TENNESSEE BUREAU OF WORKERS’ COMPENSATION WORKERS’ COMPENSATION APPEALS BOARD Bobby James ) Docket No. 2015-02-0024 ) 

### v. ) ) State File No. 76452-2014 Landair Transport, Inc. )



### CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced case was sent to the following recipients by the following methods of service on this the 26th day of August, 2015.

Name Certified Mail First Class

Mail Via

Fax Fax Number Via

Email Email Address

V. Hood-Schneider X vhslaw1@gmail.com Mike Jones X mjones@wimberlylawson.com Brian K. Addington, Judge X Via Electronic Mail Kenneth M. Switzer, Chief Judge X Via Electronic Mail Penny Shrum, Clerk, Court of Workers’ Compensation Claims X Penny.Patterson-Shrum@tn.gov



### Matthew Salyer Clerk, Workers’ Compensation Appeals Board 220 French Landing Dr., Ste. 1-B Nashville, TN 37243 Telephone: 615-253-1606 Electronic Mail:Matthew.Salyer@tn.govTENNESSEEBUREAU OF WORKERS' COMPENSATION WORKERS' COMPENSATIONAPPEALS BOARD

BobbyJames,

v.
LandairTransport, Inc.,

Appeal from the CourtofWorkers' CompensationClaims BrianK. Addington, Judge ) DocketNo. 2015-02-0024 ) ) ) ) State FileNo. 76452-2014 ) ) ) ) )

Affirmed and Remanded- August26, 2015

In this interlocutory appeal, the employee was involved in amotor vehicle accident while working withinthe course and scope ofhis employment as atruck driver. The employee sought treatment from various providers and began exhibiting symptoms ofconfusion, memory loss, and other cognitive difficulties. In response to the employee's Request for Expedited Hearing, which sought a ruling based on a review of the file without an evidentiary hearing, the trial court concluded that the employee did not come forward with sufficient evidence from which it could determine that the employee is likely to prevail at a hearing on the merits. As a result, the trial court denied the employee's request for workers' compensation benefits. Having carefully reviewed the record, we affirm andremandthe case for any furtherproceedings as may be necessary. Judge Timothy W. Conner delivered the opinion ofthe Appeals Board, in which Judge Marshall L. Davidson, III, and Judge DavidF. Hensley,joined.

Vakessha Hood-Schneider, Nashville, Tennessee, for the employee-appellant, Bobby James
Michael W. Jones, Nashville, Tennessee, for the employer-appellee, Landair Transport, Inc.

1Factual and ProceduralBackground

The employee, Bobby James ("Employee"), is a forty-three year-old resident of Raleigh, North Carolina, who was employed by Landair Transport, Inc. ("Employer") as a truck driver. In the early morning hours ofAugust 20, 2014, while Employee was operating atruck near Atlanta, Georgia, the trailer attachedto his truckwasrear-endedby
a vehicle being driven by a third party. 1 The police report indicates that Employee reported no injuries at the scene. The emergency room report from Employee's visit approximately twelve hours after the injury indicates that Employee complained of "slight neck pain," but that the "degree ofpain is minimal." The medical records are unclear as to whether Employee struck his forehead on the steering wheel at the time of the impact and/or whether he lost consciousness. X-rays revealed no acute fractures in the cervical or lumbar spine areas. Employee was released on August 20, 2014, by the emergencyroomphysicianwith no workrestrictions.

Within approximately two weeks ofthe accident, Employee began reporting to medical providers near his home in North Carolina, complaining of "headache, photophobia, memoryproblems and generalizedbody aches." His appearances at various North Carolina medical facilities over the following weeks were marked by reports that Employee appeared confused, disoriented, and semi-incomprehensible. He was often unable to answer questions in a straight-forward manner. All diagnostic testing, including a CT of the head, an MRI of the brain, and an EEG, were negative. On September 17, 2014, Dr. Matthew Scholar opined that Employee suffered from "intermittent confusion status post head injury." In a letter dated September 17, 2014, Dr. Sally Wood stated, "[Employee] should remain offwork until at least September 30, 2014 when he receives further evaluation by Dr. Filer." Dr. Lindsay Wilson commented in a report dated September 17, 2014, that Employee may suffer from "post-concussive syndrome especially in the setting ofa recent car accident and aprevious similarinjury." In the Physician Discharge Summary dated September 18, 2014, Dr. Wilson noted that Employee was "referred

... to the traumatic brain injury clinic with Dr. Filer." It is unclear from the record whether Employer authorized orpaid for any treatment with the providers located in North Carolina.

There are also reports in the record indicating that Employee had similar symptoms ofcognitive dysfunction prior to the work-related accident. In a report dated September25, 2014, Dr. CeciliaMcKaynotedthe following:

He has 4 prior emergency room visits here in the past, starting in 2008 wherehe fell offaporch and was dizzy and lost consciousnessthe next day

1No evidentiary hearing was conducted and nojoint statement ofthe evidence was submitted on appeal. Thus, we have gleaned the factual background from the pleadings, exhibits accepted by the trial court, and the trial court's order. 2after head trauma, one in 2011 complaining of a year of dizziness and occipital migraines with pain in his head traveling down his body and into his leg with paresthesias ofleft side and blurred vision, for which he had a CT scan ofhis brain that was negative.

. . . In 11/2012 he had a single car accident, presented complaining ofthinking he had a seizure because [he awakened] in aditch afterablack out, buthe had no incontinence.

In a neuropsychological consultation report dated September 25, 2014, Karen Wilhelm, Ph.D., noted that "[t]he patient presents with a very unusual constellation of cognitive symptoms." She then concluded that "[t]he etiology of his difficulty is unclear."

On November 6, 2014, Employee was evaluated by Dr. Brian Casazza, who concluded that Employee suffered from "chronic cervical and lumbar pain." However, there was "[n]o evidence of radiculopathy" and "no nerve root compression [that] correlates with his symptoms." Dr. Casazza noted the occurrence ofthe August 2014 accident, but did not expressly relate his diagnoses to that accident. Moreover, Dr. Casazza did not address Employee's work status, possibly due to his apparent understanding that the visit did not arise from a work-related accident, as evidenced by his inclusion ofthe statement "this visit does not involve Workman's Compensation" in his November6, 2014 report.
On November 18, 2014, Dr. William Filer issued a "To Whoin It May Concern" letter, stating that he had seen Employee as a patient "to evaluate symptoms following a work-related motor vehicle accident on 8/20/2014." Dr. Filer then stated that Employee "shouldremain out ofwork until I can review results ofhis neuropsychological testing

.. This restriction shouldcontinueuntil reassessed onhis appointment on 12/16/2014."

In his report dated January 20, 2015, Dr. Filer concluded that "[h]is present symptoms are thought unlikely to be due to ongoing post-concussive disorder and more likely related to mood disorder and poor sleep, with possible contribution of musculoskeletal pain." Dr. Filer then stated, "no specific restrictions are recommended
as itrelates to his reportedhead injury." Following an alleged episode of blacking out in late January 2015, Employee returned to Dr. Filer on February 10, 2015, at which time Dr. Filer commented that Employee "had arecent syncopal episode, but I do notthink this is likely attributedto his work-related injury, which would not be expected to cause syncope nor seizures." Dr. Filer then reiterated, "I did not recommend any specific work restrictions related to his work-related injury on 8/20/2014." Following a review ofthe records, the trial court entered an Expedited Hearing Order Denying Requested Relief on July 27, 2015, concluding, "[Employee] has not

3come forward with sufficient evidence from which this Court [can] conclude[] that he is likely to prevail at a hearing on the merits." Employee timely filed a Notice ofAppeal and the record was received by the Clerk ofthe Workers' Compensation Appeals Board
onAugust 18, 2015.
Standard ofReview

The standard ofreview to be applied by this Board in reviewing a trial court's decision is statutorily mandated and limited in scope. Specifically, "[t]here shall be a presumption that the findings and conclusions ofthe workers' compensationjudge are correct, unless the preponderance ofthe evidence is otherwise." Tenn. Code Ann. § 50- 6-239(c)(7) (2014). The trial court's decision must be upheld unless the rights ofa party "have been prejudiced because findings, inferences, conclusions, or decisions of a workers' compensationjudge:
(A) Violate constitutional or statutoryprovisions; (B) Exceedthe statutory authority oftheworkers' compensationjudge; (C) Donotcomplywith lawfulprocedure; (D) Are arbitrary, capricious, characterized by abuse of discretion, or clearly an unwarranted exercise ofdiscretion; (E) Are not supported by evidence that is both substantial and material in the light ofthe entirerecord."

Tenn. Code Ann. § 50-6-217(a)(3) (2015). Like other courts applying the standards embodied in section 50-6-217(a)(3), we will not disturb the decision ofthe trial court absentthe limited circumstances identified in the statute. Analysis

RecordonAppeal

As a preliminary matter, we note that the parties are charged with the responsibility of submitting evidence to the trial court in a specific manner, which is designed to make processing and deciding cases more expedient. Rule 0800-02-21- .16(6), which specifically addresses the submission ofmedical records in the Court of Workers' Compensation Claims, mandates that a party submitting medical records in
excess oftenpages "shall include a chronological table ofcontents." Tenn. Comp. R. & Regs. 0800-02-21-.16(6) (2015). Moreover, "each ofthe records shall be identified by author and date and numbered as in the table ofcontents." 

### I d. In addition, the Practice and Procedure Guidelines ofthe Workers' Compensation Appeals Board direct that "no paper shall be included in the record more than once." See Workers' Compensation Appeals BoardPractices and Procedures, § 3.3 (2015). The medical records submitted in this case number approximately four hundred pages, do not include a table ofcontents,

4are not identified by date and author, are not in chronological order, and contain
numerous duplicative records. The submission ofthe medical records in this case does not comply with applicable rules, making appellate review unnecessarily cumbersome and time-consuming.

Issues

The rules governing "Mediation and Hearing Procedures" of the Bureau of Workers' Compensation are intended to "provide for an efficient and expedient resolution ofissues within thejurisdiction ofthe [Bureau]." Tenn. Comp. R. & Regs. 0800-02-21-.01 (2015): To that end, Tennessee Code Annotated section 50-6-239 and applicable rules mandate the use of a Dispute Certification Notice ("DCN"), which identifies the disputed issues raised by either party in a case and provides the trial court notice ofthe issues submitted for adjudication. See Tenn. Comp. R. & Regs. 0800-02- 21-.02(10) (2015). Issues not listed on the DCN cannot be submitted for adjudication unless the party seeking inclusion ofan unlisted issue satisfies specific statutory criteria
as set forth in Tennessee Code Annotated section 50-6-239(b)(2) (2014).

In the present case, the DCN listed six unresolved issues, which were reiterated in the trial court's order. Since Employee did not file an affidavit in support ofhis Request for Expedited Hearing, the DCN represents the only indication of the issues to be addressed.2 Moreover, since Employee did not present a position statement or other written argument in support ofhis position priorto the issuance ofthe trial court's order, the statements contained in the Petition for Benefit Determination represent the only factual allegations from Employee available for the trial court's consideration. Therefore, the issues to be addressedbythe trial courtwere:
1. Whether Employee sustained an injury that arose primarily out of and in the
course and scope ofemploymentwithEmployer; 2. WhetherEmployer is obligated to provide apanel ofphysicians upon notice from Employee ofan alleged injury; 3. Whether Employer is obligated to pay for any past medical expenses and/or mileageexpenses; 4. Whether Employee is entitled to additional medical care as recommended by a physician; 5. Whether Employee is entitled to any past or future temporary total disability benefits, and ifso, in what amount; and

2 Tenn. Comp. R. & Regs. 0800-02-21-.14(1)(a) provides that all motions for expedited hearing must be accompanied by affidavits and any other information demonstrating that the employee is entitled to temporary disability or medical benefits. No objection was made to the case being reviewed by the trial court without a supporting affidavit as required by this rule, and the issue has not been raised on appeal. Accordingly, the issue has been waived and we decline to address it.

56. Whether Employee is entitled to any past or future temporary partial disability benefits, and ifso, in what amount. InjuryPrimarilyArisingOutof andin the Course andScope of Employment

The trial court concluded that Employee "has not presented sufficient evidence to prove he suffered aphysical injury at work." In support ofthis conclusion, the trial court noted the statementin thepolicereport indicatingthatEmployee did notreport aphysical injury at the scene ofthe accident. The trial court further noted that the initial emergency room report listed no physical evidence ofahead injury andthat all diagnostic tests have been

·negative. Furthermore, with respect to the alleged brain injury and/or mental conditions, the trial court noted documentary evidence of preexisting cognitive difficulties, as well as Dr. Filer's conclusionthat his current symptoms are attributable to
a non-work-related mood disorder. Employee did not cite any specific records for the trial court's consideration documenting a medical opinion that Employee suffered a physicalormental injury arisingprimarilyout ofthe work-related accident.

In a Position Statement submitted in support ofthe Notice ofAppeal, Employee correctly states that "several types of injuries can be insidious, manifesting symptoms hours, sometimes days, after an accident." Employee then cites several specific medical reports in the record indicating that Employee had been diagnosed with "cervical and back sprains," an "altered mental state due to the trauma from the accident," and "a concussion." However, none of these reports specifically state that the diagnosed condition arose primarily out ofthe motor vehicle accident. Moreover, it is unclearwhat information each ofthese medical providers reviewed in forming their opinions. The record, as it currently stands, is devoid ofan express expert medical opinion supporting Employee's claim that his medical conditions arose primarily from the work-related accident. Under these circumstances, we cannot conclude that the evidence submitted to datepreponderates againstthe determination ofthe trial court on this issue.

Entitlement to aPanelof Physicians

There is nothing in this record, other than the DCN, documenting Employee's allegation that he is entitled to a panel ofphysicians at this time. To the contrary, the Petition for Benefit Determination indicates that Employee did receive a panel of physicians and that he selected Dr. Filer. 3 Since Dr. Filer reached the conclusion that Employee's mental conditions are attributable to a non-work-related condition, it was incumbent on Employee to come forward with sufficient evidence from which the trial court could conclude that he is likely to prevail at ahearing on the merits. As this record

3 As noted above, the medical records indicate that Employee was referred to Dr. Filer by Dr. Lindsay Wilson, not that Dr. Filer was selected from Employer's panel. Employee offered no affidavit, evidence,
orotherexplanation regardingthis apparent inconsistency.
6currently stands, the evidence does not preponderate against the trial court's determinationthatEmployer is not entitledto apanel ofphysicians at this time.

PastMedicalExpenses

The record in this case does not adequately document: (1) whether Employee was provided apanel ofphysicians in accordance with Tennessee CodeAnnotated section 50- 6-204(a)(3); (2) whether Employer paid any medical expenses incurred after the date of the motor vehicle accident; and/or (3) whether any of the North Carolina medical providers were authorized or paid by Employer. Itis well-settled that an injured worker has the burden ofproof of all essential elements of a claim. Tindall v. Waring Park Ass'n, 725 S.W.2d 935, 937 (Tenn. 1987). At an expedited hearing, an employeehas the burdento come forward with sufficientevidence from whichthe trial courtcan determine that the employee is likely to prevail at a hearing on the merits. 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, 2015). In the present case, the record is deficient regarding this issue. Although medical bills were included as an exhibit, there is no indicationregarding whether any ofthese providers were authorized and/orwhether the charges were reasonable and necessary for treatment ofa work injury. Therefore, we cannot conclude that the preponderance ofthe evidence weighs against the trial court's decision notto orderthepaymentofpastmedical expenses atthis time.

EntitlementtoAdditionalMedical Care

It is undisputed that Employee was involved in a work-related motor vehicle accident. Generally, therefore, Employee is eligible to receive reasonable and necessary medical treatment causally-related to the work accident. The resolution of this issue again hinges on a deficient record. The Petition for BenefitDetermination indicates that Employee received a panel ofphysicians. This may or may not be accurate, but the record provides little support one way or the other.4 The question, therefore, is whether Employee came forward with sufficient evidence to show that he is entitled to medical treatment for a condition or conditions that arose primarily from the work-related accident.

The most recent report from Dr. Filer, dated February 10, 2015, includes the following recommendation: "clinic referral to include pain psychology (due to probable psychogenic overlay

- also, I have concern thatpossible secondary gain will lead him to seeknarcoticpainmanagement)

.... I am skeptical thathis poorcompliance is relatedto organic memory impairment based on neuropsych testing results)." Dr. Filer also prescribed Zoloft, but did not state whether the use ofthis medication was related to the work accident. In sum, Employee has not submitted adequate evidence to date to show

4Affidavits and/orwitness testimony could have facilitated resolution ofthis and otherissues in this case. 7that he is entitled to medical treatment as a result ofa condition which arose primarily from the work accident.

Entitlementto TemporaryDisabilityBenefits5

Tobe entitledto temporary total disability benefits, an injuredworker "mustprove thathe [or she] was (1) totally disabled to work by a compensable injury; (2) thatthere is
a causal connection between the injury and his [or her] inability to work; and (3) the duration ofthat period ofdisability." Simpson v. Satterfield, 564 S.W.2d 953, 955 (Tenn. 1978).

The record in this case presents multiple conflicting statements regarding Employee's work status. In the emergency room record dated August 20, 2014, Employee was released to "return to work without restrictions." In a letter dated September 17, 2014, Dr. Wood stated, "[Employee] should remain offwork until at least September 30, 2014 when he receives further evaluation by Dr. Filer." In a letter dated November 18, 2104, Dr. Filer stated, "[Employee] should remain out ofwork until I can review the results ofhis neurological testing." In a report dated January 20, 2015, Dr. Filer stated, "no specific restrictions are recommended as it relates to his reported head injury." Finally, in his report dated February 10, 2015, Dr. Filer reiterated, "I did not recommend any specificworkrestrictions relatedto his work-related injury

...."

The difficulty with the various statements quoted above is that even when Employee was taken off work or assigned work restrictions, it is unclear whether the restrictions and/or disability were causally-related to the August 20, 2014 accident. Instead, the record supports a conclusion that Employee was exhibiting symptoms of cognitive dysfunction which led to the work restrictions and/or temporary disability. Since Employee has not come forward with sufficient evidence to support a conclusion thathis cognitive dysfunction arose primarily from the work accident, itwas not error for the trial courtto deny temporary disabilitybenefits atthis time.

Conclusion

At this interlocutory stage, Employee has not met his burden of establishing entitlement to a panel ofphysicians, payment ofpast medical expenses, provision of additional treatment, orpayment oftemporary disability benefits. Additionally, we find that the trial court's order does not violate any ofthe standards set forth in Tennessee Code Annotated section 50-6-217(a)(3) (2015). Therefore, we affirm the decision ofthe trial court and remandthis case for any further proceedings as may be necessary.

5Issues five and six, as listed in thetrial court's order, are treated togetherdueto the similaranalysis underthe facts ofthis case. 8th W. Conner,Judge rs' CompensationAppeals Board

9