                                                                                  FILED

                                                                                 TN <COURI' OF
                                                                          1\ ORIURS' CO~IPENS ..:\TION
                                                                                    CLAIMS

                                                                                  Tim.e I :0 0 PM

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

Patrice Berdnik,                              )   Docket No. 2016-04-0328
            Employee,                        )
v.                                           )
Fairfield Glade Comm. Club                   )    State File No. 78710-2016
             Employer,                       )
And                                          )
Starnet Ins. Co.,                            )    Judge Robert Durham
             Insurance Carrier.              )
                                             )


             EXPEDITED HEARING ORDER GRANTING BENEFITS


        This matter came before the undersigned Workers' Compensation Judge on March
28, 2017, upon the Request for Expedited Hearing (REH) filed by Patrice Berdnik. Ms.
Berdnik filed the Request to determine if Fairfield Glade Community Club (FGCC) is
obligated to provide benefits for her alleged work-related low back injury. The
dispositive issue is whether Ms. Berdnik's low back complaints arose primarily out of
and in the course and scope of her employment with FGCC. The Court holds the
evidence submitted by Ms. Berdnik is insufficient at this time to establish she is likely to
prevail at a hearing on the merits regarding the compensability of her alleged injury.
However, a secondary issue is whether Ms. Berdnik has provided sufficient evidence to
entitle her to a panel of physicians in compliance with Tennessee Code Annotated section
50-6-204 (20 16). The Court holds this to be the case, and thus FGCC is obligated to
provide her with a panel from which she may choose an authorized physician to provide
medical care pursuant to statute.

                                    History of Claim

       In February 2014, while living in New York, Ms. Berdnik underwent surgery to
fuse her lumbar discs at L4-L5. She testified the bones fused well, despite the fact that a
rod placed in the spine to provide additional support had come loose, and she had an
excellent resolution of her back problems. In a few months, she returned to work, was

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playing golf, and engaged in unrestricted activity. She testified that in July 2014, she
experienced a twinge in her back from playing golf, but that quickly resolved; and that
while she did complain of numbness and tingling in her left foot in 2014, this issue was
due to a cyst near her lumbar spine and was unrelated to any lumbar pine problems. 1

        In March 2015, Ms. Berdnik and her husband retired and moved to Fairfield
Glade, Tennessee. Ms. Berdnik obtained part-time work to supplement her income, and
in March 2016 began working for FGCC, initially as a hostess at Stonehenge restaurant.
After a month, she started work at the "Tum Shack," an outdoor snack bar located near
the restaurant and next to Stonehenge golf course.

        Ms. Berdnik worked three twelve-hour shifts each week. Her job duties included
serving customers and keeping the snack bar stocked. The snack bar did not have its own
ice machine, so Ms. Berdnik would periodically take a golf cart to the restaurant
basement where she would fill three five-gallon buckets with ice and bring it back to the
snack bar to refill the coolers. The bottom lip of the ice machine reached to her mid-
thigh, so Ms. Berdnik had to bend at the waist, reach into the ice machine and scoop out
the ice with a plastic scoop. It required three scoops to fill each bucket. Ms. Berdnik
would then load the buckets on the golf cart, take them to the snack bar, and unload them
into the coolers and the soda fountain. During the summer months, she might have to do
this five times or more during her shift. Occasionally, the basement ice machine would
be empty, so she would have to get ice from the upstairs kitchen and carry the buckets
down a flight of stairs to the golf cart.

        Ms. Berdnik testified that, prior to September 4, 2016, her low back did not
trouble her and she was able to engage in unrestricted activities, including regular rounds
of golf. On September 4, as she was bent over inside the ice machine scooping ice, she
felt a twinge or spasm in her low back resulting in immediate pain radiating down her
back and into her legs. Ms. Berdnik testified that she stretched and iced her back once
she got home in the hope the pain would improve; however, that did not occur. She was
due to be off work for several days, which she believed would give her back time to heal,
but her manager, Jennifer Jeffries, called and asked her to fill in since they were short-
handed. Ms. Berdnik testified she told Ms. Jeffries she could not do so since she had hurt
her back while getting ice and needed time to rest.

      Ms. Berdnik's back did not improve, and on September 22, she went to her
primary care provider, N.P. Julie Livesay, at Infinity Health Care Center. 2 Ms. Berdnik
became a patient with Infinity in June 2015 when she saw N.P. Sean Birdwell. She

1
  Although Ms. Berdnik provided substantial testimony regarding her medical history in New York, no medical
records were made an exhibit at the hearing.
2
  FGCC offered a number of medical records from Infinity Health Care Center to which Ms. Berdnik objected on the
grounds that they were not certified or signed by a physician. Therefore, the records were not admitted on the
grounds of hearsay but were marked as Exhibit 5 for identification only.

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testified she provided N.P. Birdwell with her history, including her lumbar fusion and the
loose rod, but denied that she told him her back pain and sciatica were chronic and
increasing, and that, in fact, she was not suffering from any back pain at the time. She
testified that in August she called in to Infinity to have her medication for acid reflux
refilled but was told that N.P. Birdwell was no longer there and she needed to come in for
another evaluation with N.P. Livesay. She did so and repeated her history, but again
denied she told her that her back pain was increasing.

       Ms. Berdnik testified that when she saw N.P. Livesay on September 22, she told
her about the September 4 work incident and rated her pain as three out of ten. N.P.
Livesay provided Gabapentin and anti-inflammatories for treatment. Ms. Berdnik
returned to Infinity on several occasions, but her pain continued. She also underwent an
MRI of her lumbar spine at N .P. Livesay's recommendation, which revealed mild
degenerative disc disease and central canal stenosis at L3 and L4. (Ex. 6 at 8.)

       On October 11, the carrier for FGCC denied Ms. Berdnik's claim based on "her
prior medical records" and "no specific event" denoting a work injury. (Ex. 2.) Ms.
Berdnik continued to work for FGCC until November 12. FGCC offered her a position at
Druid Hills Snack Shop in December, but she testified she was forced to reject the offer
because of her back pain.

      On December 26, Dr. Stacy Carlton with Infinity evaluated Ms. Berdnik. Ms.
Berdnik told her she suffered a work injury three months earlier, resulting in the sudden
onset of persistent pain in her back and down both legs. Dr. Carlton diagnosed Ms.
Berdnik with "lumbar pain with radiculopathy" and prescribed Gabapentin and anti-
inflammatory medication. (Ex. 20.)

        FGCC requested Ms. Berdnik undergo an independent medical evaluation with an
orthopedist, Dr. Patrick Bolt. Dr. Bolt examined Ms. Berdnik and reviewed records from
Infinity Health Care Center and from her surgery in New York. He diagnosed Ms.
Berdnik with "acute on chronic low back pain with sciatica;" "hardware failure
plus/minus pseudoarthrosis L4-5 arthrodesis;" lumbar spondylosis; and "transitional
segment with congenital pseudoarthrosis L5-S 1." He did not note any evidence of an
acute injury other than her "sudden increase/recurrence in back pain and sciatica while
bending over to get ice at work." (Ex. 7 at 2.)

        Dr. Bolt responded to a series of questions from FGCC ' s counsel regarding
causation. He noted an apparent discrepancy between Ms. Berdnik's history that she had
not been suffering from back pain before September 4, 2016, and the records from
Infinity Medical Center from July and August of 2015. Based upon those records, he
stated it appeared Ms. Berdnik complained of back pain and sciatica in 2015, although he
noted Ms. Berdnik did not receive any treatment for back pain or sciatica in 2015. He
further observed that Ms. Berdnik's "work activities clearly played some role in her

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increasing symptoms." !d. at 3.

       Dr. Bolt concluded by stating it "appears [Ms. Berdnik] experienced a significant
and considerable exacerbation/aggravation of her chronic low back pain and sciatica."
However, based on the atraumatic event of bending over the ice machine, which she had
done several times in the past; her significant pre-existing condition; and the lack of
objective evidence of injury, he did not believe the September 4, 2016 incident
contributed more than fifty percent to her current condition. !d.

                       Findings of Fact and Conclusions of Law

       As in all workers' compensation actions, Ms. Berdnik, as the claimant, has the
burden of proof on the essential elements of her claim. Scott v. Integrity Staffing
Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). However,
since this is an expedited hearing, she only has to come forward with sufficient evidence
from which the Court can determine she is likely to prevail at a hearing on the merits in
order to meet her burden. McCord v. Advantage Human Resourcing, 2015 TN Wrk.
Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

       In order to prevail on causation, Ms. Berdnik must establish she suffered an
accidental injury that was "caused by a specific .incident, or set of incidents, arising
primarily out of and in the course and scope of employment, and is identifiable by time
and place of occurrence." Tenn. Code Ann. § 50-6-102(14)(A) (2016). An aggravation
of a pre-existing condition is only compensable to the extent that the aggravation "arose
primarily out of and in the course and scope of employment." /d.

        Ms. Berdnik must prove "to a reasonable degree of medical certainty that [the
injury] contributed more than fifty percent (50%) in causing the death, disablement or
need for medical treatment, considering all causes." Tenn. Code Ann. § 50-6-102(14)(C)
(20 16). The term "reasonable degree of medical certainty" means that, "in the opinion of
the physician, it is more likely than not considering all causes, as opposed to speculation
or possibility." Tenn. Code Ann. § 50-6-102(14)(D) (2016). Thus, lay testimony must
generally be corroborated by expert medical testimony in order to meet the burden of
proof regarding causation. See Scott, supra, at * 12.

       In this instance, the only medical opinion offered regarding causation was that of
Dr. Bolt, who provided a medical evaluation at the request ofFGCC. Given that he is not
an authorized treating physician, his opinion is not entitled to a presumption of
correctness. See Tenn. Code Ann. § 50-6-204(a)(3) (2016). Nevertheless, his opinion as
to causation was that, based on a number of factors, Ms. Berdnik's current condition was
not more than 50% caused by the September 4, 2016 work incident. There is no other
medical opinion regarding causation.


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       For the reasons stated above, the Court concludes Ms. Berdnik failed to provide
sufficient evidence from which the Court can determine she is likely to prevail at a
hearing on the merits regarding causation. As a result, her request for payment of
previous medical ·expenses, temporary total disability benefits, and discretionary costs
involving fax expenses is denied at this time.

       However, Ms. Berdnik does not have to prove compensability in order to establish
that FGCC is obligated to provide a panel of physicians from which she may choose an
authorized physician. McCord at * 16, 17. In McCord, the Workers' Compensation
Appeals Board found that:

       [W]hether the alleged work accident resulted in a compensable injury has
       yet to be determined. Therefore, while Employee has not proven by a
       preponderance of the evidence that she suffered an injury arising primarily
       out of and in the course and scope of employment, she has satisfied her
       burden at this interlocutory stage to support an Order compelling Employer
       to provide a panel of physicians.

 !d. Thus, the question becomes whether Ms. Berdnik has provided sufficient evidence to
satisfy "her burden at this interlocutory stage" that she is entitled to a panel of physicians.
!d. at 17. See also Lewis v. Molly Maid, 2016 TN Wrk. Comp. App. Bd. LEXIS 19, at *9
(Apr. 20, 20 16).

        The administrative rules governing an employer's obligation to provide a panel
state, "[u]pon notice of any workplace injury, other than a minor injury for which no
person could reasonably believe requires treatment from a physician, the employer shall
immediately provide the injured employee a panel of physicians that meets the statutory
requirements for treatment of the injury." Tenn. Comp. R. & Regs. 0800-02-01-.25(1)
(2015).

        In Ms. Berdnik's case, it is undisputed that she provided statutory notice to FGCC
of a work-related incident involving her low back that occurred on September 4, 2016.
However, FGCC did not provide her with a panel of physicians as required by law.
Furthermore, Dr. Bolt's opinion was heavily predicated upon the accuracy of Infinity
Health Care's medical notes, which Ms. Berdnik disputes, and he clearly felt Ms. Berdnik
at least suffered a "significant and considerable exacerbation/aggravation" as a result of
her work-related incident. As a result, the Court holds Ms. Berdnik has satisfied her
burden at this interlocutory stage to require FGCC to provide her with a panel of back
specialists from which she may choose an authorized physician in compliance with
Tennessee Code Annotated section 50-6-204(a)(3)(A)(i) (20 16).




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       IT IS, THEREFORE, ORDERED that:

  1. FGCC shall provide a panel of back specialists within Ms. Berdnik's community
     from which she may choose an authorized physician for evaluation, and if
     necessary, treatment of her alleged back injury in accordance with Tennessee Code
     Annotated section 50-6-204(a)(3)(A)(i) (2016).

 2. Ms. Berdnik's requests for temporary disability benefits and reimbursement of
    expenses are denied at this time, but may be reconsidered following examination by
    an authorized treating physician.

 3. This matter is set for a Scheduling Hearing on June 2, 2017, at 2:00p.m. Central
    Time. The parties must call 615-253-0010 or toll-free at 855-689-9049 to
    participate in the Hearing. Failure to call in may result in a determination of the
    issues without your further participation.

ENTERED THIS THE 3J"DA~                                     -



                                 Robert V. Durham, Judge
                                 Court of Workers' Compensation Claims

                                     APPENDIX

Exhibits:

1.    First Report of Injury
2.    Notice of Denial
3.    Affidavit of Patrice Berdnik
4.    Affidavit of Dalton Berdnik
5.    Medical records from Infinity Health Care Center (for I.D.)
6.    Medical records of Cumberland Medical Center
7.    Report from Dr. Patrick Bolt
8.    Email from Ms. Berdnik to Dan Linskens
9.    Performance Review
10.   Photograph of Snack Shop
11.   Wage Statement
12.   Medical bills
13.   Summary ofMs. Berdnik's expenses
14.   Various photographs
15.   Photograph of ice machine
16.   Photograph of ice machine upstairs

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17.     Photograph of stairwell
18.     Photograph of door to snack shop
19.     Photograph of snack shop
20.     Records ofDr. Stacy Carlton

Technical Record:

1.      Petition for Benefit Determination
2.      Dispute Certification Notice
3.      Request for Expedited Hearing
4.      Employer's Motion for Extension of Deadlines
5.      Order Granting Employer's Motion for Extension
6.      Employer's Position Statement

                            CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Expedited Hearing Order
Granting Benefits was sent to the following recipients by the following methods of
service on this the 31
                    _st day of March, 20 17.


 Name                      Certified   Via        Via    Service sent to:
                            Mail       Fax       Email
 Patrice Berdnik                                  X      Plkkwkan58@.gmail.com
 Mary Dee Allen                                   X      mallen@wimberlylawson.com




                                           P nny S r m, Clerk of Court
                                           Court o   orkers' Compensation Claims
                                           WC.CourtCierk@tn.gov




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