FILED 

TN COURIOF 

1\ ORKIRS' CO}.lPINS.ATION 

CtilliS 

TENNESSE BUREAU OF WORKERS' COMPENSATION 

IN THE COURT OF WORKERS' COMPENSATION CLAIMS 

AT CHATTANOOGA 

Steven Gordon, 

Employee, 

v. 

Jake Marshall, LLC, 

Employer, 

And 

The Phoenix Insurance Company. 

) Docket No.: 2016-01-0587 

) 

) 

) State File No.: 13084-2016 

) 

) 

) Judge Audrey A. Headrick 

) 

EXPEDITED HEARING ORDER 

Time 11 :Or7 All 

This matter came before the undersigned workers' compensation judge on April 

10, 2017, on the Request for Expedited Hearing filed by Steven Gordon. The present 

focus of this case is whether Mr. Gordon is entitled to medical and temporary disability 

benefits for his alleged vision, dental, and mental injuries. The central legal issue is 

whether Mr. Gordon is likely to establish at a hearing on the merits that Jake Marshall, 

LLC must provide medical treatment and temporary disability benefits for those issues. 

For the reasons set forth below, the Court holds Mr. Gordon is not entitled to the 

requested benefits at this time. 

History of Claim 

Mr. Gordon, a sheet metal laborer, alleged he sustained vision, dental, and mental 

injuries due to striking his head on a metal beam on February 16, 2016, while working for 

Jake Marshall. He wore a hardhat at the time of the incident. It is undisputed that Mr. 

Gordon sustained a compensable head injury and related neck pain. However, Jake 

Marshall disputes that it is responsible for any unauthorized medical treatment Mr. 

Gordon sought on his own or that it owes Mr. Gordon any temporary disability benefits. 

Jake Marshall provided Mr. Gordon with authorized medical treatment at Erlanger 

Hospital. However, the parties did not submit any medical records from Erlanger. Jake 

Marshall later provided Mr. Gordon with a panel of physicians from which he selected 

Nova Medical Center. Mr. Gordon saw Dr. Daniel Callan at Nova Medical Center a 

1 
week after his injury. Dr. Callan's records indicate Erlanger treated Mr. Gordon for a 

mild concussion and whiplash. Mr. Gordon complained that he "may have chipped a 

crown," had blurry and double vision, occasional dizziness, numbness in his arms and 

legs on occasion, and sometimes experienced shooting pains in his neck and down his 

arms. Dr. Callan diagnosed Mr. Gordon with a cervical spine strain, muscle spasms of 

his back, and a concussion without loss of consciousness. He referred Mr. Gordon for 

physical therapy, prescribed medication, and provided him with work restrictions. 

Two days later, Mr. Gordon drove to Atlanta to see his sister. On the way to 

Atlanta, Mr. Gordon allegedly became paranoid that people were following him and that 

"the employees and doctors that gave him pain medicine were out to get him." (Ex. 11.) 

Kennestone Hospital admitted Mr. Gordon due to his symptoms. Mr. Gordon tested 

positive for THC (marijuana) and reported to the medical providers that he was "using a 

new 'person' to get THC." !d. A day after his admission, Mr. Gordon also disclosed that 

he "[ d]id take muscle relaxants, also relapsed and used cannabis and had 10 drinks the 

night before the paranoia came yesterday." !d. Although the provider encouraged 

sobriety, Mr. Gordon indicated he was "not interested in completely stopping right now." 

!d. The medical provider's opinion was that Mr. Gordon's paranoia had an unclear 

etiology. All diagnostic tests performed were normal. 

Upon his sister's recommendation that Mr. Gordon not return to construction 

work, Mr. Gordon traveled to Wisconsin to see his brother where he began treating with 

his brother's chiropractor. Although the parties did not submit Mr. Gordon's chiropractic 

records, Mr. Gordon testified that his chiropractor told him that his "spine was touching 

his brain," which caused his hallucinations. Upon returning from Wisconsin, Mr. Gordon 

returned to work light duty at Jake Marshall. 

Due to Mr. Gordon's continued complaints to Dr. Callan, he referred Mr. Gordon 

to see a neurologist. Mr. Gordon selected Dr. Subroto Kundu from a panel and saw him 

approximately two months later. 1 When Mr. Gordon saw Dr. Kundu, he continued to 

complain of various symptoms, including that he may have chipped a tooth and had 

continued vision trouble. Mr. Gordon also told Dr. Kundu about his recent psychiatric 

hospitalization. Due to Mr. Gordon's numerous complaints, Dr. Kundu ordered a 

cervical MRI, an EMG/NCV of his upper extremities, and an MRI of his brain. 

At Mr. Gordon's next appointment, Dr. Kundu released him from further followup. Dr. Kundu noted that all of Mr. Gordon's diagnostic tests were all within acceptable 

limits. His opinion was that Mr. Gordon had "no residual defect or disability arising out 

of the context of the work related injury in question and the patient can be recommended 

to return to his regular duties without restrictions." Dr. Kundu stated that Mr. Gordon 

should address his vision problems with an optometrist or ophthalmologist and indicated 

1 In the interim, Mr. Gordon continued to receive authorized treatment rrom Dr. Callan. 

2 
those problems "cannot be considered to be the result of his work-related injury" since 

they were "~on-industrial in nature." 

Mr. Gordon seeks medical benefits and temporary disability benefits for his 

alleged vision, dental, and mental injuries. He argued Jake Marshall is responsible for 

damages to his vision, dental work, mileage and payment of bills for unauthorized 

treatment he sought, and eleven weeks of temporary disability benefits. (Ex. 1.) 

Jake Marshall argued Mr. Gordon did not meet his burden of proof in establishing 

causation of his alleged vision, dental, and mental injuries. It provided Mr. Gordon with 

authorized medical treatment for his work injury. However, during his authorized 

treatment, Mr. Gordon chose to seek unauthorized treatment in other states for unrelated 

conditions. Regarding Mr. Gordon's request for eleven weeks of temporary disability 

benefits, Jake Marshall pointed out that Mr. Gordon had a full return to work within his 

restrictions until Dr. Kundu placed him at maximum medical improvement on June 8, 

2016. Later, Jake Marshall laid him off on July 28 due to a company-wide lay off. 

Therefore, Jake Marshall requested that the Court deny Mr. Gordon's request for 

benefits. 

Findings of Fact and Conclusions of Law 

General Legal Principles 

The following legal principles apply to this case. Mr. Gordon need not prove 

every element of his claim by a preponderance of the evidence in order to recover 

medical and/or temporary disability benefits at an Expedited Hearing. McCord v. 

Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 

(Mar. 27, 20 15). Instead, he must come forward with sufficient evidence from which this 

Court might determine he is likely to prevail at a hearing on the merits. !d.; Tenn. Code 

Ann. § 50-6-239(d)(l) (2016). This lesser evidentiary standard does not relieve Mr. 

Gordon of the burden of producing evidence of an injury by accident that arose primarily 

out of and in the course and scope of employment at an Expedited Hearing, but "allows 

some relief to be granted if that evidence does not rise to the level of a 'preponderance of 

the evidence."' Buchanan v. Car/ex Glass Co., 2015 TN Wrk. Comp. App. Bd. LEXIS 

39, at *6 (Sept. 29, 2015). 

Mr. Gordon must show, to a reasonable degree of medical certainty, that the 

incident "contributed more than fifty percent (50%) in causing the ... disablement or 

need for medical treatment, considering all causes." Further, the causation opinion of Dr. 

Kundu, the panel physician, "shall be presumed correct but this presumption shall be 

rebuttable by a preponderance of the evidence." Tenn. Code Ann. § 50-6-102(14) 

(20 16). 

3 
The Court holds Mr. Gordon failed to establish that he is likely to prevail at a 

hearing on the merits that he sustained vision, dental, and mental injuries that arose 

primarily out of and in the course and scope of his employment. The medical records 

entered into evidence indicate Mr. Gordon sought unauthorized treatment for non-workrelated conditions. Dr. Kundu, the neurologist, specifically stated that Mr. Gordon's 

vision condition was unrelated to the work injury. None of the medical providers, 

including the unauthorized providers, provided an opinion indicating the work injury 

primarily caused his need for treatment regarding his alleged vision, dental, or mental 

conditions. Likewise, there is no indication from the record that Mr. Gordon missed 

eleven weeks of work due to his work-related injury. 

Accordingly, the Court holds Mr. Gordon is unlikely to prevail at a hearing on the 

merits in proving he sustained vision, dental, and mental injuries that arose primarily out 

of and in the course and scope of his employment with Jake Marshall. Therefore, the 

Court denies his request for medical and temporary disability benefits. 

IT IS, THEREFORE, ORDERED as follows: 

1. Mr. Gordon's requested relief is denied at this time. 

2. This matter is set for a Scheduling Hearing on July 11, 2017, at 10:00 a.m., 

Eastern Time. You must call 423-634-0164 or toll free at 855-383-0001 to 

participate. Failure to call in may result in a determination of the issues without 

your further participation. All conferences are set using Central Time (CT). 

ENTERED this the 28th day of April, 2017. 

4 
APPENDIX 

Exhibits: 

1. Affidavit of Steven Gordon 

2. Medical bills (Identification Only) 

3. Recorded Statement of Steven Gordon 

4. Job Description 

5. Wage Statement 

6. First Report 

7. Two Panels 

8. Affidavit of Duncan Dunn 

9. Medical records of Nova Medical Center 

10. Medical records ofDr. Subroto Kundu 

11. Medical records of Kennestone Hospital 

Technical record: 2 

1. Petition for Benefit Determination 

2. Dispute Certification Notice, including additional defenses 

3. Request for Expedited Hearing 

4. Notice of Expedited Hearing 

5. Employer/Carrier's Response to Employee's Request for Expedited Hearing 

2 The Court did not consider attachments to Technical Record filings unless admitted into evidence during the 

Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as 

allegations unless established by the evidence. 

5 
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 28th day 

of April, 20 1 7. 

Name Certified Via 

Mail Fax 

Steven Gordon, X 

Self-Represented 

Employee 

Jennifer Schmidt, 

Employer's Attorney 

Via 

Email 

X 

X 

6 

Service sent to: 

4111 Tennessee Avenue 

Chattanooga, TN 3 7 409 

smgordon86C@gmail.com 

jcshmid(a'J,travelers.com 

RUM, COURT CLERK 

rk@tn.gov