The opinion
FILED
Dec 11, 2018
08:51 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
KELLY GAUTREAUX, ) Docket No. 2018-06-0366
)
Employee, )
v. ) State File No. 11346-2017
)
HERMITAGE HALL, )
) Judge Joshua D. Baker
Employer, )
AMENDED1 EXPEDITED HEARING ORDER FOR
MEDICAL AND TEMPORARY DISABILITY BENEFITS
At an Expedited Hearing on October 30, 2018, Ms. Gautreaux requested
temporary disability and medical benefits from head injuries suffered on February 5,
2017.2 Hermitage Hall asserted her condition pre-existed her employment and any
aggravation did not arise primarily out of and in the course and scope of her employment.
For the reasons below, the Court holds Ms. Gautreaux is likely to prove causation of her
injury at a hearing on the merits and orders Hermitage Hall to provide her the requested
benefits.
1
The Court enters this amended order to correct three typographical errors. The errors did not affect the
Court’s ruling. By this order, the Court rescinds it’s previous order and all deadlines for appeal shall run
from the date of this amended order.
2
With the Court’s permission, Hermitage Hall filed a motion to introduce additional medical records
from Ms. Gautreux’s treatment with Pi Beta Phi, and the Court postponed issuing its ruling before hearing
the motion. Ms. Gautreux opposed the motion, arguing that the medical records were not admissible
because they lacked a doctor’s signature or an authenticating affidavit. She also argued the records are
irrelevant to the current dispute. The parties argued the motion on November 15, 2018. The Court denies
the motion because the records are not signed or verified by affidavit. See Tenn. Comp. R. & Regs.
0800-02-21-.14(2) (2018).
History of Claim
Ms. Gautreaux worked as a mental health aid in Hermitage Hall’s residential
facility for troubled teenagers.3 In January 2017, she attempted to restrain a resident from
harming a younger teen. During the incident, the resident punched Ms. Gautreux several
times. She received medical treatment and took three days off work to recover; then
“everything was fine.”
A few weeks later, the same resident recruited other residents to assault a young
teen during a gathering for the Super Bowl. This aggression caused “a riot.” Residents
picked up chairs and assaulted other residents and staff. Ms. Gautreaux and another aid
attempted to restrain the resident, but the resident kicked her in the head before she could
immobilize her. Although stunned, she continued working.
Less than an hour later, after the staff settled the residents down, the resident
attacked Ms. Gautreaux in the dormitory. The resident tackled her, grabbed her hair,
punched her head repeatedly, and dragged her approximately ten feet. Ms. Gautreaux
stopped work immediately and went to Nashville General Hospital. She then had follow-
up care with Concentra. She testified she attempted to return to work under Concentra’s
restrictions but could not stop crying. Hermitage Hall instructed her to go home and
eventually initiated temporary disability benefits.
Hermitage Hall authorized treatment, and Ms. Gautreaux chose otolaryngologist
Dr. Mitchell Schwaber and neurologist Dr. Gary Strickland from panels. Dr. Schwaber
concluded she suffered a vestibular injury from the work assault, assigned one-percent
permanent impairment, and placed her at maximum medical improvement (MMI) on
February 15, 2018. Dr. Strickland diagnosed post-concussion syndrome and
recommended neuropsychological testing.
Dr. Strickland placed Ms. Gautreaux at MMI on August 10, 2017. In his final
medical report, however, he made multiple notations specifying his opinion only
concerned headaches. Despite the MMI declaration, Dr. Strickland recommended Ms.
Gautreux remain “off work until seen by psychiatry.” He referred her to psychiatrist Dr.
Jeffrey Anderson and to “Julie Johnson for Psychotherapy per Neuropsyche treating
recommendations.” He further wrote, “I defer to these post-concussion experts with
respect to need for additional therapy at Pi Beta Phi of Tennessee Rehabilitation Services.
I also defer to these experts with respect to MMI and PPI.”
Hermitage Hall did not authorize Dr. Strickland’s referrals and stopped providing
medical treatment and disability benefits. It denied Ms. Gautreaux’s claim on February
8, 2018, citing multiple prior concussions, including a significant concussion in 2010
2
from playing college soccer. Hermitage Hall based its denial on neurologist Dr. Steven
Graham’s opinion that Ms. Gautreaux’s condition pre-existed her work assault and was
not primarily related to her work injury.
In his deposition, Dr. Graham, whom the employer asked to evaluate Ms.
Gautreux, testified it is “unlikely” that her present condition is primarily related to her
work injury. He reviewed her medical records and said he tested Ms. Gautreaux’s
memory, cognitive abilities, and ability to regulate her emotions by “basically having her
describe her history of what happened to her in great detail” and generally examining her.
He judged her complaints a year post-injury to be “far out of the range of expected” for a
head injury without loss of consciousness. However, he acknowledged that patients who
have previously suffered concussions are “more susceptible to developing future
concussions” and that “a prolonged duration of symptoms” can “sometimes” occur with
subsequent concussions. While he estimated he examined Ms. Gautreaux for about forty-
five minutes, she described a cursory exam lasting ten minutes.
Psychiatrist Dr. Greg James Kyser evaluated Ms. Gautreux at her counsel’s
request. He testified via deposition that her present condition is primarily related to her
work injury and that Dr. Strickland’s recommendations were appropriate for further
medical care. Dr. Kyser explained that Ms. Gautreaux’s previous concussions left her
susceptible to “worsening symptoms” and “at higher risk of developing long-term
difficulties from another concussion.” Regarding her ongoing post-injury complaints, he
explained that “different people do differently and have different degrees of morbidity.”
He testified that she is not at MMI.
Findings of Fact and Conclusions of Law
Ms. Gautreaux need not prove every element of her claim by a preponderance of
the evidence to receive relief at an expedited hearing. Instead, she must present sufficient
evidence that she is likely to prevail at a final hearing. McCord v. Advantage Human
Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). The
Court finds she carried this burden.
Ms. Gautreaux claimed an aggravation of a preexisting brain condition from
previous concussion. However, an aggravation of a preexisting condition is not
actionable “unless it can be shown to a reasonable degree of medical certainty that the
aggravation arose primarily out of and in the course and scope of employment.” Tenn.
Code Ann. § 50-6-102(14)(A) (2018). Regarding an aggravation of preexisting
condition, an employer “takes an employee with all preexisting conditions and cannot
escape liability when the employee, upon suffering a work-related injury, incurs a
disability far greater than if she had not had a preexisting condition.” Kellerman v. Food
Lion, Inc., 929 S.W.2d 333, 335 (Tenn. 1996). Thus Ms. Gautreaux must show she
would likely prevail in proving her workplace accident caused the aggravation and
3
resulted in her need for additional medical treatment. See id. at §§ 50-6-102(14) and 50-
6-239(c)(1).
Ms. Gautreaux argued she was particularly susceptible to suffering another brain
injury because of past sports-related concussions as indicated by Dr. Kyser. She
requested temporary disability benefits from the denial date to present because Dr.
Strickland took her off work until the experts he recommended examined her. Hermitage
Hall countered that Dr. Graham’s opinion demonstrates Ms. Gautreaux’s condition is not
primarily related to her work injury. It also asked the Court to deny her temporary
disability benefits because she is at MMI, as treating physicians have ended “all active
medical treatment,” and the only treatment remaining is Dr. Strickland’s psychiatry
referral. See Tenn. Code Ann. § 50-6-207(1)(E). The Court finds Ms. Gautreux’s
opinion more persuasive.
Although Ms. Gautreux suffered from similar symptoms after her concussion in
college and her work injury, her testimony, medical records, Dr. Strickland’s referral, and
Dr. Kyser’s opinion support the finding that her condition worsened after this work injury
and requires further medical treatment. As an employer, Hermitage Hall accepted Ms.
Gautreaux with all preexisting conditions. It cannot escape liability for the medical
treatment necessitated by the work because she previously suffered similar symptoms.
See Edwards v. Fred’s Pharmacy, 2018 TN Wrk. Comp. App. Bd. LEXIS 9 (Feb. 14,
2018) (Affirming trial court decision that employee would likely prevail in proving
shoplifting altercation aggravated her preexisting mental condition.).
Further, the Court finds Dr. Kyser’s opinion more convincing than Dr. Graham’s.
He examined Ms. Gautreaux more extensively than Dr. Graham and practices psychiatry,
a field Dr. Strickland deferred to for determining MMI and permanent impairment.
Additionally, both experts acknowledged that Ms. Gautreaux’s sports concussions make
her more susceptible to suffer a subsequent brain injury and a prolonged recovery. For
these reasons, the Court holds Ms. Gautreaux is likely to prevail at a hearing on the
merits in proving causation and entitlement to additional medical treatment.
The Court must also determine whether Ms. Gautreaux is likely to prevail in
proving entitlement to temporary disability benefits. To recover temporary total
disability benefits, Mr. Gautreux must show (1) she is totally disabled and unable to work
due to a compensable injury, (2) the work injury and inability to work are causally
connected, and (3) the duration of the disability. Jewell v. Cobble Constr. and Arcus
Restoration, 2015 TN Wrk. Comp. App. Bd. LEXIS 1, at *21 (Jan. 12, 2015). An
employee may recover temporary total disability benefits until the employee is able to
return to work or attains maximum medical improvement. Prince v. Sentry Ins. Co., 908
S.W.2d 937, 939 (Tenn. 1995). The Court holds she carried this burden.
4
In the August 2017 record, Dr. Strickland referred Ms. Gautreaux to a psychiatrist
for further evaluation and took her off work “until seen by psychiatry.” The Court
observed Ms. Gautreaux’s mental fatigue and difficulty regulating emotions and anxiety,
particularly after prolonged testimony. The Court finds her testimony credible, including
her testimony that she cannot work. Given Dr. Kyser’s opinion, Dr. Strickland’s opinion
that she should not work until evaluated by a psychiatrist, and her own testimony, the
Court finds Ms. Gautreaux would likely prevail in proving her work injury temporarily
and totally disabled her from working from February 8, 2018, until present, which is
forty-three weeks. At Ms. Gautreax’s compensation rate, this amounts to $17,157.00 in
temporary total disability benefits.
For completeness, the Court will also address Hermitage Hall’s two defenses to
Ms. Gautreux’s temporary disability benefits claim, neither of which is persuasive. First,
Hermitage Hall contended Ms. Gautreaux’s petition for benefit determination (PBD)
lacked the specificity to satisfy Rule 8 of the Tennessee Rules of Civil Procedure, as she
simply checked a box that read, “Employee has not been paid for missing work[.]”
Regarding Rule 8, the Court cannot read and evaluate Ms. Gautreaux’s PBD in a vacuum.
She asserted Hermitage Hall failed to pay her for missing work, which is exactly what
happened. Under the circumstances, the Court cannot find her PBD insufficiently
provided notice that she intended to seek relief for Hermitage Hall’s termination of her
temporary disability benefits.
Additionally, Hermitage Hall argued Ms. Gautreaux cannot recover temporary
disability benefits because the law presumes her to be at MMI as “all active medical
treatment” has ended. See Tenn. Code Ann. § 50-6-207(1)(E). The Court disagrees. Dr.
Strickland referred Ms. Gautreux for further treatment and deferred to the providers for
determination of MMI and permanent impairment. Hermitage Hall declined to provide
the additional treatment. Consequently, the Court cannot conclude that all active medical
treatment ended, or that Ms. Gautreaux reached MMI.
The Court holds Ms. Gautreaux is likely to prevail at a final hearing in proving
causation of her injury, and in proving her entitlement to ongoing medical benefits and
temporary total disability benefits.
It is ORDERED as follows:
1. Hermitage Hall shall provide Ms. Gautreaux the medical treatment
recommended by Dr. Strickland.
2. Hermitage Hall shall pay Ms. Gautreux accrued temporary total disability
of $17,157.00, and shall continue payments at her weekly rate of $399.00
until she is released to return to work or placed at MMI.
5
3. This matter is set for a status conference on Monday, February 11,
2019, at 10:00 a.m. (CST). The parties or their counsel must call (615)
741-2113 or (855) 874-0474 toll-free to participate. Failure to call may
result in a determination of the issues without that party’s participation.
4. Unless interlocutory appeal of the Expedited Hearing Order is filed,
compliance with this Order must occur no later than seven business days
from the date of entry of this Order as required by Tennessee Code
Annotated section 50-6-239(d)(3). The Insurer or Self-Insured Employer
must submit confirmation of compliance with this Order to the Bureau by
email to WCCompliance.Program@tn.gov no later than the seventh
business day after entry of this Order. Failure to submit the necessary
confirmation within the period of compliance may result in a penalty
assessment for non-compliance. For questions regarding compliance,
please contact the Workers’ Compensation Compliance Unit via email at
WCCompliance.Program@tn.gov.
ENTERED ON DECEMBER 11, 2018.
______________________________________
Judge Joshua Davis Baker
Court of Workers’ Compensation Claims
6
APPENDIX
Exhibits:
1. Medical records
2. Dr. Steven Graham’s deposition transcript page 9
3. Ms. Gautreux’s interrogatory responses
4. Medical records pages 170-176
5. Dr. A. Lee Lewis’ letter dated March 27, 2018
6. Ms. Gautreux’s Rule 72 declaration
7. Ms. Gautreux’s deposition transcript
8. Dr. Graham’s deposition transcript
9. Dr. James G. Kyser’s deposition transcript
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Hermitage Hall’s Prehearing Brief
5. Hermitage Hall’s Motion for Leave to File Post Hearing Brief
6. Ms. Gautreux’s Response to Motion for Leave to File Post Hearing Brief
7
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 December 11, 2018
Name Certified Fax Email Service sent to:
Zachary Wiley, X zwiley@forthepeople.com
Employee’s Attorney rforrest@forthepeople.com
Chris Brooks, X crbrooks@mijs.com
Greg Fuller; ghfuller@mijs.com
Employer’s Attorneys
______________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
8
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.
.
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