Neal, Wendy v. Moore Construction Co. Inc. ( 2019 )

FILED
Feb 08, 2019
02:07 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
WENDY NEAL, )
Employee, ) Docket No. 2017-06-1025
)
v. )
)
MOORE CONSTRUCTION CO., ) State File No. 36505-2017
INC., )
Employer, )
)
and ) Judge Joshua Davis Baker
BRENTWOOD SERVICES, )
Carrier. )
EXPEDITED HEARING ORDER
The Court convened an expedited hearing on February 7, 2019, to consider
whether Moore Construction Company should be required to provide Ms. Neal additional
medical treatment for her neck. For the reasons below, the Court holds it is not obligated
to do so.
Claim History
Ms. Neal worked for Moore Construction as an assistant to its vice-president,
Ronnie Moore. Her duties included caring for Mr. Moore’s teenaged, special-needs
daughter. On May 4, 2017, his daughter “slammed [Ms. Neal] into a wall and to the
floor” and bit her scalp. In her testimony, Ms. Neal described feeling a pop and an
immediate, radiating burn from her neck down her right arm.
Moore Construction did not initially provide medical treatment, so Ms. Neal
visited a chiropractor she saw intermittently for migraines and neck pain. When she saw
the chiropractor six weeks before the assault, she complained of “1/10” neck pain. In her
post-accident visit, the provider noted radiating neck pain “8/10” compared with “pre-
accident status 1/10, but no radiation.”
After Moore Construction agreed to provide medical treatment, Ms. Neal chose
neurosurgeon Dr. Douglas Mathews from a panel, and he recorded his causation opinion
in her initial visit. Both parties relied on it at the hearing, as he identified the cause of her
condition as “the combination of the trauma and the preexisting injury.” But as for
apportionment, Dr. Mathews wrote, “[A]t least 60% of her current issues are [the] result
of degenerative changes that occurred before her trauma.” He believed these
degenerative changes were “quiescent” before the injury but became “apparent as a result
of this traumatic injury.”
Dr. Mathews provided a more detailed opinion by answering a “yes/no” letter
from defense counsel. By checking “no,” the doctor confirmed that Ms. Neal’s
employment did not contribute more than fifty percent to her present condition, when
considering all causes. However, as Ms. Neal’s counsel succinctly pointed out in closing,
Dr. Mathews has not addressed whether the incident caused a compensable aggravation
of Ms. Neal’s preexisting condition.
Findings of Fact and Conclusions of Law
To prevail at an expedited hearing, Ms. Neal must provide sufficient evidence to
show that she would likely prevail at a hearing on the merits. See Tenn. Code Ann. § 50-
6-239(d)(1) (2018). She failed to do so.
In Workers’ Compensation Law, the definition of “injury” does not include “the
aggravation of a preexisting disease, condition or ailment unless it can be shown to a
reasonable degree of medical certainty that the aggravation arose primarily out of and in
the course and scope of employment.” Tenn. Code Ann. §50-6-102(14)(A) (2018).
Further, the causation opinion of an authorized treating physician “shall be presumed
correct . . . but this presumption shall be rebuttable by a preponderance of the evidence.”
Tenn. Code Ann. § 50-6-102 (14)(E).
Dr. Mathews identified a preexisting condition, and he excluded Ms. Neal’s work
injury as the primary cause of her present condition. Yet Ms. Neal’s testimony and
medical records support that she has more severe, radiating pain since the accident. So,
the unanswered question is whether an aggravation of her preexisting condition arose
primarily out her employment. Judges are not well-suited to make independent medical
determinations without expert medical testimony. Scott v. Integrity Staffing Solutions,
2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *8. Similarly, the parties cannot rely solely
on their own medical interpretations to successfully support their arguments. Lurz v. Int’l
Paper Co., 2018 TN Wrk. Comp. App. Bd. LEXIS 8, at *17 (Feb. 14, 2018).
Consequently, the unanswered question is one the Court and the parties are incapable of
determining without further expert medical evidence.
2
The Court finds that Dr. Mathews’s opinion is entitled to a presumption of
correctness and that Ms. Neal did not rebut that presumption. Further, Ms. Neal did not
present medical evidence from which this Court can determine that she is likely to prove
her work injury aggravated her preexisting condition. While Moore Construction argued
non-compensability, the Court declines to blindly traverse the causation landscape when
more complete medical proof would unveil a panorama. The Court, therefore, finds
Moore Construction’s argument unpersuasive. However, Ms. Neal has not presented
sufficient proof, at this time, to demonstrate entitlement to further medical treatment, so
her claim for medical benefits is denied.
It is ORDERED as follows:
1. Ms. Neal’s requested relief is denied at this time.
2. This matter is set for a status conference on Monday, April 29, 2019, at 9:30 a.m.
(CDT). You must call 615-741-2113 to participate in the Hearing. Failure to
call may result in a determination of issues without your participation.
ENTERED FEBRUARY 8, 2019.
_____________________________________
Joshua Davis Baker, Judge
Court of Workers’ Compensation Claims
3
APPENDIX
Exhibits:
1. Medical Records
2. Affidavit of Wendy Neal
3. Dr. Douglas Mathews’s April 25, 2018 Report
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Ms. Neal’s Prehearing Statement
5. Moore Construction’s Prehearing Statement
4
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Order was sent to the following
recipients by the following methods of service on February 8, 2019.
Name Certified Via Via Service sent to:
Mail Fax Email
William Poland, X whpoland@clarksvillelawyers.com
Employee’s Attorney rebecca@clarksvillelawyers.com
Duane Willis, X dwillis@morganakins.com;
Employer’s Attorney plunny@morganakins.com
_____________________________________
Penny Shrum, Clerk
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.
.
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