Glynise Johnson v. OBERTO Sausage Co. , 2015 TN WC 57 ( 2015 )

COURT OF WORKERS’ COMPENSATION CLAIMS
DIVISION OF WORKERS' COMPENSATION
EMPLOYEE: GLYNISE JOHNSON DOCKET NO. 2015-06-0125
EMPLOYER: OBERTO SAUSAGE STATE FILE NO. 2076-2015
CO.
DATE OF INJURY: JAN. 5, 2015
CARRIER: THE TRAVELERS JUDGE: BAKER
EXPEDITED HEARING ORDER
THIS CAUSE came before the Court upon the Request for Expedited Hearing filed on May
6, 2015, by Glynise Johnson, the employee, pursuant to Tennessee Code Annotated section 50-6-
239, wherein Ms. Johnson requested that the Court order the employer, Oberto Sausage Company
(Oberto), to provide her a panel of neurologists for treatment of her work-related injury. Ms.
Johnson requested that the Court render its decision based on a review of the case file. Upon review
of the file, the Court enters the following order holding that Ms. Johnson is not entitled to a panel of
neurologists.
ANALYSIS
Issue
Whether Oberto should be required to provide Ms. Johnson a panel of neurologists for
treatment of her work-related injury.
Documents Reviewed
The Court reviewed and considered the following in reaching its decision:
 Medical records of
o Tennessee Orthopedic Alliance
o Concentra
o St. Thomas Midtown Hospital
o One Hundred Oaks Imaging
o Skyline Medical Center
 Form C-42, Agreement Between Employer/Employee Choice of Physician
1
 Request for Expedited Hearing
 Dispute Certification Notice
 Petition for Benefit Determination
 Form C-20, First Report of Injury
 Wage statement.
History of Claim
Ms. Johnson worked for Oberto earning nine dollars ($9.00) per hour. On January 5, 2015,
Ms. Johnson slipped on some icy stairs at work and fell. She suffered injury to her hand and lower
back.
Ms. Johnson received emergency medical care on the date of the injury at St. Thomas
Midtown Hospital in Nashville. Providers at the hospital examined Ms. Johnson and took several x-
rays. They discharged her with diagnoses of abrasion, hip contusion and lumbar strain just after
midnight on January 6, 2015. The First Report of Injury indicates that Ms. Johnson did not miss any
time from work due to her injury.
On January 6, 2015, Ms. Johnson began receiving follow-up care from Concentra. The
provider at Concentra placed Ms. Johnson on light duty work restrictions and referred her for an
MRI. Ms. Johnson had the test on January 19, 2015, and it showed the following:
1. Small posterior lateral bulge at the L3-4 level that extends into the
inferior right neural foramen without significant narrowing of the
neural foramen as there is still fat noted around the exiting nerve root
sleeve.
2. Posterior bulge at L5-S1. A small associated annular tear [in] this
disc is identified on the left side.
On January 20, 2015, Ms. Johnson returned to Concentra for a follow-up. Concentra referred
her for treatment with “An interventional physical medicine rehabilitation specialist.” Oberto
provided Ms. Johnson a panel of physicians for follow-up care and she selected Dr. Robert
Clendenin, III, of Tennessee Orthopedic Alliance to provide treatment.
On February 9, 2015, Dr. Clendenin evaluated Ms. Johnson at his office. In the medical
record, Dr. Clendenin noted that Ms. Johnson complained of “pain primarily in the center of the
lower back, although she does have some radiation into the left hip and left thigh with a little
tingling in the left thigh.” Dr. Clendenin further wrote that Ms. Johnson’s MRI did not reveal any
focal nerve impingement, but she did appear to have some facet joint irritation. He recommended
bilateral facet injections to treat the pain.
On February 12, 2015, Dr. Clendenin’s office called Ms. Johnson to schedule the injections.
Ms. Johnson stated that she did not want to proceed with the injections and asked for a referral for
pain management. Dr. Clendenin referred her to Dr. Jeffrey Hazlewood.
2
Dr. Hazlewood examined Ms. Johnson on March 10, 2015. He found no consistent evidence
of facet joint irritation and no evidence of radiculopathy. He provided several analgesics and one
opioid to treat the pain. Dr. Hazlewood also referred Ms. Johnson for physical therapy and imposed
workplace restrictions that prohibited her from lifting, pushing or pulling over ten (10) pounds and
from bending more than occasionally. He also advised Ms. Johnson that her recovery could take
some time. He scheduled Ms. Johnson to return for a follow-up in three weeks. The file does not
contain any records indicating whether she returned to Dr. Hazlewood.
Ms. Johnson attended a physical therapy session at Results Physiotherapy on March 23,
2015. The records from that visit show that Ms. Johnson made an appropriate effort to perform the
physical therapy exercises.
Ms. Johnson’s Contentions
Ms. Johnson argues that she should be allowed to see a neurologist for treatment of her back
injury. She requests that the Court order Oberto to provide this care.
Oberto’s Contentions
Oberto argues that it has provided her with a panel of rehabilitation specialists, as
recommended by Concentra, and a referral for pain management as ordered by Dr. Clendenin after
Ms. Johnson refused the treatment he suggested. None of the authorized treating physicians has
referred Ms. Johnson to a neurologist. Essentially Oberto argues that there is no proof that referral
to a neurologist is reasonable and necessary.
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. section
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, 2015).
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)(1) (2014); cf. McCall v. Nat’l Health Care Corp., 100 S.W.3d 209,
214 (Tenn. 2003).
Factual Findings
3
The Court finds that Ms. Johnson suffered a back injury when she fell down a flight of icy
stairs at work on January 5, 2015. The Court finds that Ms. Johnson suffered an injury to her back
and hand in the fall. The Court finds that none of the physicians who provided treatment has
indicated that Ms. Johnson needs care from a neurologist for her injury.
Application of Law to Facts
At this point, the parties seem to agree that Ms. Johnson suffered an injury in the course and
scope of work for Oberto, so causation is not at issue. Oberto has accepted the claim and provided
appropriate care. Ms. Johnson, it appears, is displeased with the course of treatment and has asked
the Court to intervene by ordering Oberto to provide her a panel of neurologists. The Court must
decline her request.
Tennessee law requires an employer to provide “…free of charge to the employee such
medical and surgical treatment…made reasonably necessary by accident as defined in this
chapter[.]” See Tenn. Code Ann. § 50-6-204(a)(1)(A) (2014). Upon being provided notice of a
workplace injury, the employer is required to “…designate a group of three (3) or more independent
reputable physicians, surgeons, chiropractors or specialty practice groups if available in the injured
employee's community or, if not so available, in accordance with subdivision (a)(3)(B), from which
the injured employee shall select one (1) to be the treating physician.” Id. at 50-6-204(a)(3)(A)(i).
Any care prescribed by the physician selected from the panel will be presumed to be reasonable and
necessary for treatment of the employee’s work-related injury. See Id. at 50-6-204(a)(3)(H).
Conversely, the injured employee bears the burden of proving that the care provided by a non-
designated physician is reasonable and necessary.
Here, Oberto provided Ms. Johnson a panel of physicians and she selected Dr. Clendenin.
Dr. Clendenin recommended a course of treatment that Ms. Johnson declined to accept. Thereafter,
Dr. Clendenin referred Ms. Johnson for pain management at her request. The referral for pain
management is presumed to be reasonable and necessary. Tenn. Code Ann. § 50-6-204(a)(3)(H)
Ms. Johnson seeks referral to a neurologist instead. Ms. Johnson bears the burden of proving that
referral to a neurologist is reasonable and necessary for treatment of her injury. She has not
presented any evidence that treatment by a neurologist is both reasonable and necessary.
Accordingly, Ms. Johnson has failed to carry her burden of proof and her request is DENIED.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. Johnson’s request for an order requiring Oberto to provide a panel of neurologists is
denied.
2. This matter is set for an Initial Hearing on July 7, 2015 at 9:30 a.m. (CDT). Information on
how to participate is included below.
3. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance with
this Order must occur no later than seven (7) business days from the date of entry of
this Order as required by Tennessee Code Annotated section 50-6-239(d)(3). The
4
Insurer or Self-Insured Employer must submit confirmation of compliance with this
Order to the Division by email to WCCompliance.Program@tn.gov no later than the
seventh (7th) business day after entry of this Order. Failure to submit the necessary
confirmation within the period of compliance may result in a penalty assessment for
non-compliance.
4. For questions regarding compliance, please contact the Workers’ Compensation Compliance
Unit via email WCCompliance.Program@tn.gov or by calling (615) 253-1471 or (615) 532-
1309.
ENTERED ON THIS THE 1st DAY OF JUNE, 2015.
_____________________________________
Joshua Davis Baker
Workers' Compensation Judge
5
INITIAL HEARING:
An Initial Hearing has been set with Judge Joshua Davis Baker, Court of Workers’
Compensation Claims. You must call (615) 741-2113 or toll free at (855) 874-0474 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.
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
Expedited Hearing Order was entered by the Workers’ Compensation Judge.
3. Serve a copy of the Request for 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 (10)
calendar days of the filing of the Expedited Hearing Notice of Appeal. Alternatively, the
parties may file a statement of the evidence within ten (10) calendar days of the filing of the
Expedited Hearing Notice of Appeal. The statement of the evidence must be approved by the
Judge before the record is submitted to the Clerk of the Appeals Board.
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.
6
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 1st day of June, 2015.
Name Certified First Via Fax Via Email Address
Mail Class Fax Number Email
Mail
Vanessa Hall x vhall@travelers.com
Glynise Johnson x x glynisejohnson95@gmail.com
_____________________________________
Penny Shrum, Clerk
Tennessee Court of Workers' Compensation Claims
WC.CourtClerk@tn.gov
7