                                                                                FILED
                                                                            F ebrnarv 2 7, 2017

                                                                                 TN COURTOF
                                                                        "\'\rORJITRS' CO:MPiE S~IDON
                                                                                   C1AD.IS

                                                                                Time·8 :35 All

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

Regina Beard,                                )   Docket No.: 2016-06-1965
           Employee,                         )
v.                                           )   State File Number: 62425-2015
Electrolux Home Products, Inc.,              )
            Employer,                        )   Judge Kenneth M. Switzer
And                                          )
Agri General Insurance Co.,                  )
            Carrier.                         )
                                             )

       EXPEDITED HEARING ORDER DENYING REQUESTED RELIEF


       This case came before the undersigned Workers' Compensation Judge on
February 22, 2017, on Ms. Beard's Request for Expedited Hearing. The present focus of
this case is Ms. Beard's entitlement to temporary disability benefits and additional
medical benefits. Electrolux accepted the claim and provided medical benefits. The
central legal issue is whether Ms. Beard' s current complaints are related to the work
injury. For the reasons set forth below, the Court holds she is not likely to prevail at a
hearing on the merits and therefore denies her requests at this time.

                                    History of Claim

       Ms. Beard worked at Electrolux as a press operator. On August 9, 2015, Ms.
Beard received an electric shock. Electrolux offered a panel, and she treated at
NorthCrest in both the emergency room and its clinic. (See generally Ex. 2 at 10-32.)
E.R. providers diagnosed "electrical shock sensation and paresthesia." Ms. Beard
returned for follow-up care a few days later, where clinicians placed her on restrictions,
which Electrolux accommodated.        At Ms. Beard's next NorthCrest appointment
approximately two weeks later, she reported that her symptoms were worsening in her
left arm. The provider ordered a CT scan. Ms. Beard underwent a head CT shortly
afterward, which results document "no acute intracranial abnormality."

      Electrolux offered another panel, from which Ms. Beard chose Dr. Calvin Dyer, an

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orthopedic surgeon. He treated her several times over the next few months. Id. at 33-48.
At Ms. Beard's first visit in September, he wrote, "The patient has a history of an
electrical shock and symptoms which do not seem to make full sense, but certainly there
is a possibility she has some nerve tingling following this electrical injury." Dr. Dyer
prescribed opioids and retained her work restrictions. At the next visit, which is only
documented by a WorkLink Physician's Report, Dr. Dyer returned Ms. Beard to full
duty. On November 20, he placed Ms. Beard at maximum medical improvement and
assigned a zero-percent permanent impairment rating. In April 2016, Ms. Beard returned
to Dr. Dyer complaining of left-leg pain. He noted on the WorkLink Physician's Report
from that visit that it could "not be determined" whether her condition at that time is
work-related. !d. at 48.

        To make that determination, Electrolux offered a panel of neurologists, from
which Ms. Beard chose Dr. Steven Graham. At Ms. Beard's sole visit with him, Dr.
Graham examined her and performed an EMG/nerve conduction test of her left leg,
which results he noted as "normal." He wrote, "Her subjective pain can best be clinically
described as somatoform pain, and there is no ongoing cause-and-effect relationship
between the alleged work injury, and her ongoing subjective complaints predominantly of
pain in the left leg." Dr. Graham agreed Ms. Beard suffered no permanent impairment or
restrictions and that she was at maximum medical improvement. Id. at 49-52. According
to Ms. Beard, Dr. Graham did not review the EMG test results with her, and he told her
the pain was "all in [her] head." He wrote that Ms. Beard "can continue treatment with
her local physician in regards to use of gabapentin or other methods for her subjective
pain."

       Following that instruction, Ms. Beard sought further treatment with her primary
care provider, nurse practitioner Rhonda Barrineau. She testified Ms. Barrineau referred
her to pain management, although Ms. Beard submitted no medical records documenting
treatment with the nurse practitioner.

       Ms. Beard began unauthorized treatment with Dr. Ramarao Pasupuleti at the
Center for Pain Management in August. (See generally Ex. 3.) She introduced copies of
his treatment notes from three visits. At the first visit, he examined Ms. Beard and
reviewed Dr. Graham's EMG testing and notes. Dr. Pasupuleti wrote as the treatment
plan:

      The patient was evaluated by a neurologist through her Workers' Comp
      insurance, who diagnosed her with somatoform pain and I disagree with
      this evaluation. The consequences and damage from electrical shock have
      been studied well and are known causes of neuropathic pain. The patient
      has evidence of motor and sensory deficits in the left lower extremity
      associated with paresthesia and it may be reasonable at this time to obtain
      an MRI of the lumbar spine to evaluate for any intraspinal or other causes.

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!d. at 15. He prescribed hydrocodone and gabapentin and ordered an MRI. At the next
visit, Dr. Pasupuleti continued Ms. Beard's pain medications and took her off work, in
line with Ms. Beard's testimony and contrary to the assertions of Electrolux's counsel at
the Expedited Hearing. At a subsequent visit, Dr. Pasupuleti reviewed the MRI results
and, according to Ms. Beard, told her it revealed she suffers from arthritis. He continued
her opioid prescriptions and placed her on restrictions.

       Ms. Beard testified she still experiences disabling pain and that she loved her job
at Electrolux. She does not know whether Electrolux still employs her. She filed a
petition for benefit determination seeking additional medical and temporary disability
benefits, in apparent reliance on Dr. Pasupuleti's treatment notes. 1 Electrolux asserted
Ms. Beard's current complaints do not relate to the August 2015 incident; therefore, it
need not provide additional treatment, nor is she entitled to temporary disability benefits.

                           Findings of Fact and Conclusions of Law

        In general, Ms. Beard, as the employee, bears the burden of proof on all prima
facie elements of her workers' compensation claim. Tenn. Code Ann. § 50-6-239(c)(6)
(2016); see also Buchanan v. Carlex Glass Co., 2015 TN Wrk. Comp. App. Bd. LEXIS
39, at *5 (Sept. 29, 2015). At an expedited hearing, Ms. Beard must come forward with
sufficient evidence from which this Court can determine that she is likely to prevail at a
hearing on the merits. McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

       Applying these general legal principles to the facts of this case, the Court first
considers whether a causal link exists between Ms. Beard's current complaints and the
work incident. The Workers Compensation Law requires employers to provide injured
employees with reasonable and necessary medical care related to a work injury. The law
defines "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." A work-
related injury causes a need for medical treatment if, within a reasonable degree of

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  Ms. Beard introduced into evidence documentation regarding sums she paid for prescriptions. Counsel
for Electrolux objected, but the Court overruled and admitted it into evidence. She also provided a memo
to the mediation specialist regarding mileage. Electrolux indicated at the hearing it did not have notice of
this as an issue. Having reviewed the entire record, the Court agrees that reimbursement for past medical
expenses or unreimbursed mileage are issues that are not properly before this Court at this interlocutory
stage, as it is not clear these issues were addressed in mediation. Tennessee Code Annotated section 50-
6-239(b)(l) provides that this Court may only adjudicate issues certified on the dispute certification
notice. However, at the Expedited Hearing, Electrolux's counsel acknowledged a belief that possibly one
of the prescribed medications resulted from authorized treatment at NorthCrest. The Court encourages
the parties to address disputes regarding liability for past authorized medical expenses or reimbursement
for travel relative to authorized treatment between themselves. If no agreement is reached, Ms. Beard
may file an amended Petition for Benefit Determination to resolve these issues.

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medical certainty, it contributed more than fifty percent to the need for treatment. To
meet the "reasonable degree of medical certainty" standard requires a physician's opinion
that it is more likely than not, considering all possible causes, as opposed to speculation.
Further, the opinion of the treating physician selected from a panel is presumed correct
on the issue of causation but may be overcome by a preponderance of the evidence. See
Tenn. Code Ann.§§ 50-6-204(a)(l)(A); 50-6-102(14).

        This case at this stage turns largely on the medical proof, which "must be
considered in conjunction with the lay testimony of the employee as to how the injury
occurred and the employee's subsequent condition." Nance v. Randstad, 2015 TN Wrk.
Comp. App. Bd. LEXIS 15, at *8 (May 27, 2015). Here, Ms. Beard credibly testified she
still experiences disabling pain. However, the most recent authorized treating physician,
Dr. Graham, unambiguously concluded her present complaints do not relate to the work
injury. He characterized her current pain as "somatoform," and, "there is no ongoing
cause-and-effect relationship between the alleged work injury, and her ongoing
subjective complaints predominantly of pain in the left leg." The Court notes that before
Dr. Graham formed these opinions, Dr. Dyer noted it could "not be determined" whether
her condition was work-related.

        As previously stated, the Workers' Compensation Law requires this Court to
presume Dr. Graham's opinion is correct, although Ms. Beard may overcome the
presumption by a preponderance of the evidence. On this record, the Court finds she
failed to introduce sufficient evidence to do so. Dr. Pasupuleti's notes indicate mere
disagreement with Dr. Graham. He mentioned that the issue of pain associated with
electrical shock is "well studied." However, he offered no particulars about these studies
or their application to Ms. Beard's condition. In sum, at this time, he offered no other
information that would lead this Court to hold that his opinion overcomes the
presumption of correctness afforded to Dr. Graham's opinion. Therefore, the Court holds
that Ms. Beard has not come forward with sufficient evidence from which this Court may
find that she is likely to prevail at a hearing on the merits regarding her entitlement to
additional medical benefits.

       Turning now to her request for temporary disability benefits, to establish
entitlement Ms. Beard must show ( 1) she was totally disabled to work by a compensable
injury; (2) a causal connection between the injury and her inability to work; and, (3) the
duration of that period of disability. Jones v. Crencor Leasing and Sales, 2015 TN Wrk.
Comp. App. Bd. LEXIS 48, at *7 (Dec. 11, 2015). Ms. Beard's request fails on the
second prong because, as explained above, she failed to establish the causal connection
between the injury and her current inability to work. Her request for temporary disability
benefits is denied as well.

IT IS, THEREFORE, ORDERED as follows:


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   1. Ms. Beard's claim against Electrolux and its workers' compensation carrier for the
      additional medical and temporary disability benefits is denied at this time.

   2. This matter is set for a Scheduling Hearing on April10, 2017, at 9:00a.m. Central
      time. You must call at 615-532-9552 or 866-943-0025 toll-free to participate
      in the Hearing. You must call in on the scheduled date/time to
      participate. Failure to call in may result in a determination of the issues without
      your further participation.

                                  ENTERED this the 27th day of February, 2017.




                                      APPENDIX

EVIDENCE:
   1. Ms. Beard's affidavit
  2. Compilation medical records: NorthCrest, Dr. Dyer, Dr. Graham
  3. Medical records: Dr. Pasupuleti
  4. First Report of Injury
  5. C-42 Choice ofPhysician-NorthCrest
  6. C-42 Choice ofPhysician-Dr. Dyer
  7. Wage statement
  8. C-42 Choice ofPhysician-Dr. Graham
  9. Prescription profile

TECHNICAL RECORD:
  1. Petition for Benefit Determination
  2. Employer's Position Statement
  3. Dispute Certification Notice
  4. Request for Expedited Hearing
  5. Employer's Witness and Exhibit List
  6. Employer's Response to Employee's Request for Expedited Hearing




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                           CERTIFICATE OF SERVICE

       I certify that a true and correct copy of the Expedited Hearing Order was sent to
the following recipients by the following methods of service on this the 27th day of
February, 2017.

 Name                       Certified Via       Via     Service sent to:
                            Mail      Fax       Email
Regina Beard,                  X                        525 Railroad St., Allensville
Employee                                                KY 42204
Lauren Disspayne,                                 X     ldissgaxne@manierherod.com
Employer's Counsel




                                        ~enny Sh m, Clerk of Court
                                        Court o  orkers' Compensation Claims
                                        WC.CourtClerk@tn.gov




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