FILED
Aug 24, 2026
10:01 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
MATTHEW MCCLUNG, Docket No. 2023-50-3141
Employee,
v.
JEFFERSON, BRENNER & State File No. 42053-2021
SMITH,
Employer,
And Judge Dale Tipps
BUSINESS FIRST INS. CO,
Carrier.
EXPEDITED HEARING ORDER DENYING BENEFITS
(DECISION ON THE RECORD)
The Court considered this case on August 17, 2026, for an expedited hearing
on the record. The issue is whether Mr. McClung is likely to prevail on his claim
for benefits. For the reasons below, the Court finds that he is not likely to prove
causation at trial and denies the requested benefits.
Claim History
Mr. McClung was working for Jefferson, Brenner & Smith (“JBS”) on May
26, 2021, when he had an automobile accident and suffered facial injuries.
JBS furnished Mr. McClung with surgery in June for an open reduction and
internal fixation of the cheekbone upper jaw complex. The surgeon also extracted
five decayed tooth roots and one decayed tooth. Mr. McClung was discharged with
a splint holding his jaws together.
In August, Mr. McClung saw Dr. Julie Rezk for his first dental exam in 15
years. They discussed restorative treatment. Dr. Rezk noted that Mr. McClung was
missing 17 teeth, and his remaining teeth were generally decayed and demineralized.
1
She was unable to evaluate his periodontitis because his jaws were still splinted. Dr. Rezk proposed four partial devices to replace the missing teeth.
The next medical record from November recounts a visit with Dr. Nathan
Anderson. Mr. McClung reported that he was getting used to his partial dentures
but asked about the possibility of dental implants. Dr. Anderson said he had
insufficient bone stock for implants. He also explained that “the need to extract the teeth was due to chronic disease of the teeth and was not from the accident.”
Mr. McClung returned to Dr. Rezk in July 2024 to discuss further treatment.
He reported that he had broken his partials the previous September and was unable
to afford new ones. Dr. Rezk said she could get new partials fabricated, but he
should discuss that with his workers’ compensation carrier.
The last medical record in November chronicled another comprehensive exam
with Dr. Rezk. She found decay on every upper tooth and advised full maxillary
extractions. Dr. Rezk said his remaining lower teeth were all restorable. She
recommended a full conventional denture on top and a cast metal partial for the
lower teeth.
Mr. McClung’s Rule 72 declaration said that before the accident, he did not
require dentures or partial dentures. He was able to eat and chew normally. As part
of his treatment for facial and oral injuries, “multiple teeth were extracted.”
After the extractions, Mr. McClung was given temporary dental appliances,
but they repeatedly broke. As a result, some foods are difficult or impossible to eat, and he must avoid anything that requires substantial chewing.
Mr. McClung submitted a Rule 72 declaration from Dr. Dean DeLuke, a
dentist and oral and maxillofacial surgeon who reviewed his medical and dental
records, imaging studies, and photographs. Dr. DeLuke stated, “As part of the
treatment rendered for his facial and oral injuries, multiple teeth were extracted.”
He went on to describe Mr. McClung’s problems with his temporary appliances and
added that Dr. Rezk’s recommended restorative treatment is medically necessary
and reasonable.
Dr. DeLuke also said that the recommended treatment is a direct and
foreseeable consequence of the treatment Mr. McClung received after his accident.
He concluded that, considering all causes, the current need for treatment arose
primarily out of the facial and oral injuries suffered in the accident.
2
At JBS’s request, Dr. Daniel Weese reviewed Mr. McClung’s medical records
and performed an employer’s examination. Dr. Weese observed numerous
problems, including large decay lesions on several of the remaining upper teeth, a
significantly decayed tooth “with only a small sliver of lingual tooth remaining,” and several areas of enamel decalcification. His clinical summary included findings of
“extensive chronic dental disease characterized by generalized [decay]” and
generalized periodontal disease.
Dr. Weese first observed that the oral surgery records “revealed no obvious
traumatic injury to the teeth themselves.” Most of the tooth loss preexisted the
accident. Regarding the extraction of the residual roots and one tooth during surgery, the records showed this was because of dental disease, rather than traumatic injury.
Then, later records continued to describe a chronic dental disease process. Dr.
Weese wrote, “these findings are more consistent with longstanding dental disease
and a prolonged absence of routine preventive care than with acute traumatic dental
injury resulting from the May 26, 2021 accident.”
Dr. Weese then answered the question of whether the accident caused Mr.
McClung’s dental disease or periodontal change. He acknowledged that the postsurgery devices immobilizing Mr. McClung’s jaws compromised his oral hygiene
access for approximately 60 days. However, he said that 60 days of limited oral
hygiene would only produce reversible problems. After analyzing the extent of
decay before and after the accident, as well as considering that the disease process
had continued unabated, Dr. Weese concluded that Mr. McClung’s automobile
accident was not the primary cause of his need for Dr. Rezk’s recommended
treatment.
Mr. McClung requested an order for medical treatment, specifically the
restorative dental procedures recommended by Dr. Rezk. He contended that neither
party disputed that his teeth were extracted during surgery made necessary by his
accident. He relied on Dr. DeLuke’s affidavit that said, “As part of the treatment
rendered for his facial and oral injuries, multiple teeth were extracted.” Mr.
McClung also argued that his limitations in eating and chewing only arose after his
accident. Finally, he contended that Dr. Weese is not as qualified to give an opinion as Dr. DeLuke and that his analysis is flawed.
JBS countered that Mr. McClung has not shown that the need for his requested
treatment arose primarily out of his accident. Instead, it arose from his long-standing and ongoing dental disease. JBS also contended that the accident was not a primary
3
cause of any aggravation of Mr. McClung’s preexisting condition.
Findings of Fact and Conclusions of Law
Mr. McClung bears the burden of proof and must show he is likely to prevail
at a hearing on the merits. Tenn. Code Ann. § 50-6-239(c)(6) (2025); McCord v.
Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Mar. 27, 2015).
The first element he must prove is that his alleged injury arose primarily out
of and in the course and scope of his employment. He must show “to a reasonable
degree of medical certainty that [the incident] contributed more than fifty percent
(50%) in causing the . . . disablement or need for medical treatment, considering all causes.” “Shown to a reasonable degree of medical certainty” means that, in the
opinion of the treating physician, it is more likely than not considering all causes as opposed to speculation or possibility. Id. § 50-6-102(12)(A)-(D).
Applying these principles to the facts of this case, the issue is whether Mr.
McClung is likely to prove that the May 26, 2021 accident was the primary cause of
his current condition. He relied on Dr. DeLuke’s opinion. JBS disagreed, based on
the opinion of Dr. Weese.
As a starting point, neither medical opinion in this case comes from an
authorized physician, so neither is presumed correct under section 50-6-102(12)(E).
As will be seen, the lack of opinion, or at least explanation, from Mr. McClung’s
treating doctors creates a problem for his claim.
A fundamental question is whether any of Mr. McClung’s teeth were damaged
in the car crash. Although both he and Dr. DeLuke said multiple teeth were extracted
“as part of the treatment for his facial and oral injuries,” they stopped short of saying that his teeth were damaged in the accident. Indeed, the medical records only
referred to one tooth extraction, and the other extractions were tooth roots. Further, none of the medical or dental records submitted stated that Mr. McClung’s teeth
were physically affected by the accident.
Instead, the surgical report only described the process used to extract a grossly
decayed tooth and roots, without specifying the reason for extraction. In fact, the
only time the treatment records addressed the cause of the extractions is Dr.
Anderson’s explanation that “the need to extract the teeth was due to chronic disease of the teeth and was not from the accident.”
4
Mr. McClung disagreed, but he submitted no evidence explaining specifically
why the tooth and several roots had to be removed as part of his facial reconstruction surgery. He and Dr. DeLuke are obviously correct that this occurred as “part of his
treatment” for his injuries, but he has not shown that the extractions were necessary because of his injury and surgery instead of merely ancillary to them. Without that
proof, the Court cannot simply assume that his teeth were damaged by the crash or
removed because of the ensuing medical treatment.
Regardless of this lack of specificity, Dr. DeLuke concluded that restorative
treatment recommended by Dr. Rezk was medically necessary and reasonable and
that Mr. McClung’s need for that treatment arose primarily out of the facial and oral injuries suffered in the accident. Dr. Weese reached the opposite conclusion.
In evaluating conflicting expert testimony, a trial court may consider, among
other things, “the qualifications of the experts, the circumstances of their
examination, the information available to them, and the evaluation of the importance
of that information through other experts.” Orman v. Williams Sonoma, Inc., 803
S.W.2d 672, 676 (Tenn. 1991).
Beginning with the first factor, both Dr. DeLuke and Dr. Weese are
experienced, licensed professionals. Mr. McClung suggested that Dr. Weese is not
as qualified because he is not an oral and maxillofacial surgeon, but the Court is
unpersuaded. Dr. Weese’s report showed that he is quite experienced in matters of
dental disease and treatment, as well as prosthodontics. This factor favors neither
doctor.
As to the other factors, Dr. Weese examined Mr. McClung and witnessed his
current dental condition in person, while Dr. DeLuke only reviewed his records.
Thus, the “circumstances of examination” factor slightly favors Dr. Weese. Case
law generally supports this conclusion. “It seems reasonable that the physicians
having greater contact with the Plaintiff would have the advantage and opportunity
to provide a more in-depth opinion, if not a more accurate one.” Id. at 672.
Other than Dr. Weese’s examination, the information available to the doctors
is roughly identical.1 This factor does not appreciably favor either physician.
1 It appears both doctors were provided with substantially more medical records, including a
utilization review denial, than were filed with the Court.
5
With an essentially level playing field on the Orman factors, the Court looks
to the opinions themselves and finds that Dr. Weese is generally more persuasive.
He wrote a report that explains in detail how he reached his conclusions, while Dr.
DeLuke’s opinions in his Rule 72 statement are somewhat conclusory. For example,
he said that regardless of the condition of any particular tooth before the collision, the proposed treatment is a direct and foreseeable consequence of Mr. McClung’s
injuries and treatment caused by the accident. However, other than his assumption
that “multiple teeth were extracted” as part of the operative treatment, Dr. DeLuke
did not explain in any detail why that is so.
Further, Mr. McClung bears the burden of proof. Even if the opinions were
equally persuasive, his proof would be insufficient to meet that burden. Mr.
McClung is correct that his assessment of his own physical condition is competent
testimony that is not to be disregarded. Limberakis v. Pro-Tech Sec., Inc., 2017 TN
Wrk. Comp. App. Bd. LEXIS 53, at *5-6 (Sept. 12, 2017). However, his statements
about his ability to chew before and after the accident do not answer the question of the cause of the extractions, much less establish that the accident was the primary
cause.
Even if Mr. McClung were to prove that the accident was primarily
responsible for the removal of the single tooth and the tooth roots, the evidence is
inconclusive as to whether those removals are primarily responsible for the
recommended extractions, dentures, and cast metal partial. While both experts
agreed that the proposed treatment is reasonable and necessary, Dr. Weese said those
needs are predominantly attributable to chronic and progressive dental disease, not
the accident. Dr. DeLuke disagreed, but again, provided no detailed explanation of
how he reached that conclusion. 2
For these reasons, the Court finds that Mr. McClung is unlikely to prove at
trial that his current need for treatment was primarily caused by his work accident.
2 As noted above, Dr. Weese also concluded that the accident did not cause or advance Mr. McClung’s dental disease or periodontal change. The Court need not decide whether the accident caused an aggravation of a preexisting condition, as Mr. McClung did not raise it or submit any medical proof on the question.
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IT IS, THEREFORE, ORDERED as follows:
1. Mr. McClung’s requested relief is denied at this time.
2. The May 21, 2026 Scheduling Order remains in effect.
ENTERED August 24, 2026.
JUDGE DALE TIPPS
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Mr. McClung’s Rule 72 Declaration, filed June 26, 2026.
2. Documents made exhibits to Mr. McClung’s Memorandum of Law, filed
June 26, 2026.
3. Medical records filed by JBS on August 4, 2026.
4. Independent Medical Examination report of Dr. Daniel Weese.
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CERTIFICATE OF SERVICE
I certify that a copy of this order was sent as shown on August 24, 2026.
Name Email Service sent to:
Colin Calhoun, X [email protected]
Employee’s Attorney
Brayden Hunter, X [email protected]
Employer’s Attorney
PENNY SHRUM, COURT CLERK
8
Right to Appeal:
If you disagree with the Court’s Order, you may appeal to the Workers’ Compensation
Appeals Board. To do so, you must:
1. Complete the enclosed form entitled “Notice of Appeal” and file it with the Clerk of the
Court of Workers’ Compensation Claims before the expiration of the deadline.
¾ If the order being appealed is “expedited” (also called “interlocutory”), or if the
order does not dispose of the case in its entirety, the notice of appeal must be filed
within seven (7) business days of the date the order was filed.
¾ If the order being appealed is a “Compensation Order,” or if it resolves all issues
in the case, the notice of appeal must be filed within thirty (30) calendar days of
the date the Compensation Order was filed.
When filing the Notice of Appeal, you must serve a copy on the opposing party (or attorney,
if represented).
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten calendar
days after filing the Notice of Appeal. Payments can be made in-person at any Bureau office
or by U.S. mail, hand-delivery, or other delivery service. In the alternative, you may file an
Affidavit of Indigency (form available on the Bureau’s website or any Bureau office)
seeking a waiver of the filing fee. You must file the fully-completed Affidavit of Indigency
within ten calendar days of filing the Notice of Appeal. Failure to timely pay the filing
fee or file the Affidavit of Indigency will result in dismissal of your appeal.
3. You are responsible for ensuring a complete record is presented on appeal. If no court
reporter was present at the hearing, you may request from the Court Clerk the audio
recording of the hearing for a $25.00 fee. If you choose to submit a transcript as part of your
appeal, which the Appeals Board has emphasized is important for a meaningful review of
the case, a licensed court reporter must prepare the transcript, and you must file it with the
Court Clerk. The Court Clerk will prepare the record for submission to the Appeals Board,
and you will receive notice once it has been submitted. For deadlines related to the filing of
transcripts, statements of the evidence, and briefs on appeal, see the applicable rules on the
Bureau’s website at https://www.tn.gov/wcappealsboard. (Click the “Read Rules” button.)
4. After the Workers’ Compensation Judge approves the record and the Court Clerk transmits
it to the Appeals Board, a docketing notice will be sent to the parties.
If neither party timely files an appeal with the Appeals Board, the Court Order
becomes enforceable. See Tenn. Code Ann. § 50-6-239(d)(3) (expedited/interlocutory
orders) and Tenn. Code Ann. § 50-6-239(c)(7) (compensation orders).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
[email protected] -800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
Employee
v.
Employer
Notice is given that ____________________________________________________________________
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the Workers’ Compensation Appeals Board;ĐŚĞĐŬŽŶĞŽƌŵŽƌĞĂƉƉůŝĐĂďůĞďŽdžĞƐĂŶĚŝŶĐůƵĚĞƚŚĞĚĂƚĞĨŝůĞͲ ƐƚĂŵƉĞĚŽŶƚŚĞĨŝƌƐƚƉĂŐĞŽĨƚŚĞŽƌĚĞƌ;ƐͿďĞŝŶŐĂƉƉĞĂůĞĚͿ͗
ප Expedited Hearing Order filed on _______________ ප Motion Order filed on ___________________ ප Compensation Order filed on__________________ ප Other Order filed on_____________________ issued by Judge _________________________________________________________________________.
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal: ________________________________________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________
Parties
Appellant(s) (Requesting Party): _________________________________________ ܆Employer ܆Employee Address: ________________________________________________________ Phone: ___________________ Email: __________________________________________________________
Attorney’s Name: ______________________________________________ BPR#: _______________________ Attorney’s Email: ______________________________________________ Phone: _______________________ Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082 Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________
Appellee(s) (Opposing Party): ___________________________________________ ܆Employer ܆Employee Appellee’s Address: ______________________________________________ Phone: ____________________ Email: _________________________________________________________
Attorney’s Name: _____________________________________________ BPR#: ________________________ Attorney’s Email: _____________________________________________ Phone: _______________________ Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, _____________________________________________________________, certify that I have forwarded a true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this case on this the __________ day of ___________________________________, 20 ____.
[Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082