Abston, Carol v. Hillsman Modular Molding, Inc.

2018 TN WC 118
CourtTennessee Court of Workers' Compensation Claims
DecidedJuly 31, 2018
Docket2018-04-0017
StatusPublished

This text of 2018 TN WC 118 (Abston, Carol v. Hillsman Modular Molding, Inc.) is published on Counsel Stack Legal Research, covering Tennessee Court of Workers' Compensation Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Abston, Carol v. Hillsman Modular Molding, Inc., 2018 TN WC 118 (Tenn. Super. Ct. 2018).

Opinion

FILED Jul 31, 2018 08:25 AM(CT) TENNESSEE COURT OF WORKERS' COMPENSATION CLAIMS

TENNESSEE BUREAU OF WORKERS' COMPENSATION CLAIMS IN THE COURT OF WORKERS' COMPENSATION CLAIMS AT COOKEVILLE

Carol Abston, ) Docket No. 2018-04-0017 Employee, ) v. ) State File No. 45570-2017 ) Hillsman Modular Molding, Inc., ) Judge Robert Durham Employer. ) ) And ) ) Bridgefield Cas. Ins. Co., ) Insurer. )

EXPEDITED HEARING ORDER DENYING BENEFITS

The Court conducted an expedited hearing on July 20 to determine whether Ms. Abston is entitled to another panel of neurosurgeons following Dr. Leonardo Rodriguez- Cruz s recusal as her authorized treating physician. 1 The Court holds that Ms. Abston did not provide sufficient evidence to establish she is likely to prove at trial that she requires additional medical treatment for her work-related injury. Thus, her request for an additional panel is denied.

History of Claim

On June 20, 2017, Ms. Abston slipped in oil on Hillsman's factory floor, causing her to "face-plant" on the concrete. She was immediately taken to a clinic where she received care primarily for left upper extremity pain. A few days later, she returned to the clinic complaining of intense low-back pain radiating into both legs. Following an 1 During the trial, Ms. Abston stipulated there was insufficient evidence to establish the likelihood that she could prove a causal connection between her work injury and her need for surgery or entitlement to additional temporary disability benefits. She also filed a Motion to Compel the provision of a panel of physicians, and it was decided that the Court would consider the motion during the expedited hearing.

1 MRI that revealed substantial degenerative changes in her lumbar spine, Ms. Abston received a panel of neurosurgeons from which she chose Dr. Rodriguez-Cruz.

On her initial visit on August 3, Dr. Rodriguez-Cruz noted that Ms. Abston arrived in a wheelchair and also used a walker, which he described as very unusual for someone with sciatic complaints. She described the sudden onset of extreme, disabling pain following her fall. While she admitted to a history of back pain, she made no reference to a history of radiculopathy. Dr. Rodriguez-Cruz was unable to complete a physical examination due to Ms. Abston's complaints of extreme pain. He ordered an EMG, but it was not completed, again due to Ms. Abston's pain. He diagnosed Ms. Abston with lumbago, or back pain, and left leg pain due to impingement of the sciatic nerve, but he noted that her pain complaints were disproportionate to her objective findings.

Dr. Rodriguez-Cruz eventually diagnosed Ms. Abston with foramina! stenosis and facet arthropathy at multiple levels of the lumbar spine plus osteophyte formations at the L3-L4 level. He felt that these changes were predominantly degenerative and there was no sign of traumatic changes. The only evidence of an acute injury was her history. He again noted that Ms. Abston's pain complaints seemed out of proportion to her physical findings. Nevertheless, he recommended low back surgery.

After receiving Dr. Rodriguez-Cruz's recommendation, Hillsman submitted Ms. Abston's records for evaluation by orthopedist Dr. Robert Holladay. Dr. Holladay concluded that Ms. Abston sustained a lumbar strain as a result of her June 20, 2017 injury that should have resolved within six to eight weeks of her injury. He felt that Ms. Abston's current complaints and need for surgery were due to degenerative changes unrelated to her work-related fall because he saw no evidence of either work-related injury or aggravation of her non-work related degenerative changes, which triggered the need for the recommended surgery.

Hillsman then wrote to Dr. Rodriguez-Cruz asking his opmton regarding causation. He agreed with Dr. Holladay that Ms. Abston sustained a lumbar strain as a result of her fall at work. However, he believed that her current condition and need for surgery was "at least 50% related to the pre-existing condition and findings." As a result, Hillsman denied surgery. Ms. Abston's counsel then wrote Dr. Rodriguez-Cruz with further questions regarding causation. In response, the doctor agreed that Ms. Abston sustained a back injury on June 20 that aggravated a pre-existing condition; however, it was "unknown" whether the aggravation arose "primarily" from the back injury.

Given these statements, the parties took Dr. Rodriguez-Cruz's deposition. He testified that he still believed that Ms. Abston sustained a lumbar strain as a result of her July 20 fall, but that it should have resolved in six to eight weeks. He also testified that he felt her pain complaints were disproportionate to her objective findings. The doctor agreed that Ms. Abston had pre-existing degenerative lumbar conditions that warranted

2 surgery, and in fact, surgery was her "one and only hope" for relief from her left leg symptoms.

However, Dr. Rodriguez-Cruz could not state to a reasonable degree of medical certainty that Ms. Abston's fall aggravated her pre-existing condition. He believed something else was causing her complaints, although he admitted that if the history she provided him were credible, he knew of no other reason for her current condition. Finally, Dr. Rodriguez-Cruz testified that, given what he perceived as a conflict of interest, he could no longer treat Ms. Abston, and he "insisted" that she receive treatment elsewhere.

During the trial, Ms. Abston testified that she had no leg pain before her fall and had no limitation to either her work or home activities. She testified that she never sought treatment for radiculopathy before her accident. Ms. Abston also stated that immediately upon falling she experienced, and continues to experience, intense and disabling pain and numbness and weakness in her "tailbone" and left lower extremity. Hillman's counsel introduced chiropractic records that showed Ms. Abston received treatment for low back pain radiating into both legs in 2014 and 2015. Ms. Abston admitted that she received the chiropractic treatment for low back pain but did not recall complaining of pain radiating into her legs at that time.

Findings of Fact and Conclusions of Law

Ms. Abston need not prove every element of her claim by a preponderance of the evidence to obtain relief at an expedited hearing. Instead, she must present sufficient evidence that she is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-239( d)(l) (20 17); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

Here, it is undisputed that Ms. Abston sustained a lumbar strain as a result of her work-related fall on July 20, 2017. It is further undisputed that her authorized physician, Dr. Rodriguez-Cruz, stated he will no longer treat her. Thus, the question is whether Ms. Abston established that she is likely to prevail in proving she is entitled to another panel of physicians from which she may choose a physician to provide additional authorized treatment for her work injury. !d. The Court holds she did not.

The seminal case regarding this issue is Limberakis v. Pro-Tech Security, Inc., 2017 Work. Comp. App. Bd. LEXIS 53 (Sept. 12, 2017). In Limberakis, the employee suffered an uncontested low back injury but failed to improve despite conservative care provided by the authorized physician. The authorized doctor eventually refused to provide further care, stating the employee would not need additional treatment directly related to the work injury. The Appeals Board held the employer was required to provide another panel of physicians to treat the employee's undisputed work injury. !d.

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