The opinion
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
ROSALIND VALERIO, ) Docket No. 2019-06-0971
Employee, )
V. )
CITY OF SPRING HILL, ) State File No. 30370-2018
TENNESSEE, )
Employer, )
And, ) Judge Joshua Davis Baker
PUBLIC ENTITY PARTNERS, )
Carrier. )
EXPEDITED HEARING ORDER
Ms. Valerio requested additional medical benefits and reinstatement of temporary
partial disability benefits for a left-foot injury. The City of Spring Hill denied these benefits
asserting she needed no further treatment and was released to return to work without
restrictions. After an August 18, 2020 Expedited Hearing, the Court holds Ms. Valerio is
not entitled to additional medical benefits or reinstatement of temporary partial disability
benefits.
Claim History
The City of Spring Hill accepted an injury Ms. Valerio suffered on June 18, 2019,
when she bumped a disassembled couch and pieces of it fell on her left foot. She chose a
provider from a panel and saw a physician assistant that day.
The physician assistant noted a contusion on Ms. Valerio’s left foot, and X-rays
showed no fracture or significant soft-tissue swelling. Ms. Valerio continued to complain
of pain, so she returned a couple of weeks later.
When Ms. Valerio saw the physician assistant again, she underwent more x-rays
with physician assistant noting a “small bone chip.” She wrote, “Initially x-rays at Spring
Hill Imaging without fracture, today one taken here with small bone chip noted at 5"
]
metatarsal, recommend Orthopedic referral for further evaluation and off work until
Orthopedic appointment.”
Eight days later, Ms. Valerio visited orthopedist Dr. Chase Corn, whom she chose
from a panel, and he explained that x-rays showed an “os peroneum” but no fracture or
malalignment. His physical examination of Ms. Valerio’s foot revealed “minimal
swelling” and “no obvious bruising.” He observed a disparity between her subjective
complaints and her foot’s condition and candidly wrote, “Structurally, her foot seems to be
okay. She notes that she is unable to bear weight and in severe pain. I cannot explain this
based on her exam.” So, Dr. Corn ordered an MRI, restricted her work, and gave her an
orthotic boot until he could review the results.
Two days later, the MRI showed nothing wrong with Ms. Valerio’s foot other than
an unrelated ganglion cyst. Dr. Corn concluded that “her imaging studies profoundly
contradict” her pain complaints. He described a “bizarre encounter” in which Ms. Valerio
vehemently insisted a bone was sticking out of her foot. He tried to explain that she did
not need surgery because she had “normal imaging studies.” He concluded, “[T]here is
nothing to be repaired.” Because Ms. Valerio would not accept his conclusion, he
encouraged her to seek a second opinion.
Ultimately, Spring Hill authorized Ms. Valerio to see two orthopedists and a
physiatrist, and all agreed that she had no fracture, abnormality, or foot malalignment. All
noted a small “os peroneum,” described by the physiatrist as a small piece of cartilage
common in about one-fourth of the population.
However, Ms. Valerio appeared at her appointments in an orthotic boot and
complained of severe pain, saying that wearing tennis shoes “[felt] like someone [was]
stabbing her in the side of the foot.” She testified that walking barefoot was very
uncomfortable and that she could only walk without her orthotic boot for very short periods
of time. She also said she still wears her boot everywhere, limps, and deals with pain.
Investigator James Richardson, who filmed Ms. Valerio on three days in September
and October, testified he only saw her limping or using her orthotic boot for doctors’
appointments or at her employer’s office in City Hall. On September 13, he filmed her
walking barefoot in her yard and observed no limping or other signs of discomfort. Later
that day, Ms. Valerio wore the orthotic boot into City Hall but walked easily without it
while shopping in flip flops later that afternoon. On October 16, Mr. Richardson observed
her walking without a limp or the orthotic boot. On October 30, Ms. Valerio wore the
orthotic boot into a doctor’s appointment. Later that afternoon, she went shopping in tennis
shoes, without limping or exhibiting any discomfort.
On October 30, Spring Hill filed a Notice of Change or Termination, terminating
Ms. Valerio’s temporary disability benefits after physiatrist Dr. Jeffrey Hazlewood placed
her at maximum medical improvement without permanent impairment or restrictions.
Findings of Fact and Conclusions of Law
Ms. Valerio must demonstrate that she is likely to prevail at a final hearing in
proving that she needs additional treatment caused by the work injury and that she earned
less than her average weekly wage due to work restrictions. See Tenn. Code Ann. § 50-6-
239(d)(1) (2019).
Given the relief requested and facts presented, the Court must decide two issues: 1)
whether Ms. Valerio’s foot still requires treatment “made reasonably necessary” by her
work accident; and, 2) whether a treating physician imposed restrictions that the City of
Spring Hill cannot accommodate, which would entitle her to reinstatement of temporary
partial disability benefits. The Court finds neither issue in her favor.
First, the Court finds Ms. Valerio is unlikely to prove she needs additional treatment
“made reasonably necessary” by her injury because the only admissible expert medical
proof of causation suggested she suffered a contusion and needs no further treatment. The
opinion that she suffered a more severe injury came from a physician assistant, who is not
an expert qualified to testify about medical causation. Dorsey v. Amazon.com, Inc., 2015
TN Wrk. Comp. App. Bd. LEXIS 13, at *9 (May 14, 2015). The Court cannot accept a
physician assistant’s opinion over two orthopedists and a physiatrist. Accordingly, the
weight of the medical evidence shows that Ms. Valerio suffered only a contusion and needs
no further treatment.!
Second, the Court finds Ms. Valerio is unlikely to prove entitlement to temporary
partial disability benefits at a final hearing. To recover these benefits, she must prove she
earned less than her average weekly wage due to work restrictions. See Tenn. Code Ann.
§ 50-6-207(2)(A). Since the City of Spring Hill terminated temporary partial disability
benefits on October 30 when Dr. Hazlewood returned Ms. Valerio to work without
restrictions, the Court holds she failed to prove entitlement to temporary partial disability
benefits.
! Also, these physicians’ objective findings and the investigator’s observations suggest that Ms. Valerio
exaggerated both her pain and her capability. In this Court’s view, these objective findings and observations
weaken her assertion that she needs additional medical treatment.
IT IS ORDERED as follows:
1. The Court denies Ms. Valerio’s requested relief.
2. The Court sets this claim for a scheduling hearing on October 26, 2020, at 9:30_
a.m. Central Time. The parties must call (615) 741-2113 or toll-free at (855) 874-
0474 to participate. Failure to call might result in a determination of the issues
without the party’s participation.
ENTERED August 31, 2020.
C \ * >y—__
=)
JudgeSoshua Davis Baker
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
NAW RB WN
Medical Records
Affidavit of Ms. Valerio
First Report of Injury
Wage Statement
Notice of Change of Termination of Benefits
Teksid Complaint and Agreed Order
Investigative Reports and Photographs of Mr. Richardson
Technical Record:
SANNA YWN SE
Petition for Benefit Determination
Dispute Certification Notice
Request for Expedited Hearing
Motion to Continue
Response to Motion to Continue
Order Granting Motion to Continue
Order Setting Status Conference
Motion to Conduct Expedited Hearing by Videoconference
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on August 31, 2020.
Name Certified | Email | Service sent to:
Rosalind Valerio, X | Rvnemak0O1@gmail.com
Employee
Jennifer Orr, X | Jennifer.orr@farrar-bates.com,
Employer’s Attorney Rebecca.mcfadden@farrar-bates.com
TLrnn x ft (a
Penny Shrum,((ourt Clerk
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: “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
conceming 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.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
we.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):
D Expedited Hearing Order filed on UO) Motion Order filed on
O Compensation Order filed on 0 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): ['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 !nj.:
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