1 TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT COOKE VILLE

MICHAEL SLEZAK

, ) Docket No 20 20

- 04

- 0091 Employee, )

v. ) State File No. 20396

- 2020 RYDER INTEG. LOGISTICS, INC. )

Self

- Insured Employer

, ) Judge Robert Durham

EXPEDITED HEARING ORDER DENYING BENEFITS

This case came before the Court on J anuary 2 5 , 202 1

, for an Expedited Hearing.

M r. Slezak s eeks an order that Ryder authorize medical treatment with a physician he

chose and temporary disability benefits for thoracic back pain he allege s is due to an injury caused by a co

- worker ’s mis behavior

. T he Court holds that M r. Slezak is not likely to prevail at trial in proving entitlement to the requested relief

.

History of Claim

On November 7, 2019, a co

- worker playfully ran into Mr. Slezak, striking him in

the mid

- back

. 1 The blow push ed Mr. Slezak several steps forward, but it did not knock

him down

. After a few days, Mr. Slezak reported mid

- back pain to his supervisor. He

then talked with Tom Beardsley, Ryder’s Safety Manager, who m he said directed him to American Family Care (AFC) for treatment. 2

Mr. Slezak treated with Nurse Practitioner Daniel Fox at AFC. He complained of

worsen ing mid

- back pain that interfered with his sleep. On exam, Mr. Fox noted parascapular tenderness and spasm. He diagnosed back pain, prescribed medication, and placed restrict ions, which Ryder accommodated. A week later , Mr. Slezak returned still

1 For the Expedited Hearing, Ryder stipulated that an incident occurred on November 7

. The parties also stipulated to a $681.51 compensation rate. Willful misconduct was not a defense.

2 Mr. Slezak claimed that after he returned, Mr. Beardsley offered a Choice of Physician form . He

admitted he agreed to AFC. Mr. B eardsley testified he didn’t recall the sequence of events regarding the panel. Ryder submit ted a n un signed Choice of Physician form into evidence. 

### FILED Feb 03, 2021 01:07 PM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS2 complaining of back pain but wanting to attempt full duty. Mr. Fox released him without

restrictions on a trial basis for a week.

One week later, Mr. Slezak returned to AFC and saw Dr. Chris Kromer , a general practitioner

. D r. Kromer noted that Mr. Slezak said his pain was minimal and the exam

was normal. He released Mr. Slezak from care to return to full duty. Mr. Slezak disputed these findings, testifying that his pain had worsened.

Mr. Slezak said he attempted full du ty, but his pain increased significantly. H e told his manager, and they made another appointment with Dr. Kromer for February 10

, 2020

. Dr. Kromer noted complain ts of intermittent thoracic pain without radiation that worsened with work activity. He did not observe any objective abnormalities

, and

thoracic x

- rays were normal. He again released Mr. Slezak from care to return to full duty.

Despite this release, Mr. Slezak told Mr. Beardsley that he did not feel he was able to work at full duty due to his back pain . Mr. Beardsley replied that he would be

terminated if he did not return to work. Mr. Slezak refused , and Ryder fired him on February 17.

Ryder later allow ed Mr. Slezak to return to Dr. Kr omer in April . Mr. Slezak complained of almost continuous intrascapular back pain , but Dr. Kr omer did not observe any abnormalities. He diagnosed “unspecified” back pain and once more released him

from care to return to full duty. He recommended Mr. Slezak follow

- up with his primary

care physician

.

In stead, he saw an orthopedist, Dr. Ethan Kellum, in May . He told Dr. Kellum

that he suffered from thoracic pain that had worsened since the work injury

. Dr. Kellum

noted full thoracic range of motion, although Mr. Slezak felt pain with palpation or whe n turning to the left. A thoracic MRI also revealed a mild disc protrusion at T4

- 5 with minimal cord compression on the left . Dr. Kellum diagnosed thoracic back pain and prescribed steroids and physical therapy.

Dr. Kellum then wrote a letter stating that, based on Mr. Slezak’s history of being

struck in the mid

- back, he felt that “his pain was caused by an [sic] exacerbated” by the work injury.

Mr. Slezak returned in August

, and h is pain had improved by 90%

. On exam, Dr.

Kel lum noted mild tenderness with palpation and full range of motion with mild pain. He diagnosed “thoracolumbar pain

— mostly resolved.” Mr. Slezak reported doing “fairly

well” in November, although he suffered an exacerbation in physical therapy. Dr. Kellum again diagnosed thoracolumbar pain and continue d conservative treatment.3 In December , Dr. Kromer responded to a “check

- the

- box” letter from Ryder , to
which it attached the May MRI report. Dr. Kromer checked “no” when asked if he noted any objecti ve findings that were primarily caused or attributable to Mr. Slezak’s work injury and if he believe d that his April 2020 symptoms were primarily caused by the

work incident. He also agreed that h e did not intend to “refer” Mr. Slezak through

workers’ com pensation when he suggested that he follow up with his primary care physician

, since he did not believe the claimed work injury warranted additional

treatment.

Finally, Mr. Slezak testified that he did not work due to the work injury from February 10 unt il November 7, 2020

, when he took a nother job . However, he admitted

that no doctor has taken him off work or placed restrict ions since Dr. Kromer ’s February

10 release

. Mr. Slezak admitted his pain was improved but maintained he required

continued care w ith Dr. Kellum.

Findings of F act and Conclusions of Law

M r. Slezak must present evi de nce from which this Court can d e termine that he is likely to pr ove at trial that he is entitled to medical and temporary disability benefits

. See McCord v. Advantage Human Resourcing , 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Mar. 27, 2015). The parties stipulated that a co

- worker struck him in the back. The dispute is whether this incident caused his complaints following Dr. Kromer ’s release.

To prove causation

, Mr. Slezak must show to a reasonable de gree of medical certainty that h is work injury contributed more than fifty percent in causing h is continued

mid

- back pain , cons ide ring all causes. “ Reasonable de gree of medical certainty ” means “it is more likely tha n not consi de ring all causes, as oppo se d to speculation or uncertainty.” See Tenn. Co de Ann. § 50

- 6

- 102(14) (2020)

. Given that the standard requires “medical certainty

, ” causation must be shown through an expert medical opinion. Id

.

When confronted with conflicting opinions, the Court has discretion to determine which opinion to accept. Bass v. The Home Depot U.S.A, Inc. , 2017 TN Wrk

. Comp. App. Bd. LEXIS 36, at *9 (May 26, 2017). When doing so, the Court may consider, among other t hings, “the qualifications of the experts, the circumstances of their examination, the information available to them, and the evaluation of the importance of that information by other experts.” Id.

Here, both Dr. Kromer and Dr. Kellum treated Mr. Slezak several times , and b oth reviewed the MRI report. Unlike Dr. Kellum, Dr. Kromer is not an orthopedist , but his

causation opinion is presum ed correct since he was the authorized physician. Tenn. Code Ann. § 50

- 6

- 102(14)(E).4 The Court finds the language the doctors used in giving their opinions to be the

critical difference. Dr. Kromer ’ s opinions , as framed by the “check

- the

- box” letter, track the statutory causation language. Dr. Kellum’s opinion does not specifically state whether he believes the work incident was the primary cause of Mr. Slezak’s complaints, considering all causes. Dr. Kellum did not have to necessarily use specific statutory language for the Court to find causation

. See Thysav ath dy v. Bridgestone Ams. Tire Operations, No. M2017

- 01575

- SC

- R3

- WC, 2018 TN LEXIS 313

, at *26 ( Tenn. Workers’ Comp. Panel June 8, 2018). However, if he had used that language

, the Court would have given his opinion more weight

. T he Court holds Dr. Kellu m’s opinion is not enough to overcome the presumption afforded Dr. Kromer ’s

. 3

IT IS, THEREFORE, ORDER ED THAT:

1. M r. Slezak’s request for additional workers’ compensation benefits is denied.

2. This case is set for a Scheduling Hearing on Thursday

, March 23

, 202 1

, at

10: 3 0 a.m. Central Time . T he parties must call 615

- 253

- 0010 to participate.

Failure to appear m ight result in a d e termination of the issues without the party’s participation.

ENTERED on February 3 , 202 1

.

_____________________________________ ROBERT DURHAM , JUDGE Court of Workers’ Compensation Claims

APPENDIX

Technical R ecord:

1. Petition for Benefit De termination

2. Dispute Resolution Statement

3. Dispute Certification Notice

4. Show Cause Order

5. Request for Expedited Hearing

6. Ryder’s Response to Request for Expedited Hearing

7. Motion to Present Witness Testimony by Telephone

3 Even if Mr. Slezak had prevailed on causation, he did not have any medical proof of a disability from

wo rking after Dr. Kromer ’s release. Thus, he still would not have been entitled to temporary disability

benefits.5 Exhibits:

1. First Report of Injury

2. Employee Choice of Physician Form (unsigned)

3. Notice of Denial and Amended Notice of Denial

4. Mr. Slezak’s Affidavit

5. American Family Care Records

6. Job Description

7. Statement of Incident Form

8. Employment Record

9. Fitness for Employment Examination

10. Additional American Family Care Records

11. MRI Report

12. Dr. Kellum’s Records

13. Termination Letter

14. Medical Bills (for identification only)

15. Ryder’s Submission of Evidence

CERTIFICATE OF SERVICE

I certify that a copy of the Order was sent as indicated on February 3, 2021.

Name Certified

Mail Via

Email Email Address

Michael Slezak X X 422 Winningham Cemetery Road Jamestown, TN 38556 MikeSlezak2111@yahoo.com Stephen Morton X stephen@mgclaw.com amber.dennis@mgclaw.com

_____________________________________ PENNY SHRUM, Court Clerk WC.CourtClerk@tn.gov