The opinion
FILED
Dec 19, 2019
02:29 PM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT CHATTANOOGA
Natacha Hudgins, ) Docket No.: 2017-01-0690
Employee, )
Vv. )
Global Personnel Solutions, Inc., ) State File No.: 92112-2016
Employer, )
And )
American Zurich Insurance Co., ) Judge Thomas Wyatt
Carrier. )
)
EXPEDITED HEARING ORDER GRANTING TEMPORARY DISABILITY AND
MEDICAL BENEFITS
The Court held an Expedited Hearing on December 17, 2019. The issues were
whether Natacha Hudgins’s lumbar condition arose primarily out of and in the course and
scope of employment and, if so, whether she established entitlement to temporary
disability and medical benefits. For the reasons below, the Court awards Ms. Hudgins
temporary disability and medical benefits.
History of Claim
Before her injury, Ms. Hudgins worked for fifteen years through Global Personnel
Solutions as a material handler for a plant that manufactured batteries. Her job required
walking throughout the plant, including up and down stairs, and standing for long periods
of time. She had no physical conditions that restricted her from working at Global.
On November 23, 2016, Ms. Hudgins fell, striking her right hand and right knee.
She immediately reported her injury, and Global authorized medical care. She continued
to work every day following the fall, despite developing a limp because of right-knee
pain.
Ms. Hudgins eventually came under the care of orthopedist Dr. Carl Dyer, whom
she selected from a panel. After a period of conservative treatment, Dr. Dyer referred
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Ms. Hudgins to Dr. Martin Redish, who recommended total replacement of her right
knee. Global authorized only a partial knee replacement after utilization review; Dr.
Redish performed that surgery on October 11, 2017.
Ms. Hudgins testified that she began to experience back and hip pain, along with
swelling and numbness in her legs and feet, when she began undergoing therapy
following surgery. Two weeks after surgery, Dr. Dyer noted that Ms. Hudgins was using
a walker and “has had a flare-up of bursitis in the right hip subsequent to surgery.” Over
the next few monthly visits, Dr. Dyer noted the persistence of complaints of hip pain and,
on exam, observed atrophy of Ms. Hudgins’s right quadriceps muscle. By February
2018, Dr. Dyer diagnosed Ms. Hudgins with a flexion contracture in her right knee and
noted her primary complaint of right-hip pain that “she states . . . came on as a result of
her having to walk with an alternative gait.”
Dr. Redish continued seeing Ms. Hudgins for follow-up of her knee surgery. He
did not suggest additional knee surgery and placed her at maximum medical
improvement from the standpoint of her knee surgery in October 2018. Ms. Hudgins
continued under Dr. Dyer’s care after Dr. Redish released her.
On September 13, 2018, Dr. Dyer noted Ms. Hudgins had made minimal progress,
“does not walk step over step,”’ and complained of stiffness in her knee and back pain
radiating into the hip and, at times, down her right leg. Lumbar x-rays revealed “marked
narrowing of the L4-L5 interspace with almost complete obliteration of the interspace.”
A later MRI showed osteophyte formation at the L4-L5 level with potential compression
of the L4 nerve root. On September 27, Dr. Dyer noted, “I feel like this (Ms. Hudgins’s
back, hip and leg symptoms) is at the very least an aggravation of a preexisting problem
secondary to walking with [a] flexion contracture of the right knee.”
Dr. Dyer eventually referred Ms. Hudgins to Dr. Adam Caputo for a surgical assessment
of her lumbar condition. Dr. Caputo encouraged continued conservative care but also
recommended either fusion or decompression surgery at the L4-L5 level, depending on
whether the L4-L5 interspace is too badly collapsed to support a fusion. Global
authorized the decompression surgery but not the fusion following utilization review.
Ms. Hudgins filed a Petition for Benefit Determination seeking authorization of
the fusion surgery. Global challenged the necessity of the fusion surgery and the work-
relatedness of Ms. Hudgins’s spinal condition. Global continued to deny authorization
even after utilization review later certified the full surgery that Dr. Caputo recommended.
"Dr. Redish also noted Ms. Hudgins’s difficulty ambulating in his post-surgery examinations. Following
his last visit with her on May 3, 2018, Dr. Redish described Ms. Hudgins’s gait as “walking stiff legged
with a cane even though she is able to flex her knee nicely.”
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Ms. Hudgins requested this Expedited Hearing seeking authorization of the full
surgery and payment of temporary disability benefits. During the hearing, Ms. Hudgins
testified that she has been disabled from working since her knee surgery. She informed
Global when Dr. Redish released her from his care, but Global did not offer her a position
because it required a full release, which she did not have. Ms. Hudgins testified that she
has not sought work elsewhere because of her spine-related symptoms.
Dr. Dyer has kept Ms. Hudgins under restrictions since at least the middle part of
2018. On December 11, 2018, he modified her restrictions to no repetitive lifting,
bending, stooping, pulling, and tugging. While Dr. Dyer’s next two notes did not
specifically discuss restrictions, he wrote in a September 10, 2019 note that her “[w]ork
restrictions are the same.” Global paid Ms. Hudgins temporary partial disability benefits”
until April 2019, when it ceased benefits, apparently because Dr. Redish had earlier
placed her at maximum medical improvement from the right-knee surgery.°
On the issue of the work-relatedness of Ms. Hudgins’s spinal condition, both
parties submitted causation letters to Dr. Dyer. Dr. Dyer responded to Ms. Hudgins’s
letter in May 2019 by confirming that he treated both her right-knee injury and the
degenerative conditions in her lumbar spine and indicating that “these conditions arise
primarily out of and in the course and scope of employment.” (Emphasis added.) He
also stated that it was “unknown” when Ms. Hudgins would attain maximum medical
improvement from her injuries.
In August 2019, Global asked Dr. Dyer by letter: “Does it seem more likely than
not that her symptoms to her back are the result of her modifying the way that she walks
because of her knee injury?” Dr. Dyer responded, “[p]ossibly—the patient also has Deg.
Disk Disease. See med record.’* Global asked Dr. Caputo to address causation, but he
declined.
Global argued that it does not owe any of the benefits Ms. Hudgins seeks because
her lumbar and hip conditions are not work-related. Global contended that Dr. Dyer’s
causation opinion is insufficient to establish that Ms. Hudgins’s lumbar and hip injuries
arose primarily out of and in the course and scope of employment. It also argued that
Ms. Hudgins cannot recover benefits for her hip and back injuries because she did not
injure those parts of the body in her fall at work. Finally, Global asserted that even if Ms.
Hudgins establishes causation, she did not prove entitlement to temporary disability
benefits because Dr. Redish placed her at maximum medical improvement in October
2018.
> The Wage Statement documents an average weekly wage of $389.86 and a compensation rate of
$259.91. The parties agreed that these calculations are correct.
> Ms. Hudgins argued that Global “pulled the plug” on all her benefits once it learned Dr. Caputo
recommended surgery.
“The only causation discussion in Dr. Dyer’s records is his September 13, 2018 office note.
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Findings of Fact and Conclusions of Law
General Legal Principles
Ms. Hudgins must come forward with sufficient evidence from which the Court
can determine she is likely to prevail at a hearing on the merits. See Tenn. Code Ann. §
50-6-239(d)(1) (2019); MeCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). To do this, she must show that her alleged
injuries arose primarily out of and in the course and scope of employment. This includes
showing “to a reasonable degree of medical certainty that [the work incident] contributed
more than fifty percent (50%) in causing . . . disablement or need for medical treatment,
considering all causes.” “Shown to a reasonable degree of medical certainty” means that,
in the opinion of the treating physician, it is more likely than not considering all causes as
opposed to speculation or possibility. Injuries that aggravate pre-existing conditions are
compensable if the aggravation arose primarily out of and in the course and scope of
employment. See Tenn. Code Ann. § 50-6-102(14).
Causation
Here, only Dr. Dyer addressed the causation of Ms. Hudgins’s back condition. In
his September 13, 2018 records, Dr. Dyer wrote, “I feel like [Ms. Hudgins’s back, hip
and leg symptoms are] at the very least an aggravation of a preexisting problem
secondary to walking with a flexion contracture of the right knee.” Dr. Dyer’s responses
to Ms. Hudgins’s causation inquiry confirmed this opinion. However, Global argued that
Dr. Dyer’s use of the word “possibly” in response to its letter makes his causation
responses too equivocal to support an award of benefits. See Tenn. Code Ann. § 50-6-
102(14) (opinions based on “speculation or possibility” cannot form the basis of an award
of benefits).
The Court does not consider that Dr. Dyer’s use of the word “possibly” in
responding to Global’s letter casts his opinion into the realm of speculation. Global’s
causation question emphasized only one side of the inquiry—whether “her symptoms to
her back are the result of her modifying the way that she walks due to her knee injury.”
Dr. Dyer stated that the modification in Ms. Hudgins’s gait “possibly” caused her lumbar
symptoms but did so in the context of a reminder that she also had degenerative disk
disease. Dr. Dyer then referred back to his medical records for his opinion that the gait
change aggravated Ms. Hudgins’s degenerative disk disease.
After reviewing Dr. Dyer’s responses in context with the entire evidentiary record,
the Court holds that Ms. Hudgins established that she will likely prevail at trial in
showing that her lumbar and hip conditions arose primarily out of and in the course and
scope of employment. The Court finds Dr. Dyer’s opinion—that an altered gait resulting
4
from knee surgery aggravated Ms. Hudgins’s degenerative disk disease, causing her need
for back surgery—persuasive, as it presents the clearest opinion on the cause of Ms.
Hudgins’s hip and lumbar conditions. Based on that opinion, the Court holds that Ms.
Hudgins will likely prevail at trial in establishing that her need for back surgery arose
primarily out of and in the course and scope of employment. See generally Panzarella v.
Amazon.com, Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 30, at *14-15 (May 15, 2017),
(“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 fact that Ms. Hudgins did not originally hurt her lumbar spine in the fall at
work does not preclude the compensability of the lumbar conditions. In Ogden v.
McMinnville Tool and Die, Inc., 2018 TN Wrk. Comp. App. Bd. LEXIS 14, at *10-11
(May 7, 2018), the Workers’ Compensation Appeals Board held:
We note the general rule in Tennessee that a “subsequent injury,
whether in the form of an aggravation of the original injury or a new and
distinct injury, is compensable if it is the ‘direct and natural result’ of a
compensable injury.” Anderson v. Westfield Grp., 259 8.W.3d 690, 696
(Tenn. 2008). The rule, commonly referred to as the direct and natural
consequences rule, has been described as follows: “[w]Jhen the primary
injury is shown to have arisen out of and in the course of employment,
every natural consequence that flows from the injury likewise arises out
of the employment.” Jd. at 696-97. Therefore, “all the medical
consequences and sequelae that flow from the primary injury are
compensable.” Rogers v. Shaw, 813 S.W.2d 397, 400 (Tenn. 1991).
In view of the above authority and the evidence here, the Court holds that Ms.
Hudgins will likely prevail in proving at trial that her lumbar and hip conditions are the
direct and natural consequence of the gait change brought about by her work-related
right-knee injury. Consequently, she is entitled to benefits for those conditions, including
authorization of the surgery Dr. Caputo recommended, should he still recommend it.
Temporary Disability Benefits
The Court next addresses Ms. Hudgins’s claim for temporary disability benefits.
To recover these benefits, Ms. Hudgins must show she would likely prevail at trial in
establishing the following: (1) she suffered a disability from working as the result of a
compensable injury; (2) a causal connection exists between the injury and the inability to
work; and (3) the duration of the period of disability. Shepherd v. Haren Const. Co., Inc.,
2016 TN Wrk. Comp. App. Bd. LEXIS 15, at *13 (Mar. 30, 2016). The Court holds she
carried this burden.
On December 11, 2018, Dr. Dyer placed various restrictions on Ms. Hudgins’s
activities and never removed them. His most recent office note, dated September 2019,
stated that her restrictions “are the same.” Considering this evidence and the above
rulings, the Court holds that, at trial, Ms. Hudgins will likely satisfy the first two prongs
of the above-stated test.
The Court further holds Ms. Hudgins will likely establish a period of disability
beginning on the date Global ceased temporary disability benefits and concluding on the
date that Ms. Hudgins either returns to work or reaches maximum medical improvement
from her lumbar and hip injuries.
Therefore, Global shall pay Ms. Hudgins accrued temporary partial disability
benefits in the amount of $259.91 per week for the period beginning the date Global
ceased paying benefits to the date of this order. Global shall continue those payments
until Ms. Hudgins either returns to work or is placed at maximum medical improvement
for her lumbar injuries.
IT IS, THEREFORE, ORDERED as follows:
1. Global shall promptly authorize Ms. Hudgins to return to Dr. Caputo and perform
the lumbar surgery, should Dr. Caputo continue to recommend it. Global shall
also authorize on-going treatment of Ms. Hudgins’s right-knee and hip injuries
with Dr. Dyer.
2. Global shall pay temporary partial disability benefits in a lump-sum calculated by
determining the number of weeks since the date Global ceased paying temporary
benefits and the date of the first payment of temporary benefits under this order.
Afterward, Global shall pay temporary benefits weekly or biweekly until Ms.
Hudgins either returns to work or is determined at maximum medical
improvement from her lumbar and hip injuries. The weekly compensation rate is
$259.91.
3. This case is set for a Status Hearing at 3:00 p.m. Eastern Time on March 20,
2020. The parties shall call (615) 741-3061 or toll-free at (855) 747-1721 to
participate in the Status Hearing. You must call on the scheduled date/time to
participate. Failure to call in might result in a determination of the issues without
your participation.
4. 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
6
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.
5. For questions regarding compliance, please contact the Workers’ Compensation
Compliance Unit via email WCCompliance.Program(@in.gov.
ENTERED December 19, 2019.
Vy lel hy f-
Judge Thomas Wyatt
Court of Workers’ Compensation Claims
Appendix
Technical Record:
Petition for Benefit Determination filed October 3, 2017
Petition for Benefit Determination filed July 24, 2019
Dispute Certification Notice
Request for Expedited Hearing
Notice of Expedited Hearing
Employer Witness and Exhibit List
Employer Pre-Hearing Brief
NAV YH
Exhibits:
Wage Statement
Choice of Physician form
First Report of Injury
Affidavit of Natacha Hudgins
Medical records submitted by Ms. Hudgins
Medical records submitted by Global
Utilization Review certification
NAV RYN
CERTIFICATE OF SERVICE
I certify that a copy of the Order was sent as indicated on December 19, 2019.
Name Certified | Email | Service sent to:
Matthew Goleman Xx mcoleman@loganthompsonlaw.com
Employee’s Attorney Ihaywood@loganthompsonlaw.com
Tiffany Sherrill Xx tbsherrill@mijs.com
Employer’s Attorney clalmeida@mijs.com
Yorn Shue pulptsrnusasten Y)
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:
L.
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.
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.
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.
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: (l)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 to.ov/labor-wid/weamp shim
we.courtclerk@itn.gav
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]
C1 Temporary disability benefits
C1 Medical benefits for current injury
C1 Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party):
Address:
Party’s Phone: Email:
At Hearing: DEmployer CEmployee
Attorney’s Name: BPR#:
Attorney's Address: Phone:
Attomey’s City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellant *
L8-1099 rev. 10/18 Page 1 of 2 RDA 11082
Emplayee Name: SFa: Dol:
Appellee(s)
Appellee (Opposing Party): == CA Hearing: JEmployer (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 Mall, postage prepaid, to all parties
and/or thelr 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
!
because of my poverty, | am unable to bear the cos
waived. The following facts support my poverty.
4. Full Name:
3. Telephone Number:
Tennessee Bureau of Workers' Compensation
220 French Landing Drive, I-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
5. Names and Ages of All Dependents:
2. Address:
, having been duly swom according to law, make oath that
ts of this appeal and request that the filing fee to appeal be
4. Date of Birth:
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:
$
B. | receive or expect to receive money from the following sources:
AFDC $
ssl $
Retirement $
Disabllity $
Unemployment $
Worker's Comp.$
Other $
LB-1108 (REV 11/15)
per month
per morith
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 $_ sper month Clothing $_ sper 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 $ Deséribe:
11. My debts are:
Amount Owed To Whom
I 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 PUBLIG
My Commission Expires:
LB-1108 (REV 11/15) RDA 11082