TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT NASHVILLE 

GERALD C. COON, )

Employee, ) Docket No. 2018-06-0018

v. )

COMMERCIAL WAREHOUSE AND 

CARTAGE, INC.,

)

) State File No. 96917-2017

Employer, )

And

WESTFIELD GROUP,

 Insurance Carrier.

)

)

)

)

Judge Joshua Davis Baker

EXPEDITED HEARING ORDER DENYING 

REQUESTED BENEFITS

The Court convened an expedited hearing on July 10, 2018, to determine Gerald 

C. Coon’s request for temporary disability and medical benefits. Commercial Warehouse 

and Cartage, Inc. (CWC) opposed the request, arguing that Mr. Coon failed to carry his 

burden of proving entitlement to either benefit. The Court agrees and denies Mr. Coon’s 

request for benefits. 

Claim History

This claim concerns an alleged injury from safety equipment failure. Mr. Coon 

worked several jobs for CWC at its warehouse in Portland, Tennessee. One job, order 

picker, required him to fill orders by removing products from stacked bins reaching as 

high as thirty feet in the air. Mr. Coon rode a lift that elevated him to the appropriate 

height to retrieve products from the bins. He wore a “safety lanyard”—a harness 

attached to the lift—that kept him from falling. The lanyard worked similarly to a 

seatbelt and would lock if Mr. Coon began to fall. 

Mr. Coon alleged he injured his back on September 22, 2017, when the lanyard 

malfunctioned by locking up and jerking his body. He reported the injury to a CWC 

supervisor but declined an offer of medical treatment, thinking he had only strained his 

FILED

Jul 26, 2018

02:32 PM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS
2

back. According to an incident report Mr. Coon completed after a previous workplace 

incident, he suffered from chronic back problems for thirty years prior to that incident. 

Mr. Coon testified that his pain continued over the next several months and he 

attributed his pain to the September 22 accident. He claimed that he asked several people 

at CWC to see a doctor, but they denied his request.

For its part, CWC presented testimony from several witnesses, in-person and by

declarations, indicating Mr. Coon neither exhibited difficulty performing his job nor 

requested medical care after his injury. Lisa Bayless, the CWC environmental health and 

safety manager, stated she “observed Mr. Coon able to perform his job duties without low 

back/leg pain or symptoms during the period from September 22, 2017[,] through his last 

day to physically work[.]” In a separate declaration, Diane Barber, Mr. Coon’s direct 

supervisor, stated she never observed Mr. Coon having any low-back or leg problems. 

She further stated Mr. Coon did not request medical treatment for these conditions over 

the same period. Rendi Jordan, CWC’s human resources director, agreed with Ms. 

Barber and testified she had several conversations with Mr. Coon following his alleged 

injury in which he never requested medical treatment.

Rick Schutte, another CWC employee, also testified that Mr. Coon never 

requested medical care. However, Mr. Schutte did admit that Mr. Coon complained of 

back pain. To mitigate this pain, Mr. Schutte moved Mr. Coon to the less strenuous job 

preparing parts for inventory. Mr. Coon worked this job and several others from his date 

of injury until November 17, the last day he worked at CWC. 

On November 19, 2017, Mr. Coon experienced more severe back pain. The 

incident occurred when he exited the shower and reached for a towel. He went to the 

emergency room (ER) room, and the records from that visit noted Mr. Coon gave a 

history of having lower back pain and intermittent leg weakness that began about six 

weeks earlier while lifting a heavy box at work. He described his pain on this day as 

being in the same location in his back.

The ER called CWC to inquire about the accident. Ms. Jordan received the call 

and sent Ms. Bayless to the hospital to be with Mr. Coon. According to her declaration, 

“Mr. Coon stated he was sitting at home drinking coffee and watching TV when he began 

experiencing unbearable back pain.” The ER released Mr. Coon the same day but 

imposed work restrictions. 

On December 8, 2017, Ms. Jordan sent Mr. Coon a letter via email informing him 

that CWC could accommodate the restrictions. The letter invited Mr. Coon to “report to 

work when you feel you are able to.” Mr. Coon sent a reply email indicating that other 

conditions not related to his alleged work injury prevented him from returning to work. 

CWC terminated him soon thereafter. 
3

In early December, CWC offered Mr. Coon a panel of physicians from which he 

selected Portland Family Care. He saw Randy Tidwell, a family nurse practitioner, on 

December 11, 2017. Mr. Tidwell could not determine whether Mr. Coon’s symptoms 

arose primarily out of and in the course and scope of his employment for CWC.1 He

noted that Mr. Coon acted in an intimidating manner when Mr. Tidwell relayed his 

causation opinion. 

Due to the conflict with Portland Family Care, CWC offered two more panels to 

Mr. Coon. The physician chosen from the second panel declined to treat him. Mr. Coon 

then selected Concentra from the third panel and saw Dr. Robert Carver in early January. 

Dr. Carver diagnosed him with degenerative disc disease and lumbosacral radiculopathy. 

He wrote the following in his notes: “Based on a careful exam of the patient, as well as 

the information obtained about his job duties and mechanism of injury, it does not appear 

that the presenting complaints arose out of his job duties in the course of the patient 

performing those duties.” Dr. Carver released Mr. Coon from his care and imposed 

workplace restrictions that “should remain in effect until seen by a spine surgeon.” Dr. 

Carver also indicated Mr. Coon should seek treatment from a spine surgeon on his own.

Thereafter, Mr. Coon saw Dr. Chine S. Logan, a neurosurgeon, who operated on 

his back. Dr. Logan wrote a letter stating Mr. Coon “has a long standing history of 

chronic low back pain” which grew worse after a long work shift. Upon review of his 

symptoms, “radiographic findings” and “intraoperative observation,” Dr. Logan wrote 

that Mr. Coon “experienced a work related aggravation of pre-existing lumbar 

spondylotic disease process.”

CWC sought its own causation opinion from Dr. William M. Gavigan, a 

neurosurgeon. Dr. Gavigan reviewed Mr. Coon’s records and diagnosed a lumbar strain 

occurring on September 22, 2017. He also diagnosed preexisting degenerative disc 

disease and a left disc herniation that occurred in late November, approximately two 

months after the date of his initial injury. He found that the lumbar strain arose from the 

workplace accident but the disc herniation did not. 

Findings of Fact and Conclusions of Law

Mr. Coon seeks temporary disability benefits and medical treatment. Mr. Coon 

need not prove every element of his claim by a preponderance of the evidence to receive 

these benefits through an expedited hearing. Instead, he must present sufficient evidence 

showing he would likely prevail at a hearing on the merits. McCord v. Advantage 

 

1 Mr. Tidwell, as a nurse practitioner, lacked the necessary credentials to give a causation opinion, and the 

Court did not consider his opinion in its determination. 
4

Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). 

The Court holds Mr. Coon failed to carry his burden and denies his claim. 

To receive benefits, Mr. Coon must show he suffered an injury “caused by a 

specific incident, or set of incidents, arising primarily out of and in the course and scope 

of employment . . . [that] is identifiable by time and place of occurrence.” An injury 

“arises primarily out of and in the course and scope of employment” only if the 

“employment contributed more than fifty percent (50%) in causing the injury, 

considering all causes[.]” Tenn. Code Ann. § 50-6-102(14). “Except in the most 

obvious, simple and routine cases, the claimant in a workers’ compensation action must 

establish by expert medical evidence the causal relationship . . . between the claimed 

injury (and disability) and the employment activity.” Orman v. William Sonoma, Inc., 

803 S.W.2d 672, 676 (Tenn. 1991). 

Ample proof suggested Mr. Coon had an accident at work. The witnesses 

generally agreed that he reported an accident on September 22, 2017. The witnesses also 

agreed that Mr. Coon declined medical treatment. After that, the proof diverged. 

Mr. Coon claimed he continued to suffer pain from the accident, which made it 

difficult to do his job. He further claimed CWC declined to provide treatment when he 

asked for it. 

CWC provided evidence contradicting Mr. Coon’s assertions. According to the 

statements provided by Ms. Barber and Ms. Bayless, they saw no indication that Mr. 

Coon continued to suffer pain from the accident. They further stated that Mr. Coon never 

requested medical care for his condition from September 22—the date of the injury—

until November 17—the last day he worked for CWC. Ms. Jordan said she spoke on a 

few occasions with Mr. Coon during this same period, and he never requested medical 

treatment for his back. Additionally, she also said she would have provided Mr. Coon 

treatment sooner if he had requested it. Mr. Schutte concurred with Ms. Jordan’s 

testimony concerning that detail. 

Because the parties presented conflicting testimony, the Court must decide which 

explanation is most plausible. This determination requires an inquiry of witness 

credibility. The Court finds that Mr. Coon did not present credible testimony. While 

testimony from a witness who is self-assured, steady, confident, forthcoming, reasonable 

and honest indicates reliability, see Kelly v. Kelly, 445 S.W.3d 685, 694-695 (Tenn. 

2014), Mr. Coon appeared reluctant, argumentative and even angry in his testimony. 

Additionally, some of his testimony changed during the course of cross-examination in 

an effort to evade providing answers harmful to his case. For example when asked about 

riding his motorcycle on the day of a rally, he admitted riding it to get gas but denied 

riding any further. Only when confronted with a photo of him sitting on a bike at the 

rally did Mr. Coon admit he rode at the rally. 
5

Conversely, Ms. Jordan and Mr. Schutte seemed reasonable and steady while on 

the stand. Furthermore, the documentary evidence, in particular the panels of physicians 

CWC provided to Mr. Coon, supported the testimony that CWC gave Mr. Coon medical 

care when he asked for it. Because these witnesses testified in a manner indicating 

honesty and reliability, and their testimony is corroborated by the documentary evidence, 

the Court credits Ms. Jordan and Mr. Schutte’s testimony over that of Mr. Coon. In 

crediting their testimony, the Court holds that Mr. Coon did not ask for additional 

medical care until November 19, 2017. 

Although Mr. Coon declined care initially, CWC provided him several panels of 

physicians when he finally requested treatment. In the end, three physicians provided an 

opinion on the cause of his back condition. Dr. Carver, a panel physician, determined 

that Mr. Coon suffered from degenerative disc disease and lumbosacral radiculopathy but 

did not causally relate those conditions to his work at CWC. He suggested Mr. Coon 

seek treatment for these non-work-related conditions privately and released him from

care. As a panel physician, Dr. Carver’s causation opinion is presumed correct. Tenn. 

Code Ann. § 50-6-102(14)(E). Dr. Logan, a neurosurgeon whom Mr. Coon saw privately

and who operated on his back, provided a different causation opinion. He wrote that Mr. 

Coon “experienced a work related aggravation of pre-existing lumbar spondylotic disease 

process.” Dr. Gavigan, a neurosurgeon from whom CWC requested a causation opinion,

reviewed Mr. Coon’s records and diagnosed a lumbar strain occurring on September 22, 

2017. He also diagnosed preexisting degenerative disc disease and a left disc herniation 

that occurred in late November. He gave the opinion that the lumbar strain arose from 

the September workplace accident but the disc herniation did not. 

In considering these three opinions and the evidence provided overall, the Court 

finds that Mr. Coon failed to overcome the presumption of correctness attached to Dr. 

Carver’s negative causation opinion. Although Dr. Logan, as a neurosurgeon, has a more 

attended specialty to Mr. Coon’s condition, his causation opinion provided little detail 

about what specific work activity caused Mr. Coon’s problems. In the Court’s opinion, 

the lack of any language concerning the specific workplace accident in the causation 

opinion—and the omission of any mention of the incident where Mr. Coon experience 

pain while exiting the shower—indicates that Mr. Coon failed to give Dr. Logan a 

complete history. 

Although the Court credits Dr. Carver’s opinion, the Court finds Dr. Gavigan’s 

more detailed opinion more persuasive most persuasive. Considering his opinion in light 

of the lay testimony, the Court finds that Mr. Coon’s compensable injury is confined to a 

lumbar strain. As recounted above, Dr. Coon provided Mr. Coon authorized treatment 

for the strain and indicated he needed no further care for this condition. The Court, 

therefore, holds Mr. Coon would not likely prevail at a hearing on the merits in proving 

entitlement to additional medical treatment for his workplace injury. 
6

Regarding temporary disability benefits, the Court finds that Mr. Coon is 

not entitled to them. An employee is entitled to receive temporary total disability 

benefits under Tennessee Code Annotated § 50-6-207(1) whenever the employee 

has suffered a compensable, work-related injury that has rendered the employee 

unable to work. See Young v. Young Elec. Co., 2016 TN Wrk Comp. App. Bd. 

LEXIS 41, at *11-12 (Sept. 14, 2016). Mr. Coon suffered a lumbar strain on 

September 22, 2017. He presented no proof that any doctor took him off of work 

due to the lumbar strain. The Court, therefore, finds that Mr. Coon is unlikely to 

prevail at a hearing on the merits for temporary disability benefits. 

IT IS, THEREFORE, ORDERED as follows:

1. The Court denies Mr. Coon’s request for temporary disability and 

additional medical benefits. 

2. This matter is set for a status conference on Monday, August 27, 2018, at 

10:00 a.m. (CDT). The parties must call 615-741-2113 or toll-free at 

855-874-0474 to participate in the Hearing. Failure to call in may 

result in a determination of the issues without your further 

participation.

ENTERED ON JULY 26, 2018.

_________________________________

Judge Joshua Davis Baker

Court of Workers’ Compensation Claims
7

APPENDIX

Exhibits:

1. Medical records 

2. Mr. Coon’s affidavit

3. Medical panels

4. First Report of Injury

5. Email dated January 12, 2018

6. Collections CWC business records

7. Email and letter December 8, 2017

8. Letter dated January 10, 2018

9. Accident recordation documents dated May 19, 2017

10.Accident recordation documents dated September 22, 2017

11.Email dated December 18, 2017

12.Accident recordation documents dated November 17, 2017

13.Photos

14.Rule 72 Declaration of Karen Robins 

15.Rule 72 Declaration of Lisa Bayless

16.Rule 72 Declaration of Diane Barber

17.Rule 72 Declaration of Rick Schutte 

18.Medical Records 

19.Medical report of Dr. Gavigan dated June 21, 2018

20.Dr. Gavigan Comprehensive Report (for ID purposes only)

21.Dr. Logan letter

Technical Record:

1. Petition for benefit determination 

2. Dispute certification notice

3. Request for expedited hearing

4. Mr. Coon’s prehearing brief

5. CWC’s prehearing brief
8

CERTIFICATE OF SERVICE

I certify that a true and correct copy of the foregoing was sent to the following 

recipients by the following methods of service on July 26, 2018.

Name Certified 

Mail

Via 

Fax

Via 

Email

Addresses

Gerald C. Coon X coon_36@hotmail.com

Thomas W. Tucker, 

III

X tomtucker@bellsouth.net

_______________________________________

Penny Shrum, Court Clerk

Court of Workers’ Compensation Claims

Wc.courtclerk@tn.gov