Touchette, Velvet v. Speedway, LLC

2018 TN WC 150
CourtTennessee Court of Workers' Compensation Claims
DecidedSeptember 20, 2018
Docket2018-05-0417
StatusPublished

This text of 2018 TN WC 150 (Touchette, Velvet v. Speedway, LLC) 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
Touchette, Velvet v. Speedway, LLC, 2018 TN WC 150 (Tenn. Super. Ct. 2018).

Opinion

FILED Sep 25, 2018 01:21 PM(CT) TENNESSEE COURT OF WORKERS' COMPENSATION CLAIMS

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

Velvet Touchette, ) Docket No.: 2018-05-0417 Employee, ) v. ) ) Speedway, LLC, ) State File No.: 95598-2017 Employer, ) And ) ) Old Republic Ins. Co. ) Insurer. ) Judge Robert Durham

EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS

This case came before the Court for an Expedited Hearing on September 17, 20 18. The legal issue is whether Ms. Touchette's chest and left shoulder complaints arose primarily out of and in the course and scope of her employment with Speedway. For the following reasons, the Court holds she is likely to succeed at a hearing on the merits in establishing entitlement to a panel. Because Speedway denied her claim, the Court holds it must authorize reasonable and necessary treatment for the work injury with an orthopedist at Seven Springs Orthopedics.

History of Claim

On December 2, 2017, Ms. Touchette worked as an assistant manager trainee for Speedway. While restocking the coffee station, she noticed an urn was not working. 1 She began checking if one was unplugged. This included checking an outlet underneath the coffee counter in the back of a storage cabinet by bracing herself with her left arm, stooping down, and reaching through the open door to the back of the deep cabinet where the outlet was located. At the hearing, Ms. Touchette stated that she reached into the back of the cabinet, grabbed a tight plug and attempted to work it free of the outlet when

1 In her early accounts, Ms. Touchette stated she transported a heavy box to the coffee station; however, at the hearing, she admitted that she transported the box several minutes before she experienced chest pain. she felt a sudden, excruciating pain in the left side of her chest radiating to her left shoulder. 2

A co-worker, Keonna Sebree, found Ms. Touchette lying on the floor, clutching her chest in intense pain. Surveillance footage shows Ms. Sebree assisting her to the office. Ms. Touchette's left hand was on her chest. An ambulance transported her to the emergency room where Ms. Touchette complained of "pleuritic, sharp" chest pain exacerbated by movement and chest palpation. The ER doctor ruled out heart problems and diagnosed Ms. Touchette with acute costochondritis, or inflammation of the chest wall muscles.

The next day, she completed an injury report for Speedway. Ms. Touchette wrote she experienced sharp pain in the middle of her chest when she was "bending down and into cabinet to check plug connection." She made no mention of pulling on a plug. Speedway did not provide a panel of physicians.

On December 4, Ms. Touchette visited her primary care physician, Dr. Olawumi Akatue. Ms. Touchette reported chest pain "after she had lifted some boxes and then reached for a cabinet to pull an item," and that she still had chest pain and pain lifting her arms. Dr. Akatue diagnosed a chest muscle strain/musculoskeletal pain and assigned restrictions. Ms. Touchette returned a week later for an "upper ext/shoulder/chest sprain after she did some pulling at work." Dr. Akatue noted pain to the right of the sternum and toward both shoulders. She diagnosed a lingering muscle strain and recommended Ms. Touchette take "a few days off work."

She returned to Dr. Akatue the next week, this time with a case manager. Ms. Touchette stated the right-sided pain improved, but she still had pain, decreased range of motion and occasional numbness and tingling in her left shoulder and arm. Dr. Akatue ordered x-rays, which were negative, and made an orthopedic referral. She did not mention work restrictions then; however, at the next visit she stated that since Ms. Touchette told her Speedway did not have light duty, she could stay off work until she saw an orthopedist.

Ms. Touchette testified she spoke to the adjuster for Speedway about the referral, and he told her that she could go to any orthopedist. Speedway did not refute this. She stated she then attempted to contact the adjuster several times to confirm scheduling, but he did not return her calls. She did not hear from him until Speedway denied her claim.

Afterward, Ms. Touchette sought unauthorized treatment at Seven Springs

2 Ms. Touchette's testimony differs from the various written accounts of the incident that were made before the hearing. Given the emphasis placed on this difference at the hearing, the Court believes it will be instructive to detail the prior accounts.

2 Orthopedics. 3 Brad Bell, PA-C, noted that "per her history, she was reaching awkwardly beneath the counter and felt something strain in the left side of her chest" with most of the pain since migrating to her left shoulder. PA Bell noted ROM limitations and give- way weakness due to complaints of pain in the left shoulder and left chest wall. He gave her a steroid injection in her shoulder, recommended a left shoulder MRI and kept her off work until after the MRI.

Following this initial visit, Ms. Touchette underwent a variety of tests and treatments. She experienced no relief from steroid injections, pain medicine, muscle relaxants or physical therapy. A left shoulder MRI did not provide an explanation for her symptoms.

Ms. Touchette sought a second opinion from Charles Cassidy, PA-C with Sport Ortho Urgent Care. She told him her injury occurred as she was reaching into a cabinet with her right arm with her left arm resting in a flexed, abducted position on the counter. A chest MRI and a cardiology work-up did not reveal any problems. Ms. Touchette then saw a neurologist and underwent a nerve conduction study of her left arm, which also did not show any abnormalities that might explain her pain.

Ms. Touchette filed a Petition for Benefit Determination (PBD) with the Bureau on April 18. In the attached, hand-written affidavit, she described the December 2 incident, stating she felt intense pain when she "opened the cabinet door, bent down with my left hand on the (blank) and started to reach into the cabinet with my right."

Afterward, Speedway authorized an orthopedic evaluation with Dr. Joseph Weick. Ms. Touchette stated her pain began as "she was reaching under a desk with her right hand while she had her left hand holding a table top." He reported his examination was frustrated by Ms. Touchette's refusal to move her left arm due to pain complaints. Dr. Weick concluded there was nothing more to offer her and placed her at maximum medical improvement with a three-percent impairment to the upper extremity due to shoulder pain.

Ms. Touchette testified she still has excruciating pain that radiates from the left side of her chest to her left shoulder any time she moves her left arm. She stated the pain is sometimes so severe it causes her to vomit. She asserted she did not have any problems with her left shoulder or chest before December 2, 2017. She returned to Seven Springs following Dr. Weick's evaluation, and PA Bell recommended a shoulder MRI with contrast.

Findings of Fact and Conclusions of Law

3 Ms. Touchette has only seen physician's assistants at Seven Springs, although orthopedists signed the records.

3 Ms. Touchette does not have to 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) (2017); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

Before turning to the merits of Ms.

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Related

§ 5
Tennessee § 5
§ 50-6
Tennessee § 50-6
§ 50-6-102
Tennessee § 50-6-102(14)(C)
§ 50-6-239
Tennessee § 50-6-239(d)(l)

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Bluebook (online)
2018 TN WC 150, Counsel Stack Legal Research, https://law.counselstack.com/opinion/touchette-velvet-v-speedway-llc-tennworkcompcl-2018.