The opinion
FILED
Aug 16, 2018
01:25 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
IMAD LAGEL, ) Docket No. 2018-06-0130
)
Employee, )
v. )
)
ELWOOD STAFFING SERVICES, ) State File No. 54870-2016
LLC, )
Employer, )
And )
)
ZURICH AMERICAN INS. CO., ) Judge Joshua Davis Baker
Carrier. )
EXPEDITED HEARING ORDER DENYING
MEDICAL BENEFITS
This case came before the Court on August 9, 2018, on Imad Lagel’s Request for
Expedited Hearing. The issue is whether Mr. Lagel would likely prevail at a hearing on
the merits in proving entitlement to additional medical treatment. The Court holds he
would not likely prevail at a hearing on the merits and denies his claim for medical
benefits.
History of Claim
Mr. Lagel worked as a temporary employee for Elwood Staffing. On July 19,
2016, he developed right foot pain and swelling while stacking boxes onto pallets.
Elwood authorized emergency treatment at Stonecrest Medical Center. After
examination and x-rays, the medical provider noted soft tissue swelling and osteoarthritic
changes, diagnosed a right foot sprain, and recommended follow-up with a primary care
physician.
Mr. Lagel chose U.S. Healthworks from a panel of physicians for his follow-up
care. Dr. Harold V. Nevels diagnosed a right foot sprain. He briefly restricted Mr.
Lagel’s work but discharged him to full duty three days later as his “pain was resolving.”
He placed Mr. Lagel at maximum medical improvement (MMI).
Mr. Lagel quit his job at Elwood about a week after his injury and began working
for another staffing company. About two weeks after starting his new job, Mr. Lagel
returned to Stonecrest with the same right foot complaint and was diagnosed with gout.
As before, his symptoms had developed gradually while walking and standing during his
shift. Mr. Lagel told the provider about his prior right foot injury but reported the “pain
resolved then returned today with ‘standing on foot all day’ – no injury.” Mr. Lagel
thought “it [was] caused by work with walking then standing still.” His symptoms
calmed somewhat after his second visit to Stonecrest.
Then, in 2017, Mr. Lagel’s right foot injury “came back.” He went on his own to
Vanderbilt University Medical Center and complained of the same symptoms, but he
attributed the onset of those symptoms to cold weather. Mr. Lagel filed a Petition for
Benefit Determination for medical benefits shortly after his treatment at Vanderbilt.
After this filing, Mr. Lagel testified that the adjuster agreed to authorize a follow-up visit
with Dr. Nevels.
At the follow-up, Dr. Nevels determined Mr. Lagel’s symptoms were unrelated to
his July 2016 foot sprain. Significantly, an x-ray showed “[f]irst metatarsal head erosions
which could indicate gout.” In providing his opinion, Dr. Nevels mentioned Mr. Lagel’s
“full discharge” from a “simple right ankle/foot sprain,” the “time interval” between Mr.
Lagel’s release and his return for more treatment, and the gout diagnosis. Dr. Nevels
wrote, “[T]he “preexisting condition more likely than not is causing the current
symptoms and findings.”
Dr. Nevels also could not align Mr. Lagel’s conflicting accounts of his injury with
those documented in the medical records. He wrote, “The findings on exam and
diagnosis are not consistent with the injury reported by patient.” He noted that Mr. Lagel
reported that Vanderbilt removed fluid from his right ankle. However, Dr. Nevel’s
review of those records indicated Mr. Lagel presented to Vanderbilt with “LEFT ankle
pain and edema—atraumatic” and underwent “an arthrocentesis of the LEFT ankle.”
(Emphasis in original.) Dr. Nevels specifically referenced the Vanderbilt-physician’s
notation that “the most likely etiology of the patient’s pain is osteoarthritic given that he
is on his feet the majority of the day” with a “labor-intensive job.”
Legal Principles and Analysis
At the hearing, Mr. Lagel requested treatment for his right foot and claimed the
symptoms from the July 19, 2016 work injury remained and/or repeatedly recurred after
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his release by the doctor. To receive relief at this expedited hearing, Mr. Lagel must
provide sufficient evidence to show he would likely prevail at a hearing on the merits in
proving entitlement to further medical treatment. See Tenn. Code Ann. § 50-6-239(d)(1)
(2017). The Court finds that Mr. Lagel failed to present sufficient evidence.
To be compensable, an injury must arise primarily out of the course and scope of
employment. An injury arises primarily out of the course and scope employment if the
employment “contributed more than fifty percent (50%) in causing the injury,
considering all causes.” Further, an injury causes the need for medical treatment only if it
has been shown “to a reasonable degree of medical certainty that it contributed more than
fifty percent (50%) in causing the . . . need for medical treatment, considering all causes.”
A “reasonable degree of medical certainty” means a physician believes it is “more likely
than not considering all causes, as opposed to speculation or possibility.” See Tenn.
Code Ann. § 50-6-102(14).
An employee must present expert medical proof that the alleged injury is causally
related to the employment when the case is not “obvious, simple [or] routine.” Willis v.
All Staff, 2015 TN. Wrk. Comp. App. Bd. LEXIS 42, at *27 (Nov. 9, 2015). Lay
testimony is insufficient to establish causation in the absence of medical evidence. Ariga
v. AtWork Pers. Servs., TN Wrk. Comp. App. Bd. LEXIS 6, at*7 (Aug. 18, 2015).
Further, the opinion of the physician selected from a panel is afforded a presumption of
correctness on causation, although that presumption can be overcome by a preponderance
of the evidence standard. Tenn. Code Ann § 50-6-102(14)(E).
Here, Mr. Lagel chose Dr. Nevels from a panel of physicians. Dr. Nevels could
not state that Mr. Lagel’s right foot condition arose primarily from his employment with
Elwood. Conversely, he found that Mr. Lagel’s pre-existing arthritis and gout were
“more likely than not” causing Mr. Lagel’s flare-ups when walking and standing during
his shifts. The Court must afford Dr. Nevels’ opinion a presumption of correctness, and
Mr. Lagel’s lay testimony alone does not overcome that presumption. Accordingly, the
Court holds he is not likely to prevail at a hearing on the merits and denies his request for
additional medical benefits.
It is ORDERED as follows:
1. Mr. Lagel’s request for additional medical benefits is denied at this time.
2. The parties shall appear for a status conference on October 1, 2018, at 10:30
a.m. (CDT). The Court will convene the status conference via telephone. The
parties must call the Court’s conference line at (615) 741-2113 or (855) 874-
0474 to participate.
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ENTERED ON AUGUST 16, 2018.
______________________________________
Judge Joshua Davis Baker
Court of Workers’ Compensation Claims
4
APPENDIX
Exhibits:
1. Medical Records
2. Mr. Lagel’s Affidavit
3. Wage Statement
4. First Report of Injury
5. Choice of Physician
Technical Record:
1. Request for Expedited Hearing
2. Dispute Certification Notice
3. Petition for Benefit Determination
4. Employer’s Pre-hearing Brief
5
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Expedited Hearing Order was sent to
the following recipients by the following methods of service on August ___,16th 2018
Name Certified Fax Email Service sent to:
Imad Lagel, X X 5756 Mount View Rd.
Self-represented Antioch, TN 37013
Employee Lg_imad@hotmail.com
David Deming, X ddeming@manierherod.com
Employer’s Attorney
______________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
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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