By Courtney S. Paterson

Randy White v. Boles Trucking, Inc., et al.              

Docket No. 2016-04-0074

State File No. 17376-2015

Filed November 14, 2016

Posture

This is a case before the Appeals Board on interlocutory appeal filed by the employer, and the dispute was whether the employer should be required to provide the employee medical and temporary disability benefits.

The employee alleged two work-related injuries to his low back. Initially, he reported pain in his low back on July 6, 2014, while moving a valve at work. The claim was accepted as compensable, and Dr. Juris Shibiyama  treated the employee treated. After undergoing surgery on December 1, 2015, Dr. Shibiyama released the employee to return to work six weeks later without restrictions. The employee alleged pain in his low back again on February 11, 2015, after slipping and falling on his back. The employer confirmed that the employee reported the incident but also reported that the employee had been experiencing pain for two days prior to the February incident. After an MRI, Dr. Shibiyama concluded that the employee’s work injury exacerbated his disc degeneration and spondylolisthesis. The employer denied authorization for fusion surgery to address the spondylolisthesis. Following an expedited hearing, the trial court conclude the employee was likely to prevail at trial on the issue of whether he sustained a fall at work that was the primary cause of the aggravation of his spondylolisthesis.

Having concluded the evidence does not preponderate against the trial court’s determination, the appeals board affirmed the trial court’s decision and remanded the case. When an employee alleges an aggravation of a pre-existing condition, the employee has the burden of proving that the aggravation arose primarily out of and in the course and scope of employment. See Tenn. Code Ann. § 50-6-102(14)(A). However, at an expedited hearing, an employee need not prove entitlement to temporary disability or medical benefits by a preponderance of the evidence but must establish that he or she “would likely prevail” in meeting the ultimate burden of proof at a hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(1) (2015); 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). Ultimately the appeals board held that although the expert medical proof was close on this issue, the trial court did not err in finding the employee is likely to prevail in establishing a compensable aggravation at a trial on the merits.

An associate with Spicer Rudstrom since 2009, Courtney focuses her practice on automobile liability, insurance coverage litigation, insurance defense litigation, insurance subrogation, premises liability, products liability and workers’ compensation. She is admitted to practice in all trial and appellate state courts in Tennessee, as well as the U.S. District Court for the Middle District of Tennessee.

 

Related Articles

Workers’ Compensation Appeals Board Summary: Justin Lee v. Western Plastics, et al.

Workers’ Compensation Appeals Board Summary: Mae Crumble v. Employment Services, et al.

Workers’ Compensation Appeals Board Summary: Janna McQuiddy v. St. Thomas Midtown Hospital