Allsup, Brent v. Lenoir City Utilities Board

FILED
.Jul~r 14 , 2011
TN COURTOF
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Tim.e 12 :16 PM
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT KNOXVILLE
BRENT A. ALLSUP, ) Docket No. 2017-03-0418
Employee, )
v. )
LENOIR CITY UTILITIES BOARD, ) State File No. 19174-2017
Employer, )
and )
THE POOL, ) Judge Lisa A. Lowe
Carrier. )
)
EXPEDITED HEARING ORDER GRANTING BENEFITS
(Decision on the Record)
This matter came before the undersigned Workers' Compensation Judge upon the
Request for Expedited Hearing filed by Mr. Allsup seeking a decision on the record in
lieu of convening an evidentiary hearing. Lenoir City Utilities Board (LCUB) did not file
a Response to the Request for Expedited Hearing and did not request an evidentiary
hearing. The Court issued a Docketing Notice on June 23, 2017, listing the documents to
be considered. This Court gave Mr. Allsup and LCUB until July 5, 2017, to file
objections and/or position statements. Neither party filed objections, but both filed
supporting briefs.
Upon careful consideration of the record, this Court finds it needs no additional
information to determine whether Mr. Allsup is likely to prevail at a hearing on the merits
of the claim. Accordingly, pursuant to Tennessee Code Annotated section 50-6-
239(d)(2) (2016) and Tennessee Compilation Rules and Regulations 0800-02-21-
.14( 1)(c) (20 16), the Court decides this matter upon a review of the written materials.
The present focus of the case is whether Mr. Allsup is entitled to additional
medical benefits. The central legal issue is whether Mr. Allsup came forward with
sufficient evidence demonstrating he is likely to prevail at a hearing on the merits that he
suffered an aggravation of a pre-existing condition arising primarily out of and in the
course and scope of his employment and resulting in the need for medical treatment. For
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the reasons set forth below, the Court holds Mr. Allsup satisfied his burden and LCUB
shall either designate Dr. Calhoun as the authorized treating physician or provide a panel
of orthopedic physicians for reasonable and necessary treatment related to his work
tnjury.
History of Claim
Mr. Allsup is a thirty-eight year old resident of Knox County, Tennessee. LCUB
employed Mr. Allsup as a lead lineman. On March 17, 2017, while working in a raised
bucket demonstrating how to safely perform a maneuver with a live wire, Mr. Allsup
grabbed the wire with his left hand to hold the wire steady to make a cut. He grabbed the
wire cutter and rested one handle on his right shoulder and pulled the other handle down
with his right hand. He immediately felt a pop and pain in his right elbow.
Mr. Allsup informed his foreman, Jeff Rankin, who verbally gave him options of
physicians for treatment. Mr. Allsup chose Lakeway Urgent Care and saw Nurse
Practitioner Jordan O'Dell. NP O'Dell diagnosed him with right elbow pain, placed his
wrist in a splint and released him for work without restrictions. Subsequently, Dr. John
Sanabria, also at Lakeway Urgent Care, diagnosed Mr. Allsup with lateral epicondylitis
and assigned restrictions including left-handed duty only until cleared by an orthopedic
physician. During that visit, Mr. Allsup reported ongoing issues with tennis elbow being
treated by his primary care provider, Dr. Charles Robinson, and orthopedic surgeon, Dr.
Douglas Calhoun. Dr. Sanabria reviewed Dr. Robinson's records but did not review Dr.
Calhoun's records. After doing so, he noted:
... it seems fairly obvious that the patient has been having
ongoing issues with lateral epicondylitis in the right elbow
which are not attributable to any specific trauma or strain at
work. The incident at work on 03/17117 was clearly an
aggravation of his pre-existing condition. As such he will
need to get with his PCP/orthopedist to continue the plan of
care as a non-work related issue.
Additionally, Dr. Sanabria responded to a medical questionnaire and checked "no"
to the question, "Considering all causes, as opposed to possibility or speculation, did the
patient's employment more likely than not contribute more than 50% in causing the
alleged injury or condition." Because of this opinion, LCUB filed a Notice of Denial on
March 31 stating that the injury did not arise out of or in the course and scope of
employment.
After LCUB's denial, Mr. Allsup returned to Dr. Robinson, who provided
conservative care. Dr. Robinson stated, "I believe he reinjured the previous injuries and
may have worsened the tear. I think that since he had been released to work on the
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previous injury, he has been able to work his full job description until this most recent
injury. I think that the newest work accident is at least> 51% of the cause of his current
pain/condition as the injury at least caused an exacerbation of his previous injury." In
response to a medical causation letter, Dr. Robinson responded "yes" that Mr. Allsup's
employment on March 17, 2017, caused a new lateral epicondylitis injury to his right
upper extremity.
Based on that diagnosis and causation statement Mr. Allsup returned to Dr.
Calhoun for care. After review of the medical records and diagnostic testing (including a
new MRI and nerve conduction studies), Dr. Calhoun diagnosed Mr. Allsup with lateral
epicondylitis and cubital tunnel syndrome. In response to a medical causation letter, Dr.
Calhoun marked "yes" that Mr. Allsup's employment on March 17, 2017, caused a new
lateral epicondylitis injury to his right upper extremity. Dr. Calhoun performed surgery
on Mr. Allsup's right elbow on June 1, 2017.
Mr. Allsup requests that the Court designate Dr. Calhoun as his authorized treating
physician, or in the alternative, order LCUB to provide a panel of orthopedic physicians
for ongoing treatment. Mr. Allsup reserves the issues of temporary total disability
benefits arrearage, payment of past medical expenses, and attorney's fees for a later time.
LCUB states that Mr. Allsup has not presented sufficient medical evidence to
rebut Dr. Sanabria's opinion that Mr. Allsup's employment did not contribute more than
50% in causing his right elbow condition.
Findings of Fact and Conclusions of Law
The following legal principles govern this case. An aggravation of a pre-existing
condition is a compensable injury when "it can be shown to a reasonable degree of
medical certainty that the aggravation arose primarily out of and in the course and scope
of employment." Tenn. Code Ann. § 50-6-102(14)(A) (2016). As the Workers'
Compensation Appeals Board explained in Miller v. Lowe's Home Centers, Inc., 2015
TN Wrk. Comp. App. Bd. LEXIS 40, at *13 (Oct. 21, 2015), "[A]n employee can satisfy
the burden of proving a compensable aggravation if: ( 1) there is expert medical proof that
the work accident "contributed more than fifty percent (50%)" in causing the
aggravation, and (2) the work accident was the cause of the aggravation "more likely than
not considering all causes." However, an employee need not prove each and every
element of his or her claim by a preponderance of the evidence at an expedited hearing to
obtain temporary disability or medical benefits but "must come forward with sufficient
evidence from which the court can conclude that he or she is likely to prevail at a hearing
on the merits, consistent with Tennessee Code Annotated section 50-6-239(d)(l)." ld.,
citing McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS
6, at *9 (Mar. 27, 2015). In addition, the opinion of the authorized treating physician
"shall be presumed correct on the issue of causation but this presumption shall be
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rebuttable by a preponderance of the evidence." Tenn. Code Ann. § 50-6-102(14)(E)
(2016).
Here, there are differing expert medical opinions. In these situations, the Appeals
Board affirmed longstanding Tennessee law when it held, "A trial court generally has the
discretion to choose which expert to accredit when there is a conflict of expert opinions."
Brees v. Escape Day Spa & Salon, 2015 TN Wrk. Comp. App. Bd. LEXIS 5, at *14
(Mar. 12, 2015) (internal citations omitted). In evaluating conflicting expert testimony,
this Court may consider, among other things, "the qualifications of the experts, the
circumstances of their examination, the information available to them, and the evaluation
of the importance of that information through other experts." !d.
In comparing their qualifications, Dr. Sanabria is a family practice physician while
Dr. Calhoun is an orthopedic surgeon. Dr. Sanabria saw Mr. Allsup on one occasion
while Dr. Calhoun treated Mr. Allsup on numerous occasions both before and after this
injury. Dr. Sanabria only reviewed Dr. Robinson's records related to Mr. Allsup's prior
treatment; he did not review Dr. Calhoun's records nor was he privy to the new MRI
and/or nerve conduction studies. The Court finds Dr. Sanabria did not have all of the
relevant information available at the time he rendered his causation opinion. In contrast,
Dr. Calhoun provided treatment for Mr. Allsup's prior elbow condition, which makes
him uniquely qualified to address whether Mr. Allsup's March 17 employment activities
caused an aggravation of the preexisting injury.
After careful consideration of the competing medical opinions, the Court places
greater weight on Dr. Calhoun's opinion and holds it rebuts the presumption of
correctness afforded to Dr. Sanabria's opinion by a preponderance of the evidence.
Therefore, as a matter of law, the Court holds Mr. Allsup has come forward with
sufficient evidence to conclude he is likely to prevail at a hearing on the merits that he
suffered an aggravation of a preexisting condition arising primarily out of and in the
course and scope of his employment and grants his request for additional medical
benefits.
IT IS, THEREFORE, ORDERED as follows:
1. Lenoir City Utilities Board shall provide Mr. Allsup with medical treatment for his
injuries as required by Tennessee Code Annotated section 50-6-204 (20 16). The
employer has the right to control the medical treatment. Therefore, Lenoir City
Utilities Board shall have the option of either designating Dr. Calhoun as the
authorized treating physician or providing Mr. Allsup with a panel of orthopedic
physicians for ongoing care.
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2. This matter is set for a Scheduling Hearing on September 15, 2017, at 10:00 a.m.
Eastern Time. The parties must call (865) 594-0091 or (toll-free) (855) 543-5041
to participate in the Scheduling Hearing. Failure to appear by telephone may
result in a determination of the issues without your further participation.
3. 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)
(2016). The Insurer or Self-Insured Employer must submit confirmation of
compliance with this Order to the Bureau by email to
W Compliance.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.
4. For questions regarding compliance, please contact the Workers' Compensation
Compliance Unit by email at W omplian e.Program@tn.gov or by telephone at
(615) 253-1471 or (615) 532-1309.
ENTERED this the 14th day of July, 2017.
0
HON. LISA A LOWE, JUDGE
Court of Workers' Compensation Claims
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APPENDIX
The Court reviewed the entire case file in reaching its decision. Specifically, the
Court reviewed the following documents:
1. Petition for Benefit Determination,
2. Dispute Certification Notice,
3. Request for Expedited Hearing,
4. Employee's Brief in Support of Employee's Request for an Expedited Hearing
5. Employer's Response in Opposition to Employee's Request for Expedited
Hearing
6. Employer's Memorandum in Support of Employer's Response in Opposition
to Employee's Request for Expedited Hearing
7. Affidavit of Brent A. Allsup
8. Affidavit of Pamela Dickover
9. Affidavit of Matt Fagiana
10. First Report of Work Injury, Form C-20
11.Notice ofDenial of Claim for Compensation, Form C-23
12. Wage Statement, Form C-41
13. Panel of Physicians, Form C-42
14. March 31, 2017 Denial letter from The Poole
15. Medical Records of Lakeway Urgent Care (3/17117; 3/20/17)
16. Medical Record of Family Care Specialists (4/6117)
17.Medical Record ofOrthoTennessee (5/15/17)
18.Causation Questionnaire ofDr. Douglas N. Calhoun (5/19/17)
19.Causation Questionnaire ofDr. Charles L. Robinson (5/19/17)
20. Table of Contents of Medical Records of
a. Dr. Sanabria
b. Dr. Robinson
c. Dr. Calhoun
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CERTIFICATE OF SERVICE
I her by certify that a true and correct copy of the Expedited Hearing Order was
sent to the fo llowing recipients by the :following methods of service on this the 14lh day
of July, 2017.
Name Certified Fax Email Service sent to:
Mail
Timothy A. Roberto, X troberto@brownandroberto.com
Employee's Attorney
John Batson, X ibatson@watsonroach.com
Employer's Attorney
RUM, Court Clerk
Clerk@tn.gov
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