Perry, Latisha R. v. Vatterott Career College , 2017 TN WC 230 ( 2017 )

TENNESSEE BUREAU OF WORKERS’ COMPENSATION RED
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS December 15,2017
AT MEMPHIS
TH COURT OF
WORKERS’
LATISHA R. PERRY, ) Docket No. 2017-08-0466 COMPENSATION
Employee, ) CLAIMS
Vv. ) }-7 7B M
VATTEROTT CAREER COLLEGE, ) State File No. 19986-2017 vere
Employer, )
and )
ACCIDENT FUND INS. Co., ) Judge Amber E. Luttrell
Insurance Carrier. )
EXPEDITED HEARING ORDER
This matter came before the Court on November 20, 2017, upon Latisha Perry’s
Request for Expedited Hearing seeking medical and temporary disability benefits for her
alleged head and neck injuries. The central legal issue is whether she is likely to
establish at a hearing on the merits that she suffered an injury to her head and neck
arising primarily out of and in the course and scope of her employment. For the reasons
set forth below, the Court cannot find at this time that she is likely to do so but finds she
is entitled to a panel of physicians.
History of Claim
The hearing testimony and exhibits established the following facts. Ms. Perry
worked for Vatterott Career College (Vatterott) as an educational coordinator. Her job
duties involved spending significant time talking to current or prospective students,
typing, leading campus tours, and drafting contracts. She described her job as fast-paced
and communication-intensive.
On March 9, 2017, Ms. Perry attempted to sit down in her office chair, missed the
chair, and fell backwards onto the floor. As she fell, Ms. Perry testified she struck her
head on a colleague’s desk and hit her left elbow. Her supervisor, Melvin Cosey, heard
the noise and checked on her. She told him about her fall and later told her campus
director, Del Wren.' She did not seek immediate treatment; she stated she was
embarrassed by the accident.
Ms. Perry continued working that day and over the next ten days but noticed
swelling in her left wrist and elbow and a “pulling sensation” in her head and neck. She
testified she also experienced headaches and some dizziness when she stood up.’ She
mentioned her symptoms to Mr. Cosey and Mr. Wren in conversations at work, and Mr.
Wren recommended she see a doctor if she did not improve. However, Ms. Perry
testified she “wasn’t a crybaby and did not want to overwhelm [Mr. Cosey],” so she did
not complain on a daily basis.
Ms. Perry sought unauthorized treatment eleven days following the injury at
MedPost Urgent Care on March 20 and saw Nurse Practitioner Jennifer Yarman. N.P.
Yarman’s history section indicated Ms. Perry reported falling from a chair at work and
complained of left elbow pain. (Ex. 6.) It did not mention a history of neck pain or
headaches. However, an intake comment in the record stated, “[P]atient c/o L elbow pain
& headache. Patient fell out of chair on 3-9-17 at 5:20 p.m.” Jd. at 7. Ms. Perry disputed
the history section of the record and testified she told N.P. Yarman “about everything
going on.” N.P. Yarman x-rayed Ms. Perry’s elbow and diagnosed an acute left elbow
contusion. She restricted her from heavy lifting at work and prescribed medication.
Two days later, Vatterott provided Ms. Perry a panel of physicians from which she
selected Dr. Filipcic, a family physician, for treatment.’ It also prepared a First Report of
Injury, which indicated Ms. Perry notified Vatterott of her injury on March 21, and
stated, “EE alleges elbow, arm, shoulder, neck and head pain. Went to sit in a chair. Fall,
slip, or trip. Contusion. Soft tissue (head).” (Ex. 2.)
Ms. Perry saw Dr. Filipcic, who recorded in the history, “pt missed a chair and fell
backward, hit her head, no LOC, has mild head soreness but no HA, c/o L neck pain and
L arm pain with some tingling in L hand.” (Ex. | at 111.) Dr. Filipcic diagnosed
paresthesia and pain in the left wrist, neck, scalp, and elbow. He ordered cervical and
wrist x-rays and prescribed medication. At her second visit, Dr. Filipcic documented Ms.
Perry’s headache complaint, which she described as “persistent” and “worsening.” He
noted, “[Sjhe did hit her head, had brief episode of dizziness, resolved.” Dr. Filipcic
amended his diagnosis to add intractable acute post-traumatic headache and cervical
radicular pain, and ordered a head CT scan and cervical MRI. Jd. at 116.
' Mr. Wren did not testify at the hearing. The parties agreed he no longer works for Vatterott.
* Ms. Perry gave somewhat varying estimates regarding the onset of her headaches and neck pain. Taken as a whole,
the Court understood Ms. Perry’s testimony to be that her headaches and neck symptoms began before she sought
medical treatment at MedPost on March 20, eleven days following the injury.
> Ms. Perry signed two different C-42 panels on March 22. The parties introduced Ex. 3a., which indicated Ms.
Perry selected MedPost Urgent Care. She testified Vatterott asked her to sign this panel after she sought treatment at
Medpost on her own. She was instructed to sign it to allow the claims adjuster to pay Medpost’s bill. Ms. Perry
testified Ex.3b. is the panel Vatterott offered her to select a treating physician.
2
Vatterott denied authorization for the CT scan and MRI and filed a Notice of
Denial stating, “head and neck injury not in the course of employment.” (Ex. 4.)
Vatterott accepted Ms. Perry’s left elbow claim as compensable and authorized Dr.
Filipcic to continue treatment for the elbow.‘
After the denial, Ms. Perry sought unauthorized treatment from Dr. Filipcic for her
head and neck, and other personal conditions.” She described a “crunching sensation” in
her neck from the incident. Jd. at 141. She eventually underwent a head CT scan and
cervical MRI. Dr. Filipcic noted the CT scan showed a meningioma. He maintained the
cervical radiculopathy diagnosis and ordered physical therapy. The records introduced
into evidence through July 2017 indicated he continued treating her conservatively for
her neck, meningioma, depression, hypertension, and newly diagnosed diabetes.
Ms. Perry testified she never experienced headaches prior to her injury like the
ones she has had since, which she described as more severe and more frequent. Ms.
Perry stated her head and neck symptoms interfered with her ability to perform her fast-
paced job duties at Vatterott. She experienced problems in her neck “holding the
telephone, typing, and multi-tasking.” Ms. Perry worked at Vatterott until March 2017,
when Dr. Filipcic took her off work. She never returned and now works for a media
company as an advertising account executive. Ms. Perry requested authorized medical
treatment for her head and neck and temporary total disability benefits for two periods
between March and July 2017.
Melvin Cosey testified for Vatterott. He generally echoed Ms. Perry’s testimony
regarding their conversation immediately following her injury but stated he could not
recall exactly how she described the incident. He noticed Ms. Perry holding her face
when he saw her on the floor. Mr. Cosey could not recall if she mentioned her head or
neck to him in the weeks that followed. He only remembered her left arm complaints.
He stated she had difficulty typing and seemed “sluggish” after the injury.
Findings of Fact and Conclusions of Law
Because this is an Expedited Hearing, Ms. Perry need not prove every element of
her claim by a preponderance of the evidence in order to obtain relief. Instead, she must
present sufficient evidence from which this court might determine she is likely to prevail
at a hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1).
“ The parties introduced medical records from Dr. Filipcic and Dr. John Lochomes concerning Ms.
Perry’s ongoing left elbow treatment; however, the Court did not summarize the elbow treatment in this
order as it was not a disputed issue before the Court.
° Dr. Filipcic’s records indicated he generated separate notes for Ms. Perry’s elbow treatment and her head
and neck treatment. He dictated two separate notes for each date of service.
3
Analysis
Vaterott does not dispute that Ms. Perry fell at work and sustained an injury on
March 9, 2017. She reported her fall to Vatterott, and it eventually prepared a First
Report of Injury, provided a panel of physicians, and authorized treatment for her left
elbow. Thus, the Court holds Ms. Perry presented sufficient evidence to establish an
injury due to a specific incident identifiable by time and place of occurrence as required
by Tennessee Code Annotated section 50-6-102(14)(A). The disputed issues before the
Court were whether Ms. Perry failed to report an injury to her head and neck from her fall
and whether she established medical causation for her head and neck complaints.
As to the first issue, Vatterott contended Ms. Perry only reported her elbow/wrist
symptoms following the accident and did not mention her head or neck. In support of its
argument, Vatterott introduced the testimony of Mr. Cosey and pointed to the first
medical record from Medpost wherein N.P. Yarman’s history only mentions the elbow.
The Court is not persuaded by this argument. First, Mr. Cosey did not testify that Ms.
Perry never mentioned her head or neck to him. Rather, he testified he really could not
recall the details of her complaints besides her left wrist/elbow. He did recall Ms. Perry
holding her face immediately after the fall and noticed she seemed sluggish and had
difficulty performing her job duties in the days following the injury. He also stated Ms.
Perry spoke more to Mr. Wren than him regarding her complaints.
Next, Vatterott contended that Ms. Perry only reported elbow complaints to N.P.
Yarman’s office. The Court disagrees. While N.P. Yarman only recorded elbow
complaints in the history, the “intake comment” section of her record stated “[P]atient c/o
L elbow pain & headache. Patient fell out of chair on 3-9-17 at 5:20 p.m.” Ms. Perry
testified unequivocally that she told N.P. Yarman’s office about “all of her symptoms.”
The Court credits Ms. Perry’s testimony over Medpost’s record.
Lastly, Vatterott prepared a First Report of Injury, which indicated that on March
21, twelve days after the injury, Ms. Perry reported pain in her elbow, arm, shoulder,
neck and head from the fall. Moreover, the report listed “soft tissue (head)” in the
description of injury. This report prompted Vatterott to provide Ms. Perry a panel of
physicians, and she gave a history to her panel physician, Dr. Filipcic, of head and neck
symptoms as a result of the injury. The Court finds Vatterott’s own First Report proves
Ms. Perry specifically reported her alleged head, neck, and elbow injuries from her fall
within twelve days of her injury, at the latest. Thus, the Court finds no merit in any
notice argument asserted by Vatterott.
Causation
Vatterott next contended Ms. Perry failed to produce sufficient evidence to show
she is likely to prevail on the issue of causation regarding her alleged work-related
4
injuries. In order to establish causation, Ms. Perry 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.” See Tenn.
Code Ann. § 50-6-102(14)(B) (2017). The term “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.” See Tenn. Code Ann. §50-6-
102(14)(D). Thus, causation must be established by expert medical testimony.
In this instance, Vatterott argued, and the Court agrees, that Ms. Perry did not
produce any medical evidence linking her head or neck conditions to her work injury. In
fact, neither party introduced a medical opinion regarding causation for Ms. Perry’s head
or neck conditions. As a result, Ms. Perry offered insufficient evidence to establish she is
likely to prevail on the issue of compensability.
However, Ms. Perry does not have to prove compensability to establish Vatterott’s
obligation to provide a panel of physicians from which she may choose an authorized
physician. McCord, supra, at *16-17. In McCord, the Workers’ Compensation Appeals
Board found that:
[W]hether the alleged work accident resulted in a compensable injury has
yet to be determined. Therefore, while Employee has not proven by a
preponderance of the evidence that she suffered an injury arising primarily
out of and in the course and scope of employment, she has satisfied her
burden at this interlocutory stage to support an Order compelling Employer
to provide a panel of physicians.
Id. at *17 (emphasis added). Thus, the question becomes whether Ms. Perry has
provided sufficient evidence to satisfy her “burden at this interlocutory stage” that she is
entitled to a panel of physicians for her head and neck. The Court finds she did.
Ms. Perry testified credibly concerning her neck symptoms and headaches that
followed her March 9, 2017 work-injury. As previously stated, Ms. Perry also provided
adequate notice of her alleged head and neck injuries. Taken as a whole, the medical
records from Medpost and Dr. Filipcic are consistent and support Ms. Perry’s testimony
regarding her history of injury and symptoms that followed. While Vatterott provided a
panel of physicians from which Ms. Perry selected Dr. Filipcic, it promptly denied
authorized treatment for any condition besides her elbow.
Based on the foregoing, the Court holds Ms. Perry provided sufficient evidence to
satisfy her “burden at this interlocutory stage” that she is entitled to a panel of physicians
for her alleged head and neck injuries. As a result, Vatterott is ordered to provide a panel
for Ms. Perry’s head and neck and authorize such treatment as is reasonable, necessary,
and causally related to the work accident in accordance with Tennessee Code Annotated
5
section 50-6-204(a)(1)(A).
Temporary disability benefits
Because Ms. Perry has not demonstrated she is likely to prevail at a hearing on the
merits on the issue of medical causation at this stage of the proceedings, the Court cannot
award temporary disability benefits at this time.
IT IS, THEREFORE, ORDERED as follows:
1. Vatterott Career College shall provide a panel of physicians for Ms. Perry’s head
and neck and authorize such treatment as is reasonable, necessary, and causally
related to the work accident in accordance with Tennessee Code Annotated section
50-6-204(a)(1)(A) (2017).
2. Ms. Perry’s request for temporary disability benefits is denied.
3. This matter shall be set for a telephonic Status Hearing. The Court’s legal
assistant, Mrs. Woods, will contact the parties with dates for the hearing and
the parties shall promptly reply regarding their availability.
ENTERED this the_! 5" day of December, 2017.
“Nouba Leto
Judgé Amber E. Luttrell
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
L
2.
3.
Nn
Medical Records (collective exhibit)
First Report of Injury
Panel of Physicians
a. MedPost panel
b. Dr. Filipcic panel
Notice of Denial
Wage Statement
MedPost records (collective)
Technical record:
OC ONIDARWNS
Petition for Benefit Determination
Dispute Certification Notice
Order Setting Case for Show Cause Hearing
Order Granting Counsel’s Motion to Withdraw
Order Granting Additional Time Following Show Cause Hearing
Request for Expedited Hearing
Motion to Allow Telephonic Appearance
Order Granting Motion to Allow Telephonic Appearance
Employer’s Pre-Hearing Statement
10. Employer’s Witness List
11. Employer’s Exhibit List
12.Employee’s Pre-Hearing Statement
13.Employee’s Exhibit List
14.Employee’s Witness List
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 ‘tt day
of December, 2017.
Name Via Email Service sent to:
Emily Bragg, Esq., Xx ebragg@forthepeople.com
Attorney for Employee
Gordon Aulgur, Esq., x Gordon.aulgur@accidentfund.com
Attorney for Employer
Sours A tu
Penny Shrum, Clerk of Court
Court of Workers’ Compensation Claims
We.courtclerk@tn.gov