The opinion
FILED
Sep 25, 2018
01:21 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT MURFREESBORO
Velvet Touchette, ) Docket No.: 2018-05-0417
Employee, )
v. )
)
Speedway, LLC, ) State File No.: 95598-2017
Employer, )
And )
)
Old Republic Ins. Co. )
Insurer. ) Judge Robert Durham
EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS
This case came before the Court for an Expedited Hearing on September 17, 20 18.
The legal issue is whether Ms. Touchette's chest and left shoulder complaints arose
primarily out of and in the course and scope of her employment with Speedway. For the
following reasons, the Court holds she is likely to succeed at a hearing on the merits in
establishing entitlement to a panel. Because Speedway denied her claim, the Court holds
it must authorize reasonable and necessary treatment for the work injury with an
orthopedist at Seven Springs Orthopedics.
History of Claim
On December 2, 2017, Ms. Touchette worked as an assistant manager trainee for
Speedway. While restocking the coffee station, she noticed an urn was not working. 1
She began checking if one was unplugged. This included checking an outlet underneath
the coffee counter in the back of a storage cabinet by bracing herself with her left arm,
stooping down, and reaching through the open door to the back of the deep cabinet where
the outlet was located. At the hearing, Ms. Touchette stated that she reached into the
back of the cabinet, grabbed a tight plug and attempted to work it free of the outlet when
1
In her early accounts, Ms. Touchette stated she transported a heavy box to the coffee station; however, at
the hearing, she admitted that she transported the box several minutes before she experienced chest pain.
she felt a sudden, excruciating pain in the left side of her chest radiating to her left
shoulder. 2
A co-worker, Keonna Sebree, found Ms. Touchette lying on the floor, clutching
her chest in intense pain. Surveillance footage shows Ms. Sebree assisting her to the
office. Ms. Touchette's left hand was on her chest. An ambulance transported her to the
emergency room where Ms. Touchette complained of "pleuritic, sharp" chest pain
exacerbated by movement and chest palpation. The ER doctor ruled out heart problems
and diagnosed Ms. Touchette with acute costochondritis, or inflammation of the chest
wall muscles.
The next day, she completed an injury report for Speedway. Ms. Touchette wrote
she experienced sharp pain in the middle of her chest when she was "bending down and
into cabinet to check plug connection." She made no mention of pulling on a plug.
Speedway did not provide a panel of physicians.
On December 4, Ms. Touchette visited her primary care physician, Dr. Olawumi
Akatue. Ms. Touchette reported chest pain "after she had lifted some boxes and then
reached for a cabinet to pull an item," and that she still had chest pain and pain lifting her
arms. Dr. Akatue diagnosed a chest muscle strain/musculoskeletal pain and assigned
restrictions. Ms. Touchette returned a week later for an "upper ext/shoulder/chest sprain
after she did some pulling at work." Dr. Akatue noted pain to the right of the sternum
and toward both shoulders. She diagnosed a lingering muscle strain and recommended
Ms. Touchette take "a few days off work."
She returned to Dr. Akatue the next week, this time with a case manager. Ms.
Touchette stated the right-sided pain improved, but she still had pain, decreased range of
motion and occasional numbness and tingling in her left shoulder and arm. Dr. Akatue
ordered x-rays, which were negative, and made an orthopedic referral. She did not
mention work restrictions then; however, at the next visit she stated that since Ms.
Touchette told her Speedway did not have light duty, she could stay off work until she
saw an orthopedist.
Ms. Touchette testified she spoke to the adjuster for Speedway about the referral,
and he told her that she could go to any orthopedist. Speedway did not refute this. She
stated she then attempted to contact the adjuster several times to confirm scheduling, but
he did not return her calls. She did not hear from him until Speedway denied her claim.
Afterward, Ms. Touchette sought unauthorized treatment at Seven Springs
2
Ms. Touchette's testimony differs from the various written accounts of the incident that were made
before the hearing. Given the emphasis placed on this difference at the hearing, the Court believes it will
be instructive to detail the prior accounts.
2
Orthopedics. 3 Brad Bell, PA-C, noted that "per her history, she was reaching awkwardly
beneath the counter and felt something strain in the left side of her chest" with most of
the pain since migrating to her left shoulder. PA Bell noted ROM limitations and give-
way weakness due to complaints of pain in the left shoulder and left chest wall. He gave
her a steroid injection in her shoulder, recommended a left shoulder MRI and kept her off
work until after the MRI.
Following this initial visit, Ms. Touchette underwent a variety of tests and
treatments. She experienced no relief from steroid injections, pain medicine, muscle
relaxants or physical therapy. A left shoulder MRI did not provide an explanation for her
symptoms.
Ms. Touchette sought a second opinion from Charles Cassidy, PA-C with Sport
Ortho Urgent Care. She told him her injury occurred as she was reaching into a cabinet
with her right arm with her left arm resting in a flexed, abducted position on the counter.
A chest MRI and a cardiology work-up did not reveal any problems. Ms. Touchette then
saw a neurologist and underwent a nerve conduction study of her left arm, which also did
not show any abnormalities that might explain her pain.
Ms. Touchette filed a Petition for Benefit Determination (PBD) with the Bureau
on April 18. In the attached, hand-written affidavit, she described the December 2
incident, stating she felt intense pain when she "opened the cabinet door, bent down with
my left hand on the (blank) and started to reach into the cabinet with my right."
Afterward, Speedway authorized an orthopedic evaluation with Dr. Joseph Weick.
Ms. Touchette stated her pain began as "she was reaching under a desk with her right
hand while she had her left hand holding a table top." He reported his examination was
frustrated by Ms. Touchette's refusal to move her left arm due to pain complaints. Dr.
Weick concluded there was nothing more to offer her and placed her at maximum
medical improvement with a three-percent impairment to the upper extremity due to
shoulder pain.
Ms. Touchette testified she still has excruciating pain that radiates from the left
side of her chest to her left shoulder any time she moves her left arm. She stated the pain
is sometimes so severe it causes her to vomit. She asserted she did not have any
problems with her left shoulder or chest before December 2, 2017. She returned to Seven
Springs following Dr. Weick's evaluation, and PA Bell recommended a shoulder MRI
with contrast.
Findings of Fact and Conclusions of Law
3
Ms. Touchette has only seen physician's assistants at Seven Springs, although orthopedists signed the
records.
3
Ms. Touchette does not have to 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) (2017); McCord v. Advantage Human Resourcing,
2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Before turning to the merits of Ms. Touchette's claim, the Court must first address
her credibility as to her testimony about the December 2 incident. She testified that she
felt intense pain in her chest after reaching to the back of the cabinet and pulling a tight
plug from its outlet. Perhaps this was in response to Speedway's assertion that an injury
caused by mere reaching is idiopathic. In contrast, at least five written statements, two of
which are in Ms. Touchette's own handwriting, provided different accounts. With minor
variations, the written statements indicated that Ms. Touchette's pain began while
bending down and reaching toward the back of the cabinet with her right arm while her
left arm was braced on top of the counter. None mentioned that she felt pain only after
pulling on a tight plug, even though some, like her affidavit, were very detailed.
Ms. Touchette attempted to explain this inconsistency, but her explanations are
unpersuasive. Given the overwhelming weight of contrary evidence, the Court finds that
her testimony about her pain starting when she was pulling on a plug is not credible, and
that the incident occurred as recorded in the written accounts. Further, the Court finds
Ms. Touchette's lack of credibility to be troubling. By demonstrating a willingness to
change her story in an attempt to avoid Speedway's defense, she makes all of her
testimony suspect. The Court strongly admonishes her against doing so again.
Nevertheless, the written accounts contain sufficient detail to allow the Court to consider
her claim based on them. See Lewis v. Molly Maid, 2016 TN Wrk. Comp. App. Bd.
LEXIS 19, at *8 (Apr. 20, 2016) (trial court did not err in ruling in favor of employee,
despite questions regarding employee's credibility, when other evidence supported
employee's position.).
The primary issue here is causation. To prevail, Ms. Touchette must establish she
is likely to prove she suffered an accidental injury that was "caused by a specific incident,
or set of incidents, arising primarily out of and in the course and scope of employment,
and is identifiable by time and place of occurrence." Tenn. Code Ann. § 50-6-
102(14)(A). No one disputes that her pain began in the course and scope of her
employment with Speedway. However, she must also establish that her complaints arose
primarily out of her employment. On this point, Speedway argued Ms. Touchette's claim
must fail because her injury is idiopathic.
"An idiopathic injury is one that has an unexplained origin or cause, and generally
does not arise out of the employment unless some condition of the employment presents a
peculiar or additional hazard." McCaffery v. Cardinal Logistics, 2015 TN Wrk. Comp.
4
App. Bd. LEXIS 50, at *9 (Dec. 10, 20 15) (citations omitted). An idiopathic injury is
only compensable if the "accident originated in the hazards to which the employee was
exposed as a result of performing his job duties." !d. at *10. Speedway argued that,
much like rising from a squatting position, simply reaching out does not constitute a
condition of employment presenting a peculiar or additional hazard. See Willis v. All
Staff, 2015 TN Wrk. Comp. App. Bd., LEXIS 42, at *18 (Nov. 9, 2015)(employee who
injured his knee while rising from a squatting position did not suffer a compensable
injury.).
An injury caused by reaching out one's arm might constitute an idiopathic injury
under certain circumstances; however, the Court finds that is not the case here. Ms.
Touchette was not simply reaching out; she was bent over a low cabinet, her left hand
bracing her body on the counter while she stretched toward the back of the cabinet with
her right hand to reach an outlet. Her body was in an extremely awkward position while
performing her job by checking the outlets. Thus, the Court holds that Ms. Touchette's
December 2 injury arose out of a "peculiar or additional hazard" of her employment and
was not idiopathic.
The Court also disagrees with Speedway's argument that it should be excused
from providing medical care because Ms. Touchette's tests were negative. According to
her unrefuted testimony, she currently treats with Seven Stones Orthopedics, which
recommended a left shoulder MRI with contrast. The fact that no doctor discovered the
source of Ms. Touchette's complaints does not eliminate her need for treatment or
Speedway's obligation to provide it.
However, the Court agrees with Speedway that Ms. Touchette has yet to show she
is likely to prove causation, given that there is no medical opinion on this issue. To
establish causation, a physician must give an opinion that states "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).
At this time, Ms. Touchette has not introduced a doctor's opinion providing
medical causation for her current complaints or that establishes that her medical expenses
were reasonable and necessary for treatment of her work-related injury. Further, she has
not submitted any medical evidence establishing that a work-related injury left her
temporarily disabled. However, this does not excuse Speedway from its obligation to
provide an authorized physician to determine if Ms. Touchette sustained il compensable
injury that requires treatment. The Court holds that while Ms. Touchette has yet to prove
she is likely to prevail in establishing compensability, she has shown she is likely to
prove entitlement to a panel for her asserted injury. See Lewis, at *9.
However, rather than provide a panel of physicians as required by Tennessee Code
5
25
25,
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