Adamczyk, Adam v. Prospect, Inc. , 2017 TN WC 208 ( 2017 )

FILED
November 20,.2017
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TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT COOKEVILLE
Tracy Adamczyk, ) Docket No.: 2017-04-0074
Employee, )
v. ) State File No.: 6517-2017
)
Prospect, Inc., ) Judge Robert Durham
Employer, )
And )
)
Starnet Ins. Co., )
Carrier. )
EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS
This case came before the Court on November 8, 2017, on Ms. Adamczyk's
Request for Expedited Hearing. The issues are whether she sustained a compensable
January 23, 2017 injury, and if so, to which benefits she may be entitled. The Court
holds Ms. Adamczyk is likely to prevail at a hearing on the merits that she sustained a
mid-back injury that arose primarily out of and in the course and scope of her
employment. Thus, Prospect must pay all reasonable and necessary medical expenses
incurred with authorized physicians as a result of this injury. However, Ms. Adamczyk
did not meet her burden with regard to temporary disability benefits.
History of Claim
Ms. Adamczyk worked as a caregiver for Prospect for eleven years. Her job
required her to provide companionship and assistance, such as housekeeping and running
errands, to the disabled and elderly. Ms. Adamczyk worked part-time, entitling her to the
minimum compensation rate of$133.20.
In 2008, Ms. Adamczyk suffered a compensable injury to her low back, which she
settled in 2009 with lifetime medical benefits. She returned to work with Prospect under
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physical restrictions, including a thirty-five-pound occasional lifting restriction. Since
then, she received pain management through Dr. Jeffrey Hazlewood, whom she saw five
to six times per year. The visits consistently noted pain levels as high as nine on a scale
of ten if she were without medication. Her symptoms primarily consisted of low back
pain that radiated into her legs, although she complained of thoracic pain once in 2013.
Ms. Adamczyk also complained of other ailments, including fibromyalgia, for which she
received treatment at Vanderbilt because Dr. Hazlewood would not treat these conditions
under her settlement. In 2012, Ms. Adamczyk first sought social security disability
benefits for her numerous health problems; however, social security denied her final
appeal in 2016.
On the morning of January 23, 2017, Ms. Adamczyk went to the home of Mary
Davis to provide assistance. Ms. Adamczyk testified Ms. Davis walked with great
difficulty and spent most of her time in a living room chair. She described the home as a
tiny apartment cluttered with furniture, rugs, shelves, boxes, books and "bric-a-brac" that
Ms. Davis brought with her when she moved from a much larger home. Many of the
items littered the living room and bedroom floors and most of the spare room was filled
with boxes.
She stated she made Ms. Davis' bed but had difficulty doing so given the items stacked
around it. While cleaning the bathtub she accidentally turned on the shower, soaking a
dog bed and other items. Ms. Adamczyk stated she attempted to vacuum, but Ms. Davis
objected to the noise, Ms. Adamczyk then worked on moving boxes filled with items
such as books and other unboxed items on the living room floor because Ms. Davis
planned to have someone over to rearrange her furniture. While maneuvering through the
rooms, she tripped over a rug and felt a "pull" with immediate pain in her mid back. She
rested for the remainder of her shift, leaving at 12:00 noon.
Ms. Davis' written declaration provided a different account. She stated she only
asked Ms. Adamczyk to move two boxes containing yam and jewelry, neither of which
was heavy. She denied that Ms. Adamczyk tripped over anything or that she complained
of an injury or back pain. Ms. Davis claimed Ms. Adamczyk refused to vacuum and left
her bathroom floor, along with the dog bed and personal belongings, soaking wet. Ms.
Davis immediately called Ms. Adamczyk's supervisor, Gina Robinson, to complain once
Ms. Adamczyk left her apartment.
Ms. Robinson also provided a written declaration. She stated Ms. Adamczyk
texted her twice while at Ms. Davis' home but did not report an accident or injury. Ms.
Adamczyk texted her again after she left Ms. Davis' home but did not mention an injury. 1
Ms. Adamczyk texted Ms. Robinson at 2:10p.m. to let her know she had dropped off
paperwork at the office. Ms. Robinson replied and asked her to come in the next morning
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By this point, Ms. Robinson had already talked to Ms. Davis about her complaints.
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to discuss her schedule. Without mentioning a work accident or back pain, Ms.
Adamczyk texted back that she could not make it in at all the next day. The next day at
4:44p.m., Ms. Robinson sent another text instructing Ms. Adamczyk to be at the office
the following morning. Ms. Adamczyk replied at 5:10, stating she had gone to the doctor
with back pain and may have hurt her back at Ms. Davis' home. Ms. Robinson told her
to come in the next day to complete the necessary paperwork.
In her declaration, Ms. Robinson stated that Ms. Adamczyk told her she felt she
injured her back while moving heavy boxes but did not mention tripping. Ms. Robinson
investigated the claim by going to Ms. Davis' home and lifting the two boxes identified
by Ms. Davis as the ones Ms. Adamczyk carried. The boxes contained yam and pieces of
jewelry. Ms. Robinson asserted they both weighed less than five pounds.
Much of the testimony at the hearing concerned Ms. Adamczyk's actions before
providing notice to Prospect and her subsequent descriptions of the alleged incident. Ms.
Adamczyk testified she was in intense pain at 2:00p.m. when she met a friend, Keith Fry,
for lunch. Mr. Fry testified he had to help Ms. Adamczyk from her car into his truck,
after which they then delivered her paperwork to Prospect and ate lunch. Following
lunch, Ms. Adamczyk returned home. She testified she did not mention her back pain to
Ms. Robinson on the 23rd because she thought her back might improve.
On the 24th, Ms. Adamczyk asked Mr. Fry to take her to the doctor because she
remained in severe pain. They went to the Cherry Valley walk-in clinic, which recorded
that the visit occurred at 4:09 p.m. and that Ms. Adamczyk complained of upper
respiratory infection symptoms and low back pain for the past two days. The record
further noted Dr. Hazlewood was treating her for low back pain. The rest of the report
dealt primarily with the upper respiratory infection.
Ms. Adamczyk completed a Safety Incident Report at Prospect the next day,
which stated that she helped move items so Ms. Davis could rearrange furniture and felt
"something pull" in her back. She described difficulty in maneuvering through the items
on the floor, particularly around the bed, and she concluded the pain was due to overuse
and "possibly tripping over stuff all over the floor."
Prospect provided a panel to Ms. Adamczyk, and she chose Dr. Wayne Wells for
authorized treatment. She went to his clinic that day and reported that she strained her
back, causing mid-back pain, while moving boxes two days previously. The report noted
Ms. Adamczyk's history of low back pain but specifically stated the mid-back pain
"arises primarily out of and in the course of employment." 2 Dr. Wells diagnosed Ms.
Adamczyk with thoracic back strain, prescribed a Medrol dose pack, and placed her
2
The Court notes that this record was not provided to the Bureau or the Court until the day of the
expedited hearing.
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under restrictions.
Ms. Adamczyk returned to Dr. Wells on January 31 and stated her back was
somewhat better. While Dr. Wells' handwriting is difficult to decipher, he stated "back
to usual chronic back pain but c/o pain higher-immediate, sharp, electrical." He noted
she described lifting "a heavy box last Monday." He diagnosed her with "thoracic back
pain/spine pain" and referred her to an orthopedist. Dr. Wells also stated Ms. Adamczyk
should remain out of work until an orthopedist evaluated her.
That same day, Ms. Adamczyk provided a recorded statement to claims adjuster,
Jennifer Hudson. She told Ms. Hudson she injured her back while moving boxes and
piles of books so she could vacuum the living room floor. She described her injury as
being in her mid back to her low back, and she suffered from new pain that was "up
higher" than the chronic low back pain for which she saw Dr. Hazlewood.
On February 2, Ms. Hudson sent a Notice of Denial to Ms. Adamczyk and notified
Dr. Wells' office that she would no longer authorize treatment. Ms. Hudson reasoned
that no specific incident or accident occurred and Ms. Adamczyk did not report any
injury or pain but told her employer her back was hurting following a day of work. Ms.
Adamczyk testified that no one paid Dr. Wells' bills and he is currently seeking payment
from her.
Ms. Adamczyk did not seek treatment from another provider or return to work
with Prospect. She testified that it was her understanding that another doctor would not
treat her for a workers' compensation injury, which she adamantly maintained she
sustained. Prospect would not allow her to return to work without a doctor's release but
would not authorize her to return to Dr. Wells.
On May 25, Ms. Wells saw Dr. Hazlewood. Dr. Hazlewood noted that Ms. Wells
stated she suffered a "second injury" in January when she tripped over a rug while
carrying boxes and "felt a pop with acute pain in her low back." She described the pain
as being in her "upper lumbar spine region which was higher up than the pain [he] had
treated for years." Although Dr. Hazlewood did not observe any objective signs of
radiculopathy from the "new injury," he stated that normally a five-month-old injury with
no improvement would require an MRI. However, given that he was not treating her for
the "new injury," all he could do for her was provide medication for the "old injury"
since it was unchanged by the "new injury." He concluded by stating that he did not see
any objective anatomical change on physical exam for her "new injury."
On October 2, Prospect's counsel wrote a letter to Dr. Hazlewood summarizing
Ms. Adamczyk's history with Dr. Hazlewood, especially the visits in 2016. It then stated
Ms. Adamczyk originally said she injured her back "lifting heavy boxes of books" with
the phrase in quotes and suggested she may have been exceeding her permanent
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restrictions. The letter indicated an investigation revealed that the "only boxes present at
the client's house weighed less than five pounds." It also asserted that Ms. Adamczyk
never told Prospect or Dr. Wells that she tripped or felt a "pop" in her back. Finally, it
said that Ms. Adamczyk did not report an inj~ry until after she was told to come in to
discuss Ms. Davis' complaints.
Prospect's counsel concluded the letter by asking Dr. Hazlewood the following
question:
Based upon your long standing treatment of Ms. Adamczyk, and
considering this additional information, can you state, to a reasonable
degree of medical certainty that the moving of a box that weighed 5 lbs or
less contributed more than 50% in causing or exacerbating her pre-existing
back condition(s), considering all causes?
Dr. Hazlewood responded by checking "No."
Finally, on cross-examination Prospect's counsel, Mary Dee Allen, asked Ms.
Adamczyk about her hobbies and interests. When Ms. Allen specifically confronted Ms.
Adamczyk about her history of arm-wrestling, she admitted she has been nationally
ranked in women's arm-wrestling for the last several years. Ms. Adamczyk stated she
had arm-wrestled in recent years but had not actually competed in any events since the
incident in January. She stated that while documentation indicated she won the event at
the Wilson County Fair this year, it was only because there were no other contestants in
her weight class. Mr. Fry corroborated this testimony.
Findings of Fact and Conclusions of Law
Ms. Adamczyk has the burden of proof on all essential elements of her claim.
Scott v. Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6
(Aug. 18, 20 15). However, since this is an expedited hearing, she must only come
forward with sufficient evidence from which the Court can determine she is likely to
prevail at a hearing on the merits in order to meet her burden. McCord v. Advantage
Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
In order to prevail on causation, Ms. Adamczyk must establish she suffered an
accidental injury that 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) (2017). Ms. Adamczyk
must prove "to a reasonable degree of medical certainty that [the injury] contributed more
than fifty percent (50%) in causing the death, disablement or need for medical treatment,
considering all causes." Tenn. Code Ann. § 50-6-102(14)(C). The term "reasonable
degree of medical certainty" means that, "in the opinion of the physician, it is more likely
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than not considering all causes, as opposed to speculation or possibility." Tenn. Code
Ann. § 50-6-1 02( 14 )(D). Thus, causation must be established by expert medical
testimony, and it must be more than "speculation or possibility" on the part of the doctor.
Dr. Wells, the only authorized physician who saw Ms. Adamczyk, explicitly stated
that Ms. Adamczyk's condition "arises primarily out of and in the course of
employment." As the authorized physician, Dr. Wells' causation opinion is entitled to a
presumption of correctness that can only be rebutted by a preponderance of the evidence.
Tenn. Code Ann. § 50-6-102(14)(E). Prospect attempted to rebut the presumption on two
fronts: (1) through the letter to Dr. Hazlewood; and (2) through challenging Ms.
Adamczyk's version of the events surrounding her alleged accident.
As Dr. Hazlewood stated in his May 25 record, Prospect or its carrier never
authorized him to treat Ms. Adamczyk for her "new" injury and therefore he did not do
so. All he could do was to continue prescribing medication for her "old injury" under her
previous workers' compensation claim, which he carefully noted was unchanged by her
"new injury." He did, however, state that he would normally order an MRI in response to
her continued complaints even though he did not observe any objective anatomical
changes caused by the "new injury."
On October 4, Dr. Hazlewood checked "no" to what amounts to a two- and one-
half-page hypothetical question regarding causation. However, the facts contained in the
hypothetical, as well as the concluding question itself, contain many deficiencies that
make the opinion of little value.
First, many of the facts the question asks Dr. Hazlewood to assume are highly
contested by Ms. Adamczyk or are not part of the evidence at all. For example, Ms.
Adamczyk never claimed that she lifted "heavy boxes filled with books." The phrase
presents a different connotation than any history given by Ms. Adamczyk. Ms.
Adamczyk disputed the assertion that the only boxes she lifted weighed less than five
pounds. No evidence suggests that anyone told Ms. Adamczyk about Ms. Davis'
complaints before she reported a back injury. Ms. Adamczyk testified she did not know
about the complaint until she visited the office on the 25th, after reporting the injury the
day before. The letter stated Ms. Adamczyk told Dr. Wells that her "pain had returned to
baseline." However, that quote actually seems to be speaking about her pre-existing low-
back pain, and not the pain "higher up." The letter also alleged that Ms. Adamczyk never
told Prospect that she tripped on a rug or felt a pop in her back as she related to Dr.
Hazlewood; however, the Prospect Employee Safety Incident Report that Ms. Adamczyk
completed on January 25th stated that she "possibly" tripped and that she felt a "pull" in
her back.
Second, even if the facts supporting the hypothetical were accurate, the actual
question asked of Dr. Hazlewood is of little use in eliciting his opinion regarding this
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mJury. Dr. Hazlewood was not asked whether or not in his opinion Ms. Adamczyk
sustained a compensable injury on January 25th; instead, he was asked whether or not he
can state to a reasonable degree of medical certainty that she did. A reasonable
interpretation of his one-word answer is that Dr. Hazlewood simply cannot state one way
or the other; not that he necessarily believes she didn't. However, even if the answer is
sufficient to provide a causation opinion, the question asked was whether the incident
"cause[d] or exacerbate[d] her pre-existing back condition." It does not ask whether he
believed the incident caused a new injury, as Ms. Adamzcyk has alleged from the
beginning. Thus, the Court finds that Dr. Hazlewood's response to Prospect's letter
should be accorded little weight on the causation issue.
Prospect also exerted significant effort to impeach Ms. Adamczyk's account of the
January 25 incident and thus erode Dr. Wells' causation opinion. However, · despite
Prospect's argument, the Court does not find Ms. Adamczyk's descriptions, as
transcribed by various parties, significantly inconsistent with each other. While some are
more detailed than others, they all essentially correspond with Ms. Adamczyk's
testimony that she was moving boxes and other items from Ms. Davis' living room floor
to other rooms when she tripped over a rug and felt a pop and immediate pain in her
upper lumbar region. The Court is also not convinced by Ms. Davis' written statement,
not subject to cross-examination, that Ms. Adamczyk only lifted two boxes weighing less
than five pounds each. According to Ms. Adamczyk's uncontroverted testimony, Ms.
Davis had great difficulty walking and spent most of her time in a chair in a comer of the
living room. She would not have been able to see much of what Ms. Adamczyk actually
did, particularly in the other rooms.
The Court also differs with Prospect regarding the significance of Ms.
Adamczyk's failure to immediately notify her supervisor of her injury. While ·it would
certainly have been the better practice to provide immediate notice, Ms. Adamczyk
testified she hoped her back would get better. The Court does not find that unreasonable.
Finally, while Ms. Adamczyk's arm-wrestling history is interesting and may be a
factor to address with her physician, the Court does not find it significant with regard to
causation or disability from a January 23 work-related back incident, particularly since
Prospect introduced no evidence that Ms. Adamczyk actually wrestled this year.
Given all of the above findings, the Court finds that Prospect failed to produce
sufficient evidence to rebut Dr. Wells' opinion that Ms. Adamczyk's mid-back pain
primarily arose out of and in the course and scope of her employment with Prospect.
Thus, the Court holds that, at a hearing on the merits, Ms. Adamczyk will likely prevail
in establishing entitlement to workers' compensation benefits for her January 23, 2017
lllJUry.
With regard to medical benefits, the Court holds that Prospect is obligated to
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provide reasonable and necessary medical treatment for Ms. Adamczyk's work-related
injury. Tenn. Code Ann. § 50-6-204(a)(l)(A). Given the length of time since Dr. Wells
last saw Ms. Adamczyk, Prospect shall pay for another visit to him and shall also pay for
recommended treatment, including but not limited to an orthopedic referral.
As to temporary disability benefits, the issue is complicated by Prospect's
premature denial of Ms. Adamczyk's claim. Temporary total disability benefits are owed
when the employee can prove a compensable injury rendered her totally disabled from
working for a specific duration. Shepherd v. Haren Constr. Co., Inc., et al., 2016 TN
Wrk. Comp. App. Bd. LEXIS 15, at *13 (Mar. 30, 2016). Here, Ms. Adamczyk
sufficiently established the likelihood of proving that her work injury resulted in total
disability through the fact that Dr. Wells took her off work until an orthopedist saw her.
Of course, Ms. Adamczyk never saw an orthopedist because Prospect denied her claim
and refused to authorize another visit with Dr. Wells. However, the burden remains Ms.
Adamczyk's, and the Court cannot find at this point that she is likely to prevail with
regard to proving duration. Ms. Adamczyk simply did not introduce enough medical
evidence for the Court to address the issue at this time. However, she is not precluded
from requesting temporary disability benefits at a subsequent hearing.
Finally, the Court is troubled by the fact that a crucial piece of evidence to this
claim-Dr. Wells' initial note in which he unequivocally stated Ms. Adamczyk's injury
primarily arose out of and in the course of her employment-was not presented to the
Bureau or the Court until the day of the hearing. Rule 0800-02-21-.11(02) of the
Mediation and Hearing Procedures require the parties to "cooperate with the mediator
and provide any information necessary for the resolution of the dispute. " (Emphasis
added.) The only documents provided from Dr. Wells' office were his restrictions and
out-of-work slips. 3
When asked at the hearing why Dr. Wells' complete notes were not made part of
the record, Ms. Adamczyk stated she assumed Prospect had already provided them. Ms.
Allen stated she did not know. The Court finds it difficult to believe that during
mediation, Ms. Hudson and/or Ms. Allen had Dr. Wells' notes concerning Ms.
Adamczyk's work status but did not have the actual record of her visit, or that they did
not recognize the record's importance regarding the claim's merits. The most logical
conclusion is that the omission was intentional. Therefore, the Court refers this matter to
the Bureau's Compliance unit for determination of any penalties it may deem
appropriate.
IT IS, THEREFORE, ORDERED that:
3
The Court also notes that as part of its exhibits, Prospect only included Dr. Wells' note from January 31
and not the January 25 note that addressed causation. While it may be argued that Prospect had no
obligation to produce records that might assist Ms. Adamczyk, it still does not reflect favorably on the
record's omission to the mediator.
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1. Prospect shall pay all unpaid medical expenses related to Dr. Wells' past treatment
of Ms. Adamczyk. Prospect shall further authorize Dr. Wells to provide further
reasonable and necessary treatment for Ms. Adamczyk's work-related injury,
including but not limited to an orthopedic referral.
2. Ms. Adamczyk's request for temporary disability is denied at this time, but this
holding does not preclude her from requesting temporary disability benefits at a
subsequent hearing.
3. The Court refers this matter the Bureau's Compliance unit for a determination
regarding penalties.
4. This matter is set for a Scheduling Hearing on January 3, 2018, at 9:00a.m. C.S.T.
The parties or their counsel must ca11615-253-0010 or toll-free at 855-689-9049 to
participate in the hearing. Failure to call may result in a determination of the
issues without your participation.
5. Unless appeal of the Expedited Hearing Order is filed, compliance with this Order
must occur no later than seven business days from the date of entry of this Order
as required by Tennessee Code Annotated section 50-6-239(d)(3). The Insurer or
Self-Insured Employer must submit confirmation of compliance with this Order to
the Bureau by email to WCCompliance.Program@tn.gov no later than the seventh
business day after entry of this Order. Failure to submit the necessary
confirmation within the period of compliance may result in a penalty assessment
for non-compliance. For questions regarding compliance, please contact the
Workers' Compensation Compliance Unit VIa email at
WCCompliance.Program@tn.gov.
ENTERED THIS THE 20th DAY OF NOVEMBER, 2017.
~-g=-e~-----------
Court of Workers' Compensation Claims
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APPENDIX
Technical Record
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Prospect's additional defenses
4. Request for Expedited Hearing
5. Order of Continuance
6. Order Setting Expedited Hearing
7. Prospect's Pre-Trial Witness List
8. Prospect's Amended Pre-Trial Exhibit List
9. Order Denying Motion for Contempt
Exhibits
1. Dr. Jeffrey Hazlewood's medical records
2. Letter from Prospect's counsel and Dr. Hazlewood's response
3. Vanderbilt medical records
4. Ms. Adamczyk's recorded statement
5. Records from Ms. Adamczyk's 2008 workers comp injury
6. First Report of Injury, wage statement, letters regarding administrative leave
7. Notice of Controversy
8. Record from The Doctor's Office dated 1/31/2017
9. Declaration of Gina Robinson
10. Declaration of Marcia Davis
11. Declaration of Jennifer Hudson
12. Employee Safety Incident Report
13. Record from Cherry Valley Walk-In Clinic
14. Ms. Adamczyk's affidavit
15. First Report of Injury prepared by Ms. Pena
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16.Notice ofDenial
17. Additional records from the Doctor's Office
18. Performance Improvement Plan
19.Map for I.D. purposes
20.First Report of Injury
21. Letter from Dr. Hazlewood dated November 1 for I.D. purposes only
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 20th
_ day of
November, 2017.
Name Certified Via Via Service sent to:
Mail Fax Email
Tracy Adamczyk X P.O. Box 105
Carthage, TN 37030
Mary Dee Allen X mallen@wimberlylawson.com
Compliance Unit X WCCompliance.Program@tn.gov
m, Clerk of Court
Court of orkers' Compensation Claims
WC.CourtClerk@tn.gov
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