Newport, Carolyn Sue v. BSH Home Appliance Corp.

COURT OF WORKERS' COMPENSATION CLAIMS
AT KINGSPORT
Carolyn Sue Newport ) Docket No.: 2015-02-0029
Employee, )
v. ) State File No.: 9209-2015
)
BSH Home Appliance Corp. ) Date of Injury: January 28, 2015
Employer, )
And ) Judge: Brian K. Addington
)
American Zurich Ins. Co. )
Insurance Carrier. )
EXPEDITED HEARING ORDER
(RECORD REVIEW ONLY)
THIS CAUSE came before the undersigned Workers' Compensation Judge on July
13, 2015, upon the Request for Expedited Hearing filed by Carolyn Sue Newport (Ms.
Newport), the Employee, on June 9, 2015, pursuant to Tennessee Code Annotated section
50-6-239 (2014) to determine if the Employer, BSH Home Appliance Corporation (BSH)
is obligated to provide medical and temporary disability benefits. 1 Considering the
positions of the parties, the applicable law, and all of the evidence submitted, the Court
concludes that Ms. Newport is not entitled to the requested benefits.
ANALYSIS
Issues
1. Whether Ms. Newport sustained an injul'y that arose primarily out of and in
the course and scope of her employment with BSI:I.-
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The parties reque ted a ruling based on a review of the file without an evidentiary hearing.
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The Mediating Speciali t did not check 'whether Employee sustained an injury that arose primarily out of and in
the course and scope of employment with Emp loyer' as an issue on the DCN, but checked "whether Employee
suslained an injury in the course of employment with mployer." The mediator marked a disputed issue for the
Court to resolve is whether Ms. Newport sustained a compensable injury as defined within the 2014 Workers'
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2. Whether BSH is obligated to provide a panel ofphysicians upon notice from Ms.
Newport of an alleged injury.
3. Whether Ms. Newport is entitled to any past or future temporary total disability
benefits, and if so, in what amount.
4. Whether Employee is entitled to any past or future temporary partial disability
benefits, and if so, in what amount.
Evidence Submitted
The Court admitted into evidence the exhibits below:
1. First Report of Injury one ( 1) page
2. Panel of Physicians one ( 1) page
3. Accident Report four (4) pages
4. Medical Records: Occupational Health Systems (OHS) ten (1 0) pages.
The Court designated the following as the technical record:
• Petition for Benefit Determination (PBD), February 19, 2015
• Letter Attached to PBD-Attorney Ameesh Kherani
• BSH Position Statement, March 12,2015
• Dispute Certification Notice (DCN), April 8, 2015
• Request for Expedited Hearing, June 9, 2015.
The Court did not consider attachments to the above filings unless admitted into
evidence during the Expedited Hearing. The Court considered factual statements in the
above filings or any attachments thereto as allegations unless established by the evidence.
History of Claim
Ms. Newport is a sixty-five (65) year old resident of Campbell County, Tennessee.
She works as an assembler for BSH. Ex. 3, page 1. On January 21, 2015, Ms. Newport
reported to BHS that she suffered a low-back injury on January 15, 2015. Ms. Newport
was unsure how the injury happened, but she did report that her job required "repetitive
action, pulling items, bending, and turning ofbody." Ex. 3, pages 1-2.
BSH provided Ms. Newport a panel of physicians and she chose OHS (Ex. 2).
She began treatment on January 21, 2015. Ms. Newport reported, to PA-C Ronald
Flowers, the gradual onset of symptoms of pain radiating from her lower back through
her left knee to the foot. Ex. 4, page 1. X-rays, according to the providers at OHS,
Compensation Law.
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revealed degenerative disc changes at L5-S 1 and findings consistent with spondylolysis
at L4 bilaterally. Ex. 4, page 3. PA-C Flowers diagnosed low back strain, spondylolysis,
degenerative disc disease, and subjective left knee pain. Jd. He recommended over-the-
counter pain medication and physical therapy. Ex. 4, page 4. Dr. John McElligott signed
the treatment notes as the supervising physician. I d.
On January 22, 2015, Ms. Newport returned to OHS. She no longer suffered pain
in her left leg and her back had improved. Ex. 4, page 6. In the present symptoms
section of the medical notes, the following entry appears:
Note: Patient says that she owns several horses and usually
hoists bales of hay to feed them. Currently, as admitted by the
patient, she is unable to do the normal tasks that she normally
undertakes, due to the recent discomfort in her lower back.
!d. The discussion portion of the treatment notes contains this entry:
After review of the mechanism of injury and/or lack thereof on
all diagnoses listed for this evaluation now or related to this
evaluation, I do not feel that this injury/exposure is work related.
See TN WC Law effective July 1, 2014, TN 50-6-102 (13). Pre-
existing conditions are very likely or the MOl is not substantial
to provide the present findings or lack of findings.
Ex. 4, page 8. Following the physical exam, Dr. McElligott released Ms. Newport from
care. Ex. 4, pages 9-10.
BSH discontinued medical treatment after it received OSH's January 22, 2015
note.
Ms. Newport filed a PBD on February 19, 2015, seeking medical and temporary
disability benefits. The parties did not resolve the disputed issues through mediation and
the Mediation Specialist filed the DCN on April 8, 2015.
Ms. Newport's Contentions
Ms. Newport contends that she presented sufficient evidence to establish that she
suffered a compensable injury that arose primarily out of and in the course and scope of
her employment. She asserts that she is entitled to a panel of physicians for continued
care.
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BSH's Contentions
BSH contends that Ms. Newport has submitted insufficient evidence to prove her
injury arose primarily out of and in the course and scope of her employment. BHS
asserts that the authorized treating physician, OSH, determined that her injury was not
related to her employment. BSH avers that Ms. Newport is not entitled to an additional
panel of physicians.
Findings of Fact and Conclusions of Law
Standard Applied
The Workers' Compensation Law shall not be remedially or liberally construed in
favor of either party but shall be construed fairly, impartially and in accordance with
basic principles of statutory construction favoring neither the employee nor
employer. Tenn. Code Ann. § 50-6-116 (2014). An employee need not prove every
element of his or her claim by a preponderance of the evidence in order to obtain relief at
an expedited hearing. McCord v. Advantage Human Resourcing, No. 2014-06-0063,
2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd.
Mar. 27, 2015). At an expedited hearing, an employee has the burden to come forward
with sufficient evidence from which the trial court can determine that the employee is
likely to prevail at a hearing on the merits. !d.
Factual Findings
Ms. Newport reported a gradually occurring lower back and left leg injury to BSH.
BSH provided Ms. Newport a panel of physicians. After x-rays and two examinations,
the authorized treating physician determined Ms. Newport's alleged injury was not work-
related.
Application ofLaw to Facts
Ms. Newport did not sustain an injury that arose primarily out of and in the course
and scope of employment with BSH. The Workers' Compensation Law defines "injury"
and "personal injury" to mean an injury by accident "arising primarily out of and in the
course and scope of employment .... " Tenn. Code Ann.§ 50-6-102(13)(A) (2014). An
injury is "accidental" only if the injury is caused by a specific incident, or set of
incidents, arising primarily out of and in the course and scope of employment, and is
identifiable by time and place of occurrence[.] !d. An injury "arises primarily out of and
in the course and scope of employment" only if it has been shown "by a preponderance of
the evidence that the employment contributed more than fifty percent (50%) in causing
the injury, considering all causes .... " Tenn. Code Ann. § 50-6-102(13)(8) (2014).
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In the case at bar, the authorized treating physician, Dr. McElligott, determined
that the "diagnoses" from which Ms. Newport suffered were not work related and very
likely pre-existing. Although not eloquent, Dr. McElligott's opinion is sufficiently clear
to indicate that Ms. Newport's injury did not arise primarily out of and in the course and
scope of her employment.
Ms. Newport has not come forward with sufficient evidence from which this Court
concludes that she is likely to prevail at a hearing on the merits.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. Newport' s claim against BSH and its workers' compensation carrier for the
requested medical and temporary benefits is denied. At this time, Ms. Newport
has not come forward with sufficient evidence from which this Court concludes
that she is likely to prevail at a hearing on the merits.
2. This matter is set for Initial Hearing on September 14, 2015, at 10:00 a.m.
ENTERED this the 16th day of July 2015.
Judge Brian K. Addington
Court of Workers' Compensation Claims
Initial Hearing:
An Initial Hearing has been set with Judge Addington, Court of Workers'
Compensation Claims. You must call 865-594-6538 or toll free at 855-543-5044 to
participate in the Initial Hearing.
Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation. All conferences are set using Central Time (CT).
Ri ght to Appeal:
Tennessee Law allows any party who disagrees with this Expedited Hearing Order
to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of
Appeal, you must:
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1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal."
2. File the completed form with the Court Clerk within seven (7) business days of the
date the Workers' Compensation Judge entered the Expedited Hearing Order.
3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.
4. The appealing party is responsible for payment of a filing fee in the amount of
$75.00. Within ten (1 0) calendar days after the filing of a notice of appeal,
payment must be received by check, money order, or credit card
payment. Payments can be made in person at any Bureau office or by United
States mail, hand-delivery, or other delivery service. In the alternative, the
appealing party may file an Affidavit of Indigency, on a form prescribed by the
Bureau, seeking a waiver of the filing fee. The Affidavit of lndigency may be
filed contemporaneously with the Notice of Appeal or must be filed within ten
(1 0) calendar days thereafter. The Appeals Board will consider the Affidavit of
Indigency and issue an Order granting or denying the request for a waiver of the
filing fee as soon thereafter as is practicable. Failure to timelv pay the filing fee
or file the Affidavit of Indigency in accordance with this section shall result in
dismissal of the appeal.
5. The parties, having the responsibility of ensuring a complete record on appeal,
may request, from the Court Clerk, the audio recording of the hearing for the
purpose of having a transcript prepared by a licensed court reporter and filing it
with the Court Clerk within ten (10) calendar days of the filing of the Expedited
Hearing Notice of Appeal. Alternatively, the parties may file a statement of the
evidence within ten ( 10) calendar days of the filing of the Expedited Hearing
Notice of Appeal. The Judge must approve the statement of the evidence before
the Court Clerk may submit the record to the Clerk of the Appeals Board.
6. If the appellant elects to file a position statement in support of the interlocutory
appeal, the appealing party shall file such position statement with the Court Clerk
within three (3) business days of the filing of the Expedited Hearing Notice of
Appeal, specifying the issues presented for review and including any argument in
support thereof. If the appellee elects to file a response in opposition to the
interlocutory appeal, appellee shall do so within three (3) business days of the
filing of the appellant's position statement.
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CERTIFICATE OF SERVICE
~ hereby certify that a true and correct copy of the Expedited Hearing Order was
sent to[ the following recipients by the following methods of service on this the 16th day
of JulyP 2015.
r::-:--r-·-··-·-~------.-=----:~--=--r---c-::::·------.----=-=-~ ~ ··················-··-·-·····-~··
Name' Certified Via Via Service sent to:
Mail -- .........._
Fax Email
_ _ .. - - - + - - - -
X akh~rani@dhdlaw(cljgmail.com
X David. wea~hcm1an(a)zurichna.com
Pen~lerb~G
Court of Workers' Compensation Claims
WC.CourtCierk@tn.gov
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