Womack, Angela v. Yorozu Automotive TN ( 2016 )

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
ANGELA WOMACK ) Docket No.: 2015-05-0037
Employee, )
v. ) State File No.: 57199-2014
)
YOROZU AUTOMOTIVE TN ) Date of Injury: July 25, 2014
Employer, )
) Judge Dale Tipps
)
COMPENSATION HEARING ORDER
This matter came before the undersigned Workers’ Compensation Judge on June
15, 2016, for a Compensation Hearing pursuant to Tennessee Code Annotated section 50-
6-239 (2015). The central legal issues are: (1) whether the condition for which the
employee, Angela Womack, seeks benefits arose primarily out of and in the course and
scope of her employment with the employer, Yorozu Automotive TN; (2) whether Ms.
Womack is entitled to temporary disability benefits, and if so, in what amount; (3)
whether Ms. Womack is entitled to permanent disability benefits; and (4) whether Ms.
Womack is entitled to past or future medical benefits.1 For the reasons set forth below,
this Court finds that Ms. Womack established by a preponderance of the evidence that
she sustained an injury primarily arising out of and in the course and scope of her
employment with Yorozu. Accordingly, the Court finds that Ms. Womack is entitled to
medical benefits, temporary total disability benefits, and permanent partial disability
benefits.
History of Claim
Ms. Womack is a thirty-nine-year-old resident of Warren County, Tennessee. She
testified she began working on Yoruzu’s production line in October 2013. Her job
required her to lift parts out of a bin, place them in a machine, activate a robotic welder,
1
A complete listing of the technical record, stipulations, and exhibits admitted at the Compensation Hearing is
attached to this Order as an appendix.
1
and then remove the part. The job required her to reach and pull with both arms. While
unloading a bin on July 25, 2014, she pulled on a part that was stuck. She fell back and
immediately felt a stabbing, burning pain in her right shoulder.
Ms. Womack reported the injury to her supervisor, who sent her to the company
nurse. The nurse sent Ms. Womack home with instructions to rest over the weekend and
apply heat and ice. Ms. Womack was feeling no better the following Monday, so the
nurse gave her a panel of physicians, from which Ms. Womack selected Dr. Kyle Joyner.
Dr. Joyner first saw Ms. Womack on August 12, 2014. She reported a dull ache in
the shoulder with residual sharp pain when she tried to raise her arm. Dr. Joyner assessed
right shoulder pain with possible rotator cuff pathology, ordered an MRI, and assigned
temporary restrictions. He last saw Ms. Womack on September 26, 2014, at which time
he assessed “diffuse right shoulder pain following a strain-type injury.” He noted she had
“continued shoulder pain but no findings suggestive of structural injury on diagnostic
studies.” He had no surgical options to offer and referred Ms. Womack to Dr. Jeffrey
Hazlewood for physiatry. He also continued her restrictions and indicated he would see
her back as needed. (Ex. 7 at 1-11.) Dr. Joyner would later testify he did not believe Ms.
Womack’s subsequently discovered labral tear was present at the time he treated her.
(Ex. 3 at 25.)
Ms. Womack saw Dr. Hazlewood on October 13, 2014. Dr. Hazlewood reviewed
her records and performed a physical examination before concluding:
Rather generalized shoulder pain status post injury as previously described.
MRI scan was unremarkable, except for tendinitis type changes. She has
significant guarding and limited range of motion of the shoulder that seems
to outweigh objective findings in this case. I would call this rotator cuff
tendinitis/sprain type injury, but I have difficulty explaining why she is not
more than 20% improved almost three months out from the injury.
Dr. Hazlewood administered an injection and continued Ms. Womack’s restrictions. (Ex.
7 at 15-16.)
Ms. Womack returned on October 20, 2014, and reported that she was no better.
She felt she needed another MRI because “something has been missed.” Although Ms.
Womack was adamant that she continued to suffer significant shoulder pain, Dr.
Hazlewood still saw no evidence of a tear in the original MRI. His impression was:
Continued complaints of sever [sic] shoulder pain that I cannot explain.
She has had an orthopedic surgeon that stated he really couldn’t explain it
either and called it a strain type injury. She had a MRI that was
completely negative for tear. What I really can’t explain is the significant
2
decreased active range of motion of only 30 degrees, which is consistent in
my experience with a massive rotator cuff tear, and there is no way this
MRI missed a massive rotator cuff tear. Therefore, I would have to state
three months out from the injury that subjective symptoms outweigh any
objective findings.
He further noted, “I must base work comp release at MMI on objective findings and not
subjective pain complaints, and I will say regular duty. It is up to her whether she does
her job or not.” Id. at 26. In his deposition, Dr. Hazlewood testified he could not opine
the labral tear was present or symptomatic at that time, or that Ms. Womack’s July 25,
2014 injury caused it. (Ex. 6 at 24.)
Following Dr. Hazlewood’s release, Ms. Womack attempted to return to work.
She testified she tried to do her job for a half-hour to an hour, but could not do it because
of her shoulder pain. She reported the problem to her supervisor, who consulted with
Human Resources and sent her home.
Based on Dr. Hazlewood’s opinion, Yorozu stopped paying for Ms. Womack’s
medical treatment after her maximum medical improvement (MMI) date of October 20,
2014. (See Parties’ Stipulations.)2 She later saw her personal physician with the intent of
filing for leave under the FMLA. He refused to complete the FMLA paperwork, but
referred her to an orthopedic specialist, Dr. Moore. She could not afford the therapy
recommended by Dr. Moore and went without treatment for a time.
Ms. Womack began treating with Dr. Jeffrey Peterson on March 20, 2015. She
reported right shoulder pain with activity and at rest since a work injury in July 2014. Dr.
Peterson ordered another MRI, which showed “bone contusion, concern for labral tear.”
Due to Ms. Womack’s continued pain and the failure of conservative measures, he
recommended a right shoulder arthroscopy, which he performed on June 8, 2015. During
the surgery, Dr. Peterson found no rotator cuff pathology, but discovered displacement of
the labrum. He performed a labral repair (SLAP repair), as well as a subacromial
decompression. Id. at 30-71. Dr. Peterson determined Ms. Womack reached MMI on
December 17, 2015, and assigned a permanent impairment rating of 3% to the body. (Ex.
4 at 9.) He also opined the labral tear was directly related to her July 25, 2014 work
injury. (Ex. 7 at 33; Ex. 4 at 44.)
Ms. Womack did not return to work after Dr. Peterson released her. Yorozu
terminated her employment on November 2, 2015, for failure to return to work after
medical leave. (See Parties’ Stipulations.)
Both Ms. Womack and her daughter, Liliana Silva, testified at some length
2
The parties’ stipulated facts are contained in the Pre-Compensation Hearing Statements.
3
regarding Ms. Womack’s condition following her accident and subsequent medical
treatment. They described her nearly constant pain and difficulty performing the
activities of daily living. Ms. Silva described having to do Ms. Womack’s housework
and helping her bathe and wash her hair. They said this continued without interruption
from the work injury until after Ms. Womack’s surgery with Dr. Peterson.
Ms. Womack filed a Petition for Benefit Determination (PBD) on August 5, 2015,
seeking temporary and permanent disability and medical benefits. The parties did not
resolve the disputed issues through mediation, and the Mediating Specialist filed a
Dispute Certification Notice (DCN) on September 14, 2015. This Court conducted the
Compensation Hearing on June 15, 2016.
At the Compensation Hearing, Ms. Womack asserted she is entitled to medical
treatment, reimbursement of medical expenses, temporary disability benefits, and
permanent disability benefits for her shoulder injury arising primarily out of and in the
course and scope of her employment. She contended she has rebutted the statutory
presumption of correctness attached to the causation opinions of Dr. Joyner. Specifically,
she argued that the “objective pathology” relied upon by the authorized doctors is not the
full picture of her medical condition. Instead, she contended Dr. Peterson treated her as a
patient, not as an imaging study. She insisted his opinion is more reliable because he also
considered her history and her subjective complaints, which were corroborated by his
discovery of the labral tear.
Yorozu countered that Ms. Womack is not entitled to any additional workers’
compensation benefits because she failed to present sufficient evidence that her labral
tear arose primarily out of and in the course and scope of her employment. It argued the
two authorized physicians opined Ms. Womack’s SLAP repair was unrelated to her work
accident and, pursuant to Tennessee Code Annotated section 50-6-102(14)(E) (2015),
those opinions are presumed to be correct. Because Dr. Peterson based his causation
opinion mainly on Ms. Womack’s statements and could not definitively state the tear was
present immediately following her work injury, his opinion is not sufficient to overcome
the presumption of correctness attached to the ATP opinions.
Findings of Fact and Conclusions of Law
The following legal principles govern this case. Ms. Womack has the burden of
proof on all essential elements of her claim. 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). “[A]t a compensation hearing where the injured employee has
arrived at a trial on the merits, the employee must establish by a preponderance of the
evidence that he or she is, in fact, entitled to the requested benefits.” Willis v. All Staff,
No. 2014-05-0005, 2015 TN Wrk. Comp. App. Bd. LEXIS 42, at *18 (Tenn. Workers’
Comp. App. Bd. Nov. 9, 2015); see also Tenn. Code Ann. § 50-6-239(c)(6) (2015)
4
(“[T]he employee shall bear the burden of proving each and every element of the claim
by a preponderance of the evidence.”). In analyzing whether Ms. Womack has met her
burden, the Court will not construe the law remedially or liberally in her favor, but
instead must construe the law fairly, impartially, and in accordance with basic principles
of statutory construction favoring neither Ms. Womack nor Yorozu. See Tenn. Code
Ann. § 50-6-116 (2015).
Compensability
Ms. Womack’s burden includes proving her injury arose primarily out of and
occur in the course and scope of the employment. Tenn. Code Ann. § 50-6-102(14)
(2015). To do so, she must show her injury was “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.” Tenn. Code Ann. § 50-6-102(14)(A)
(2015). Further, she must show, “to a 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).
Applying these principles to the facts of this case, the Court finds Ms. Womack
has met her burden and is entitled to the requested benefits. She described injuring her
shoulder when she tried to pull a component from a bin on July 25, 2014, and felt
immediate pain. This constitutes a specific incident, identifiable by time and place of
occurrence, and Yorozu submitted no proof to the contrary.
Regarding the requirement of proving causation, the Court finds Dr. Peterson’s
opinion is sufficient to establish that Ms. Womack’s work injury contributed more than
fifty percent to the cause of her need for the SLAP repair. Dr. Peterson testified that it
wasn’t possible to pinpoint the date of the tear, but based on Ms. Womack’s consistent
history of pain from the date of her injury until surgical repair, he believed her SLAP tear
was the direct result of her work injury. (Ex. 4 at 10, 39-44.) Because Ms. Womack had
no prior history of problems with her shoulder, had an injury that did not show up on the
MRIs, and had no improvement with conservative treatment, he concluded she suffered
the tear at the time of her work injury. Id. at 11.
The testimony of Ms. Womack and Ms. Silva supports Dr. Peterson’s conclusion.
They both attested to Ms. Womack’s near-constant pain and her physical difficulties.
Ms. Silva described having to care for her mother and do most of her housework. They
both confirmed Ms. Womack’s problems began at the time of her work injury and
continued without interruption until after her surgery. Not only was this testimony
unrebutted, but the Court also finds that both witnesses appeared steady, forthcoming,
reasonable, and honest, which characteristics, according to the Tennessee Supreme Court,
are indicia of reliability. See Kelly v. Kelly, 445 S.W.3d 685, 694-695 (Tenn. 2014).
5
Yorozu contends the medical proof does not support a finding of a specific
incident or injury. It relies on Dr. Hazlewood’s opinion that he could not state the labral
tear was present when he saw Ms. Womack or that the July 25, 2014 work injury caused
the tear. Dr. Hazlewood based this conclusion on a number of factors, the first of which
was that Dr. Joyner, a shoulder specialist, did not detect a labral tear when he examined
Ms. Womack. He also felt Ms. Womack’s range-of-motion testing was inconsistent with
a labral tear. Finally, he did not understand how the work injury would have resulted in
the bone bruising noted by Dr. Peterson during surgery. (Ex. 6 at 22-24.)
The Court finds the inability of Dr. Joyner to detect the labral tear is not
determinative. It is important to note that Dr. Hazlewood and Dr. Peterson also failed to
diagnose the tear, which is not surprising in light of the testimony from all three doctors
that the SLAP tear might not appear on an MRI.3 It remained undiagnosed until Dr.
Peterson performed surgery. The mere fact that the first treating physician was unable to
identify a condition that every subsequent doctor missed does not mean the condition did
not exist. Rather, it may also indicate Ms. Womack’s condition was simply difficult to
diagnose, a conclusion supported by the facts that the tear actually existed at the time of
surgery and that Ms. Womack suffered significant symptoms from the date of her work
injury until the tear was repaired.
Regarding the range-of-motion testing, Ms. Womack testified that Dr.
Hazlewood’s testing caused a great deal of pain during her first visit. As a result, she
tried to protect herself by self-limiting the motion of her shoulder when she saw him the
second time. Ms. Womack made no attempt to hide her frustration with Dr. Hazlewood’s
manner and treatment during the hearing. While conflicts between physician and patient
sometimes occur, they are not sufficient grounds for disregarding doctors’ findings.
However, in this matter, the Court finds Ms. Womack’s explanation to be credible and
sufficient to explain the inconsistent motion tests that raised doubts in Dr. Hazlewood’s
mind.
All three testifying doctors addressed the bone bruising noted by Dr. Peterson. Dr.
Hazlewood stated bone marrow bruising is more of an acute event, not something that
would be present chronically. Id. at 25. Dr. Joyner testified he would not expect bone
bruising related to the initial trauma to be present at the time of Ms. Womack’s surgery.
Typically, bruising is something more acute and proximate to the finding. (Ex. 3 at 19-
20.) Dr. Peterson felt the labral tear could have caused instability in the shoulder that
resulted in a bone bruise. (Ex. 4 at 32-35.) The Court finds Dr. Peterson’s explanation to
be plausible, but determining the exact source of the bruising is not critical to resolving
the question of the cause of the SLAP tear.
3
Dr. Joyner also acknowledged Ms. Womack’s SLAP tear might not be apparent in her physical examination. (Ex.
2 at 22.)
6
Yorozu stresses the importance of the bone bruising to suggest Ms. Womack must
have suffered an intervening trauma shortly before Dr. Peterson performed surgery.
While this scenario is a possibility, there is no direct evidence of any such event or injury.
To the contrary, the lay testimony and the medical records establish that Ms. Womack
quite consistently reported shoulder pain and dysfunction from the date of her initial
injury until she recovered from surgery. Without more, the mere existence of
unexplained bone bruising is insufficient to overcome the conclusion that the need for
surgery was a direct result of her work injury.
Yorozu also contends that Dr. Peterson’s opinion is speculative because he could
not state definitively that Ms. Womack’s work injury caused the SLAP tear. While it is
true that Dr. Peterson agreed on cross-examination that he could not “definitively state
that in July of 2014, she had a tear,” he stated quite clearly that, to a reasonable degree of
medical certainty her labral tear occurred on the date of her work injury. He based this
conclusion on her history, his objective findings, and on how well she recovered
following the surgery. (Ex. 7 at 44.)
Yorozu contends this further bolsters its claim that Dr. Peterson’s opinion is
speculative. It objects to his reliance on statements made by Ms. Womack regarding the
work injury and her subsequent problems, rather than her prior medical records or
diagnostic studies. The problem with this argument is there is no evidence suggesting the
history given by Ms. Womack was unreliable. Yorozu’s line of reasoning requires a
finding that Ms. Womack reported an injury in July 2014, complained of pain and
incapacity for eight months, refused to return to work and waived earning any income for
much of that time, while importuning her daughter to help her with her personal
grooming and her housework; all in spite of the fact that nothing was really wrong with
her shoulder. Then, shortly before Dr. Peterson operated on her shoulder, she suffered
some sort of trauma that just happened to tear the labrum and bruise the bone in the same
shoulder. While this level of cunning is not impossible, it seems improbable. The more
likely explanation is the simpler one – that Ms. Womack’s condition was caused by the
work accident and was resolved by Dr. Peterson’s surgical repair. The fact that the
imaging studies failed to show the labral tear is not determinative.
Yorozu is correct that because Ms. Womack selected Dr. Joyner from a panel of
physicians, Tennessee Code Annotated section 50-6-102(14)(E) (2015) establishes a
presumption of correctness for any causation opinion given by Dr. Joyner.4 However, the
statute is clear that this presumption may be overcome by a preponderance of the
evidence. As noted above, the Court finds that the preponderance of the expert and lay
evidence establishes that Ms. Womack’s work injury was most likely the primary cause
of Ms. Womack’s SLAP tear.
4
Dr. Hazlewood’s opinion is not entitled to the statutory presumption of correctness because the parties submitted
no evidence showing Ms. Womack selected him from a panel.
7
Temporary Disability Benefits
An injured worker is eligible for temporary total disability (TTD) benefits if: (1)
the worker became disabled from working due to a compensable injury; (2) there is a
causal connection between the injury and the inability to work; and (3) the worker
established the duration of the period of disability. Jones v. Crencor Leasing and Sales,
No. 2015-06-0332, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Tenn. Workers’
Comp. App. Bd. Dec. 11, 2015) (citing Simpson v. Satterfield, 564 S.W.2d 953, 955
(Tenn. 1978)).
Temporary partial disability (TPD) benefits, a category of vocational disability
distinct from temporary total disability, are available when the temporary disability is not
total. Id.; see also Tenn. Code Ann. § 50-6-207(1)-(2) (2015). Specifically,
“[t]emporary partial disability refers to the time, if any, during which the injured
employee is able to resume some gainful employment but has not reached maximum
recovery.” Id. (citing Williams v. Saturn Corp., No. M2004-01215-WC-R3-CV, 2005
Tenn. LEXIS 1032, at *6 (Tenn. Workers’ Comp. Panel Nov. 15, 2005)). Thus, in
circumstances where the treating physician has released the injured worker to return to
work with restrictions prior to maximum medical improvement, and the employer either
(1) cannot return the employee to work within the restrictions or (2) cannot provide
restricted work for a sufficient number of hours and/or at a rate of pay equal to or greater
than the employee’s average weekly wage on the date of injury, the injured worker may
be eligible for temporary partial disability. Id.
Ms. Womack claims to be entitled to TTD benefits for the period of October 2014,
when she found she was unable to do her job after Dr. Hazlewood found her to be at
MMI, through December 17, 2015, when Dr. Peterson released her to full duty. The
evidence presented does not support this contention. The only period of total disability
appears to be two weeks post-surgery. (Ex. 4 at 48.) The remaining claim for temporary
disability benefits is for TPD, based either on restrictions from Dr. Peterson or Ms.
Womack’s claim she was unable to perform her regular job at Yorozu.
As noted above, eligibility for TPD requires a showing that the employer cannot
fully return the injured worker to work within the medical restrictions. Yorozu provided
light duty work for Ms. Womack while she was under medical restrictions from Dr.
Joyner and Dr. Hazlewood. When Ms. Womack returned to work after Dr. Hazlewood’s
MMI pronouncement in October 2014, she was under no medical restrictions. Instead,
she tried to do her regular work for approximately half an hour before informing her
supervisor she was unable to perform the job. She testified her supervisor sent her home.
She requested FMLA paperwork from Yorozu, but for some reason, never completed or
returned them.
8
This alleged first period of disability is particularly problematic because Ms.
Womack was not under any medical restrictions at the time. From the perspective of
Yorozu, it had already provided all required benefits, including light duty and treatment
with two doctors, both of whom had released Ms. Womack to full duty. Although Ms.
Womack told her manager she could not perform her regular job, her actions suggested
she intended to apply for FMLA leave. Ms. Womack presented no admissible evidence
regarding whether she had further contact with Yorozu, whether she offered it any
opportunity to accommodate her with additional light duty, or whether it could have
accommodated her condition. Without any indication that Ms. Womack communicated
some need for additional medical treatment or additional light duty, the Court finds
Yorozu had no meaningful opportunity to return her to work within her self-imposed
restrictions.
Dr. Peterson testified Ms. Womack would have had temporary medical restrictions
for a period of three months following her surgery. Id. Again, Ms. Womack presented
no evidence to suggest she made Yorozu aware of these medical restrictions or offered it
a chance to accommodate them. Under the circumstances, the Court cannot find Ms.
Womack has met her burden of proving eligibility for TPD benefits.
Permanent Disability Benefits
For post-July 1, 2014 injuries, permanent partial disability is paid at sixty-six and
two-thirds percent of the injured employee’s average weekly wage for the period of
compensation as determined by multiplying the employee’s impairment rating by 450
weeks. Tenn. Code Ann. § 506-207(3)(A) (2015). In this case, Ms. Womack’s stipulated
impairment rating is two percent to the body, giving her a period of compensation of nine
weeks. Her stipulated compensation rate is $304.43. Therefore, her “original award” is
$2,739.87.
Tennessee Code Annotated section 50-6-207(3)(B) (2015) provides:
If at the time the period of compensation provided by subdivision (3)(A)
ends, the employee has not returned to work with any employer or has
returned to work and is receiving wages or a salary that is less than one
hundred percent (100%) of the wages or salary the employee received from
his pre-injury employer on the date of injury, the injured employee may file a
claim for increased benefits. If appropriate, the injured employee's award as
determined under subdivision (3)(A) shall be increased by multiplying the
award by a factor of one and thirty-five one hundredths (1.35).
Based on Dr. Peterson’s testimony and the parties’ stipulation, Ms. Womack
reached MMI on December 17, 2015. Thus, her nine-week initial compensation period
9
expired on February 18, 2016. At that time, Yorozu had already terminated Ms.
Womack, and she was unemployed. She thus claimed she is entitled to the 1.35 times
enhancement factor of her original award. Yorozu argued that no enhancement of the
award is appropriate because Ms. Womack’s decision not to return to work was purely
personal and unrelated to her employment.
Ms. Womack admitted on cross-examination that her decision not to return to
work since Dr. Peterson released her was a purely personal one. She is not working
because she decided to become a full-time college student in the fall of 2014, studying
social science. She also works as a volunteer at a facility called The Hope Center.
Tennessee Code Annotated section 50-6-207(3)(D)(i) (2015), provides that an
employee will not be entitled to additional benefits if “[t]he employee’s loss of
employment is due to the employee’s voluntary resignation or retirement; provided,
however, that the resignation or retirement does not result from the work-related
disability.” No appellate tribunals have yet addressed the applicable statute. However,
even though prior law only addressed the applicability of a cap on benefits when an
employee failed to return to work for the pre-injury employment, the “meaningful return
to work” analysis used in return-to-work cases under prior law appears to be relevant.5
The Supreme Court, interpreting the prior statute, held that “if an employee retires
or resigns or declines an offer to return to work for either personal or other reasons that
are not related to his or her workplace injury, the employee has had a meaningful return
to work and is subject to the one-and-one-half-times cap.” Cha Yang v. Nissan N. Am.,
Inc., 440 S.W.3d 593, 600 (Tenn. 2014). The principle behind this approach was, “an
employee cannot avoid the statutory caps and thereby augment his award through his
unilateral acts when those acts are unrelated to the injury.” Lay v. Scott Cnty. Sheriff’s
Dep’t., 109 S.W.3d 293, 299 (Tenn. 2003).
Section 50-6-207(3)(D)(i) appears to be based on the same principle – that an
employee cannot increase her permanent disability award through unrelated unilateral
acts. While Ms. Womack’s employment status on February 18, 2016, was not “due to
[her] voluntary resignation or retirement;” the reason she was not working on that date
was strictly personal and not related to her work injury. The Court finds this precludes
any award of additional permanent disability benefits.
5
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).
10
Medical Expenses
“[T]he employer or the employer’s agent shall furnish, free of charge to the
employee, such medical and surgical treatment . . . made reasonably necessary by
accident[.]” Tenn. Code Ann. § 50-6-204(a)(1)(A) (2015). Having found that Ms.
Womack’s SLAP tear constituted a compensable work injury, the Court finds Yorozu is
responsible for the costs associated with treating that condition, including reimbursement
of Ms. Womack’s out-of-pocket expenses for medical treatment. The parties stipulated
the amount of these expenses to be $3,481.48.
IT IS, THEREFORE, ORDERED as follows:
1. Medical care for Ms. Womack’s injuries shall be paid, including all expenses
related to Dr. Peterson’s treatment of the SLAP tear, and Yorozu or its workers’
compensation carrier shall continue to provide Ms. Womack with medical
treatment for these injuries as required by Tennessee Code Annotated section 50-
6-204 (2015). Dr. Peterson shall be designated the authorized treating physician
for any future care. Medical bills shall be furnished to Yorozu or its workers’
compensation carrier by Ms. Womack or the medical providers.
2. Yorozu shall reimburse Ms. Womack for her out-of-pocket medical expenses of
$3,481.48.
3. Yorozu shall pay past due temporary total disability benefits of $608.86 for the
period from June 8, 2015, to June 23, 2015.
4. Yorozu shall pay $2,739.87 in permanent partial disability benefits.
5. Ms. Womack’s attorney is awarded an attorney’s fee of twenty percent.
6. Costs of this cause of $150.00 are assessed against Yorozu, pursuant to Tenn.
Comp. R. and Reg. 0800-02-21-.07 (2015), to be paid within five days of this
order becoming final.
7. Yorozu shall prepare and file a statistical data form within ten business days of the
date of this order, pursuant to Tennessee Code Annotated section 50-6-244.
8. After a Compensation Hearing Order entered by a Workers’ Compensation Judge
has become final in accordance with Tennessee Code Annotated section 50-6-
239(c)(7) (2015), compliance with this Order must occur in accordance with
Tennessee Code Annotated section 50-6-239(c)(9) (2015). The Insurer or Self-
Insured Employer must submit confirmation of compliance with this Order to the
11
Bureau by email to WCCompliance.Program@tn.gov no later than the fifth
business day after this Order becomes final or all appeals are exhausted. Failure to
submit the necessary confirmation within the period of compliance may result in a
penalty assessment for non-compliance.
ENTERED this the 30th day of June, 2016.
_____________________________________
Dale Tipps
Workers’ Compensation Judge
Right to Appeal:
Tennessee Law allows any party who disagrees with this Compensation Hearing
Order to appeal the decision to the Workers’ Compensation Appeals Board or the
Tennessee Supreme Court. To appeal your case to the Workers’ Compensation Appeals
Board, you must:
1. Complete the enclosed form entitled: “Compensation Hearing Notice of Appeal.”
2. File the completed form with the Court Clerk within thirty calendar days of the
date the Workers’ Compensation Judge entered the Compensation Hearing Order.
3. Serve a copy of the Compensation 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.
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5. The party filing the notice of appeal, 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 fifteen calendar days of the filing
of the Compensation Hearing Notice of Appeal. Alternatively, the party filing the
appeal may file a joint statement of the evidence within fifteen calendar days of
the filing of the Compensation 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. See Tenn. Comp. R. & Regs. 0800-02-22-.03 (2015).
6. After the Workers’ Compensation Judge approves the record and the Court Clerk
transmits it to the Workers’ Compensation Appeals Board, the appeal will be
docketed and assigned to an Appeals Board Judge for review. At that time, a
docketing notice shall be sent to the parties. Thereafter, the parties have fifteen
calendar days to submit briefs to the Appeals Board for consideration. See Tenn.
Comp. R. & Regs. 0800-02-22-.02(3) (2015).
To appeal your case directly to the Tennessee Supreme Court, the
Compensation Order must be final and you must comply with the Tennessee Rules
of Appellate Procedure. If neither party timely files an appeal with the Appeals
Board, this Order will become final by operation of law thirty calendar days after
entry pursuant to Tennessee Code Annotated section 50-6-239(c)(7).
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APPENDIX
Technical record:
1. Petition for Benefit Determination
2. Post-Discovery Dispute Certification Notice
3. Employee’s Pre-Hearing Statement and Stipulations
4. Employer’s Pre-Hearing Statement and Stipulations
5. Employee’s Compensation Pre-Hearing Brief
6. Employer’s Compensation Pre-Hearing Brief
The Court did not consider attachments to Technical Record filings unless admitted into
evidence during the Compensation Hearing. The Court considered factual statements in
these filings or any attachments to them as allegations unless established by the evidence.
Exhibits:
1. C-41 Wage Statement
2. BCBS Explanation of Benefits
3. Deposition Transcript of Dr. Kyle Joyner
4. Deposition Transcript of Dr. Jeffrey Peterson
5. Deposition Transcript of Angela Womack
6. Deposition Transcript of Dr. Jeffrey Hazlewood
7. Indexed Medical Records with Table of Contents
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Compensation Hearing Order
was sent to the following recipients by the following methods of service on this the 30th
day of June, 2016.
Name Certified Via Via Service sent to:
Mail Fax Email
Benjamin Newman X bnewman@galligannewmanlaw.com
D. Brett Burrow X bburrow@burrowlee.com
______________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
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