The opinion
FILED
Apr 03, 2019
02:34 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 FOR MEDICAL BENEFITS
This case came before the Court for an Expedited Hearing on March 27, 2019.
The issues are whether Ms. Touchette provided sufficient medical proof to establish that
her left shoulder complaints arose primarily out of and in the course and scope of
employment, and if so, to which benefits is she entitled. 1 The Court holds Ms. Touchette
is likely to succeed at trial in establishing medical causation and orders Speedway to
provide her continuing medical benefits.
History of Claim
At a previous expedited hearing, the Court held that Ms. Touchette was likely to
prevail in proving a work injury to her left shoulder that would entitle her to treatment
with a previously unauthorized orthopedist at Seven Springs Orthopedics. The
orthopedist would determine whether Ms. Touchette's current left shoulder complaints
arose primarily out of and the course and scope of her employment. The Court also held
that she did not have sufficient medical evidence to establish entitlement to temporary
disability benefits. The Appeals Board affirmed.
1
Before the hearing, the parties agreed that these were the only issues to be determined at this time. The
parties also agreed to limit new evidence to the records and deposition of Dr. Brandon Downs with
argument to be made through briefs and by telephone.
1
Afterward, Speedway had difficulty complying with the Court's order. Seven
Springs refused to provide an orthopedist to treat Ms. Touchette. Other attempts at
finding an orthopedist also failed. She finally saw Dr. Brandon Downs on her own.
After examining Ms. Touchette and reviewing her medical records and an MRI,
Dr. Downs recommended a left shoulder arthroscopy to repair a perceived glenoid
labrum tear. He also wrote a causation letter. Based on her history, he stated to a
reasonable degree of medical certainty that the shoulder injury is "51% or greater related
to the work injury." Dr. Downs did not provide an opinion on pre-surgery work
restrictions.
Speedway then took Dr. Downs' deposition. Early on, Speedway's Counsel asked
if Dr. Downs stated in his causation letter that Ms. Touchette's shoulder condition was
primarily caused by the work incident. Dr. Downs confirmed that he did. Counsel asked
Dr. Downs to explain his understanding of "51 percent or greater related to or caused by"
the work injury. He responded that it means "it is slightly more likely than not."
Counsel then queried whether "it's more likely than not to have been caused by the
accident," to which he answered, "Right."
On further examination, Dr. Downs admitted that he could not differentiate
between the acuteness and chronicity of her left shoulder injury based on the MRI. He
also conceded that Ms. Touchette's initial records only referred to chest pain without a
description of left shoulder problems. Following these concessions, Counsel asked Dr.
Downs whether he still maintained that Ms. Touchette's condition "more likely than not"
arose from her work injury. He responded, "Yeah," and then explained that, while
documented reports of initial shoulder pain would have made it clearer, she "could have
definitely" had chest pain that masked her shoulder problems at the outset.
Counsel then pressed further by asking Dr. Downs if he received training
regarding the causation standard. When Dr. Downs said yes, the following exchange
occurred:
Q: Okay. So you understand that the primarily-caused-by is different
from the more-likely-than-not standard?
A: Uh-huh. Right.
Q: Does that make sense?
A: It does.
Mr. Callison then asked whether Dr. Downs could state within a reasonable degree of
medical certainty that the conditions that necessitate surgery were primarily caused by
work. Dr. Downs stated he could not, since it would be "difficult to say primarily
responsible."
2
Ms. Touchette then examined Dr. Downs. She also asked about causation:
Q: Okay. So I'm just going to ask you to reiterate once again. So you
do believe this [shoulder injury] is 51 percent caused-or work related?
A: Yeah, as my causation stated-that letter stated, yes.
On redirect, Counsel revisited the issue by advising Dr. Downs that he said earlier
that Ms. Touchette's condition "could be" primarily related to her employment:
A: And that was in reference to that work comp regulation or whatever
you call it that we've talked about where it's a higher burden.
Q: Right.
A: That's the primarily responsible.
Q: You're saying that think it's more likely than not that her shoulder
condition occurred at work?
A: Right.
Q: But you're saying that you can't state that it's more than 50 percent
the shoulder is caused by the work.
A: Right. I guess that's that higher burden of the problem, yeah.
On recross, Ms. Touchette made one more attempt to determine whether her
condition is 51% work-related:
A: So, it's sort of two different things. And I'm not a lawyer, so I have
to navigate these things as best I can. But the causation letter states exactly
what it states. You know, you both have that letter. And I think what
Counsel is asking me is that predominant origin of the problem, which is a
higher burden than that. That's the one that it's a little hard to say, that like
all the shoulder problems are originating from the time of the injury, which
is a little different than saying it's more likely than not work related. (to
Speedway's Counsel) Fair?
Counsel: I'm not answering questions here.
Dr. Downs: But that is more in the work comp regulation. It's not really
asking for an opinion. That's my understanding of what I'm trying to
answer; I'll put it that way.
Finally, with regard to temporary disability benefits, Dr. Downs outlined the
restrictions Ms. Touchette would have after surgery, but he did not provide an opinion as
3
to any recommended restrictions before surgery. 2
Findings of Fact and Conclusions of Law
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) (2018); McCord v. Advantage Human Resourcing,
2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
The primary issue here is causation. Speedway does not dispute that Ms.
Touchette could likely prove she sustained a work injury on December 2, 2017.
However, it contends that she failed to provide medical proof that her current shoulder
complaints and need for surgery arose primarily out of and in the course and scope of
employment. To do that, she must establish she is likely to prove "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."
Reasonable degree of medical certainty means "it is more likely than not considering all
causes, as opposed to speculation or uncertainty." See Tenn. Code Ann.§ 50-6-102(14).
Dr. Downs' causation letter stated that he believed Ms. Touchette's shoulder
condition is "51% or greater related to her work injury." As a result, Speedway took Dr.
Downs' deposition to explore the issue further. At first, he maintained that the shoulder
condition was "more likely than not" to have been caused by the work incident, despite
the fact that Ms. Touchette's initial records only record chest pain and he could not
differentiate between an acute and chronic injury from the MRI. It was not until
Speedway's Counsel asked him if he understood that "primarily-caused-by is greater than
the more-likely-than-not standard" that his opinion became less than clear.
However, Counsel's statement of the applicable standard is incorrect. "Primarily-
caused-by" is not greater than "more likely than not" under section 50-6-102. Indeed, the
phrases "reasonable degree of medical certainty," "more than fifty percent," and "more
likely than not" are simply used to define and clarify the "arising primarily out of and in
the course and scope of employment" standard in section 50-6-1 02(A).
Upon hearing the incorrect standard, Dr. Downs first responded that he could not
say whether the work injury was "primarily responsible" for Ms. Touchette's shoulder
condition. However, on cross-examination, Dr. Downs agreed with Ms. Touchette that
her condition was, as stated in his letter, "51 percent caused-or work related." Dr.
2
The only references to pre-surgery restrictions are from Ms. Touchette's family physician in December
2017, who placed her on temporary restrictions. Later, when Ms. Touchette told her that Speedway did
not have light duty, her physician took her off work until she had an MRI. Ms. Touchette also later saw
an unauthorized physician's assistant, who took her off work until she had an MRI.
4
Downs' testimony as to causation continued to seemingly bounce from one position to
another depending on who asked the question; however, he repeatedly referred back to
the "higher burden" Counsel described earlier.
During his last exchange with Ms. Touchette, Dr. Downs made a statement that
exemplifies to the Court the confusion caused by Counsel's incorrect statement of the
law: "That's the one that it's a little hard to say, that like all the shoulder problems are
originating from the time of that injury, which is a little different than saying it's more
likely than not work-related." He then asked Counsel if that was "fair" and finally stated
that it was his understanding that the "work comp regulation," which presumably
contained the inaccurate standard, was not "really asking for an opinion."
The Court finds that Counsel's misstatement of the law colored Dr. Downs'
testimony, since he consistently referred to the "higher standard" afterward. Thus, the
Court will give little weight to those opinions. Instead, the Court will focus on the
opinions Dr. Downs offered before the statement was made. In his causation letter, Dr.
Downs stated that Ms. Touchette's injury was 51% or greater related to the work
incident. He followed up this statement early in his deposition by stating the shoulder
condition was more likely than not caused by the incident.
A medical opinion does not have to exactly track statutory language, so long as the
opinion combined with the circumstances of the claim are sufficient to establish the
employee is likely to prevail on causation. See Lee v. W Plastics, 2016 TN Wrk. Comp.
App. Bd. LEXIS 53, at *8-9 (Oct. 20, 2016). The Appeals Board recently addressed this
issue in Miller v. Old Folks Mission Ctr., Inc., 2019 TN Wrk. Comp. App. Bd. LEXIS 1,
at *18-22 (Jan. 9, 2019).
In Miller, the treating physician stated he considered the employee's condition a
"work-related injury." The Board held that, while it would not be sufficient to prove
causation at a compensation hearing, the opinion was enough to establish the likelihood
of proving causation, especially when coupled with the employee's history and the lack
of contrary medical evidence. !d. at *22. Here, the Court holds that Dr. Downs' initial
opinions, when combined with Ms. Touchette's history, are sufficient to establish the
likelihood that she will prove causation at trial. Thus, she is entitled to medical
treatment.
The Court also holds that, given Speedway was unable to find orthopedists to
evaluate and treat Ms. Touchette, she was justified in seeking treatment on her own with
Dr. Downs. "An employer may risk being required to pay for unauthorized treatment if it
does not provide the treatment made reasonably necessary by the work injury as required
by Tennessee Code Annotated section 50-6-204(a)(l)(A)." Hackney v. Integrity Staffing
Solutions, 2016 TN Wrk. Comp. App. Bd. LEXIS 29, at *8-9 (July 22, 2016). Therefore,
Dr. Downs shall be designated as Ms. Touchette's authorized physician to treat her work-
5
related left-shoulder injury. In addition, Speedway shall pay all past medical expenses
related to Dr. Downs' treatment for this injury.
As to temporary disability, Dr. Downs gave his opinion regarding post-surgery
restrictions, but he did not provide any testimony regarding reasonable physical
restrictions before surgical repair. 3 Thus, the Court holds that Ms. Touchette has not
shown she is likely to prevail on the issue of past temporary disability benefits at this
time.
IT IS, THEREFORE, ORDERED that:
1. Dr. Downs is designated as Ms. Touchette's authorized physician for treatment of
her work-related left shoulder injury. Further, Speedway shall pay all medical
expenses incurred through Dr. Downs' treatment of her work-related injury.
2. Ms. Touchette's request for past temporary disability benefits is denied at this
time.
3. This matter is set for a Scheduling Hearing on May 30, 2019, at 1:30 p.m. C.S.T.
The parties or their counsel must call615-253-0010 or toll-free at 855-689-9049 to
participate in the hearing. Failure to call may result in a determination of the
issues without your 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 by email at
WCCompliance.Program@tn.gov.
ENTERED THIS THE 3rd DAY OF APRIL, 2019.
3
The only information regarding pre-surgery restrictions is from Ms. Touchette's family physician, who
took her off work shortly after the injury until she could see an orthopedist, and from a physician's
assistant, who recommended she be off work until she had an MRI.
6
ert V. Durham, Judge
Court of Workers' Compensation Claims
APPENDIX
Technical Record
1. Request for Expedited Hearing
2. Order Setting Expedited Hearing
3. Speedway's Expedited Hearing Brief
4. Expedited Hearing Order
Exhibits
1. Deposition of Dr. Downs with Attached Exhibits
2. Mr. Touchette's affidavit
3. Medical records made exhibits at previous expedited hearing
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was sent to the
following recipients by the following methods of service on March 3, 20 19.
Name Certified Via Via Service sent to:
Mail Fax Email
Velvet Touchette X X 220 Indian Lake Dr., Apt. 3902
Murfreesboro, TN 37128
J. Allen Callison X Allen.callison@mgclaw .com
Pen i ' Clerk of Court
Court of W r-Kers' Compensation Claims
7
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