Crowson, Patricia v. UDR, Inc. , 2016 TN WC 248 ( 2016 )

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
PATRICIA CROWSON, )
Employee, ) Docket No. 2016-06-0829
)
v. ) State File No. 26542-2015
)
UDR, INC., ) Judge Joshua Davis Baker
)
Employer, )
)
and )
)
TRISTAR INSURANCE GROUP, )
Insurer. )
ORDER DENYING TEMPORARY DISABILITY AND
MEDICAL BENEFITS
(FILE REVIEW ONLY)
This cause came before the undersigned on a Request for Expedited
Hearing (REH) filed by Patricia Crowson pursuant to Tennessee Code Annotated
§ 50-6-239 (2015). Ms. Crowson has asked that the Court enter an interlocutory
order based on its review of the file and without an evidentiary hearing. The
employer, UDR Inc., concurred with the file review request. The Court finds it
has sufficient information in the claim file to render a decision in this REH and
grants the request for entry of an order without an evidentiary hearing.
In this REH, Ms. Crowson seeks temporary total disability and medical
benefits. The central legal dispute concerns whether deep vein thrombosis (DVT)
Ms. Crowson developed subsequent to surgery for a work-related knee injury is
causally related to the workplace accident, or the surgery undertaken to correct the
injury. For the reasons provided below, the Court holds Ms. Crowson failed to
carry her burden of proving that she is likely to succeed at a hearing on the merits
in establishing a causal relationship. The Court, therefore, denies her claim for
temporary total disability and medical benefits at this time.1
Claim History
Ms. Crowson seeks medical benefits for DVT. As this condition allegedly
rendered her unable to work, she also seeks temporary total disability benefits. In
her REH, Ms. Crowson asked the Court to issue a ruling based on a review of the
documents in the claim file. UDR filed a response to the REH assenting to the
Court issuing a ruling without an evidentiary hearing. Thus, the Court derived the
claim history summary provided herein solely from the documents in the claim
file.
According to the affidavit filed contemporaneously with her REH, Ms.
Crowson injured her left knee in a fall on April 6, 2015 while in the course and
scope of her employment as an administrative assistant with UDR.2 (R. 5.) UDR
provided Ms. Crowson a panel of physicians and she selected Dr. Blake M.
Garside (R. 4 at 4.)
Dr. Garside diagnosed Ms. Crowson with a left knee meniscal tear and
several other knee conditions. He operated on her knee on June 15. (R. 4 at 6.)
He returned her to work on restricted duty after the surgery, and then released her
to work at full duty on August 10. Id. at 100. The treatment notes indicate she
was doing very well at the follow-up appointment and experiencing only
occasional weakness with no numbness or tingling. Dr. Garside assigned an
impairment rating of one percent to the body as a whole. Id. at 104.
Approximately four months after her surgery, on October 8, Ms. Crowson
went to Centennial Medical Center complaining of swelling and increased pain in
her left calf that began six days prior. (R. 4 at 18.) She also complained of
swelling in her left knee. An ultrasound of her left lower extremity revealed left
lower-extremity DVT. Additionally, a CT scan of her chest showed bilateral
pulmonary embolism. According to the medical records, Ms. Crowson had no
prior history of blood clots.
1
Additional information regarding the documents the Court considered in this record review is attached to
this Order as an Appendix.
2
Tennessee Compilation Rules and Regulations 0800-02-21-.14(1)(a) requires that an REH “must be
accompanied by affidavits and any other information demonstrating that the employee is entitled to
temporary disability or medical benefits. See also Hadzic v. Averitt Express, No. 2014-02-0064, 2015 TN
Wrk Comp App Bd LEXIS 14 (Tenn. Workers’ Comp. App. Bd. May 18, 2015). Ms. Crowson included
the affidavit of her attorney with the REH. While the affidavit technically satisfied the affidavit
requirement of the Rules and Hadzic, the statements contained within are of no evidentiary value.
2
After the DVT diagnosis, Ms. Crowson returned to Dr. Garside for
evaluation. Concerning the cause of the DVT, Dr. Garside wrote the following in
the treatment notes:
All lower extremity surgeries pose an increased risk for a deep vein
thrombosis. Following surgery, it would be extremely unlikely for a
DVT to [have] developed greater than 90 days post surgery and be
related to that procedure. Given the time frame from her surgery to
presentation of the DVT/PE I would be concerned about an
underlying generalized medical cause or hypercoagulable state and
would recommend further workup by her primary care physician.
Id. at 107.
Ms. Crowson received treatment privately for DVT over the next several
months. Her treatment included use of the anticoagulant, Coumadin, and she
eventually came under the care of Dr. Ruth Lamar for regulation of that drug.
Counsel for Ms. Crowson sent Dr. Lamar a letter seeking her opinion on the cause
of Ms. Crowson’s DVT. Dr. Lamar opined that Ms. Crowson’s knee surgery
performed in connection with her workplace accident caused her to develop DVT.
(R. 3 at Ex. 4.)
After Dr. Lamar issued this opinion, Dr. Garside sent a letter to counsel for
UDR. In the letter, he stated he had reviewed Dr. Lamar’s treatment notes and
causation opinion and noted the history provided to Dr. Lamar differed from his
medical notes concerning Ms. Crowson’s post-surgery condition. (R. 4 at 112.)
Specifically, Dr. Garside cited the portion of Dr. Lamar’s initial consultation note
that indicated Ms. Crowson’s leg was “painful and swollen following surgery” and
the condition progressed until she saw her primary care physician in October. In
the rest of the letter, Dr. Garside affirmed his previous opinion that it would be
“very unlikely” that the DVT condition would develop so long after an
arthroscopic knee surgery in a patient who was otherwise active.
Application of Law and Conclusion
Ms. Crowson has the burden of proof on all essential elements of her
workers’ compensation claim. Tindall v. Waring Park Ass’n, 725 S.W.2d 935,
937 (Tenn. 1987); 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). She does not, however, need to 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.
3
27, 2015). Instead, Ms. Crowson has the burden to come forward with sufficient
evidence from which this Court can determine she is likely to prevail at a hearing
on the merits. Id.
UDR accepted Ms. Crowson’s knee injury as compensable and provided
her authorized care with Dr. Garside whom Ms. Crowson selected from a panel
under Tennessee Code Annotated 50-6-204(a)(3). Approximately six months after
undergoing knee surgery, Ms. Crowson developed DVT and suffered bilateral
pulmonary embolism.
As previously stated, Ms. Crowson bears the burden of proof in these
proceedings. Except in “the most obvious, simple and routine cases,” a workers’
compensation claimant must establish by expert medical testimony that he or she
is injured and that there exists a causal relationship between the injury and the
claimant’s employment activity. Wheetley v. State, No. M2013-01707-WC-R3-
WC, 2014 Tenn. LEXIS 476, at *5 (Tenn. Workers’ Comp. Panel June 25, 2014)
(citing Excel Polymers, LLC v. Broyles, 302 S.W.3d 268, 274 (Tenn. 2009);
Cloyd v. Hartco Flooring Co., 274 S.W.3d 638, 643 (Tenn. 2008)). To succed in
this proceeding, Ms. Crowson must present expert medical testimony to support
her claim.
Dr. Garside opined that no causal relationship existed between these
conditions and her work related accident or the resulting surgery. As the
authorized treating physician, Dr. Garside’s opinion on the causal relationship
between these conditions and her work injury is presumed correct. See Tenn.
Code Ann. § 50-6-102(13)(E) (2014) (“The opinion of the treating physician,
selected by the employee from the employer’s designated panel of physicians
pursuant to § 50-6-204(a)(3), shall be presumed correct on the issue of causation
but this presumption shall be rebuttable by a preponderance of the evidence.”).
Accordingly, in order to obtain the desired treatment for DVT and
pulmonary embolism, Ms. Crowson must present countervailing evidence
sufficient to overcome Dr. Garside’s causation opinion.
Ms. Crowson presented a causation opinion from Dr. Lamar to overcome
the presumption. Dr. Lamar’s opinion directly contradicts that of the panel
physician. However, Dr. Lamar provided no explanation of why her opinion on
causation differs from that of Dr. Garside. Without an explanation of why her
opinion differs, it is not sufficient to overcome the presumption of correctness
attached to Dr. Garside’s opinion.
In an effort to support Dr. Lamar’s opinion, Ms. Crowson presented several
excerpts from the AMA Guides to the Evaluation of Disease and Injury Causation,
4
Second Edition (AMA C&D Guides) and a research paper on DVT.3 (R. 3 at Ex.
2.) UDR, however, objects to the introduction of these excerpts and the paper.
As basis for the objection, UDR argues the excerpts and the research paper
are hearsay and can only be used to cross-examine a physician concerning their
opinion pursuant to Rules 803 and 618 of the Tennessee Rules of Evidence. The
Court agrees. Essentially, Ms. Crowson has provided Dr. Lamar’s causation
opinion and asked the Court to read excerpts from the AMA C&D Guides and a
research paper to deduce the reasoning for her opinion. The Court declines to do
so. If Ms. Crowson wishes to overcome the presumption of accuracy attached to
Dr. Garside’s opinion by reference to these guides and the research paper, she
needs to depose Dr. Lamar or use these materials to cross-examine Dr. Garside
during his deposition.
At present, the Court has two causation opinions. Both are provided
without explanation. Because Dr. Garside’s causation opinion statutorily is
presumed correct and Ms. Crowson presented no explanation of the difference
between his opinion and Dr. Lamar’s, she failed to overcome the presumption of
correctness attached to Dr. Garside’s causation opinion.
Accordingly, the Court holds Ms. Crowson’s claim for additional medical
benefits to treat her DVT condition must fail at this time. Furthermore, because
she is unlikely in proving a causal relationship between her DVT and the
workplace injury, Ms. Crowson’s request for temporary disability benefits must
also fail.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. Crowson’s claim for additional medical benefits to treat her DVT
condition is denied at this time.
2. Ms. Crowson’s claim for temporary disability benefits is denied at this
time.
3. This matter is set for a scheduling hearing on December 1, 2015, at 9:30
a.m. (CST).
ENTERED ON THIS THE 20TH DAY OF OCTOBER, 2016.
3
This text should not be confused with the AMA Guides to the Evaluation of Permanent Impairment, Sixth
Edition, which the General Assembly expressly adopted as the prevailing text for physician use when
assigning permanent impairment for any workers’ compensation claim in Tennessee.
5
____________________________________
Joshua Davis Baker, Judge
Court of Workers’ Compensation Claims
Scheduling Hearing:
A Scheduling Hearing has been set with Judge Joshua Davis Baker,
Court of Workers’ Compensation Claims. You must call 615-741-2113 or toll
free at 855-874-0474 to participate in the 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:
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
6
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
APPENDIX
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing with the following exhibits attached:
Ex. 1. Defense Position Statement
Ex. 2. Relevant Documentation from the AMA Guides4
Ex. 3. Medical Research Paper Entitled Natural History of Venous
Thrombosis
Ex. 4. Causation Opinion/Medical Records of Dr. Ruth Lamar
4. Collective exhibit containing wage statement, choice of physician form and
medical records.
5. Affidavit of Zachary Wiley
4
The excerpts included were taken from the AMA Guides to the Evaluation of Disease and Injury
Causation, Second Edition
8
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was sent to the
following recipients by the following methods of service on this the 20th ___day of
October, 2016.
Name Certified Via Via Email Address
Mail Fax Email
Zachary Wiley x zwiley@forthepeople.com
Alaina M. Beach x alaina.beach@mgclaw.com
_____________________________________
Penny Shrum, Clerk
Tennessee Court of Workers’ Compensation
Claims
WC.CourtClerk@tn.gov
9