Green, James v. Kellogg Companies

2017 TN WC 2
CourtTennessee Court of Workers' Compensation Claims
DecidedJanuary 19, 2017
Docket2015-08-0568
StatusPublished

This text of 2017 TN WC 2 (Green, James v. Kellogg Companies) 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
Green, James v. Kellogg Companies, 2017 TN WC 2 (Tenn. Super. Ct. 2017).

Opinion

FILED January 19,,2017

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

James Green, ) Docket No.: 2015-08-0568 Employee, ) v. ) State File No.: 6779-2015 ) Kellogg Companies, ) Judge Robert Durham Employer, ) ) And ) ) Corvel Ins. Co., ) Insurance Carrier. )

COMPENSATION HEARING ORDER

This Compensation Hearing came before the undersigned Workers' Compensation Judge on January 11, 2017, pursuant to Tennessee Code Annotated section 50-6-239 (2016). The dispositive issue is whether Mr. Green sustained an injury to his right shoulder on November 14, 2014, that arose primarily out of and in the course and scope of his employment with Kellogg. If so, secondary issues include to what extent he is entitled to past and future medical benefits, temporary disability benefits, and permanent partial disability benefits for this injury.

The Court holds Mr. Green did not establish by a preponderance of evidence that he sustained injuries that arose primarily out of and in the course of his employment on November 14, 2014.

Stipulations

At the hearing, the parties agreed to the following stipulations:

1. Mr. Green's alleged date of injury was November 14, 2014, and he

1 provided notice to Kellogg of his alleged injury on that day.

2. Mr. Green's compensation rate is $932.80 for temporary disability benefits and $848.00 for permanent partial disability benefits.

3. If Mr. Green's shoulder replacement is compensable, he would be entitled to temporary total disability benefits from September 15, 2015, until December 27, 2015.

4. If Mr. Green's shoulder replacement is compensable, his date of maximum medical improvement would be December 27, 2015.

5. Mr. Green's medical expenses for treatment of his right-shoulder injury that were not paid by Kellogg total $56,057.13.

6. The designated medical expense records and the designated medical records jointly submitted by the parties and presented as Collective Exhibits Three and Four are admissible as evidence for consideration by the Court.

History of Claim

Mr. Green, fifty-eight, has made waffles for Kellogg for twenty-eight years, first as an "iron adjuster" and then, for the last seventeen years, as a "wheel technician." Mr. Green's job requires him to oversee a "wheel" of over one hundred waffle irons. He has to regulate the batter and heat, replace any irons that are working improperly, perform quality inspections, and periodically add "bits," i.e. small pieces of cinnamon or dried fruit, such as blueberries and strawberries, to the batter. To add bits, Mr. Green must use a pallet jack to bring in pallets holding boxes of bits weighing several hundred pounds to his station. He then must reach into the box and scoop the bits out with a bucket. After filling the bucket, he lifts it out of the box and carries it up several steps where he dumps it into a hopper that mixes the bits into the batter.

Mr. Green testified that on November 14, 2014, he attempted to scoop bits from a box when he felt sudden and intense pain in his right shoulder. He averred that, while he suffered from aches and pains in his shoulder before, he had never experienced this type of pain and had never missed work or sought treatment for right-shoulder pain before November 14. Kellogg offered no evidence to the contrary.

Mr. Green testified that immediately after the incident, he reported it to his supervisors, Jason Jackson and Bill Nabors. They sent him to see the company nurse, Pam Ewing. Mr. Green completed an accident report, and Ms. Ewing gave him some over-the-counter pain medication. Mr. Green then returned to work and finished his shift.

The next day, Mr. Green started work as usual, but he testified his right-shoulder

2 pain became so intense that he again sought Ms. Ewing's assistance. She gave him some aspirin, and he returned to his job. Mr. Green stated this went on for several weeks; he would daily communicate with Ms. Ewing about his shoulder pain, but continued to work full-duty, although with great difficulty and often requiring assistance from co-workers.

Mr. Green testified that on January 21, 2015, he insisted Ms. Ewing provide him with a doctor to treat his shoulder as soon as possible. Ms. Ewing provided a panel of physicians and informed him that Dr. Lloyd Robinson could see him quickly, but that an appointment with one of the other doctors would result in some delay. Mr. Green chose Dr. Robinson and signed the panel accordingly.

Mr. Green saw Dr. Robinson, a family practitioner, the next day. (Ex. 2 at 6.) In the medical history forms, Mr. Green stated the injury occurred two months earlier and he had never had a similar injury in the past. (Ex. 2 at 45.) In his records, Dr. Robinson noted Mr. Green complained of "acute pain" in his right shoulder after lifting buckets at work. (Ex. 2 at 48.)

In his deposition, Dr. Robinson testified Mr. Green did not advise him of a specific work injury occurring on November 14, but stated he suffered worsening right- shoulder pain after lifting buckets at work. Dr. Robinson ordered x-rays and noted arthritic damage to Mr. Green's right shoulder. (Ex. 2 at 7.) He diagnosed Mr. Green with a shoulder strain, placed him under restrictions, and ordered physical therapy, which Carvel, Kellogg's workers' compensation administrator, never approved. (Ex. 2 at 8.) Mr. Green did undergo an initial evaluation for physical therapy and, according to the note, informed the therapist that he first noticed pain in his right shoulder when "reaching to scoop a heavy scoopful of brown sugar at Kellogg's. He felt a 'pop' in his shoulder and immediately felt an intense bum that radiated into proximal arm." (Ex. 2 at 68.)

Dr. Robinson eventually ordered an MRI that showed extensive arthritic damage in Mr. Green's right shoulder, but there was no rotator cuff tear or evidence of an acute injury. (Ex. 2 at 9-11.) At that time, Dr. Robinson opined Mr. Green's underlying arthritis was the primary cause of his symptoms and that it was not a work-related condition. (Ex. 2 at 27.) Dr. Robinson then released Mr. Green to seek treatment with his primary care physician. (Ex. 2 at 11.) In his deposition, Dr. Robinson continued to opine that Mr. Green's employment contributed less than 50% to his pain complaints and that the underlying pre-existing arthritis was the primary cause of his symptoms. (Ex. 2 at 13-14.)

Mr. Green testified he did not feel Dr. Robinson would provide any substantive treatment for his shoulder; therefore, he saw his family practitioner, Dr. Lee McCallum, about a week after he began seeing Dr. Robinson. Dr. McCallum noted Mr. Green stated the pain began a week earlier when he was "picking up a pail and heard a pop." (Ex. 4 at 51.) Dr. McCallum eventually referred Mr. Green to Dr. Kenneth Weiss, an orthopedist,

3 for specialized treatment. At the time of his referral, Dr. McCallum diagnosed Mr. Green with a "repetitive motion injury" and stated it "seems to be work-related to me." (Ex. 4 at 42.)

At Mr. Green's initi_al visit, Dr. Weiss noted that Mr. Green stated he had a "long history" of shoulder pain, claiming, "it has been hurting through the years." (Ex. 2 at 94.) After attempting conservative care, Dr. Weiss eventually performed a right-shoulder replacement on September 14, 2015. He subsequently wrote a letter opining the following:

Mr. Green is a patient of mine. We have been treating him for his right shoulder pain with glenohumeral arthrosis.

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Related

§ 50-6-012
Tennessee § 50-6-012(14)(A)
§ 50-6-102
Tennessee § 50-6-102(14)(C)
§ 50-6-116
Tennessee § 50-6-116

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2017 TN WC 2, Counsel Stack Legal Research, https://law.counselstack.com/opinion/green-james-v-kellogg-companies-tennworkcompcl-2017.