Steinzor, Justin v. Kroger Limited Partnership , 2017 TN WC 164 ( 2017 )

FILED
August 75,2017
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS Noeeeee
AT JACKSON COMPENSATION
CLAIMS
JUSTIN STEINZOR, ) Docket No. 2017-07-0242 ; :
Time 10-50 AM.
Employee, )
v. )
KROGER LIMITED PARTNERSHIP I, ) State File No. 11015-2017
Employer, )
And }
SEDGWICK CLAIMS, } Judge Amber E. Luttrell
Third-Party Administrator. )
EXPEDITED HEARING ORDER
DENYING REQUESTED BENEFITS
This matter came before the Court on August 18, 2017, on Mr. Steinzor’s Request
for Expedited Hearing. Mr. Steinzor seeks medical and temporary disability benefits for
an alleged work-injury to his hands. The central legal issue is whether he is likely to
establish at trial that he suffered an injury arising primarily out of his employment. For
the reasons set forth below, the Court holds Mr. Steinzor is not entitled to the requested
benefits at this time.
History of Claim
The hearing testimony and exhibits established the following facts. Mr. Steinzor
worked for Kroger as a “Drug GM assistant manager.” On January 29, 2017, Kroger
moved Mr. Steinzor to the dairy department. After working one day in the cooler, he
suffered “extreme discomfort” in his hands. Mr. Steinzor associated the discomfort with
his exposure to cold temperatures. The parties stipulated Mr. Steinzor timely reported an
injury to his hands on February 12, 2017.
Mr. Steinzor initially sought treatment one day after his symptoms began with his
personal medical provider, Shari Tidwell, FNP, for complaints of a rash on his hands. Mr.
Steinzor reported the rash was worse in the winter. On exam, FNP Tidwell noted “mild
dermatitis and mild cracked knuckles.” Mr. Steinzor returned to work and spoke to
I
Kroger’s store manager, Mike Stephens, regarding a note from FNP Tidwell
recommending he avoid exposure to cold temperatures. Mr. Steinzor requested Mr.
Stephens move him to a different department, and Mr. Stephens directed him to continue
working in the dairy department until he could meet with a human resources (HR)
representative. Kroger’s HR department did not contact Mr. Steinzor to set up a meeting;
therefore, he continued working in the dairy department until his symptoms worsened. At
the time Mr. Steinzor reported his injury, he stated his right hand was swollen and purple
in color. He also stated both hands were ice cold. Kroger did not offer Mr. Steinzor a
panel of physicians.
Mr. Steinzor next sought treatment from Lucy Sturdivant, FNP. FNP Sturdivant’s
record indicated a history of pain and color changes that began in Mr. Steinzor’s hands
ten years prior when exposed to cold temperatures. The history further provided Mr.
Steinzor’s hands had been stiff and swollen over the last several years, and he
experienced pain with low temperatures. At the hearing, Mr. Steinzor disputed this
history and stated his words were “misconstrued.” He testified he told FNP Sturdivant he
experienced redness and chaffing in his hands from bartending since 2010. He did not
dispute telling her that his symptoms, including redness and swelling, worsened when he
began working in a “constant cold environment” in the Kroger dairy department.
FNP Sturdivant examined Mr. Steinzor’s hands, noted abnormal findings, and
diagnosed unspecified hand pain and Raynaud’s syndrome without gangrene. She
commented, “It is evident patient has [a] significant condition which is triggered by cold.
Even wearing gloves patient is very symptomatic.” FNP Sturdivant also suggested that
Mr. Steinzor avoid working in a cold environment and referred him to Dr. Alexander
Alperovich, a vascular surgeon, for further evaluation. '
Mr. Steinzor next saw Dr. Alperovich and complained of severe, bilateral hand
pain, redness, tightness, stiffness, numbness, weight loss, and edema. He associated his
symptoms with his move to the dairy department. Dr. Alperovich’s note indicated Mr.
Steinzor provided a history of pain in the tips of his fingers in cold temperatures dating
back to his childhood; however, Mr. Steinzor disputed this history and testified Dr.
Alperovich also misconstrued his statements. He clarified he told Dr. Alperovich he
experienced normal pain in his fingertips after playing in snow and ice as a child. Mr.
Steinzor stated he saw Dr. Alperovich for less than ten minutes, and Dr. Alperovich only
visually examined his hands. Dr. Alperovich diagnosed vasculitis and referred Mr.
Steinzor to a rheumatologist for further evaluation. However, Kroger did not offer him a
panel of rheumatologists.
' Kroger objected to FNP Tidwell and FNP Sturdivant’s work restrictions submitted in the medical records attached
as Collective Exhibit 5 since no physician restricted Mr. Steinzor from work. The Court finds the notes irrelevant to
the dispositive issue at the hearing and references them in the history for context only.
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Sedgwick subsequently sent Dr. Alperovich a letter requesting his causation
opinion regarding Mr. Steinzor’s condition. In response, Dr. Alperovich stated, in part,
the cause of Mr. Steinzor’s vasculitis was unknown. He concluded that Mr. Steinzor’s
condition “was not over 50% caused by work.” Based on Dr. Alperovich’s opinion,
Kroger denied Mr. Steinzor’s claim. Mr. Steinzor has not received any further medical
treatment for his hand condition.
Mr. Steinzor has not worked since February 12, 2017.° He received no temporary
disability benefits for his time off work. The parties were unsure if Kroger paid any bills
associated with Mr. Steinzor’s medical treatment for his hands.
Findings of Fact and Conclusions of Law
To prove a compensable injury, Mr. Steinzor must show not only that his alleged
injury was caused by an incident, or specific set of incidents, identifiable by time and
place of occurrence but also that it arose primarily out of and in the course and scope of
his employment. Further, he must show, “to a reasonable degree of medical certainty that
[his alleged work injury] contributed more than fifty percent (50%) in causing the...
disablement or need for medical treatment, considering all causes.” ‘““Shown to a
reasonable degree of medical certainty’ means that, in the opinion of the physician, it is
more likely than not considering all causes, as opposed to speculation or possibility.”
Tenn. Code Ann. § 50-6-102(14)(D) (2016).
However, because this case is in a posture of an Expedited Hearing, Mr. Steinzor
need not prove every element of his claim by a preponderance of the evidence in order to
obtain relief. Instead, he must come forward with sufficient evidence from which this
Court might determine he 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); Tenn. Code Ann. § 50-6-239(d)(1) (2016).
Analysis
The Court first notes that Kroger presented no testimony or proof disputing Mr.
Steinzor’s description of the events on February 12, 2017, or that he developed symptoms
in his hands following his work-exposure to the cold temperatures in the dairy cooler.
Further, there is no dispute that Mr. Steinzor timely reported his symptoms, and Kroger
ultimately prepared a First Report of Injury. The Court finds Mr. Steinzor credible in his
testimony regarding the discomfort he experienced in his hands and thus holds he came
forward with sufficient evidence to establish an incident, or set of incidents, identifiable
by time and place of occurrence as required by Tennessee Code Annotated section 50-6-
* The parties disputed the circumstances surrounding Mr. Steinzor not returning to work at Kroger. Based on the
Court’s holding, the Court finds this testimony irrelevant at this time.
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102(14)(A) (2016). The question to be resolved is whether he appears likely to prove the
incident or set of incidents is the primary cause of his condition and need for medical
treatment. Applying the foregoing principles to the facts of this case, the Court cannot
find at this time that Mr. Steinzor is likely to meet this burden.
The medical proof before the Court addressing medical causation for Mr.
Steinzor’s hand condition came from Dr. Alperovich, who concluded his condition was
not more than fifty-percent caused by work. While FNP Sturdivant suggested Mr.
Steinzor’s on-the-job exposure to cold temperatures may have triggered his condition,
this opinion is not from a physician and does not address the current legal standard for
causation. The fact that Mr. Steinzor’s hand condition might be triggered by his work to
some unspecified degree is insufficient for the Court to find Mr. Steinzor’s work
exposure constituted more than fifty-percent of the cause of his disability or need for
medical treatment considering all causes.
The Court recognizes that Mr. Steinzor disputes Dr. Alperovich’s conclusions;
however, Mr. Steinzor’s disagreement with the physician’s opinion, while genuine, is
legally insufficient to refute Dr. Alperovich’s conclusion. Concerning the employee’s
burden to produce medical proof, our Appeals Board held:
In cases ... where an employer has presented expert medical proof that the
employee’s condition is not work-related, the employee must present expert
medical proof that the alleged injury is causally related to the employment
when the case is not “obvious, simple [or] routine. While lay testimony
may be probative on the issue of causation, it is insufficient to meet an
employee’s burden of proof in the absence of medical evidence.
Berdnik v. Fairfield Glade Community Club, et al., 2017 TN Wrk. Comp. App. Bd.
LEXIS 32, at *10 (May 18, 2017) (internal citations omitted).
Here, the only expert medical opinion addressing causation is contrary to Mr.
Steinzor’s position. Absent countervailing medical proof, the Court holds Mr. Steinzor
did not come forward with sufficient medical evidence from which the Court may
conclude he is likely to prevail at trial in establishing his injury arose primarily out of his
employment. Thus, his request for medical and temporary benefits is denied.
Penalty Unit Referral
Although Mr. Steinzor did not meet his burden of proving medical causation at
this expedited hearing stage, the Court nevertheless finds Kroger may be subject to
penalties for failure to provide a panel of physicians under Tennessee Code Annotated
section 50-6-204 (2016). The Workers’ Compensation Law authorizes the Bureau to
assess penalties for an employer’s failure to comply with this requirement. See Tenn.
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Code Ann. § 50-6-118(a)(12) (2016).
Kroger stipulated Mr. Steinzor gave notice of a work-injury on February 12, 2017,
and Kroger presented no proof that would explain why it failed to offer Mr. Steinzor a
panel of physicians for his reported injury. Accordingly, this Court refers Kroger to the
Penalty Unit of the Bureau of Workers’ Compensation for investigation and assessment
of a civil penalty based on its failure to provide a panel of physicians in accordance with
section 50-6-204 (2016) and Tenn. Comp. R. & Regs 0800-02-01-.25 (2015).
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Steinzor’s claim against Kroger and its workers’ compensation carrier for the
requested medical and temporary disability benefits is denied at this time.
2. This matter is set for a Status Hearing on October 16, 2017, at 3:00 p.m.
Central Time. You must call toll free 855-543-5039 to participate in the
hearing.
ENTERED this the 25" day of August, 2017.
thes K Hol 2
JUDGE AMBER E. LUTTRELL
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1.
SrIHARWL
Affidavit of Justin Steinzor
Affidavit of Wendell Mathis
First Report of Injury
Wage Statement
Medical Records Index (collective)
Dr. Alperovich’s causation opinion letter
Photos of Mr. Steinzor’s hands (collective)
Kroger letter to Mr. Steinzor
Technical record:°
1.
. Dispute Certification Notice
AR WN
Petition for Benefit Determination
Request for Expedited Hearing
Employer’s Prehearing Brief
Employer’s Supplemental Prehearing Brief
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 25th _ day
of August, 2017.
Name Via Email Service sent to:
Justin Steinzor, x captainsteinz@gmail.com
Self-Represented Employee
Newton Anderson, Esq., x sna@spicerfirm.com
Attorney for Employer
Penalty Unit Xx WCCompliance.Program@tn.gov
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.
fas dha tons
Penny Shrum, Clerk of Court
Court of Workers’ Compensation Claims