## FILED
December 15,2017
TN COURTOF WORKERS'COAIPENSi\TION CL

... IDIS



### TENNESSEE BUREAU OFWORKERS' COMPENSATION INTHE COURT OFWORKERS' COMPENSATION CLAIMS AT KINGSPORT
DAVIDMOFFITT, Employee,



### v. ALLIEDMETALS COMPANY, Employer, and
FFV A MUTUAL INSURANCE CO., Insurance Carrier. ) DocketNumber: 2016-02-0282 ) ) ) ) 

### ) StateFile Number: 40249-2016 ) ) ) ) 

### ) JudgeBrian K. Addington )



### COMPENSATIONHEARING ORDER Tim

. e I :31PM

This matter came before the Court on December 4, 2017, for a Compensation Hearing. The parties stipulatedthatMr. Moffitt suffered a compensable lumbar injury on March 26, 2015. The central legal issue is the compensability ofMr. Moffitt's claim for a cervical injury on the same date. The Court finds Mr. Moffitt failed to prove the causation ofhis cervical injury. Therefore, the Court holds that Mr. Moffitt suffered a compensable lumbar injury for which he is entitled to permanent partial disability benefits, buthe did not suffer a compensable cervical injury. 

### History ofClaim
Mr. Moffitt worked as a welder at Allied Metals. On March 26, 2015, he stood on a table to help two co-workers bend metal. Once the process was over, he twisted and jumped to the ground. He testified he immediately felt pain in his right arm and low back. He told co-worker Roger Hensley that he hurt his back when hejumped offthe table. Mr. Moffitt then told supervisor Bruce Hall that he injured his back and the pain travelled into his leg. Mr. Moffitt did not request medical treatment but finished his shift

1and went home. Mr. Hensley and Mr. Hall disputed Mr. Moffitt's testimony that he complained ofarm pain.
The next morning Mr. Moffitt's wife called Mr. Hall and requested medical treatment for Mr. Moffitt. Allied's secretary directed Mr. Moffitt to pursue medical treatment at Medworks. Mr. Moffitt testified that he complained ofhand pain during the examination that day, but the records reflect no mention of same. The records also reflected no treatment for neck or arm pain. Dr. Michael Anders focused treatment on his low back and diagnosed an acute low-back strain.
Dr. Andersprovided the following workrestrictions: no lifting, pushing, orpulling over five pounds; no lifting, pushing, or pulling with either arm over five pounds; no work with the arms above shoulder level; no work with repetitive or prolonged forward bending or twisting; no work with repetitive or prolonged kneeling, squatting, or climbing; work must allow alternate sitting and standing; and an eight-hour a day work limit.
Mr. Moffitt provided these restrictions to Allied and signed a form stating that he initially refused medical treatment. Supervisor Hall informed Mr. Moffitt that Allied would accommodate his restrictions and for him to requesthelp ifhe needed it.
Mr. Moffittreturned to work on March 30 and continued to work eight-hour shifts. Dr. Anders continued to reflect Mr. Moffitt's low-back pain, so Dr. Anders ordered a lumbar MRI. After continued complaints, Dr. Anders referred Mr. Moffitt to a spine specialist.
Mr. Moffitt chose Dr. Richard Duncan from a panel ofphysicians. Dr. Duncan treated Mr. Moffitt only for low-back pain, and his records do not reference any arm pain at that time. Later, Dr. Duncan diagnosed spinal stenosis and placed Mr. Moffitt at maximum medical improvement on June 17, 2015. He assigned Mr. Moffitt a threepercentwhole body impairment and continued his workrestrictions.
Mr. Moffitt's back pain worsened when he started working additional hours in June 2015. He went to Dr. Duncan's walk-in clinic on June 29, 2015, and requested something for relief ofhis low-back pain. He also reported occasional right-arm pain. Dr. Duncan noted the right-arm pain was not work-related but recommended physical therapy. Allied did not approve the physical therapy.
Mr. Moffitt came to work on July 22,**b~t** his supervisor noticed he was in obvious pain, which appeared to prevent him from performing his light duty work. Mr. Hall told Mr. Moffittto go home, take care ofhimselfand to return to work when he was able.

2Based on personal recommendations, Mr. Moffitt sought treatment from Dr. Morgan Lorio, who first saw Mr. Moffitt on July 24. Dr. Lorio's notes indicate thatMr. Moffitt injured his back and then "his neck started to bother him." He ordered an MRI, which indicated disc herniations at C4-5 and 6-7. Dr. Lorio fused both levels and continued treating Mr. Moffit until January 9, 2017. 1 Dr. Lorio later moved away. During his cervical treatment by Dr. Lorio, Mr. Moffitt sought additional lumbar treatment because he was unsatisfied with Dr. Duncan's opinion. Allied sentMr. Moffitt to Dr. Jim Brasfield on October 12, 2015, for a second opinion for his low back complaints. Dr. Brasfield ordered a nuclear bone scan, which was normal. However, he determined Mr. Moffitt would benefit from a facet injection, which eased the pain for a few days. Dr. Brasfield last saw Mr. Moffitt on March 28, 2016, and recommended a backbrace and radiofrequency lesioning.
Mr. Moffitt's average weekly wage was $709.85, which provided·a $473.26 compensation rate. Mr. Moffitt has not worked for any employer since July 22, 2015. AlliedterminatedMr. Moffitt inNovember2015 for absenteeism. Deposition Testimony
Dr. Duncan testified that Mr. Moffitt originally complained of leg and lumbar pain. He placed Mr. Moffitt at maximum medical improvement on June 17, 2015, and assigned him three percent whole-body impairment. Later Mr. Moffitt came to Dr. Duncan's walk-in clinic with continued low-back pain and new right arm pain. Dr. Duncan determined Mr. Moffitt suffered a non-work-related cervical spondylosis without myelopathy. He recommended physical therapy for the cervical issues. Dr. Duncan indicated he had not thoroughly reviewed Dr. Brasfield's notes or Dr. Lorio's records prior to his deposition. Additionally, the ones presented to him during the deposition were not complete. Based on his review ofDr. Lorio's notes during the deposition, Dr. Duncan could not causally relate Mr. Moffitt's cervical fusion to the work incident. Dr. Duncan thoughtMr. Moffitt's cervical injury occurred without a specific injury.
Dr. Lorio assumed that Mr. Moffitt complained ofright arm pain on the date he injured his low back. He performed a double-level cervical fusion and assigned Mr. Moffitt fifteen percent whole body impairment. He stated an MRI could indicate an acute injury, "Upto four months, maybe a little bit longer." Duringthe deposition, he did not have all ofhis notes and the ones he had were incomplete, so parts ofhis testimony were from his recollection. He testified that someone with a herniated disc would feel pain within a couple of days. He related Mr. Moffitt's need for fusion surgery to the

1 Prior to his surgery by Dr. Lorio, Mr. Moffitt sought treatment at Bristol Regional Medical Center (BRMC) on August 22, 2015, for severe neck pain and right-sided numbness. 3workplace accident. He felt restrictions Dr. Anders placed on Mr. Moffitt were in part due to a cervical injury.
Dr. Brasfield acknowledged Allied only authorized him to treat Mr. Moffitt's lumbarcomplaints. He testified that a cervical disc herniation is verypainful andpatients often feel pain immediately or within two days. He noted that according to the medical records he had seen, Mr. Moffitt did not complain ofarm pain until three months after the March 26 incident. Argument
Mr. Moffitt argued that he complained ofboth arm and back pain on the date of injury. He contended the work restrictions in Dr. Anders' notes correspond to both lumbar and cervical issues. He asserted Dr. Duncan could not understand the issue and that Dr. Brasfield was not authorized to treat his cervical pain. He argued Dr. Lorio considered all the information available and that he is the only expert to render a thorough decision on the causation ofhis cervical complaints. As such, in additionto the permanent partial disability benefits for his three percent lumbar injury, he requested permanent pa rtial disability offifteen per ent to his whole body for his cervical injury. He also sought payment ofpast medical treatment with Dr. Lorio. 2 Additionally, Mr. Moftltt reque ·ted mileage reimbursement, discretionary costs and temporary disability benefits from his last day ofworkuntil January 7, 2017.3
Allied argued that Mr. Moffitt injured only his lumbar spine in March 2015. It pointed to the lack ofany reference to arm or neck pain in MedWorks' and Dr. Duncan's notes for three months following the accident. Allied claimed that Dr. Duncan, as the authorized treating physician, is presumed correct about causation and that Dr. Lorio's opinion is not sufficient to overcome the presumption. Allied acknowledged that Mr. Moffitt is entitled to permanent partial disability for his lumbar injury but requested the Courtdeny benefits for his cervical complaints. Findings ofFact and Conclusions ofLaw Mr. Moffitt bears the burden ofproofon all essential elements ofhis claim and must establish by a preponderance of the evidence that he is entitled to the requested benefits. 

### Willis v. All Staff, 2015 TN Wrk. Camp. App. Bd. LEXIS 42, at *18 (Nov. 9, 2015); 

### see also Tenn. Code Ann. § 50-6-239(c)(6) (2017) ("[T]he employee shall bear the burden ofproving each and every element ofthe claim by a preponderance ofthe evidence.").

2Mr. Moffittdid not submit an y m edical bills fromDr. Lorio. 3 Mr

.Moffitt did not submit mileage reimbursem ent documentation. 4Prior to discussing the facts ofthe case, the Court notes that all the fact witnesses appeared credible. The physicians were equally qualified to render expert medical testimony. However, after a thorough review ofthe depositions, it is clear that Drs. Duncan, Lorio and Brasfield either did not have or thoroughly review the other physicians' notes before their deposition.4 Thus, the attorneys asked the physicians to give opinions withoutprovidingthem a completepicture offacts. As such, their opinions concerning each other's care or that of Dr. Anders is unpersuasive. In the end, Dr. Duncan's opinion is presumed correct on causation and Dr. Lorio's opinion failed to rebut Dr. Duncan's opinion by the preponderance ofthe evidence. See Tenn. Code Ann. § 50-6-102 (14)(E) (2015). Although Mr. Moffitt believes he told his co-workers as well as Drs. Anders and Duncan early in his treatment that his arm was hurting, the facts do not bearthat out. His co-workers denied he mentioned it, and neither Dr. Anders' notes norDr. Duncan's early notes mention arm pain. Mr. Moffitt spent a significant amount oftime trying to assert Dr. Anders' restrictions were at least in part cervical in nature, but he failed to present any testimony from Dr. Anders to support his theory. Rather, the proofindicatedthatMr. Moffitt first complained of arm pain in the June 2015 walk-in appointment with Dr. Duncan, some three months after his injury. Dr. Duncan determined Mr. Moffitt's arm pain was notwork-related.
Dr. Lorio related 

### Mr. Moffitt's arm pain to the work incident, but the Court is not persuaded by his opinion. His first note indicated Mr. Moffitt began to have neck pain after the back pain. Dr. Lorio testified that a person that suffered an injury like Mr. Moffitt had would feel pain within a few days. Mr. Moffitt, however, worked for three months until he

.reported armpain to Dr. Duncan.
Dr. Brasfield agreed with Dr. Lorio that Mr. Moffitt would have felt arm pain from his cervical injury soon after the incident occurred. Based on the records he reviewed, Dr. Brasfield did not believe Mr. Moffitt injured his cervical spine when he injuredhis low-back.
Mr. Moffitt asserted that pain from his lumbar injury masked the pain from his cervical until later. But in his case, he began feeling the pain three months later, when the experts stated the pain would have occurred almost immediately.
The Court must use its discretion in accepting one expert opinion over another when faced with conflicting medical testimony and may consider whichever opinion contains the more probable explanation. Sanker v. Nacarato Trucks, Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS 27, at *12 (July 6, 2016). Dr. Duncan's and Brasfield's

4 Dr. Duncan's records were hard to follow by date, and Dr. Lorio's records lacked all information contained in the originals. 5testimony is more plausible. Taken as a whole, Dr. Lorio's causation opinion does not overcome the presumption givento Dr. Duncan. Thus, the Court holds Mr. Moffitt is entitled to temporary total disability benefits for his lumbar injury in the amount ofthirteen and a halfweeks or $6,389.01. Allied previously advanced $4056.52, leaving a remaining balance of$2,332.49. Mr. Moffitt's initial period ofbenefits began on June 18, 2015, and ended thirteen and a halfweeks later on September 21, 2015. On that date, he was still recovering from his cervical fusion surgery. Mr. Moffitt is not entitled to increased benefits because his non-workrelated cervical injury caused his absences and subsequenttermination from work. Allied provided Mr. Moffitt light-duty work until he was forced to seek treatment for his cervical injury.
Alternative Findings ofFact Solely inthe eventthat an appellate body finds error in the compensability holding and concludes Mr. Moffitt is entitled to benefits related to his cervical injury, the Court makes the following findings offact for thepurpose of judicial economy.5
Mr. Moffitt is entitled to temporary partial disability benefits from June 24, 2015, until January 9, 2017, which represents seventy-nine weeks and five days in the amount of $37,725.59. Mr. Moffitt is entitled to an additional award for permanent partial disability for his cervical injury in the amount ofsixty-seven weeks ofbenefits (fifteen percent whole body impairment) or $31,708.42. Mr. Moffitt is entitled to future medical treatment for his cervical injury. Because Dr. Lorio moved from the area, Allied shall provide Mr. Moffitt a panel of physicians from which he shall choose an authorized physician. Mr. Moffitt is not entitled to payment of medical bills or mileage for treatment with Dr. Lorio because he did not make them an exhibit for the Court to consider.

IT IS, THEREFORE, ORDERED as follows: 1. Allied shall continue to provide Mr. Moffitt with medical treatment made reasonably necessary by the March 29, 2015 injury under Tennessee Code Annotated section 50-6-204(a)(l). Dr. Richard Duncan is designated the authorized treatingphysician.

5See Cunningham v. Shelton Sec. Serv., 46 S.W.3d 131, 137-138 (Tenn. 2001). (Trial courts should "hear the entire case and make appropriate findings of fact, and alternative findings when necessary, for appellate review.")

62. Allied shall pay Mr. Moffitt permanent partial disability benefits for a threepercent impairment rating to the body as a whole in the amount of $6,389.01. Allied is given a credit of $4,056.52, leaving a remaining balance of$2,332.49. Mr. Moffitt is not entitledto an increased award ofpermanentbenefits.

3. Mr. Roberts, Mr. Moffitt's attorney, is entitled to an attorney fee oftwentypercent of Mr. Moffitt's total award, or $1,277.80, plus expenses, to be paid from Mr. Moffitt's award.
4. Costs of$150.00 are assessed against Allied under Tennessee Compilation Rules and Regulations 0800-02-21-.07 (2016), to be paid within five days ofthis Order becoming final.
5. Allied shall prepare and file a statistical data form within ten business days ofthe date ofthis Orderunder Tennessee Code Annotated section 50-6-244.
6. Absent an appeal ofthis order by either party, the order shall become final thirty days after issuance.
Itis so ORDERED.
ENTERED this the 

### 15th day ofDecember, 2017.

Exhibits 

### Is/Brian K. Addington BRIAN K. ADDINGTON, JUDGE Court ofWorkers' Compensation Claims

1. Deposition ofDr. Richard Duncan and Collective Exhibits 2. Deposition ofDr. Morgan Lorio and Collective Exhibits 3. Deposition ofDr. Jim Brasfield and CollectiveExhibits 4. Mr. Moffitt's 2015 attendancerecord 5. Worker's CompensationMedical TreatmentRefusal Form 6. March 27, 2015 absence report

7Technical Record
1. Petition for BenefitDetermination 2. Dispute CertificationNotice 3. Request for Expedited Hearing 4. Allied's Response to ExpeditedHearing 5. Motion for Partial SummaryJudgment 6. StatementofUndisputedFacts in Support ofPartial Summary Judgment 7. Motion for Extension ofTime 8. Agreed Orderto Continue Hearing 9. Mr. Moffitt's Response toER's Statement ofFacts 10. Mr. Moffitt's Concise StatementofAdditional Material Facts 11. Mr. Moffitt'sResponse to Motion for Summary Judgment 12. Allied'sReply to Mr. Moffitt's Response to Motion for Summary Judgment 13. Allied'sResponse to Concise Statement ofAdditional Material Facts 14. OrderDenyingAllied'sMotion for Partial Summary Judgment 15. Post Discovery Dispute CertificationNotice 16. Request for Scheduling Hearing 1

7. SchedulingHearing Order 18. Allied'sMotion for Extension ofTime 19. Order Granting Motion for Extension ofTime 20. Mr. Moffitt'sPre-Hearing Statement 21. Mr. Moffitt'sWitness and Exhibit List 22. Notice ofFilingDeposition ofDr. Lorio and Dr. Brasfield 23. Notice ofFiling ofDeposition ofMr. Moffitt 24. Motion In Limine-Dr. Lorio 25. MotionInLimine-Dr. Duncan 26. Allied's Witness andExhibit List 27. Medical Records Submittedby Allied 28. Allied'sPre-HearingBrief(Incl. Exhibits and CaseLaw) 29. Notice ofFiling ofDeposition ofDr. Brasfield 30. Allied's Supplementto Pre-Hearing Brief 31. Mr. Moffitt'sResponse to Motion in Limine-Dr. Lorio 32. Mr. Moffitt'sResponse to Motion in Limine-Dr. Duncan

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### CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy ofthe Compen ation Hearing Order was sent to the following recipients by the following methods ofservic on thi the 15th day ofDecember, 2017.



### Name Certified Mail Larry V. Roberts, Esq., 

### Employee'sAttorney
BrentLaman, Esq., 

### Employer's attorney Fax Via Service sentto: Email Iarry.rohertsr oiJ(lrryvrobcrts.com X !'itlsan .cllioll( a·larrvvrobcrts.com

X brlaman@.mijs.com



### RUM, COURT CLERK Court of orkers' Compensation Claims WC.CourtClerk@tn.gov

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