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TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT MEMPHIS

KEITH WRIGHT, ) Docket No. 2018-08-0654

Employee, )

v.

)

)

)

State File No. 97719-2015

CUMMINS ENGINE COMPANY, 

INC.,

 Employer.

)

)

)

Judge Deana C. Seymour

________________________________________________________________________

COMPENSATION HEARING ORDER DENYING BENEFITS

This case came before the Court on March 20, 2019, for a Compensation Hearing

on Mr. Wright’s request for medical, temporary and permanent disability benefits. For the 

reasons below, the Court holds Mr. Wright did not prove he sustained a compensable 

work injury and denies his claim.

History of Claim

Mr. Wright worked as a CNC operator for Cummins on November 20, 2015, when 

he claimed a repetitive injury to his arms and neck. He reported the injury to Cummins 

and selected Dr. Lloyd Robinson from a panel of physicians for treatment.

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After conservative treatment, Dr. Robinson referred Mr. Wright to Dr. Christian 

Fahey, an orthopedic specialist. Mr. Wright complained of bilateral elbow pain, right 

worse than left, on January 25, 2016. Dr. Fahey performed a physical examination, 

reviewed x-rays of the right symptomatic elbow, and concluded, “[H]e has pain without 

any anatomic correspondence.” Dr. Fahey released Mr. Wright at maximum medical 

improvement (MMI) with no permanent impairment.

 1 The Parties stipulated that Dr. Lloyd Robinson, Dr. Christian Fahey and Dr. Tyler Cannon provided 

authorized medical treatment. They stipulated to introducing their medical records, which the Court 

accepted as evidence.

FILED

Apr 24, 2019

12:33 PM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS
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Dissatisfied, Mr. Wright asked for another doctor, and Cummins provided a panel 

of orthopedic surgeons. He chose Dr. Tyler Cannon. At his first visit, Mr. Wright 

described bilateral arm pain but denied any neck pain or neurological deficits. Dr. 

Cannon assessed bilateral forearm pain that “did not correlate with any significant 

anatomic process.” Dr. Cannon focused on Mr. Wright’s more symptomatic right arm. He 

ordered a right-elbow MRI at Mr. Wright’s insistence and continued him at full duty. 

When the MRI returned normal, Dr. Cannon released Mr. Wright at MMI with no 

permanent impairment on February 25. He concluded that his work did not cause or 

contribute more than fifty percent to his right forearm and elbow pain.2

Still displeased, Mr. Wright visited his primary care physician, Dr. Laura 

Lendermon.3 She ordered a nerve conduction study and cervical MRI. The nerve 

conduction results showed no cervical or bilateral extremity radiculopathy. Mr. Wright 

underwent a cervical nerve block after the cervical MRI showed moderate to severe 

cervical canal stenosis along with central canal stenosis. 

On October 21, Mr. Wright returned to Dr. Cannon with bilateral arm and neck

pain. Dr. Cannon reviewed the medical records Mr. Wright provided and examined him. 

Dr. Cannon determined that he had no permanent impairment and concluded, “I do not 

think his symptoms are correlated necessarily with work and given that he does not have 

a work injury I do not think that the cause is work related.” 

Cummins terminated Mr. Wright on October 24 for violating its attendance policy. 

He missed twelve days of work without providing documentation to excuse his 

absenteeism.

Ten days later, Mr. Wright saw Dr. Manuel Carro by referral from Dr. Lendermon. 

Dr. Carro believed he would benefit from a block and physical therapy. Mr. Wright 

testified he declined treatment because he lost insurance coverage after his termination. 

Contrary to Dr. Carro’s record, Mr. Wright contended Dr. Carro suggested a cervical 

fusion.

Mr. Wright consulted neurosurgeon Dr. Thomas Windham about surgery in June 

2017. Dr. Windham ordered a CT-myelogram that showed degenerative changes in Mr. 

Wright’s neck. Dr. Windham did not recommend surgery but ordered cervical blocks.4

 2 Dr. Cannon did not address the less symptomatic left-arm complaints.

3 The parties stipulated to introducing the medical records of Dr. Laura Lendermon, Dr. Manuel Carro,

and Dr. Thomas Windham, which were attached to Dr. Samuel Chung’s deposition.

4 Dr. Windham’s records do not show whether Mr. Wright underwent the cervical blocks.
3

Afterward Mr. Wright scheduled an independent medical examination with Dr. 

Samuel Chung, who is board-certified in physical medicine, rehabilitation, and 

independent medical evaluations. Dr. Chung testified by deposition that on December 11, 

2018, he evaluated Mr. Wright, who complained of neck pain radiating into his arms. He 

reviewed Mr. Wright’s medical records, including unauthorized treatment records after 

Drs. Fahey and Cannon released him at MMI.

Dr. Chung diagnosed “residual from cervical injury with on going right cervical 

radiculopathy.” He assigned an eleven-percent permanent impairment rating from a 

repetitive work injury and suggested he avoid overhead work, work away from the body,

and repetitive activity. Dr. Chung did not address Mr. Wright’s bilateral arm and cervical 

pain from a rear-end automobile accident two months before his alleged work injury. He 

testified that a minor rear-end automobile accident in January 2018 did not worsen Mr. 

Wright’s neck symptoms.5

At the hearing, Mr. Wright insisted he sustained a gradually-occurring injury to his 

arms and neck arising primarily out of and in the course and scope of his employment 

with Cummins. He questioned the correctness of his ATPs’ opinions and argued that 

neither ATP examined his neck, which Dr. Chung concluded caused his symptoms. Mr. 

Wright further relied on Dr. Chung’s testimony to show his neck injury resulted in 

permanent impairment and restriction. 

Cummins countered that Mr. Wright failed to prove the compensability of his 

claim by a preponderance of the evidence, considering all causes. Cummins contended

that Mr. Wright did not disclose Dr. Cannon’s complete record or medical records of 

treatment for a rear-end automobile accident two months before he claimed this work 

injury. It also pointed out pre-existing neck and arm complaints of which Dr. Chung had 

no knowledge and inconsistencies in Dr. Chung’s testimony, contending his opinions did 

not rebut the ATPs’ opinions by a preponderance of the evidence.

Cummins introduced documentation of a lawsuit where Mr. Wright claimed 

disabling and permanent injuries to his back, neck, and other body parts from the prior 

automobile accident. It further relied on medical and chiropractic records predating the 

work injury, including Mr. Wright’s complaints of neck and bilateral arm pain.

Cummins also argued that Dr. Chung listed the previous automobile accident date 

rather than the work injury date on his IME report. Dr. Chung testified that he did not 

review medical records from, nor did Mr. Wright tell him about, that accident. Dr. Chung 

agreed the conditions Mr. Wright alleged after the automobile accident were the same 

conditions Dr. Chung evaluated. Dr. Chung testified that the automobile accident could 

 5 The Parties stipulated to medical records from We Care Chiropractic and NP Family Health & Wellness 

Clinic for treatment related to his automobile accidents, which the Court accepted as evidence.
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cause or worsen his neck symptoms. He further agreed that Mr. Wright’s symptoms after 

the January 2018 automobile accident resulted in a CT scan and other diagnostic tests of 

Mr. Wright’s neck.

Finally, Cummins disputed the basis of Dr. Chung’s impairment rating. Although 

Dr. Chung based the eleven-percent impairment rating on verifiable cervical 

radiculopathy, two EMG/nerve conduction studies and a CT myelogram failed to reveal

cervical radiculopathy.

Findings of Fact and Conclusions of Law

At a Compensation Hearing, the employee must establish by a preponderance of 

the evidence that he is entitled to the requested benefits. Willis v. All Staff, 2015 TN Wrk. 

Comp. App. Bd. LEXIS 42, at *18 (Nov. 9, 2015); see also Tenn. Code Ann. § 50-6-

239(c)(6) (2018). The employee must establish that his injury or condition “arose 

primarily out of and in the course and scope of employment.” Tenn. Code Ann. § 50-6-

102(14)(A).

Mr. Wright’s burden requires proof “by a preponderance of the evidence that the 

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

all causes.” Tenn. Code Ann. § 50-6-102(14)(B). He must establish this evidence “to a 

reasonable degree of medical certainty.” Tenn. Code Ann. §50-6-102(14)(C). “The 

opinion of the treating physician, selected by the employee from the 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. § 50-6-102(14)(E).

Here, Dr. Cannon reasoned that Mr. Wright’s work with Cummins did not 

contribute more than fifty percent in causing the injury, considering all causes. Both Drs. 

Fahey and Cannon assigned no permanent impairment. As authorized treating physicians 

their opinions are presumed accurate. Tenn. Code Ann. § 50-6-204(k)(7).

To rebut the treating physicians’ opinions, Mr. Wright offered the testimony of Dr. 

Chung. The Court notes Dr. Chung’s IME occurred three years after Mr. Wright reported 

pain in his arms to Cummins. Dr. Chung had no records from his prior automobile 

accident, earlier neck and arm complaints, or complete records from ATP Cannon until 

his deposition. Dr. Chung did not know about the automobile accident Mr. Wright had 

two months before he notified Cummins of his gradually-occurring work claim. When 

provided the information at his deposition, Dr. Chung agreed the conditions Mr. Wright 

alleged after the automobile accident were the same conditions he evaluated. Dr. Chung 

testified that the automobile accident could have caused or worsened his neck symptoms.

For these reasons, the Court holds Dr. Chung’s opinion failed to prove Mr. Wright 
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sustained a compensable work injury and to rebut the presumption afforded to Mr. 

Wright’s ATP by a preponderance of the evidence. 

Accordingly, the Court holds that Mr. Wright failed to establish by a 

preponderance of the evidence that he suffered a compensable work injury on November 

20, 2015. Therefore, it denies Mr. Wright’s claim for benefits.

IT IS, THEREFORE, ORDERED as follows:

1. Mr. Wright’s claim against Cummins and its workers’ compensation carrier is 

dismissed with prejudice against its refiling.

2. Costs of $150.00 are assessed against Cummins under Tennessee Compilation 

Rules and Regulations 0800-02-21-.07 (2018), to be paid to the Court Clerk within 

five days of this order becoming final.

3. Cummins shall prepare and file a statistical data form (SD2) with the Court Clerk 

within ten business days of the date of this order under Tennessee Code Annotated 

section 50-6-244.

4. Absent an appeal, this Order shall become final in thirty days.

ENTERED on April 24, 2019.

_____________________________________

Judge Deana C. Seymour

Court of Workers’ Compensation Claims

APPENDIX

Exhibits:

1. Dr. Chung’s deposition

2. Dr. Christian Fahey (by medical record)

3. Dr. Tyler Cannon (by medical record)

4. We Care Chiropractic/Dr. Renwick Tucker (by medical record)

5. NP Family Health & Wellness Clinic (by medical record)

6. September 30, 2016 Complaint for Damages

7. October 14, 2016 Separation Notice

8. Employee Attendance Policy effective August 1, 2016

9. September 8, 2016 Notice of Verbal Warning
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10. September 29, 2016 Notice of Final Reprimand 

11. October 31, 2016 Grievance Form

12. November 23, 2015 Choice of Physician Form - Dr. Lloyd Robinson

 13. February 10, 2016 Choice of Physician Form – Dr. Tyler Cannon

14. Wage Statement 

15. First Report of Injury 

Technical Record:

1. Petition for Benefit Determination 

2. Dispute Certification Notice

3. Request for Scheduling Hearing 

4. Scheduling Order 

5. Amended Scheduling Order 

6. Medical Record of Authorized Treating Physician, Dr. Christian Fahey 

7. Medical Records of We Care Chiropractic and Dr. Renwick Tucker 

8. Medical Record of Authorized Treating Physician, Dr. Tyler Cannon 

9. Medical Record of NP Family Health & Wellness Clinic

10. Employee’s Witness and Exhibit List 

11. Notice of Filing Deposition Transcript of Dr. Samuel Chung 

12. Dr. Chung’s deposition

13. Stipulated Witnesses, Exhibits and Medical Records 

14. Pre-Compensation Hearing Statement 

Stipulated Findings of Fact:

1. Employee’s alleged date of injury is November 20, 2015.

2. Employee gave notice of the alleged injury to Employer on November 20, 

2015.

3. Employee is 36 years of age and a resident of Shelby County.

4. Employee has completed the 12th grade and has obtained a high school 

diploma or GED. 

5. Employee received authorized medical treatment for the injury with the 

following medical providers: Employee chose Dr. Lloyd Robinson at 

Occumed from the initial panel provided by Employer, who then referred 

him directly to orthopedic surgeon, Dr. Christian Fahey at Memphis 

Orthopedic Group. Employer then provided another panel of physicians 

from which Employee chose Dr. Tyler Cannon with Tabor Orthopedic for a 

second opinion and further assessment and care. Medical expenses were 

paid by the Employer or its workers’ compensation insurance 

carrier/administrator in the amount of $4,940.93.

6. Employee reached the maximum level of medical improvement that the 

nature of the injury permits on January 25, 2016 by Dr. Fahey and February 

25, 2016 by Dr. Cannon. 
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7. Employee returned to work for the Employer, earning the same or greater 

wages as the Employee was earning prior to the injury but was 

subsequently terminated for violation of company policies. The Parties do 

not stipulate as to whether Employee qualifies for any enhanced benefits.

8. Employee’s average weekly wage is $1,248.22, which entitles Employee to 

a weekly compensation rate of $832.15.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of this Compensation Order was sent 

to the following recipients by the following methods of service on April 24, 2019.

Name Via Email Service sent to:

Christopher Taylor, Esq.,

Employee’s Attorney

X ctaylor@taylortoon.com

Kevin Washburn, Esq.,

Employer’s Attorney

X kwashburn@allensummers.com

______________________________________

 Penny Shrum, Court Clerk

Court of Workers’ Compensation Claims

WC.CourtClerk@tn.gov
II 

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Compensation Hearing Order Right to Appeal: 

'I 

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: "Compensation Hearing 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 ofthe filing fee. You must file the fullycompleted Affidavit of Indigency within ten calendar days of filing the Notice of 

Appeal. Failure to timely pay the filing fee or file the Affidavit of lndigency will 

result in dismissal of your appeal. 

3~ You bear the responsibility of ensuring a complete record on appeal. You may request 

from the court 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 after 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 and 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. 


II 

' 

Tennessee Bureau of Workers' Compensation 

220 French Landing Drive, 1-B 

Nashville, TN 37243-1002 

800-332-2667 

AFFIDAVIT OF INDIGENCY 

I, , having been duly sworn according to law, make oath that 

because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be 

waived. The following facts support my poverty. 

1. Full Name: ______ _____ _ 2. Address: - ------------

3. Telephone Number: - - ------- 4. Date of Birth:-----------

5. Names and Ages of All Dependents: 

----------------- Relationship:-------------

----------------- Relationship:-------------

----------------- Relationship:-------------

---------------- - Relationship:-------------

6. I am employed by: - - ---------------------------

My employer's address is:-------------------------

My employer's phone number is:-----------------------

7. My present monthly household income, after federal income and social security taxes are deducted, is: 

$ ______ _ 

8. I receive or expect to receive money from the following sources: 

AFDC $ per month beginning 

SSI $ per month beginning 

Retirement $ per month beginning 

Disability $ per month beginning 

Unemployment $ per month beginning 

Worker's Camp.$ per month beginning 

Other $ per month beginning 

LB-1108 (REV 11/15) RDA 11082 

I. 

I 
9. My expenses are: ! ~ 

' 

Rent/House Payment $ 

Groceries $ 

Electricity $ 

Water $ 

Gas $ 

Transportation $ 

Car $ 

per month 

per month 

per month 

per month 

per month 

per month 

per month 

Med icai/Dental $ 

Telephone $ 

School Supplies $ 

Clothing $ 

Child Care $ 

Child Support $ 

li 

I 

_ ____ per month 

_____ per month 

_ _ ___ per month 

_____ per month 

_____ per month 

_____ per month 

Other $ per month (describe: 

10. Assets: 

Automobile $ ____ _ 

Checking/Savings Acct. $ ____ _ 

House 

Other 

11. My debts are: 

Amount Owed 

$ ___ _ 

$ ____ _ 

To Whom 

(FMV) ----------

(FMV) ----------

Describe: __________ _ 

I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete 

and that I am financially unable to pay the costs of this appeal. 

APPELLANT 

Sworn and subscribed before me, a notary public, this 

____ dayof _____________________ , 20 __ _ 

NOTARY PUBLIC 

My Commission Expires: _______ _ 

LB-1108 (REV 11/15) RDA 11082