                                                                                   FILED

                                                                                 TN COURT OF
                                                                          ~-ORKIRS'  C ,f R . .SATIO
                                                                                   C1LAD.f5



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

ALICE HUNT,                                   ) Docket No. 2017-05-0720
         Employee,                            )
v.                                            ) State File No. 50419-2017
                                              )
KROGER,                                       ) Judge Robert Durham
              Employer.                       )


              EXPEDITED HEARING ORDER DENYING BENEFITS


       The Court conducted an expedited hearing on April3, 2019, to determine whether
Ms. Hunt is likely to prove that her need for medical care to her left foot arises primarily
out of her fall at work on May 10, 2017. The Court holds Ms. Hunt is not likely to do so
and denies her request for medical benefits.

                                     History of Claim

       This is the second expedited hearing in Ms. Hunt's claim. In the first, the Court
found that Ms. Hunt suffered from hypertension, congestive heart failure, and
uncontrolled diabetes for several years with the diabetes resulting in severe peripheral
neuropathy in both feet. The Court further found that on May 10, 2017, while gathering
shopping carts in the Kroger parking lot, Ms. Hunt became unconscious for unknown
reasons and collapsed to the ground. The Court based this finding on Ms. Hunt's
testimony and the emergency room records that related her admission that day to treat
uncontrolled hypertension, illustrated by her blood pressure spiking at 240/120.

        At the first hearing, Ms. Hunt alleged that her hypertension and the physical stress
of moving the carts on a warm day caused her syncopal episode. She further alleged the
fall from the syncopal episode caused injuries to her left foot that months later resulted in
an ulceration and almost required amputation. The Court held that Ms. Hunt failed to
introduce any medical testimony linking the syncopal episode to her employment or her

                                              1
left-foot condition to the syncopal episode. As a result, the Court denied her request for
benefits on May 3, 2018.

        Several months later, Ms. Hunt began treatment with orthopedist Richard Alvarez.
On her initial visit, Dr. Alvarez noted that Ms. Hunt told him she twisted her left ankle on
December 7, 2016, 1 and May 10,2017, while working at Kroger. On exam, Dr. Alvarez
observed stocking anesthesia and diffuse swelling in her left foot. He also found
significant clawing deformity in her left toes as well as an old fracture of her middle toe.

       Dr. Alvarez concluded that the accident in "January" triggered a diabetic
neuropathic phenomenon in her left foot known as Charcot joint. He recommended she
wear a boot to immobilize the foot and prevent further damage. When Ms. Hunt
returned, Dr. Alvarez ordered x-rays that revealed severe degenerative changes in her left
mid-foot and hypertrophic changes at the base of her toes. At this point, he
recommended Ms. Hunt be fitted for a permanent brace to stabilize her foot.

       Seeking payment for the brace, Ms. Hunt retained counsel and filed this request
for expedited hearing. In preparation, Kroger took Ms. Hunt's deposition. Ms. Hunt
stated that she did not become light-headed or unconscious before she fell on May 10.
Instead, she was attempting to manipulate the shopping carts when her left ankle turned
or "rolled" outward, causing her to fall to the pavement. She stated that she then struck
her head on the pavement and apparently lost consciousness for some time. She admitted
that when she went to the emergency room, she did not say anything about her left foot,
but she attributed it to concern about her blood pressure.

        The parties also deposed Dr. Alvarez regarding causation. Although confused by
the dates, he initially gave his opinion that the incidents in December 2016 and May 2017
"created" the Charcot problem due to Ms. Hunt's statement that she had experienced
swelling since May. In fact, he believed the May incident might have caused the third toe
fracture. 2 He explained that Charcot fractures only manifest themselves in a small
percentage of long-term diabetics who are usually overweight. He further explained that
the condition can cause joints to "fall apart" from even minor injuries. Further, the
condition might not even manifest itself until months after the initial injury. He then
reiterated that, even given her diabetic background, he believed Ms. Hunt's May 10 fall
contributed more than 50% to the injury he was treating.

     On cross-examination, Dr. Alvarez admitted that his opinion would be affected if
Ms. Hunt gave him an inaccurate history. He further admitted that he did not have any
1
 Ms. Hunt asserted she broke her right fourth toe when she ran over it with a shopping cart.
2
 There is no evidence that Ms. Hunt fractured her toe in the December or May incidents or that Ms. Hunt
complained of pain involving that toe.

                                                  2
medical records documenting her previous medical care and that he relied solely on her
statements in determining her history. He did not know that she actually treated for a
right-toe injury in December 2016 as opposed to an injury to her left ankle. He was also
unaware that the medical records for the May 20 17 fall stated it was due to a syncopal
episode and there was no record of any left-foot complaints during the emergency room
visit or Ms. Hunt's hospital stay to treat her uncontrolled hypertension. Finally, Dr.
Alvarez did not realize that Ms. Hunt denied any trauma to her left foot when she treated
for an ulceration requiring surgery in January 2018.

        When confronted with this information, Dr. Alvarez testified that if the history
Ms. Hunt gave him were correct and she suffered trauma to her left foot in May 2017, he
still believed that incident contributed more than fifty percent to her Charcot fracture.
However, if the information presented by Kroger's counsel were accurate, he agreed that
it would change his opinion in Kroger's favor.

        Ms. Hunt also testified at the hearing. Regarding the May 2017 fall, she testified
that, as she manipulated the carts, she distinctly remembered pain from one the carts
striking her left ankle, causing her to fall and hit her head on the pavement. She
explicitly denied being light-headed or passing out before she fell, inferring that the
hospital must have confused her May incident with one in April when she went to the
emergency room complaining of being light-headed at work.

       Kroger then introduced Ms. Hunt's emergency room and hospital records from
May 10 and May 12, 20 17, and January 20 18. The emergency room report noted that
Ms. Hunt had a syncopal episode at Kroger and that she reported "feeling light-headed
while pushing shopping carts and then waking up on the ground." Kroger also made an
exhibit of a note from May 12 stemming from a follow-up appointment for her right toe.
The note does not mention a left-foot injury. The January 2018 records document that
Ms. Hunt denied any trauma to her left foot. Finally, Kroger admitted Ms. Hunt's
affidavit from her first request for expedited hearing stated that on May 10, she was made
to gather shopping carts "in the heat of the day" when she "collapsed." Although she
claimed an eye injury, she did not mention a left-foot injury.

                       Findings of Fact and Conclusions of Law

      Ms. Hunt 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) (2018); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).


                                            3
       The primary issue is causation. Kroger does not dispute that Ms. Hunt suffers
from a serious medical condition in her left foot requiring immediate treatment.
However, it contends that Ms. Hunt did not show she is likely to prove this condition is
causally related to the May 10, 2017 work incident.

       To do that, she 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). 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). Thus, causation must
be established by expert medical testimony, and it must be more than "speculation or
possibility" on the part of the doctor. /d.

        Here, the only medical opinion as to causation is from Dr. Alvarez. He made it
clear that whether he believed the May 10 incident contributed more than fifty percent to
her Charcot fracture hinged on Ms. Hunt's credibility regarding the episode. Thus, the
Court's holding must also rest on whether Ms. Hunt is credible. The Court cannot find
she is on this issue for the reasons below.

       The evidence establishes that, from May 10, 2017, through her first expedited
hearing, Ms. Hunt maintained that she became light-headed and dizzy while pushing
shopping carts and this syncopal episode caused her to fall to the ground. The medical
records, her affidavit, and her testimony from the initial expedited hearing (as
documented in the Court's order) reflect this. Ms. Hunt did not claim any work-related
problems with her left foot until several months later when she developed an ulceration
that required significant medical care. Then, during her deposition, Ms. Hunt adamantly
denied a syncopal episode before falling, but instead claimed that she twisted or "rolled"
her ankle, which caused her to fall and strike her head on the pavement. At this
expedited hearing, Ms. Hunt revised her account again and testified that a shopping cart
wheel hit her left ankle, causing her to fall. She also reiterated her denial that she
experienced any dizziness or light-headedness before she fell.

       Given the evidence before it, the Court cannot find Ms. Hunt credible as to when
and where she might have injured her left foot. Since Dr. Alvarez's opinion required a
credible history, the Court holds Ms. Hunt did not establish she is likely to prevail on the
causation issue at trial.




                                             4
  IT IS, THEREFORE, ORDERED that:

   1. Ms. Hunt's request for workers' compensation benefits is denied at this time.

   2. This matter is set for a Scheduling Hearing/Status Conference on June 14, 2018, at
      2:00 p. m. Central Time. The parties must call 615-253-0010 or toll-free at 866-
      689-9049 to participate in the hearing. Failure to call in may result in a
      determination of the issues without the party's participation.

ENTERED APRIL 15, 2019.




                                       RT V. DURHAM, JUDGE
                                                                             -
                                 Court of Workers' Compensation Claims

                                     APPENDIX
Exhibits:
1.    Medical records and Ms. Hunt's deposition transcript
2.    Dr. Alvarez's medical records
3.    Dr. Alvarez's November 27, 2018 record
4.    Employer's collective exhibit of medical records
5.    Dr. Alvarez's deposition
6.    Medical records from Southern Tennessee Regional Health System
7.    Medical records from Highland Rim Foot and Ankle Clinic
8.    January 19, 2018 discharge report
9.    January 12, 2018 hospital report
10.   January 13, 2018 hospital report
11.   Medical excuse note dated April 21, 201 7
12.   Ms. Hunt's affidavit dated December 12, 2017

Technical Record:
1.    Request for Expedited Hearing
2.    Order Setting Expedited Hearing
3.    Expedited Hearing Denying Benefits dated May 3, 20 18
4.    Kroger's Pre-Hearing Brief
5.    Kroger's Supplemental Response
6.    Ms. Hunt's Pre-Hearing Brief
7.    Kroger's Notice of Intent to Use Medical Records


                                           5
                          CERTIFICATE OF SERVICE

      I certify that a true and correct copy of the Expedited Hearing Order Denying
Benefits was sent to the following recipients by the following methods of service on
Apri115, 2019.

Name                       Mail     Fax       Email   Service sent to:
H. Thomas Parsons           X        X                101 W. Main Street
                                                      Manchester, TN 37355
                                                      931-728-1318
Doug Dooley                                    X      doug.dooley(aJleitnerfinn.com



                                                       ffiu»--- /
                                      PE       RUM, COURT CLERK
                                      Con      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.
 .
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
