Schubert, Kristin v. CuraHealth Boston, LLC , 2020 TN WC App. 34 ( 2020 )

FILED
Oct 06, 2020
01:00 PM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Kristin Schubert ) Docket No. 2018-05-1213
)
v. ) State File No. 87914-2018
)
CuraHealth Boston, LLC, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Robert V. Durham, Judge )
Reversed and Remanded
The employee, a nurse manager, alleged suffering a work-related injury when she adjusted
a patient’s position in bed. The following day she advised her employer she was
experiencing pain but stated she did not know how she had hurt herself. The employee
sought medical care and was referred to a neurosurgeon after an MRI disclosed a cervical
disc protrusion. Following a discussion with the neurosurgeon, the employee concluded
the work incident had caused her injury. The employee timely reported her injury as being
work-related, and the employer provided a panel of physicians. Following the employee’s
initial visit with the panel physician, the employer denied the claim based on its review of
reports of the employee’s earlier medical visits in which she did not mention a work-related
injury. Following a trial, the court denied the employee’s claim, concluding she failed to
prove that her injury arose primarily out of the alleged work-related incident. The
employee has appealed. We reverse the trial court’s order denying the employee’s claim
and remand the case for the trial court to enter judgment against the employer for the
benefits the parties stipulated the employee would be owed in the event her claim was
determined to be compensable, and to address the employee’s motion for attorneys’ fees.
Judge David F. Hensley delivered the opinion of the Appeals Board in which Presiding
Judge Timothy W. Conner and Judge Pele Godkin joined.
Steven C. Fifield, Hendersonville, Tennessee, for the employee-appellant, Kristin Schubert
Richard R. Clark, Jr., Nashville, Tennessee, for the employer-appellee, CuraHealth Boston,
LLC
1
Factual and Procedural Background
Kristen Schubert (“Employee”) was employed as an interim nurse manager for
CuraHealth Boston, LLC (“Employer”), at the time of her alleged injury. She described
her duties to include helping with orders, lab draws, and patient care. Employee contends
she suffered a work-related injury on August 28, 2018, when she attempted to adjust a
patient’s position in bed. Employee testified she “pulled her up,” and that she “kind of felt
a little muscle twinge in [her] shoulder, [but] didn’t think anything of it at the time, went
back to work, went home that night, and woke up in excruciating severe pain.”
Employee described the pain she felt when she pulled the patient up in bed as being
typical pain she often experienced in her work. She stated that “after working [twelve]
hours on your feet all day, you feel little aches and pain all the time.” She said that when
she pulled the patient up in bed, she did not have any reason to believe that she had been
seriously injured. She described the remainder of her day as being “normal,” stating that
she went home, ate dinner, watched television, went to bed, “and woke up around 1:00 a.m.
in just severe, severe pain.” Employee testified the pain was in her right shoulder and neck
and described the pain as “[shooting] down through my right arm into my fingers. It felt
like just a major like cramp.” She did not initially associate the pain she experienced during
the night with repositioning the patient at work the previous day, stating “[t]he only thing
I could think of was how do I make this pain stop.” She took Tylenol and massaged her
shoulder, stating that she “finally got it to relax a little, so [she] went back to sleep.”
Employee reported to work later that day and told some co-workers about her pain
but later testified, “it didn’t connect still that [the pain] was anything to do with work.”
She told Employer’s Chief Clinical Officer, her immediate supervisor, and Employer’s
Chief Executive Officer that she had hurt herself somehow, but “didn’t know how,” adding
that “we didn’t connect [the pain] to anything.” She stated these individuals asked if she
was okay, and she responded that she “was okay to work.” However, she noted that her
pain “didn’t get any better that day and [she took] off the next day [to] go see if [she] could
get a muscle relaxer or something to help ease the pain.” Employee stated that her
supervisors did not ask if she needed to report a work injury, and “just asked if [she] was
okay, if [she] was feeling okay.”
On August 30, 2018, Employee went to a chiropractor and to a walk-in medical
clinic. The record of the chiropractic visit indicated that Employee had chronic right-sided
neck spasm “that flared up since couple of days” and was experiencing “numbness and
tingling to [right] arm and hand.” The records of the walk-in medical clinic indicated the
reason for Employee’s visit was “[b]ack [p]ain” and included diagnoses of dorsalgia,
cervicalgia, and acute pain of right shoulder. Employee was prescribed medication for pain
and muscle spasms and was given a note stating she could return to light duty with a 20-
pound lifting restriction through September 6, 2018. Employee testified she told both the
chiropractor and the walk-in clinic provider that she had been experiencing pain for a
2
couple of days but she did not mention the work incident to either provider because she
“thought it was a muscle pull, crick in the neck, just normal wear and tear of work.”
Over the next week, Employee reported that she did not get any relief from the
muscle relaxers, so she went to Gateway Urgent Care (“Gateway”) on September 6, 2018,
and was seen by Joseph Weathersby, a physician’s assistant. The record of the September
6 visit indicates Employee reported right arm and shoulder pain, numbness, and right upper
back pain for one week, and that she “woke up from sleep and felt like she had a cramp in
her neck.” Cervical and right arm X-rays were obtained, and Employee was referred for a
cervical MRI. She was administered an injection of Toradol for pain and was prescribed
Valium and Percocet.
An MRI was completed on September 7. Employee testified that following the
MRI, Gateway called her and advised they were setting up an appointment with a
neurosurgeon “to read the scans.” Employee testified she did not know what the results of
the MRI were at that time. She returned to Gateway on September 8 and was seen by Caleb
Kent, a nurse practitioner. The September 8 report stated in the “History of Present Illness”
that the MRI “demonstrated cervical disc protrusion,” and that Employee “is scheduled to
follow-up with neurosurgery on Tuesday. Presents today for continued pain medication.
States her pain is not well controlled with current regimen.” The “Assessment” included
in the September 8 report stated, “[c]ervical disc prolapse with radiculopathy.” A separate
“Work/School Medical Excuse” document signed by the nurse practitioner stated that
Employee was seen on September 6 and 8. It included “Restrictions/Limitations” of “[n]o
lifting: light duty until cleared by neurosurgery for spinal disc protrusion.” Employee
testified she delivered this document to Employer on September 10.
Employee saw Dr. George Lien, a neurosurgeon, on September 11. According to
Employee, she and Dr. Lien “discussed things that could have led up to a herniated disc
and just kind of discussing and going over things that had happened since [she] started
having pain.” Further, she testified that “[i]t kind of dawned on [her] at that time that the
only thing that led to the pain was the lifting of the patient. And [Dr. Lien] did . . . confirm
that it was a pretty bad herniated disc, and that [she] would need surgery for it.” Employee
explained that, before meeting with Dr. Lien, she did not realize her injury was a serious
injury that would require surgery. When asked what made her so sure the August 28
incident was the cause of her problems, she responded:
Well, with just speaking to [Dr. Lien] and he asked did I do anything, and
the only thing I had been doing was working. The day that I did start feeling
the pain, the only thing that I did was worked that day. And so that was the
only thing that we could – you know, I kind of based it off of and talked to
him about it.
3
The following day, September 12, Employee went to Employer’s facility and
reported her injury as being caused by the August 28 incident. She obtained paperwork
necessary to file a claim for workers’ compensation benefits, which she completed at home
and emailed to Employer. On September 21, 2018, Employee returned to Gateway and
was seen for the second time by the physician’s assistant, Joseph Weathersby, reporting
“horrible pain in [her] neck.” The September 21 report stated: “[work comp] when lifting
[a 100-pound patient] up in the bed. Couldn’t move [the] next morning. Saw Dr[.] Lien
last [week] on 11th and said surgery asap but [work comp] dragging their feet.”
Employer provided a panel of physicians from which Employee selected Dr. Tarek
Elalayli on September 26, 2018, who she first saw on October 29, 2018. Testifying by
deposition, Dr. Elalayli stated that Employee reported she “was injured at work on August
28, 2018 [when] she was pulling on a drawsheet to move a patient and felt immediate onset
of right-sided neck pain.” Dr. Elalayli noted a large disc herniation at C6-7 on the MRI
and recommended Employee undergo an anterior cervical discectomy and fusion.
Following Employee’s visit with Dr. Elalayli, and after reviewing the reports of
Employee’s earlier chiropractic and medical visits in which Employee did not identify a
work-related accident, Employer denied Employee’s claim. Employee continued treating
with Dr. Elalayli and underwent surgery on January 15, 2019. She testified Employer
terminated her on January 16, 2019. Dr. Elalayli kept Employee out of work from October
29, 2018 until March 20, 2019. He placed her at maximum medical improvement on May
2, 2019, and he testified that Employee retained a seven percent medical impairment to the
body as a result of her injury and surgery. Employee returned to work with another
employer on May 28, 2019.
Employee testified in person at trial as did her boyfriend, a licensed practical nurse
who also worked for Employer at the time of Employee’s alleged work injury. In the trial
court’s order, the court stated that the parties agreed the only disputed issue was “whether
[Employee] met her burden in proving that she sustained a work-related injury to her
cervical spine on August 28, 2018.” The trial court denied Employee’s claim, concluding
that Employee did not satisfy her burden of proof. Noting that Employee was the only
witness to the alleged incident, the trial court stated that Employee’s credibility “is the key
factor in determining whether she proved causation.” The court stated that Employee
“appeared nervous” during her testimony, that her voice “was often tremulous and without
much volume,” and that she “frequently fluttered her eyelids and often looked away as she
gave her testimony.” In addition, the court stated that Employee “seemed evasive when
answering certain critical questions, such as those related to causation.” However, the
court noted that Employee “was more confident in tone, volume, and body language when
giving undisputed facts.” Based on the court’s observations, “the Court was not persuaded
by [Employee’s] demeanor to find her credible as to causation.” The court stated that
Employee’s testimony, “along with the medical records, confirmed the Court’s doubt as to
her account of the alleged workplace incident.” Employee has appealed.
4
Standard of Review
The standard we apply in reviewing a 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) (2019). When the trial judge has had the opportunity
to observe a witness’s demeanor and to hear in-court testimony, we give considerable
deference to factual findings made by the trial court. Madden v. Holland Grp. of Tenn.,
Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar deference need be
afforded the trial court’s findings based upon documentary evidence.” Goodman v.
Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at *6 (Tenn.
Workers’ Comp. Panel Jan. 18, 2018). When the issues involve expert medical testimony
in the record given by deposition, determination of the weight and credibility of the
evidence necessarily must be drawn from the contents of the depositions, and we may draw
our own conclusions as to those issues. See Foreman v. Automatic Sys., Inc., 272 S.W.3d
560, 571 (Tenn. 2008). 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 (2019).
Analysis
Employee contends the trial court erred in concluding her testimony as to causation
was not credible. Additionally, Employee contends that based on the lack of a medical
causation opinion contrary to that of Dr. Elalayli and any “competing testimony or
evidence” to Employee’s testimony, the trial court erred in concluding she did not satisfy
her burden of proof.
In a joint pre-compensation hearing statement, the parties stipulated to certain facts,
including that “Employee’s date of injury [was] August 28, 2018,” and that “Employee
gave verbal notice of the injury to the Employer on September 12, 2018 and written notice
of the injury on September 13, 2018.” 1 The statement included agreed conclusions of law,
including that “Employee provided proper, statutory notice of the injury.”
The trial court’s denial of Employee’s claim rests on its determination that
Employee “failed to meet her burden of proof regarding causation.” Dr. Elalayli testified
that he first saw Employee on October 29, 2018, and that she gave a history of an injury
1
The parties also stipulated to Employee’s weekly compensation rate, the date of her maximum medical
improvement, the number of weeks she was temporarily disabled, her medical impairment rating, the
amount of her medical expenses, and that she had a meaningful return to work and was not eligible for
permanent partial disability enhancement multipliers if her claim was determined to be compensable.
5
occurring on August 28, 2018, when she was “pulling on a drawsheet to move a patient
and felt immediate onset of right-sided neck pain.” He testified he reviewed the September
7, 2018 MRI that showed “a large, right-sided disc herniation at C6-7,” which he said was
consistent with the symptoms Employee reported and consistent with the mechanism of
injury Employee reported. When asked about causation, Dr. Elalayli’s responses included
the following:
Q: Do I have it correct in summarizing your addendum and office note that
it’s your opinion if [Employee] is telling the truth about her incident that your
conclusion is that this is causally related to that incident, but if [Employee]
is lying and instead she was injured in some other fashion and the incident
with the patient didn’t occur then this would not be causally related?
A: Right. I mean, so when I think about causation I rely on the history that’s
provided to me. So assuming the history provided to me is accurate I think I
can pretty safely establish causation. But if a patient wasn’t being honest
with me then that would call the causation into question.
Q: So if [Employee] was being truthful, then, given what you’ve already
testified to today, and what’s contained in your record, is it your belief that
that incident at work is more than 50 percent responsible for her herniation
and the need for treatment?
A: Yes.
....
Q: Based on your personal interactions with [Employee] did you find her to
be a credible patient?
A: I did.
....
Q: So . . . is it your opinion today, to a reasonable degree of medical
certainty, that if [Employee] is telling the truth that she felt immediate pain
while performing her work tasks on August 28th, 2018 and then woke up
with severe pain radiating down her right arm, that incident contributed more
than 50 percent in causing her injury and the need for the treatment that you
ordered and provided?
A: Yes.
6
Q: If [Employee] is lying about that incident and it did not occur, that would
change your opinion to one of no causal relation?
A: Correct.
Dr. Elalayli clearly expressed his opinion that if the August 28, 2018 incident
occurred as reported by Employee, it was more than 50% responsible for Employee’s
injuries and her need for treatment. He also testified he believed Employee to be credible.
However, if the August 28 incident did not occur as reported by Employee, then, according
to Dr. Elalayli, “that would call the causation into question.”
Employee testified it was “typical” for employees to “twist our backs, pull
muscles . . . [and] feel little aches and pains all the time.” She testified that when she
repositioned the patient on August 28, she did not have any reason to believe she had been
seriously injured, and that when she awoke in pain early the next morning she did not
connect the pain she was experiencing with the work incident. She stated she was in such
severe pain when she awoke that she “didn’t know what was going on at the
moment . . . [and] remember[ed] thinking, do I need to go to the hospital.” Employee
testified that, later that day, she told “a couple of people at work, actually a few people,”
about the pain she was experiencing “but it didn’t connect still that it was anything to do
with work.” She told her supervisors she “had hurt [herself] somehow, but didn’t know
how. We didn’t connect [the complaints] to anything.” The trial court characterized this
testimony as Employee telling her supervisors “she had no idea how her injury happened.”
Although Employee did not initially connect her complaints to a specific incident at work,
she testified she believed her symptoms, at least initially, to be nothing more than the usual
aches and pains common to people in her profession. In our opinion, the trial court’s
characterization of Employee’s testimony as telling her supervisors “she had no idea how
her injury happened” fails to take into consideration the entirety of her testimony.
In addressing the initial medical care Employee sought, the trial court noted that the
record of Employee’s August 30, 2018 medical clinic visit “noted complaints of ‘back
pain,’ but did not address causation.” That record also included diagnoses of dorsalgia,
cervicalgia, and acute pain of the right shoulder, consistent with the pain employee was
reporting in her neck and shoulder. Employee testified that neither the provider in the
medical clinic nor the chiropractor she visited on August 30 asked her how she was injured,
and she admitted that she did not mention the work incident to them. She testified that
over the next week, she did not get any relief from the muscle relaxers she was prescribed
at the medical clinic, “so [she] ended up going to Gateway” where she initially saw the
physician’s assistant, Joseph Weathersby, and an MRI was ordered. Employee was still
working at the time.
Addressing how she determined her injury resulted from the August 28 work
incident, Employee testified as follows:
7
A: Dr. Lien and I discussed things that could have led up to a herniated disc
and just kind of discussing and going over things that had happened since I
started having pain. It kind of dawned on me at that time that the only thing
that led to the pain was the lifting of the patient. And he did, you know,
confirm that it was a pretty bad herniated disc, and that I would need surgery
for it.
Q: Before that visit with Dr. Lien, did you realize that this was a serious
injury that was going to require surgery?
A: Not at all.
Q: After the visit, when you had talked about things with the doctor, what
made you so sure that the lift from August 28th was the root cause of your
problems and your issues?
A: Well, with just speaking to him and he asked did I do anything, and the
only thing I had been doing was working. The day that I did start feeling the
pain, the only thing I did was work[] that day. And so that was the only thing
that we could – you know, I kind of based it off of and talked to him about
it.
Employee denied engaging in any other strenuous activities before she started having the
neck and shoulder pain. She testified she did lift a patient at work on August 28, 2018, and
that she felt pain right after the lift. This testimony was unrefuted.
On cross examination, Employee acknowledged that the pain she experienced when
she awoke in the early morning of August 29 was “abnormal” pain and more severe than
the normal aches and pains she described as regularly experiencing at work. She testified
she did not mention the work incident to her boyfriend when she woke him up, stating that
her pain was so severe that she was concerned with how to stop the pain rather than “what
did I do.” She acknowledged she did not tell Employer about the August 28 incident until
September 11, stating that the pain she experienced at the time of the work incident “was
normal” and she had not made the connection between the incident and her herniated disc
until she spoke with Dr. Lien. She denied knowing the results of the September 7 MRI
going into the appointment with Dr. Lien, and she stated that surgery was not discussed
with Dr. Lien until after their discussion regarding what may have caused her herniated
disc.
When asked to explain whether the pain she experienced over the two-week period
from the date of the incident until she saw Dr. Lien was “just [the] normal kind of pain”
she experienced in her work or whether she knew she had more serious pain, Employee
stated that “[d]uring that two weeks when I woke up in severe pain, I took Tylenol,
8
massaged it, put some heat on it and the severe pain went away.” She described the pain
over the ensuing days as not being as severe as it was when she woke up during the night
following the incident, stating on redirect examination that the pain “was still there. It was
major burning, tightness. My arm actually ended up getting weaker over the next two
weeks after that.”
In its order denying Employee’s claim, the trial court stated that Employee’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.” The trial court
stated Employee 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 trial court concluded that the medical records did
not support “this rationale.” The court noted that “[b]oth [Employee] and [Employee’s
boyfriend] are trained nurses with substantial experience.” However, neither Employee
nor her boyfriend testified as expert witnesses. There is no evidence in the record
establishing that either Employee or her boyfriend should have been able to diagnose
Employee’s symptoms or had particular, specialized knowledge that would or should have
put them on notice that Employee had suffered an injury beyond what she described as the
normal types of complaints one experiences in the nursing field. The court did not
elaborate on how Employee and her boyfriend being nurses “with substantial experience”
impacted Employee’s credibility as a lay witness, other than to note that the medical
records revealed Employee experienced increasing signs of radiculopathy with numbness
and weakness following the August 28 incident, while Employee maintained she had no
idea what the September 7 MRI revealed until she saw Dr. Lien. The trial court stated that
Employee contended “it was not until [Dr. Lien] began questioning her that she finally
made the connection between the lifting incident and her herniation.” The trial court found
this testimony “to be less than credible [and] serves to damage her credibility regarding the
alleged lifting incident as well.”
In addressing what the trial court characterized as Employee’s “rationale,” the court
attributed to Employee an attempt to “walk a tightrope” between remembering a specific
injury and explaining why she did not tell anyone about the incident until surgery was
recommended. The court stated that, following the September 7 MRI, the physician’s
assistant Weathersby “scheduled an immediate follow up with a neurosurgeon [and]
[w]hen [Employee] 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.’” (Emphasis added.) However,
Employee was not seen by the physician’s assistant after her initial visit on September 6
until September 21, ten days after Employee had met with Dr. Lien and discussed what
could have caused her herniated disc. Employee testified that following the MRI, Gateway
called her and said they “were going to be setting up an appointment with a neurosurgeon
for him to read the scans. Of course, at the time, I didn’t know what the results was [sic].”
9
She returned to Gateway the following day, September 8, and was seen by a nurse
practitioner, Caleb Kent, for pain, and not by Joseph Weathersby, the physician’s assistant.
The record of Employee’s September 8 visit with the nurse practitioner noted that
she had the MRI the previous day “which demonstrated cervical disc protrusion.” It stated
that Employee “is scheduled to follow-up with neurosurgery on Tuesday,” and that she
presented that day “for continued pain and needing pain medication,” adding that
Employee reported “her pain is not well controlled with current regimen.” The assessment
in the report noted “[c]ervical disc prolapse with radiculopathy,” and a separate
“Work/School Medical Excuse,” signed by the nurse practitioner, included restrictions of
“[n]o lifting: light duty until cleared by neurosurgery for spinal disc protrusion.” These
records do not indicate the physician’s assistant, Weathersby, was involved with
Employee’s September 8 visit to Gateway as indicated by the trial court. Moreover, these
records do not indicate that any medical provider discussed the specific findings of
Employee’s MRI with her at the September 8 visit. While Employee may have assumed
her MRI had positive findings based on her referral to a neurosurgeon, the records do not
indicate those findings were relayed to Employee in any detailed manner. According to
Employee, at her September 8 visit to Gateway she had already been referred to a
neurosurgeon and was there only to follow up for her ongoing pain complaints and
medications. While the record from that visit references the MRI findings, there is no
indication of any discussion with or instruction by the nurse practitioner regarding those
findings.
We are required by statute to presume that the trial court’s factual findings are
correct unless the preponderance of the evidence is otherwise. See Tenn. Code Ann. § 50-
6-239(c)(7). Here, although the parties stipulated that “Employee’s date of injury [was]
August 28, 2018,” the trial court found that Employee did not prove by a preponderance of
the evidence that her cervical disc herniation arose primarily out of a work-related incident
on August 28, 2018. The trial court made that finding based upon its observations of
Employee’s in-court testimony, stating the court “was not persuaded by [Employee’s]
demeanor to find her credible as to causation.”
Except in the most obvious cases, the element of causation must be established by
expert medical evidence. See Hedgecloth v. Cummins Engine Co., No. M2014-01274-SC-
R3-WC, 2015 Tenn. LEXIS 623, at *21 (Tenn. Workers’ Comp. Panel Aug. 7, 2015).
Although an employee’s lay testimony may be relevant to the issue of causation to the
extent such testimony concerns the occurrence of a work-related accident, it is expert
medical proof that satisfies the element of causation, connecting the occurrence of a work-
related accident to the medical condition being treated. See Tenn. Code Ann. § 50-6-
102(14)(C), (E) (2019); 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).
10
In the present case, we conclude the trial court erred in addressing whether
Employee’s demeanor and lay testimony were “credible as to causation.” The question for
determination regarding Employee’s testimony was not whether Employee’s testimony
established causation but whether Employee satisfied her burden of proving by a
preponderance of the evidence the occurrence of a work-related accident.
As previously noted, we give considerable deference to factual findings made by
the trial court when the trial judge has had the opportunity to observe a witness’s demeanor
and to hear in-court testimony. Madden, 277 S.W.3d at 898. Here, the court characterized
Employee’s testimony as “often tremulous and without much volume.” The transcript of
the hearing does not indicate the trial judge had difficulty hearing Employee. The
witnesses did wear masks when testifying due to COVID-19 restrictions as required by the
trial court, but the record does not indicate that the use of masks by witnesses prevented
the trial court from hearing or understanding their testimony. 2
The trial court noted that Employee “frequently fluttered her eyelids and often
looked away as she gave her testimony.” We cannot discern from the record whether, at
trial, witnesses faced the judge or the attorneys who questioned them, or whether the trial
court was referring to Employee looking away from the lawyer questioning her or looking
away from the judge. At the outset of Employee’s testimony, the court asked Employee to
“come up to this chair in the middle,” adding that “I know that feels a little intimidating
there, sitting there kind of exposed,” and the court stated that Employee would need to
speak up during her testimony, as she was soft-spoken. Employee stated she would try to
do so, adding that it was difficult for her. The trial court did note, however, that
Employee’s testimony “was more confident in tone, volume, and body language when
giving undisputed facts.”
Our review of the record does not support a rationale, as expressed by the trial court,
that Employee’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.” It is significant that Employee testified that the recommendation for
surgery came after her discussion with Dr. Lien about what could have caused her injury
and after their conclusion that the lifting incident at work most likely caused her herniated
disc. Employee’s testimony was consistent as to why she did not tell Employer about the
lifting incident until after her visit with Dr. Lien. Her testimony was also consistent with
the history as reflected in the medical records from the providers she saw on August 30
and September 6, 7, and 8, none of which included or addressed a specific incident as being
responsible for the symptoms Employee reported. Moreover, the record does not support
the statement in the trial court’s order in which the court concluded Employee was seen
2
In her brief, Employee asserts that “on at least seven occasions, the judge asked [Employee] to speak up
or repeat what she just said because he was unable to hear or understand her.” Our review of the record
does not indicate the trial judge’s ability to hear or understand the testimony was materially affected by the
masks worn by the witnesses.
11
after the MRI and prior to her visit with Dr. Lien by Joseph Weathersby, the physician’s
assistant at Gateway. Instead, the records indicate that, at the September 8 visit to Gateway,
Employee was seen by a nurse practitioner.
Although the trial court concluded Employee’s in-court demeanor called into
question her credibility, her factual testimony as to how the work incident occurred was
unrefuted. In our opinion, the preponderance of the evidence supports the conclusion that
Employee suffered a work-related injury. There is no dispute that the activities Employee
performed the day before she woke with intense pain were within her job duties. There is
no evidence suggesting that Employee was not working on the day of her alleged injury,
that she was somewhere other than with a patient at the time she alleged to have lifted the
patient, or that she was not assisting a patient at the time the injury occurred. Employee
provided a specific date and time range of when the incident occurred, and there is no
material evidence in the record that her injury occurred in any manner other than as she
testified. The medical records are consistent with the timeline of the injury as given by
Employee, and the records of the providers Employee saw prior to her visit with Dr. Lien
do not indicate those providers made any inquiry as to the mechanism of Employee’s
injury.
While Employee bears the burden of proof on all essential elements of her claim, it
is significant to note that Employer offered no testimony or other evidence to contradict
Employee’s account of how her injury occurred. Employer argued in the trial court that
the evidence addressing whether the incident occurred does not support that it occurred,
that “the timeline” indicates the incident did not occur, and that “the specific nature of the
mechanism of the injury . . . corroborates that this incident did not occur.” Employer
essentially implies that, upon being advised that she needed surgery for her cervical
herniation, Employee fabricated the account of her work injury to receive workers’
compensation benefits. We find no evidence in the record to support this theory, and we
do not find Employer’s argument persuasive. While we must give considerable deference
to the trial court’s credibility determinations, we conclude the preponderance of the
evidence supports the conclusion that Employee sustained an injury by accident in the
course and scope of her employment. Given Dr. Elalayli’s uncontradicted testimony
regarding medical causation, we further conclude Employee proved the essential elements
of her claim and is, therefore, entitled to workers’ compensation benefits in accordance
with the parties’ stipulations.
Conclusion
The preponderance of the evidence does not support the trial court’s determination
that Employee’s cervical disc herniation did not arise primarily out of the August 28, 2018
work incident. Accordingly, we reverse the trial court’s order denying Employee’s claim
and remand the case for the trial court to enter judgment against Employer for the benefits
to which the parties stipulated Employee would be entitled in the event her claim was
12
determined to be compensable and to address Employee’s motion for attorneys’ fees. Costs
on appeal are taxed to Employer.
13
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Kristin Schubert ) Docket No. 2018-05-1213
)
v. ) State File No. 87914-2018
)
CuraHealth Boston, LLC, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Robert V. Durham, 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 6th day
of October, 2020.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Steven C. Fifield X steven@rockylawfirm.com
Teresa Maurer teresa@rockylawfirm.com
Richard R. Clark, Jr. X rclark@eraclides.com
Lauren Ray Hall lrayhall@eraclides.com
Robert V. Durham, 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