Hunter, Dale v. Doug's Automotive , 2019 TN WC 178 ( 2019 )

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
DALE HUNTER, )
Employee, ) Docket No. 2017-08-1268
)
V. )
) State File No. 88488-2017
DOUG’S AUTOMOTIVE, )
Employer. )
) Judge Dale Tipps
)
EXPEDITED HEARING ORDER
GRANTING BENEFITS
(DECISION ON THE RECORD)
This case came before the Court on December 6, 2019, for an Expedited Hearing
on the record without an in-person hearing. The central legal issue is whether Mr. Hunter
is likely to establish at a hearing on the merits that his need for the requested epidural
steroid injections arose primarily out of and in the course and scope of his employment.
For the reasons below, the Court holds Mr. Hunter is entitled to the requested benefits.
History of Claim
This is Mr. Hunter’s third Expedited Hearing. Following the first hearing, the
Court was unable to find that Mr. Hunter was likely to prove medical causation at a
hearing on the merits but issued an order for a panel of physicians.’ Doug’s Automotive
provided a panel, from which Mr. Hunter selected Dr. Sam Murrell.
Mr. Hunter treated with Dr. Murrell but filed a Motion to Compel Medical
" The Court summarized the full history of Mr. Hunter’s injury and medical treatment in its prior order
and finds it unnecessary to repeat that summary here.
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Treatment on June 4, 2019, claiming that Dr. Murrell recommended an epidural injection
that Doug’s Automotive refused to authorize. Because Mr. Hunter provided no medical
records or other information regarding the treatment or its relationship to his work injury,
the Court found it could not order Doug’s Automotive to authorize it.
Mr. Hunter then filed another Motion for Medical Treatment on July 26, this time
with an accompanying letter from Dr. Murrell recommending an epidural steroid
injection. The Court determined that the motion was actually a request to decide his
interlocutory claim for medical benefits on the record without an evidentiary hearing.
The Court deemed the request for a decision on the record appropriate and issued a
Docketing Notice.
Doug’s Automotive filed a Response and an Objection to Dr. Murrell’s letter, and
the Court issued a second Expedited Hearing Order on August 23. In that order, the
Court denied the request because Dr. Murrell’s letter did not address whether Mr.
Hunter’s diagnosis or the need for the epidural injection arose primarily out of and in the
course and scope of his employment.
Mr. Hunter filed the current Expedited Hearing request on November 1, and the
Court issued a Docketing Notice. Doug’s Automotive filed no objection or response to
the hearing request or docketing notice but instead filed a Motion to Dismiss.”
The only new proof offered by either party is Dr. Murrell’s October 7, 2019 letter.
It states:
Dale Hunter has been under my care with complaints of low back
pain and leg pain. He was first seen by me on September 7, 2018
complaining of pain following an injury on 10/16/2017. While an MRI
scan revealed degenerative changes of the lumbar spine at multiple levels, it
also revealed a more focal right L5 foraminal disc protrusion which was felt
to be the cause of his right sided leg symptoms. He was seen by me on
January 28, 2019, and offered an epidural steroid injection. He ultimately
requested to be released to full duties, but then later returned indicating that
he wished to proceed with further treatment. At that time, an epidural
steroid injection was again recommended, and he continues under my care
* The Motion to Dismiss is replete with problems. First, it is predicated in large part on allegations that
Mr. Hunter has failed to comply with requests for “medical records for the incident in question and his
previous medical records.” However, no motion to compel was ever filed, nor is there any proof that Mr.
Hunter actually possesses the records sought. Similarly, Doug’s Automotive contends Mr. Hunter failed
to respond to written discovery, but it filed no motion to compel or any certification required by Rule
0800-02-21-.17(5). Because Doug’s Automotive also failed to comply with the dispositive motion
requirements of Rule 0800-02-21-.18(1), the Court will not consider dismissal at this time. However, it
will consider some of the arguments made by Doug’s Automotive as a response to the docketing notice.
2
awaiting the completion of the epidural steroid injection. Apparently, there
has been some confusion as to whether the recommendation for treatment
was the result of his underlying degenerative changes or the right L5-S1
foraminal disc protrusion. It is my opinion that in the absence of previous
MRI showing a pre-existing right L5 foraminal disc protrusion, that disc is
most likely the result of his work injury of 10/16/2017. The treatment most
recently recommended, an epidural steroid injection, is recommended to
treat that L5-S1 disc protrusion and is felt to be related to his work injury of
10/16/2017.
Mr. Hunter requests an order compelling the injection recommended by Dr.
Murrell based on this new evidence.
Doug’s Automotive contends it is not responsible for additional medical treatment
because Dr. Murrell has already found Mr. Hunter to be at maximum medical
improvement (MMI). It also appears to suggest that Dr. Murrell’s opinion is insufficient
because he said the disc protrusion is “most likely” the result of the work injury.
Findings of Fact and Conclusions of Law
Mr. Hunter must provide sufficient evidence from which this Court might
determine he 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). To do this, he must show that his alleged
injuries arose primarily out of and in the course and scope of his employment. This
includes the requirement that he 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.” “Shown to a
reasonable degree of medical certainty” means that, in the opinion of the treating
physician, it is more likely than not considering all causes as opposed to speculation or
possibility. See Tenn. Code Ann. § 50-6-102(14).
Dr. Murrell’s October 7 letter is the only medical opinion addressing causation.
He stated that the right L5 foraminal-disc protrusion “is most likely the result of his work
injury of 10/16/2017” and that the epidural steroid injection is recommended to treat that
condition.
Doug’s Automotive appears to object to this opinion because it does not
specifically track the wording of section 5-6-102(14). The Court notes, however, that “a
physician may render an opinion that meets the legal standard espoused in section 50-6-
102(14) without couching the opinion in a rigid recitation of the statutory definition.”
Panzarella vy. Amazon.com, Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 30, at *14-15
(May 15, 2017). Dr. Murrell stated that the disc protrusion was “most likely the result”
3
of Mr. Hunter’s work injury. Although this statement does not include the phrase,
“greater than fifty-percent,” it constitutes “sufficient proof from which the trial court can
conclude that the statutory requirements of an injury as defined in section 50-6-102(14)
are satisfied.” Id.
Doug’s Automotive objects to providing additional treatment because Dr. Murrell
already placed Mr. Hunter at MMI. This argument overlooks the fact that medical
treatment does not terminate at MMI. Unless a court terminates an employee’s
entitlement to medical benefits, or approves a settlkement 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 in
accordance with Tennessee Code Annotated sections 50-6-204(a)(1)(A) and 50-6-
102(14)(C). Limberakis vy. Pro-Tech Sec., Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS
53, at *5-6 (Sept. 12, 2017).
For these reasons, Mr. Hunter appears likely to prevail at trial in establishing that
his work injury contributed more than fifty percent in causing his need for the requested
medical treatment.
IT IS, THEREFORE, ORDERED as follows:
1. Doug’s Automotive shall continue to provide Mr. Hunter with medical treatment
made reasonably necessary by his October 16, 2017 injury, including any
recommended epidural steroid injections.
1. This case is set for a Status Hearing on January 16, 2020, at 1:30 p.m. Please call
toll-free at 855-874-0473 to participate. Failure to call or appear might result in a
determination of the issues without your further participation. All conferences are
set using Central Time.
ENTERED December 12, 2019.
Judge Dale Tipps
Court of Workers’ Compensation Claims
Exhibits:
Dr. Murrell’s July 16, 2019 letter
Dr. Murrell’s October 7, 2019 letter
9
PINAMEWN ES
Affidavit of Dale Hunter
APPENDIX
Records from Concentra Medical Centers
Records from Whole Health Chiropractic
Records from The Family Medicine Group
Wage Statement
Expedited Request for Investigation Report
Collective medical bills
10. January 9, 2018 letter offering transitional work
11. Candace Marshall’s notes
12. Screenshot of January 17, 2018 text messages
Technical record:
Motion for Medical Treatment
Response to Motion to Have Employer Pay Medical Expenses
Response to Admission of the Purported Letter of Dr. Murrell
Petition for Benefit Determination
AMR WNS
Dispute Certification Notice
July 3, 2018 Expedited Hearing Order
CERTIFICATE OF SERVICE
I certify that a copy of the Expedited Hearing Order was sent as indicated on
December 12, 2019.
Name Certified | Fax | Via Service sent to:
Mail Email
Dale Hunter xX Dale. hunter29 @ yahoo.com
James Jones, Jr., xX attorneyjamesjones @ gmail.com
Employer’s Attorney
/)
Z
| /
7 Fine Mt Uum—
Penny Shrvim, Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk @ th.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