Opinion

Harper, Randall v. USF Holland Trucking Co.

  • 2016 TN WC 90
Court
Tennessee Court of Workers' Compensation Claims
Filed
Apr 22, 2016
Status
Published
On the bench
Robert V. Durham
Cited by
0 cases
Authority
More cited than 12.5%

The opinion

TENNESSEE BUREAU OF WORKERS' COMPENSATION

COURT OF WORKERS' COMPENSATION CLAIMS

AT COOKEVILLE BY INTERCHANGE

Randall Harper, ) Docket No.: 2015-06-1067

Employee, )

v. ) State File No.: 47262-2015

)

USF Holland Trucking Co., )

Employer, )

) Judge Robert Durham

COMPENSATION HEARING ORDER DENYING BENEFITS

On October 15, 2015, Randall Harper filed a Petition for Benefit Determination to

determine if USF Holland Trucking, Co. is obligated to provide medical and temporary

disability benefits for an alleged work-related injury on June 16, 2015. The dispositive

issue is whether Mr. Harper's cellulitis in his left leg causally relates to his employment

with USF Holland. 1 The Court finds the evidence submitted by Mr. Harper is insufficient

to establish a causal connection, thus requiring the Court to deny his request for workers'

compensation benefits. 2

History of Claim

Mr. Harper is a fifty-two-year-old resident of Wilson County, Tennessee, who

works as an over-the-road truck driver for USF Holland. On June 15, 2015, Mr. Harper

left home and, after picking up his truck at USF Holland's Nashville terminal, drove to

Grand Rapids, Michigan, arriving on the morning of June 16. USF Holland provided a

shuttle bus that took him to the 13 1 Motel, where USF Holland authorized him to stay

during his layover in Grand Rapids.

Mr. Harper went to bed and slept until a dispatcher from USF Holland called him

1

The parties raised additional issues in the DCN; however, given that the Court is denying workers' compensation

benefits based on this threshold issue, it will not consider the remaining issues.

2

Additional information regarding the technical record and exhibits is attached to this Order as an Appendix.

1

that evening at 7:00p.m. Upon awakening, he found he was suffering from nausea and

feeling light-headed. He called in sick and went to a local hospital to check his blood

pressure, which was normal. The next day, his dispatcher instructed him to seek medical

care at a local clinic called Med 1 to certifY his ability to drive.

As he prepared to take a shower, Mr. Harper pulled off his socks and noticed a red

mark on his left leg just above the sock line. On cross-examination, Mr. Harper testified

he had stayed at the 131 Motel before, and never had any problems there. He did not

notice anything unusual about the motel during his stay. He further testified he never saw

any bug or spider while at the motel.

After his shower, Mr. Harper went to Med 1, where he treated with Dr. Nicolas

Pietrangelo. (Ex. 2 at 1.) Dr. Pietrangelo opined Mr. Harper was capable of driving back

home. Id. He also observed that Mr. Harper suffered from a "Rash secondary to some

type of bite," and prescribed antibiotics for cellulitis. !d.

Mr. Harper testified USF Holland did not let him return home immediately, but

instead sent him to Toledo, Ohio. While there, his condition worsened, and USF Holland

recommended he seek emergency treatment.

Mr. Harper went to Wood County Hospital in Bowling Green, Ohio on June 18.

According to the records, his "Chief Complaint" was "There is something wrong with my

leg. Not sure ifl got bit by something or what." (Ex. 3 at 1.) The history section states:

Patient reported that on Tuesday evening he began feeling nauseated and

fatigued. He is a truck driver and he reports he never removes his socks

when he is on the road. When he did remove his socks on Wednesday, he

noted redness and swelling to his left lower extremity. He denies

trauma/injury.

Id. On examination, Mr. Harper suffered from marked redness and edema in the left

lower extremity "with erythema streaking all the way to the groin." The area was marked

with blisters, but no bleeding under the skin. Id. at 14. Allison Dollman, M.D. diagnosed

Mr. Harper with cellulitis, admitted him into the hospital, and treated him with IV

antibiotics. !d.

While in the hospital, Mr. Harper underwent a variety of diagnostic tests, which

were negative. !d. at 5, 7, and 14. Dr. Dollman placed Mr. Harper in an "unna boot" and

discharged him on June 20. !d. She also excused him from work beginning June 18 until

he could follow-up with his PCP. !d. at 25.

Mr. Harper returned to Tennessee and filed an "Employee Notice of Injury" form

with USF Holland. (Ex. 9.) The form asked Mr. Harper to describe the physical

2

conditions that contributed to the injury, and he responded, "Unknown." He also

responded "Unknown" to a question asking him to describe other conditions or hazards

that contributed to the injury. !d.

On June 22, 2015, Mr. Harper saw Dr. Cathy Hammond-Moulton with Concentra

for a physical evaluation to determine his ability to drive. (Ex. 4.) Dr. Hammond-

Moulton restricted Mr. Harper from driving "a company vehicle due to functional

limitations" until he saw his PCP. However, she stated Mr. Harper had reached

maximum medical improvement (MMI) as of June 22. !d. at 4.

On June 26, Mr. Harper followed up with his PCP, Lisa Kellogg, D.O. (Ex. 5.)

Mr. Harper reported he "noticed an area on his leg ... and felt nauseated and feverish."

!d. at 1. Dr. Kellogg noted resolving cellulitis and continued Mr. Harper's antibiotics.

She referred him to Sumner Wound Care and kept him off work. !d. at 3.

On June 30, Mr. Harper saw Dr. John Pinkston with Sumner Wound Care. (Ex.

6.) Dr. Pinkston noted, "About two weeks ago, [Mr. Harper] got what was a small bite he

thought on his left lower extremity. It became infected." !d. at 1. Dr. Pinkston noted

cellulitis of the left calf with multiple small open areas. In his assessment, Dr. Pinkston

stated Mr. Harper had a history of "what sounds like some chronic venous stasis, received

a bite and got severe cellulitis." !d. at 2. Dr. Pinkston kept Mr. Harper off work while he

recovered. (Ex. 7 at 2.)

On July 10, Mr. Harper returned to Dr. Pinkston, who noted Mr. Harper had a

history of severe cellulitis that was "perhaps following an insect bite." !d. at 3. He

continued to keep Mr. Harper off work. !d. In a July 17 follow-up note, Dr. Pinkston did

not refer to causation. !d. at 4. He noted the wound had healed, but wanted Mr. Harper

to return in two weeks before sending him back to work. !d. On July 31, Dr. Pinkston

stated Mr. Harper "developed what started as a small bite on his left lower extremity" and

progressed into cellulitis. !d. at 5. He opined Mr. Harper was at MMI, although he

would suffer from chronic venous stasis. !d. He returned Mr. Harper back to work with

no restrictions. !d. at 6.

Mr. Harper filed a Petition for Benefit Determination on September 1, 2015, after

USF Holland denied his claim based on compensability. (T.R. 1.) The Court entered an

Initial Hearing Order on December 28, 2015. (T.R. 2.) The parties were unable to reach a

post-discovery mediated agreement, and the Mediator filed a DCN on October 12, 2015.

(T.R. 5.) The Court held a Compensation Hearing on April 18, 2015.

Findings of Fact and Conclusions of Law

The Workers' Compensation Law must be interpreted fairly, impartially and

consistent with basic principles of statutory construction, favoring neither the employee

3

nor employer. Tenn. Code Ann. § 50-6-116 (2014). The employee in a workers'

compensation claim "has the burden of proving every element of his case by a

preponderance of the evidence." Tindall v. Waring Park Ass'n, 725 S.W.2d 935, 937

(Tenn. 1987). 3

Mr. Harper alleges an insect or spider must have bitten him while he was on the

road driving for USF Holland, and this bite caused the cellulitis in his left lower

extremity. In order to prevail, Mr. Harper must establish by a preponderance of the

evidence that an insect did in fact bite him, and the bite "arose primarily out of and in the

course and scope of his employment." Tenn. Code Ann.§ 50-6-102(12) (2014).

Mr. Harper offered little evidence establishing causation. He did not recount when

he was bitten, what might have bitten him, or indeed, whether he was bitten at all. He did

not offer any evidence as to whether the 131 Motel had an insect problem; in fact, he

candidly admitted he never saw an insect or spider while staying at the motel. At best,

Mr. Harper's evidence only leads to the conclusion that he developed symptoms while on

his route for USF Holland, and discovered a "mark" on his leg when he pulled off his

sock to take a shower.

The documentary evidence is not enough to prove by a preponderance of the

evidence that Mr. Harper suffered an insect bite. Dr. Pietrangelo at Med 1 did remark

that Mr. Harper suffered from a rash "secondary to some kind of bite" and prescribed

antibiotics for cellulitis. (Ex. 2 at 1.) However, the note does not reference any

observation of an actual bite mark or puncture wound.

Furthermore, the only reference to a possible bite or puncture mark in the records

from Wood County Hospital was in the admission form, where Mr. Harper's "Chief

Complaint" was "There is something wrong with my leg. Not sure if I got bit by

something or what." (Ex. 3 at 1.) The history section goes on to note "When he did

remove his socks on Wednesday, he noted redness and swelling to his left lower

extremity. He denies trauma/injury." !d. There was no other reference in the hospital

records to a bite or puncture wound on Mr. Harper's left lower extremity, or even to the

possibility that the cellulitis originated with an insect bite.

When Mr. Harper returned home, he completed an "Employee Notice of Injury

Form." (Ex. 9.) On the form, he did not attribute his condition to an insect bite, but

instead responded "Unknown" when asked to describe the conditions or hazards that

contributed to the injury. !d. On June 22, Mr. Harper treated with Dr. Hammond-

3

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 I, 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, at *13 n.4 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).

4

Moulton, but the note does not refer to an insect bite causing Mr. Harper's cellulitis. (Ex.

4.) Mr. Harper saw his family physician, Dr. Kellogg, on June 26, who also made no

reference to an insect bite or puncture wound as the cause of the cellulitis. (Ex. 5.)

No other record refers to an insect bite until Mr. Harper saw Dr. Pinkston,

approximately two weeks after he first became ill; however, even these references are

qualified. On June 30, Dr. Pinkston's note stated Mr. Harper "got what he thought was a

small bite[,]" and, Mr. Harper had a history "of what sounds like some chronic venous

stasis, received a bite, and got severe cellulitis." (Ex. 6 at 1, 2.) On July 10, Dr. Pinkston

noted that the cellulitis "was perhaps following an insect bite." (Ex. 6 at 3.) On July 31,

Dr. Pinkston made the only affirmative statement regarding causation when he wrote Mr.

Harper developed cellulitis that "started as a small bite on his left lower extremity." (Ex.

6 at 5.)

As illustrated, there is little documentation of an insect bite, and nothing to

establish a physician, or anyone else, actually observed a bite mark on Mr. Harper's leg.

Therefore, the Court finds Mr. Harper failed to prove by a preponderance of the evidence

that he suffered an insect bite that precipitated his cellulitis. Tindall, supra, at 93 7.

Furthermore, even if the proof linked Mr. Harper's cellulitis to an insect bite, the

Court finds there is insufficient evidence to establish that the "bite" "primarily arose out

of and in the course and scope of employment" with USF Holland. See Tenn. Code Ann.

§ 50-6-102(12) (2014). As stated earlier, Mr. Harper's only evidence in this regard is that

he began experiencing symptoms and first noticed a mark on his leg when he woke up at

the motel while working out of state. As to when the "bite" actually occurred, Mr.

Harper offered only speculation and conjecture, which cannot serve as justification for

the provision of benefits. See Shelton v. Torrington Co., No. 01SOI-9704-CV-00092,

1998 Tenn. LEXIS 133, 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. See Tenn. Code Ann.§ 50-6-116 (2014).

In addition, 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) (quoting Orman v. Williams Sonoma,

Inc., 803 S.W.2d 672, 676 (Tenn. 1991)). Even if Dr. Pietrangelo's record and Dr.

Pinkston's note of July 31 were sufficient to prove that Mr. Harper's cellulitis originated

from an insect bite, there is no medical proof establishing that the progression of his

condition was consistent with the bite primarily arising out of and occurring while he was

in the course and scope of his employment. Thus, the Court finds Mr. Harper failed to

provide sufficient medical evidence to establish causation by a preponderance of the

evidence. Cloyd, supra, at 643.

5

Accordingly, the Court finds Mr. Harper failed to prove he sustained an injury that

primarily arose out of and in the course and scope of his employment with USF Holland.

See Tenn. Code Ann. § 50-6-102(12) (2014). Given the above finding, it is unnecessary

to address other issues raised by the parties.

IT IS, THEREFORE, ORDERED that Mr. Harper's request for workers'

compensation benefits is denied.

ENTERED THIS THE 22ndD4-~

Robert V. Durham, Judge

Court of Workers' Compensation Claims

Right to Appeal:

Tennessee Law allows any party who disagrees with this Compensation 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: "Compensation Hearing Notice of Appeal."

2. File the completed form with the Court Clerk within thirty days of the date the

Workers' Compensation Judge entered the Compensation Hearing Order.

3. Serve a copy of the Compensation 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

6

Indigency in accordance with this section shall result in dismissal of the

appeal.

5. The party filing the notice of appeal, 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 fifteen calendar days of the filing

of the Compensation Hearing Notice of Appeal. Alternatively, the party filing the

appeal may file a joint statement of the evidence within fifteen calendar days of

the filing of the Compensation 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. See Tenn. Comp. R. & Regs. 0800-02-22-.03 (2015).

6. After the Workers' Compensation Judge approves the record and the Court Clerk

transmits it to the Workers' Compensation Appeals Board, the appeal will be

docketed and assigned to an Appeals Board Judge for review. At that time, a

docketing notice shall be sent to the parties. Thereafter, the parties have fifteen

calendar days to submit briefs to the Appeals Board for consideration. See Tenn.

Comp. R. & Regs. 0800-02-22-.02(3) (2015).

7. If neither party appeals the judgment to the Board of Appeals within thirty days of

its entry by the Trial Court, the judgment becomes final. Either party may then

appeal directly to the Tennessee Supreme Court. See Tenn. Code Ann. § 50-6-

239(c)(7) (2015). Please review the Tennessee Rules of Appellate Procedure for

specific information on procedure. See Tenn. Code Ann. § 50-6-225 (2015).

7

APPENDIX

Exhibits:

1. First Report of Injury;

2. Medical Records from Med 1;

3. Medical Records from Wood County Hospital;

4. Medical Records from Concentra;

5. Medical Records from Lisa Kellogg, D.O.;

6. Medical Records from Sumner Wound Center;

7. Medical bills;

8. Various photographs of Mr. Harper's left leg;

9. Employee Notice of Injury Form;

10. Job Description; and,

11. Mr. Harper's payroll summary;

12. Excerpt from Union Agreement; and,

13. Deposition ofMr. Harper.

Technical Record:

1. Petition for Benefit Determination;

2. Initial Hearing Order;

3. Mr. Harper's Pre-Compensation Hearing Statement;

4. USF Holland's Pre-Compensation Hearing Statement;

5. Dispute Certification Notice; and,

6 USF Holland's Pre-Trial Brief.

8

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Compensation Hearing Order

Denying Benefits was sent to the following recipients by the following methods of

service on this the 22nd day of April, 2016.

Name Certified Via Via Service sent to:

Mail Fax Email

Randall Harper X X randharoer2@gmai1.com

Stephen Heard X skheard@comelius-collins.com

Penny Shrum, Clerk of Court

Court of Workers' Compensation Claims

WC.CourtCierk@tn.gov

9

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.

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