Harrison, Elizabeth v. Chattanooga Staffing ( 2021 )

FILED
Apr 26, 2021
12:53 PM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Elizabeth Harrison ) Docket No. 2018-01-0699
)
v. ) State File No. 58404-2018
)
Chattanooga Staffing, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Audrey A. Headrick, Judge )
Affirmed and Remanded
This is an interlocutory appeal following the third expedited hearing in this case. The
employee, a caregiver, alleged that she injured her left shoulder while moving a
paraplegic client. The employer initially provided workers’ compensation benefits, but it
terminated temporary disability benefits after the employer offered to return the
employee to work in a light duty position. Following the first expedited hearing, the trial
court ordered the payment of temporary disability benefits after concluding the
employee’s refusal to work light duty was reasonable. After a second expedited hearing,
the trial court discontinued temporary disability and medical benefits based on the
causation opinion of the authorized physician. The employee sought unauthorized
treatment, including shoulder surgery, and later requested a third expedited hearing in
which she asked the court to compel the employer to provide additional medical
treatment for her left shoulder. The trial court concluded the employee failed to provide
sufficient evidence to demonstrate she was likely to prevail at trial and denied her request
for medical benefits. The employee has appealed. Having carefully reviewed the record,
we affirm the trial court’s denial of medical benefits and remand the case.
Judge Pele I. Godkin delivered the opinion of the Appeals Board in which Presiding
Judge Timothy W. Conner and Judge David F. Hensley joined.
Charles G. Wright, Jr., Chattanooga, Tennessee, for the employee-appellant, Elizabeth
Harrison
Rosalia Fiorello, Nashville, Tennessee, for the employer-appellee, Chattanooga Staffing
1
Factual and Procedural Background
Elizabeth Harrison (“Employee”), a caregiver for Chattanooga Staffing
(“Employer”), reported that she experienced a tearing and burning sensation across her
neck and into her left shoulder while moving a paraplegic patient on July 16, 2018. She
notified Employer of the incident and sought unauthorized medical treatment two days
later with her primary care physician, Dr. Andrew Mendoza. Dr. Mendoza prescribed
medication and placed Employee in a sling. Employer subsequently provided a panel of
physicians from which Employee selected Physicians Care, where she was evaluated on
July 23. The provider at Physicians Care placed Employee on restrictions of right arm
use only with continued use of the sling as needed. Employee remained under these
restrictions until the authorized provider made a referral to an orthopedist on August 22.
Dr. Justin Arnold, an orthopedic physician selected from an Employer-provided panel,
first saw Employee on August 29 and diagnosed her with “left bursitis/rotator cuff
impingement.” During this visit, he placed Employee on restrictions of no lifting with
her left arm and no overhead work. Employee continued to follow up with Dr. Arnold
for her left shoulder complaints. In a November 20 medical note, Dr. Arnold stated:
At this point, I do not believe her pain symptoms are explained by the
pathology in the shoulder as the MRI was only positive for bursitis and AC
osteoarthritic changes and her shoulder joint seems to be fairly benign at
present. Given the failure of injections, therapies, and medications to
relieve any type of muscle soreness and concern for nerve irritation [sic]. I
do feel like this has been consistent from the beginning. I do believe it is
related to [the] original injury as she was doing kind of a pulling torqueing
mechanism trying to support her client in a chair, which would be
somewhat consistent with potential nerve irritation. Therefore, I really
would strongly favor evaluation by a spine surgeon.
Dr. Arnold continued Employee’s restrictions and advised he would see her following an
evaluation by a spinal surgeon.
Employee filed a petition for benefits, and on December 12, 2018, a dispute
certification notice was filed identifying the disputed issue as Employee’s entitlement to
temporary disability benefits. As a defense, Employer noted Employee’s refusal to
accept light duty work and a “[p]ossible pre-existing condition.” Employee subsequently
filed a request for an expedited hearing.
Employee was evaluated by Dr. J. Alex Seilatycki, a spine surgeon, on April 9,
2019. Dr. Seilatycki diagnosed a herniated disc at C5-C6 and recommended a cervical
discectomy and fusion. On May 6, counsel for Employer sent a letter to Dr. Sielatycki
presenting the following questions:
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1. Can you state to a reasonable degree of medical certainty that
[Employee’s] employment and/or work injury with [Employer]
primarily caused [Employee’s] current complaints/symptoms as they
relate to her left shoulder and cervical spine, that is, did [her] work-
related accident on July 16, 2018, contribute more than 50% in causing
the injury, considering all possible causes?
2. Can you state to a reasonable degree of medical certainty that
[Employee’s] employment and/or work injury contributed more than
50% in causing the need for surgical intervention of the cervical spine?
Dr. Sielatycki responded to the first question stating, “[g]iven reports from prior
[h]ospitals, I cannot state her disc disease is definitely [greater than] 50% related.” In
response to the second question, he wrote, “I rely solely on patient report of symptoms to
determine time course. Surgery is warranted to treat her condition. I cannot prove the
need for surgery is [greater than] 50% related to the injury in question.”
The trial court conducted an expedited hearing on June 4, but Employer did not
receive Dr. Sielatycki’s responses to its questionnaire in time to submit those responses
for consideration at the hearing. Medical causation was not identified as a disputed issue
at the hearing, and the only issue decided by the court was whether it was reasonable for
Employee to refuse the light duty work offered by Employer. In an order issued on June
10, 2019, the court concluded Employee’s refusal to attempt the light duty work was
reasonable and ordered Employer to pay past and ongoing temporary disability benefits.
The following day, Employer filed a motion to reopen the proof, noting that it had
received responses from Dr. Sielatycki addressing causation. The trial court denied
Employer’s motion, and neither the June 10 expedited hearing order nor the order
denying Employer’s motion to reopen the proof was appealed.
On October 25, 2019, Employer filed a request for a hearing after filing a motion
to terminate benefits. A dispute certification notice was issued on November 25, 2019,
identifying medical benefits and compensability as the disputed issues. In the second
expedited hearing, Employer argued that the trial court should discontinue Employee’s
temporary partial disability benefits and deny additional medical benefits “based on the
causation responses of [the] panel physician, Dr. Alex Sielatycki.” In its December 20,
2019 order, the trial court stated that to “prove [an] entitlement to medical benefits,
[Employee] must show, to a reasonable degree of medical certainty, that the incident
‘contributed more than fifty percent (50%) in causing the . . . need for medical treatment,
considering all causes.’” Tenn. Code Ann. § 50-6-102(14) (2020). In addition, the court
stated that Employee “presented no testimony or other proof to contradict Dr. Sielatycki’s
causation responses,” and “[f]or that reason, the [c]ourt holds that [Employee] failed to
overcome the statutory presumption afforded to Dr. Sielatycki.” The court concluded
Employee was not likely to prevail at a hearing on the merits and denied further
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temporary disability and medical benefits. Employee did not appeal the December 20,
2019 order.
Employee filed another petition for benefits on August 12, 2020. The following
month, she underwent shoulder surgery that was paid for by an indigent care program. 1
Following an unsuccessful mediation, Employee requested a third expedited hearing,
which was conducted telephonically on February 2, 2021. The sole issue before the trial
court at that time was whether Employer should be ordered to provide additional medical
benefits related to Employee’s left shoulder. During the hearing, Employee
acknowledged that no physician had causally related her current symptoms to the July
2018 work incident, and Employee did not submit any medical proof to contradict Dr.
Sielatycki’s opinions. The trial court concluded that Employee failed to provide
sufficient evidence demonstrating she was likely to prevail at trial and denied her request
for additional medical benefits. Employee has appealed.
Standard of Review
The standard we apply in reviewing the trial court’s decision presumes that the
court’s factual findings are correct unless the preponderance of the evidence is otherwise.
See Tenn. Code Ann. § 50-6-239(c)(7) (2020). However, a trial court’s findings based
upon documentary evidence is reviewed do novo with no presumption of correctness.
Goodman v. Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at
*6 (Tenn. Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and
application of statutes and regulations are questions of law that are reviewed de novo with
no presumption of correctness afforded the trial court’s conclusions. See Mansell v.
Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are
also mindful of our obligation to construe the workers’ compensation statutes “fairly,
impartially, and in accordance with basic principles of statutory construction” and in a
way that does not favor either the employee or the employer. Tenn. Code Ann. § 50-6-
116 (2020).
Analysis
Employee asserts the trial court erred in declining to order Employer to provide
additional medical benefits because “Dr. Sielatycki never treated or examined the
shoulder injury of [Employee]” and “the record is devoid of any evidence to the
contrary.” She further contends the referral to Dr. Sielatycki was for neck pain, which is
separate from the shoulder injury that Dr. Arnold was treating. In contrast, Employer
contends the trial court did not err in denying additional medical benefits because
1
Employee testified that she underwent surgery for her shoulder, but it is unclear who performed the
surgery or what specific condition the surgery addressed, as those medical records are not included in the
record on appeal.
4
Employee “presented no evidence at the expedited hearing to rebut Dr. Sielatycki’s
causation opinion.”
At an expedited hearing, an employee need not prove each and every element of
his or her claim by a preponderance of the evidence in order to obtain temporary
disability benefits or medical benefits. McCord v. Advantage Human Resourcing, No.
2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Tenn. Workers’ Comp.
App. Bd. Mar. 27, 2015). Instead, an employee has the burden to come forward with
sufficient evidence from which the trial court can determine that the employee is likely to
prevail at a hearing on the merits consistent with Tennessee Code Annotated section 50-
6-239(d)(1). Id. Thus, while an injured worker retains the burden of proof at all stages of
a workers’ compensation claim, a trial court can grant relief at an expedited hearing if the
court is satisfied that an employee has met the burden of showing that he or she is likely
to prevail at a hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(1).
In the present case, Employee had the burden of coming forward with sufficient
proof that the July 16, 2018 work incident “contributed more than fifty percent (50%) in
causing [her] . . . disablement or need for medical treatment, considering all causes.” See
Tenn. Code Ann. § 50-6-102(14). In her brief on appeal, Employee asserts “this is not a
case of establishing the right to medical benefits . . . [it] is a case of preventing
[Employer] from terminating medical benefits which it acknowledged it was liable for
and which it provided for some time.” More specifically, she asserts that Dr. Sielatycki’s
opinion is not controlling with respect to Employee’s shoulder because he only evaluated
her neck. Although Dr. Sielatycki did not address her shoulder condition in his medical
opinions, we nonetheless conclude that Employee failed to show she is likely to prevail in
proving a causal link between her shoulder condition and the July 2018 work incident. 2
The trial court has conducted three expedited hearings to date. During the first
expedited hearing, the sole issue concerned Employee’s entitlement to temporary
disability benefits. At that time, Employer was voluntarily providing medical benefits
and medical causation was not addressed by the trial court. The court concluded
Employee was entitled to temporary disability benefits, and that order was not appealed.
However, after obtaining causation opinions from the authorized physician, Dr.
Sielatycki, Employer requested a second expedited hearing in which it sought to have the
court terminate benefits. Following the second expedited hearing, the trial court noted in
its order that Employee “presented no testimony or other proof to contradict Dr.
Sielatycki’s causation responses,” and the court concluded that Employee “failed to
2
In response to Employee’s argument that Employer should not be able to terminate medical benefits for
the shoulder, “which it acknowledged it was liable for and which it provided for some time,” we note that
Dr. Arnold opined that Employee’s pain symptoms could not be explained by the shoulder pathology and
that he “strongly favor[ed]” a referral to a spine surgeon, which Employer authorized. We disagree that
Employer has “acknowledged” it is liable for additional medical treatment for the left shoulder at this
stage of the case.
5
overcome the statutory presumption afforded to Dr. Sielatycki.” Based upon the absence
of proof addressing Dr. Sielatycki’s causation opinions, the trial court found that
Employee “is not likely to prevail at a hearing on the merits that she is entitled to further
medical benefits. In addition, the trial court ordered that Employer “may terminate
temporary disability benefits.” Employee did not appeal that order.
The third expedited hearing, which is at issue in this appeal, was conducted in
response to Employee’s request for continued medical benefits for her left shoulder. The
trial court heard Employee’s lay testimony, noted her acknowledgment “that no physician
causally related her current symptoms to the work incident,” and determined she
“presented no testimony or other proof to contradict Dr. Sielatycki’s causation
responses.” We conclude the evidence does not preponderate against the trial court’s
finding that Employee’s evidence is insufficient at this stage to conclude she will likely
prevail at trial.
Although Employee underwent unauthorized surgery for her left shoulder, she
provided no medical proof addressing causation from the operating surgeon or any
provider who treated her subsequent to her surgery. Dr. Arnold, Employee’s initial panel
orthopedist, offered no opinion on causation in his medical records beyond noting that
Employee’s “pain symptoms are not explained by the pathology in the shoulder” and
stating that he does believe “it is related to the original injury as she was doing kind of a
pulling torqueing mechanism trying to support her client . . . .” Based on Dr. Arnold’s
treatment and Employee’s response to the treatment, Dr. Arnold stated that he “strongly
favor[ed] evaluation by a spine surgeon,” but he never offered any opinion addressing
whether Employee suffered an injury in July 2018 that arose primarily out of her
employment.
Although we have noted in previous cases that a physician need not use any
specific language to establish proof of medical causation, we have emphasized that the
physician’s opinion must be sufficient to find the injury was primarily caused by the
employment. As we have explained:
We do not conclude that a physician must use particular words or phrases
included in the statutory definition of “injury” to establish the requisite
medical proof to succeed at trial. Thus, a physician may render an opinion
that meets the legal standard in section 50-6-102(14) without couching the
opinion in a rigid recitation of the statutory definition. What is necessary,
however, is sufficient proof from which the trial court can conclude that the
statutory requirements of an injury as defined in section 50-6-102(14) are
satisfied.
Panzarella v. Amazon.com, No. 2015-01-0383, 2017 TN Wrk. Comp. App. Bd. LEXIS
30, at *14 (Tenn. Workers’ Comp. App. Bd. May 15, 2017). Hence, in the present case,
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we conclude Employee has offered no expert proof from which the trial court could
conclude she is likely to prevail at trial in establishing the requisite proof of medical
causation. 3
The burden of establishing that an injury or a recommended course of treatment is
causally related to a work accident rests on the injured worker, not the authorized
physician. Moreover, an employee’s lay testimony, standing alone, is insufficient to
establish medical causation. See Scott v. Integrity Staffing Solutions, No. 2015-01-0055,
2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *12 (Tenn. Workers’ Comp. App. Bd. Aug.
18, 2015). Because we conclude the evidence provided in Dr. Arnold’s medical records
regarding Employee’s left shoulder do not meet the threshold requirements of section 50-
6-102(14), we agree there is insufficient evidence at this stage of the case to conclude
Employee is likely to prevail at trial.
Conclusion
We conclude the preponderance of evidence supports the trial court’s
determination that, at this stage of the litigation, Employee’s proof fails to establish she
will likely prevail at trial. We affirm the result reached by the trial court and remand the
case. Costs on appeal are taxed to Employee.
3
We note that the trial court’s characterization of Dr. Sielatycki’s causation responses is problematic.
The trial court concluded that Dr. Sielatycki’s opinions established that Employee’s injuries were not
primarily caused by her employment. However, in his responses to the questions presented by
Employer’s counsel, Dr. Sielatycki noted he “cannot state [Employee’s] disc disease is definitely [greater
than] 50% related” to her work injury.” (Emphasis added.) He also noted that “surgery is warranted to
treat her [cervical] condition” but stated he “cannot prove the need for surgery is [greater than] 50%
related to the injury in question.” Dr. Sielatycki has yet to address whether Employee has a cervical spine
condition caused primarily by the alleged work injury. Dr. Sielatycki’s responses also fail to address
causation for Employee’s left shoulder complaints.
7
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Elizabeth Harrison ) Docket No. 2018-01-0699
)
v. ) State File No. 58404-2018
)
Chattanooga Staffing, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Audrey A. Headrick, 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 26th day
of April, 2021.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Charles G. Wright, Jr. X wrightandwoodward@gmail.com
Brent A. Morris X bmorris@wimberlylawson.com
Rosalia Fiorello rfiorello@wimberlylawson.com
Audrey A. Headrick, Judge X Via Electronic Mail
Kenneth M. Switzer, Chief Judge X Via Electronic Mail
Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov
Workers’ Compensation Claims
Olivia Yearwood
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov