FILED 

.Jul~r 14, 2011 

TN COURTOF 

l'\'ORKERS' COliPl. .S ... IDON 

CL'ill.IS 

TENNESSEE BUREAU OF WORKERS' COMPENSATION 

IN THE COURT OF WORKERS' COMPENSATION CLAIMS 

AT KNOXVILLE 

BRENT A. ALLSUP, 

Employee, 

v. 

LENOIR CITY UTILITIES BOARD, 

Employer, 

and 

THE POOL, 

Carrier. 

) Docket No. 2017-03-0418 

) 

) 

) State File No. 19174-2017 

) 

) 

) Judge Lisa A. Lowe 

) 

) 

EXPEDITED HEARING ORDER GRANTING BENEFITS 

(Decision on the Record) 

Tim.e 12:16 PM 

This matter came before the undersigned Workers' Compensation Judge upon the 

Request for Expedited Hearing filed by Mr. Allsup seeking a decision on the record in 

lieu of convening an evidentiary hearing. Lenoir City Utilities Board (LCUB) did not file 

a Response to the Request for Expedited Hearing and did not request an evidentiary 

hearing. The Court issued a Docketing Notice on June 23, 2017, listing the documents to 

be considered. This Court gave Mr. Allsup and LCUB until July 5, 2017, to file 

objections and/or position statements. Neither party filed objections, but both filed 

supporting briefs. 

Upon careful consideration of the record, this Court finds it needs no additional 

information to determine whether Mr. Allsup is likely to prevail at a hearing on the merits 

of the claim. Accordingly, pursuant to Tennessee Code Annotated section 50-6-

239(d)(2) (2016) and Tennessee Compilation Rules and Regulations 0800-02-21-

.14( 1 )(c) (20 16), the Court decides this matter upon a review of the written materials. 

The present focus of the case is whether Mr. Allsup is entitled to additional 

medical benefits. The central legal issue is whether Mr. Allsup came forward with 

sufficient evidence demonstrating he is likely to prevail at a hearing on the merits that he 

suffered an aggravation of a pre-existing condition arising primarily out of and in the 

course and scope of his employment and resulting in the need for medical treatment. For 

1 
the reasons set forth below, the Court holds Mr. Allsup satisfied his burden and LCUB 

shall either designate Dr. Calhoun as the authorized treating physician or provide a panel 

of orthopedic physicians for reasonable and necessary treatment related to his work 

tnjury. 

History of Claim 

Mr. Allsup is a thirty-eight year old resident of Knox County, Tennessee. LCUB 

employed Mr. Allsup as a lead lineman. On March 17, 2017, while working in a raised 

bucket demonstrating how to safely perform a maneuver with a live wire, Mr. Allsup 

grabbed the wire with his left hand to hold the wire steady to make a cut. He grabbed the 

wire cutter and rested one handle on his right shoulder and pulled the other handle down 

with his right hand. He immediately felt a pop and pain in his right elbow. 

Mr. Allsup informed his foreman, Jeff Rankin, who verbally gave him options of 

physicians for treatment. Mr. Allsup chose Lakeway Urgent Care and saw Nurse 

Practitioner Jordan O'Dell. NP O'Dell diagnosed him with right elbow pain, placed his 

wrist in a splint and released him for work without restrictions. Subsequently, Dr. John 

Sanabria, also at Lakeway Urgent Care, diagnosed Mr. Allsup with lateral epicondylitis 

and assigned restrictions including left-handed duty only until cleared by an orthopedic 

physician. During that visit, Mr. Allsup reported ongoing issues with tennis elbow being 

treated by his primary care provider, Dr. Charles Robinson, and orthopedic surgeon, Dr. 

Douglas Calhoun. Dr. Sanabria reviewed Dr. Robinson's records but did not review Dr. 

Calhoun's records. After doing so, he noted: 

... it seems fairly obvious that the patient has been having 

ongoing issues with lateral epicondylitis in the right elbow 

which are not attributable to any specific trauma or strain at 

work. The incident at work on 03/17117 was clearly an 

aggravation of his pre-existing condition. As such he will 

need to get with his PCP/orthopedist to continue the plan of 

care as a non-work related issue. 

Additionally, Dr. Sanabria responded to a medical questionnaire and checked "no" 

to the question, "Considering all causes, as opposed to possibility or speculation, did the 

patient's employment more likely than not contribute more than 50% in causing the 

alleged injury or condition." Because of this opinion, LCUB filed a Notice of Denial on 

March 31 stating that the injury did not arise out of or in the course and scope of 

employment. 

After LCUB's denial, Mr. Allsup returned to Dr. Robinson, who provided 

conservative care. Dr. Robinson stated, "I believe he reinjured the previous injuries and 

may have worsened the tear. I think that since he had been released to work on the 

2 
previous injury, he has been able to work his full job description until this most recent 

injury. I think that the newest work accident is at least> 51% of the cause of his current 

pain/condition as the injury at least caused an exacerbation of his previous injury." In 

response to a medical causation letter, Dr. Robinson responded "yes" that Mr. Allsup's 

employment on March 17, 2017, caused a new lateral epicondylitis injury to his right 

upper extremity. 

Based on that diagnosis and causation statement Mr. Allsup returned to Dr. 

Calhoun for care. After review of the medical records and diagnostic testing (including a 

new MRI and nerve conduction studies), Dr. Calhoun diagnosed Mr. Allsup with lateral 

epicondylitis and cubital tunnel syndrome. In response to a medical causation letter, Dr. 

Calhoun marked "yes" that Mr. Allsup's employment on March 17, 2017, caused a new 

lateral epicondylitis injury to his right upper extremity. Dr. Calhoun performed surgery 

on Mr. Allsup's right elbow on June 1, 2017. 

Mr. Allsup requests that the Court designate Dr. Calhoun as his authorized treating 

physician, or in the alternative, order LCUB to provide a panel of orthopedic physicians 

for ongoing treatment. Mr. Allsup reserves the issues of temporary total disability 

benefits arrearage, payment of past medical expenses, and attorney's fees for a later time. 

LCUB states that Mr. Allsup has not presented sufficient medical evidence to 

rebut Dr. Sanabria's opinion that Mr. Allsup's employment did not contribute more than 

50% in causing his right elbow condition. 

Findings of Fact and Conclusions of Law 

The following legal principles govern this case. An aggravation of a pre-existing 

condition is a compensable injury when "it can be shown to a reasonable degree of 

medical certainty that the aggravation arose primarily out of and in the course and scope 

of employment." Tenn. Code Ann. § 50-6-102(14)(A) (2016). As the Workers' 

Compensation Appeals Board explained in Miller v. Lowe's Home Centers, Inc., 2015 

TN Wrk. Comp. App. Bd. LEXIS 40, at *13 (Oct. 21, 2015), "[A]n employee can satisfy 

the burden of proving a compensable aggravation if: ( 1) there is expert medical proof that 

the work accident "contributed more than fifty percent (50%)" in causing the 

aggravation, and (2) the work accident was the cause of the aggravation "more likely than 

not considering all causes." However, an employee need not prove each and every 

element of his or her claim by a preponderance of the evidence at an expedited hearing to 

obtain temporary disability or medical benefits but "must come forward with sufficient 

evidence from which the court can conclude that he or she is likely to prevail at a hearing 

on the merits, consistent with Tennessee Code Annotated section 50-6-239(d)(l)." ld., 

citing McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 

6, at *9 (Mar. 27, 2015). In addition, the opinion of the authorized treating physician 

"shall be presumed correct on the issue of causation but this presumption shall be 

3 
rebuttable by a preponderance of the evidence." Tenn. Code Ann. § 50-6-102(14)(E) 

(2016). 

Here, there are differing expert medical opinions. In these situations, the Appeals 

Board affirmed longstanding Tennessee law when it held, "A trial court generally has the 

discretion to choose which expert to accredit when there is a conflict of expert opinions." 

Brees v. Escape Day Spa & Salon, 2015 TN Wrk. Comp. App. Bd. LEXIS 5, at *14 

(Mar. 12, 2015) (internal citations omitted). In evaluating conflicting expert testimony, 

this Court may consider, among other things, "the qualifications of the experts, the 

circumstances of their examination, the information available to them, and the evaluation 

of the importance of that information through other experts." !d. 

In comparing their qualifications, Dr. Sanabria is a family practice physician while 

Dr. Calhoun is an orthopedic surgeon. Dr. Sanabria saw Mr. Allsup on one occasion 

while Dr. Calhoun treated Mr. Allsup on numerous occasions both before and after this 

injury. Dr. Sanabria only reviewed Dr. Robinson's records related to Mr. Allsup's prior 

treatment; he did not review Dr. Calhoun's records nor was he privy to the new MRI 

and/or nerve conduction studies. The Court finds Dr. Sanabria did not have all of the 

relevant information available at the time he rendered his causation opinion. In contrast, 

Dr. Calhoun provided treatment for Mr. Allsup's prior elbow condition, which makes 

him uniquely qualified to address whether Mr. Allsup's March 17 employment activities 

caused an aggravation of the preexisting injury. 

After careful consideration of the competing medical opinions, the Court places 

greater weight on Dr. Calhoun's opinion and holds it rebuts the presumption of 

correctness afforded to Dr. Sanabria's opinion by a preponderance of the evidence. 

Therefore, as a matter of law, the Court holds Mr. Allsup has come forward with 

sufficient evidence to conclude he is likely to prevail at a hearing on the merits that he 

suffered an aggravation of a preexisting condition arising primarily out of and in the 

course and scope of his employment and grants his request for additional medical 

benefits. 

IT IS, THEREFORE, ORDERED as follows: 

1. Lenoir City Utilities Board shall provide Mr. Allsup with medical treatment for his 

injuries as required by Tennessee Code Annotated section 50-6-204 (20 16). The 

employer has the right to control the medical treatment. Therefore, Lenoir City 

Utilities Board shall have the option of either designating Dr. Calhoun as the 

authorized treating physician or providing Mr. Allsup with a panel of orthopedic 

physicians for ongoing care. 

4 
2. This matter is set for a Scheduling Hearing on September 15, 2017, at 10:00 a.m. 

Eastern Time. The parties must call (865) 594-0091 or (toll-free) (855) 543-5041 

to participate in the Scheduling Hearing. Failure to appear by telephone may 

result in a determination of the issues without your further participation. 

3. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance 

with this Order must occur no later than seven business days from the date of entry 

of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3) 

(2016). The Insurer or Self-Insured Employer must submit confirmation of 

compliance with this Order to the Bureau by email to 

W Compliance.Program@tn .gov no later than the seventh business day after 

entry of this Order. Failure to submit the necessary confirmation within the period 

of compliance may result in a penalty assessment for non-compliance. 

4. For questions regarding compliance, please contact the Workers' Compensation 

Compliance Unit by email at W omplian e.Program@tn.gov or by telephone at 

(615) 253-1471 or (615) 532-1309. 

ENTERED this the 14th day of July, 2017. 

HON. LISA A LOWE, JUDGE0 

Court of Workers' Compensation Claims 

5 
APPENDIX 

The Court reviewed the entire case file in reaching its decision. Specifically, the 

Court reviewed the following documents: 

1. Petition for Benefit Determination, 

2. Dispute Certification Notice, 

3. Request for Expedited Hearing, 

4. Employee's Brief in Support of Employee's Request for an Expedited Hearing 

5. Employer's Response in Opposition to Employee's Request for Expedited 

Hearing 

6. Employer's Memorandum in Support of Employer's Response in Opposition 

to Employee's Request for Expedited Hearing 

7. Affidavit of Brent A. Allsup 

8. Affidavit of Pamela Dickover 

9. Affidavit of Matt Fagiana 

10. First Report of Work Injury, Form C-20 

11.Notice ofDenial of Claim for Compensation, Form C-23 

12. Wage Statement, Form C-41 

13. Panel of Physicians, Form C-42 

14. March 31, 2017 Denial letter from The Poole 

15. Medical Records of Lakeway Urgent Care (3/17117; 3/20/17) 

16. Medical Record of Family Care Specialists ( 4/6117) 

17.Medical Record ofOrthoTennessee (5/15/17) 

18.Causation Questionnaire ofDr. Douglas N. Calhoun (5/19/17) 

19.Causation Questionnaire ofDr. Charles L. Robinson (5/19/17) 

20. Table of Contents of Medical Records of 

a. Dr. Sanabria 

b. Dr. Robinson 

c. Dr. Calhoun 

6 
CERTIFICATE OF SERVICE 

I her by certify that a true and correct copy of the Expedited Hearing Order was 

sent to the fo llowing recipients by the :following methods of service on this the 14lh day 

of July, 2017. 

Name Certified Fax 

Mail 

Timothy A. Roberto, 

Employee's Attorney 

John Batson, 

Employer's Attorney 

Email 

X 

X 

7 

Service sent to: 

troberto@brownandroberto.com 

i batson@watsonroach. com 

RUM, Court Clerk 

Clerk@tn.gov