Mendez, Severiano v. Serra Jackson Automotive d/b/a Serra Chevrolet Cadillac Buick GMD ( 2016 )

F~ED
JUNE 13, 2016
1N COURf Of
"ORKIRS' COMPE NSATIO N
CLAIMS
Time 12:57 P I
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT JACKSON
SEVERIANO MENDEZ ) Docket No.: 2016-07-0055
Employee, )
v. ) State File Number: 42623-2015
SERRA JACKSON AUTOMOTIVE )
d/b/a SERRA CHEVROLET )
CADILLAC BUICK GMC )
Employer, ) Judge Amber E. Luttrell
)
And )
)
TENNESSEE AUTOMOTIVE )
ASSOCIATION SELF INSURER'S )
TRUST )
Insurance Carrier. )
EXPEDITED HEARING ORDER DENYING REQUESTED MEDICAL
BENEFITS
This matter came before the undersigned Workers' Compensation Judge on the
Request for Expedited Hearing filed by the employee, Severiano Mendez, pursuant to
Tennessee Code Annotated section 50-6-239 (2015). The issue before the Court is
whether Mr. Mendez's current complaints and need for medical treatment arose primarily
out of and in the course and scope of his work injury on October 30, 2014. For the
reasons set forth below, the Court finds Mr. Mendez did not carry his burden of proving
entitlement to the requested benefits at this time. 1
History of Claim
Mr. Mendez is a fifty-one-year-old resident of Madison County, Tennessee. 2 He is
1
A complete listing of the stipulations, technical record, and exhibits admitted at the Expedited Hearing is attached
to this Order as an appendix.
2
Mr. Mendez requested and Serra provided a certified court interpreter for the Expedited Hearing. Mr. Heman A.
Silva-Zetina served as the interpreter during the hearing.
1
employed by Serra as a lot-porter. Mr. Mendez's job duties consist of washing cars,
inspecting new cars, sweeping, and mopping. He testified, "I do a little bit of everything."
Mr. Mendez slipped and fell on October 30, 2014, while walking through the service area
where cars are washed. Mr. Mendez alleged injuries to his back, left elbow, left upper
arm, and left hip. (T.R. 1 and Ex. 1.Y
Mr. Mendez reported the injury, and Serra provided him medical treatment at
Physicians' Quality Care. On October 31, 2014, Mr. Mendez saw Dr. Peter Gardner and
gave a history of his slip and fall injury the previous day. (Ex. 5.) He complained of pain
in the left arm, elbow and low back. Upon physical examination, Dr. Gardner diagnosed
an upper limb contusion and a lumbosacral sprain/strain. Mr. Mendez returned for follow
up on November 10, 2014, and saw Dr. Keith Ellis. Dr. Ellis opined Mr. Mendez
sustained a lumbosacral sprain, deltoid epicondylitis, and lateral (elbow) epicondylitis.
He treated Mr. Mendez with an Ace wrap for his elbow and ordered physical therapy. Mr.
Mendez completed physical therapy. !d.
Approximately seven months later, on June 15, 2015, Mr. Mendez returned to
Physicians' Quality Care (PQC) and complained of ongoing back pain. He saw. Dr. Ellis
in July and reported pain along the lower back on the right and left side without radiation.
Based upon his ongoing symptoms and exam findings, Dr. Ellis referred Mr. Mendez for
orthopedic evaluation.
Serra provided Mr. Mendez a panel of orthopedic physicians from which he
selected Dr. Bradford Wright. (Ex. 3.) Mr. Mendez began treatment with Dr. Wright on
August 21, 2015, for his back injury. (Ex. 5.) Following an exam, Dr. Wright diagnosed a
low back strain. He opined Mr. Mendez, "appears to have congenital stenosis and after
his fall he aggravated this condition. He does not have any evidence of radiculitis." !d.
Dr. Wright ordered an MRI of the lumbar spine, which revealed an L3-4 retrolisthesis
with stenosis. Dr. Wright further noted post-surgical changes and stenosis at L5-S1 and
stenosis at L3-4. He stated Mr. Mendez, "had a previous laminectomy at L5-S1 in 2010
and has some stenosis associated with that also. I believe the L3-4 lesion is associated
with the current trauma to the back. The L4-5 and L5-S 1 problems are more likely than
not associated with the previous injury and surgery." !d. Dr. Wright ordered physical
therapy and a trial of lumbar epidural steroids.
On November 3, 2015, Dr. Wright noted Mr. Mendez experienced no significant
change following therapy and injections; therefore, he referred Mr. Mendez to an
orthopedic spine specialist. !d.
Based upon Dr. Wright's referral, Serna provided Mr. Mendez a panel of
3
Mr. Mendez did not testify regarding how he sustained his injury. The Court gleaned the facts concerning the
injury from the PBD and Mr. Mendez's Affidavit.
2
neurosurgeons on November 12, 2015, from which he selected Dr. John Brophy for
treatment. (Ex. 3.) Mr. Mendez saw Dr. Brophy on December 16, 2015. (Ex. 5.) Dr.
Brophy took a history and noted Mr. Mendez's prior back injury and surgery in 2010.
Mr. Mendez complained to Dr. Brophy of diffuse mid-lumbar pain and fatigue of the
anterior thighs. He did not describe distal lower extremity radicular pain or weakness. Dr.
Brophy reviewed the MRI results and noted a slight retrolisthesis at L3 or L4, but opined
there was no evidence of HNP or nerve root compression. !d. Dr. Brophy further
documented an extensive record review he performed of Mr. Mendez's prior treatment
for his back dating back to 2008. Dr. Brophy diagnosed "chronic back pain associated
with lumbar spondylosis without radiographic evidence of nerve root compression." !d.
He noted, "the myofascial component related to his work injury has been appropriately
treated." !d. Dr. Brophy further opined,
Based on his ongoing symptoms, we reviewed the option of further
evaluation through his personal insurance with lateral lumbar
flexion/extension x-rays to rule out instability which would not be
considered related to his work injury. He has declined these studies at this
time. From the standpoint of his October 2014 work injury, he is cleared to
return to work at full duty without restriction.
!d.
Serra's counsel sent correspondence to Dr. Brophy on April 11, 2016, concerning
medical causation and providing Dr. Brophy with the statutory definition of "injury" set
forth in Tennessee Code Annotated section 50-6-102(14) (2015). In response to questions
posed to him, Dr. Brophy stated Mr. Mendez did sustain a work-related injury on October
30, 2014, diagnosed as "myofascial pain after a fall." (Ex. 9.) Dr. Brophy further opined
Mr. Mendez has received appropriate and reasonable medical treatment for his injury
consisting of physical therapy and anti-inflammatories. !d. Finally, Dr. Brophy opined
there is no further medical treatment, including surgical intervention, that is reasonable or
necessary for Mr. Mendez's work injury. !d. Dr. Brophy also completed a C-30A Form
placing Mr. Mendez at maximum medical improvement (MMI) on December 16, 2015,
for his work injury. He assigned no permanent impairment and no permanent restrictions.
!d.
Mr. Mendez testified at the Expedited Hearing that he disagreed with Dr. Brophy's
opinion and his back pain is worse. He stated his back is fine when he is at work.
However, at home he experiences pain in his waist, legs, and inflammation behind his
hips. He treats his symptoms with hot water, cold packs, and massage. Mr. Mendez
testified he wants further treatment with Dr. Wright. He stated Dr. Wright informed him
his spine was "twisted" causing nerve pain. Mr. Mendez testified Dr. Wright felt he
needed surgery as evidenced by Dr. Wright's referral ofhim to a spine specialist.
3
Mr. Mendez testified his left shoulder is part of his claim. However, he stated he is
requesting medical treatment for his back only.
On cross-examination, Serra's counsel questioned Mr. Mendez concerning his
extensive history of prior work injuries, primarily to his back. The testimony from Mr.
Mendez and the records admitted into evidence revealed, in part, the following pre-
existing injuries and treatment for Mr. Mendez's back:
• May 31, 2003 back injury at Premier Manufacturing. Mr. Mendez treated with
orthopedist, Dr. Lowell Stonecipher, for a diagnosis of slight degenerative disc at
L5/S 1. Mr. Mendez underwent significant conservative treatment for the injury
through August 2005, when he attained maximum medical improvement (MMI).
Mr. Mendez settled his workers' compensation cl~im in December 2005 and
closed his right to future medical treatment. (Ex. 11.)
• May 17, 2006 back injury at Premier Manufacturing. Mr. Mendez treated
conservatively with Dr. John Campbell and Dr. Bradford Wright for chronic
thoracolumbar pain with MRI showing small right paracentral disc protrusion at
L5/S1, which was abutting but not displaced or compressing the right S1 nerve.
Mr. Mendez settled his workers' compensation claim in December 2007 and
retained the right to lifetime future medicals for his injury. (Ex. 7 .)
• July 1, 2008 back injury at Premier Manufacturing. 4 Mr. Mendez treated
conservatively with Dr. Glenn Barnett, a neurosurgeon, for an L5 disc herniation
on the right. Dr. Barnett ordered surgery, but it was denied. Mr. Mendez settled his
workers' compensation claim in June 2013 on a doubtful and disputed basis. (Ex.
10.)
• December 17, 2010 back surgery at Laser Spine Institute in Tampa Florida. Mr.
Mendez underwent surgery with the following procedures: "right L5/S1 L/F/DNR,
foramenotomy, including partial facetectomy, with decompression of nerve root,
with disc decompression, bilateral L4/5 destruction via thermal ablation of the
paravertebral facet joints, and left L5/S 1 destruction via thermal ablation of the
paravertebral facet joint." (Ex. 8.)
On cross-examination, Mr. Mendez testified after his termination from Premier
Manufacturing in December 2009, he was unable to work due to his back for a long
period of time. 5 He continued seeking regular medical treatment for his back from
4
The Court notes Mr. Mendez denied a new injury to his back on July 1, 2008. He testified he continued to have
back symptoms from his 2005 injury. He stated his attorney at the time alleged a new injury on July I, 2008, for
which he reached a settlement in 20 13 .
5
The Court notes the testimony was unclear if Mr. Mendez worked anywhere between December 2009 and when he
began his employment at Serra on May 28, 2014.
4
different providers through May 21, 2014, seven days prior to starting his employment at
Serra.
On August 13, 2014, Mr. Mendez sought treatment at Family Care Walk-In Clinic
and was diagnosed with chronic low back pain. He was prescribed Tramadol. (Ex. 8.)
Mr. Mendez filed a Petition for Benefit Determination (PBD) seeking additional
medical treatment for his back. The parties did not resolve the disputed issues through
mediation, and the Mediating Specialist filed a Dispute Certification Notice (DCN). Mr.
Mendez filed a Request for Expedited Hearing, and this Court heard the matter on May
11, 2015. At the Expedited Hearing, Mr. Mendez asserted he needs additional medical
treatment with Dr. Wright for his back. Specifically, Mr. Mendez testified he needs back
surgery.
Serra countered Mr. Mendez has an extensive pre-existing history of back injuries
for which he closed out his right to future medicals in prior workers' compensation
settlements. Serra specifically pointed out Mr. Mendez had prior MRis, which indicated
degeneration and broad-based annular disc bulging at L3/4, which is the same level for
which Mr. Mendez now seeks additional treatment. Serra argued the medical evidence
failed to establish Mr. Mendez needs any further medical treatment arising primarily out
of his October 30, 2014 back injury. Serra further argued Dr. Brophy, the authorized
treating physician, did not recommend any surgery or additional treatment for the work-
related injury.
Findings of Fact and Conclusions of Law
Mr. Mendez need not prove every element of his claim by a preponderance of the
evidence at this Expedited Hearing stage in order to obtain relief. 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). However, he must come forward
with sufficient evidence from which this court might determine he is likely to prevail at a
hearing on the merits. !d.; Tenn. Code Ann. § 50-6-239(d)(l) (20 15).
Analysis
The Court finds the controlling statute on the issue in this case is Tennessee Code
Annotated section 50-6-102(14) (2015). It provides that to be compensable, Mr. Mendez
must show his alleged injury arose primarily out of and in the course and scope of his
employment. To do so, he must show his injury was caused by an incident, or specific set
of incidents, identifiable by time and place of occurrence, and shall not include the
aggravation of a preexisting condition 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. Tenn. Code Ann. § 50-6-1 02(14 )(A) (20 15). Further, he must show, "to a
5
reasonable degree of medical certainty that it contributed more than fifty percent (50%)
in causing the ... disablement or need for medical treatment, considering all causes."
Tenn. Code Ann. § 50-6-102(14)(C) (2015). Moreover, "[t]he opinion of the treating
physician, selected by the employee from the employer's designated panel of physicians .
. . 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(14)(E)
(2015).
Here, Mr. Mendez initially selected Dr. Wright from a panel of orthopedic
physicians provided by Serra. After providing conservative treatment, Dr. Wright
referred Mr. Mendez to a spine specialist. Accordingly, Serra provided Mr. Mendez a
panel of neurosurgeons from which he selected Dr. Brophy. Under Tennessee Code
Annotated section 50-6-102(14)(E) (2015), Dr. Brophy's causation opinion is presumed
correct. Upon examining Mr. Mendez, reviewing his diagnostic studies, and reviewing
his extensive pre-existing treatment records, Dr. Brophy opined Mr. Mendez sustained
myofascial pain only from his work injury at Serra for which he received appropriate
medical treatment and retained no permanent impairment. Also, Dr. Brophy opined no
further medical treatment, including surgical intervention, is reasonable or necessary for
Mr. Mendez's work-related injury. Finally, Dr. Brophy opined, ''[B]ased on his ongoing
symptoms, we reviewed the option of further evaluation through his personal insurance
with lateral lumbar flexion/extension x-rays to rule out instability which would not be
considered related to his work injury." (Ex. 5.)
Mr. Mendez disagrees with Dr. Brophy's opinions, arguing Dr. Wright opined he
needs surgery for his work-related injury. The Court finds these contentions are
insufficient to overcome the presumption of correctness afforded Dr. Brophy, and Mr.
Mendez presented no expert medical evidence to support his contentions. Absent a
contrary medical opinion, Mr. Mendez cannot rebut the presumption of correctness
afforded Dr. Brophy's opinion by the Workers' Compensation Law. Scott v. Integrity
Staffing Solutions, No. 2015-01-0055, 2015 Tn. Wrk. Comp. App. Bd. LEXIS 24, at *8
(Tenn. Workers' Comp. App. Bd. Aug. 8, 2015).
Therefore, as a matter of law, Mr. Mendez has not come forward with sufficient
evidence from which this Court may conclude he is likely to prevail at a hearing on the
merits. The Court must deny his request for medical benefits at this time.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Mendez's claim against Serra and its workers' compensation carrier for the
requested medical benefits is denied at this time.
2. This matter is set for an Initial (Scheduling) Hearing on August 8, 2016, at 9:00
a.m. Central time.
6
ENTERED this the 13th day ·a~l~. ~---------....
Judge Amber E. Luttrell
Court of Workers' Compensation Claims
Initial (Scheduling) Hearing:
An Initial (Scheduling) Hearing has been set with Judge Luttrell, Court of
Workers' Compensation Claims. You must call 731-422-5264 or toll-free at 855-543-
5039 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
will consider the Affidavit of Indigency and issue an Order granting or denying
7
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
lndigency 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
five 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 five business days of the filing ofthe 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
Stipulations of the Parties:
1. The date of injury is October 30, 2014.
2. Mr. Mendez did not miss any work as a result of the October 30, 2014 work
injury. Therefore, no temporary disability benefits are due.
3. Mr. Mendez received authorized medical treatment from Physicians' Quality Care,
Dr. Bradford Wright, and Dr. John Brophy.
Exhibits:
1. Affidavit of Severiano Mendez
2. First Report of Work Injury
3. C-42 Panel of Physicians
4. Wage Statement
5. Collective medical records admitted by Mr. Mendez of the following providers:
a. Physicians' Quality Care
b. Sports Orthopedic and Spine (Dr. Wright)
c. Family Care Walk-In Clinic
d. Sports Orthopedic and Spine Physical Therapy
e. Semmes-Murphey Clinic (Dr. Brophy)
6. Mr. Mendez's Serra application of employment
7. Prior Workers' Compensation Settlement Documents
8. Serra's Exhibit List containing medical records
9. Serra's Supplemental Exhibit List
Technical Record: 6
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Employer's Position Statement
5. Mr. Silva-Zetina's Certified Spanish Court Interpreter Certificate
6
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.
9
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 13th day
of June, 2016.
Name Certified Via Via Service sent to:
Mail Fax Email
Severiano Mendez, X X 79 Edgehill Dr.
Self-represented Jackson, Tennessee 38301;
Employee jmarygtez@charter.net
Jennifer Orr-Locklin, X Jennifer .locklin@farrar-
Esq., bates.com;
Employer's Counsel Rebecca. me fadden@farrar-
bates.com
Pe ny Shr Clerk of Court
Court of kers' Compensation Claims
WC.CourtClerk@tn.gov
10