Said, Medhat v. Communications Test Design, Inc.

FILED
Dec 16, 2019
01:52 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
Medhat Said, ) Docket No. 2018-06-0433
Employee, )
V. )
Communications Test Design, Inc., ) State File No. 60229-2019
Employer, )
And )
Zurich American Ins. Co., ) Judge Kenneth M. Switzer
Carrier.
EXPEDITED HEARING ORDER
Medhat Said alleged he suffered a cumulative trauma injury while working for
Communications Test Design, Inc. Mr. Said seeks medical benefits, specifically
reimbursement for unauthorized care, and past temporary total disability benefits. After
an expedited hearing on December 11, 2019, the Court holds that Mr. Said is likely to
prevail at a hearing on the merits that he suffered a cumulative trauma injury arising
primarily out of employment, but it cannot grant the requested relief at this time.
History of Claim
Mr. Said felt pain in his left shoulder while working on August 7, 2017. CTDI
directed him to Dr. Robert Carver. At the first visit, Mr. Said reported “left anterior
shoulder pain [that he] attributed to repetitive scanning of cable boxes daily.” Dr. Carver
diagnosed a repetitive strain injury to the left shoulder and placed Mr. Said on modified
duty. Mr. Said continued to complain of shoulder pain on September 20, but Dr. Carver
found the repetitive strain injury to biceps tendon had resolved and returned him to
regular duty.
When the pain persisted, CTDI offered a panel, and Mr. Said chose Dr. Malcolm
Baxter, an orthopedic specialist. At the first visit on October 6, Dr. Baxter wrote that Mr.
Said’s pain “started after scanning a lot of boxes” and “sharp pain with repetitive
motions involved with his job.” Dr. Baxter concluded, “This does appear to be work
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related more than 50% based on his history.”
At the next visit, Dr. Baxter placed restrictions and ordered a shoulder MRI, which
revealed “no threshold evidence for rotator cuff or glenoid labral tear.” As a result, Dr.
Baxter removed the restrictions in December, released Mr. Said from treatment, and
assigned a zero-percent impairment rating.
Mr. Said returned in February 2018 stating that his shoulder still hurt. At that
time, Dr. Baxter wrote that the work incident “really wasn’t an injury, more just using the
arm,” and he altered his causation opinion by noting, “I don’t see any evidence of a work
related injury.” After receiving the revised causation opinion, CTDI denied further
treatment.
Mr. Said then sought treatment on his own from Dr. Jason Jones, another
orthopedic surgeon. In March, Dr. Jones surgically debrided the shoulder and afterward
diagnosed a left-shoulder subscapularis tear, biceps tendon tear and labral tear. Mr. Said
testified that he continued to treat with Dr. Jones afterward and was unable to work, but
he introduced no records documenting this restriction.' CDTI later terminated Mr. Said.
Dr. Jones’s October 9, 2018 notes state that Mr. Said still complained of left-
shoulder pain; Dr. Jones characterized it as “of unknown etiology.” He placed Mr. Said
at maximum medical improvement and restricted him from performing any repetitive
motion with the left arm.
The parties introduced letters from their respective experts to support their
positions regarding the work-relatedness of the injury. Mr. Said relied on a June 2019
letter to Dr. Jones in which Mr. Said’s attorney asked Dr. Jones whether he could state
within a reasonable degree of medical certainty that Mr. Said’s employment contributed
more than fifty percent in causing his injury, considering all causes, and whether
repetitive movement is a common cause of tendonitis. Dr. Jones circled “‘yes” to both
questions. He also wrote that the surgery was reasonable and necessary.
For its part, CDTI relied on Dr. Baxter’s records, responses to its counsel’s letter,
and the doctor’s undated narrative. In response to the letter, Dr. Baxter wrote, “[Y]es[,|
he did sustain an injury to the left shoulder arising primarily [out] of his employment,
contributing more than 50%.” Dr. Baxter wrote that he did not find a left-shoulder
subscapularis tear, biceps tendon tear or labral tear, and that surgery was unnecessary.
Further, in the narrative, Dr. Baxter wrote:
' Mr. Said’s counsel provided additional medical records from Dr. Jones and from physical therapy to the
mediator, but she did not file them with the Clerk. She attempted to introduce these records at the
hearing, but the Court sustained CTDI’s objections.
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The patient did not relate a specific injury to me during our discussions
with one another. He stated that he simply had some soreness in his
shoulder from scanning boxes while working[.] ... In my opinion, Mr.
Said did not suffer a discrete injury at work. This is based on the history he
gave me of no particular injury and the MRI[,] which did not show any
structural deficits or injury to the shoulder.
Mr. Said argued that Dr. Jones and Dr. Baxter (initially) gave the opinion that his
injury is work-related. He asked the Court to order payment for his surgery and past
temporary total disability benefits. Mr. Said testified he incurred approximately $28,000
in medical bills for Dr. Jones’s treatment but did not introduce the bills into evidence.
CTDI argued that Dr. Baxter’s post-surgery causation opinion is correct and that the
surgery, which was not successful in treating Mr. Said’s symptoms, did not treat a work-
related condition.’
Findings of Fact and Conclusions of Law
Mr. Said must present sufficient evidence that he is likely to prevail at a hearing
on the merits. See Tenn. Code Ann. § 50-6-239(d)(1) (2019); McCord v. Advantage
Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
The threshold issue is whether Mr. Said suffered an injury as defined in the
Workers’ Compensation Law. Tennessee Code Annotated section 50-6-102(14) provides
that an “injury” means an “injury by accident .. . or cumulative trauma conditions . . . or
any other repetitive motion conditions, arising primarily out of and in the course and
scope of employment, that causes . . . the need for medical treatment[.]” Further, the
employment must contribute more than fifty percent in causing the injury, considering all
causes, which must be shown to a reasonable degree of medical certainty. Jd. at 50-6-
102(14)(B)-(D). Here, the Court must determine if Mr. Said carried his burden in
establishing these elements considering differing opinions. “[W]hen faced with
competing expert medical opinions, trial courts are granted broad discretion in choosing
which opinion to accept.” Gilbert v. United Parcel Serv., Inc., 2019 TN Wrk. Comp.
App. Bd. LEXIS 20, at *11-12 (June 7, 2019).
The parties agreed that Mr. Said chose Dr. Baxter from a panel. Therefore, his
opinion as the authorized treating physician is presumed correct under Tennessee Code
Annotated section 50-6-102(14)(E), but this presumption can be overcome by a
preponderance of the evidence.
Here, Dr. Baxter initially noted that Mr. Said reported a repetitive-motion injury
* Both parties raised additional issues in their briefs, but the Court only addresses those argued at the
hearing.
related to his work. He later wrote in his narrative, however, that the injury was not
work-related because Mr. Said did not report a “specific injury” during their discussions.
Rather, he “simply had some soreness in his shoulder from scanning boxes[.]” He further
wrote, “In my opinion, Mr. Said did not suffer a discrete injury at work. This is based on
the history he gave me of no particular injury and the MRI[,] which did not show any
structural deficits or injury to the shoulder.” However, in response to a written question
from CTDI, he later wrote, “[Y]es[,] he did sustain an injury to the left shoulder arising
primarily [out] of his employment, contributing more than 50%.”
In contrast, Dr. Jones offered an opinion within a reasonable degree of medical
certainty that Mr. Said’s employment contributed more than fifty percent in causing the
injury, considering all causes. He further stated that repetitive movement is a common
cause of tendonitis.
Reviewing the two opinions in context, the Court finds Dr. Baxter initially thought
the repetitive injury was work-related, but he later changed his opinion because Mr. Said
suffered no “specific injury” or event. This opinion runs counter to the statute’s inclusion
of “cumulative trauma conditions” or “other repetitive motion conditions” within the
definition of compensable injuries. In his post-surgery response to counsel’s letter, Dr.
Baxter specifically confirmed the injury as work-related. Meanwhile, Dr. Jones stated
that repetitive movement is a common cause of bicep tendonitis.
Further, the Court considers the circumstances of the physician’s treatment. Dr.
Baxter provided conservative treatment over four visits before discharging Mr. Said as a
patient. Conversely, though the Court cannot determine the number of office visits, Dr.
Jones had greater contact with Mr. Said because he performed surgery, directly
observing and diagnosing the tear. “It seems reasonable that the physicians having greater
contact with the [employee] would have the advantage and opportunity to provide a more in-
depth opinion, if not a more accurate one.” Bass v. The Home Depot USA, Inc., 2017 TN
Wrk. Comp. App. Bd. LEXIS 36, at *14 (May 27, 2017).
In sum, the Court finds Dr. Jones’s opinion straightforward and persuasive, while
Dr. Baxter’s opinion changed over time, even though his last opinion is unequivocal that
the shoulder injury arose out of employment. Thus, the Court holds Mr. Said is likely to
prevail at a hearing on the merits that his left-shoulder condition arose primarily out of
his employment at CTDI.
In light of this conclusion, the Court turns to the requested relief. First, Mr. Said
seeks payment of his past medical bills. CTDI argued that he is unlikely to prevail on
this request, citing Eaves v. Ametek, Inc., 2018 TN Wrk. Comp. App. Bd. 53 (Sept. 14,
2018). In Haves, the Appeals Board offered guidance as to the proper means of
authenticating bills so they are admissible evidence. The bills must be authenticated and
identified as accurate, and supporting documentation must show that they were
4
identified as accurate, and supporting documentation must show that they were
reasonable and related to the work accident. Jd. at *8. Here, Mr. Said met none of these
requirements. Therefore, the Court denies his request for payment of medical bills at this
time.
Next, Mr. Said requests past temporary disability benefits. To establish his
entitlement to these benefits, he must show he (1) became disabled from working due to a
compensable injury, (2) a causal connection between the injury and his inability to work,
and (3) the duration of the period of disability. Jones v. Crencor Leasing and Sales, TN
Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11, 2015). Here, the Court previously
found he is likely to prevail at the final hearing on the issue of compensability. However,
the evidence does not show a causal connection between his inability to work and the
injury, or the duration of disability. Therefore, the Court denies Mr. Said’s request for
temporary total disability benefits at this time.
IT IS, THEREFORE, ORDERED AS FOLLOWS:
1. Mr. Said’s request for medical and temporary disability benefits is denied at
this time.
2. This case is set for a Scheduling Hearing on February 10, 2020, at 9:30 a.m.
Central Time. You must call 615-532-9552 or toll-free at 866-943-0025 to
participate in the Hearing. Failure to call might result in a determination of the
issues without your participation.
ENTERED December 16, 2019.
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Affidavit of Medhat Said
2. First Report of Injury
3. Employer’s Medical Records
4. Dr. Baxter’s memorandum and causation letter response to Employer’s counsel
5. Dr. Jones’s response to CTDI Human Resources’s letter about work restrictions
6. Dr. Jones’s response to causation letter from Employee’s counsel
7. Employee’s Medical Records
8. Employer’s Statement of Wage Earnings
5
9. Employee of the Month certificate
10. Job description
11. Medical Record of Concentra, August 31, 2017 (Identification only)
12. Restrictions, Dr. Jones (Identification only)
13. Termination letter (Identification only)
Technical Record:
“PS
Se PID
Petitions for Benefit Determination (March 14 and November 26, 2018)
Dispute Certification Notice and Employer’s list of issues
Request for Expedited Hearing
CTDI’s Pre-Expedited Hearing Statement of
Employer’s Motion for Permission to Present Witness Testimony By Telephone or
Videoconferencing
Order Granting Employer’s Motion
Employee’s Reply to Employer’s Pre-Expedited Hearing Statement
Plaintiff's Objection to Late Filed Medical Report
Post-Expedited Hearing Motion to Enter a Late-Filed Exhibit
0. Order Denying Motion to Enter a Late-Filed Exhibit
CERTIFICATE OF SERVICE
I certify that a copy of the Expedited Hearing Order was sent as indicated on
December 16, 2019.
Name Certified | Via Via Service sent to:
Mail Fax Email
Linda Sue Nicklos, x lindasuenicklos@gmail.com
Employee’s attorney lawofficelsn@gmail.com
Michael Haynie, x mhaynie@manierherod.com
Employer’s Attorney
Mo wnt Mri
Penny Shrum, Clerkof Court |
Court of Workers’ Compensation Claims
WC.CourtClerk@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