COURT OF WORKERS' COMPENSATION CLAIMS DIVISION OF WORKERS' COMPENSATION FILED
December 8, 2014

T:>i COt;RTOF WORKERS' COMPE:>iSAT!O:>i**LAI~ S**  Time : 7:15 A:\1

EMPLOYEE: Jimmy Cooper EMPLOYER: Federal Express Corporation DOCKET#: 2014-08-0010 STATE FILE#: 62458/2014 DATE OF INJURY: July 31, 2014 TPA: Sedgwick CMS EXPEDITED HEARING ORDER THIS CAUSE camebefore the undersigned Workers' CompensationJudge uponthe Request for Expedited Hearing filed by Jimmy Cooper (Employee). On September26, 2014, a Request for Expedited Hearing was filed withthe Tennessee Court ofWorkers' Compensation Claims, Division ofWorkers' Compensation, on behalfofEmployee pursuant to Tennessee Code Annotated section 50-6-239 to determine ifthe provision ofmedical benefits and/or temporary disability benefits is appropriate. Employee requested an evidentiary hearing. The Expedited Hearing was originally scheduled for October 22, 2014. At that time Employee made a request for a continuance to retain an attorney. Employee's request was granted and the case was reset for hearing on November 13, 2014. The Court conducted a telephonic hearing onNovember 13,2014. Employee appeared

### pro se, and advised that he had not retained an attorney. Federal Express Corporation and Sedgwick CMS (Employer/TPA) were representedby attorney JonathanMay. Consideringthe positions ofthe parties, the applicable law and all ofthe evidence submitted, the Courthereby finds that Employee is not entitled to medical benefits or temporary disability benefits. ANALYSIS Issues 

### 1. Whether Employee sustainedan injury that aroseprimarily out of and in the course and scope of employment with Employer. 2. Whether Employer is obligatedtoprovide medical benefits and/or temporary disability 1benefits

. Evidence Submitted The Courtreceived and considered the following documentation and information submitted by the parties: Exhibits 1-4 were marked for identification only and were not admitted into evidence. Exhibits 5-9 were admitted into evidence by agreement ofthe parties. Exhibits 10-21 are medical records dated prior to the date of alleged injury which show Employee's prior medical treatment for similar injury. All ofthese Exhibits other than Exhibit 12 (MRI report dated December 6, 2011) were authenticated by electronic signature ofa physician. There was no objection to the authenticity ofExhibits 10-21. Employee, however, objected to the introduction into evidence ofthese medical records dated prior to the alleged date ofinjury, on the ground of relevancy. An issue in this case is whether Employee sustained an injury that arose primarily out ofand in the course and scope ofemployment. The Court determined that records of Employee's prior medical condition would be relevant to prove or disprove this issue. Therefore, Employee's objection was overruled, and Exhibits 10-21 were admitted into evidence. Exhibits 22-28 were admitted into evidence by agreement ofthe parties. Exhibit Number: 1. Request for Expedited Hearing, filed September 26, 2014 2. Dispute Certification Notice, dated September 26, 2014 3. Petition for Benefit Determination, filed September 5, 2014 4. Employer's Position Statement dated September 17, 2014 5. Form C20- Employer's First Report ofWork Injury 6. Form C41- Wage Statement (Average Weekly Wage $596.97) 7. Job Description ofEmployee 8. Employee's handwritten description ofinjury, dated August 7, 2014 9. Form C42

- Panel of Physicians

- Dr. Fereidoon Parsioon selected by Employee on August 12, 2014 10. Medical records, Dr. Ki Chang, dated September 15,2011 11. Medical records, Dr. Chang, dated November 30, 2011 12. Medical records, Desoto Imaging Specialists, MRI dated December 6, 2011 13. Medical records, Dr. Chang, dated January 13, 2012 14. Medical records, Semmes Murphy Clinic (Dr. Daniel Holt), dated February 16,2012 15. Medical records, Semmes Murphy Clinic (Dr. Samuel Polk), dated March 19, 2012 16. Medical records, Dr. Chang, dated March 12, 2013
217. Medical records, Dr. Chang, dated April 2, 2013 18. Medical records, Dr. Chang, dated June 24, 2013 19. Medical records, Dr. Chang, dated August 12,2013 20. Medical records, Dr. Chang, dated October 18,2013 21. Medical records, Dr. Chang, dated June 27, 2014 22. Medical records, Concentra Medical Centers, dated August 7, 2014 23. Medical records, BaptistDesoto Internal Medicine (Dr. Chang), dated August 14,2014 24. Medical records, Phoenix Neurosurgery (Dr. Parsioon), dated August 21, 2014 25. Medical records, Desoto Imaging Specialists, MRJ dated August 27, 2014 26. Medical records, Phoenix Neurosurgery (Dr. Parsioon), dated September 4, 2014 27. Medical records, Phoenix Neurosurgery (Dr. Parsioon), dated October 9, 2014 28. LaboratoryReport, Pacific Toxicology Laboratories, dated September 8, 2014 Stipulations ofthe Parties The parties stipulated the following to be correct: 1. Federal Express Corporation is an "Employer" as defined by Tennessee Workers' Compensation law; 2. On July 31, 2014, Robert Cooper was an "Employee" ofFederal Express Corporation as defined by Tennessee Workers' Compensation law; 3. Robert Cooper's Average Weekly Wage (AWW) is $596.97, andhis weekly Compensation Rate (CR) is $397.98. History of Claim According to a First Report ofInjury (Ex. 5), on August 6, 2014, Employee reportedpain in his lower back which he related to an incident on July 31, 2014, when he was lifting boxes and loading containers on a slide. Employee's supervisor, Charles Tyler, manager ofhub operations, testified that on August 6, 2014, he advised Employee that his work performance was below acceptable standards. According to Mr. Tyler, Employee told him that he was having difficulty working because he hurthis back at work onJuly 31, 2014. Mr. Tylertestifiedthat he had observed Employee at work and could not tell that Employee was injured. He also could not locate any witnesses that could confirm Employee's alleged injury. Employer sentEmployee to ConcentraMedical Center (Concentra) for treatment onAugust 7, 2014 (Ex. 22). Employee gave a history that he believed he had exacerbated a lower back injury he received in 2011. Concentra assigned limited work restrictions and referred Employee to a neurosurgeon for treatment. Employee attempted to return to work, butEmployer advised that itdid
3not have any light duty work. Employer gave Employee a panel ofneurosurgeons and Employee selected Dr. Fereidoon Parsioon at Phoenix Neurosurgery, who sawhim on August 21, 2014. Employee gave a history of injury at work lifting packages and stated that he had the same symptoms in 2011 and treated at Semmes Murphy Clinic with a lumbarepidural block. Dr. Parsioonreviewed apriorMRI from 2011 which showed a left L5/S 1 disc protrusion. Dr. Parsioon noted: In my opinion, [Employee's] new injury either caused aggravation ofthe old disc protrusion at L5/S1on the left or has caused some newproblems at other levels for him. As such, I believe that this new problem is related to his work injury. He needs to be evaluatedwith an MRI ofthe lumbar spine so we can comparethis to the MRI of2011. Ifthis disc at L5/S1 on the left is not any larger, then it would be aggravation ofa pre-existing condition due to this lifting injury. Ifthere is another disc at any other level or ifthis disc is significantly enlarged, then the new injury is the cause ofhis problems

... I kept him offwork. The MRI ordered by Dr. Parsioon was performed on August 27, 2014 (Ex. 25). Employee returned to Dr. Parsioon on September4, 2014, at whichtime the MRI was reviewed and compared to the 2011 MRI. Dr. Parsioon reported that the protrusion at L5/S1 was now very minimal compared to the 2011 MRI. He explained that sometimes discs shrink and go back into place. The MRI showed that there was no ruptured disc or impingement ofthe neural structures present. Dr. Parsioon ordered three weeks ofphysical therapy and noted that Employee could return to work on September 5, 2014, with a twentypound liftingrestriction. Employee was instructedto returnto Dr. Parsioon after completing physical therapy and, at that time, he would be released to regular work duty without restrictions. Employer denied the claim after this visit, no physical therapy was provided, and Employee was not authorized to return to Dr. Parsioon. Employer paid for authorized medical treatment with Concentra and Dr. Parsioon through September 4, 2014. No temporary disability benefits have been paid. Employee testified that his Employeroffered to allowhim to return to work onOctober20, 2014, butherefused becausehe had not been released by a physician. Employee testified that he has not returned to work. Medical records (Exhibits 10-21) introducedinto evidence confirmthatEmployeehad aprior L5/SI disc herniation in 2011, and that received epidural blocks onMarch 19, 2012 (Ex. 15). A June 27, 2014, record ofDr. Ki Chang (Ex. 21), dated approximately one month before this alleged work injury, indicates that he saw Employee who was complaining oflow back pain. The parties stipulated that Employee's Average Weekly Wage (AWW) is $596.97, and his weekly Compensation Rate (CR) is $397.98. Employee's Contentions Employee contends that he sustained a lowback injury that arose primarily out ofand in the

4course and scope ofemploymentwithEmployerwhenhe was lifting boxes and loading containers on a slide on July 31, 2014. Employee contends that Employer/Carrier should provide temporary disability benefits and additional medical benefits. Employer's Contentions Employer/Carrier disputes the compensability ofEmployee's injury onthe basis that it does not qualify as an "injury" as contemplated by Tennessee Code Annotated section 50-6-102(12). Specifically, there is no objective evidence thatEmployee suffered either an anatomical aggravation or a new injury, either ofwhich arose primarily out ofthe course and scope ofhis employment. Employer also alleges that the credibility ofEmployee's claim ofinjury is suspect because he has given different dates ofinjury and different mechanisms ofinjury. Also, Employee's claim ofinjury was only made a week later in response to being toldthat his workperformance was unsatisfactory.
Findings ofFact and Conclusions ofLaw 

### StandardApplied When determining whether to award benefits, the Judge must decide whether the moving party is likelyto succeed onthe merits at trial giventhe information available. 

### See generally, McCall v. Nat'!Health Care Corp., 100 S.W. 3d 209,214 (Tenn. 2003). In a workers' compensation action, pursuant to Tennessee Code Annotated section 50-6-239(c)(6), Employee shall bear the burden of proving each and every element ofthe claim by a preponderance ofthe evidence. Employee must show that the injury arose primarily out ofand in the course and scope ofemployment. Tenn. Code Ann.§ 50-6-102(13)(2014). 

### Factual Findings Considering all admissible evidence, including the medical records, the testimony of Employee, and the testimony ofEmployee's supervisor, the Courtfinds thatEmployee hadbeen seen by Dr. Chang on June 27, 2014, complaining oflow back pain. This may or may not have been related to Employee's earlier lumbar disc herniation in 2011, but it shows that Employee was complaining oflow back pain approximately one month before his alleged lowback injury at work on July 31, 2014. An authorized panel physician, Dr. Parsioon, opined that Employee's backpain was work related, but he did not opine that it arose primarily out of employment. There was no indication inDr. Parsioon'srecords that he was aware Employee had complained oflowbackpainto Dr. Chang on June 27, 2014. 

### Application of Law to Facts 1

. Employeefailed toprove that he sustainedan injury that aroseprimarily out of and in the course andscope of employment with Employer.

5To be compensable underthe workers' compensation statutes, an injury must arise primarily out of and occur in the course and scope ofthe employment. Tenn. Code Ann. § 50-6-102(13) (20 14). An injury means "an injury by accident

... arising primarily out ofand in the course and scope of employment, that causes death, disablement or the need for medical treatment of the employee." 

### !d. For an injury to be accidental, it must be "caused by a specific incident, or set of incidents, arising primarily out ofand in the course and scope ofemployment, and is identifiable by time and place of occurrence, and shall not include the aggravation of a preexisting disease, condition or ailment unless it can be shown to a reasonable degree ofmedical certainty that the aggravation arose primarily out ofand in the course and scope ofemployment." Tenn. Code Ann. § 50-6-102(13)(A) (2014). An injury is deemed to arise primarily out ofand in the course and scope ofemployment "onlyifit has been shownby apreponderance ofthe evidencethatthe employment contributed more than fifty percent (50%) in causing the injury, considering all causes." Tenn. Code Ann. § 50-6- 1

02(13)(B) (20 14). Further, "[a ]ninjury causes death, disablement or the need for medical treatment only ifit has been shown to a reasonable degree ofmedical certainty that it contributed more than fifty percent (50%) in causing the death, disablement or need for medical treatment, considering all causes." Tenn. Code Ann. § 50-6-102(13)(C)(2014). Aninjury is shown to a reasonable degree of medical certaintyif "inthe opinion ofthe physician, it is more likelythan not considering all causes, as opposedto speculation orpossibility." Tenn. Code Ann.§ 50-6-102(13)(D) (2014). "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 ofcausation but this presumption shall be rebuttable by a preponderance ofthe evidence." Tenn. Code Ann.§ 50-6-102(13)(E) (2014). The employee b e a r s the "burden of proving each and every element of the claim by a preponderance ofthe evidence." Tenn. Code Ann.§ 50-6-239(c)(6) (2014). Traditionally, courts have held that the statutory requirements that an injury arise out ofand in the course ofthe employment are not synonymous "althoughboth elements existto ensure a work connectionto the injury for whichthe employee seeks benefits." Blankenship v. Am. Ordnance Sys., 164 S.W.3d 350, 354 (Tenn. 2005). An injury occurs in the course ofemployment ifit takes place while the employee was performing a duty he or she was employed to perform. Finkv. Caudle, 856 S.W.2d 952, 958 (Tenn. Workers' Comp. Panel1993). Thus, the course ofemploymentrequirement focuses onthe time, place, and circumstances ofthe injury. Saylor v. Lakeway Trucking, Inc., 181 S.W.3d 314,318 (Tenn. 2005). In contrast, arising out ofemployment refers to causation. Reeser v. Yellow Freight Sys., Inc., 938 S.W.2d 690,692 (Tenn. 1997). An injury arises out ofemployment when there is a causal connection between the conditions under which the work is required to be performed and the resulting injury. Fritts v. SafetyNat'! Cas. Corp., 163 S.W.3d 673, 678 (Tenn. 2005). Put another way, the element ofcausation is satisfied when the "injury has a rational, causal connection to the work." Braden v. Sears, Roebuck & Co., 833 S.W.2d 496,498 (Tenn. 1992). The mere presence of the employee at the place ofinjury because ofthe employment is not enough, as the injury must result from a hazard peculiar to the work or be caused by a risk inherent in the nature ofthe work. Blankenship, 164 S.W.3d at 354. Accordingly, "an injurypurely coincidental, orcontemporaneous,

6or collateral, withthe employment

... will not cause the injury

... to be considered as arising out of the employment." 

### Jackson v. Clark & 

### Fay, Inc., 270 S.W.2d 389, 390 (Tenn. 1954). Applying these principles to this case, it is the finding ofthe Court that Employee does have lowbackpain, butthere is insufficientproofthat it arose primarily outofand inthe course and scope ofemployment. This finding is based on both factual and medical grounds. Employee had aprior lowback injury in 2011, and had complained ofback pain to Dr. Chang only one monthpriorto his alleged date ofinjury. Employee did not complain ofa work injury onJuly 31, 2014, and only later reported his alleged injury in response to being told by a supervisor that his work performance was unsatisfactory. Furthermore, no physician has opined that Employee's alleged back injury arose primarily out ofand in the course and scope ofemployment. Therefore, it is the ruling ofthe Court that Employee has failed to establish that he sustained a compensable work-related injury. 

### 2. Employer is not obligated toprovide temporary disability benefits or medical benefits. Employee has failed to prove that he sustained a compensable work-related injury. Therefore, Employer/Carrier is not obligated to provide medical or temporary disability benefits. IT 

### IS, THEREFORE, ORDERED THAT: 1) Employee's interlocutory request in this Expedited Hearing for temporary disability benefits and medical benefits is denied at this time onthe grounds thatEmployeehas failed to prove that he sustained an injury by accident arising primarily out ofand in the course and scope ofemployment. This is not a Final Order. 2) This matter is set for Initial Hearing on December 17, 2014 at 9 a.m. ENTERED this the 8th day ofDecember, 2014.

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Jim Umsted, Judge Court ofWorkers' Compensation Claims

Right 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 Request for Appeal, you must: 1. Complete the enclosed form entitled: "Expedited Hearing Notice ofAppeal". 

### 72. File the completed form with the Court Clerk within seven (7) business days ofthe date the Expedited Hearing Order was entered by the Workers' Compensation Judge. 3. Serve a copy ofthe Expedited Hearing Notice ofAppeal upon the opposing party. 4. The parties, having the responsibility ofensuring a complete record on appeal, may request from the Court Clerkthe audio recording ofthe hearing for the purpose ofhaving atranscript prepared by a licensed court reporter and filing it with the Court Clerk within ten (1 0) calendar days ofthe filing ofthe Expedited Hearing Notice ofAppeal. Alternatively, the parties may file a statement ofthe evidence withinten (10) calendar days ofthe filing ofthe Expedited HearingNotice ofAppeal. The statement ofthe evidencemustbe approvedbythe Judge before the record is submitted to the Clerk ofthe Appeals Board. 5. Ifthe appellant elects to file a position statement in support ofthe interlocutory appeal, the appealing party shall file such position statement with the Court Clerk within three (3) business days ofthe filing ofthe Expedited HearingNotice ofAppeal, specifying the issues presentedfor review and including any argument in supportthereof. Ifthe appellee electsto file a response in oppositionto the interlocutory appeal, appellee shall do so withinthree (3) business days ofthe filing ofthe appellant's position statement.



### CERTIFICATE OF SERVICE I hereby certify that a true and correct copy ofthe Expedited Hearing Order was sentto the following recipients by the following methods ofservice on this the gth day ofDecember, 2014.

Name Certified First Via Fax Via Email Address Mail Class Fax Number Email Mail Jimmy Cooper, X X Jimmie7cp@aol.com Employee Jonathan May, X j may@lewisthomason.com Employer's attorney 

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Jim Umsted, Judge Court ofWorkers' Compensation Claims

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