Brown, Linda v. Nissan North America
Opinion
she reported the injury, Nissan provided a panel of physicians. Ms. Brown chose Premise Health.
At her first visit on February 17, nurse practitioner Carmilyn Lesemann assessed low-back pain. After follow-up visits with Ms. Lesemann, Ms. Brown saw Dr. Terri Walker at Premise on March 10. Dr. Walker wrote:
She's been having generalized aches and pains for greater than a year. She's been seen in the past for neck and bilateral shoulder pain 12/20 16 and was diagnosed with degenerative cervical radiculopathy and the claim was deemed personal. Currently she reports neck, shoulder and low back pain . . . . She c/o diffuse pain of the neck, upper back, shoulders and low back.
The doctor diagnosed "[ c]ervicalgia with radiculitis should be a tie back to the 12/5116 claim which was denied. The lumbago is more likely from the DDD. DJD of her L- spine which is unlikely primarily work related." Nissan sent Ms. Brown a denial letter and filed a Notice of Controversy that states, "Treating physician has indicated condition is not primarily work related."
Counsel for Nissan sought additional clarification from Dr. Walker regarding causation for injury. Counsel wrote a letter stating, "You saw Ms. Brown on 3110117, at which time she complained of diffuse pain of the neck, upper back, shoulders and low back." The letter asked, "[D]o you believe that the symptoms described by Ms. Brown on 3110117, were primarily caused by (>50%) or primarily aggravated by (>50%) her work activity as described as occurring on 2117/17, considering all possible causes and without speculation?" (Emphasis in original.) Dr. Walker wrote "no."
Ultimately, Ms. Brown came under the unauthorized care of Dr. Margaret MacGregor. The April 6, 2018 records from her first visit give the following history: "neck pain, mid back pain, low back pain." Dr. MacGregor noted "work accident, while lifting a heavy object." She concluded Ms. Brown failed conservative treatment and recommended an anterior cervical decompression and fusion. Dr. MacGregor performed the procedure later that month, listing final diagnoses as cervical radiculopathy, spondylosis and myelopathy; back and neck pain; and osteoarthritis. The records mention neither treatment for the low back nor the specifics of the injury-causing event.
Ms. Brown, who represents herself, sent Dr. MacGregor a letter seeking clarification of her opinion on causation. The letter quotes Tennessee Code Annotated section 50-6-1 02(14 )(A)-(E), the definition of "injury" in the Workers' Compensation Law, but it does not ask questions applying the definition to her condition. Dr. MacGregor checked "yes" after each quoted subsection without elaboration; see Ex. 2 at 145-146.
Ms. Brown testified she has been off work receiving short-term and long-term disability benefits. Nissan terminated her. She continues seeing Dr. MacGregor. She asked the Court to order further treatment with Dr. MacGregor and reimbursement of past out-of-pocket medical bills. Ms. Brown also requested temporary total disability benefits. For its part, Nissan argued that the authorized treating physician, Dr. Walker, concluded the alleged i~ury was not primarily work-related. Her opinion is presumed correct, and no physician gave an opinion to rebut the presumption.
Findings of Fact and Conclusions of Law
To prevail at an expedited hearing, Ms. Brown must provide sufficient evidence to show she would likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6- 239(d)(l) (2017).
Resolution of the present issue turns on whether Ms. Brown suffered an injury as defined in the statute. The Workers' Compensation Law defines an injury as "an injury by accident ... arising primarily out of and in the course and scope of employment, that causes ... the need for medical treatment." Further, she must also show "to a reasonable degree of medical certainty that [the employment] contributed more than fifty percent (50%) in causing the ... need for medical treatment, considering all causes," and that, "in the opinion of the physician, it is more likely than not, considering all causes, as opposed to speculation or possibility." Further, the opinion of the treating physician selected from a panel "shall be presumed correct on the issue of causation but this presumption shall be rebuttable by a preponderance of the evidence." See Tenn. Code Ann. § 50-6- 102(14)(C)-(E).
Applying these standards, Nissan argued that the authorized treating physician, Dr.
Walker, concluded that Ms. Brown's injury is not work-related. Specifically, she responded to a very direct causation question with a "no" answer. In contrast, Dr. MacGregor did not offer a causation opinion. It appears from Dr. MacGregor's responses to Ms. Brown's causation letter that the doctor might think the injury is work- related. This, however, is speculation.
At this time, the Court finds that Dr. MacGregor's notes and answers to questions in a letter do not constitute an opinion on causation. Ms. Brown did not rebut the presumption of correctness the statute affords Dr. Walker's opinion. Therefore, she has not come forward with sufficient evidence from which this Court may conclude that her back injury primarily arose out of her employment, and she is not likely to prevail at a hearing on the merits. Having reached this conclusion, the Court need not address her request for temporary disability benefits.
IT IS, THEREFORE, ORDERED as follows:
1. The Court denies the requested relief at this time.
2. This matter is set for a Scheduling Hearing on November 5, 2018, at 2:15 p.m.
Central. You must call 615-532-9552 or toll-free at 866-943-0025 to participate in the hearing. Failure to call may result in a determination of the issues without your participation.
ENTERED September 4, 2018.
APPENDIX
Exhibits:
1. Affidavit of Linda Brown 2. Composite medical records 3. FROI 4. Choice of Physician form 5. Wage statement 6. Notice of Denial 7. Affidavit of Sheila Taylor
Technical record:
1. Petition for Benefit Determination 2. Employer's Pre-Mediation Statement 3. Dispute Certification Notice (with employer's additional issues) 4. Request for Expedited Hearing 5. Employer's Response to Request for Expedited Hearing 6. Employer's Motion to Quash
CERTIFICATE OF SERVICE
I certifY that a copy of the Expedited Hearing Order was sent to these recipients by the following methods of service on September 4, 2018.
Name Certified Via Via Service sent to:
Mail Fax Email Linda Brown, Employee X 6441 Paddington Way Antioch TN 37013
Stephen Morton, X Steghen.morton@mgclaw.com; Em_Qloyer's Attorney Amber.dennis@mgclaw.com
Pen~ Cl~::- - Court ofW
1, ers' 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 fullycompleted 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.
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