Smith, Stephanie v. TJ Maxx ( 2018 )

FILED
March 9, 2018
TX COURT OF
WORKERS' COMPE~SATIO~
CLAil\iS
Time 2:53PM
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT MEMPHIS
STEPHANIE SMITH, ) Docket No. 2016-08-0977
Employee, )
v. )
TJMAXX, ) State File No. 67360-2016
Employer, )
And )
ZURICH NORTH AMERICA, ) Judge Allen Phillips
Carrier. )
EXPEDITED HEARING ORDER DENYING MEDICAL AND TEMPORARY
DISABILITY BENEFITS
Ms. Smith requested additional medical and temporary disability benefits for an
injury to her foot. TJ Maxx asserted it paid all benefits to which she is entitled. The Court
considered the issues at an Expedited Hearing on March 5, 2018, and holds Ms. Smith is
not entitled to the additional benefits at this time.
History of Claim
On July 2, 2016, Ms. Smith suffered a puncture wound to her right foot when she
stepped on a security tag at TJ Maxx. She continued to work but on August 5 noticed
increased pain and swelling. She went to the emergency room at Methodist Hospital,
where the provider diagnosed "foot pain [and] swelling" and advised her to follow-up
with her primary care physician. Ms. Smith then requested medical treatment from TJ
Maxx, and it provided a panel of physicians that included Dr. John Lochemes, an
orthopedic surgeon.
On August 30, Dr. Lochemes found Ms. Smith's foot was "swollen,"
recommended an MRI to rule out an abscess or an infection, and returned her to "sit
down work only." The MRI showed no evidence of an abscess or infection but showed a
ganglion cyst that Dr. Lochemes did not relate to the puncture wound. He returned Ms.
Smith to full duty as of September 9.
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On September 11, Ms. Smith went to the emergency room at Regional One
complaining of foot pain. The provider noted swelling and tenderness in the arch of her
right foot. No diagnosis or recommendation for further treatment was included in the
record, but Ms. Smith testified the provider referred her to another Regional One
physician for follow-up.
On September 16, Ms. Smith saw a physician at Regional One Internal Medicine,
who recorded a diagnosis of "cellulitis" based on the Methodist emergency room visit
and confirmed the ganglion cyst that Dr. Lochemes diagnosed. The Regional One
physician took Ms. Smith off work for three days and restricted her to a "desk job" as of
September 23. Afterwards, Ms. Smith continued seeing Regional One physicians on
several occasions from October 20 16 through February 20 17. The diagnoses expanded to
include plantar fasciitis, and the providers restricted her from standing on different
occasiOns.
Dr. Lochemes saw Ms. Smith again on October 11. At that time, she complained
of continued pain in her foot and pain in her right hip. He diagnosed plantar fasciitis and
also performed a gratuitous x-ray of her hip outside of workers' compensation coverage.
He said neither the right hip condition (that the x-ray showed as degenerative) nor the
plantar fasciitis were related to the injury at TJ Maxx. He maintained Ms. Smith on full
duty and assessed no permanent impairment from the puncture wound.
Ms. Smith said she primarily worked on weekends during her employment at TJ
Maxx. She testified that continued pain in her foot limited her ability to stand and often
prevented her from working as scheduled. She said her "pay stubs" should reflect lost
time, but she did not produce them at the hearing. Because she disagreed with Dr.
Lochemes' assessment of her condition, she asked TJ Maxx for a second opinion, but it
declined. She offered a "Standard Form Medical Report For Industrial Industries (C-32)"
from Dr. Paige Whittle with an attached, handwritten letter from the doctor. Dr. Whittle
related Ms. Smith's plantar fasciitis to the puncture wound in both the C-32 and the letter
but noted that she did not have Dr. Lochemes' records.
Ms. Smith requested "lost wages" (which the Court will consider a request for
temporary disability) and payment of medical bills from Regional One. She presented
several bills bearing dates of service beginning July 11, 2017.
TJ Maxx countered that it paid Dr. Lochemes' bills and temporary disability
benefits between August 30 and September 9, the period Dr. Lochemes restricted her.
Because Dr. Lochemes is the authorized physician, TJ Maxx argued his causation
opinions are presumed correct. TJ Maxx also argued that Ms. Smith's filing of Dr.
Whittle's C-32 form just one week before the hearing was untimely and that she could
not rely upon it.
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Findings of Fact and Conclusions of Law
Standard applied
Ms. Smith must come forward with sufficient evidence from which this Court
might determine she is likely to prevail at a hearing on the merits. Tenn. Code Ann. § 50-
6-239(d)(l) (2017). Ms. Smith elected to represent herself, as is her right, but the Court
cannot "excuse [her] from complying with the same substantive and procedural rules that
represented parties are expected to observe." Walton v. Averitt Express, Inc., 2017 TN
Wrk. Comp. App. Bd. LEXIS 37, at *5 (June 2, 2017).
Medical benefits
Ms. Smith requests payment of medical bills from Regional One. To prevail, she
must establish a compensable injury that led to her incurring those bills. As pertinent
here, she must show, "to a reasonable degree of medical certainty that [her alleged work
injury] contributed more than fifty percent (50%) in causing the ... need for medical
treatment[.]" Tenn. Code Ann. § 50-6-102(14)(C) (Emphasis added).
Based on her uncontroverted testimony, the Court finds Ms. Smith established a
compensable injury; namely, she suffered a puncture wound to her foot on July 2, 2016.
However, she has not shown the injury contributed more than fifty percent to the need for
her medical care that generated those bills. Specifically, the medical bills from Regional
One for which Ms. Smith requests payment bear dates of service beginning in July 2017,
dates after those on the medical records she introduced. Thus, the Court cannot award
payment of the bills at this time.
Temporary disability benefits
TJ Maxx paid Ms. Smith disability benefits for four days, September 6 through 9,
a period when Dr. Lochemes restricted her activity. Tennessee Code Annotated section
50-6-205(a) provides that no compensation shall be allowed for the first seven days of
disability. Dr. Lochemes restricted Ms. Smith for eleven days (August 30 through
September 9), and TJ Maxx paid her temporary benefits for the last four days of that
period consistent with the statute. It asserts it paid Ms. Smith all temporary benefits to
which she was entitled. The Court agrees.
Ms. Smith requested additional temporary disability benefits for undefined
periods. She described her inability to stand on her injured foot and said TJ Maxx did not
offer sedentary duty. The Court finds Ms. Smith's testimony sincere and believes that she
continued to suffer pain and symptoms after her release from Dr. Lochemes. However, to
recover additional temporary disability benefits, Ms. Smith must show she was disabled
from working due to a compensable injury, a causal connection between that injury and
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her inability to work, and the duration of the period of disability. Jones v. Crencor
Leasing and Sales, 2015 TN Wrk. Comp. App. Bd. LEXIS 48 (Dec. 11, 2015). She has
not met those requirements as explained below.
Namely, Dr. Lochemes testified by deposition that the currently diagnosed
medical conditions, plantar fasciitis and a ganglion cyst, were not caused by her injury.
His opinion is presumed correct, and Ms. Smith has not rebutted it by a preponderance of
the evidence. See Tenn. Code Ann. § 50-6-102(14)(E). The only countervailing medical
opinion comes from Dr. Whittle in a C-32 and letter. Ms. Smith filed Dr. Whittle's C-32
fewer than twenty days before the hearing, and she cannot rely upon it. Tenn. Code Ann.
§ 50-6-235(c)(2). Further, although it bears her signature, Dr. Whittle concedes in her
letter that she did not have Dr. Lochemes' records. Without that complete history, the
Court cannot find Dr. Whittle's opinion rebuts Dr. Lochemes' opinion by a
preponderance of the evidence. Thus, Ms. Smith has neither established a disability due
to her work injury nor any causal connection between it and her inability to work.
Likewise, Ms. Smith did not introduce evidence regarding the duration of her disability.
For these reasons, Ms. Smith did not establish the requirements for additional
medical or temporary disability benefits, and the Court must deny her request at this time.
IT IS, THEREFORE, ORDERED as follows:
1. The Court denies Ms. Smith's claim against TJ Maxx for the requested medical
and temporary disability benefits at this time.
2. This matter is set for a telephonic Scheduling Hearing on May 15, 2018, at
10:30 a.m. Central Time. You must call toll-free 855-543-5038 to participate
in the hearing. Failure to call in may result in a determination of the issues
without your further participation.
ENTERED March 9, 2018.
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APPENDIX
Exhibits:
1. Photo of Ms. Smith's foot
2. Collective medical records of Methodist Hospital, Regional One, Good Life
Medical Center and Dr. Paige Whittle
3. Medical bills from Regional One (Identification only)
4. C-32 Form of Dr. Paige Whittle (Identification only)
5. Methodist Hospital Release Form
6. Choice of Physician Form
7. Deposition of Dr. John Lochemes
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Motion to Continue
5. Order Continuing Expedited Hearing
6. Motion to Withdraw As Employee's Attorney
7. Order Allowing Withdrawal of Counsel
8. Statement Opposing Relief Sought In Expedited Hearing
9. Objection by Employer to Form C-32
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 March 9, 20 18.
Name Via Email Service sent to:
Stephanie Smith, X steffyluv@yahoo.com
Self-Represented Employee
David Riley, Esq., X driley@gwtclaw .com
Attorney for Employer pwilliams@gwtclaw .com
Pe~r }.±::::;,
'•
Court of ' r;rkers' Compensation Claims
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