Cooke, Teresa v. Employ Bridge/DENSO Machine & Tool Division

FILED
Sep 19, 2018
11:38 AM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
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TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT KNOXVILLE
TERESA COOKE, ) Docket No.: 2017-03-1232
Employee, )
Vv. )
EMPLOY BRIDGE/DENSO )
MACHINE AND TOOL DIVISION, ) State File No.: 16427-2015
Employer, )
and )
XL INSURANCE COMPANY, )
Carrier. ) Judge Lisa A. Lowe
COMPENSATION HEARING ORDER
GRANTING BENEFITS
This matter came before the undersigned Workers’ Compensation Judge on
September 4, 2018, for a Compensation Hearing.’ The issues are whether Ms. Cooke is
entitled to additional temporary disability benetits, payment of unauthorized medical
expenses, and whether she is limited to her original award or increased benefits. For the
reasons below, the Court holds Ms. Cooke is entitled to additional temporary disability
benefits, her original award of permanent partial disability benefits, and future medical
care. However, Ms. Cooke failed to establish entitlement to reimbursement for
unauthorized medical expenses.
History of Claim
Ms. Cooke is a sixty-year-old resident of Blount County, Tennessee with a high
school diploma and some college education. The parties agreed her weekly
compensation rate is $326.72.
' Ms. Cooke filed a Request for Expedited Hearing. However, since she reached maximum medical
improvement, the parties requested the Court address permanent partial disability benefits. Therefore, the
parties agreed to convert the Expedited Hearing to a Compensation Hearing with the caveat that the
affidavits and medical records remain admissible exhibits.
1
On February 27, 2015, Ms. Cooke slipped and fell on ice in Denso’s parking lot.
Employ Bridge accepted the claim as compensable. It provided a panel of physicians,
and she selected Dr. David Calvert. He diagnosed head trauma, musculoskeletal pain,
vertigo, and elevated blood pressure. She underwent two head CT scans, a neck CT scan,
and a brain MRI, which were unremarkable. Due to continued complaints, Dr. Calvert
referred Ms. Cooke for a neurology consult.
Employ Bridge provided a panel of neurologists from which Ms. Cooke selected
Dr. Darel Butler. Dr. Butler assessed dizziness, visual disturbances, anxiety, and
weakness. He ordered a series of diagnostic tests and conservative treatments, including
a normal EMG, a head MRA revealing no abnormalities, and a neck MRA that showed
right ICA stenosis and a lesion but nothing traumatic. Dr. Butler placed Ms. Cooke at
maximum medical improvement (MMI) on July 9, 2015, with no permanent restrictions.
Since Dr. Butler does not provide impairment ratings, Employ Bridge authorized
neurologist Dr. Jack Scariano to do so. Dr. Scariano assigned a fifteen-percent
permanent impairment to the body as a whole.
Ms. Cooke also underwent evaluation with ear, nose, and throat physician Dr.
Taite Seals for continued vertigo. Dr. Seals found no evidence of inner ear damage. She
also saw Dr. Kirk Haun for reported double vision. Dr. Haun noted the “moving areas in
vision are caused by the vestibular issues. Eyes are healthy overall . . . no treatment
currently.” Ms. Cooke additionally saw Dr. Mark Widlowski for TMJ, which he advised
was chronic.
Following MMI, Ms. Cooke returned to both Dr. Butler and Dr. Calvert for
vertigo. Dr. Butler reiterated that he could not find a clear etiology for her vertigo. Dr.
Calvert prescribed vestibular physical therapy and said she could return to full duty on
July 22, 2015. He discharged her from his care on August 19. In between authorized
appointments, Ms. Cooke had two emergency room visits. She claimed that on the
second visit, the provider told her that she should see an orthopedist for her vestibular
damage. Ms. Cooke said she asked Employ Bridge to authorize orthopedic treatment, but
it denied her request. Thus, she sought treatment with her own orthopedist.’
Following her release to full duty, Denso terminated Ms. Cooke because her
position was filled. She received unemployment until September 2015, when Employ
Bridge found a position for her with BP Express. BP Express hired Ms. Cooke in
February 2016, and she worked there until her termination for poor job performance on
April 26, 2018. Ms. Cooke’s initial compensation period expired on October 24, 2016.
At that time, BP Express paid her an hourly wage between $13.00 and $13.39.
* Ms. Cook did not provide copies of her unauthorized medical records and bills to the Court or Employ
Bridge.
Ms. Cooke argued entitlement to temporary disability benefits for February 27,
2015 (the date of injury); March 21 through March 25; and July 7 through July 9. She
also asserted that she is entitled to see an orthopedist. She asked for increased permanent
partial disability benefits because the injury “affected her entire life,” including her
ability to earn a living. She averred she lost her job at BP Express because of her
ongoing medical issues. Ms. Cooke testified that since April 2018, she has applied for
over ninety jobs and only had one interview. Finally, she requested open future medical
benefits.
Employ Bridge asserted that it provided all medical benefits to which Ms. Cooke
was entitled. Her diagnostic tests were normal, and the authorized physician, Dr. Butler,
stated there was no clear etiology for Ms. Cooke’s vertigo. None of the treating
physicians indicated that she needs additional treatment. Thus, Employ Bridge argued it
is not responsible for unauthorized medical expenses. Employ Bridge averred it paid Ms.
Cooke all appropriate temporary disability benefits. In fact, it paid five days post-MMI,
so it is entitled to a credit for $326.72 from the permanent partial disability award.
Further, Ms. Cooke is limited to her original award for $22,053.60 because as of the
expiration of the initial compensation period, her rate of pay was higher than at the time
of injury.
Findings of Fact and Conclusions of Law
At a compensation hearing where the injured employee has arrived at a trial on the
merits, the employee must establish by a preponderance of the evidence that he or she is,
in fact, entitled to the requested benefits. Panzarella v. Amazon.com, Inc., 2017 TN Wrk.
Comp. App. Bd. LEXIS 30, at *10-11 (May 15, 2017); Tenn. Code Ann. § 50-6-
239(c)(6).
Temporary Disability Benefits
To qualify for temporary disability benefits, Ms. Cooke must establish: (1) that she
became disabled from working due to a compensable injury; 2) that there is a causal
connection between the injury and the inability to work; and 3) the duration of the period
of disability. Jones v. Crencor Leasing and Sales, 2015 TN Wrk. Comp. App. Bd.
LEXIS 48, at *7 (Dec. 11, 2015). The Workers’ Compensation Law provides that an
injured worker is entitled to temporary partial disability benefits when the temporary
disability is not total. See Tenn. Code Ann. § 50-6-207(1)-(2). Temporary partial
disability refers to the time, if any, during which the injured employee is able to resume
some gainful employment but has not reached maximum recovery. Mace v. Express
Servs., Inc., 2015 TN Wrk. Comp. App. Bd. LEXIS 49, at *8 (Dec. 11, 2015). “In
circumstances where the treating physician has released the injured worker to return to
work with restrictions prior to maximum recovery, and the employer . . . cannot return
3
the employee to work within the restrictions ..., the injured worker may be eligible for
temporary partial disability.” Jones, at *8.
First, Ms. Cooke claims entitlement to temporary disability benefits for the date of
injury, since her disability lasted more than fourteen days. However, Tennessee Code
Annotated section 50-6-205(a) states that the period of compensation “shall be allowed
beginning with the first day after the injury.” (Emphasis added.) The Court holds Ms.
Cooke is not entitled to temporary disability benefits for the date of injury.
Next, Ms. Cooke claims entitlement to temporary disability benefits from March
21 through March 25. On March 16, Dr. Calvert placed light-duty restrictions for nine
days. Ms. Cooke testified that she returned to work on March 16, but the next day she
had difficulty working due to pain, swelling, and vertigo, and she had to leave early. She
said her supervisor advised her to return to work on March 25. Employ Bridge offered
no testimony to refute this testimony. Therefore, the Court holds Ms. Cooke is entitled to
temporary partial disability benefits from March 21 through March 25 in the amount of
$326.72.
Finally, Ms. Cooke claims entitlement to temporary disability benefits from July 7
through July 9. However, Employ Bridge provided the adjuster’s affidavit and the claim
payment list showing that in July it paid Ms. Cooke from July 1 through July 14, which is
five days post-MMI. Ms. Cooke testified that she has no proof that Employ Bridge paid
her after MMI. She said she requested verification that the check cleared, but she
acknowledged she did not ask in enough time for the adjuster to provide the information
for the hearing. The Court holds Ms. Cooke failed to establish that she did not receive
temporary disability benefits from July 1 through 14. Therefore, Employ Bridge is
entitled to a credit of $326.72 against the original award.
Medical
Employ Bridge was obligated to provide Ms. Cooke with reasonable, necessary,
and related medical treatment with an authorized physician. See Tenn. Code Ann. § 50-
6-204. The Court concludes that Employ Bridge met its statutory obligation. Ms. Cooke
provided no evidence that an authorized physician made an orthopedic referral.
Additionally, she failed to provide records or bills of the unauthorized treatment she
received. Therefore, the Court holds she failed to establish entitlement to payment of
unauthorized medical expenses. However, Ms. Cooke is entitled to future reasonable,
necessary, and related expenses with Drs. Calvert and/or Dr. Butler.
Permanent Partial Disability Benefits
Ms. Cooke’s original award was 67.5 weeks of benefits, and her initial
compensation period expired on October 24, 2016. See Tenn. Code Ann. § 50-6-
4
207(3)(A). If an employee is unable to return to work with any employer or returns to
work at less than his/her pre-injury pay, that employee may be entitled to increased
benefits. See Tenn. Code Ann. § 50-6-207(3)(B). On October 24, 2016, while employed
by BP Express, Ms. Cooke earned more pay than before the injury. Therefore, she is
limited to her original award.
IT IS, THEREFORE, ORDERED as follows:
lL
Ms. Cooke is not entitled to reimbursement for her unauthorized medical
expenses. Employ Bridge shall provide future reasonable, necessary, and related
medical care with Drs. Calvert and/or Butler.
Payment of past-due benefits in the amount of $326.72 shall be made for the
period from March 21 to March 25, 2015.
Under Tennessee Code Annotated section 50-6-207(3), Ms. Cooke is entitled to
450 weeks times her impairment rating, which equates to $22,053.60, less the
TTD overpayment of $326.72, for an original award of $21,726.88 in permanent
partial disability benefits.
The filing fee is taxed to Employ Bridge under Tennessee Compilation Rules and
Regulations 0800-02-21-.07, to be paid within five business days.
. Employ Bridge shall file with the Court Clerk (WC.CourtClerk(@tn.gov) a
Statistical Data form (SD-2) within ten days of entry of this Order.
Absent an appeal, this Order becomes final thirty calendar days after entry.
ENTERED on September 19, 2018.
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WW A Wu.
LISA A. LOWE, JUDGE
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
L.
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Affidavit of Teresa Cooke
Affidavit of Shelly Sprague with indemnity and medical expenses paid lists
Affidavit of Candy Daugherty
Pre-Injury Wages
Wage Statement, Form C-41
First Report of Work Injury, Form C-20
Panel of Physicians, Form C-41-collective
BP Express Personnel File
Table of Contents of Medical Records
Blount Memorial Hospital
Dr. David Calvert, BMH Occupational Health
Dr. Darel Butler, East Tennessee Medical Group
Dr. Taite Seals, Ear, Nose, & Throat Consultants of East Tennessee
Dr. A. Kirk Haun, Campbell, Cunningham, and Taylor
Dr. Mark Widloski, East Tennessee Oral & Maxillofacial Surgery
Dr. Todd Wiener, One Call Peer Review
Dr. Jack Scariano, Agreed Independent Medical Examination for Rating
and Causation
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10. Ms. Cooke’s receipts of the temporary disability payments
Technical Record:
l.
. Dispute Certification Notice
NDAABRWY
8.
9.
Petition for Benefit Determination
Show Cause Order
Order Granting Extension
Request for Expedited Hearing
Motion to Compel Discovery
Notice of Filing of Employee’s Response to Motion to Compel and Request for
Extension of Time
Order Granting Extension
Pre-Expedited Hearing Brief
10.Employer’s Witness and Exhibit List
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Compensation Hearing Order
was sent to the following recipients by the following methods of service on September
19, 2018.
| Name Certified | Fax | Email | Service sent to:
Mail
Teresa Cooke, xX x Teresa Cooke
Self-Represented
Employee
501 Brown School Road
Maryville, TN 37801
tgco0423 @gmail.com
Sarah H. Reisner,
Employer’s Attorney
X | SReisner@ManierHerod.com
K Ak Ad A SV Leer L) Die uerabseoy
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PENNY $HRUM, Court Clerk/
WC.CourtClerk@tn.gov