Opinion

Hollis, Aleceia v. Komyo America

  • 2018 TN WC 145
Court
Tennessee Court of Workers' Compensation Claims
Filed
Sep 13, 2018
Status
Published
On the bench
Lisa A. Lowe
Cited by
0 cases

The opinion

FILED

September 13, 2018

TN COURT OF

WORKERS’ COMPENSATION

CLAIMS

Time: 1:35 P.M. EASTERN

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT KNOXVILLE

ALICEIA HOLLIS, ) Docket No. 2016-03-0298

Employee, )

V. )

KOMYO AMERICA, ) State File No. 23307-2016

Employer, )

And )

TOKIO MARINE AMERICA INS. CO., ) Judge Lisa A. Lowe

Carrier. )

COMPENSATION HEARING ORDER

This matter came before the Court for a Compensation Hearing on August 29, 2018.

The central legal issue is whether Ms. Hollis’ herniated disc arose primarily out of and in the

course and scope of her employment with Komyo America. For the reasons below, this

Court finds that Ms. Hollis failed to establish this by a preponderance of the evidence.

Accordingly, the Court holds that Ms. Hollis is not entitled to the requested benefits.

However, she is entitled to ongoing reasonable and necessary medical care for her work-

related lumbar strain.

History of Claim

Ms. Hollis worked for Komyo as a material handler. On January 18, 2016, as she

moved a transmission to a crate, several car hoods tipped over. The hoods hit her, and she

twisted to the left to hold them up offher body. She began experiencing back pain and leg

tingling within thirty minutes of the event. Ms. Hollis requested treatment the next day.

Komyo provided a panel of physicians, from which she selected Dr. John Sanabria at

Lakeway Urgent Care (Lakeway).

Lakeway diagnosed her with a lumbar sprain, prescribed medications, and assigned

restrictions. During a follow-up visit, Lakeway continued the restrictions and medications

and referred her to physical therapy. Ultimately, Dr. Sanabria ordered an MRI.

1

Following the MRI, Dr. Sanabria explained to Ms. Hollis that the herniated disc was

not responsible for the pain into her buttocks. He further explained that her continued pain

could be caused by the advanced pre-existing SI joint degenerative changes, which did not

primarily result from her work-related strain. Dr. Sanabria recommended Ms. Hollis “follow

up with her primary care physician . .. for further evaluation and management as a non-work-

related issue.” He placed her at maximum medical improvement (MMI) on March 7 and did

not assign an impairment rating or permanent restrictions.

Ms. Hollis followed Dr. Sanabria’s recommendation and saw her primary care

physician, who referred her to a neurosurgeon, Dr. Kent Sauter. Dr. Sauter recommended

surgery or steroid injections. Ms. Hollis underwent surgery and completed post-op care, and

Dr. Sauter released her to work on July 18, 2016, with permanent restrictions of no lifting

greater than thirty pounds. Dr. Sauter last saw Ms. Hollis on January 11, 2017, and referred

her to Dr. Elmer Pinzon for pain management.

Dr. Pinzon performed trigger-point and facet-joint injections, ordered physical

therapy, prescribed medications, and gave Ms. Hollis a TENS unit. Later, Dr. Pinzon

performed a nerve ablation procedure and implanted a spinal cord stimulator trial.

The following testimony was provided at the Compensation Hearing.

Lay Testimony

Ms. Hollis stated that she only saw Dr. Sanabria on the last visit. He did not perform

an exam, and he only spent about ten minutes with her. She said he read the MRI results,

lifted her work restrictions, and said she should see her family doctor. In contrast, Dr. Sauter

performed a full exam. Ms. Hollis confirmed that Komyo accommodated her restrictions

from Lakeway and Dr. Sauter. However, she testified that she left Komyo because of

constant pain and has been unable to work since. Ms. Hollis acknowledged that she never

asked Komyo for a return visit to Dr. Sanabria or for a second opinion before proceeding

with unauthorized treatment. She noted that she did not have contact information for the

workers’ compensation carrier.

Ms. Hollis asked the Court to award: temporary disability benefits from April 28,

2016, until January 11, 2017; permanent partial disability benefits based on a twelve- percent

impairment rating; extraordinary relief of 275 weeks of benefits; past unauthorized medical

expenses; and future medical treatment.

Komyo’s Human Resources Assistant Manager, Michael Oaks, testified that he

provided Ms. Hollis with the initial panel. He said that Komyo accommodated her

restrictions. Mr. Oaks stated that Komyo could have accommodated Dr. Sauter’s thirty-

2

pound permanent weight restriction. He acknowledged that he never gave Ms. Hollis the

carrier contact information.

Medical Expert Testimony

As for authorized care, Dr. Sanabria testified that he sees all patients in conjunction

with his staff but is directly involved in their care. He noted Ms. Hollis did not mention prior

back problems, but he reviewed records from March 2009 in which she complained of back

pain going down her right buttock. Dr. Sanabria found that Ms. Hollis suffered from lumbar

strain but that her herniated disc and other MRI findings were pre-existing and not related to

her work injury. He placed her at MMI on March 7, 2016, and did not assign an impairment

rating or permanent restrictions. He stated Ms. Hollis never returned to his office after MMI,

requested an appointment, or asked for a second opinion.

On cross-examination, Dr. Sanabria admitted that the 2009 records documented pain

into Ms. Hollis’s right leg and buttock, but her complaints from this incident involved her left

leg and buttock. Dr. Sanabria acknowledged that Dr. Sauter is more competent to know

whether someone needs surgery, but they are equally qualified to determine causation. In

fact, he said that he might be more qualified because of the amount of workers’

compensation patients he sees, which comprises approximately ten percent of his practice.

As for unauthorized treatment, Dr. Sauter testified Ms. Hollis suffered from a disc

herniation on the left side at L4-5 causing radiculopathy and her pain pattern was consistent

with that herniation. He stated she more likely than not would have been off work from

April 8, 2016, until he released her to work with a thirty-pound weight restriction on July 18.

On November 28, Dr. Sauter took Ms. Hollis off work again and kept her off indefinitely.

Dr. Sauter provided his opinion that her ruptured disc and surgery were more likely than not

related to the work injury.

However, on cross-examination, Dr. Sauter said, “she told me what causation was. I

wasn’t terribly concerned with causation as far as wanting to treat her. Causation was

incidental to what I needed to do for her at that point.” He said that he does not look beyond

what the patient tells him to assess medical causation. Dr. Sauter explained his methodology

for assessing medical causation for workers’ compensation patients as follows:

I usually ask them what caused their pain, when did the pain start. And if the

history that they give me, in Ms. Hollis’ case specifically, “I twisted while

bending over when some objects fell on my back and that’s when my pain

started,” and it sounds reasonable, then I accept it as causation.

Dr. Sauter said that Ms. Hollis had not reached MMI as of her last visit on January 11,

2017, but he would put her at MMI if she did not want any further treatment from him. A

3

day or two before his deposition, Dr. Sauter calculated Ms. Hollis’ permanent impairment at

twelve percent. He admitted that he did not place Ms. Hollis at MMI or perform an updated

physical examination before assigning the impairment rating, as required by the AMA Guides

to Evaluation of Permanent Impairment. Dr. Sauter also acknowledged that he did not

document any clinical findings of radiculopathy, so Ms. Hollis might fall under the seven-

percent impairment category for non-verifiable radiculopathy. Dr. Sauter explained, “I think

if we want an impairment that’s going to stand up in court, we probably need an examination

that’s more current. The examination — what I gave you was based on what I thought she

deserved at the last time I saw her.”

Finally, Dr. Pinzon testified that Ms. Hollis’ work injury caused her back problems,

ruptured disc, and necessity for surgery. He said his causation opinion was a combination of

Dr. Sauter’s notes, Ms. Hollis’ history, and his review of the provided medical records. Dr.

Pinzon did not assign an impairment rating but said he believed that Dr. Sauter’s rating

would be appropriate, given her surgery. He acknowledged that Ms. Hollis would need to be

at MMI before assignment of a rating. Dr. Pinzon agreed that she would have been at MMI

at her last visit with Dr. Sauter if she were not going to pursue any further treatment. He also

stated that he would be comfortable using the last visit to assign impairment if it were within

a three- to six-month period.

Findings of Fact and Conclusions of Law

In Panzarella v. Amazon.com, Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 30, at *10-

11 (May 15, 2017), the Workers’ Compensation Appeals Board stated the employee’s burden

of proof as follows: “[A]t a compensation hearing where the injured employee has arrived at

a trial on the merits, the employee must establish by a preponderance of the evidence that he

or she is, in fact, entitled to the requested benefits.” See also Tenn. Code Ann. § 50-6-

239(c)(6) (2017). The employee must establish that her injury or condition “arose primarily

out of and in the course and scope of employment” by a preponderance of the evidence.

Tenn. Code Ann. § 50-6-102(14)(A).

The employee’s burden requires a showing “by a preponderance of the evidence that

the employment contributed more than fifty percent (50%) in causing the injury, considering

all causes.” Tenn. Code Ann. § 50-6-102(14)(B). The employee must establish this showing

“to a reasonable degree of medical certainty.” Tenn. Code Ann. §50-6-102(14)(C). “The

opinion of the treating physician, selected by the employee from the employer’s designated

panel of physicians . . . shall be presumed correct on the issue of causation but this

presumption shall be rebuttable by a preponderance of the evidence.” Tenn. Code Ann. § 50-

6-102(14)(E).

Here, the medical experts disagreed about causation and permanent impairment.

Because Dr. Sanabria was the authorized treating physician, his opinion that Ms. Hollis’

4

herniated disc was not related to the work injury is presumed correct.

Considering Dr. Sauter’s opinion, the Court noted in a prior Expedited Hearing Order

that:

Dr. Sauter’s notes contain the history that Ms. Hollis injured her back at work

and his impression that she sustained a herniated disc. However, the Court

finds that alone is insufficient to establish that Dr. Sauter is of the opinion Ms.

Hollis’ disc herniation arose primarily out of and in the course and scope of

her employment. The fortuitous convergence in a doctor’s notes of a diagnosis

of a condition, accompanied by a history indicating the employee reported he

or she suffered an injury on the job, falls short of the express medical expert

opinion on causation that the Workers’ Compensation Act requires.

(internal citation omitted).

The parties deposed Dr. Sauter, but his deposition testimony did little to explain his

causation determination. In fact, Dr. Sauter stated he was not concerned with causation and

that Ms. Hollis told him “what causation was.” He testified that he asks patients what caused

the pain, and if it sounds reasonable, he accepts it as causation. Based on this testimony, the

Court holds that Dr. Sauter’s causation opinion fails to rebut Dr. Sanabria’s causation

opinion by a preponderance of the evidence. Dr. Pinzon treated Ms. Hollis for pain

management and based his opinion, at least in part, on Dr. Sauter’s opinion and records. For

this reason, the Court holds that Dr. Pinzon’s opinion also fails to rebut Dr. Sanabria’s

opinion by a preponderance of the evidence.

The Court concludes that Ms. Hollis failed to establish by a preponderance of the

evidence that her herniated disc arose primarily out of and in the course and scope of her

employment. Therefore, the Court holds that Ms. Hollis is not entitled to benefits relative to

her herniated disc. However, Ms. Hollis is entitled to ongoing reasonable and necessary

medical care for her work-related lumbar strain.

IT IS, THEREFORE, ORDERED as follows:

1. Komyo shall provide Ms. Hollis with ongoing reasonable and necessary medical care

for her work-related lumbar strain. Dr. Sanabria remains the authorized treating

physician.

2. Komyo shall pay the $150.00 filing fee under Tennessee Compilation Rules and

Regulations 0800-02-21-.07(2018) to the Court Clerk within five business days of the

date of this order, for which execution may issue if necessary.

. Komyo shall file a Statistical Data Form (SD-2) within ten business days of entry of

this order.

. Absent an appeal, this Order shall become final thirty calendar days after entry.

ENTERED September 13, 2018

Wen A lswe

LISA A. LOWE, JUDGE

Court of Workers’ Compensation Claims

APPENDIX

Exhibits:

First Report of Work Injury

Wage Statement

Panel of Physicians

Medical Records with Table of Contents

Excerpts of the 6" Edition of the AMA Guides

Employee’s Discovery Responses

Temporary Work Restrictions Recap

Deposition Transcript of Aliceia Hollis

9. Deposition Transcript of Jacob Wilson (marked for identification only)

10. Deposition Transcript of Dr. Kent Sauter with Exhibits

11. Deposition Transcript of Dr. Elmer Pinzon with Exhibits

12. Deposition Transcript of Dr. Sanabria

13. Komyo Job description

ONDAWARWNS

Technical record:

Petition for Benefit Determination

Dispute Certification Notice

Motion to Compel

Order Denying Employer’s Motion to Compel

Motion to Reconsider

Response to Motion to Reconsider

Order Denying Employer’s Motion to Reconsider

Request for Expedited Hearing

9. Request for Initial Hearing

10. Order

11.Employer’s Brief in Opposition to Employee’s Petition for Medical Benefits and

Temporary Total Disability Benefits

12. Notice of Filing Medical Records of Dr. Kent Sauter

13.Agreed Order Allowing Defendant’s Attorney Access to Plaintiff's Medical And

Employment Records

14. Notice of Filing Medical Records of Walgreens

15. Expedited Hearing Order Denying Medical and Temporary Disability Benefits

16.Employer’s Motion for Summary Judgment

17.Employer’s Memorandum of Law in Support of Its Motion for Summary Judgment

18. Employer’s Statement of Undisputed Facts

19. Employee’s Response to Motion for Summary Judgment and Motion to Stay Motion

for Summary Judgment

SN AMR YN

20.Employer’s Reply to Employee’s Response to Motion for Summary Judgment and

Objection to Cancellation of Hearing

21.Employee’s Response to Employer’s Reply for Continuance of the Motion for

Summary Judgment

22. Order Granting Employee’s Motion to Stay the Motion for Summary Judgment

23. Notice of Deposition of Dr. Sauter

24. Order

25.Employer’s Motion to Compel

26. Notice of Filing Plaintiff's Answers to Interrogatories and Request for Production of

Documents

27.Employer’s Reply to Employee’s Response to Motion to Compel

28.Employee’s Response to Motion to Compel

29. Order Granting Motion to Compel

30. Notice of Withdrawal of Motion for Summary Judgment

31. Notice of Deposition of Dr. Elmer Pinzon

32. Request for Scheduling Conference

33. Scheduling Hearing Order

34. Order Resetting Post Discovery Alternative Dispute Resolution

35. Notice of Deposition of Dr. Sanabria

36. Notice of Filing Deposition of Dr. Ken Sauter

37. Notice of Filing Deposition of Dr. Elmer Pinzon

38. Notice of Filing Deposition of Dr. John Sanabria

39. Pre-Compensation Hearing Statement of Employee

40. Agreed Order of Substitution of Counsel

41.Employer’s Trial Brief

42.Employer’s Pre-Compensation Hearing Statement

43.Employer’s Witness and Exhibit List

44.Employee’s Motion to Continue and Amended Scheduling Order

45.Employer’s Response to Employee’s Motion for Continuance

46. Order Granting Continuance

47.Post ADR Dispute Certification Notice

CERTIFICATE OF SERVICE

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

sent to the following recipients by the following methods of service on September 13, 2018.

Name Certified | Fax | Email | Service sent to:

Mail

Douglas Nichols, x dnichol@nicholassociates.com

Employee’s Attorney

Chris Rowe, XxX cgrowe@mijs.com

Employer’s Attorney

be ul) Pouaig ddcoKm

UM, COURT CLERK! beg

we.courtclerk(@tn.gov

Filed Date Stamp Here COMPENSATION HEARING NOTICE OF APPEAL pocket #:

LB-1103

Tennessee Division of Workers’ Compensation

www. th. gov/labor-wid/weamp.shtml State File #/YR:

wc.courtclerk@tn.gov

1-800-332-2667 RFA #:

Date of Injury:

SSN:

Employee

Employer and Carrier

Notice

Notice is given that

[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:

List of Parties

Appellant (Requesting Party): At Hearing: ]EmployerL_lEmployee

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 *

rev. 4/15 Page 1 of 2 RDA 11082

Employee Name: _ SF#: __ DOL:

Appellee(s)

Appellee (Opposing Party):__ At Hearing:[_lEmployerl_lEmployee

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

l, , certify that | have forwarded a true and exact copy of this

Compensation 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]

Attention: This form should only be used when filing an appeal to the Workers’ Compensation Appeals

Board. If you wish to appeal a case to the Tennessee Supreme Court, please utilize the form provided by

the Court which can be found on their website at the following address:

http://www.tncourts.gov/sites/default/files/docs/notice of appeal - civil or criminal.pdf

LB-1103 rev. 4/15 Page 2 of 2 RDA 11082

Compensation Hearing Order Right to Appeal:

If you disagree with this Compensation Hearing Order, you may appeal to the Workers’

Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers’

Compensation Appeals Board, you must:

1. Complete the enclosed form entitled: “Compensation Hearing Notice of Appeal,” and file

the form with the Clerk of the Court of Workers’ Compensation Claims within thirty

calendar days of the date the compensation hearing order was filed. When filing the

Notice of Appeal, you must serve a copy upon the opposing party (or attorney, if

represented).

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 filing 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 your 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. A licensed court

reporter must prepare a transcript and file it with the court clerk within fifteen calendar

days of the filing the Notice of Appeal. Alternatively, you may file a statement of the

evidence prepared jointly by both parties within fifteen calendar 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

of the evidence 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. After the Workers’ Compensation Judge approves the record and the court clerk transmits

it to the Appeals Board, a docketing notice will be sent to the parties. The appealing

party has fifteen calendar days after the date of that notice to submit a brief to the

Appeals Board. See the Practices and Procedures of the Workers’ Compensation

Appeals Board.

To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing

Order must be final and you must comply with the Tennessee Rules of Appellate

Procedure. If neither party timely files an appeal with the Appeals Board, the trial court’s

Order will become final by operation of law thirty calendar days after entry. See Tenn.

Code Ann. § 50-6-239(c)(7).

For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.

Tennessee Bureau of Workers’ Compensation

220 French Landing Drive, I-B

Nashville, TN 37243-1002

800-332-2667

AFFIDAVIT OF INDIGENCY

, having been duly sworn according to law, make oath that

because of my poverty, | 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:

3. Telephone Number:

5. Names and Ages of All Dependents:

6. lam employed by:

2. Address:

4. Date of Birth:

Relationship:

Relationship:

Relationship:

Relationship:

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. | receive or expect to receive money from the following sources:

AFDC $

SSI $

Retirement $

Disability $

Unemployment $

Worker's Comp.$

Other $

LB-1108 (REV 11/15)

per month

per month

per month

per month

per month

per month

per month

beginning

beginning

beginning

beginning

beginning

beginning

beginning

RDA 11082

9. My expenses are:

Rent/House Payment $ permonth 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 Chitd 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

| hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete

and that | am financially unable to pay the costs of this appeal.

APPELLANT

Sworn and subscribed before me, a notary public, this

day of , 20

NOTARY PUBLIC

My Commission Expires:

LB-1108 (REV 11/15) RDA 11082

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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