Merritt, Kenneth v. Flextronics, Inc.

FILED
Sep 02, 2022
02:48 PM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Kenneth Merritt ) Docket No. 2020-08-0920
)
v. ) State File No. 49660-2020
)
Flextronics, Inc., et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Allen Phillips, Judge )

Affirmed and Certified as Final

In this appeal of a compensation hearing, the employee questions the trial court’s exclusion
of certain doctors’ reports and the trial court’s alleged actions during the trial regarding the
employee’s testimony. The employee alleged he suffered a work-related repetitive injury,
but the authorized physician opined that the injury was not primarily caused by the
employment. The employee obtained causation opinions from other physicians he saw on
his own, but the trial court excluded those records as inadmissible. Following a trial, the
court found the employee had presented no admissible medical proof of an injury arising
primarily out of his employment and denied the employee’s requests for temporary and
permanent disability benefits, past medical expenses, and ongoing medical care. The
employee has appealed. Having carefully reviewed the record, we affirm the trial court’s
order and certify it as final.

Judge Pele I. Godkin delivered the opinion of the Appeals Board in which Presiding Judge
Timothy W. Conner and Judge Meredith B. Weaver joined.

Kenneth Merritt, Memphis, Tennessee, employee-appellant, pro se

Paul T. Nicks, Germantown, Tennessee, for the employer-appellee, Flextronics, Inc.

Factual and Procedural Background

Kenneth Merritt (“Employee”) worked as a computer repair technician for
Flextronics, Inc. (“Employer”). He alleged that in early July 2020, he suffered a work-
related repetitive injury to his hands. Employee eventually reported his pain to Employer,
but Employer did not provide a panel of physicians because it contended Employee did not

1
report that his condition was related to work. As a result, Employee sought medical
treatment with Dr. Christian Fahey on his own and filed for short-term disability and
FMLA leave.

Employee’s first visit with Dr. Fahey was on July 28, 2020, and his chief complaint
was pain in both hands with “gradual and insidious onset.” Dr. Fahey observed that

[h]is findings and his history are nonspecific . . . . However most likely
diagnosis is early (type 2) trigger finger. . . . I have received
correspondence . . . inquiring as to causality. I have no data to state that this
is a work-related condition and so therefore, at this time, my preliminary
opinion is that this is not causally associated with his job, as defined by
Tennessee Worker’s [sic] Compensation law.

He diagnosed Employee with bilateral hand pain and ordered physical therapy. In
addition to adding his causation opinion to his office note, Dr. Fahey responded to the
causation inquiry from the short-term disability carrier on August 7 and offered his opinion
that Employee’s “medical condition . . . [was not] caused or contributed to by work related
activities.”

After speaking with a representative from the insurance company who provided the
short-term disability policy, Employee came to believe he had suffered a work-related
injury. He reported the injury to Employer and selected Dr. Fahey from an Employer-
provided panel of physicians. Thereafter, Employee returned to Dr. Fahey on August 11,
2020, in follow-up for his hand pain. Dr. Fahey noted that Employee complained of
“hypersensitivity (‘like a mask’)” and reported that physical therapy was not helping. Dr.
Fahey noted that it was “more clear today that [Employee] doesn’t have a trigger finger,
rather he has pain mostly on the dorsum of both hands, in a sweat pattern change in both
palms although right more significant than left. That would suggest that there is an issue
with the nerves.” In light of this finding, Dr. Fahey referred Employee for electrodiagnostic
testing and discontinued physical therapy. He also returned Employee to work with
restrictions.

In an addendum to his office note the following day, Dr. Fahey stated as follows:

I have received correspondence . . . asking for clarifications of work
restrictions. So let me [be] all caps clear. IN MY PROFESSIONAL
OPINION AS REQUIRED BY TN STAUTE [sic], I HEREBY EXPRESS
A PROFESSIONAL OPINION THAT [Employee’s] COMPLAINTS DO
NOT MEET CRITERIA FOR A WORK RELATED INJURY OR
DISEASE. THIS IS NOT A WORK RELATED CONDITION. So adjustor
[sic] should close out [Employee’s] file, there are no restrictions from the
perspective of [workers’ compensation]. Restrictions were given so that if

2
[Employee] desires he can take time off under FMLA for non work related
symptoms.

(Emphasis in original.)

Electrodiagnostic testing was performed on August 14, 2020, and revealed moderate
median neuropathy at both wrists, no ulnar neuropathy on either side, no evidence of
cervical radiculopathy or brachial plexopathy involving either upper extremity, and no
myopathy.

Despite having earlier notified Dr. Fahey of his intent to file a medical malpractice
lawsuit against him, Employee returned to Dr. Fahey for a third and final time on August
27, 2020. Dr. Fahey stated that

once again [Employee] confronted me and insisted that it was my obligation
to cure him of his ailments, [that his] injuries are whatever he says they are.
He does have an abnormality on [electrodiagnostic testing] but that does not
correspond to his symptoms. Furthermore, I have no evidence of a traumatic
injury, and I have no clear reasoning to state that his conditions are causally
associated [with] his job. I am discharging him at this point. I have nothing
further to offer. Not in my opinion causally associated with his job, so not
work related.

Employee then sought treatment on his own with two physicians and a physician’s
assistant. 1 He was sent for additional testing on October 7, 2020, at Memphis Arthritis and
Rheumatology Clinic for bilateral hand and wrist pain he reported as beginning three
months prior. He reported that the worsening pain began with overuse at work and that he
had occasional numbness to the tips of his fingers. Medical records indicate the backs of
Employee’s hands were not painful but that he felt a sensation of “pressure on the backs of
his hands.” He stated that he had been told he had carpal tunnel syndrome and had been
given injections with minimal relief. Employee was assessed with arthralgia of multiple
joints, fatigue, and “disorder of bone, unspecified.” At an October 14, 2020 follow up, the
attending physician discussed Employee’s lab and imaging results. Employee was
diagnosed with rheumatoid arthritis and prescribed arthritis medications.

On October 29, 2020, Dr. Fahey prepared another note regarding causation
following his review of the second opinion obtained by Employee. He stated:

1
These medical care providers’ notes as well as two Standard Form Medical Reports (Form C-32’s), which
are discussed below in detail, were marked for identification purposes only. In its order, the trial court
concluded the documents did not comply with the legal requirements for admissibility.
3
I continue to believe that under the scientific evidence available,
[Employee’s] job does not have the frequency and severity required to
qualify as worker [sic] compensation as defined by current TN law. . . . The
simple fact of the matter is that the majority of cases of carpal tunnel
syndrome are NOT work related. Rather, they are biological in nature. The
only exceptions allowed under the current laws are unusual cases with an
unusual exposure. Lastly, his initial statements of symptoms are inconsistent
with carpal tunnel syndrome . . . .

The parties deposed Dr. Fahey on February 23, 2021. Throughout his deposition,
Dr. Fahey reiterated his opinion that Employee’s complaints and condition were not
primarily caused by his employment. Dr. Fahey testified that the change in workers’
compensation law with regard to repetitive injuries made it “difficult, if not impossible, to
claim repetitive stress injuries particularly in your hand.” He testified that while he
couldn’t quote the law, “the gist of it is that you have to have more than 50 percent
likelihood, you have to have some proof, you know, with some scientific literature of more
than 50 percent likelihood or you have to have a traumatic injury. You know, a fall where
you break your wrist or something along those lines, something falls on you and something
that’s verifiable . . . . Not a repetitive series of events.” Dr. Fahey opined that he didn’t
find a traumatic injury and “can’t say, based upon the scientific literature, the people who
do what he – what he does have more than 50 percent likelihood of it being caused by his
job rather than by his health and his biology.” In addition to his statements regarding what
constitutes a repetitive injury under Tennessee’s workers’ compensation statutes, Dr.
Fahey also reiterated his medical opinion that carpal tunnel syndrome is generally not a
work-related condition. He pointed to scientific literature to support his opinion that a
person’s occupation is not a significant risk factor for developing carpal tunnel syndrome.

At a March 11, 2022 compensation hearing, the trial court considered Employee’s
request for permanent disability and medical benefits related to his hand/wrist condition.
At trial, Employer offered Dr. Fahey’s deposition testimony, which included his opinion
regarding what constitutes a compensable repetitive injury under workers’ compensation
laws in Tennessee, as well as his opinion that Employee’s condition was not greater than
fifty percent related to his work with Employer. Employee attempted to offer into evidence
two Form C-32s from orthopedic surgeons Dr. Michael Hood and Dr. Rommel Childress.
Employer objected to the admissibility of both, arguing that neither satisfied the statutory
requirements for admissibility set forth in Tennessee Code Annotated section 50-6-235(c).
Specifically, Dr. Hood’s Form C-32 contained no statement of the doctor’s qualifications,
and the court was unable to verify if it was the original document, both of which are
statutory requirements. The Form C-32 from Dr. Childress was served on Employer less
than twenty days prior to the compensation hearing and also did not contain the doctor’s
qualifications. Thus, the court ruled both Form C-32s were inadmissible as evidence. The
court also excluded the medical records and bills Employee attempted to offer into
evidence, noting that, standing alone, they are hearsay and inadmissible.

4
In its compensation hearing order, the trial court noted that Dr. Fahey stated on
several occasions that Employee’s condition was not greater than fifty percent related to
his work, despite his mistaken belief of the law regarding repetitive injuries. The court
determined that, as the authorized physician, Dr. Fahey’s causation opinion was entitled to
a presumption of correctness and concluded that Employee had failed to rebut this
presumption. The court determined Employee was credible but noted he offered no
admissible medical proof that his injury arose primarily out of his employment. Thus, the
court denied Employee’s claim and dismissed the case with prejudice on April 4, 2022.

On April 9, 2022, Employee filed two motions, a “Motion to Stay Compensation
Order Denying Benefits” and a “Motion to Stay, Alter and Amend Compensation Order
Denying Benefits.” 2 In these motions, Employee contended that the Form C-32s of Drs.
Childress and Hood should have been admitted into evidence and that the trial court
“clearly overlooked” the rating and Form C-32 of Dr. Childress. In an April 22, 2022 order
denying Employee’s Motion to Stay, Alter and Amend Compensation Order Denying
Benefits, the court noted that it had reviewed the Form C-32s of both doctors and all
documents filed in TNComp, the Bureau of Workers’ Compensation’s electronic filing
system, both before and after the compensation hearing. The court reiterated its conclusion
that Employee failed to satisfy the admissibility requirements of section 56-6-235(c) and
found no basis to amend the findings of fact pursuant to Rule 52.02 of the Tennessee Rules
of Civil Procedure. Employee has appealed the April 4, 2022 compensation order denying
benefits.

Standard of Review

The standard we apply in reviewing a trial court’s decision presumes that the court’s
factual findings are correct unless the preponderance of the evidence is otherwise. See
Tenn. Code Ann. § 50-6-239(c)(7) (2021). When the trial judge has had the opportunity
to observe a witness’s demeanor and to hear in-court testimony, we give considerable
deference to factual findings made by the trial court. Madden v. Holland Grp. of Tenn.,
Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar deference need be
afforded the trial court’s findings based upon documentary evidence.” Goodman v.
Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at *6 (Tenn.
Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and application of
statutes and regulations are questions of law that are reviewed de novo with no presumption
of correctness afforded the trial court’s conclusions. See Mansell v. Bridgestone Firestone
N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are also mindful of our
obligation to construe the workers’ compensation statutes “fairly, impartially, and in
accordance with basic principles of statutory construction” and in a way that does not favor
either the employee or the employer. Tenn. Code Ann. § 50-6-116 (2021).

2
On April 17, 2022, Employee filed a third motion titled “Motion to Amend Motion to Stay Compensation
Order Denying Benefits,” seeking to amend his prior Motion to Stay.
5
Analysis

Employee raises two issues in his notice of appeal, which we have restated as
follows: (1) whether the trial court erred in excluding Employee’s medical proof; and (2)
whether the court provided “misleading assurance to guide [Employee] from testifying.”
However, in Employee’s brief on appeal, he argues that his case should be remanded based
upon the doctrines of equitable estoppel and excusable neglect. 3

Specifically, Employee argues that he was “locked out of TN Comp [sic] for 3
months because of a glitch in the system” and that this is why he was unable to timely file
the Form C-32s with the qualifications of each physician and the medical records and bills
he attempted to enter into evidence. Thus, Employee contends that “[u]nder [e]quitable
[t]olling, the 20-day Statute of limitation Rule 26 should be waived because of the system
having a known flaw” that kept him from submitting certain documents within the
prescribed time limit. Employee also requests relief under “Rule 60(b)(1) [sic] of the
Tennessee Rules of Civil Procedure,” asserting that the ombudsman’s failure to advise him
as to the statutory requirements concerning admissibility of certain documents was
“excusable neglect which could have been pivotal in helping him to win his case.”
Employee contends he was “blindsided” by Employer’s objections to the admissibility of
certain documents at trial. Conversely, Employer asserts that, because Employee failed to
raise these issues at trial, he waived these issues for purposes of an appeal.

It is well-settled that a litigant generally cannot raise issues on appeal that were not
presented to the trial court. See Keyes v. Bridgestone Ams., No. 2016-06-2007, 2017 TN
Wrk. Comp. App. Bd. LEXIS 33, at *7 (Tenn. Workers’ Comp. App. Bd. May, 18, 2017)
(“issues not presented to and decided by the trial court will not be considered by an
appellate court”). The rationale for such a rule is that an appellate court is not in the
position of a trial court and should not resolve issues of law or fact in the first instance.
See Cartwright v. Jackson Capital Partners, Ltd. P’ship, 478 S.W.3d 596, 614 (Tenn. Ct.
App. 2015) (“[A]ppellate courts do not sit as self-directed boards of legal inquiry and
research, but essentially as arbiters of legal questions presented and argued by the parties
before them.”). Here, Employee failed to raise equitable estoppel or excusable neglect as
issues for the trial court to consider. Accordingly, we treat Employee’s arguments
regarding equitable estoppel and excusable neglect as having been waived. See Moore &
Seiferth v. Ingles Markets, Inc., Nos. 2015-02-0193 & -0183, 2015 TN Wrk. Comp. App.
Bd. LEXIS 54, at *4 (Tenn. Workers’ Comp. App. Bd. Nov. 4, 2015).

3
We also note that Employee submitted additional documentation with his brief on appeal, some of which
had not been submitted to the trial court. On appeal, we cannot consider documentation that was not
properly admitted into evidence for the trial court’s consideration. See, e.g., Hadzic v. Averitt Express, No.
2014-02-0064, 2015 TN Wrk. Comp. App. Bd. LEXIS 14, at *13 n.4 (Tenn. Workers’ Comp. App. Bd.
May 18, 2015) (The Appeals Board “will not consider on appeal testimony, exhibits, or other materials that
were not properly admitted into evidence at the hearing before the trial judge.”).
6
With regard to the trial court’s exclusion of Employee’s medical proof, the
Tennessee Workers’ Compensation Law provides a mechanism to introduce the written
reports of physicians into evidence at trial if, and only if, certain requirements are met.
Tennessee Code Annotated section 50-6-235(c) provides, in relevant part, that a party can
offer a written medical report from a doctor on a form prescribed by the Bureau of Workers’
Compensation’s Administrator if the form or an accompanying affidavit contains the
original signature of the physician and the qualifications of the physician are included in
either the body of the report or in an attachment. Tenn. Code Ann. § 50-6-235(c)(1).
Further, notice of intent to use a Form C-32 must be provided to the opposing party not
less than twenty days before its intended use. Tenn. Code Ann. § 50-6-235(c)(2). In
Employee’s brief on appeal, he concedes that the medical records and bills he attempted to
introduce into evidence at trial failed to comply with statutory requirements necessary for
admissibility. Specifically, although Employee provided notice of his intent to use the C-
32 of Dr. Hood in a timely manner, the report contained no statement of the doctor’s
qualifications, and the court was unable to discern if the form had an original signature of
the physician. In addition, the C-32 of Dr. Childress was served on Employer less than
twenty days before the compensation hearing and did not contain a statement of his
qualifications. Thus, both forms failed to meet the statutory requirements for admissibility
and were excluded by the trial court. 4 We discern no error in this regard.

Finally, Employee asserts the trial court provided “misleading assurance to guide
[Employee] from testifying.” However, Employee fails to address this issue in his brief
and provides no evidence in support of this contention. Our review of the record reveals
Employee testified at the compensation hearing and was given the opportunity at trial to
offer whatever testimony he believed was relevant to and supportive of his claim.
Accordingly, we conclude this issue has no merit.

4
Although we agree with the trial court’s exclusion of Employee’s medical proof at trial, we note that Dr.
Fahey’s causation opinion was, to some extent, based on a misunderstanding of Tennessee law regarding
the issue of repetitive motion injuries. See Tenn. Code Ann. § 50-6-102(14) (the term “injury” includes
“cumulative trauma conditions” and “repetitive motion conditions” if the injured worker proves that such
a condition arose primarily out of and in the course and scope of the employment). According to Rule 703
of the Tennessee Rules of Evidence, a court “shall disallow testimony in the form of an opinion or inference
if the underlying facts or data indicate lack of trustworthiness.” Tenn. R. Evid. 703 (emphasis added).
Because Dr. Fahey’s records and testimony show he relied on a flawed definition of compensability for
repetitive motion injuries, the trustworthiness of his causation opinion should have been assessed under
Rule 703 before it was admitted into evidence and assigned a presumption of correctness. However, we
conclude that even if the admission of Dr. Fahey’s causation opinion was error, it was harmless error under
the circumstances because Employee did not submit any admissible medical proof or medical causation
opinions supporting his claim. Thus, Employee’s claim ultimately failed not because of the introduction of
Dr. Fahey’s testimony but because Employee did not satisfy his burden of proof.
7
Conclusion

For the foregoing reasons, we affirm the trial court’s order and certify it as final.
Costs on appeal are taxed to Employee.

8
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Kenneth Merritt ) Docket No. 2020-08-0920
)
v. ) State File No. 49660-2020
)
Flextronics, Inc., et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Allen Phillips, Judge )

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 September, 2022.

Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Kenneth Merritt X ken-merritt@msn.com
Paul Nicks X pnicks@travelers.com
jschmid6@travelers.com
Allen Phillips, Judge X Via Electronic Mail
Kenneth M. Switzer, Chief Judge X Via Electronic Mail
Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov
Workers’ Compensation Claims

Olivia Yearwood
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov