                                                                                  FILED
                                                                                 Oct 01, 2019
                                                                                07:15 AM(CT)
                                                                              TENNESSEE COURT OF
                                                                             WORKERS' COMPENSATION
                                                                                    CLAIMS




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

Vera Adiole,                                )    Docket No. 2018-06-0451
               Employee,                    )
v.                                          )
Logan Senior Care, LLC,                     )    State File No. 13008-2018
           Employer,                        )
And                                         )
Benchmark Ins. Co.,                         )    Judge Kenneth M. Switzer
           Carrier.


     COMPENSATION HEARING ORDER GRANTING SUMMARY JUDGMENT


       This case came before the Court on September 30, 2019, on Logan Senior Care's
Motion for Summary Judgment. The issue is whether Logan is entitled to summary
judgment on grounds that Ms. Adiole's current need for treatment did not arise primarily
out of and in the course and scope of her employment, an essential element of her claim.
For the reasons below, the Court grants the motion.

                                     Claim History
       Ms. Adiole alleged she suffered a work-related injury. Logan accepted the claim,
and Ms. Adiole received authorized medical treatment from Drs. Juris Shibyama, Jeffrey
Hazlewood and Tarek Elalayli. Ms. Adiole alleged that Dr. Hazlewood's treatment made
her injury worse. She also treated on her own at Seven Springs Orthopaedic and Sports
Medicine. Logan later filed this Motion for Summary Judgment.

                                         Facts

        Logan's motion contained a statement of undisputed material facts with citations
to the record in compliance with Tennessee Rules of Civil Procedure 56.03. Ms. Adiole
filed a response. She did not respond to each fact that Logan set forth with agreement or
disagreement supported with citations to the record as the rule requires. Therefore, the
Court deems the facts in Logan's statement of undisputed material facts admitted and
summarizes them as follows:
    1. Ms. Adiole was involved in a workplace incident on January 31, 2018, injuring her
       low back and lower extremities.
    2. Ms. Adiole chose Dr. Juris Shibyama for authorized treatment from a panel, and
       he referred her to Dr. Jeffrey Hazlewood for pain management.
    3. On April 16, 2018, Dr. Hazlewood placed her at maximum medical improvement
       after learning about pre-existing conditions and assigned a zero-percent
       impairment rating.
    4. On April 11, 2019, Dr. Shibyama stated that the work incident did not contribute
       more than fifty percent in causing Ms. Adiole's low-back, right-hip and radicular
       conditions and her ongoing need for treatment.
    5. Ms. Adiole selected Dr. Tarek Elalayli from a panel for further treatment, and he
       stated that her back problems and right-hip pain are less than fifty percent related
       to the workplace incident.
    6. Ms. Adiole provided no evidence from any physician that any ongoing conditions
       or treatment are primarily related to the workplace injury.

      Based on these facts, Logan argued the Court should grant summary judgment
because it affirmatively negated an essential element of Ms. Adiole's claim - that the
work injury is the primary cause of her current need for treatment.

       At the hearing, Ms. Adiole argued that records from Seven Springs support the
work-relatedness of her claim. She filed the declaration of Caitlin Clemmer, a physician
assistant, at Seven Springs, which states in relevant part:

       [U]pon a standard of reasonable medical certainty, and a causation
       likelihood of "probability" or "likelihood," a reasonable interpretation [of]
       Ms. Adiole's medical chart suggests that it is at least "probable" that many
       of the ongoing, acute symptoms which appear to be affecting Ms. Adiole on
       a daily basis, may be related to the work-related incident[.]

Below Ms. Clemmer's signature is a signature line for approval by a "supervising
Orthopedist." The initials "J.J." appear, presumably those of Dr. Jason Jones. The Seven
Springs records document three visits-one with Ms. Clemmer and the remainder with
two other physician assistants-but no visits with a doctor. The records further contain no
other opinion on the cause of Ms. Adiole's ongoing pain and need for treatment.

                                    Law and Analysis

        Summary judgment is appropriate "if 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 oflaw." Tenn. R. Civ. P. 56.04 (2018).

                                             2
       As the moving party, Logan must do one of two things to prevail on its motion: (1)
submit affirmative evidence that negates an essential element of the Ms. Adiole's claim,
or (2) demonstrate that Ms. Adiole's evidence is insufficient to establish an essential
element of her claim. Tenn. Code Ann.§ 20-16-101 (2018); see also Rye v. Women's
Care Ctr. of Memphis, MPLLC, 477 S.W.3d 235, 264 (Tenn. 2015). If Logan is
successful in meeting this burden, Ms. Adiole must then establish that the record contains
specific facts upon which the Court could rule in her favor. Rye, at 265.

       The essential element at issue in this case is that Ms. Adiole must demonstrate that
she suffered "an injury by accident ... arising primarily out of and in the course and
scope of employment, that causes death, disablement or the need for medical treatment of
the employee." Tenn. Code Ann. § 50-6-102(14). Further, she must show this "to a
reasonable degree of medical certainty that [the work accident] contributed more than
fifty percent (50%)" in causing the need for treatment. In addition, "shown to a
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." !d.
at 50-6-102(14)(C)-(D).

       The undisputed facts, from records of Drs. Shibyama and Elalayli, are that Ms.
Adiole's conditions did not arise primarily out of and in the course and scope of her
employment. Thus, Logan met its burden of negating an essential element of the claim.
This means Ms. Adiole must show that the record contains specific facts upon which the
Court could find in her favor. Logan argued that Ms. Adiole's response did not comply
with Rule 56. The Court agrees. Regardless, the Court will address the merits of her
position.

        Ms. Adiole's reliance on the declaration and records from Ms. Clemmer is
misplaced. Importantly, Ms. Clemmer, a physician assistant, is not an expert who can
testify as to medical causation. Dorsey v. Amazon.com, Inc., 2015 TN Wrk. Comp. App.
Bd. LEXIS 13, at * 10 (May 14, 20 15). But even if she were qualified, she stated that "it
is at least probable" that many of Ms. Adiole's "may be related to the work-related
incident[.]" "May be related" conveys speculation or mere possibility and does not
satisfy the above statutory definition. Moreover, although "J.J." appears on a signature
line for a "supervising orthopedist," the Court is not persuaded that Dr. Jones actually
holds that opinion, as it is not his sworn declaration, nor did he ever see Ms. Adiole.

       The Court acknowledges Ms. Adiole's dissatisfaction with Dr. Hazlewood.
However, judges are not well-suited "to second-guess a medical expert's treatment,
recommendations, and/or diagnoses absent some conflicting medical evidence." Scott v.
Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *8 (Aug. 18,
2015).


                                            3
       Ms. Adiole's belief that a connection exists between her current condition and her
workplace injury is understandable. However, in the absence of other medical evidence,
Ms. Adiole's conjecture cannot establish that her condition arose primarily out of her
employment. Her evidence is therefore insufficient to establish an essential element of
her claim, and the Court must hold that Logan is entitled to summary judgment as a
matter of law.

IT IS, THEREFORE, ORDERED as follows:

   1. Logan's Motion for Summary Judgment is granted, and Ms. Adiole's claim is
      dismissed with prejudice to its refiling. The Status Conference previously set for
      October 7, 2019, is cancelled.

   2. Absent appeal, this order shall become final thirty days after entry.

   3. The Court taxes the $150.00 filing fee to Logan under Tennessee Compilation
      Rules and Regulations 0800-02-21-.06 payable to the Clerk within five days of
      this order becoming final.

   4. Logan shall prepare and submit the SD-2 with the Clerk within ten days of the
      date of judgment.

      ENTERED October 1, 2019.




                                           u ge Kenneth M. Switzer
                                          Court of Workers' Compensation




                                            4
                           CERTIFICATE OF SERVICE

     I certify that a copy of this Order was sent as indicated on October 1, 2019.

Name                     Certified   First        Via    Service sent to:
                          Mail       Class       Email
                                     Mail
Vera Adiole, self-           X                    X      850 Richards Road, Apt. R6
represented employee                                     Antioch TN 37013
                                                         Vadiole712(a),icloud.com
Allen Grant,                                      X      AGrant@eraclides.com
Employer's attorney                                      MJohnson(a),eraclides.com




                                             5
                                 II
                                  I                                                       'I



                          Compensation Hearing Order Right to Appeal:

     If you disagree with this Compensation Hearing Order, you may appeal to the Workers'
Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers'
Compensation Appeals Board, you must:

    1. Complete the enclosed form entitled: "Compensation Hearing Notice of Appeal," and file
       the form with the Clerk of the Court of Workers' Compensation Claims within thirty
       calendar days of the date the compensation hearing order was filed. When filing the
       Notice of Appeal, you must serve a copy upon the opposing party (or attorney, if
       represented).

   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 ofthe filing 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 lndigency will
      result in dismissal of your 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. A licensed court
        reporter must prepare a transcript and file it with the court clerk within fifteen calendar
        days of the filing the Notice of Appeal. Alternatively, you may file a statement of the
        evidence prepared jointly by both parties within fifteen calendar 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
        of the evidence 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. After the Workers' Compensation Judge approves the record and the court clerk transmits
      it to the Appeals Board, a docketing notice will be sent to the parties. The appealing
      party has fifteen calendar days after the date of that notice to submit a brief to the
      Appeals Board. See the Practices and Procedures of the Workers' Compensation
      Appeals Board.

To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing
Order must be final and you must comply with the Tennessee Rules of Appellate
Procedure. If neither party timely files an appeal with the Appeals Board, the trial court's
Order will become final by operation of law thirty calendar days after entry. See Tenn.
Code Ann.§ 50-6-239(c)(7).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
II                                                                                                                      I.
 '                                                                                                                       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:     ! ~                                                      li
                                                                                  I
                          '

        Rent/House Payment $              per month     Med icai/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
