Opinion

Carlson, Jennifer v. First Call Temporary Services

  • 2023 TN WC 70
Court
Tennessee Court of Workers' Compensation Claims
Filed
Oct 2, 2023
Status
Published
On the bench
Kenneth M. Switzer
Cited by
0 cases

The opinion

FILED

Oct 02, 2023

08:34 AM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT NASHVILLE

Jennifer Carlson, ) Docket No. 2022-06-1626

Employee, )

v. )

First Call Temporary Services, ) State File No. 46642-2022

Employer, )

And )

Zurich American Insurance Co., ) Judge Kenneth M. Switzer

Carrier. )

EXPEDITED HEARING ORDER DENYING BENEFITS

Jennifer Carlson requested an evidentiary hearing on whether she is entitled to

additional benefits for an alleged hip injury she suffered while working for First Call

Temporary Services. First Call argued that the injury did not arise primarily out of

employment. After an expedited hearing on September 27, 2023, the Court finds her

expert’s opinion on causation is speculative. Therefore, at this time, Ms. Carlson is not

entitled to the requested benefits.

Claim History

Ms. Carlson alleged that she was injured working for First Call on June 30, 2022.

Her affidavit states that after picking an order, she “felt pain in [her] lower back, left

hip/groin area and lower abdomen.”1

First Call offered a panel, and she chose Dr. Wayne Moore. Dr. Moore saw her four

times in July. The diagnoses varied throughout several visits, but notably he found low

back pain, a sprain of the lumbar spine and pelvis, pelvic and perineal pain, and abdominal

pain. Dr. Moore’s treatment focused on Ms. Carlson’s low back symptoms.

1

The parties previously disputed whether the alleged groin injury resulted in a hernia, but Ms. Carlson said

she was not pursuing benefits at this hearing for that injury/condition.

1

On July 28, Dr. Moore ordered a CT scan of the pelvis and abdomen and wrote that

she should return to see him in a week. However, the scan results showed no acute

abnormalities. In an August 5 work status note, Dr. Moore wrote that he treated Ms.

Carlson for “back pain.” He advised her to see her primary care physician. Authorized

treatment ceased at that point.

Ms. Carlson then treated on her own with an orthopedist beginning in April 2023.

She reported hip pain from a work incident, and an MRI revealed a torn labrum. Dr.

Christopher Jones noted on May 2, 2023, that he believed “her hip pain is possibly directly

related to her work injury [one] year ago. She had no pain in the hip previously, and MRI

was never obtained during her initial workup[.]” A later note read, “ I discussed with her

that its [sic] likely her work injury [that] caused her labral tear and resultant pain.” Dr.

Jones performed arthroscopic surgery in June and recommended physical therapy

afterward. Ms. Carlson has participated in therapy but has now exhausted the available

insurance benefits and cannot complete therapy or return for additional treatment.

In a previous order, and relevant to Ms. Carson’s current requested relief, the Court

deemed admitted the following facts: Ms. Carlson suffered from chronic hip pain before

June 30, 2022; she did not experience a sudden onset of pain in her hips on that date; and

she cannot state with certainty when her alleged hip pain began.

Findings of Fact and Conclusions of Law

At the close of proof, First Call moved for an involuntary dismissal of the request

for expedited hearing under Rule 42.01 of the Tennessee Rules of Civil Procedure. The

Court took the motion under advisement but now grants it.

In Garcia Carillo v. Sanchez Hurtado, 2023 TN Wrk. Comp. App. Bd. LEXIS 40,

at *9-10 (Aug. 16, 2023), the Appeals Board explained involuntary dismissals at this stage

of the case. The Board wrote, “[I]in the context of an expedited hearing in which an

employee seeks an interlocutory order compelling the provision of certain benefits, a

defendant in the case can, at the close of the employee’s proof, seek a ruling from the court

as to whether the employee’s evidence fails to support an interlocutory order for benefits.”

If the motion is granted, the trial court may deny the request for benefits. Id. at *10. This

is a dismissal of the employee’s requested benefits, not a dismissal of the employee’s claim

as a whole. The trial court must determine whether the employee offered sufficient

evidence to show she is likely to prevail at a hearing on the merits. Id.

Here, Ms. Carlson offered Dr. Jones’s causation opinion to support her request. He

wrote, “I feel that her hip pain is possibly directly related to her work injury [one] year ago.

She had no pain in the hip previously, and MRI was never obtained during her initial

workup[.]” (Emphasis added).

2

That opinion falls short of what the Workers’ Compensation Law requires to prove

an “injury.” To prevail at trial, Ms. Carlson must show that her alleged injury arose

primarily out of and in the course and scope of her employment. She must show to a

reasonable degree of medical certainty that a work incident contributed more than fifty

percent in causing her need for medical treatment. Tenn. Code Ann. § 50-6-102(12)(A)-

(C). In addition, and importantly, subdivision (D) clarifies, “‘Shown to a reasonable degree

of medical certainty’ means that, in the opinion of the physician, it is more likely than not

considering all causes, as opposed to speculation or possibility.” Id. at -102(12)(D)

(Emphasis added).

The Court finds that Dr. Jones’s use of the language “possibly directly related to her

work injury” conveys impermissible speculation and possibility. Moreover, he wrote that

she had no previous hip pain, which conflicts with Ms. Carlson’s admission that she

suffered from chronic hip pain before June 30, 2022. Therefore, the Court cannot find that

Dr. Jones considered all causes. Ms. Carlson has not satisfied her burden on this record.

The Court holds Ms. Carlson is not likely to prevail at a hearing on the merits that her hip

condition arose primarily out of and in the course and scope of employment, so involuntary

dismissal of her hearing request is appropriate.

Ms. Carlson may obtain additional evidence and renew her request at a later hearing.

IT IS ORDERED AS FOLLOWS:

1. Ms. Carlson’s requests for additional medical and temporary disability benefits

are denied at this time.

2. A status hearing is set for November 20, 2023, at 1:30 p.m. Central Time. The

parties must dial (615) 532-9552 or (866) 943-0025 to participate.

ENTERED October 2, 2023.

________________________________________

JUDGE KENNENTH M. SWITZER

Court of Workers’ Compensation Claims

3

APPENDIX

Technical record:

1. Petition for Benefit Determination

2. Motion to Withdraw

3. Order Granting Motion to Withdraw

4. Mileage reimbursement request

5. Status Hearing Order, November 1, 2022

6. Status Hearing Order, December 20, 2022

7. Dispute Certification Notice, and the Parties’ list of issues

8. Request for Scheduling Hearing

9. Status Hearing Order, January 18, 2023

10. Employer’s Witness and Exhibit List, February 6, 2023

11. Employer’s Brief, February 6, 2023

12. Request for continuance, February 20, 2023

13. Notice of Settlement, February 22, 2023

14. Order Setting Status Hearing

15. Order Resetting Status Hearing, April 25, 2023

16. Hearing Request (Declaration is not notarized, so it’s argument not sworn

testimony)

17. Order Setting Expedited Hearing

18. Employer’s Motion to Deem Requests Admitted

19. Employer’s Witness and Exhibit List for Expedited Hearing, September 12, 2023

20. Employer’s Pre-Hearing Statement, September 12, 2023

21. Order Deeming Requests for Admissions as Admitted

Evidence:

1. Ms. Carlson’s Declaration

2. C-42 Choice of Physician form

3. Wage statement

4. Dr. Moore C-32

5. Composite medical records

6. Dr. Moore’s causation letters

4

CERTIFICATE OF SERVICE

I certify that a copy of this Order was sent as indicated on October 2, 2023.

Name Certified Regular Email Sent to

Mail mail

Jennifer Carlson, X X 101 Portland Courtyard Dr.

employee Apt. 145

Portland TN 37148

Carlson703@gmail.com

Allen Grant, X agrant@eraclides.com

Benjamin Norris, bnorris@eraclides.com

employer’s attorneys

_______________________________________

PENNY SHRUM

Clerk, Court of Workers’ Compensation Claims

WC.CourtClerk@tn.gov

5

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

v.

___________________________________________________________________________

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):

□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________

□ Compensation Order filed on__________________ □ 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 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 I 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

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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