Gonzales, Elman v. Smoky Mountain Resort Services

FILED
Oct 07, 2019
08:04 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT KNOXVILLE
Elman Gonzales, ) Docket No.: 2019-03-0360
Employee, )
Vv. )
Smoky Mountain Resort Services, ) State File No.: 65055-2017
Employer, )
And )
Ohio Security Insurance Co., ) Judge Thomas Wyatt
Carrier. )
)
EXPEDITED HEARING ORDER DENYING BENEFITS
This case came before the Court on October 2, 2019, for an Expedited Hearing.
The issue was whether Elman Gonzalez produced sufficient evidence to establish that his
hernias arose primarily out of and in the course and scope of employment. For the
reasons below, the Court holds that Mr. Gonzalez did not prove that his hernias are work-
related and is not entitled to benefits at this time.
History of Claim
Mr. Gonzalez worked maintenance at Smoky Mountain Resort Services. He
testified that on August 22, 2017, he experienced disabling pain from his belly button into
his groin when he and two co-workers lifted a heavy dumpster to reposition it.’ Mr.
Gonzalez had no physical restrictions or similar pain before he lifted the dumpster.
Mr. Gonzalez reported his injury to Smoky Mountain and underwent emergency
treatment. Doctors placed him off work for several weeks. He returned to Smoky
Mountain in November 2017 and worked intermittently until December 2018, when
allegedly he could no longer work due to pain from his work injury.
' The co-workers corroborated Mr. Gonzalez’s account of the injury.
1
During the hearing, Mr. Gonzalez focused on his treatment problems.’ He
claimed the emergency room doctor diagnosed a hernia and prescribed surgery. He
selected Dr. Roy Frank Roberts at University General Surgeons from a panel; however,
he saw providers at UGS other than Dr. Roberts at first. Mr. Gonzalez testified that these
providers attributed his pain to other sources. Mr. Gonzalez stated he eventually saw Dr.
Roberts, who was angry that he was not told that he had an umbilical hernia. He testified
that Dr. Roberts told him the hernia was inoperable but would probably require surgery in
three to four months.
The UGS records indicate on his initial visit that a physician noted he did not find
a mass when he palpated the area where Mr. Gonzalez reported pain. Later, another UGS
physician reviewed a CT scan of Mr. Gonzalez’s abdomen, which showed a tiny
umbilical hernia that was unchanged from a CT scan performed a few days after the
injury. That physician could not palpate a mass confirming the CT finding and wrote that
the hernia was not the cause of Mr. Gonzalez’s reported pain. He diagnosed a rectus
muscle strain.
The UGS notes documented that Mr. Gonzalez saw a nurse practitioner on
October 5. She concurred with previous diagnoses and released him to return to work
with restrictions. Mr. Gonzalez returned to UGS two weeks later reporting sharp pain on
resuming work, especially lifting. The physician he saw again noted that he could not
digitally locate a hernia.
Around this time, Mr. Gonzalez began receiving treatment on his own from
Mountain Hope Good Shepherd Medical Clinic. On November 2, 2017, he saw a
physician’s assistant, who noted Mr. Gonzalez’s complaints of abdominal pain. The
provider documented his suspicion of “possible umbilical hernia with noted left inguinal
hernia” and recommended that Mr. Gonzalez see a surgeon. He returned two weeks later
with the same complaints. The physician’s assistant noted that Mr. Gonzalez experienced
extreme pain with deep palpation. However, the physician noted only mild pain of
unknown cause when he examined Mr. Gonzalez. He stated that Mr. Gonzalez should try
losing weight to alleviate his pain before considering surgery.
Mr. Gonzalez saw the physicians at Mountain Hope often over the next fifteen
months, reporting continuing abdominal and groin pain. The records document
recommendations for surgical consultations but do not contain any opinion addressing
whether his conditions arose primarily out of and in the course and scope of his
employment.
? Although the Dispute Certification Notice certified temporary disability issues for adjudication, Mr.
Gonzalez stated he only wanted to get treatment so he could get well and return to work.
p
Mr. Gonzalez’s next documented medical treatment for abdominal pain occurred
January 3, 2019, at the LeConte Medical Center emergency room. He reported
abdominal pain and asked for a “recheck” of his umbilical hernia. He was placed on a
no-lifting restriction and discharged to see a physician for follow-up care.
Mr. Gonzalez returned to UGS on February 7 for authorized treatment. He
reported worsening pain that reached a significant level when he stood or exerted himself.
Dr. Roy Frank Roberts examined Mr. Gonzalez and noted he was very tender on
palpation. He also identified a bulge in his left groin, which he diagnosed as an inguinal
hernia needing surgical repair.
On March 7, Mr. Gonzalez met with Dr. Roberts to discuss causation of his
inguinal hernia. Dr. Roberts informed Mr. Gonzalez that he could not causally connect
the inguinal hernia to work because of the fifteen-month gap between his last treatment
for the umbilical hernia and the visit where the inguinal hernia was identified. Dr.
Roberts also told Mr. Gonzalez that numerous non-work-related factors can cause
inguinal hernias. Dr. Roberts’s report indicated he left the room when Mr. Gonzalez
accused him of lying.°
Findings of Fact and Conclusions of Law
At an expedited hearing, Mr. Gonzalez must provide sufficient evidence from
which the Court can determine he 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). Resolution of the present issue turns on whether Mr. Gonzalez proved
that he suffered work-related hernias.
Generally, an injury “arises primarily out of and in the course and scope of
employment” only if it has been shown by a preponderance of the evidence that the
employment contributed more than fifty percent (50%) in causing the injury, considering
all causes.” Tenn. Code Ann. § 50-6-102(14)(B). Establishment of causation requires
medical expert opinion “[e]xcept in the most obvious, simple and routine cases.” Willis
v. All Staff; No. M2016-01143-SC-R3-WC, 2017 Tenn. LEXIS 455, at *13 (Workers’
Comp. Panel Aug. 3, 2017).
The opinion of the treating physician selected by the employee from the
employer’s panel of physicians is presumed correct on the issue of causation, but this
presumption is rebuttable by a preponderance of the evidence. Tenn. Code Ann. § 50-6-
102(14)(E).
> Mr. Gonzalez testified he saw Dr. Roberts because Dr. Roberts had previously scheduled surgery that
was cancelled after Mr. Gonzalez arrived at the hospital. He stated that Dr. Roberts called the police to
escort him from the premises on March 7.
By statute, establishing causation of hernias requires medical expert opinion of the
following:
(1) There was an injury resulting in hernia or rupture;
(2) the hernia or rupture appeared suddenly;
(3) it was accompanied by pain;
(4) the hernia or rupture immediately followed the accident; and
(5) the hernia or rupture did not exist prior to the accident for which compensation
is claimed.
See Tenn. Code Ann. § 50-6-212(a).
Applying the law to these facts, the Court notes the fervency with which Mr.
Gonzalez testified that his hernias occurred immediately upon lifting the dumpster at
work. However, he cannot establish his right to benefits without supporting medical
evidence. The medical records admitted into evidence contain no expert opinion that
either Mr. Gonzalez’s umbilical or inguinal hernias arose primarily out of and in the
course and scope of employment. Only Dr. Roberts gave a causation opinion, which he
limited to the inguinal hernia. He stated he could not relate it to Mr. Gonzalez’s work
activities for, among other reasons, he did not identify the hernia until many months after
Mr. Gonzalez’s reported injury. The records do show that Mr. Gonzalez was also
diagnosed with a tiny umbilical hernia, but a physician stated that he did not believe the
umbilical hernia accounted for Mr. Gonzalez’s pain.
In view of the above, the Court holds that Mr. Gonzalez failed to present sufficient
evidence to show that he will likely prevail at a hearing on the merits in establishing that
his hernias resulted from a work injury. Therefore, the Court denies his requested
benefits.
IT IS, THEREFORE, ORDERED as follows:
. The Court denies Mr. Gonzalez’s claim for medical benefits.
. The Court schedules a Status Conference at 9:30 a.m. Eastern Time on January
8, 2020. You must call 855-747-1721 (toll-free) or 615-741-3061 to participate.
Failure to call might result in a determination of the issues without your further
participation.
ENTERED October 07, 2019.
Judge Thomas Wyatt
Court of Workers’ Compensation Claims
APPENDIX
Exhibits: The Court admitted the following exhibits into evidence and considered them
unless indicated otherwise:
L.
De
os)
Se Pah AS
Affidavit of Elman Gonzalez
Notice of Denial
Affidavit of Cerise Knight with attachments (Wage Statement and attendance
records)
Declaration of Joseph Bates with attachments (signed panel forms)
Records of University General Surgeons
Records of Mountain Hope Good Shepherd Medical Clinic
Records of LeConte Medical Center (January 3, 2019)
Records of Le Conte Medical Center (August 24, 2017, January 11, 2019)
. Records of Mountain Hope Good Shepherd Medical Clinic (November 13, 2017)
0. Additional records of University General Surgeon—for identification purposes
only (the Court sustained Smoky Mountain’s objection that the records were not
filed before the hearing)
11. Additional records of Mountain Hope Good Shepherd Medical Clinic—for
identification purposes only (the Court sustained Smoky Mountain’s objection that
the records were not filed before the hearing)
Technical record: The Court considered the following:
1.
2s
Petition for Benefit Determination
Dispute Certification Notice
Request for Expedited Hearing
Notice of Expedited Hearing
Motion to Amend Name of Employer
Order amending name of Employer
Order requiring employer to provide interpreter
Employer Witness List
Employer Position Statement
10. Notice of Filing Declaration of Joseph Bates
11. Notice of Filing Affidavit of Cerise Knight
ONDARY
CERTIFICATE OF SERVICE
I certify that a copy of the Order was sent as indicated on October 7, 2019.
Name Certified | Email | Service sent to:
and U.S.
Mail
Elman Gonzales Xx Xx MsalgadoS09@gmail.com
Employee 1226 Fair Valley Lane
Sevierville, TN 37876
Eric Shen x Eric.shen@libertymutual.com
Employer’s Attorney Shelby. hale@libertymutual.com
Effie.cozart(@libertymutual.com
Laney Hh Mr
Peniy Shr}, Court Clerk
We.courtcl&k@tn.gov
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:
1. 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.
LB-1099
EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers’ Compensation
www. tn.gov/labor-wid/weomp.shtml
wce.courtclerk@tn.gov
1-800-332-2667
Docket #:
State File #/YR:
Employee
Vv.
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]
L] 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: LJEmployer LJEmployee
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 *
rev. 10/18 Page 1 of 2 RDA 11082
Employee Name: SF#: DOI:
Appellee(s)
Appellee (Opposing Party): At Hearing: L]JEmployer 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
I,
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
, certify that | have forwarded a true and exact copy of this
[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, 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 Ail Dependents:
Relationship:
Relationship:
Relationship:
Relationship:
6. lam 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
ssl $ 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 I 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