Kelso, Roxanna v. Five Star Food Service

2016 TN WC 99
CourtTennessee Court of Workers' Compensation Claims
DecidedMay 3, 2016
Docket2015-01-0413
StatusPublished

This text of 2016 TN WC 99 (Kelso, Roxanna v. Five Star Food Service) 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
Kelso, Roxanna v. Five Star Food Service, 2016 TN WC 99 (Tenn. Super. Ct. 2016).

Opinion

FILED M ay 3 , 20 16

TN COURT OF " ORKERS ' CO!\IPENSATIO N CLAI MS

Time: 9:58AM

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

Roxanna Marie Hazy Kelso, ) Docket No.: 2015-01-0413 Employee, ) v. ) State File No.: 91781-2015 Five Star Food Service, ) Employer, ) Judge Thomas Wyatt And ) Accident Fund Ins. Co., ) Carrier. )

EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS

This case came before the undersigned Workers' Compensation Judge on April 22, 2016, upon the Request for Expedited Hearing filed by the employee, Roxanna Marie Hazy Kelso, pursuant to Tennessee Code Annotated section 50-6-239 (2015). The parties focused on two points for determination at the Expedited Hearing: (1) whether Ms. Kelso complied with the applicable statute of limitations, and, (2) whether Ms. Kelso established she sustained a compensable injury while employed by Five Star Food Service (Five Star). For the reasons set forth below, the Court finds Ms. Kelso is entitled to medical benefits for her bilateral upper extremity injuries, but is not entitled to the requested temporary total disability benefits. 1

History of Claim

Ms. Kelso is a fifty-two-year-old resident of Bradley County, Tennessee. (T.R. 1 at 1.) At various times between August 27, 2012, and September 15, 2015, she performed duties as a cook, salad bar preparer, dish washer and server at two cafeterias operated by Five Star in Bradley County, Tennessee. (!d.; Ex. 2 at 1.)2

1 A complete listing of the technical record and exhibits admitted at the expedited hearing is attached to this Order as an appendix. 2 From August 2014 until June 2015, Five Star assigned Ms. Kelso to less strenuous managerial duties due to a work-related back injury.

1 On an uncertain date prior to July 1, 2014, Ms. Kelso developed bilateral upper extremity pain, numbness, and tingling while performing repetitive duties such as cutting and slicing food, scraping grease from kitchen equipment, cooking, sweeping and mopping in the course and scope of her employment by Five Star. The parties assigned a July 1 2014 date of injury and ail adjuster for Key Risk Management3 offered Ms. Kelso a panel from which she selected Dr. Rickey L. Hutcheson as the authorized treating physician. (Ex. 9).

Ms. Kelso saw Dr. Hutcheson on August 12, 2014. (Ex. 13 at 1.) Dr. Hutcheson noted Ms. Kelso told him she underwent right hand carpal tunnel syndrome surgery in 1993. !d. He further noted she did not identity a single injury accounting for her current symptoms, but told him her symptoms developed over several months. !d.

Dr. Hutcheson took x-rays that showed mild degenerative changes in Ms. Kelso's thumbs. He opined, "most of her symptoms are arthritic in nature and associated with her fibromyalgia more than anything else." (Ex. 13 at 2.) He further noted that he told Ms. Kelso "she could potentially have carpal tunnel right now but, even if she does, she has significant co-morbidities associated with it." !d.

Dr. Hutcheson released Ms. Kelso to return to work without restrictions and instructed her to treat her pain with over-the-counter anti-inflammatory medication. (Ex. 13 at 3.) At some point during August 2014, Five Star assigned Ms. Kelso managerial duties that allowed her to perform less repetitive work. (Ex. 10 at 1.) On September 2, 2014, Five Star denied the compensability of Ms. Kelso's upper extremities claim by filing a Notice of Denial stating: "MD has determined that claimant['s] complaints of pain are not work-related." (Ex. 12.)

Ms. Kelso continued working at Five Star after the denial of her claim. Her managerial job required her to perform less repetitive work with her hands. Ms. Kelso testified her upper extremity pain "got better" during the period she worked as a manager. However, in June 2015, Five Star returned her to her regular job, which necessitated more repetitive hand-intensive work. (T.R. 1 at 1; Ex. 15 at 1.) Ms. Kelso testified her bilateral upper extremity pain recurred and worsened after she returned to "labor" in June 2015.

Ms. Kelso testified she did not immediately report her recurrent pain as a work injury because Five Star denied the claim she made in 2014 based on similar symptoms. She instead opted for evaluation by a personal physician because, in her opinion, workers' compensation doctors work for the company instead of the injured employee. Ms. Kelso's private physician, Dr. Maria Tomczyk, referred her to Athens Neurology Clinic for a nerve conduction study/EMG. Dr. Eteri Bibileishvlli tested Ms. Kelso's

3 Accident Fund was not Five Star's carrier on July 1, 2014. (Ex. 15 at 1.)

2 upper extremities on August 26, 2015, and concluded she had a normal examination with the exception of a finding, "consistent with a mild median neuropathy across the [left] wrist (carpal tunnel syndrome)." (Ex. 7.)

On September 2, 2015, Ms. Kelso e-mailed management personnel at Five Star, discussing numerous allegedly work-related physical symptoms. (Ex. 5.) She included the following discussion in the September 2 e-mail:

Last year you sent me to Dr. Hutchenson [sic] in Cleveland for pain in both my hands and he took x-rays and said it was arthritis not carpal tunnel. Well he was right on the right hand it is only arthritis but my left hand is carpal tunnel at moderate stage. I went and had a nerve conduction test done to prove it since workers comp doctors work for the insurance companies and not the employees who are hurt. I will be forwarding you the results when I get the written ones. The doctor told me the result when she did the test.

!d.

Following Ms. Kelso's e-mail, Five Star turned the matter over to Accident Fund, the carrier then insuring it for workers' compensation risks. An Accident Fund adjuster offered Ms. Kelso a panel, to which she objected because it listed names of clinics as opposed to names of individual physicians. (Ex. 1.) Ms. Kelso testified she worked as long as she could with pain from several physical ailments, including recurrent upper extremity pain. 4 Ms. Kelso testified she last worked at Five Star on September 15, 2015, and has not worked anywhere since.

In October 2015, Ms. Kelso e-mailed a Petition for Benefit Determination (PBD) to the Bureau of Workers' Compensation, listing a July 1, 2014 date of injury. (Ex. 15 at 1-2.) She described her injury in the PBD as follows:

I was sent to Dr. Rickey Hutcheson on 8/12/15 5 for an injury dated 7/0112014 on my hands. Dr. Hutcheson took x-rays and told me it was arthritis and fine to go back to work fulltime with no restrictions. I continued to have lots of pain and in August 2015 I asked my regular doctor to order the nerve conduction exam. Results included. I was told by Jennifer Hudson there was nothing I could do.

!d. at 1.

4 Ms. Kelso testified back pain, pain in her feet, knee pain, shoulder pain, and pain from fibromyalgia combined with her upper extremity pain disabled her beginning September 15,2015. 5 Dr. Hutcheson's records show he actually saw Ms. Kelso on August 12, 2014.

3 Ms. Kelso testified that a representative of the Bureau named "Cheryl" told her she filed the PBD "too late" to obtain benefits on the July 1, 2014 date of injury. Ms. Kelso testified she withdrew this PBD pursuant to Cheryl's suggestion. Ms. Kelso further testified that Cheryl also suggested she file a PBD listing an August 26, 2015 date of injury based on the fact she learned her carpal tunnel diagnosis on that date. Ms. Kelso testified she followed Cheryl's suggestion and, on November 20, 2015, filed the PBD that initiated this claim. (T.R. 1 at 1.) She described her injury in this PBD in the same manner as she did in the original PBD. (!d.; Ex.

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2016 TN WC 99, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kelso-roxanna-v-five-star-food-service-tennworkcompcl-2016.