Washington, John v. UPS Ground Freight, Inc. , 2020 TN WC 125 ( 2020 )

FILED
Dec 01, 2020
10:13 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
JOHN WASHINGTON, ) Docket No. 2017-08-1205
Employee, )
v. ) State File No. 69226-2017
UPS GROUND FREIGHT, INC., )
Employer, ) Judge Allen Phillips
And )
LIBERTY MUTUAL INS. CO. )
Carrier. )
COMPENSATION ORDER FOR MEDICAL BENEFITS
(Decision on the Record)
This case came before the Court for a Compensation Hearing on the record. Mr.
Washington requested additional medical and temporary total disability benefits, and
permanent disability benefits for a September 7, 2017 injury. UPS contended that he was
not entitled to the requested benefits because he offered no medical evidence in support.
After review of the record, the Court holds Mr. Washington is entitled to future medical
benefits but nothing further.
History of Claim
The incident at issue is undisputed; Mr. Washington was struck in the head by a
metal bar while loading a truck. Afterward, UPS transported him to an emergency room,
where a provider diagnosed a mild concussion.
UPS provided a panel of physicians, which, at Mr. Washington’s request, included
his personal physician, Dr. Cary Mettetal. Dr. Mettetal diagnosed post-concussion
syndrome and a neck strain. He referred Mr. Washington to a neurologist and placed him
off work until he saw one. Mr. Washington then went on his own to Panola Medical Center
emergency room, where a CT scan of the head was interpreted as normal.
Based on Dr. Mettetal’s referral, UPS provided Mr. Washington a panel of
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neurologists. He chose Dr. Mohammed Assaf. However, before seeing Dr. Assaf, Mr.
Washington returned to Dr. Mettetal, who continued the off-work restriction and said Mr.
Washington needed a “personal care assistant” until he saw the neurologist, but he deferred
to the neurologist as to continued need for the personal assistant.
On October 30, Dr. Assaf diagnosed post-concussion syndrome, low-back pain and
cervical disc degeneration. He recommended an MRI of the low back and restricted Mr.
Washington from work until it was performed. He did not believe Mr. Washington needed
a personal care assistant. Mr. Washington’s disagreement with those recommendations
prompted Dr. Assaf to say he would not see him again. However, Mr. Washington did
undergo the lumbar MRI; it was normal.
UPS paid Mr. Washington temporary total disability benefits (TTD) until December
6 but then stopped because of Mr. Washington’s failure to follow Dr. Assaf’s
recommendations. Over the next few months, UPS offered Mr. Washington five more
panels of neurologists. He chose one but then told the physician that Drs. Mettetal and
Assaf had provided “unethical, unjust, illegal and inferior” medical treatment and that he
had filed complaints against them. After that, the chosen neurologist refused to see him.
Two other neurologists declined to see him, and he refused to choose any others. However,
he continued to seek treatment at Panola on his own. Records of that treatment reveal that
the providers thought Mr. Washington’s complaints regarding his head injury did not
justify emergency care. UPS initially paid for the treatment at Panola but then told Mr.
Washington it would not authorize or pay for more.
The case remained in the same posture until an April 2018 Expedited Hearing.
There, Mr. Washington requested payment for a personal care assistant, reinstatement of
his TTD, payment of the emergency room bills, and further medical evaluation from a
physician “outside” the workers’ compensation system. He attributed symptoms of
dizziness, migraines, depression, anxiety, PTSD, and spinal pain to the injury.1 As to his
refusal to choose another neurologist, Mr. Washington explained that he wanted
replacements for “variety” and that the offered neurologists had “bad reviews.”
For its part, UPS maintained that Mr. Washington had to choose one of the
remaining neurologists if he wanted further treatment, he could not recover payment for
the unauthorized emergency room treatment, and he submitted no proof that he needed a
personal care assistant.
After the Expedited Hearing, the Court held UPS had complied fully with its
statutory requirement to provide medical treatment by providing five panels of
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In support, Mr. Washington submitted articles that discussed an alleged link between a head injury and
his conditions. UPS filed a Motion in Limine to exclude the documents, which the Court granted. Mr.
Washington later asked the Court to reverse that holding and requested that the undersigned recuse himself.
The Court denied both requests.
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neurologists, but that Mr. Washington had not complied with his duty to choose one. Thus,
the Court held that, if Mr. Washington wanted further treatment, he must choose another
neurologist from the panels offered. Further, the Court held Mr. Washington did not prove
he was entitled to payment of the emergency room bills, a personal care assistant, or
reinstatement of TTD. Mr. Washington appealed.
While the appeal was pending, Mr. Washington went on his own to Baptist DeSoto
Hospital in June 2018. There, he was diagnosed with multiple conditions including severe
ketoacidosis, metabolic syndrome, morbid obesity, hypertension, diabetes, and chronic
renal failure. The records contain no medical opinion relating those conditions to the work
injury.
On August 2, 2018, the Appeals Board affirmed the Expedited Hearing Order and
remanded the case. Then, on August 20, the Court entered a Status Hearing Order noting
that the Expedited Hearing Order remained in effect and Mr. Washington had to choose
another neurologist if he wanted treatment.
Afterward, throughout 2018 into 2019, Mr. Washington filed numerous motions
that the Court denied, each time reminding Mr. Washington that he must choose another
neurologist if he wanted further treatment.
Ultimately, in June 2019, UPS filed a Motion to Dismiss for Failure to Prosecute,
arguing that Mr. Washington’s continued refusal to choose a neurologist caused a barrier
to the case proceeding. The Court denied the motion because Mr. Washington chose
another neurologist one business day before the Court heard the motion.
That neurologist refused to see Mr. Washington, but he and UPS agreed to another,
Dr. Alan Nadel. However, the evaluation was delayed, as Mr. Washington continued filing
motions with the Clerk.
For example, in September 2019, he filed motions for an “unbiased” evaluation, for
“back pay,” and one asking that the Court deem him permanently and totally disabled
(PTD). The Court denied all of them because Mr. Washington offered no legal bases for
the requests. Then, Mr. Washington filed what he called “exhibits,” another motion to deem
him PTD, and a motion for a Compensation Hearing on the record. He also requested that
UPS pay for his transportation to medical appointments. On January 3, 2020, the Court
denied the motions but ordered UPS to pay the statutory mileage reimbursement for travel
to medical appointments. Mr. Washington appealed.
On January 27, Mr. Washington finally saw Dr. Nadel, who recorded the history of
injury. He also noted a lack of objective findings regarding its severity. Further, his
examination revealed no significant findings. However, he noted Mr. Washington suffered
from the conditions detailed in the June 2018 Baptist records. Dr. Nadel said none of them
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were caused by Mr. Washington being struck in the head, an injury he described as mild
and inconsequential.
Dr. Nadel recorded that Mr. Washington spent “90% of the time” complaining about
the workers’ compensation system and expressing his opinions as to the statutory
definitions of permanent disability. He told Dr. Nadel that he had not seen a workers’
compensation physician even though, as Dr. Nadel observed, he had seen Dr. Assaf.
Because Mr. Washington was loud and aggressive, and at times Dr. Nadel said he felt
threatened, he said he would not see him again. He also thought Mr. Washington was
exaggerating his symptoms for secondary gain and did not provide an impairment rating.
On April 8, the Appeals Board affirmed the January 3 order. Mr. Washington then
requested this on-the-record Compensation Hearing, and the Court referred the parties to
post-discovery mediation. When it failed, the Court entered a Docketing Notice designating
the record set forth in the Appendix and gave the parties an opportunity to object or add to
it. UPS objected to parts of the record on grounds of improper foundation and/or hearsay.
Mr. Washington filed documents that were duplicates of previous filings.
The record contains many filings by Mr. Washington that contain his personal
opinions regarding his condition and that cite sources containing hearsay. He personally
completed a Standard Form Medical Report (C-32) and submitted “sworn” statements of
both him and a friend asserting he was totally disabled. The only medical records are from
the hospitals and doctors described above.
On its review of the record, the Court gleans that Mr. Washington requests: TTD
from when UPS stopped paying until he chose another neurologist in June 2019; payment
of his outstanding medical bills at both Panola and Baptist; payment for a personal care
assistant; and further medical evaluation from an “unbiased” physician. He also contends
he is either permanently and totally disabled or “99%” permanently partially disabled. UPS
argued that he offered no medical evidence supporting his requests.
Findings of Fact and Conclusions of Law
Mr. Washington bears the burden of proof on all elements of his claim. Scott v.
Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18,
2015). At a Compensation Hearing, he must prove those elements by a preponderance of
the evidence. Tenn. Code Ann. § 50-6-239(c)(6) (2019).
Mr. Washington must show his alleged injuries were caused by a specific incident
arising primarily out of his employment at UPS. An injury arises primarily out of the
employment only if the employee shows to a reasonable degree of medical certainty that
his employment contributed more than fifty percent in causing it. “Shown to a reasonable
degree of medical certainty” means that, in the opinion of the physician, it is more likely
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than not considering all causes. Tenn. Code Ann. § 50-6-102(14)(A)-(D).
Looking to those requirements, the Court finds that a specific incident occurred: Mr.
Washington was struck in the head by a metal bar on September 7, 2017. Further, the Court
finds by a preponderance of the evidence that Mr. Washington sustained a mild concussion
as a result based on the records from Panola and Drs. Mettetal, Assaf, and Nadel. However,
evidence of any injury stops there; the record does not support a finding that any of Mr.
Washington’s other conditions are work-related.
To the contrary, the Court finds nothing in the record linking Mr. Washington’s
other conditions to his head injury. Moreover, Dr. Nadel provided the only direct causation
opinion in the record and specifically said Mr. Washington’s other conditions were not
work-related. Thus, Mr. Washington did not prove by a preponderance of the evidence that
he is entitled to any benefits except those related to a mild concussion.
As to those benefits, the Court first considers whether Mr. Washington can recover
additional TTD. In that regard, the Court finds no admissible medical opinion that he was
disabled from working after UPS stopped paying TTD in accordance with the law. Though
he finally chose another neurologist in June 2019, he still must establish a causal
connection between his injury and his inability to work. Jones v. Crencor Leasing and
Sales, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11, 2015). He did not do so.
As to permanent disability, the Court finds nothing in the record regarding any
permanent impairment Mr. Washington might have sustained as a result of the injury. Dr.
Nadel said Mr. Washington sustained only a mild, inconsequential head injury, and neither
he nor the other doctors provided an impairment rating. It follows then that Mr. Washington
did not prove a permanent injury and cannot recover any type of permanent disability
benefits.
As to medical benefits, Tennessee Code Annotated section 50-6-204(a)(1)(A)
requires UPS to furnish Mr. Washington medical treatment made reasonably necessary by
his injury. The law requires no more. Thus, UPS is not responsible for payment of any
unpaid medical bills from Panola or Baptist, as it did not authorize that treatment. Further,
as the Court previously found, there is no proof that Mr. Washington needs a personal care
assistant or transportation to medical appointments.
However, UPS is responsible for future medical treatment of the mild concussion
related to the incident of September 7, 2017. This is true, even though the injury did not
cause permanent impairment. Tenn. Code Ann. § 50-6-204(b)(1); Barron v. State Dep’t of
Human Servs., 184 S.W.3d 219, 223 (Tenn. 2006). To comply with that obligation, UPS
may designate the authorized provider for future medical treatment.
IT IS, THEREFORE, ORDERED as follows:
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1. The Court denies Mr. Washington’s request for additional temporary total,
permanent partial, or permanent total disability benefits.
2. The Court denies Mr. Washington’s request for payment of medical bills for
unauthorized treatment, a personal care assistant, or transportation to medical
appointments.
3. UPS shall provide Mr. Washington future medical benefits under Tennessee Code
Annotated section 50-6-204 (a)(1)(A) for the concussion related to the September
7, 2017 incident. UPS shall designate the physician to provide that treatment.
4. UPS shall pay $150 costs to the Court Clerk within five business days after this
order becomes final under Tennessee Compilation Rules and Regulations 0800-02-
21-.06 (August, 2019).
5. UPS shall prepare and submit to the Court Clerk a Statistical Data Form (SD2)
within ten business days of this order becoming final.
6. Unless appealed, this order shall become final thirty days after issuance.
ENTERED December 1, 2020.
_____________________________________
JUDGE ALLEN PHILLIPS
Court of Workers’ Compensation Claims
APPENDIX
Technical record:
1. Petition for Benefit Determination (October 30, 2017)
2. Dispute Certification Notice (DCN) (December 15, 2017)
3. Expedited Hearing Order (April 27, 2018) (including the Technical Record)
4. Order Denying Recusal (May 9, 2018)
5. Appeals Board Order Affirming in Part, Dismissing in part and Remanding
Case (August 2, 2018)
6. Order Denying Motion for Urgent Medical Treatment (February 5, 2019)
7. Order Denying Motion for Another Panel Physician (February 14, 2019)
8. Order Denying Motion for Another Panel (March 25, 2019)
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9. Order Denying Motion to Dismiss for Failure to Prosecute (July 3, 2019)
10. Order Denying Motions (September 18, 2019)
a. Motion for back pay
b. Unbiased Independent Medical Evaluation
c. Request for permanent total disability
11. Order for Transportation Expenses and Denying Other Motions (January 3,
2020)
a. Characterization as permanently and totally disabled
b. Denying Compensation Hearing on the record at that time
c. Denying exhibit filings on grounds they were premature
12. Appeals Board Order Affirming January 3 Order (April 8, 2020)
13. Order Allowing Amendment of Dispute Certification Notice (May 7, 2020)
(adding issues of compensability and permanent disability)
14. Order Setting Scheduling Hearing (July 2, 2020)
15. Order Regarding On-the-record Determination (July 15, 2020)
16. UPS’s Objections to Designated Record (filed in response to Docketing
Notice)
17. UPS’s Compensation Hearing Memorandum (filed in response to
Docketing Notice)
18. Order Granting UPS’s Motion in Limine (April 6, 2018) (as requested in
UPS’s response to Docketing Notice)
19. Post-Discovery DCN (September 16, 2020) (as requested in UPS’s response
to Docketing Notice)
Exhibits:
1. Affidavit of John Washington, including his statement of demands
2. Affidavit of Sarah Moore, including attachments
3. First Report of Work Injury
4. Wage Statement
5. Employee’s Exhibits A, B, C, D, E, F, I, M, O, P, R and S (Excluded
before Expedited Hearing by Motion in Limine and marked for
identification only)
6. Employee’s Exhibits G and W (Handwritten statements on these records
were excluded by Motion in Limine before Expedited Hearing)
7. Collective Medical Records with Index of Concentra, Methodist
Hospital, Panola Medical Center, Mettetal Family Medicine and
Mohammed Assaf
8. Employee’s Exhibit H, K, L, N, Q, T, U, V and X
9. Letter from UPS to Mr. Washington regarding work status
10. E-mail from Mr. Washington to Sarah Moore regarding Dr. Assaf’s
discontinuing treatment
11. Additional Emergency Room records
(Exhibits 1-11 were introduced at the Expedited Hearing).
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12. Medical Records of Baptist DeSoto Hospital-June 18 through July 5,
2018 (filed by Mr. Washington on March 22, 2019 and including a
medical authorization allowing UPS to obtain the records)
13. Medical Records of Dr. Alan Nadel (filed by UPS on July 27, 2020 and
added as pages 192-195 to the Collective Medical Records marked as
Exhibit 7 above)
14. Mr. Washington’s Filings on the following dates, identified with TN
Comp Doc Id numbers for clarity:
a. May 4, 2020 (39120, 39121, 39143, 39152)
b. July 3, 2020 (41713).
c. July 5 (41756)
d. July 8 (41902)
e. July 14 (42270, 42271)
f. July 15 (42326, 42327, 42347)
g. July 16 (42349)
h. July 17 (42396)
i. July 19 (42397)
j. July 27 (42793, 42794)
k. August 24 (45195, 44091)
l. September 28 (45783)
15. Transcript of Mr. Washington’s Expedited Hearing testimony (as
requested in UPS’s response to Docketing Notice)
CERTIFICATE OF SERVICE
I certify that a copy of this Compensation Order was sent as indicated on December
1, 2020.
Name Via Email Service sent to:
John Washington, Self-Represented X Washingtonjohn73@gmail.com
Employee
Garrett Estep, Attorney for Employer X gestep@farris-law.com
_____________________________________
Penny Shrum, Court Clerk
Court of Workers’ Compensation Claims
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Compensation Hearing Order Right to Appeal:
If you disagree with this Compensation Hearing Order, you may appeal to the Workers’
Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers’
Compensation Appeals Board, you must:
1. Complete the enclosed form entitled: “Notice of Appeal,” and file the form with the
Clerk of the Court of Workers’ Compensation Claims within thirty calendar days of the
date the compensation hearing order was filed. When filing the Notice of Appeal, you
must serve a copy upon the opposing party (or attorney, if represented).
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 filing 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 your 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. A licensed court
reporter must prepare a transcript and file it with the court clerk within fifteen calendar
days of the filing the Notice of Appeal. Alternatively, you may file a statement of the
evidence prepared jointly by both parties within fifteen calendar 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
of the evidence 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. After the Workers’ Compensation Judge approves the record and the court clerk transmits
it to the Appeals Board, a docketing notice will be sent to the parties. The appealing
party has fifteen calendar days after the date of that notice to submit a brief to the
Appeals Board. See the Practices and Procedures of the Workers’ Compensation
Appeals Board.
To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing
Order must be final and you must comply with the Tennessee Rules of Appellate
Procedure. If neither party timely files an appeal with the Appeals Board, the trial court’s
Order will become final by operation of law thirty calendar days after entry. See Tenn.
Code Ann. § 50-6-239(c)(7).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________
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):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ 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 ☐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
I, _____________________________________________________________, certify that I 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