Hunt, Alice v. Kroger , 2018 TN WC 62 ( 2018 )

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TENNESSEE BUREAU OF WORKERS' COMPENSATION CLAIMS
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT COOKEVILLE
ALICE HUNT, ) Docket No. 2017-05-0720
Employee, )
v. ) State File No. 50419-2017
)
KROGER, ) Judge Robert Durham
Employer. )
EXPEDITED HEARING ORDER DENYING BENEFITS
The Court conducted an expedited hearing on April 26 to determine whether
complications arising from Ms. Hunt's diabetes and hypertension causally relate to her
work for Kroger on May 10, 2017. The Court holds Ms. Hunt did not provide sufficient
evidence to establish she is likely to prove at trial that these complications arose primarily
out of and in the course of her employment. Thus, her request for benefits is denied.
History of Claim
Ms. Hunt, age sixty-two, has suffered from insulin-dependent diabetes,
hypertension, and congestive heart failure for several years. Because of diabetes, she also
suffered from peripheral neuropathy so severe that she complained to her doctor in 2014
that she couldn't feel her toes on her right foot.
In 2016, Ms. Hunt began working part-time for Kroger as a "courtesy clerk." Her
duties included bagging groceries, taking them to the customer's vehicle if necessary, and
periodically bringing in buggies from the parking lot. In December 2016, Ms. Hunt
asserted a workers' compensation claim, stating she broke her fourth toe on her foot
when she ran over it with a shopping cart. Shortly afterward, she filed a complaint
against her supervisor, Lisa Stovall, alleging harassment in retaliation for the claim.
While treating her toe, Ms. Hunt's authorized provider restricted her from
gathering buggies from the parking lot. In April 2017, Ms. Stovall learned the doctor
removed Ms. Hunt's restrictions and required her to resume full duties.
1
While at work on April 17, Ms. Hunt experienced an episode of extremely high
blood pressure. A Kroger pharmacy tech became so concerned that he drove Ms. Hunt to
the hospital, where she received treatment to bring her blood pressure down to safe
levels. That same day, Ms. Hunt called the office of Dr. Matthew Murphey, a podiatrist
authorized to treat her foot injury, because she was concerned that the medication for her
foot caused her high blood pressure. Dr. Murphey advised against taking Mobic but also
noted that her blood pressure "could still be high if she's moving carts and her foot is still
hurting." 1
On April26, Ms. Hunt again called Dr. Murphey's office. She stated she stopped
taking the medication but her blood pressure remained high. On the same day, Ms. Hunt
also contacted her personal physician, Dr. Thomas Smith, and requested a note relieving
her of buggy duties. Dr. Smith wrote a note stating, 'This patient's diabetic feet prevent
her from outside heavy labor such as shopping cart manipulation." Ms. Hunt delivered
the note to Kroger management; however, she testified that it's management informed
her that it would not accept work restrictions unless they were from authorized
physicians.
On the afternoon of May 10, Ms. Stovall asked Ms. Hunt to retrieve buggies. Ms.
Stovall testified that she initially went to the parking lot with her, but Ms. Hunt disputed
this contention. Both testified it was warm outside, but Ms. Stovall stated it was not
unusually hot for May. In any event, at some point, Ms. Hunt was the only Kroger
employee in the lot. While working, she lost consciousness and fell to the pavement.
Ms. Hunt did not identify any hazards in the lot that caused her to fall, nor did she state
she struck anything when she passed out.
A customer called emergency services, who took Ms. Hunt to the hospital after
she regained consciousness. The emergency room note stated Ms. Hunt reported feeling
lightheaded while pushing a string of shopping carts and the next thing she remembered
was waking up on the ground. She denied a history of similar events. Ms. Hunt's blood
pressure was elevated to 240/120. The hospital made "multiple attempts" to get her blood
pressure under 200 without success. The hospital admitted Ms. Hunt for uncontrolled
hypertension following a "syncopal episode." Ms. Hunt stayed in the hospital until May
12 while her medication was adjusted to control her hypertension.
Ms. Hunt did not return to work for Kroger. She testified that she did not feel she
could perform her duties given her health.
1
The toe injury was not part of this request for benefits. Dr. Murphey ultimately determined that Ms.
Hunt's fracture completely healed and any pain she felt was due to peripheral neuropathy unrelated to the
injury.
2
In October, Ms. Hunt sought treatment for a detached retina. She informed the
ophthalmologist that she fell in May and her vision declined since that time. The
ophthalmologist diagnosed her with "proliferative diabetic retinopathy with traditional
retinal detachment." He also indicated the condition was "likely chronic given [patient's]
time line."
In January 2018, Ms. Hunt was hospitalized for a week and ultimately underwent
surgery on her left foot due to a diabetic, left-foot ulceration with abscess. According to
the discharge diagnosis, Ms. Hunt suffered from MRSA and diabetes mellitus. Ms. Hunt
asserted the ulceration was due to turning her left ankle when she passed out at Kroger.
Ms. Hunt asserted her syncopal episode and uncontrolled hypertension in May
2017 were primarily caused by the stress and strain of pushing shopping carts in hot
weather. She also asserted her inability to return to work at Kroger, her retinal
detachment, and the left-foot ulceration all stemmed from the May 2017 incident. Kroger
contested these assertions and argued Ms. Hunt did not provide any medical opinions to
support her contentions. 2
Findings of Fact and Conclusions of Law
Ms. Hunt need not prove every element of her claim by a preponderance of the
evidence to obtain relief at an expedited hearing. Instead, she must present sufficient
evidence that she is likely to prevail at a hearing on the merits. See Tenn. Code Ann. §
50-6-239(d)(l) (2017); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Camp.
App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Thus, the question is whether Ms. Hunt established she is likely to prevail in
proving that her health problems arose primarily from pushing shopping carts in the
Kroger parking lot in May 2017. !d. The Court holds she did not.
In order to establish causation, Ms. Hunt must prove "to a reasonable degree of
medical certainty that [the injury] contributed more than fifty percent (50%) in causing
the death, disablement or need for medical treatment, considering all causes." Tenn.
Code Ann. § 50-6-1 02(14 )(C) (20 17). The term "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, and it must be more
than "speculation or possibility" on the part of the doctor. !d.
2
Ms. Hunt attempted to introduce several pages of medical bills as exhibits. Kroger objected due to lack
of foundation as to the reasonableness and necessity of the expenses. The Court sustained the objection
and made the bills exhibits for identification only.
3
Here, no medical evidence establishes a connection between Ms. Hunt's work
activity and her syncopal episode. The only possibilities are Dr. Murphey's note in April
that indicated pushing shopping carts in combination with foot pain "could" cause
elevated blood pressure and Dr. Smith's April 26 note restricting Ms. Hunt from
manipulating shopping carts due to her "diabetic feet." However, the Court cannot hold
that this slight evidence is sufficient to establish that Ms. Hunt is likely to prevail at a
hearing on the merits regarding causation. Ms. Hunt's claims regarding temporary
disability, retinal detachment, and her foot ulceration are even more tenuous, especially
given her documented history of diabetes and uncontrolled hypertension.
The Court further holds that Ms. Hunt's evidence is insufficient to establish she is
likely to prevail at trial even with regard to the provision of a panel of physicians. See
Tenn. Code Ann. § 50-6-204. Medical evidence is generally required in order to
establish a causal relationship, "[ e]xcept in the most obvious, simple and routine cases."
Cloyd v. Hartco Flooring Co., 274 S.W.3d 638, 643 (Tenn. 2008). In Ms. Hunt's case, a
number of physicians treated her after her syncopal episode in May 20 17. She did not
provide an opinion from any of them supporting her position regarding causation. At this
point, Ms. Hunt only offered speculation and conjecture as to the cause of her numerous
symptoms, which cannot serve as justification for the provision of benefits. See Shelton
v. Torrington Co., No. 01501-9704-CV-00092, 1998 Tenn. LEXIS 107995, at *10 (Tenn.
Workers' Comp. Panel Mar. 13, 1998) (citing Reeser v. Yellow Freight, 938 S.W.2d 690,
692 (Tenn. 1997)).
IT IS, THEREFORE, ORDERED that:
1. Ms. Hunt's request for workers' compensation benefits is denied at this time.
2. This matter is set for a Scheduling Hearing/Status Conference on June 14, 2018, at
2:00 p. m. Central Time. The parties must call 615-253-0010 or toll-free at 866-
689-9049 to participate in the hearing. Failure to call in may result in a
determination of the issues without the party's participation.
ENTERED MAY 3, 2018.
.DURHAM, GE
Court of Workers' Compensation Claims
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APPENDIX
Exhibits:
1. Wage statement
2. Dr. Murphey's medical records
3. Job description
4. Additional medical records
5. Note from Dr. Smith
6. Police incident report
7. Medical bills (for I.D.)
8. Records from Southern Tennessee Regional Medical Center
9. Medical bills (for I.D.)
10. Doctor's excuse
11. Hospital E.R. records
12. Vanderbilt University Medical Center records
13. Medical bills (for I.D.)
14. Work Status Notes
15. Medical records regarding hospitalization for ulceration
16. Photos of ulceration
17. Medical bills (for I.D.)
18. Ms. Hunt's affidavit
19. Subpoena for surveillance tape
20. Medical records submitted by Kroger
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Order of Continuance
5. Amended Notice of Expedited Hearing
6. Kroger's Response to Expedited Hearing
7. Kroger's Witness and Exhibit List
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CERTIFICATE OF SERVICE
I certify that a true and correct copy of the Expedited Hearing Order Denying
Benefits was sent to the following recipients by the following methods of service on May
3, 2018.
Name Certified Fax Email Service sent to:
Mail
Alice Hunt, X X 401 N. Bratton Street
Self-Represented Decherd, TN 37324
Employee iacevoage 109@ gmail.com
Doug Dooley, doug.doole~@Ieitnerf1rm.com
Employer's Attorney
RUM, COURT CLERK
Court o · orkers' Compensation Claims
WC.CourtClerk@tn.gov
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