### TENNESSEE BUREAU OFWORKERS' COMPENSATION INTHE COURT OFWORKERS' COMPENSATION CLAIMS ATJACKSON ERICHENSON, Employee, 

### v. WAL-MART, Employer, And NEWHAMPSIDRE INS. CO., Carrier. ) Docket No. 2017-07-0383 ) ) 

### ) StateFile No. 35534-2016 ) ) 

### ) JudgeAllen Phillips

EXPEDITEDHEARING ORDERDENYINGMEDICALAND TEMPORARY DISABILITY BENEFITS
Mr. Henson requested medical and temporary disability benefits for an alleged back injury at Wal-Mart on May 11, 2016. Wal-Mart argued his injury did not arise out ofhis employment. The Courtheardthe dispute on July 2, 2018, and holds Mr. Henson is not entitledto the requested benefits at this time. 

### History ofClaim Mr. Henson claimed he injured his back when he and another Wal-Mart associate moved a heavy box that began to fall. When Mr. Henson reached to steady it, he felt a "pop" inhis lowback andthe onset of"excruciating" pain
. Wal-Mart provided a panel ofphysicians from which Mr. Henson chose Dr. Peter Gardner, a general practitionerin Jackson. On May 11, Mr. Henson detailed the injury to Dr. Gardner and also said he "started having trouble with [his] back about 2 mo. after I staited working for Wal-Mart but not like this." Mr. Henson told Dr. Gardner he was seeing "pain specialists" for his back and that he had been diagnosed with "3 bulging discs." Dr. Gardner took x-rays that revealed "no acute injury," and he diagnosed lumbar strain. He placed Mr
.Henson on light duty andtoldhimto return in one week.

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### Mr. Henson returned as scheduled on May 18 and reported "60-65%" improvement. Dr. Gardner maintained the light-duty restrictions and told himto return in another week. Mr. 

### Henson did so on May 25 and reported he was worse. Dr. Gardner maintainedthe same restrictions and recommended six physical therapy visits. Dming this time, Wal-Mart asked for Dr. Gardner's opinion ofthe cause of Mr. 

### Henson's injmy. Namely, the claim handler wrote to Dr. Gardner that, under the Tennessee Workers' Compensation Law, an injmy "'arises primarily out of and in the course and scope ofemployment' only ifit has been shown by a preponderance ofthe evidence that the employment contributed more than fifty percent (50%) in causing the injmy when considering all causes." She asked for his causation opinion under that**definitio~** 

### to which Dr. 

### Gardnerresponded onMay 27: Mr. 

### Henson has an extensive documented history oflumbar trauma and/or problems for which he requires chronic pain management. After careful evaluation and exam, I can safely conclude that the patient's recently reported injmy did not arise predominately out ofthe course and scope of his employment. To clarify, I cannot conclude that patient's symptoms were caused by presentjobto a degree greater than fifty percent. Based on this response, Wal-Mart denied Mr. 

### Henson's claim and provided no further medical benefits after May 25. Mr. 

### Henson continued medical treatment on his own after Wal-Mart's denial. He testified he saw his personal physician but offeredno records from that physician. He did offer records from Jackson-Madison County General Hospital that included reports of several pain blocks. Additionally, an MRI report dated July 13, 2016, noted the interpretingradiologist found "no acute process" but, instead, congenital narrowing ofthe spinal canal and degenerative changes that potentially caused "significant areas ofneural compromise." A radiologist interpreted another MRI on May 31, 2017, as showing "no distinct focal process or change compared to July 2016." Mr. Henson also introduced records from Dr. John Neblett beginning with a visit on October 19, 2016. On that date, Dr. Neblett noted Mr. 

### Henson had suffered low back pain for three years but now it was "severe to the point he had to quit work [at] WalMart." He noted the MRI which showed "congenital stenosis below L3" and made that diagnosis himself. An 

### April 4, 2017 record noted two pain blocks "helpedtremendously" but, after a third block and physical therapy, Mr. Henson returned on May 3 reporting his condition was worse. Dr. Neblett ordered the MRI later performed on May 31 and discussed above. Mr. Henson offeredno otherrecords from Dr. Neblett. Mr. Henson further testified he saw Dr. Arthur Ulm, a Nashville surgeon, under private insurance. He said Dr. Ulmplanned surgery but later discontinued treatment after 2learninghe was claiming workers' compensation benefits. Currently, Mr. Henson sees his personal physician in Henderson. Wal-Mart confronted Mr. Henson with a medical record from 2014 that documented treatment for low back pain and sciatica and a record from 2015 that recordedMr. Henson complained ofbackpain atWal-Martfor one year. The recordfrom 2015 contained a diagnosis ofsciatica and spinal stenosis. Mr

.Henson conceded previous treatment for back pain butcontended the pain was located higher on his spine in the past and was not disabling until the incident in question. Mr. Henson's fiancee corroborated his testimony regarding the ill effects ofthe incident on Mr. Henson's pain and inability to work. Mr. Henson requested that Wal-Mart provide him medical evaluation and treatment ofhis injury
. He also requested benefits for his lost time from August 15, 2016, when Wal-Mart terminated him "due to health," until he completes treatment. Wal-Mart argued that Dr. Gardner's opinion was entitled to a presumption ofcorrectness that Mr. Henson must rebut by a preponderance of the evidence
. Further, it argued that the evidence confirmed he complained of similar back issues at least two years before the incident. Findings ofFact and Conclusions ofLaw Mr. Henson must come forward with sufficient evidence to establish he would likely prevail at a hearing on the merits. Tenn. Code Ann. 

### § 50-6-239(d)(l) (2017)
. The Court holds he did not. First, Wal-Mart correctly argued that Dr. Gardner's opllllon is afforded a presumption of correctness because Mr. Henson chose him from a panel. Tenn. Code Ann. § 50-6-102(14)(E). Wal-Mart also argued correctly that Dr
. Gardner did not attribute more than fifty percent ofthe cause of Mr. Henson's condition to the May 11 incident as required by statute. See Tenn
. Code Ann. § 50-6-102(14)(C)
. He offered no proof to rebut Dr
. Gardner's opinion. To the contrary, the medical records that Mr

. Henson introduced reference back painthat pre-existed the May 11 incident for up to two years. This time is consistent with the 2014 record documenting prior back pain and the record that Wal-Mart confronted Mr. Henson with at the hearing
. Moreover, those other medical records include a diagnosis of a congenital, non-acute condition and do not mentionthe incident at Wal-Mart. Second, the Court considered the testimony ofMr. Henson and his fiancee that the May 11 incident caused a dramatic worsening ofhis condition, to the point ofhis being unable to continue working. However, he must present expert medical proof that his alleged injury is causally related to his employment at Wal-Ma.ti. 

### Willis v. AllStaff, 2015 TN Wrk. Comp
. App
. Bd
. LEXIS 42, at *27 (Nov
. 9, 2015). Here, the only medical 3evidence addressing causation is Dr. Gardner's opinion that Mr. Henson's condition is not related to his employment with Wal-Mart. Thus, the Court must deny his claim for benefits at this time. 

### THEREFORE, THE COURT ORDERS as follows: 1. Mr. Henson's request for benefits is denied at this time. 2. This matter is set for a Status Heating on 

### Monday, September 17, 2018, at 9:30 a.m. Central Time. The parties must call 731-422-5263 or toll-free 855-543- 5038 to participate in the Status Hearin
. ENTERED this the 11th ofJuly, 2018. '

APPENDIX Exhibits: 1. Affidavit ofEric Henson 2. Medical Records ofDr. Peter Gardner 3. FirstReport ofWork Injury 4. Choice ofPhysician Form (C-42) 5. Notice ofDenial (C-23) 6. SeparationNotice 7. Medical Records ofDr. JohnNeblett 8. Medical Records ofJackson-Madison Co. General Hospital 9. 2014 Medical Record ofHardin Medical Center 10. 2015 Medical Record ofSports Plus Aquatherapy Technical Record: 1. Petition for BenefitDetermination 2. Dispute CertificationNotice 3. Order Setting Show Cause Hearing 4. Order Granting Additional Time After Show Cause Hearing 5. Requestfor Expeditedhearing 46. Employer's Motion to Dismiss 7
. Employer'sMotion to Strike Pleadings 8. Employer's Supplemental Motion to Dismiss 9. Employer's Supplemental Motion to Strike 10.Employer's Objection to On-The-Record Expedited Hearing 11. Request for Expedited Hearing 12
.OrderDenyingMotionto Dismiss and Motion to Strike
CERTIFICATE OF SERVICE I certify that a true and correct copy of this Order was sent to the following recipientsbythe following methods ofservice on July 11, 2018.

Name Eric Henson, Self-Represented Employee Jay Johnson, Esq., Employer's Attorney First Class Mail Via Email Service sent to: 

## x x 960 Sand MountainRd
., Jacks Creek, TN 38347 darlaj0722(a)gmail.com 

## x jay@cmwatsonlaw.com

## en**~** Shrum, Court Clerk WC.CourtClerk@tn.gov

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