East, Sean v. Heritage Hosiery , 2015 TN WC 142 ( 2015 )

FILED
October 16,2015
DiCOURT OF
WORKERS' CO:VIPE:'iSATIO:'i
CLAn1S
Time: 7:15 A.l\'1
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT CHATTANOOGA
Sean Vance East, ) Docket No.: 2014-01-0009
Employee, )
v. ) State File Number: 71607/2014
Heritage Hosiery, )
Employer, ) Judge Thomas Wyatt
And )
Employers Preferred Ins. Co., )
Insurance Carrier. )
EXPEDITED HEARING ORDER DENYING ADDITIONAL MEDICAL AND
DISABILITY BENEFITS
This claim came before the Court on September 22, 2015, upon a second Request
for Expedited Hearing (REH) for medical and temporary disability benefits filed by the
employee, Sean Vance East. 1 The employer, Heritage Hosiery, Inc. (Heritage), asked the
Court to find Mr. East did not establish by expert medical opinion that his alleged work-
related injury arose primarily out of and in the course and scope of employment. 2 For the
reasons set forth below, the Court finds the injury is not compensable and denies the
requested relief.
History of Claim
Mr. East is a forty-six-year-old resident of Hamilton County, Tennessee. (T.R. 1
at 1.) He alleged that, on September 4, 2014, he injured his "left arm from neck to hand
(numbness, tingling, pain)" while lifting heavy boxes of yam in the course and scope of
1
Mr. East titled his REH as a Motion for Medical Benefits. The Bureau of Workers' Compensation's Hearing and
Mediation Rules allow a party to request an Expedited Hearing by Motion. See Tenn. Comp. R. & Regs. 0800-02-
21-.02(18) (2015). At the Expedited Hearing, he also asked to present in-person testimony on the issue of his
entitlement to temporary partial disability benefits. At the first Expedited Hearing, the Court denied temporary
partial disability benefits because it found Mr. East quit his job at Heritage. Because Mr. East asked for temporary
disability benefits in the previous Expedited Hearing, at which time he was self-represented, and is now represented
by counsel, the Court allowed both parties to introduce testimony on the temporary disability benefits issue.
2
Additional information regarding the technical record and exhibits admitted at the Expedited Hearing is attached to
this Order as an Appendix.
1
his employment by Heritage. !d. Mr. East worked at Heritage for approximately one
week when the alleged injury occurred.
First Expedited Hearing
On November 13, 2014, the Court conducted a telephonic Expedited Hearing,
following which it ordered Heritage to provide medical benefits. (T.R. 3 at 1, 7.)
Heritage complied by authorizing orthopedic surgeon Dr. Peter Lund to treat Mr. East's
alleged injury. The Court also found Mr. East was not entitled to temporary disability
benefits because he quit his job at Heritage.
Second Expedited Hearing
Termination ofEmployment
The testimony concerning whether Mr. East quit his job at Heritage or Heritage
terminated him differed little from the telephonic testimony introduced at the previous
telephonic hearing. Mr. East testified that, on September 9, 2014, he communicated to
Heritage's plant manager, Forrest Martin, his concern that the heavy lifting his job
required might cause him to reinjure two surgically-repaired hernias. Mr. East testified
he decided to speak to Mr. Martin after he lifted several heavy boxes of rubber yam.
Mr. East stated Mr. Martin told him his job required heavy lifting, to which Mr.
East responded that he did not want to hurt himself. Mr. East testified Mr. Martin told
him it would be best that he go home, and he interpreted this comment to mean Mr.
Martin terminated him. He testified he did not resign his job and intended to continue
working at Heritage if he could. In support of the latter statement, Mr. East stated he
asked Mr. Martin the day after the alleged work-related injury occurred if he could
transfer to a job in Heritage's warehouse.
Mr. Martin testified that Mr. East told him he was concerned the required heavy
lifting would reinjure his hernias. He stated Mr. East twice asked him what he should do.
Mr. Martin testified he told Mr. East on both occasions that he did not want him to get
hurt and he should do what was best for him and his health. Mr. Martin testified Mr. East
then asked what he should do about his time card/key and left the building. Mr. Martin
interpreted Mr. East's comments and actions to indicate he quit his job.
David Fry testified that he was Mr. East's direct supervisor at Heritage. He stated
Mr. East told him on the last day he worked that he believed the lifting required by his
job was too heavy for a person with two hernias to perform. Mr. Fry testified that,
shortly after he helped Mr. East stack several boxes of yam, Mr. East spoke to Mr.
Martin and, upon returning, announced he was leaving because he could not handle the
heavy lifting. Mr. Fry introduced into evidence the written time record he kept on
2
September 4, 2014, on which he wrote that Mr. East "left around 2:00pm said he quit
too much heavy lifting." (Ex. 7.)
Causation
Mr. East first saw Dr. Lund on October 20, 2014. (Ex. 1 at 1.) Dr. Lund noted
Mr. East reported left-shoulder pain, with numbness and tingling from the bicep area into
his left hand "since lifting rubber yam at previous job." (Ex. 1 at 3.) He later noted Mr.
East reported the boxes of yam he lifted weighed "between 80 and 100 pounds." (Ex. 1
at 3.) Dr. Lund also noted that, "[t]here seems to be a temporal relationship between the
onset of these symptoms and his work injury." (Ex. 1 at 4, 19-20.)
Dr. Lund's January 12, 2015 note referenced an MRl of Mr. East's cervical spine
that "revealed an abnormality that the radiologist felt could be creating left arm radicular
symptoms." (Ex. 1 at 14.) Dr. Lund recommended referral to a spine surgeon for this
condition. !d. In a February 6, 2015 office note, Dr. Lund indicated a left-shoulder MRl
was "suggestive of a labral tear with an apparent cyst at the spinoglenoid notch cyst. His
EMG study is suggestive of suprascapular neuropathy." (Ex. 1 at 17.) Dr. Lund opined,
"I think it is possible that the current MRl findings regarding the labral tearing,
spinoglenoid notch cyst formation, are related to his described work injury event." !d.
(Emphasis added.) Dr. Lund suggested referral to Dr. W. David Bruce, another
orthopedic in his office, for further shoulder treatment and to a neurosurgeon for
treatment of Mr. East's cervical-spine condition. !d.
Dr. Bruce saw Mr. East once. (Ex. 2 at 1.) In response to a letter from Heritage's
lawyer soliciting his causation opinion, Dr. Bruce wrote, "to determine with 100%
reliability of cause is impossible." !d. Dr. Bruce, however, opined that, "[i]t is my
feeling that Mr. East had a pre-existing labral pathology[.] This therefore predisposed
him to subluxation events with his shoulder and with that subluxation event you can put a
traction injury on the suprascapular nerve, which is what I suspect he did." /d. Dr. Bruce
concluded that "more than 50% I feel was due to his pre-existing condition and not the
work he was performing and with that I still think the work contributed but it was to less
than 50% and more so the pre-existing labral condition that Mr. East had." (Ex. 2 at 2.)
Findings of Fact and Conclusions of Law
General Legal Principles
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). The employee in a workers' compensation claim
has the burden of proof on all essential elements of a claim. Tindall v. Waring Park
3
Ass 'n, 725 S.W.2d 935, 937 (Tenn. 1987);3 Scott v. Integrity Staffing Solutions, No.
2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn. Workers' Comp.
App. Bd. Aug. 18, 20 15). An employee need not prove every element of his or her claim
by a preponderance of the evidence in order to obtain relief at an expedited hearing.
McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015). At an
expedited hearing, an employee has the burden to come forward with sufficient evidence
from which the trial court can determine that the employee is likely to prevail at a hearing
on the merits. /d.
Termination ofEmployment
The Court heard no convincing testimony at the in-person Expedited Hearing upon
which to set aside the previous ruling that Mr. East quit his job at Heritage. The Court
finds that, at a hearing on the merits, Mr. East will not prevail in establishing entitlement
to temporary partial disability benefits because he quit his job before he gave Heritage
notice ofhis work-related injury. See Cotton v. Epsco, Inc., No. 01S01-9706-CV-00188,
1998 LEXIS 363, at *13 (Tenn. Workers' Comp. Panel June 24, 1998), holding, "[T]here
is no basis for such an award [of temporary total disability benefits] [.] In this case, the
plaintiff quit work without advising the defendant that he was unable to work and before
the defendant had notice of any injury."4
Causation
To establish compensability under the workers' compensation statutes, an
employee must prove that his or her injury arose primarily out of and in the course and
scope of employment. Tenn. Code Ann. § 50-6-102(13) (2014). Subsection (B) to
section 50-6-102(13) provides, "[a]n 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 death,
disablement or need for medical treatment, considering all causes." Section 50-6-
102(13)(D) (2014) provides, "'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." (Emphasis added.)
Mr. East relies on Dr. Lund's causation opinion in support of the compensability
3
The Tennessee Workers' Compensation Appeals Board allows reliance on precedent from the Tennessee Supreme
Court "unless it is evident that the Supreme Court's decision or rationale relied on a remedial interpretation of pre-
July 1, 2014 statutes, that it relied on specific statutory language no longer contained in the Workers' Compensation
Law, and/or that it relied on an analysis that has since been addressed by the general assembly through statutory
amendments." McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, *13 n.4 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).
4
The Court notes this opinion concerns a claim for temporary total disability benefits, but fmds no reason the quoted
principle should not equally apply, as here, to a claim for temporary partial disability benefits.
4
of his claim. He argues that, because Dr. Lund is the authorized treating physician, the
Court must afford a presumption of correctness to his causation opinion. 5 Mr. East's
position is correct as far as it goes. The Court must also address Dr. Lund's causation
opinion in view of Tennessee Code Annotated section 50-6-102(13)(D) (2014), which
requires that a physician state a causation opinion to a reasonable degree of medical
certainty. By statutory definition, a physician must state a causation opinion under a
"more likely than not considering all causes" standard, as opposed to a "possibility"
standard. ld.
The Court interprets section 50-6-102(13)(D) to require that the Court discount a
causation opinion stated in terms of the "possibility" that a work injury arose primarily
out of and in the course and scope of employment. Because Dr. Lund states his opinion
in terms of the possibility of work-relatedness (Ex. 1 at 17), the Court gives his opinion
little weight. Dr. Lund's fmding of a "temporal relationship" (Ex. 1 at 4, 19-20) between
Mr. East's symptoms and his work at Heritage does not sufficiently buttress his causation
opinion to overcome the statutory admonition against awarding benefits based on the
possibility that an alleged injury is work-related. Tenn. Code Ann. § 50-6-102(13)(D).
In consideration of the evidence in the record at this time, the Court finds that Dr.
Bruce's opinion on causation is determinative. In support of this fmding, the Court notes
Dr. Lund expressed confidence in Dr. Bruce's credentials to treat and evaluate Mr. East,
citing in his notes that he based his referral to Dr. Bruce on Dr. Bruce's "expertise in the
management of suprascapular neuropathy." (Ex. 1 at 17.) The Court further notes that
Dr. Bruce stated his opinion using the correct statutory standard for evaluating the work-
relatedness of a medical condition where competing causative factors are involved, while
Dr. Lund stated his opinion in terms of a possibility of work-relatednes. The Court also
notes that, as Dr. Lund's partner, Dr. Bruce had access to the same diagnostic information
as Dr. Lund to assess causation.
For the reasons outlined above, the Court accepts Dr. Bruce's opinion that Mr.
East's shoulder condition did not primarily arise out of and in the course and scope of
employment. Accordingly, the Court fmds that, given the evidence before it, it is
unlikely Mr. East will prevail in establishing his injury arose primarily out of and in the
course and scope of employment.
IT IS, THEREFORE, ORDERED as follows:
1. The Court denies Mr. East's claim against Heritage and its workers' compensation
carrier for the requested additional medical and temporary disability benefits.
2. This matter is set for an Initial (Scheduling) Hearing on January 4, 2016, at 9:00 a.
5
Tenn. Code Ann.§ 50-6-102(13)(£).
5
m. Eastern Time.
ENTERED this the 16th day of October, 2015.
Judge Thomas Wyatt
Court of Workers' Compensation Claims
Initial (Scheduling) Hearing:
A Scheduling Hearing has been set with Judge Thomas Wyatt, Court of
Workers' Compensation Claims, at 9:00 a.m., Eastern Time, on January 4, 2016.
You must call 615-741-3061 or toll-free at 855-747-1721 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 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 appealing party is responsible for payment of a filing fee in the amount of
$75.00. Within ten calendar days after the filing of a notice of appeal, payment
must be received by check, money order, or credit card payment. Payments can be
made in person at any Bureau office or by United States mail, hand-delivery, or
other delivery service. In the alternative, the appealing party may file an Affidavit
of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
6
will consider the Affidavit of Indigency and issue an Order granting or denying
the request for a waiver of the filing fee as soon thereafter as is
practicable. Failure to timely pay the filing fee or file the Affidavit of
Indigency in accordance with this section shall result in dismissal of the
appeal.
5. 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 calendar days of the filing of the Expedited
Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
the evidence within ten calendar days of the filing of the Expedited Hearing
Notice of Appeal. The statement of the evidence must convey a complete and
accurate account of what transpired in the Court of Workers' Compensation
Claims and must be approved by the workers' compensation judge before the
record is submitted to the Clerk of the Appeals Board.
6. If the appellant elects to file a position statement in support of the interlocutory
appeal, the appellant shall file such position statement with the Court Clerk within
three business days of the expiration of the time to file a transcript or statement of
the evidence, specifying the issues presented for review and including any
argument in support thereof. A party opposing the appeal shall file a response, if
any, with the Court Clerk within three business days of the filing of the appellant's
position statement. All position statements pertaining to an appeal of an
interlocutory order 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.
7
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Expedited Hearing Order
Denying Additional Medical and Temporary Disability Benefits was sent to the following
recipients by the following methods of service on this the 16th day of October, 2015.
Name Certified First Via Fax Via Email Address
Mail Class Fax Number Email
Mail
Brent J. Mcintosh, X brentmlalbilbolaw.com
Attorney for Sean
Vance East
Charles Poss, Attorney X Charlie.poss@leitnerfirm.com
for Heritage Hosiery
P~ r m~u:=~
Court of,. orkers' Compensation Claims
WC.CourtClerk@tn.gov
8
APPENDIX
Exhibits:
1. Records of Chattanooga Bone and Joint Surgeons/Dr. Peter Lund;
2. Letter of April 9, 2015, from Dr. W. David Bruce, Chattanooga Bone and Joint
Surgeons, to Attorney Charles Poss;
3. Heritage's personnel file on Mr. East;
4. Affidavit ofF orrest Martin;
5. Recorded Statement of Sean East;
6. Wage Statements;
7. Handwritten note of David Fry;
8. Records of Physician's Care; and
9. Job Description.
Technical record:i
1. Petition for Benefit Determination, filed September 29, 2014;
2. Dispute Certification Notice, filed October 28, 2014;
3. Expedited Hearing Order for Medical Benefits, filed November 24, 2014; and
4. Motion for Medical Benefits, filed July 30, 2015.
i The following list contains only the filings considered in the determination of the issues raised during this
Expedited Hearing. The Court did not consider a docwnent attached to the listed filings unless it admitted the
document into evidence during the Expedited Hearing. The Court considered factual statements in or attached to the
listed filings as allegations unless established by the evidence.
9