Arciga, Nohemi v. AtWork Personnel Services , 2015 TN WC 198 ( 2015 )

FILED
December 22, 2015
ThCO'URTOF
WORKERS ' C O:'.iPE~ SATIO~
CLADIS
Time: 3:30 PM
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT KINGSPORT
Nohemi Arciga ) Docket No.: 2015-02-0217
Employee, )
v. ) State File Number: 6668/2015
AtWork Personnel Services )
Employer, )
And, ) Judge Brian K. Addington
Zurich )
Insurance Carrier. )
)
EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS AND
DENYING TEMPORARY DISABILITY BENEFITS
This cause came before the undersigned workers' compensation judge on
December 16, 2015, for an Expedited Hearing. The central legal issue is whether the
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employee is entitled to additional medical benefits and temporary disability benefits for
an injury occurring on January 19, 2015. 2 For the reasons set forth below, the Court
grants medical benefits at this time.
History of Claim
Nohemi Arciga is a forty-six-year-old resident of Hamblen County, Tennessee.
(T.R. 1 at 1.). Ms. Arciga worked as an assembler for AtWork Personnel Services at Tuff
Torq Corporation. (T.R. 3 at 3.) On January 19, 2015, Ms. Arciga noticed the machinery
operated quicker than it had before, and her neck began to hurt. She reported the pain to
her supervisor at Tuff Torq, who reported it to At Work. At Work filed a First Report of
Injury indicating Ms. Arciga injured her upper back while putting a part on a
transmission. (Ex. 1.) Ms. Arciga testified her shoulders hurt as well.
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Additional information regarding the technical record and exhibits admitted at the Expedited Hearing is attached to
this Order as an Appendix.
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Ms. Arciga attempted to present evidence of an alleged acute injury of February 18, 2015 . This date of injury was
listed in the body of the Petition for Benefit Determination (PBD). The Court allowed Ms. Arciga to present the
evidence pending a determination of the Court of whether it was appropriate to consider two separate injuries under
one PBD and one Dispute Certification Notice. The Court refuses to consider the February 18, 2015 injury in this
Order, as this is a completely separate injury from her alleged January 19, 2015 injury.
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On January 21, 2015, AtWork approved treatment for Ms. Arciga by Dr. Terry
Humann, a chiropractor. Dr. Humann noted Ms. Arciga experienced right shoulder pain
after lifting transmission parts at work. (Ex. 3 at 7.) Dr. Humann noted Ms. Arciga had
activity limits but did not write an explanation. !d. Ms. Arciga returned to Dr. Humann
on January 23 and 26, 2015. !d. at 3. On January 26, 2015, Dr. Humann released Ms.
Arciga to work without restrictions at her own request. !d. at 1. She testified she asked
the doctor for a work release for economic reasons, even though she still experienced
pain.
Ms. Arciga continued to work for AtWork until her discharge on February 23,
2015.
Ms. Arciga testified she continued to suffer shoulder pain following her release
from At Work and sought medical treatment with her primary care provider at Cherokee
Health Systems. Ms. Arciga also requested additional medical treatment from AtWork.
AtWork provided her panel of physicians, from which she chose Healthstar Physicians on
August 10, 2015.
There were some problems getting the appointment scheduled. (Exs. 7, 8.) Ms.
Arciga saw the providers at Healthstar on November 2, 2015. 3 She complained of
overuse of her shoulder. The diagnosis was shoulder muscle spasm. (Ex. 4 at 1.) The
provider recommended physical therapy. !d. at 2. Ms. Arciga went for the physical
therapy evaluation but has not received any therapy. The medical records from
November 2, 2015, do not address work restrictions.
Ms. Arciga filed a PBD on July 8, 2015, requesting temporary disability benefits
and medical benefits. (T.R. 1 at 1.) The parties did not resolve the disputed issues
through mediation, and the Mediating Specialist filed a Dispute Certification Notice on
August 3, 2015. (T.R. 2.) Ms. Arciga filed a Request for Expedited Hearing pursuant to
Tennessee Code Annotated section 50-6-239 (2014). (T.R. 3.)
During the Expedited Hearing on December 16, 2015, Ms. Arciga argued that she
was entitled to additional medical and temporary disability benefits. She asserted her
continued shoulder pain has kept her from working, except for one day with a third party.
She further asserted that she needs the physical therapy recommended by the Healthstar
providers. She asserts she missed one week of work when she injured her shoulder.
AtWork contended that Ms. Arciga told Dr. Humann she had recovered from her
shoulder injury. Ms. Arciga did not provide a causation statement from Healthstar
physicians. She has not worked for AtWork since February 2015. AtWork asserted a
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Although the medical records were signed, the Court could not make out the name of the provider.
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lack of sufficient evidence to prove she is entitled to additional medical benefits. Ms.
Arciga has not presented any medical note taking her off work for her work injury, so
that she is not entitled to temporary disability benefits.
Findings of Fact and Conclusions of Law
The Workers' Compensation Law shall not be remedially or liberally construed in
favor of either party, but shall be construed fairly, impartially, and in accordance with
basic principles of statutory construction favoring neither the employee nor
employer. Tenn. Code Ann. § 50-6-116 (2014). The employee in a workers'
compensation claim has the burden of proof on all essential elements of a claim. Tindall
v. Waring Park Ass'n, 725 S.W.2d 935, 937 (Tenn. 1987); Scott v. Integrity Staffing
Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn.
Workers' Comp. App. Bd. Aug. 18, 2015). An employee need not prove every element
of his or her claim by a preponderance of the evidence in order to obtain relief at an
expedited hearing. McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015
TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27,
20 15). At an expedited hearing, an employee has the burden to come forward with
sufficient evidence from which the trial court can determine that the employee is likely to
prevail at a hearing on the merits. !d. This lesser evidentiary standard "does not relieve
an employee of the burden of producing evidence of an injury by accident that arose
primarily out of and in the course and scope of employment at an expedited hearing, but
allows some relief to be granted if that evidence does not rise to the level or a
'preponderance of the evidence."' Buchanan v. Car/ex Glass Co., No. 2015-01-0012,
2015 TN Wrk. Comp. App. Bd. Lexis 39, at *6 (Tenn. Workers' Comp. App. Bd. Sept.
29, 2015).
The first issue is whether Ms. Arciga suffered an injury that arose primarily out of
and in the course and scope of employment and is in need of medical treatment for same.
AtWork presented no evidence to refute Ms. Arciga's testimony that she worked at Tuff
Torq as an assembler when her shoulder started to hurt.
The providers at Healthstar are the most recent authorized treating physicians.
They noted Ms. Arciga suffered right-shoulder muscle spasms. However, Healthstar's
treatment ended before the physicians provided a causation statement concerning Ms.
Arciga's spasms. Based on the evidence presented, the Court cannot make a
determination on the causation of the Ms. Arciga's injury, and it is unclear why treatment
stopped after the therapy evaluation. AtWork did not present to the Court a Notice of
Denial or a Notice of Controversy.
Tennessee Code Annotated section 50-6-102(13)(E) (2014) states that "The
opinion of the treating physician, selected by the employee from the employer's
designated panel of physicians ... shall be presumed correct on the issue of causation,
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but this presumption shall be rebuttable by a preponderance of the evidence."
Although Ms. Arciga has the burden of proof on the issue of causation, and there
is no causation opinion in the record, the Court finds that Healthstar's treatment ended
prematurely. The Court makes no finding of fault concerning that issue. The Court finds
the reasonable course at this time is to return Ms. Arciga to Healthstar for a causation
opinion of Ms. Arciga's spasms. If a physician at Healthstar opines Ms. Arciga's spasms
arose primarily out of and in the course and scope of her employment, AtWork shall
authorize all treatment, if any, made reasonably necessary due to the injury. At this
point, Ms. Arciga has presented sufficient evidence for the Court to conclude that she is
likely to succeed at a hearing on the merits of her request for authorized medical
treatment, until Healthstar renders a causation opinion.
The final issue is whether Ms. Arciga is entitled to any temporary disability
benefits. Ms. Arciga did not present any medical records taking her off work or
restricting her work. To be entitled to temporary total disability benefits, an injured
worker "must prove that he [or she] was ( 1) totally disabled to work by a compensable
injury; (2) that there is a causal connection between the injury and his [or her] inability to
work; and (3) the duration of that period of disability." James v. Landair Transport, Inc.,
No. 2015-02-0024, 2015 TN Wrk. Comp. App. Bd. LEXIS 28, at *16 (Tenn. Workers'
Comp. App. Bd. Aug. 26, 2015) (quoting Simpson v. Satterfield, 564 S.W.2d 953, 955
(Tenn. 1978)). Ms. Arciga has presented insufficient evidence to prove her alleged injury
disabled her from work as she has no expert medical proof taking her off work.
Therefore, concerning this issue, she is unlikely to succeed at hearing on the merits.
IT IS, THEREFORE, ORDERED as follows:
1. At Work shall authorize a return appointment for Ms. Arciga with Healthstar. If a
physician at Healthstar opines Ms. Arciga's condition arose primarily out and in
the course and scope of his employment, AtWork or its workers' compensation
carrier shall provide all medical treatment made reasonably necessary by accident,
including any unpaid prior treatment.
2. Ms. Arciga's request for temporary disability benefits is denied.
3. This matter is set for an Initial (Status) Hearing on February 8, 2016, at 10:00 a.m.
Eastern Time.
4. 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) (2014). The Insurer or Self-Insured
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Employer must submit confirmation of compliance with this Order to the
Bureau by email to WCComplinnce.Program(a)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 may result in a
penalty assessment for non-compliance.
5. For questions regarding compliance, please contact the Worker's Compensation
Compliance Unit via email Vv' ' 'nmp lia nc ·. Prne.ram u:tn.g< v or by calling (615)
253-1471 or(615) 532-1309.
ENTERED this the 22nd day of December, 2015.
Judge Brian K. Addington
Court of Workers' Compensation Claims
Initial (Status) Hea ring:
A Status Hearing has been set with Judge Brian K. Addington, Court of
Workers' Compensation Claims. You must call at 855-543-5044 to participate in
the Initial Hearing.
Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation. All conferences are set using Eastern Time (ET).
Rjght to Appeal:
Tennessee Law allows any party who disagrees with this Expedited Hearing Order
to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of
Appeal, you must:
1. Complete the enclosed fonn entitled: "Expedited Hearing Notice of Appeal."
2. File the completed form with the Court Clerk within seven business days of the
date the Workers' Compensation Judge entered the Expedited Hearing Order.
3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.
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4. The appealing party is responsible for payment of a filing fee in the amount of
$75.00. Within ten calendar days after the filing of a notice of appeal, payment
must be received by check, money order, or credit card payment. Payments can be
made in person at any Bureau office or by United States mail, hand-delivery, or
other delivery service. In the alternative, the appealing party may file an Affidavit
of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
will consider the Affidavit of Indigency and issue an Order granting or denying
the request for a waiver of the filing fee as soon thereafter as is
practicable. Failure to timelv pay the filing fee or file the Affidavit of
Indigency in accordance with this section shall result in dismissal of the
appeal.
5. The parties, having the responsibility of ensuring a complete record on appeal,
may request, from the Court Clerk, the audio recording of the hearing for the
purpose of having a transcript prepared by a licensed court reporter and filing it
with the Court Clerk within ten calendar days of the filing of the Expedited
Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
the evidence within ten calendar days of the filing of the Expedited Hearing
Notice of Appeal. The statement of the evidence must convey a complete and
accurate account of what transpired in the Court of Workers' Compensation
Claims and must be approved by the workers' compensation judge before the
record is submitted to the Clerk of the Appeals Board.
6. If the appellant elects to file a position statement in support of the interlocutory
appeal, the appellant shall file such position statement with the Court Clerk within
five business days of the expiration of the time to file a transcript or statement of
the evidence, specifYing the issues presented for review and including any
argument in support thereof. A party opposing the appeal shall file a response, if
any, with the Court Clerk within five business days of the filing of the appellant's
position statement. All position statements pertaining to an appeal of an
interlocutory order should include: (I) 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.
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APPENDIX
Exhibits:
1. First Report of Injury
2. Separation Notice
3. Medical Records: Dr. Terry Humann
4. Medical Records: Healthstar Physicians
5. TDOL Employment Security Agency Decision (For Identification Only)
6. Panel of Physicians
7. Correspondence between Employee's attorney and Zurich
8. Correspondence between Employee's attorney and Zurich
9. Medical Records Bill
10.Medical Records: Cherokee Health Systems (For Identification Only)
Technical record : 4
1. Petition for Benefit Determination, July 8, 2015
2. Dispute Certification Notice, August 3, 2015
3. Request for Expedited Hearing, November 13, 2015
4. Show Cause Order, October 28, 2015
5. Order on Show Cause Hearing, November 20, 2015
6. Employer's Pre-Hearing Brief
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The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as
allegations unless established by the evidence.
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 22nd day
ofDecember, 2015.
Name Certified First Via Fax Via Sent To:
Mail Class Fax Number Email
Mail
Russell Veldman, X rveldmanl@aol.com
Employ_ee's Counsel
Mary Beth Maddox, X mmaddox@fmsllp.com
Employer/Carrier's
Counsel
P nny S r m, Clerk of Court
Court of Workers' Compensation Claims
WC.CourtCierk@tn.gov
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