                                                                                                    FILED
                                                                                                 Mar 29, 2018
                                                                                                 08:00 AM(CT)
                                                                                              TENNESSEE COURT OF
                                                                                             WORKERS' COMPENSATION
                                                                                                    CLAIMS




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

    Donna Parker,                                     )    Docket No. 2017-08-1047
               Employee,                              )
    v.                                                )
    Northgate Veterinary Hospital, LLC,               )    State File No. 95939-2016
               Employer,                              )
    And                                               )
    NorGuard Insurance Co.,                           )    Judge Deana Seymour
               Carrier.                               )


                                 EXPEDITED HEARING ORDER


       This case came before the undersigned Workers' Compensation Judge on March
7, 2018, upon Donna Parker's Request for Expedited Hearing. The controlling issue is
whether Ms. Parker proved she is likely to prevail at a hearing on the merits for
entitlement to neurological treatment. 1 Because Ms. Parker did not meet this burden, the
Court denies her request at this time.

                                            History of Claim

       Ms. Parker worked as a kennel manager for N orthgate. On December 13, 20 16,
she tripped over a cage door, hitting her forehead and right shoulder on a cabinet. 2
Northgate provided emergency treatment at Methodist Hospital. Her medical team
diagnosed Ms. Parker with a displaced shoulder fracture and contusions to her head and
left knee. A head CT scan did not reveal a concussion. Ms. Parker was discharged with
concussion precautions and instructions to return if she developed concussive symptoms.

1
   Ms. Parker also asked for temporary disability benefits at the hearing. However, the Dispute
Certification Notice did not include temporary disability as an issue, so the Court declines to address this
issue. Tenn. Code Ann. § 50-6-239(b )(I )(20 17).
2
    Northgate did not dispute this work accident.



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 Her medical records did not show a return visit.

        Northgate provided authorized treatment with Dr. Grinspun from December 14,
 2016, through October 31, 2017, when he placed her at maximum medical improvement
 for her shoulder injury. During that treatment, her medical providers noted a few
 complaints of fogginess and memory issues. However, Dr. Grinspun never referred her to
 a neurologist.

       Ms. Parker credibly testified that she experienced headaches, memory loss,
confusion, and stress since the accident. Her daughter, Amy Parker, and friend, Susan
Brower, confirmed her cognitive issues since the work injury. Amy Parker mentioned
memory problems, depression, and confusion. Ms. Brower discussed Ms. Parker's
frequent headaches, lack of focus, and fear of new places. Both witnesses described Ms.
Parker as outgoing and active before her injury.

       Northgate denied Ms. Parker' s request for a neurologist, contending her work
injury did not cause her current symptoms.

                       Findings of Fact and Conclusions of Law

                                     Standard Applied

       At an expedited hearing, Ms. Parker need not prove every element of her claim by
a preponderance of the evidence but must present sufficient evidence 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). This lesser evidentiary
standard does not relieve Ms. Parker of the burden to produce evidence of an injury by
accident that arose primarily out of and in the course and scope of employment but
"allows some relief to be granted if that evidence does not rise to the level of a
"preponderance of the evidence."' Buchanan v. Carlex Glass Co., 2015 TN Wrk. Comp.
App. Bd. LEXIS 39, at *6 (Sept. 29, 2015).

                                         Analysis

       Tennessee Code Annotated section 50-6-204(a)(1)(A) provides that an employer
"shall furnish . . . such medical and surgical treatment ... made reasonably necessary"
by an injury (emphasis added). "The question of whether a particular medical treatment is
'made reasonably necessary' must be answered based upon the proof presented at the
time the treatment is proposed." Limberakis v. Pro-Tech Sec., 2017 TN Wrk. Comp. App.
Bd. LEXIS 53 at *5-6 (Sep. 12, 2017). At the hearing, Ms. Parker requested neurological
treatment for her head injury.



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        The Court found Ms. Parker gave credible testimony about her head injury. Such
testimony is not to be disregarded. !d. at *6. However, the Court cannot order medical
benefits based upon Ms. Parker's credibility alone, as it cannot make independent
medical determinations without expert medical proof. Thompson v. Comcast Corp., 2018
TN Wrk. Comp. App. Bd. LEXIS 1, at *31 (Jan. 30, 2018). Ms. Parker cannot rely on her
own medical interpretation of the present proof to successfully support her argument for
neurological treatment. Instead, she must present sufficient evidence indicating she is
likely to prevail at a hearing on the merits regarding her entitlement to neurological
treatment. Argica v. AtWork Pers. Servs., 2016 TN Wrk. Comp. App. Bd. LEXIS 6, at
*8-9 (Feb. 2, 2016).

       The Coutt finds no mention of Ms. Parker's need for neurological treatment in the
numerous medical records. Without such proof, the Court holds Ms. Parker is unlikely to
prevail at a hearing on the merits on entitlement to neurological treatment and denies her
request at this time. Because of this holding, the Court need not address Ms. Parker's
request for attorney fees.


IT IS, THEREFORE, ORDERED as follows:

    1. Ms. Parker's request for neurological treatment is denied at this time.

    2. This matter is set for a Scheduling Hearing on May 7, 2018, at 10:30 a.m.
       Central Time. The parties must call 615-532-9550 or toll-free at 866-943-0014
       to participate in the hearing. Failure to call may result in a determination of the
       issues without the parties' participation.


      ENTERED Marci.J '\ ~018.




                               ~-~
                                JDGE         =- C. SEYMOUR
                                          o'EANA
                                  Court of Workers' Compensation Claims




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                                            APPENDIX

   Exhibits:
      1. Medical records with Table of Contents (Collective)
      2. Form C-20 Employer's First Report of Work Injury or Illness
      3. Form C-41 Wage Statement
      4. Photograph of Ms. Parker's head
      5. Ms. Parker's discovery responses to Northgate's written discovery
      6. Petition for Benefit Determination
      7. Affidavit of Donna Parker


   Technical Record:
      1. Petition for Benefit Determination
      2. Dispute Certification Notice
      3. Addition to Dispute Certification Notice
      4. Request for Expedited Hearing, with attached Affidavit of Donna Parker
      5. Northgate's Position Statement Regarding Denial of Panel ofNeurologists
      6. Ms. Parker's Pre-Hearing Statement

                              CERTIFICATE OF SERVICE

         I certify that a copy of this Order was sent to these recipients by the following
                                 Q;~ K.
   methods of service on March.:Lf_, 2018.

Name                    Certified     Fax    Regular   Email   Sent to
                        Mail                 mail
Eric Lewellyn,                                           X     eric.lewellyn@beyourvoice.com
Em lo ee's attorne
Allen Callison,                                          X     acallison@chartwelllaw .com
Em lo er' s attorne




                                             Penny -hrum, Court Cier
                                             Court of Workers' Com ensation Claims
                                             WC.CourtClerk@tn.gov




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