Bryant, Stephanie v. Frito Lay, Inc. , 2018 TN WC 163 ( 2018 )

FILED
Oct 08, 2018
10:11 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION CLAIMS
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
STEPHANIE BRYANT, ) Docket No. 2018-05-0187
Employee, )
v. )
)
FRITO LAY, INC., ) State File No. 5177-2016
Employer, )
and )
)
AGRI GENERAL INS. CO., ) Judge Dale Tipps
Carrier. )
EXPEDITED HEARING ORDER DENYING REQUESTED BENEFITS
This matter came before the Court on October 2, 2018, for an Expedited Hearing
focusing on whether Ms. Bryant is entitled to additional medical or temporary disability
benefits. To receive these benefits, Ms. Bryant must be likely to establish at a hearing on
the merits that her need for additional treatment (surgery) arose primarily out of and in
the course and scope of her employment. For the reasons below, the Court holds Ms.
Bryant failed to meet this burden and is not entitled to the requested benefits at this time.
History of Claim
Ms. Bryant suffered a work injury on January 18, 2016. Frito Lay accepted the
injury as compensable and provided medical treatment for her complaints of neck and
shoulder pain. Her initial provider referred Ms. Bryant to an orthopedic specialist for her
shoulders.
Frito Lay provided an orthopedic panel, and Ms. Bryant selected Dr. Malcom
Baxter. Neither party submitted medical records from Dr. Baxter for this initial
treatment, but Ms. Bryant testified that she saw him for her shoulder complaints until he
referred her to a specialist for treatment of her neck pain.
Frito Lay provided a panel of neurosurgeons, and Ms. Bryant chose Dr. Arthur
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Ulm. PA Darice Spackman noted that Ms. Bryant had a neck injury in 1995 that led to
fusion surgery in 2000 and chronic neck pain since 2004, which was well managed. Ms.
Spackman recommended a referral to pain management. Frito Lay did not honor the
referral.
Rather, Ms. Bryant testified that Frito Lay wanted a second opinion and sent her a
new panel of neurosurgeons.1 This panel was defective, as one of the doctors refused to
see Ms. Bryant. Ms. Bryant was represented at the time, and her attorney began
negotiating this issue with Frito Lay’s counsel. Emails between the attorneys show that
the Frito Lay eventually provided a panel including Dr. Robert Weiss, Dr. George Lien,
and Dr. Graham Stahlman. Frito Lay’s attorney stated in one email that Dr. Stahlman
“has refused to treat Ms. Bryant, but is agreeable to evaluating her.” Ms. Bryant’s
attorney responded, “Without agreeing that this is a valid panel, we pick Dr. Robert
Weiss.”
Dr. Weiss examined Ms. Bryant and reviewed MRI scans from before and after
her January 2016 work injury. He felt that the pre-injury scans “show the same findings
in the imaging study performed after her work injury.” He concluded that her current
symptoms “may be mechanical in nature, sprain/strain or musculo-ligamentous, and
should be dealt with expectantly, with respect to her work-related injury. Any pathology
noted on her imaging studies, structural and anatomic, was present years before her work
injury.” Dr. Weiss did not feel Ms. Bryant was a surgical candidate, and he released her
at maximum medical improvement from a neurological standpoint. At a final follow-up
visit, he reiterated, “I do not see any issues that are current, that are neurosurgical and
related to this latest work injury.”
Ms. Bryant returned to Dr. Baxter for complaints of bilateral neck and shoulder
pain. Dr. Baxter ordered an MRI, which showed minimal shoulder problems and a
herniated cervical disc. He felt that most of Ms. Bryant’s pain was coming from her
neck, so he released her at maximum medical improvement for her shoulder complaints.
He also said, “She needs to follow someone about her neck and have her herniated discs
treated.”
Frito Lay denied Ms. Bryant’s request for another panel, so she began treating on
her own with Dr. Jason Hubbard. He noted her prior fusion at C4-5 and diagnosed severe
stenosis at C3, which was compressing the spinal cord. Dr. Hubbard performed a C3
corpectomy and a C2 to C4 fusion with an expandable cage. His records do not address
the cause of her stenosis or spinal cord compression.
Ms. Bryant requested that the Court order Frito Lay to designate Dr. Hubbard her
1
Frito Lay suggested it wanted a second opinion because Dr. Ulm would not provide a causation opinion,
but it presented no evidence to support this assertion.
2
authorized physician for further treatment. She contended that the neurosurgical panel
from which she selected Dr. Weiss was invalid because it only included two doctors who
were willing to provide treatment. Because of this, Ms. Bryan claimed that Frito Lay
should be ordered to pay for her unauthorized treatment.
Frito Lay countered that Ms. Bryant failed to meet her burden of proving that her
work injury caused the need for her unauthorized treatment. It also argued that its second
panel of neurosurgeons complied with the requirements of the Workers’ Compensation
Law. Further, Frito Lay contended that Ms. Bryant never notified it of her intent to treat
with Dr. Hubbard or asked Frito Lay to authorize that treatment. For these reasons, it
asked the Court to deny Ms. Bryant’s request.
Findings of Fact and Conclusions of Law
To prove a compensable injury, Ms. Bryant must show that her alleged injury
arose primarily out of and in the course and scope of her employment. To do so, she
must show, “to a reasonable degree of medical certainty that it contributed more than
fifty percent (50%) in causing the . . . disablement or 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).
Frito Lay does not dispute that an injury occurred. The question, therefore, is
whether Ms. Bryant appears likely to prove at a hearing on the merits that her work injury
primarily caused her need for Dr. Hubbard’s surgery. The Court cannot find at this time
that Ms. Bryant is likely to meet this burden.
The Court accepted several medical records into evidence, but Dr. Weiss was the
only physician to give a medical opinion addressing the cause of Ms. Bryant’s neck
condition. He stated that her neurosurgical issues were unrelated to her January 2016
work injury. Absent any other medical opinion, Ms. Bryant cannot prove “to a
reasonable degree of medical certainty” that her work contributed more than fifty percent
in causing the need for the neurosurgical treatment she received from Dr. Hubbard.
The Court recognizes Ms. Bryant’s frustration with the panel process that led her
to Dr. Weiss. However, even a finding that the panel was improper would not invalidate
Dr. Weiss’ opinion. Further, Dr. Weiss’ opinion precludes an order for a new panel at
this time. See Berdnik v. Fairfield Glade Community Club, 2017 TN Wrk. Comp. App.
Bd. LEXIS 32, at *16 (May 18, 2017)(medical benefits cannot be awarded by ignoring
the only expert medical proof in the record).
Because Ms. Bryant failed to establish a likelihood of proving that her need for
surgery arose primarily out of her work injury, the Court cannot find at this time that she
3
appears likely to prevail on a claim for additional medical or temporary disability
benefits.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. Bryant’s claim against Frito Lay and its workers’ compensation carrier for the
requested medical and temporary disability benefits is denied at this time.
2. This matter is set for a Scheduling Hearing on December 19, 2018, at 9:00 a.m.
You must call 615-741-2112 or toll-free at 855-874-0473 to participate. Failure to
call may result in a determination of the issues without your further
participation. All conferences are set using Central Time (CT).
ENTERED this the 8th day of October, 2018.
_____________________________________
Judge Dale Tipps
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Affidavit of Stephanie Bryant
2. X-ray image (I.D. only)
3. January 4, 2018 note from Dr. Jason Hubbard (I.D. only)
4. Disability appeal letter from Stephanie Bryant (I.D. only)
5. Numbered medical records submitted by Ms. Bryant
6. Additional medical records submitted by Ms. Bryant
7. Certified medical records of Dr. Robert Weiss
8. Wage Statement
9. C-30A Final Medical Report
10. C-42 Form and emails
11. Copy of PBD
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Parties’ Pre-Hearing Statements
4
CERTIFICATE OF SERVICE
I hereby 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 this the 8th day of
October, 2018.
Name Certified Fax Email Service sent to:
Mail
Stephanie Bryant X uniquelybusiness@yahoo.com
John R. Lewis, Esq. X john@johnlewisattorney.com
Employer Attorney
_____________________________________
Penny Shrum, Clerk of Court
Court of Workers’ 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