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

Patsy Brumit,                                             )    Docket No.: 2016-06-1080
            Employee,                                     )
v.                                                        )
Vanderbilt University Medical Center,                     )    State File Number: 32943-2015
            Employer,                                     )
and                                                       )
Vanderbilt,                                               )    Judge Kenneth M. Switzer
            Carrier.                                      )


         EXPEDITED HEARING ORDER DENYING REQUESTED RELIEF


       This case came before the undersigned Workers' Compensation Judge on the
Request for Expedited Hearing filed by Patsy Brumit pursuant ·to Tennessee Code
Annotated section 50-6-239 (20 15). The present focus of this case is her entitlement to
medical and temporary disability benefits as a result of an alleged work-related injury to
Ms. Brumit's shoulders. The central legal issue is whether her injuries arose primarily
out of and in the course and scope of her employment. For the reasons set forth below,
the Court holds Ms. Brumit is not likely to prevail at a hearing on the merits that her
injuries arose primarily out of and in the course and scope of her employment and denies
the requested relief at this time. 1

                                              History of Claim

       Ms. Brumit worked for Vanderbilt University Medical Center as a clinical supply
tech since 2004. On April 24, 2015, while stocking and pulling supplies, she pulled an
exceptionally heavy tote weighing approximately fifty or sixty pounds and felt
immediate, sharp pain in both shoulders.

      Vanderbilt initially accepted her claim as compensable, and she selected
Vanderbilt Occupational Health Clinic from a panel of healthcare providers. (Ex. 3.)
1
  A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.

                                                         1
Ms. Brumit testified providers there referred her to a specialist, although neither party
submitted medical records from Occupational Health.

       As for the specialist referral, Ms. Brumit testified that Occupational Health staff
chose Dr. Paul Rummo. Vanderbilt disputed this, offering the testimony of its Claims
Administrator, Jeff Davis, VUMC Risk Management. Mr. Davis said it was "his
understanding" that Ms. Brumit likely selected Dr. Rummo onsite at Occupational
Health. However, he was unable to locate the form memorializing this choice. Instead,
Mr. Davis relied upon a "clinical communication" from staff at Occupational Health to
Vanderbilt's Corporate Health Case Manager service advising that they paneled Ms.
Brumit and she chose "Dr. Rummo/Dr. Singh." (Ex. 5.)

        Dr. Rummo saw Ms. Brumit for the first time on June 3, and continued to see her
until August 13, treating her conservatively. (Ex. 1 at 1-12.) Dr. Rummo ordered an
MRI of her right shoulder, which revealed full thickness and full width tear of her rotator
cuff with retraction and atrophy. !d. at 4. In a July 13 office note, Dr. Rummo described
the injury as "work related," but he also noted, "it is difficulty [sic] to say if injury caused
the rotator cuff tearing on the right since she has atrophy and retraction, which definitely
puts her on the chronic stage[.]" !d. at 6. Ms. Brumit refused surgery at that time, and
Dr. Rummo administered injections and recommended physical therapy, along with
restrictions on her activity. !d.

       As she continued to see Dr. Rummo, he ordered x-rays of the right shoulder,
which showed acromioclavicular osteoarthritis. !d. at 9. In an office note dated August
13, Dr. Rummo wrote, "I do think that her rotator cuff tears are chronic and not acute and
not related to her work injury." !d. at 12. Based on this statement, Vanderbilt denied the
claim and advised Ms. Brumit of the decision by email dated August 18. 2 (Ex. 2 at 3.)

       Following Vanderbilt's denial, Ms. Brumit sought treatment through her private
health insurance with Dr. Charles Cox. He performed multiple surgical procedures on
both her shoulders to repair the rotator cuff tears. (Ex. 1 at 13-45.) In an office note
dated August 20, Dr. Cox wrote, "Although she had no pain prior to her injury, the
atrophy indicates that she did have a rotator cuff tear prior to this. I told her there might
be an acute-on-chronic component." !d. at 15. Ms. Brumit continues treating with Dr.
Cox.

       Ms. Brumit argued that if she had tears prior to the April 2015 incident, she would
have felt pain beforehand, which she did not. She additionally asserted that, because the
incident happened at work, it is work-related, and lifting totes at work for the past twelve
years has "taken a toll on me."

2
 Vanderbilt offered Ms. Brumit a surgical panel for rotator cuff surgery on August 17, 2015, but withdrew that
panel after reviewing Dr. Rummo's August 13 note.

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       Vanderbilt argued that Ms. Brumit failed to provide any medical proof that her
injury arose primarily out of and in the course and scope of employment. Vanderbilt
asserted that, to the contrary, two physicians opined her condition is not work-related.

                       Findings of Fact and Conclusions of Law

        The following legal principles govern this case. In general, Ms. Brumit, as the
employee, bears the burden of proof on all prima facie elements of her workers'
compensation claim. See Tenn. Code Ann. § 50-6-239(c)(6) (2015); see also Buchanan
v. Carlex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *5
(Tenn. Workers' Comp. App. Bd. Sept. 29, 2015). Ms. Brumit need not prove every
element of 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). Rather, at an expedited hearing, she has the burden to come forward with
sufficient evidence from which this Court can determine she is likely to prevail at a
hearing on the merits. /d.

        To be compensable under the Workers' Compensation Law, an injury must arise
primarily out of and in the course and scope of the employment. Tenn. Code Ann. §
50-6-1 02( 14) (20 15). The opinion of the treating physician selected from a panel "shall
be presumed correct on the issue of causation but this presumption shall be rebuttable by
a preponderance of the evidence." Tenn. Code Ann. § 50-6-102(14)(E) (2015). Further,
"[i]t is well established that the mere presence in the workplace at the time an injury
occurs will not result in the injury being considered as arising out of the employment."
Thornton v. RCA Serv. Co., 221 S.W.2d 954, 955 (Tenn. 1949).

       The Court had an opportunity to observe Ms. Brumit and finds she appeared
steady, forthcoming, reasonable and honest, which characteristics, according to the
Tennessee Supreme Court, are indicia of reliability. See Kelly v. Kelly, 445 S.W.3d 685,
694-695 (Tenn. 2014). She credibly testified she felt immediate pain in her shoulders
when attempting to move an extraordinarily heavy tote at work. However, Ms. Brumit's
mere presence at work at the time her injury occurred will not result in this Court
considering it as arising out of employment. Rather, the Court must look to the opinions
of the medical experts.

       Dr. Rummo gave Ms. Brumit the initial impression her condition was work-
related but ultimately concluded her rotator cuff tears are "chronic and not acute and not
related to her work injury." Ms. Brumit offered no countervailing opmwn. She
likewise offered no medical proof of a gradually occurring injury.

      Instead, Ms. Brumit disputed selecting Dr. Rummo from a panel, implicitly

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arguing that if he is not the authorized treating physician, his opinion is not entitled to a
presumption of correctness. With regard to referrals, the Workers' Compensation Law
states, "When necessary, the treating physician selected in accordance with this
subdivision (a)(3)(A) shall make referrals to a specialist physician, surgeon, or
chiropractor and immediately notify the employer." Tenn. Code Ann. § 50-6-
204(a)(3)(A)(ii) (2015).

        Here, Ms. Brumit selected Occupational Health, and according to her testimony,
whomever she saw there referred her to a specialist. Without the medical records, this
Court does not know whether the referral called for an individual by name or merely a
practitioner within that area of expertise. Mr. Davis- also a credible witness- testified
that Vanderbilt honored the referral by providing an onsite panel, although he admitted
on cross-examination that he does not have a copy of the Choice of Physicians form
documenting her selection. 3 Nonetheless, the email from Occupational Health to
Corporate Health Case Manager service substantiates Mr. Davis' assertion. Ms. Brumit
bears the burden of proof on all essential elements of her claim, which would entail
introducing the Occupational Health medical records, which presumably might shed
some light on the exact nature of the referral.

       However, even if Dr. Rummo were not the authorized treating physician,
Vanderbilt correctly observed that both physicians opined Ms. Brumit's injuries are
chronic in nature. In support of that position, Vanderbilt pointed out that her
unauthorized physician, Dr. Cox, appeared to agree that the injury is not work-related
when he opined, "Although she had no pain prior to her injury, the atrophy indicates that
she did have a rotator cuff tear prior to this. I told her there might be an acute-on-chronic
component."

       The Court is cognizant of Ms. Brumit's sincerely-held belief that the work
incident caused her bilateral rotator cuff tears. Nonetheless, our Appeals Board held
that an employee's lay testimony, without corroborative expert testimony, does not
constitute adequate evidence of medical causation. Scott v. Integrity Staffing Solutions,
No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *11-12 (Tenn.
Workers' Comp. App. Bd. Aug. 18, 2015). Notably, in Scott, the Appeals Board
observed, "Judges are not well-suited to second guess a medical expert's treatment,
recommendations, and or diagnoses absent some conflicting medical evidence or some
other countervailing evidence properly admitted into the record." ld. at *8.

       Therefore, as a matter of law, the Court holds Ms. Brumit has not come forward
with sufficient evidence showing she is likely to prevail on the issue of compensability

3
  Vanderbilt's failure to maintain a copy of the completed form is a direct violation of Tennessee Code Annotated
section 50-6-204(a) (3)(D)(i) (2015). Whether that failure is subject to penalty under Tennessee Code Annotated
section 50-6-118(12) (2015) is a question to be addressed by the Bureau's Compliance Program. The Court
observes if it is not cause for a penalty, then the statute is bark without bite.

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at a hearing on the merits. Her requests for medical and temporary disability benefits
are denied at this time.

IT IS, THEREFORE, ORDERED as follows:

   1. Ms. Brumit's claim against Vanderbilt for the requested benefits is denied at this
      time.

   2. This matter is set for an Initial (Scheduling) Hearing on November 21, 2016, at
      8:30a.m. Central time.

       ENTERED this the 4th day of October, 2016.



                                    ge Kenneth M. Switzer
                                 Conrt of Workers' Compensation

Initial (Scheduling) Hearing:

       An Initial (Scheduling) Hearing has been set with Judge Kenneth M. Switzer,
Court of Workers' Compensation Claims. You must call 615-532-9552 or toll-free
at 866-943-0025 to participate in the Initial Hearing.

       Please Note: You must call in on the scheduled date/time to
participate. Failure to call 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 appeal 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

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   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 Indigency, 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
   will consider the Affidavit of Indigency 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: ( 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.




                                         6
                                    APPENDIX

Exhibits:
   1. Medical Records
   2. Affidavit of Patsy Brumit
   3. Form C-42, Employee's Choice of Physician form
   4. MRI films
   5. Case manager email documenting referral, May 5, 2015

Technical record:
   1. Petition for Benefit Determination, June 9, 2016
   2. Ms. Brumit's Pre-Mediation Position Statement, undated
   3. Employer's Position Statement, June 23, 2016
   4. Dispute Certification Notice, July 14, 2016
   5. Request for Expedited Hearing, August 3, 2016
   6. Request for Expedited Hearing, August 15,2016
   7. Vanderbilt's Response in Opposition to Request for Expedited Hearing,
      September 15, 2016



                           CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Expedited Hearing Order
Denying Requested Relief was sent to the following recipients by the following methods
of service on this the 4th day of October, 2016.

Name                    Certified Via Via           Service sent to:
                        Mail      Fax Email
Patsy Brumit,              X                        9069 Highway 49 East,
Self-represented                                    Orlinda, TN 37141
Employee
Nathaniel Cherry,                             X     ncherry@howardtatela w.com
Employer's Counsel
Compliance Program                            X     WCComol iance.orogramraJ.tn,_gov




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

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