King, Cynthia v. Letica Corporation , 2015 TN WC 46 ( 2015 )

FILED
May 12,20 15
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CLAIMS
Tim e: 7:15 A~ l
COURT OF WORKERS' COMPENSATION CLAIMS
DIVISION OF WORKERS' COMPENSATION
Cynthia King, ) DOCKET#: 2014-06-0062
Employee, ) STATE FILE#: 90963-2014
v. ) DATE OF INJURY: November 7, 2014
Letica Corporation, ) Chief Judge Switzer
Employer, )
and )
The Hartford, )
Insurance Carrier/TPA. )
EXPEDITED HEARING ORDER
THIS CAUSE came before the undersigned Workers' Compensation Judge on
May 7, 2015, upon the Request for Expedited Hearing filed by Cynthia King (Ms. King),
the Employee, on April 1, 2015, pursuant to Tennessee Code Annotated section 50-6-239
to determine if the Employer, Letica Corporation (Letica), is obligated to provide medical
and temporary disability benefits. Considering the positions of the parties, the applicable
law, and all of the evidence submitted, the Court concludes that Ms. King is not entitled
to the requested benefits at this time.
ANALYSIS
Issues
Whether Ms. King sustained an injury that arose primarily out of and in the
course and scope of her employment with Letica.
Whether Ms. King is entitled to past or future total or partial disability
benefits, and if so, in what amount.
Evidence Submitted
The Court admitted into evidence the exhibits below:
1. Medical records of Cynthia King
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• Affiliated Neurologists (1 page), nerve conduction study (missing a
page), November 10, 2014
• Comprehensive Pain Specialists ( 1 page; appears to be missing other
pages), December 9, 2014
• John Dana, PA-C, (3 pages) November 21, 2014
• Dr. Gregory Fryer, (6 pages) November 11, 2014
• Dr. Douglas Weikert, (3 pages) December 29, 2014
2. Form C-42, Choice of Physician, December 4, 2014
3. Form C-41, Wage Statement (amended), Feb. 23, 2015
4. Form C-23, Notice ofDenial, January 29, 2015
5. Voice recording, Dr. Weikert, December 29, 2014.
The Court designated the following as the technical record:
o Petition for Benefit Determination (undated)
o Employee's position statement (email to mediator), March 20, 2015
o Dispute Certification Notice, March 30, 2015
o Request For Expedited Hearing, April1, 2015
o Employer's "Pre-Compensation Hearing Statement and Brief of Letica
Corporation," April23, 2015.
The Court did not consider attachments to the above filings unless admitted into evidence
during the Expedited Hearing. The Court considered factual statements in the above
filings or any attachments to them as allegations unless established by the evidence.
The parties reached the following stipulations:
• The date of injury is November 7, 2014.
• Ms. King gave proper notice to Letica.
• Ms. King's average weekly wage, according to Wage Statement (Ex.
3) is $610.52, and therefore her compensation rate is $487.22 per
week.
• Ms. King submitted a Request for Mileage Reimbursement seeking
reimbursement for 103 miles, which Letica agreed to pay.
Ms. King provided in-person testimony.
History of Claim
Ms. King is a fifty-five (55) year-old resident of Montgomery County, Tennessee.
She is employed with Letica as a shipping clerk, where her duties include data entry,
typing and inventory control. She has worked for Letica for 23 years.
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Ms. King testified that, while working on Nov 7, 2014, she experienced severe
pain in her right wrist that spread into her hands. Her left wrist began to hurt as well.
When Ms. King's pain prevented her from typing, she immediately signed off from her
duties and, at approximately 1:10 p.m., explained the situation to Beverly Bell, Letica' s
safety coordinator. According to Ms. King, she told Ms. Bell she wanted to see a doctor,
but Ms. Bell advised her to wait until she talked to a representative from Letica's carrier.
Ms. King testified that, at approximately 2:53p.m., she received a telephone call at home
from Ms. Bell informing her that the insurer would not pay for her to see a physician, and
that she would have to pay for a doctor visit herself. As a result, Ms. King did not seek
medical care on that day.
Ms. King testified that Letica notified her on November 10, 2014, that it laid her
off due to lack of work. She returned to work on December 5, 2014. Upon her return,
Letica added shredding paper as an additional job duty.
On November 10, 2014, Ms. King underwent a nerve conduction study of her left
upper extremity pursuant to treatment for an unrelated workers' compensation case (Ex.
1, p. 2). She testified that she experienced severe pain at that time.
On November 12, 2014, Ms. King saw her primary care physician, Dr. Gregory
Fryer (Ex. 1, p. 3). According to Ms. King, he performed testing and suggested her pain
could be due to carpal tunnel syndrome. He recommended that she wear wrist bands.
Ms. King stated that on November 14, 2014, she received a call informing her that the
nerve conduction study confirmed carpal tunnel syndrome in her left wrist.
Letica offered a panel from which Ms. King chose Dr. Douglas Weikert (Ex. 2).
Ms. King saw Dr. Weikert on December 29, 2014 (Ex. 1, p. 13-15). She testified that she
told Dr. Weikert about the shredding as a recent addition to her duties, and about the
2010 and 2011 workers' compensation injuries and related work restrictions. According
to Ms. King, she told him about her inability to rest her wrists at work, and he responded
that he would talk to her supervisors about rearranging her work station. She said that
Dr. Weikert told her he would let her employer know, "[T]they was responsible to take
care of this issue and he would take care of my arm," and, "They would make an
appointment for me, and I could come back, and he could fix it. And then in his notes, he
contradicted hisself. In his notes, he said that it's not work-related, and basically like I'm
just making it up. And I'm not."
Ms. King recorded a portion of her conversation with Dr. Weikert on her
telephone (Ex. 5). She did not tell Dr. Weikert she was recording their exchange and he
was unaware that she was making the recording. She testified that she did not alter the
recording in any way.
On the recording, Dr. Weikert explained to Ms. King that he was not allowed to
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treat her at that point. 1 Ms. King acknowledged that, but added, "If you make a
recommendation, you can treat me, right?" Dr. Weikert answered in the affirmative. Dr.
Weikert later stated in the recording that he would discuss with Letica about "having
somebody look at your worksite and see if there's an ergonomic way to set up your your
(sic) keyboard, so that you're not, you know, this way or that way .... " In addition, Dr.
Weikert explained in the recording, ''The other thing they're going to ask me is, is this
work-related? Is work the only reason you have this? And yeah, I think, I'm going to
kind of make it so that I want them to take care of this." (Emphasis added.)
In Dr. Weikert's December 29, 2014 report (Ex. 1, pp. 13-14), he recorded the
following observations on physical examination:
Light touch sensation is intact to all digits. She has negative
Finkelstein's test in the left and right. Median nerve
compression tests are unremarkable and Phalen's wrist
flexion tests are negative. She has some discomfort and
aching pain with palpation about the wrist palmarly and
dorsally. There is no tenderness along her flexor sheath and
she exhibits no locking or catching with composite flexion.
Her elbow has no ulnar subluxation. Lhermitte's test and
ROOS tests were both negative.
!d., p. 13. Dr. Weikert concluded:
[S]he has bilateral upper extremity pain, but would really not
consider this specific for carpal tunnel syndrome. Her
electrodiagnostic studies were incidental findings during the
workup of her shoulder pain. She does not localize to her left
carpal tunnel with respect to the source of her discomfort.
My opinion, she does not appear to have work-related carpal
tunnel syndrome. She has some general musculoskeletal
discomfort. She may continue her same work duties. The
distribution of her workday between clerical and shredding
appears to be advantageous for her at this point. If her
symptoms worsen, I would consider a diagnostic
corticosteroid injection into her carpal tunnel, but at this point
would recommend anti-inflammatories, continuing the same
work schedule and wearing a splint as needed. There does
not appear to be anything specific to either hand would (sic)
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Dr. Weikert's report mistakenly stated that Letica hired him to perform an independent medical examination, when
in fact his role at this point was authorized treatment provider. The distinction is not determinative of the Court's
decision, however, because in either role Dr. Weikert's task was to form an opinion regarding whether Ms. King's
injury is work related.
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be work related from my standpoint.
!d., pp. 13-14 (Emphasis added).
Ms. King testified that she presently works, but the pain from her injury makes it
hard to do her job. On cross-examination, she agreed that she told Dr. Weikert she does
"light clerical work and some shredding." Ms. King conceded that, among the exhibits,
no medical provider wrote an "off-work" slip for her. She further acknowledged that she
has no medical evidence to contradict Dr. Weikert's report, other than the recording.
Employee's Contentions
Dr. Weikert contradicted himself in his conversation with her and in his report.
She has performed her job duties for 23 years in the same work area, performing tasks
likely to lead to carpal tunnel syndrome, including repetitive typing.
Employer's Contentions
Dr. Weikert made the statements on the recording after Ms. King's prompting.
His assertion regarding setting an appointment meant that he can treat her under private
health insurance. Dr. Weikert engaged in a "preliminary conversation" with her, but had
not reached a final conclusion as chronicled in his report. He was likely considering both
diagnosis and treatment options, both of which presented complicated issues due to Ms.
King's previous injuries. His conclusion is clear: The injury is not work-related and is
therefore not compensable.
Findings of Fact and Conclusions of Law
Standard Applied
The Workers' Compensation Law shall not be remedially or liberally construed in
favor of either party but shall be construed fairly, impartially, and in accordance with
basic principles of statutory construction favoring neither the employee nor employer.
Tenn. Code Ann. § 50-6-116 (2014). Tennessee Code Annotated section 50-6-239(c)(6)
provides that, "[u]nless the statute provides for a different standard of proof, at a hearing
the employee shall bear the burden of proving each and every element of the claim by a
preponderance of the evidence." Tenn. Code Ann. § 50-6-239(c) (2014). A different
standard of proof exists for the issuance of interlocutory orders at expedited hearings than
the standard of proof required at compensation hearings. McCord v. Advantage Human
Resourcing, No. 2014-06-0063 (Tenn. Work. Comp. App. Bd., March 27, 20 15). A
workers' compensation judge may enter an interlocutory order for medical or temporary
benefits upon a determination that the injured employee would likely prevail at a hearing
on the merits. Tenn. Code Ann. § 50-6-239(d)(l) (2014); McCall v. Nat'! Health Care
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Corp., 100 S.W.3d 209, 214 (Tenn. 2003).
Factual Findings
Ms. King experienced severe pain in her wrists and hands on November 7, 2014.
Letica offered a panel, from which she selected Dr. Weikert as the authorized treatment
provider. Dr. Weikert found in his report that the injury is not work-related.
Application ofLaw to Facts
The Workers' Compensation Law defines "injury" to include cumulative trauma
conditions such as carpal tunnel syndrome or any other repetitive motion condition
arising primarily out of and in the course and scope of employment. Tenn. Code Ann. §
102(13) (2014). The statutory definition further states that, "An injury 'arises primarily
out of and in the course and scope of employment' only if it has been shown by a
preponderance of the evidence that the employment contributed more than fifty percent
(50%) in causing the injury, considering all causes[.] Tenn. Code Ann. § 102(13)
(B)(2014) (emphasis added).
Tennessee law requires an employer to furnish, free of charge to the employee,
such medical treatment as ordered by the attending physician made reasonably necessary
by the injury. Tenn. Code Ann. § 50-6-204(a)(l)(A) (2014). In addition, in any case
when the employee has suffered an injury and expressed a need for medical care, the
employer "shall designate a group of three (3) or more independent reputable physicians
... from which the injured employee shall select one (1) to be the treating physician."
Tenn. Code Ann. § 50-6-204(a)(3)(A)(i) (2014). Further- and central to the outcome of
this matter at this time - the Workers' Compensation Law states, "The opinion of the
treating physician, selected by the employee from the employer's designated panel of
physicians pursuant to § 50-6-204(a)(3), shall be presumed correct on the issue of
causation but this presumption shall be rebuttable by a preponderance of the evidence[.]"
Tenn. Code Ann.§ 50-6-102(13)(E) (2014) (emphasis added).
In the case, Ms. King credibly testified that she experienced an onset of pain in her
wrists and hands on the date of injury and has experienced constant pain ever since. A
claimant's assessment of his or her physical condition is competent testimony and may
not be disregarded. Uptain Constr. Co. v. McClain, 526 S.W.2d 458, 459 (Tenn. 1975).
Letica provided a panel as required by section 50-6-204 (a)(3)(A)(l), from which
Ms. King chose Dr. Weikert as the authorized treatment provider. Dr. Weikert
unambiguously concluded in his December 29, 2014 report that Ms. King's injury is not
work-related. He stated that twice. Under section 50-6-102(13), Dr. Weikert's opinion is
presumed correct on the issue of causation.
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Ms. King presented no medical evidence to rebut Dr. Weikert's written findings
by a preponderance of the evidence, other than Dr. Weikert's verbal statements to her
conveyed during his examination. She correctly points out that Dr. Weikert's words and
subsequent report contain troubling contradictions, including, "I think, I'm going to kind
of make it so that I want them to take care of this." It was entirely reasonable for Ms.
King to be under the impression that he was prepared to make a finding of work-
relatedness from those words. The Court sympathizes with Ms. King's frustration when
he proceeded to make a contrary written finding. Nonetheless, this Court cannot
disregard the conclusions reached in Dr. Weikert's report, especially in light of the fact
he bases his conclusions upon detailed objective test results and clinical observations that
include, but are not limited to, the Finkelstein's test, median nerve compression tests, and
Phalen's wrist flexion tests.
In conclusion, Ms. King failed to demonstrate that she would likely prevail at a
hearing on the merits and, accordingly, at this time the Court denies her requests.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. King's claim against Letica and its workers' compensation carrier for the
requested medical and temporary disability benefits is denied on the grounds of
compensability at this time.
2. Letica shall promptly reimburse Ms. King's mileage request relative to her visit
with the authorized treating physician.
3. This matter is set for Initial Hearing on July 14, 2015, at 9:30a.m.
ENTERED this the 12th day of May, 2015.
nneth M. Switzer, Chief J ge
Court of Workers' Compensation Claims
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Initial Hearing:
An Initial Hearing has been set with Chief Judge Kenneth M. Switzer, Court of
Workers' Compensation Claims. You must call615-532-9552 or toll free at 866-
943-0025 to participate in the Initial Hearing.
Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation. All conferences are set using Central Time (CT).
Right to Appeal:
Tennessee Law allows any party who disagrees with this Expedited Hearing Order
to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of
Appeal, you must:
1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal."
2. File the completed form with the Court Clerk within seven (7) business days of the
date the Workers' Compensation Judge entered the Expedited Hearing Order.
3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.
4. The parties, having the responsibility of ensuring a complete record on appeal,
may request from the Court Clerk the audio recording of the hearing for the
purpose of having a transcript prepared by a licensed court reporter and filing it
with the Court Clerk within ten (1 0) calendar days of the filing of the Expedited
Hearing Notice of Appeal. Alternatively, the parties may file a statement of the
evidence within ten (1 0) calendar days of the filing of the Expedited Hearing
Notice of Appeal. The Judge must approve the statement of the evidence before
the Clerk of Court shall submit the record to the Clerk ofthe Appeals Board.
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5. If the appellant elects to file a position statement in support of the interlocutory
appeal, the appealing party shall file such position statement with the Court Clerk
within three (3) business days of the filing of the Expedited Hearing Notice of
Appeal, specifying the issues presented for review and including any argument in
support thereof. If the appellee elects to file a response in opposition to the
interlocutory appeal, appellee shall do so within three (3) business days of the
filing of the appellant's position statement.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 12th day
ofMay, 2015.
Name Certified First Via Fax Via Email Address
Mail Class Fax Number Email
Mail
Cynthia King, X X 2 un4getable@gmail.com
Employee
Fred Hodge, X Fhodge@howell-fisher.com
employer's attornev
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