Brown, Linda v. Nissan North America , 2018 TN WC 138 ( 2018 )

FILED
Sep 04, 2018
08:34 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT NASHVILLE
Linda Brown, ) Docket No. 2018-06-0222
Employee, )
v. )
Nissan North America, ) State File No. 94104-2016
Employer, )
And )
Safety Nat'l Cas. Corp., ) Judge Kenneth M. Switzer
Carrier. )
EXPEDITED HEARING ORDER DENYING REQUESTED RELIEF
Linda Brown filed a Request for Expedited Hearing seeking medical and
temporary disability benefits, which the Court heard on August 29, 2018. 1 The present
focus of this case is whether Ms. Brown suffered an injury arising primarily out of and in
the course and scope of her employment with Nissan North America. A medical opinion
is necessary to answer this question. Because no medical expert gave that opinion, at this
time the Court denies her requests?
History of Claim
On Friday, December 2, 2016, while assigned to the afternoon shift, Ms. Brown
worked on the battery pack assembly line at Nissan loading rear stacks. The task
involved repeated overhead pulling. While pulling down a pack, she felt sudden pain on
1
Permanent partial disability benefits is also checked as an issue on the Dispute Certification Notice.
This issue will be heard at the final compensation hearing.
2
Ms. Brown additionally filed a Petition for Benefit Determination (Docket No. 2018-06-0221) regarding
alleged injuries to her low back suffered on February 17, 2017. Both parties filed multiple documents
using both docket numbers. The Court did not consolidate these cases because they involved different
questions of fact and allegations of injuries to different body parts on different days. See Seals v.
England/Corsair Upholstery Mfg. Co., 984 S.W.2d 912, 916 (Tenn. 1999). However, for the parties'
convenience, the Court heard both cases on the same day. Further, for ease of reference, the Court
combined all admissible medical records into one exhibit (Exhibit 2) for both cases.
the right side of her neck and shoulder. Ms. Brown did not tell a supervisor about the
incident because they were on a "skeleton crew," and no one was available. Since her
shift was almost over, Ms. Brown thought the pain would resolve with rest over the
weekend.
On Sunday, while eating dinner, Ms. Brown felt sudden numbness in her right
side, shoulder and arm. Believing she might be suffering a heart attack or stroke, she
went to the Summit Medical Center emergency room. A CT scan of the cervical spine
revealed "(s]evere multilevel degenerative changes." The history states:
Neck pain with right shoulder & arm numbness that keeps recurring, worse
while shopping today, became bad yesterday. Works at Nissan, laboring
with arms above her head alot [sic]. Has a long history of milder
intermittent LEFT sided symptoms, neck to arm: but has not had right side
symptoms, nor symptoms this bad.
(Emphasis in original.) Summit providers assigned restrictions and discharged Ms.
Brown. At the hearing, Ms. Brown disputed that her sudden numbness occurred while
shopping.
The following day, Ms. Brown returned to work and gave the restrictions to her
supervisor. Nissan offered a panel. She chose the onsite provider, Premise Health.
At her first visit on December 5, she saw nurse practitioner Carley McCloskey.
Ms. McCloskey noted a longer history of neck and right-shoulder pain as well as Ms.
Brown's use of over-the-counter medications. Ms. Brown explained at the hearing that
she took the medications for aches and pains for conditions including plantar fasciitis and
bone spurs. 3 Ms. McCloskey concluded that the injury was "unlikely work-related due to
findings on CT."
The next day, Dr. Gilbert Woodall at Premise assessed the cause of Ms. Brown's
ailments as "primarily idiopathic." At a follow-up on December 13, Dr. Woodall noted
she "obtained CT at ER showing multiple level degenerative changes to account for her
current symptoms." Nissan denied the claim based on Dr. Woodall's opinion.
Ms. Brown's pain in her neck and shoulders persisted, so she sought treatment on
her own at Tennessee Orthopedic Alliance. At her first visit on March 6, 2017, physician
assistant Michael Gaston concluded, "I think the disc degeneration is chronic, but I think
3
On cross-examination, Nissan identified other instances in the medical records where providers noted
that Ms. Brown said she experienced pain before the alleged date of injury. With every instance, Ms.
Brown gave a similar explanation: she suffered minor aches and pains due to the physical nature of her
job. The Court declines to recount every discrepancy between the records and her testimony on this point
because she offered plausible explanations.
2
the radicular pain down the right arm with the numbness did indeed happen due to a work
injury and I would classify this as a Work Comp case[.]" He diagnosed degenerative
cervical disc, radiculopathy of the cervical region, and impingement syndrome of the
right and left shoulders. Ms. Brown underwent several months of conservative care with
Mr. Gaston, Dr. Juris Shibyama and Dr. Robert Greenberg. Dr. Greenberg diagnosed
osteoarthritis in both shoulders, "left greater than right."
Ms. Brown obtained a second opinion on her shoulders at Vanderbilt. Dr. Jaron
Sullivan diagnosed bilateral end-stage shoulder osteoarthritis. She also saw Dr. N. K.
Singh, who diagnosed degenerative disc disease, cervical spine and cervical radiculitis.
At a September 7 follow-up with Dr. Sullivan, he noted that her shoulder osteoarthritis is
"exacerbated by her job."
Ultimately, Ms. Brown came under the unauthorized care of Dr. Margaret
MacGregor. The April 6, 2018 notes from her first visit provide a similar history of the
December 2, 2016 injury that Ms. Brown offered at trial. Dr. MacGregor noted "work
accident, while lifting a heavy object." She concluded that Ms. Brown failed
conservative treatment and recommended an anterior cervical decompression and fusion.
Dr. MacGregor performed the procedure in April 2018 and listed her final diagnoses as
cervical radiculopathy, spondylosis and myelopathy; back and neck pain; and
osteoarthritis.
Ms. Brown, who represents herself, sent Dr. MacGregor a letter seeking
clarification of her opinion on causation. The letter quotes Tennessee Code Annotated
section 50-6-102(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.
Ms. Brown testified she has been off work receiving short-term and long-term
disability benefits. Shortly after her disability benefits began, Nissan terminated her.
Ms. Brown 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. 4
Nissan countered that she did not suffer an injury in the course and scope of
employment. It questioned whether her need for treatment was due to a preexisting
condition, or alternatively occurred while shopping. Nissan also argued that the
authorized treating physician, Dr. Woodall, concluded the alleged neck and shoulder
4
Ms. Brown testified that she loved her job at Nissan and wants to return to work once she heals. The
Court infers that she additionally sought an order that Nissan reinstate her employment. However, this
Court's jurisdiction is limited only to workers' compensation. See Tenn. Code Ann.§ 50-6-238(a)(3).
3
injury was not primarily work-related. His opinion is presumed correct, and none of the
physicians Ms. Brown saw afterward rebutted 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 prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-
239(d)(1) (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." For an injury to be accidental, it must be
"caused by a specific incident, or set of incidents, arising primarily out of and in the
course and scope of employment, and (be J identifiable by time and place of
occurrence[.]" See Tenn. Code Ann. § 50-6-1 02( 14 ). An injury occurs in the course of
employment if it takes place while the employee was performing a duty he or she was
employed to perform. Hosford v. Red Rover Preschool, 2014 TN Wrk. Comp. App. Bd.
LEXIS 1, at *19-20 (Oct. 2, 2014). The "course of employment" requirement focuses on
the time, place; and circumstances of the injury. !d. at 20. In contrast, an injury "arises
out of employment" when there is a causal connection between the conditions under
which the work is required to be performed and the resulting injury. !d.
Here, Nissan argued that Ms. Brown did not suffer an injury arising out of and in
the course and scope of her employment. It relied on the Summit notes that state the
injury occurred "while shopping" and other references in the records stating her onset of
pain was months before the alleged date of injury. Nissan further pointed out that Ms.
Brown did not report an injury on December 2.
The Court is unpersuaded. Ms. Brown testified she felt the sudden onset of pain in
her neck and right shoulder on December 2 while pulling down on a battery pack near the
completion of her afternoon shift. The Court observed Ms. Brown's demeanor and finds
her credible. She appeared calm, at ease, self-assured, steady, confident, forthcoming,
reasonable . and honest, which are indicia of witness credibility. See Kelly v. Kelly, 445
S.W.3d 685, 694-695 (Tenn. 2014). Moreover, Ms. Brown never wavered in her
description of the mechanism of injury even under rigorous cross-examination.
Ms. Brown offered sufficient detail regarding how she suffered injury as well as
the date and approximate time. Further, her testimony mirrors the history of injury she
gave to Dr. MacGregor. She adequately described an injury caused by heavy overhead
pulling while operating Nissan's machinery. As noted previously, the Court finds it
entirely plausible that Ms. Brown suffered minor aches and pains before December 2,
given the physicality of her job. Moreover, the Court accepts her testimony that she did
4
not tell providers at Summit that she went shopping on December 3. Likewise, Ms.
Brown offered a satisfactory explanation for waiting to report the injury. She worked a
"skeleton crew," and her workday was nearly over. Thus, the Court holds Ms. Brown is
likely to prevail at a hearing on the merits that she suffered an injury arising in the course
and scope of her employment.
This does not end the analysis. The Workers' Compensation Law also requires
that, for the Court to find Ms. Brown suffered a compensable injury, 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.
Woodall, concluded that Ms. Brown's injury is not work-related. Specifically, he
characterized her neck pain as "primarily idiopathic" and noted the CT scan showed
"multiple level degenerative changes to account for her current symptoms." Dr.
Woodall's opinion is unambiguous. While he did not·use the precise wording of the
statutory definition of a compensable injury to conclude that Ms. Brown's neck injury
was not primarily work-related, he does not need to do so. See Panzarella v.
Amazon.com, Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 30, at *13-15 (May 15, 2017)
(a physician may gave an opinion that meets the legal standard provided in section 50-6-
102( 14) without stating the opinion in a "rigid recitation of the statutory definition.").
In contrast, none of the unauthorized providers offered causation opinions that
satisfy the legal standard set forth in Tennessee Code Annotated section 50-6-102(14).
Physician assistant Michael Gaston concluded that Ms. Brown's "radicular pain down the
right arm with the numbness did indeed happen due to a work injury and I would classify
this as a Work Comp case[.]" However, a physician assistant is not qualified to offer an
opinion on causation. See Dorsey v. Amazon.com, Inc., 2015 TN Wrk. Comp. App. Bd.
LEXIS 13, *9-10 (May 14, 2015) ("The opinion of the nurse practitioner ... did not and
could not provide a valid basis for denial of the claim based on causation."). Further, the
Court acknowledges that Dr. MacGregor wrote an initial evaluation that Ms. Brown
suffered a "work accident, while lifting heavy object." This notation is not clearly a
statement of opinion. Dr. MacGregor's responses to Ms. Brown's causation letter imply
that she 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 rebut the presumption of correctness the statute affords to Dr. Woodall's
optmon. Therefore, Ms. Brown has not presented sufficient evidence from which this
5
Court may conclude that she is likely to prevail at a hearing on the merits. In light of this
conclusion, the Court need not address the request for temporary disability benefits.
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.
6
APPENDIX
Exhibits:
1. Affidavit of Linda Brown
2. Composite medical records
3. First Report of Injury
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, X 6441 Paddington Way
Employee Antioch TN 37013
Stephen Morton, X Ste:Qhen.morton@mgclaw.com;
Employer's Attorney Amber.dennis@mgclaw.com
~Uk-- ~
Pe n~'m, Clerk of Court
Court of ~ orkers' Compensation Claims
WC.CourtClerk@tn.gov
7
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