FILED 

December 15, 2017 

TN COURT OF 

WORKERS' COAIPENSi\TION 

CL ... IDIS 

TENNESSEE BUREAU OF WORKERS' COMPENSATION 

IN THE COURT OF WORKERS' COMPENSATION CLAIMS 

AT KINGSPORT 

DAVID MOFFITT, 

Employee, 

v. 

ALLIED METALS COMPANY, 

Employer, 

and 

FFV A MUTUAL INSURANCE CO., 

Insurance Carrier. 

) Docket Number: 2016-02-0282 

) 

) 

) 

) 

) State File Number: 40249-2016 

) 

) 

) 

) 

) Judge Brian K. Addington 

) 

COMPENSATION HEARING ORDER 

Tim.e I :31 PM 

This matter came before the Court on December 4, 2017, for a Compensation 

Hearing. The parties stipulated that Mr. Moffitt suffered a compensable lumbar injury on 

March 26, 2015. The central legal issue is the compensability of Mr. Moffitt's claim for 

a cervical injury on the same date. The Court finds Mr. Moffitt failed to prove the 

causation of his cervical injury. Therefore, the Court holds that Mr. Moffitt suffered a 

compensable lumbar injury for which he is entitled to permanent partial disability 

benefits, but he did not suffer a compensable cervical injury. 

History of Claim 

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 he jumped off the 

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 

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and went home. Mr. Hensley and Mr. Hall disputed Mr. Moffitt's testimony that he 

complained of arm 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 of hand 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. Anders provided the following work restrictions: no lifting, pushing, or pulling 

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 request help if he needed it. 

Mr. Moffitt returned 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 of physicians. 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 threepercent whole body impairment and continued his work restrictions. 

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 of his 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. Moffitt to go home, take care of himself and to return to work when he was able. 

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Based on personal recommendations, Mr. Moffitt sought treatment from Dr. 

Morgan Lorio, who first saw Mr. Moffitt on July 24. Dr. Lorio's notes indicate that Mr. 

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 sent Mr. 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 

back brace 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. 

Allied terminated Mr. Moffitt in November 2015 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 of Dr. Lorio's notes during the deposition, Dr. 

Duncan could not causally relate Mr. Moffitt's cervical fusion to the work incident. Dr. 

Duncan thought Mr. Moffitt's cervical injury occurred without a specific injury. 

Dr. Lorio assumed that Mr. Moffitt complained of right 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, "Up to four months, maybe a little bit longer." During the deposition, he did 

not have all of his notes and the ones he had were incomplete, so parts of his 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. 

3 
workplace 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 

lumbar complaints. He testified that a cervical disc herniation is very painful and patients 

often feel pain immediately or within two days. He noted that according to the medical 

records he had seen, Mr. Moffitt did not complain of arm pain until three months after the 

March 26 incident. 

Argument 

Mr. Moffitt argued that he complained of both 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 of his cervical complaints. As such, in addition to the 

permanent partial disability benefits for his three percent lumbar injury, he requested 

permanent partial disability of fifteen per ent to his whole body for his cervical injury. 

He also sought payment of past medical treatment with Dr. Lorio. 2 Additionally, Mr. 

Moftltt reque ·ted mil eage reimbursement, discretionary costs and temporary disability 

benefits from his last day of work until January 7, 2017.3 

Allied argued that Mr. Moffitt injured only his lumbar spine in March 2015. It 

pointed to the lack of any 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 

Court deny benefits for his cervical complaints. 

Findings of Fact and Conclusions of Law 

Mr. Moffitt bears the burden of proof on all essential elements of his 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 of proving each and every element of the claim by a preponderance of the 

evidence."). 

2 Mr. Moffitt did not submit any medical bills from Dr. Lorio. 

3 Mr. Moffitt did not submit mileage reimbursement documentation. 

4 
Prior to discussing the facts of the 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 of the 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 without providing them a complete picture of facts. 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 of the 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 bear that out. His 

co-workers denied he mentioned it, and neither Dr. Anders' notes nor Dr. Duncan's early 

notes mention arm pain. Mr. Moffitt spent a significant amount of time 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 proof indicated that Mr. 

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 not work-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 arm pain 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 

injured his 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. 

5 
testimony is more plausible. Taken as a whole, Dr. Lorio's causation opinion does not 

overcome the presumption given to Dr. Duncan. 

Thus, the Court holds Mr. Moffitt is entitled to temporary total disability benefits 

for his lumbar injury in the amount of thirteen and a half weeks or $6,3 89.0 1. Allied 

previously advanced $4056.52, leaving a remaining balance of $2,332.49. Mr. Moffitt's 

initial period of benefits began on June 18, 2015, and ended thirteen and a half weeks 

later on September 21, 20 15. 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 subsequent termination from work. Allied 

provided Mr. Moffitt light-duty work until he was forced to seek treatment for his 

cervical injury. 

Alternative Findings of Fact 

Solely in the event that 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 of fact for the purpose 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 of sixty-seven weeks of benefits (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 treating physician. 

5 See 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.") 

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2. 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 entitled to an increased award of permanent benefits. 

3. Mr. Roberts, Mr. Moffitt's attorney, is entitled to an attorney fee of twenty percent 

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 (20 16), to be paid within five days of this Order 

becoming final. 

5. Allied shall prepare and file a statistical data form within ten business days of the 

date of this Order under Tennessee Code Annotated section 50-6-244. 

6. Absent an appeal of this order by either party, the order shall become final thirty 

days after issuance. 

It is so ORDERED. 

ENTERED this the 15th day of December, 2017. 

Exhibits 

Is/ Brian K. Addington 

BRIAN K. ADDINGTON, JUDGE 

Court of Workers' Compensation Claims 

1. Deposition of Dr. Richard Duncan and Collective Exhibits 

2. Deposition of Dr. Morgan Lorio and Collective Exhibits 

3. Deposition of Dr. Jim Brasfield and Collective Exhibits 

4. Mr. Moffitt's 2015 attendance record 

5. Worker's Compensation Medical Treatment Refusal Form 

6. March 27, 2015 absence report 

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Technical Record 

1. Petition for Benefit Determination 

2. Dispute Certification Notice 

3. Request for Expedited Hearing 

4. Allied's Response to Expedited Hearing 

5. Motion for Partial Summary Judgment 

6. Statement of Undisputed Facts in Support of Partial Summary Judgment 

7. Motion for Extension of Time 

8. Agreed Order to Continue Hearing 

9. Mr. Moffitt's Response to ER's Statement of Facts 

10. Mr. Moffitt's Concise Statement of Additional Material Facts 

11. Mr. Moffitt's Response to Motion for Summary Judgment 

12. Allied's Reply to Mr. Moffitt's Response to Motion for Summary Judgment 

13. Allied's Response to Concise Statement of Additional Material Facts 

14. Order Denying Allied's Motion for Partial Summary Judgment 

15. Post Discovery Dispute Certification Notice 

16. Request for Scheduling Hearing 

1 7. Scheduling Hearing Order 

18. Allied's Motion for Extension of Time 

19. Order Granting Motion for Extension of Time 

20. Mr. Moffitt's Pre-Hearing Statement 

21. Mr. Moffitt's Witness and Exhibit List 

22. Notice of Filing Deposition of Dr. Lorio and Dr. Brasfield 

23. Notice of Filing of Deposition of Mr. Moffitt 

24. Motion In Limine-Dr. Lorio 

25. Motion In Limine-Dr. Duncan 

26. Allied's Witness and Exhibit List 

27. Medical Records Submitted by Allied 

28. Allied's Pre-Hearing Brief (Incl. Exhibits and Case Law) 

29. Notice of Filing of Deposition of Dr. Brasfield 

30. Allied's Supplement to Pre-Hearing Brief 

31. Mr. Moffitt's Response to Motion in Limine-Dr. Lorio 

32. Mr. Moffitt's Response to Motion in Limine-Dr. Duncan 

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CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy of the Compen ation Hearing Order 

was sent to the following recipients by the following methods of servic on thi the 15th 

day of December, 2017. 

Name Certified 

Mail 

Larry V. Roberts, Esq., 

Employee's Attorney 

Brent Laman, Esq., 

Employer's attorney 

Fax Via Service sent to: 

Email 

I arry .ro he rtsr oiJ (lrryvrobcrts. com 

X !'itlsan .cll ioll(a·larrvvrobcrts.com 

X brlaman@.mijs.com 

RUM, COURT CLERK 

Court of orkers' Compensation Claims 

WC.CourtClerk@tn.gov 

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