Burks, Helga v. Fred's, Inc. , 2018 TN WC 153 ( 2018 )

TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT MEMPHIS
HELGA BURKS, ) Docket No. 2016-08-0174
Employee, )
v. )
FRED'S, INC., ) State File No. 96881-2014
Employer, )
And )
SAFETY NATIONAL CAS. CORP., ) Judge Amber E. Luttrell
Carrier. )
EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS
The Court held an expedited hearing on August 30, 2018, on Ms. Burks' request
for medical and temporaiy disability benefits for a mental injmy. Fred's denied that her
mental injmy arose primarily out of her work injmy. For the reasons below, the Court
holds Ms. Burks came forward with sufficient evidence to prove she is likely to prevail in
her request for medical benefits.
History of Claim
Ms. Burks worked for Fred's as a pharmacy technician. On December 10, 2014, a
tall metal pallet fell on her, striking her head, right shoulder, and back. The parties
introduced video of the accident, which showed Ms. Burks after the impact, leaning
against a trash bin and holding her head. Minutes later, she collapsed to the floor, and two
coworkers helped her sit. She sat for a few minutes and then walked out of the
warehouse.
Fred's authorized medical treatment with BaptistOne Hospital emergency room,
Concentra, and Dr. Allen Nadel. Ms. Burks sought additional unauthorized treatment
from Delta Medical Center, St. Francis Hospital, Dr. Ushma Swamy, and Dr. Tejinder
Saini. The parties introduced the following medical proof.
Authorized treatment
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Fred's authorized treatment at the emergency room that day. She described right-
sided head pain, a headache, and dizziness. Ms. Burks' CT scan of her head indicated no
acute intracranial abnormality. The provider diagnosed a head injury and instructed Ms.
Burks to follow-up the next day with her primary care physician.
The next day, Ms. Burks selected Concentra from a panel of physicians and saw
Dr. John Goodfred. She reported losing consciousness from the injury, and complained of
a headache, dizziness, blun-ed vision, unsteady gait, and "not feeling like herself." Dr.
Goodfred noted soft-tissue swelling on the right side of her head. He diagnosed a scalp
contusion and post-concussion syndrome, and he restricted Ms. Burks from work.
Four days later, Ms. Burks, accompanied by her husband, Michael Walton,
returned to Concentra and saw Dr. Tracye Kyles. She complained of worsening vision,
dizziness, nausea, and vomiting. Her husband reported personality changes and stated she
mentioned suicide two days earlier. Dr. Kyles noted Ms. Burks was "very emotional
while talking," although she denied cUffent suicide ideation. Dr. Kyles instructed her to
go the emergency room due to her reported personality changes.
Ms. Burks returned to Concentra two more times. On her last visit, she saw Dr.
Goodfred and reported constant headaches, parasthesias, weakness, dizziness/vertigo, and
light sensitivity. She also complained of mood swings, short temper episodes, and
insomnia. Dr. Goodfred noted she was tearful with a flat affect and mood. She had
"difficulty forming sentences as she appear[ed] to not be able to find the con-ect words."
Dr. Goodfred refen-ed her to a neurologist "ASAP." He fmther instructed Ms. Burks to
follow up with her primary care physician to assess her "mood/personality disorder."
Based on Concentra's neurology refen-al, Fred's authorized an appointment with
Dr. Alan Nadel. Ms. Burks and her husband attended the appointment, along with a case
manager. Dr. Nadel noted complaints of headaches, neck pain, left shoulder pain, back
pain, generalized musculoskeletal pain, memory difficulty and depression as a result of
her work injury. He noted her history of injury, stating, "she was at work and a shelf fell,
striking her over the left shoulder." She gave a history that she was unconscious for an
unknown amount of time and then went to the emergency room. Dr. Nadel noted that Ms.
Burks was "disheveled" and stated,
She was wearing sunglasses and [was] very withdrawn in the office. She
really wouldn't give much history but tended to mumble. I got most of the
history from her husband, although she did give some information[.] ...
She continued to mumble and wouldn't talk clearly and this was evidently
"one of her problems."
Dr. Nadel watched the video. He noted that it showed the shelf fell over her right
shoulder and not her left. He stated,
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[S ]he did not fall to the ground and did not pass out at the immediate
moment. She stood by the garbage bin for about a minute while coworkers
were helping her and rubbing her neck. Then she just collapsed to the floor.
They helped her up and sat her down on a rolling cart. She was able to walk
with help and moved her legs quite well with the help of her co-workers.
By ten minutes into the video . . . she got up and walked around the room
fine. She had no evidence of any weakness.
After viewing the video, Dr. Nadel commented that, "[a]ll of this demonstrates a
considerable inconsistency about her alleged head injury with the fall and the subsequent
problems." He concluded,
I am not finding anything objective on this woman's exam and I really
think I am seeing a lot of malingering and embellishment. If anything, [the]
shelf hit her on the right shoulder and not the left and yet all of her
complaints are on the left. There was no loss of consciousness, although she
said she lost consciousness and doesn't remember going to the hospital.
Nevertheless, Dr. Nadel ordered an EMG/NCS of the left upper and lower extremities as
well as MRis of her cervical and lumbar spine. He also restricted Ms. Burks from work.
Dr. Nadel additionally documented that while he was out of the exam room, he
heard shouting and, "the patient evidently threatened the case manager for some
unknown reason." He stated Ms. Burks "then told me that she was depressed, has had
suicidal ideation and needed help." Dr. Nadel urged her to go to the emergency room. He
stated that he did not see any neurologic abnormalities. He advised she needed
psychiatric evaluation and when she was stable, she could return for other studies to be
sure there was no neurologic problem. Dr. Nadel stated Ms. Burks expressed no hostility
towards him or his staff; however, because of the incident with the case manager, he
declined to see her again or to respond to subsequent correspondence from Fred's
regarding Ms. Burks' treatment.
Fred's authorized no further treatment following Dr. Nadel's visit. On July 15,
2015, it filed a Notice of Controversy and ceased payment of temporary disability
benefits.
Unauthorized treatment
While Ms. Burks treated at Concentra and saw Dr. Nadel, she also sought
unauthorized treatment at Delta Medical Center on six occasions for her headaches,
vomiting, neck, back, and shoulder pain and symptoms of irritability. Ms. Burks testified
that she followed the doctors' instructions and went to Delta whenever her workers'
compensation physician insttucted her to follow up with a personal physician.
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After she left Dr. Nadel, Ms. Burks sought immediate emergency treatment at St.
Francis Hospital for depression with suicidal ideation and back pain, which she
associated with her work injury. The providers admitted her for five days of inpatient
treatment.
Upon discharge, Ms. Burks underwent therapy for depression and post-traumatic
stress disorder and was later refen-ed to Healthquest for outpatient therapy and medical
management. Ms. Burks began treatment with therapists and a psychiatrist, Dr. Tejinder
Saini, in March 2015 and continues under Dr. Saini's care. At the hearing, Ms. Burks
introduced a letter from Dr. Saini, who stated,
The patient has been treated at Healthquest since March 23, 2015, for a
diagnosis of Post Traumatic Stress Disorder. She was diagnosed with PTSD
as the result of trauma she sustained at work. Ms. Burks has no history of
psychiatric treatment or disorder prior to her on the job injury. As the result
of her injmy, she continues to experience severe emotional distress that has
required psychiatric hospitalization, intensive outpatient therapy, and
medication therapy.
Testimony
Ms. Burks denied severe headaches or psychological issues before her injury at
Fred's. She described immediate head and back pain and feeling sick to her stomach after
she was struck. She testified she could hear coworkers talking to her but could not
understand what they said. She stated she passed out and had difficulty recalling the
events afterwards. Ms. Burks did not remember driving herself to the emergency room
that day. She only recalled calling her husband from a convenience store close to her
home to pick her up because she was lost.
After the accident, Ms. Burks stated she began having "weird thoughts." She
continued experiencing headaches, began having nightmares, and displayed violent
outbursts toward her family. Ms. Burks expressed remorse for her outburst at Dr. Nadel's
office, but she stated she needed help and felt provoked by the case manager.
Ms. Burks stated her shoulder, back, and leg symptoms have resolved and require
no additional treatment. Dr. Saini' s treatment and medication helped. She no longer
suffers from vomiting, and her headaches are less severe. She no longer has suicidal
thoughts. On cross-examination, Fred's counsel questioned her about reporting that she
lost consciousness following the accident. She stated she still believed she did when she
"passed out."
Mr. Walton testified that, on the day of the injury, he picked her up from the
convenience store, and she looked confused and had a "big knot on her head." He learned
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of her emergency room visit from paperwork he found in her car. He stated she had no
memory of going to the hospital. Mr. Walton did not believe she was initially getting the
help she needed and was concerned about her violent behavior.
Mr. Walton testified consistently with his wife regarding the incident in Dr.
Nadel's office. He confirmed Ms. Burks improved under Dr. Saini's care.
Ms. Burks requested medical treatment for her mental injury with Dr. Saini and
temporary disability benefits. 1
Findings of Fact and Conclusions of Law
At an expedited hearing, Ms. Burks must present sufficient evidence that she is
likely to prevail at a hearing on the merits of her claim. McCord v. Advantage Human
Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Analysis
Fred's did not dispute that Ms. Burks sustained a work injury on December 10,
2014. It accepted Ms. Burks' claim for physical injuries and provided authorized
treatment until Dr. Nadel refused to continue to treat her. Based on Dr. Nadel's opinion
that he could not find any neurological abnormalities, Fred's argued it provided Ms.
Burks with all the benefits to which she was entitled. Regarding her mental injury, Fred's
disputed causation, contending Dr. Nadel did not specifically refer Ms. Burks for
psychiatric evaluation "under workers' compensation."
To establish causation, Ms. Burks must prove "to a reasonable degree of medical
certainty that [the injury] contributed more than fifty percent (50%) in causing the ...
need for medical treatment, considering all causes." Tenn. Code Ann. § 50-6-102(14)(B).
A "reasonable degree of medical certainty" means that "in the opinion of the physician, it
is more likely than not considering all causes, as opposed to speculation or possibility."
Tenn. Code Ann. § 50-6-102(14)(D). Thus, causation must be established by expert
medical testimony.
Here, Ms. Burks' testimony was uncontroverted that she had no psychiatric issues
before the metal pallet struck her head. After, she experienced severe headaches,
dizziness, personality/mood changes, and depression. Mr. Walton's testimony and,
1
At the close of evidence, Ms . Burks moved for a directed verdict contending Fred's had no proof to
refute her testimony. Fred's contended the medical records introduced into evidence refuted her claim. A
motion for directed verdict under Rule 50 of the Tennessee Rules of Civil Procedure applies only in jury
trials. As this is a non-jury interlocutory hearing where Ms . Burks has the burden of proving she is likely
to prevail at a hearing on the merits in establishing entitlement to benefits, the Court denies the motion .
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significantly, the medical records corroborate Ms. Burks' testimony regarding the onset
of her psychiatric symptoms. The Court notes within five days of the injury, Dr. Kyles
noted Mr. Walton's rep01t of Ms. Burks' "personality changes and mention of suicide
two days ago." Concentra's records consistently noted that Ms. Burks was "very
emotional while talking," "tearful ... in some pain," "experiencing mood swings and
short temper episodes," and demonstrated a "flat mood and affect-difficulty forming
sentences." Given her symptoms, Concentra eventually referred Ms. Burk's to Dr. Nadel.
Ms. Burks told Dr. Nadel that she was depressed, considering suicide, and needed
help. He instructed her to seek immediate emergency help and stated she needed a
psychiatric evaluation.
Fred's discounted Dr. Nadel's referral for a psychiatric evaluation because he did
not explicitly state in his record that the referral was under workers' compensation and
because he found nothing objective on exam and believed she was malingering. The
Court is not persuaded. First, Dr. Nadel's statements were noted in his record
immediately after his physical/neurological exam showed inconsistencies, and his review
of the video showed the pallet did not hit her left shoulder. He had not yet discussed Ms.
Burks' depression or recommended a psychiatric evaluation. Second, Dr. Nadel's
summary of the video differs from the Court's observations, in that he failed to mention
that the pallet first struck Ms. Burks' head. There was also no indication that he reviewed
her previous medical records that documented her consistent psychiatric complaints.
Finally, the Court finds Dr. Nadel never indicated Ms. Burks' psychiatric condition was
not related to her work injury. He believed she needed a psychiatric evaluation, and when
she was stable, he would perform studies to be sure there was not a neurologic problem.
Importantly, the only causation opinion in the record supports Ms. Burks' claim.
Dr. Saini concluded "[ s]he was diagnosed with PTSD as a result of a trauma she
sustained at work. Ms. Burks has no history of psychiatric treatment or disorder prior to
her on the job injury. As the result of her injury, she continues to experience severe
emotional distress[.]" Fred's presented no proof refuting causation for Ms. Burks' mental
lllJUry.
Based on the foregoing, the Court holds Ms. Burks came fo1ward with sufficient
evidence to demonstrate she is likely to prevail at trial in establishing entitlement to
medical benefits for her mental injury. Fred's argued that if the Court ordered medical
benefits, it should order Fred's to provide a panel of psychiatrists. However, Fred's
denied Ms. Burks' mental injury claim. She justifiably sought medical treatment on her
own, and it would be unfair to require her to change providers at this stage. Accordingly,
the Court holds Fred's shall provide Ms. Burks with reasonable and necessary medical
treatment for her mental injury and designates Dr. Saini as the authorized physician. See
Ducros v. Metro Roofing and Metal Supply Co., Inc., 2017 TN Wrk. Comp. App. Bd.
LEXIS 62, at* 11 (Oct. 17. 2017).
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Finally, the Court turns to Ms. Burks' request for temporary total disability (TTD)
benefits. After the hearing, the parties stipulated that Fred's paid $8,893.28 in TTD
benefits from December 18, 2014, through July 15, 2015. Ms. Burks requested TTD from
July 16, 2015, foiward for her mental injury.
To establish entitlement to temporary benefits, Ms. Burks must show she (1)
became disabled from working due to a work injury, (2) a causal connection between the
injury and her inability to work, and (3) the duration of the period of disability. Jones v.
Crencor Leasing and Sales, TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11, 2015).
The only medical proof regarding Ms. Burks' work status was Dr. Nadel's March 2, 2015
note restricting her from work. The Court holds Ms. Burks did not introduce sufficient
evidence to show a likelihood of prevailing in her request for additional TTD at this time.
IT IS, THEREFORE, ORDERED as follows :
1. Fred's, Inc., shall provide medical treatment for her mental injury as required by
Tennessee Code Annotated section 50-6-204. Dr. Saini shall be the authorized
treating physician.
2. This matter is set for a telephonic Status Hearing on October 16, 2018, at 10:00
a.m. Central Time. The parties must call toll-free at 855-543-5039 to participate
in the hearing.
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).
The Insurer or Self-Insured Employer must submit confirmation of compliance
with this Order to the Bureau by email 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 via email WCCompliance.Program@tn.gov.
ENTERED September 24, 2018.
/) ``i&d
~Amber E. Luttrell
......
Court of Workers' Compensation Claims
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APPENDIX
Exhibits
1. First Report of Injury
2. Wage Statement
3. Panel
4. Notice of Controversy
5. Medical records (collective)
6. Video footage of incident
Technical record
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Order Setting Case for Show Cause Hearing
4. Request for Expedited Hearing
5. Order Granting Additional Time Following Show Cause
6. Status Hearing Order and Order Setting Expedited Hearing
7. Joint Petition for Continuance of Expedited Hearing
8. Order Continuing Expedited Hearing
9. Order Resetting Expedited Hearing
10. Employer's Pre-Hearing Statement
11. Order Resetting Expedited Hearing and Order on Filing of Medical Records
12. Employee's Response to the Filing of Medical Records
13. Employee's witness list
14. Employee's Position Statement
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this Order was sent to the following
recipients by the following methods of service on September 24, 2018.
Name Email
Ski Carnell, Em loyee' s Attome x
James H. Tucker, Jr., Employer's Attorney x
rum, Court Clerk
Court o Workers' Compensation Claims
WC.CourtClerk@tn.gov
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