V. 

Zipp Express, et al. 

Appeal from the Court of Workers' 

Compensation Claims 

Joshua D. Baker; Judge 

) State File No. 57850-2015 

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Affirmed and Remanded - Filed August 2, 2016 

In this interlocutory appeal, the employee alleges he was injured in a fall after 

experiencing an episode of syncope due to sleep deprivation resulting from his job duties. 

The employer denied the claim, asserting the fall was idiopathic and that there was 

insufficient medical evidence to establish a causal relationship between the syncopal 

episode and the employment. Following an expedited hearing, the trial court ordered the 

employer to provide a panel of physicians from which the employee could select a 

physician for evaluation and treatment of any work-related injuries, but denied the 

employee's request for temporary disability benefits and payment of medical expenses 

already incurred. The employer has appealed. Having carefully reviewed the record, we 

affirm the trial court's decision and remand the case for further proceedings as may be 

necessary. 

Judge David F. Hensley delivered the opinion of the Appeals Board, in which Judge 

Marshall L. Davidson, III, and Judge Timothy W. Conner joined. 

B. Duane Willis, Nashville, Tennessee, for the employer-appellant, Zipp Express 

Horace Wade Thomas, Lebanon, Tennessee, employee-appellee, prose 

Factual and Procedural Background 

Horace Wade Thomas ("Employee"), a sixty-year-old resident of Wilson County, 

Tennessee, was employed by Zipp Express ("Employer") as a truck driver on February 

1 
delivery was expecting bad weather. Employee stated that the dispatcher confirmed the 

instructions to pick up and deliver the load. After picking up the cargo, he stopped for 

the night in Gary, Indiana, having logged eleven hours of driving that day.2 

The following day, February 18, 2015, Employee began driving at about 9:15 in 

the morning. While driving in West Virginia on his way to Salem, Virginia, bad weather 

and road closures caused him to become stranded on the road. He called Employer at 

about 6:00 p.m. to report that he was stuck on the roadway, and he testified that he was 

there "all night just not moving." He explained that he needed to stay awake while 

stranded even though the truck was not moving because he did not know when traffic 

would be able to move, and he could not risk going to sleep and being the cause of 

additional traffic delays. When the traffic resumed moving about 5:30 the next morning, 

he notified dispatch that he would be stopping because he was "give out" and needed rest. 

He made his way to a rest area where he slept until about 7:15 a.m., finally aniving at the 

Salem, Virginia delivery destination at 7:47 a.m. on February 19, 2015.3 Unloading was 

completed just after 10:00 a.m., and Employee was informed that he needed to pick up 

another load at another location. He testified that when he informed his dispatcher that 

he was tired and needed to stop, the dispatcher instructed him to pick up the load before 

stopping. As directed, Employee proceeded to Waynesboro, Virginia, arriving at 

approximately 2:00 p.m. His log indicates he left the Waynesboro pick-up location at 

approximately 4:30 p.m. en route to Shelbyville, Tennessee. He stopped for the evening 

sometime before 6:00 p.m. at a truck stop. 

Employee testified that upon arriving at the truck stop he ''was hungry, went 

inside, and walked in - up to the cooler and grabbed two bottles of water and turned then 

1 In its June 14, 2016 expedited hearing order, the trial court states that Employee is fifty years of age and 

that the dates involved in Employee's trip and syncopal episode occurred in January 2015. However, it is 

clear in the record that Employee is sixty years of age and that the dates of Employee's trip and his 

syncopal episode were in February 2015. 

2 The testimony is uncontroverted that pursuant to Department of Transportation ("DOT") regulations, a 

commercial truck driver is allowed to drive a maximum of eleven hours and then is required to have a 

ten-hour rest. 

3 The testimony is also uncontroverted that time spent on the road when the truck is not moving, but is not 

shut down, is a "gray" area for which DOT regulations provide little or no guidance. 

2 
peripheral neuropathy, distal symmetrical, likely due to his uncontrolled diabetes)." In 

addition to stress, the report listed the "Impression" as including "[ s ]yncope, probably 

due to sleep loss, question if there is superimposed sleep apnea." The "Impression" in a 

cardiology consult note of the same date included "Syncope [ of] undetermined etiology. 

[History] not suggestive ofvaso-vagal syncope, no preceding prodrome." 

After comprehensive objective testing, Employee was discharged from the 

hospital on February 22, 2015 with multiple diagnoses including syncope, uncontrolled 

diabetes, and previously undiagnosed high blood pressure, for which he was instructed to 

begin a medication regimen. 

Employee followed up with his primary care provider in Tennessee for his 

diabetes, although there is no indication he received any treatment for injuries or 

symptoms related to his fall. At Employer's request, Dr. Blake Garside performed a 

records review and provided a report addressing questions presented by Employer. In 

addition to the available medical records, Dr. Garside also considered surveillance video 

obtained from the truck stop that showed Employee's syncopal episode. After reviewing 

the information, Dr. Garside issued a report on May 27, 2016, which reflected his 

opinions as follows: 

Question # 1: Based upon review of your medical records and information 

provided along with the video, can you articulate the cause of the 

employee's fall based upon the manner or direction in which he fell? 

It appears the patient suffered a syncopal episode while in the truck stop. It 

did not appear to be a trip or fall. He appears to fall unprovoked backwards 

striking his head and remains unconscious on the floor. 

Question #2: What was the cause, and secondarily, was that cause more 

than 50% related to his work as a truck driver in light of other diagnoses 

and medical issues identified as a syncope event, unknown etiology, 

diabetes mellitus, high blood pressure or potential sleep apnea [that] could 

have been the cause[]? 

4 Employee's reference to an "ambulance" appears to refer to a medical transport flight rather than a 

ground ambulance. 

3 
orthostatic hypotension and dehydration, neurologic issues such as seizure 

disorders or intracerebral hemorrhages. Sleep deprivation is not 

consistently demonstrated in the literature as a primary or secondary cause 

of syncopal episodes. Therefore it is unlikely that the sleep deprivation 

noted by [Employee] contributed more than 50% in causing this injury or 

episode. 

Employer denied the claim, stating in a Notice of Controversy that the "[i]njury is 

not considered compensable due to the lack of a timely notice and information gathered 

supporting the injury did not occur within the course and scope of employment."5 

Employee filed a petition for benefit determination and, following unsuccessful 

mediation, a dispute certification notice was issued. An expedited hearing was held on 

May 31, 2016, after which the trial court issued an order requiring Employer to provide 

"medical treatment for [Employee's] injuries ... to be initiated by [Employer] providing . 

. . a panel of neurological specialists." The trial court denied Employee's request for 

temporary disability benefits and payment of past medical expenses.6 Employer has 

appealed. 

Standard of Review 

The standard we apply 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 of the workers' compensation judge are correct, unless the preponderance of 

the evidence is otherwise." Tenn. Code Ann. § 50-6-239(c)(7) (2015). The trial court's 

decision must be upheld unless the rights of a party "have been prejudiced because 

findings, inferences, conclusions, or decisions of a workers' compensation judge: 

(A) Violate constitutional or statutory provisions; 

(B) Exceed the statutory authority of the workers' compensation judge; 

(C) Do not comply with lawful procedure; 

5 Although Employer raised notice as a defense in the trial court, Employer has not made any argument on 

appeal that timely notice was not given. Thus, we decline to address the issue. 

6 Employee did not appeal the trial court's denial of temporary disability benefits or payment of medical 

expenses. Therefore, we need not address those issues. 

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absent the limited circumstances identified in the statute. 

Analysis 

Employer presents the following issue in its brief on appeal: "Whether the 

evidence preponderates against the Court's conclusion that Employee is entitled to 

medical benefits as a result of his alleged injury." In its argument, Employer asserts the 

trial court "came to two specific findings that were in error." First, it asserts the trial 

court erred in finding that Employee presented sufficient evidence that his syncopal 

episode was caused by sleep deprivation. Finally, Employer asserts the trial court erred 

in finding that Employer did not establish that Employee's injury was idiopathic. 

We have previously addressed the standard of proof required in expedited 

hearings. At an expedited hearing, an employee need not prove each and every element 

of his or her claim by a preponderance of the evidence in order to obtain temporary 

disability benefits or medical benefits. E.g., McCord v. Advantage Human Resourcing, 

No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Tenn. Workers' 

Comp. App. Bd. Mar. 27, 2015). Instead, an employee has the burden to come forward 

with sufficient evidence from which the trial court can determine that the employee is 

likely to prevail at a hearing on the merits consistent with Tennessee Code Annotated 

section 50-6-239(d)(l). Id. Thus, while an injured worker retains the burden of proof at 

all stages of a workers' compensation claim, a trial court can grant relief at an expedited 

hearing if the court is satisfied that the employee has met the burden of showing that he 

or she is likely to prevail at a hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(l) 

(2015). 

"This lesser evidentiary standard ... does not relieve an employee of the burden of 

producing evidence of an injury by accident that arose primarily out of and in the course 

and scope of employment at an expedited hearing, but allows some relief to be granted if 

that evidence does not rise to the level of a 'preponderance of the evidence."' Buchanan 

v. Car/ex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at* 6 

(Tenn. Workers' Comp. App. Bd. Sept. 29, 2015). It is our responsibility to conduct an 

in-depth examination of the trial court's factual findings and conclusions, see Wilhelm v. 

Krogers, 235 S.W.3d 122, 126 (Tenn. 2007), within the mandate set out in Tennessee 

Code Annotated sections 50-6-217(a)(3) and 50-6-239(c)(7) (2015). Section 50-6-

239(c)(7) provides a presumption ''that the findings and conclusions of the workers' 

5 
M2005-02020-WC-R3-CV, 2006 Tenn. LEXIS 1209, at *10 (Tenn. Workers' Comp. 

Panel Dec. 27, 2006). As stated by the Tennessee Supreme Court, "[w]hen faced ... 

with conflicting medical testimony . . ., it is within the discretion of the trial judge to 

conclude that the opinion of certain experts should be accepted over that of other experts 

and that it contains the more probable explanation." Thomas v. Aetna Life and Cas. Co., 

812 S.W.2d 278,283 (Tenn. 1991) (internal quotation marks omitted). 

In the instant case, the trial court determined that Employee presented sufficient 

evidence that he would likely succeed at a hearing on the merits in establishing the 

compensability of his claim. The trial court noted that the medical records of Employee's 

treatment at Roanoke Memorial Hospital "characterized the event as work-related," and 

that these records "noted [Employee's] syncopal episode likely occurred due to lack of 

sleep." The medical records included stress as an "Impression," as well as "peripheral 

neuropathy ... likely due to mild diabetes." The "Impression" also included "[s]yncope, 

probably due to sleep loss, question if there is superimposed sleep apnea." In addition, 

the record of Employee's cardiology consultation during his hospitalization indicated his 

syncopal episode was of "undetermined etiology." While the medical records alone fall 

short of establishing compensability by a preponderance of the evidence, when such 

reports are considered in combination with Employee's testimony, which the trial court 

found to be credible, the evidence is sufficient to support the trial court's order for a 

panel of physicians. Given Employee's unrefuted testimony that his dispatcher instructed 

him to retrieve additional loads despite his lack of sleep, we find that at this stage of the 

proceedings the testimony and the record as a whole support the trial court's 

determination that Employee is entitled to a panel of physicians. 

Employer asserts that the trial court "should have placed greater weight [on] the 

medical records review performed by Dr. Garside." Arguing that Employee's medical 

proof "should have been classified as equivocal and not sufficient to meet his burden of 

[proving] a prima facie case," Employer concludes that it was error "[t]o dismiss Dr. 

Garside's report because of the fact it was only a medical records review." As noted 

above, a trial judge has the discretion to conclude that one medical opinion should be 

accepted over that of another. Thomas, 812 S.W.2d at 283. Furthermore, lay testimony 

can serve to bolster the opinion of one medical care provider over that of another. 

Williams v. Tecumseh Products Co., 978 S.W.2d 932, 935 (Tenn. 1998). Here, the trial 

court noted that "Dr. Garside never examined or even spoke with [Employee] before 

preparing the report . . . [ and] essentially had no connection with [Employee] or 

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of physicians. However, the trial court

s determination of this issue does not relieve 

Employee of the burden of establishing medical causation by a preponderance of the 

evidence at a hearing on the merits. 

Finally, we address Employer's assertion that the trial court erred in determining 

that Employee's injury was not idiopathic. "An idiopathic injury is one that has an 

unexplained origin or cause, and generally does not arise out of the employment unless 

'some condition of the employment presents a peculiar or additional hazard."' Ve/er v. 

Wackenhut Servs., No. E2010-00965-WC-R3-WC, 2011 Tenn. LEXIS 78, at *9 (Tenn. 

Workers' Comp. Panel Jan. 28, 2011) (quoting Shearon v. Seaman, 198 S.W.3d 209, 215 

(Tenn. Ct. App. 2005)). See also McCa.ffery v. Cardinal Logistics, No. 2015-08-0218, 

2015 TN Wrk. Comp. App. Bd. LEXIS 50, at *9 (Tenn. Workers' Comp. App. Bd. Dec. 

10, 2015). Here, Employer asserts that "[w]ithout [a] medical explanation to his syncopal 

episode ... this is a classic case of an idiopathic injury in line with [Sudduth v. Williams, 

517 S.W.2d 520 (Tenn. 1974)]." In Sudduth, the employee suffered a seizure at his place 

of employment described in the emergency room records as an alcoholic seizure, which 

caused Employee to fall and strike his head. Id. at 521. The proof was disputed 

concerning whether the employee struck his head only on the floor or whether he struck it 

on a piece of machinery as he fell. Id. The employee was released from the emergency 

room and was found a short time later unconscious at a nearby intersection. Id. He was 

taken back to the hospital where he later died of what an autopsy revealed was a subdural 

hematoma. Id. The Tennessee Supreme Court affirmed the trial court's determination 

that the injury was idiopathic based on medical records reflecting a recent seizure 

disorder diagnosis. Id. at 523. Also, the Supreme Court determined the evidence was 

sufficient to support a finding that there was no hazard incident to the employment that 

caused the fall. Id. 

In the present case, the trial court found the facts surrounding Employee's injury 

to be distinguishable from those in Sudduth. Employee may, indeed, have simply fallen 

without having tripped or slipped. Although the discussion in the trial court's June 14, 

2016 order concerning Employer's idiopathic injury defense is not entirely clear, we 

interpret the trial court's order to mean Employee established that a hazard to which he 

was exposed as a result of his employment, specifically sleep deprivation, was causally 

related to his syncopal episode and injury. The trial court concluded that Employee's 

"activity was rationally connected to, and therefore arose primarily out of, his 

employment." Whether a particular activity is "rationally connected to" the employment 

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For the foregoing reasons, we hold that the evidence does not preponderate against 

the trial court's finding that Employee's injury was not idiopathic. We further hold that 

the evidence does not preponderate against the trial court's decision to order Employer to 

provide a panel of physicians from which Employee can select a physician for evaluation 

and to provide medical care made reasonably necessary to treat any injuries determined 

to have arisen primarily out of and in the course and scope of the employment as 

contemplated in section 50-6-102(14). Finally, we hold that the trial court's decision 

does not violate any of the standards set forth in Tennessee Code Annotated section 50-6-

217(a)(3). Accordingly, the trial court's decision is affirmed, and the case is remanded 

for any further proceedings that may be necessary. 

&~~ David F. Henstey,iodg 

Workers' Compensation Appeals Board 

8 
 

 

 TENNESSEE BUREAU OF WORKERS’ COMPENSATION 

 WORKERS’ COMPENSATION APPEALS BOARD 

Horace Wade Thomas ) Docket No. 2015-06-0546

 ) 

v. ) 

 ) State File No. 57850-2015

Zipp Express, et al. ) 

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 2nd day of August, 2016. 

Name Certified 

Mail 

First Class 

Mail 

Via 

Fax 

Fax 

Number 

Via 

Email 

Email Address 

Horace Wade Thomas X X 7888 Cairo Bend Rd 

Lebanon, TN 37087 

wadestruck@live.com 

B. Duane Willis X dwillis@morganakins.com 

Joshua D. Baker 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

 

Jeanette Baird

Deputy Clerk, Workers’ Compensation Appeals Board

220 French Landing Dr., Ste. 1-B 

Nashville, TN 37243 

Telephone: 615-253-0064 

Electronic Mail: Jeanette.Baird@tn.gov