Glover, Sharon v. Vanderbilt Medical Center , 2015 TN WC 165 ( 2015 )

IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT COOKEVILLE BY INTERCHANGE
Sharon Glover, ) Docket No.: 2015-06-0165
Employee, )
v. ) State File No.: 92319-2014
)
Vanderbilt Medical Center ) Judge Robert Durham
Employer, )
EXPEDITED HEARING ORDER DENYING BENEFITS
(RECORD REVIEW ONLY)
THIS CAUSE came before the undersigned Workers' Compensation Judge upon
the Request for Expedited Hearing (REH) filed by the Employee, Sharon Glover, on
October 22, 2015, pursuant to Tennessee Code Annotated section 50-6-239 (2014) to
determine if the Employer, Vanderbilt Medical Center (Vanderbilt), is obligated to
provide medical benefits. Pursuant to Rule 0800-02-21-.02(13) (2015) of the Tennessee
Compilation Rules and Regulations, Ms. Glover requested the Court issue a ruling based
on a review of the file without an evidentiary hearing. Vanderbilt voiced no objection.
Considering the positions of the parties, the applicable law, and all of the evidence
submitted, the Court concludes it needs no further information to render judgment.
The sole issue is whether Vanderbilt must pay for Ms. Glover's chiropractic
treatment. The Court finds Ms. Glover failed to establish the chiropractic treatment was
reasonable and necessary for any injury sustained in her work-related fall on November
4, 2014. Therefore, the Court denies her request for workers' compensation benefits. 1
History of Claim
Ms. Sharon Glover is a fifty-two-year-old resident of Dickson County, Tennessee,
who worked as a medical lab scientist for Vanderbilt. (Ex. 7.) On November 14, 2014,
the floor drain in the lab where she was working backed up, and approximately two
inches of water rose from the drain onto the floor. (Ex. 1 at 2.) Ms. Glover put down
1
Additional information regarding the technical record and exhibits is attached to this Order as an Appendix.
1
absorbent pads to stop the water from leaking into other rooms. !d. As she showed the
leak to a manager, her feet slipped on an absorbent pad. She twisted and fell on her
buttocks and low back. !d.
After rinsing off and changing into scrubs, Ms. Glover walked to Vanderbilt
Occupational Health Clinic (VOHC) for treatment. !d. While there, Vanderbilt
presented Ms. Glover with an Employee's Choice of Physician form, and she chose
VOHC as her authorized treating physician. (Ex. 5.) Alice Warren, nurse practitioner,
examined Ms. Glover, and noted she complained of low back pain that radiated to her
upper back. (Ex. 7.) N.P. Warren also noted Ms. Glover had suffered from low back
pain in the past and undergone injections to manage it. !d. She diagnosed Ms. Glover
with a "right sacroiliac joint strain" and "chronic back pain." !d. N.P. Warren prescribed
ice and Tylenol, and released her to return to work without restrictions. !d.
Ms. Glover returned to VOHC on November 21. She reported pain in her back
from her upper shoulder to her lumbar area. (Ex. 7 at 2.) She stated the pain worsened
three days earlier after standing for an extended period at her husband's shop. !d. In her
affidavit, Ms. Glover testified she told N.P. Warren that her back pain was not improving,
and her extensive use of a heating pad made lines on her back. (Ex. 1 at 2.) N.P. Warren
assessed Ms. Glover with resolving contusions to her back and buttocks. She prescribed
Tylenol and released her back to work without restrictions. !d.
Ms. Glover did not return to VOHC, but instead sought chiropractic treatment
from Dr. Jason Crist on February 12, 2015. (Ex. 8 at 2.) She complained of mid and low
back pain, and reported her symptoms began after falling on a wet floor at work. !d. X-
rays revealed mild to moderate degenerative changes at L5-S 1 and "vertebral rotation" at
the L2-L4 vertebral segments. (Ex. 8 at 1.) On examination, Dr. Crist noted moderate to
severe muscle spasms in the lumbar and sacroiliac regions. (Ex. 8 at 4.) He
recommended chiropractic treatment three times a week for three weeks, and twice a
week for the next two weeks. !d.
On February 25, Ms. Glover contacted Tracy Woodard, Senior Claim Supervisor
with Vanderbilt Risk and Insurance Management, and requested additional medical care
for her back. (Ex. 1 at 3.) The next day, Ms. Glover sent an email to Ms. Woodard
requesting the names of the panel doctors they had discussed. (Ex. 6 at 2.) Ms.
Woodard responded that she had reviewed the VOHC records, which indicated she had
prior back problems and her pain worsened while standing in her husband's shop.
Based on those facts, Ms. Woodard stated: "I spoke with my supervisor and based
on the information we have - we are unable to pay for any further treatment. You would
need to continue your treatment under your private insurance. You may contact the
TDOL if you do not agree with this decision." (Ex. 6 at 1.)
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Following Vanderbilt's denial, Ms. Glover continued to receive chiropractic
treatment from Dr. Crist. (Ex. 8 at 7-15.) While the record does not contain any
additional notes from Dr. Crist, there are bills evidencing multiple visits from February
27 through September 30. !d.
Ms. Glover filed a Petition for Benefit Determination (PBD) on March 25, 2015.
(T.R. 1.) On April 21, during the mediation process, Vanderbilt's counsel informed the
Mediating Specialist that, while Vanderbilt refused to pay Ms. Glover's chiropractic bills,
it would approve a return visit to VOHC. (Ex. 11.) The parties were unable to reach a
mediated agreement, and the Mediating Specialist filed a Dispute Certification Notice
(DCN) on April29, 2015. (T.R. 2.)
On October 22, 2014, Ms. Glover filed a Request for Expedited Hearing (REH)
seeking a decision on record review. (T.R. 4.) Ms. Glover contends Dr. Crist treated her
for injuries from her November 14, 2014 work-related fall, and she is therefore entitled to
payment for this treatment. Vanderbilt asserts Dr. Crist provided unauthorized medical
care, and the Workers' Compensation Law creates no obligation to pay for it.
Findings of Fact and Conclusions of Law
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 Ass'n, 725 S.W.2d 935, 937 (Tenn. 1987); 2 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, 2015). 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,
20 15). 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.
Tennessee Code Annotated section 50-6-204(a)(1)(A) (2014) requires an employer
to provide an employee with "such medical and surgical treatment ... made reasonably
2
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, at *13 n.4 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).
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necessary by accident." In order to meet this requirement, the employer must begin by
providing the employee with a panel of physicians from which the employee can choose
a treating doctor. Tenn. Code Ann. § 50-6-204(a)(4)(A) (2014). The parties agree
Vanderbilt provided a panel of physicians to Ms. Glover on the day of her accident, and
she chose VOHC as her authorized physician. (Ex. 1 at 2.)
Whether an employee is justified in seeking payment for unauthorized medical
expenses from an employer depends upon the circumstances of each case. Buchanan v.
Mission Ins. Co., 713 S.W.2d 654, 656 (Tenn. 1986). In Buchanan, the Supreme Court
concluded that the statute:
[M]akes it clear that the intent [of the Legislature] ... was for the employee
to certainly do no less than consult his employer before incurring the
expenses called for by that statute if the employee expects the employer to
pay for it. The opposite would seem to be against public policy.
Id. at 657. Ms. Glover concedes she did not seek authorization from Vanderbilt for
additional medical care prior to February 25, 2015. (Ex. 1 at 3.) Thus, Vanderbilt is not
obligated to pay any unauthorized medical expenses incurred by Ms. Glover before then.
!d.
However, Ms. Glover asked Vanderbilt to provide a panel of doctors for continued
treatment on February 25, 2015, and followed up this request with an email on February
26. (Ex. 6 at 2.) Vanderbilt's adjuster, Ms. Woodard, responded with an email on
February 27 expressly denying responsibility for any additional medical care based on
Ms. Glover's history, and advising her to seek payment for additional treatment through
her health insurance. (Ex. 6 at 1.) "An employer who denies all liability for an accident
and injury is in no position to insist upon the statutory provisions respecting the choosing
ofphysicians." CNA Ins. Co. v. Transou, 614 S.W.2d 335, 337-38 (Tenn. 1981) (citing
Paristyle Beauty Salon, Inc. v. Chandler, 341 S.W.2d 731 (1960)).
The facts in Transou are quite similar to those in the instant case, in that the
employer "expressly refused to accept any responsibility for the employee's injury as a
workmen's compensation injury and told him that if he entered the hospital for the
surgery he would have to look to the group employees' hospitalization insurer." !d. at
338. The Supreme Court held that, as a result, the employer was responsible for the
reasonable and necessary medical expenses incurred for treatment of the employee's
work-related injury, even though the employer had not authorized those expenses. !d.
Thus, the Court finds that, as of February 27, 2015, Ms. Glover was justified in seeking
unauthorized medical care, and Vanderbilt would be obligated to pay for the reasonable
and necessary medical expenses incurred by Ms. Glover for treatment of any work-
related injury. See Transou, supra, at 337-338; See also Gaf Bldg. Materials v. George,
614 S.W.2d 430, 433 (Tenn. 2001).
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Vanderbilt contends Ms. Glover could have returned to VOHC, as Vanderbilt's
counsel informed the Mediating Specialist on April 21, 2015. (Ex. 11.) However, the
Supreme Court has consistently held that once an employer denies medical care, it cannot
require an employee to change doctors during the course of treatment. Arnett v. McMinn
County Gov't, No. E2012-01356-WC-R3-WC, 2013 Tenn. LEXIS 596, at *36 (Tenn.
Workers' Comp. App. Panel July 9, 2013); see also Lambert v. Famous Hospitality, Inc.,
947 S.W.2d 852, 854 (Tenn. 1997). From February 27 through April 21, Ms. Glover
treated with Dr. Crist's office fourteen times. (Ex. 8.) "Once the Employee had
justifiably engaged [a physician], the subsequent efforts by the Employer to arrange for a
different physician did not preclude the Employee from continuing under his care."
Arnett, supra, at *33. Thus, Vanderbilt's re-authorization ofVOHC did not preclude Ms.
Glover from seeking additional care from Dr. Crist, or eliminate Vanderbilt's obligation
to pay for reasonable and necessary care incurred as a result of Ms. Glover's fall on
November 14, 2014. !d.
However, Ms. Glover must still prove the essential elements of her claim,
including causation. See Tindall, supra, at 93 7. Medical evidence is generally required
to establish a causal relationship, "[e]xcept in the most obvious, simple and routine
cases." Cloyd v. Hartco Flooring Co., 274 S.W.3d 638, 643 (Tenn. 2008) (quoting
Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn. 1991)). Thus, Ms. Glover
must establish that Dr. Crist treated her for injuries resulting from a work-related injury
before Vanderbilt would be obligated to pay for it. !d.; see also Greenlee v. Care Inn of
Jefferson City, 644 S.W.2d 679, 679-80 (Tenn. 1980).
Other than medical bills, the only record Ms. Glover provided documenting Dr.
Crist's treatment was the initial visit on February 12, 2015. (Ex. 8 at 1-6.) The only
reference to causation in the record states, "[t]he patient reports that her symptoms began
on 11/14/14 following a fall on a wet floor at work," which is simply a recitation of the
history given by Ms. Glover. !d. at 2. The record contains no opinion from Dr. Crist that
the conditions for which he treated Ms. Glover "primarily arose out of and in the course
of her employment" with Vanderbilt, as required by Tennessee Code Annotated section
50-6-102(13) (2014). Thus, the Court finds Ms. Glover has not met her burden of proof
with regard to causation.
In addition, the Supreme Court has held that when an employee receives
unauthorized medical care for a work-related injury, she must establish the necessity and
reasonableness of the charges before the employer is responsible. Moore v. Town of
Collierville, 124 S.W.3d 93, 98 (Tenn. 2004). Furthermore, "expert testimony is needed
to establish the reasonableness of medical bills." Greenlee, supra, at 680.
In this case, Ms. Glover only presented the medical bills incurred through her
treatment with Dr. Crist. (Ex. 8.) There is no evidence establishing these expenses were
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reasonable, or incurred for necessary treatment of injuries Ms. Glover sustained in her
fall on November 14, 2014. Therefore, the Court finds Ms. Glover failed to establish the
reasonableness and necessity of medical expenses incurred with Dr. Crist. !d.
In sum, Ms. Glover has yet to provide sufficient evidence to establish she is likely
to prevail at trial on the issue that Dr. Crist's chiropractic treatment causally relates to her
fall on November 14, 2014, or that the treatment he provided was reasonable and
necessary for any work-related injury. See McCord, supra, at *9. Therefore, the Court
denies her request for payment of her chiropractic bills at this time.
IT IS, THEREFORE, ORDERED that:
I. Ms. Glover's request for payment of Dr. Crist's chiropractic bills is denied.
2. This matter is set for Initial Hearing on December 16, 2015, at 9:00a.m.
C.T.
ENTERED THIS THE 12" D``2015.
Robert V. Durham, Judge
Court of Workers' Compensation Claims
Initial Hearing:
An Initial Hearing has been set with Judge Robert Durham, Court of
Workers' Compensation Claims. You must call 615-253-0010 or toll-free at 866-
689-9049 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:
I. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal."
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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
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.
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APPENDIX
Exhibits:
1. Affidavit of Sharon Glover;
2. Affidavit of Susan Sefers;
3. Affidavit of Maralie Exton;
4. Affidavit of Sharon Glover;
5. Employee's Choice ofPhysician form;
6. Email exchange between Sharon Glover and Tracy Woodard;
7. Medical Records from VOHC;
8. Medical records and bills from Crist Chiropractic Wellness; and
9. X-ray report dated November 12,2010.
Technical Record: 3
1. Petition for Benefit Determination;
2. Dispute Certification Notice;
3. Request for Expedited Hearing;
4. Transfer Order; and
5. Employer's Response to REH.
3
The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as
allegations unless established by the evidence.
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Expedited Hearing Order
Denying Benefits was sent to the following recipients by the following methods of
service on this the 12 th day ofNovember, 2015.
Name Certified Via Via Service sent to:
Mail Fax Email
Sharon Glover X X Sharon.smith@vanderbilt.edu
Nathaniel Cherry X ncherry@howardtatelaw .com
Penny Shrum, Clerk of Court
Court of Workers' Compensation Claims
WC.CourtCierk@tn.gov
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