TENNESSEE BUREAU OF WORKERS' COMPENSATION WORKERS' COMPENSATION APPEALS BOARD Horace Wade Thomas V. Zipp Express,

et al. Appeal from the Court of Workers' Compensation Claims Joshua D. Baker; Judge

) Docket No. 2015-06-0546 ) ) State File No. 57850-2015 ) ) ) ) ) ) ) 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 119, 2015, when he suffered injuries that he alleges are work-related!

He asserts that he suffered sleep deprivation

as a result of his employment and, consequently, experienced an episode of syncope resulting

in a fall and head laceration that required medical treatment. Specifically,

on February
17, 2015, Employee had delivered

a load to a location
in Wisconsin and was instructed
by a dispatcher

to pick up another load in Green Bay, Wisconsin
for delivery
to Salem, Virginia. Employee testified that he questioned the dispatcher, stating that he understood
the area he would have to travel to complete the 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. 2to walk out . . . and that's when everything just went black." He testified
he has no recollection

of passing out or of subsequent events until he woke up in the "ambulance."

4 Employee received emergency medical

care at Roanoke Memorial Hospital, where he was admitted
on February
19, 2015. The record of a neurology consult on February 21, 2015 states that Employee "fainted after losing

a lot of sleep and is living under [an] enormous amount of stress." His neurological examination was "normal ( except for 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.

3Syncopal episodes occur due to global hypoperfusion. There are multiple causes ranging from cardiac
to neurologic issues most likely due to decreased blood flow to the brain. These can include cardiac syncope, vascular disease, arrhythmias, cardiac outflow obstruction, acute [ myocardial infarctions], aneurisms, and pulmonary embolus. Also vasovagal syncope of which this event did not appear consistent based on the video and cardiology assessment. Syncope can also be caused by 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

E mployee

' s request for temporary disability benefits and payment
of past medical

e x penses.

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. 4(D)Arearbitrary,capricious,characterizedbyabuseofdiscretion,orclearlyanunwarrantedexerciseofdiscretion;or(E)Arenotsupportedbyevidencethatisbothsubstantialandmaterialinthelightoftheentirerecord."Tenn.CodeAnn.§50-6-217(a)(3)(2015).Likeothercourtsapplyingthestandardsembodiedinsection50-6-217(a)(3),wewillnotdisturbthedecisionofthetrialcourtabsentthelimitedcircumstancesidentifiedinthestatute.AnalysisEmployerpresentsthefollowingissueinitsbriefonappeal:"WhethertheevidencepreponderatesagainsttheCourt'sconclusionthatEmployeeisentitledtomedicalbenefitsasaresultofhisallegedinjury."Initsargument,Employerassertsthetrialcourt"cametotwospecificfindingsthatwereinerror."First,itassertsthetrialcourterredinfindingthatEmployeepresentedsufficientevidencethathissyncopalepisodewascausedbysleepdeprivation.Finally,EmployerassertsthetrialcourterredinfindingthatEmployerdidnotestablishthatEmployee'sinjurywasidiopathic.Wehavepreviouslyaddressedthestandardofproofrequiredinexpeditedhearings.Atanexpeditedhearing,anemployeeneednotproveeachandeveryelementofhisorherclaimbyapreponderanceoftheevidenceinordertoobtaintemporarydisabilitybenefitsormedicalbenefits.E.g.,McCordv.AdvantageHumanResourcing,No.2014-06-0063,2015TNWrk.Comp.App.Bd.LEXIS6,at*9(Tenn.Workers'Comp.App.Bd.Mar.27,2015).Instead,anemployeehastheburdentocomeforwardwithsufficientevidencefromwhichthetrialcourtcandeterminethattheemployeeislikelytoprevailatahearingonthemeritsconsistentwithTennesseeCodeAnnotatedsection50-6-239(d)(l).Id.Thus,whileaninjuredworkerretainstheburdenofproofatallstagesofaworkers'compensationclaim,atrialcourtcangrantreliefatanexpeditedhearingifthecourtissatisfiedthattheemployeehasmettheburdenofshowingthatheorsheislikelytoprevailatahearingonthemerits.Tenn.CodeAnn.§50-6-239(d)(l)(2015)."Thislesserevidentiarystandard...doesnotrelieveanemployeeoftheburdenofproducingevidenceofaninjurybyaccidentthataroseprimarilyoutofandinthecourseandscopeofemploymentatanexpeditedhearing,butallowssomerelieftobegrantedifthatevidencedoesnotrisetothelevelofa'preponderanceoftheevidence."'Buchananv.Car/exGlassCo.,No.2015-01-0012,2015TNWrk.Comp.App.Bd.LEXIS39,at*6(Tenn.Workers'Comp.App.Bd.Sept.29,2015).Itisourresponsibilitytoconductanin-depthexaminationofthetrialcourt'sfactualfindingsandconclusions,seeWilhelmv.Krogers,235S.W.3d122,126(Tenn.2007),withinthemandatesetoutinTennesseeCodeAnnotatedsections50-6-217(a)(3)and50-6-239(c)(7)(2015).Section50-6-239(c)(7)providesapresumption''thatthefindingsandconclusionsoftheworkers'5compensation judge are correct, unless the preponderance

of the evidence

is otherwise." Furthermore, when the trial court has seen and heard the witnesses, considerable deference must be given to the trial court's factual findings. Tryon

v. Saturn Corp., 254 S.W.3d 321,327 (Tenn. 2008). In addition,

a trial judge "has the discretion

to conclude that the opinion of one expert should be accepted over that of another expert." Reagan

v. Tennplasco, No. 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 6involvement

in his treatment," which persuaded

the trial court to "place[] little weight on his report." Dr. Garside answered specific questions concerning causation and provided opinions "based on reasonable medical probability," concluding that "it is unlikely that the sleep deprivation ... contributed more than 50% in causing this injury or episode." While Employee's proof may or may not be sufficient

to establish causation
by
a preponderance

of the evidence

at trial, we cannot say that Employee failed to present sufficient evidence

to support the trial court's determination
that he is entitled
to a panel 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 7does not answer the ultimate question
of whether
an injury resulting from such activity arose primarily out of the employment

as contemplated

in Tennessee Code Annotated section 50-6-102(14). Nevertheless,

we cannot say that the trial court erred in determining that Employee came forward with sufficient evidence
at this stage of the proceedings

to support
an order for medical benefits. Conclusion 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’ COMPEN SATION 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 c opy of the Appeals Board’s decision in the referenced case was sent to th e following recipients by the following methods of service on this the 2 nd 

# 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