                                                                                              FILED
                                                                                            Dec 16, 2019
                                                                                           01:20 PM(CT)
                                                                                            TENNESSEE
                                                                                       WORKERS' COMPENSATION
                                                                                          APPEALS BOARD

             TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                WORKERS’ COMPENSATION APPEALS BOARD

Vera Adiole                                        ) Docket No. 2018-06-0451
                                                   )
v.                                                 ) State File No. 13008-2018
                                                   )
Logan Senior Care, LLC, et al.                     )
                                                   )
                                                   )
Appeal from the Court of Workers’                  )
Compensation Claims                                )
Kenneth M. Switzer, Chief Judge                    )

                                Affirmed and Certified as Final

The employee alleged she injured her low back and/or aggravated a pre-existing arthritic
condition in her right hip as a result of a work-related accident. Following a course of
authorized treatment with two physicians, the employee asserted she was entitled to
additional medical treatment. In response to the employer’s motion for summary
judgment, which was supported by the opinions of three physicians, the employee
submitted the sworn declaration of a physician’s assistant. The trial court granted the
employer’s motion for summary judgment and dismissed the employee’s claim. The
employee has appealed. We affirm the trial court’s decision and certify its order as final.

Judge Timothy W. Conner delivered the opinion of the Appeals Board in which Presiding
Judge Marshall L. Davidson, III, and Judge David F. Hensley joined.

Vera Adiole, Antioch, Tennessee, employee-appellant, pro se

A. Allen Grant, Nashville, Tennessee, for the employer-appellee, Logan Senior Care,
LLC

                                     Memorandum Opinion 1

      Vera Adiole (“Employee”), a resident of Davidson County, Tennessee, worked as
a home healthcare provider for Logan Senior Care, LLC (“Employer”). On January 31,
1
 “The Appeals Board may, in an effort to secure a just and speedy determination of matters on appeal and
with the concurrence of all judges, decide an appeal by an abbreviated order or by memorandum opinion,
whichever the Appeals Board deems appropriate, in cases that are not legally and/or factually novel or
complex.” Appeals Bd. Prac. & Proc. § 1.3.
                                                   1
2018, Employee was assisting a patient in a wheelchair and was attempting to maneuver
the wheelchair onto a curb when she experienced right lower back pain. She reported the
incident to Employer and was provided a panel of physicians from which she selected Dr.
Juris Shibayama. Dr. Shibayama concluded Employee was not a surgical candidate and
referred her to Dr. Jeffrey Hazlewood, a pain management specialist.

       In his March 22, 2018 report, Dr. Hazlewood indicated the lumbar MRI was
“unremarkable,” showing degenerative changes only. He later noted “no objective
evidence of radiculopathy” and concluded there were “rather significant non-
physiological signs.” Dr. Hazlewood diagnosed a lumbar strain injury with myofascial
pain and stated “more likely than not that the employment described event 1/31/2018 is
the cause of the lumbar strain and need for further treatment.” However, in an April 16,
2018 report, Dr. Hazlewood concluded he had done “everything I know to do.” He also
commented that he “cannot justify chronic medications for subjective pain and no
objective findings.” Dr. Hazlewood released Employee from his care but indicated he
would see her as needed.

       Employee returned to Dr. Hazlewood in May 2018 with complaints of pain and
weakness in her right foot and leg. Dr. Hazlewood ordered an EMG of Employee’s right
lower extremity that was interpreted as normal. Employee asserted that Dr. Hazlewood’s
treatment, including the EMG, increased her pain and other symptoms. Dr. Hazlewood
released her again on June 11, 2018, concluding he had nothing else to offer her.

       In July 2018, Employee sought treatment at a walk-in clinic and was referred to
Seven Springs Orthopedics, where she was seen by Caitlyn Clemmer, a physician’s
assistant working under the supervision of Dr. Jason Jones. Ms. Clemmer’s report noted
Employee’s belief that Dr. Hazlewood “vigorously maneuvered” Employee’s back and
caused “further harm.” Ms. Clemmer opined that “it is reasonable to conclude that her
current symptoms may be reasonably referable to the trauma incident described in her
history.” (Emphasis in original.) She also noted “it is at least ‘probable’ that many of her
on-going acute symptoms . . . may be related to the work-related incident.” 2

       In April 2019, Dr. Shibayama opined that Employee’s current low back and right
hip conditions were not more than fifty percent related to the work injury. He also stated
that her ongoing need for medical treatment was not more than fifty percent related to the
work injury.

       Employee was also evaluated by Dr. Tarek Elalayli on April 24, 2019. Dr.
Elalayli noted the MRI findings were “quite benign” and concluded Employee suffered a
low back strain as a result of the work accident. He stated Employee had severe arthritis

2
  Ms. Clemmer’s January 25, 2019 “Sworn Declaration,” as included in the record on appeal, was not
signed by the supervising physician.
                                                2
in her right hip but opined it was a “pre-existing condition and certainly less than 50%
related to her work injury.” Dr. Elalayli did not believe Employee suffered “any type of
acute anatomic changes to her lower back.”

       Thereafter, Employer filed a motion for summary judgment, arguing that
Employee could not present sufficient evidence that her medical conditions or her need
for additional medical treatment arose primarily from the work accident. During the
hearing on Employer’s motion, Employee argued she had presented sufficient evidence
from Ms. Clemmer as to the cause of her medical conditions and need for additional
treatment to survive Employer’s motion for summary judgment. The trial court granted
Employer’s motion and dismissed Employee’s claim. Employee has appealed.

       A motion for summary judgment should be granted when “the pleadings,
depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.” Tenn. R. Civ. P. 56.04. The
burden is on the party pursuing summary judgment to demonstrate both that no genuine
issue of material fact exists and that the moving party is entitled to a judgment as a matter
of law. Martin v. Norfolk S. Ry. Co., 271 S.W.3d 76, 83 (Tenn. 2008). If the moving
party makes a properly supported motion, the burden of production then shifts to the
nonmoving party to demonstrate the existence of a genuine issue of material fact at the
summary judgment stage. Rye v. Women’s Care Ctr. of Memphis, PLLC, 477 S.W.3d
235, 265 (Tenn. 2015).

        In the present case, we agree with the trial court that Employer presented sufficient
evidence that Employee’s medical conditions and current need for treatment did not arise
primarily from the January 31, 2018 work accident. This evidence satisfied Employer’s
burden of production under Rule 56. As a result, the burden shifted to Employee to come
forward with sufficient evidence showing a genuine issue of material fact as to the cause
of her medical conditions and need for additional treatment. However, the sworn
declaration of a physician’s assistant, without more, cannot create a genuine issue of
material fact as to the issue of causation. A physician’s assistant, like a nurse
practitioner, is not qualified to offer an expert opinion on medical causation. See Dorsey
v. Amazon.com, Inc., No. 2015-01-0017, 2015 TN Wrk. Comp. App. Bd. LEXIS 13, at *9
(Tenn. Workers’ Comp. App. Bd. May 14, 2015). Moreover, Ms. Clemmer couched her
opinions in terms such as “may be reasonably referable” and “may be related.” Such
opinions, even if admissible, do not meet the standards to satisfy causation set forth in
Tennessee Code Annotated section 50-6-102(14)(B) (2019). Thus, we conclude
Employee did not come forward with sufficient evidence at the summary judgment stage
to show a genuine issue of material fact as to the issue of medical causation. We
therefore affirm the trial court’s order granting Employer’s motion for summary
judgment and certify it as final.


                                             3
                  TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                    WORKERS’ COMPENSATION APPEALS BOARD

Vera Adiole                                            )     Docket No. 2018-06-0451
                                                       )
v.                                                     )     State File No. 13008-2018
                                                       )
Logan Senior Care, LLC, et al.                         )
                                                       )
                                                       )
Appeal from the Court of Workers’                      )
Compensation Claims                                    )
Kenneth M. Switzer, Chief Judge                        )

                                   CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced
case was sent to the following recipients by the following methods of service on this the 16th day
of December, 2019.


 Name                              Certified   First Class   Via   Via     Sent to:
                                   Mail        Mail          Fax   Email
 Vera Adiole                                       X                 X     850 Richards Road, Apt. R6
                                                                           Antioch, TN 37013
                                                                           vadiole712@icloud.com
 A. Allen Grant                                                      X     agrant@eraclides.com
                                                                           mjohnson@eraclides.com
 Kenneth M. Switzer, Chief Judge                                     X     Via Electronic Mail
 Penny Shrum, Clerk, Court of                                        X     penny.patterson-shrum@tn.gov
 Workers’ Compensation Claims




Jeanette Baird
Deputy Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-0064
Electronic Mail: WCAppeals.Clerk@tn.gov
