Furstnau, Tony v. PC Metro Bottling , 2020 TN WC 128 ( 2020 )

FILED
Dec 04, 2020
07:15 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT GRAY
TONY FURSTNAU, ) Docket Number: 2019-02-0556
Employee, )
v. )
PC METRO BOTTLING, ) State File Number: 62608-2019
Employer, )
And )
INDEMNITY INSURANCE ) Judge Brian K. Addington
COMPANY OF NORTH AMERICA, )
Carrier. )
EXPEDITED HEARING ORDER
(DECISION ON THE RECORD)
Tony Furstnau filed a Request for Expedited Hearing seeking benefits for an alleged
August 9, 2019 work injury. The central issue is whether he is likely to prove at a final
hearing that he suffered an injury primarily arising out of and in the course and scope of
his employment. Because he did not provide a physician’s opinion linking the cause of his
injury to his work, the Court denies the requested benefits.
Claim History
Mr. Furstnau experienced low-back and right-hip pain two to three weeks before
getting medical treatment on July 31, 2019, through his local VA medical center. On
August 9, his pain worsened as he performed his job at PC Metro. He worked through his
shift and rested for the next two days. By Monday, August 12, his pain was so severe that
he decided to return to the VA hospital. He was given an injection and light-duty work
restrictions.
Mr. Furstnau told his supervisor about his pain and restrictions, who assigned light-
duty and instructed him to report his injury to the work injury hotline. Mr. Furstnau
complied.
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The next day, PC Metro sent Mr. Furstnau to Dr. Janice Schweitzer.1 She noted his
pain was “related” to work activities and continued his light-duty restrictions. Dr.
Schweitzer later ordered an MRI. After reviewing the results, she referred him to a
neurosurgeon. PC Metro provided a panel, and Mr. Furstnau selected Dr. Jody Helms.
In his first office note, Dr. Helms said that Mr. Furstnau’s back pain began in late
July while he was moving work product. He also reviewed the treatment Mr. Furstnau
received at the VA hospital before diagnosing a right L4/5disc herniation and
recommending surgery. He alternatively offered physical therapy and injections.
Mr. Furstnau decided to try physical therapy first. However, his symptoms did not
improve after a few sessions, so Dr. Helms ordered surgery but provided no causation
opinion. At this point, PC Metro denied the claim.
Mr. Furstnau argued he presented sufficient evidence to prove the work-relatedness
of his injury and to succeed at a hearing on the merits. PC Metro argued the evidence was
insufficient to establish a work-injury under the Workers’ Compensation Law because Mr.
Furstnau lacked a causation opinion.
Findings of Fact and Conclusions of Law
Mr. Furstnau must present sufficient evidence for the Court to determine that 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).
Mr. Furstnau described suffering a cumulative back injury and seeks benefits. To
receive them, he must show that his injury was caused by a specific incident or set of
incidents arising “primarily out of and in the course and scope of employment,” and that
the employment contributed more than fifty percent in causing the injury, considering all
causes. Tenn. Code Ann. § 50-6-102(14)(A)-(B) (2019). Proving this requires a
physician’s opinion “to a reasonable degree of medical certainty,” that his work accident
“more likely than not” caused his injury “considering all causes.” Id. at § 50-6-102(14)(C)-
(D).
Dr. Schweitzer did not affirmatively state that Mr. Furstnau suffered an injury
arising primarily out of and in the course and scope of his employment. Instead, she noted
that his injury was “related” to his work at PC Metro. Although the statute does not require
physicians to use specific words when giving a causation opinion, the use of “related” does
not on its own meet the standard to prove medical causation.
For this reason, the Court finds that Dr. Schweitzer’s medical opinion is insufficient
to prove Mr. Furstnau suffered an injury arising primarily out of and in the course and
scope of his employment. Further, Dr. Helms gave no opinion on the medical cause.
1
The parties did not introduce evidence of whether he chose her from a panel.
2
Because neither doctor gave a sufficient opinion on medical causation, the Court holds Mr.
Furstnau is not likely to prevail at a hearing on the merits and denies his request for benefits.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Furstnau’s requested relief is denied at this time.
2. This case is set for a Status Hearing on February 17, 2021, at 2:00 p.m. Eastern.
Please call 855-543-5044 to participate. Failure to call or appear may result in a
determination of the issues without your further participation.
ENTERED December 4, 2020.
___/s/Brian K. Addington__________
BRIAN K. ADDINGTON, JUDGE
Court of Workers’ Compensation Claims
3
APPENDIX
Exhibits:
1. Mr. Furstnau’s Affidavit
2. First Report of Injury
3. Wage Statement
4. Notice of Denial of Claim
5. Mountain Home VA Medical Center medical records (7/31/2019-5/13/2020)
6. Occupational Medicine Clinic (8/13/2019-8/30/2019)
7. Medical records of Dr. Jody Helms (9/12/2019-9/30/2019)
8. Medical records of Corner Stone Therapy (9/20/2019-10/4/2019)
9. Affidavit of Jerry Hilbert
10. Mountain Home VA phone record (7/31/2019)
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Motion to Amend Record
5. Order Amending Record
6. Employer’s Position Statement
7. Employee’s Position Statement
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent on December 4, 2020.
Name Certified Fax Email Service sent to:
Mail
David Darnell, X david.darnell@deangreer.com
Employee’s Attorney
John Lewis, X john@johnlewisattorney.com
Employer’s Attorney
______________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
4
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