Sauber, Sarah v. Harbor Freight Tools USA, Inc.

FILED
Aug 13, 2020
11:58 AM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT KNOXVILLE
SARAH SAUBER, ) Docket No. 2019-03-1132
Employee, )
Vv. )
HARBOR FREIGHT TOOLS USA, )
INC., ) State File No. 1233-2019
Employer, )
And )
SAFETY NATIONAL CASUALTY )
CORPORATION, ) Judge Pamela B. Johnson
Carrier. )
EXPEDITED HEARING ORDER
Sarah Sauber injured her right arm at work, and Harbor Freight paid medical and
temporary disability benefits. She now seeks treatment for her right hand, a second panel
or alternatively a second opinion on the right elbow, and temporary partial disability
benefits. Harbor Freight denied the additional benefits. For the reasons below, the Court
holds Ms. Sauber is entitled to a hand-specialist panel but denies her requests for a new
panel or second opinion for her elbow and temporary partial disability benefits. !
History of Claim
On January 5, 2019, Ms. Sauber injured her right arm at work, and Harbor Freight
authorized medical treatment.
Ms. Sauber first treated with an urgent care clinic, where she was diagnosed with
tennis elbow and referred to an orthopedic physician. Harbor Freight provided an
orthopedic-physician panel, and she chose Dr. David Hovis.
! Ms. Sauber additionally asked for reimbursement of her mileage traveling to/from her authorized
appointments, which Harbor Freight agreed to pay under Tennessee Code Annotated section 50-6-204.
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Ms. Sauber saw Dr. Hovis on January 24 and reported pain in her right forearm and
hand. He diagnosed tennis elbow and complex regional pain syndrome (CRPS). Dr. Hovis
treated her symptoms conservatively and restricted her to light duty. On July 16, Dr. Hovis
placed Ms. Sauber at maximum medical improvement (MMI) and assigned a one-percent
permanent impairment for her elbow. He also referred her to a physiatrist for her ongoing
CRPS complaints.
Ms. Sauber then saw a panel-selected physiatrist, Dr. Steven Musick, on June 21,
2020. Dr. Musick reviewed Dr. Hovis’s treatment and found that Ms. Sauber’s symptoms
did not meet the criteria for CRPS. Dr. Musick referred her to a hand specialist for her
persistent forearm pain.
Ms. Sauber asked the Court to order Harbor Freight to provide additional medical
treatment. First, she requested a panel of hand specialists for her continuing hand and
forearm complaints. Second, she requested a new panel of orthopedists to take over
treatment of her elbow or alternatively to provide a second opinion. She argued that Dr.
Hovis never evaluated or treated her hand, wrist or forearm. Harbor Freight denied that
Ms. Sauber is entitled to the hand-specialist panel or a new panel of orthopedic specialists.
It asserted that she selected Dr. Hovis as her authorized treating physician and must return
to him for any further treatment.
Third, Ms. Sauber also asked for temporary partial disability benefits. She testified
that Harbor Freight reduced her hours after her injury. She said she earned $9.50 per hour
and usually worked fifteen to thirty hours per week before the injury but worked only five
to fifteen hours afterward. She stated that she resigned on April 3, 2019, due to her hours
being reduced to five hours per week. She began new employment on April 8, earning $10
or $11 per hour.
Harbor Freight denied Ms. Sauber’s entitlement to temporary disability benefits.
On cross-examination, Ms. Sauber admitted that she was a part-time employee and earned
$9.50 per hour. She acknowledged that her hours and schedule varied week to week. When
asked to compare some of her pay stubs for periods before and after her work injury, Ms.
Sauber acknowledged that she worked approximately fifteen hours per week in those pay
periods both before and after her injury, including the two weeks before her resignation.
Findings of Fact and Conclusions of Law
At an Expedited Hearing, Ms. Sauber must show that she is likely to prevail at a
hearing on the merits that she is entitled to the requested benefits. McCord v. Advantage
Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Addressing her claim for a panel of hand specialists, when a panel-selected
physician makes a referral to a specialist physician, the employer shall provide the
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employee a panel of three or more independent reputable physicians. See Mollica v. EHHI
Holdings, Inc., d/b/a Advanced Home Care Mgmt., Inc., d/b/a Encompass Home Health,
2020 TN Wrk. Comp. App. Bd. LEXIS 22, at *5 (Apr. 21, 2020). Once a panel-selected
physician makes the referral, the burden of proof falls to the employer to show that the
referral was not medically appropriate as a result of the compensable injury. Jd. at *5.
Treatment recommended by a panel-selected physician is presumed medically necessary.
Id. Additionally, when a treating physician makes a referral to a specialist, the specialist
physician becomes the treating physician until the treatment by the specialist physician
concludes and the employee is referred back to the treating physician selected from the
initial panel. See Endsley v. Benchmark Contractors, LLC, 2017 TN Wrk. Comp. App.
Bd. LEXIS 47, at *6 (Aug. 11, 2017).
Here, Ms. Sauber selected Dr. Hovis from a panel, who later referred her to a
physiatrist. She selected a physiatrist, Dr. Musick, from a panel, who then referred her to
a hand specialist. Dr. Musick knew of Dr. Hovis’s treatment of Ms. Sauber when he made
the referral. He did not refer Ms. Sauber back to Dr. Hovis. Instead, he referred her to a
hand specialist, which referral is presumed medically necessary. Harbor Freight did not
show that the referral was medically unnecessary or that Dr. Hovis is a hand specialist.
Therefore, the Court holds that Ms. Sauber presented sufficient evidence that she is likely
to succeed at a hearing on the merits on entitlement to a panel of hand specialists.
As for the request for a new panel to replace Dr. Hovis, Ms. Sauber did not show
that Dr. Hovis refused to treat her elbow. Thus, the Court denies her request, and he shall
remain the authorized treating physician for her elbow.
On the second-opinion request, when a treating physician makes a referral, the
employee is entitled to a second opinion on the issue of surgery and diagnosis. See Petty
v. Convention Prod. Rigging, 2016 TN Wrk. Comp. App. Bd. LEXIS 95, at *20 (Dec. 29,
2016). Here, although Dr. Hovis and Dr. Musick made referrals, they did not recommend
surgery, so Ms. Sauber does not meet the criteria for a second opinion. Therefore, the Court
denies her request.
Turning lastly to her temporary partial disability claim, an employee is entitled to
these benefits when the temporary disability from a work-related injury is not total. See
Tenn. Code Ann. § 50-6-207(1)-(2). In other words, the employee may be eligible for
temporary partial disability if the treating physician has released the employee to return to
work with restrictions before MMI, and the employer either (1) cannot return the employee
to work within the restrictions or (2) cannot provide restricted work for a sufficient number
of hours and/or at a rate of pay equal to or greater than the employee’s average weekly
wage on the date of injury. See Heard v. Carrier Corp., 2018 TN Wrk. Comp. App. Bd.
LEXIS 16, at *5-6 (Apr. 20, 2018).
In this case, Dr. Hovis assigned light-duty restrictions that Harbor Freight
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accommodated. Ms. Sauber’s testimony was that she continued to work approximately the
same number of hours after the injury as she did before her injury at the same rate of pay.
Therefore, the Court denies this request.
IT IS, THEREFORE, ORDERED as follows:
I.
Ms. Sauber’s request for a panel of hand specialists is granted. Harbor Freight shall
provide Ms. Sauber with a hand-specialist panel under Tennessee Code Annotated
section 50-6-204.
Ms. Sauber’s requests for a new panel of specialists or a second opinion for her
elbow are denied at this time. Dr. Hovis shall remain the authorized treating
physician for her elbow.
. Ms. Sauber’s request for temporary partial disability is denied at this time.
This case is set for a Scheduling Hearing on December 8, 2020, at 9:30 a.m.
Eastern Time. The parties must call 855-383-0003 (toll-free) to participate.
Failure to appear by telephone might result in a determination of the issues without
the party’s participation.
. 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 within the period of compliance might result in a penalty assessment
for non-compliance.
For questions regarding compliance, please contact the Workers’ Compensation
Compliance Unit by email at WCCompliance.Program@tn.gov.
ENTERED August 13, 2020.
JUDGE PAMELA B. JOHNSON
Court of Workers’ Compensation Claims
APPENDIX
Technical Record:
1.
. Dispute Certification Notice
ON AARWH
Petition for Benefit Determination
Request for Expedited Hearing
Employee’s Notice of Filing of Exhibits, June 19, 2020
Employee’s Second Notice of Filing of Exhibits, July 5, 2020
Employee’s Third Notice of Filing of Exhibits, July 23, 2020
Employer’s Brief
Employee’s Fourth Notice of Filing of Exhibits, July 29, 2020
Exhibits:
1.
. Ms. Sauber’s Position Statements
SNIAARWH
9.
Ms. Sauber’s Affidavit
Dr. David Hovis’s Deposition Transcript
First Report of Work Injury
Wage Statement
Ms. Sauber’s Earnings Statements
Harbor Freight Logistics’ Job Duties
Panel of Physicians, April 19, 2020
Panel of Physicians, June 2, 2020
10. Guardian Correspondence, June 19, 2020
11. Harbor Freight Tools USA, Inc.’s Letter, January 24, 2019
12. Electronic Communications and Text Messages
13. Harbor Freight’s Employee Schedule/Calendar
14. Medical Records:
15. Photographs
16. Mileage Submittal Sheet
CERTIFICATE OF SERVICE
I certify that a copy of the Order was sent as indicated on August 13, 2020.
Name Certified Email Service sent to:
Mail
Sarah Sauber, x sarah68lee@yahoo.com
Self-Represented
Employee
Kristina A. Woo, Xx kwoo@spence-lawfirm.com
Employer’s Attorney
py we wll Plisressen
PENNY SHRUM, Court Clerk
wc. NY BRUM Ci 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:
I.
Complete the enclosed form entitled: “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.
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.
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.
If you wish to file a position statement, you must file it with the court clerk within fen
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.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.pov/workforce/inijuries-at-work/
wce.courtclerk@tn.gov | 1-800-332-2667
Docket No.:
State File No.:
Date of Injury:
Employee
Employer
Notice is given that
[List name(s) of all appealing party{ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
O Expedited Hearing Order filed on O Motion Order filed on
C1 Compensation Order filed on O Other Order filed on
issued by Judge
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Parties
Appellant(s) (Requesting Party): [) Employer[.J Employee
Address: Phone:
Email:
Attorney’s Name: BPR#:
Attorney’s Email: Phone:
Attorney’s Address:
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
Employee Name: Docket No.: Date of Inj.:
Appellee(s) (Opposing Party): [_] Employer [Employee
Appellee’s Address: Phone:
Email:
Attorney’s Name: BPR#:
Attorney’s Email: Phone:
Attorney’s Address:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
lL, , certify that | have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the day of , 20
[Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082
Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, !-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. 1am 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 | 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