Elliott, Mark v. Heritage Food Services, Inc. d/b/a Heritage Grill

FILED
July 27,2018
TN COURT OF
WORKERS’ COMPENSATION
CLAIMS
Time: 10:38 A.M. EASTERN
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT KNOXVILLE
MARK ELLIOTT, ) Docket No. 2017-03-0637
Employee, )
V. )
HERITAGE FOOD SERVICES, INC. ) State File No. 84603-2017
d/b/a HERITAGE GRILL, )
Employer, )
And ) Judge Pamela B. Johnson
THE HARTFORD INSURANCE CO., _ )
Carrier. )
EXPEDITED HEARING ORDER DENYING BENEFITS
(Decision on the Record)
This matter came before the Court on Mark Elliott’s Request for Expedited
Hearing seeking a decision on the record. Heritage Food Services, Inc. did not request an
evidentiary hearing. The Court issued a Docketing Notice on June 22, 2018, listing the
documents to be considered. The parties had until July 3, 2018, to file objections to the
admissibility of documents and/or position statements, which they both did. On review
of the file materials, this Court holds it needs no additional information and decides the
issues based on a decision on the record.
The legal issues are whether Mr. Elliott is likely to prevail at a hearing on the
merits in establishing entitlement to additional medical benefits and/or temporary total
disability benefits. For the reasons below, the Court holds he failed to satisfy his burden
of proof and denies the requested benefits.
Objections to Admissibility
Heritage filed an objection to the admissibility of portions of Mr. Elliott’s
affidavits, handwritten statements, and submission of the parties’ email communications,
as well as medical bills and medical records.
As to Mr. Elliott’s two affidavits and handwritten statements, Heritage objected on
hearsay grounds to numerous statements attributable to medical providers that were
offered to prove the providers’ medical opinions. Mr. Elliott did not respond or identify
a hearsay exception. The Court finds certain portions of Mr. Elliott’s affidavits and
handwritten statements contain hearsay. Thus, the Court sustains the objection and has
not considered statements attributable to medical providers and their opinions.
Regarding the email communications, Heritage objected to Mr. Elliott’s filing of
emails exchanged between the parties and their counsel. It argued statements or
arguments of counsel are not evidence. It further argued the emails were not
authenticated and contained hearsay. Again, Mr. Elliott did not respond. The Court
sustains Heritage’s objection on both grounds and has not considered the email
communications.
Concerning the medical bills and medical records, Heritage objected on grounds
that they were neither signed by a physician nor accompanied by a certification of
authenticity signed by a physician or records custodian as required by Tennessee
Compilation Rules and Regulations 0800-02-21-.16(6)(b) (2018). As with the previous
objections, Mr. Elliott did not respond. Thus, the Court finds the bills and records were
not properly authenticated, as they were neither signed by a physician nor accompanied
by a certification signed by a physician or records custodian. The Court sustains the
objection and has not considered the medical bills or medical records.
History of Claim
On May 13, 2017, while performing his duties, Mr. Elliot tripped over another
employee and stumbled forward, hyper-extending his leg. Two days later, he called to
report he could not work because he was unable to stand straight due to severe hip and
low back pain. He sought care on his own at Cherokee Health Systems on May 16, and
reported the incident to Heritage the following day.
Heritage gave Mr. Elliott a choice of medical providers, and he selected Well Key
Urgent Care. The attending provider released him to work with restrictions to avoid
prolonged standing. Because his job required prolonged standing, he did not return to
work, and Heritage terminated him.
Due to ongoing complaints, Heritage authorized Mr. Elliott to see Dr. Yoakum for
his low back complaints and Dr. Parsons for his hip complaints.' Dr. Yoakum diagnosed
hip flexor tendinopathy. He also noted, “Lumbar stenosis is not work related. R hip
' Mr. Elliott stated in his affidavit that he saw Dr. Johnson, but a review of the file showed he saw Dr.
Parsons for his hip complaints.
flexor tendinopathy may be.” Dr. Yoakum further assigned restrictions to alternate
sitting and standing. Dr. Parsons ordered a hip MRI and referred Mr. Elliott to physical
therapy without identifying a diagnosis. Before Mr. Elliott underwent the MRI and
attended physical therapy, Heritage denied the claim and did not authorize further
medical treatment.
Due to Heritage’s denial, Mr. Elliott filed this Request for Expedited Hearing. He
asked the Court to order Heritage to provide additional medical treatment, payment of
outstanding medical charges and mileage expenses, and temporary disability benefits.
Findings of Fact and Conclusions of Law
Mr. Elliott need not prove every element of his claim by a preponderance of the
evidence to obtain relief. McCord v. Advantage Human Resourcing, 2015 TN Wrk.
Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). Instead, he must present sufficient
evidence from which this Court might determine he is likely to prevail at a hearing on the
merits. /d.; Tenn. Code Ann. § 50-6-239(d)(1) (2017).
Additional Medical Treatment, Outstanding Medical Charges, and Mileage Expenses
To recover benefits, Mr. Elliott must demonstrate that he is likely to prevail at a
hearing on the merits that he sustained an injury arising primarily out of and in the course
and scope of his employment. The term “injury” is defined as an injury by accident
arising primarily out of and in the course and scope of employment that causes the need
for medical treatment. For an injury to be accidental, it must be caused by a specific
incident, or set of incidents, arising primarily out of and in the course and scope of
employment, and identifiable by time and place of occurrence. See Tenn. Code Ann. §
50-6-102(14).
The record is uncontroverted as to when and where the incident occurred: On
May 13, 2017, Mr. Elliott tripped over another employee and stumbled forward. Thus,
the Court concludes that he demonstrated he is likely to prevail at a hearing on the merits
in proving a specific incident, identifiable by time and place of occurrence.
However, he must show more than an incident by time and place to prevail. Mr.
Elliott must also demonstrate that the incident resulted in an injury arising primarily out
of and in the course and scope of employment that caused the need for treatment. Mr.
Elliott did not introduce medical records or admissible medical opinions indicating the
need for treatment was caused by an injury arising primarily out of and in the course of
employment. The record consists of only a singular medical opinion addressing the cause
of and need for treatment. Dr. Yoakum diagnosed hip flexor tendinopathy and
commented, “Lumbar stenosis is not work related. R hip flexor tendinopathy may be.”
The mere possibility of a connection between a work incident and a medical
condition is insufficient to satisfy Mr. Elliott’s burden. The Workers’ Compensation Law
requires an employer to furnish medical treatment made reasonably necessary by the
work injury. See Tenn. Code Ann. § 50-6-204(a)(1)(A) (emphasis added). This means
that, to be entitled to treatment, the employee must show, to a reasonable degree of
medical certainty, that the employment contributed more than fifty percent in causing the
need for treatment, considering all causes. See Tenn. Code Ann. § 50-6-102(14)(C)
(emphasis added). “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{.]”
Tenn. Code Ann. § 50-6-102(14)(D) (emphasis added). Additionally, the opinion of the
treating physician is given a rebuttable presumption of correctness on the issues of
causation and medically necessary treatment. See Tenn. Code Ann. §§ 50-6-102(14)(E)
and 50-6-204(a)(3)(H).
Here, Mr. Elliott asks that the Court order Heritage to provide additional medical
treatment to include authorization of the hip MRI that Dr. Parsons ordered. However, he
did not file any office visit notes from Drs. Yoakam or Parsons, so the record lacks a
medical opinion relating the need for the recommended treatment/testing with a work
injury arising primarily out of and in the course and scope of employment. A physician’s
recommendation for treatment, standing alone, does not make this treatment causally-
related to the work incident. For the presumption of medical necessity to attach to the
recommended treatment, the authorized treating physician must causally relate the injury
and need for treatment to the employment. On the causation issue, this record is silent.
For these reasons, the Court holds Mr. Elliott failed to present sufficient evidence
demonstrating that he is likely to prevail at a hearing on the merits on entitlement to
additional medical treatment at this time. Thus, the Court denies his request for the MRI.
As to his request for payment of outstanding medical bills and mileage expenses,
the Court finds the record is also silent as to any connection between the itemized charges
and mileage expenses and Mr. Elliott’s need for medical treatment for a work-related
injury. Therefore, the Court holds Mr. Elliott failed to present sufficient evidence
demonstrating he is likely to prevail at a hearing on the merits regarding payment of
outstanding medical bills and mileage expenses.
Temporary Disability Benefits
To receive temporary total disability benefits, Mr. Elliott must prove (1) total
disability from working as the result of a compensable injury; (2) a causal connection
between the injury and the inability to work; and (3) the duration of the period of
disability. Shepherd v. Haren Constr. Co., Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS
15, at *13 (Mar. 30, 2016). The Court finds that Mr. Elliott did not submit medical
records or other evidence demonstrating he was disabled from working due to a work-
related injury. Thus, the Court concludes he failed to demonstrate that he is likely to
4
prevail at a hearing on the merits on entitlement to temporary disability benefits and
denies his request at this time.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Elliott’s claim for additional medical treatment, outstanding medical charges
and mileage expenses, and temporary disability benefits is denied at this time.
2. This matter is set for a Status Conference on September 17, 2018, at 3:00 p.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 the party’s further participation.
_ a
— \
Smet S hn
PAMELA B. JOHNSON, JUDGE
Court of Workers’ Compensation Claims
ENTERED July 27, 2018.
APPENDIX
The Court reviewed the entire case file in reaching its decision. Specifically, the
Court reviewed the following documents, marked as exhibits for ease of reference:
Exhibits:
1. Petition for Benefit Determination
a. Electronic First Report of Work Injury
b. Employer’s Submissions
2. Dispute Certification Notice
3. Request for Expedited Hearing — November 2, 2017
a. Mark Elliott’s Affidavit
b. Mark Elliott’s Handwritten Statement
Notice of Expedited Hearing — November 22, 20 7
Notice of Filing Wage Statement
Order Setting Status Conference
Request for Expedited Hearing - June 5, 2018
7S"
* Before a previously-scheduled in-person Expedited Hearing, the parties announced that they resolved
the disputed issues, and the Court cancelled the hearing.
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a. Mark Elliott’s Affidavit
b. Mileage Chart
c. Emails between Employee’s counsel and Employer’s counsel
d. WorkLink Reports
e. List of Unpaid Medical Expenses
8. Order Setting Status Conference
9. Response to Request for Expedited Hearing On the Record
10. Docketing Notice for On-The-Record Determination
11. Employer’s Objection to Admissibility of Documents
12. Employer’s Position Statement for Expedited Hearing
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 July 27, 2018.
Name Certified | Fax | Email | Service sent to:
Mail
John R. Rosson, x rossonlaw@aol.com
Employee’s Attorney rjoyce1960@aol.com
Joseph Ballard, x joseph. ballard@thehartford.com
Employer’s Attorney
\) iil: - I rca wf ‘vr
PENNY SHRUM, Court Clerk ¢
WC.CourtClerk@tn.gov
Filed Date Stamp Here EXPEDITED HEARING NOTICE OF APPEAL Docket #:
Tennessee Division of Workers’ Compensation
www. to.pov/labor-wid/weomp.shtml State File #/YR:
wc,courtclerk@tn.gov
1-800-332-2667 RFA #:
Date of Injury:
SSN:
Employee
Employer and Carrier
Notice
Notice is given that
[List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s} of the Court of Workers’ Compensation Claims at
to the Workers’ Compensation Appeals Board.
[List the date(s) the order(s) was filed in the court clerk’s office]
Judge
Statement of the Issues
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Additional Information
Type of Case [Check the most appropriate item]
[1 Temporary disability benefits
L] Medical benefits for current injury
LC] Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): At Hearing: DEmployer LiEmployee
Address:
Party’s Phone: Email:
Attorney’s Name: BPR#:
Attorney’s Address: Phone:
Attorney’s City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellant *
LB-1099_rev.4/15 Page 1 of 2 RDA 11082
Employee Name: SF#: DOI:
Appellee(s)
Appellee (Opposing Party):__ At Hearing: ClEmployer LJEmployee
Appellee’s Address:
Appellee’s Phone: Email:
Attorney's Name: BPR#:
Attorney’s Address: Phone:
Attorney’s City, State & Zip code:
Attorney's Email:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
\, , certify that | have forwarded a true and exact copy of this
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules of
Board of Workers’ Compensation Appeals on this the day of ,20_.
[Signature of appellant or attorney for appellant]
LB-1099 rev.4/15 Page 2 of 2 RDA 11082
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:
|. Complete the enclosed form entitled: “Expedited Hearing 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
concerning 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.
Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, I-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
I, , having been duly sworn according to law, make oath that
because of my poverty, | am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name: 2. Address:
3. Telephone Number: 4. Date of Birth:
5. Names and Ages of All Dependents:
Relationship:
Relationship:
Relationship:
Relationship:
6. | am employed by:
My employer’s address is:
My employer's phone number is:
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$
8. | receive or expect to receive money from the following sources:
AFDC $ per month beginning
SSI $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Comp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are:
Rent/House Payment $ permonth Medical/Dental $ per month
Groceries $ per month Telephone $ per month
Electricity $ per month School Supplies $ per month
Water $ per month Clothing $ per month
Gas $ per month Child Care $ per month
Transportation $ per month Child Support $ per month
Car $ per month
Other $ per month (describe: )
10. Assets:
Automobile $ (FMV)
Checking/Savings Acct. $
House $ (FMV)
Other $ Describe:
11. My debts are:
Amount Owed To Whom
| hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that | am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
day of , 20
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV 11/15) RDA 11082