Wolfe, Barbara v. Chick-Fil-A , 2021 TN WC 144 ( 2021 )

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
Barbara Wolfe, ) Docket No. 2020-06-0978
Employee, )
V. )
Chick-Fil-A, ) State File No. 11533-2020
Employer, )
And )
Arch Insurance Company, ) Judge Kenneth M. Switzer
Carrier. )
EXPEDITED HEARING ORDER DENYING REQUESTED RELIEF
Barbara Wolfe slipped on cardboard boxes and fell while working at Chick-Fil-A
on February 14, 2020. Chick-Fil-A authorized treatment with Dr. Charles Kaelin, who
ultimately concluded that her current symptoms were not related to the fall but rather
preexisting conditions.
At a February 2, 2021 expedited hearing, Ms. Wolfe testified that she never
experienced the pain she presently feels, and she could fully perform her job duties before
the fall. However, this correlation in time, by itself, does not necessarily mean that the fall
caused her pain. Rather, the law requires that Ms. Wolfe prove the causal relationship
between her fall and her current pain with medical evidence. Because she has not done so
at this time, the Court must deny her relief.
History of Claim
Ms. Wolfe testified that she injured several body parts from the fall, including her
head. Chick-Fil-A offered a panel, and she chose Dr. Kaelin, an orthopedic surgeon. Ms.
Wolfe immediately lost confidence in him but saw Dr. Kaelin approximately seven times
over the coming months. The two offer different versions of his treatment.
Ms. Wolfe testified, over Chick-Fil-A’s objection, that at the very first visit, Dr.
Kaelin told her, “You did not get injured at work.” However, notes from the visit read,
“LY ]esterday she was at work when she slipped on cardboard boxes[.]” She also said Dr.
Kaelin said that he and the owner of the Chick-Fil-A where she worked were friends.
According to Ms. Wolfe, Dr. Kaelin did not treat her but just ordered MRIs.
Ms. Wolfe disagreed with several of his conclusions, most notably that her present
condition is not work-related. She stated that he recommended a second opinion, and she
received a panel, but she did not see another physician.! Ms. Wolfe, who represents herself,
did not attend Dr. Kaelin’s deposition and did not request permission to appear by phone.
As for Dr. Kaelin’s version of his treatment, he detailed the events of almost every
visit at his deposition.
At the first visit, Ms. Wolfe complained of pain in her right hip and shoulder, and
her cervical, lumbar, and thoracic spine. X-rays of the hip, pelvis and shoulder were
normal. Dr. Kaelin ordered MRIs of her hip, shoulder, and spine, which did not show acute
injuries but degenerative conditions predating the injury date. He testified that MRIs are
reliable for detecting degenerative and post-surgical changes.
The April visit was a turning point. Dr. Kaelin noted that Ms. Wolfe underwent
shoulder surgery before the fall at work. He wrote, “[S]he suffered contusions on her fall
but the findings on the MRI are not surgical and predate her injury of February 14, 2020.”
Dr. Kaelin testified that he explained his findings to Ms. Wolfe, specifically that they were
all “longstanding changes,” and Ms. Wolfe responded that she was “perfectly normal”
before the fall at work. He recommended a second opinion but not surgery.
About the last visit on July 14, Dr. Kaelin testified that:
I told her we had been through two significant workups including MRIs of
the cervical and lumbar and also the shoulder and hip. And I reminded her
there were no acute findings noted on any of these tests. . . . I just said, none
of the subjective complaints match any of the objective findings and we’re
waiting on a second opinion. .. . I was pretty candid... . [T]he law now says
it has to be 51%.?
Ms. Wolfe argued that she remains in constant, daily pain from the injury, which
she did not have before the fall at work. She offered the affidavits of coworkers Josiah
* The Court cannot tell whether a second opinion was offered. Chick-Fil-A wrote in its brief that it did not
offer a second opinion because surgery was not recommended. However, Ms. Wolfe testified that she
received a panel with two doctors, but she never attended an appointment because the case manager would
not approve it.
? As explained in the Findings of Fact and Conclusions of Law, Dr. Kaelin’s understanding of the law is
incorrect.
Youngers, Ezra Medcalf, and Nathaniel Adams, who corroborated her testimony that she
performed her job duties without any problem before the fall at work.
She also introduced records from three visits in February to a chiropractor, who
documented the same complaints and provided some relief. Ms. Wolfe conveyed the same
mechanism of injury; in the “accident details” portion, the notes state “work-related.”
However, in his diagnoses and assessments, the chiropractor did not say whether her
condition was work-related.
Ms. Wolfe seeks an order that Chick-Fil-A provide an independent physician for
her treatment. Chick-Fil-A argued it is not required to do so, but Ms. Wolfe may return to
Dr. Kaelin if she wishes.
Findings of Fact and Conclusions of Law
To obtain the requested relief, Ms. Wolfe must show that she is likely to prevail at
a hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1) (2020); McCord vy.
Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar.
27, 2015).
Ms. Wolfe must prove that her injury arose primarily from work. Specifically, this
means she must show “to a reasonable degree of medical certainty that [the incident]
contributed more than fifty percent (50%) in causing the . . . disablement or need for
medical treatment, considering all causes.” Tenn. Code Ann. § 50-6-102(14)(C). Except
in the most obvious, simple and routine cases, the employee must establish by expert
medical evidence the causal relationship between the claimed injury (and disability) and
the employment activity. Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn.
1991) (emphasis added).
Applying those standards, the Court finds that, based on her testimony and the
medical records, Ms. Wolfe injured her right hip and shoulder, back and head. Chick-Fil-
A questioned her truthfulness regarding which body parts she injured, both in cross-
examination and at a previous deposition that lasted approximately five hours. Ms. Wolfe’s
explanation that she might not have mentioned her headaches at the deposition is
reasonable.’ This line of questioning did not help to resolve the central issue in this case,
which is medical causation.
On that issue, Dr. Kaelin testified that the MRIs of Ms. Wolfe’s hip, shoulder, and
spine revealed longstanding changes that were not caused by the February 14, 2020 fall.
Stated another way, the objective diagnostic testing showed no acute injuries but rather
3 Chick-Fil-A also cross-examined her at length about past workers’ compensation claims and surgeries, an
auto accident, her rheumatoid arthritis, and other matters of little to no relevance.
injuries that preexisted the work incident. Dr. Kaelin testified that an MRI is reliable. He
acknowledged that he seemed unable to alleviate Ms. Wolfe’s pain, but after the April visit,
he never altered his opinion that her current pain is not work-related.
Importantly, Dr. Kaelin’s opinion is presumed correct because Ms. Wolfe chose him
from a panel. His opinion may be overcome by a preponderance of the evidence. Tenn.
Code Ann. § 50-6-102(14)(E). Ms. Wolfe offered her chiropractor’s records, which
confirm that she reported falling on boxes at work, but they did not contain a doctor’s
assessment of the work-relatedness of her condition. Therefore, she did not rebut the
presumption of correctness given to Dr. Kaelin’s opinion at this time.
Ms. Wolfe testified that she could perform all her job duties, in a physically
demanding position, before the fall at work. Her coworkers bolstered this assertion. The
Supreme Court has consistently held that an employee’s assessment as to his or her own
physical condition is competent testimony that is not to be disregarded. Limberakis v. Pro-
Tech Security, Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 53, at *5-6 (Sept. 12, 2017).
The Court considered this testimony and believes her on this point. She said she has daily
pain. The Court believes this, too. Regardless, Dr. Kaelin ruled out the fall at work as the
cause of her pain based on reliable and objective testing. While Ms. Wolfe’s fall and the
onset of her pain happened close in time, the timing does not mean the two are causally
related.
Finally, Ms. Wolfe insisted that Dr. Kaelin’s judgment was clouded by his
friendship with the owner of the Chick-Fil-A where she worked. Her allegations are
serious. So far, she has offered no proof of this relationship or any bias on Dr. Kaelin’s
part other than her testimony. Ms. Wolfe could have cross-examined Dr. Kaelin at the
deposition, but she chose not to attend. The Court cannot find the existence of any bias
based on Ms. Wolfe’s word alone.
The Court sympathizes with Ms. Wolfe’s pain and financial struggles. However, it
must apply the law. Ms. Wolfe has not presented sufficient evidence from which this Court
can conclude that she is likely to prevail at a hearing on the merits regarding her request
for anew physician. However, she may return to Dr. Kaelin for further treatment.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. Wolfe’s requested relief is denied at this time.
2. This case is set for a scheduling hearing on March 22, 2021, at 9:15 a.m. Central
Time. You must call 615-532-9552 or toll-free at 866-943-0025 to participate.
Failure to call might result in a determination of the issues without your
participation.
ENTERED February 8, 2021.
JUDGE KENNETH M. SWATZER
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
CHNAKRWN >
Affidavit of Barbara Wolfe
Form C-42, Choice of Physician
Wage statement
Dr. Kaelin’s deposition transcript
Dr. Smith’s medical records
Affidavit of Josiah Youngers
Affidavit of Ezra Medcalf
Affidavit of Nathaniel Adams
Pp. 109-111, Ms. Wolfe’s deposition
10. First Report of Injury Gidentification only)
11.P. 37, Ms. Wolfe’s deposition
12.P. 40, Ms. Wolfe’s deposition
13.P. 106, Ms. Wolfe’s deposition
14.P. 107, Ms. Wolfe’s deposition
15.P. 168, Ms. Wolfe’s deposition
Technical record:
PINNAMEWN ES
Petition for Benefit Determination
Dispute Certification Notice
Request for Expedited Hearing
Pretrial Order
Order on Status Hearing
Employer’s Witness and Exhibit List
Employer’s Pre-Expedited Hearing Statement
Employer’s Brief (without attachments)
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on February 8, 2021.
Name Certified | Regular | Email | Sent to
Mail mail
Barbara Wolfe, xX xX Wolfie77x7 @ gmail.com
Self-represented 2977 Melvin Rd.
employee Hermitage, TN 37076
Greg Fuller, X ghfuller@mijs.com
Ashley McGee, abmcgee @mijs.com
Employer’s mnbaker@mijs.com
attorneys
/) | /
PENNY SHUM, COURT CLERK
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: “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
conceming 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.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-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):
0 Expedited Hearing Order filed on O Motion Order filed on
0 Compensation Order filed on C1 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): fo 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 lof 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 | 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