Cannon, Dorothy v. Spring Hill Residential, LLC , 2019 TN WC 167 ( 2019 )

FILED
Nov 21, 2019
01:14 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
Dorothy Cannon, ) Docket No. 2018-06-2049
Employee, )
V. )
Spring Hill Residential, LLC, ) State File No. 5562-2018
Employer, )
And )
Safety National Casualty Corp., ) Judge Kenneth M. Switzer
Carrier. )
EXPEDITED HEARING ORDER
Dorothy Cannon filed a hearing request seeking medical benefits, specifically
treatment for her neck.’ Spring Hill Residential asserts that her neck condition is
unrelated to the work accident. After an expedited hearing on November 20, 2019, the
Court denies Ms. Cannon’s requested relief.
History of Claim
Ms. Cannon works as a cook at Spring Hill Residential. On January 16, 2018, she
slipped and fell in the parking lot, hurting her low back.
Spring Hill Residential accepted the claim. Rather than offering a panel of
physicians, it provided authorized treatment with a walk-in clinic. Later, Ms. Cannon
asked to return to a doctor. She testified that the adjuster did not return her calls, but
eventually Spring Hill offered a panel of orthopedists. Ms. Cannon chose Dr. Robert
" The dispute certification notice additionally lists temporary disability benefits as an issue, but Ms.
Cannon offered no proof on this issue at the hearing. Ms. Cannon stated at the hearing that she also seeks
payment of a medical bill, but she likewise provided no proof on that question. The Court considers these
requests waived at this time. Ms. Cannon further asked that the Court order Spring Hill Residential to
offer a panel of surgeons for her low back, but she conceded on cross-examination that it already did so.
The Court considers this request moot. Notably, Spring Hill Residential agreed on the record that if Ms.
Cannon wishes to return to Dr. Snowden, it will authorize it.
1
Clendenin and saw him in June, complaining of back, hip and leg pain. Dr. Clendenin’s
records are silent regarding any problems with Ms. Cannon’s neck. In January 2019, he
recommended a surgical evaluation.
Spring Hill Residential offered a panel of orthopedic surgeons, and Ms. Cannon
chose Dr. Ryan Snowden. Ms. Cannon saw him twice. After her second visit in April,
he wrote:
At this point, I think she has exhausted all options. She has been dealing
with this for well over a year and is really only complaining of low back
pain. She does have significant degenerative changes that can contribute to
this and I see no evidence of radicular symptoms today and certainly no
surgery would help. At this point, I have given her [a] significant amount
of treatment and [she is] really plateauing of relief and the fact that she
continues to work full duty without functional limitations.
Dr. Snowden placed Ms. Cannon at maximum medical improvement. He assigned a
seven-percent impairment rating to the body as a whole and checked a box indicating that
he does not anticipate the need for future medical treatment. His notes do not mention
her complaining of neck problems.
Ms. Cannon also saw her primary care physician, Dr. Heather Rowe. The medical
records document visits in April 2018, and February and July of 2019. At the first visit,
she told Dr. Rowe about her work accident and complained of leg pain. On exam of Ms.
Cannon’s neck, Dr. Rowe noted nothing unusual. She diagnosed low-back pain, among
other conditions. In February 2019, Dr. Rowe wrote that Ms. Cannon’s lumbar spine was
being treated as a workers’ comp injury and again noted normal findings while
examining her neck. At the July 2019 visit, Ms. Cannon complained of a “cervical or
thoracic problem,” and Dr. Rowe ordered an x-ray of her cervical spine. The radiology
report documented “‘multilevel degenerative changes of the cervical spine without acute
fracture.”
Afterward, Ms. Cannon saw a neurosurgeon, Dr. Ross Dawkins. His September
2019 notes state that she suffers from “chronic neck and low back pain.” He ordered
copies of previous MRI images. After reviewing them, Dr. Dawkins wrote:
I received an MRI of the lumbar spine from May 2018. This demonstrates
multilevel degenerative changes without any significant stenosis. I do not
see any surgical pathology. There is no recent imaging of the lumbar spine
and there is no imaging of the cervical spine. I’ve discussed the results
with the patient over the phone. She states today that her main problem is
the lower back and not so much the neck. . . . I do not think she needs
cervical imaging at this time.
On cross-examination, Spring Hill Residential introduced medical records from
2003, 2007 and 2017 in which Ms. Cannon received treatment for her neck. It also
introduced a settlement agreement from a 2005 workers’ compensation claim involving a
neck injury.
Findings of Fact and Conclusions of Law
Ms. Cannon must show that she is likely to prevail at a hearing on the merits. See
Tenn. Code Ann. § 50-6-239(d)(1) (2019); McCord v. Advantage Human Resourcing,
2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Ms. Cannon seeks medical benefits regarding an alleged neck injury. An
employer must provide, free of charge to the employee, medical treatment made
reasonably necessary by accident “as defined in this chapter.” Tenn. Code Ann. § 50-6-
204(a)(1)(A). Therefore, the Court looks to the statutory definition of “injury” to
determine whether Ms. Cannon’s neck condition falls within it. The Workers’
Compensation Law defines an injury as one that arises “primarily out of and in the course
and scope of employment.” Tenn. Code Ann. § 50-6-102(14). Ms. Cannon must
establish this by a “reasonable degree of medical certainty,” and it must be by more than
“speculation or possibility.” Jd.
Here, no one disputes that Ms. Cannon suffered low-back injuries at work on
January 17, 2018. Spring Hill Residential provided authorized treatment for it, directing
her to the walk-in clinic, and then it offered panels from which she chose orthopedic
specialists. While Ms. Cannon expressed dissatisfaction regarding delays on the
adjuster’s behalf as well as with the authorized physicians’ care, the Court finds that
Spring Hill Residential’s provision of medical benefits for her low back satisfied its
obligation under the law.
Spring Hill Residential argued that Ms. Cannon’s neck condition did not arise
primarily from her employment but rather is a pre-existing condition. Ms. Cannon
argued that her previous treatment occurred long ago and is not related to her condition in
2019. The Court agrees with Ms. Cannon on this point.
However, the Court carefully reviewed records from the authorized treating
physicians, which at no time mention complaints of a neck injury. Further, Dr. Rowe’s
records document that at the first two office visits, the doctor examined her neck and
found nothing unusual. At the third visit in July 2019, Ms. Cannon mentioned neck
* Several days before the hearing, Spring Hill Residential filed a motion to dismiss. Counsel clarified at
the outset of the hearing that the motion sought only to dismiss Ms. Cannon’s request for expedited
hearing and not the entire case. The Court denied the motion and allowed the parties to present their
evidence at this interlocutory stage.
problems for the first time. Dr. Rowe ordered x-rays; the report of her cervical spine
found degenerative changes and no signs of fracture.
But perhaps the most compelling medical evidence is Dr. Dawkins’s notes, where
he stated that the MRI of her lumbar spine revealed degenerative changes and he saw no
surgical pathology. He did not recommend cervical imaging and wrote: “She states
today that her main problem is the lower back and not so much the neck.”
In sum, the only proof the Court has that Ms. Cannon’s neck condition is related to
her fall at work is her own testimony. Her testimony, while sincere, is insufficient to
succeed at a hearing on the merits in proving a work-related neck injury, due to the
absence of a medical opinion stating that causal link. Therefore, Ms. Cannon has not
satisfied her burden.
IT IS ORDERED as follows:
1. Ms. Cannon’s request for medical benefits is denied at this time.
2. This case is set for a scheduling hearing on January 28, 2020, at 10:15 a.m.
Central. You must call 615-532-9552 or toll-free at 866-943-0025 to participate.
Failure to call might result in a determination of the issues without your
participation.
ENTERED November 21, 2019.
lide,
AUDGE KENNETH
Court of Workers’ Compensatiop Claims
APPENDIX
Exhibits:
1. Affidavit of Dorothy Cannon
First Report of Injury
Choice of Physician form
Wage statement
Employer’s submission of medical records
Final Medical Report, Dr. Snowden
X-ray, cervical spine
Dr. Dawkins; Dr. Rowe, July 22, 2019
9. Dr. Milek, September 22, 2003
10. Dr. Morris, April 12, 2007
11. Workers’ Compensation Mediated Settlement Agreement, December 19, 2005
12.Dr. McGehee, February 21, 2017
13.Dr. Mosley, January 27, 2019
14. Dr. Rowe, April 27, 2018
15. TOA Information Sheet, June 8, 2018
16. Dr. Clendenin, June 8, 2018
17. TOA Follow Up Visit, July 12, 2018
18. Dr. Clendenin, July 12, 2018
19. Ashley Hall, ANP, December 6, 2018
20. TOA Follow Up Visit, January 31, 2019
21.Dr. Clendenin, January 31, 2019
22. Dr. Rowe, February 4, 2019
aS Se ee be be
Technical record:
1. Petition for Benefit Determination, November 14, 2018, and Dispute Resolution
Statement
Petition for Benefit Determination, June 4, 2019
Dispute Certification Notice
Show Cause Order
Request for Expedited Hearing
Order on Show Cause Hearing
Motion to Dismiss
aa eS
CERTIFICATE OF SERVICE
I certify that a copy of the Expedited Hearing Order was sent as indicated on
November 21, 2019.
Name Certified | Regular | Email | Sent to
Mail mail
Dorothy Cannon, xX X 371 9" Ave. N.
self-represented Franklin TN 37064
employee dotcannon@ymail.com
Kitty Boyte, x kboyte@constangy.com
employer’s attorney
dmecorkle@constangy.com
Pinch Deanail colntel
Penny Shrum, Clérk of Court!
Court of Workers’ Compensation Claims
WC.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