The opinion
FILED
May 29, 2020
03:03 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
KRISTEN SCHUBERT, ) Docket No.: 2018-05-1213
Employee, )
Vv. )
)
CURAHEALTH BOSTON, LLC, ) State File No.: 87914-2018
Employer, )
And )
)
PMA INS. GROUP, ) Judge Robert Durham
Insurer. )
COMPENSATION HEARING ORDER
The Court held a Compensation Hearing on May 22, 2020, to determine whether
Ms. Schubert’s cervical disc herniation arose primarily out of a work-related incident on
August 28, 2018. As outlined below, the Court holds that Ms. Schubert did not prove by
a preponderance of the evidence that it did.
History
Ms. Schubert, a registered nurse, worked as a “nurse manager” for Curahealth. She
alleged that on August 28, 2018, she attempted a “solo-lift” to pull a patient toward the
head of her bed. As she did, she felt pain in her right shoulder but considered it to be only
a pulled muscle. She said the discomfort was no more than typical aches and pains a nurse
might experience. No one witnessed the event, and she did not notify anyone at Curahealth
of this alleged incident before she finished her shift.
Ms. Schubert stated that she had a typical night at home until she awoke with intense
pain in the right side of her neck that radiated to her hand. She claimed to have never
experienced these symptoms before. Ms. Schubert went to work the next day and told her
supervisors about the symptoms. She denied engaging in any non-work-related strenuous
activities on or around the 28". Ms. Schubert conceded that she told her supervisors she
had no idea how her injury happened.
The following day, Ms. Schubert went to a clinic. The record from that visit noted
complaints of “back pain,” but did not address causation. The nurse practitioner gave her
medication and lifting restrictions. Ms. Schubert also saw a chiropractor the same day.
The initial note did not mention causation. An additional note stated that she suffered from
“chronic R sided neck and UB MM spasm that flared up since a couple of days, numbness
and tingling to arm and hand.”
A week later, Ms. Schubert visited another urgent care clinic, where she saw
Physician Assistant Joseph Weatherby. PA Weatherby’s note stated that Ms. Schubert
claimed she “woke up from sleep and felt like she had a cramp in her neck.” It did not
reference a work-related injury. He referred Ms. Schubert for an MRI, which revealed a
large, right disc herniation at C6-7. He then recommended her to Dr. George Lien for a
neurosurgical evaluation.
Before her visit with Dr. Lien, Ms. Schubert returned to PA Weatherby on
September 8 for additional pain medication. On exam, he noted some strength loss in her
right arm. He diagnosed right cervical disc prolapse with radiculopathy and wrote a work-
excuse stating she could not lift due to a “spinal disc protrusion.”
Ms. Schubert testified that even after this visit, she “had no idea” what her MRI
revealed, nor did she “necessarily” know that she might require surgery. She also stated
that she had not reported an injury to Curahealth at this point because after her initial flare-
up, her symptoms subsided and she felt they were only “normal” aches and pains
experienced by any nurse.
Dr. Lien saw Ms. Schubert on September 11. The note stated that she “denied any
antecedent trauma.” Ms. Schubert testified that after several questions from Dr. Lien, they
concluded that the herniation occurred with the lifting event. Dr. Lien recommended a
cervical fusion.
The next day, Ms. Schubert notified her supervisors that she believed she suffered
a work injury on August 28 and wished to file a claim. A week later, Curahealth offered
her a panel of orthopedists that included Dr. Tarek Elalayli.
Dr. Elalayli saw Ms. Schubert on October 29, 2018. She told him that on August
28, she felt immediate pain in the right side of her neck when she pulled on a “drawsheet”
to move a patient lying in bed. She said that by the next day, she was suffering severe pain
that radiated to her right arm. Dr. Elalayli reviewed her MRI, and noting the large
herniation at C6-C7, recommended a cervical fusion.
Following the visit, Curahealth denied Ms. Schubert’s claim. Dr. Elalayli
performed the fusion under Ms. Schubert’s personal health insurance. He kept her off work
until March 20, 2019, and placed her at maximum medical improvement on May 2, 2019.
He assigned a seven percent whole-body impairment.
As to causation, Dr. Elalayli testified on both direct and cross-examination that if
Ms. Schubert told the truth when she relayed her history to him, it was his opinion that the
herniation arose primarily out of and in the course and scope of her employment. He stated
that lifting patients was consistent with her injury, and he doubted that a herniated disc
could have happened in her sleep. On the other hand, if Ms. Schubert were not telling the
truth about the work incident, he did not believe the herniation was work-related.
Paul Stone, Ms. Schubert’s boyfriend, also testified. He had lived with Ms.
Schubert for the last five years and worked as a licensed practical nurse at Curahealth on
August 28. He stated that he could not remember Ms. Schubert undertaking any strenuous
activity on or before the 28. On that evening, they ate dinner, watched television, and
then went to bed. Ms. Schubert did not say anything to him about hurting her neck or
shoulder at work, and she moved normally. He confirmed that she woke around one a.m.
complaining of severe right neck and shoulder pain. She did not mention a work injury
then or the next morning.
Mr. Stone recalled that, as Ms. Schubert’s symptoms worsened despite time and
medication, he grew increasingly concerned. However, he could not remember Ms.
Schubert mentioning a work injury until she discussed it with Dr. Lien, and they “put it all
together.” Finally, he believed Ms. Schubert to be a credible, truthful person.
The parties stipulated that August 28, 2018, was the alleged injury date and that Ms.
Schubert provided statutory notice. They agreed to a compensation rate of $899.02 and
that Ms. Schubert missed 20.29 weeks of work. They also agreed to Dr. Elalayli’s seven
percent whole-body impairment and that Ms. Schubert would not be entitled to increased
permanent partial disability benefits. Finally, the parties stipulated that Dr. Elalayli’s
treatment was reasonable and necessary and, if the injury were compensable, Ms.
Schubert’s health insurance is entitled to $23,100.75 in reimbursement. !
Findings of Fact and Conclusions of Law
Ms. Schubert has the burden of proving the essential elements of her workers’
compensation claim by a preponderance of the evidence. Scott v. Integrity Staffing
Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). The parties
agree that the only disputed issue is whether Ms. Schubert met her burden in proving that
she sustained a work-related injury to her cervical spine on August 28, 2018. After
considering the record and the testimony, the Court holds that Ms. Schubert did not satisfy
her burden of proof.
' Except for Ms. Schubert’s motion for attorney’s fees, the parties stipulated to all other potential issues.
Since she was the only witness to the alleged work incident, Ms. Schubert’s
credibility is the key factor in determining whether she proved causation. In Kelly v. Kelly,
445 S.W.3d 685, 694-695 (Tenn. 2014), the Supreme Court set out the criteria trial courts
should use in assessing witness credibility. Trial courts should consider whether a witness
is “calm or agitated, at ease or nervous, self-assured or hesitant, steady or stammering,
confident or defensive, forthcoming or deceitful, reasonable or argumentative, honest or
biased.” Jd.
During her testimony, Ms. Schubert appeared nervous. Her voice was often
tremulous and without much volume. She frequently fluttered her eyelids and often looked
away as she gave her testimony. She seemed evasive when answering certain critical
questions, such as those related to causation. She was more confident in tone, volume, and
body language when giving undisputed facts. Based on these observations, the Court was
not persuaded by Ms. Schubert’s demeanor to find her credible as to causation.
Ms. Schubert’s testimony, along with the medical records, confirmed the Court’s
doubt as to her account of the alleged workplace incident. She admitted that on August 28,
she did not tell anyone at work about hurting her shoulder. She also did not tell her
boyfriend about a work injury that evening, not even after she woke him during the night
in extreme pain, nor did she say anything the next morning.
At work, she told her supervisors about her symptoms but did not tell them about
the lifting incident. Instead, she told them that she did not know how the injury happened.
She saw three different health care providers before seeing Dr. Lien, but she never
mentioned a work incident. She stated that it wasn’t until consulting with Dr. Lien that she
finally linked her condition to the August 28 event; however, Dr. Lien’s note specifically
stated that she “denied any antecedent trauma.”
Ms. Schubert’s history compelled her to walk a tightrope between remembering a
specific injury and explaining why she didn’t tell anyone about it until after the surgery
recommendation. She attempted to do so by stating that since her symptoms abated after
that initial flare-up, she did not think it necessary to try and remember a traumatic event
that could have caused such an injury.
The Court finds that the record does not support this rationale. Both Ms. Schubert
and Mr. Stone are trained nurses with substantial experience. According to the records,
she experienced increasing signs of radiculopathy with numbness and weakness as well as
increased pain radiating down her arm into her right hand. After the MRI, PA Weatherby
scheduled an immediate follow up with a neurosurgeon. When she returned a few days
later, he diagnosed a cervical disc protrusion with radiculopathy and wrote her a work
excuse stating that she should not be lifting until she saw a neurosurgeon for a “cervical
disc protrusion.”
Nevertheless, Ms. Schubert maintained that she “had no idea” what the MRI
revealed until she saw Dr. Lien, and it was not until he began questioning her that she
finally made the connection between the lifting incident and her herniation. The Court
finds this statement to be less than credible serves to damage her credibility regarding the
alleged lifting incident as well.
In light of the conclusions above, the Court holds that Ms. Schubert failed to meet
her burden of proof regarding causation. Thus, the Court denies her claim. Based on this
holding, Ms. Schubert’s motion for attorney’s fees is denied as well.
Absent an appeal, this order shall become final thirty days after issuance.
Curahealth shall pay costs of $150 to the Court Clerk within five business days of this order
becoming final. It shall also prepare and submit to the Court Clerk a Statistical Data Form
within ten days of the order becoming final.
IT IS ORDERED.
ENTERED May 29, 2020.
Robert ¥-Dirham, Judge
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
Is Dr. Elalayli’s deposition with collective medical records attached.
2% Blue Cross Blue Shield’s statement of medical expenses.
3. Pre-Compensation Hearing Statement
4. First Report of Injury
Technical Record:
l. Petition for Benefit Determination
2. Dispute Certification Notice
3. Motion for Attorney’s Fees
4. Ms. Schubert’s Pre-Compensation Hearing Brief
5. Ms. Schubert’s Witness and Exhibit List
6. Curahealth’s Witness and Exhibit List
CERTIFICATE OF SERVICE
A copy of this Order was sent as indicated on May 29, 2020.
Name Certified Via Via_ | Service sent to:
Mail Fax Email
Steven Fifield x steven@rockylawfirm.com
Richard Clark xX rclark@eraclides.com
Patsy Bumbalough xX Patsy.bumbalough@tn.gov
/S/ Penny Shrum
Penny Shrum, Clerk
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
Compensation Hearing Order Right to Appeal:
If you disagree with this Compensation Hearing Order, you may appeal to the Workers’
Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers’
Compensation Appeals Board, you must:
1. Complete the enclosed form entitled: “Notice of Appeal,” and file the form with the
Clerk of the Court of Workers’ Compensation Claims within thirty calendar days of the
date the compensation hearing order was filed. When filing the Notice of Appeal, you
must serve a copy upon the opposing party (or attorney, if represented).
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 filing 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 your 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. A licensed court
reporter must prepare a transcript and file it with the court clerk within fifteen calendar
days of the filing the Notice of Appeal. Alternatively, you may file a statement of the
evidence prepared jointly by both parties within fifteen calendar 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
of the evidence 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. After the Workers’ Compensation Judge approves the record and the court clerk transmits
it to the Appeals Board, a docketing notice will be sent to the parties. The appealing
party has fifteen calendar days after the date of that notice to submit a brief to the
Appeals Board. See the Practices and Procedures of the Workers’ Compensation
Appeals Board.
To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing
Order must be final and you must comply with the Tennessee Rules of Appellate
Procedure. If neither party timely files an appeal with the Appeals Board, the trial court’s
Order will become final by operation of law thirty calendar days after entry. See Tenn.
Code Ann. § 50-6-239(c)(7).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.:
State File No.:
Date of Injury:
Employee
Employer
Notice is given that
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
XO Expedited Hearing Order filed on O Motion Order filed on
LF Compensation Order filed on 1 Other Order filed on
issued by Judge
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Parties
Appellant(s) (Requesting Party): CT Employer|_| Employee
Address: Phone:
Email:
Attorney’s Name: BPR#:
Attorney’s Email: Phone:
Attorney’s Address:
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
Employee Name: Docket No.: Date of Inj.:
Appellee(s) (Opposing Party): Employer |__ Employee
Appellee’s Address: Phone: _
Email:
Attorney’s Name: BPR#:
Attorney’s Email: Phone:
Attorney’s Address:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, , certify that | have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the day of , 20
[Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 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 All 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
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 $ per month 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