Britton, Oliver v. Milano Riverdale, LLC ( 2021 )

FILED
Aug 06, 2021
01:08 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
OLIVER BRITTON, ) Docket No. 2020-08-0551
Employee, )
v. )
MILANO RIVERDALE, LLC, ) State File No. 72501-2018
Employer, )
and )
STATE FARM FIRE & CASUALTY ) Judge Amber E. Luttrell
CO., )
Carrier.
EXPEDITED HEARING ORDER DENYING BENEFITS
The Court held an Expedited Hearing on August 5, 2021, on Mr. Britton’s request
for medical and temporary disability benefits. The issue is whether Mr. Britton is likely to
prevail at trial in proving medical causation for his low-back condition. For the reasons
below, the Court holds Mr. Britton is not and denies his request for medical and temporary
disability benefits at this time.
History of Claim
Mr. Britton worked for Milano as a sales associate. On September 12, 2018, he
alleged a low back injury from lifting boxes. He reported the injury, and Milano authorized
treatment at an occupational medical clinic.
Mr. Britton saw a physician and reported a lifting injury where he felt a “pop” in his
low back. He complained of back pain with decreased motion but no numbness. The
provider diagnosed lumbosacral back pain with sciatica and treated him conservatively.
Two months later, Mr. Britton returned for follow-up and reported ongoing
moderate to severe left low-back pain with radiating pain into his left leg. The physician
ordered an MRI and referred him to an orthopedic spine specialist.
1
Mr. Britton next saw Dr. Stephen Waggoner, an orthopedic spine surgeon. Dr.
Waggoner reviewed the MRI and noted it showed mild spinal stenosis at L4-5 with no
evidence of disc herniation or significant nerve root impingement. Dr. Waggoner
recommended conservative treatment including an epidural steroid injection and therapy.
Mr. Britton testified he did not like Dr. Waggoner’s “bedside manner” and followed
up with his colleague, Dr. Jonathan Stuart. Dr. Stuart diagnosed lumbar radiculopathy and
also recommended an injection, which Mr. Britton declined at that time.
The records suggest that Mr. Britton had no further visits with Drs. Waggoner or
Stuart. In a note dated June 7, 2019, Dr. Waggoner discharged Mr. Britton at maximum
medical improvement for his back pain.1
In its defense, Milano introduced a medical record from Dr. Leonard Hayden
concerning treatment Mr. Britton received after a motor vehicle accident on January 22,
2018, approximately eight months before his work injury. According to the record, Mr.
Britton reported he was a restrained driver of a car traveling on the interstate when he was
struck on the front driver’s side by an 18-wheeler. Mr. Britton underwent conservative
treatment for strains to his neck and back.
Milano sent Dr. Waggoner a letter about the cause of Mr. Britton’s back complaints.
Dr. Waggoner responded that Mr. Britton’s complaints were “primarily related to
preexisting conditions and/or the 1/22/18 MVA.”
During his testimony, Mr. Britton denied any injury to his low back from his motor
vehicle accident. He stated his injuries were to his upper shoulder area, arm, and right leg.
Findings of Fact and Conclusions of Law
To obtain further medical treatment, Mr. Britton must show that he is likely to
prevail at a hearing on the merits that his low-back condition and need for treatment
primarily arose out of his work-injury. Tenn. Code Ann. § 50-6-239(d)(1) (2020); § 50-6-
102(14). Based on Dr. Waggoner’s opinion, the Court holds that he has not met this burden.
Dr. Waggoner stated that Mr. Britton’s complaints are primarily related to
preexisting conditions and/or his January 22, 2018 motor vehicle accident. While Mr.
Britton disagrees with Dr. Waggoner, he did not introduce a causation opinion to counter
Dr. Waggoner’s opinion.
1
Mr. Britton testified regarding a dispute with Milano regarding the circumstances of how his treatment
ended with Drs. Waggoner and Stuart. Mr. Britton was adamant he never cancelled an appointment or
walked out of the office before seeing a physician. The Court finds this testimony is not relevant to the sole
issue before the Court at this time – medical causation.
2
The Workers’ Compensation Appeals Board has explained an employee’s burden
to produce medical proof. It held that, where an employer has presented expert medical
proof that his condition is not work-related, the employee must present expert medical
proof that the alleged injury is causally related to the employment when the case is not
“obvious, simple [or] routine.” Berdnik v. Fairfield Glade Cmty. Club, 2017 TN Wrk.
Comp. App. Bd. LEXIS 32, at *10 (May 18, 2017) (internal citations omitted). While lay
testimony may be probative on the issue of causation, it is insufficient to meet an
employee’s burden of proof in the absence of medical evidence. Id.
In this case, without medical proof that Mr. Britton’s current need for treatment
primarily arose out of his work injury, the Court cannot find that he is likely to prevail at a
hearing on the merits in his request for medical treatment or temporary disability benefits.
Therefore, the Court denies his request at this time.
IT IS ORDERED.
ENTERED August 6, 2021.
_____________________________________
JUDGE AMBER E. LUTTRELL
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Dr. Waggoner’s Medical Questionaire
2. First Report of Injury
3. Promedica Clinic records
4. OrthoSouth records
5. Concentra Medical Center records
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Motion to Dismiss
4. Notice of Hearing
5. Order Setting Hearing on Motion to Dismiss
6. Order Setting Show Cause Hearing
7. Request for Expedited Hearing
8. Order on Motion to Dismiss and Following Show Cause Hearing
3
9. Motion to Compel
10. Order Confirming Parties’ Resolution of Discovery Dispute
11. Status Order and Order Setting Expedited Hearing
12. Employer’s Pre-Hearing Brief
13. Employer’s Exhibit List
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on August 6, 2021.
Name USPS Via Service sent to:
Email
Oliver Britton, Employee X X 2283 Pratt St.,
Memphis, TN 38106
brittonoliver78@gmail.com
Allen Callison, Employer’s X allen.callison@mgclaw.com
Attorney kelcye.nichol@mgclaw.com
_____________________________________
Penny Shrum, Clerk of Court
Court of Workers’ Compensation Claims
4
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: “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.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________
Employer
Notice is given that ____________________________________________________________________
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ Other Order filed on_____________________
issued by Judge _________________________________________________________________________.
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
Parties
Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee
Address: ________________________________________________________ Phone: ___________________
Email: __________________________________________________________
Attorney’s Name: ______________________________________________ BPR#: _______________________
Attorney’s Email: ______________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________
Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee
Appellee’s Address: ______________________________________________ Phone: ____________________
Email: _________________________________________________________
Attorney’s Name: _____________________________________________ BPR#: ________________________
Attorney’s Email: _____________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, _____________________________________________________________, certify that I have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the __________ day of ___________________________________, 20 ____.
______________________________________________
[Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082