FILED 

November 28~ 201,6 

TNCOURTOF 

\1\ ORIITRS ' C01l.flllNS moN 

CLAIMS 

TENNESSEE BUREAU OF WORKERS' COMPENSATION 

IN THE COURT OF WORKERS' COMPENSATION CLAIMS 

AT KNOXVILLE 

ALICEIA HOLLIS, 

Employee, 

v. 

KOMYO AMERICA, 

Employer, 

And 

TOKYO MARINE AMERICA INS. CO., 

Carrier. 

) Docket No.: 2016-03-0298 

) 

) 

) State File No.: 23307-2016 

) 

) 

) Judge Lisa Lowe Knott 

) 

) 

Tinie- 3:18PM 

EXPEDITED HEARING ORDER DENYING MEDICAL AND TEMPORARY 

DISABILITY BENEFITS 

This matter came before the undersigned Workers' Compensation Judge on the 

Request for Expedited Hearing filed by the Employee, Aliceia Hollis, pursuant to 

Tennessee Code Annotated section 50-6-239 (2015) on October 26, 2016. The central 

legal issue is whether Ms. Hollis sustained an L4-5 disc herniation as a result of her 

January 18, 2016 work injury. For the reasons set forth below, the Court finds Ms. Hollis 

has not come forward with sufficient evidence from which this Court concludes that she 

is likely to prevail at a hearing on the merits that her L4-5 disc herniation arose primarily 

out of and in the course and scope <?f her employment. 1 

History of Claim 

Ms. Hollis works as a material handler for Komyo America (Komyo). On January 

18, 2016, while moving products from a cart to a packing station, several car hoods 

tipped over and fell on Ms. Hollis. She testified she injured her back when twisting to 

avoid being hit by the hoods. She gave immediate notice to her supervisor, Jacob 

Wilson. The next day, Ms. Hollis requested medical treatment. Komyo provided a panel 

of physicians, from which Ms. Hollis selected Dr. John Sanabria. 

1 A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order 

as an appendix. 

1 
On January 19, E. Marks2 with Dr. Sanabria's office evaluated Ms. Hollis for 

moderate back pain with shooting and burning sensations. E. Marks assigned restrictions 

of no heavy pushing/pulling/repetitive bending/stooping and no lifting over 25 pounds. 

On February 19, Nurse Practitioner Sandy Covino evaluated Ms. Hollis with Dr. 

Sanabria. On that day, Ms. Hollis reported, "the worst pain is in the buttock but it hurts 

from the left lower back down the back of the leg and into the big toe." (Emphasis 

added.) NP Covino noted, "We feel that at this point it is probable that the patient is 

malingering. For now, she will be given the benefit of the doubt and we will request an 

MRI of the lumbar spine." (Ex. 5.) 

The MRI demonstrated a "broad-based disc protrusion at L4-L5 of indeterminate 

chronicity." Despite the MRI findings, on March 7, Dr. Sanabria diagnosed Ms. Hollis 

with lumbar sprain, placed Ms. Hollis at maximum medical improvement, and noted: 

I explained to [Ms. Hollis] that the findings at L4-5 would not be 

responsible for the pain into her buttocks as problems at this level would 

cause pain down the side of her leg into her toes. It is possible that the 

advanced degenerative changes in the SI joints could be responsible for her 

continued pain however, this would be a pre-existing condition and not 

primarily, a result of the work related strain on January 18, 2016. Since 

there were no acute findings on MRI which would be responsible for [Ms. 

Hollis'] condition, it was recommended that she follow up with her primary 

care physician for further evaluation and management as a non-workrelated issue. 

!d. (Emphasis added.) 

Ms. Hollis continued to have back pain. Because of the pain, she saw her primary 

care physician Dr. Karmi Patel, who referred her to neurosurgeon Dr. Kent Sauter. On 

April 8, Dr. Sauter evaluated Ms. Hollis and, under "History of Present Illness," noted: 

She was injured on the job January 18, 2016, after some objects fell on her 

back at work while she was bent over. She complains of left hip pain with 

pain radiating into left leg and down the medial aspect of the foot and great 

toe. She never had any back or leg pain prior to this incident. 

Dr. Sauter further noted, "It is my impression Ms. Hollis has a left sided L4-5 disc 

herniation with left sided radiculopathy and the pattern consistent with an L4-5 disc 

herniation." (Ex. 4.) 

On April 27, Dr. Sauter performed back surgery and restricted her from working 

2 The provided records do not indicate "E. Marks'" qualifications. 

2 
for approximately fifteen to sixteen weeks. Dr. Sauter released Ms. Hollis to return to 

work on July 18 with restrictions of no lifting greater than thirty pounds. (Ex. 4.) Ms. 

Hollis returned to work for Komyo but testified the work aggravated her back condition. 

As a result of her current pain, Dr. Sauter took her off work on October 10, 2016, and 

ordered a repeat MRJ. 3 

Ms. Hollis testified that she did not have back problems prior to this incident. She 

requested medical benefits with Dr. Sauter and temporary total disability benefits from 

April8, through July 20, 2016, and October 10,2016, to the present. 

Komyo alleged that Ms. Hollis had a pre-existing back problem. It introduced into 

evidence records from Cherokee Medical Center and particularly relied upon a March 31, 

2009 note that said, "She complains of low back pain present for about five days ... It 

goes down her right hip and down her buttock ... She does have a history of bilateral hip 

pain in the remote past." (Ex. 5.) Ms. Hollis stated she did not recall that visit and did 

not receive treatment for back problems from March 31, 2009, up to the date of this 

incident. Komyo relied upon Dr. Sanabria's opinion that Ms. Hollis' disc herniation was 

pre-existing and not work-related to support its position Ms. Hollis is not entitled to 

additional medical and temporary disability benefits. 

Findings of Fact and Conclusions of Law 

In order to grant the relief Ms. Hollis seeks, the Court must apply the following 

legal principles. Ms. Hollis bears the burden of proof on all prima facie elements of her 

workers' compensation claim. Tenn. Code Ann. § 50-6-239(c)(6) (2015); see also 

Buchanan v. Car/ex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd. 

LEXIS 39, at *5 (Tenn. Workers' Comp. App. Bd. Sept. 29, 2015). She need not prove 

every element of her claim by a preponderance of the evidence in order to obtain relief at 

an expedited hearing. McCord v. Advantage Human Resourcing, No. 2014-06-0063, 

2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. 

Mar. 27, 20 15). At an expedited hearing, Ms. Hollis has the burden to come forward 

with sufficient evidence from which this Court can determine she is likely to prevail at a 

hearing on the merits. !d. 

In this case, the parties do not dispute whether Ms. Hollis sustained a work-related 

injury on January 19, 2016. Komyo accepted the claim as compensable, provided a panel 

of physicians, and authorized treatment with Dr. Sanabria's office. The dispute arises 

over whether Ms. Hollis sustained a lumbar sprain or a herniated disc. 

"The opinion of the treating physician, selected by the employee from the 

3 At the time of the Expedited Hearing Ms. Hollis did not have the repeat MRI findings. She testified she has an 

appointment on November 28 to discuss the results with Dr. Sauter. 

3 
employer's designated panel of physicians ... shall be presumed correct on the issue of 

causation but this presumption shall be rebuttable by a preponderance of the evidence." 

Tenn. Code Ann. § 50-6-1 02(l3 )(E) (20 14 ). However, a trial judge "has the discretion to 

conclude that the opinion of one expert should be accepted over that of another expert." 

Reagan v. Tennplasco, No. M2005-02020-WC-R3-CV, 2006 Tenn. LEXIS 1209, at *10 

(Tenn. Workers' Comp. Panel Dec. 27, 2006). As stated by the Tennessee Supreme 

Court, "[ w ]hen faced . . . with conflicting medical testimony . . ., it is within the 

discretion of the trial judge to conclude that the opinion of certain experts should be 

accepted over that of other experts and that it contains the more probable explanation." 

Thomas v. Aetna Life and Cas. Co., 812 S.W.2d 278, 283 (Tenn. 1991) (internal 

quotation marks omitted). 

Here, Dr. Sanabria is the authorized panel physician. Thus, his causation opinion 

is presumed correct. However, the Court has concerns with Dr. Sanabria's opinion. 

First, although Ms. Hollis treated with Dr. Sanabria's office from January 19 through 

March 7, it appears that Dr. Sanabria saw her on one (possibly two occasions). The 

February 19 note indicates NP Covino was the provider but says, "She was examined 

with Dr. Sanabria." March 7 is the only visit where Dr. Sanabria was the primary 

provider to evaluate Ms. Hollis. Second, the Court questions Dr. Sanabria's opinion that 

"the findings at L5 would not be responsible for the pain into her buttocks as problems at 

this level would cause pain down the side of her leg into her toes." The Court does so 

because on February 19, Ms. Hollis reported to NP Covino pain from her left lower back 

down the back of her leg and into her big toe. It appears to the Court that Dr. Sanabria 

either did not review Ms. Hollis' prior descriptions of the pain or chose to ignore them. 

Dr. Sanabria recommended Ms. Hollis follow up with her primary care physician for 

further evaluation and management of her non-work-related condition. 

Ms. Hollis followed Dr. Sanabria's advice and saw her primary care physician, 

who referred her to Dr. Sauter. Consistent with her prior complaints to Dr. Sanabria's 

office, Ms. Hollis reported on her first visit to Dr. Sauter complaints of left hip pain 

radiating into her leg and down to her foot and toe. Ms. Hollis testified that she did not 

have problems with her back prior to this incident. The Court found her to be a credible 

witness. Other than the one reference to back and hip pain in a 2009 medical note, 

Komyo did not provide any other records to support their claim that Ms. Hollis' back 

condition was pre-existing. 

Dr. Sauter's notes contain the history that Ms. Hollis injured her back at work and 

his impression that she sustained a herniated disc. However, the Court finds that alone is 

insufficient to establish that Dr. Sauter is of the opinion Ms. Hollis' disc herniation arose 

primarily out of and in the course and scope of her employment. The fortuitous 

convergence in a doctor's notes of a diagnosis of a condition, accompanied by a history 

indicating the employee reported he or she suffered an injury on the job, falls short of the 

express medical expert opinion on causation that the Workers' Compensation Act 

4 
requires for the recovery of benefits at even the Expedited Hearing stage of a claim. See, 

e.g., James v. Landair Transp., Inc., No. 2015-02-0024, 2015 TN Wrk. Comp. App. Bd. 

28, at* 12 (Tenn. Workers' Comp. App. Bd. Aug. 26, 2015). 

Although the Court has concerns about Dr. Sanabria's causation opinion, Ms. 

Hollis did not provide a rebuttal opinion from Dr. Sauter. As such, the only causation 

opinion before the Court is Dr. Sanabria's presumed correct causation opinion that Ms. 

Hollis' herniated disc is not related to her January 19, 2016 work injury. Consequently, 

the Court holds she is not entitled to medical benefits at this time. Ms. Hollis also sought 

temporary disability benefits. Based on the Court's holding that Ms. Hollis failed to 

establish that her herniated disc arose primarily out of and in the course and scope of her 

employment, she is not entitled to temporary disability benefits at this time. 

As a matter of law, Ms. Hollis has failed to come forward with sufficient evidence 

from which this Court concludes that she is likely to prevail at a hearing on the merits 

that her herniated disc arose primarily out of and in the course and scope of her 

employment. Her requests for medical and temporary disability benefits are denied at 

this time. 

IT IS, THEREFORE, ORDERED as follows: 

1. Ms. Hollis' claim against Komyo America and its workers' compensation carrier 

for the requested medical and temporary disability benefits is denied at this time. 

2. This matter is set for an Initial (Scheduling) Hearing on January 11, 2017, at 10 

a.m. 

ENTERED this the 28th day ofNove 016~ ~~ 

HON. LISA LOWE KNOTT 

Workers' Compensation Judge 

5 
Initial (Scheduling) Hearing: 

An Initial (Scheduling) Hearing has been set with Judge Lisa Lowe Knott, Court 

of Workers' Compensation Claims. The parties must call865-594-0109 or 855-383-0003 

toll free to participate in the Initial Hearing. Failure to appear by telephone may result in 

a determination of the issues without your further participation. 

Righl to Appeal: 

Tennessee Law allows any party who disagrees with this Expedited Hearing Order 

to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of 

Appeal, you must: 

1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal." 

2. File the completed form with the Court Clerk within seven business days of the 

date the Workers' Compensation Judge entered the Expedited Hearing Order. 

3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party. 

4. The appealing party is responsible for payment of a filing fee in the amount of 

$75.00. Within ten calendar days after the filing of a notice of appeal, payment 

must be received by check, money order, or credit card payment. Payments can be 

made in person at any Bureau office or by United States mail, hand-delivery, or 

other delivery service. In the alternative, the appealing party may file an Affidavit 

of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing 

fee. The Affidavit of Indigency may be filed contemporaneously with the Notice 

of Appeal or must be filed within ten calendar days thereafter. The Appeals Board 

will consider the Affidavit of Indigency and issue an Order granting or denying 

the request for a waiver of the filing fee as soon thereafter as is 

practicable. Failure to timely pay the filing fee or file the Affidavit of Indigency 

in accordance with this section shall result in dismissal of the appeal. 

5. The parties, having the responsibility of ensuring a complete record on appeal, 

may request, from the Court Clerk, the audio recording of the hearing for the 

purpose of having a transcript prepared by a licensed court reporter and filing it 

with the Court Clerk within ten calendar days of the filing of the Expedited 

Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of 

the evidence within ten calendar days of the filing of the Expedited Hearing 

Notice of Appeal. The statement of the evidence must convey a complete and 

accurate account of what transpired in the Court of Workers' Compensation 

Claims and must be approved by the workers' compensation judge before the 

record is submitted to the Clerk of the Appeals Board. 

6 
6. If the appellant elects to file a position statement in support of the interlocutory 

appeal, the appellant shall file such position statement with the Court Clerk within 

five business days of the expiration of the time to file a transcript or statement of 

the evidence, specifying the issues presented for review and including any 

argument in support thereof. A party opposing the appeal shall file a response, if 

any, with the Court Clerk within five business days of the filing of the appellant's 

position statement. All position statements pertaining to an appeal of an 

interlocutory order should include: ( 1) a statement summarizing the facts of the 

case from the evidence admitted during the expedited hearing; (2) a statement 

summarizing the disposition of the case as a result of the expedited hearing; (3) a 

statement of the issue(s) presented for review; and (4) an argument, citing 

appropriate statutes, case law, or other authority. 

7 
APPENDIX 

Technical Record: 

• Petition for Benefit Determination, filed March 24, 2016; 

• Dispute Certification Notice, filed March 9, 2016; 

• Motion to Compel, issued May 16, 2016; 

• Order Denying Employer's Motion to Compel, entered May 31, 2016; 

• Motion to Reconsider, filed June 7, 2016; 

• Response to Motion to Reconsider, filed June 13, 2016; 

• Order Denying Employer's Motion to Reconsider, entered June 16, 2016; 

• Request for Expedited Hearing, filed July 8, 20 16; 

• Request for Initial Hearing, filed August 15, 2016; 

• Order, entered September 20, 2016; 

• Employer's Brief in Opposition to Employee's Petition for Medical Benefits and 

Temporary Total Disability Benefits, filed October 12, 2016; and 

• Agreed Order Allowing Defendant's Attorney Access to Plaintiffs Medical 

Records and Employment Records, entered October 17, 2016. 

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. 

Exhibits: 

• EXHIBIT 1: Affidavit of C. Edward Daniel on behalf of Aliceia Hollis; 

• EXHIBIT 2: Wage Statement, Form C-41; 

• EXHIBIT 3: Panel ofPhysicians, Form C-42; 

• EXHIBIT 4: Komyo's Position Description; 

• EXHIBIT 5: Notice of Filing of Medical Records of Kent Sauter, M.D.; and 

• EXHIBIT 6: Table of Contents ofMedical Records 

• John Sanabria, M.D., pps. 1-14; 

• Cherokee Health Systems, pps. 15-33; 

• Benchmark Physical Therapy, pps. 34-39; and 

• Kent Sauter, M.D. 

8 
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 

ofNovember, 2016. 

Name Certified Via 

Mail Fax 

C. Edward Daniel, Esq., 

Employee's Attorney 

Gregory H. Fuller, Esq., 

Chris G. Rowe, Esq., 

Employer's Attorney 

Via 

Email 

X 

X 

9 

Service sent to: 

eddie@eddiedaniellaw.com 

ghfuller@mij s.com 

cgrowe@mijs.com 

Y SHRUM, Court Clerk 

C.CourtCier){@tn.gov