Opinion

Adiole v. Logan Senior Care, LLC

  • 2019 TN WC App. 54
Court
Tennessee Workers' Compensation Appeals Board
Filed
Dec 16, 2019
Status
Published
On the bench
Marshall L. Davidson III, David F. Hensley, Timothy W. Conner
Cited by
0 cases
Authority
More cited than 12.5%

The opinion

FILED

Dec 16, 2019

01:20 PM(CT)

TENNESSEE

WORKERS' COMPENSATION

APPEALS BOARD

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Vera Adiole ) Docket No. 2018-06-0451

)

v. ) State File No. 13008-2018

)

Logan Senior Care, LLC, et al. )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Kenneth M. Switzer, Chief Judge )

Affirmed and Certified as Final

The employee alleged she injured her low back and/or aggravated a pre-existing arthritic

condition in her right hip as a result of a work-related accident. Following a course of

authorized treatment with two physicians, the employee asserted she was entitled to

additional medical treatment. In response to the employer’s motion for summary

judgment, which was supported by the opinions of three physicians, the employee

submitted the sworn declaration of a physician’s assistant. The trial court granted the

employer’s motion for summary judgment and dismissed the employee’s claim. The

employee has appealed. We affirm the trial court’s decision and certify its order as final.

Judge Timothy W. Conner delivered the opinion of the Appeals Board in which Presiding

Judge Marshall L. Davidson, III, and Judge David F. Hensley joined.

Vera Adiole, Antioch, Tennessee, employee-appellant, pro se

A. Allen Grant, Nashville, Tennessee, for the employer-appellee, Logan Senior Care,

LLC

Memorandum Opinion 1

Vera Adiole (“Employee”), a resident of Davidson County, Tennessee, worked as

a home healthcare provider for Logan Senior Care, LLC (“Employer”). On January 31,

1

“The Appeals Board may, in an effort to secure a just and speedy determination of matters on appeal and

with the concurrence of all judges, decide an appeal by an abbreviated order or by memorandum opinion,

whichever the Appeals Board deems appropriate, in cases that are not legally and/or factually novel or

complex.” Appeals Bd. Prac. & Proc. § 1.3.

1

2018, Employee was assisting a patient in a wheelchair and was attempting to maneuver

the wheelchair onto a curb when she experienced right lower back pain. She reported the

incident to Employer and was provided a panel of physicians from which she selected Dr.

Juris Shibayama. Dr. Shibayama concluded Employee was not a surgical candidate and

referred her to Dr. Jeffrey Hazlewood, a pain management specialist.

In his March 22, 2018 report, Dr. Hazlewood indicated the lumbar MRI was

“unremarkable,” showing degenerative changes only. He later noted “no objective

evidence of radiculopathy” and concluded there were “rather significant non-

physiological signs.” Dr. Hazlewood diagnosed a lumbar strain injury with myofascial

pain and stated “more likely than not that the employment described event 1/31/2018 is

the cause of the lumbar strain and need for further treatment.” However, in an April 16,

2018 report, Dr. Hazlewood concluded he had done “everything I know to do.” He also

commented that he “cannot justify chronic medications for subjective pain and no

objective findings.” Dr. Hazlewood released Employee from his care but indicated he

would see her as needed.

Employee returned to Dr. Hazlewood in May 2018 with complaints of pain and

weakness in her right foot and leg. Dr. Hazlewood ordered an EMG of Employee’s right

lower extremity that was interpreted as normal. Employee asserted that Dr. Hazlewood’s

treatment, including the EMG, increased her pain and other symptoms. Dr. Hazlewood

released her again on June 11, 2018, concluding he had nothing else to offer her.

In July 2018, Employee sought treatment at a walk-in clinic and was referred to

Seven Springs Orthopedics, where she was seen by Caitlyn Clemmer, a physician’s

assistant working under the supervision of Dr. Jason Jones. Ms. Clemmer’s report noted

Employee’s belief that Dr. Hazlewood “vigorously maneuvered” Employee’s back and

caused “further harm.” Ms. Clemmer opined that “it is reasonable to conclude that her

current symptoms may be reasonably referable to the trauma incident described in her

history.” (Emphasis in original.) She also noted “it is at least ‘probable’ that many of her

on-going acute symptoms . . . may be related to the work-related incident.” 2

In April 2019, Dr. Shibayama opined that Employee’s current low back and right

hip conditions were not more than fifty percent related to the work injury. He also stated

that her ongoing need for medical treatment was not more than fifty percent related to the

work injury.

Employee was also evaluated by Dr. Tarek Elalayli on April 24, 2019. Dr.

Elalayli noted the MRI findings were “quite benign” and concluded Employee suffered a

low back strain as a result of the work accident. He stated Employee had severe arthritis

2

Ms. Clemmer’s January 25, 2019 “Sworn Declaration,” as included in the record on appeal, was not

signed by the supervising physician.

2

in her right hip but opined it was a “pre-existing condition and certainly less than 50%

related to her work injury.” Dr. Elalayli did not believe Employee suffered “any type of

acute anatomic changes to her lower back.”

Thereafter, Employer filed a motion for summary judgment, arguing that

Employee could not present sufficient evidence that her medical conditions or her need

for additional medical treatment arose primarily from the work accident. During the

hearing on Employer’s motion, Employee argued she had presented sufficient evidence

from Ms. Clemmer as to the cause of her medical conditions and need for additional

treatment to survive Employer’s motion for summary judgment. The trial court granted

Employer’s motion and dismissed Employee’s claim. Employee has appealed.

A motion for summary judgment should be granted when “the pleadings,

depositions, answers to interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The

burden is on the party pursuing summary judgment to demonstrate both that no genuine

issue of material fact exists and that the moving party is entitled to a judgment as a matter

of law. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 83 (Tenn. 2008). If the moving

party makes a properly supported motion, the burden of production then shifts to the

nonmoving party to demonstrate the existence of a genuine issue of material fact at the

summary judgment stage. Rye v. Women’s Care Ctr. of Memphis, PLLC, 477 S.W.3d

235, 265 (Tenn. 2015).

In the present case, we agree with the trial court that Employer presented sufficient

evidence that Employee’s medical conditions and current need for treatment did not arise

primarily from the January 31, 2018 work accident. This evidence satisfied Employer’s

burden of production under Rule 56. As a result, the burden shifted to Employee to come

forward with sufficient evidence showing a genuine issue of material fact as to the cause

of her medical conditions and need for additional treatment. However, the sworn

declaration of a physician’s assistant, without more, cannot create a genuine issue of

material fact as to the issue of causation. A physician’s assistant, like a nurse

practitioner, is not qualified to offer an expert opinion on medical causation. See Dorsey

v. Amazon.com, Inc., No. 2015-01-0017, 2015 TN Wrk. Comp. App. Bd. LEXIS 13, at *9

(Tenn. Workers’ Comp. App. Bd. May 14, 2015). Moreover, Ms. Clemmer couched her

opinions in terms such as “may be reasonably referable” and “may be related.” Such

opinions, even if admissible, do not meet the standards to satisfy causation set forth in

Tennessee Code Annotated section 50-6-102(14)(B) (2019). Thus, we conclude

Employee did not come forward with sufficient evidence at the summary judgment stage

to show a genuine issue of material fact as to the issue of medical causation. We

therefore affirm the trial court’s order granting Employer’s motion for summary

judgment and certify it as final.

3

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Vera Adiole ) Docket No. 2018-06-0451

)

v. ) State File No. 13008-2018

)

Logan Senior Care, LLC, et al. )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Kenneth M. Switzer, Chief Judge )

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced

case was sent to the following recipients by the following methods of service on this the 16th day

of December, 2019.

Name Certified First Class Via Via Sent to:

Mail Mail Fax Email

Vera Adiole X X 850 Richards Road, Apt. R6

Antioch, TN 37013

vadiole712@icloud.com

A. Allen Grant X agrant@eraclides.com

mjohnson@eraclides.com

Kenneth M. Switzer, Chief Judge X Via Electronic Mail

Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov

Workers’ Compensation Claims

Jeanette Baird

Deputy Clerk, Workers’ Compensation Appeals Board

220 French Landing Dr., Ste. 1-B

Nashville, TN 37243

Telephone: 615-253-0064

Electronic Mail: WCAppeals.Clerk@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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