The opinion
FILED
February 19, 2016
TN COURT OF
WORKERS' COMPINSATION
CLAIMS
TIMI 10:30 AM
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT COOKEVILLE BY INTERCHANGE
Douglas Erickson, ) Docket No.: 2015-06-0814
Employee, )
v. ) State File No.: 83399-2015
)
Wilson and Associates, P.C., )
Employer, )
And ) Judge Robert Durham
)
Berkley Southeast, )
Insurance Carrier/TPA. )
EXPEDITED HEARING ORDER DENYING BENEFITS
(REVIEW OF THE FILE)
THIS CAUSE came before the undersigned Workers' Compensation Judge upon
the Request for Expedited Hearing (REH) filed by the employee, Douglas Erickson, on
January 25, 2016, pursuant to Tennessee Code Annotated section 50-6-239 (2015) to
determine if the employer, Wilson and Associates, P.C. (Wilson), is obligated to provide
medical benefits. Pursuant to Rule 0800-02-21-.02(13) (2015) of the Tennessee
Compilation Rules and Regulations, Mr. Erickson requested the Court issue a ruling
based on a review of the file without an evidentiary hearing. Wilson voiced no objection.
Considering the positions of the parties, the applicable law, and all of the evidence
submitted, the Court concludes it needs no further information to render judgment.
The dispositive issue is whether Mr. Erickson is entitled to reimbursement for
medical expenses as well as continuing medical care for his alleged work-related tick bite
on July 10, 2015. The Court finds the evidence submitted by Mr. Erickson is insufficient
to establish he is likely to prevail at a hearing on the merits regarding the compensability
of his alleged injury thus requiring the Cornt to deny his request for medical benefits. 1' 2
1
Additional in formati on regarding the technical record and exhibits is attached to this Order as an Appendix.
2
Although Mr. Erickson alleged in the PBD that he missed five weeks of work , the only benefits he indicated he
sought were "Medical benefits for current injury." (T.R. 1.)
1
History of Claim
Mr. Erickson is a fifty-four-year-old resident of Williamson County, Tennessee
who works as a surveyor for Wilson. (T.R. 1.) On his Petition for Benefit Determination
(PBD), Mr. Erickson alleged he suffered a "tick bourne [sic] illness" on July 10, 2015,
after receiving "multiple tick bites while working in woods and fields on various job
sites." (T.R. 1.) When asked where the alleged injury occurred, Mr. Erickson listed
Williamson, Sumner, and Davidson Counties. (T .R. 1.)
In the affidavit attached to the REH, Mr. Erickson did not describe a specific
incident regarding a tick bite, but asserted he "believe[ d] the bite occurred in Portland,
TN, and I was working with Chris Bonner." (Ex. 1.) Mr. Erickson further asserted that
once he received some information requested from Wilson's counsel, he could "pinpoint"
when and where he contracted the "tick bourne [sic] illness" for which he allegedly
received treatment. 3 (Ex. 1.)
On July 14, 2015, Mr. Erickson presented to Dr. Jeffrey Jobe at the emergency
room of Centennial Medical Center (Centennial). (Ex. 2 at 1.) Dr. Jobe noted Mr.
Erickson complained of the onset of fever and generalized weakness four days earlier,
"after working in the heat." !d. Mr. Erickson stated he developed a headache the next
day and presented to the "minute clinic." 4 Mr. Erickson's symptoms did not improve, so
he went to Vanderbilt Walk-In Clinic (Vanderbilt) on the morning of the 14 1h.s !d.
According to Mr. Erickson, his WBC and platelet counts were low, so the doctor at
Vanderbilt sent him to the emergency room for further evaluation. !d.
During Dr. Jobe's examination, Mr. Erickson complained of a headache, myalgia,
and neck pain. !d. The examination revealed no objective abnormalities, and chest x-
rays and aCT brain scan were normal. (Ex. 2 at 11.) Dr. Jobe's primary impression was
that Mr. Erickson suffered from a "viral syndrome" also known as a "cold." (Ex. 2 at 7.)
Dr. Jobe excused Mr. Erickson from work until July 17. (Ex. 2 at 21.)
On July 22, Dr. Bethany Wagner with Vanderbilt saw Mr. Erickson. (Ex. 3 at 1.)
Dr. Wagner noted Mr. Erickson claimed his condition started ten days earlier when
working outside caused him to become dehydrated. !d. According to the note, Mr.
Erickson had treated at Vanderbilt on July 17, at which time he stated he felt "much
3
Based on Wilson's position statement, Mr. Erickson is apparently referring to a request he made of Wilson's
counsel, asking for a list of all worksites from June 1, 2015, as well as the names of all surveyors with whom he
worked with in the previous two years. (T.R. 2.) According to the position statement, Wilson provided the list of
jobsites, although it is not part of the record, but objected to providing the names of each surveyor Mr. Erickson
worked with over the last two years on the grounds the scope was too large. !d. Mr. Erickson did not include a
request for discovery in his REH.
4
It appears this is a reference to the "Little Clinic," for which Mr. Erickson attached a medical bill.
5
The parties did not provide medical records regarding his visit to Little Clinic or to Vanderbilt on the 14th.
2
improved" and his platelet count had risen. 6 !d. However, he now complained of a
swollen lymph node, one episode of diarrhea, a mild headache, and a fever three days
earlier. !d. Mr. Erickson also informed Dr. Wagner he suffered a tick bite three to four
weeks earlier. !d.
On examination, Dr. Wagner did not note any objective abnormalities. She
concluded Mr. Erickson "likely" suffered from a viral infection that needed "time to
resolve." !d. However, given the tick bite mentioned by Mr. Erickson, she did note the
possibility of a tick-borne illness, although his symptoms did "not seem related to the
tick." !d. Due to this possibility, Dr. Wagner prescribed an antibiotic, Doxycycline. !d.
On July 25, Mr. Erickson returned to Centennial emergency room and treated with
Dr. Tanya Rivera-Tyler. (Ex. 2 at 22.) Mr. Erickson complained of intermittent fever,
daily diarrhea, and general weakness. !d. Dr. Rivera-Tyler noted Mr. Erickson stated a
tick bit him five weeks earlier. !d. On examination, Mr. Erickson exhibited a slight
fever, but Dr. Rivera-Tyler observed no other abnormalities. (Ex. 2 at 23.) She noted a
differential diagnosis that included, "influenza, pharyngitis, viral, pneumonia,
pyelonephritis, viral syndrome, tick bourne [sic] illness." (Ex. 2 at 27.) She prescribed
another round of Doxycycline, and sent blood samples to the laboratory for further
analysis. !d.
On August 3, Mr. Erickson again sought treatment at Vanderbilt with Gina
Vaughn, APRN-BC. (Ex. 3 at 3.) Mr. Erickson stated his symptoms had improved,
although he still tired easily. !d. On exam, Ms. Vaughn noted no abnormalities. She
reviewed Mr. Erickson's lab reports from Centennial and noted, "positive E. Chaffeensis,
positive Lymes IGM bands RMSF IGG positive." !d. She recommended Mr. Erickson
finish the Doxycyclene and increased the dosage to "a full fourteen days." !d.
In addition to the medical records, Mr. Erickson also submitted various medical
bills from Centennial, Vanderbilt, The Little Clinic, Peakview Emergency Physicians,
PLLC, Radiology Alliance, P.C., and Walgreens Pharmacy. (Ex. 4.)
Mr. Erickson filed a Petition for Benefit Determination (PBD) on October 19,
2015, after Wilson denied his claim. (T.R. 1.) The parties were unable to reach a
mediated agreement, and the Mediator filed a DCN on November 15, 2015. (T.R. 2.)
Mr. Erickson filed an REH seeking a decision on record review on January 25, 2016.
(T.R. 3.) On February 8, 2016, the Court sent a Docketing Notice to the parties regarding
the contents of the record before it. (T.R. 5.) Neither party raised any objection to the
documents contained in the record or offered any additional evidence.
6
The parties did not provide a medical record regarding this visit.
3
Findings of Fact and Conclusions of Law
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 (2015). The employee in a workers'
compensation claim has the burden of proof on all essential elements of a claim. Tindall
v. Waring Park Ass 'n, 725 S.W.2d 935, 937 (Tenn. 1987); 7 Scott v. Integrity Staffing
Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn.
Workers' Comp. App. Bd. Aug. 18, 2015).
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, 2015). However, an employee must
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. The Court finds Mr. Erickson
failed to do so with regard to causation or Wilson's obligation to provide benefits,
including payment of previous medical expenses.
Mr. Erickson alleges he suffered a tick bite while employed as a surveyor with
Wilson, and this tick bite caused an infection that led to his treatment with Centennial and
Vanderbilt in July 2015. In order to prevail, Mr. Erickson must establish he suffered an
accidental injury that was "caused by a specific incident, or set of incidents, arising
primarily out of and in the course and scope of employment, and is identifiable by time
and place of occurrence." Tenn. Code Ann.§ 50-6-102(14)(A) (2015).
At this stage, Mr. Erickson has not offered sufficient evidence to meet this
standard. While the PBD does allege a specific date of injury, July 10, it appears from
his medical records that this is the date when he first felt ill, not the date a tick may have
bitten him. (T.R. 1; Ex. 2 at 1.) In the PBD, Mr. Erickson goes on to describe the injury
as occurring in "Williamson, Sumner, and Davidson" counties, alleging he received
"multiple tick bites while working in woods and fields on various job sites." (T.R. 1.)
In the affidavit, Mr. Erickson did not refer to any specific incident involving a tick
bite. (Ex. 1.) Instead, he asserted he "was diagnosed with a tick bourne [sic] illness" on
July 25, and it takes "3 to 30 days" for the symptoms to appear. !d. He further averred,
7
The Tennessee Workers' Compensation Appeals Board allows reliance on precedent from the Tennessee Supreme
Court "unless it is evident that the Supreme Court's decision or rationale relied on a remedial interpretation of pre-
July l, 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." McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, *13 n.4 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).
4
"tick bites are very common in the surveying industry as you work in woods and fields."
!d. He stated he "believed the bite occurred in Portland" but he needed "information"
requested from Wilson to "pinpoint" when and where the tick bite occurred. !d.
However, he never specifies what "information" he needs, or how it will help ascertain
the "specific incident or set of incidents" that caused the symptoms leading to the
treatment for which he seeks reimbursement.
The medical records provided by Mr. Erickson also fail to support his contention
of a work-related tick bite. According to the July 14 record from Centennial, the earliest
record provided, Mr. Erickson began experiencing fever and generalized weakness on
July 10 that he believed was due to dehydration. (Ex. 2 at 1.) The record makes no
mention of a tick bite. The first reference to a tick bite in the records is in the July 22
note from Vanderbilt, which notes Mr. Erickson suffered a tick bite "3-4 weeks ago."
(Ex. 3 at 1.) However, the record makes no mention of the tick bite occurring at work.
Furthermore, Dr. Wagner opined "it does not seem" Mr. Erickson's symptoms derived
from a tick-borne illness. !d. Similarly, while subsequent records from Centennial and
Vanderbilt refer to a tick bite that occurred several weeks earlier, none of them indicates
the tick bite occurred at work. (Ex. 3 at 1; Ex. 2 at 22.)
Thus, as to when and where the "bite" actually occurred, Mr. Erickson offered
only speculation and conjecture, which cannot serve as justification for the provision of
benefits. See Shelton v. Torrington Co., No. 01501-9704-CV-00092, 1998 Tenn. LEXIS
107995, at *10 (Tenn. Workers' Comp. Panel Mar. 13, 1998) (citing Reeser v. Yellow
Freight, 938 S.W.2d 690, 692 (Tenn. 1997)). This premise is particularly true given that
the Workers' Compensation Law no longer allows a remedial construction by the court.
Tenn. Code Ann. § 50-6-116 (2015). As a result, Mr. Erickson failed to provide
sufficient evidence to establish he is likely to prevail at a hearing on the merits in
establishing he suffered an "accidental injury" as defined by Tennessee Code Annotated
section 50-6-102(14 )(A) (20 15).
Furthermore, even assuming Mr. Erickson provided sufficient evidence to
establish he suffered a work-related tick bite, he must still establish that the need for
medical treatment for which he seeks reimbursement causally relates to the tick bite.
Tenn. Code Ann. § 50-6-102(14) (2015). Medical evidence is generally required in order
to establish a causal relationship, "[ e]xcept in the most obvious, simple and routine
cases." Cloyd v. Hartco Flooring Co., 274 S.W.3d 638, 643 (Tenn. 2008).
The only statement from a doctor regarding causation is Dr. Wagner's July 22 note
wherein she opined "it does not seem" as though Mr. Erickson's complaints stemmed
from a tick bite. (Ex. 3 at 1.) While Dr. Taylor-Rivera included "tick bourne [sic]
illness" in her differential diagnosis, she also included a host of other possible conditions.
(Ex. 2 at 27.) The Centennial lab reports were positive for bacterial infection (Ex. 2 at
32), but no doctor attributed those infections to a tick bite, or causally related Mr.
5
Erickson's symptoms to those infections. In this instance, the medical records provided
by Mr. Erickson do not establish he is likely to prevail on the issue of causation at a
hearing on the merits. McCord, supra, at *7-8.
With regard to medical expenses, it is undisputed that Wilson did not authorize the
medical care for which Mr. Erickson seeks reimbursement. Where the employee incurs
medical expenses on his own, the employer is not liable for payment of the expenses
absent a showing by the employee that he had a reasonable excuse for not consulting with
his employer before incurring the expenses. Harris v. Kroger, 567 S.W.2d 161, 163
(Tenn. 1978). In this instance, Mr. Erickson failed to provide sufficient evidence to
prove he consulted with Wilson prior to seeking unauthorized medical care, or if he did
consult with Wilson, that he had a "reasonable excuse" for engaging unauthorized
treatment. !d.
Finally, even if Mr. Erickson established causation and was justified in seeking
unauthorized medical care, he still has the burden to prove the reasonableness and
necessity of those expenses. Moore v. Town of Collierville, 124 S.W.3d 93, 98 (Tenn.
2004 ). The record is devoid of any evidence regarding the reasonableness and necessity
of the charges contained in the medical bills provided by Mr. Erickson for treatment of
his alleged work-related injury. (Ex. 4.) Therefore, the Court denies his claim for those
expenses at this time. !d.
For the reasons stated above, the Court finds Mr. Erickson failed to provide
sufficient evidence from which the trial court can determine he is likely to prevail at a
hearing on the merits regarding causation and the reasonableness and necessity of past
medical expenses. As a result, his request for medical benefits is denied.
IT IS, THEREFORE, ORDERED that:
1. Mr. Erickson's request for medical benefits is denied.
2. This matter is set for Initial Hearing on March 23, 2016, at 9:00a.m.
ENTERED THIS THE 19th DAY OF FEBRUARY, 2016.
~~~
Robert V. Durham, Judge
Court of Workers' Compensation Claims
6
Initial Hearing:
An Initial Hearing has been set with Judge Robert Durham, Court of
Workers' Compensation Claims. You must call 615-253-0010 or toll-free at 866-
689-9049 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
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 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 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 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
lndigency 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 calendar days of the filing of the Expedited
7
Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
the evidence within ten calendar days of the filing of the Expedited Hearing
Notice of Appeal. The statement of the evidence must convey a complete and
accurate account of what transpired in the Court of Workers' Compensation
Claims and must be approved by the workers' compensation judge before the
record is submitted to the Clerk of the Appeals Board.
6. If the appellant elects to file a position statement in support of the interlocutory
appeal, the appellant shall file such position statement with the Court Clerk within
five business days of the expiration of the time to file a transcript or statement of
the evidence, specifying the issues presented for review and including any
argument in support thereof. A party opposing the appeal shall file a response, if
any, with the Court Clerk within five business days of the filing ofthe appellant's
position statement. All position statements pertaining to an appeal of an
interlocutory order should include: (1) a statement summarizing the facts of the
case from the evidence admitted during the expedited hearing; (2) a statement
summarizing the disposition of the case as a result of the expedited hearing; (3) a
statement of the issue(s) presented for review; and (4) an argument, citing
appropriate statutes, case law, or other authority.
8
APPENDIX
Exhibits:
1. Affidavit of Douglas Erickson
2. Medical records from Centennial Medical Center
3. Medical records from Vanderbilt Walk-In Clinic
4. Various medical bills
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Transfer Order
5. Docketing Notice
6. Wilson's position statement
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Expedited Hearing Order
Denying Benefits was sent to the following recipients by the following methods of
service on this the 19th day of February, 2016.
Name Certified Via Via Service sent to:
Mail Fax Email
Doug Erickson X X 2557 Milton Lane, Thompson
Station, TN 37179
dougerickson61 @yahoo.com
Brett Burrow X bburrow@burrowlee.com
P nny Shr , Clerk of Court
Court of rkers' Compensation Claims
WC.CourtCierk@tn.gov
9