1 TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT MURFREESBORO

VIK MOORE

, ) Docket No

. : 2017

- 05

- 0890

Employee, )

v. )

CONDUENT

, ) State File N o. : 61503

- 2017

Employer, )

A nd )

INDEMNITY INS. CO. OF N.A.

, ) Judge Dale Tipps

Insurance Carrier. ) )

EXPEDITED HEARING ORDER DENYING REQUESTED BENEFITS

This matter came before the Court on November 16 , 2017

, for an Expedited Hearing. The presen t focus of this case is whether Mr. Moore is entitled to additional

medical treatment 1 and temporary disability benefits for his alleged bilateral epicondylitis . The central legal issue is whether Mr. Moore is likely to establish at a hearing on the merits that his injury ar ose primarily out of and in the course and scope of his employment

. For the reason s set forth below, the Court holds Mr. Moore failed to

meet t his burden and is not entitled to medical or temporary disability benefits at this

time

.

History of Claim

Mr. Moore began working at a call center for Conduent in May 2017. Soon after beginning the job

, which involved a significant amount of keyboarding, he began having pain in his ar m s

. On August 14, h e reported these problems to his supervisor, who suggested he get a medical evaluation on his own. Mr. Moore went to his personal chiropractor, Jim Sweeney, DC, for one visit, which Conduent did not approve . Instead, Conduent provided a panel of physicians, from which Mr. Moore selected Dr. Jason

Haslam.

1 Mr. Moore stated during the hearing that Conduent paid all medical expenses incurred to date.2

Because Dr. Haslam had no immediate appointments, Conduent authorized an

interim visit to Concentra M edical Center on August 21

. Mr. Moore saw Dr. Frank Thomas, who noted bilateral arm pain and assessed elbow tendonitis . Dr. Thomas provided elbow supports and recommended hot and cold compresses.

The next day, Mr. Moore went to Dr. Haslam’s office and saw nurse practitioner Stephen Johnson. Mr. Moore reported a three

- month history of elbow pain, which he

related to k eyboard use at work. NP Johnson assessed bilateral epicondylitis

, recommended a six

- week course of physical therapy , and suggested Mr. Moore follow up

with Dr. Haslam in three weeks. He returned Mr. Moore to work with a five

- pound lifting restriction.

Mr. Moore was dissatisfied with Dr. Haslam’s office, so Conduent allowed him to select another doctor from the panel. He saw Dr. Philip Coogan on August 28 . Dr. Coogan examined Mr. Moore and assessed probable lateral epicondylitis. He stated, “I

cann ot say with a reasonable degree of medical certainty that these problems are more than 50% caused by his occupation. In light of this, I think that his management is most appropriately pursued outside of the Workers’ Compensation system.” He suggested

th erapy and returned Mr. Moore to regular duty.

Mr. Moore testified that he was unable to return to his job at Conduent, even though it attempted to make some ergonomic improvements to his work station.

Conduent later terminated his employment, along with other Conduent employees at the Nashville location, in a layoff in September. Mr. Moore worked a second job as an Uber driver both before and after his elbow injury , and he continues to do so.

Findings of F act and C onclusions of Law

Because this case is in a posture of an Expedited Hearing, Mr. Moore nee d not prove every element of his claim by a preponderance of the evidence in order to obtain
relief. Instead, he must come forward with sufficient evidence from wh i ch this Court might determine he is likely to prevail at a hearing on the merits. See Tenn. Code Ann. §

50

- 6

- 239(d)(1) (2016) ; McCord v. Advantage Human Resourcing , 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7

- 8, 9 (Mar. 27, 2015).

Compensability

To prove a compensable injury, Mr. Moore must show that his alleged bilateral

elbow injury arose primarily out of and in the course and scope of his employment. To do so, he must show his injury arose primarily out of a work

- related incident, or specific set of incidents, identifiable by time and place of occurrence. Further, he must show, “to a reasonable degree of medical certainty that it contributed more than fifty percent (50%) in causing the . . . disablement or need for medical treatment, consideri ng all causes.”3

“Shown to a reasonable degree of medical certainty” means that, “ in the opinion of the treating physician, it is more likely than not considering all causes as opposed to speculation or possibility. ” See Tenn. Code Ann. § 50

- 6

- 102(14).

A pplying t hese principles, the Court cannot find at this time that Mr. Moore is likely to meet his burden of proof. The only medical opinion before the Court is Dr. Coogan ’s , who could not say that Mr. Moore’s problems were more than 50% cau sed by his occupation. 2 While t he Court finds Mr. Moore sincere in his belief that his work

activities caused his condition, the Court must abide by the causation requirements of the statute and cannot infer from the mere existence of an injury that the injury arose primarily out of Mr. Moore’s employment.

Even if Mr. Moore establish ed causation, he failed to prove entitlement to temporary d isability benefits. An injured worker is eligible for temporary total disability (TTD) benefits if: (1) the worker became disabled from working due to a compensable injury; (2) there is a causal connection between the injury and the inability to work; and (3) the worker established the duration of the period of disability. Jones v. Crencor Leasing and Sales , TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11, 2015)

. Temporary partial disability (TPD) benefits are a category of vocational disability distinct from temporary total disability a nd are available when the temporary disability is not

total. See Tenn. Code Ann. § 50

- 6

- 207 (2).

Mr. Moore submitted no medical records stating that any of his physicians took

him off work. In addition, he admitted he w orked for another employer throughout the relevant time period. Without evidence that he was totally disabled from working, Mr.

Mo ore cannot prov e he would likely succeed on a claim for TTD benefits at a hearing on

the merits.

Regarding TPD benefits, a lthough both NP Johnson and Dr. Thomas imposed temporary restrictions, Mr. Moore presented no evidence that Conduent would not or
could not return him to work in his restricted condition. Further, Dr. Coogan, the authorized treating physician

, returned Mr . Moore to work with no restrictions within seven days of his first authorized medical treatment with NP Johnson . Tennessee Code

Annotated section § 50

- 6

- 205 (a) provides : “N o compensation shall be allowed for the first seven (7) days of disability resulti ng from the injury, excluding the day of injury

. . . but if disability extends beyond that period, compensation shall commence with t he

2 In addition to the medical records, Mr. Moore offered recordings of his conversations with Dr. Coogan and Dr. Sweeney. The Court admitted these recordings over Conduent’s objections but reserved ruling on

whether the medical opinions contained in the m are inadmissible hearsay that are not subject to any of the standard exceptions such as a signed medical record or C

- 31 Form. To the extent these statements were made, the Court sustains Conduent’s objections. However, the Court notes that neither speaker offered any medical opinion on causation, although both doctors offered some questionable and irrelevant opinions as to the provisions of Tenness ee law.4

eighth day after the injury.” Thus, the Court finds Mr. Moore is un likely to prove

entitlement to TPD benefits at this time.

IT IS, THEREFORE, ORDERED as follows:

1. Mr. Moore’ s claim against Conduent and its workers’ compensation carrier for the requested temporary disability benefits is denied

.

2. This matter is set for a Scheduling Hearing on January 10, 2018 , at 9:30 a. m. You

must call 615

- 741

- 2112 or toll

- free at 855

- 874

- 0473 to participate. Failure to call may result in a determination of the issues without your further participation. All conferences are set using Central Time (CT).

ENTERED this the 29 t h day of November, 2017

.

_____________________________________ Judge Dale Tipps

Court of Workers’ Compensation Claims

APPENDIX

Exhibits :
1. Affidavit of Vik Moore

2. Medical records from Concentra

3. Medical records from The Hand Center

4. Medical records from Tennessee Orthopaedic Alliance

5. Declaration of Mica Younger

6. Notice of Controversy Form

7. Choice of Physician Form

8. Wage Statement

9. First Report of Injury

10. Mileage report

11. Copies of Conduent paystubs

12. August 14, 2017 treatment note of Jim Sweeney, DC (identifi cation only) 3

13. Dr. Coogan recording

3 The Court excluded this not e on Conduent ’ s objection that it was unsigned and inadmissible hearsay. Mr. Moore filed a signed copy of the note with t he Clerk several days after the hearing. Because the signed doc ument was submitted after the hearing , the Court cannot admit i t into evidence.5

14. Dr. Sweeney recording (played into the record during hearing)

Technical record:

1. Pet ition for Benefit Determination

2. Dispute Certification Notice

3. Request for Ex pedited Hearing

4. Employer’s Motions in Limine

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Expedited Hearing Order was sent to the following recipients by the following methods of service on this the 29 th day

of November

, 2017

.

Name Certified

Mail Via

Fax Via

Email Service sent to:

Vik Moore X Moore.vik@gmail.com

Frederick R. Baker, Employer’s attorney X fbaker@wimberlylawson.com

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