolf, Mr. 

### FILED Jul 12, 2019 12:36 PM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS2 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 com plaints of low

back pain. Dr. Wolf prescribed a dditional medication, placed Mr. Burton on restri cted 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 phys ical 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 cou ple 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

. An other lumbar MRI showed

multilevel foraminal stenosis, disc bulging and facet hypertrophy that caused m i l d 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 t o 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 wh ich he i s 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 th ose symptoms to Dr.

Wolf.

Findings of Fact and Conclusions of Law

A t 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,

r esolution 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 or3 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 contribu ted “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.” Berdni k v. Fairfield Glade Cmty. Club , 2017 TN Wrk. Comp. App. Bd. LEXIS 32, at *10

- 11 (May 18, 2017).

To establ ish 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); M iller 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 c orrect 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 M LGW’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 reveal ed 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 subm it any medical evidence to oppose Dr. Wolf’s opinion or to establish a work

- related aggravation of a pre

- existing condition causing his cur rent 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 the4 hearing.

ENTERED July 12 , 2019.

____________________________________ Judge Deana C. Seymour Court of Workers’ Compensation Claims5 APPENDIX

Technical record:

TR1. 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 Inspect ion 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, 20146 CERT IFICATE OF SERVICE

I certify that a copy of this Order was sent as indicated on July 12 , 2019.

Name Certified

Mail Via

U.S.

Mail Via

Email Service sent to:

Darnell Burton

, Employee X X X 4816 Berrydale Ave. Memphis, TN 38118 darnellburton62@gmail.com

Sean Hunt

, Employer’s Attorney X sean@thehuntfirm.com

Timothy Kellum,

SIF Attorney X timothy.kellum@tn.gov

_____________________________________ Penny Shrum, Court Clerk Court of Workers’ Compensation Claims WC.CourtClerk@tn.gov