                                                                                         FILED
                                                                                     February 6, 2015
                                                                                      T:'i COI:RTOF
                                                                                  WORKERS' C0~1PE:'iSATIO:'i
                                                                                           CLAI~1 S



                   COURT OF WORKERS' COMPENSATION CLAIMS                                Time: 1:06 P)1


                     DIVISION OF WORKERS' COMPENSATION


EMPLOYEE: ANGELA RUSSELL        DOCKET#: 2014-02-0003
                                STATE FILE#: 61672-2014
EMPLOYER: NEWPORT HEATH & REHAB DATE OF INJURY: 07/29/2014

INSURANCE CARRIER: ACE AMERICAN

TPA: GALLAGHER-BASSETT

                               EXPEDITED HEARING ORDER

       THIS CAUSE came before the undersigned Workers' Compensation Judge upon the Request
for Expedited Hearing filed by Angela Russell, Employee. Considering the positions of the parties,
the applicable law, and all of the evidence submitted, the Court finds as follows:

       On December 1, 2014, Ms. Russell filed a Request for Expedited Hearing with the Tennessee
Court of Workers'~ Compensation Claims, Division of Workers' Compensation, pursuant to
Tennessee Code Annotated section 50-6-239 to determine if Employer, Newport Health and Rehab
(Newport) is obligated to provide medical benefits. The undersigned Workers' Compensation Judge
conducted a telephonic Expedited Hearing on January 28, 2015. Attorney Richard Talley
represented Ms. Russell. Attorney Duane Willis represented Employer and Carrier. After
considering the parties' arguments, the applicable law, the technical record, and all testimony and
evidence introduced at the Expedited Hearing, the Court concludes that Employee is not entitled to
the medical benefits and temporary total disability benefits requested at this time.

                                           ANALYSIS

                                              Issue

        Whether Ms. Russell sustained a compensable injury on July 29, 2014, and, if so, whether
she is entitled to medical benefits and temporary total disability benefits.

                                      Evidence Submitted

       Employee did not file affidavits in support of the Request for Expedited Hearing. Rule 0800-
02-21-.14 (1)(a) of the Tennessee Department ofLabor and Workforce Development, as well as the
Court's Practice and Procedures Rule 5.01, require an employee to submit affidavits and information
supporting the claim with the Motion for Expedited Hearing.

      At the hearing, the Court received and considered the following evidence submitted by
Employee:
                        Medical Records:
          • Exhibit 1 Takoma Hospital (37 pages)
          • Exhibit 2 Cherokee Health Systems (9 pages)
          • Exhibit 3 Morristown Hamblen Hospital (108 pages)
          • Exhibit 4 Linda Sue Greene LCWS (9 pages)
          • Exhibit 5 Dr. Thomas Conway (13 pages)
          • Exhibit 6 Women's Care Group (8 pages)
          • Exhibit 7 Dr. Frederick Klein (4 pages)
          • Exhibit 8 Dr. Peter Reardon (2 pages)
          • Exhibit 9 CV A Heart Institute (2 pages)

       The Court has received and considered the following evidenced submitted by Employer:

                            Medical Records:
            •   Exhibit 9 Cherokee Health Systems (7 pages)
            •   Exhibit 10 FMLA Paperwork (21 pages)
            •   Exhibit 11 Two Prior First Report oflnjuries (2 pages)
            •   Exhibit 12 Recorded Statement of Mrs. Russell (12 pages)

                                        Technical Record

       The Court designated the following as the technical record:

           •    Petition for Benefit Determination
           •    Dispute Certification Notice
           •    Request for Expedited Hearing

        The Court did not consider attachments to the above filings unless admitted into evidence
during the Expedited Hearing. The Court considered factual statements in the above filings as
allegations unless established by the evidence.

                                        History of Claim

       Ms. Russell worked as a registered nurse for Newport. Her job involved helping other
employees lift patients. On July 29,2014, Ms. Russell lifted some patients and felt that she injured
her back.

       Prior to the lifting incident, Ms. Russell had been experiencing stress both at home and at
work. Her work stress centered on her hours and her supervisor. When she discovered Newport
intended to change her work hours, she become upset and started to cry. On the morning of July 30,


                                                 2
2014, she told her supervisor at Newport that she could not stop crying. Ms. Russell's supervisor
told her to go the emergency room.

         Ms. Russell went to the emergency room at Takoma Regional Hospital (Takoma). She gave
a history of crying all day, wanting to be away from others, and experiencing depression. The notes
reflect that Ms. Russell complained of chest pain and had been crying for two (2) or three (3) days
(Exhibit 1, page 2). Ms. Russell mentioned she could not spend time with her ill husband and that
her father was also ill (Ex. 1, page 2). The providers diagnosed Ms. Russell with anxiety,
depression, and chest pain (Ex. 1, pages 5-6). A mobile crisis unit examined Ms. Russell while she
was at the hospital. She told the examiner that her manager emotionally abused her, but also that she
had stressors outside of work (Exhibit 2, page 1). After a recommendation by the mobile crisis unit,
Ms. Russell agreed to be placed in a crisis stabilization unit with Cherokee Health Systems
(Cherokee) (Exhibit 1, page 5).

         Before leaving Takoma to go to Cherokee, Ms. Russell told the RN on duty that she wanted
to file her visit under workers' compensation. The nurse asked Ms. Russell if she reported a work
injury to her employer. Ms. Russell responded that she had checked in with chest pain. The RN told
Ms. Russell that in order to file for workers' compensation benefits a person must be physically
injured at work. Ms. Russell replied that she hurt her back at work three days prior. The nurse
contacted Mr. Michael Lunsford with Newport. He told the nurse that he was unaware of any injury
and the visit was not covered by workers' compensation. The nurse noted that Ms. Russell did not
report pain while in triage (Ex. 1, page 15).

        Ms. Russell complained to the providers at Cherokee that she was upset with her supervisor
(Exhibit 9, page 2). On August 2, 2014, Ms. Russell complained of chest pain (Ex. 9, page 3). She
treated at Morristown-Hamblen hospital with Dr. Thomas Conway. Her EKG was normal (Exhibit
3, page 7). On August 8, 2014 Ms. Russell went to Dr. Conway's office. She saw Dr. Conway's
nurse. The nurse related Ms. Russell's chest pain to congestive heart failure and placed Ms. Russell
off work from August 2, 2014, to September 8, 2014. The nurse diagnosed Ms. Russell with anxiety,
depression and congestive heart failure (Exhibit 5, page 1).

          Ms. Russell treated with Dr. Allison Eaton of Women's Care Group UT on August 8, 2014.
She complained of severe cramping, constipation, and urinary problems. Dr. Eaton noted Ms. Russell
" ... has been dealing with significant anxiety/depression ... " (Exhibit 6, page 1). Dr. Eaton
diagnosed Ms. Russell with a "cystocele without mention uterine prolapse midline."(Ex. 6, page 4)
Dr. Eaton recommended an urological evaluation. Dr. Eaton opined that the pain could be related to
Ms. Russell's depression because it was not gynecological in nature (Ex. 6, page 4).

       Ms. Russell filed a Petition for Benefit Determination (PBD) with this Court on August 12,
2014. She noted on the PBD that she hurt her back on July 30, 2014, and experienced chest pain and
uncontrollable crying. Newport denied her claim.

        On August 22, 2014, Ms. Russell saw Dr. Conway (Exhibit 5, page 2). She complained of
back pain of a few weeks duration and told Dr. Conway that she strained her back on July 29, 2014
(Ex. 5, page 2). She reported that she originally went to the emergency room at Takoma for back

                                                  3
pain and uncontrollable crying (Ex. 5, page 3). Dr. Conway ordered lumbarx-rays and they revealed
degenerative changes at the L5-S 1 level (Ex. 5, page 4 ).

        On September 16, 2014, Dr. Conway wrote a letter to Workers' Compensation Specialist
Jamie Weatherly stating that he continued to excuse Ms. Russell from work due to depression and
anxiety. He referenced her back pain and recommended physical therapy if it would be covered by
workers' compensation. He anticipated Ms. Russell would return to work at the end of October (Ex.
5, pages 5-6).

        On October 14, 2014, Dr. Conway wrote a letter to the Newport's workers' compensation
insurance adjuster. He told her that Ms. Russell reported to him that she hurt her low back lifting
patients on July 29, 2014, and developed chest pressure at work the following day. He noted the x-
rays showed degenerative changes and that he continued to request physical therapy for her back
pain. He reported that Ms. Russell should remain off work (Ex. 5, pages 7-9).

        Ms. Russell treated with Dr. Frederick Klein and Dr. Peter Reardon for the cystocele. She
actually had surgery scheduled at one time with a Dr. Copas at UT Medical Center. However, Dr.
Reardon did not think Ms. Russell's cystocele warranted surgical treatment or that she needed to be
off work due to the problem (Exhibit 8, Page 1).

                                     Ms. Russell's Contentions

        Ms. Russell contends that she hurt her low back, chest wall, and suffers with a cystocele as a
result of a lifting injury on July 29,2014, along with depression due to an abusive supervisor. She
acknowledged that none of the medical records reference a back problem until August 22, 2014.
However, she testified that she reported the problem to all her providers. She asserts the RN called
Newport about her back injury before she left Takoma on July 31, 2014. She asserts the providers
focused on her depression and chest pain rather than her back pain. Ms. Russell argued that she is
entitled to medical benefits and temporary benefits because she has met her burden of proof and
established that she suffered these injuries at work.

                                       Newport's Contentions

        Newport contended Ms. Russell failed to present sufficient evidence to establish she suffered
a physical or mental injury. Specifically, Ms. Russell did not mention to any medical provider that
she suffered a back injury until August 22, 2014. Newport conceded that a nurse called its offices on
July 31, 2014, to inquire about workers' compensation, but that the nurse noted Mrs. Russell did not
complain of back pain while in triage. Newport asserts Ms. Russell did not suffer depression as a
result of a work event resulting in a sudden or unusual stimulus. Rather, Newport contends Ms.
Russell had anxiety due to a potential change in her work schedule and stressors at home. Newport
does not contest notice in this case, but rather that it did not know of a work injury until Ms. Russell
filed her PBD.




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                             Findings of Fact and Conclusions of Law

                                              Standard Applied

        When determining whether to award benefits, the Judge must decide whether the moving
party is likely to succeed on the merits at trial given the information available. See generally,
McCall v. Nat '! Health Care Corp., 100 S.W.3d 209,214 (Tenn. 2003). Ina workers' compensation
action, pursuant to Tennessee Code Annotated section 50-6-239(c)(6), Employee shall bear the
burden of proving each and every element of the claim by a preponderance of the evidence.
Employee must show the injury arose primarily out of and in the course and scope of employment.
Tenn. Code Ann.§ 50-6-102(13).

                                               Factual Findings

       After considering the parties' arguments, the documentary evidence presented as exhibits at
the hearing, the arguments of the parties, and the entire record in this claim, the Court makes the
following findings:

           1. Ms. Russell suffered chest pains due to congestive heart failure and uncontrollable
              crying due to anxiety and depression;
           2. Ms. Russell has degenerative back problems; and
           3. Ms. Russell failed to establish by expert medical opinion that her chest wall pain,
              back pain, cystocele, and depression arose primarily out of and in the course and
              scope of her employment.

                                         Application ofLaw to Facts

       The issue in this case is whether Ms. Russell has presented sufficient evidence at the
Expedited Hearing to prove she suffered a compensable injury. Tennessee Code Annotated Section
50-6-102(13) defines injury as follows:

          "Injury" or "personal injury" mean an injury by accident, a mental injury,
          occupational disease including diseases of the heart, lung and hypertension, or
          cumulative trauma conditions including hearing loss, carpal tunnel syndrome
          or any other repetitive motion conditions, 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; provided, that:

                       (A)       An injury is "accidental only if the injury is caused
                             by a specific incident, or set of incidents, arising
                             primarily out of and in the course and scope of
                             employment, and is identifiable by time and place of
                             occurrence, and shall not include the aggravation of a
                             preexisting disease, condition or ailment unless it can
                             be shown to a reasonable degree of medical certainty

                                                   5
                              that the aggravation arose primarily out of and in the
                              course and scope of employment;

                        (B)      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;


                        (C)      An injury causes death, disablement or the need for
                              medical treatment only if it has been shown to a
                              reasonable degree of medical certainty that it
                              contributed more than fifty percent (50%) in causing
                              death, disablement or need for medical treatment,
                              considering all causes.

       Tennessee Code Annotated section 50-6-1 02( 16)(20 13) defines a mental injury as follows:

           "Mental Injury" means a loss of mental faculties or a mental or behavioral
           disorder, arising primarily out of a compensable physical injury or an
           identifiable work related event resulting in a sudden or unusual stimulus, and
           shall not include a psychological or psychiatric response due to the loss of
           employment or employment opportunities.

        Ms. Russell did not prove that her physical injuries arose primarily out of and in the course
and scope of her employment. Ms. Russell believes that she hurt her chest wall, back, and suffered a
cystocele with pelvic pain while lifting a patient. However, the medical evidence established her
chest wall hurt due to congestive heart failure and uncontrollable crying. The medical records prove
she suffers from degenerative back problems. Dr. Eaton did not relate the cystocele or pelvic pain to
a lifting injury. Instead, she opined that Ms. Russell's pelvic pain could be related to her
psychological issues. No doctor has opined that Ms. Russell's physical injuries arose primarily out
of and in the course and scope of her employment.

        Ms. Russell failed to prove she suffered a compensable mental injury. The workers'
compensation statute identifies two categories of compensable mental injuries: mental injuries that
result from an underlying physical injury at work; mental injuries that arise from an identifiable
work-related event resulting in a sudden or unusual stimulus. Since Ms. Russell failed to prove she
suffered a compensable work injury, she failed to establish that she suffered a mental injury because
of an underlying physical work injury. While Ms. Russell may have experienced stress because of a
change in her work schedule and disagreements with a supervisor, she failed to establish a work-
related event which resulted in a sudden or unusual stimulus. Her work stressors are the normal
variety an employee encounters in the work place. According to Tennessee case law, mental
problems encountered as a result of general job stress are not compensable. See Cunningham v.
Shelton Sec. Serv., 46 S.W.3d 131,137 (Tenn. 2001).

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        Based upon all the evidence submitted at this time, Ms. Russell failed to prove she suffered a
compensable physical or mental injury. Therefore her request for medical and temporary total
disability benefits is denied at this time.

IT IS, THEREFORE, ORDERED as follows :

    1. Ms. Russell's claim against Newport or its workers' compensation carrier for the requested
       medical and temporary total disability benefits is denied on the grounds of compensability.
       This is not a final order.

    2. This matter is set for an Initial Hearing on March 30, 2015, at 2:00p.m. eastern time.

       ENTERED this the 6th day of February 2015.



                                               BRIAN K. ADDIN . ON
                                               Workers' Compensation Judge

Initial Hearing:

         An Initial Hearing has been set with Judge Brian K. Addington, Court of Workers
Compensation. You must call 865-594-6538 or toll free at 855-543-5044 to participate in the
Initial Hearing.

        Please Note: You must call in on March 30, 2015, at 2:00p.m. eastern time to participate.
Failure to call in may result in a determination of the issues without your further participation. All
conferences are set using Eastern Time (ET).


Right to Appeal:

   Tennessee Law allows any party who disagrees with this Expedited Hearing Order to appeal the
decision to the Workers' Compensation Appeals Board. To file a Notice of Appeal, you must:

    1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal".

   2. File the completed form with the Court Clerk within seven (7) business days of the date the
      Expedited Hearing Order was entered by the Workers' Compensation Judge.

    3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.

   4. The parties, having the responsibility of ensuring a complete record on appeal, may request
      from the Court Clerk the audio recording of the hearing for the purpose of having a transcript

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          prepared by a licensed court reporter and filing it with the Court Clerk within ten (10)
          calendar days of the filing of the Expedited Hearing Notice of Appeal. Alternatively, the
          parties may file a statement of the evidence within ten ( 10) calendar days of the filing of the
          Expedited Hearing Notice of Appeal. The statement of the evidence must be approved by the
          Judge before the record is submitted to the Clerk of the Appeals Board.

       5. If the appellant elects to file a position statement in support of the interlocutory appeal, the
          appealing party shall file such position statement with the Court Clerk within three (3)
          business days of the filing of the Expedited Hearing Notice of Appeal, specifying the issues
          presented for review and including any argument in support thereof. If the appellee elects to
          file a response in opposition to the interlocutory appeal, appellee shall do so within three (3)
          business days of the filing ofthe appellant's position statement.

                                      CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the Expedited Hearing Order was sent to the
 following recipients by the following methods of service on this the 6th day ofFebruary, 2015.


Name                      Certified   First     Via   Fax        Via      Email Address
                          Mail        Class     Fax   Number     Email
                                      Mail
P.R. Talley, Esq.                                                 X       yhtalley(a?yahoo.com
D. Willis, Esq.                                                   X       dwillis@morganakins.com




                                                                      , 'HRUM
                                                                       OF THE COURT




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