1 TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT MEMPHIS

DONELL JOYNER

, ) Docket No.: 201 8

- 08

- 0754 Employee, )

v. )

LEHMAN ROBERTS CO.

, ) State File No.: 59334

- 2017 Employer, )

A nd )

TRUMBULL INSURANCE CO.

, ) Judge Deana Seymour

Insurance Carrier. )

EXPEDITED HEARING ORDER

DENYING REQUESTED MEDICAL BENEFITS

Danny Joyner requested additional medical benefits for a neck and right shoulder injury

. Lehman Roberts Co mpany insisted it paid all medical benefits to which Mr. Joyner is entitled. The Court considered the issue of additional medical benefits at an Expedited Hearing on April 3, 2019, and ho lds Mr. Joyner is not entitled to them at this

time.

History of Clai m

Mr. Joyner injured his neck and r ight shoulder when he overturned an asphalt

roller on July 27, 2017

. Lehman ac cepted his claim as compensable and sent him to an urgent care clinic. 1 Later

, Mr. Joyner chose Dr. Mark Harriman from a panel of physicians for authorized orthopedic treatment.

Dr. Harriman ordered cervical and right shoulder MRIs, which revealed chronic degenerative changes. After comparing Mr. Joyner’s current cervical MRI to his 2004

MRI , Dr. Harriman diagnosed a chronic central disk hern iation at C4

- 5 and cervical

1 The parties did not provide th ose records. 

### FILED Apr 08, 2019 09:16 AM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS2 spondylosis. 2 He also diagnosed tendonitis and shoulder impingement. Dr. Harriman treated Mr. Joyner with physical therapy and placed him at maximum medical improvement on December 7 with no permanent impairment.

Mr. Joyner returned to Dr. Harriman complaining of neck and right shoulder pain

o n February 22, 2018 . Dr. Harriman examined Mr. Joyner and returned him to full duty. He again concluded that Mr. Joyner retained no permanent impairment from the work

incident

.

Four months later, Mr. Joyner filed a Petition for Benefit Determination a nd asked

for an appointment with Dr. Harriman

, but Dr. Harriman refused to see him

. Lehman agreed to provide Mr. Joyner with another panel selection , and he selected Dr. Christopher Ferguson.

Dr. Ferguson reviewed Mr. Joyner’s medical history and performed a physical

examination. 3 He agreed with Dr. Harriman that Mr. Joyner could work full duty and had no permanent impairment. Dr. Ferguson concluded that Mr. Joyner’s neck and shoulder conditions were chronic and “clearly not related to the work event of July 27, 2017.” He

su ggested Mr. Joyner consult a neurosurgeon for non

- work

- related neck pain.

Lehman sent a letter to Dr. Ferguson to cla rify whether his neurosurgical suggestion primarily related to Mr. Joyner’s work injury. Dr. Ferguson responded that it

did not

, so Lehman denied th e treatment. Mr. Joyner pursued a consultation with a

neurosurgeon, Dr. Thirukandeeswaram Swaminathan

, on hi s own

.

Dr. Swaminathan examined Mr. Joyner for neck and right shoulder pain on January 18, 2019. Mr. Joyner also reported numbness in his right little and ring fingers.

He told Dr. Swaminathan that he had a right rotator cuff tear. Dr. Swaminathan reviewed the 2017 cervical MRI, which show ed a disc bulge at C4

- C5 but no other abnormalities. He noted “pain restriction of right shoulder movements.” Dr. Swaminathan ordered a nerve study to investigate Mr. Joyner’s complaints of pain down his arm and n umbness in his fingers. Dr. Swa m inathan explained to him on February 2 that the nerve study

revealed mild bilateral carpal tunnel syndrome. Otherwise, t he study was normal. He suggested Mr. Joyner see an orthopedist for his right shoulder and ordered physi cal therapy

. Dr. Swaminathan did not offer a causation opinion

.

Mr. Joyner filed a second Petition for Benefit Determination, requested this Expedited Hearing

, and introduced Dr. Swaminathan’s records to support his claim. He

2 Mr. Joyner testified he injured his neck in 2004, had an MRI, and healed shortly afterward. Neither party presented records regarding the 2004 injury.

3 Dr. Ferguson stated that he did not prov ide treatment or treatment advic e; rather he performed an independent medical evaluation.3 insisted that his work injury caused his neck and right shoulder symptoms that began the day of the injury.

Lehman countered that Mr. Joyner ’s neck problem began in 2004. Further, medical records and opinions of Dr. Harriman and Dr. Ferguson did not relate Mr. Joyner’s neck and shoulder symptoms to his work injury. Both suggested an evaluation

for his non

- work

- related neck condition

. Dr. Harriman found Mr. Joyner’s neck and right

shoulder conditions “chronic

, ” and Dr. Ferguson concluded Mr. Joyner’s condition was

“ clearly not related to” his work injury. Lehman insisted these authorized physicians are presumed correct and that Mr. Joyner failed to demonstrat e the work injury required the requested treatment

.

Findings of Fact and Conclusions of Law

At an Expedited Hearing, Mr. Joyner must present sufficient evidence that he is likely to prevail at a hearing on the merits. Tenn. Code Ann. § 50

- 6

- 239(d)(1) (2017).

T he central legal issue is whether Mr. Joyner presented sufficient evidence to show his work injury required the requested t reatment. The Court finds that he did not.

An injury “arises 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

- 102(1 4 )(B) (2018). Medical evidence is generally required in order to establish a causal relationship, “[e]xcept in the most obvious, simple and routine

cases.” Willis v. All Staff , No. M2016

- 0114 3

- SC

- R3

- WC, 2017 Tenn. LEXIS 455, at *13 (Tenn. Workers’ Comp. Panel Aug. 3, 2017).

The opinion of the treating physician, selected by the employee from the employer’s designated panel of physicians under section 50

- 6

- 204(a)(3) 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). Also, “a trial judge has the discretion to determine which testimony to acc ept when presented with conflicting expert opinions.” Bass v. The Home Depot U.S.A., Inc. , 2017 TN Wrk. Comp. App. Bd. LEXIS 36, at *9

- 10 (May 26, 2017) (internal citations omitted).

The Court recognizes that Mr. Joyner dispute s Drs. Harriman’s and Ferg uson’s

conclusions . H owever, Mr. Joyner’s disagreement with the physicians’ opinions, while genuine, is legally insufficient to refute their opinions. Concerning the employee’s burden to produce medical proof, our Appeals Board held:

In cases . . . where an employer has presented expert medical proof that the employee’s condition is not work

- related, the employee must present expert medical proof that the alleged injury is causally related to the employment4 when the case is not “obviou s, simple [or] routine.” While lay testimony may be probative on the issue of causation, it is insufficient to meet an employee’s burden of proof in the absence of medical evidence.

Berdnik v. Fairfield Glade Cmty. Club, 2017 TN Wrk. Comp. App. Bd. LEXIS 32, at *10 (May 18, 2017).

Here, the authorized treating physician, Dr. Harriman

, found Mr. Joyner’s neck and shoulder conditions chronic. His opinion is presumed correct. Likewise, Dr. Ferguson, selected from a panel, agreed with Dr. Harriman and added that Mr. Joyner’s condition was “clearly not related to” his work injury. Dr. Swaminathan did not

overcome Dr. Harriman’s opinion that the conditions were chronic

, which Dr. Ferguson supported. In addition

, Dr. Swaminathan did not address causation.

For these reasons
, the Court holds Mr. Joyner did not come forward with sufficient medical evidence from which the Court may conclude he is likely to prevail at a hearing

on the merits in establishing his work injury required the requested treatment.

IT IS, THEREFORE, ORDERED as follows:

1. The Court denies Mr. Joyner’s claim against Lehman for the requested medical

benefits at this time.

2. Dr. Christopher Ferguson shall be the authorized treating physician under

Tennessee Code Annotated section 50

- 6

- 204 for rea sonable and necessary medical

treatment related to Mr. Joyner’s July 27, 2017 injury.

3. This matter is set for a telephonic Scheduling Hearing on May 20, 2019, at 1: 0 0

p .m. Central Time. You must call toll

- free at 866

- 943

- 0014 to participate in the hearing. Failure to call may result in a determination of the issues without your participation.

ENTERED April 8

, 2019

.

____________________________________ Judge Deana C. Seymour Court of Workers’ Compensation Claims5 APPENDIX

Technical record:

TR1. Petition for Benefit Determination

TR2. Dispute Certification Notice

TR3

. Request for Expedited Hearing, along with Affidavit of Donell Joyner

TR4. Employer’s Position Statement for Expedited Hearing

Exhibits:

1. First Report of Work Injury

2. Employee’s Choice of Physician Form

3. Supervisor’s Accident Investigation report

4. Medical Records from Memphis Orthopaedic Group

5. Medical Records from Dr. Thirukandeeswaram Swaminathan

CERTIFICATE OF SERVICE

I hereb y certify that a true and correct copy of this Order was sent to the following recipients by the following methods of service on April 8 , 2019

.

Name Certified

Mail USPS Via

Email Service sent to:

Donell Joyner

, Self

- Represented Employee X X 1534 East Alcy Road Memphis, TN 38114

Gary Nichols Employer’s Attorney X g ary.nichols@thehartford.com

________________________ Penny Shrum, Clerk of Court Court of Workers’ Compensation Claims WC.CourtClerk@tn.gov