Hunt, Kathy v. Cox Oil, Co.

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
Kathy Hunt, ) Docket No. 20158-06-0687
Employee, )
v. ) State File No. 49530-2015
Cox Oil Co., )
Employer, ) Judge Joshua Davis Baker
And )
Technology Ins./Amtrust )
Insurance Carrier. )
)
AMENDED EXPEDITED HEARING ORDER GRANTING MEDICAL
BENEFITS
This matter came before the undersigned workers’ compensation judge on the
Request for Expedited Hearing filed by the employee, Kathy Hunt, pursuant to Tennessee
Code Annotated section 50-6-239 (2015). The present focus of this case is whether Cox
Oil Company must provide Ms. Hunt a panel of physicians, pay bills associated with
unauthorized care, and provide temporary disability benefits. The central legal issue is
whether Ms. Hunt can demonstrate a likelihood of success at a trial on the merits of these
issues. For the reasons set forth below, the Court finds Ms. Hunt is likely to succeed at a
hearing on the merits in proving entitlement to a panel of physicians. The Court finds
Ms. Hunt unlikely, however, to succeed at a hearing on the merits in proving entitlement
to past medical bills or temporary disability benefits based on the evidence presented at
this time.1
History of Claim
Ms. Hunt is a sixty-three-year-old resident of Humphreys County, Tennessee. She
worked for Cox Oil in one of its “Little General” convenience stores, located in McEwen,
Tennessee. Her duties at the store included making pizzas for customers to purchase.
Some of the ingredients to make the pizzas were stored in a freezer located in a shed on
1
A complete listing of exhibits and the technical record admitted at the Expedited Hearing is attached to this Order
as an appendix.
1
the store property.
In June 2015, Ms. Hunt went to the freezer to get some frozen pizza dough. 2 She
testified the pizza dough had been placed on a high shelf in the freezer, which required
her to reach above her head to retrieve the dough. According to Ms. Hunt, each box
contained eighteen pizza dough packages and weighed approximately twenty-five
pounds.
Ms. Hunt testified the box had frozen to the shelf making it difficult to remove.
She eventually loosened the box and attempted to guide it down from the shelf using her
left hand. The box, however, fell too fast and directly on Ms. Hunt’s left hand and arm.
In its descent, the force of the box pulled her left arm down with it. Ms. Hunt testified
she felt immediate pain and likened the sensation to someone stabbing her in the shoulder
with a knife.
Ms. Hunt testified she spoke to the store manager, Betty Langford, via telephone
the day after the accident occurred. She told Ms. Langford “what exactly happened” and,
according to Ms. Hunt, Ms. Langford told her the accident “should be workmen’s comp.”
Ms. Langford was on vacation when Ms. Hunt spoke with her.
After several days passed, without hearing word about her accident, Ms. Hunt
became concerned. On the advice of a co-employee, she contacted Jackie Richardson
Cox Oil’s central-office manager.3 According to Ms. Hunt, Ms. Richardson stated she
turned information concerning her accident over to Technology Insurance, Cox Oil’s
workers’ compensation insurance carrier. Ms. Hunt testified she called Technology
Insurance and left several messages for Deborah McGee, a claims representative. Ms.
McGee did not return her calls. Ms. Hunt did, however, receive a letter from “Carlisle
Medical” concerning a prescription drug program available for workers’ compensation
patients around the time she contacted Technology Insurance. (Ex. 5.)
On June 17, 2015, Ms. Hunt received treatment from Jennifer Gerber, a nurse
practitioner at Waverly Family Medicine. (Ex. 1 at 3-4.) She paid for these services
with her private insurance, BlueCross BlueShield (BCBS). (Ex. 3.) FNP Gerber
recommended an MRI and told Ms. Hunt she could return to work light duty pending the
results of the MRI. (Ex. 1 at 4.)
Ms. Hunt underwent an MRI on June 20, 2015. It revealed the following:
2
In her affidavit, Ms. Hunt stated her injury occurred on June 8, 2015. At the hearing, she testified the accident
occurred on June 5, 2015. The parties discussed the discrepancy during the hearing. The exact date of injury,
however, is not determinative of any issue in this Expedited Hearing.
3
Ms. Hunt first referred to Ms. Richardson as “Jackie Baker” when testifying.
2
1. Mild osteoarthritis in the LEFT acromioclavicular joint and
glenohumeral joint.
2. Multiple small loose bodies in the recesses of the LEFT glenohumeral
joint consistent with nephritis.
3. Mild tendinopathy of the supraspinatus and infraspinatus tendons with
mild tendinopathy of the subscapularis tendon. No significant tear.
4. A SLAP tear of the biceps anchor proximal kink in the posterior
superior labrum. Anterior inferior labrum appears torn.
5. Bicipital tenosynovitis.
6. Capsulitis.
(Ex. 1 at 40.)
Chad Turnbow, Cox Oil’s area supervisor of its Little General convenience stores,
testified he first learned Ms. Hunt suffered an injury while speaking with Ms. Langford
around June 17, 2015. Ms. Langford needed approval to work overtime because Ms.
Hunt requested time off from work to have shoulder surgery. Mr. Turnbow told Ms.
Langford that Ms. Hunt could not return to work until released by her doctor. According
to Mr. Turnbow, Cox Oil does not offer light duty work to its convenience store workers
because the workers could suffer further injury by working before they are physically
able. Mr. Turnbow testified he did not know Ms. Hunt’s injury was work-related and so
began preparing FMLA paperwork for Ms. Hunt to complete. Around June 24, 2015,
Ms. Hunt met Mr. Turnbow at the Little General convenience store and showed him how
the accident occurred. After speaking with Ms. Hunt, Mr. Turnbow reported the incident
to the Cox Oil central office as a work-related injury. Mr. Turnbow did not know what
happened with the claim after he reported it, but said Ms. Richardson would be
responsible for providing Ms. Hunt a panel of physicians.
In late June 2015, FNP Gerber referred Ms. Hunt to Dr. Jason Haslam, an
orthopedic surgeon. Dr. Haslam treated Ms. Hunt’s shoulder with steroids and
conservative methods. He also prescribed physical therapy. (Ex. 1 at 8-13.) Ms. Hunt
paid for these services through BCBS until she received a notice from STAR Physical
Therapy stating BCBS refused to pay for additional physical therapy sessions because her
injury was work-related. (Ex. 6.)
Despite the denial of further physical therapy, Ms. Hunt continued to see Dr.
Haslam. On October 23, 2015, Dr. Haslam wrote the following in his treatment notes:
Impression: Left shoulder pain from an injury which occurred at work on
6/12/2015. I believe her underlying current problem is degenerative joint
disease which was aggravated by a strain of the shoulder associated with
catching a box at work. I generally would consider treating her injury
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which occurred on June 12, 2015 for a total of 3 months under Workers’
Compensation given the strain to the shoulder. However after 3 months, I
would treat under her commercial insurance given the underlying diagnosis
of degenerative changes and loose body formation in the glenohumeral
joint. The degenerative disease process is not a work-related injury. At the
present time, it is my opinion that her current symptoms are attributable to
her work-related injury by 30%. In other words, her current shoulder
symptoms are not primarily related to her work related injury which
occurred on June 12, 2015. This was reviewed with the patient in detail. I
will see the patient back as needed. She may get a second opinion. In the
meantime, we will provide a cortisone injection to hopefully decrease her
overall pain.
(Ex. 1 at 16-17.)
On November 19, 2015, Ms. Hunt returned to Waverly Family Medicine and
received treatment from Dr. Lawrence R. Jackson, Jr. Dr. Jackson opined Ms. Hunt’s
workplace injury caused the problems identified in the MRI. (Ex. 1 at 21-23) In
response to a causation opinion letter he received from Mr. Hicks, Ms. Hunt’s attorney,
Dr. Jackson answered yes when asked whether he believed Ms. Hunt’s condition was
primarily caused by her workplace accident. (Ex. 1 at 19.)
Ms. Hunt filed a Petition for Benefit Determination seeking temporary disability
and medical benefits. (T.R. 1.) The parties did not resolve the disputed issues through
mediation, and the Mediating Specialist filed a Dispute Certification Notice (DCN).
(T.R. 2.) Ms. Hunt filed a Request for Expedited Hearing, and this Court heard the
matter on February 17, 2016.
At the Expedited Hearing, Ms. Hunt argued Cox Oil must pay the medical bills for
treatment she received from Drs. Jackson and Haslam, and FNP Gerber at Waverly
Family Medicine. She also seeks to recover the cost of physical therapy.
Ms. Hunt denied having shoulder problems before coming to work for Cox Oil.
At the time of the hearing, Ms. Hunt continued to experience pain in her shoulder and
have difficulty lifting items weighing as little as five pounds without pain. She asked for
a panel of physicians to treat her condition.
Additionally, Ms. Hunt testified she could not work because Cox Oil had no light
duty available. She asked for temporary total disability benefits for the time she missed
from work.
Cox Oil maintained Ms. Hunt is not entitled to any benefits because she cannot
prove medical causation. In support of its position, Cox Oil relies on Dr. Haslam’s
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causation opinion.
Findings of Fact and Conclusions of Law
I. The Court finds Dr. Haslam’s causation opinion more persuasive than Dr.
Jackson’s.
Ms. Hunt seeks temporary disability and medical benefits. At this time, the central
dispute over entitlement to these benefits concerns proof of a causal relationship between
the injury and her need for medical treatment. Here, Dr. Jackson and Dr. Haslam
provided differing medical opinions on the cause of Ms. Hunt’s shoulder condition.
Resolution of the causation dispute, therefore, turns in part on the Court’s comparison of
the medical opinions:
When the medical testimony differs, the trial judge must obviously choose
which view to believe. In doing so, he is allowed, among other things, to
consider the qualifications of the experts, the circumstances of their
examination, the information available to them, and the evaluation of the
importance of that information by other experts.
Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn. 1991). For the reasons
hereafter, the Court credits Dr. Haslam’s opinion.
The Court finds Dr. Haslam more qualified than Dr. Jackson to provide an opinion
on causation of Ms. Hunt’s shoulder condition. Dr. Haslam is an orthopedic surgeon and,
therefore, familiar with conditions affecting bones, joints and ligaments.4 While neither
side presented evidence of Dr. Jackson’s specialty, his associate, FNP Gerber, referred
Ms. Hunt to an outside provider for orthopedic care. Accordingly, while the facts do not
directly address his specialty area, the Court infers Dr. Jackson is not an orthopedic
specialist.
The Court finds the circumstances of Dr. Haslam’s examination made his
causation opinion more reliable. Dr. Haslam began treating Ms. Hunt on July 1, 2015,
between three and four weeks after her accident. Dr. Haslam treated Ms. Hunt on several
occasions in July and August providing pain relief shots and referring her for physical
therapy. He provided a causation opinion after directing her treatment over this period.
Dr. Jackson, on the other hand, did not begin treating Ms. Hunt until November 2015.
The evidence shows he saw her only twice and provided an opinion on causation after the
first visit. With respect to the information available to the physicians, the undersigned
4
Orthopedics - a branch of medicine concerned with the correction or prevention of deformities, disorders, or
injuries of the skeleton and associated structures (as tendons and ligaments). http://www.merriam-
webster.com/dictionary/orthopedics (last visited Mar. 4, 2016).
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finds this factor does not add credibility to either Dr. Jackson’s or Dr. Haslam’s opinions
as both essentially had access to the same information.
Based on his area of specialty and greater involvement in treating Ms. Hunt’s
injury, the Court finds Dr. Haslam’s opinion more persuasive than Dr. Jackson’s. The
meaning of Dr. Haslam’s opinion, however, is difficult to decipher.
Dr. Haslam opined he would “generally consider” treating Ms. Hunt’s injury
under workers’ compensation for three months due to the “strain to the shoulder,” but
also opined her “current shoulder symptoms are not primarily related to her work-related
injury.” Instead, Dr. Haslam attributes these symptoms to degeneration. In this Court’s
view, Dr. Haslam’s opinion appears to be that Ms. Hunt’s “shoulder strain” is work-
related but her degenerative condition, which he opined is the cause of her current
symptoms, is not. The opinion, however, could also mean that Dr. Haslam would have
treated Ms. Hunt’s injury as workers’ compensation in the past, but would not do so
under the present causation standard. The point is, the Court is unsure what Dr. Haslam
meant. Due to the uncertainty of the opinion’s meaning, the Court finds Ms. Hunt
unlikely to prevail at a hearing on the merits in proving medical causation.5
II. Cox Oil must provide Ms. Hunt a panel of orthopedic physicians.
The administrative rules governing procedures in the Bureau of Worker’s
Compensation provide, “[u]pon notice of any workplace injury, other than a minor injury
for which no person could reasonably believe requires treatment from a physician, the
employer shall immediately provide the injured employee a panel of physicians that
meets the statutory requirements for treatment of the injury.” Tenn. Comp. R. & Regs.
0800-02-01-.25(1) (2015). An employer who fails to comply with this rule without good
cause could be assessed a civil penalty of up to $5,000. Id.
Here, Ms. Hunt proved she had an accident in the course and scope of her
employment when she injured her shoulder while retrieving a box of frozen pizza dough
from a freezer shelf in June 2015. She also proved she timely reported the injury to her
employer, as she told Mr. Turnbow of the injury when he visited the Little General Store
sometime around June 24, 2015. See Tenn. Code Ann. § 50-6-201(a)(1) (2015).
According to Mr. Turnbow’s testimony, he took appropriate steps to report the injury to
Cox Oil’s central office on June 24. Additionally, Mr. Turnbow knew Ms. Hunt sought
medical care for her injuries. Ms. Hunt, therefore, has come forward with sufficient
evidence from which this Court concludes she is likely to prevail at a hearing on the
merits in proving she timely reported a workplace accident.
5
For the same reason, the Court also finds Dr. Haslam’s opinion insufficient to support a finding of
noncompensability.
6
Although she treated privately and Dr. Haslam opined her current need for
treatment did not arise primarily out of her workplace injury, the Court, as stated
previously, is not satisfied that his opinion definitively addressed the issue of medical
causation. Ms. Hunt, however, does not have to prove compensability by a
preponderance of the evidence at an expedited hearing to receive a physician panel. See
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). Instead,
she only needs to present sufficient evidence from which this Court can determine that
she is likely to prevail at a hearing on the merits when requesting a panel. Id.
Considering the Court’s finding concerning Dr. Haslam’s causation opinion, Dr.
Jackson’s causation opinion, Ms. Hunt’s timely reporting of her workplace accident, the
severity of her injury, her continued need for treatment, and Dr. Haslam’s permission of a
second opinion, the Court finds Ms. Hunt will likely prevail at a hearing on the merits in
proving entitlement to a panel of physicians. The Court, therefore, finds Cox Oil must
provide Ms. Hunt a panel of physicians.
III. Ms. Hunt cannot recover temporary disability benefits or medical bill
reimbursement.
In order to prevail in her request for temporary total disability benefits and
payment of past medical bills in this Expedited Hearing, Ms. Hunt must convince this
Court she is likely to prevail at a hearing on the merits of her entitlement to those
benefits. See Tenn. Code Ann. § 50-6-239(d)(1) (2015). To prevail on either of these
issues at a compensation hearing, Ms. Hunt must prove, by a preponderance of the
evidence, that she suffered a compensable injury. See Tenn. Code Ann. § 50-6-
204(a)(1)(A) (2015); Simpson v. Satterfield, 564 S.W.2d 953, 955 (Tenn. 1978) (An
employee is entitled to receive temporary total disability benefits pursuant to Tennessee
Code Annotated section 50-6-207(1) whenever the employee has suffered a compensable,
work-related injury that has rendered the employee unable to work.); see also, James v.
Landair Transport, Inc., No. 2015-02-0024, 2015 TN Wrk. Comp. App. Bd. LEXIS 28,
at *16 (Tenn. Workers’ Comp. App. Bd. Aug. 26, 2015).
At this time, the proof does not establish Ms. Hunt suffered a compensable injury
due to the lack of a compelling, clear opinion on medical causation. While it is a close
question of whether Dr. Haslam’s opinion establishes causation for the shoulder strain
injury, Dr. Haslam’s additional statement that Ms. Hunt’s current symptoms are only
30% caused by her workplace accident renders the opinion too speculative to support a
compensability finding in this Court’s opinion. Accordingly, without a clear causation
opinion, the Court does not find Ms. Hunt likely to prevail at a hearing on the merits in
proving compensability of her injuries and, therefore, cannot recover past medical bills or
temporary disability benefits at this time.
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IT IS, THEREFORE, ORDERED as follows:
1. Cox Oil shall provide Ms. Hunt a panel of orthopedic specialists for treatment of
her left-shoulder injury as required by Tennessee Code Annotated section 50-6-
204 (2015) from which Ms. Hunt shall select a treating physician. Medical bills
shall be furnished to Cox Oil or its workers’ compensation carrier by Ms. Hunt or
the medical providers.
2. Ms. Hunt’s claim against Cox Oil and its workers’ compensation carrier for the
requested temporary disability benefits and medical bills is denied at this time.
3. This matter is set for an Initial (Scheduling) Hearing on April 18, 2016, at 10:00
a.m. (CDT).
4. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
with this Order must occur no later than seven business days from the date of entry
of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3)
(2015). The Insurer or Self-Insured Employer must submit confirmation of
compliance with this Order to the Bureau by email to
WCCompliance.Program@tn.gov no later than the seventh business day after
entry of this Order. Failure to submit the necessary confirmation within the period
of compliance may result in a penalty assessment for non-compliance.
5. For questions regarding compliance, please contact the Workers’ Compensation
Compliance Unit via email WCCompliance.Program@tn.gov or by calling (615)
253-1471 or (615) 532-1309.
ENTERED ON THIS THE 10TH DAY OF MARCH, 2016.
_____________________________________
Judge Joshua Davis Baker
Court of Workers’ Compensation Claims
Initial Hearing:
A Scheduling Hearing has been set with Judge Joshua Davis Baker, Court of
Workers’ Compensation Claims. You must call 615-741-2113 or toll free at 855-
874-0474 to participate in the Initial Hearing.
Please Note: You must call in on the scheduled date/time to
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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).
Right 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:
1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal.”
2. File the completed form with the Court Clerk within seven 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 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 Indigency may be filed contemporaneously with the Notice
of Appeal or must be filed within ten 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 timely 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 calendar days of the filing of the Expedited
Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
the evidence within ten calendar days of the filing of the Expedited Hearing
Notice of Appeal. The statement of the evidence must convey a complete and
accurate account of what transpired in the Court of Workers’ Compensation
Claims and must be approved by the workers’ compensation judge before the
record is submitted to the Clerk of the Appeals Board.
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6. If the appellant elects to file a position statement in support of the interlocutory
appeal, the appellant shall file such position statement with the Court Clerk within
three business days of the expiration of the time to file a transcript or statement of
the evidence, specifying the issues presented for review and including any
argument in support thereof. A party opposing the appeal shall file a response, if
any, with the Court Clerk within three business days of the filing of the appellant’s
position statement. All position statements pertaining to an appeal of an
interlocutory order 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.
APPENDIX
Exhibits:
1. Medical records
2. Ms. Hunt’s affidavit
3. Medical Bills
4. Notice of Claim postcard
5. Carlisle Medical letter
6. BCBS insurance payment denial letter
7. Hunt written statement
8. Wage Statement
Technical record:6
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. July 22, 2015 Letter from Charles Hicks
5. November 4, 2015 Letter from Mike Jones
6. Pre-hearing Order
6
The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as
allegations unless established by the evidence.
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was sent to the
following recipients by the following methods of service on this the 10th
___ day of March,
2016.
Name Certified First Via Fax Via Email Address
Mail Class Fax Num Email
Mail ber
Charles L. x larry_hickslaw@bellsouth.net
Hicks, Esq.
Mike Jones, Esq. x mjones@wimberlylawsom.com
_____________________________________
Penny Shrum, Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
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