FILED Mar 05, 2020 03:35 PM(CT) TENNESSEE COURT OF WORKERS' COMPENSATION CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION IN THE COURT OF WORKERS’ COMPENSATION CLAIMS AT GRAY
ROMA BLANKENSHIP, ) Docket No.: 2019-02-0171 Employee, ) v. ) State File No.: 21230-2019 BALLAD HEALTH, ) Self-Insured Employer. ) Judge: Brian K. Addington
EXPEDITED HEARING ORDER (DECISION ON THE RECORD)
This claim came before the Court on Ms. Blankenship’s Request for an Expedited Hearing on the record. Ms. Blankenship asked the Court to order temporary disability and medical benefits. 1 For the reasons below, the Court denies her claim for benefits.
Claim History
Ms. Blankenship worked for Ballad Health as a CNA. In November 2018, she complained to her unit manager about working excessive hours and caring for many patients. She also reported swollen ankles, but she did not allege a work injury. Ballad did not file an injury report.
After Ms. Blankenship’s complaint, she sought treatment with Dr. William Brashear in December. Dr. Brasher prescribed Lyrica and took her off work. However, Ms. Blankenship did not file any medical records from Dr. Brashear for 2018. She last worked on December 25, 2018.
Due to continued complaints, Ballad filed an injury report and sent Ms. Blankenship to Dr. Michael Anders in February 2019. She complained of left- and right- knee pain and ankle swelling, which was “made worse by prolonged walking, stairs.” She reported her work as a CNA over the years caused her problems. After examining
1 This is Ms. Blankenship’s second request for an expedited hearing on the record. The Court previously denied her request for medical and temporary disability benefits.
1 Ms. Blankenship, Dr. Anders could not causally relate her current symptoms to her work. 2
After seeing Dr. Anders, Ms. Blankenship returned to Dr. Brashear with continued pain. He assessed bilateral patellofemoral osteoarthritis, stating “I do feel this is an exacerbation of an underlying problem.” Dr. Brashear continued her Lyrica prescription and released her for full-duty work in March 2019.
Findings of Fact and Conclusions of Law
The issue is whether Ms. Blankenship injured her ankles and knees at work. To receive benefits, Ms. Blankenship must show she would likely prevail at a hearing on the merits that she suffered a specific injury or aggravation of a pre-existing condition by accident arising primarily out of and in the course and scope of employment that caused the need for medical treatment. See Tenn. Code Ann. §§ 50-6-102(14); 50-6-239(d)(1) (2019). This requires expert medical proof. See Albright v. Hercules HVAC Pads, Inc., 2018 TN Wrk. Comp. App. Bd. LEXIS 66, at *13 (Dec. 20, 2018).
Here, two physicians examined Ms. Blankenship, and neither causally related her ankle and knee conditions to her work for Ballad. The Court acknowledges that Ms. Blankenship feels her condition is work-related, but she presented no new medical evidence to support her claim. Therefore, the Court holds she is not entitled to medical or temporary disability benefits at this time.
IT IS, THEREFORE, ORDERED AS FOLLOWS:
1. The Court denies Ms. Blankenship’s request for temporary and medical benefits at this time.
2. This case is set for a Status Hearing on April 28, 2020, at 10:30 a.m. Eastern Time. The parties must call 855-543-5044 to participate. Failure to call at the scheduled time might result in the determination of issues without the party’s participation.
2 Dr. Anders used an incorrect standard. The correct standard is whether the employment contributed more than fifty percent in causing the injury. Tenn. Code Ann. § 50-6-102(14)(B).
2 ENTERED March 5, 2020.
_/S/ Brian K. Addington_________________ BRIAN K. ADDINGTON, JUDGE Court of Workers’ Compensation Claims
Appendix
Exhibits: 1. Ms. Blankenship’s Affidavit 2. Medical Record-Occupational Medicine Clinic (2/5/19) 3. Medical Record-Appalachian Orthopedic Associates (3/12/19-3/26/19) 4. Job Description
Technical Record: 1. Petition for Benefit Determination 2. Dispute Certification Notice 3. Ballad Health’s Response to Request for Expedited Hearing
3 CERTIFICATE OF SERVICE
I certify a copy of this Order was sent as indicated on March 5, 2019.
Name Certified Fax Email Service sent to: Mail Roma Blankenship, X 140 Painter Rd. Employee Fall Branch, TN 37656 catherine62kylie@gmail.com Michael Forrester, X mforrester@hsdlaw.com Employer’s Attorney X amcknight@hsdlaw.com
______________________________________ PENNY SHRUM, COURT CLERK Court of Workers’ Compensation Claims wc.courtclerk@tn.gov
4 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: “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.
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FILED Mar 05, 2020 03:35 PM(CT) TENNESSEE COURT OF WORKERS' COMPENSATION CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION IN THE COURT OF WORKERS’ COMPENSATION CLAIMS AT GRAY
ROMA BLANKENSHIP, ) Docket No.: 2019-02-0171 Employee, ) v. ) State File No.: 21230-2019 BALLAD HEALTH, ) Self-Insured Employer. ) Judge: Brian K. Addington
EXPEDITED HEARING ORDER (DECISION ON THE RECORD)
This claim came before the Court on Ms. Blankenship’s Request for an Expedited Hearing on the record. Ms. Blankenship asked the Court to order temporary disability and medical benefits. 1 For the reasons below, the Court denies her claim for benefits.
Claim History
Ms. Blankenship worked for Ballad Health as a CNA. In November 2018, she complained to her unit manager about working excessive hours and caring for many patients. She also reported swollen ankles, but she did not allege a work injury. Ballad did not file an injury report.
After Ms. Blankenship’s complaint, she sought treatment with Dr. William Brashear in December. Dr. Brasher prescribed Lyrica and took her off work. However, Ms. Blankenship did not file any medical records from Dr. Brashear for 2018. She last worked on December 25, 2018.
Due to continued complaints, Ballad filed an injury report and sent Ms. Blankenship to Dr. Michael Anders in February 2019. She complained of left- and right- knee pain and ankle swelling, which was “made worse by prolonged walking, stairs.” She reported her work as a CNA over the years caused her problems. After examining
1 This is Ms. Blankenship’s second request for an expedited hearing on the record. The Court previously denied her request for medical and temporary disability benefits.
1 Ms. Blankenship, Dr. Anders could not causally relate her current symptoms to her work. 2
After seeing Dr. Anders, Ms. Blankenship returned to Dr. Brashear with continued pain. He assessed bilateral patellofemoral osteoarthritis, stating “I do feel this is an exacerbation of an underlying problem.” Dr. Brashear continued her Lyrica prescription and released her for full-duty work in March 2019.
Findings of Fact and Conclusions of Law
The issue is whether Ms. Blankenship injured her ankles and knees at work. To receive benefits, Ms. Blankenship must show she would likely prevail at a hearing on the merits that she suffered a specific injury or aggravation of a pre-existing condition by accident arising primarily out of and in the course and scope of employment that caused the need for medical treatment. See Tenn. Code Ann. §§ 50-6-102(14); 50-6-239(d)(1) (2019). This requires expert medical proof. See Albright v. Hercules HVAC Pads, Inc., 2018 TN Wrk. Comp. App. Bd. LEXIS 66, at *13 (Dec. 20, 2018).
Here, two physicians examined Ms. Blankenship, and neither causally related her ankle and knee conditions to her work for Ballad. The Court acknowledges that Ms. Blankenship feels her condition is work-related, but she presented no new medical evidence to support her claim. Therefore, the Court holds she is not entitled to medical or temporary disability benefits at this time.
IT IS, THEREFORE, ORDERED AS FOLLOWS:
1. The Court denies Ms. Blankenship’s request for temporary and medical benefits at this time.
2. This case is set for a Status Hearing on April 28, 2020, at 10:30 a.m. Eastern Time. The parties must call 855-543-5044 to participate. Failure to call at the scheduled time might result in the determination of issues without the party’s participation.
2 Dr. Anders used an incorrect standard. The correct standard is whether the employment contributed more than fifty percent in causing the injury. Tenn. Code Ann. § 50-6-102(14)(B).
2 ENTERED March 5, 2020.
_/S/ Brian K. Addington_________________ BRIAN K. ADDINGTON, JUDGE Court of Workers’ Compensation Claims
Appendix
Exhibits: 1. Ms. Blankenship’s Affidavit 2. Medical Record-Occupational Medicine Clinic (2/5/19) 3. Medical Record-Appalachian Orthopedic Associates (3/12/19-3/26/19) 4. Job Description
Technical Record: 1. Petition for Benefit Determination 2. Dispute Certification Notice 3. Ballad Health’s Response to Request for Expedited Hearing
3 CERTIFICATE OF SERVICE
I certify a copy of this Order was sent as indicated on March 5, 2019.
Name Certified Fax Email Service sent to: Mail Roma Blankenship, X 140 Painter Rd. Employee Fall Branch, TN 37656 catherine62kylie@gmail.com Michael Forrester, X mforrester@hsdlaw.com Employer’s Attorney X amcknight@hsdlaw.com
______________________________________ PENNY SHRUM, COURT CLERK Court of Workers’ Compensation Claims wc.courtclerk@tn.gov
4 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: “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. NOTICE OF APPEAL Tennessee Bureau of Workers’ Compensation www.tn.gov/workforce/injuries-at-work/ wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________ Employee
v.
___________________________________________________________________________ Employer
Notice is given that ____________________________________________________________________ [List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file- stamped on the first page of the order(s) being appealed):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________ □ Compensation Order filed on__________________ □ Other Order filed on_____________________ issued by Judge _________________________________________________________________________.
Statement of the Issues on Appeal Provide a short and plain statement of the issues on appeal or basis for relief on appeal: ________________________________________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________ ________________________________________________________________________________________
Parties Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee Address: ________________________________________________________ Phone: ___________________ Email: __________________________________________________________ Attorney’s Name: ______________________________________________ BPR#: _______________________ Attorney’s Email: ______________________________________________ Phone: _______________________ Attorney’s Address: _________________________________________________________________________ * Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082 Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________
Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee Appellee’s Address: ______________________________________________ Phone: ____________________ Email: _________________________________________________________ Attorney’s Name: _____________________________________________ BPR#: ________________________ Attorney’s Email: _____________________________________________ Phone: _______________________ Attorney’s Address: _________________________________________________________________________ * Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, _____________________________________________________________, certify that I have forwarded a true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this case on this the __________ day of ___________________________________, 20 ____.
______________________________________________ [Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082