# FILED

TN COURIOF 1\ORKIRS'CO}.lPINS.A TION CtilliS



### TENNESSE BUREAUOFWORKERS' COMPENSATION IN THE COURTOFWORKERS' COMPENSATIONCLAIMS AT CHATTANOOGA
Steven Gordon, Employee, 

### v. JakeMarshall,LLC, Employer, And ThePhoenixInsuranceCompany. ) DocketNo.: 2016-01-0587 ) ) 

### ) StateFile No.: 13084-2016 ) ) 

### ) JudgeAudreyA. Headrick )



### EXPEDITEDHEARING ORDER T ime11:O r7All

This matter came before the undersigned workers' compensationjudge on April 10, 2017, on the Request for Expedited Hearing filed by Steven Gordon. The present focus ofthis 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 requestedbenefits atthistime. 

### History ofClaim
Mr. Gordon, a sheet metal laborer, alleged he sustained vision, dental, and mental injuries due to strikinghis head on ametal beam on February 16, 2016, whileworkingfor Jake Marshall. He wore a hardhat at the time ofthe 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 soughton his own orthat it owes Mr. Gordon any temporary disability benefits.
Jake Marshall providedMr. 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 ofphysicians from which he selected Nova Medical Center. Mr. Gordon saw Dr. Daniel Callan at Nova Medical Center a

1week 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 ofconsciousness. He referred Mr. Gordon for physicaltherapy, prescribed medication, andprovidedhimwith workrestrictions.
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 painmedicinewere outto gethim." (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 afterhis 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 "notinterested in completely stoppingrightnow." 

### !d. The medical provider's opinion was that Mr. Gordon's paranoia had an unclear etiology. All diagnostictests performedwere 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 submitMr. Gordon's chiropractic records, Mr. Gordon testified that his chiropractor told him that his "spine was touching his brain," which caused his hallucinations. Uponreturning from Wisconsin, Mr. Gordon returnedto work light duty atJake 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, anEMG/NCV ofhis upperextremities, and an MRI ofhis brain.
At Mr. Gordon's next appointment, Dr. Kundu released him from further followup. Dr. Kundu noted that all ofMr. Gordon's diagnostic tests were all within acceptable limits. His opinion was that Mr. Gordon had "no residual defect or disability arising out ofthe context ofthe 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 treatmentrrom Dr. Callan

.
2

### those problems "cannot be considered to be the result ofhis 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 treatmenthe sought, and eleven weeks oftemporary disability benefits. (Ex. 1.)
Jake Marshall argued Mr. Gordon did not meet his burden ofproofin establishing causation ofhis 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 oftemporary 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 ofFact and Conclusions ofLaw


### GeneralLegalPrinciples
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, 2015). Instead, he must come forward with sufficient evidence from whichthis 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 ofthe burden ofproducing evidence ofan injury by accidentthat arose primarily out ofand in the course and scope ofemployment at an Expedited Hearing, but "allows
somereliefto be granted ifthat evidence does not rise tothe level ofa 'preponderanceof 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 ofDr. 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) (2016).

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 ofand in the course and scope ofhis 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 elevenweeks ofwork 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 ofand in the course and scope ofhis employment with Jake Marshall. Therefore, the Courtdenies his request for medical andtemporary disabilitybenefits.

IT 

### IS, THEREFORE, ORDERED 

### as follows:
1. Mr. 

### Gordon'srequestedreliefis denied atthis 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 ofthe issues without yourfurtherparticipation. All conferences are setusing Central Time (CT).

ENTERED this the 28th day 

### ofApril, 2017.

4APPENDIX


### Exhibits:
1. Affidavit ofSteven Gordon 2. Medical bills (Identification Only) 3. Recorded Statement ofSteven Gordon 4. Job Description 5. Wage Statement 6. FirstReport 7. Two Panels 8. AffidavitofDuncanDunn 9. Medical records ofNovaMedical Center 10. Medical records ofDr. Subroto Kundu 11. Medicalrecords ofKennestone Hospital
Technicalrecord: 2



### 1. Petition for BenefitDetermination 2. Dispute CertificationNotice, including additional defenses 3. Requestfor ExpeditedHearing 4. Notice ofExpeditedHearing 5. Employer/Carrier'sResponse to Employee'sRequest 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 ofthe Expedited Hearing Order was sent to the following recipients by the following methods ofservice on this the 28th day ofApril, 201 7.

Name Certified Via Mail Fax Steven Gordon, X Self-Represented Employee Jennifer Schmidt, Employer'sAttorney Via Email X

X

6 Service sentto:

4111 TennesseeAvenue Chattanooga, TN3 7409 smgordon86C@gmail.com jcshmid(a' J,travelers.com



### RUM, COURT CLERK rk@tn.gov