The opinion
FILED
July 20, 2015
D cotanoF
WORKERS' CO;\IPE:\"SATIO:'\
CLAll1S
Time: 7:15 A.· \I
COURT OF WORKERS' COMPENSATION CLAIMS
AT CHATTANOOGA
Susan Scott, ) Docket No.: 2015-01-0055
Employee, )
v. ) State File No.: 14509 I 2015
)
Integrity Staffing Solutions, ) Date of Injury: February 10, 2015
Employer, )
And ) Judge: Thomas Wyatt
)
Zurich American Ins. Co. )
Insurance Carrier. )
)
EXPEDITED HEARING ORDER
THIS CAUSE came to be heard before the undersigned Workers' Compensation
Judge on June 23,2015, upon the Request for Expedited Hearing filed by Susan Scott,
the employee, on May 29, 2015, pursuant to Tennessee Code Annotated section 50-6-239
(2014) to determine if Integrity Staffing Solutions (Integrity), the employer, is obligated
to provide medical and temporary disability benefits. Considering the positions of the
parties, the applicable law, and all of the evidence submitted, the Court concludes that
Ms. Scott is entitled to the requested medical benefits.
ANALYSIS
Issues
1. Whether Ms. Scott established that her left shoulder and upper back injury
arose primarily out of and in the course and scope of employment.
2. Whether Ms. Scott is entitled to additional medical benefits.
1
3. Whether Ms. Scott is entitled to temporary disability benefits.
Evidence Submitted
The Court admitted into evidence the exhibits identified below:
1. Affidavit of Susan Scott (3 pages);
2. Agreement Between Employee/Employer Choice of Physician (Form C-42)
(1 page);
3. Request for Medical Information form completed by Dr. Neil Spitalny (3
pages);
4. Report of Dr. Neil Spitalny (1 page); and,
5. Documentation prepared by Ms. Scott (35 pages) (marked for identification
purposes only subject to hearsay and relevancy objections made by counsel
for Integrity).
The Court designated the following as the technical record:
• Petition for Benefit Determination (PBD), filed March 30, 2015;
• Dispute Certification Notice (DCN), filed May 11, 2015; and,
• Request for Expedited Hearing filed May 29, 2015.
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 or any attachments thereto as allegations unless established by the evidence.
The following witnesses provided in-person testimony:
• Ms. Scott;
• Houston Eaves; and,
• Jackson Sifford.
The parties stipulated that Ms. Scott's average weekly wage is $477.44, which
calculates to a compensation rate of$318.31.
History of Claim
Ms. Scott is a fifty- (50) year-old resident of Soddy-Daisy, Tennessee. On the
date of injury, February 10, 2015, she had worked approximately three (3) months as a
picker at the Arnazon.com (Amazon) distribution center in Chattanooga, Tennessee. Ms.
Scott worked at Amazon through Integrity, a staffing agency.
2
Ms. Scott jammed her left arm when she pushed a cart into a pallet while picking
merchandise for shipment. She felt immediate pain in her left shoulder and left upper
back. Ms. Scott reported the injury to Integrity's area manager, who sent her for
treatment at AmCare, an on-site medical facility at Amazon. A nurse at AmCare treated
Ms. Scott with over-the-counter medication and Biofreeze before returning her to work.
Ms. Scott worked with pain until February 23, 2015, when she asked the nurse at
AmCare to send her to a doctor (Ex. 2). She met with Integrity's safety manager, who
provided her a panel from which she selected Dr. Neil Spitalny (Ex. 2). Due to pain from
her left shoulder injury, Ms. Scott did not work while waiting to see Dr. Spitalny.
Ms. Scott did not keep her first scheduled appointment with Dr. Spitalny due to
snow, eventually seeing him on March 3, 2015 (Ex. 3). Ms. Scott told Dr. Spitalny about
the left shoulder injury she sustained while working for Integrity. She testified that Dr.
Spitalny asked whether she had sustained work-related injuries in the past and also
inquired extensively about a work-related back injury that she related to him.
Dr. Spitalny concluded that Ms. Scott "sustained no injury at all from the alleged
February 10, 2015 injury" (Ex. 4). Dr. Spitalny opined that Ms. Scott's problems "are
related to her chronic back pain or deconditioning or lack of mobility of the cervical
spine, her osteoporosis, and mild pre-existing shoulder degenerative changes" (Ex. 4). In
his report, he opined that Ms. Scott was not capable of "doing any heavy lifting" (Ex. 4).
In response to inquiries in a printed Medical Information form provided him by Integrity,
Dr. Spitalny diagnosed Ms. Scott with "chronic back pain" and released her to work with
unspecified restrictions due to "chronic back pain [and] narcotic usage" (Ex. 3, p. 1).
Ms. Scott returned to work on March 4, 2015. She testified that she was
physically able to do her job despite left shoulder pain. Integrity took Ms. Scott off work
due to the restrictions placed by Dr. Spitalny. Ms. Scott testified that she worked for "a
day or two (2)" after she saw Dr. Spitalny, while Integrity's manager testified she only
worked on March 4, 2015, and then only for an hour. Integrity has a policy that its
employees cannot work under restrictions. The policy includes the requirement that,
once a physician places an employee on restrictions, the employee cannot return to work
until a physician releases the employee to full-duty and he or she signs a Certificate of
Fitness form.
Over the ensuing weeks, numerous disputes arose between Ms. Scott and the
management at Integrity. Ms. Scott refused to sign the Certificate of Fitness form
because its language stated that her injury was not work-related. Integrity agreed that
Ms. Scott could sign a Certificate of Fitness form after redacting the language to which
she did not agree, but she declined to do so. Ms. Scott's private physician would not give
her a release to return to work because he did not take her off work. After a period of
absence from work due to the above disputes, Integrity terminated Ms. Scott's
3
employment.
Ms. Scott filed a PBD on March 3, 2015, seeking medical and temporary
disability benefits. The parties did not resolve the disputed issues through mediation and
the Mediation Specialist filed the DCN on May 11, 2015.
During the Expedited Hearing, Integrity moved for dismissal following both the
conclusion of Ms. Scott's case and at the closing of the evidentiary phase of the hearing.
On both occasions, Integrity argued that the Court should dismiss the claim because Ms.
Scott did not introduce an expert medical opinion to rebut Dr. Spitalny's opinion that her
injury was not work-related. The Court overruled both motions to dismiss.
Ms. Scott's Contentions
Ms. Scott contends that she had no shoulder problems before suffering the injury
at Integrity. She claims that she complied with all of Integrity's instructions regarding
giving notice and saw the providers to whom Integrity sent her. Accordingly, she
contends that Integrity wrongfully denied her medical and temporary disability benefits.
Integrity's Contentions
Integrity contends that the only expert medical opinion in evidence is that of Dr.
Spitalny, who opined that Ms. Scott's alleged injury did not arise primarily out of and in
the course and scope of employment. Accordingly, Integrity asks that the Court deny
Ms. Scott's request for benefits because she has not shown that, at a hearing on the
merits, she will likely prevail in establishing that her shoulder condition is work-related.
Findings of Fact and Conclusions of Law
Standard Applied
The Workers' Compensation Law shall not be remedially or liberally construed in
favor of either party but shall be construed fairly, impartially, and in accordance with
basic principles of statutory construction favoring neither the employee nor
employer. Tenn. Code Ann. § 50-6-116 (2014). An employee need not prove every
element of his or her claim by a preponderance of the evidence in order to obtain relief at
an Expedited Hearing. McCord v. Advantage Human Resourcing, No. 2014-06-0063,
2015 TN Wrk Comp App Bd LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar.
27, 20 15). Instead, an employee has the burden to come forward with sufficient evidence
from which the trial court can determine that the employee is likely to prevail at a hearing
on the merits. !d.
Factual Findings
4
Upon consideration of the testimony in open court, the exhibits introduced by the
parties, the argument of counsel for the parties, and the record in this claim, the Court
makes the following factual findings in the Expedited Hearing conducted June 23,2015:
• On or about February 10, 2015, Ms. Scott was employed through Integrity
as a picker at the Amazon distribution center in Chattanooga, Tennessee;
• On or about February 10, 2015, Ms. Scott felt pain in her left shoulder and
left upper back area when she pushed a cart into a pallet;
• Ms. Scott reported her injury to Integrity on the date of injury;
• Ms. Scott selected Dr. Neil Spitalny from a panel that Integrity provided
her;
• Ms. Scott saw Dr. Spitalny on March 3, 2015, following which visit he
opined that she did not sustain an injury while working at Amazon through
Integrity;
• Dr. Spitalny released Ms. Scott to return to work under restrictions placed
because of a chronic back injury and the fact she took prescribed narcotic
medication; and,
• Based on Dr. Spitalny's opinion that she did not sustain a work-related
injury on or about February 10, 2015, Integrity refused to provide Ms. Scott
further workers' compensation benefits.
Application ofLaw to Facts
Causation
Discussion ofApplicable Legal Authority
The 2013 reforms to the Workers' Compensation Law define a compensable
injury as one that "arises primarily out of and in the course and scope of employment."
Tenn. Code Ann. § 50-6-102(13) (2014). The statute expands the above definition by
providing that "[a]n 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" and requires that entitlement to workers' compensation benefits be "shown to
a reasonable degree of medical certainty." Tenn. Code Ann. § 50-6-102(13)(B) and
(C)(2014). A physician giving a causation opinion must state the opinion based on a
conclusion that the work "more likely than not considering all causes, as opposed to
speculation and possibility" caused the injury forming the basis of the claim. Tenn. Code
Ann. § 50-6-102(13)(D)(2014).
The Supreme Court has long held in workers' compensation cases that an injured
5
employee may establish causation of his or her injury by a combination of medical expert
and lay opinion. See, e. g., White v. Werthan Indus., 824 S.W.2d 158, 159 (Tenn. 1992);
Smith v. Empire Pencil Co., 781 S.W.2d 833, 835 (Tenn. 1989). In fact, the Supreme
Court in Thomas v. Aetna Life & Cas. Co., 812 S.W.2d 278, 283 (Tenn. 1991), held that,
"[w]bile causation and permanency of an injury must be proved by expert medical
testimony, such testimony must be considered in conjunction with the lay testimony of
the employee as to how the injury occurred and the employee's subsequent condition."
!d.
The 2013 reforms to the Workers' Compensation Law added the word "primarily"
to the definition of a work-related injury and specified the standard under which medical
experts are to render causation opinions. However, the legislature did not enact language
that diminished the role of credible lay testimony in the determination of whether a
claimed injury is compensable. In McCord, supra, the Workers' Compensation Appeals
Board held that reliance on precedent from the Tennessee Supreme Court that predates
the 2013 reforms is proper "unless it is evident that the Supreme Court's decision or
rationale relied on a remedial interpretation of the pre-July 1, 2014 statutes, that it relied
on specific statutory language no longer contained in the Workers' Compensation Law,
and/or that it relied on an analysis that has since been addressed by the general assembly
through statutory amendments." 2015 TN Wrk Comp Bd LEXIS 6 at *19, n4. After
considering the authority cited in the preceding paragraph in view of the principles set
forth in McCord, the Court finds that said case authority related to the value of lay
testimony remains good law.
Assessment ofLay Testimony
In analyzing this claim, the Court first assesses the credibility of Ms. Scott's
testimony that she suffered pain in the left shoulder and upper back when she pushed a
cart into a pallet while working at Amazon through Integrity. Ms. Scott testified clearly
and without wavering in describing the circumstances of her injury. Neither of the
management representatives who testified at the Expedited Hearing denied the
occurrence of the incident described by Ms. Scott. Dr. Spitalny's report corroborates Ms.
Scott's in-person testimony about the mechanism of injury in that it records that she
reported suffering the subject injury when she ''was pushing a cart ... , coming around a
comer ... she jammed into a pallet." On the basis of the evidence introduced at the
Expedited Hearing, the Court finds that Ms. Scott felt pain in her left shoulder and upper
back when she pushed a cart into a pallet while at work on February 10, 2015.
Assessment ofDr. Spitalny 's Opinion
The medical evidence introduced at the Expedited Hearing consisted of Dr.
Spitalny's report (Ex. 4) and the Integrity Request for Medical Information form that Dr.
Spitalny partially completed (Ex. 3). The Court notes that, in examining Ms. Scott, Dr.
6
Spitalny did not order diagnostic testing (Ex. 4). The Court further notes that Dr.
Spitalny's records do not indicate that he reviewed copies of records documenting her
previous treatment and diagnostic history (Exs. 3, 4). Nonetheless, Dr. Spitalny wrote in
his report that Ms. Scott "sustained no injury at all from the alleged February 10, 2015
injury" (Ex. 4). He, instead, related her pain to "chronic back pain or deconditioning or
lack of mobility of the cervical spine, her osteoporosis, and mild pre-existing shoulder
degenerative changes" (Ex. 4).
After physically examining Ms. Scott, Dr. Spitalny noted that Ms. Scott had "mild
tenderness in the insertion of the deltoid" and "mild tenderness in the left trapezial
region" (Ex. 4). The Merriam-Webster Medical Dictionary defines the deltoid as "a large
triangular muscle that covers the shoulder joint," MERRIAM-WEBSTER,
http://www.merriam-webster.com/dictionary/deltoid (last visited July 20, 2015), and the
trapezius as "a large flat triangular superficial muscle of each side of the upper back,"
MERRIAM-WEBSTER, http://www .merriam-webster.com/dictionary/trapezius (last visited
July 20, 2015). Accordingly, Dr. Spitalny's examination findings corroborate Ms. Scott's
claim that she injured her left shoulder and upper back while working at Amazon through
Integrity.
Additionally, Dr. Spitalny did not note in his examination findings that Ms. Scott
reported neck or back pain, nor did he note that she exhibited neck or back findings.
Accordingly, the Court finds that there is no empirical evidence to corroborate Dr.
Spitalny's opinion that Ms. Scott's pain generated from pre-existing neck or back
conditions. The Court also notes that, for three (3) months prior to the date of injury, Ms.
Scott was physically able to work regularly at Amazon through Integrity. Accordingly,
the Court finds there is no evidence that corroborates Dr. Spitalny's opinion that general
deconditioning accounted for the pain Ms. Scott reported, and the deltoid and trapezius
tenderness he noted, during his examination.
Tennessee Rule of Evidence 703 states that "[t]he court shall disallow testimony in
the form of an opinion or inference if the underlying facts or data indicate lack of
trustworthiness." The Court finds that Dr. Spitalny rendered his causation opinion
without the benefit of diagnostic data or documentation of Ms. Scott's prior treatment and
diagnostic history. The Court also finds that Dr. Spitalny's opinion that pre-existing neck
and back conditions account for Ms. Scott's pain is inconsistent with Ms. Scott's
unrebutted testimony as to how she was injured and how her injury affected her.
Accordingly, the Court finds that Dr. Spitalny's opinions lack trustworthiness and do not
assist the Court.
Medical Benefits
On the DCN filed by the Mediating Specialist, the parties certified the following
issue for the Court's consideration: "Whether Employee is entitled to additional medical
7
care as recommended by a physician." In her closing statement, Ms. Scott stated that she
continues to suffer from a left shoulder sprain. The Court implies from that statement
that Ms. Scott seeks continued medical benefits. Integrity counters that Ms. Scott has not
established by expert medical opinion that her left shoulder problem is work-related and,
as such, it is not responsible for future treatment of her alleged injury.
In Lindsey v. Strohs Companies, 830 S.W.2d 899, 902-903 (Tenn. 1992), and
Buchanan v. Mission Ins. Co., 713 S.W.2d 654, 656 (Tenn. 1986), the Supreme Court
held that the Workers' Compensation Law imposes "concomitant," or concurrent, duties
on injured employees and their employers. The injured employee must timely report the
injury. The employer must offer a treatment panel. If the injured employee expects the
employer to pay for treatment of the work injury, he or she must obtain treatment from a
physician selected from the employer's panel.
Here, Ms. Scott gave timely notice of a claimed work-related left shoulder and
upper neck injury. Integrity offered her a panel from which she selected Dr. Spitalny.
Integrity contends that, owing to his status as an authorized treating physician, Dr.
Spitalny's opinion that Ms. Scott's injury is not work-related effectively terminates her
claim. The Court, however, questions whether the manner in which Dr. Spitalny
interacted with Ms. Scott constitutes treatment of her reported work injury. If the
interaction between Ms. Scott and Dr. Spitalny cannot legitimately be considered
treatment, Ms. Scott remains entitled to medical benefits.
The Court finds nothing in the records introduced in the Expedited Hearing that
indicates Dr. Spitalny treated Ms. Scott's left shoulder and upper back complaints.
Although he noted examination fmdings consistent with Ms. Scott's report of a left
shoulder and upper back injury, Dr. Spitalny neither ordered diagnostic testing nor
offered any treatment. The Court finds that Dr. Spitalny geared his interaction with Ms.
Scott more toward formulating a causation opinion than toward providing treatment.
Tennessee Code Annotated section 50-6-204(a)(1)(G) (2014) provides that, when
a physician selected from a panel "declines to accept the employee as a patient for the
purpose of providing treatment to the employee for his workers' compensation injury"
(emphasis added), the employee may select another physician from the panel or ask the
employer to provide an additional physician from which he or she may select a treating
physician. Other language in the above-referenced provision provides that an employee
is entitled to replace a physician selected from a panel ''who refused to accept the injured
employee as a patient for the purpose of treating the employee's workers' compensation
injury" (emphasis added).
While rendering a causation opmwn constitutes an aspect of the "treatment"
contemplated by an authorized treating physician by section 50-6-204(a)(l)(G) (2014),
such does not constitute the entirety of what is required, even when the physician
8
concludes that the injury is not work-related. In Mitchell v. Kayem, 54 S.W.2d 775, 781
(Tenn. App. 2001), a medical malpractice case, the Tennessee Court of Appeals quoted
the following defmition of "treatment" found in the 1993 edition of the Merriam-
Webster's Medical Desk Dictionary: "[t]reatment is defined as 'the action or manner of
treating a patient medically or surgically.'" Accordingly, the Court finds that the terms
"treatment" and "treating" in section 50-6-204(a)(1)(G) (2014) contemplate that the
authorized treating physician will concurrently medically respond to the injured worker's
reports of pain and physical restriction while formulating a causation opinion.
For the reasons discussed above, the Court finds that Dr. Spitalny did not offer the
meaningful examination contemplated under the Tennessee Workers' Compensation Law
by a physician formulating an opinion on the crucial issue of the causation of Ms. Scott's
claimed work injury. The Court also questions whether Dr. Spitalny exhibited the
legitimate willingness to treat Ms. Scott's properly-reported injury in the manner
contemplated by the Tennessee Workers' Compensation Law. Accordingly, the Court
finds that Dr. Spitalny constructively declined to accept Ms. Scott as a patient and,
pursuant to Tennessee Code Annotated section 50-6-204(a)(1)(G), Integrity is required to
allow Ms. Scott to select another authorized treating physician from the original panel it
provided her or, alternatively, to provide her another choice of competent physicians
from which she can select an authorized treating physician.
Temporary Disability Benefits
In Simpson v. Satterfield, 564 S.W.2d 953, 955 (Tenn. 1978), the Supreme Court
held that, to recover temporary disability benefits, an injured worker must prove he or she
is disabled from working due to a work injury. Ms. Scott did not introduce expert medical
opinion that she was disabled from working during any period in which she did not work.
Additionally, she testified that, as of March 4, 2015, she was able to work even though
she experienced left shoulder pain. Accordingly, the Court finds that Ms. Scott has not
come forward with sufficient evidence from which this Court can conclude that she is
likely to prevail at a hearing on the merits that she is entitled to temporary disability
benefits.
IT IS, THEREFORE, ORDERED as follows:
1. Medical care for Ms. Scott's work-related injury shall be paid and provided by
Integrity or its workers' compensation carrier as required by Tennessee Code
Annotated section 50-6-204 (2014), to be initiated by Integrity or its workers'
compensation carrier expeditiously providing Ms. Scott with the opportunity to
replace Dr. Spitalny by selecting an authorized treating physician from either the
panel from which she selected Dr. Spitalny or another list of physicians.
9
2. This matter is set for Initial Hearing on September 15, 2015, at 10:00 a.m. Eastern
Time.
3. Unless interlocutory appeal of the Expedited Hearing Order is filed,
compliance with this Order must occur no later than seven (7) business days
from the date of entry of this Order as required by Tennessee Code
Annotated section 50-6-239(d)(3) (2014). The Insurer or Self-Insured
Employer must submit confirmation of compliance with this Order to the
Bureau by email to WCCompliance.Program@tn.gov no later than the
seventh (7th) business day after entry of this Order. Failure to submit the
necessary confirmation within the period of compliance may result in a
penalty assessment for non-compliance.
4. For questions regarding compliance, please contact the Workers' Compensation
Compliance Unit via email WCCompliance.Program@tn.gov or by calling (615)
253-1471 or (615) 532-1309.
ENTERED this the 20tb day of July, 2015.
A~
Thomas Wyatt, Judge
Court of Workers' Compensation Claims
Initial Hearing:
An Initial Hearing has been set with Judge Thomas Wyatt, Court of
Workers' Compensation Claims on September 15,2015, at 10:00 a.m. Eastern Time.
You must call 615-741-3061 or toll free at 855-747-1721 to participate in the Initial
Hearing.
Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation. All conferences are set using Central Time (CT).
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
10
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 Workers' Compensation Judge entered the Expedited Hearing Order.
3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.
4. The appealing party is responsible for payment of a filing fee in the amount of
$75.00. Within ten ( 10) calendar days after the filing of a notice of appeal,
payment must be received by check, money order, or credit card
payment. Payments can be made in person at any Bureau office or by United
States mail, hand-delivery, or other delivery service. In the alternative, the
appealing party may file an Affidavit of Indigency, on a form prescribed by the
Bureau, seeking a waiver of the filing fee. The Affidavit of Indigency may be
filed contemporaneously with the Notice of Appeal or must be filed within ten
(10) calendar days thereafter. The Appeals Board will consider the Affidavit of
Indigency and issue an Order granting or denying the request for a waiver of the
filing fee as soon thereafter as is practicable. Failure to timely pay the filing fee
or file the Affidavit of Indigency in accordance with this section shall result in
dismissal of the appeal.
5. 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 of having a transcript prepared by a licensed court reporter and filing it
with the Court Clerk within ten (1 0) calendar days of the filing of the Expedited
Hearing Notice of Appeal. Alternatively, the parties may file a statement of the
evidence within ten (10) calendar days of the filing of the Expedited Hearing
Notice of Appeal. The Judge must approve the statement of the evidence before
the Court Clerk may submit the record to the Clerk of the Appeals Board.
6. 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.
11
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 20th day
of July, 2015.
Name Certified Via Via Service sent to:
Mail Fax Email
X SusanlscottO 1@gmail.com
Susan Scott, Self-
Represented
X Charlie.poss@leitnerfirm.com
Charlie Poss, Attorney
.fJ ~~ -
p~ m, Clerk of Court
Court of \Vorkers' Compensation Claims
WC.CourtCierk@tn.gov
12