Valle, Donina v. American Lumper Service, Inc. , 2019 TN WC 160 ( 2019 )

FILED
Nov 08, 2019
08:57 AM(CT)
TENNESSEE COURT OF
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
Donina Valle, ) Docket No. 2018-06-2262
Employee, )
Vv. )
American Lumper Service, Inc., ) State File No. 93985-2018
Employer, )
And )
Arch Insurance Company, ) Judge Kenneth M. Switzer
Carrier. )
EXPEDITED HEARING ORDER
Donina Valle requested medical and temporary disability benefits for back, neck
and arm injuries from a fall at work. American Lumper Service argued that it offered all
the medical benefits to which Ms. Valle is entitled, and she is not entitled to temporary
disability benefits.’ After an expedited hearing on November 6, the Court holds that Ms.
Valle is entitled to a panel of orthopedists in Columbus, Ohio, where she relocated, but
not temporary disability benefits.
History of Claim
Ms. Valle testified that she worked as a laborer for ALS loading and unloading
boxes and packages off a conveyor belt into trucks.2 On November 15, 2018, Ms. Valle
noticed a tall stack of boxes on the belt that were beyond her reach. She stepped up,
attempting to retrieve the boxes. Her left foot “got stuck in a band that was placed there
incorrectly.” Ms. Valle lost her balance, slipped and fell to the floor, landing on her
back. She injured her back, head and shoulder. Coworkers helped her up, and she
walked to a nearby table to sit. ALS introduced video footage that depicted the accident
' The dispute certification notice also lists compensability and willful misconduct as issues, but ALS did
not raise these arguments at the hearing.
* Ms. Valle speaks Spanish, and ALS provided an interpreter at the hearing.
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WORKERS' COMPENSATION
substantially as Ms. Valle described it. ALS sent her to an urgent-care clinic several days
later rather than offering a panel of physicians at the time of injury.”
At the first visit, providers diagnosed cervical and right-shoulder strains, and
contusions to her head, lumbar spine and hand. They prescribed medication, referred her
to physical therapy and assigned restricted duty. Ms. Valle returned for follow-up visits
until the end of February. She participated in physical therapy and underwent a shoulder
injection. MRIs of the lumbar spine and shoulder revealed no acute findings. The
physician released her from treatment on February 27, 2019.
Afterward, ALS offered a panel of orthopedic specialists, and Ms. Valle chose Dr.
Joseph Wieck. She saw him twice. At the first visit in May, he assessed low-back and
right-shoulder pain but concluded that she was “treated adequately” for the work injury.
He placed her at maximum medical improvement, released her to work without
restrictions, and assigned a zero-percent impairment rating. Dr. Wieck also wrote that
she “will follow up with us as needed.” He later signed a form C-30A indicating that he
did not anticipate the need for future treatment for her injury.
After Ms. Valle filed her hearing request, ALS authorized the second visit. ALS
provided transportation to and from Columbus, Ohio to Dr. Wieck’s office in Tennessee.
At the October 28 visit, he noted, “We again discussed this at length with her. We
discussed that there is not evidence of significant injury or anything that would require
further intervention. I would treat this with anti-inflammatory and stretching and
strengthening exercises. She remains fit for work. She will followup [sic] if needed.”
Ms. Valle testified, and Dr. Wieck’s records confirm, that he gave her a prescription for
pain medication at the appointment.
Following her injury, Ms. Valle returned to work in early December 2018. ALS
accommodated her restrictions for approximately three weeks and then returned her to
full duty, although her restrictions remained in place until February 25. Ms. Valle
testified that she found it difficult due to pain to work two consecutive days at full duty,
so she asked to work every other day. She said the “boss’s right hand” agreed to this and
said he would not report it to her supervisor. Ms. Valle agreed she could not do any
heavy lifting at that time due to the work injury and kidney stones. ALS terminated her
on April 10, 2019. Her testimony did not offer a reason for the termination. Likewise,
ALS offered no proof on why it discharged her.
Ms. Valle testified that she underwent surgery to remove “kidney stones” two days
later. ALS characterized the procedure as related to gallstones but introduced no records
from the surgery or follow-up care. Ultimately, Ms. Valle moved to Ohio and sought
unauthorized treatment for her work injury at an urgent-care clinic. She further testified
* The mediator referred the case to the Compliance Program for consideration of a penalty.
2
that she is currently participating in physical therapy at her own expense. The Court
admitted no records or bills from this treatment into evidence.
Ms. Valle said she still experiences daily pain from the injury, which leaves her
unable to work. The dispute certification notice listed temporary disability benefits as an
issue, but she made no arguments regarding her entitlement to them. Rather, she only
requested medical treatment.
For its part, ALS questioned Ms. Valle’s credibility and whether the incident
resulted in serious injuries. It contended it provided all treatment to which she is entitled,
and that she was released for full-duty work with no impairment. As for temporary
disability benefits, ALS argued Ms. Valle’s termination was due to missing work for her
gallstones, which “mimic back pain.”
Findings of Fact and Conclusions of Law
Ms. Valle must present sufficient evidence from which the Court can determine
she is likely to prevail at a hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(1)
(2019).
Initially the Court addresses ALS’s contention that Ms. Valle lacked credibility.
The Tennessee Supreme Court gave indicators of witness credibility, so that trial courts
consider whether a witness is “calm or agitated, at ease or nervous, self-assured or
hesitant, steady or stammering, confident or defensive, forthcoming or deceitful,
reasonable or argumentative, honest or biased.” Kelly v. Kelly, 445 S.W.3d 685, 694-695
(Tenn. 2014). The Court observed Ms. Valle and finds she was calm, at ease, self-
assured, steady, confident, forthcoming, reasonable and honest.
Next, the Court turns to Ms. Valle’s request for additional treatment. ALS argued
that the authorized treatment it provided satisfied its obligations under the Workers’
Compensation Law.
Tennessee Code Annotated section 50-6-204(a)(3)(H) provides that any treatment
recommended by a physician selected from a panel is presumed medically necessary.
Further, the Appeals Board held that, where a panel-selected physician finds no
additional treatment necessary and places the injured worker at maximum medical
improvement, absent evidence to the contrary, the worker is not entitled to additional
treatment. Petty v. Convention Prod. Rigging, 2016 TN Wrk. Comp. App. Bd. 95, at
*18-19 (Dec. 29, 2016). Ms. Valle chose Dr. Wieck from a panel. Dr. Weick signed a
C-30A stating he did not anticipate further medical treatment. However, at her last office
visit in October, Dr. Wieck treated her with prescription medication and agreed that she
could “follow-up as needed.”
Similar circumstances occurred in Limberakis v. Pro-Tech Security, Inc., 2017 TN
Wrk. Comp. App. Bd. LEXIS 53 (Sept. 12, 2017). In that case, the employer accepted
the claim and provided authorized care until the physician refused to schedule further
appointments. The trial court ordered the employer to replace that doctor on a panel and
provide reasonable, necessary and related treatment with the employee’s selected panel
physician. The employer appealed.
On appeal, the Appeals Board affirmed. The Board cited longstanding law that,
“an employee’s assessment as to his or her own physical condition is competent
testimony that is not to be disregarded.” Jd. at *6. The Board further held that “an
employer cannot unilaterally terminate an employee's entitlement to reasonable and
necessary medical benefits following a compensable work injury,” and, “Unless a court
terminates an employee’s entitlement to medical benefits, or approves a settlement in
which the parties reach a compromise on the issue of future medical benefits, an injured
worker remains entitled to reasonable and necessary medical treatment causally-related to
the work injury[.]” Jd. at *7.
Ms. Valle credibly testified that she suffered an injury that altered her ability to
perform her work duties and that she still suffers pain from the work accident. The Court
rejects ALS’s unsupported argument that Ms. Valle’s gallstones rather than work might
be responsible for her back pain. Although Dr. Wieck seemed to have little to offer her,
he continued to treat Ms. Valle and indicated a willingness to do so “as needed.” ALS
cannot unilaterally terminate Ms. Valle’s right to reasonably necessary and related
treatment. At this interlocutory stage, the Court has neither terminated her entitlement to
treatment nor approved a settlement compromising the issue of future medical benefits.
Thus, Ms. Valle remains entitled to medical benefits.
Ordinarily the Court would order that Ms. Valle be permitted to return to Dr.
Wieck. However, since she has moved to Columbus, Ohio, ALS must provide a panel of
orthopedic specialists “in the injured employee’s community.” Tenn. Code Ann. § 50-6-
204(a)(3)(A)(1).
Finally, Ms. Valle requested temporary disability benefits, although she stated
during her testimony that she only wanted additional treatment. However, at the close of
the hearing, she asked whether this order will address her entitlement to temporary
disability benefits.
Temporary partial disability refers to the time, if any, during which the injured
employee is able to resume some gainful employment but has not reached maximum
recovery. Hackney v. Integrity Staffing Solutions, Inc., 2016 TN Wrk. Comp. App. Bd.
LEXIS 29, at *11 (July 22, 2016). In all cases of temporary partial disability, the
compensation shall be sixty-six and two-thirds percent of the difference between the
average weekly wage of the worker at the time of the injury and the wage the worker is
4
able to earn in the worker’s partially disabled condition. Tenn. Code Ann. § 50-6-
207(2)(A). Further, a termination due to a violation of workplace rules may relieve an
employer of its obligation to provide temporary partial disability benefits, provided the
termination was related to the workplace violation. Jones v. Crencor Leasing and Sales,
2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *8 (Dec. 11, 2015).
Applying these principles, Ms. Valle offered no proof of her wages at the time of
her injury or the wage she earned in her partially disabled condition. She likewise
provided little detail about her termination other than she asked for a schedule that
allowed her to not work consecutive days due to pain. Neither party offered proof as to
whether the termination related to a workplace violation or her work injury. Ms. Valle
has not satisfied her burden, and her request is denied.
IT IS, THEREFORE, ORDERED as follows:
1. ALS must offer a panel of orthopedic specialists in Ms. Valle’s community
(Columbus, Ohio) for any additional reasonable and necessary treatment related to
the work injury.
2. Ms. Valle’s request for temporary disability benefits is denied at this time.
3. This case is set for a status hearing on January 28, 2020, at 9:45 a.m. Central
time. The parties must call 615-532-9552 or toll-free 866-943-0025 to participate
in the hearing.
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).
The Insurer or Self-Insured Employer must submit confirmation of compliance
with this Order to the Bureau by email to WCCompliance.Program@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 might result in a penalty
assessment for non-compliance. For questions regarding compliance, please
contact the Workers’ Compensation Compliance Unit via email at
WCCompliance.Program@tn.gov.
ENTERED November 8, 2019.
th YY?
MUL
DGE KENNETH
5
Exhibits:
Affidavit of Donina Valle
First Report on Injury
A SY bee
(identification only)
Video footage of accident
ox
Composite Medical records
APPENDIX
Panel of Physicians, March 23, 2019
Panel of Physicians, unsigned
Ohio Bureau of Workers’ Compensation-Physician’s Report of Work Ability
Panel of Physicians, May 2, 2019
9. Email from the nurse case manager to the adjuster
Technical Record:
Penalty Referral
AR WN
Employer’s Brief
Dispute Certification Notice
Request for Expedited Hearing
Petition for Benefit Determination
CERTIFICATE OF SERVICE
I certify that a copy of this Expedited Hearing Order was sent as indicated on
November 8, 2019.
Name
Certified
Mail
Email
Sent To:
Donina Valle, self-represented
employee
x
2388 Northland Square Drive
South, Apt. E
Columbus, OH 43231-5831
Sean Hunt, Employer’s Attorney
xX
sean@thehuntfirm.com
mohammed@thehuntfirm.com
Yin, Warwune Py
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. If a 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.
LB-1099
EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers’ Compensation
www. tn.gov/labor-wid/weomp.shtml
wce.courtclerk@tn.gov
1-800-332-2667
Docket #:
State File #/YR:
Employee
Vv.
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:
Additional Information
Type of Case [Check the most appropriate item]
L] Temporary disability benefits
L] Medical benefits for current injury
LC Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): At Hearing: LJEmployer LJEmployee
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: L]JEmployer LJEmployee
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,
Expedited 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 day of , 20
, certify that | have forwarded a true and exact copy of this
[Signature of appellant or attorney for appellant]
LB-1099 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 Ail Dependents:
Relationship:
Relationship:
Relationship:
Relationship:
6. lam 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
ssl $ 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 I 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