Bradford, Charisse v. Western Express, Inc. , 2021 TN WC 178 ( 2021 )

FILED
May 11, 2021
02:43 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
Charisse Bradford, ) Docket No. 2020-06-1525
Employee, )
v. )
Western Express, Inc., ) State File No. 66478-2020
Employer, )
And )
PMA Insurance Co., ) Judge Kenneth M. Switzer
Carrier. )
EXPEDITED HEARING ORDER GRANTING BENEFITS
In this case, Charisse Bradford, a truck driver, alleged she turned a crank forcefully
and woke up in pain the next day. Western Express countered that she only reported an
injury from sleeping, did not report turning the crank and suffered no acute trauma. It also
argued that the injury did not arise primarily from employment.
The Court held an expedited hearing on May 5 on Ms. Bradford’s request for
additional medical and temporary disability benefits. The Court finds Ms. Bradford is
likely to prove at trial that she suffered an injury arising primarily from employment. She
is entitled to a panel of orthopedic specialists and three days of temporary disability
benefits.1
Claim History
Ms. Bradford testified that, approximately two months after she began working for
Western Express, she became injured. She stated, “While I was dropping a load in
Maryland, I used excessive force to turn the crank, because the landing gear was severely
rusted.” It was near the end of a twelve-hour day and she was tired, so Ms. Bradford slept
1
Ms. Bradford also sought reimbursement for mileage for authorized medical visits, which Western Express
agreed to pay.
1
in the truck. The next morning, May 20, 2020, she awoke with pain in her head, neck, back
and hip after sleeping on a mattress that did not fit the space in the cab.
Notably, her pleadings do not mention sleeping. Rather, Ms. Bradford wrote on her
petition for benefit determination that she became injured while “[m]anually lowering the
landing gear on the tractor trailer to disconnect trailer and drop the load.” Her affidavit
similarly states, “[W]hile attempting to manually lower the severally rusted landing gear,
I used excessive force to turn the crank causing severe injuries to my neck, back and hip.”
Ms. Bradford reported the injury the same day to Western Express’s claims
manager, Judy Larson. Ms. Larson testified by affidavit that Western Express maintains a
“standard panel of occupational medicine clinics which is prominently displayed at each
driver terminal” and that Ms. Bradford selected Concentra. Ms. Bradford confirmed that
Ms. Larson read three providers over the phone, and she chose Concentra. Western
Express did not introduce a signed panel.
Ms. Bradford saw a variety of Concentra providers over the next few days.2 First,
she saw physician assistant Robert Jordan on May 22, who diagnosed a headache and
cervical, thoracic and lumbar strains and took her off work. Later, another provider
restricted her to light duty and referred her to physical therapy. At the first session, the
physical therapist wrote, “[R]eports repetitive use of crank on truck and sleeping in a poor
position in the truck caused significant pain in [c]ervical, lumbar spine.” Ms. Bradford
returned to Mr. Jordan, who removed the work restrictions, on June 1.
That same day, Western Express denied the claim, citing “[n]o injury by accident
occurring within the course and scope.”
Over nine months later, Ms. Bradford saw Dr. Sean Lotterer, a chiropractor, who
completed a form C-32. He wrote that the mechanism of injury was “forceful lifting and
turning.” Per Dr. Lotterer, the injury involved an aggravation of a preexisting injury, and
he answered “yes” to questions asking whether her employment activity, more likely than
not, was primarily responsible for advancing the preexisting condition and causing her need
for treatment. In a letter attached to the form, Dr. Lotterer wrote that Ms. Bradford told
him she “was injured on the job on May 19, 2020, while forcefully turning a crank on her
truck,” and he concluded it is “very likely that this injury was the cause of her subjective
complaints.” Dr. Lotterer recommended treatment, which Ms. Bradford could not afford.
2
Ms. Bradford testified that Dr. Joseph Lavori was her primary caregiver at Concentra, but she introduced
no records of his treatment. She alleged that Concentra “altered” the records, or that records were lost in
the mail. Ms. Bradford introduced records showing that Dr. Lavori referred her for x-rays but no other
records of his treatment. No evidence suggested that Concentra providers or record custodians altered any
documents in any substantive way.
2
Ms. Bradford testified that Western Express never paid her for time off from work
or temporary disability benefits, nor did it offer light-duty. She has not worked since the
alleged injury but said Western Express never terminated her.
Western Express offered three affidavits/declarations to support its denial: claims
manager Larson, claims adjuster Kathy Ballinger, and physician assistant Jordan.
Ms. Larson stated that Ms. Bradford called her “to report that she woke up with pain
in her neck and back that may have been from sleeping on the bunk mattress the two
previous nights.” Her affidavit additionally stated that at no time did Ms. Bradford “report”
that she became injured from lowering landing gear on a trailer, nor did she “report to me
that she had an acute injury of any kind.”
For her part, Ms. Ballinger obtained a recorded statement. When she asked Ms.
Bradford how she became injured, Ms. Bradford responded, “I woke up, the bed, sleeping
accommodations were not good, the bed was too big for the bunk so it had me sleeping on
a slant and when I woke up that morning at 5:30 a.m. my back and my neck, I was just in
pain[.]” According to Ms. Ballinger, no other mechanism of injury was “reported” to her.
In his declaration, the physician assistant, Mr. Jordan, cited these notations from the
first visit: “‘several days of pain in her neck, upper and lower back with left leg pain. . . .
Woke up that way. States bed in truck may have been the cause.’ Ms. Bradford did not
report a specific event of trauma but rather, that she woke up with the pain she was
experiencing.” He then concluded, “In light of the fact that there was not a specific work-
related event causing Ms. Bradford’s pain, I cannot state within a reasonable degree of
medical certainty, considering all causes, that Ms. Bradford’s pain was related to her
employment activity as opposed to a pre-existing condition.” Mr. Jordan acknowledged
that her work “may have aggravated a pre-existing condition, [but] the absence of a specific
event of trauma disallows me from being able to state that the complaints I saw her for
were 51% or more related to her employment activity.”
Findings of Fact and Conclusions of Law
Ms. Bradford must present sufficient evidence that she is likely to prevail at a
hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1) (2020); McCord v.
Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar.
27, 2015). Specifically, she must show that her alleged injuries arose primarily out of and
in the course and scope of her employment and are identifiable by time and place of
occurrence. See Tenn. Code Ann. § 50-6-102(14)(A).
Here, Ms. Bradford repeatedly testified that she forcefully turned a crank to lower
severely rusted landing gear and that she awoke in pain the next day after sleeping in her
truck. Western Express offered no direct proof showing she did not turn the crank. Rather,
3
the affidavit/declarations stated that Ms. Bradford did not “report” an injury from lowering
landing gear or an acute trauma.
Importantly, this is not evidence that Ms. Bradford did not lower the landing gear;
it merely proves that she did not report that to Ms. Larson, Ms. Ballinger or Mr. Jordan.
Their testimony, conveyed via an affidavit or declarations using similar language, did not
give Ms. Bradford the opportunity to cross-examine them.3 Moreover, the note from the
physical therapist that Ms. Bradford reported “repetitive use of crank on truck and sleeping
in a poor position in the truck caused significant pain” bolsters Ms. Bradford’s testimony.
The physical therapist made that note before the denial ̶ undercutting Western Express’s
argument that Ms. Bradford “changed her story.”
Western Express also contended that sleeping is not “trauma.” This overlooks the
Supreme Court Panel decision in Sepulveda v. Western Express, Inc., No. M2007-00121-
WC-R3-WC, 2008 Tenn. LEXIS 189, at *11 (Tenn. Workers’ Comp. Panel Mar. 31, 2008).
There, the Panel concluded that a truck driver was a “traveling employee,” and “[t]he nature
of his job as a driver was such that the activity of sleeping in the cab of his truck was a
regular incident of his employment.” The case is directly on-point.
In sum, the Court credits Ms. Bradford’s live testimony over the affidavit and
declarations. Ms. Bradford never wavered about the events of May 19-20 despite rigorous
cross-examination. The Court finds Ms. Bradford turned a crank to lower the landing gear
and awoke in pain the next day. Thus, the Court holds Ms. Bradford is likely to prove a
specific incident, identifiable by time and place, at a hearing on the merits.
Next, Western Express argued that Ms. Bradford did not show she suffered an injury
arising primarily out of the course and scope of employment. Specifically, she must show,
“to a reasonable degree of medical certainty that [the incident] contributed more than fifty
percent (50%) in causing the . . . disablement or need for medical treatment, considering
all causes.” “Shown to a reasonable degree of medical certainty” means that, “in the
opinion of the treating physician, it is more likely than not considering all causes[.]” See
Tenn. Code Ann. § 50-6-102(14)(C)-(D) (Emphasis added).
Ms. Bradford introduced Dr. Lotterer’s C-32 testimony and letter to satisfy the
above definition of “injury.” Dr. Lotterer wrote on the form that her employment more
likely than not was primarily responsible for advancing the preexisting condition and
causing her need for treatment. In the letter, he wrote that she told him she “was injured
on the job on May 19, 2020, while forcefully turning a crank on her truck” and that it was
“very likely that this injury was the cause of her subjective complaints.” Dr. Lotterer’s
opinion is clear on this point: Ms. Bradford’s work advanced her preexisting injury and
caused a need for treatment.
3
The Court did not consider the hearsay or argument in the affidavits and declarations.
4
In contrast, Western Express relied on the opinion of Mr. Jordan, a physician
assistant. The Bureau’s rules state that physician assistants may “provide medical
treatment ordered by an attending physician.” But “only the supervising physician . . . may
determine medical causation regarding the injury[.]” Tenn. Comp. R. and Regs
0800.02.01.-06(7) (May 2018) (Emphasis added).4 Therefore, Mr. Jordan cannot give a
causation opinion.
As to the requested relief, Tennessee Code Annotated section 50-6-204(a)(1)(A)
requires an employer to provide, free of charge to the employee, medical treatment made
reasonably necessary by a work accident. Western Express never gave Ms. Bradford a
panel form for her to choose a physician. Its practice of posting a list of three providers in
the workplace for all employees does not comply with Tennessee Compilation Rules and
Regulations 0800-02.01-.06. So, the Court orders Western Express to offer a panel of three
independent, reputable orthopedic specialists as required under the statute, using Form C-
42 as contemplated in the Bureau’s rules, for Ms. Bradford to choose a treating physician.
The Court also refers this case to the Compliance Program for consideration of a penalty;
see Tenn. Comp. R. and Regs. 0800-02-01-.06(2).
Finally, as for Ms. Bradford’s request for temporary disability benefits, she must
show: 1) she became disabled from working due to a compensable injury; (2) a causal
connection between the injury and her inability to work; and (3) the duration of disability.
Jones v. Crencor Leasing and Sales, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec.
11, 2015).
On this record, the Court holds that Ms. Bradford is likely to show that she became
disabled due to a compensable injury and that a causal connection exists between her injury
and inability to work. As to the duration of disability, she became injured on May 20 and
was off work or placed on restricted duty without accommodation beginning May 22
through June 1. Tennessee Code Annotated section 50-6-205(a) states that no
compensation is allowed for the first seven days of disability resulting from the injury,
excluding the day of injury. Therefore, Ms. Bradford is owed compensation for three days.
Ms. Bradford disputed the compensation rate on the wage statement. She testified
that she earned $400 weekly as a trainee but offered no documentary evidence. The Court
finds the wage statement accurate and that she earned $124 per week. This amount is less
than the minimum weekly benefit, so Ms. Bradford is entitled to three days’ compensation
at the weekly minimum rate ($144.00), for a total of $61.71 in temporary disability
benefits.
4
Further, Mr. Jordan based his opinion on the belief that Ms. Bradford became injured while sleeping,
which he did not characterize as a “trauma.” By reaching this conclusion, Mr. Jordan has essentially
decided facts. That is this Court’s role, not a medical provider’s.
5
IT IS, THEREFORE, ORDERED as follows:
1. Western Express must offer a panel of three orthopedic specialists from which Ms.
Bradford may select one to evaluate and treat the work injury. Western Express
also must reimburse Ms. Bradford for her mileage to authorized treatment in the
amount of $124.20.
2. Western Express must pay Ms. Bradford temporary disability benefits totaling
$61.71.
3. This case is referred to the Compliance Program for consideration of the imposition
of a penalty regarding Western Express’s failure to provide a panel.
4. A status hearing will take place on July 26, 2021, at 9:30 a.m. Central Time. The
parties must call 615-532-9552 or toll-free at 866-943-0025 to participate. Failure
to call might result in a determination of issues without your participation.
5. Unless an interlocutory appeal of the Expedited Hearing Order is filed, compliance
with this Order must occur no later than seven business days from the date of entry
of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3). The
Employer must submit confirmation of compliance with this Order to the Bureau by
email to WCCompliance.Program@tn.gov no later than the seventh business day
after entry of this Order. Failure to submit confirmation within seven business days
may result in a penalty assessment for non-compliance. For questions regarding
compliance, contact the Workers’ Compensation Compliance Unit via email at
WCCompliance.Program@tn.gov.
ENTERED May 11, 2021.
_____________________________________
JUDGE KENNETH M. SWITZER
Court of Workers’ Compensation Claims
Exhibits:
1. Notice of Filing Index of Records (Filed by Western Express)
a. Affidavit of Judy Larson
b. First Report of Work Injury
c. Declaration of Kathy Ballinger
d. Recorded Statement of Charisse Bradford
e. Denial letter
6
f. Form C-23 Notice of Denial
g. Declaration of Robert Jordan, PA-C
h. Medical records-Concentra
i. Western Express Workers’ Compensation Injury Report
j. Affidavit of Charisse Bradford
2. Additional medical records
3. C-32
4. X-ray reports
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Order Resetting Pretrial Hearing
5. Pre-Compensation Hearing Statement
6. Pretrial Hearing Order
7. Notice of Objection
8. Motion for Extension
9. Order Granting Extension
10. Employer’s Brief
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on May 11, 2021.
Name Certified Regular Email Service sent to:
Mail Mail
Charisse Bradford, X X X Bradfordnonie313@gmail.com
self-represented 905 N. Tennessee St., Apt. 24
employee Cartersville, GA 30120
Drew Saulters, X dsaulters@ortalekelley.com
employer’s counsel jarmstrong@ortalekelley.com
Compliance Program WCCompliance.Program@tn.gov
_____________________________________
Penny Shrum, Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
7
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