The opinion
FILED
Mar 19, 2019
12:37 PM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT CHATTANOOGA
Nathalie Bridges, ) Docket No.: 2018-01-0771
Employee, )
v. ) State File No.: 13588-2018
Lowe's Home Center, Inc., )
Self-Insured Employer. ) Judge Audrey Headrick
EXPEDITED HEARING ORDER
(DECISION ON THE RECORD)
This matter came before the Court on Nathalie Bridges's Request for an Expedited
Hearing on the record. 1 The issue is whether Ms. Bridges is likely to establish at trial that
she is entitled to medical and temporary disability benefits for a left-ankle/foot injury.
Lowe's disputes her entitlement to benefits, asserting that intervening falls caused the
need for further treatment. For the reasons below, the Court holds Ms. Bridges is entitled
to the requested benefits.
History of Claim
While working at Lowe's on February 8, 2018, a co-worker pushed a table into
Ms. Bridges's left ankle. Lowe's authorized treatment with a provider who diagnosed an
avulsion fracture and prescribed an open-toed boot. Lowe' s provided a panel, and Ms.
Bridges selected orthopedist Dr. Carl Osborn.
Dr. Osborn initially took Ms. Bridges off work. While keeping her in the boot, Dr.
Osborn also suggested she attempt to wear close-toed shoes. Dr. Osborn's records reflect
Ms. Bridges told him that Lowe's required her to wear close-toed shoes at work. Lowe's
paid her temporary disability benefits at the weekly rate of$216.96.
1
The Court issued a docketing notice allowing the parties until March 14 to file objections or submit
position statements. Lowe's did not request an evidentiary hearing, and the Court determined it needed
no additional evidence to decide the issue.
1
Dr. Osborn's records discuss Ms. Bridges's efforts to wean from the boot. At her
April 2 visit, she reported that she "[w]as doing well until she was trying to wean away
from the boot and had slipped and twisted her ankle again, which re-aggravated the
previous complaints." Dr. Osborn cautioned Ms. Bridges "on going without the [boot]"
but noted she could begin wearing an ankle support, which fit inside her shoe. By April
30, he released her to work with restrictions.
Ms. Bridges's efforts to return to work were unsuccessful. After two weeks, she
returned to Dr. Osborn wearing her boot and complaining of increased pain due to
working long hours on her feet. He took her off work and ordered an MRI. Despite
normal MRI findings, Dr. Osborn diagnosed possible sinus tarsi syndrome based on
continued pain and tenderness.
In June, Lowe's sent Ms. Bridges to orthopedist Dr. Thomas Koenig for an
independent medical evaluation (IME). Dr. Koenig reviewed some, but not all, of Dr.
Osborn's records and provided the following diagnoses attributable to the February 8
injury: (1) contusion with superficial laceration; and (2) neuropraxia of multiple
superficial sensory nerves. He found Ms. Bridges was not at maximum medical
improvement (MMI); suggested restrictions, including wearing the boot; and,
recommended conservative treatment.
When Ms. Bridges next saw Dr. Osborn on July 9, he recommended surgery for
sinus tarsi syndrome. Lowe's immediately consulted Dr. Koenig, who denied the
reasonableness and necessity of the recommended surgery. He based this opinion on the
lack of a diagnostic injection of lidocaine/Depo-Medrol in the sinus tarsi to validate her
clinical findings.
The next day, Ms. Bridges slipped while wearing her boot on a wet floor and
caught herself on a railing. She sought emergency treatment for severe back and
bilateral-ankle pain. After taking x-rays, the emergency provider diagnosed her with
low-back pain and ankle sprains. On the same day, Lowe's stopped Ms. Bridges's
temporary disability benefits, with the exception of $61.99 for July 17 and 18, and also
ended all medical treatment. 2
Shortly after her fall, Ms. Bridges returned to Dr. Osborn on her own. She
disclosed her fall and resulting back, hip, and bilateral-ankle pain and stated her primary
complaint was back pain. Dr. Osborn recommended a second opinion by his associate,
Dr. Eric Clarke, after noting Ms. Bridges continued to wear the boot due to sinus tarsi
pam.
2
Lowe's denied the claim without filing either a Notice of Controversy or Notice of Denial. See
Affidavit ofNathalie Bridges.
2
Dr. Clarke noted that Ms. Bridges's recent fall "is not related to her left foot pain
which she had prior." He also agreed with Dr. Osborn's diagnosis of left-ankle sinus
tarsi syndrome and the surgery recommendation.
Dr. Osborn completed a Form C-32 Standard Form Medical Report with attached
correspondence. He described Ms. Bridges's February 8 left-ankle injury as a ligament
sprain and sinus tarsi syndrome. Dr. Osborn indicated the February 8 incident was "more
likely than not, primarily responsible for the injury or primarily responsible for the need
for treatment." Dr. Osborn stated the recommended surgery is reasonable and medically
necessary, and he kept Ms. Bridges off work until after surgery. He provided his
opinions after reviewing the July 10 hospital record and Dr. Koenig's IME and
addendum.
Ms. Bridges asked the Court to order Lowe's to authorize the recommended
surgery, reinstate her temporary disability benefits, assess a 25% penalty for non-
payment of temporary disability benefits, and pay attorney fees for its wrongful denial of
the claim. Although Lowe's did not file a response, the Dispute Certification Notice
(DCN) states that it contended that the recommended medical treatment is not related to
the February 8 injury due to "intervening falls."
Findings of Fact and Conclusions of Law
Standard Applied
To prevail at an expedited hearing, Ms. Bridges must provide sufficient evidence
to show she would likely to prevail at a hearing on the merits in proving her claim for
medical and temporary disability benefits. See Tenn. Code Ann. § 50-6-239(d)(l)
(20 18). The Court holds she met this burden.
Medical Benefits
To receive medical benefits, Ms. Bridges must show, to a reasonable degree of
medical certainty, that the February 8, 20 18 incident "contributed more than fifty percent
(50%) in causing the ... disablement or need for medical treatment, considering all
causes." As the panel physician, the law presumes Dr. Osborn's opinion regarding
causation to be correct unless rebutted by a preponderance of the evidence. Tenn. Code
Ann.§ 50-6-102(14).
Dr. Osborn concluded that Ms. Bridges's left-ankle condition and need for
treatment arose primarily from the February 8 incident at Lowe's. He reached this
conclusion even after knowing of her July 10 fall and reviewing the medical records from
that fall as well as Dr. Koenig's IME and addendum.
3
Dr. Koenig's opmwn suggested that Dr. Osborn should provide additional
conservative/diagnostic treatment before surgery. He did not contradict Dr. Osborn's
opinion that Ms. Bridges's work-related injuries required additional medical treatment,
including surgery. Although Dr. Koenig disagreed with Dr. Osborn's surgical
recommendation, he provided work-related diagnoses, stated she was not at MMI,
suggested restrictions, and recommended further treatment. Given these facts, the Court
accepts the opinion of Dr. Osborn and holds Ms. Bridges is likely to prevail at a hearing
that she is entitled to additional medical treatment, including surgery, for her left ankle.
Temporary Disability Benefits
Ms. Bridges also requested temporary disability benefits. To receive temporary
total disability benefits, she must prove ( 1) she became disabled from working due to a
compensable injury; (2) a causal connection exists between the injury and her inability to
work; and (3) she established the duration of her disability. Jones v. Crencor Leasing
and Sales, TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11, 2015). Concerning
temporary partial disability benefits, Ms. Bridges is eligible for benefits if she earned less
than her average weekly wage due to work restrictions. See Tenn. Code Ann. § 50-6-
207(2)(A).
Dr. Osborn kept Ms. Bridges off work until after she undergoes surgery. While
Dr. Koenig did not recommend that she stay completely off work, he suggested restricted
duty wearing her open-toed boot. Lowe's did not dispute Ms. Bridges's assertion that it
prohibits employees from wearing open-toed shoes. Therefore, whether classified as
temporary total or temporary partial disability, Ms. Bridges is entitled to weekly benefits
from July 10, 2018, forward.
Penalty Unit Referral
The Penalty Program is specifically authorized to assess penalties under the
Workers' Compensation Law as well as the General Rules of the Workers' Compensation
Program. The Court finds that Lowe's is subject to possible penalty assessments under
Tennessee Code Annotated section 501-6-118 for the following:
• Lowe's bad-faith denial of Ms. Bridges's claim without supporting
medical proof;
• Lowe's failure to file either a Notice of Controversy or Notice of Denial
of Claim when it stopped Ms. Bridges's medical treatment and temporary
disability benefits;
• Lowe's failure to timely provide treatment recommended by Dr. Osborn,
the authorized physician; and,
• Lowe's wrongful failure to pay Ms. Bridges's temporary disability
benefits despite Dr. Osborn and Dr. Koenig both indicating that she
4
remained off work and/or on restricted duty while wearing an open-toed
boot.
Therefore, the Court refers this matter to the Compliance Program for consideration of
penalties.
Non-Payment or Late Payment of Temporary Disability Benefits
Ms. Bridges requested that the Court assess a twenty-five percent penalty for
Lowe's non-payment of temporary disability benefits. Tennessee Code Annotated
section 50-6-205(b)(3) authorizes a workers' compensation judge to assess a twenty-five-
percent penalty when "an employer, trust or pool or an employer's insurer fails to pay, or
untimely pays, temporary disability benefits within twenty (20) days after the employer
has knowledge of any disability that would qualify for benefits under this chapter."
However, this section also provides Lowe's the opportunity to argue why the Court
should not issue a penalty. Therefore, Lowe's shall respond on or before Thursday,
March 28, 2019, stating why the Court should not assess this civil penalty for
nonpayment of past-due temporary disability benefits.
Attorney's Fees
Ms. Bridges also requested that the Court award her attorney's fees and costs.
Tennessee Code Annotated section 50-6-226(d)(l)(B) authorizes the Court to award fees
and costs under the following circumstances when an employer:
Wrongfully denies a claim or wrongfully fails to timely initiate any of the
benefits to which the employee or dependent is entitled ... if the workers'
compensation judge makes a finding that the benefits were owed at an
expedited hearing or compensation hearing. For purposes of this
subdivision (d)( 1)(B), "wrongfully" means erroneous, incorrect, or
otherwise inconsistent with the law or facts.
The Workers' Compensation Appeals Board previously stated that the court must
consider the employer's denial decision "at the time the denial decision was made" as
well as "additional information or subsequent events that bear on the denial decision."
Andrews v. Yates Service, LLC, 2018 TN Wrk. Comp. App. Bd. LEXIS 22, at *13 (May
8, 2018). For the reasons below, the Court concludes Lowe's wrongfully denied Ms.
Bridges's claim.
The Court finds that the circumstances of Lowe's handling of this claim justify
awarding attorney's fees and costs at this interlocutory stage. First, the DCN indicates
that Lowe's denied Ms. Bridges's claim due to "intervening falls." With no apparent
investigation or contrary medical proof, Lowe's denied the claim despite the presumption
of correctness afforded Dr. Osborn regarding causation. Second, Lowe's maintained its
5
denial even though its own IME physician, Dr. Koenig, causally related her left-foot
diagnoses to the February 8 injury and recommended additional treatment. Third,
Lowe's stopped Ms. Bridges's temporary disability benefits despite Dr. Osborn taking
her completely off work and Dr. Koenig placing her on restricted duty with use of her
boot. Finally, Lowe's denied the claim based on its own assumption, unsupported by any
medical proof, that her July 10 fall broke the chain of causation. Regardless of the
ultimate resolution of this claim, those facts will not change, so this case falls within the
limited circumstances supporting an award of fees and cost at the interlocutory stage. See
Travis v. Carter Express, Inc., 2018 TN Wrk. Comp. App. Bd. LEXIS 67, at *25 (Dec.
21, 20 18). Therefore, the Court awards reasonable attorney fees and costs to Ms.
Bridges.
IT IS, THEREFORE, ORDERED as follows:
1. Lowe's shall pay past-due temporary total disability benefits at the weekly
compensation rate of $216.96 in the lump-sum amount of $7,841.55 for the period
from July 10, 2018, to March 19, 2019.
2. Lowe's shall continue to pay to Ms. Bridges temporary disability benefits in
regular intervals until she is no longer eligible for those benefits by reaching MMI,
by returning to work at a wage equal to or greater her average weekly wage, or by
release without restrictions by Dr. Osborn. Lowe's representative shall
immediately notify the Bureau, Ms. Bridges, and Ms. Bridges's counsel, of the
intent to terminate temporary disability benefits by filing Form C-26, citing the
basis for the termination.
3. Lowe's shall provide Ms. Bridges additional medical treatment, including surgery
as recommended by Dr. Osborn, for her left-ankle/foot injury under Tennessee
Code Annotated section 50-6-204.
4. Under Tennessee Code Annotated section 50-6-226(d)(l)(B), the Court awards
reasonable attorney fees and costs incurred by Attorney Jay Kohlbusch. Mr.
Kohl busch shall file a supporting affidavit of his time and any expenses with the
Clerk.
5. This matter is set for a Status Hearing on Friday, May 31, 2019, at 10:00 a.m.
Eastern Time. You must call 423-634-0164 or toll-free at 855-383-0001 to
participate. Failure to call may result in a determination of the issues without your
participation.
6. 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
6
of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3).
The 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.
7. For questions regarding compliance, please contact the Workers' Compensation
Compliance Unit via email at WCCompliance.Program@.tn.gov.
ENTERED March 19,2019.
~ADRICK
Workers' Compensation Judge
7
APPENDIX
Exhibits:
1. Affidavit of Nathalie Bridges
a. February 21, 2018 Starr Regional Medical Center record
b. Medical records of Dr. Carl Osborn
c. Dr. Thomas Koenig's June 6, 2018 Independent Medical Evaluation
d. Dr. Koenig's IME addendum
e. July 10, 2018 Starr Regional Medical Center record
f. Second opinion of Dr. Eric Clark
g. September 11, 20 18 correspondence of Attorney Jay Kohl busch to
Sedgwick CMS claims representative, Terrence Woodley
h. September 18, 2018 correspondence of Mr. Woodley to Mr. Kohlbusch
i. Dr. Osborn's Form C-32
2. Affidavit of Mr. Kohlbusch
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Exhibit List
5. Docketing Notice
6. Employee's Position Statement
8
CERTIFICATE OF SERVICE
I hereby 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 March 19,2019.
Name Certified Email Service sent to:
Jay Kohl busch, X kohlbuschlaw@hotmail.corn
Employee's Attorney
Chris Brown, X chris. browncmleitnerfirm .com
Employer's Attorney
Compliance Program X WCComgliance.Qrogram@tn.gov
fu~~
PENN~UM, COURT CLER:K\
~~~
wc.courtclerk =,tn.gov
9
E pedited 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:
I . 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.
EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers' Compensation
www.tn .gov/ labor-wfd/wr.omp.shtml
wc.courtclerk@tn.gov
1-800-332-2667
Docket#: - - - - - - -- - -
State File #/YR: - - - - - - -
Employee
v.
Employer
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:
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):._ _ __ _ _ _ _ At 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. 10/18 Page 1 of 2 RDA 11082
Employee Nam e: _ __ _ __ _ _ _ _ __ SF#: _ _ __ _ _ _ _ _ _ DOl : _ _ _ __ _
Appellee(s)
Appellee (Opposing Party)·.....__ _ _ _ _ _ _ _ At Hearing: DEmployer DEmployee
Appellee's Address : _ _ _ _ __ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ _ _ _ __
Appellee's Phone :,___ _ _ _ _ _ _ _ _ _ _ _ __ ,Email:_ _ _ _ _ _ _ _ _ _ _ _ __
Attorney's Name:,___ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ aPR#: _ _ _ _ _ _ __
Attorney's Address:...:- - - - - - - - - - - - - - - - - - - - Phone:--------
Attorney's City, State & Zip code: - - - - - - - - - - - - - - - - - - - - - - - - -
Attorney's E m a i l : , _ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
!,,_ _ _ _ _ _ _ _ _ _ _ _ _ _ __, 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. 10/18 Page 2 of 2 RDA 11082
Tennessee Bureau of Workers' Compensation
220 French Landing Drive, 1-B
Nashville, TN 37243-1002
800-332-2667
AFFlDAVIT 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 Comp.$ per month beginning
Other $. per month beginning
LB-11 08 (REV I I115) RDA 11082
9. My expenses are:
RenUHouse 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 $ _ __ __ De·scribe:_ _ _ _ _ _ _ _ _ __
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 Expire~: _ _ _ _ _ __ _
LB-11 08 (REV 11 /15) RDA 11082