Grimes, Kimberly v. YRC, Inc.

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
KIMBERLY GRIMES, ) Docket No. 2019-06-1960
Employee, )
Vv. )
)
YRC, INC., ) State File No. 60942-2018
Employer, )
)
OLD REPUBLIC INSURANCE )
COMPANY, ) Judge Joshua Davis Baker
Carrier. )
EXPEDITED HEARING ORDER
Ms. Grimes requested additional medical benefits for a right-shoulder injury. YRC
opposed the request, arguing her need for additional treatment, specifically shoulder-
replacement surgery, stems from preexisting “end-stage” arthritis rather than her work
injury. After hearing the proof by video conference on November 19, 2020, the Court
denies Ms. Grimes’s claim for additional medical benefits.
Claim History
Ms. Grimes injured her right shoulder and biceps tendon while pulling a dock plate
at YRC on August 12, 2018. YRC accepted the claim, and Ms. Grimes selected Dr. Blake
Garside from a panel of physicians.
Dr. Garside operated on Ms. Grimes to correct a rotator cuff tear, repair her biceps
tendon, and remove some “loose bodies” from her shoulder. Due to “end-stage” shoulder
arthritis, meaning bone-on-bone, Dr. Garside said Ms. Grimes needed a shoulder
replacement. He said that while the arthritis “could have” contributed to her rotator cuff
tear, her need for the shoulder replacement arose from the arthritis, not the work accident
and attendant surgery.
Ms. Grimes also saw Dr. Garside’s partner, Dr. Ronald Glenn, both before and after
her surgery. In fact, Dr. Glenn ordered that Ms. Grimes receive bilateral steroid injections
to treat arthritis in both her shoulders fewer than six months before her August 2018 work
accident. When she saw him after her surgery, Dr. Glenn told Ms. Grimes she “may have
developed some stiffness” in her shoulder from the surgery and recommended joint
replacement. When asked directly whether he agreed with Dr. Garside’s conclusion that
Ms. Grimes’s need for shoulder-replacement surgery resulted from preexisting arthritis, he
answered, “yes.”
At the hearing, Ms. Grimes admitted she had right-shoulder pain before the accident.
However, she maintained that she was able to perform her regular work duties until the
surgery. After surgery, she continued to have pain and mobility problems with her shoulder
but worked briefly for a few other employers and was working for another trucking
company at the time of this hearing.
Findings of Fact and Conclusions of Law
Ms. Grimes must show she would likely prevail at a final hearing in proving that
shoulder-replacement surgery is reasonable and necessary treatment for her workplace
injury. See Tenn. Code Ann. § 50-6-239(d)(1) (2019). As no physician said shoulder
replacement was reasonable and necessary for treatment of her workplace injury, Ms.
Grimes has not carried her burden of proof at this time.
Tennessee law requires an employer to provide “free of charge to the employee such
medical and surgical treatment . . . made reasonably necessary by accident[.]” Tenn. Code
Ann. § 50-6-204(a)(1)(A). For surgical treatment to be reasonable and necessary, it must
be shown “to a reasonable degree of medical certainty” that the work accident “contributed
more than fifty percent” in causing the need for the surgery. See id. at § 50-6-102(14)(C).
Ms. Grimes has the burden of proving her need for shoulder-replacement surgery is
reasonable and necessary for treatment of her workplace injury. She cannot prove
reasonable medical necessity without an expert opinion showing a causal connection
between her workplace accident and the need for the surgery. See Thomas v. Aetna Life &
Cas. Co., 812 §.W.2d 278, 283 (Tenn. 1991) (“Medical causation and permanency of an
injury must be established in most cases by expert medical testimony.”’).
Here, neither Dr. Garside nor Dr. Glenn attributed Ms. Grimes’s need for shoulder-
replacement surgery to her work injury. Rather, both said she needs the surgery due to her
preexisting “end-stage” arthritis. While Dr. Glenn testified that she likely developed some
post-surgical stiffness, he answered unequivocally that her need for shoulder-replacement
surgery stemmed from her preexisting arthritis rather than her work injury. Ms. Grimes
did not offer a countervailing medical opinion to rebut those of Drs. Garside and Glenn.
Accordingly, Ms. Grimes would not likely prevail at a trial on the merits in proving
shoulder-replacement surgery is reasonable and necessary to treat her work injury.
IT IS ORDERED as follows:
1. The Court denies Ms. Grimes’s requested relief at this time.
2. The Court sets this claim for a status conference on January 25, 2021, at 8:30 a.m.
(CST). The parties must call (615) 741-2113 or toll-free at (855) 874-0474 to
participate. Failure to call might result in a determination of the issues without the
party’s participation.
ENTERED November 20, 2020.
Ch o>
Judge Joshua Davis Baker
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
Medical records
Ms. Grimes’s affidavit
Dr. Glenn’s deposition transcript
Dr. Garside’s deposition transcript
Mr. Bacon’s affidavit
WeEWN >
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on November 20, 2020.
Name Certified | Via | Via Email Address
Mail Fax | Email
Samuel Morris, x smorris(@gmlblaw.com,
Employee’s Attorney Ibelt@gmlblaw.com
Stephen Heard, x skheard@cclawtn.com,
Employer’s attorney
chspivey(@cclawtn.com
5
‘V4 PX
‘ith
Penny Shrum, Court Clerk
we.courtclerk@tn.gov
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
conceming 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/
we.courtclerk@tn.gov | 1-800-332-2667
Docket No.:
State File No.:
Date of Injury:
Employee
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):
D Expedited Hearing Order filed on UO) Motion Order filed on
O Compensation Order filed on 0 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 !nj.:
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 | 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