Harris, Eboni v. Vanderbilt University Medical Center , 2022 TN WC 44 ( 2022 )

FILED
May 25, 2022
01:50 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION CLAIMS
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
EBONI HARRIS, ) Docket No. 2021-05-1136
Employee, )
v. )
) State File No. 20643-2021
VANDERBILT UNIVERSITY )
MEDICAL CENTER, )
Employer. ) Judge Dale Tipps
EXPEDITED HEARING ORDER DENYING BENEFITS
The Court held an Expedited Hearing on May 17, 2022, to determine whether Ms.
Harris is entitled to additional medical treatment, including reimbursement of unauthorized
expenses, and temporary disability benefits. Based on the evidence presented, the Court
cannot find she is likely to prove that her condition arose primarily out of her employment.
For this and the other reasons below, the Court must therefore deny her request for benefits.
History of Claim
Ms. Harris, a certified nursing assistant, slipped and fell while working for
Vanderbilt University Medical Center on February 28, 2021. VUMC accepted the claim
and provided medical treatment. She initially selected Vanderbilt’s occupational medical
clinic from a panel. Although this is a claim involving headaches, she initially received
treatment for complaints of neck, back, shoulder, and arm pain.
Outside of her workers’ compensation claim, Ms. Harris saw Dr. Nanette Dendy on
April 6 to establish a primary care physician. Her history included an Arnold-Chiari
malformation1 that was surgically repaired in December 2019. Ms. Harris reported having
headaches two or three times a day but said they were better since the surgery. Dr. Dendy
prescribed Topiramate and told her to return in three months for an annual physical.
A few days later, Ms. Harris returned to the authorized occupational clinic and
reported headaches that had worsened after the work accident. On April 15, the clinic
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A condition in which brain tissue extends into the spinal canal.
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referred her for a neurological evaluation, and Ms. Harris selected Dr. Shilpi Mittal from a
panel.
Dr. Mittal could not see Ms. Harris until July 27, and Ms. Harris continued to treat
with Dr. Dendy while waiting for her neurology appointment. She testified that her claims
representative, Christyl Baber, told her that VUMC would reimburse her for medications
Dr. Dendy prescribed until she could see Dr. Mittal. VUMC filed a Rule 72 Declaration
from Ms. Baber denying this allegation.
When Dr. Mittal finally saw Ms. Harris, she diagnosed intractable chronic migraine
and chronic tension-type headaches. She increased the Topiramate dosage, prescribed
Emgality, and ordered follow-up in four to six months.
Ms. Harris continued to treat with Dr. Dendy, who reduced her Topiramate dosage
and changed the other prescriptions given by Dr. Mittal. The only time Ms. Harris returned
to Dr. Mittal, in February 2022, the doctor ordered an occipital nerve block.
Ms. Harris sent a questionnaire to Dr. Mittal in March asking about her condition
and treatment. Dr. Mittal stated her diagnosis as “prior chiari malformation, depression.”
Another question asked whether the workplace fall contributed more than 50 percent to
causing a new injury, a need for treatment, or an aggravation of pre-existing condition. Dr.
Mittal responded, “None of the above.” Asked whether the treatment provided was
medically reasonable, necessary, and primarily related to the work injury, Dr. Mittal
checked “No” and added, “combination of work injury and pre-existing symptoms.” She
also confirmed that she never took Ms. Harris off work or assigned any temporary
restrictions.
At the hearing, Ms. Harris requested reimbursement of her expenses for the
treatment provided by Dr. Dendy. She also sought temporary disability benefits beginning
with the date VUMC terminated her employment for attendance and performance
deficiencies. She claimed the problems leading to her termination were caused by her work
injury, the medication prescribed to treat the injury, and poor medical treatment provided
by Dr. Mittal.
As noted above, VUMC initially accepted this claim as compensable. However,
based on Dr. Mittal’s response to Ms. Harris’s questionnaire, it contended that she is not
entitled to the requested benefits because she did not prove that her current condition was
primarily caused by the workplace accident. It further argued that Ms. Harris is not entitled
to medical expense reimbursement because the treatment provided by Dr. Dendy was not
authorized, and she presented no evidence of the amount, reasonableness, or necessity of
her expenses. Finally, VUMC maintained that, even if she established the compensability
of her injury, it owes no temporary disability benefits because Ms. Harris offered no proof
that any physician had taken her off work long enough to qualify for those benefits.
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Findings of Fact and Conclusions of Law
Ms. Harris must provide sufficient evidence from which this Court might determine
she is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1)
(2021); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS
6, at *7-8, 9 (Mar. 27, 2015).
To prove a compensable injury, Ms. Harris must show that her alleged injuries arose
primarily out of and in the course and scope of her employment. This includes the
requirement that 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 as opposed to speculation or possibility. Tenn. Code Ann. § 50-6-
102(14).
In this case, the Court is presented with only one medical opinion addressing the
cause of Ms. Harris’s condition. Dr. Mittal said that the workplace fall did not contribute
more than 50 percent in causing a new injury, a need for treatment, or an aggravation of
pre-existing condition. Not only is Dr. Mittal’s opinion presumed to be correct under
Tennessee Code Annotated section 50-6-102(14)(E), but also it is unrebutted by any other
medical proof. Therefore, the Court cannot find at this time that Ms. Harris is likely to
prove her condition is work related.
Even if Ms. Harris were to prove compensability, the evidence presented at this
hearing would not be sufficient to award the benefits she seeks.
Regarding the medical reimbursement request, the Court recognizes Ms. Harris’s
frustration and dissatisfaction with the timing and nature of the treatment provided by Dr.
Mittal. However, the Court has no evidence to suggest that VUMC denied Ms. Harris an
opportunity to return to Dr. Mittal or intentionally delayed her appointments, and it has no
evidence to find that the doctor’s treatment was medically insufficient. Without this proof,
her decision to seek treatment with Dr. Dendy was not justified. For this reason, the Court
finds Ms. Harris is unlikely to prove entitlement to reimbursement for that treatment.
Turning to Ms. Harris’s request for temporary total disability benefits, she must
prove (1) she became disabled from working due to a compensable injury; (2) a causal
connection between her injury and her inability to work; and (3) her period of disability.
Jones v. Crencor Leasing and Sales, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec.
11, 2015). She admitted she worked light duty until terminated, so she has no period of
temporary total disability.
For temporary partial disability benefits, Ms. Harris must show that her treating
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physician returned her to work with restrictions that VUMC either could not or would not
accommodate. Id. at *8. She presented no medical proof of restrictions after her
termination date. Therefore, she does not appear likely to prove entitlement to temporary
partial disability benefits.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. Harris’s claims against VUMC for medical and temporary disability benefits
are denied at this time.
2. This case is set for a Scheduling Hearing on July 27, 2022, at 9:00 a.m. You must
call toll-free at 855-874-0473 to participate. Failure to call might result in a
determination of the issues without your further participation. All conferences are
set using Central Time.
ENTERED May 25, 2022.
______________________________________
Judge Dale A. Tipps
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Documents attached to Employer’s Notice of Filing Exhibits
2. Ms. Harris’s May 6, 2022 Rule 72 Declaration (Identification Only)
3. Ms. Harris’s February 28, 2022 Rule 72 Declaration
4. Dr. Mittal’s questionnaire responses
5. Vanderbilt medical records
6. FMLA documents
7. Prescription information sheets (Identification Only)
8. Return to work form
9. November 1, 2021 FMLA approval letter
10. Occipital nerve block appointment messages
11. Request for Clarification of Medical Leave
12. Physical therapy appointment messages
13. MyHealth at Vanderbilt screenshot (Identification Only)
14. Summary of medical payments (Identification Only)
Technical record:
1. Petition for Benefit Determination
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2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Employer’s Response to Request for Expedited Hearing
5. Employer’s Motion to Exclude/Strike
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on May 25, 2022.
Name Certified Via Service Sent To
Mail Email
Eboni Harris X X Ebonianderson95@gmail.com
906 Tal Lane
LaVergne, TN 37086
Nathaniel Cherry, X ncherry@howardtatelaw.com
Employer’s Attorney
______________________________________
Penny Shrum, Court Clerk
Wc.courtclerk@tn.gov
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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
concerning 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/
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