Smith, Marcia A. v. Allegis Group, Inc. , 2018 TN WC 92 ( 2018 )

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT CHATTANOOGA
FILED
Marcia A. Smith, ) Docket No.: 2017-01-0663 Jul 02, 2018
Employee, ) punanesuen Cow RT OF
Vv. ) ore eee AMON
Allegis Group, Inc., ) State File No.: 1326-2017
Employer, )
And )
Insurance Company of North America, ) Judge Thomas Wyatt
Carrier. )
)
EXPEDITED HEARING ORDER DENYING MEDICAL BENEFITS
This matter came before the Court on June 28, 2018, on Marcia Smith’s Request
for an in-person Expedited Hearing seeking additional medical benefits. Allegis Group,
Inc. (referred to during the hearing as “Aerotek”) contended Ms. Smith is not entitled to
these benefits because she failed to establish by expert medical opinion that her alleged
injury arose primarily out of and in the course and scope of employment.’ For the
reasons below, the Court agrees and holds Ms. Smith is not entitled to the requested
benefits.
History of Claim
Aerotek is a staffing agency for assembly-line positions at the Chattanooga
Volkswagen plant. Ms. Smith began to experience pain and swelling after working for
Aerotek for approximately two years. Sometime before November 2016, she reported
her problems to an on-site supervisor, a Volkswagen employee. These reports resulted in
Ms. Smith receiving treatment twice at Volkswagen’s in-house medical facility. No
evidence suggested that Ms. Smith’s problems caused her to miss work.
' Aerotek’s counsel also raised a notice defense. However, the Court’s ruling on Ms. Smith’s failure to
establish that her injury arose primarily out of and in the course and scope of employment makes the
notice issue moot.
In November or December 2016, Ms. Smith again asked the Volkswagen
supervisor for medical care of her hand and fingers. On January 3, 2017, she requested
treatment from Aerotek’s management, who provided a panel from which she selected
Dr. Natasha Ballard. Ms. Smith first saw Dr. Ballard on January 18.
Dr. Ballard recorded that Ms. Smith did not report a “known injury,” but “[t]hinks
she might be having a reaction to her work gloves causing knots on the end of left
thumb.”” The doctor also noted that Ms. Smith reported irritation in her cuticles and
knots and swelling at her fingertips. Dr. Ballard ordered x-rays that revealed “mild
degenerative changes at the DIP joints left hand and significant degenerative changes at
[the] MCP joint.” She also diagnosed the likely formation of “Heberden’s nodes on
several of Ms. Smith’s joints due to early arthritis” and wrote that “[a]ll possible
etiologies [of her hand symptoms] are chronic in nature and therefore not work-related.”
Dr. Ballard released her to return to work without restrictions.
Ms. Smith’s version of her conversation with Dr. Ballard differed slightly from
that recorded in the doctor’s notes. She testified that Dr. Ballard told her that the nodules
in her fingers were caused by early rheumatoid arthritis; that she did not know what the
knot on her left thumb was; and that she should watch the left-thumb knot and return if it
grew larger. Ms. Smith testified that Dr. Ballard gave her lotion to moisturize her hands
and instructed her to work without gloves as often as possible.
Aerotek denied Ms. Smith’s claim based on Dr. Ballard’s causation opinion. Ms.
Smith returned to regular duty and continued to perform assembly-line work for the next
several months. She experienced pain and swelling as she worked, especially when
installing rubber water seals on vehicle doors. Ms. Smith reported this pain to the
Volkswagen supervisor and asked him to assign her to other, less repetitive, available
jobs. She considered it harassment when she continued to receive assignments to the
door-seal job.
By July, the knot on Ms. Smith’s thumb grew to the size of a “gumball.” As
instructed, she asked to see Dr. Ballard again, but Aerotek withheld benefits based on its
previous denial. Ms. Smith continued to work while in pain, but she quit on October 31
because she could no longer perform her continued assignments to the door-seal job
without severe pain. Ms. Smith moved to Huntsville, Alabama and worked a temporary
assignment assembling electric circuitry boards from January 2018 until two weeks ago,
when the assignment ended.
On May 15, 2018, Ms. Smith saw orthopedist Dr. Philip Maddox for “left thumb
pain.” Dr. Maddox diagnosed a ganglion cyst on her left thumb but released her to
> Ms. Smith testified that the job she worked during her first year with Aerotek did not require her to wear
gloves often, but the job she worked at the time the knots formed required almost constant use of gloves.
2
regular duty. Concerning causation, Dr. Maddox wrote, “I do not believe that her work
caused this, but it may have aggravated it.”
Findings of Fact and Conclusions of Law
General Legal Principles
The Workers’ Compensation Law defines a compensable injury or cumulative
trauma condition as one “caused by a specific incident, or set of incidents, arising
primarily out of and in the course and scope of employment.” Tenn. Code Ann. § 50-6-
102(14), (14)(A) (2017). The statute provides that pre-existing conditions are
compensable only if it is shown to a reasonable degree of medical certainty that “the
aggravation arose primarily out of and in the course and scope of employment.” Jd. at §
50-6-102(14)(A). To establish a claim for benefits, Tennessee Code Annotated sections
50-6-102(14)(B) and (C) require proof by expert medical opinion that “the employment
contributed more than fifty percent (50%) in causing the death, disablement or need for
medical treatment, considering all causes.”
The burden is on Ms. Smith to prove the essential elements of her claim. Scott v.
Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18,
2015). However, since this is an expedited hearing, she can meet this burden by
providing sufficient evidence from which the Court can determine the likelihood of her
prevailing 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).
Analysis
The central determination here is whether Ms. Smith presented sufficient expert
medical opinion to establish her likelihood of prevailing at trial that her injury arose
primarily out of and in the course and scope of employment. In considering this issue,
the Court first addresses the opinion of Dr. Ballard, which receives a rebuttable
presumption of correctness because Ms. Smith selected her from a panel as the authorized
treating physician. Tenn. Code Ann. § 50-6-102(14)(E).
Dr. Ballard based her perfunctory causation opinion on the conclusion that all
possible diagnoses of Ms. Smith’s condition “are chronic in nature and therefore not
work-related.” The Court gives little weight to this opinion because, as written, it
appears that Dr. Ballard assumed that chronic conditions cannot be work-related. That
assumption is incorrect under Workers’ Compensation Law. See Tenn. Code Ann. § 50-
6-102(14)(A) (an aggravation of a pre-existing condition is compensable if the
underlying aggravation is established to arise primarily out of and in the course and scope
of employment).
The Court next addresses whether Ms. Smith’s testimony and Dr. Maddox’s
causation opinion sufficiently rebutted Dr. Ballard’s opinion to satisfy her burden of
proof. Initially, the Court holds that Ms. Smith testified credibly that her hand and thumb
problems developed as she worked repetitively while wearing gloves that irritated her
fingers and thumbs.
However, Tennessee law requires Ms. Smith to prove more than factual causation
to establish her claim. She must also submit expert medical opinion that she will likely
prevail at trial in establishing the work-relatedness of her condition under statutory
definitions. Ms. Smith attempted to meet this burden by submitting Dr. Maddox’s
opinion that her work at Aerotek may have aggravated the ganglion cyst on her left
thumb. In view of statutory definitions, the Court holds that Dr. Maddox’s opinion fails
to satisfy Ms. Smith’s burden of proof.
Dr. Maddox’s discussion of the work-relatedness of Ms. Smith’s ganglion cyst is
insufficient because he couched his opinion more within the realm of possibility than
likelihood. Tennessee Code Annotated section 50-6-102(14)(D) provides that expert
medical testimony of the “possibility” of the work-relatedness of a condition is
insufficient to establish benefits.
Further, Dr. Maddox’s discussion falls short because he did not track the statutory
language—whether Ms. Smith’s work “contributed more than fifty percent (50%) in
causing the death, disablement or need for medical treatment, considering all causes”—in
stating his opinion. See Tenn. Code Ann. § 50-6-102(14)(C). In Panzarella v.
Amazon.com, Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 30, at *16-17 (May 15, 2017),
the Appeals Board affirmed a denial of benefits because the medical proof “failed to
establish that the employment contributed more than fifty percent in causing the injury,
considering all causes, as the statute plainly requires.” (Emphasis added.) See also
Owens v. Sitters, Etc., 2018 TN Wrk. Comp. App. Bd. LEXIS 26, at *22-23 (May 29,
2018.)
Because of these insufficiencies in Dr. Maddox’s opinion, the Court holds Ms.
Smith failed to establish that she is likely to prevail at a hearing on the merits in proving
that the conditions in her left fingers and thumb arose primarily out of and in the course
and scope of employment. Thus, at this time, the Court denies her claim for additional
medical benefits.
IT IS, THEREFORE, ORDERED as follows:
1. At this time, Ms. Smith’s claim for interlocutory relief is denied.
2. The Court schedules a telephonic Status Conference at 10:30 a.m. Eastern Time
on October 31, 2018, to discuss whether to schedule the Compensation Hearing
and attendant deadlines in this claim. The parties shall call 855-747-1721 (toll-
free) or 615-741-3061 to participate in the Status Conference. A party’s failure to
call in at the scheduled time may result in the Court making decisions, including
scheduling decisions, without the absent party’s participation.
ENTERED July 2, 2018.
emunkrr Cth
Judge Thomas Wyatt
Court of Workers’ Compensation Claims
APPENDIX
Exhibits: The Court admitted the following exhibits into evidence during the Expedited
Hearing:
First Report of Injury;
Employee Choice of Physician form;
Notice of Denial of Claim for Compensation;
Affidavit of Marcia A. Smith;
Medical records of Doctors Express/Dr. Natasha Ballard;
Medical records of Dr. Philip Maddox; and
Photographs of Ms. Smith’s thumb taken in July 2017.
NAW YN
Technical record: The Court considered the following filings in deciding this claim:
Petition for Benefit Determination;
Dispute Certification Notice;
Employer Position Statement;
Employee Position Statement;
Request for Expedited Hearing;
Notice of Expedited Hearing;
Employer Witness and Exhibit Statement; and
Employer Expedited Hearing Brief.
PAA SYN
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 on July 2, 2018.
Name Certified Via Email Service sent to:
Mail
Marcia Smith, Self- xX x Smithmarcia8845@yahoo.com
Represented 302 Max Luther Drive
Employee Huntsville, AL 35811
Kaitlin Kazmier xX kkazmier(@manierherod.com
David Deming ddeming@manierherod.com
Employer Attorneys
PENNY SHRUM, COURT CLERK
we.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: “Expedited Hearing 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. Ifa 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
concerning 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.
Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, I-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
, having been duly sworn according to law, make oath that
because of my poverty, | am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name:
3. Telephone Number:
5. Names and Ages of All Dependents:
6. | am employed by:
2. Address:
4. Date of Birth:
Relationship:
Relationship:
Relationship:
Relationship:
My employer's address is:
My employer's phone number is:
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$
8. | receive or expect to receive money from the following sources:
AFDC $
SSI $
Retirement $
Disability $
Unemployment $
Worker’s Comp.$
Other $
LB-1108 (REV 11/15)
per month
per month
per month
per month
per month
per month
per month
beginning
beginning
beginning
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beginning
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9, My expenses are:
Rent/House Payment $
Groceries
Electricity
Water
Gas
Transportation
Car
Other
10. Assets:
Automobile
$
$
$
$
$
$
$
$
Checking/Savings Acct. $
House
Other
41. My debts are:
Amount Owed
$
$
per month Medical/Dental $ per month
per month Telephone $ per month
per month School Supplies $ per month
per month Clothing $ per month
per month Child Care $ per month
per month Child Support $ _ per month
per month
per month (describe: _)
(FMV)
— (FMV)
Describe:
To Whom
i hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that { am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
day of _
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV 11/15)
, 20
RDA 11082