1 TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS

GILES COLE
, ) Docket No. 2016

- 08

- 0935

Employee, )

v. )
YRC , INC.
, Employer, ) ) State File No. 63 7 10

- 2016

And )
OLD REPUBLIC INS. CO., ) Judge Allen Phillips

Carrier. )

COMPENSATION ORDER FOR MEDICAL BENEFITS

This case came before the Court on March 31, 20 21

, for a Compensation Hearing

. Mr. Cole requested benefits for injuries to his head and back that he related to a September 23, 2015 accident. YRC contended t he alleged injuries were not work

- related. For the following reasons, the Court holds Mr. Cole is entitled to future medical benefits for his head injury but no other workers’ compensation benefits

.

History of Claim

Mr. Cole worked for YRC as a truck driver. On September 23, 2015, he was
involved in an accident when his truck rolled over. YRC accepted the claim and provided
medical benefits , including a panel from which Mr. Cole selected Dr. Bonnie Randolph.

Dr. Randolph , an occupational medicine physician, first saw Mr. Cole the day after
the accident

. Mr. Cole complained of pain in his head and right hand

, and Dr. Randolph
noted contusions to those body parts

. In addition to t he contusions, Dr. Randolph diagnos ed
a concussion with no loss of consciousness

. She recommended a CT scan of his head

, which was normal. 

### FILED Apr 28, 2021 09:49 AM(CT)

TENNESSEE COURT OF
WORKERS' COMPENSATION

CLAIMS2

At each of four later visits, Dr. Randolph maintained her diagnosis and

, because of Mr. Cole’s persistent complaints of headaches, recommended an MRI and a neurology
referral. The MRI show ed sinusitis, cerebral atrophy, and small vessel disease of the brain.
Based on those findings

, Dr. Randolph discontinued the neurology referral but i ns tead told
Mr. Cole to see his primary care physician for the sinusitis

. I n Dr. Randolph’s opinion,
sinusitis was “ most likely ” caus ing his headaches , and s he released him at maximum medical improvement on November 20.

Mr. Cole followed Dr. Randolph’s advice and s aw his primary care physician, Dr. Oliver Hardy

, in December

. Dr. Hardy noted a laceration on Mr. Cole’s head and diagnosed “post

- concussion syndrome

. ” O ver the next two months, Dr. Hardy a dded diagnos es of sleep apnea , a hernia

, insomnia

, and hyperlipidemia

. Dr. Hardy restricted Mr. Cole from
work but did not indicate any causal relationship between the restriction and the accident

.

Representing himself, Mr. Cole requested an Expedited Hearing where he claimed injur ies to his head, back, and legs . H e asked that the Court order YRC to pay Dr. Hardy’s
bills

, contend ing that he s aw him only because YRC stopped paying Dr. Randolph ; however, he offered no proof of the amount of the bills. He wanted temporary disability
benefits because Dr. Hardy restrict ed him from work

, but he offered no proof of a causal relationship between th at restriction and the accident. Mr. Cole also conceded during cross

examination that not all of his problems were related to the accident. YRC provided
evidence through Kevin English, its claims handler, that it never refused to authorize Dr. Randolph to treat Mr. Cole or to pay her bills

.

Based on th at evidence

, t he Court held Mr. Cole likely would not prevail at a hearing
on the merits because Dr. Randolph did not relate Mr. Cole’s headaches to the accident

. B ecause she was the panel

- selected physician, her unrebutted opinion was presumed

correct

. See Tenn. Code Ann. § 50

- 6

- 102(14)(E) (20 20 )

.

After the denial, Mr. Cole obtained counsel

, who later non

- sui t ed the case

. After refiling, the parties obtained medical proof and proceeded to this C ompensation H earing

.

In support of his position, Mr

. Cole introduced the dep osition of Dr. Samuel Chung, a phy sical med icine spec ialist and b o ard

- certi f ied independent med ical examiner. Dr. Chung reviewed the records of Dr. Hardy and providers to whom Dr. Hardy referred Mr. Cole for testing. Dr. Chung did not review records from Dr. Randolph or Campbell Clinic Orthopedics

.

At an August 16, 2018 office visit, Mr. Cole told Dr. Chung that he injured the “top
of his head and lower bac k ” in the accident. Regarding the head injury, h e told Dr. Chung he experienced significant headaches in the area where he struck h is head . He stated he experienced memory loss, difficulty concentrating and dizziness. Mr. Cole said he still had3

problems with short term memory

, and Dr. Chung described his problem

- solving and
concentration as “still somewhat delayed and affected.”

Dr. Chung performed a battery of tests to evaluate Mr. Cole’s mental status. Based on the testing, Dr. Chung said Mr. Cole exhibited mild cognitive impairment

, which Dr. Chung related to the concussion and assigned a five

- percent whole

- person impairment.

As to the back injury, Dr. Chung performed a complete physical evaluation, which
indicated an ongoing r ight lumbar radic ulopathy

. He explained the accident aggravated Mr.
Cole ’s degenerative back conditions and caused him to su f fer a twelve

- pe rcent impairment to the body.

Dr. Hardy

, Mr. Cole’s primary care physician, died before the parties could depose
him , but t he parties offered his records. As relevant here, the records included complaints
of low

- back pain beginning in late 2016 and described by the doctor as degenerativ e, consistent with the findings of a lumbar MRI he recommended. Additionally, a letter to Mr. Cole’s counsel indicated Mr. Cole initially exhibited symptoms of disorientation, dizziness, and problems with memory and co ncentration

, but that they “resolved over
time.” Dr. Hardy “suggest [ed] appealing his case [apparently referencing the expedited hearing order] , as there certainly should not be any denial of the accident sustained concussion [.] ”

The parties also offered the records of Campbell Clinic Orthopedics. Those dealt primarily with an unrelated knee injury but also include d a n August 8, 2016 note stating
Mr. Cole complained of low

- back pain beginning in the “last couple of months” and without any traumatic ev e nt. Multiple notes regarding the evaluation of his back pain d id
not mention the accident

, but instead the providers record ed degenerative problems of the lumbar spine. The records noted that Mr. Cole was alert and oriented on multiple visits

.

For its medical proof, YRC introduced the deposition of Dr. Randolph

. She
confirmed he reported only head and right

- hand pain on the day after the accident

. Otherwise, Dr . Randolph’s “ review of systems” was completely negative

, including no dizziness, forgetfulness

, confusio n, mood change or any musculoskeletal findings

. Dr. Randolph said Mr. Cole could r eturn to work without r estrictions as of the first visit

, a
st atus she maintained th roughout her course of t reatment

. She explained the later visits as
described in her records. Dr. Randolph found Mr. Cole suffered no permanent impairment
but testified he could r eturn if needed.

Y R C also offered the dep osition o f D r . Fereidoon Parsioon, a neurosurgeon, wh o evaluated Mr. Cole twice at YRC’s request. First, on November 15, 2018, Dr. Parsioon concentrated on the head injury. He took a histor y of the accident, notin g that Mr. Cole
said he did not l ose consciousness , but he still complained of daily headaches. His4

neurological examination was normal. Dr

. Parsioon noted that M r

. Cole did not report

mem or y loss or disorientation to either Dr. Randolph or Dr. Hardy . Dr. Parsioon believed any headaches from the accident should have resolved and that they “could very well be related to sinusitis.” However, he did say Mr. Cole likely suffered a “minor to mild” head injury in the accident

, and h e agreed with D r. Randolph that Mr. Cole reached maximum medical improvement on November 20, 2015, with no i mpairmen t

.

Dr

. Parsioon ’s second visit with M r . Cole on July 1 9 , 20 20

, concentrated on the back injury. In that regard, Mr . Cole told Dr. Parsioon he had no prior back pro blem s. Conversely, Dr. Parsioon testified th at Campbell C linic records from 2014 noted a history
of back pai n; thus, h e called Mr. Cole’ s st atement that he had no p r evious problems “ false. ” Based on his record review, Dr . Parsioon c haracterized Mr. Cole’s back co m plaints as
chronic and unrelated to the accident . H e assessed no impairment

.

At the Compensation H earing , Mr. Cole testified he struck his right side when the truck turned over, injuring his head, back and neck. However, o n cross

- examination, Mr. Cole said he did not recall when his back started hurting. Nevertheless, he claimed he had no prior problems with headaches, concentration, or his back before the accident. As to his current condition, Mr. Cole s t ated he could no longer drive a truck, a job he did for thirty years, and he understood that Dr. Hardy sa id he could no longer drive. Mr. Cole said he has trouble sleeping, and he cannot lift anything or perform tasks around his house. He still has pain in his knees and back and use d a walker in the courtroom.

Mr. Cole claimed Dr. Hardy restricted him from wor k and relied on that opinion for his demand for temporary total disability. However, he did not articulate the exact timeframe requested. As to permanent disability, Mr. Cole claimed he was totally disabled

or , alternatively

, that he should receive the imp airment assessed by Dr. Chung.

Mr. English testified that YRC authorized Dr. Randolph and paid all of her bills.

F ind ings of Fact and Conclusions of Law

At a C ompensation H earing, Mr. Cole must establish all elements of his case by a preponderance of the evidence. Tenn. Code Ann. § 50

- 6

- 239(c)(6) (2020)

. Specifically, he
must show that h is alleged injuries resulted from a specific incident

, and they arose primarily out of h is employment

. Th e injur ies ar ise primarily out of the employment only
if Mr. Cole show s , to a reasonable degree of medical certainty

, that the incident contributed more than fifty percent in causing them

. “Shown to a reasonable degree of medical certainty” means that, in the opinion of the physician s , the injuries were more likely than

not caused by the incident when considering all causes. Tenn. Code Ann. § 50

- 6

- 102(14) (A)

- (D)

.5

Here, Mr. Cole established a specific incident occurred on September 23, 2015. However, t he dispositive question is whether his alleged head and back injuries arose primarily out of his employment and

, if they did, whether they caused any disability

, temporary or permanent . The Court will address the two alleged injuries in turn.

Head injury

Mr. Cole relie d upon Dr. Chung ’s opinions; YRC on Drs. Randolph and Parsioon.
To determine which opinion is correct , the Court ma y consider the qualifications of the experts, the circumstances of their evaluation, the information available to them, and the evaluation of the importance of that inform ation by the other experts. Smith v. TrustPoint Hospital, LLC

, 2021 TN Wrk

. Comp

. App

. Bd

. LEXIS 1

, at * 19 (J an. 6 , 20 21 ). Because Dr. Randolph was the panel physician, her o pinions are afforded a presumption of correctness subject to rebuttal by a preponderance of the evidence. Tenn. Code Ann. § 50

- 6

- 204(k)(7).

F irst

, as to qualifications, the Court considers Drs. Chung and Randolph on equal footing

. Dr

. Chung is a b oard

- cert ified

, independent medical examiner who specialize s in phys ical med icin e , and Dr. Randolph was practicing occ upational med icine at the time she
treated Mr. Cole. In contrast , Dr. Parsioon is a neurosurgeon who specializes in the
treatment of brain injuries and the central nervous system. Given his specialty , the Court
finds the qualifications of Dr. Parsioon superior to the other experts.

Second, as to the circumstances of their evaluations, both Drs. Chung a nd Parsioon
evaluated Mr. Cole for purposes of litigation three years after the accident; thus, their opinions are afforded equal weight . Conversely, Dr. Randolph saw Mr. Cole immediately after the accident and provide d treatment on several occasions . Th us , the Court finds this factor supports Dr. Randolph

.

Third , the Court looks to the informat ion avail able to the experts

. In that regard , all
three took a history of the accident, knew of the CT and MRI results , and examined him.
These facts elevate none of the experts above the others . However, Dr. Randolph saw Mr. Cole shortly after the accident , which allowed her to assess his condition in the immediate aftermath. Thus, the Court finds this factor supports Dr. Randolph.

Final ly, the impor tance of the information available to the experts supports Dr.
Parsioon. He explained the head injury in the most convincing way

. Namely, he noted that
Mr. Cole did not report problems with mem ory or disor ientation to either Dr. Randolph or Dr. Hardy. Likewise, Dr

. Parsioon found none of the problems recorded by Dr. Chung. The Court notes the Campbell Clinic records also document ed normal alertness and orientation. In short, Dr . Parsioon ultimately described M r

. C ole ’s head injury as minor an d that it
caused no permanent impairment

.6

Taking the evidence in totality, the Court finds Mr. Cole sustained a concussion as a result of the accident. Dr. Randolp h found he did, and the proof does not rebut that opinion . Dr. Chung agreed

, and Dr. Hard y also diagnosed post

- concussion syndrome. Dr. Parsioon agreed Mr. Cole sustained a mild head injury.

However, a s to impairment, Dr. Randolph assessed none

, and Dr. Parsioon agreed.
As Dr. Randolph is presumed correct, and Dr. Parsioon corroborated her opinion, the Court
finds Mr. Cole did not rebut those impairment opinions through Dr. Chung and holds he
sustained no permanent disability due to the head injury. See Tenn. Code Ann. § 50

- 6

- 204(k)(7).

Although the head injury caused n o impairment, YRC remains responsible for
future medical treatment of it

. Tenn. Code Ann. § 50

- 6

- 204(b)(1); Barron v. State Dep’t of
Human Servs ., 184 S.W.3d 219, 223 (Tenn. 2006); Stephens v. Henley’s Supply & Indus.,
Inc ., 2 S.W.3d 178, 179

- 180 (Tenn. 1999). Dr. Randolph shall remain Mr. Cole’s authorized physician for his head injury.

As to temporary total disability, Mr. Cole must show 1) he became disabled from working due to a compensable injury; (2) a causal connection between the injury and his inability to work; and (3) the duration of disability. Jones v. Crencor Leasing and Sales

, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11, 2015). Here, Mr. Cole contended
he should recei ve temporary disability benefits for the period that Dr. Hardy restricted him

. However, the exact time frame was unclear f rom the records and, moreover, Dr. Hardy’s
records do not establish a causal connec tion to the accident by a preponderance of the evidence when considering all of the expert opinions. Th us, the Court cannot award these
benefits due to the head injury

.

Back injury

The back injury is more straightforward. Dr. Randolph noted no history of a back injury when she saw Mr. Cole immed iately after the accident. Neither did Dr

. H ardy one
month later

. T he 2014 Campbell Clinic record alluded to by Dr. Parsioon is not in the indexed records offered by the parties

. However, a Campbell Clinic note dated August 8

, 20 16

, records that Mr. Cole complained of low

- back pain beginning in the “last couple of
months

, ” long after the accident, and further that he denied any traumatic ev e n t. Doctors
there later d iagnosed degenerative changes

, consistent with Dr. Parsioon ’s opinion that the back problems were chronic. Thus, the Court finds the evidence preponderates against a finding that the alleged back injury is causally related to the ac cident and denies Mr. Cole ’s request for any workers’ compensation benefits because of it

.

IT IS, THEREFORE, ORDERED as follows:7

1. The Court denies Mr. Cole ’s request for disability benefits

.

2. YRC shall provide Mr. Cole future medical benefits under Tennessee Code
Annotated section 50

- 6

- 204 (a)(1)(A) for the September 23, 2015 concussion

.

3. YRC shall pay the $150 .00 filing fee to the Clerk within five business days after
this order becomes fin al under Tennessee Compilation Rules and Regulations 0800

- 02

- 21

- .06 (August

, 2019).

4. YRC shall prepare and submit to the Court Clerk a Statistical Data Form (SD2) within ten business days of this order becoming final.

5. Unless appealed, this order shall become final thirty days after issuance.

ENTERED April 28 , 20 21

.

______________ ________________________ J udge Allen Phillips Court of Workers’ Compensation Claims

APPENDIX

Exhibits : 1. Deposition of Dr. Samuel Chung

2. Deposition of Dr. Fe reidoon Parsioon

3. Deposition of Dr. Bonnie Randolph

4. Collective Medical Records

5. Transcript excerpt from Expedited Hearing
6. C

- 42 Choice of Physician Forms
7. Wikipedia article re: “Sinusitis” (Identification only)
8. Healthline a rticle re: Allerg y

- induced Vertigo (Identification only)
9. PubMed article re: Vertigo from Inflammation of Sinuses (Identification only)
10. Ashford Clinic article re: Dizziness and Your Sinuses (Identification only)

Technical record : 1. Pet ition for Benefit Determination
2. Disput e Certification Notice

- March 1, 2018
3. Request for Scheduling Hearing8

4. Scheduling Order
5. Motion to Continue Compensation Hearing

- July 20, 2018
6. Employer’s Response to Motion to Continue
7. Order of Continuance
8. Second Scheduling Order

- January 6, 2021
9. Post

- Discovery Dispute Certification Notice
10. Pre

- Compensation Hearing Statement
11. YRC’s Trial Brief
12. YRC’s Witness and Exhibit List
13. Mr. Cole’s Witness and Exhibit List

CERTIFICATE OF SERVICE

I certify that a copy of th is Compensation Order was sent as indicated o n April 28,
20 21

.

Name Email Service Sent To:

Christopher L. Taylor, Employee ’s Attorney X ctaylor@taylortoon.com sreynolds@taylortoon.com Stephen K. Heard

, Employer ’s Attorney X skheard@cclawtn.com
ealimon@cclawtn.com

_________ ____________________________ Penny Shrum, Clerk of Court Court of Workers’ Compensation Claims WC.CourtClerk@tn.govCompensation Hearing Order Right to Appeal :

If you disagree with this Compensation Hearing Order, you may appeal to the Workers’ Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers’ Compensation Appeals Board, you must:

1. Complete the enclosed form entitled: “Notice of Appeal,” and file the form with the Clerk of the Court of Workers’ Compensation Claims within thirty calendar days of the date the compensation hearing order was filed. When filing the Notice of Appeal, you must serve a copy upon the opposing party (or attorney, if represented).

2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten calendar days after filing of the Notice of Appeal. Payments can be made in

- person at any Bureau office or by U.S. mail, hand

- delivery, or other delivery service. In the alternative, you may file an Affidavit of Indigency (form available on the Bureau’s website or any Bureau office) seeking a waiver of the filing fee. You must file the fullycompleted Affidavit of Indigency within ten calen dar days of filing the Notice of Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will result in dismissal of your appeal.

3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the cou rt clerk the audio recording of the hearing for a $25.00 fee. A licensed court reporter must prepare a transcript and file it with the court clerk within fifteen calendar days of the filing the Notice of Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both parties within fifteen calendar days of the filing of the Notice of Appeal. The statement of the evidence must convey a complete and accurate account of the hearing. The Workers’ Compensation Judge must approve the statement of the evidence before the record is submitted to the Appeals Board. If the Appeals Board is called upon to review testimony or other proof concerning factual matters, the absence of a transcript or statement of the evidence can be a significant obstacle to meaningful appellate review.

4. After the Workers’ Compensation Judge approves the record and the court clerk transmits it to the Appeals Board, a docketing notice will be sent to the parties. The appealing party
has fifteen calendar days aft er the date of that notice to submit a brief to the Appeals Board. See the Practices and Procedures of the Workers’ Compensation Appeals Board.

To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing
Order must be final an d you must comply with the Tennessee Rules of Appellate Procedure. If neither party timely files an appeal with the Appeals Board, the trial court’s Order will become final by operation of law thirty calendar days after entry. See Tenn. Code Ann. §
50

- 6

- 239(c)(7).

For self

- represented litigants: Help from an Ombudsman is available at 800

- 332

- 2667.NOTICE OF APPEAL

Tennessee Bureau of Workers’ Compensation www.tn.gov/workforce/injuries

- at

work/ wc.courtclerk@tn.gov | 1

- 800

- 332

- 2667

Docket No.:

________________________
State File No.:

______________________ Date of Injury: _____________________

___________________________________________________________________________ Employee

v.

_______________________________ ____________________________________________ Employer

Notice is given that ____________________________________________________________________ [List

name(s) of all appealing party(ies). Use separate sheet if necessary.]

appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date filestamped on the first page of the order(s) being appealed):



### □ Exped ited Hearing Order filed on _______________ 

### □ Motion Order filed on ___________________



### □ Compensation Order filed on__________________ 

### □ Other Order filed on_____________________ issued

by Judge __________________________________________________________

_______________.

Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:

________________________________________________________________________________________

________________________________________________________________________________________

____________________________________________________________________________ ____________

________________________________________________________________________________________

Parties
Appellant(s) (Requesting Party): _________________________________________ ☐ Employer ☐ Employee
Address: _____________________________________ ___________________ Phone: ___________________
Email: __________________________________________________________
Attorney’s Name: ______________________________________________ BPR#: _______________________
Attorney’s Email: _________________________ _____________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________

* Attach an additional sheet for each additional Appellant *LB

- 1099 rev. 01/20 Page 1 of 2 RDA 11082 Employee Name: _______________________________________ Docket No.:

_____________________ Date of Inj.: _______________

Appellee(s) (Opposing Party): ____

_______________________________________ ☐ Employer ☐ Employee Appellee’s Address: ______________________________________________ Phone: ____________________
Email: _________________________________________________________
Attorney’s Name: ________________ _____________________________ BPR#: ________________________ Attorney’s Email: _____________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________

* Att ach an additional sheet for each additional Appellee *

CERTIFICATE OF SERVICE

I, _____________________________________________________________, certify that I have forwarded a true and exact copy of this Notice of Appeal by First Class mail, postage prepa id, or in any manner as described in Tennessee Compilation Rules & Regulations, Chapter 0800

- 02

- 21, to all parties and/or their attorneys in this
case on this the __________ day of ___________________________________, 20 ____.

___________________________ _________________

__ [Signature of appellant or attorney for appellant]LB

- 1099 rev. 01/20 Page 2 of 2 RDA 11082