The opinion
FILED
Apr 23, 2019
03:02 PM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT CHATTANOOGA
Charity Blevins, ) Docket No.: 2018-01-0673
Employee, )
v. )
Southern Champion Tray LP, ) State File No.: 86761-2017
Employer, )
And )
Great American Alliance Ins. Co., ) Judge Thomas Wyatt
Carrier. )
)
EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS
This matter came before the Court on April 10, 2019, for an Expedited Hearing
requested by Charity Blevins. The issue was whether she sufficiently proved that her
back injury arose primarily out of and in the course and scope of employment. For the
reasons set forth below, the Court holds that she did and awards her medical benefits, but
not the temporary disability benefits she sought.
History of Claim
On the date of injury, Ms. Blevins worked at Southern Champion Tray, LP as a
machine operator. When her machine jammed, she leaned over at the waist so she could
see into the machine to insert a tool into her machine to clear the jam. At the same time,
she reached above her head with her other hand to push the reset button as soon as she
cleared the jam. While spending an extended time in this “awkward” position, she felt a
“pop” immediately followed by low-back pain.
Ms. Blevins stated that the pain required her to grab her machine to steady herself,
and that pain “took Jher] breath” when she tried to straighten up. She began to cry
because her injury forced her to remain bent over. After a while, Ms. Blevins’s co-
workers became aware of her injury and assisted her into a wheelchair. A management
representative of Southern Champion drove her for emergency care.
Three days later, Southern Champion arranged for Ms. Blevins to see providers at
Workforce Corporate Health without giving her a panel. The Workforce physician
diagnosed a lumbar strain and ordered an MRI that showed degenerative disc disease plus
moderate central canal stenosis caused by an L4-5 disc protrusion. Ms. Blevins received
an orthopedic referral following the MRI and selected Dr. Ricky Hutcheson from a panel.
Ms. Blevins testified that Southern Champion’s safety director was talking with
Dr. Hutcheson when she arrived for her first and only appointment. She stated that Dr.
Hutcheson performed an examination and then walked into the hallway to discuss
“something about percentages” with the safety director. He then returned and told her his
role was to determine whether her injury was work-related, and he could not treat her
injury because it was “fifty-fifty” whether it was work-related.
In his notes, Dr. Hutcheson wrote that Ms. Blevins gave a history of being “just at
her machine and kind of leaning over doing her normal job” when she felt low-back pain.
Based on that description of the mechanism of his injury, Dr. Hutcheson wrote the
following:
Based off recent literature of the 4MA Guide to Evaluation of
Disease and Injury Causation, in my opinion, I would have to say that
greater than 51% of the causation is more related to her degenerative
pre-existing process and not a work-related injury in that there was no
event at work. I feel that she just has an aggravation of a pre-existing
condition.
(Emphasis original.)
Later, Southern Champion sent Dr. Hutcheson a causation letter. He checked the
“YES” box to questions inquiring whether Ms. Blevins had multi-level degenerative disc
disease that pre-existed her injury at Southern Champion. Dr. Hutcheson also checked
the “NO” box to the question: “Given Ms. Blevins’ pre-existing low back condition, MRI
findings, and the ‘leaning over the machine’ mechanism of injury, within a reasonable
degree of medical certainty, is Ms. Blevins’ low back pathology primarily related to the
November 10, 2017, incident ‘leaning over the machine,’ considering all potential
causes?” Finally, Dr. Hutcheson indicated that Ms. Blevins did not suffer an anatomical
change in her lumbar spine because of the work incident.
Southern Champion relied on Dr. Hutcheson’s responses to deny Ms. Blevins’s
claim. She sought care from orthopedist Dr. Paul Broadstone for her continuing pain. He
noted that she gave a history of low-back pain that prevented her from straightening up
after leaning over her machine for approximately fifteen seconds. After reviewing her
MRI, Dr. Broadstone diagnosed Ms. Blevins with low back pain caused by degenerative
disc disease and a lumbar discogenic syndrome with a possible L4-5 annular tear. He
ordered medication and physical therapy.
Ms. Blevins submitted a causation questionnaire to Dr. Broadstone that asked him,
“[b]ased on all the information you have in your file, did the incident on November 10,
2017, more likely than not cause Ms. Blevins’s back injury?” Dr. Broadstone responded
that the injury was “[h]istorically related to [the] bending incident.” Later in the
questionnaire, Dr. Broadstone answered “yes” to a question whether the incident caused
her need for the treatment he recommended. He based this opinion on her lack “of
previous back issues.”
During the Expedited Hearing, Ms. Blevins testified that she had not previously
experienced anything other than temporary back pain during labor or following strenuous
activity. She also stated she had never received treatment for back pain. However, she
has endured back pain that limits her work and activities since the incident.
Findings of Fact and Conclusions of Law
The primary issue here is causation. To prevail at an expedited hearing, Ms.
Blevins must provide sufficient evidence to show she would likely prevail at a hearing on
the merits in proving that 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). See also McCord v. Advantage Human Resourcing, No. 2014-06-0063,
2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9-10 (Tenn. Workers’ Comp. App. Bd.
Mar. 27, 2015).
What Ms. Blevins must establish for recovery is found in the statutory definition
of a compensable “injury.” Tennessee Code Annotated section 50-6-102(14)(A) (2018)
provides that an injury is compensable if it “arises primarily out of and in the course and
scope of employment.” It also states that “the aggravation of a preexisting disease,
condition or ailment [is not compensable] 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.” Further, Ms. Blevins must show to a reasonable degree of
medical certainty that her work injury “contributed more than fifty percent (50%) in
causing the death, disablement or need for medical treatment, considering all causes.”
Id. at § 50-6-102(14)(C). “Shown to 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.” Jd. at § 50-6-102(14)(D).
In analyzing the issues here, the Court considered the Workers’ Compensation
Appeals Board’s opinion in Bradshaw v. Jewell Mechanical, LLC, 2015 TN Wrk. Comp.
App. Bd. LEXIS 16, at *15-16 (June 4, 2015), which held:
3
An employer is "liable for disability resulting from injuries
sustained by an employee arising out of and in the course of his
employment even though it aggravates a previous condition with
resulting disability far greater than otherwise would have been the
case[.]" The Tennessee Supreme Court reiterated "that the employee
does not suffer a compensable injury where the work activity aggravates
the pre-existing condition merely by increasing the pain." The court
continued, "[h]owever, if the work injury advances the severity of the
pre-existing condition, or if, as a result of the pre-existing condition, the
employee suffers a new, distinct injury other than increased pain, then
the work injury is compensable."
(Original citations omitted.)
Here, the Court finds credible Ms. Blevins’s testimony that she had not
experienced significant back pain before the November 2017 incident. Southern
Champion did not provide any evidence to the contrary. Since the injury, she has
undergone extensive treatment for back pain. In short, the Court believes Ms. Blevins’s
testimony that she injured her back at Southern Champion and holds that the injury at
Southern Champion significantly advanced the severity of her pre-existing degenerative
disc disease, which was mostly asymptomatic before the injury occurred.
The issue then becomes whether the medical evidence establishes that Ms. Blevins
is likely to prove at trial that her back condition arose primarily out of and in the course
and scope of employment. When viewed with Ms. Blevins’s credible testimony, the
Court holds that the medical evidence entitles her to medical benefits.
In making this decision, the Court gives limited weight to Dr. Hutcheson’s opinion
that Ms. Blevins did not experience an injurious “event” at work. Such a conclusion is at
odds with Ms. Blevins’s credible testimony. It is also at odds with the doctor’s own
opinion that Ms. Blevins “has an aggravation of a pre-existing condition.” As previously
quoted, the definition of “injury” in section 50-6-102(14) includes aggravations of pre-
existing conditions that arose primarily out of and in the course and scope of
employment.
The Court’s holding is bolstered by Dr. Broadstone’s responses to Ms. Blevins’s
causation inquiries. He established a causal link on two grounds: Ms. Blevins’s
statements that her pain began while bending over her machine and that she did not
require spinal treatment until after the incident. The Court recognizes that Dr.
Broadstone’s opinion does not exactly track the statutory standard; however, it is given to
a reasonable degree of medical certainty, which meets the “more likely than not” standard
under Tennessee Code Annotated section 50-6-102(14)(D). See Panzarella
4
v.Amazon.com, Inc., TN Wrk. Comp. App. Bd. LEXIS 30, at *14-15 (May 15, 2017),
holding that a causation opinion may be sufficient even though it is not stated within a
rigid recitation of the statutory definition of an injury.
Thus, in view of Ms. Blevins’s credible testimony, Dr. Hutcheson’s statement
that the incident at Southern Champion caused an aggravation of a pre-existing condition,
and Dr. Broadstone’s opinion linking Ms. Blevins’s need for treatment to her work
injury, the Court holds that Ms. Blevins established her entitlement to authorized
treatment under the expedited hearing standard.
The next issue is which doctor should provide authorized treatment. In deciding
the issue, the Court considers the following principles discussed in Ducross v. Metro
Roofing and Metal Supply Co., 2017 TN Wrk. Comp. App. Bd. LEXIS 62, at *10-12
(Oct. 17, 2017),
Where the employer fails to give the employee the opportunity to
choose the ultimate treating physician from a panel of at least three
physicians, the employer runs the risk of having to pay the reasonable
cost for treatment of the employee's injuries by a physician of the
employee's choice. (Internal citations omitted).
Here, the Court holds that Ms. Blevins will likely prove at trial that the panel
Southern Champion provided her was for evaluation but not for treatment. In support of
this holding, the Court finds that Ms. Blevins gave credible testimony that Dr. Hutcheson
told her his role was to determine if her injury occurred at work. Her testimony is
bolstered by the safety manager’s presence at the appointment with Dr. Hutcheson and
Ms. Blevins’s unrebutted testimony that the safety man and Dr. Hutcheson discussed
“percentages” just before Dr. Hutcheson told Ms. Blevins that he could not treat her. In
view of these facts, the Court holds that Southern Champion failed to give Ms. Blevins
the opportunity to select a physician to treat her injury as is required by the Tennessee
Workers’ Compensation Law.
Southern Champion’s denial of Ms. Blevins’s claim required her to establish a
treatment relationship with Dr. Broadstone. With that and the fact Southern Champion
did not provide her a panel for treatment in mind, the Court holds that it would be unfair
to require Ms. Blevins to return to Dr. Hutcheson for treatment. See Ducross, at *12. For
that reason, Southern Champion shall authorize Dr. Broadstone for treatment of Ms.
Blevins’s compensable back injury.
Finally, the Court addresses Ms. Blevins’s claim for temporary disability benefits.
To receive temporary disability benefits, Ms. Blevins must prove (1) she became disabled
due to a work injury; (2) a causal connection between the work injury and her inability to
work, and (3) the duration of her disability. Jones v. Crencor Leasing and Sales, TN
5
Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11, 2015). Here, she testified that she
continued to work after her back injury occurred and she did not provide evidence about
the dates the injury disabled her from working. That being the case, she did not prove the
duration of her disability and the Court denies her claim for temporary disability benefits
at this time.
IT IS, THEREFORE, ORDERED as follows:
1.
Ms. Blevins’s interlocutory claim for medical benefits is granted. Southern
Champion shall promptly authorize Dr. Paul Broadstone as treating physician and
schedule Ms. Blevins an appointment with him for authorized care.
The Court denies Ms. Blevins’s interlocutory claim for temporary disability
benefits at this time.
. 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) (2018). 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 WCCompliance.Program@tn.gov
or by calling (615) 253-1471 or (615) 532-1309.
. This matter is set for a Status Hearing at 10:00 a.m. Eastern Time on June 18,
2019. You must call (615) 741-3061 or toll-free at (855) 747-1721 to participate
in the Status Hearing. You must call in on the scheduled date/time to participate.
Failure to call in may result in a determination of the issues without your further
participation.
ENTERED April 23, 2019.
2.1 Mo
Judge Thomas Wyatt
Court of Workers’ Compensation Claims
APPENDIX
Exhibits: The Court admitted the following exhibits into evidence:
OP NNDMP WN
Affidavit of Charity Blevins
Records of Dr. Ricky Hutcheson
Responses of Dr. Ricky Hutcheson to Medical Questionnaire
Records of Dr. Paul Broadstone
Records of Workforce Corporate Health/Dr. Jayant Eldurkar
Wage Statement
Notice of Controversy
First Report of Injury
Choice of Physician form
Technical record: The Court considered the following filings by the parties:
OP NDAARWNe
Petition for Benefit Determination
Dispute Certification Notice
Employer Position Statement
Request for Scheduling Hearing
Notice of Scheduling Hearing
Order Striking Request for Scheduling Hearing
Request for Expedited Hearing
Notice of Expedited Hearing
. Employer’s Response to Request for Expedited Hearing
10. Employer Witness and Exhibit List
11. Employer Notice of Filing Exhibits
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Docketing Notice was sent to
the following recipients by the following methods of service on April 23, 2019.
Name Certified | First | Email | Service sent to:
Mail Class
Ethan Hargraves Xx ethan(@masseyattorneys.com
Employee’s Attorney brooke(@masseyattorneys.com
Connor Sestak xX csestak(@morganakins.com
Employer Attorney plunny@morganakins.com
— Uwe i esr)
PENNY SHRUM,\COURT CLERK "
we.courtclerk(@tn.gov
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. Ifa 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/weomp.shtm!l
wc.courtclerk@tn.gov
1-800-332-2667
Docket #:
State File #/YR:
Employee
Vv.
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]
(1 Temporary disability benefits
LI Medical benefits for current injury
[] Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): At Hearing: LJEmployer LJEmployee
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 Name: SF#: DOI:
Appellee(s)
Appellee (Opposing Party): At Hearing: LIEmployer LJEmployee
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 | 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
l,
AFFIDAVIT OF INDIGENCY
, having been duly sworn according to law, make oath that
because of my poverty, | am unable fo 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:
3. Telephone Number:
5. Names and Ages of All Dependents:
6. | am employed by:
2. Address:
4. Date of Birth:
Relationship:
Relationship:
Relationship:
Relationship:
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. | receive or expect to receive money from the following sources:
AFDC $
SSI $
Retirement $
Disability $
Unemployment $
Worker’s Comp.$
Other $
LB-1108 (REV 11/15)
per month
per month
per month
per month
per month
per month
per month
beginning
beginning
beginning
beginning
beginning
beginning
beginning
RDA 11082
9. My expenses are:
Rent/House Payment $ permonth Medical/Dental $ per month
Groceries $ per month Telephone $ per month
Electricity $ per month School Supplies $ per month
Water $ per month Clothing 3 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 3. (FMV)
Other $ ‘Describe:
11. My debts are:
Amount Owed To Whom
| hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that | am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
day of ,20
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV 11/15) RDA 11082