Bufford, Joe v. Northwest TN Human Resource Agency , 2016 TN WC 286 ( 2016 )

FILED
December 5, 2016
IN COURT OF
WORKERS’
COMPENSATION
CLAIMS
Time: 3:24 PM
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT JACKSON
JOE BUFFORD, ) Docket No. 2016-07-0110
Employee, )
Vv. )
NORTHWEST TENNESSEE HUMAN )_ State File No. 55195-2015
RESOURCE AGENCY, )
Employer, )
And )
TML RISK MANAGEMENT POOL, ) Judge Allen Phillips
Insurance Carrier. )
)
EXPEDITED HEARING ORDER DENYING MEDICAL BENEFITS
This matter came before the undersigned Workers’ Compensation Judge on
November 17, 2016, upon the Request for Expedited Hearing filed by Joe Bufford
pursuant to Tennessee Code Annotated section 50-6-239 (2015). Mr. Bufford requests
medical treatment of a left shoulder injury pursuant to a settlement agreement dated
March 15, 2016. TML, on behalf of Northwest (NWTHRA), denied the medical
treatment on grounds that there is no causal relation between the need for treatment and
the original injury. Accordingly, the central legal issue is whether Mr. Bufford has shown
the requested medical treatment is reasonable, necessary, and causally related to the
original injury. For the following reasons, the Court holds Mr. Bufford is not entitled to
the requested medical benefits. '
History of Claim
Mr. Bufford sustained a left shoulder injury while working for NWTHRA. The
carrier, TML, provided medical treatment with Dr. Blake Chandler, who performed
surgery to repair a torn rotator cuff. On January 13, 2016, Dr. Chandler placed Mr.
Bufford at maximum medical improvement and assessed a permanent impairment rating.
' The Court attached a complete listing of the Technical Record and Exhibits admitted at the Expedited Hearing to
this Order as an Appendix.
On March 15, 2016, the parties appeared before the Court for a settlement
approval. In addition to payment of permanent disability benefits, the settlement
agreement provided:
Employer agrees to pay for reasonable and necessary authorized future
medical expenses which are directly related to the subject injury, pursuant
to Tenn. Code Ann. 50-6-204. Dr. Blake Chandler shall be the designated
authorized treating physician for future care (or a panel of physicians shall
be provided for future care).
(Ex. | at 3.) Upon determining that the proposed settlement terms secured to Mr. Bufford
substantially the benefits to which he was entitled under law, the Court approved the
settlement. Jd. at 1.
Following the settlement approval, Mr. Bufford contacted TML for a return
appointment with Dr. Chandler. He returned to Dr. Chandler on April 13, 2016, and Dr.
Chandler recorded that, “[t]he patient presents today status-post rotator cuff repair with
complaints of increased pain starting after lifting grandchildren and using a mop at his
new job.” (Ex. 4 at 1.) Dr. Chandler injected Mr. Bufford’s shoulder and advised him to
return in two weeks.
On April 27, 2016, Mr. Bufford returned and reported no improvement. Dr.
Chandler recommended an MRI. /d. at 3. On May 18, 2016, Dr. Chandler noted the MRI
was “positive for partial rotator cuff tear.” Jd. at 7. He told Mr. Bufford to return in one
month. Jd.
On June 28, 2016, Dr. Chandler corresponded with TML and stated:
Mr. Bufford is a patient of mine that I have been treating for a work related
injury sustained to his left shoulder. I cannot say with 100% medical
certainty that his new injury is related to his original injury because he was
not employed at the time of the new injury.
Id. at 9. After receipt of that correspondence, TML denied further medical treatment.
On June 29, 2016, Mr. Bufford filed a Petition for Benefit Determination. He
stated as his issue, verbatim: “When they made the settlement with me they gave me life
time medical and so I started hurting in my shoulder again and went back to the doctor
now they don’t want to pay.” (T.R. 1 at 2.)
After the parties failed to resolve the issue at mediation, the mediating specialist
issued a Dispute Certification Notice and listed under “Defenses” the following: “This is
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under the Employee’s future medical benefits. The ATP has opined he cannot say with
100% medical certainty the current partial rotator cuff tear is related to Employee’s
original injury.” (T.R. 2 at 1.)
Mr. Bufford first requested a file review Expedited Hearing. (T.R. 3.) He later
requested an in-person evidentiary hearing. (T.R. 5.) TML filed a response and argued
that Dr. Chandler’s opinions did not support a causal relationship between the current
complaints and the original injury. (T.R. 7.)
The Court conducted an in-person Expedited Hearing on November 17, 2016. Mr.
Bufford testified he first encountered the problems for which he sought future medical
benefits when he “picked up” a grandchild. He further testified he now works thirty-two
hours a week for a nursing home as a housekeeper. He cleans rooms, dusts, and mops. He
has held no other jobs since leaving NWTHRA. He attributed all of his shoulder issues to
his original injury, and wants TML to stand by “its word” to provide future medical
benefits.
At the hearing, Mr. Bufford, offered for the first time a report from Dr. John Kuhn.
Dr. Kuhn recorded that Mr. Bufford “currently does housekeeping at a nursing home and
works and does things at home with grandchildren and a church.” (Ex. 5 at 2.) Mr.
Bufford reported “he has always had pain in his shoulder after [the] rotator cuff repair.”
Id. Dr. Kuhn stated his “opinion [was] that indeed his current symptoms are related to his
original injury.” Jd. He recommended Mr. Bufford undergo twelve weeks of physical
therapy and thought Dr. Chandler should “manage all of those issues, since he has been
the treating physician and [Mr. Bufford was there] only for a second opinion.” Id.
Though he saw Dr. Kuhn on September 12, 2016, Mr. Bufford had not provided
the letter to the mediating specialist or filed it with the Clerk. TML’s counsel stated he
was unaware of the letter. Because Mr. Bufford did not file the record at least ten days
before the hearing, as required by Tennessee Compilation Rule & Regulation 0800-02-
21-16(6)(a), the Court did not admit the letter into evidence and marked it for
identification only.
Mr. Bufford then testified he was told by “the lady” at the Bureau to simply bring
the letter to the hearing. He could not identify who told him this but understood her to
mean that he neither had to file the letter before the hearing nor provide it to TML until
the hearing. The Court noted Mr. Bufford was very sincere and credible in testifying that
he was told to proceed in this manner. Accordingly, the Court agreed to consider the
record but gave TML the opportunity to review and respond to its contents by subsequent
briefing, argument, or proof. The Court allowed TML ten days to do so and TML filed a
response on November 22, 2016. (T.R. 8.)
In its response, TML argued that Mr. Bufford failed to file the medical record
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within the applicable period and the Court should not consider it. Simply because Mr.
Bufford proceeded pro se does not allow him to late-file a medical record; TML argued if
he were represented, the Court would not allow the late filing. Moreover, the record does
not change TML’s position that the medical evidence preponderates against a finding of a
relation between Mr. Bufford’s current complaints and the original injury.
TML argued the statements of Dr. Kuhn indicated he neither had a full history of
Mr. Bufford’s activities after the original injury nor did he have “the benefit of Dr.
Chandler’s records showing a subsequent injury.” (T.R. 8 at 3.) Because Dr. Chandler is
“most familiar with Bufford’s clinical history,” his opinion should “be given much more
weight than Dr. Kuhn’s single visit where he rendered an opinion without being privy to
all of the facts and circumstances surrounding Bufford’s complaints.” Jd.
Findings of Fact and Conclusions of Law
Standard Applied
Mr. Bufford bears the burden of proof on all prima facie elements of his workers’
compensation claim, including causation. Tenn. Code Ann. § 50-6-239(c)(6) (2015); see
also Buchanan v. Carlex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd.
LEXIS 39, at *5 (Tenn. Workers’ Comp. App. Bd. Sept. 29, 2015). However, Mr.
Bufford need not prove every element of his claim by a preponderance of the evidence at
an Expedited Hearing stage in order to obtain relief. 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, 2015). Rather, he must come forward with
sufficient evidence from which this court might determine he is likely to prevail at a
hearing on the merits. Jd.; Tenn. Code Ann. § 50-6-239(d)(1)(2015).
Analysis
The sole issue for determination is whether Mr. Bufford is entitled to further
treatment pursuant to the future medical benefits provision of the settlement agreement.
After careful review of the evidence, the Court holds he is not.
As an initial matter, the Court notes Mr. Bufford has chosen to represent himself,
which is his right. It is well-settled, however, that unrepresented litigants must comply
with the same standards to which represented parties must adhere. Watson v. City of
Jackson, 448 §.W.3d 919, 926 (Tenn. Ct. App. 2014). As one court has observed:
[p]arties who decide to represent themselves are entitled to fair and equal
treatment by the courts. The courts should take into account that many pro
se litigants have no legal training and little familiarity with the judicial
system. However, the courts must also be mindful of the boundary between
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fairness to a pro se litigant and unfairness to the pro se litigant’s
adversary. Thus, the courts must not excuse pro se litigants from
complying with the same substantive and procedural rules that represented
parties are expected to observe.
Hessmer v. Hessmer, 138 S.W.3d 901, 903 (Tenn. Ct. App. 2003)(Emphasis added).
TML argued precisely the above-quoted language, namely that this Court may not,
in an effort to be fair to Mr. Bufford, cross the line of demarcation where its actions
become unfair to TML. TML asserts that this Court would have refused to consider a
late-filed record if Mr. Bufford had been represented by counsel. However, the Court
need not consider that contingency because Mr. Bufford proceeded pro se and the Court
considered the admissibility of the record in that light.
In considering the contested evidence, the Court recognizes the rule regarding the
filing of medical records. Tennessee Compilation Rule & Regulation 0800-02-21-
.16(6)(a) provides that “all medical records designated by the parties to be presented as
evidence at a scheduled hearing shall be filed with the Bureau not later than (10) business
days before the scheduled hearing date.” Mr. Bufford did not file the record in question.
However, the applicable rule goes on to state, “except for good cause shown,” as
determined by the workers’ compensation judge, failure to comply with timely filing may
result in exclusion of the record. /d. (Emphasis added). Further Rule 7.01 of the Practices
and Procedures of this Court provides that, “absent extraordinary circumstances and
approval of the assigned Judge, evidence may not be considered if submitted after the
expiration of the applicable rules and regulations.” (Emphasis added). The Court finds
good cause for consideration of Dr. Kuhn’s record under the narrow and specific
circumstances of this case and will do so in determining whether Mr. Bufford came
forward with sufficient evidence to establish a causal connection between his injury and
the need for further medical treatment.
In so doing, the Court considered Mr. Bufford’s testimony that someone within the
Bureau told him simply to bring Dr. Kuhn’s letter to the hearing. This testimony gives the
Court pause because of the relative novelty of the current system of dispute resolution.
Given the newness of the system, all litigants are understandably learning how to
negotiate the steps involved in contested claims. The pro se litigant labors under more
confusion. Hence, the Court afforded Mr. Bufford every opportunity to present his case
and, given the potential that the Bureau accidentally misled him regarding proper
procedure, considered the late filed record. However, the Court considered the record
fairly, impartially, and with no presumption in favor of Mr. Bufford. See Tenn. Code
Ann. § 50-6-116 (2015).
In claims for post-settlement medical treatment, the employee has the burden of
establishing the link between the original injury and any need for additional treatment.
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Greenlee v. Care Inn of Jefferson City, 644 S.W.2d 679, 680 (Tenn. 1983). Mr. Bufford
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)(2015). Further, as
the authorized physician, Dr. Chandler’s opinion regarding causation “shall be presumed
correct but this presumption shall be rebuttable by a preponderance of the evidence.” Id.
at § 50-6-102(14)(E)(2015).
Dr. Chandler opined that he could not “say with 100% medical certainty that his
new injury is related to his original injury because he was not employed at the time of the
new injury.” (Ex. 4 at 9.) As noted, Mr. Bufford does not have to prove his injury was
“100%” the cause of his injury, but instead more than fifty percent. However, even
against this standard, the Court cannot conclude Mr. Bufford has established a causal link
between his original injury and his current need for treatment. Dr. Chandler specifically
noted that Mr. Bufford was “not employed at the time of the new injury,” a clear
reference to his job at NWTHRA. Moreover, at the initial evaluation, Dr. Chandler
recorded a history that Mr. Bufford’s pain began “after lifting grandchildren and using a
mop at his new job.” /d. at 1. Importantly, Mr. Bufford admitted he lifted a grandchild
and used a mop at his new job. Tennessee law has long held that medical proof is not to
be “read and evaluated in a vacuum” but, instead “must be considered in conjunction
with the lay testimony of the employee as to how the injury occurred and the employee’s
subsequent condition.” Thomas v. Aetna Life and Cas. Co., 812 S.W.2d 278, 283 (Tenn.
1991). Mr. Bufford’s testimony is consistent with both Dr. Chandler’s recorded history
and causation opinion.
When faced with conflicting medical testimony, this Court must determine which
expert opinion to accept and which opinion contains the more probable explanation of
causation. Thomas, 812 S.W.2d at 283. When making this determination, the Court
should consider “the qualifications of the experts, the circumstances of their examination,
the information available to them, and the evaluation of the importance of that
information by other experts.” Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 676
(Tenn. 1991). Further, it is reasonable to conclude that the physician “having the greater
contact with [the injured worker] would have the advantage and opportunity to provide a
more in-depth opinion, if not a more accurate one.” Jd. at 677.
In this case, the Court must presume Dr. Chandler’s opinion to be correct and Mr.
Bufford must rebut that presumption in order to prevail. Mr. Bufford presented Dr.
Kuhn’s opnion in an effort to rebut the presumption. The Court holds he failed to do so.
Dr. Kuhn saw Mr. Bufford only one time, and provided no support for his
conclusory opinion that Mr. Bufford’s current complaints are related to the original
injury. Applying the factors of Orman, the Court finds Dr. Chandler is in the best position
to opine regarding causation. He saw Mr. Bufford before and after the most recent
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complaints, and has spent more time with him in the clinical setting, a fact recognized by
Dr. Kuhn. He explained the lack of a causal connection by pointing out the intervening
lifting of grandchildren, working a new job, and Mr. Bufford’s long absence from
NWTHRA. Taken in its totality, the evidence does not support a finding that Mr. Bufford
would likely prevail at a hearing on the merits in proving a causal relationship between
his current complaints and his original injury. Accordingly, the Court denies his claim for
additional medical benefits.
IT IS, THEREFORE, ORDERED as follows:
1: Mr. Bufford’s claim against NWTHRA and TML for future medical benefits is
denied at this time.
2. This matter is set for a Scheduling/Status Hearing on February 22, 2017,
at 9:30 a.m. Central Time.
ENTERED this the 5" day of Decenif
A fF
Judge Alle Phillips \
Court of Workers’ Compensation Claims
Scheduling (Status) Hearing:
A Scheduling/Status Hearing has been set with Judge Allen Phillips, Court of
Workers’ Compensation Claims. You must call toll-free at 731-422-5263 or toll-free
855-543-5038 to participate in the Scheduling 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.
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:
. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal.”
. File the completed form with the Court Clerk within seven business days of the
date the Workers’ Compensation Judge entered the Expedited Hearing Order.
. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.
. 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.
. 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.
. 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.
APPENDIX
Exhibits:
L.
2.
3.
4.
5.
Order Approving Workers’ Compensation Settlement Agreement (March 15,
2016;
Affidavit of Joe Bufford (filed with first Request for Expedited Hearing, Sept. 27,
2016);
Affidavit of Joe Bufford (filed with second Request for Expedited Hearing, Oct.
17, 2016);
Medical Records of Dr. Blake Chandler; and
Medical Record of Dr. John Kuhn.
Technical record:
SIDAARWN
Petition for Benefit Determination;
Dispute Certification Notice;
First Request for Expedited Hearing (file review only);
Order For File Review Determination of Expedited Hearing;
Second Request for Expedited Hearing (in-person);
Employer’s Response to PBD;
Employer’s Position Statement (pre-hearing brief); and
Employer’s Post-Hearing Response.
* 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.
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 5" day of
December, 2016.
Name Certified First Via Service sent to:
mail Class | Email
Mail
Joe Bufford, xX x 327 North Cherry St.
Self-Represented Employee Puryear, TN 38251
Fred N. McLean, Esq., xX tina@mcleanlaw.us
Attorney for Employer
fing Ad —
Penny Shrum, Clerk of Court
Court of Workers’ Compensation Claims
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