Sustersic, Thomas v. Lowe's Home Centers, Inc. , 2018 TN WC 196 ( 2018 )

FILED
Dec 05, 2018
02:27 PM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT CHATTANOOGA
Thomas Sustersic, ) Docket No.: 2017-01-0497
Employee, )
v. ) State File No.: 51589-2017
)
Lowe’s Home Centers, Inc., ) Judge Audrey A. Headrick
Employer. )
) _
COMPENSATION HEARING ORDER
The Court conducted a Compensation Hearing on November 14, 2018. The issue
is whether Mr. Sustersic sustained a compensable hernia injury on April 22, 2017. For
the reasons below, the Court holds Mr. Sustersic failed to establish by a preponderance of
the evidence that he is entitled to benefits.
History of Claim
Mr. Sustersic worked for Lowe’s as a delivery driver. He alleged that he suffered
a hernia injury on April 22, 2017. Mr. Sustersic moved, lifted and/or delivered many
heavy products and appliances before and on April 22; his job description required heavy
lifting up to 100 pounds without assistance. (Ex. 2 at 8-16.) However, Mr. Sustersic
stated he routinely pulled orders that weighed over 100 pounds and averaged pulling
about thirty appliances per day. The issue is whether Mr. Sustersic developed a hernia on
or before April 22.
At the compensation hearing, Mr. Sustersic testified he had no hernia or
abdominal problems before loading a range on April 22. He stated that on April 22 he
felt “sluggish” or tired before going to another Lowe’s location to pick up a range that
weighed approximately 200 pounds. A forklift was not available, so Mr. Sustersic and a
co-worker lifted the range and slid it into a flatbed truck. Further, he stated his stomach
started hurting after they loaded the range, and he felt nauseous.
Mr. Sustersic testified differently at an expedited hearing when he stated his
stomach felt “very uneasy” and hurt all day.' (Ex. 4 at 19; 31.) He acknowledged having
a problem that occurred over the “last week, several days.” Jd. at 33. Mr. Sustersic
testified his stomach was “slowly bothering [him] . . . to the point that he asked [the
assistant manager] if she could have a guy come out there with a forklift to put [the
range] on the back of the truck.” Jd. at 32. Although Mr. Sustersic testified at the
compensation hearing that his pain began after moving the range, he previously described
the range incident as “the straw that broke the camel’s back.” Jd. at 28.
The next day Mr. Sustersic went to the Tennova emergency room and reported
having abdominal pain, vomiting, and diarrhea since the prior day. (Ex. 2 at 2-3.)
However, the cardiologist noted that Mr. Sustersic “reports that over the past week or so
he has felt that his stomach was getting hard and whenever he would exert himself he
would have stomach cramps.” (Ex. 1, Depo. Ex. 4.) At the compensation hearing, Mr.
Sustersic stated he did not recall telling a cardiologist about having week-long symptoms
of stomach cramps and hardness.
After the cardiologist consult, Dr. Joshua Worthington performed emergency
surgery on Mr. Sustersic after a CT scan revealed a ventral hernia with a bowel
obstruction. Mr. Sustersic reported having abdominal pain for forty-eight hours before
admission. Unfortunately, Mr. Sustersic had two failed hernia repair surgeries.
After Mr. Sustersic’s second surgery, Dr. Worthington referred Mr. Sustersic to
Dr. Vincente Mejia, a hernia specialist. Dr. Mejia performed a successful operation on
Mr. Sustersic’s “giant ventral hernia.” (Ex. 2 at 5-7.) The parties stipulated that Dr.
Mejia placed Mr. Sustersic at maximum medical improvement (MMI) on March 5 and
assigned him a three percent medical impairment rating to the body. Mr. Sustersic did
not return to work at Lowe’s earning the same or greater wages as he earned before April
22, and Lowe’s did not pay any temporary disability or medical benefits. Mr. Sustersic
offered no medical proof from Dr. Mejia regarding the cause of Mr. Sustersic’s hernia.
Dr. Worthington’s Testimony
Dr. Worthington defined a ventral hernia, identified its causes, explained the
symptoms and also explained how exertion affects a hernia. A ventral hernia is a hole in
the anterior abdominal wall. This can result in abdominal matter, such as the bowel,
protruding through the hole causing pain. There are three causes of ventral hernias: (1) a
previous surgical incision; (2) congenital defects; and (3) idiopathic. Dr. Worthington
stated that exertion can make hernias bigger and symptomatic. Some people develop
asymptomatic hernias that become symptomatic through exertion. Hernias most
' The Court took under advisement the admissibility of the transcribed November 8, 2017 Expedited
Hearing and sustains Mr. Sustersic’s hearsay objection. Only those pages used to impeach Mr.
Sustersic’s testimony will be marked as cumulative Exhibit 4.
2
commonly cause pain and a bulge. Ifa bowel is protruding through the hernia, it can
cause nausea and vomiting.
After reviewing the cardiologist’s report and Mr. Sustersic’s prior testimony, Dr.
Worthington could not identify the cause of Mr. Sustersic’s ventral hernia. When asked
if he could state with any degree of medical certainty whether the lifting incident caused
Mr. Sustersic’s hernia, Dr. Worthington stated, “I cannot say one way or the other, no.”
(Ex. | at 29.) He explained, “Any conjecture I could have is just theoretical. So I really
can’t speak to anything prior to [seeing Mr. Sustersic].” /d. at 30.
Dr. Worthington could not determine whether the hernia pre-existed the lifting
incident or developed suddenly. When asked if the hernias existed before April 2017, Dr.
Worthington stated, “I would say there’s a chance they could have but there’s a chance
they might not.”* Jd. at 30. When asked if the hernia developed suddenly, Dr.
Worthington stated, “I cannot say.” Jd. at 44. When discussing whether Mr. Sustersic’s
hernias were due to an acute event or a gradual onset, Dr. Worthington stated, “It’s hard
to say.” Id. at 41.
The small bowel stuck in the hernia caused nausea, vomiting, and abdominal pain
that necessitated medical treatment; however, those symptoms did not mean an acute
event caused the hernia. Jd. at 45. Dr. Worthington testified, “Whether [the hernia] was
there two days before or a week before or a year before, I don’t know.” Jd. However,
Dr. Worthington explained, “The thing that brought [Mr. Sustersic to the hospital] is the
fact that he had small bowel stuck in this hernia. Whether that hernia was acute or not I
don’t know.” /d.
Findings of Fact and Conclusions of Law
Mr. Sustersic must prove all elements of his case by a preponderance of the
evidence, which means more likely than not. Tenn. Code Ann. § 50-6-239(c)(6). Here,
Mr. Sustersic did not satisfy any of the statutory requirements for a hernia except for the
third criterion. For the following reasons, the Court holds Mr. Sustersic did not satisfy his
burden of proof.
For his hernia claim, Mr. Sustersic is required to “definitely prove[] to the
satisfaction of the court” that:
(1) There was an injury resulting in hernia or rupture;
(2) The hernia or rupture appeared suddenly;
(3) It was accompanied by pain;
(4) The hernia or rupture immediately followed the accident; and,
* During the first surgery performed by Dr. Worthington, he discovered a second, very small hernia
located above the large hernia.
(5) The hernia or rupture did not exist prior to the accident for which
compensation is claimed.
Tenn. Code Ann. § 50-6-212(a). The hernia must result from an “injury by accident
arising primarily out of and in the course and scope” of Mr. Sustersic’s employment. Id.
So guided, the Court will analyze each statutory requirement.
Mr. Sustersic did not satisfy the first criterion of an injury resulting in hernia. He
clearly sustained a ventral hernia. However, Dr. Worthington’s testimony does not
establish that the hernia resulted from an “injury by accident arising primarily out of and
in the course and scope” of Mr. Sustersic’s employment. He explained, “Any conjecture
I could have is just theoretical.” /d. at 30. Likewise, the medical records are silent
regarding a work-related injury. Although Mr. Sustersic contended he injured himself
when loading a range onto a flatbed truck, the medical proof does not support his
contention. The Court also finds Mr. Sustersic’s attempt to modify his testimony at the
compensation hearing unpersuasive. Therefore, the Court holds that Mr. Sustersic did
not satisfy the injury requirement.
As for the second criterion, Mr. Sustersic did not satisfy the requirement that his
hernia appeared suddenly. When our Legislature used the word “suddenly,” it meant that
the hernia must have developed without warning or “without previous notice.” Etter v.
Blue Diamond Coal Co., 215 S.W.2d 803, 806 (Tenn. 1948). Here, Dr. Worthington
explicitly stated he could not say if Mr. Sustersic’s hernia developed suddenly from an
acute event or if it was from a gradual onset. Similarly, Mr. Sustersic’s testimony
detailed a gradual onset of pain in the days and/or week before the lifting incident. In his
own words, Mr. Sustersic described the lifting incident as “the straw that broke the
camel’s back.” Therefore, the Court holds that Mr. Sustersic did not satisfy the sudden-
appearance requirement.
Mr. Sustersic satisfied the third criterion of a hernia accompanied by pain. It is
undisputed that Mr. Sustersic experienced pain. His testimony and the cardiologist’s
report indicate he began experiencing pain, stomach hardening, and cramps a few days to
a week before April 22. Mr. Sustersic also reported to Dr. Worthington that he had
abdominal pain for 48 hours before he sought emergency treatment. Therefore, the Court
holds that Mr. Sustersic satisfied the pain requirement.
Mr. Sustersic did not satisfy the fourth criterion that the hernia immediately
followed an accident. A hernia is “immediate” and compensable if it appears so soon
after the injury that it cannot be attributed to any other cause. Etter v. Blue Diamond
Coal Co., 215 S.W.2d 803 (Tenn. 1948). Mr. Sustersic’s hernia was discovered upon his
admission to the hospital. However, as Dr. Worthington repeatedly testified, it is unclear
whether the hernia developed before the lifting incident. Therefore, the Court holds that
Mr. Sustersic did not satisfy this requirement.
4
Regarding the final criterion, Mr. Sustersic did not satisfy the requirement that the
hernia was not pre-existing. Dr. Worthington’s opinion only offered uncertainty and
speculation. When asked if Mr. Sustersic’s hernias existed before April 2017, Dr.
Sustersic stated, “There’s a chance they could have but there’s a chance they might not.”
Ex. 1 at 30. He also speculated that it was “hard to say” as to whether Mr. Sustersic’s
hernias were due to an acute event or a gradual onset. /d. at 41. Therefore, the Court
holds that Mr. Sustersic did not satisfy the requirement that his hernia was not pre-
existing.
Conclusion
The Court holds the evidence shows Mr. Sustersic failed to establish by a
preponderance of the evidence that his hernia arose primarily out of and in the course and
scope of his employment with Lowe’s. Therefore, his claim for workers’ compensation
benefits is denied.
Alternative Findings
Solely in the event that an appellate body finds error in the compensability
holding, the Court makes the following alternative findings for the sake of judicial
economy. See Cunningham vy. Shelton Sec. Serv., 46 S.W.3d 131, 137-138 (Tenn. 2001).
(“The trial court should ... hear the entire case and make appropriate findings of fact,
and alternative findings when necessary, for appellate review.”’)
With regard to temporary disability benefits from April 22, 2017, through March
5, 2018, Mr. Sustersic did not prove entitlement to the requested benefits. Here, Mr.
Susterisic did not submit any medical proof regarding the time periods any medical
provider took him off work and/or imposed restrictions.
Permanent partial disability benefits are calculated by multiplying the impairment
rating by 450 weeks, then multiplying the result by the employee’s weekly compensation
rate. Here, the parties agreed Dr. Mejia rated Mr. Sustersic with a three-percent-
impairment to the body and a $472.57 compensation of rate. Therefore, the Court holds
that Mr. Sustersic is entitled to an original award of permanent partial disability benefits
totaling $6,379.70.
Tennessee Code Annotated section 50-6-207(3)(B) provides that the employee
may claim increased benefits if he has not returned to work for any employer or has
returned to work receiving less wages or salary than he received before his work injury.
Mr. Sustersic qualifies for two of the multipliers. The parties stipulated that Mr.
Sustersic did not successfully return to work (1.35) and is over 40 years old (1.2). Thus,
the Court also holds in the alternative that the resulting award would total $10,335.11.
Mr. Sustersic is entitled to future medical treatment with Dr. Mejia as his treating
physician. However, Lowe’s is not required to pay for past medical treatment obtained
by Mr. Sustersic, as he offered no proof on the issue.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Sustersic’s claim is denied on the grounds of compensability.
2. Lowe’s shall pay court costs of $150.00 to the Court Clerk within five business
days of this order becoming final.
3, Lowe’s shall prepare and submit a Statistical Data Form (SD2) within ten business
days of this order becoming final.
4. Absent an appeal, this order shall become final thirty days after issuance.
ENTERED December 5, 2018.
| | A __
C\ Ak isa Ga Wo of A, A
Judge Audrey A. Headrick
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1.
Deposition of Dr. Joshua Worthington
2. Collective Exhibit with Table of Contents:
Go
a. Job description
b. Tennova medical records
c. Operative note
d. Delivery tickets
Joint Pre-Compensation Hearing Statement
Pages 19; 28; 32-33 of Transcript of Evidence—Expedited Hearing dated
November 8, 2017
. Remainder of Transcript of Evidence marked for identification purposes only
Technical Record:
SIDARWN
9.
Petition for Benefit Determination, filed July 17, 2017
Dispute Certification Notice, filed September 28, 2017
Request for Expedited Hearing
Notice of Expedited Hearing
Expedited Trial Brief
Notice of Filing Supplemental Exhibits to Employer’s Expedited Trial Brief
Employer’s List of Witnesses
Expedited Hearing Order
Petition for Benefit Determination, filed May 5, 2018
10. Dispute Certification Notice, filed September 14, 2018
11. Joint Pre-Compensation Hearing Statement
12.Employee’s Trial Brief
13.Employer’s Trial Brief
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this Order was sent to the following
recipients by the following methods of service on December 5, 2018.
Name Certified | Via Email | Email Address
Mail
Matthew Coleman, xX mcoleman@loganthompsonlaw.com
Employee’s Attorney lhaywood@loganthompsonlaw.com
Ben Reese, x ben.reese@leitnerfirm.com
Rob Carden, rob.carden@leitnerfirm.com
Employer’s Attorneys -
CNN \ Nye. 7 Wd! NOC stu 2)
Penny Sh runW Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
Compensation Hearing Order Right to Appeal:
If you disagree with this Compensation Hearing Order, you may appeal to the Workers’
Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers’
Compensation Appeals Board, you must:
1. Complete the enclosed form entitled: “Compensation Hearing Notice of Appeal,” and file
the form with the Clerk of the Court of Workers’ Compensation Claims within thirty
calendar days of the date the compensation hearing order was filed. When filing the
Notice of Appeal, you must serve a copy upon the opposing party (or attorney, if
represented).
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 filing 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 your 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. A licensed court
reporter must prepare a transcript and file it with the court clerk within fifteen calendar
days of the filing the Notice of Appeal. Alternatively, you may file a statement of the
evidence prepared jointly by both parties within fifteen calendar 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
of the evidence 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. After the Workers’ Compensation Judge approves the record and the court clerk transmits
it to the Appeals Board, a docketing notice will be sent to the parties. The appealing
party has fifteen calendar days after the date of that notice to submit a brief to the
Appeals Board. See the Practices and Procedures of the Workers’ Compensation
Appeals Board.
To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing
Order must be final and you must comply with the Tennessee Rules of Appellate
Procedure. If neither party timely files an appeal with the Appeals Board, the trial court’s
Order will become final by operation of law thirty calendar days after entry. See Tenn.
Code Ann. § 50-6-239(c)(7).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
LB-1103
COMPENSATION HEARING NOTICE OF APPEAL
Tennessee Division of Workers’ Compensation
www.th gov/labor-wid/weomp.shtm|
wc.courtclerk@tn.gov
1-800-332-2667
Docket #:
State File #/YR:
Employee
Employer
Notice
Notice is given that
{List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s) of the Court of Workers’ Compensation Claims at
to the Workers’ Compensation Appeals Board.
[List the date(s) the order(s) was filed in the court clerk’s office]
Judge
Statement of the Issues
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
List of Parties
Appellant (Requesting Party): At Hearing: _lEmployerL_lEmployee
Address:
Party’s Phone: Email:
Attorney's Name: BPR#:
Attorney’s Address: Phone:
Attorney’s City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellant *
rev. 10/18 Page 1 of 2 RDA 11082
Employee Name: SF#: DOI:
Appellee(s)
Appellee (Opposing Party): At Hearing: [ JEmployerL_JEm ployee
Appellee’s Address:
Appellee’s Phone: Email:
Attorney’s Name: BPR#:
Attorney’s Address: Phone:
Attorney’s City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, , certify that | have forwarded a true and exact copy of this
Compensation Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all
parties and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee
Rules of Board of Workers’ Compensation Appeals on this the dayof _—_—_—_, 20
{Signature of appellant or attorney for appellant]
Attention: This form should only be used when filing an appeal to the Workers’ Compensation Appeals
Board. If you wish to appeal a case to the Tennessee Supreme Court, please utilize the form provided by
the Court which can be found on their website at the following address:
htto://www.tncourts.gov/sites/default/files/docs/notice of appeal - civil or _criminal.pdf
LB-1103 rev. 10/18 Page 2 of 2 RDA 11082
Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, I-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
I, , 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: 2. Address:
3. Telephone Number: 4. Date of Birth:
5. Names and Ages of All Dependents:
Relationship:
Relationship:
Relationship:
Relationship:
6. | am employed by:
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 $ per month beginning
SSI $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Comp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are:
Rent/House Payment $ permonth Medical/Dental $ per month
Groceries $ per month Telephone $ per month
Electricity $ per month School Supplies $ per month
Water $ per month Clothing $ per month
Gas $ per month Child Care $ = per month
Transportation $ per month Child Support $ per month
Car $ per month
Other $ per month (describe: __}
10. Assets:
Automobile $ (FMV)
Checking/Savings Acct. $
House $ _ (FMV)
Other $ Describe:
11. My debts are:
Amount Owed To Whom
| 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 , 20
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV 11/15) RDA 11082