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 

TP A: Sedgwick CMS 

EXPEDITED HEARING ORDER 

THIS CAUSE came before the undersigned Workers' Compensation Judge upon the Request 

for Expedited Hearing filed by Jimmy Cooper (Employee). 

On September 26, 2014, a Request for Expedited Hearing was filed with the Tennessee Court 

of Workers' Compensation Claims, Division of Workers' Compensation, on behalf of Employee 

pursuant to Tennessee Code Annotated section 50-6-239 to determine if the provision of medical 

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 on November 13,2014. Employee appeared pro 

se, and advised that he had not retained an attorney. Federal Express Corporation and Sedgwick 

CMS (Employer/TPA) were represented by attorney Jonathan May. Considering the positions of the 

parties, the applicable law and all of the evidence submitted, the Court hereby finds that Employee is 

not entitled to medical benefits or temporary disability benefits. 

ANALYSIS 

Issues 

1. Whether Employee sustained an injury that arose primarily out of and in the course and 

scope of employment with Employer. 

2. Whether Employer is obligated to provide medical benefits and/or temporary disability 

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benefits. 

Evidence Submitted 

The Court received 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 of the 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 of these Exhibits other than Exhibit 12 

(MRI report dated December 6, 2011) were authenticated by electronic signature of a physician. 

There was no objection to the authenticity ofExhibits 10-21. Employee, however, objected to the 

introduction into evidence of these medical records dated prior to the alleged date of injury, on the 

ground of relevancy. An issue in this case is whether Employee sustained an injury that arose 

primarily out of and in the course and scope of employment. 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 of the 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 of Work Injury 

6. Form C41- Wage Statement (Average Weekly Wage $596.97) 

7. Job Description of Employee 

8. Employee's handwritten description of injury, 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 

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17. 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, Baptist Desoto 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. Laboratory Report, Pacific Toxicology Laboratories, dated September 8, 2014 

Stipulations of the 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" of Federal Express Corporation as 

defined by Tennessee Workers' Compensation law; 

3. Robert Cooper's Average Weekly Wage (AWW) is $596.97, and his weekly Compensation 

Rate (CR) is $397.98. 

History of Claim 

According to a First Report of Injury (Ex. 5), on August 6, 2014, Employee reported pain 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 of hub 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 hurt his back at work on July 31, 2014. Mr. Tyler testified that 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 sent Employee to Concentra Medical Center (Concentra) for treatment on August 

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, but Employer advised that it did 

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not have any light duty work. 

Employer gave Employee a panel of neurosurgeons and Employee selected Dr. Fereidoon 

Parsioon at Phoenix Neurosurgery, who saw him 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 lumbar epidural block. Dr. Parsioon reviewed a prior MRI from 2011 

which showed a left L5/S 1 disc protrusion. Dr. Parsioon noted: 

In my opinion, [Employee's] new injury either caused aggravation of the old disc 

protrusion at L5/S 1 on the left or has caused some new problems at other levels for 

him. As such, I believe that this new problem is related to his work injury. 

He needs to be evaluated with an MRI of the lumbar spine so we can compare this to 

the MRI of2011. Ifthis disc at L5/S1 on the left is not any larger, then it would be 

aggravation of a pre-existing condition due to this lifting injury. If there is another 

disc at any other level or ifthis disc is significantly enlarged, then the new injury is 

the cause of his problems ... I kept him off work. 

The MRI ordered by Dr. Parsioon was performed on August 27, 2014 (Ex. 25). Employee 

returned to Dr. Parsioon on September 4, 2014, at which time 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 of the neural structures present. Dr. 

Parsioon ordered three weeks of physical therapy and noted that Employee could return to work on 

September 5, 2014, with a twenty pound lifting restriction. Employee was instructed to return to 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 

Employer offered to allow him to return to work on October 20, 2014, but he refused because he had 

not been released by a physician. Employee testified that he has not returned to work. 

Medical records (Exhibits 10-21) introduced into evidence confirm that Employee had a prior 

L5/S I disc herniation in 2011, and that received epidural blocks on March 19, 2012 (Ex. 15). A June 

2 7, 2014, record of Dr. Ki Chang (Ex. 21 ), dated approximately one month before this alleged work 

injury, indicates that he saw Employee who was complaining of low back pain. 

The parties stipulated that Employee's Average Weekly Wage (A WW) is $596.97, and his 

weekly Compensation Rate (CR) is $397.98. 

Employee's Contentions 

Employee contends that he sustained a low back injury that arose primarily out of and in the 

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course and scope of employment with Employer when he 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 of Employee's injury on the 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 that Employee suffered either an anatomical aggravation 

or a new injury, either of which arose primarily out of the course and scope of his employment. 

Employer also alleges that the credibility of Employee's claim of injury is suspect because he has 

given different dates of injury and different mechanisms of injury. Also, Employee's claim of injury 

was only made a week later in response to being told that his work performance was unsatisfactory. 

Findings of Fact and Conclusions of Law 

Standard Applied 

When determining whether to award benefits, the Judge must decide whether the moving 

party is likely to succeed on the merits at trial given the 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 of the claim by a preponderance of the evidence. Employee must 

show that the injury arose primarily out of and in the course and scope of employment. 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 of Employee's supervisor, the Court finds that Employee had been seen 

by Dr. Chang on June 27, 2014, complaining of low 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 of low back pain approximately one month before his alleged low back injury at work 

on July 31, 2014. An authorized panel physician, Dr. Parsioon, opined that Employee's back pain 

was work related, but he did not opine that it arose primarily out of employment. There was no 

indication in Dr. Parsioon' s records that he was aware Employee had complained oflow back pain to 

Dr. Chang on June 27, 2014. 

Application of Law to Facts 

1. Employee failed to prove that he sustained an injury that arose primarily out of 

and in the course and scope of employment with Employer. 

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To be compensable under the workers' compensation statutes, an injury must arise primarily 

out of and occur in the course and scope of the employment. Tenn. Code Ann. § 50-6-1 02(13) 

(20 14). An injury means "an injury by accident ... arising primarily out of and 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 of and in the course and scope of employment, 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 of medical certainty that the 

aggravation arose primarily out of and in the course and scope of employment." Tenn. Code Ann. § 

50-6-102(13)(A) (2014). 

An injury is deemed to arise primarily out of and in the course and scope of employment 

"only if it has been shown 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-

1 02( 13 )(B) (20 14 ). Further, "[a ]n injury causes death, disablement or the need for medical treatment 

only if it has been shown to a reasonable degree of medical 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. § 50-6-1 02(13)(C)(2014). An injury is shown to a reasonable degree of 

medical certainty if "in the opinion of the physician, it is more likely than not considering all causes, 

as opposed to speculation or possibility." 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 of causation but this presumption shall be 

rebuttable by a preponderance of the 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 of the evidence." Tenn. Code Ann.§ 50-6-239(c)(6) (2014). 

Traditionally, courts have held that the statutory requirements that an injury arise out of and 

in the course of the employment are not synonymous "although both elements exist to ensure a work 

connection to the injury for which the employee seeks benefits." Blankenship v. Am. Ordnance Sys., 

164 S.W.3d 350, 354 (Tenn. 2005). An injury occurs in the course of employment if it takes place 

while the employee was performing a duty he or she was employed to perform. Fink v. Caudle, 856 

S. W.2d 952, 958 (Tenn. Workers' Comp. Panel1993). Thus, the course of employment requirement 

focuses on the time, place, and circumstances ofthe injury. Saylor v. Lakeway Trucking, Inc., 181 

S.W.3d 314,318 (Tenn. 2005). 

In contrast, arising out of employment refers to causation. Reeser v. Yellow Freight Sys., 

Inc., 938 S.W.2d 690,692 (Tenn. 1997). An injury arises out of employment when there is a causal 

connection between the conditions under which the work is required to be performed and the 

resulting injury. Fritts v. Safety Nat'! Cas. Corp., 163 S.W.3d 673, 678 (Tenn. 2005). Put another 

way, the element of causation 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 of injury because of the 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 of the work. 

Blankenship, 164 S.W.3d at 354. Accordingly, "an injury purely coincidental, or contemporaneous, 

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or collateral, with the 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 of the Court that Employee does have 

low back pain, but there is insufficient proof that it arose primarily out of and in the course and scope 

of employment. This finding is based on both factual and medical grounds. Employee had a prior 

low back injury in 2011, and had complained of back pain to Dr. Chang only one month prior to his 

alleged date of injury. Employee did not complain of a work injury on July 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 of and in the course and scope of employment. Therefore, it is the ruling of the Court 

that Employee has failed to establish that he sustained a compensable work-related injury. 

2. Employer is not obligated to provide 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 on the grounds that Employee has 

failed to prove that he sustained an injury by accident arising primarily out of and in 

the course and scope of employment. 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 of December, 2014. 

c:~~ 4_d} 

Jim Umsted, Judge 

Court of Workers' 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 of Appeal". 

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2. File the completed form with the Court Clerk within seven (7) business days of the date the 

Expedited Hearing Order was entered by the Workers' Compensation Judge. 

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

4. 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 ofhaving a transcript 

prepared by a licensed court reporter and filing it with the Court Clerk within ten (1 0) 

calendar days of the filing of the Expedited Hearing Notice of Appeal. Alternatively, the 

parties may file a statement ofthe evidence within ten (10) calendar days ofthe filing ofthe 

Expedited Hearing Notice of Appeal. The statement of the evidence must be approved by the 

Judge before the record is submitted to the Clerk ofthe Appeals Board. 

5. If the appellant elects to file a position statement in support of the interlocutory appeal, the 

appealing party shall file such position statement with the Court Clerk within three (3) 

business days of the filing of the Expedited Hearing Notice of Appeal, specifying the issues 

presented for review and including any argument in support thereof. If the appellee elects to 

file a response in opposition to the interlocutory appeal, appellee shall do so within three (3) 

business days of the filing of the appellant's position statement. 

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 gth day of December, 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 

<-_;;k ,'L# 

Jim Umsted, Judge 

Court of Workers' Compensation Claims 

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