Farnsworth, Darren v. Foley Company , 2015 TN WC 72 ( 2015 )

FILED
May 27, 20 15
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COURT OF WORKERS' COMPENSATION CLAIMS
DIVISION OF WORKERS' COMPENSATION
DARREN FARNSWORTH, Docket No.: 2015-03-0018
Employee,
v. State File No.: 6354-2015
FOLEY COMPANY, Date of Injury: November 7, 2014
Employer,
And Judge: Pamela B. Johnson
LIBERTY MUTUAL INSURANCE CO.,
Insurance Carrier.
EXPEDITED HEARING ORDER
THIS CAUSE came before the undersigned Workers' Compensation Judge upon the
Request for Expedited Hearing filed by Darren Farnsworth (Mr. Farnsworth) on March 31, 2015,
pursuant to Tennessee Code Annotated section 50-6-239. Upon review of Mr. Farnsworth'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. Farnsworth is entitled to a panel
of physicians.
Issues
Whether Mr. Farnsworth sustained an injury on November 7, 2014 arising primarily out
ofand in the course and scope of employment with Foley Company;
Whether Mr. Farnsworth has definitely proven the requirements of Tennessee Code
Annotated section 50-6-212 (2014),·
If so, whether Mr. Farnsworth is entitled to any past or future temporary disability
benefits, and if so, in what amount,· and
Whether Mr. Farnsworth is entitled to past or future medical benefits.
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Stipulations of the Parties
The parties, through counsel, announced to the Court the following stipulations:
• Mr. Farnsworth's date of injury is November 7, 2014.
• Mr. Farnsworth's average weekly wage is $915.17.
• Mr. Farnsworth returned to work on January 22, 2014, and worked one week of
light duty.
Evidence Submitted
The Court designated the following as the Technical Record:
• Petition for Benefit Determination (PBD), filed January 28, 2015
• Dispute Certification Notice, filed March 17, 2015
• Request for Expedited Hearing, filed March 31, 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 and
any attachments to them as allegations unless established by the evidence.
The Court admitted into evidence the following:
• EXHIBIT 1: Medical Expenses (6 pages),
• EXHIBIT 2: Medical Records (25 pages),
• EXHIBIT 3:2014 W-2 Tax Form, and
• EXHIBIT 4: Wage Statement, Form C-41.
History of Claim
Mr. Farnsworth worked as a concrete finisher for Foley Company. On Friday, November
7, 2014, Mr. Farnsworth lifted a ramp with a co-worker and experienced sharp pain in his
abdomen. Mr. Farnsworth additionally "felt a lump in or near navel that was very painful to
touch." See PBD. He then reported the incident to his foreman, who advised him that they
should notify the safety department. Upon report of the incident to the safety department by his
foreman, the safety department instructed Mr. Farnsworth to go to the medical clinic for a drug
screen and exam.
As instructed, Mr. Farnsworth went to Occupational Health Systems (OHS) for
evaluation. The November 7 office note from OHS identified the "Evaluation Type" as "Office
Visit, Worker's Comp, New Injury and or Exposure." At OHS, Dr. Christopher Copeland
examined Mr. Farnsworth, who reported that he and a fellow-co-worker lifted a ramp, weighing
approximately one hundred fifty pounds, when he felt a sharp, stabbing pain in his lower
abdomen. See Exhibit 2, OHS, 11/7/2014 at p. 1. On exam, Dr. Copeland noted a mass in the
periumbilical area. Dr. Copeland described the mass as "tender, moveable and firm over the
affected area. Umbilical hernia is present." !d. at pp. 2-3. Dr. Copeland diagnosed "an
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umbilical hernia that is of surgical import. Incarcerated with localized cellulitis." Id at 3. Dr.
Copeland referred Mr. Farnsworth to the emergency room for a CT-scan. Dr. Copeland
reviewed the CT scan and noted that the "CT scan results consistent with umbilical hernia with
peritoneal fat herniation and surrounding edema consistent with cellulitis." Id Dr. Copeland
stated the following in his report of November 7:
After review of the mechanism of injury and/or lack thereof on all
diagnoses listed for this evaluation now or related to this
evaluation. I do not feel that this injury/exposure is work related.
See TN WC Law effective July 1, 2014, TN 50-6-102(13). Pre-
existing conditions are very likely or the MOl is not substantial to
produce the present findings or lack of findings. The observed
time frame of 6 hours between the perceived injury (lifting at
work) is not consistent with the degree of cellulitis and
inflammation seen on CT scan and physical exam. It is almost
certain that the hernia and inflammation/ cellulitis pre-existed the
lifting event this morning.
Id
On Monday, November 10, Mr. Farnsworth returned to Dr. Copeland for follow up. Mr.
Farnsworth reported overall noticeable improvement in his pain level, but continued to
experience pain. See Exhibit 2, OHS, 11/10/2014 at p. 1. The November 10 office note
indicates the "Evaluation Type" as "WC follow-up visit for exposure/injury." Id The physical
exam and diagnosis remained unchanged. Dr. Copeland advised Mr. Farnsworth that the
umbilical hernia was "Not work related- to see surgeon for release to work." Id at p. 2. Dr.
Copeland further advised Mr. Farnsworth "to see his/her family doctor for future treatment of the
conditions listed. If there is trauma involved or documented repetitive injury, then OHS would
be more than willing to see this employee in the future ... Released from care." Id at p. 3.
On November 12, Mr. Farnsworth sought care from Dr. Douglas Davis at UT Internal
Medicine Pellissippi (UTIMP). Mr. Farnsworth reported "lifting a heavy ramp (150 lbs.) with
another guy and sudden onset of belly button pain ... he cont'd to work and it never left." See
Exhibit 2, Dr. Davis, 11/12/2014 at p. 1. Dr. Davis diagnosed an umbilical hernia and
recommended "refer to [M]ancini, he may need to contact work Dr since this occurred at
work .. .I am not releasing for work now ... up to surgery to decide." Id at p. 2.
On November 13, Mr. Farnsworth returned to UTIMP and saw Dr. Gregory Mancini. He
advised that he "was at work 6 days ago and felt a 'pop.' He then noticed that there was a
difference in appearance of his umbilicus, and it was now painful." See Exhibit 2, Dr. Gregory
Mancini, 11/13/2014 at p. 1. The physical exam revealed "Direct periumbilical tenderness with
palpation, hard incarcerated fat palpated not able to be reduced." Id at p. 3. Dr. Mancini
diagnosed umbilical hernia and irreducible umbilical hernia. Dr. Mancini recommended a
laparoscopic repair of the ventral hernia. Id at p. 4.
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On December 16, Dr. Davis wrote the following letter "To whom it May Concern:"
It is my medical opinion that the umbilical hernia that Mr.
Farnsworth has developed, occurred and is related to work. He
had no prior history of this and it developed with a sudden pain in
the umbilicus while lifting at work. This was the origin and cause
of the hernia. It has continued since then.
See Exhibit 2, Dr. Douglas Davis letter.
Mr. Farnsworth filed ·a Petition for Benefit Determination on January 28, 2015. The
parties did not resolve the disputed issues through mediation and the Mediating Specialist filed
the Dispute Certification Notice on March 17, 2015. On March 31, 2015, Mr. Farnsworth filed a
Request for Expedited Hearing. This Court conducted an in-person evidentiary hearing on April
20, 2015.
Mr. Farnsworth's Contentions
Mr. Farnsworth testified that, after he injured himself lifting the ramp with a co-worker
and felt the hernia, he worked the remainder of his shift. He then reported the incident to his
foreman, who advised him that they should notify the safety department. Upon report of the
incident to the safety department by his foreman, the safety department instructed Mr.
Farnsworth to go to OHS for a drug screen and exam. Mr. Farnsworth contends that Foley
Company never completed a form C-20, First Report of Work Injury, for his work injury and
never provided him a form C-42, Choice of Physicians.
Mr. Farnsworth disputed the findings of Dr. Copeland. Specifically, Mr. Farnsworth
challenged Dr. Copeland's statements that the degree of cellulitis and inflammation present were
not consistent with an injury at work. Mr. Farnsworth argued that the injury occurred around 8
a.m. on November 7, 2014, but Dr. Copeland did not exam him until after 5 p.m. or 5:30p.m.
Further, the radiologist did not perform the CT scan until approximately 10:00 p.m. due to delays
in obtaining the order. Moreover, Mr. Farnsworth argued that he wore Carhartt work pants,
jeans, and thermals and his job required bending, which caused his abdomen to be red around the
purple rupture site. He further denied any prior ruptures or knowledge of any prior hernia. Mr.
Farnsworth testified that while Dr. Copeland informed him that he had a hole in his navel since
birth, he did not have a bulge in his navel until the lifting incident on November 7, 2014.
Mr. Farnsworth alleged that Foley Company treated him unfairly because it never
provided him a panel and the opportunity to select a doctor of his own choosing. Mr. Farnsworth
additionally challenged Dr. Copeland's statements citing Tennessee Workers' Compensation
Law. Mr. Farnsworth contended that Dr. Copeland's reports appear scripted and alleged that
Foley Company's safety department, who attended the office visits and followed him to the
hospital for the CT scan, coached Dr. Copeland. Mr. Farnsworth further contended that Dr.
Copeland spoke with the safety department before advising him of his condition and findings.
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Mr. Farnsworth further argued that he cannot work full duty concrete finishing without
surgery. His hernia requires surgical repair and his doctors will not release him to return to work
without surgery. On November 15, 2014, he returned to Foley Company to meet his foreman
and to pick up his paycheck and received a lay-off slip for workforce reduction. He returned to
work, through his labor union, on January 22, 2015, for one-week light duty. He subsequently
worked a second week for approximately twenty hours.
Mr. Farnsworth testified that he asked Dr. Copeland for a surgery referral. He then called
his personal physician, Dr. Davis, who agreed that the hernia was work related. He then sought
further evaluation from Dr. Mancini as recommended by Dr. Davis. He contended that his
medical bills from the CT scan and hospital visit for the date of the incident, and also from Dr.
Davis and Dr. Mancini, remain unpaid by Foley Company.
Foley Company's Contentions
Foley Company averred that Mr. Farnsworth failed to satisfy his burden of proof. Citing
Tennessee Code Annotated section 50-6-116, Foley Company asserted that the Tennessee
Workers' Compensation Laws prohibit this Court from applying a remedial or liberal
construction to the law, but instructs this Court to construe the Act fairly, impartially, and in
accordance with basic principles of statutory construction without favoring either the employee
or the employer. As such, Foley further argued that this Court should deny Mr. Farnsworth's
claim for two reasons. First, Mr. Farnsworth failed to demonstrate that he sustained an injury
arising primarily out of and in the course and scope of his employment because he failed to show
by a preponderance of the evidence that the employment contributed more than fifty percent in
causing the injury, considering all causes. Second, Mr. Farnsworth failed to "definitely prove"
the elements ofTennessee Code Annotated section 50-6-212.
Specifically, Foley Company contended that Dr. Davis's December 16, 2014 letter does
not provide an opinion within a reasonable degree of medical certainty. Moreover, and
according to Mr. Farnsworth, Dr. Davis never reviewed the CT scan. Thus, Dr. Davis based his
opinion on his physical examination and the history provided by Mr. Farnsworth. Mr.
Farnsworth admitted on cross-examination that he did not report a prior hernia; yet, a January 6,
2014 CT scan report noted the presence of a hernia (defense counsel showed the report to the
employee and asked the employee to read aloud a portion of the report, but defense counsel did
not introduce the actual report into evidence).
Foley Company averred the only objective evidence present in this case is the CT scan.
The CT scan, performed the same day as the alleged work injury, showed a hernia and edema
with inflammation and cellulitis. Based upon his examination and the CT scan, Dr. Copeland
concluded that no injury existed and referenced the statute as the basis for his conclusion.
Likewise, Mr. Farnsworth failed to definitely prove the elements of section 50-6-212.
Mr. Farnsworth acknowledged on cross-examination that the January 6, 2014 CT scan report,
shown to him by defense counsel, noted a hernia. As such, Mr. Farnsworth cannot definitely
prove that the hernia or rupture appeared suddenly or did not exist prior to the alleged work
incident.
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Foley Company argued that the unpaid medical bills were from unauthorized providers.
As such, Foley Company asserted that it is not responsible for payment.
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)(l) (2014); cf McCall v. Nat'/
Health Care Corp., 100 S.W.3d 209,214 (Tenn. 2003).
Factual Findings
The Court hereby finds that, while at work on November 7, 2014, Mr. Farnsworth lifted a
ramp with a co-worker, developed a bulge in his abdomen, and immediately experienced pain.
Mr. Farnsworth provided timely notice of the work incident to Foley Company. Foley Company
did not complete a Form C-20, First Report of Work Injury. Foley Company additionally failed
to provide Mr. Farnsworth with a Form C-42, Choice of Physicians panel from which he could
select a physician of his own choice for evaluation of his symptoms and complaints.
Application ofLaw to Facts
In the present case, Mr. Farnsworth identified a specific incident, identifiable by time and
place that occurred while he performed his job duties at Foley Company. The issue then turns to
whether the November 7, 2014 incident resulted in an injury arising primarily out of and in the
course and scope of employment,
In McCord v. Advantage Human Resourcing, No. 2014-06-0063 (Tenn. Work. Comp.
App. Bd., March 27, 2015), the Workers' Compensation Appeals Board analyzed the burden of
proof required at the Request for Expedited Hearing Stage and concluded:
We find, therefore, that an employee need not prove each and
every element of his or her claim by a preponderance of the
evidence at an expedited hearing to be entitled to temporary
disability or medical benefits, but must instead present evidence
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sufficient for the trial court to conclude that the employee would
likely prevail at a hearing on the merits in accordance with the
express terms of section 50-6-239(d)(l). A contrary rule would
require many injured workers to seek out, obtain, and pay for a
medical evaluation or treatment before his or her employer would
have any obligation to provide medical benefits. The delays
inherent in such an approach, not to mention the cost barrier for
many workers, would be inconsistent with a fair, expeditious, and
efficient workers' compensation system. See Tenn. Code Ann. §
4-3-1409(b)(2)(A) (2014). Moreover, we note that since an
expedited hearing is interlocutory in nature, either party may
present additional evidence at the final compensation hearing and
ask the trial court to reverse or modify the interlocutory order.
Id at 4.
In McCord, the Workers' Compensation Appeals Board further analyzed what act or
event triggers an employer's responsibility to provide a panel of physicians. Specifically, the
Workers' Compensation Appeals Board held:
[M]ere notice of an alleged workplace accident, in and of itself,
does not trigger an employer's duty to provide medical benefits in
every case, without regard to the particular circumstances
presented. If an employer chooses to deny the claim following its
initial investigation, the employee must come forward with
sufficient evidence from which the trial court can determine that
the employee likely will prove a compensable "injury by accident"
at a hearing on the merits in accordance with section 50-6-
239(d)(l). Conversely, an employer who elects to deny a claim
runs the risk that it will be held responsible for medical benefits
obtained from a medical provider of the employee's choice and/or
that it may be subject to penalties for failure to provide a panel of
physicians and/or benefits in a timely manner.
Id at 7.
In this case, this Court must determine whether Mr. Farnsworth is likely to prevail at a
hearing on the merits. The parties presented this Court with competing expert opinions, neither
of whom provided opinions within a reasonable degree of medical certainty. Moreover, while
Foley Company or its workers' compensation insurer authorized Dr. Copeland's treatment, Mr.
Farnsworth did not select Dr. Copeland from a panel of physicians. Therefore, no presumption
of correctness is given Dr. Copeland' s opinion. See Tenn. Code Ann. § 50-6-102(13)(E). In
light of the competing medical opinions and limited medical treatment completed to date, this
Court finds that the issue of compensability of Mr. Farnsworth's injury remains unresolved.
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Nonetheless, this Court concludes that Mr. Farnsworth is entitled to a proper panel of
physicians. Mr. Farnsworth testified that he developed a bulge and pain in his abdomen after
lifting a ramp with a co-worker on November 7, 2014. Mr. Farnsworth offered uncontroverted
testimony that he timely reported the work incident to his foreman, who reported the incident to
the safety department. Although Foley Company provided authorized medical treatment through
Dr. Copeland at the medical clinic, the record is clear that Foley Company never offered Mr.
Farnsworth a panel of physicians from which he could select a physician for evaluation and
treatment of his injury. Mr. Farnsworth further testified that the safety department personnel
attended his initial medical visits with Dr. Copeland, and that Dr. Copeland reported Mr.
Farnsworth's condition to the safety department prior to advising him of his condition. Mr.
Farnsworth's testimony was uncontroverted on this issue and this Court finds Mr. Farnsworth to
be credible. Considering the testimony of Mr. Farnsworth and the evidence as a whole, this
Court holds that Mr. Farnsworth presented sufficient evidence demonstrating that he is entitled to
a panel of physicians. Accordingly, while Mr. Farnsworth has not demonstrated by a
preponderance of the evidence that he sustained an injury arising primarily out of and in the
course of scope of his employment, he sufficiently satisfied his burden at the Request for
Expedited Hearing stage that he is entitled to a panel of physicians for further evaluation of his
mJury.
On the issue of outstanding medical expenses, Mr. Farnsworth testified that the safety
department instructed him to go to OHS for a drug test and evaluation. Safety department
personnel accompanied Mr. Farnsworth to OHS, where Dr. Copeland evaluated him, and to
Parkwest Hospital, for the CT scan ordered by Dr. Copeland. As such, this Court finds that
Foley Company shall pay all outstanding medical expenses incurred by Mr. Farnsworth with
Parkwest Hospital on November 7, 2014 in the amount of $1,245.70 and with Vista Radiology
on November 7 in the amount of $302.00. Because compensability of Mr. Farnsworth's i~ury
ofNovember 7, 2014 remains unresolved, it is premature to determine whether it is appropriate
to order Foley Company to pay for Mr. Farnsworth's unauthorized medical treatment with his
personal physicians, Drs. Davis and Mancini.
IT IS, THEREFORE, ORDERED as follows:
1. Foley Company shall provide Mr. Farnsworth with a panel of physicians from which he
may select a physician for evaluation and treatment of any work-related injury of
November 7, 2014.
2. Foley Company shall satisfy outstanding medical expenses due and owing to Parkwest
Hospital in the amount of $1,245.70 and Vista Radiology in the amount of $302.00.
3. This matter is set for Initial Hearing on July 15, 2015, at 9:00a.m. eastern time.
4. 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 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)
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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.
5. For questions regarding compliance, please contact the Workers' Compensation
Compliance Unit via email at WCCompliance.Program@tn.gov or via telephone at
(615) 253-1471 or (615) 532-1309.
____ __
,......__ ...)
Workers' Compensation Judge
Initial Hearing:
An Initial Hearing has been set on July 15, 2015, at 9:00 a.m. 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 frorri 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.
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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 2ih day ofMay, 2015.
Name Certified Via Via Service sent to:
Mail Fax Email .
Darren Farnsworth X X 152 Farlow Drive
Knoxville, Tennessee 37934
kimrenea(a),charter .net
Joshua A. Wolfe, Esq. X Joshua. Wolfe@leitnerfirm.com
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--~ SHRUM, COURT CLERK
- -- U~c.courtclerk@tn.gov
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