Emond, Edward v. The Franklin Group , 2015 TN WC 65 ( 2015 )

COURT OF WORKERS' COMPENSATION CLAIMS
DIVISION OF WORKERS' COMPENSATION
EDWARD EMOND, Docket No.: 2015-03-0021
Employee,
v. State File No.: 99095-2014
THE FRANKLIN GROUP, Date of Injury: November 26, 2014
Employer,
and Judge: Pamela B. Johnson
BUILDER'S MUTUAL INS. CO.,
Insurance Carrier.
EXPEDITED HEARING ORDER
THIS CAUSE came before the undersigned Workers' Compensation Judge upon the
Request for Expedited Hearing filed by the Employee, Edward Emond (Mr. Emond), on April
15, 2015, pursuant to Tennessee Code Annotated section 50-6-239. Upon review of Mr.
Emond's Request for Expedited Hearing, the evidence presented at the hearing, the arguments of
counsel, and in consideration of the applicable law, the Court finds Mr. Emond is not entitled to
the benefits requested.
Issues
Whether Mr. Emond sustained an injury arising primarily out of and in the course and
scope of employment with The Franklin Group;
What is the date of the alleged work injury; and
Whether Mr. Emond is entitled to past and future medical expenses. 1
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Mr. Emond announced during the Expedited Hearing that he was not seeking temporary disability benefits at the
time of the hearing and agreed to withdraw the request for temporary disability benefits. Based upon the
announcement of Mr. Emond and agreement of the parties, Mr. Emond's request for temporary disability benefits is
withdrawn.
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Evidence Submitted
The Court designated the following as the Technical Record:
• Petition for Benefit Determination (PBD), filed January 29,2015,
• Dispute Certification Notice, filed March 2, 2015,
• Request for Expedited Hearing, filed April15, 2015,
• Mr. Emond's Position Statement, and
• The Franklin Group's Position Statement.
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 and
any attachments to them as allegations unless established by the evidence.
The Court admitted into evidence the following:
• EXHIBIT 1: Medical Records of Easterly Family Medicine (7 pages),
• EXHIBIT 2: Medical Records of Blount Memorial Hospital (2 pages),
• EXHIBIT 3: Medical Records of Tennessee Occupational Health (8 pages)
• EXHIBIT 4: First Report of Work Injury
• EXHIBIT 5: Wage Statements (2 pages)
• EXHIBIT 6: Panel ofPhysicians,
• EXHIBIT 7: Affidavit of Edward Emond, and
• EXHIBIT 8: Affidavit of Cary Franklin.
History of Claim
The Franklin Group hired Mr. Emond as a temporary worker to paint approximately two
hundred and twenty (220) steel doors. Mr. Emond performed work for The Franklin Group
painting doors from November 21, to November 28, 2014, excluding Sunday, November 23,
2014, and Thanksgiving Day, November 27, 2014. The Franklin Group paid Mr. Emond
$3,300.00 upon completion of the work performed. See generally Exhibit 8 and Exhibit 5, p. 1.
On November 21, 2015, Mr. Emond allegedly sustained injury to his lower back and left leg,
while moving steel doors. See Exhibit 7.
On December 3, 2014, Mr. Emond presented to Easterly Family Medicine (Easterly) with
complaints of "low back pain that has been present for 2 days." See Exhibit 1, 12/3/2014 office
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note. Dr. Easterly diagnosed "backache unspecified" and prescribed Sterapred DS and
Tramadoe. Dr. Easterly further instructed Mr. Emond to follow up in "1-2 months for CPE." !d.
On January 13,2015, Dr. Easterly added an addendum to the December 3, 2014 report:
Revised History of Present Illness: Pt presents with complaint of
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Sterapred OS is a brand name for Prednisone, used as an anti-inflammatory or immunosuppressant medication.
See http://www .drugs.com/mtm/sterapred-ds.html.
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Tramadol is a narcotic-like pain reliever, used to treat moderate to severe pain. See www.drugs.com/tramadol.html.
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low back pain that has been present for 2 days after he had been
working on/moving/painting approximately 220 steel doors over
the weekend.
See Exhibit 1, 12/3/2014 office note.
On December 9, 2014, Mr. Emond returned to Easterly "reporting continued low back
pain now with pain radiating into the left lower extremity." Dr. Easterly diagnosed "backache
unspecified" and "thoracic or lumbosacral neuritis or radiculitis unspecified." See Exhibit 1,
12/9/14 office note. Dr. Easterly ordered x-rays of the lumbar spine and a lumbar MRI scan and
instructed Mr. Emond to return after imaging. !d. X-rays of the lumbar spine showed "[n]o
acute fracture, malalignment, or bony destructive lesion" with minimal degenerative change
noted. See Exhibit 2. Mr. Emond returned the following day with no change in his symptoms.
See Exhibit 1, 12/10/14 office note.
On December 12, 2014, Mr. Emond presented at Tennessee Occupational Health (TOH)
for an "evaluation under Work Compand states that he selected TOH from the panel provided by
his employer." Mr. Emond provided the following history:
Patient states on 11/24/14 he was moving 220 steel doors weighing
200 lbs. each with the help of another co-worker and noticed later
that day that his back was aching. Patient states the next day was
Thanksgiving, so he did nothing and thought the pain would go
away, but it continued to hurt. Patient states he went to work on
Friday and the pain became worse, waking him at night. Patient
denies any specific knowledge of any injury that occurred at work,
but simply that he felt pain after working on 11/24114.
See Exhibit 3, 12/12/14 office note. The nurse practitioner, Jessica Shamblin, FNP, diagnosed
refractory lumbago and left leg neuralgia. !d.
On December 18, 2014, FNP Shamblin reviewed Mr. Emond's medical records from
Easterly, including the December 3, 9, and 10 office visit notes. After review of the Easterly
records, FNP Shamblin noted the following:
CC was low back pain but in all 3 notes there is no mention of the
cause of the pain. The fact that this happened in the workplace is
not noted ... No notation pertaining to WC is present... The visit
12/3/14 states patient had been hurting for 2 days. This is
inconsistent with information provided TOH visit 12/12/14. There
are other timeline discrepancies related to onset of neuralgia and
gait abnormalities ... Patient stated that Dr. Easterly encouraged
him to proceed as Work Comp, but this line of conversation is not
noted in any dictation received from Easterly's office ...
I discussed with patient that no mention of workplace injury or
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WC made in the records from PCP. He says he and Dr. Easterly
discussed this at visits and decided that the back pain could be
handled by Dr. Easterly initially. Patient states that when his back
pain did not improve and he started having radiating pain, he knew
back problems were more serious, which led to the we initiation.
See Exhibit 3, 12118/14 Record Review/ Phone Call note.
Mr. Emond filed a Petition for Benefit Determination on January 29, 2015. The parties
did not resolve the disputed issues through mediation and the Mediating Specialist filed the
Dispute Certification Notice on March 2, 2015. On April 15, 2015, Mr. Emond filed a Request
for Expedited Hearing. This Court conducted an in-person evidentiary hearing on May 5, 2015.
Mr. Emond testified on his own behalf. Cary Franklin and Heidi Jones testified for The Franklin
Group.
Mr. Emond's Contentions
Mr. Emond alleges that on Friday, November 21, 2014, he experienced pain in his left,
lower back after he moved several doors. He felt pain and continued working the remainder of
the day. At the end ofthe day, Mr. Emond told Cary Franklin, the owner of The Franklin Group,
that he hurt his lower back lifting doors and advised that he did not want to move the doors.
Each day thereafter, Mr. Emond continued to tell Mr. Franklin that he did not want to move the
doors. On the night before Thanksgiving, November 26, Mr. Emond again advised Mr. Franklin
that he hurt his back moving doors and he did not want to move the doors. Mr. Emond's pain
increased as he continued working for The Franklin Group.
Mr. Emond first sought medical treatment for his low back from his primary care
physician, Dr. Easterly. Mr. Emond testified that he told Dr. Easterly he was on vacation from
his regular job and took a side job painting doors, where he hurt his back moving the doors.
Several days after his first visit with Dr. Easterly, Mr. Emond experienced pain down into his
leg.
Mr. Emond then sought treatment from TOH. Mr. Emond testified that he reported he
moved doors and felt pain in his lower back. Mr. Emond further testified that one night, the pain
went down into his leg. TOH ordered an MRI, which The Franklin Group's carrier cancelled.
At the time of the work injury with The Franklin Group, Mr. Emond worked full time for
Bailey's International. He last worked for Bailey's International on Thursday, November 20,
2014. While taking a one-week vacation from Bailey's International, Mr. Emond worked as a
temporary worker for The Franklin Group. At Bailey's International, prior to the work injury, he
lifted tubing into a machine, and then programmed it to "machine" the tubing. After machining,
the tubing is dropped onto a table. Mr. Emond then lifted the tubing from table and placed it into
a box. If the tubing was too heavy, a crane placed the tubing into the machine and then the crane
lifted the machined tube from the table into a box. Since the work injury, an assistant performs
the lifting required of Mr. Emond's job at Bailey's International.
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Mr. Emond contends that The Franklin Group hired him to perform a temporary job.
During the course of his employment with The Franklin Group, he sustained an injury to his
back that progressively worsened. Mr. Emond requests treatment with Dr. Patrick Bolt, whom
he selected from a panel offered by The Franklin Group before its denial of this claim.
The Franklin Group's Contentions
The Franklin Group contends that Mr. Emond is not entitled to any workers'
compensation benefits because he failed to prove that his alleged back injury is causally related
to his employment with The Franklin Group. Mr. Franklin denied that Mr. Emond mentioned a
back injury on Friday, November 21, 2014. Mr. Franklin testified that Mr. Emond called him on
December 3, 2014, and said he was leaving work to go to his doctor. Mr. Emond indicated that
it had happened to him one time before and he received a steroid shot and his pain resolved. Mr.
Franklin did not make any connection between Mr. Emond's lifting and painting doors and his
pain on December 3, 2014. Mr. Franklin denied that Mr. Emond mentioned that his back pain
resulted from a work injury.
The Franklin Group alleges that Mr. Emond did not request medical treatment from Mr.
Franklin on November 21, 2014, or at any time while he worked for The Franklin Group. Mr.
Emond did not seek medical treatment until December 3, 2014, after his temporary employment
with The Franklin Group concluded. Mr. Emond did not mention any work injury to Dr.
Easterly during his office visits on December 3, 9, or 10.
Mr. Franklin testified further that Mr. Emond called him on December 11, 2014. Mr.
Emond advised Mr. Franklin that he had to file a workers' compensation claim against The
Franklin Group. Mr. Franklin advised Mr. Emond that he would need to call his workers'
compensation insurance agent to report the work injury.
Upon notification that Mr. Emond was seeking workers' compensation benefits, The
Franklin Group provided Mr. Emond a panel of physicians and he selected TOH. The Franklin
Group's carrier, thereafter, issued a Notice ofDenial of Claim on January 8, 2015. On January
13, 2015, Dr. Easterly added an addendum to the December 3, 2014 office note. The Franklin
Group argued that it was only after the MRI was ordered and The Franklin Group's carrier
denied the claim that Dr. Easterly amended his December 3, 2014 office note to reference a work
InJury.
Heidi Jones, superintendent for The Franklin Group, testified that she was on the job site
where Mr. Emond painted doors on November 21, 2014. Ms. Jones testified that Mr. Emond
never mentioned a problem with his back on November 21, 2014. Ms. Jones further testified that
she transported another employee to the job site each day. On November 26, 2014, Mr. Emond
discussed with her a problem he experienced with a paint gun. Mr. Emond made no mention
during the conversation that he was hurt or injured on November 26, 2014. Ms. Jones testified
that Mr. Emond had ample opportunity to mention any pain or injury he sustained on the job.
The Franklin Group contends Mr. Emond offered inconsistent statements concerning the
date of injury, when the pain began, and when he reported the incident. When Mr. Emond
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reported the incident to Mr. Franklin on December 11, 2014, The Franklin Group immediately
provided a panel.
Considering the inconsistencies, Mr. Emond failed to demonstrate by a preponderance of
the evidence that he sustained an injury arising out of and in the course and scope of his
employment. Based upon the medical records, there is no competent or credible medical
evidence that Mr. Emond sustained a work injury arising primarily out of and in the course and
scope of his employment at The Franklin Group.
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. See 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'/ Health Care Corp., 100 S.W.3d 209,214 (Tenn. 2003).
Factual Findings
The Court finds that Mr. Emond reported an alleged work injury on December 11, 2014
to Mr. Franklin of The Franklin Group. The Franklin Group timely provided a panel of
physicians and Mr. Emond selected TOH. Mr. Emond received authorized medical treatment.
There is no expert opinion contained in the evidence causally relating the alleged work injury to
Mr. Emond's work for The Franklin Group.
Application of Law to Facts
The first issue for this Court's determination is whether Mr. Emond sustained an injury
arising primarily out of and in the course and scope of employment with The Franklin Group.
The Tennessee Workers' Compensation Act defines "injury" and "personal injury" as an injury
by accident, ... arising primarily out of and in the course and scope of employment, that causes
death, disablement or the need for medical treatment of the employee; provided, that:
(A) An injury is "accidental" only if the injury is caused by a specific incident, or
set of incidents, arising primarily out of and in the course and scope of
employment, and is identifiable by time and place of occurrence, and shall not
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include the aggravation of a preexisting disease, condition or ailment unless it can
be shown to a reasonable degree of medical certainty that the aggravation arose
primarily out of and in the course and scope of employment;
(B) 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;
(C) An injury causes death, disablement or the need for medical treatment only if
it has been shown to a reasonable degree of medical certainty that it contributed
more than fifty percent (50%) in causing the death, disablement or need for
medical treatment, considering all causes;
(D) "Shown to a reasonable degree of medical certainty" means that, in the
opinion of the physician, it is more likely than not considering all causes, as
opposed to speculation or possibility;
(E) 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) (2014).
In the present case, Mr. Emond identified a specific incident or set of incidents,
identifiable by time and place. Mr. Emond further demonstrated that the specific incident(s)
occurred while he performed his job duties for The Franklin Group. The issue then turns to
whether the November 21, 2014 incident resulted in an injury arising primarily out of and in the
course and scope of employment, and shown by a reasonable degree of medical certainty.
Mr. Emond first sought medical treatment with his primary care physician, Dr. Easterly.
In the original office notes from December 3, 9, and 10, Dr. Easterly does not indicate that Mr.
Emond reported a work injury or incident or that his symptoms or complaints occurred as a result
of a work incident. Dr. Easterly does not provide any opinion on causation.
Mr. Emond next sought authorized treatment from TOH. While Mr. Emond reported that
he injured his low back while moving doors, upon receiving medical records from Dr. Easterly,
FNP Shamblin identified inconsistencies between the history provided to Dr. Easterly and the
history provided to TOH. The TOH records do not contain any expert opinion on causation.
Information provided to a medical provider and set forth in the history do not equate to an
"opinion" of a physician. The evidence introduced in this case failed to establish that Mr.
Emond sustained an injury arising primarily out of and in the course and scope of his
employment. At this time, based on the lack of a causation opinion, this Court finds that Mr.
Emond is not likely to prevail at a hearing on the merits. In light of this Court's holding, it is not
necessary to address the remaining issues.
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IT IS, THEREFORE, ORDERED as follows:
1. The claim of Mr. Emond against The Franklin Group or its workers' compensation
carrier for the requested workers' compensation benefits is not entitled to benefits at this
time.
2. This matter is set for Initial Hearing on July 14, 2015 at 1:00pm central/2:00pm eastern
time.
July 14, 2015 at 9:00a.m. eastern time.
ENTERED this the lOth day of Jun~ ~ V'fl'---'
HON. PAMELA B. JOHNSON
Workers' Compensation Judge
Initial Hearing:
An Initial Hearing has been set on July 14,2015 at 1:00pm central/2:00pm eastern time
with Judge Pamela B. Johnson for the Court of Workers' Compensation Claims. You must call
(855) 543-5041 or toll free at 865-594-0091 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.
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 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
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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 (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.
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 lOth day of June, 2015.
Name Certified Via Via Service sent to:
Mail Fax Email
D. David Sexton, II, Esq. X dsexton@sextonand~koff.com
megan(msextonandwvko1I.com
JeffFoster, Esq. X j foster@morganakins. com
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