Glass, Sidney v. Ford Construction Co.

FILED
Marcb 11 , 2016
1N COURT OF
WORKIRS' COI\IPENSATION
CLAIMS
mrr 12:43 Pill
COURT OF WORKERS' COMPENSATION CLAIMS
AT MEMPHIS
Sidney Glass, Docket No.: 2015-08-0638
Employee,
v. State File No.: 75957-2015
Ford Construction Co.,
Employer, Judge Jim Umsted
And
Twin City Fire Insurance Co.,
Insurance Carrier.
EXPEDITED HEARING ORDER DENYING REQUEST FOR BENEFITS
THIS CAUSE came before the undersigned workers' compensation judge on
March 2, 2016, upon the Request for Expedited Hearing filed by the employee, Sidney
Glass, pursuant to Tennessee Code Annotated section 50-6-239 (2015). The central legal
issue is whether the employer, Ford Construction Co., must provide medical benefits for
Mr. Glass' all~ged work-related back and left leg injuries. For the reasons set forth
below, the Court finds Mr. Glass' request for medical benefits should be denied. 1
History of Claim
Mr. Glass is a forty-nine-year-old resident of Lauderdale County, Tennessee. He
has a ninth-grade education and has worked exclusively in the construction field. Ford
hired Mr. Glass as a carpenter in 2013. However, according to Mr. Glass, his job duties
involved "a little bit of everything," including operating a backhoe as well as pouring and
forming concrete sidewalks and curbs.
On September 4, 2015, Mr. Glass' laid blacktop for one afFord's projects. Later,
after work, Mr. Glass noticed his back felt tight, but he did not think it was serious until
his symptoms began to worsen over the next few days.
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A complete listing of the technical record and exhibits is attached to this Order as an appendix.
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On September 7, 2015, he presented to the emergency room at Lauderdale
Community Hospital complaining of severe pain in his left leg. He advised he first
noticed his symptoms on Friday, but the office note did not describe a specific event or
incident that gave rise to his symptoms.
The following day, Mr. Glass sought treatment from his primary care physician at
Ripley Medical Clinic. He told Nurse Practitioner (NP) Patsy Crihfield he worked
construction but did "not remember any event or injury precipitating his left low back and
left leg pain last week." NP Crihfield instructed him to return Friday for a follow-up
appointment and noted she would consider a "neuro referral" at that time. She also took
Mr. Glass off work for the rest of the week.
Mr. Glass returned to the clinic on September 11, 2015. During that visit, NP
Bradley Harrell ordered an MRI and referred him to a neurologist. He also released Mr.
Glass to light duty work until he followed up with a neurologist.
On September 14, 2015, Mr. Glass sought further treatment with Ripley Medical
Center. During that visit, he continued to complain of lower back pain that radiated
down his left leg. He also noted he worked for a construction company "shoveling all
day long" but denied any specific injury. Dr. Joe Hunt prescribed pain medication to
help Mr. Glass with his symptoms until he could get his MRI and see a neurologist.
According to the affidavit of Ford employee Lisa Keeling, Mr. Glass contacted her
on September 15, 2015, to see if his company health insurance would pay for his MRI.
Ms. Keeling indicated insurance would not pay for the MRI, as his deductible had not
been met. Ford's Safety Director, Collie Berry, stated in his affidavit that Mr. Glass also
contacted him on September 15, 2015. Mr. Berry asserted that Mr. Glass called to report
a work-related injury dating back to September 4, 2015. Mr. Berry noted this was the
first notice Ford received of the alleged work injury.
Mr. Berry authorized an appointment for Mr. Glass with Dr. Mark Harriman at
Memphis Orthopedic Group on September 16, 2015. 2 Dr. Harriman's office note
indicated Mr. Glass complained of lumbar back pain resulting from "lifting, pulling,
pushing and unknown/unsure." Dr. Harriman ordered an MRI and opined that Mr. Glass'
discomfort was likely due to a herniated disk at L5-S 1 on the left. He took Mr. Glass
completely off work and instructed him to follow up after his MRI. The MRI showed
disk bulges at L2-5 with foramina! stenosis and mass effect on the exiting left L3 and L4
nerve roots.
On September 18, 2015, Ford denied Mr. Glass' claim. It filed a Notice of Denial,
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Ford entered into evidence a signed panel of physicians from which Mr. Glass selected Dr. Harriman as his
authorized treating physician. However, Mr. Glass testified he signed the panel after seeing Dr. Harriman and never
received a choice of physicians.
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indicating no accident arose out of his employment.
Thereafter, Mr. Glass continued treating with Ripley Medical Center and
ultimately received a referral to Semmes-Murphey Clinic. Mr. Glass presented to
Semmes-Murphy for the first time on September 30, 2015, and saw Dr. Todd Fountain.
Mr. Glass told Dr. Fountain his back and left leg symptoms began on September 4, 2015.
He advised he worked shoveling asphalt for a living. Dr. Fountain diagnosed Mr. Glass
with "left L4-5 far lateral disk herniation with neural compression against the exiting L4
nerve root as well as lateral recess stenosis impending the traversing L5 nerve root." He
recommended surgical intervention. According to a Ripley Medical Clinic office note
dated October 30, 2015, however, the surgery was canceled due to Mr. Glass' high
potassium levels.
During the expedited hearing, Mr. Glass testified he had to break up chunks of
blacktop with a sledgehammer on September 4, 2015, which was not a task he typically
undertook. He suggested that this activity most likely caused his back injury. He further
stated he advised Mr. Berry, Dr. Harriman, Dr. Fountain, and his chiropractor about his
work with the sledgehammer on September 4, 2015.
Mr. Glass asserted he initially reported his injury to his supervisor, Norris Nicks,
on Monday, September 7, 2015, but admitted he did not tell him how he injured himself
because he did not know. He later reported the injury to Mr. Berry who took him to see
Dr. Harriman. Mr. Glass testified he did not remember calling Ms. Keeling on
September 15, 2015, to ask if his health insurance would cover his MRl.
Mr. Glass further testified he has not worked since Ford terminated his
employment on October 12, 2015, due to a failed drug test. He indicated he was enrolled
in a methadone clinic after developing an addiction to prescription pain medication and
stated Ford knew about his enrollment. According to Mr. Glass, he became addicted to
pain medication prescribed by Christian Family Medical while treating for boils on his
hands.
Findings of Fact and Conclusions of Law
General Legal Principles
Because this case is in a posture of an expedited hearing, Mr. Glass need not prove
every element of his claim by a preponderance of the evidence in order to obtain relief.
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,
he must come forward with sufficient evidence from which this court might determine he
is likely to prevail at a hearing on the merits. ld.; Tenn. Code Ann. § 50-6-
239(d)(1)(2015). In analyzing whether he has met his burden, the Court will not
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remedially or liberally construe the law in his favor, but instead shall construe the law
fairly, impartially, and in accordance with basic principles of statutory construction
favoring neither Mr. Glass nor Ford. See Tenn. Code Ann.§ 50-6-116 (2015).
Compensability
To be compensable, Mr. Glass must show his alleged injury arose primarily out of
and in the course and scope of his employment. Tenn. Code Ann. § 50-6-1 02( 14) (20 15).
He must also show his injury was caused by an incident, or specific set of incidents,
identifiable by time and place of occurrence. Tenn. Code Ann. § 50-6-102(14)(A)
(20 15). Further, he must show, "to a reasonable degree of medical certainty that [his
alleged work injury] contributed more than fifty percent (50%) in causing the . . .
disablement or need for medical treatment, considering all causes." Tenn. Code Ann. §
50-6-102(14)(C) (2015). "Shown to a reasonable degree of medical certainty" means
that, in the opinion of the treating physician, it is more likely than not considering all
causes as opposed to speculation or possibility. Tenn. Code Ann. § 50-6-102(14)(D)
(20 15).
The Court finds Mr. Glass was unable to identify a specific incident that caused
his injury and did not experience pain until after returning home from work. Upon
careful review of the medical records, the Court finds no expert opinion that Mr. Glass'
injury is more likely than not related to an alleged September 4, 2015 work incident. The
absence of an expert medical opinion that the specific incident contributed more than
fifty percent in causing his back injury is fatal to his claim.
Our Appeals Board recently stated, "[w]ith respect to the element of medical
causation, it was traditionally the employee's burden to offer expert medical proof of
causation ' [e]xcept in the most obvious, simple and routine cases."' Scott v. Integrity
Staffing Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24 (Tenn.
Workers' Comp. App. Bd. Aug. 18, 2015) (citing Cloyd v. Hartco Flooring Co., 274
S.W.3d 638, 643 (Tenn. 2008)). Mr. Glass' injury is not so obvious as to remove the
need for expert proof of causation.
Based upon the evidence, the Court finds Mr. Glass has not come forward at this
time with sufficient evidence to show he would likely prevail at a hearing on the merits
and denies his request for benefits.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Glass' claim against Ford for the requested medical benefits is denied at this
time.
2. This matter is set for a Status Hearing on April 20, 2016, at 10:00 a.m. Central
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time.
ENTERED this the 11th day ofMarch, 2016.
<--A~f{3
Judge Jim Umsted
Court of Workers' Compensation Claims
Status Conference:
An Status Conference has been set with Judge Jim Umsted, Court of Workers'
Compensation Claims. You must call 615-532-9550 or toll-free at 866-943-0014 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.
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
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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
lndigency 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.
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
five 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 five 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.
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APPENDIX
Exhibits:
1. Affidavit of Sidney Glass;
2. Affidavit of Lisa Keeling;
3. Affidavit of Collie Berry;
4. Form C-20 Employer's First Report of Work Injury or Illness;
5. Form C-42 Agreement Between Employer/Employee Choice of Physician;
6. Form C-23 Notice of Denial of Claim for Compensation;
7. Form C-41 Wage Statement;
8. Separation Notice;
9. Drug Screen Results Report;
10. Job Description;
11. Medical bill from Ripley Medical Clinic;
12.Medical Records:
• Ripley Medical Clinic
• Lauderdale Community Hospital
• Baptist Memorial Healthcare
• Memphis Orthopedic Group
• Methodist North Hospital
• Semmes-Murphey Clinic; and
13. Additional Medical Records:
• Semmes-Murphey Clinic (Date of Service December 2, 2015, and EKG
Report)
• Quest Diagnostics (Date of Service September 29, 2015).
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice, filed on December 16, 2015
3. Request for Expedited Hearing
4. Ford Construction Co.'s position statement
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CERTIFICATE OF SERVICE
I 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 11th day
ofMarch, 2016.
Name Certified Via Via Service sent to:
Mail Fax Email
Jeffrey P. Boyd, X jbo):d@hillboren.com
Employee's Attorney
Matthew W. Willis, X matt@ashleyarnold.com
Employer's Attorney
Clerk of Court
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