                                                                                FILED
                                                                               Jul 06, 2018
                                                                              10:58 AM(CT)
                                                                            TENNESSEE COURT OF
                                                                           WORKERS' COMPENSATION
                                                                                  CLAIMS




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

JEAN BLAKE,                                )   Docket No. 2017-06-0671
         Employee,                         )
v.                                         )
HENDRICKSON USA, LLC,                      )   State File No. 96077-2016
         Employer,                         )
And                                        )
FEDERAL INSURANCE COMPANY,                 )   Judge Joshua Davis Baker
         Carrier.                          )

                   EXPEDITED HEARING ORDER DENYING
                           MEDICAL BENEFITS


       The Court convened an expedited hearing on June 27, 2018, to determine whether
the employer, Hendrickson USA, LLC, should be required to provide Ms. Blake
additional medical treatment under the open medicals clause of a prior settlement.
Though the settlement guarantees her open medical benefits, the Court denies her request
for additional medical treatment at this time.

                                   History of Claim

        This Court approved a settlement agreement in June 2017 between Ms. Blake and
Hendrickson for a February 3, 2016 work injury involving her right shoulder and neck.
In the agreement, Ms. Blake retained the right to continued medical treatment for
“reasonable and necessary authorized future medical expenses which are directly related
to the subject injury.”

       In early October 2017, Ms. Blake returned to her authorized physician, Dr. Kurtis
Kowalski, complaining of right shoulder pain. Dr. Kowalski concluded her shoulder
symptoms were “likely coming down from the neck.” He assessed “persistent right
shoulder pain, probable radicular findings from the cervical spine and cubital tunnel
syndrome.” He further noted that “[one] of her biggest issues right now is the numbness
and tingling down the ulnar aspect of the right hand” but mentioned that this condition
was unrelated to her present workers’ compensation claim. He also recommended “an

                                           1
independent medical examination for a second opinion on both the shoulder and for
causation of the elbow.” Hendrickson did not provide a second opinion.

       Ms. Blake filed a Petition for Benefit Determination (PBD) under the open
medicals clause of her settlement agreement. In the PBD, she requested “an independent
medical exam for shoulder and [concerning] causation [of her] right elbow.” Although
not a part of the settlement, Ms. Blake also described “nerve to elbow and carpal tunnel
syndrome” in addition to her neck and right shoulder injuries as conditions that arose
from the accident.

        After Ms. Blake filed her petition, Hendrickson sent Dr. Kowalski a letter seeking
clarification of his diagnosis and recommendations. In his response, Dr. Kowalski
confirmed Ms. Blake received all medical care necessary for her right shoulder injury.
He also acknowledged telling Ms. Blake that he believed her ulnar neuropathy was
unrelated to her work injury and suggested she seek an independent medical examination
if she disagreed with his opinion.

       Dr. Kowalski deferred to Dr. Christopher Ashley concerning the completeness of
treatment for Ms. Blake’s neck injury. Dr. Ashley recommended cervical diagnostic
facet joint injections to “better understand if this is the origin of her pain and if she may
benefit from some further treatment.” Ms. Blake testified she had the facet injections and
presented no records indicating Dr. Ashley recommended further treatment for her neck.
Teresa Wilson, a claims representative, testified by affidavit that she was “unaware of
any pending or recommended medical care for Ms. Blake.”

       Ms. Blake filed an affidavit where she indicated her treating physician had no
further treatment to offer for her workplace injury. Because of this indication, Ms. Blake
included an alternate request for relief: monetary payment to close medical treatment for
her right shoulder.

       At the hearing, Ms. Blake requested treatment under a “new claim” for “carpal
tunnel syndrome.” She also asked that Hendrickson either pay her for closure of future
medical treatment or provide additional treatment for her neck and right shoulder.
Hendrickson argued Ms. Blake’s “cubital tunnel syndrome” is unrelated to her work
injuries and that authorized physicians have not recommended any treatment that
Hendrickson has not provided for her work-related injuries.1


1
  The parties and the physicians used the terms carpal tunnel, cubital tunnel, and ulnar neuropathy to
describe Ms. Blake’s condition. Although the Court believes the terms were used to describe one
condition, the Court cannot definitely determine this from the record. In any event, as none of the
conditions was the subject of the settlement of Ms. Blake’s workplace injury, the lack of clarity in use of
the terms does not affect the outcome here.

                                                    2
                             Legal Principles and Analysis

       Ms. Blake has the burden of proof but need not prove every element of her claim
by a preponderance of the evidence to receive relief at an expedited hearing. Instead, she
must present sufficient evidence showing she would likely to prevail at a hearing on the
merits. McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, at *7-8, 9 (Mar. 27, 2015). The Court holds she failed to carry her burden.

        Hendrickson is required to provide “medical and surgical treatment . . . as ordered
by the attending physician . . . made reasonably necessary by accident” because Ms.
Blake retained her right to future medical treatment in her settlement agreement. Tenn.
Code Ann. § 50-6-204(a)(1)(A). This Court has authority “to order the employer or the
employer’s insurer to provide specific medical care and treatment, medical services or
medical benefits, or both, to the employee pursuant to a . . . workers’ compensation
settlement agreement[.]” Id. at § 50-6-204 (g)(2)(B). However, the authority to order
further medical treatment does not include authority to require Hendrickson to purchase
Ms. Blake’s right to future medical treatment. The Court can, however, require
Hendrickson to provide future reasonable and necessary medical treatment. To require
the provision of further treatment, the Court must examine whether Ms. Blake’s attending
physicians ordered any treatment “made reasonably necessary” by her February 3, 2016
workplace injury. The Court finds that they did not.

       In his opinion letter, Dr. Kowalski affirmed Ms. Blake received all medical care
appropriate for her shoulder injury. Additionally, he said Ms. Blake’s ulnar neuropathy is
unrelated to her work injuries. While Dr. Kowalski directed Ms. Blake to seek treatment
for the condition, his recommendation was unrelated to treatment for her injuries under
the settlement agreement. Lastly, Dr. Kowalski deferred to Dr. Ashley’s opinion
concerning the need for additional neck treatment, and Ms. Blake presented no evidence
indicating Hendrickson denied any treatment recommended by Dr. Ashley. The Court,
therefore, finds that Ms. Blake is unlikely to prevail at a hearing on the merits in proving
entitlement to additional medical treatment.

       The Court also finds that Ms. Blake filed a claim for treatment under the open-
medicals clause of her settlement agreement rather than a new claim for benefits. The
Court understands Ms. Blake’s argument that employment as a welder for Hendrickson
caused her “cubital tunnel syndrome.” However, the question currently before the Court
is only whether treatment for the cubital tunnel syndrome is covered under the prior
settlement agreement. The Court holds the settlement does not cover treatment for the
condition. However, this holding does not prevent Ms. Blake from filing a new claim
seeking benefits for cubital tunnel syndrome.




                                             3
     It is ORDERED as follows:

     1. Ms. Blake’s request for medical benefits is denied at this time.

     2. The Court sets this claim for a status conference on September 10, 2018, at
        9:30 a.m. (CDT). The Court will convene the status conference via telephone.
        The parties must call the Court’s conference line at (615) 741-2113 or (855)
        874-0474 to participate.


ENTERED ON JULY 6, 2018.



                                        ______________________________________
                                        Judge Joshua Davis Baker
                                        Court of Workers’ Compensation Claims




                                           4
                                     APPENDIX

Exhibits:

   1. Affidavits of Jean Blake filed March 19, 2018 and March 28, 2018
   2. Medical Records
   3. Opinion Letter of Dr. Kurtis Kowalski
   4. Order Approving Workers’ Compensation Settlement Agreement and Workers’
      Compensation Settlement Agreement entered June 6, 2017
   5. Affidavit of Teresa Wilson
   6. Petition for Benefit Determination filed October 30, 2017

Technical Record:

   1.   Petition for Benefit Determination
   2.   Dispute Certification Notice
   3.   Requests for Expedited Hearing
   4.   Employer’s Prehearing Brief/Statement




                                           5
                            CERTIFICATE OF SERVICE

        I certify that a true and correct copy of this Expedited Hearing Order was sent to
the following recipients by the following methods of service on July 6th
                                                                      ___, 2018

 Name                      Certified    Fax       Email   Service sent to:
                            Mail
 Jean Blake,                                       X      Jean_blake@yahoo.com
 Self-represented
 Employee
 Blakeley D. Matthews,                             X      bdmatthews@cclawtn.com
 Employer’s Attorney




                                         ______________________________________
                                         PENNY SHRUM, COURT CLERK
                                         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
