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

KENNETH MERRITT , ) Docket No. 2020

- 08

- 0920

Employee, )

v. ) FLEXTRONICS, INC., ) State File No. 49660

- 2020

Employer , and TRAVELERS INDEMNITY CO.
,

Carrier

. ) ) ) ) Judge Allen Phillips

COMPENSATION ORDER DENYING BENEFITS

Mr. Merritt requested permanent disability and medical benefits for injur ies to his
hands

. F lextronics denied his claim

. The Court considered the dispute at a Compensation Hearing on March 11, 2022

, and f or the following reasons

, denies Mr. Merritt’s request

.

History of Claim

Mr. Merritt worked for Flextronics as a computer repair technicia n

. In Summer 2020, Flextronics had an influx of business that caus ed Mr. Merritt to work many extra
hours . He described working up to twelve hours per day, seven days a week

. Mr. Merritt
said this increased workload caused pain in his hands from us ing a screwdriver to remove thousands of screws on the computers he repaired.

Mr. Merritt first noticed the pain on July 6. It worsen ed the next week and

, by the third week, became so bad that he felt he needed medical attention . He said he told his supervisor about his pain ; Flextronics c o ntended he did not say it was work

- related

. Thus, Flextronics did not provide Mr. Merritt with a panel of physicians

.

Mr. Merritt ultimately sought his own treatment with orthopedic surgeon Dr.
Christian F ahey

, who m he first saw on July 28, 2020. Dr. Fahey recorded that Mr. Merritt
had pain in his hands for the last six mo nths

, but it had gotten severe in the last two weeks

. Mr. Merritt related his pain to his work. Dr. Fahey diagnosed possible t enosy novitis and 

### FILED Apr 04, 2022 08:17 AM(CT)

TENNESSEE COURT OF
WORKERS' COMPENSATION

CLAIMS2

recommended physical therapy.

At that time, Dr. Fahey also responded to a request from Mr. Merritt’s short

- term disability carrier regarding any work relation of Mr. Merritt’s condition

. In his deposition, Dr. Fahey described his response as that he did not “ find a traumatic injury ” and could not

say that Mr. Merritt’s condition was more than fifty percent caused by his job

.

Dr . Fahey took Mr. Merritt off work for two weeks

. Mr. Merritt present ed th e off

work excuse , and Flextronics completed a First Report of Injur y and provided a panel of physicians that included Dr. Fahey. Mr. Merritt chose to continue treating with him

.

Mr . Merritt ret urned to Dr. Fahey on August 11

, and the doctor n oted an odd “sweat pattern” on Mr. Merritt’ s r ight hand, leading him to believe Mr. Merritt might have c arpal tunnel syndrome

. However, Dr. Fahey thought Mr. Merritt’s compl aints of pain on the back
of his hand w ere incons istent with that diagnosis

. Still , he ordered a nerve test. Dr. Fahey
testified that at that time he still believed Mr. Merritt’s condition was not work related and
he told Mr. Merrit t that at the time.

The nerve test revealed findings that Dr. Fahey called “ sligh t ly weird ,” but still “abnormal

. ” He added the test findings were “not bad ” and he did not think surgery would help Mr. Merritt . H e instead recommended monitoring the situation.

M r. Merritt disagreed with that recommendation. H e believed that Dr. Fahey should have done something other than merely watching his condition . He also believed Dr. Fahey’s treatment recommendations constituted medical malpractice, so he sent the doctor a letter advising him of his intent to file a lawsuit. 1 Despite this, he returned to Dr. Fahey on August 27

, stating to the doctor that he still wanted to see if he could help.

On August 27, Dr. Fahey again noted Mr. Merritt complained of pain on the back of his hands, but he still believed th e complaint s w ere inconsistent with carpal tunnel syndrome. He mainta ined the best course remained watching the conditio n which

, according to Dr. Fahey, greatly angered Mr. Merritt. He testified that he had to have Mr.
Merritt escorted from his office and did not see him again.

After t hat visit, Dr. Fahey responded “No” wh en Flextronics asked him if Mr. Merritt’s condition was more than fifty percent related to his work. Flextronics then denied Mr. Merritt’s claim on grounds of “no medical evidence of injury.”

During his deposition, Dr

. Fahey testified that his unders tanding of current
Tennessee law is th a t it is “diff icult , if not impossible, to claim rep etitive stress inju ries

,

1 Because of that notice, Dr. Fahey had his own counsel present during his deposition. That counsel and the parties here contacted the Court during the deposition for its ruling on several evidentiary objections having no bearing on
the issues in this case.3

partic ularly in your hand.” Dr

. Fahey also test ified his understanding of curr ent law requires that

, “you have to have mo r e th a n 50% li kelihoo d ” of a work relation . He said that
work relation must stem “from a tr aumatic inj ury like a fall to be compe n sable ” and not the result of “ a rep etitive series of events.” Regardless, h e maintained on multiple occasions during his deposition that Mr. Merritt’s condition was not greater than fifty

- percent related
to his work at Flextronics. 2

When Flextronics denied his claim, Mr. Merritt sough t treatment on his own from a rheumatologist and two othe r orthopedic surgeons. He offered the ir medical records

, and Flextronics objected to their admissibility as hearsay. The Court marked the records for identification only and sustained Flextronics ’s objection.

Mr. Merritt first saw orthopedic surgeon Dr. Michael Hood . He later complete d a Standard Form Medical Report for Indus trial Injuries (C

- 32)

, in which he said, “employment activity

, ” specifically repetitive activity, was more likely than not the cause
of Mr. Merritt’s carpal tunnel syndro me . He did not give a permanent imp airment ra ting

. Mr. Merritt provided that C

- 32 to Flextronics in 2021

, but it did not contain a copy of the doctor’s qualifications or any of his medical records.

Mr. Merritt also saw orthopedic surgeon Dr. Rommel C hildress

, who also complete d a C

- 32 form stating Mr. Merritt ’s c arpal tunnel syndrome was caused by “exposure to rep etitive and tedious activit i es.” He described those activities as working on computers twelve

- hour days for seven days a week

. Dr. Childress said Mr. Merri t t’s employment was mo re likely than n o t the cause of his carpal tunnel syndrome

, and that
Mr. Merritt had an eight percent permanent partial impairment to the body

. Mr. Merritt filed a copy of that C

- 32 with the Court and serv ed it on Flextronics on February 28, 2022, twelve days before the hearing. The form did not contain Dr. Childress’s qualifications or
his records.

Mr. Merritt offered both C

- 32 forms

, and Flextronics objected to them on grounds that they did not satisfy the statutory requirements for admission

. T he Court marked the
forms for identification only and addresses their admissibility below. Flextronics also objected to the medical bill s from Drs. Hood and Childress that Mr. Merritt offered on hearsay grounds. The Court sustained that objection.

Mr. Merritt testified he did not work from July 28 until October 23, 2020

, and he requested temporary disability benefits for that period. He also asked for an award of eight

percent permanent partial disability based on D r. Childress’s opinion in the C

- 32 and future
medical benefits. Mr. Merritt made many arguments regarding Dr. Fahey’s causation

2 Dr. Fahey’s deposition transcript exceed ed 250 pages. The Court has reviewed the entire deposition but
confines discussion to the relevant issues regarding causation of Mr. Merritt’s injuries. The majority of Mr. Merritt’s cross

- examination centered on his complaints regarding Dr. Fahey’s treatm ent recommendations and his perception of his attitude.4

opinions and the treatment he recommended. Those arguments centered on the alleged fact
that Dr. Fahey’s attitude toward him cha nged once Dr. Fahey decided his injuries were not
work

- related. He maintained he had no hand problems before Summer 2020 and argued against Flextronics’s proof as to the nature of his work.

Specifically, Flextronics offered the testimony of a h uman r esources representative who questioned the volume of Mr. Merritt’s work in Summer 2020. However, she admitted she did not actively partici pate in direct supervision of employees and that she has responsibilities over several hundred. Flextronics introduced payroll records that it contended showed Mr. Merritt’s hours did not appreciably increase

, as he claimed

.

Flextronics also offered evidence that Mr. Merritt was the subject of disciplinary actions in 2020 for poor performance, including subpar production at the same time he
claimed an increased workload. It also pointed out Mr. Merritt ha s a pending lawsuit against the short

- term disability carrier for failing to pay non

- work

- related short

- term disability ben e fit s for the same time he is claiming temporar y tota l disability.

Finally, Flextronics introduced proof that Mr. Merritt had worked two other computer/electronics repair jobs since leaving it s employment and that his current job pays fifty percent more per hour than his pre

- injury wage

.

F i ndings of Fact and Conclusions of Law

Mr. M erritt represented himself, as is his right. However , the C ourt can not excuse him from complying with the same substantive and procedural rules that represented parties are expected to observe. Lindsey v. Kellogg Co

., 2022 TN Wrk

. Comp

. App

. Bd

. LEXIS 6 , at *7 (Feb. 17, 2022).

H ere , Mr. Merritt must prove all elements of his claim by a preponderance of the
evidence

. Tenn. Code Ann. § 50

- 6

- 239 (c)(6) (2021). To prevail, he must first prove the

cause of his injur ies by expert medical testimony

. Hart v. Thyssen Krupp Elevator Corp.

, 2020 TN Wrk

. Comp

. App

. Bd

. LEXIS 67 , at *14 (Nov. 25, 2020). Th at testimony must
show his injuries ar o se primarily out of his employment

, which mean s , to a reasonable degree of medical certainty

, that his work at Flextronics contributed more than fifty percent
in cau sing the injuries

. “ Shown to a reasonable degree of medical certainty ” means that the
work was more likely than not the cause. See Tenn. Code Ann. § 50

- 6

- 102(14) (A)

- (D)

.

Flextronics offered Dr. Fahey’s deposition

, and Mr. Merritt offered the C

- 32 forms
of Drs. Hood and Childress. Dr. Fahey gave his opinion that rep etitive in juries are vir t u a ll y imposs ible to prove unde r the current law

. T ha t statement is incorrect ; repetitive injuries

, like all others

, are compensable if they are shown to arise primarily out of the employment. Tenn. Code Ann. § 50

- 6

- 102(14). However, regardless of his mistaken belief of th e law

, Dr. Fahey did state on sev eral occ as i ons that Mr. Merritt’s condition was no t gr eater than5

fifty percent rel ated to his work at Flextronics

. He offered that opini on throughout his

treatment and stood by it when depo s ed

.

Because Mr. Merritt chose him from a panel

, Dr. Fahey’s causation opi nion is presumed correc t subject to rebuttal by a preponderance of the evidence

. See Tenn. Code Ann. § 50

- 6

- 102(E). The Court holds Mr

. Merritt did not rebut Dr. Fahey’ s causation

op inion

.

Specifically

, neither of the C

- 32 forms submitted by Mr. Merritt complie d with the requirements of Tennessee Code Annotated section 50

- 6

- 235 (c) . Specifically, that statute
allows a party to introduce direct testimony from a physician th rough a written medical report if it be ar s the original signature of the physician and contain s the physician’s qualifications in either the body of the report or in a supporting affidavit. Id. at (c)(1). Further, the party seeking to use a report must provide notice of its intent to use it not less
than twenty day s before the intended use

. Id. at (c)(2).

In Watson v. Catlett Constr., 2018 TN Wrk

. Comp

. App

. Bd

. LEXIS 19 , at *6

- 7 (May 18, 2018) , the Appeals Board affirmed the trial court’s exclusion of C

- 32 forms because they were n ot originals and were not accompanied by the required physician qualifications. Likewise, i n Meier v. Lowe’s Home Ctrs ., 2017 TN Wrk. Comp. App. Bd. LEXIS 68, at *9 (Nov. 2, 2017), the Board held that “substantial compliance” with section 235 is not enough; the C

- 32 forms must fully comply with the statutory requirements.

Here, Mr. Merritt timely provided Flextronics with Dr. Hood ’s C

- 32

, but it
contained no statemen t of the doctor’s qualifications

. Further, the Court cannot ascertain if
it is the original.

As to Dr. Childress’s C

- 32, Mr. Merritt served it on Flextronics on February 28,
fewer than twenty days b efore the Compensation Hearing

, and it does not contain Dr. Childress’s qualifications

. Th u s, both C

- 32 forms filed by Mr. Merritt are in admissible as evidence.

Finally, though Mr. Merritt provided his medical records to Flextronics, and filed them with the Court, the records standing alone are hear say and inadmissible.

The Court finds Mr. Merritt credible

. However, b ecause he o ffered no admissible medical proof that his injury arose out of his employme nt, the Court cannot award him the requested benefits.

IT IS, THEREFORE, ORDERED as follows:

1. The Court d ismisses the case with prejudice to its refiling.6

2. Flextronics shall pay $150 .00 to the Court Clerk within five business days after this order becomes final under Tennessee Compilation Rules and Regulations 0800

- 02

- 21

- .06 ( February , 20 22 ).

3. Flextronics shall prepare and submit to the Court Clerk a Statistical Data Form (SD2) within te n business days of this order becoming final.

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

ENTERED April 4, 202 2

.

______________________________________ JUDGE ALLEN PHILLIPS
Court of Workers’ Compensation Claims

Appendix

Exhibits
1. First Report of Work Injury
2. Deposition of Dr. Christian Fahey
3. Notice of Denial (Form C

- 23)
4. C

- 32 of Dr. Rommel Childress

- Identification Only
5. C

- 32 of Dr. Michael Hood

- Identification Only
6. Photograph of Mr. Merritt’s ha nd
7. Choice of Physician Form (C

- 42)
8. Transcript of Mr. Merritt’s recording of a conversation with Dr. Fahey

Identification Only
9. Medical bills and receipts

- Identification Only
10. Medical Records of Dr. Childress

- Identification Only
11. Medical Records of Dr. Hood

- Id entification Only
12. Civil Warrant filed by Mr. Merritt against Hartford Ins. Co.
13. Mr. Merritt’s resume
14. Mr. Merritt’s payroll records at Flextronics

— 2020
15. Records of Short

- Term Disability payments from Hartford
16. Flextronics Coaching Forms regarding Mr. Merritt

T echnical R ecord
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Employer/Carrier’s Objection to Dr. Hood’s Form C

- 32
4. Request for Expedited Hearing7

5. Protective Order Under Rule 26
6. Status Hearing Order
7. Employee Request Acceptance of Dr. Hood’s Form C

- 32 Carpal Tunnel Syndrome
Has Been Verified a s Evidence
8. Notice of Special Appearance
9. Motion for Protective Order
10. Notice of Objection to Motion for Protective Order
11. M otion to Quash Employee’s Written Discovery
12. Response to Motion to Quash Employee’s Written Discovery
13. Order Quashing Discovery Under Tennessee Rules of Civil Procedure 26.03
14. Employee’s Motion to Compel Discovery
15. Employer/Carrier’s Respons e to Employee’s Motion to Compel Discovery
16. Order Denying Motion to Compel Discovery
17. Motion for Discovery
18. Response to Employee’s Motion for Discovery
19. Motion to Compel for 2nd Discovery
20. Employer/Carrier’s Response to Employee’s Motio n to Compel for 2nd Discovery
21. Order Denying Second Motion to Compel Discovery
22. Motion for Scheduling Order
23. Scheduling Order
24. Motion in Limine
25. Employer/Carrier’s Motion to Continue Compensation Hearing
26. Employee Motion Disputing a Continuance of Scheduling Order
27. Order Granting Motion to Amend Scheduling Order and Amended Scheduling
Order
28. Response in Opposition to Plaintiff’s Motion in Limine
29. Order Denying Motion in Limine
30. Memorandum of Law in Support of Employee’s Motion for Summary Judgment
31. Response in Opposition to Memorandum of Law in Support of Employee’s Motion for summary Judgment and/or Employee’s Motion for Su mmary Judgment
32. Post

- discovery Dispute Certification Notice
33. Employer/Carrier’s Pre

- Compensation Hearing Statement
34. Employee’s Pre

- Compensation Hearing Statement
35. Order of Continuance
36. Order Denying Motion for Summary Judgment
37. Empl oyer/Carrier’s Pre

- Trial Brief
38. Employer’s Exhibit List
39. Employer’s Witness List
40. Employee’s Pre

- Trial Brief
41. Employer/Carrier’s Objection to Dr. Childress’ Form C

- 32
42. Employer/Carrier’s Objection to Dr. Hood’s Form C

- 32
43. Employee Response to Objection to Dr. Childress’ Form C

- 32
44. Employee Response to Objection to Dr. Hood’s Form C

- 328 CERTIFICATE OF SERVICE

I certify that a copy of t his Order was sent as indicated on April 4 , 202 2

.

Name Email Service sent to: Kenneth Merritt, Employee X ken

- merritt@msn.com
Paul Nicks , Employer’s Attorney X Pnicks@travelers.com
Jschmid6@travelers.com

Penny Shrum, Clerk of Court Court of Workers’ Compensation ClaimsCompensation 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