Pentlicki, Loretta and BlueCross BlueShield of Tennessee v. Dr. Charles Fatseas, d/b/a Rejuvenation Plastic Surgery , 2017 TN WC 163 ( 2017 )

FILED
Au.gust 25, 2017
TN COURTOF
~ ' ORKIRS'COMPENS . illON
.
CLAIMS
Time 10:25 AM
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT NASHVILLE
Loretta Pentlicki, ) Docket No. 2016-06-1777
Employee, )
And )
BlueCross BlueShield of Tennessee, )
Inc., )
Intervenor, ) State File No. 39259-2016
v. )
Dr. Charles Fatseas, d/b/a )
Rejuvenation Plastic Surgery, )
Employer, ) Judge Kenneth M. Switzer
And )
The Cincinnati Insurance Company, )
Carrier. )
EXPEDITED HEARING ORDER
Loretta Pentlicki filed a Request for Expedited Hearing, which hearing this Court
convened on August 22, 20 17. The present focus of this case is whether her fall in her
employer's parking lot after a working dinner was idiopathic in nature. The Court holds
that her fall was idiopathic and she is not likely to prevail at a hearing on the merits.
History of Claim
Ms. Pentlicki worked as the head nurse and practice manager for Dr. Charles
Fatseas. She fell in the work parking lot, sustaining injuries to her arm and head, on the
evening of May 11 , 2016. The parties dispute the circumstances of the fall and its
relationship to work.
Ms. Pentlicki testified that Dr. Fatseas invited her to a working dinner, which was
not unusual, although they had not gone for a working meal in a while. They rode
together in his car. According to her, they discussed business matters during dinner, and
she brought written information about the practice for Dr. Fatseas' review. Ms. Pentlicki
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had one glass of wine, but she did not consider herself under the influence. Ms. Pentlicki
planned to count the money received that day upon her return from dinner.
That did not occur. She testified that, on the return trip to the office:
Dr. Fatseas, urn, had become over the course of the evening increasingly
agitated, and, urn, we-He was yelling at me. Urn, we got into a very
heated argument. And, urn, Dr. Fatseas, who had been under a lot of stress
at the time due to a number of factors going on in the practice, urn, was
increasingly hostile to the point where I was ac-I was actually a bit afraid
of him. And I had told him on the ride home-urn, pardon my language,
but I was-and I've never said this to anybody before-I said, "Let me out
of the [expletive] car." Because-because I-I actually was, like, um-I
was uncomfortable and I didn't feel very safe at the moment. And I just
felt like-I just needed to get out of the car, because this was just a very
volatile conversation I didn't need to be a part of.
She said Dr. Fatseas' anger related to a pending lawsuit and her providing "things" to her
legal counsel.
After they returned to the office parking lot, Dr. Fatseas pulled up near her parked
car. Ms. Pentlicki gathered her purse, leftover food and work binders. She recalled
opening the car door but nothing past that point until regaining consciousness as Dr.
F atseas drove her to the emergency room. She could not recall whether it was dark at the
time but speculated that it was. Ms. Pentlicki testified that she would not have been in
the parking lot at that time "but for" her work, which she planned to return to if she had
not fallen. According to her, Dr. Fatseas was generally "a very intense person," but on
this occasion he was the most upset she had ever seen him. The following exchange took
place without objection on direct examination:
Counsel: Were you in a hurry to get out of the car because you
were uncomfortable?
Ms. Pentlicki: Yes. I-I didn't trust to be in a car with him.
Counsel: Is it fair to say you were rushing when you got out of
the car?
Ms. Pentlicki: Yes.
Ms. Pentlicki's Declaration in support of her Request for Expedited Hearing and
both Petitions for Benefit Determination contain no reference to Dr. Fatseas becoming
angry during the return trip to the office or her rush to exit the car.
Dr. Fatseas highlighted these inconsistencies in Ms. Pentlicki's version of events
with the pleadings. In a September 16, 2016 Petition for Benefit Determination, Ms.
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Pentlicki wrote that she "slipped and fell in company parking lot going into work, Dr.
Fatseas was with me at the time." She said that Dr. Fatseas filed a claim the day after her
fall but the carrier "road-blocked" it. Ms. Pentlicki initially had difficulty recalling the
September 16 Petition for Benefit Determination but later said she filed the document
"out of basically desperation," and as for the description of how she became injured, she
was trying to "make it as simple as possible." A subsequent, November 14 Petition for
Benefit Determination states, "I had returned from a work dinner with my boss and as I
was getting out of his vehicle carrying files, paperwork I fell breaking my right humerus.
Charles Fatseas, MD, was present during time of fall[.]" Ms. Pentlicki contended in her
testimony that the two accounts were "technically" not different.
Dr. Fatseas' deposition testimony offered a contrary version of events. No one
asked about the parties' conversation on the drive home, and he offered no information
about it. Rather, he testified that, upon their return to the office parking lot, Ms. Pentlicki
was "walking" to her car, carrying her purse and files. Her arms were "full with these
materials," but he had "no opinion" about whether they were "a factor" in her fall. Dr.
Fatseas recalled, "She suddenly fell," and, "Lori's fall was an abrupt event and she went
from walking to a sudden fall." He further stated that no debris was present in the
parking lot, nor were there cracks in the pavement, irregular surfaces, rocks or stones or
changes in elevation.
Ms. Pentlicki required extensive treatment for her injuries. The carrier never
offered a panel and denied the claim. Her private health insurer, BlueCross B1ueShield of
Tennessee, paid substantial sums for Ms. Pentlicki's care and intervened to seek
reimbursement. Post-injury, Dr. Fatseas paid Ms. Pentlicki lost wages; he seeks
reimbursement from the carrier. The parties requested only a ruling on the
compensability of Ms. Pentlicki' s claim. 1
Findings of Fact and Conclusions of Law
Since this is an expedited hearing, Ms. Pentlicki has to come forward with
sufficient evidence from which the Court can determine she is likely to prevail at a
hearing on the merits. McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). In Tennessee, a compensable injury is "an
injury by accident . . . arising primarily out of and in the course auu sl:upe of
employment, that causes ... the need for medical treatment." Tenn. Code Ann. § 50-6-
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The carrier and intervenor argued extensively in briefs about whether the intervenor is a proper party.
They additionally disputed whether this Court has the authority to order reimbursement for past medical
care, and if so, whether the fee schedule applies. However, because the Court rules within this order that
at this time Ms. Pentlicki is unlikely to prevail at a hearing on the merits, the Court need not decide these
issues. See Hooker v. Haslam, 437 S.W.3d 409, 417 (Tenn. 2014) ("Tennessee courts follow self-
imposed rules of judicial restraint so that they stay within their province to decide, not advise, and to
settle rights, not to give abstract opinions.") (Internal quotation marks omitted).
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102(14) (2016). Thus, the threshold issue is whether Ms. Pentlicki suffered an injury
arising primarily out of and in the course and scope of her employment with Dr. Fatseas.
To resolve this issue the Court first examines the credibility of the testimony
offered. The Tennessee Supreme Court gave indicia of witness credibility; specifically,
trial courts should consider whether a witness is "calm or agitated, at-ease or nervous,
self-assured or hesitant, steady or stammering, confident or defensive, forthcoming or
deceitful, reasonable or argumentative, honest or biased." Kelly v. Kelly, 445 S.W.3d
685, 694-695 (Tenn. 2014). This Court observed Ms. Pentlicki's demeanor and finds
that, in addition to being unable to recall critical events, she appeared agitated, nervous,
hesitant, stammering, defensive and argumentative. She was generally not a credible
witness. Also, she advanced differing versions of the facts, which are not persuasive.
Ms. Pentlicki argued at the hearing that, after a working dinner and before she
returned to the office to complete the day's tasks, she fell while exiting the car or slightly
afterward in her haste to escape Dr. Fatseas' anger and remain safe. Her Declaration in
support of her hearing request is unusually silent regarding Dr. Fatseas' alleged
escalating anger. Her PBD filed in September alleged a slip and fall. And, her counsel
asked no questions during Dr. Fatseas' deposition about the parties' dispute during that
drive. Given these inconsistencies and the previous credibility finding, the Court cannot
conclude that Dr. Fatseas' anger sparked her alleged hurriedness and resulting fall.
Tennessee case law provides that "[t]he mere presence of the employee at the
place of injury because of the employment is not enough, as the injury must result from a
hazard peculiar to the work or be caused by a risk inherent in the nature of the work,"
and, "An injury purely coincidental, or contemporaneous, or collateral, with the
employment will not cause the injury to be considered as arising out of the employment."
Hosford v. Red Rover Preschool, 2014 TN Wrk. Comp. App. Bd. LEXIS 1, at *20-21
(Oct. 2, 2014) (internal citations omitted). This Court holds that Ms. Pentlicki's presence
in her employer's parking lot at the time of her injury was collateral to her employment
and no hazard peculiar to her work caused her injury.
Rather, the carrier argued, and this Court agrees, that based on the present proof,
her injury was idiopathic. "An idiopathic injury is one that has an unexplained origin or
cause, and generally does not arise out of the employment unless 'some condition of the
employment presents a peculiar or additional hazard."' Frye v. Vincent Printing Co., et
al., 2016 TN Wrk. Comp. App. Bd. LEXIS 34, at *11 (Aug. 2, 2016) (internal citation
omitted). Moreover, an injury resulting from an idiopathic condition is compensable "if
an employment hazard causes or exacerbates the injury." Id. at * 12. "Cause" in this
context is not "proximate cause" as used in the law of negligence; rather, "cause" means
that the accident originated in the hazards to which the employee was exposed as a result
of performing his or her job duties. Id. Further, in Wilhelm v. Krogers, 235 S.W.3d 122,
128-129 (Tenn. -2007), the Supreme Court held that Tennessee courts "have consistently
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held that an employee may not recover for an injury occurring while walking unless there
is an employment hazard, such as a puddle of water or a step, in addition to the injured
employee's ambulation."
Here, Dr. Fatseas, the lone witness to the incident, testified that Ms. Pentlicki
"suddenly fell" and it was an "abrupt event," suggesting to this Court that her fall had an
unexplained origin or cause. Further, no one disputed that the parking lot where Ms.
Pentlicki walked and fell was hazard-free: no liquid, hole, obstacle such as rocks,
elevations or cracks in the pavement existed where she fell. Rather, she appeared to
argue that the files she carried served as a "peculiar or additional hazard." However, she
offered no testimony to explain how carrying workplace items before the fall constituted
a hazard or contributed to her fall. Moreover, Dr. Fatseas declined to state that carrying
the files was a factor in Ms. Pentlicki's fall.
Therefore, as a matter of law, Ms. Pentlicki has not come forward with sufficient
evidence from which this Court concludes that she is likely to prevail at a hearing on the
merits.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. Pentlicki's claim against Dr. Fatseas and his workers' compensation carrier is
denied at this time.
2. This matter is set for a Scheduling Hearing on October 16, 2017, at 10:15 a.m.
Central. The parties must call 615-532-9552 or toll-free at 866-943-0025 to
participate in the Hearing. Failure to call may result in a determination of the
issues without the parties' participation.
ENTERED the 25th day of August, 2017.
Court of Workers' Compensation
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APPENDIX
Exhibits:
1. Ms. Pentlicki ' s Declaration
2. First Report of Injury
3. Deposition ofDr. Fatseas and exhibits
4. Petition for Benefit Determination, September 16, 2016
5. Petition for Benefit Determination, November 14, 2016
6. Aerial photograph of parking lot
7. Photograph of cars in parking lot
8. W-2
Technical record:
1. Petition for Benefit Determination
2. Employer's Position Statement
3. Carrier's Position Statement
4. Employee's Positions Statement
5. Dispute Certification Notice
6. Request for Expedited Hearing
7. Carrier's Witness and Exhibit List
8. Carrier's Prehearing Statement
9. Employer's Pre-Hearing Statement
10. Intervening Plaintiff's Pre-Hearing Statement
11. Carrier's Supplemental Brief
CERTIFICATE OF SERVICE
I 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 25th day of
August, 2017.
Name Certified Fax Regular Email Sent to
Mail mail
Zach Wiley X zwilev@fortheoeoole.com
Bill Easterly X bill@bilkaslt:rly.<.:om
Gerald Siciliano X gms@l utheranderson.com
Mike Jones X m i ones(al,wimberlv lawson.com
k~ 10~
~enny S``~' Clerk of Court
WC.Cou '"' ~lerk@tn.gov
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