Opinion

Blankenship, Roma v. Ballad Health

  • 2019 TN WC 153
Court
Tennessee Court of Workers' Compensation Claims
Filed
Oct 24, 2019
Status
Published
On the bench
Brian K. Addington
Cited by
0 cases

The opinion

FILED

Oct 24, 2019

01:11 PM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT GRAY

ROMA BLANKENSHIP, ) Docket No.: 2019-02-0171

Employee, )

V. ) State File No.: 21230-2019

BALLAD HEALTH, )

Self-Insured Employer. ) Judge: Brian K. Addington

EXPEDITED HEARING ORDER

(DECISION ON THE RECORD)

This claim came before the Court on Ms. Blankenship’s request for expedited

hearing. She asked that the Court decide her entitlement to temporary disability and

medical benefits based on a review of the record without an evidentiary hearing. Ballad

Health did not oppose her request, and the Court issued a docketing notice giving the

parties until October 22, 2019, to file position statements.

To receive benefits, Ms. Blankenship must provide sufficient evidence showing

she would likely succeed at a final in proving she suffered a specific work injury or a

compensable aggravation of a preexisting condition. Based on the record at this time, the

Court holds Ms. Blankenship is not likely to succeed at a hearing on the merits in proving

she suffered a specific injury or aggravation and denies her claim for benefits.

Claim History

Ms. Blankenship worked for Ballad Health as a CNA. According to her affidavit,

she felt she worked excessive amounts due to understaffing, which caused her to care for

multiple patients simultaneously and miss breaks and lunch. In November 2018, she

complained to her unit manager about these work conditions. She also said her ankles

were swollen, but she did not allege a specific work injury. Ballad did not file an injury

report.

After Ms. Blankenship’s complaint, her working conditions did not improve to her

satisfaction. She last worked on December 27, 2018.

1

Near the time she stopped working, Ms. Blankenship sought treatment from

orthopedist Dr. William Brashear. According to her affidavit, Dr. Brashear prescribed

Lyrica and took her off work, but she provided no records supporting this assertion. At

some point, however, Dr. Brashear placed her on restrictions that Ballad would not

accommodate.

After continued complaints, Ballad sent Ms. Blankenship in February 2019 to Dr.

Michael Anders. She told him her left and right-knee pain and ankle swelling began in

December 2018 and was “made worse by prolonged walking, stairs.” She felt her work

as a CNA over the years caused her problems. After taking her history and examining

her, Dr. Anders could not causally relate her current symptoms to her work. !

On receiving Dr. Anders’s opinion, Ms. Blankenship returned to Dr. Brashear with

continued complaints of pain. He assessed bilateral patellofemoral osteoarthritis, stating

“I do feel this is an exacerbation of an underlying problem.” He further told Ms.

Blankenship that “not all people have arthritic manifestations even though they have

radiographic findings of it.’ Dr. Brashear continued her Lyrica prescription and released

her for full-duty work on March 26, 2019.’

Findings of Fact and Conclusions of Law

The threshold question at this expedited hearing is the causation of Ms.

Blankenship’s injury. To receive benefits, Ms. Blankenship must show she would likely

prevail at a hearing on the merits that she suffered an injury by accident arising primarily

out of and in the course and scope of employment that causes the need for medical

treatment. See Tenn. Code Ann. §§ 50-6-102(14); 50-6-239(d)(1) (2018). She cannot do

this without expert medical proof. See Albright v. Hercules HVAC Pads, Inc., 2018 TN

Wrk. Comp. App. Bd. LEXIS 66, at *13(Dec. 20, 2018) (Except in the most obvious

cases, causation must be proven by expert medical evidence.).

Here, two physicians examined Ms. Blankenship, and neither causally related her

condition to her work for Ballad. As neither primarily related her condition to her work,

the Court holds Ms. Blankenship failed to present sufficient evidence that she would

likely succeed at a hearing on the merits in proving causation of her injury. Therefore,

the Court also holds she is not entitled to medical or temporary disability benefits at this

time.

' Dr. Anders used an incorrect standard. The correct standard is whether the employment contributed

more than fifty percent in causing the injury. Tenn. Code Ann. § 50-6-102(14)(B).

? Ballad objected to Dr. Brashear’s notes because they were not signed. The notes indicated Dr. Brashear

“performed and documented” the notes. The Court overruled the objection.

2

IT IS, THEREFORE, ORDERED AS FOLLOWS:

1.

2.

Ms. Blankenship’s request for temporary and medical benefits is denied at this

time.

This case is set for a Status Hearing on January 7, 2020, at 11:00 a.m.

Eastern Time. The parties must call 855-543-5044 to participate. Failure to

call at the scheduled time might result in the determination of issues without

the party’s participation.

ENTERED October 23, 2019.

/S/ Brian K. Addington

BRIAN K. ADDINGTON, JUDGE

Court of Workers’ Compensation Claims

Appendix

Exhibits:

OD Pe ee bP

Ms. Blankenship’s Affidavit

Medical Record-Occupational Medicine Clinic (2/5/19)

Medical Record-Appalachian Orthopedic Associates (3/12/19-3/26/19)

First Report of Injury

Wage Statement

Notice of Denial

Dispute Certification Notice

Technical Record:

CONN BWND

. PBD

. Employer’s Motion to Dismiss

. Brief in Support of Motion to Dismiss

. Order Denying Motion to Dismiss

. Request for Expedited Hearing

. Employer’s Objection to Admissibility

. Employer’s Pre-Hearing Brief/Statement

. Employer’s Position Statement

CERTIFICATE OF SERVICE

I certify a copy of this Order was sent as indicated on October 23, 2019.

Name Certified | Fax | Email Service sent to:

Mail

Roma Blankenship, X x 140 Painter Rd.

Employee Fall Branch, TN 37656

catherine62kylie@gmail.com

Michael Forrester,

Employer’s Attorney

Xx mforrester@hsdlaw.com

amcknight@hsdlaw.com

De ry he

PENNY SHRUM, COURT CLERK

Court of Workers’ Compensation Claims

we.courtclerk(@in.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. 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.

LB-1099

EXPEDITED HEARING NOTICE OF APPEAL

Tennessee Division of Workers’ Compensation

www. tn.gov/labor-wid/weomp.shtml

wce.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]

L] Temporary disability benefits

L] Medical benefits for current injury

LC 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 *

rev. 10/18 Page 1 of 2 RDA 11082

Employee Name: SF#: DOI:

Appellee(s)

Appellee (Opposing Party): At Hearing: L]JEmployer 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,

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

, certify that | have forwarded a true and exact copy of this

[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

I, , having been duly sworn according to law, make oath that

because of my poverty, | 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 Ail Dependents:

Relationship:

Relationship:

Relationship:

Relationship:

6. lam 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

ssl $ 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 I 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

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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