The opinion
FILED
Jul 31, 2018
08:25 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS' COMPENSATION CLAIMS
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT COOKEVILLE
Carol Abston, ) Docket No. 2018-04-0017
Employee, )
v. ) State File No. 45570-2017
)
Hillsman Modular Molding, Inc., ) Judge Robert Durham
Employer. )
)
And )
)
Bridgefield Cas. Ins. Co., )
Insurer. )
EXPEDITED HEARING ORDER DENYING BENEFITS
The Court conducted an expedited hearing on July 20 to determine whether Ms.
Abston is entitled to another panel of neurosurgeons following Dr. Leonardo Rodriguez-
Cruz s recusal as her authorized treating physician. 1 The Court holds that Ms. Abston did
not provide sufficient evidence to establish she is likely to prove at trial that she requires
additional medical treatment for her work-related injury. Thus, her request for an
additional panel is denied.
History of Claim
On June 20, 2017, Ms. Abston slipped in oil on Hillsman's factory floor, causing
her to "face-plant" on the concrete. She was immediately taken to a clinic where she
received care primarily for left upper extremity pain. A few days later, she returned to
the clinic complaining of intense low-back pain radiating into both legs. Following an
1
During the trial, Ms. Abston stipulated there was insufficient evidence to establish the likelihood that she
could prove a causal connection between her work injury and her need for surgery or entitlement to
additional temporary disability benefits. She also filed a Motion to Compel the provision of a panel of
physicians, and it was decided that the Court would consider the motion during the expedited hearing.
1
MRI that revealed substantial degenerative changes in her lumbar spine, Ms. Abston
received a panel of neurosurgeons from which she chose Dr. Rodriguez-Cruz.
On her initial visit on August 3, Dr. Rodriguez-Cruz noted that Ms. Abston arrived
in a wheelchair and also used a walker, which he described as very unusual for someone
with sciatic complaints. She described the sudden onset of extreme, disabling pain
following her fall. While she admitted to a history of back pain, she made no reference to
a history of radiculopathy. Dr. Rodriguez-Cruz was unable to complete a physical
examination due to Ms. Abston's complaints of extreme pain. He ordered an EMG, but it
was not completed, again due to Ms. Abston's pain. He diagnosed Ms. Abston with
lumbago, or back pain, and left leg pain due to impingement of the sciatic nerve, but he
noted that her pain complaints were disproportionate to her objective findings.
Dr. Rodriguez-Cruz eventually diagnosed Ms. Abston with foramina! stenosis and
facet arthropathy at multiple levels of the lumbar spine plus osteophyte formations at the
L3-L4 level. He felt that these changes were predominantly degenerative and there was
no sign of traumatic changes. The only evidence of an acute injury was her history. He
again noted that Ms. Abston's pain complaints seemed out of proportion to her physical
findings. Nevertheless, he recommended low back surgery.
After receiving Dr. Rodriguez-Cruz's recommendation, Hillsman submitted Ms.
Abston's records for evaluation by orthopedist Dr. Robert Holladay. Dr. Holladay
concluded that Ms. Abston sustained a lumbar strain as a result of her June 20, 2017
injury that should have resolved within six to eight weeks of her injury. He felt that Ms.
Abston's current complaints and need for surgery were due to degenerative changes
unrelated to her work-related fall because he saw no evidence of either work-related
injury or aggravation of her non-work related degenerative changes, which triggered the
need for the recommended surgery.
Hillsman then wrote to Dr. Rodriguez-Cruz asking his opmton regarding
causation. He agreed with Dr. Holladay that Ms. Abston sustained a lumbar strain as a
result of her fall at work. However, he believed that her current condition and need for
surgery was "at least 50% related to the pre-existing condition and findings." As a result,
Hillsman denied surgery. Ms. Abston's counsel then wrote Dr. Rodriguez-Cruz with
further questions regarding causation. In response, the doctor agreed that Ms. Abston
sustained a back injury on June 20 that aggravated a pre-existing condition; however, it
was "unknown" whether the aggravation arose "primarily" from the back injury.
Given these statements, the parties took Dr. Rodriguez-Cruz's deposition. He
testified that he still believed that Ms. Abston sustained a lumbar strain as a result of her
July 20 fall, but that it should have resolved in six to eight weeks. He also testified that
he felt her pain complaints were disproportionate to her objective findings. The doctor
agreed that Ms. Abston had pre-existing degenerative lumbar conditions that warranted
2
surgery, and in fact, surgery was her "one and only hope" for relief from her left leg
symptoms.
However, Dr. Rodriguez-Cruz could not state to a reasonable degree of medical
certainty that Ms. Abston's fall aggravated her pre-existing condition. He believed
something else was causing her complaints, although he admitted that if the history she
provided him were credible, he knew of no other reason for her current condition.
Finally, Dr. Rodriguez-Cruz testified that, given what he perceived as a conflict of
interest, he could no longer treat Ms. Abston, and he "insisted" that she receive treatment
elsewhere.
During the trial, Ms. Abston testified that she had no leg pain before her fall and
had no limitation to either her work or home activities. She testified that she never
sought treatment for radiculopathy before her accident. Ms. Abston also stated that
immediately upon falling she experienced, and continues to experience, intense and
disabling pain and numbness and weakness in her "tailbone" and left lower extremity.
Hillman's counsel introduced chiropractic records that showed Ms. Abston received
treatment for low back pain radiating into both legs in 2014 and 2015. Ms. Abston
admitted that she received the chiropractic treatment for low back pain but did not recall
complaining of pain radiating into her legs at that time.
Findings of Fact and Conclusions of Law
Ms. Abston need not prove every element of her claim by a preponderance of the
evidence to obtain relief at an expedited hearing. Instead, she must present sufficient
evidence that she is likely to prevail at a hearing on the merits. See Tenn. Code Ann. §
50-6-239( d)(l) (20 17); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Here, it is undisputed that Ms. Abston sustained a lumbar strain as a result of her
work-related fall on July 20, 2017. It is further undisputed that her authorized physician,
Dr. Rodriguez-Cruz, stated he will no longer treat her. Thus, the question is whether Ms.
Abston established that she is likely to prevail in proving she is entitled to another panel
of physicians from which she may choose a physician to provide additional authorized
treatment for her work injury. !d. The Court holds she did not.
The seminal case regarding this issue is Limberakis v. Pro-Tech Security, Inc.,
2017 Work. Comp. App. Bd. LEXIS 53 (Sept. 12, 2017). In Limberakis, the employee
suffered an uncontested low back injury but failed to improve despite conservative care
provided by the authorized physician. The authorized doctor eventually refused to
provide further care, stating the employee would not need additional treatment directly
related to the work injury. The Appeals Board held the employer was required to provide
another panel of physicians to treat the employee's undisputed work injury. !d. at *9-10.
3
At first blush, Limberakis appears controlling. However, the Court finds the facts
in this case distinguishable. This matter is more akin to cases where the employee is
seeking medical treatment through a compensable claim previously resolved with "open
medical" benefits. Despite the fact the claim is compensable, the employee still has the
burden of establishing the link between the previous compensated injury and the
additional treatment. See Greenlee v. Care Inn of Jefferson City, 644 S.W.2d 679, 680
(Tenn. 1983).
To establish causation, Ms. Abston must prove "to a reasonable degree of medical
certainty that [the injury] contributed more than fifty percent (50%) in causing the death,
disablement or need for medical treatment, considering all causes." Tenn. Code Ann. §
50-6-102(14)(C) (emphasis added). The term "reasonable degree of medical certainty"
means that, "in the opinion of the physician, it is more likely than not considering all
causes, as opposed to speculation or possibility." Tenn. Code Ann. § 50-6-102(14)(D).
Thus, causation must be established by expert medical testimony, and it must be more
than "speculation or possibility" on the part of the doctor. !d.
Here, no medical evidence established a connection between Ms. Abston's work
injury and her current symptoms or need for additional treatment. Indeed, the opposite is
true: Both Dr. Rodriguez-Cruz and Dr. Holladay believed Ms. Abston sustained a lumbar
strain, which should have resolved in a few months. However, both also felt that the
injury did not cause the degenerative condition that caused Ms. Abston's radiculopathy.
Further, Dr. Rodriguez-Cruz could not state within a reasonable degree of medical
certainty that the fall aggravated the degenerative condition, and Dr. Holladay
affirmatively stated that there was no evidence of any aggravation. Ms. Abston did not
provide any medical proof to the contrary. Thus, the Court holds she has not shown a
likelihood in establishing a causal connection between her current complaints and her
work injury.
Ms. Abston argued that she is not seeking surgery for her radiculopathy at this
time, but she only requires a doctor to treat her undisputed back injury, given that Dr.
Rodriguez-Cruz "recused" himself as her doctor due to a perceived conflict of interest.
The Court is unpersuaded. It is clear from Dr. Rodriguez-Cruz's deposition that he
believes Ms. Abston's symptoms stem from her degenerative back condition and can
only possibly be corrected through surgery. However, since he cannot connect her
degenerative spine to her work injury, he cannot provide the needed treatment through
workers' compensation, and she must seek a remedy by other means. The Court finds
this is not the same as refusing to provide treatment for a compensable injury and thus
holds at this time that Ms. Abston is not entitled to another panel of physicians.
4
IT IS, THEREFORE, ORDERED that:
1. Ms. Abston's request for workers' compensation benefits is denied at this time.
2. This matter is set for a Scheduling Hearing/Status Conference on September 14,
2018, at 9:00 a. m. Central Time. The parties must call 615-253-0010 or toll-
free at 866-689-9049 to participate in the hearing. Failure to call in may result in a
determination of the issues without the party's participation.
ENTERED July 31, 2018.
~AM: JUDGE
Court of Workers' Compensation Claims
5
APPENDIX
Exhibits:
1. Dr. Rodriguez-Cruz's deposition
2. Collective exhibit submitted by Hillsman
3. Medical records submitted by Hillsman
4. Ms. Abston's affidavit
5. Dr. Rodriguez-Cruz's response to letter from Ms. Abston's counsel
6. Supplemental medical records submitted by Ms. Abston
7. Letter from Dr. Cruz to Ms. Abston
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Hillsman's position statement for Expedited Hearing
5. Notice of Expedited Hearing
6. Hillsman's Witness List
7. Hillsman's Expedited Hearing Brief
8. Hillsman's Supplemental Witness List
9. Ms. Abston's Motion to Compel Panel
10. Hillsman's Response to Motion to Compel
CERTIFICATE OF SERVICE
I 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 July
31,2018.
Name Certified Via Via Service sent to:
Mail Fax Email
Michael Fisher X Mfisher@ddzla w .com
Kathryn Lee klee@ddzlaw .com
Ryan Malone X aan@getersonwh ite. com
RUM, COURT CLERK
Court oti orkers' Compensation Claims
WC.CourtClerk@tn.gov
6
Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
form with the Clerk of the Court of Workers’ Compensation Claims within seven
business days of the date the expedited hearing order was filed. When filing the Notice
of Appeal, you must serve a copy upon all parties.
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of the Notice of Appeal. Payments can be made in-person at
any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
website or any Bureau office) seeking a waiver of the fee. You must file the fully-
completed Affidavit of Indigency within ten calendar days of filing the Notice of
Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
result in dismissal of the appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business days of the filing of the Notice of Appeal. The statement of
the evidence must convey a complete and accurate account of the hearing. The Workers’
Compensation Judge must approve the statement before the record is submitted to the
Appeals Board. If the Appeals Board is called upon to review testimony or other proof
concerning factual matters, the absence of a transcript or statement of the evidence can be
a significant obstacle to meaningful appellate review.
4. If you wish to file a position statement, you must file it with the court clerk within ten
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements 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.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
Filed Date Stamp Here EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers' Compensation
Docket#: - - - -- -- - --
www.tn.go v/labor-wfd/wcomp.shtm l
State File #/YR: - - -- - - --
wc.courtclerk@tn.gov
1-800-332-2667 RFA#: _ _ _ _ _ _ _ _____ _
Date of Injury: - - - -- - - - -
SSN: _______ _ ______ __
Employee
Employer and Carrier
Notice
Noticeisg~enthat _ _ _ _ _ _ _~~--~~~~---~~~--------~
[List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s) of the Court of Workers' Compensation Claims at _ __
-~~~-----~~~~~~~~-to the Workers' Compensation Appeals Board .
[List the date(s) the order(s) was filed in the court clerk's office]
Judge___________________________________________
Statement of the Issues
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Additional Information
Type of Case [Check the most appropriate item]
D Temporary disability benefits
D Medical benefits for current injury
D Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): _____________ .A t Hearing: DEmployer DEmployee
Address:. _______________________ ______________ ___________
Party's Phone:.____________________________ Email: _________________________
Attorney's Name:________________________________ ___ BPR#: - - - - - - - - - - - -
Attorney's Address:. _ _ _ _ _~~-~~~~----~~---- Phone:
Attorney's City, State & Zip code: _____________________ ___________ _ _ _ __ _
Attorney's Email :_ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ __ _ _ _ __ _ _ _ _ _ _ __
*Attach an additional sheet for each additional Appellant*
LB-1099 rev.4/15 Page 1 of 2 RDA 11082
Employee Name: - - - -- - - -- - - - SF#: _ _ _ _ __ _ _ _ _ DO l: _ __ _ __
Aopellee(s)
Appellee (Opposing Party): _ _ _ _ _ _ _ _.At Hearing: OEmployer DEmployee
Appellee's Address: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Appellee's Phone:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _.Email:_ _ _ _ _ _ __ _ _ _ _ _ __
Attorney's Name:_ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ BPR#: - - - - - - - -
Attorney's Address:._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Phone:
Attorney's City, State & Zip code: - - - -- - - - - - - - - - - - - - - - - - - -- -
Attorney's Email:._ _ _ _ __ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, certify that I have forwarded a true and exact copy of this
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules of
Board of Workers' Compensation Appeals on this the day of__, 20_ .
[Signature of appellant or attorney for appellant]
LB-1099 rev.4/1S Page 2 of 2 RDA 11082
.
ll .I
Tennessee Bureau of Workers' Compensation
220 French Landing Drive, 1-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
I, , having been duly sworn according to law, make oath that
because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name:_ _ _ _ _ _ _ _ _ _ __ 2. Address: - - - - - - - - - - - - -
3. Telephone Number: - - - - - - - - - 4. Date of Birth: - - - - - - - - - - -
5. Names and Ages of All Dependents:
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
- - - - - - - - - - - - - - -- - Relationship: - - - - - - - - - - - --
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
6. I am employed by: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , -
My employer's address is: - - - - - - - - - - - - - - - - - - - - - - - - -
My employer's phone number is: - - - - - - - - - - - - - - - - - - - - - - -
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$ _ _ _ _ _ _ ___
8. I receive or expect to receive money from the following sources:
AFDC $ per month beginning
SSI $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Camp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are: ' ; !•
'
Rent/House Payment $ per month Medical/Dental $ per month
Groceries $ per month Telephone $ per month
Electricity $ per month School Supplies $ per month
Water $ per month Clothing $ per month
Gas $ per month Child Care $ per month
Transportation $ per month Child Support $ per month
Car $ per month
Other $ per month (describe:
10. Assets:
Automobile $ _ _ __ _
(FMV) - - - - - -- - - -
Checking/Savings Acct. $ _ _ _ __
House $ _ _ _ __
(FMV) - - -- - - -- - -
)
Other $ _ _ _ __ Describe:_ _ _ __ _ _ _ _ __
11. My debts are:
Amount Owed To Whom
I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
_ _ _ dayof _____________ ,20____
NOTARY PUBLIC
My Commission Expires:_ _ _ _ _ __ _
LB-1108 (REV 11/15) RDA 11082