Letner, Aurthur v. Highland Steel Erectors , 2017 TN WC 237 ( 2017 )

FILED
December 21, 2017
TN COURT OF
WORKERS’ COMPENSATION
CLAIMS
Time: 11:34 A.M. EASTERN
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT KNOXVILLE
ARTHUR LETNER, ) Docket No. 2016-03-0730
Employee, )
V. )
HIGHLAND STEEL ERECTORS, ) State File No. 54132-2016
Employer, )
And )
AMERISAFE INTERSTATE ) Judge Pamela B. Johnson
INSURANCE CoO., )
Carrier. )
EXPEDITED HEARING ORDER
(ON-THE-RECORD DETERMINATION)
This matter came before the undersigned Workers’ Compensation Judge on
December 1, 2017, on Arthur Letner’s Request for Expedited Hearing (REH) seeking a
decision on the record. Highland did not request an evidentiary hearing. Upon careful
consideration of the record, this Court finds it needs no additional information to
determine whether Mr. Letner is likely to prevail at a hearing on the merits and decides
this matter upon a review of the written materials.
The central legal issue is whether Mr. Letner is entitled to additional medical and
temporary disability benefits. For the reasons set forth below, the Court holds Mr. Letner
failed to come forward with sufficient evidence demonstrating he is likely to prevail at a
hearing on the merits and denies his requested relief at this time.
History of Claim
Mr. Letner worked for Highland as an ironworker. On July 20, 2015, he slipped
and fell while walking backward pulling insulation, injuring his low back. He felt sudden
pain in his left leg and developed radiating pain into his left foot. He continued to work,
but his pain worsened. He has not worked since August 19, 2015."
One month later, Mr. Letner saw his primary care physician, Dr. Larry Wolfe, who
ordered a lumbar MRI and referred him to a specialist. He saw neurosurgeon Dr.
Christopher Gallati afterward with complaints of leg pain. Mr. Letner reported that Dr.
Wolfe referred him for an injury at work, stating he felt like “he pulled something” in late
July. Dr. Gallati reviewed the MRI and noted a L4-5 disc herniation with radiculopathy.
He treated the disc herniation surgically and post-operatively noted resolution of left leg
pain with mild back pain. He released him to return to work with weight limitations on
October 23 and pronounced Mr. Letner at maximum medical improvement (MMI) to
resume activities without restrictions “in a gradual kind of common sense approach” on
December 18. Dr. Gallati released him to return to work on February 6, 2016.
Mr. Letner returned to Dr. Gallati on February 12, reporting increased pain after
he squatted down and twisted and after he turned over in bed and felt his back pop. Dr.
Gallati ordered a repeat MRI and placed Mr. Letner off work. Dr. Gallati reviewed the
MRI, which showed a large recurrent disc protrusion. He determined Mr. Letner re-
injured the disc and performed a second surgery. Dr. Gallati acknowledged an injured
disc predisposed Mr. Letner to a recurrence of the disc herniation. He could not state,
within a reasonable degree of medical certainty, whether Mr. Letner’s recurrent disc
herniation occurred due to the July 2015 work injury and previous surgery or whether the
disc herniation occurred due to his squatting, twisting, and rolling over in bed when his
back popped.
Following the second surgery, Mr. Letner continued to report worsening
symptoms. A third MRI showed another L4-5 recurrent disc herniation causing severe
stenosis and worsening L4-5 degeneration and facet arthritis. Dr. Gallati recommended a
two-level lumbar fusion, given the recurrence of the disc herniation twice at the same
level and the progression of degeneration. Dr. Gallati again acknowledged that he could
not state, within a reasonable degree of medical certainty, whether Mr. Letner’s recurrent
disc herniation occurred due to the July 2015 work injury and previous surgery or another
cause. Dr. Gallati agreed fighting could cause an injury.
' Mr. Letner served time in jail from June 18, 2016, through May 30, 2017, and he is currently out of jail
on “medical leave” and awaiting his criminal trial. His charges included aggravated assault and domestic
assault.
* Dr. Gallati’s physician’s assistant noted in January 2016 that Mr. Letner’s had no permanent impairment
and did not require permanent functional restrictions. Dr. Gallati stated Mr. Letner’s impairment and
restrictions would no longer stand based on new documentation of new symptoms and MRI findings.
>? Dr. Gallati indicated, without the recommended fusion surgery, Mr. Letner reached maximum medical
improvement (MMI) on March 17, with permanent restrictions of bending, squatting, or lifting more than
fifteen pounds.
Highland paid Mr. Letner “sick benefits” in lieu of temporary disability benefits
and withheld taxes and social security. It also paid most of his medical bills, except the
second surgery and follow-up care. It has not authorized the recommended third (fusion)
surgery.
Findings of Fact and Conclusions of Law
Mr. Letner need not prove every element of his claim by a preponderance of the
evidence in order to obtain relief at an Expedited Hearing. McCord v. Advantage Human
Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Instead, he must come forward with sufficient evidence from which this Court can
determine he is likely to prevail at a hearing on the merits. /d.; Tenn. Code Ann. § 50-6-
239(d)(1) (2017).
To be compensable, Mr. Letner’s injuries must arise primarily out of and in the
course and scope of the employment. Additionally, he must show to a reasonable degree
of medical certainty that his work injury contributed more than fifty percent in causing
the need for medical treatment, considering all causes. Shown to a reasonable degree of
medical certainty means that, in the opinion of the treating physician, it is more likely
than not considering all causes as opposed to speculation or possibility. See Tenn. Code
Ann. § 50-6-102(14).
The Workers’ Compensation Appeals Board explained in Panzarella v.
Amazon.com, Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 30, at *14 (May 15, 2017)
(emphasis in original):
[A] physician may render an opinion that meets the legal standard espoused
in section 50-6-102(14) without couching the opinion in a rigid recitation of
the statutory definition. What is necessary, however, is sufficient proof
from which the trial court can conclude that the statutory requirements of
an injury as defined in section 50-6-102(14) are satisfied.
Applying these principles, the Court concludes Mr. Letner failed to demonstrate
that his work injury and employment caused the current need for treatment when
considering all causes. Dr. Gallati could not state, within a reasonable degree of medical
certainty, whether Mr. Letner’s second recurrent disc herniation occurred due to the July
2015 work injury and previous surgery or whether the disc herniation occurred due to his
squatting, twisting, and rolling over in bed when his back popped. Dr. Gallati
acknowledged the same was true for the third recurrent disc herniation. For these
reasons, the Court denies Mr. Letner’s requested relief at this time.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Letner’s requested relief is denied at this time.
2. This matter is set for a Status Conference on February 15, 2018, at 9:30 a.m.
Eastern Time. The parties must call (865) 594-0091 or toll-free (855) 543-5041
to participate in the Status Conference. Failure to appear by telephone may result
in a determination of the issues without the party’s participation.
ENTERED December 22, 2017.
| funicla, J ilu yn
PAMELA B. JOHNSON, JUDGE
Court of Worker’s Compensation Claims
APPENDIX
The Court reviewed the following documents, marked as exhibits for ease of
reference:
Petition for Benefit Determination
. Dispute Certification Notice with attachments (267 pages)’
3. Request for Expedited Hearing with Affidavit
a. Affidavit of Attorney Patrick Sexton
4. Notice of Filing Deposition of Christopher Gallati, M.D. with attachments (268
pages)"
a. (No. 1) Curriculum Vitae
NO —
“ The Court issued a Docketing Notice and instructed the parties to designate by medical provider and
date of service any medical record attached to the Dispute Certification Notice that the parties wanted the
Court to consider. The Court advised that, if the parties failed to designate to the record, the Court would
not consider the unnumbered, voluminous medical records attached under Rule 0800-02-21-.16(6)(c).
The parties did not designate to the record, and the Court did not consider the attached records. See also
Love v. Delta Faucet, 2016 TN. Wrk. Comp. App. Bd. LEXIS 45, at *9-11 (Sept. 19, 2016).
> The Court issued a Docketing Notice and instructed the parties to designate by medical provider and
date of service any medical record attached to Dr. Gallati’s deposition that the parties wanted the Court to
consider. The Court advised that, if the parties failed to designate to the record, the Court would not
consider the unnumbered, voluminous medical records/bills attached to Dr. Gallati’s deposition under
Rule 0800-02-21-.16(6)(c). See also Love v. Delta Faucet, 2016 TN. Wrk. Comp. App. Bd. LEXIS 45, at
*9-11 (Sept. 19, 2016).
b. (No. 2) Medical treatment notes
c. (No. 3) Medical expenses/bills
5. Employer’s and Carrier’s Response to Employee’s Request for Expedited
Hearing on the Record®
6. Notice of Filing Deposition of Arthur Letner with attachments
7. Notice of Filing Employee’s Answers to Carrier’s First Interrogatories and
Requests for Production of Documents
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 December 22, 2017.
Name
Certified
Mail
Fax | Email | Service sent to:
Patrick Sexton,
Employee’s Attorney
x ss_l@highland.net
Louis A. McElroy, II,
Employer’s Attorney
xX drew(@drewmcelroy.net
WC.CourtClerk@tn.gov
° The Court granted Highland Steel Erectors and Amerisafe Interstate Insurance Company additional time
to reply to Mr. Letner’s Request for Expedited Hearing.
5