The opinion
FILED
Sep 23, 2019
09:14 AM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT CHATTANOOGA
Dale Woodrum, ) Docket No.: 2018-01-0604
Employee, )
Vv. )
Morgan Olson Corp., ) State File No.: 61349-2016
Employer, )
And )
XL Specialty Insurance, ) Judge Thomas Wyatt
Carrier. )
)
EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS
This case came before the Court on September 16, 2019, for an Expedited
Hearing. The principal issues were whether Dale Woodrum’s injury arose primarily out
of and in the course and scope of her employment and whether Morgan Olson Corp.
provided a panel of physicians. For the reasons below, the Court holds that Ms.
Woodrum established her claim to additional medical benefits.
History of Claim
On February 8, 2018, Ms. Woodrum’s supervisor at Morgan Olson assigned her a
job requiring manual assembly of rear doors for UPS delivery trucks. Ms. Woodrum
testified she was required to assemble forty-eight doors per day and that the job was
physically difficult because she had to lift the doors and carry them to a rack. She stated
she weighed 117 pounds on the date of injury, but until she was injured on the job, she
was able to perform the assigned duties.
Ms. Woodrum testified her injury occurred when she tried to catch doors that
began falling when she attempted to place a door onto the rack. She tried to catch the
doors by grabbing and balancing them on her thighs. She could not maintain this posture
due to the doors’ weight, and they pulled her down to a crouched position. She remained
partially pinned under the doors until co-workers assisted her.
Ms. Woodrum stated that she experienced severe pain radiating from her right
foot, up her leg, through her entire spine, and into her right shoulder immediately upon
standing up after the injury.' However, she stayed on the door-assembly job until
February 21, when her pain prevented her from continuing.
Ms. Woodrum testified she called her supervisor, Ryan Moore, early on that day to
tell him she would not be able to work. She did not reach him and decided to seek
treatment at Lakeway Urgent Care, a facility where Morgan Olson management brought
her for treatment of an earlier work-related injury. Ms. Woodrum stated that Lakeway
accepted her as a patient after its receptionist called Morgan Olson to obtain authorization
to treat her under workers’ compensation.
Greg Montooth, Morgan Olson’s safety director, provided a different account of
how Ms. Woodrum received treatment at Lakeway. He testified that she called him on
February 21 to report back pain and request treatment. He informed Ms. Woodrum of the
providers on Morgan Olson’s panel, told her to select one, and informed her she could
later sign the form to document her choice. Mr. Montooth asserted that Ms. Woodrum
selected Lakeway, and he then informed Lakeway by phone that Ms. Woodrum was on
the way.
Mr. Montooth also testified that Ms. Woodrum did not tell him or, to his
knowledge, anyone else until February 21 that she was hurt on the job. Morgan Olson
additionally introduced written statements from Ms. Woodrum’s co-workers that they
had not actually seen her become injured.
The Lakeway records document that it accepted Ms. Woodrum as a workers’
compensation patient.” She was first seen by a non-physician provider and later spoke to
Dr. John Sanabria. The provider recorded Ms. Woodrum’s report of constant, worsening
back pain with numbness and tingling since an injury at Morgan Olson, which Ms.
Woodrum described as a line of doors falling and pulling her forward. The provider
found diffuse tenderness in her right thoracic muscles, left cervical muscles, and lumbar
muscles bilaterally. He diagnosed a “sprain of unspecified parts of [the] thorax.””
The provider released Ms. Woodrum to return to work without restrictions and
stated, “[n]o further follow up should be required unless [her pain was] unresolved in 1-2
weeks.” At that visit, Dr. Sanabria told Ms. Woodrum that x-rays were “negative for any
acute injury,” and her strain was “not a serious issue.”
' The parties disputed whether Ms. Woodrum provided notice of her injury the day it occurred, but the
evidence demonstrated that she gave verbal notice of her injury within the fifteen-day statutory period.
See Tenn. Code Ann. § 50-6-201(a)(1) (2018).
* It coded her visit for billing purposes “WC New.”
* The provider authored the records, and Dr. Sanabria electronically approved them.
2
However, Dr. Sanabria was concerned about an incidental x-ray finding that might
represent a mass in Ms. Woodrum’s abdomen. He recommended that she see her primary
care physician, Dr. Patel, to investigate it. He stated that, “[b]ecause of this unrelated
personal issue, [Ms. Woodrum] will not return to work until cleared by her PCP.”
Ms. Woodrum saw Dr. Patel that same day.‘ His record documents that she
reported both back and abdominal pain and related the back pain to her work injury. On
February 26, he indicated the abdominal work-up was negative. Dr. Patel diagnosed back
pain and later wrote on September 11 that he had not returned her to work because her
“WC care had not been completed” because of her move to Kentucky.
Ms. Woodrum testified that she has continuously suffered pain from her work
injury and has been disabled from working since February 21, 2018. She said that
financial problems from her inability to work resulted in the loss of her automobile and
forced her to move back to Kentucky to live with family.
Ms. Woodrum introduced records documenting treatment in Kentucky. She went
to a clinic beginning June 20, 2018, complaining of multiple symptoms including
depression, fatigue and back pain. On examination, Ms. Woodrum was assessed with
thoracic and lumbar tenderness and muscle spasm in the left side of her back. Those
problems continued at a July 3 examination, where testing revealed mild degenerative
changes in her lumbar and thoracic spine. The provider added a diagnosis of
fibromyalgia to previous diagnoses of chronic muscular pain and weakness.
At the Expedited Hearing, Ms. Woodrum argued Morgan Olson failed to provide a
panel after she reported her injury. Morgan Olson countered that Ms. Woodrum had not
established that her injury arose primarily out of her employment and was not entitled to
additional benefits. It also argued that it complied with the law by authorizing her to see
Dr. Sanabria.
Findings of Fact and Conclusions of Law
The Court is guided by two fundamental principles of workers’ compensation law.
First, the employer shall furnish reasonable and necessary treatment of an employee’s
work injury with the employee selecting a treating physician from a panel of physicians.
See Tenn. Code Ann. §§ 50-6-204(a)(1)(A) and (a)(3)(A)(i). Second, the injured
employee must establish that her injury or the need for treatment arose primarily out of
the employment. Panzarella v. Amazon.com, Inc., No. E2017-01135-SC-R3-WC, 2018
Tenn. LEXIS 244, at *9 (Tenn. Workers’ Comp. Panel May 16, 2018). Because this is an
Expedited Hearing, Ms. Woodrum must show she will likely prevail at a hearing on the
“ The Court sustained hearsay objections to several documents submitted with Dr. Patel’s records because
those documents were not signed by a provider.
merits on all essential elements of her claim. McCord v. Advantage Human Resourcing,
2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Regarding causation, Ms. Woodrum testified emphatically and consistently that
she suffered an injury while trying to prevent doors from falling off a rack. In response,
Morgan Olson offered written statements of employees stating that they did not see her
get hurt. The Court observed Ms. Woodrum’s testimony and finds her credible. In
addition, the medical records contain consistent histories of Ms. Woodrum attributing her
back pain to the incident at Morgan Olson.
The Court also notes the Lakeway providers diagnosed a muscle-related back
injury when they saw Ms. Woodrum on February 21 and advised her that she might
require follow-up treatment if her symptoms did not resolve. Dr. Patel corroborated Ms.
Woodrum’s consistent history that her back pain began at Morgan Olson, and he later
diagnosed her with back pain after testing ruled out other potential causes. The Kentucky
providers’ records document Ms. Woodrum reported her ongoing back pain was related
to “when she pulled her back while ‘building UPS trucks,’” and they found objective
indications of tenderness and spasm in her back muscles when they examined her.
In Lewis v. Merry Maid, 2016 TN Wrk. Comp. App. Bd. LEXIS 19, at *8 (Apr.
20, 2016), the Appeals Board affirmed an award of medical benefits when the
employee’s testimony and corroborating medical evidence supported her “allegation that
she began suffering severe back pain while working” for the employer. The same is true
here. Considering Ms. Woodrum’s credible testimony and the corroborating medical
records, the Court holds she met her burden of proof that she would likely prevail at a
hearing on the merits that she sustained a back injury on February 8, 2018, while working
for Morgan Olson.
The Court next considers whether Ms. Woodrum presented sufficient medical
proof of the work-relatedness of her back injury. See Tenn. Code Ann. § 50-6-
102(14)(A). Although the Lakeway providers did not specifically address the causation
of the injury to Ms. Woodrum’s back, they discussed the injury in a manner indicating
that they considered it to be work-related. For instance:
= The records state that the Lakeway providers knew that Ms. Woodrum sought
treatment of a workers’ compensation injury. Further, Mr. Montooth testified
that he called Lakeway to alert them she was coming for treatment of a work
injury.
=» The Lakeway providers documented that Ms. Woodrum reported that she
sustained a work injury at Morgan Olson on February 8.
= In documenting Dr. Sanabria’s interaction with Ms. Woodrum, the Lakewood
report states, “[rJegarding the work related strain, radiographs are negative for
any acute injury.” (Emphasis added.)
4
" Conversely, the Lakeway report addresses the non-work-relatedness of the
possible mass shown on x-ray, stating, “[b]ecause of this unrelated personal
issue, [Ms. Woodrum] will not return to work until cleared by her PCP.”
(Emphasis added.)
The Workers’ Compensation Appeals Board ruled in Panzarella v. Amazon.com,
Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 30, at *14 (May 15, 2017), that “a physician
may render an opinion that meets the legal standard espoused in section 50-6-102(14)
without couching the opinion in a rigid recitation of the statutory definition.” The Board
further explained that, “[w]hat is necessary . . . is sufficient proof from which the trier of
fact can conclude that the statutory requirements of an injury as defined ... are
satisfied.” Id.
Based on the above and the Appeals Board’s ruling in Panzarella, the Court holds
that Ms. Woodrum is likely to prevail at a hearing on the merits in establishing that Dr.
Sanabria gave or agreed with the opinion that her back injury arose primarily out of and
in the course and scope of her employment. For that reason, the Court holds Ms.
Woodrum is entitled to ongoing treatment of her back injury.
The Court now turns to the logistics of the treatment to which Ms. Woodrum is
entitled. Her argument that she is entitled to benefits because she did not sign a panel
misses the point. Instead, the primary issue is whether Morgan Olson offered her a panel
as required by law. The Court finds it did. Specifically, the Court accepts Mr.
Montooth’s testimony that he verbally informed Ms. Woodrum of the providers on
Morgan Olson’s panel, and armed with that information, Ms. Woodrum selected
Lakeway. Ms. Woodrum’s testimony that she decided to seek treatment at Lakeway for
another reason does not significantly rebut Mr. Montooth’s testimony. In the end, she
obtained authorized treatment at Lakeway.
Based on the totality of the evidence, the Court holds that Ms. Woodrum may
return to Lakeway for treatment of her back injury. However, because she has moved to
Kentucky, Morgan Olson shall provide her a panel of physicians in Ms. Woodrum’s
community of residence upon request. If this is Ms. Woodrum’s decision, she shall make
this request in writing to counsel.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. Woodrum is entitled to return to Lakeway for follow-up treatment of her
work-related back injury.
2. Should Ms. Woodrum desire a panel of physicians in Kentucky, she shall request
that by writing Morgan Olson’s counsel (see email address in Certificate of
Service) as soon as is practicable. Morgan Olson shall provide a panel within
thirty days from the date Mr. Morris receives a written request.
. This case is set for a Status Hearing on January 6, 2020, at 10:00 a.m. Eastern
Time. You must call (615) 741-3061 or toll-free at (855) 747-1721 to participate
in the Status Hearing. Failure to call might result in a determination of the issues
without your further participation.
. 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 via email WCCompliance.Program/(@in.gov.
ENTERED September 23, 2019.
Judge Thomas Wyatt
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
Affidavit of Dale M. Woodrum
Letter from Morgan Olson
Lakeway Urgent Care records
Internal Medicine Associates (Dr. Patel) records. (The Court sustained a
hearsay objection on the records of Dr. Patel that were not signed by a
provider.)
Taylor Regional Hospital records
One Cross Health Clinic records
Russell County Hospital (identification only.) The Court sustained a hearsay
objection because the records were not signed by a provider.
8. Fibromyalgia article (identification only.) The Court sustained a hearsay
objection because no foundation was laid that the article constituted a learned
treatise.
ee oo
Ae
9. Unum Short-Term Disability claim form
10.Hand-written notes of Ms. Woodrum (identification only.) The Court
sustained a lack-of-relevance objection.
11.Cover of Morgan Olson sales pamphlet (identification only.) The Court
sustained a lack-of-relevance objection.
12. Photographs of Ms. Woodrum’s work station
13. Statement of Eric Moore
14. Statement of Chris Levey (identification only.) The Court sustained a hearsay
objection.
15. Statement of Cynthia Greene
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Employer’s additions to Dispute Certification Notice
4. Request for Expedited Hearing
5. Employee Position Statement
6. Employer Witness List
7. Employer Motion to Extend Time to File Prehearing Pleadings
8. Order Extending Time to File Pleadings
9. Notice of Expedited Hearing
10. Employer Prehearing Statement
CERTIFICATE OF SERVICE
I certify that a copy of the Order was sent as indicated on September 23, 2019.
Name Certified | Email | Service sent to:
& US.
Mail _
| Dale Woodrum xX Godisgood2266@gmail.com
Employee 1075 Damron Creek Road
Russell Springs, KY 42642
Brent Morris Xx bmorris@wimberlylawson.com
Employer’s Attorney
naw te
Panag Sune WIA nud 0)
Penny Shrum, Court Clerk [Tr
We.courtclerk@tn.gov
(aes.
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 fen
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.pov/labor-wd/weomp.shtml
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]
LC] Temporary disability benefits
CL] Medical benefits for current injury
L] Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): At Hearing: LlEmployer LIlEmployee
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#: DOL
Appellee(s)
Appellee (Opposing Party): At Hearing: Employer Li Employee
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, I|-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
L. , 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: 2. Address:
3. Telephone Number: 4. Date of Birth’
5. Names and Ages of All Dependents:
Relationship:
Relationship:
Relationship:
Relationship:
6. | 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. | 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-1108 (REV 11/15) 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 $ 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
| 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