                                                                                    FILED

                                                                                   TN ~COURTOF
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                                                                                       1



                                                                                   'C1LAD.lS

                                                                                   Time~ 3:31   PM

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

ANGIE LINDSAY,                                )   Docket No.: 2016-03-1099
         Employee,                            )
v.                                            )
CVS DISTRIBUTION CENTER,                      )   State File No.: 93296-2015
          Employer,                           )
And                                           )
NEW HAMPSHIRE COMPANY,                        )   Judge Lisa A. Lowe
          Carrier.                            )
                                              )

                   EXPEDITED HEARING ORDER
        GRANTING MEDICAL BENEFITS AND DENYING TEMPORARY
                      DISABILITY BENEFITS


       This matter came before the undersigned Workers' Compensation Judge on the
Request for Expedited Hearing filed by the Employee, Angie Lindsay, on April 5, 2017.
The central legal issue is whether Ms. Lindsay's right knee injury arose primarily out of
and in the course and scope of her employment or was idiopathic. Related issues are
whether she is entitled to additional medical benefits to include surgery recommended by
Dr. Paul Becker and whether she is entitled to past and/or ongoing temporary disability
benefits.

       For the reasons set forth below, the Court finds Ms. Lindsay is likely to prevail at
a hearing on the merits that her right knee injury arose primarily out of and in the course
and scope of her employment. However, the Court concludes at this time she is not likely
to prevail at a hearing on the merits that she is entitled to temporary disability benefits.

                                    History of Claim

       Ms. Lindsay began working as a prescription "picker" for CVS on September 28,
2015. Ms. Lindsay testified there were narrow aisles that she and the other "pickers" had
to cross to retrieve the medication from a conveyor belt and then place in a tote. On
October 29, Ms. Lindsay took medication from the conveyor line, and as she walked

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down the narrow aisle, she twisted to the left so a co-worker could pass. As she turned,
she heard a pop and felt instant pain in her right knee. Ms. Lindsay reported the injury to
her supervisor, who failed to provide a physician panel. Ms. Lindsay continued to work
that day but experienced pain, which affected her ability to perform her work.

       One week later, Ms. Lindsay sought unauthorized medical treatment from her
primary care physician, Dr. David Hassell, who ordered diagnostic testing and prescribed
Tylenol. Upon follow up, Dr. Hassell rendered a diagnosis of sprained patellar ligament
but noted an absence of any significant swelling or dislocation of the patella following
the date of injury.

        CVS eventually provided Ms. Lindsay with a panel of physicians from which she
selected Dr. John McElligott. Dr. McElligott diagnosed her with a sprained knee and
recommended physical therapy and an injection. After a subsequent follow-up visit, Dr.
McElligott diagnosed right knee internal derangement and right knee bursitis. There
appeared to be some discrepancy within Dr. McElligott's medical records, as he
originally noted Ms. Lindsay as "off work" for her functional capability. However, in a
response to a letter from the adjuster, Dr. McElligott clarified that he did not take Ms.
Lindsay "off work"; instead, he meant she was currently not working because she had
been terminated by CVS. After providing unsuccessful conservative care, Dr. McElligott
ordered an MRI, which revealed a medial meniscal tear and degenerative arthritis. At
that point, Dr. McElligott referred Ms. Lindsay to orthopedic surgeon, Dr. Paul Becker.

       After a thorough examination, including review of the MRI results, Dr. Becker
recommended an arthroscopic medial meniscectomy repair. In addition, Dr. Becker
assigned Ms. Lindsay restrictions of "no climbing, pulling, pushing, stooping, or
bending." In response to a causation letter, Dr. Becker checked that it was his opinion,
considering all causes, that Ms. Lindsay's medial meniscus tear arose primarily out of
and in the course and scope of her employment on or about October 2015. CVS
submitted the surgery request to its Utilization Review agent, which denied the procedure
as not medically necessary.

        CVS terminated Ms. Lindsay on December 23. CVS' Human Resources Business
Partner, Paula Hulette, testified by deposition that she based Ms. Lindsay's termination
on productivity and quality issues. Ms. Hulette acknowledged that if a person could not
repetitively stoop or bend or push or pull, those restrictions would affect her productivity
as a picker.

       At the hearing, Ms. Lindsay asserted her injury was not idiopathic. She contended
walking in the small area and having to move to shuffle out of the way so co-workers
could pass created an employment hazard. Ms. Lindsay acknowledged that she suffered
some pre-existing knee problems. However, Dr. Becker, the authorized treating
physician, reviewed the MRI report, which showed her pre-existing arthritis, yet he still

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found her meniscus tear work-related. She alleged that since Dr. Becker is the authorized
treating physician and CVS did not provide a contrary medical opinion, the Court should
award her benefits. Finally, Ms. Lindsay alleged she is entitled to sixty-seven weeks of
temporary disability benefits in the amount of $17,000.

       CVS countered that Ms. Lindsay's injury was idiopathic because she did not slip
and fall or hit her knee on anything. She merely turned around, which could have
happened anywhere. There was no hazard incident to her employment that caused her
injury. In addition, CVS argued that Ms. Lindsay suffered pre-existing right knee pain
that she did not disclose to either Dr. McElligott or Dr. Becker. As a result, Dr. Becker
did not haye Ms. Lindsay's full medical history when he provided his causation opinion.
CVS argued if the Court does not find that Ms. Lindsay's injury was idiopathic, Ms.
Lindsay should return to Dr. Becker so he can review the past medical records and
provide an updated opinion. With regard to temporary benefits, no physician took Ms.
Lindsay completely off work. Dr. Becker first assigned restrictions in July 2016 and
CVS had light duty work available for Ms. Lindsay had CVS not terminated her for cause
during her ninety day probation period.

                       Findings of Fact and Conclusions of Law

                                     Standard Applied

       The following legal principles govern this case. Because it is in a posture of an
Expedited Hearing, Ms. Lindsay need not prove every element of her claim by a
preponderance of the evidence in order to obtain relief. McCord v. Advantage Human
Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Instead, she must come forward with sufficient evidence from which this Court might
determine she is likely to prevail at a hearing on the merits. !d.; Tenn. Code Ann. § 50-6-
239(d)(l) (2016).

                                   Applicable Authority

         The Workers' Compensation Law requires employers to provide injured
employees with reasonable and necessary medical care related to a work injury. A work-
related injury causes a need for medical treatment if, within a reasonable degree of
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 opinion
that it is more likely than not, considering all possible causes, as opposed to speculation.
See Tenn. Code Ann. §§ 50-6-204(a)(l)(A), 50-6-102(14)(C), and 50-6-102(14)(D)
(2016).




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                             Nature of Ms. Lindsay's Injury

       "An idiopathic injury is one that has an unexplained origin or cause, and generally
does not arise out of the employment unless 'some condition of the employment presents
a peculiar or additional hazard."' Frye v. Vincent Printing Co., eta!., 2016 TN Wrk.
Comp. App. Bd. LEXIS 34, at *11 (Aug. 2, 2016). Moreover, an injury resulting from an
idiopathic condition is compensable "if an employment hazard causes or exacerbates the
injury." !d. at * 11-12. "Cause" in this context is not "proximate cause" as used in the
law of negligence; rather, "cause" means that the accident originated in the hazards to
which the employee was exposed. !d.

       In this case, Ms. Lindsay testified that there were narrow aisles that she and co-
workers walked to transfer the medication to the totes. She provided uncontroverted
testimony that she injured her knee when she twisted and turned in the narrow aisle to get
out of a co-worker's way. CVS did not offer any testimony or evidence to refute Ms.
Lindsay's testimony. CVS merely argued that Ms. Lindsay could have twisted her knee
anywhere, and just because she did so at work does not make it a work-related injury.
Since no other evidence or testimony was provided, the Court finds Ms. Lindsay's
testimony about the narrow aisles and necessity of twisting so co-workers can pass
credible. The Court further holds that the narrow aisles and necessity of twisting so co-
workers can pass created a peculiar hazard incident to Ms. Lindsay's employment. Thus,
her knee injury arose primarily out of and in the course and scope of her employment and
is compensable.

                                    Medical Benefits

       Having found Ms. Lindsay's injury compensable, the Court looks to the medical
proof to determine whether she is entitled to additional medical treatment. Under
Tennessee workers' compensation law, the panel-selected physician's causation opinion
is presumed correct, as is the treatment he recommends. However, that opinion might be
rebutted by a preponderance of the evidence. See Tenn. Code Ann. §§ 50-6-102(14)(E)
and 50-6-204(a)(3)(H) (2016); see also Morgan v. Macy's, 2016 TN Wrk. Comp. App.
Bd. LEXIS 39, at *17 (Aug. 31, 2016).

       In this case, Dr. Becker is the authorized treating physician. CVS cross-examined
Ms. Lindsay with regard to 2011 and 2014 medical records referencing right knee pain.
Ms. Lindsay acknowledged that she did not tell Dr. Becker about her pre-existing knee
problems because she said he did not ask her. Dr. Becker was aware that Ms. Lindsay's
MRI showed degenerative changes in addition to the tear, and he opined her injury arose
primarily out of and in the course and scope of her employment. CVS argues that if Dr.
Becker knew about Ms. Lindsay's pre-existing knee problem, it may change his causation
opinion. However, CVS did not provide any of this information to Dr. Becker. This
Court would be engaging in speculation if it were to presume Dr. Becker's opinion would

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change upon being presented with this information.

       Being that Dr. Becker determined causation in favor of Ms. Lindsay and that CVS
did not provide any medical opinion to rebut Dr. Becker, this Court holds that Ms.
Lindsay has come forward with sufficient medical evidence that establishes her current
knee condition, for which she requires surgery, arose primarily out of and in the course
and scope of her employment. As a result, she is entitled to receive ongoing medical
treatment with Dr. Becker, to include the recommended surgery.

                              Temporary Disability Benefits

        Finally, the Court must also consider Ms. Lindsay's request for temporary
disability benefits. An injured employee is eligible for temporary disability benefits if:
(1) the employee is unable to work due to a compensable injury; (2) there is a causal
connection between the injury and the inability to work; and (3) the employee established
the duration of the period of disability. Jones v. Crencor Leasing and Sales, 2015 TN
Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11, 2015). Temporary total disability
benefits are terminated either by the ability to return to work or attainment of maximum
recovery. ld. An employee is entitled to receive temporary partial disability benefits,
pursuant to Tennessee Code Annotated section 50-6-207(2), when an employee is
temporarily unable to work but "the temporary disability is not total." Jewell v. Cobble
Constr. and Arcus Restoration, 2015 TN Wrk. Comp. App. Bd. LEXIS 1, at *22 (Jan. 12,
20 15).

        The medical proof establishes that Dr. McElligott never took Ms. Lindsay off
work. Dr. Becker assigned restrictions of no climbing, pulling, pushing and no repetitive
stooping or bending on July 13, 2016; however, Ms. Lindsay did not provide any other
medical records to indicate the duration of those restrictions. In addition, Ms. Lindsay
did not provide testimony as to whether she has been employed elsewhere since being
terminated by CVS. Therefore, the Court holds at this time that Ms. Lindsay has not
established that she is likely to prevail at a hearing on the merits that she is entitled to
temporary disability benefits. Since Ms. Lindsay did not provide sufficient
documentation/testimony to warrant temporary disability benefits at this time, it is not
necessary for the Court to address the issue of her termination and whether it was a valid
termination for cause.


IT IS, THEREFORE, ORDERED as follows:

   1. Medical care for Ms. Lindsay's injuries shall be paid and CVS Distribution Center
      or its workers' compensation carrier shall provide Ms. Lindsay with reasonable,
      necessary, and related medical treatment, to include surgery recommended by the
      authorized treating physician, Dr. Becker.

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2. Ms. Lindsay's claim against CVS Distribution Center and its workers'
   compensation carrier for the requested temporary disability benefits is denied at
   this time.

3. This matter is set for a Scheduling Hearing on June 21, 2017, at 9:30a.m. Eastern
   Time. The parties must call 865-594-0109 or 855-383-0003 toll free to participate
   in the Scheduling Hearing. Failure to appear by telephone may result in a
   determination of the issues without your further participation.

4. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
   with this Order must occur no later than seven business days from the date of entry
   of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3)
   (2016). The Insurer or Self-Insured Employer must submit confirmation of
   compliance      with    this     Order    to    the   Bureau     by     email     to
   W Compliance.l rogram @tn.gov no later than the seventh business day after
   entry of this Order. Failure to submit the necessary confirmation within the period
   of compliance may result in a penalty assessment for non-compliance. For
   questions regarding compliance, please contact the Workers' Compensation
   Compliance Unit via email WCCompliance.Program@tn.gov or by calling (615)
   253-1471 or(615) 532-1309.

   ENTERED this the 25th day of April, 2017.




                                       HON. LISA A; LOWE
                                     Workers' Compensation Judge




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                                   APPENDIX

Exhibits:
       1) Affidavit of Angie Lindsay
       2) Affidavit of Paula Hulette with the following exhibits:
              o 90 Day Probationary Guidelines
              o Employee handbook Receipt and Verification Acknowledgment
              o CVS Attendance Advisory
              o Separation Notice
       3) Deposition Transcript of Paula Hulette
      4) First Report of Work Injury, Form C-20
       5) Wage Statement, Form C-41
      6) Panel of Physicians, Form C-4
      7) Coverage Correspondence from CVS Health, January 3, 2017
       8) Medical Records of John McElligott, MD, Occupational Health Systems
      9) Return to Work Report of Dr. John McElligott
       10)Return to Work Status Report of Knoxville Orthopedic Clinic
       11)Causation Opinion ofDr. Paul Becker
       12)Medical Records Table of Contents of:
              o Results Physiotherapy
              o Cherokee Health Systems
              o Knoxville Orthopedic Clinic
             o Outpatient Diagnostic Center of Knoxville
       13) Discovery Responses

Technical Record:
          1) Petition for Benefit Determination
          2) Dispute Certification Notice
          3) Request for Expedited Hearing
          4) Employer's Response in Opposition to Employee's Request for Expedited
             Hearing
          5) Supplemental Request for Expedited Hearing
          6) Employer's Response in Opposition to Employee's Supplemental Request
             for Expedited Hearing
          7) Scheduling Order
          8) Order Denying Employee's Motion and Supplemental Motion to
             Reconsider or Alter this Court's Order Granting Employer's Motion to
             Compel Discovery
          9) Employer's Prehearing Brief
          10)Notice of Filing Affidavit of Paula Hulette
          1l)Notice of Filing Deposition of Paula Hulette
          12)Notice of Filing Questionnaire Responses from Authorized Treating
             Provider

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Stipulations:
       1) Average Weekly Wage $395.33/Comp Rate $263.57
       2) Proper notice of injury provided
       3) Date oflnjury: October 29, 2015
       4) Termination date: December 23, 2015




                            CERTIFICATE OF SERVICE

       I hereby 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 25 1h day
of April, 20 17.


Name                           Certified   Fax     Email   Service sent to:
                                Mail
Tim McLaughlin,                                      X     tmclaughlin@nmknoxlaw .com
Employee's Attorney
Alex B. Morrison,                                    X     ABMorrison@mijs.com
Employer's Attorney




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