Opinion

Silas, Verna v. Brock Services

  • 2015 TN WC 5
Court
Tennessee Court of Workers' Compensation Claims
Filed
Jan 15, 2015
Status
Published
On the bench
Brian K. Addington
Cited by
0 cases
Authority
More cited than 12.4%

The opinion

FILED

J anuary 15, 201 5

T:-i CO liRTOF

WORKERS' COMPE:-iSATIO:-i

CLAIM S

Time : 11 :18 .U I

COURT OF WORKERS' COMPENSATION CLAIMS

DIVISION OF WORKERS' COMPENSATION

EMPLOYEE: VERNA SILAS DOCKET#: 2014-02-0013

STATE FILE#: 65583-2014

EMPLOYER: BROCK SERVICES DATE OF INJURY: 08115/2014

INSURANCE CARRIER: ESIS

EXPEDITED HEARING ORDER

THIS CAUSE came before the undersigned Workers' Compensation Judge on the 121h day of

January, 2015, upon the Request for Expedited Hearing filed by Employee, Vema Silas. Considering

the positions of the parties, the applicable law, and all of the evidence submitted, the Court hereby

finds as follows:

On December 19,2014, Ms. Silas filed a Request for Expedited Hearing with the Tennessee

Court of Workers' Compensation Claims, Division of Workers' Compensation, pursuant to

Tennessee Code Annotated section 50-6-239 to determine if the provision of medical benefits and

temporary benefits is appropriate.

ANALYSIS

Issue

Whether Ms. Silas sustained a compensable injury on August 15,2014, and, if so, whether

she is entitled to temporary total disability benefits.

Evidence Submitted

The following witnesses testified:

• Verna Silas

• Alysia Silas

Technical Record

The Court designated the following as the technical record:

• Exhibit 1: Petition for Benefit Determination

• Exhibit 2: Dispute Certification Notice

• Exhibit 3: Request for Expedited Hearing

The Court did not consider attachments to the above filings unless admitted into evidence

during the Expedited Hearing. The Court considered factual statements in the above filings as

allegations unless established by the evidence.

Parties Exhibits

The following exhibits were admitted into evidence:

• Exhibit 4: Medical Records-Stipulated by Parties

• Exhibit 5: Employee's Short-Term Disability Application

• Exhibit 6: Wage Statement

History of Claim

Ms. Silas performed material handling for Brock Services. As a material handler, she lifted

fifty-five (55) pound bags of material and placed them on a pallet. Her job also required moving the

pallet into location and wrapping the pallet when she completed stacking it. On August 15, 2014,

Ms. Silas' back popped when she moved a bag of material. She later told her supervisor, Ralph

Owens, that her back hurt. He asked her why her back hurt, and she told him she did not know for

sure but that it popped when she moved a bag of material. Mr. Owens allowed Ms. Silas to finish

her work day performing light duty work.

Ms. Silas came to work the next day and her back began to hurt with pain radiating down into

her leg. She again told her supervisor that her back hurt. He allowed her to do light-duty work that

day. Employee did fill out forms for Employer, but she did not go to Employer's in-house medical

clinic because the clinic was closed.

Ms. Silas came to work on August 181h and went to the on-site medical clinic. The nurse

applied gel to her back, but it did not relieve the pain. Ms. Silas worked light-duty the whole day.

The following day, Ms. Silas met with human resources regarding her back. At the conclusion ofthe

meeting, Ms. Silas understood meeting that she needed to obtain a statement from her doctor

regarding her back.

Ms. Silas went to Kingsport First Assist on August 20, 2014. Ms. Silas did not have workers'

compensation approval for this visit. Dr. Sonya Marden evaluated her and recommended lumbar

spine x -rays. The radiologist noted degenerative changes to Ms. Silas's lower two lumbar facets and

kidney stones. Dr. Marden instructed Ms. Silas to follow-up with her primary care provider.

Ms. Silas returned to Brock Services to discuss her doctor visit. Employer representatives

asked her if she wanted to file for short-term disability or workers' compensation. Ms. Silas replied

she wanted to file for workers' compensation, and did so. On August 22, 2014, ESIS, Brock

2

Services' workers' compensation carrier, filed a Notice of Denial of Claim for Compensation on the

basis that Employee suffered from a pre-existing condition and had presented no evidence of a work-

related injury.

Ms. Silas returned to First Assist on August 29, 2014. Dr. Anastasia Brown examined her

that day. The history of present illness indicated Ms. Silas reported low back pain resulting from a

lifting motion. The notes reflect that Ms. Silas' symptoms had resolved and that she requested a

work release. Dr. Brown's assessed low-back pain and released Ms. Silas to full-duty work. Ms.

Silas returned to work.

Employee filed a Petition for Benefit Determination with this Court on September 22,2014.

Employer at some point provided Ms. Silas a panel of physicians. Ms. Silas chose Dr. Sanjeev

Kakkar, who evaluated her on October 14, 2014.

Dr. Kakkar obtained Ms. Silas' history and performed a physical exam. He also reviewed her

prior medical records starting in December 2012. He indicated in his review that Ms. Silas had

prior-back pain and kidney stones. Following his exam, Dr. Kakkar opined that Ms. Silas had

lumbar pain due a combination oflumbar facets degeneration, chronic nephrolithiasis, and repetitive

labor over a period of time. He also opined within a reasonable degree of medical certainty that

"Ms. Silas's [sic] back pain was not primarily caused by her employment".

Ms. Silas continued to seek medical treatment, short-term disability, and workers'

compensation benefits after her visit with Dr. Kakkar. On December 9, 2014, Ms. Silas went to

Associated Orthopaedics of Kingsport, P.C., for unauthorized treatment The providers there (unable

to read signature) diagnosed her with lumbar back pain, recommended light-duty work, and

prescribed physical therapy two (2) to three (3) times a week for four (4) to six (6) weeks. The

provider assigned light -duty restrictions through January 8, 2015. On December 19, 2014, Ms. Silas

completed a short-term disability form. She marked that her request did not arise from a work injury.

She described the injury as "back pain lower pain in back and legs".

Ms. Silas' original Petition for Benefit Determination requested temporary disability benefits

and medical benefits. She later withdrew the request for medical benefits and requested just three-

and-one half (3 ~) weeks of temporary total disability benefits. The parties did not reach an

agreement about the issue. This matter came before the Court on January 12, 2015.

Employee's Contentions

Ms. Silas contends she injured her back lifting heavy items at work. She acknowledges she

has a history of back pain and kidney stones, but she asserts a change in the way her back hurts. She

relies on doctors' notes as proofthat she suffered a back injury at work and that she should be paid

for the time she missed work due to her back pain. Ms. Silas does not feel Dr. Kakkar's exam was

adequate to make a determination regarding her back.

3

Employer's Contentions

Brock Services contends that Ms. Silas has failed to prove she suffered a work injury. It

asserts that the medical records indicate Ms. Silas has suffered from chronic back pain and kidney

stones, which are unrelated to a work-injury. It also contends that Dr. Kakkar's opinion is the only

opinion addressing the work-relatedness of her injury, and his opinion proves her injury did not

primarily arise out of and in the course and scope of her employment.

Findings of Fact and Conclusions of Law

Standard Applied

When determining whether to award benefits, the Judge must decide whether the moving

party is likely to succeed on the merits at trial given the information available. See generally,

McCall v. Nat'! Health Care Corp., 100 S.W.3d 209,214 (Tenn. 2003). Ina workers' compensation

action, pursuant to Tennessee Code Annotated section 50-6-239(c)(6), Employee shall bear the

burden of proving each and every element of the claim by a preponderance of the evidence.

Employee must show the injury arose primarily out of and in the course and scope of employment.

Tenn. Code Ann.§ 50-6-102(13).

Factual Findings

The evidence proves Employee reported a back injury on August 15,2014. Brock Services

provided her a panel of physicians, and she chose Dr. Kakkar as the authorized treating physician.

Dr. Kakkar opined that Ms. Silas had lumbar pain due to a combination oflumbar facts degeneration,

chronic nephrolithiasis, and repetitive labor over a period of time. He also opined within a

reasonable degree of medical certainty that her back pain was not primarily caused by her

employment.

Application of Law to Facts

The issue in this case is whether Ms. Silas has presented sufficient evidence to prove she

suffered a compensable injury. Tennessee Code Annotated Section 50-6-1 02(13) defines injury as

follows:

"Injury" or "personal injury" mean an injury by accident, a mental injury,

occupational disease including diseases of the heart, lung and hypertension, or

cumulative trauma conditions including hearing loss, carpal tunnel syndrome

or any other repetitive motion conditions, arising primarily out of and in the

course and scope of employment, that causes death, disablement or the need for

medical treatment of the employee; provided, that:

(A) An injury is "accidental only if the injury is caused

by a specific incident, or set of incidents, arising

primarily out of and in the course and scope of

4

employment, and is identifiable by time and place of

occurrence, and shall not include the aggravation of a

preexisting disease, condition or ailment unless it can

be shown to a reasonable degree of medical certainty

that the aggravation arose primarily out of and in the

course and scope of employment;

(B) An Injury "arises primarily out of and in the course

and scope of employment' only if it has been shown

by a preponderance of the evidence that the

employment contributed more than fifty percent

(50%) in causing the injury, considering all causes;

(C) An injury causes death, disablement or the need for

medical treatment only if it has been shown to a

reasonable degree of medical certainty that it

contributed more than fifty percent (50%) in causing

death, disablement or need for medical treatment,

considering all causes.

Ms. Silas testified that she injured her back on August 15, 2014. Her testimony was specific

as to the incident that occurred on the day in question. Ms. Silas has the burden to prove her injury

arose primarily out of and in the course and scope of employment. Except in the most obvious,

simple and routine cases, the claimant in a workers' compensation action must establish by expert

medical evidence the causal relationship alluded to above between the claimed injury (and disability)

and the employment activity. Masters v. Industrial Garments Mfg. Co., 595 S.W.2d 811,812 (Tenn.

1980). Ms. Silas did not suffer an obvious, simple injury considering her prior history. Dr. Kakkar

provided a causation opinion and concluded that her work did not primarily cause her injury. As the

panel doctor, his opinion is presumed correct, but it can be rebutted by the preponderance of the

evidence. Tenn. Code Ann.§ 50-6-102(13)(E). The Court finds the remaining medical evidence

does not rebut the presumption given Dr. Kakkar' s opinion as it does not address causation and

points to pre-existing conditions as the cause of Ms. Silas' pain.

Based upon all the evidence submitted, Employee has failed to prove she suffered a

compensable injury, and therefore her request for temporary total disability benefits is denied at this

time.

IT IS, THEREFORE, ORDERED as follows:

1. Ms. Silas' claim against Brock Services or its workers' compensation carrier for the

requested temporary total disability benefits is denied on the grounds of compensability.

2. This matter is set for Initial Hearing on March 12, 2015, at 3:00p.m. eastern time.

ENTERED this the 15th day of January 2015.

5

BRIAN K. ADDINGTO

Workers' Compensation Judge

Ini tial Hearing:

An Initial Hearing has been set with Judge Brian K. Addington, Court of Workers

Compensation. You must call 865-594-6538 or toll free at 855-543-5044 to participate in the

Initial Hearing.

Please Note: You must call in on March 12, 2015. at 3:00p.m. eastern time to participate.

Failure to call in may result in a determination of the issues without your further participation. All

conferences are set using Eastern Time (ET).

Right to Appeal:

Tennessee Law allows any party who disagrees with this Expedited Hearing Order to appeal the

decision to the Workers' Compensation Appeals Board. To file a Notice of Appeal, you must:

1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal".

2. File the completed form with the Court Clerk within seven (7) business days of the date the

Expedited Hearing Order was entered by the Workers' Compensation Judge.

3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.

4. The parties, having the responsibility of ensuring a complete record on appeal, may request

from the Court Clerk the audio recording of the hearing for the purpose ofhaving a transcript

prepared by a licensed court reporter and filing it with the Court Clerk within ten (10)

calendar days of the filing of the Expedited Hearing Notice of Appeal. Alternatively, the

parties may file a statement of the evidence within ten (1 0) calendar days of the filing of the

Expedited Hearing Notice of Appeal. The statement ofthe evidence must be approved by the

Judge before the record is submitted to the Clerk of the Appeals Board.

5. If the appellant elects to file a position statement in support of the interlocutory appeal, the

appealing party shall file such position statement with the Court Clerk within three (3)

business days of the filing of the Expedited Hearing Notice of Appeal, specifying the issues

presented for review and including any argument in support thereof. If the appellee elects to

file a response in opposition to the interlocutory appeal, appellee shall do so within three (3)

business days of the filing of the appellant's position statement.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Expedited Hearing Order was sent to the

6

following recipients by the following methods of service on this the 15th day of January, 2015.

Name Certified First Via Fax Via Email Address

Mail Class Fax Number Email

Mail

Verna Silas X X

E.Lauderback, Esq. X elauderback@.la wyerfi rm.com

7

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.