Scharmberg, Elizabeth v. Kroger Co. , 2018 TN WC 64 ( 2018 )

FILED
May 07, 2018
03:12 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT NASHVILLE
Elizabeth Scharmberg, ) Docket No. 2018-06-0151
Employee, )
v. ) State File No. 56955-2016
Krog1er Co., )
Employer. ) Judge Robert Durham
EXPEDITED HEARING ORDER GRANTING BENEFITS
(DECISION ON THE RECORD)
This case came before the Court for an expedited hearing. Under Rule 0800-02-
21-.02(14), Ms. Scharmberg requested the Court issue a decision on the record, and
Kroger did not object. On April 24, 2018, the Court sent a docketing notice to the parties
regarding the contents of the record. Neither party objected to any of the documents
listed in the docketing notice. Considering the record, the Court concludes it needs no
further information to make a judgment.
The sole issue is whether Ms. Scharmberg is entitled to pain management
treatment from Dr. James Eby as recommended by authorized physician Dr. Tarek
Elalayli. The Court holds that Ms. Scharmberg established she would likely prevail at
trial regarding this issue and orders Kroger to authorize treatment with Dr. Eby.
History of Claim
On July 26, 2016, Ms. Scharmberg tripped and fell while working for Kroger. She
claimed multiple injuries, and Kroger accepted her claim as compensable. Kroger
initially authorized Dr. Howard Nevels to provide treatment. When conservative
treatment failed to alleviate her pain, Dr. Nevels referred her for pain management.
Kroger provided a panel, and Ms. Scharmberg chose Dr. Jeffrey Hazlewood.
Dr. Hazlewood evaluated Ms. Scharmberg in November 2016. He determined that
she needed to see an orthopedic surgeon to evaluate her condition and stated he would
see her back "as needed."
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Kroger then authorized Ms. Scharmberg to treat with orthopedist Damon Petty,
M.D. Dr. Petty determined that her complaints were primarily due to cervical
radiculopathy, which he related to her work accident, and he recommended she see a
spine specialist.
Kroger provided a panel of neurosurgeons, and Ms. Scharmberg chose Dr. Gray
Stahlman. For unexplained reasons, Dr. Stahlman did not see her, so Ms. Scharmberg
then chose Dr. Robert Weiss. Dr. Weiss believed that her cervical spine issues were
"long-standing and degenerative," and he had nothing to offer her.
Despite Dr. Weiss' opinion, Kroger offered another panel of neurosurgeons, and
Ms. Scharmberg selected Dr. Elalayli. Dr. Elalayli felt that Ms. Scharmberg should avoid
cervical spine surgery, and on November 29, 2017, he referred her to physiatrist James
Eby, M.D., for pain management. Kroger did not offer a panel of physicians within three
business days of Dr. Elalayli's referral. However, Kroger refused to authorize Dr. Eby,
stating that Dr. Hazlewood was already her authorized physiatrist. On January 24, 2018,
Dr. Elalayli completed a referral to Dr. Hazlewood, stating that Dr. Hazlewood saw Ms.
Scharmberg in the past. Ms. Scharmberg requests that Kroger authorize Dr. Eby.
Findings of Fact and Conclusions of Law
Ms. Scharmberg need not prove every element of her claim by a preponderance of
the evidence to obtain relief at an expedited hearing. Instead, she must present sufficient
evidence that she is likely to prevail at a hearing on the merits. See Tenn. Code Ann. §
50-6-239(d)(l) (2017); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Two statutory sections are relevant to the issue at hand: Tennessee Code
Annotated sections 50-6-204(3)(A)(ii) and 50-6-204(E). They respectively state:
When necessary, the treating physician selected in accordance with this
subdivision (a)(3)(i) shall make referrals to a specialist physician, surgeon,
or chiropractor and immediately notify the employer. The employer shall
be deemed to have accepted the referral, unless the employer, within three
(3) business days, provides the employee a panel of three (3) or more
independent reputable physicians, surgeons, chiropractors or specialty
practice groups[.]
And,
In all cases where the treating physician has referred the employee to a
[specialist], the [specialist] to which the employee has been referred, or
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selected by the employee from a panel provided by the employer, shall
become the treating physician until treatment by the [specialist] concludes
and the employee has been referred back to the treating physician selected
by the employee from the initial panel[.]
Here, Kroger does not dispute that Dr. Elalayli was Ms. Scharmberg's authorized
physician at the time he referred her to Dr. Eby. Further, Kroger did not object to Dr.
Eby within three business days. Thus, under the plain language of 50-6-204(3)(A)(ii),
Kroger accepted Dr. Eby as Ms. Scharmberg's authorized physician for pain
management.
Nonetheless, Kroger argues that the statute is inapplicable, since Ms. Scharmberg
previously chose Dr. Hazlewood for pain management. However, 50-6-204(E) states that
once an authorized physician refers the employee to a specialist, that specialist becomes
the authorized physician until the employee is referred back to the original doctor. Thus,
Dr. Hazlewood's status as the authorized physician ended once he referred Ms.
Scharmberg to an orthopedist.
Kroger might argue that Dr. Elalayli has now referred Ms. Scharmberg back to Dr.
Hazlewood, thus once again making him the authorized physician as contemplated by 50-
6-204((E). However, the Court finds this argument unpersuasive for two reasons. One,
50-6-204(3)(A)(ii) would be severely undermined if an employer were allowed to
circumvent the three-day requirement by urging the referring specialist to change his
referral weeks or even months after the fact. Second, once Dr. Elalayli referred Ms.
Scharmberg to Dr. Eby and Kroger failed to object within three days, Dr. Eby, not Dr.
Elalayli became the physician authorized by statute to provide Ms. Scharmberg's
treatment. Kroger introduced no proof that Dr. Eby referred Ms. Scharmberg to Dr.
Hazlewood. Thus, the Court rejects Kroger's position and holds that Dr. Eby is Ms.
Scharmberg's authorized physician for pain management.
IT IS, THEREFORE, ORDERED that:
1. Kroger shall authorize Dr. Eby to provide Ms. Scharmberg with reasonable and
necessary medical care for her work-related injury.
2. This matter is set for a Scheduling Hearing on June 21, 2018, at 9:30a.m. C.S.T.
You must call 615-253-0010 or toll-free at 855-689-9049 to participate in the
Hearing. Failure to call in may result in a determination of the issues without
your further participation.
3. Unless interlocutory 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).
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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 vm email
WCCompliance.Program@tn.gov
ENTERED THIS THE 7th DAY OF MAY, 2018.
``ge
Court of Workers' Compensation Claims
APPENDIX
Exhibits:
1. Medical records of Dr. Tarek Elalayli
2. Employer's Choice ofPhysician form dated 9-24-2017
3. Medical record of Dr. Robert Weiss
4. Choice ofPhysician Form dated 7-27-2017
5. Choice of Physician Form dated 5-23-2017
6. Medical records of Dr. Damon Petty
7. Medical records of Dr. Harold Nevels
8. First Report of Injury
9. Wage Statement
10.Medical records of Dr. Jeffrey Hazlewood
11. Affidavit of Elizabeth Scharmberg
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing with attached affidavit
4. Ms. Scharmberg's Position Statement
5. Kroger's Position Statement
4
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Expedited Hearing Order
Granting Benefits was sent to the following recipients by the following methods of
service on this the ih day of May, 2018.
Name Certified Email Email Address
Mail
Andrea Meloff X ameloff@ddzlaw .com
Heather H. X hdouglas@manierherod.com
Douglas
P nnyS
Court o · orkers' Compensation Claims
WC.Cou rtCierk@tn.gov
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Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
form with the Clerk of the Court of Workers’ Compensation Claims within seven
business days of the date the expedited hearing order was filed. When filing the Notice
of Appeal, you must serve a copy upon all parties.
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of the Notice of Appeal. Payments can be made in-person at
any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
website or any Bureau office) seeking a waiver of the fee. You must file the fully-
completed Affidavit of Indigency within ten calendar days of filing the Notice of
Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
result in dismissal of the appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business days of the filing of the Notice of Appeal. The statement of
the evidence must convey a complete and accurate account of the hearing. The Workers’
Compensation Judge must approve the statement before the record is submitted to the
Appeals Board. If the Appeals Board is called upon to review testimony or other proof
concerning factual matters, the absence of a transcript or statement of the evidence can be
a significant obstacle to meaningful appellate review.
4. If you wish to file a position statement, you must file it with the court clerk within ten
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements should include: (1) a
statement summarizing the facts of the case from the evidence admitted during the
expedited hearing; (2) a statement summarizing the disposition of the case as a result of
the expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an
argument, citing appropriate statutes, case law, or other authority.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
Filed Date Stamp Here EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers' Compensation
Docket#: - - - -- -- - --
www.tn.go v/labor-wfd/wcomp.shtm l
State File #/YR: - - -- - - --
wc.courtclerk@tn.gov
1-800-332-2667 RFA#: _ _ _ _ _ _ _ _____ _
Date of Injury: - - - -- - - - -
SSN: _______ _ ______ __
Employee
Employer and Carrier
Notice
Noticeisg~enthat _ _ _ _ _ _ _``--````---``~--------~
[List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s) of the Court of Workers' Compensation Claims at _ __
-``~-----````````-to the Workers' Compensation Appeals Board .
[List the date(s) the order(s) was filed in the court clerk's office]
Judge___________________________________________
Statement of the Issues
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Additional Information
Type of Case [Check the most appropriate item]
D Temporary disability benefits
D Medical benefits for current injury
D Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): _____________ .A t Hearing: DEmployer DEmployee
Address:. _______________________ ______________ ___________
Party's Phone:.____________________________ Email: _________________________
Attorney's Name:________________________________ ___ BPR#: - - - - - - - - - - - -
Attorney's Address:. _ _ _ _ _``-````----``---- Phone:
Attorney's City, State & Zip code: _____________________ ___________ _ _ _ __ _
Attorney's Email :_ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ __ _ _ _ __ _ _ _ _ _ _ __
*Attach an additional sheet for each additional Appellant*
LB-1099 rev.4/15 Page 1 of 2 RDA 11082
Employee Name: - - - -- - - -- - - - SF#: _ _ _ _ __ _ _ _ _ DO l: _ __ _ __
Aopellee(s)
Appellee (Opposing Party): _ _ _ _ _ _ _ _.At Hearing: OEmployer DEmployee
Appellee's Address: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Appellee's Phone:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _.Email:_ _ _ _ _ _ __ _ _ _ _ _ __
Attorney's Name:_ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ BPR#: - - - - - - - -
Attorney's Address:._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Phone:
Attorney's City, State & Zip code: - - - -- - - - - - - - - - - - - - - - - - - -- -
Attorney's Email:._ _ _ _ __ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, certify that I have forwarded a true and exact copy of this
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules of
Board of Workers' Compensation Appeals on this the day of__, 20_ .
[Signature of appellant or attorney for appellant]
LB-1099 rev.4/1S Page 2 of 2 RDA 11082
.
ll .I
Tennessee Bureau of Workers' Compensation
220 French Landing Drive, 1-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
I, , having been duly sworn according to law, make oath that
because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name:_ _ _ _ _ _ _ _ _ _ __ 2. Address: - - - - - - - - - - - - -
3. Telephone Number: - - - - - - - - - 4. Date of Birth: - - - - - - - - - - -
5. Names and Ages of All Dependents:
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
- - - - - - - - - - - - - - -- - Relationship: - - - - - - - - - - - --
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
6. I am employed by: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , -
My employer's address is: - - - - - - - - - - - - - - - - - - - - - - - - -
My employer's phone number is: - - - - - - - - - - - - - - - - - - - - - - -
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$ _ _ _ _ _ _ ___
8. I receive or expect to receive money from the following sources:
AFDC $ per month beginning
SSI $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Camp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are: ' ; !•
'
Rent/House Payment $ per month Medical/Dental $ per month
Groceries $ per month Telephone $ per month
Electricity $ per month School Supplies $ per month
Water $ per month Clothing $ per month
Gas $ per month Child Care $ per month
Transportation $ per month Child Support $ per month
Car $ per month
Other $ per month (describe:
10. Assets:
Automobile $ _ _ __ _
(FMV) - - - - - -- - - -
Checking/Savings Acct. $ _ _ _ __
House $ _ _ _ __
(FMV) - - -- - - -- - -
)
Other $ _ _ _ __ Describe:_ _ _ __ _ _ _ _ __
11. My debts are:
Amount Owed To Whom
I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
_ _ _ dayof _____________ ,20____
NOTARY PUBLIC
My Commission Expires:_ _ _ _ _ __ _
LB-1108 (REV 11/15) RDA 11082