Opinion

Weekley, Amy v. Davidson Transit Authority

  • 2019 TN WC 19
Court
Tennessee Court of Workers' Compensation Claims
Filed
Feb 6, 2019
Status
Published
On the bench
Joshua Davis Baker
Cited by
0 cases

The opinion

FILED

Feb 06, 2019

11:33 AM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT NASHVILLE

AMY WEEKLEY ) Docket No. 2018-06-1107

Employee, )

)

v. ) State File No. 97738-2016

)

DAVIDSON TRANSIT AUTHORITY, )

Employer. ) Judge Joshua Davis Baker

)

EXPEDITED HEARING ORDER

The Court convened an expedited hearing on February 5, 2019, to consider

whether Davidson Transit Authority (DTA) should be required to provide Ms. Weekley

medical treatment for a right-shoulder injury she allegedly incurred while changing a bus

tire. For the reasons below, the Court holds she is not entitled to the requested benefits.

Claim History

Ms. Weekley, a DTA employee, experienced a “burning sensation” in her elbows

and right shoulder on November 25, 2016, as she changed a bus tire. She testified the tire

weighed between 250 and 300 pounds. DTA authorized emergency care at St. Thomas

and follow-up care with Concentra.

Concentra diagnosed bilateral elbow strains—referred to by the provider as “tennis

elbow”—at the first visit. The first visit notes contain no mention of shoulder pain, but

the notes from the second visit stated that Ms. Weekley complained of “pain going into

her RT shoulder now.” Concentra provided pain medication and sent her to physical

therapy. The therapy improved the condition of her elbows to a degree but did not

provide complete relief. Concentra released her to return to work at full duty.

Ms. Weekley’s pain continued, so she saw Dr. Matthew Willis through her private

insurance in January 2017. In February, DTA provided a panel including Dr. Willis, and

she chose him as the authorized treating physician.

After several months of conservative treatment proved ineffective, Dr. Willis

operated on both elbows. He assigned a six-percent whole body impairment rating for

her elbow injuries.1

Dr. Willis did not operate on Ms. Weekley’s shoulder but did provide an injection

to ease her pain; he also ordered an MRI in November 2017.2 The MRI revealed a

“complex” superior labrum tear. According to a letter from DTA’s counsel signed by Dr.

Willis, Ms. Weekley’s shoulder injury resulted from degenerative conditions and arthritis

as opposed to the workplace accident.3 He advised Ms. Weekley to seek treatment for

her shoulder outside of workers’ compensation.

Ms. Weekley sought treatment for her shoulder from Dr. John Tullos, who

determined that “[m]ore likely than not, her right shoulder pain is a direct result of her

workplace injury in 2016[.]” In forming his opinion, he emphasized Ms. Weekley’s lack

of “significant” shoulder pain before the accident, her memory of the accident, and her

reporting of shoulder pain right after the accident. Dr. Tullos recommended physical

therapy.

Ms. Weekley testified that she experienced no right shoulder pain until after the

2016 injury. The records reflect that she reported shoulder pain to all of her providers.

Ms. Weekley also claimed she reported the condition at each doctor’s visit. To explain

why the providers did not document every complaint, Ms. Weekley testified the medical

providers failed to keep accurate records. She also claimed Dr. Willis did not relate her

shoulder condition to the work injury because he failed to properly treat it.

Findings of Fact and Conclusions of Law

To prevail at an expedited hearing, Ms. Weekley must provide sufficient evidence

to show that she would likely prevail at a hearing on the merits. See Tenn. Code Ann. §

50-6-239(d)(1) (2018). She failed to do so.

This expedited hearing centers on medical causation of Ms. Weekley’s right-

shoulder condition. To establish medical causation, she must prove “to a reasonable

1

DTA and Ms. Weekley settled the November 25, 2016 claim for her bilateral elbow injuries with

lifetime future medical benefits. The settlement explicitly excluded her right shoulder but reserved her

right to pursue a claim for benefits for that condition.

2

The medical notes show that Ms. Weekley continued to complain of shoulder pain throughout the course

of physical therapy.

3

Dr. Willis reaffirmed this opinion in a subsequent letter.

2

degree of medical certainty that [the injury] contributed more than fifty percent (50%) in

causing the injury, aggravation or need for medical treatment, considering all causes.” A

“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.” Id.

at § 50-6-102(14)(C)-(D). Thus, causation must be established by expert medical

testimony.

The authorized treating physician, Dr. Willis, determined Ms. Weekley’s shoulder

condition occurred as a result of non-work-related arthritis and degenerative conditions.

His causation opinion carries a presumption of correctness, and the presumption can only

be overcome by contrary expert medical proof. See id. at § 50-6-102(14)(E).

Ms. Weekley countered with Dr. Tullos’s opinion that the accident caused her

shoulder condition. However, his opinion does not outweigh Dr. Willis’s, as both

physicians relied on identical evidence to reach contrary conclusions. Dr. Tullos relied

on Ms. Weekley’s relation of the events, the MRI results, and her pre-injury history that

was absent of shoulder pain. However, the evidence showed that Dr. Willis relied on the

same evidence when forming his opinion. In addition, Dr. Willis had the opportunity to

treat Ms. Weekley over a longer period of time. In the end, both doctors looked at the

same evidence and reached opposite conclusions. Without further evidence of why they

reached opposite conclusions, the Court holds Dr. Tullos’s opinion is insufficient to

overcome the presumption of correctness afforded Dr. Willis’s opinion.

Additionally, while the Court finds Ms. Weekley testified credibly, her lay

testimony even when coupled with Dr. Tullos’s opinion does not overcome the

presumption of correctness attached to Dr. Willis’s opinion. The Court believes Ms.

Weekley had no problems with her shoulder before the accident and that she experienced

pain afterward. But pain following an accident does not mean the accident primarily

caused the underlying injury. The Court, therefore, holds Ms. Weekley would not likely

prevail at a hearing on the merits in proving medical causation of her shoulder injury and

denies her claim for medical treatment for that condition.

It is ORDERED as follows:

1. Ms. Weekley’s requested relief is denied at this time.

2. This matter is set for a status conference on Monday, May 13, 2019, at 10:00

a.m. (CDT). You must call 615-741-2113 to participate in the Hearing.

Failure to call may result in a determination of issues without your

participation.

ENTERED FEBRUARY 6, 2019.

3

_____________________________________

Joshua Davis Baker, Judge

Court of Workers’ Compensation Claims

4

APPENDIX

Exhibits:

1. Medical Records

2. Affidavit of Amy Weekley

3. Choice of Physician Form

4. MRI Report

5. Settlement Agreement Dated August 2, 2018

6. Letter Dated October 25, 2018

7. Letter Dated January 11, 2019

Technical Record:

1. Petition for Benefit Determination

2. Dispute Certification Notice

3. Request for Expedited Hearing

4. Ms. Weekley’s Prehearing Brief

5. DTA’s Prehearing Brief

5

CERTIFICATE OF SERVICE

I certify that a true and correct copy of this Order was sent to the following

recipients by the following methods of service on February 6, 2019.

Name Certified Via Service sent to:

Mail Email

Amy Weekley, X amyweekley@yahoo.com

Self-represented

Employee

David Drobny, X ddrobny@manierherod.com

Employer’s Attorney

_____________________________________

Penny Shrum, Clerk

Court of Workers’ 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.

.

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

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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