The opinion
FIL.ED
- rovember 3, 2016
TN COURTOF
1\ ORKI.RS' COl:IPENS.i\TION
CLIDIS
Ti.Jne 8:12 AM
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT COOKEVILLE
Linda Green, Docket No.: 2016-04-0085
Employee,
v. State File No.: 99072-2015
Rogers Group
Employer, Judge Robert Durham
And
Liberty Mutual Insurance Co.
Carrier.
EXPEDITED HEARING ORDER GRANTING BENEFITS
(REVIEW OF THE FILE)
This cause came before the undersigned Workers' Compensation Judge upon the
Request for Expedited Hearing (REH) filed by Linda Green pursuant to Tennessee Code
Annotated section 50-6-239 (20 15) to determine if Rogers Group is obligated to provide
workers' compensation benefits. Pursuant to Rule 0800-02-21-.02(13) (2015) of the
Tennessee Compilation Rules and Regulations, Ms. Green requested the Court issue a
ruling based on a review of the file without an evidentiary hearing.
On October 17, 2016, the Court sent a Docketing Notice to the parties regarding
the contents of the record to be reviewed. (T.R. 10.) Rogers Group objected to the
admissibility of medical bills, text messages, pre-employment drug screen results for
other potential employers, and medical records from Carthage Family Practice on the
basis of hearsay and relevance. (T.R. 11.) Ms. Green did not respond to the objections.
Therefore, with the exception of medical records from Carthage Family Practice that
were electronically signed by the doctor, the Court sustains Rogers' objections, and those
documents, attached as Collective Exhibit 9 for identification, will not be considered by
the Court.
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Thus, in 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 first issue is whether Rogers Group has provided sufficient evidence to assert
an intoxication defense to Ms. Green's claim pursuant to Tennessee Code Annotated
section 50-6-11 0( c)( 1) (20 15), and if so, whether Ms. Green is likely to prove by clear
and convincing evidence that her intoxication was not the proximate cause of her injury
on December 11, 20 15. Ms. Green also seeks reimbursement for past medical expenses,
additional medical care, and temporary total disability benefits should she establish a
compensable claim. The Court holds Ms. Green is likely to prevail at a hearing on the
merits with regard to the compensability of her claim; however, she has not established
the likelihood of prevailing at such a hearing with regard to unauthorized medical
expenses beyond her initial emergent care, or with regard to the extent of her temporary
disability following her injury.
History of Claim
On December 11, 2015, Ms. Green was working as a dispatcher for Rogers Group,
a rock and gravel provider, when she fell approximately eight feet from a catwalk while
at a ticket printer box. (Ex. 1.) Ms. Green asserted in her affidavit that she fell through a
gap in the platform "that should have had a protection barrier." (Ex. 4.) In any event,
Ms. Green suffered serious injuries and was transported by ambulance to Skyline
Medical Center. 1 (Ex. 8 at 2.)
On December 13, Ms. Green returned to the emergency room at Skyline
complaining of "feeling terrible" and suffering from respiratory insufficiency. (Ex. 8 at
1.) Ms. Green was readmitted to the hospital where she stayed until December 17. (Ex.
8 at 24.) According to the admission report, Ms. Green suffered "multiple right-sided rib
fractures and transverse process fractures of her lumbar spine." (Ex. 8 at 1.) She denied
alcohol use or drug abuse. !d. at 2. While in the hospital, Ms. Green underwent aCT
scan of her chest that revealed a right hydropneumothorax that was not present on the
study taken on December 11. !d. at 7. Dr. Benjamin Tourkow also diagnosed Ms. Green
with a pulmonary embolism in her right lung and a partial lung collapse. !d. at 1.
While in the hospital, Ms. Green received treatment for her lung conditions as well
as medication for her pain. (Ex. 8 at 31.) Upon discharge, Dr. Haile Mezghebe placed
Ms. Green on lifting restrictions of three to five pounds and instructed her to wear an
LSO brace. Dr. Mezghebe also prescribed home oxygen and pain medication. Because
of the pulmonary embolism, Ms. Green was taking Coumadin, and Dr. Mezghebe
1
Neither party produced the emergency room or hospital records from Ms. Green's visit to Skyline on December
11. The information is gleaned from Ms. Green's readmission to Skyline on December 14.
2
instructed her to follow-up with her primary care physician to check her Coumadin
levels. !d. She also instructed Ms. Green to return in one week. 2
While at Skyline on December 11, Quest Diagnostics attempted to obtain a urine
sample for drug testing but had to cancel the initial attempt because Ms. Green was in too
much pain to give it. (Ex. 6 at 5.) Ms. Green provided a urine sample later that evening
that Quest used to perform a drug screen. !d. at 11. According to the report dated
December 21, the initial test revealed 20 nanograms of marijuana metabolites in Ms.
Green's system. !d. An "MS confirm test level" showed five nanograms of marijuana
metabolites. !d. According to Dr. Greg Elam, a Medical Review Officer, Ms. Green
tested positive for marijuana. (Ex. 6 at 10.) Based on these test results, Rogers Group
denied Ms. Green's workers' compensation claim.
As recommended by Dr. Mezghebe, Ms. Green sought additional treatment with
her personal care physician, Richard Rutherford, at Carthage Family Practice (CFP) on
December 21. 3 (Ex. 9 at 1.) Ms. Green's Coumadin levels were too high for the clinic to
test, so she was sent to the hospital. On December 23, Coumadin was restarted, but it
was recommended that she see a workers' compensation doctor for follow-up care. (Ex.
9 at 12.) On December 31, CFP noted Ms. Green's workers' compensation claim had
been denied, and she was there through her private health insurance for additional testing
to monitor her Coumadin levels. (Ex. 9 at 14.) Ms. Green returned on January 18, where
Physician's Assistant, Peter Alfano, recorded she was there for "follow-up/recent
evaluation of right rib fractures from a fall on 12/11115. Resulted in secondary
pneumothorax and pulmonary embolus." (Ex. 9 at 15.)
Ms. Green continued treatment with CFP, noting improvement on February 18,
2016, and stating she was "ready to return to work as a truck dispatcher." !d. at 16. Ms.
Green underwent another urine drug screen on February 23, 2016, as a condition to
returning to work for Rogers Group. (Ex. 6 at 17.) The test for marijuana again revealed
20 nanograms of marijuana metabolites and was confirmed at five nanograms. !d.
According to Dr. Calvin Channell, another Medical Review Officer, Ms. Green again
tested positive for marijuana. !d. Dr. Elam also confirmed this result. !d. at 18.
On March 18, Ms. Green returned to CFP complaining of right rib pain when lying
down. (Ex. 9 at 19.) She underwent x-rays, which revealed "minimally displaced" right
rib fractures from the third through the ninth rib as well as right transverse process
fractures at L2 and L3 and possibly Ll. !d. at 20, 24. She also suffered from mild
pleural effusion in her right lung. !d. Ms. Green's final visit to CFP was on April 24,
2016. !d. at 27. She still complained of pain in her low back and right ribs during
activity. !d. P.A. Alfano recommended she undergo physical therapy, but noted Ms.
2
The parties did not provide any additional medical records from Skyline.
3
While Ms. Green primarily saw Physician's Assistant, Peter Alfano, at CFP, Dr. Rutherford reviewed and
approved the records as noted by his electronic signature.
3
Green asserted she could not take time off from her new job to do so. !d. at 28. This
record constituted the last note provided from CFP.
Ms. Green averred in her affidavit that, "she had witnesses that can testifY to her
state of mind" on December 11; however, she did not identifY them or produce any
testimony from them. (Ex. 4.) She also did not testifY as to her sobriety at the time of the
accident, although she contended that the last time she "was around or did marijuana"
prior to the accident was November 25, 2015. !d.
Mr. Thomas Oczkowicz, Director of Risk Management and Credit for Rogers
Group, testified by affidavit that Rogers Group was an active member of the Tennessee
Drug-Free Workplace on December 11, 2015. (Ex. 7.) Mr. Oczkowicz attached a copy
ofRogers Group's application and memorandum of acceptance into the Tennessee Drug-
Free Workplace program to his affidavit. !d.
Ms. Green contends she suffered an injury at work on December 11 , 2015, and is
entitled to all attendant benefits. Rogers Group does not dispute Ms. Green sustained an
injury at work on December 11; however, it contends its membership in the Tennessee
Drug-Free Workplace Program and Ms. Green's positive drug screen place the burden on
her to prove by clear and convincing evidence that drug usage did not proximately cause
her fall, which she is unlikely to do at trial.
Findings of Fact and Conclusions of Law
The Court must interpret Workers' Compensation Law fairly, impartially, and by
basic principles of statutory construction, favoring neither the employee nor
employer. Tenn. Code Ann. § 50-6-116 (2015). Ms. Green has the burden of proof on
all essential elements of her claim. 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, 20 15).
As stated above, Rogers Group does not contest the fact that Ms. Green suffered
an injury at work on December 11, 2015, but instead asserts the affirmative defense that
illegal drug usage was the proximate cause of her injury, thus rendering it non-
compensable pursuant to Tennessee Code Annotated section 50-6-110(a)(3) (2015). If
Rogers Group proves it is likely to establish at trial that, "it has implemented a drug-free
workplace" pursuant to statutory and regulatory guidelines, and Ms. Green has a
"positive confirmation of a drug as defined in § 50-9-1 03," there is a statutory
presumption that the drug was the "proximate cause of injury." Tenn. Code Ann.§ 50-6-
11 0( c)( 1) (20 15). The burden then shifts to Ms. Green to show she is likely to prevail at
trial in rebutting the presumption by "clear and convincing evidence," thus proving the
drug use was not the proximate cause of her injury. !d.
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In this matter, Mr. Oczkowicz affirmed by affidavit that Rogers Group was a
member in good standing with the Tennessee Drug-Free Workplace program at the time
of Ms. Green's injury, and Ms. Green provided no evidence to the contrary. Therefore, if
the drug test performed after her accident was in statutory and regulatory compliance, and
accurately revealed the presence of marijuana in her systein, it would establish the
presumption that the proximate cause of Ms. Green's injury was drug usage, which Ms.
Green could only counter through clear and convincing evidence. !d.
However, the drug test must be performed in compliance with the law in order to
create the presumption. Tennessee Code Annotated section 50-6-104(a) (2015) states
that "if a covered employer fails to maintain a drug-free workplace program in
accordance with the standards and procedures established in this section and in applicable
rules, the covered employer shall not be eligible for ... [a] shift in the burden of proof
pursuant to §50-6-110(c)."
Tennessee Code Annotated section 50-6-111(a)(4) (2015) requires the creation of
a rule regarding the "minimum cut-off detection levels for alcohol, each drug or
metabolites of the drug for the purpose of determining a positive test result." Rule 0800-
02-120.03(17) (2016) of the Tennessee Compilation of Rules and Regulations sets out
the "prohibited levels" for various drugs necessary to create a "presumptively positive"
drug test. For marijuana, the "cut-off level" for an initially screened specimen is fifty
nanograms, and for a confirmation specimen the "cut-off level" is fifteen nanograms. !d.
According to the lab report from Quest Diagnostics for the urine sample obtained
from Ms. Green on December 11, 2015, the initially screened specimen only measured
twenty nanograms of marijuana metabolite and the confirmation screen yielded only five
nanograms of marijuana metabolite. (Ex. 6 at 11.) Thus, the Court finds the post-
accident drug test is insufficient to establish a positive result, thus preventing Rogers
Group from establishing a presumption of proximate cause pursuant to Tennessee Code
Annotated section 50-6-11 0( c)(1) (20 15). Given the inability to establish this
presumption, the Court further holds Rogers Group is unlikely to establish intoxication as
the proximate cause of Ms. Green's accident on December 11, 2015; therefore, she is
entitled to workers' compensation benefits for any injuries she sustained from the
accident. See Tenn. Code Ann.§ 50-6-110(a)(3) (2015).
While the Court holds Ms. Green is likely to establish she sustained a
compensable injury on December 11, 2015, the reasonableness and necessity of the
medical expenses she has sustained thus far remains in question. Whether an employee is
justified in seeking payment for unauthorized medical expenses from an employer
depends upon the circumstances of each case. Buchanan v. Mission Ins. Co., 713 S.W.2d
654, 656 (Tenn. 1986). In this instance, the medical records provided establish Ms.
Green suffered multiple rib and lumbar vertebrae fractures as due to her fall on December
11. While the parties did not provide medical records from Ms. Green's initial
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emergency room visit, documentation from Quest Diagnostics state the first drug screen
had to be cancelled because her pain was too great to give a urine sample. Therefore, the
Court finds Ms. Green's initial trip to Skyline Hospital's emergency room was reasonable
under the circumstances and Rogers Group is required to pay the reasonable and
necessary costs associated with this care.
However, with regard to Ms. Green's second trip to Skyline and her readmission
to the hospital on December 13, the Court finds she provided insufficient evidence to
establish her entitlement to those expenses at this time. While she presumably suffered a
pulmonary embolism caused by her rib fractures, no doctor has provided an explicit
opinion to this effect, nor has any physician addressed the reasonableness and necessity
of a four-day stay in the hospital as a result of her December 11 work-related injury. The
same is true for the subsequent care provided by Carthage Family Practice. Therefore,
the Court holds Ms. Green has simply not provided sufficient evidence to establish her
likelihood to succeed at a hearing on the merits regarding reimbursement for these
expenses at this time.
Similarly, Ms. Green failed to provide sufficient evidence to establish the duration
of any temporary disability she sustained because of her injury, given that no doctor has
provided an opinion in this regard. Therefore, the Court cannot award her temporary
disability benefits at this time.
However, Ms. Green is entitled to a panel of physicians from which she may
choose an authorized treating physician for any additional care she may require for her
December 11 work-related injury. See Tenn. Code Ann. § 50-6-204(a)(1)(A) (2015).
The selected physician may then opine on the reasonableness and necessity of Ms.
Green's past medical care as well as the extent of her temporary disability following her
llljUry.
IT IS, THEREFORE, ORDERED:
1. Rogers Group shall pay the reasonable and necessary medical expenses for Ms.
Green's emergent care on December 11, 2015.
2. Rogers Group shall provide a panel of physicians from which Ms. Green may
choose an authorized physician to provide medical treatment for her work-related
injury of December 11, 2015.
3. Issues regarding reimbursement for medical expenses incurred following Ms.
Green's initial care on December 11, 2015, and temporary disability benefits are
deferred until an authorized physician addresses them.
4. This matter is set for an Initial Hearing on December 12, 2016, at 2:00p.m. C.S.T.
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ENTERED THIS THE 3rd DAY OF NOVEMBER, 2016.
Robert V. Durham, Judge
Court of Workers' Compensation Claims
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 855-
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
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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 calendar days of the filing of the Expedited
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 of the 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.
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APPENDIX
Exhibits:
1. First Report of Injury
2. Laboratory Report from Quest Diagnostics
3. Report from National Toxicology Specialists
4. Affidavit of Linda Green
5. Wage Statement
6. Notice of Filing Medical Records
7. Affidavit of Thomas Oczkowicz
8. Medical records of Skyline Medical Center
9. Medical records of Carthage Family Practice
10. Medical records and tests unsigned by doctors (for J.D.)
11. Medical Bills (for J.D.)
12. Drug Screen form dated March 4, 2016 (for J.D.)
13. Transcript ofvarious texts (for J.D.)
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Motion to Dismiss
4. Show Cause Order
5. Order on Show Cause Hearing
6. Request for Expedited Hearing
7. Employer's Response to REH
8. Employer's Motion for Extension of Time
9. Employee's Position Statement
10. Docketing Notice
11. Employer's Objection to Admissibility of Records
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Expedited Hearing Order
Granting Benefits was sent to the following recipients by the following methods of
service on this the 3rd day ofNovember, 2016.
Name Certified Via Via Service sent to:
Mail Fax Email
Linda Green X X P.O. Box 32,
Riddleton, TN 37151
cookiei oeg(a).gmai l. com
Heather Douglas X hdouglas@manierherod.com
enn hrum, Clerk of Court
Court of Workers' Compensation Claims
WC.CourtClerk@tn.gov
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