Armstrong, Syvonia v. Chattanooga Billiard Club, Inc.

FILED
Feb 07, 2019
02:22 PM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT CHATTANOOGA
Syvonia Armstrong, ) Docket No.: 2018-01-0006
Employee, )
v. )
Chattanooga Billiard Club, Inc., ) State File No.: 927-2018
Employer, )
And )
Eastern Alliance Insurance Co., ) Judge Thomas Wyatt
Carrier. )
EXPEDITED HEARING ORDER DENYING MEDICAL BENEFITS FOR
DENTAL CONDITIONS
This matter came before the Court on February 6, 2019, for an Expedited Hearing.
The primary issue is whether Ms. Armstrong came forward with evidence that she would
likely prevail at a hearing on the merits that her alleged dental injuries arose primarily out
of and in the course and scope of her employment. For the reasons below, the Court
holds she did not.
History of Claim
Ms. Armstrong worked as a bartender/shift leader for Chattanooga Billiards
Club's (CBC's) restaurant and bar. On December 12, 2017, she received an electrical
shock while changing a filter on a dishwasher. She stated she felt a sensation like bees
stinging her face and burning inside her mouth and on her right arm. She notified CBC's
owner of the incident, but declined the owner's offer to send her for immediate treatment.
Later that evening, Ms. Armstrong developed swollen and burned lips, bums
inside her mouth, pain in her left ear, and pain behind her left eye. She sought emergent
care without authorization and reported that she had "contact with electrical wire ... at
the right wrist" while ''working on a dishwasher." The emergency-room doctor
diagnosed an "electric shock" and discharged her without treatment.
1
Ms. Armstrong later sought medical benefits under workers' compensation.• CBC
referred her to its insurance broker, to whom Ms. Armstrong reported chipped teeth and
that an electrical shock "blew out her fillings." She testified the broker allowed her to see
a dentist, and she saw Dr. Drew Shabo on December 18.2 Dr. Shabo's examination
revealed several decayed and chipped teeth for which he recommended veneers. On the
issue of causation, Dr. Shabo's office note states, ''there's no way to know whether the
electric current caused the fracturing of the teeth" but "it is possible that the amalgam
fillings acted [as a] conductor and caused them to fracture but he hasn't seen her before to
know."
CBC later provided Ms. Armstrong a panel of walk-in clinics from which she
selected American Family Care (AFC). She saw physicians at AFC on January 9 and 12,
2018, who diagnosed burns of the mouth and pharynx and referred her to anENT. A
doctor who saw Ms. Armstrong at AFC on the second visit wrote that she became irate
during the visit, told him she did not want diagnoses of jaw pain, ear pain or headaches,
and threatened to sue if CBC did not pay for her treatment under workers'
compensation. 3 Both AFC physicians released her to return to work without restrictions.
Ms. Armstrong selected Dr. David Fortune from a panel for the ENT referral. Dr.
Fortune concluded the slight abnormalities on a hearing test were not those normally seen
with electrical shock injuries. He released her with ointment to treat a burn of the left
external ear canal and assigned no impairment or work restrictions.
CBC also offered Ms. Armstrong a panel of dentists. She refused to select a
dentist for authorized care, opting instead to pursue an order requiring CBC to pay for Dr.
Shabo's recommended care. During the hearing, she stated she made this decision
because she had a lot going on in her life and did not want to encounter the
inconvenience of seeing a new dentist.
CBC also had Ms. Armstrong examined by oral surgeon Dr. Richard L. Johnson.
He took dental x-rays revealing numerous decayed teeth, intact fillings, and chipping
consistent with normal wear. On causation, he stated that "I do not feel there is any
dental disability from [the electrical shock]."
1
Ms. Annstrong asked CBC to have the dishwasher inspected. CBC did so, once by a repainnan and then
by an electrician. Ms. Annstrong disagreed with the findings that nothing was wrong with the dishwasher
and refused to use the dishwasher. CBC tenninated her for this refusal and previous misconduct,
including tardiness.
2
CBC lodged a hearsay objection to Ms. Annstrong's testimony about the broker's authorization. Upon
consideration of Ms. Annstrong's testimony that she relied on the broker's statement in going to see Dr.
Shabo, the Court overruled the objection under the state-of-mind exception to the hearsay rule.
3
Ms. Annstrong testified she never saw the physician who wrote this.
2
Ms. Armstrong then obtained letters bearing Dr. Shabo's signature that addressed
causation. A September 5 letter stated: "Dr. Shabo concluded that the work that needs to
be done to save her teeth could very well be needed due to the electrical shock the patient
experienced." A September 19 letter stated: "Dr. Shabo concluded that, it is more likely
than not, to a reasonable degree of medical certainty, the described injury 'electrical
shock' in dental notes was the primary cause of the need for dental treatment."
Ms. Armstrong filed a Petition for Benefit Determination seeking medical benefits
and temporary and permanent disability benefits. At the Expedited Hearing, she stated "I
only want my teeth fixed. I did not have chipped teeth before." CBC contended that Ms.
Armstrong failed to prove the essential elements of her claim, including causation and the
reasonableness, necessity and work-relatedness of requested treatment.
Findings of Fact and Conclusions of Law
At an expedited hearing, Ms. Armstrong must provide sufficient evidence from
which the Court can determine she is likely to prevail at a hearing on the merits. McCord
v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Mar. 27, 2015). Ms. Armstrong contends her dental problems arose primarily from the
electrical shock at CBC and relies on the opinions stated in Dr. Shabo's letters in support
of her claim. CBC argues that Dr. Shabo's opinions are unreliable because he changed
them over the course of time. It asserts that the Court should give greater weight to the
opinion of oral surgeon Dr. Johnson, who concluded that Ms. Armstrong's dental
conditions were not caused by an electrical shock.
Tennessee Code Annotated section 50-6-102(14) (2018) defines a compensable
injury as one "arising primarily out of and in the course and scope of employment."
Subsection 50-6-102(14)(C) requires that compensability be shown to "a reasonable
degree of medical certainty." Subsection 50-6-102(E) provides that the opinions of
treating physicians selected from a panel "shall be presumed correct on the issue of
causation but this presumption shall be rebuttable by a preponderance of the evidence."
Here, Dr. Fortune diagnosed Ms. Armstrong with a bum to her left external ear
canal and prescribed treatment. Thus, Ms. Armstrong established she would likely
prevail at a hearing on the merits regarding treatment for the bum. However, Ms.
Armstrong failed to come forward with evidence rebutting Dr. Fortune's opinion that her
hearing abnormalities were not related to the electrical shock. Thus, she failed to
establish entitlement to medical benefits for her hearing.
The compensability of the dental injuries hinges on the competing causation
testimonies of Dr. Shabo and Dr. Johnson. Their opinions stand on equal footing because
neither provider was selected from a panel.
3
In considering this issue, the Court notes that Dr. Shabo provided differing
causation opinions. In his treatment notes, he stated "there was no way to know whether
the electric current caused the fracturing of the teeth." At best, Dr. Shabo stated the
connection between the shock and the tooth damage was "possible," but he conceded he
would have needed to see Ms. Armstrong before the injury to consider a relationship
between the electrical shock and her dental conditions. 4
The Court finds the inconsistencies between Dr. Shabo's treatment notes and his
causation letters make the later opinions unreliable. The Court gives no weight to
causation opinions given after Dr. Shabo admitted he had insufficient information-the
chance to see Ms. Armstrong's teeth before the shock occurred-to give a valid opinion.
Thus, the only reliable causation opinion regarding the dental conditions is that of Dr.
Johnson, who concluded the conditions were not related to the electrical shock.
In view of the above, the Court holds Ms. Armstrong did not establish she would
likely prevail at a hearing on the merits that her dental conditions arose primarily out of
and in the course and scope of employment.
IT IS, THEREFORE, ORDERED as follows:
1. CBC shall provide Ms. Armstrong reasonable and necessary medical care from
Dr. Fortune for the burn to her left ear canal.
2. Ms. Armstrong's claim for medical benefits for treatment of her dental conditions
is denied at this time.
3. This matter is set for a Status Hearing at 10:30 a.m. Eastern Time on April30,
2019. You must call (615) 741-3061 or toll-free at (855) 747-1721 to participate
in the Status Hearing. 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.
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). 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
4
An expert opinion connecting a physical condition to an employee's work must be stated on a more-
likely-than-not standard and not on the basis of speculation or possibility. See Tenn. Code Ann. § 50-6-
102(14)(0).
4
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.g v.
ENTERED February 7, 2019.
``~
Judge Thomas Wyatt
Court of Workers' Compensation Claims
APPENDIX
Exhibits:
I. Affidavit of Syvonia Armstrong
2. Correspondence in unemployment claim and earnings print-out (for
identification only)
3. Form from East Tennessee Endodontics (sustained hearsay objection)
4. Bill and Diagnosis Code from David Pifer, O.D. (sustained hearsay
objection on the bill; overruled hearsay objection on the diagnosis code
because the document was signed by the physician)
5. Medical records of Parkridge East Hospital; American Family Care; Dr.
Scott Fortune; Dr. Richard Johnson; and Dr. Drew Shabo; and Tennessee
Board of Dentistry disciplinary records on Dr. Drew Shabo. (overruled
hearsay objection on the fact the records are copies and not originals;
sustained hearsay objection on Dr. Shabo's bill; overruled objection that
Dr. Shabo's letters are not admissible upon signature because they are not
medical records and he is a dentist and not a doctor)
6. Text of text messages between Ms. Armstrong and CBC's owner
7. CBC disciplinary records and Separation Notice
8. Wage Statement and CBC's print-out of Ms. Armstrong's wages
9. Panels ofPhysicians
10.Affidavit ofMichael Wamack
11. Records of Sauder Electric and affidavit of Alex Westmoreland
12. Records of Auto-Chlor and affidavits of Clay Nelson and David Brockman
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
5
4. Notice of Expedited Hearing
5. Motion to Compel IME and to Continue Expedited Hearing
6. Order Allowing IME and Continuing Expedited Hearing
7. Order Scheduling Expedited Hearing
8. Notice of Expedited Hearing
9. Employer's Witness and Exhibit List
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this Order was sent to the following
recipients by the following methods of service on February 7, 2019.
Name Certified First Email Service sent to:
Mail Class
Mail
Syvonia Armstrong, X X Syvoniamercedes72@gmail.com
Employee 2129 Dugan Avenue
Chattanooga, TN 37412
Pete Frech, X ppfrech@mijs.com
Employer Attorney jlrusso@mijs.com
9~ ~mj~
PENNY S UM, COURT CLE
wc.courtclerk@tn.gov
6
Ex.=pedited Hearin g Order Ri ght 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:
I. 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 lndigency 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.
EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers' Compensation
www.tn .gov/labor-wfd/wcomp.shtml
wc.courtclerk@tn.gov
1-800-332-2667
Docket#: _ _ _ _ _ _ _ _ __
State File #/YR: - - -- - - -
Employee
v.
Employer
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]
0 Temporary disability benefits
0 Medical benefits for current injury
0 Medical benefits under prior order issued by the Court
list of Parties
Appellant (Requesting Party): _______________ At Hearing: OEmployer OEmployee
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. 10/18 Page 1 of 2 RDA 11082
Employee Name: _ __ __ _ _ _ _ __ _ SF#: _ _ __ _ _ __ _ _ DOl : _ _ _ _ __
Appellee(s)
Appellee (Opposing Party)·...__ _ _ _ _ _ _ _ At Hearing: DEmployer DEmployee
Appellee's Address : _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ __ _ _ _ _ _ _ _ _ __
Appellee's Phon e,_
: _ _ _ _ _ _ _ _ _ _ _ _ _ _ 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
I, certify that I 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 ijoard of Workers' Compensation Appeals on this the day of , 20
[Signature of appellant or attorney for appellant]
LB-1099 rev. 10/18 Page 2 of 2 RDA 11082
Tennessee Bureau of Workers' Compensation
220 French Landing Drive, 1-B
Nashville, TN 37243-1002
800-332-2667
AFFlDAVIT OF INDIGENCY
I, , having been duly sworn according to law, make oath that
because of my poverty, I 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. I 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. I 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:
RenUHouse Payment $ per month 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
I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.
/(P'PELLANT
Sworn and subscribed before me, a notary public, this
_ _ _ day of _ _ _ _ _ _ _ _ _ _ _ , 20._ _ _.
NOTARY PUBLIC
My Commission Ext;iir``~ --------
LB-11 08 (REV 11/15) RDA 11082