                                                                                      FILED
                                                                                   May 03, 2018
                                                                                   07:51 AM(CT)
                                                                                TENNESSEE COURT OF
                                                                               WORKERS' COMPENSATION
                                                                                      CLAIMS




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

Donna Bedwell,                                  )   Docket No. 2017-06-1826
            Employee,                           )
v.                                              )
Richland Country Club,                          )   State File No. 78932-2016
            Employer,                           )
And                                             )
Employers Insurance, LLC,                       )   Judge Kenneth M. Switzer
           Carrier.                             )


        EXPEDITED HEARING ORDER DENYING REQUESTED RELIEF
                 (ON-THE-RECORD DETERMINATION)


        Donna Bedwell filed a Request for Expedited Hearing seeking additional medical
and temporary disability benefits for her September 2016 work-related accident at
Richland Country Club. The Court determined it would make an on-the-record
determination rather than conduct an in-person evidentiary hearing after reviewing the
file and holding it needed no additional information to determine whether Ms. Bedwell is
likely to prevail at a hearing on the merits. The Court sent a docketing notice giving the
parties seven business days to object to any of the contents of the record or to supplement
it. Neither party responded to the docketing notice. The case now comes before the
Court on May 2, 2018, on the issue of whether Ms. Bedwell's current condition relates to
her work accident. Because the medical evidence does not support her claim, the Court
denies the requested relief.

                                      History of Claim

      Ms. Bedwell worked as a host at Richland Country Club. In September 2016, a
heavy wooden door struck the left side of her head. 1 Richland offered a panel, from
which she chose U.S. Health Works as the authorized treating physician. Ms. Bedwell
1
 The Petition for Benefit Determination listed a date of injury of September 29, 2016, while Ms.
Bedwell's Affidavit stated that she became injured on September 28,2016.
saw Dr. Paul Justice, giving a history of four previous head injuries in addition to the
door striking her head. Dr. Justice referred her to a neurologist and ordered an MRI,
which she never underwent.

        Ms. Bedwell next received authorized treatment from neurologist Dr. Steven
Graham; Richland submitted no evidence regarding whether she chose him from a panel.
At the first visit on October 28, Dr. Graham diagnosed a "mild grade 1 concussion with
persistent headache and neck pain, and mild disequilibrium." Ms. Bedwell reported
improvement at the next visit on November 17. Dr. Graham noted no significant exam
findings and wrote, "I have not recommended any additional evaluations or treatments."
He recommended a follow-up in one month, predicting that she would reach maximum
medical improvement at that time with zero-percent impairment. At the December 29
visit, he noted:

       [P]redominantly functional complaints, which do not fit with history of
       mild concussion several weeks ago[,] which was getting better
       spontaneously. Underlying stress appears to be the main driving force of
       her subjective symptoms. . . . 1 have not recommended any additional
       medications. No additional work restrictions or limitations were indicated.
       Follow-up as needed.

Records dated December 30 contain the same notation, verbatim, with the additional
information: "Neurologically, she can be placed at maximum medical improvement as of
today, with no neurological impairment." According to Ms. Bedwell, Dr. Graham
declined to order MRis and/or CT scans despite her three requests that he do so.

       After Dr. Graham released her, Ms. Bedwell was injured in a car accident on
February 9, 2017. She received emergency care at Vanderbilt, where, according to her,
providers "discovered that I had endured a blunt force trauma to the head[,] which had
caused me to endure an occipital condyle fracture[,] which was caused before the
accident." Notes from Ms. Bedwell's post-accident treatment included a February 9
report of CT scan of her cervical spine, which read, "suspect small right occipital condyle
avulsion fracture." However, a February 11 report stated, "Suspected occipital condyle
avulsion is not visualized on this exam."

      Several months after the accident, Ms. Bedwell returned to Dr. Graham.           His
August 10 notes stated:

      [N]umerous somatic symptoms, with no specific neuropathological
      abnormalities of the brain or spinal cord present. She had recovered very
      well from her mild concussion[,] which occurred in September 2016, and
      the ongoing somatic symptoms are not secondary to the mild concussion[,]
      which occurred 11 months ago. Ongoing concurrent severe depression can

                                             2
        clearly result in significant somatic complaints. 2

Dr. Graham recommended no further neurological evaluations or treatment.

       That same day, Richland sent Dr. Graham a letter asking about Ms. Bedwell's
condition. He responded that she suffered a "mild concussion" in September 2016,
which resolved. He recommended no additional treatment and attributed the major cause
of her current condition to "non-neurological somatoform disorder." The letter asked,
"Do you feel the employee's current symptoms, occipital condyle fracture[,] are more
than 51% related/caused by the alleged job accident of 09/28/16?" 3 Dr. Graham checked
"no." He concluded that she had "no neurological restrictions or limitations."

                           Findings of Fact and Conclusions of Law

      Ms. Bedwell need not prove every element of her claim by a preponderance of the
evidence to obtain relief at an expedited hearing. Instead, she must present sufficient
evidence that she is likely to prevail at a hearing on the merits. See Tenn. Code Ann. §
50-6-239(d)(l) (2017); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

       Ms. Bedwell must additionally show that she suffered an injury as defined in the
Workers' Compensation Law. An "injury" means an injury by accident "arising
primarily out of and in the course and scope of employment[.]" Further, it must be
shown to a reasonable degree of medical certainty that the employment contributed more
than fifty percent in causing the need for medical treatment, considering all causes. See
generally Tenn. Code Ann. § 50-6-102(14).

       Here, Richland does not dispute that a door struck Ms. Bedwell's head, but it
disputes whether her current need for treatment relates to that incident. Richland relies
on Dr. Graham's statements, in both his treatment notes and the causation letter,
concluding that she suffered a mild concussion that resolved, and that Ms. Bedwell's
current symptoms are somatic and more likely related to stress and depression.
Importantly, Ms. Bedwell introduced no medical evidence to rebut these opinions. Ms.
Bedwell's belief that she requires additional treatment cannot serve as the sole basis of a

2
  "Somatic symptom disorder involves having a significant focus on physical symptoms- such as pain
or fatigue - to the point that it causes major emotional distress and problems functioning. You may or
may not have another diagnosed medical condition associated with these symptoms." MAYO CLINIC,
https://www.mayoclinic.org/diseases-conditions/somatic-symptom-disorder/symptoms-causes/syc-
20377776 (Last visited May 3, 2018).

3
  The letter misstates the correct legal standard. As explained in the Findings of Fact and Conclusions of
Law, it must be shown to a reasonable degree of medical certainty that the employment contributed "more
thanfifty percent"' in causing the need for medical treatment, considering all causes. (Emphasis added.)

                                                    3
court order granting her requested medical benefits. See Tenn. Code Ann. § 50-6-
102( 14 )(A), (C) requiring expert medical proof of causation.

        Ms. Bedwell essentially argued in her position statement that she suffered an
occipital condyle fracture at work that went undiagnosed because Dr. Graham refused to
order MRis and/or CT scans. She relied on the Vanderbilt records to support her
assertion. The Court disagrees, since the Vanderbilt records do not state that the suspect
occipital condyle fracture pre-dated the auto accident and/or stemmed from her work
injury. In fact, the records later ruled out the fracture's very existence.

       Notably, the Court is troubled by two aspects of Dr. Graham's treatment. First,
the records contain entries from December 29 and 30 that appear identical except for the
addition on the second date stating that Ms. Bedwell reached maximum medical
improvement and suffered no neurological impairment. The Court is uncertain whether
Dr. Graham actually saw Ms. Bedwell on December 30; if not, the Court finds the
additional notation curious regarding who or what prompted him to expand his notes.
Second, Richland did not introduce proof that Ms. Bedwell selected Dr. Graham from a
panel under Tennessee Code Annotated section 50-6-204(a)(3)(A)(ii). Therefore, his
causation opinion is not presumed correct; see Tenn. Code Ann.§ 50-6-102(14)(E).

        Regardless, the Appeals Board addressed a somewhat similar factual scenario in
Berdnik v. Fairfield Glade Community Club, 2017 TN Wrk. Comp. App. Bd. LEXIS 32
(May 18, 20 17). In that case, the employer did not provide a panel but rather sent the
employee to an independent medical examiner, who concluded the injury was not work-
related. The Board cautioned employers not to "skirt their obligations under section 50-
6-204." Id. at *16. The Board nonetheless concluded:

       The only medical opinion addressing causation contained in the record is
       contrary to Employee's position. Absent countervailing medical proof, this
       opinion must carry the day, as there is no authority to award benefits in the
       face of undisputed medical evidence that an injury did not arise primarily
       out of the employment. To hold otherwise would ignore the parameters for
       awarding benefits set by the legislature and would effectively broaden
       workers' compensation coverage to general health insurance.

ld. Here, in spite ofthe Court's previous concerns, it cannot substitute its own judgment
for that of the only medical professional to offer an opinion. See Lurz v. Int'l Paper Co.,
2018 TN Wrk. Comp. App. Bd. LEXIS 8, at *16 (Feb. 14, 2018)("[J]udges are not well-
suited to make independent medical determinations without expert medical testimony
supporting such a determination."). Therefore, the Court holds Ms. Bedwell is not likely
to prevail at a hearing on the merits regarding her requested medical benefits.

       As for Ms. Bedwell's request for temporary disability benefits, to receive them she

                                            4
must prove (1) total disability from working as the result of a compensable injury; (2) a
causal connection between the injury and the inability to work; and (3) the duration of the
period of disability. Shepherdv. Haren Constr. Co., Inc., 2016 TN Wrk. Comp. App. Bd.
LEXIS 15, at * 13 (Mar. 30, 2016). Again, without medical proof of Ms. Bedwell's
alleged total disability resulting from a work injury and the duration of that disability, the
Court is unable hold that she would prevail at a hearing on the merits on her claim for
temporary disability benefits.

IT IS, THEREFORE, ORDERED as follows :

   1. Ms. Bedwell's requests for medical and temporary disability benefits are denied at
      this time.

   2. This matter is set for a Scheduling Hearing on July 2, 2018, at 9:00 a.m. Central.
      You must call 615-532-9552 or toll-free at 866-943-0025 to participate in the
      Hearing. Failure to call may result in a determination of the issues without your
      participation.

       ENTERED May 3, 2018.




                                    Court of Workers' Compensaf




                                              5
                                     APPENDIX

The Court reviewed the following documents:

   1. Affidavit
   2. C-23 Notice ofDenial
   3. Composite medical records
   4. C-27 Notice of Controversy
   5. Wage statement
   6. Pay stubs
   7. Work schedules
   8. Petition for Benefit Determination
   9. Employee's Pre-Mediation Statements
   10. Employer's Pre-Mediation Statement and attachments
   11. Dispute Certification Notice
   12. Request for Expedited Hearing
   13. Employer's Objection to Request for Expedited Hearing
   14. Order Setting Expedited Hearing
   15. Employer's Pre-Hearing Statement
   16.Employer's Witness and Exhibit List
   17. Order (Docketing Notice).


                           CERTIFICATE OF SERVICE

      I certify that a copy of this Order was sent to these recipients by the following
methods of service on May 3, 2018.

Name                       Certified Via       Via     Service sent to:
                           Mail      Fax       Email
Donna Bedwell, self-           X                 X     Donnabwell@gmail.com; 1903
represented Employee                                   Enclave Circle ~ Nashville TN
                                                       37211
Richard Clark,                                   X     RClark@eraclides.com
Employer's Counsel




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


                                           6
                           Expedited Hearing Order Right to Appeal:

     If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:

   1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
      form with the Clerk of the Court of Workers’ Compensation Claims within seven
      business days of the date the expedited hearing order was filed. When filing the Notice
      of Appeal, you must serve a copy upon all parties.

   2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
      calendar days after filing of the Notice of Appeal. Payments can be made in-person at
      any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
      alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
      website or any Bureau office) seeking a waiver of the fee. You must file the fully-
      completed Affidavit of Indigency within ten calendar days of filing the Notice of
      Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
      result in dismissal of the appeal.

   3. You bear the responsibility of ensuring a complete record on appeal. You may request
      from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
      the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
      it with the court clerk within ten business days of the filing the Notice of
      Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
      parties within ten business days of the filing of the Notice of Appeal. The statement of
      the evidence must convey a complete and accurate account of the hearing. The Workers’
      Compensation Judge must approve the statement before the record is submitted to the
      Appeals Board. If the Appeals Board is called upon to review testimony or other proof
      concerning factual matters, the absence of a transcript or statement of the evidence can be
      a significant obstacle to meaningful appellate review.

   4. If you wish to file a position statement, you must file it with the court clerk within ten
      business days after the deadline to file a transcript or statement of the evidence. The
      party opposing the appeal may file a response with the court clerk within ten business
      days after you file your position statement. All position statements should include: (1) 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.




For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
   Filed Date Stamp Here                     EXPEDITED HEARING NOTICE OF APPEAL
                                                  Tennessee Division of Workers' Compensation
                                                                                                     Docket#: - - - -- -- - --
                                                      www.tn.go v/labor-wfd/wcomp.shtm l
                                                                                                     State File #/YR: - - -- - - --
                                                             wc.courtclerk@tn.gov
                                                                1-800-332-2667                       RFA#: _ _ _ _ _ _ _ _____ _

                                                                                                     Date of Injury: - - - -- - - - -
                                                                                                     SSN: _______ _ ______ __




                      Employee


                      Employer and Carrier

          Notice
          Noticeisg~enthat _ _ _ _ _ _ _~~--~~~~---~~~--------~
                                    [List name(s) of all appealing party(ies) on separate sheet if necessary]

          appeals the order(s) of the Court of Workers' Compensation Claims at _ __

           -~~~-----~~~~~~~~-to the Workers' Compensation Appeals Board .
           [List the date(s) the order(s) was filed in the court clerk's office]

          Judge___________________________________________

          Statement of the Issues
          Provide a short and plain statement of the issues on appeal or basis for relief on appeal:




          Additional Information
          Type of Case [Check the most appropriate item]

                             D   Temporary disability benefits
                             D   Medical benefits for current injury
                             D   Medical benefits under prior order issued by the Court

          List of Parties
          Appellant (Requesting Party): _____________ .A t Hearing: DEmployer DEmployee
          Address:. _______________________ ______________ ___________

          Party's Phone:.____________________________ Email: _________________________

          Attorney's Name:________________________________ ___ BPR#: - - - - - - - - - - - -

          Attorney's Address:. _ _ _ _ _~~-~~~~----~~----                                             Phone:
          Attorney's City, State & Zip code: _____________________ ___________ _ _ _ __ _
          Attorney's Email :_ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ __ _ _ _ __ _ _ _ _ _ _ __

                                        *Attach an additional sheet for each additional Appellant*

LB-1099    rev.4/15                                        Page 1 of 2                                                     RDA 11082
Employee Name: - - - -- - - -- - - -              SF#: _ _ _ _ __ _ _ _ _ DO l: _ __             _ __




Aopellee(s)
Appellee (Opposing Party): _ _ _ _ _ _ _ _.At Hearing: OEmployer DEmployee



Appellee's Address: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Appellee's Phone:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _.Email:_ _ _ _ _ _ __ _ _ _ _ _ __

Attorney's Name:_ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ BPR#: - - - - - - - -
Attorney's Address:._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Phone:

Attorney's City, State & Zip code: - - - -- - - - - - - - - - - - - - - - - - - -- -
Attorney's Email:._ _ _ _ __ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

                       * Attach an additional sheet for each additional Appellee *


CERTIFICATE OF SERVICE

I,                                             certify that I have forwarded a true and exact copy of this
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules of
Board of Workers' Compensation Appeals on this the              day of__, 20_ .



[Signature of appellant or attorney for appellant]



LB-1099   rev.4/1S                                Page 2 of 2                              RDA 11082
 .
ll                                                                                                                 .I




                                    Tennessee Bureau of Workers' Compensation
                                           220 French Landing Drive, 1-B
                                             Nashville, TN 37243-1002
                                                   800-332-2667


                                               AFFIDAVIT OF INDIGENCY


     I,                                                , having been duly sworn according to law, make oath that
     because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
     waived. The following facts support my poverty.

     1. Full Name:_ _ _ _ _ _ _ _ _ _ __                      2. Address: - - - - - - - - - - - - -

     3. Telephone Number: - - - - - - - - -                   4. Date of Birth: - - - - - - - - - - -

     5. Names and Ages of All Dependents:

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

             - - - - - - - - - - - - - - -- -                 Relationship: - - - - - - - - - - - --

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

     6. I am employed by: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , -

             My employer's address is: - - - - - - - - - - - - - - - - - - - - - - - - -

             My employer's phone number is: - - - - - - - - - - - - - - - - - - - - - - -

     7. My present monthly household income, after federal income and social security taxes are deducted, is:

     $ _ _ _ _ _ _ ___

     8. I receive or expect to receive money from the following sources:

             AFDC            $            per month           beginning
             SSI             $            per month           beginning
             Retirement      $            per month           beginning
             Disability      $            per month           beginning
             Unemployment $               per month           beginning
             Worker's Camp.$              per month           beginning
             Other           $            per month           beginning



     LB-1108 (REV 11/15)                                                                               RDA 11082
9. My expenses are: ' ;                                                     !•
                                                                             '

        Rent/House Payment $              per month     Medical/Dental $            per month

        Groceries         $         per month           Telephone       $           per month
        Electricity       $         per month           School Supplies $           per month
        Water             $         per month           Clothing        $           per month
        Gas               $         per month           Child Care      $           per month
        Transportation $            per month           Child Support   $           per month
        Car               $          per month
        Other             $         per month (describe:


10. Assets:

        Automobile              $ _ _ __ _
                                                        (FMV) -    - - - - -- - - -
        Checking/Savings Acct. $ _ _ _ __
        House                   $ _ _ _ __
                                                        (FMV) - - -- - - -- - -
              )
        Other                   $ _ _ _ __              Describe:_ _ _ __ _ _ _ _ __


11. My debts are:

        Amount Owed                     To Whom




I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.




APPELLANT



Sworn and subscribed before me, a notary public, this

_ _ _ dayof _____________ ,20____




NOTARY PUBLIC

My Commission Expires:_ _ _ _ _ __ _




LB-1108 (REV 11/15)                                                                         RDA 11082
