Brown, Linda v. Nissan North America ( 2018 )

she reported the injury, Nissan provided a panel of physicians. Ms. Brown chose Premise
Health.
At her first visit on February 17, nurse practitioner Carmilyn Lesemann assessed
low-back pain. After follow-up visits with Ms. Lesemann, Ms. Brown saw Dr. Terri
Walker at Premise on March 10. Dr. Walker wrote:
She's been having generalized aches and pains for greater than a year.
She's been seen in the past for neck and bilateral shoulder pain 12/20 16 and
was diagnosed with degenerative cervical radiculopathy and the claim was
deemed personal. Currently she reports neck, shoulder and low back pain .
. . . She c/o diffuse pain of the neck, upper back, shoulders and low back.
The doctor diagnosed "[ c]ervicalgia with radiculitis should be a tie back to the 12/5116
claim which was denied. The lumbago is more likely from the DDD. DJD of her L-
spine which is unlikely primarily work related." Nissan sent Ms. Brown a denial letter
and filed a Notice of Controversy that states, "Treating physician has indicated condition
is not primarily work related."
Counsel for Nissan sought additional clarification from Dr. Walker regarding
causation for injury. Counsel wrote a letter stating, "You saw Ms. Brown on 3110117, at
which time she complained of diffuse pain of the neck, upper back, shoulders and low
back." The letter asked, "[D]o you believe that the symptoms described by Ms. Brown
on 3110117, were primarily caused by (>50%) or primarily aggravated by (>50%) her
work activity as described as occurring on 2117/17, considering all possible causes and
without speculation?" (Emphasis in original.) Dr. Walker wrote "no."
Ultimately, Ms. Brown came under the unauthorized care of Dr. Margaret
MacGregor. The April 6, 2018 records from her first visit give the following history:
"neck pain, mid back pain, low back pain." Dr. MacGregor noted "work accident, while
lifting a heavy object." She concluded Ms. Brown failed conservative treatment and
recommended an anterior cervical decompression and fusion. Dr. MacGregor performed
the procedure later that month, listing final diagnoses as cervical radiculopathy,
spondylosis and myelopathy; back and neck pain; and osteoarthritis. The records
mention neither treatment for the low back nor the specifics of the injury-causing event.
Ms. Brown, who represents herself, sent Dr. MacGregor a letter seeking
clarification of her opinion on causation. The letter quotes Tennessee Code Annotated
section 50-6-1 02(14 )(A)-(E), the definition of "injury" in the Workers' Compensation
Law, but it does not ask questions applying the definition to her condition. Dr.
MacGregor checked "yes" after each quoted subsection without elaboration; see Ex. 2 at
145-146.
2
Ms. Brown testified she has been off work receiving short-term and long-term
disability benefits. Nissan terminated her. She continues seeing Dr. MacGregor. She
asked the Court to order further treatment with Dr. MacGregor and reimbursement of past
out-of-pocket medical bills. Ms. Brown also requested temporary total disability
benefits. For its part, Nissan argued that the authorized treating physician, Dr. Walker,
concluded the alleged i~ury was not primarily work-related. Her opinion is presumed
correct, and no physician gave an opinion to rebut the presumption.
Findings of Fact and Conclusions of Law
To prevail at an expedited hearing, Ms. Brown must provide sufficient evidence to
show she would likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-
239(d)(l) (2017).
Resolution of the present issue turns on whether Ms. Brown suffered an injury as
defined in the statute. The Workers' Compensation Law defines an injury as "an injury
by accident ... arising primarily out of and in the course and scope of employment, that
causes ... the need for medical treatment." Further, she must also show "to a reasonable
degree of medical certainty that [the employment] contributed more than fifty percent
(50%) in causing the ... need for medical treatment, considering all causes," and that, "in
the opinion of the physician, it is more likely than not, considering all causes, as opposed
to speculation or possibility." Further, the opinion of the treating physician selected from
a panel "shall be presumed correct on the issue of causation but this presumption shall be
rebuttable by a preponderance of the evidence." See Tenn. Code Ann. § 50-6-
102(14)(C)-(E).
Applying these standards, Nissan argued that the authorized treating physician, Dr.
Walker, concluded that Ms. Brown's injury is not work-related. Specifically, she
responded to a very direct causation question with a "no" answer. In contrast, Dr.
MacGregor did not offer a causation opinion. It appears from Dr. MacGregor's
responses to Ms. Brown's causation letter that the doctor might think the injury is work-
related. This, however, is speculation.
At this time, the Court finds that Dr. MacGregor's notes and answers to questions
in a letter do not constitute an opinion on causation. Ms. Brown did not rebut the
presumption of correctness the statute affords Dr. Walker's opinion. Therefore, she has
not come forward with sufficient evidence from which this Court may conclude that her
back injury primarily arose out of her employment, and she is not likely to prevail at a
hearing on the merits. Having reached this conclusion, the Court need not address her
request for temporary disability benefits.
3
IT IS, THEREFORE, ORDERED as follows:
1. The Court denies the requested relief at this time.
2. This matter is set for a Scheduling Hearing on November 5, 2018, at 2:15 p.m.
Central. You must call 615-532-9552 or toll-free at 866-943-0025 to participate
in the hearing. Failure to call may result in a determination of the issues without
your participation.
ENTERED September 4, 2018.
4
APPENDIX
Exhibits:
1. Affidavit of Linda Brown
2. Composite medical records
3. FROI
4. Choice of Physician form
5. Wage statement
6. Notice of Denial
7. Affidavit of Sheila Taylor
Technical record:
1. Petition for Benefit Determination
2. Employer's Pre-Mediation Statement
3. Dispute Certification Notice (with employer's additional issues)
4. Request for Expedited Hearing
5. Employer's Response to Request for Expedited Hearing
6. Employer's Motion to Quash
CERTIFICATE OF SERVICE
I certifY that a copy of the Expedited Hearing Order was sent to these recipients by
the following methods of service on September 4, 2018.
Name Certified Via Via Service sent to:
Mail Fax Email
Linda Brown, Employee X 6441 Paddington Way
Antioch TN 37013
Stephen Morton, X Steghen.morton@mgclaw.com;
Em_Qloyer's Attorney Amber.dennis@mgclaw.com
Pen~ Cl~::- -
Court ofW
1,
ers' Compensation Claims
WC.CourtClerk@tn.gov
5
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