Hewlett, Angela v. SMX Staffing , 2016 TN WC 155 ( 2016 )

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
ANGELA HEWLETT )
Employee, ) Docket No. 2015-05-0003
)
v. ) State File No. 879-2015
)
SMX STAFFING )
Employer, )
) Judge Dale Tipps
And )
)
NEW HAMPSHIRE INS. CO., )
Insurer. )
EXPEDITED HEARING ORDER DENYING REQUESTED BENEFITS
This matter came before the undersigned workers’ compensation judge on June
29, 2016, on the Request for Expedited Hearing filed by the employee, Angela Hewlett,
pursuant to Tennessee Code Annotated section 50-6-239 (2015). The present focus of
this case is whether Ms. Hewlett is entitled to additional medical treatment. The central
legal issue is whether the evidence is sufficient for the Court to determine that Ms.
Hewlett is likely to establish at a hearing on the merits she suffered an injury arising
primarily out of and in the course and scope of her employment. For the reasons set forth
below, the Court finds Ms. Hewlett is not entitled to the requested medical benefits at this
time. 1
History of Claim
The following facts were established at the Expedited Hearing on June 29, 2016.
1
A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.
1
Ms. Hewlett is a fifty-five-year-old resident of Midway, Alabama. She testified that
while working for the employer, SMX Staffing, on November 20, 2014, she fell and
injured her elbow. She reported the injury, and SMX provided a panel of physicians.
Ms. Hewlett selected Dr. Phillip Coogan from the panel on February 19, 2015. (Ex. 3.)
Ms. Hewlett testified that, prior to receiving the physician’s panel, she treated with
Dr. Christian Vissers, who sent her for electrodiagnostic testing with Dr. Garrison
Strickland. Dr. Strickland’s report of December 24, 2014, indicated a severe bilateral
median nerve entrapment at the wrists, consistent with bilateral carpal tunnel syndrome.
Although she reported her right elbow was particularly painful, Dr. Strickland noted no
evidence of right ulnar neuropathy. (Ex. 6.)
Dr. Coogan saw Ms. Hewlett on February 26, 2015. He noted she had “persistent
carpal tunnel,” as well as right, middle, and ring finger triggering. She described the
problems as beginning in November when she fell and injured her elbow. He noted she
returned to production work, but subsequently quit in November. She then saw Dr.
Vissers, who diagnosed carpal tunnel syndrome and recommended a carpal tunnel
release. Dr. Coogan diagnosed severe bilateral carpal tunnel syndrome, and stated this
condition did not arise primarily out of the November 20, 2014 fall, nor Ms. Campbell’s
other job duties with SMX. (Ex. 2.)
Following SMX’s denial of her claim, Ms. Hewlett filed a Petition for Benefit
Determination seeking medical and temporary disability benefits. The parties did not
resolve the disputed issues through mediation, and the Mediating Specialist filed a
Dispute Certification Notice, certifying the issues of compensability and medical
treatment. Ms. Hewlett filed a Request for Expedited Hearing.
At the Expedited Hearing, Ms. Hewlett asserted she was entitled to additional
medical treatment. She contended Dr. Coogan only addressed her carpal tunnel
syndrome, for which she is not seeking benefits. Therefore, she argues he failed to
properly examine or diagnose her right elbow condition. She seeks an order requiring
SMX to provide additional medical treatment for her elbow, which continues to hurt.
SMX countered it has provided all the benefits to which Ms. Hewlett is entitled. It
argued the authorized treating physician (ATP), Dr. Coogan, opined Ms. Hewlett’s
condition is not work-related, and as she has not presented any medical testimony to the
contrary, Ms. Hewlett cannot meet her burden of proving a compensable claim.
Findings of Fact and Conclusions of Law
The following legal principles govern this case. Because this case is in a posture
of an Expedited Hearing, Ms. Hewlett need not prove every element of her claim by a
preponderance of the evidence in order to obtain relief. McCord v. Advantage Human
2
Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Tenn. Workers’ Comp. App. Bd. Mar. 27, 2015). Instead, she must come forward with
sufficient evidence from which this Court might determine she is likely to prevail at a
hearing on the merits. Id.; Tenn. Code Ann. § 50-6-239(d)(1)(2015). In analyzing
whether she has met her burden, the Court will not remedially or liberally construe the
law in her favor, but instead shall construe the law fairly, impartially, and in accordance
with basic principles of statutory construction favoring neither Ms. Hewlett nor SMX.
See Tenn. Code Ann. § 50-6-116 (2015).
To prove a compensable injury, Ms. Hewlett must show her alleged injury arose
primarily out of and in the course and scope of her employment. Tenn. Code Ann. § 50-
6-102(14) (2015). To do so, she must show her injury was caused by an incident, or
specific set of incidents, identifiable by time and place of occurrence. Tenn. Code Ann. §
50-6-102(14)(A) (2015). Further, she must show, “to a reasonable degree of medical
certainty that it 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) (2015). “Shown to a reasonable degree of medical certainty” means that, in
the opinion of the treating physician, it is more likely than not considering all causes as
opposed to speculation or possibility. Tenn. Code Ann. § 50-6-102(14)(D) (2015).
Applying these principles to the facts of this case, the Court cannot find that Ms.
Hewlett appears likely to meet her burden of proving a compensable injury. Ms. Hewlett
selected Dr. Coogan from a panel of physicians provided by SMX. Therefore, Tennessee
Code Annotated section 50-6-102(14)(E) (2015) establishes a rebuttable presumption of
correctness for Dr. Coogan’s causation opinion. That opinion stated Ms. Hewlett’s
condition did not arise primarily out of her employment.
Ms. Hewlett objects to Dr. Coogan’s opinion on the ground it was medically
deficient. While her concern that Dr. Coogan failed to address her elbow complaints is
understandable, the medical records admitted into evidence do not support it. Dr. Coogan
noted in Ms. Hewlett’s history she reported her problems beginning with a fall at work in
November. Even though he was aware of both the accident and Ms. Hewlett’s suspicion
it was the cause of her symptoms, he still diagnosed her underlying problem as carpal
tunnel syndrome, rather than an elbow problem. Further, Dr. Strickland’s testing
specified a finding of no ulnar neuropathy.
More importantly, Ms. Hewlett submitted no medical evidence to support her
claim that Dr. Coogan’s opinion was invalid. Her allegations regarding the quality of Dr.
Coogan’s evaluation constitute nothing more than a lay opinion. The Court cannot
substitute its medical opinion, or that of Ms. Hewlett, for the professional opinion of Dr.
Coogan. Absent a contrary medical opinion, she cannot rebut the presumption of
correctness afforded Dr. Coogan’s opinion by the statute. Scott v. Integrity Staffing
Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *8 (Tenn.
3
Workers’ Comp. App. Bd. Aug. 8, 2015).
Therefore, as a matter of law, Ms. Hewlett has not come forward with sufficient
evidence from which this Court concludes she is likely to prevail at a hearing on the
merits. Her request for medical treatment is denied at this time.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. Hewlett’s claim against SMX and its workers’ compensation carrier for the
requested medical benefits is denied at this time.
2. This matter is set for an Initial (Scheduling) Hearing on August 18, 2016, at 9:00
a.m.
ENTERED this the 1st day of July, 2016.
_____________________________________
Judge Dale Tipps
Court of Workers’ Compensation Claims
Initial (Scheduling) Hearing:
An Initial (Scheduling) Hearing has been set with Judge Dale Tipps, Court of
Workers’ Compensation Claims. You must call 615-741-2112 or toll free at 855-
874-0473 to participate.
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 Central Time (CT).
Right 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 form 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.
4
3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.
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 timely 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: (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.
5
APPENDIX
Exhibits:
1. Affidavit of Angela Hewlett
2. February 26, 2015 office note of Dr. Philip Coogan
3. C-42 Choice of Physician Form
4. C-41 Wage Statement
5. C-23 Notice of Denial
6. December 24, 2014 report of Dr. Garrison Strickland
7. Acknowledgment Letter and Email (Identification Only)
8. Medical Bills and Physical Therapy Records (Identification Only)
9. Supportive Feedback documents (Identification Only)
10. Premier Radiology records on disc (Identification Only)
11. Surgical information sheets from Premier Orthopaedics (Identification Only)
Technical record:2
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
2
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.
6
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 1st day of
July, 2016.
Name Certified Fax Via Email Address
Mail Number Email
Angela Hewlett X P.O. Box 281
Midway, AL 36053
Jared Renfroe, X jrenfroe@spicerfirm.com
Attorney
_____________________________________
Penny Shrum, Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
7