          IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                         AT CHATTANOOGA

Elsa Arriaga,                               )   Docket No.: 2014-01-0012
             Employee,                      )
v.                                          )   State File No.: 55942-2014
                                            )
Amazon.com, Inc.                            )   Judge Thomas Wyatt
          Employer,                         )
                                            )
And                                         )
                                            )
Zurich American Ins. Co.,                   )
           Insurance Carrier.               )




          EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS


       THIS CAUSE came before the undersigned Workers' Compensation Judge upon
the Request for Expedited Hearing (REH) filed by the employee, Elsa Arriaga, on
December 23, 2015, pursuant to Tennessee Code Annotated section 50-6-239 (2015).
Ms. Arriaga seeks medical and temporary disability benefits arising from an alleged work
injury occurring July 3, 2014.

       The central legal issue raised during this hearing is whether Ms. Arriaga came
forward with sufficient medical expert opinion to prove that her alleged injury arose
primarily out of and in the course and scope of employment. For the reasons set forth
below, the Court finds Ms. Arriaga is entitled to medical benefits, but is not entitled to
the temporary partial disability benefits.

                                    History of Claim

       Ms. Arriaga is a forty-eight-year-old resident of Chattanooga, Tennessee. (T.R. 1
at 1.) During the year before her alleged July 3, 2014 work injury, Ms. Arriaga had
worked as an order picker at the Chattanooga warehouse facility of Amazon.com, Inc.
(Amazon). (Ex. 2.) During the hearing, Ms. Arriaga testified her job at Amazon required

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her to walk ten to fifteen miles per day at a fast pace to satisfY the requirement that an
order picker retrieve one thousand items over the course of each work shift. She also
testified that the job required her to repetitively strain with her arms and back to lift
items, some of which are heavy, from Amazon's storage shelves.

       On July 3, 2014, Ms. Arriaga developed such severe pain in her right upper back,
right shoulder, right arm, right hand, and both ankles and feet that she could no longer
work after lunch break. (Ex. 1 at 1, 5.) She attempted to report her injury to Amazon's
on-site nursing facility, but was unsuccessful because it was unstaffed due to the Fourth
of July holiday. (Ex. 1 at 1.)

       Ms. Arriaga's next-scheduled work day was July 11, 2014. Before her shift
began, she reported her work injury to the nurse in the on-site facility. In an accident
report provided by the nurse, Ms. Arriaga reported ankle and heel pain so severe she
could not walk; pain in her right shoulder, back, and neck; numbness and tingling in her
right thumb and fingers; and muscle spasms in her right arm. (Ex. 1 at 5.) The nurse
referred Ms. Arriaga to Amazon's human resources department for determination of
whether the reported injury was work-related.

        Ms. Arriaga saw Ms. Sowder in Amazon's human resource department. (Ex. 1 at
2.) She claimed that Ms. Sowder gave her some forms and told her to see her personal
physician to determine if her injury was work-related. !d. at 2, 6, 24, 25. Ms. Arriaga
testified Ms. Sowder refused her request for a panel of physicians to treat her alleged
work injuries. Pursuant to Ms. Sowder's instructions, Ms. Arriaga left Amazon without
working on July 11.

        Ms. Arriaga made an appointment with her primary care provider, Sentef Medical
Centers, where she saw Nurse Practitioner Joan Keel on July 14, 2014 to discuss her
alleged work injuries. (Ex. 1 at 2; Ex. 4.) Ms. Arriaga described her symptoms
consistently with the description she wrote in Amazon's accident report. (Ex. 1 at 5; Ex.
3 at 2.) N. P. Keel referred Ms. Arriaga to a podiatrist and an orthopedic surgeon. (Ex. 1
at 8, 10; Ex. 3 at 3.)

       Ms. Arriaga saw podiatrist Dr. Ira Krause on July 18, 2014. (Ex. 1 at 13.) 1 Dr.
Krause diagnosed retrocalcaneal tendonitis and a calcaneal spur and fitted Ms. Arriaga
with braces for nighttime use. !d. at 13, 16. Dr. Krause released Ms. Arriaga to return to
work with restrictions of no walking, pushing, carrying, or climbing for extended periods
oftime. !d. at 13.


1
  Amazon's counsel objected to Ms. Arriaga's attempt to introduce Dr. Krause's report into evidence. The Court
overruled the hearsay objection because Dr. Krause signed the report. Tenn. Comp. R. & Regs. 0800-02-2l-
.16(6)(b) (2015). The Court sustained the objection as to Ms. Arriaga's hand-written notes at the bottom of the
report.

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       On July 22, 2014, Ms. Arriaga returned to Amazon with the paperwork she
received from N. P. Keel and Dr. Krause. (Ex. 1 at 3.) She gave the papers to Devin
Martin in Amazon's human resources department. /d. Ms. Martin had Ms. Arriaga
complete another accident report, in which Ms. Arriaga reported that her job at Amazon
required her to walk at a fast pace, scan items with a scanner, place merchandise in a tote,
and place the tote on a conveyor belt. /d. at 27. Ms. Arriaga indicated on the report that
she experienced pain in her ankles, numbness and tingling in her right arm and fingers,
and pain in her right arm and the right side of her upper back. /d. On this date, Amazon
offered Ms. Arriaga a panel, from which she selected Occupational Health Services for
authorized care of her alleged work injuries. /d. at 26.

       Ms. Arriaga saw a provider2 at Occupational Health Services on July 23, 2014, to
whom she reported that her ankles hurt; she experienced pain in the right side of her
back; and she had numbness, tingling, and muscle spasm in her right arm. (Ex. 1 at 27.)
She described her work activities consistently with the description in the accident reports
she completed at Amazon. /d. She told the provider she saw at Occupational Health
Services that she believed her symptoms related to the work she performed at Amazon.
/d.

       After concluding the examination, the examining provider completed an Amazon
form by marking "x's" in boxes indicating Ms. Arriaga's conditions were not work-
related and she could return to work without restrictions.. (Ex. 1 at 29; Ex. 3 at 1.)
Amazon utilized the opinions in this form to deny Ms. Arriaga's workers' compensation
claim.

       Pursuant toN. P. Keel's referral, Ms. Arriaga saw Dr. Jason C. Eck on July 28,
2014. (Ex. 6 at 1.) Dr. Eck noted that Ms. Arriaga presented with "neck, right arm to the
hand and right upper back pain" that she had experienced since July 3, 2015, while
performing repetitive work at Amazon. /d. Dr. Eck ordered MRis of the cervical and
thoracic spines. /d. at 4.

        On August 6, 2014, Dr. Eck met with Ms. Arriaga to discuss the MRI results. /d.
Dr. Eck interpreted the cervical MRI to reveal "[m]ultilevel mild to moderate cervical
spondylosis, most severe at the C5-6 level with right paracentral disc protrusion, right
lateral recess encroachment and severe right foramina} stenosis." (Ex. 6 at 4-5.) Dr. Eck
recommended C5-6 anterior cervical discectomy fusion surgery to treat Ms. Arriaga's
cervical spinal condition. /d. at 5.

        On the causation issue, Dr. Eck opined, "[p]atient denies any neck pain or arm

2
  The parties submitted limited records, consisting of two pages, documenting Ms. Arriaga's examination at
Occupational Health Services. (Ex. I at 27, 29; Ex. 3.) Ms. Arriaga answered "I don't know" when asked on cross-
examination if she saw Dr. David Schultz at Occupational Health Services. Neither of the documents from
Occupational Health Services definitively identified the provider who saw Ms. Arriaga by name or profession.

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issues or signs of myelopathy prior to July 2014 injury at work. As a result, I believe her
current symptoms are directly relate[ d) to this work injury." (Ex. 6 at 4.) In the "Plan"
section of his report, Dr. Eck wrote the description "(Workers Compensation)" after his
recommendation to perform fusion surgery. ld. at 5.

       During the Expedited Hearing, Ms. Arriaga testified she quit her job at Amazon
because Amazon would not pay the medical bills she incurred for treatment of her alleged
work injuries. Ms. Arriaga went to work for Blossom Designs, a florist, shortly after she
quit her job at Amazon. She testified the florist job is less physically demanding than her
job at Amazon and, as such, it better accommodates the physical restrictions she
experiences due to her injury at Amazon.

      Ms. Arriaga filed a Petition for Benefit Determination (PBD) on September 22,
2014, seeking medical and temporary disability benefits. (T.R. 1.) Following a failed
mediation, the assigned mediator filed a Dispute Certification Notice (DCN) on
November 5, 2014. (T.R. 2.)

                       Findings of Fact and Conclusions of Law

       The Workers' Compensation Law shall not be remedially or liberally construed in
favor of either party but shall be construed fairly, impartially and in accordance with
basic principles of statutory construction favoring neither the employee nor employer.
Tenn. Code Ann. § 50-6-116 (2015). The employee in a workers' compensation claim
has the burden of proof on all essential elements of a claim. Scott v. Integrity Staffing
Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn.
Workers' Comp. App. Bd. Aug. 18, 2015). An employee need not prove every element
of his or her claim by a preponderance of the evidence in order to obtain relief at an
expedited hearing. McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015
TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27,
20 15). At an expedited hearing, an employee has the burden to come forward with
sufficient evidence from which the trial court can determine that the employee is likely to
prevail at a hearing on the merits. ld.

                                        Causation

        Tennessee Code Annotated section 50-6-102(14) (2015) defines what constitutes a
compensable "injury" on or after July 1, 2014. Only "accidental" injuries, in other
words, those injuries "caused by a specific incident or set of incidents arising primarily
out of and in the course and scope of employment and ... identifiable by time and place
of occurrence," entitle an employee to workers' compensation benefits. Tenn. Code Ann.
§ 50-6-102(14)(A) (2015). Subsections (B) and (C) of Tennessee Code Annotated
section 50-6-102(14) (2015) refine the definition of compensable injury by requiring that
the alleged work injury and any disablement or treatment arising in connection therewith

                                             4
"[arose] primarily out of and in the course and scope of employment." Subsections (B)
and (C) further refine the definition by providing that the employee must prove his or her
alleged injury arose primarily out of and in the course and scope of employment by
evidence that the "employment contributed more than fifty percent (50%) in causing the
[alleged injury], considering all causes." Tennessee Code Annotated section 50-6-
102(14)(A) (2015) states that the "arising primarily out of' requirement "be shown to a
reasonable degree of medical certainty."

        At an Expedited Hearing, the employee is not required to prove entitlement to the
requested benefits by a preponderance of the evidence, but must come forward with
sufficient evidence from which this Court can conclude that, at a hearing on the merits,
she will establish entitlement to the requested benefits. See McCord v. Advantage
Human Resourcing, supra. The Court finds Ms. Arriaga came forward with sufficient
evidence during the Expedited Hearing in this claim to recover medical benefits.

       Amazon contends Ms. Arriaga cannot recover because the authorized treating
physician, the provider at Occupational Health Services, opined that her injury is not
work-related. Amazon is correct that Tennessee Code Annotated section 50-6-
102(14)(E) (2015) affords a presumption of correctness to the "opinion of the treating
physician, selected by the employee from the employer's designated panel." (Emphasis
added.) However, the evidence introduced in this claim did not establish that a physician
saw Ms. Arriaga at Occupational Health Services. Neither the panel form (Ex. 1 at 26)
nor the form on which the provider indicated his or her causation opinion (Ex. 1 at 29;
Ex. 3) identified the name or profession of the provider who saw Ms. Arriaga at
Occupational Health Services. Ms. Arriaga testified "I don't know" in response to
Amazon counsel's question whether she saw Dr. David Schultz at Occupational Health
Services. In view of the above, the Court finds Amazon did not establish that the
causation opinion of the provider at Occupational Health Services is entitled to the
presumption of correctness afforded by section 50-6-1 02( 14)(E) (20 15).

       Even had Amazon established that Ms. Arriaga saw a physician at Occupational
Health Services, this Court would hold that Ms. Arriaga successfully rebutted said
provider's opinion that her injuries were not work-related. Tennessee Code Annotated
section 50-6-1 02( 14)(E) (20 15) provides that the presumptively-correct causation opinion
of the authorized treating physician is not determinative if rebutted by a preponderance of
the evidence. In considering whether Ms. Arriaga rebutted the adverse causation opinion
of the provider at Occupational Health Services, the Court considers the following:

          •   Ms. Arriaga testified clearly, affirmatively, and without contradiction that
              her injuries arose while performing the fast-paced, repetitive walking and
              retrieval of items required of her to execute the job of picker at Amazon;

          •   Ms. Arriaga presented the in-court testimony of her husband, Bryan

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               Edgeman, a veteran of two and one-half years as a picker at Amazon. Mr.
               Edgeman testified consistently with Ms. Arriaga regarding the physical
               demands of the picker job at amazon. Mr. Edgeman testified that pickers at
               Amazon must retrieve one thousand items during a ten-hour shift and must
               often retrieve and lift heavy items stored on overhead shelves.

           •   Amazon did not present evidence that challenged Ms. Arrjaga s and Mr.
               Edgeman's descriptions of the physical demands of the picker job;

           •   Ms. Arriaga presented the opinion of Dr. Jason Eck, an orthopedic surgeon,
               who opined that her cervical spinal injury was "[d]irectly related to this
               [July 2014] injury at work." (Ex. 6 at 4.) Dr. Eck rendered his opinion
               after obtaining the benefit of cervical and thoracic MRis· and

           •   Ms. Arriaga presented the records of podiatrist Dr. Ira Kraus, who, while
               not giving a specific causation opinion, limited Ms. Arriaga from
               performing the type of work she performed at Amazon.

       On the basis of the above the Court accepts as credible Ms. Arriaga s testimony
that the trenuous physical demands of her picker job at Amazon caused the pain she
experienced in her feet and back on and after July 3, 2014. The Court further finds that
Dr. Kraus specialty as a podiatrist; Dr. Eck's specialty as an orthopedic surgeon; and Dr.
Eck's access to the results of MRis of Ms. Arriaga's spine put Drs. Kraus and Eck in a
better position than the provider at Occupational Health Services to assess the causation
of Ms. Arriaga s injuries. Accordingly, the Court finds that Ms. Arriaga rebutted the
adverse causati n opinion of the provider at Occupational Health Services and, at a
hearing on the medts of the claim she will likely prevail in establishing her injuries arose
out of and in the course and scope of employment.

                                     Medical Benefits

        Tennessee Code Annotated section 50-6-204(a)(l)(A) (2015) provides that an
employer must provide free of charge to the employee such medical care as is reasonable
and necessary to treat an employee's work injury. Tennessee Code Annotated section
50-6-204(a)(3) A)(i) (20 15) requires that the employer offer an injured employee a panel
of physicians from which to select a physician to provide authorized treatment of a work
InJUry.

       The Court fmds that Amazon failed to comply with the above statutory directives
when it declined to offer Ms. Arriaga a panel upon her report of work injury on July J L,
2015. While Amazon may have genuinely doubted the compensability ofMs. Arriaga' s
claim, those doubts do not insulate it from liability for the treatment it forced Ms. Arriaga
to obtain on her own when, instead of providing her a panel it instructed her to go to

                                              6
unauthorized physicians to establish the compensability of her claim. In McCord v.
Advantage Human Resourcing, supra, at *7, the Workers' Compensation Appeals Board
recognized an employer's right to question the compensability of an employee's report of
a work-related injury. The Appeals Board, however, held that right to question comes
with a risk, stating in its opinion, "an employer who elects to deny a claim runs the risk
that it will be held responsible for medical benefits obtained from a medical provider of
the employee's choice[.]" /d.

      As an adjunct to the Court's fmding that Ms. Arriaga established the
compensability of her injuries, the Court also finds Amazon is liable for the treatment and
diagnostic testing Ms. Arriaga obtained at and under the prescription of N. P. Keel, Dr.
Kraus, and Dr. Eck. Ms. Arriaga and/or said providers shall provide Amazon itemized
charges for the subject treatment to Amazon which Amazon shall promptly process and
pay. Amazon shall promptly authorize and schedule appointments for Ms. Arriaga to see
Drs. Kraus and Eck for on-going treatment.

                              Temporary Disability Benefits

       Tennessee Code Annotated section 50-6-207(2) (2015) establishes an injured
employee's potential right to temporary partial disability benefits. The statute provides
that an employee's compensable temporary partial disability is compensated by a
payment of "sixty-six and two thirds percent (66 2/3%) of the difference between the
average weekly wage of the worker at the time of the injury and the wage the worker is
able to earn in the worker's partially disabled condition."

        Ms. Arriaga testified she quit her job at Amazon and went to work in a florist job
shortly thereafter. She did not offer evidence of the amounts she earned in the florist
position. Under the above circumstances, the Court fmds Ms. Arriaga did not establish
that she will likely prevail at a hearing on the merits that she is entitled to temporary
partial disability benefits.


       IT IS, THEREFORE, ORDERED as follows:

   1. Ms. Arriaga's request for medical benefits is granted. Ms. Arriaga and/or the
      subject providers shall provide Amazon itemized charges for the past treatment
      she received for her compensable injuries, which Amazon shall promptly process
      and pay. Amazon shall promptly authorize and schedule appointments for Ms.
      Arriaga to receive ongoing care by Drs. Kraus and Eck.

   2. Ms. Arriaga's request for temporary partial disability benefits is denied at this
      time.


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   3. This matter is set for a Status Conference on March 17, 2016, at 9:00 a.m.
      Eastern Time.


       ENTERED this the 2nd day      oA=~


                                  Judge Thomas Wyatt
                                  Court of Workers' Compensation Claims


Status Hearing:

       A Status Hearing has been set with Judge Thomas Wyatt, Court of Workers'
Compensation Claims. You must call 855-747-1721, toll-free, or at 615-741-3061 to
participate.

       Please Note: You must caU in on the scheduJed date/time to
participate. Failure to caU in may result in a determination of the issues without
your further participation.

Right to Appeal:

       Tennessee Law allows any party who disagrees with this Expedited Hearing Order
to appeaJ the decision to the Workers' Compensation Appeals Board. To file a Notice of
Appeal you must:

   1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal."

   2. File the completed form with the Court Clerk within seven business days of the
      date the Workers' Compensation Judge entered the Expedited Hearing Order.

   3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.

   4. The appealing party is responsible for payment of a filing fee in the amount of
      $75.00. Within ten calendar days after the filing of a notice of appeal, payment
      must be received by check, money order, or credit card payment. Payments can be
      made in person at any Bureau office or by United States mail, hand-delivery, or
      other delivery service. In the alternative, the appealing party may file an Affidavit
      of lndigency, on a form prescribed by the Bureau, seeking a waiver of the filing
      fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
      of Appeal or must be filed within ten calendar days thereafter. The Appeals Board

                                            8
   will consider the Affidavit of lndigency and issue an Order granting or denying
   the request for a waiver of the filing fee as soon thereafter as is
   practicable. Failure to timely pay the filing fee or file the Affidavit of
   Indigency in accordance with this section shall result in dismissal of the
   appeal.

5. The parties, having the responsibility of ensuring a complete record on appeal,
   may request, from the Court Clerk, the audio recording of the hearing for the
   purpose of having a transcript prepared by a licensed court reporter and filing it
   with the Court Clerk within ten calendar days of the filing of the Expedited
   Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
   the evidence within ten calendar days of the filing of the Expedited Hearing
   Notice of Appeal. The statement of the evidence must convey a complete and
   accurate account of what transpired in the Court of Workers' Compensation
   Claims and must be approved by the workers' compensation judge before the
   record is submitted to the Clerk of the Appeals Board.

6. If the appellant elects to file a position statement in support of the interlocutory
   appeal, the appellant shall file such position statement with the Court Clerk within
   five business days of the expiration of the time to file a transcript or statement of
   the evidence, specifYing the issues presented for review and including any
   argument in support thereof. A party opposing the appeal shall file a response, if
   any, with the Court Clerk within five business days of the filing of the appellant's
   position statement. All position statements pertaining to an appeal of an
   interlocutory order should include: (I) a statement summarizing the facts of the
   case from the evidence admitted during the expedited hearing; (2) a statement
   summarizing the disposition of the case as a result of the expedited hearing; (3) a
   statement of the issue(s) presented for review; and (4) an argument, citing
   appropriate statutes, case law, or other authority.




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                                               APPENDIX

The Court reviewed the following documents and designates these documents as the
Technical Record: 3

    1. Petition for Benefit Determination (PBD), filed September 22, 2014;
    2. Dispute Certification Notice (DCN), filed November 5, 2015;
    3. Notice of Filing Wage Statement, filed March 23, 2015;
    4. Amazon's Motion to Dismiss, filed August 27, 2015;
    5. Order Denying Motion to Dismiss and Requiring Discovery Responses, filed
       September 15, 2015;
    6. Request for Expedited Hearing (REH), filed December 7, 2015; and
    7. Employer's Position Statement for Expedited Hearing, filed December 17, 2015.

The Court reviewed the following documents in reaching its decision and designates the
documents as Exhibits solely for ease of reference by the Court:

    1. Affidavit of Elsa Ariaga with attached exhibits;
    2. First Report of Injury;
    3. Health Care Provider Request for Medical Information form signed by a provider
       at Occupational Health Services;
    4. Records ofSentefMedical Centers, PLLC/Nurse Practitioner Joan Keel;
    5. Request for Expedited Hearing form filed December 7, 2015;
    6. Records of McCallie Physician Office/Dr. Jason C. Eck; and
    7. December 21,2015 note from Dr. Jason C. Eck. (For identification only.)4




3
  The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as
allegations unless established by the evidence.
4
 The Court sustained Amazon's objection to this document on the ground Ms. Arriaga did not file it with the Clerk
or provide it to Amazon's counsel prior to the hearing.

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                           CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Expedited Hearing Order For
Medical Benefit was sent to the following recipients by the following methods of service
on this the 2nd day of February 2016.

Name                       Certified   Via       Via    Service sent to:
                            Mail       Fax      Email
Elsa Arriaga,                                           Littleyankee713(a{gmail.com
Self-Represented                                 X
Employee
Charles E. Pierce,
Employer's Attorney                              X      ce12ierce@mijs.com




                                        Penny Shrum, Clerk of Court
                                        Court of Workers' Compensation Claims
                                        WC.CourtCierk@tn.gov




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