Opinion

Cooke, Teresa v. Employ Bridge/DENSO Machine & Tool Division

  • 2018 TN WC 149
Court
Tennessee Court of Workers' Compensation Claims
Filed
Sep 19, 2018
Status
Published
On the bench
Lisa Lowe
Cited by
0 cases

The opinion

FILED

Sep 19, 2018

11:38 AM(ET)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS

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TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT KNOXVILLE

TERESA COOKE, ) Docket No.: 2017-03-1232

Employee, )

Vv. )

EMPLOY BRIDGE/DENSO )

MACHINE AND TOOL DIVISION, ) State File No.: 16427-2015

Employer, )

and )

XL INSURANCE COMPANY, )

Carrier. ) Judge Lisa A. Lowe

COMPENSATION HEARING ORDER

GRANTING BENEFITS

This matter came before the undersigned Workers’ Compensation Judge on

September 4, 2018, for a Compensation Hearing.’ The issues are whether Ms. Cooke is

entitled to additional temporary disability benetits, payment of unauthorized medical

expenses, and whether she is limited to her original award or increased benefits. For the

reasons below, the Court holds Ms. Cooke is entitled to additional temporary disability

benefits, her original award of permanent partial disability benefits, and future medical

care. However, Ms. Cooke failed to establish entitlement to reimbursement for

unauthorized medical expenses.

History of Claim

Ms. Cooke is a sixty-year-old resident of Blount County, Tennessee with a high

school diploma and some college education. The parties agreed her weekly

compensation rate is $326.72.

' Ms. Cooke filed a Request for Expedited Hearing. However, since she reached maximum medical

improvement, the parties requested the Court address permanent partial disability benefits. Therefore, the

parties agreed to convert the Expedited Hearing to a Compensation Hearing with the caveat that the

affidavits and medical records remain admissible exhibits.

1

On February 27, 2015, Ms. Cooke slipped and fell on ice in Denso’s parking lot.

Employ Bridge accepted the claim as compensable. It provided a panel of physicians,

and she selected Dr. David Calvert. He diagnosed head trauma, musculoskeletal pain,

vertigo, and elevated blood pressure. She underwent two head CT scans, a neck CT scan,

and a brain MRI, which were unremarkable. Due to continued complaints, Dr. Calvert

referred Ms. Cooke for a neurology consult.

Employ Bridge provided a panel of neurologists from which Ms. Cooke selected

Dr. Darel Butler. Dr. Butler assessed dizziness, visual disturbances, anxiety, and

weakness. He ordered a series of diagnostic tests and conservative treatments, including

a normal EMG, a head MRA revealing no abnormalities, and a neck MRA that showed

right ICA stenosis and a lesion but nothing traumatic. Dr. Butler placed Ms. Cooke at

maximum medical improvement (MMI) on July 9, 2015, with no permanent restrictions.

Since Dr. Butler does not provide impairment ratings, Employ Bridge authorized

neurologist Dr. Jack Scariano to do so. Dr. Scariano assigned a fifteen-percent

permanent impairment to the body as a whole.

Ms. Cooke also underwent evaluation with ear, nose, and throat physician Dr.

Taite Seals for continued vertigo. Dr. Seals found no evidence of inner ear damage. She

also saw Dr. Kirk Haun for reported double vision. Dr. Haun noted the “moving areas in

vision are caused by the vestibular issues. Eyes are healthy overall . . . no treatment

currently.” Ms. Cooke additionally saw Dr. Mark Widlowski for TMJ, which he advised

was chronic.

Following MMI, Ms. Cooke returned to both Dr. Butler and Dr. Calvert for

vertigo. Dr. Butler reiterated that he could not find a clear etiology for her vertigo. Dr.

Calvert prescribed vestibular physical therapy and said she could return to full duty on

July 22, 2015. He discharged her from his care on August 19. In between authorized

appointments, Ms. Cooke had two emergency room visits. She claimed that on the

second visit, the provider told her that she should see an orthopedist for her vestibular

damage. Ms. Cooke said she asked Employ Bridge to authorize orthopedic treatment, but

it denied her request. Thus, she sought treatment with her own orthopedist.’

Following her release to full duty, Denso terminated Ms. Cooke because her

position was filled. She received unemployment until September 2015, when Employ

Bridge found a position for her with BP Express. BP Express hired Ms. Cooke in

February 2016, and she worked there until her termination for poor job performance on

April 26, 2018. Ms. Cooke’s initial compensation period expired on October 24, 2016.

At that time, BP Express paid her an hourly wage between $13.00 and $13.39.

* Ms. Cook did not provide copies of her unauthorized medical records and bills to the Court or Employ

Bridge.

Ms. Cooke argued entitlement to temporary disability benefits for February 27,

2015 (the date of injury); March 21 through March 25; and July 7 through July 9. She

also asserted that she is entitled to see an orthopedist. She asked for increased permanent

partial disability benefits because the injury “affected her entire life,” including her

ability to earn a living. She averred she lost her job at BP Express because of her

ongoing medical issues. Ms. Cooke testified that since April 2018, she has applied for

over ninety jobs and only had one interview. Finally, she requested open future medical

benefits.

Employ Bridge asserted that it provided all medical benefits to which Ms. Cooke

was entitled. Her diagnostic tests were normal, and the authorized physician, Dr. Butler,

stated there was no clear etiology for Ms. Cooke’s vertigo. None of the treating

physicians indicated that she needs additional treatment. Thus, Employ Bridge argued it

is not responsible for unauthorized medical expenses. Employ Bridge averred it paid Ms.

Cooke all appropriate temporary disability benefits. In fact, it paid five days post-MMI,

so it is entitled to a credit for $326.72 from the permanent partial disability award.

Further, Ms. Cooke is limited to her original award for $22,053.60 because as of the

expiration of the initial compensation period, her rate of pay was higher than at the time

of injury.

Findings of Fact and Conclusions of Law

At a compensation hearing where the injured employee has arrived at a trial on the

merits, the employee must establish by a preponderance of the evidence that he or she is,

in fact, entitled to the requested benefits. Panzarella v. Amazon.com, Inc., 2017 TN Wrk.

Comp. App. Bd. LEXIS 30, at *10-11 (May 15, 2017); Tenn. Code Ann. § 50-6-

239(c)(6).

Temporary Disability Benefits

To qualify for temporary disability benefits, Ms. Cooke must establish: (1) that she

became disabled from working due to a compensable injury; 2) that there is a causal

connection between the injury and the inability to work; and 3) the duration of the period

of disability. Jones v. Crencor Leasing and Sales, 2015 TN Wrk. Comp. App. Bd.

LEXIS 48, at *7 (Dec. 11, 2015). The Workers’ Compensation Law provides that an

injured worker is entitled to temporary partial disability benefits when the temporary

disability is not total. See Tenn. Code Ann. § 50-6-207(1)-(2). Temporary partial

disability refers to the time, if any, during which the injured employee is able to resume

some gainful employment but has not reached maximum recovery. Mace v. Express

Servs., Inc., 2015 TN Wrk. Comp. App. Bd. LEXIS 49, at *8 (Dec. 11, 2015). “In

circumstances where the treating physician has released the injured worker to return to

work with restrictions prior to maximum recovery, and the employer . . . cannot return

3

the employee to work within the restrictions ..., the injured worker may be eligible for

temporary partial disability.” Jones, at *8.

First, Ms. Cooke claims entitlement to temporary disability benefits for the date of

injury, since her disability lasted more than fourteen days. However, Tennessee Code

Annotated section 50-6-205(a) states that the period of compensation “shall be allowed

beginning with the first day after the injury.” (Emphasis added.) The Court holds Ms.

Cooke is not entitled to temporary disability benefits for the date of injury.

Next, Ms. Cooke claims entitlement to temporary disability benefits from March

21 through March 25. On March 16, Dr. Calvert placed light-duty restrictions for nine

days. Ms. Cooke testified that she returned to work on March 16, but the next day she

had difficulty working due to pain, swelling, and vertigo, and she had to leave early. She

said her supervisor advised her to return to work on March 25. Employ Bridge offered

no testimony to refute this testimony. Therefore, the Court holds Ms. Cooke is entitled to

temporary partial disability benefits from March 21 through March 25 in the amount of

$326.72.

Finally, Ms. Cooke claims entitlement to temporary disability benefits from July 7

through July 9. However, Employ Bridge provided the adjuster’s affidavit and the claim

payment list showing that in July it paid Ms. Cooke from July 1 through July 14, which is

five days post-MMI. Ms. Cooke testified that she has no proof that Employ Bridge paid

her after MMI. She said she requested verification that the check cleared, but she

acknowledged she did not ask in enough time for the adjuster to provide the information

for the hearing. The Court holds Ms. Cooke failed to establish that she did not receive

temporary disability benefits from July 1 through 14. Therefore, Employ Bridge is

entitled to a credit of $326.72 against the original award.

Medical

Employ Bridge was obligated to provide Ms. Cooke with reasonable, necessary,

and related medical treatment with an authorized physician. See Tenn. Code Ann. § 50-

6-204. The Court concludes that Employ Bridge met its statutory obligation. Ms. Cooke

provided no evidence that an authorized physician made an orthopedic referral.

Additionally, she failed to provide records or bills of the unauthorized treatment she

received. Therefore, the Court holds she failed to establish entitlement to payment of

unauthorized medical expenses. However, Ms. Cooke is entitled to future reasonable,

necessary, and related expenses with Drs. Calvert and/or Dr. Butler.

Permanent Partial Disability Benefits

Ms. Cooke’s original award was 67.5 weeks of benefits, and her initial

compensation period expired on October 24, 2016. See Tenn. Code Ann. § 50-6-

4

207(3)(A). If an employee is unable to return to work with any employer or returns to

work at less than his/her pre-injury pay, that employee may be entitled to increased

benefits. See Tenn. Code Ann. § 50-6-207(3)(B). On October 24, 2016, while employed

by BP Express, Ms. Cooke earned more pay than before the injury. Therefore, she is

limited to her original award.

IT IS, THEREFORE, ORDERED as follows:

lL

Ms. Cooke is not entitled to reimbursement for her unauthorized medical

expenses. Employ Bridge shall provide future reasonable, necessary, and related

medical care with Drs. Calvert and/or Butler.

Payment of past-due benefits in the amount of $326.72 shall be made for the

period from March 21 to March 25, 2015.

Under Tennessee Code Annotated section 50-6-207(3), Ms. Cooke is entitled to

450 weeks times her impairment rating, which equates to $22,053.60, less the

TTD overpayment of $326.72, for an original award of $21,726.88 in permanent

partial disability benefits.

The filing fee is taxed to Employ Bridge under Tennessee Compilation Rules and

Regulations 0800-02-21-.07, to be paid within five business days.

. Employ Bridge shall file with the Court Clerk (WC.CourtClerk(@tn.gov) a

Statistical Data form (SD-2) within ten days of entry of this Order.

Absent an appeal, this Order becomes final thirty calendar days after entry.

ENTERED on September 19, 2018.

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WW A Wu.

LISA A. LOWE, JUDGE

Court of Workers’ Compensation Claims

APPENDIX

Exhibits:

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Affidavit of Teresa Cooke

Affidavit of Shelly Sprague with indemnity and medical expenses paid lists

Affidavit of Candy Daugherty

Pre-Injury Wages

Wage Statement, Form C-41

First Report of Work Injury, Form C-20

Panel of Physicians, Form C-41-collective

BP Express Personnel File

Table of Contents of Medical Records

Blount Memorial Hospital

Dr. David Calvert, BMH Occupational Health

Dr. Darel Butler, East Tennessee Medical Group

Dr. Taite Seals, Ear, Nose, & Throat Consultants of East Tennessee

Dr. A. Kirk Haun, Campbell, Cunningham, and Taylor

Dr. Mark Widloski, East Tennessee Oral & Maxillofacial Surgery

Dr. Todd Wiener, One Call Peer Review

Dr. Jack Scariano, Agreed Independent Medical Examination for Rating

and Causation

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10. Ms. Cooke’s receipts of the temporary disability payments

Technical Record:

l.

. Dispute Certification Notice

NDAABRWY

8.

9.

Petition for Benefit Determination

Show Cause Order

Order Granting Extension

Request for Expedited Hearing

Motion to Compel Discovery

Notice of Filing of Employee’s Response to Motion to Compel and Request for

Extension of Time

Order Granting Extension

Pre-Expedited Hearing Brief

10.Employer’s Witness and Exhibit List

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Compensation Hearing Order

was sent to the following recipients by the following methods of service on September

19, 2018.

| Name Certified | Fax | Email | Service sent to:

Mail

Teresa Cooke, xX x Teresa Cooke

Self-Represented

Employee

501 Brown School Road

Maryville, TN 37801

tgco0423 @gmail.com

Sarah H. Reisner,

Employer’s Attorney

X | SReisner@ManierHerod.com

K Ak Ad A SV Leer L) Die uerabseoy

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PENNY $HRUM, Court Clerk/

WC.CourtClerk@tn.gov

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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