                                                                                            FILED
                                                                                          Oct 07, 2019
                                                                                          08:04 AM(CT)
                                                                                      TENNESSEE COURT OF
                                                                                     WORKERS' COMPENSATION
                                                                                            CLAIMS




                TENNESSE BUREAU OF WORKERS' COMPENSATION
              IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                               AT KNOXVILLE

Elman Gonzales,                                          )   Docket No.: 2019-03-0360
          Employee,                                      )
v.                                                       )
Smoky Mountain Resort Services,                          )   State File No.: 65055-2017
            Employer,                                    )
And                                                      )
Ohio Security Insurance Co.,                             )   Judge Thomas Wyatt
             Carrier.                                    )


                  EXPEDITED HEARING ORDER DENYING BENEFITS


       This case came before the Court on October 2, 2019, for an Expedited Hearing.
The issue was whether Elman Gonzalez produced sufficient evidence to establish that his
hernias arose primarily out of and in the course and scope of employment. For the
reasons below, the Court holds that Mr. Gonzalez did not prove that his hernias are work-
related and is not entitled to benefits at this time.

                                           History of Claim

        Mr. Gonzalez worked maintenance at Smoky Mountain Resort Services. He
testified that on August 22, 2017, he experienced disabling pain from his belly button into
                                                                                     1
his groin when he and two co-workers lifted a heavy dumpster to reposition it. Mr.
Gonzalez had no physical restrictions or similar pain before he lifted the dumpster.

       Mr. Gonzalez reported his injury to Smoky Mountain and underwent emergency
treatment. Doctors placed him off work for several weeks. He returned to Smoky
Mountain in November 2017 and worked intermittently until December 2018, when
allegedly he could no longer work due to pain from his work injury.



1
    The co-workers corroborated Mr. Gonzalez's account of the injury.

                                                     1
       During the hearing, Mr. Gonzalez focused on his treatment problems. 2 He
claimed the emergency room doctor diagnosed a hernia and prescribed surgery. He
selected Dr. Roy Frank Roberts at University General Surgeons from a panel; however,
he saw providers at UGS other than Dr. Roberts at first. Mr. Gonzalez testified that these
providers attributed his pain to other sources. Mr. Gonzalez stated he eventually saw Dr.
Roberts, who was angry that he was not told that he had an umbilical hernia. He testified
that Dr. Roberts told him the hernia was inoperable but would probably require surgery in
three to four months.

       The UGS records indicate on his initial visit that a physician noted he did not fmd
a mass when he palpated the area where Mr. Gonzalez reported pain. Later, another UGS
physician reviewed a CT scan of Mr. Gonzalez's abdomen, which showed a tiny
umbilical hernia that was unchanged from a CT scan performed a few days after the
injury. That physician could not palpate a mass confmning the CT fmding and wrote that
the hernia was not the cause of Mr. Gonzalez's reported pain. He diagnosed a rectus
muscle strain.

        The UGS notes documented that Mr. Gonzalez saw a nurse practitioner on
October 5. She concurred with previous diagnoses and released him to return to work
with restrictions. Mr. Gonzalez returned to UGS two weeks later reporting sharp pain on
resuming work, especially lifting. The physician he saw again noted that he could not
digitally locate a hernia.

       Around this time, Mr. Gonzalez began receiving treatment on his own from
Mountain Hope Good Shepherd Medical Clinic. On November 2, 2017, he saw a
physician's assistant, who noted Mr. Gonzalez's complaints of abdominal pain. The
provider documented his suspicion of "possible umbilical hernia with noted left inguinal
hernia" and recommended that Mr. Gonzalez see a surgeon. He returned two weeks later
with the same complaints. The physician's assistant noted that Mr. Gonzalez experienced
extreme pain with deep palpation. However, the physician noted only mild pain of
unknown cause when he examined Mr. Gonzalez. He stated that Mr. Gonzalez should try
losing weight to alleviate his pain before considering surgery.

      Mr. Gonzalez saw the physicians at Mountain Hope often over the next fifteen
months, reporting continuing abdominal and groin pain. The records document
recommendations for surgical consultations but do not contain any opinion addressing
whether his conditions arose primarily out of and in the course and scope of his
employment.




2
 Although the Dispute Certification Notice certified temporary disability issues for adjudication, Mr.
Gonzalez stated he only wanted to get treatment so he could get well and return to work.

                                                  2
        Mr. Gonzalez's next documented medical treatment for abdominal pain occurred
January 3, 2019, at the LeConte Medical Center emergency room. He reported
abdominal pain and asked for a "recheck" of his umbilical hernia. He was placed on a
no-lifting restriction and discharged to see a physician for follow-up care.

       Mr. Gonzalez returned to UGS on February 7 for authorized treatment. He
reported worsening pain that reached a significant level when he stood or exerted himself.
Dr. Roy Frank Roberts examined Mr. Gonzalez and noted he was very tender on
palpation. He also identified a bulge in his left groin, which he diagnosed as an inguinal
hernia needing surgical repair.

       On March 7, Mr. Gonzalez met with Dr. Roberts to discuss causation of his
inguinal hernia. Dr. Roberts informed Mr. Gonzalez that he could not causally connect
the inguinal hernia to work because of the fifteen-month gap between his last treatment
for the umbilical hernia and the visit where the inguinal hernia was identified. Dr.
Roberts also told Mr. Gonzalez that numerous non-work-related factors can cause
inguinal hernias. Dr. Roberts's report indicated he left the room when Mr. Gonzalez
accused him of lying. 3

                           Findings of Fact and Conclusions of Law

       At an expedited hearing, Mr. Gonzalez must provide sufficient evidence from
which the Court can detennine he is 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). Resolution of the present issue turns on whether Mr. Gonzalez proved
that he suffered work-related hernias.

       Generally, an injury "arises primarily out of and in the course and scope of
employment" only if it has been shown by a preponderance of the evidence that the
employment contributed more than fifty percent (50%) in causing the injury, considering
all causes." Tenn. Code Ann. § 50-6-102(14)(B). Establishment of causation requires
medical expert opinion "[e]xcept in the most obvious, simple and routine cases." Willis
v. All Staff, No. M2016-01143-SC-R3-WC, 2017 Tenn. LEXIS 455, at *13 (Workers'
Comp. Panel Aug. 3, 2017).

      The opinion of the treating physician selected by the employee from the
employer's panel of physicians is presumed correct on the issue of causation, but this
presumption is rebuttable by a preponderance of the evidence. Tenn. Code Ann. § 50-6-
102(14)(E).

3
 Mr. Gonzalez testified he saw Dr. Roberts because Dr. Roberts had previously scheduled surgery that
was cancelled after Mr. Gonzalez arrived at the hospital. He stated that Dr. Roberts called the police to
escort him from the premises on March 7.

                                                   3
       By statute, establishing causation of hernias requires medical expert opinion of the
following:

       (1) There was an injury resulting in hernia or rupture;
       (2) the hernia or rupture appeared suddenly;
       (3) it was accompanied by pain;
       (4) the hernia or rupture immediately followed the accident; and
       (5) the hernia or rupture did not exist prior to the accident for which compensation
           is claimed.

See Tenn. Code Ann. § 50-6-212(a).

        Applying the law to these facts, the Court notes the fervency with which Mr.
Gonzalez testified that his hernias occurred immediately upon lifting the dumpster at
work. However, he cannot establish his right to benefits without supporting medical
evidence. The medical records admitted into evidence contain no expert opinion that
either Mr. Gonzalez's umbilical or inguinal hernias arose primarily out of and in the
course and scope of employment. Only Dr. Roberts gave a causation opinion, which he
limited to the inguinal hernia. He stated he could not relate it to Mr. Gonzalez's work
activities for, among other reasons, he did not identify the hernia until many months after
Mr. Gonzalez's reported injury. The records do show that Mr. Gonzalez was also
diagnosed with a tiny umbilical hernia, but a physician stated that he did not believe the
umbilical hernia accounted for Mr. Gonzalez's pain.

       In view of the above, the Court holds that Mr. Gonzalez failed to present sufficient
evidence to show that he will likely prevail at a hearing on the merits in establishing that
his hernias resulted from a work injury. Therefore, the Court denies his requested
benefits.




                                             4
      IT IS, THEREFORE, ORDERED as follows:

   1. The Court denies Mr. Gonzalez's claim for medical benefits.

   2. The Court schedules a Status Conference at 9:30 a.m. Eastern Time on January
      8, 2020. You must call 855-747-1721 (toll-free) or 615-741-3061 to participate.
      Failure to call might result in a determination of the issues without your further
      participation.

   ENTERED October 07, 2019.




                                 Judge Thomas Wyatt
                                 Court of Workers' Compensation Claims

                                 APPENDIX

Exhibits: The Court admitted the following exhibits into evidence and considered them
unless indicated otherwise:

   1. Affidavit of Elman Gonzalez
   2. Notice of Denial
   3. Affidavit of Cerise Knight with attachments (Wage Statement and attendance
       records)
   4. Declaration of Joseph Bates with attachments (signed panel forms)
   5. Records ofUniversity General Surgeons
   6. Records of Mountain Hope Good Shepherd Medical Clinic
   7. Records ofLeConte Medical Center (January 3, 2019)
   8. Records ofLe Conte Medical Center (August 24, 2017, January 11, 2019)
   9. Records ofMountain Hope Good Shepherd Medical Clinic (November 13, 2017)
   10.Additional records of University General Surgeon-for identification purposes
       only (the Court sustained Smoky Mountain's objection that the records were not
       filed before the hearing)
   11. Additional records of Mountain Hope Good Shepherd Medical Clinic-for
       identification purposes only (the Court sustained Smoky Mountain's objection that
       the records were not filed before the hearing)

Technical record: The Court considered the following:

   I. Petition for Benefit Determination
   2. Dispute Certification Notice

                                           5
  3. Request for Expedited Hearing
  4. Notice of Expedited Hearing
  5. Motion to Amend Name ofEmployer
  6. Order amending name of Employer
  7. Order requiring employer to provide interpreter
  8. Employer Witness List
  9. Employer Position Statement
  10. Notice of Filing Declaration of Joseph Bates
  11 . Notice of Filing Affidavit of Cerise Knight

                          CERTIFICATE OF SERVICE

     I certify that a copy of the Order was sent as indicated on October 7, 2019.

        Name             Certified   Email     Service sent to:
                         and U.S.
                           Mail
Elman Gonzales              X          X       Msalgado509@gmail.com
Employee                                       1226 Fair Valley Lane
                                               Sevierville, TN 37876

Eric Shen                              X       Eric.shen@libertymutual.com
Employer's Attorney                            Shelby .hale@libertymutual. com
                                               Effie.cozart@libertvmutual.com




                                        Penny Shrum, Court Clerk
                                        Wc.courtclerk@tn.gov




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