          IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                         AT MURFREESBORO

BEVERLY CAMPBELL                            )   Docket No.: 2015-05-0342
         Employee,                          )
v.                                          )   State File Number: 40949-2015
CENTURY MOLD CO., INC.                      )
         Employer,                          )   Judge Dale Tipps
And                                         )
TRAVELERS INDEMNITY CO.                     )
         Insurance Carrier.                 )
                                            )

  EXPEDITED HEARING ORDER DENYING MEDICAL AND TEMPORARY
                     DISABLITY BENEFITS


        This matter came before the undersigned workers’ compensation judge on
December 9, 2015, on the Request for Expedited Hearing filed by the employee, Beverly
Campbell, pursuant to Tennessee Code Annotated section 50-6-239 (2014). The present
focus of this case is the compensability of Ms. Campbell’s injury and her entitlement to
medical and temporary disability benefits. The central legal issue is whether Ms.
Campbell is likely to establish she suffered an injury arising primarily out of and in the
course and scope of her employment. For the reasons set forth below, the Court finds
Ms. Campbell is not entitled to the requested medical and temporary disability benefits at
this time.

                                    History of Claim

        Ms. Campbell is a fifty-four-year-old resident of Bedford County, Tennessee. She
testified she has worked for Century for eighteen years and her job requires a great deal
of reaching and lifting. Several months before May 2015, she began to have problems
with her back and right shoulder. She complained to her supervisors and demonstrated
the motions that were causing her difficulties. Century did not initially file an injury
report, and Ms. Campbell’s condition continued to worsen.

       Ms. Campbell began seeing her personal physician, Dr. Joseph Rupard, who
prescribed muscle relaxants and anti-inflammatory medications. She continued to work

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her regular job. Dr. Rupard treated her for her back problem, as well as symptoms in her
wrists and hands. He assigned light-duty restrictions on May 7, 2015. (Ex. 4.)

       When Ms. Campbell provided Century with Dr. Rupard’s restrictions, Century
completed a First Report of Injury and gave her a panel of physicians. (Ex. 6.) Ms.
Campbell selected Dr. Lynette Adams. Id. Ms. Campbell testified that Dr. Adams
referred her to an orthopedic specialist. Century provided an orthopedic panel and Ms.
Campbell selected Dr. James Johnson. (Ex. 6.)

       Dr. Johnson saw Ms. Campbell on August 18, 2015, for complaints of back pain,
cervical pain, and bilateral wrist tingling and pain. She reported she had pain for three
months. After examining Ms. Campbell and reviewing her history, Dr. Johnson
diagnosed carpal tunnel syndrome, cervical and lumbar spondylosis, and rotator cuff
impingement syndrome. He prescribed Mobic and Skelaxin. (Ex. 3.)

      Dr. Johnson’s office note contains the following:

      I do believe Beverly has degenerative changes in her back, but I would say
      that more likely than not to a degree of medical certainty, greater than 50%
      of the patient’s pain is due to pre-existing arthritic conditions and not work
      related. In doing chart review, it appears that she has complained of each
      of these pains in the past except for carpal tunnel syndrome. The claim that
      she has only had pain for three months is a false claim, based on her
      previous records from her previous doctors. I would describe this as a pre-
      existing degenerative condition of the cervical spine, lumbar spine and the
      shoulders. Each of these conditions should respond well to conservative
      treatment and should not require injections or surgical intervention in the
      short term and likely not in the long term. It appears to be a slowly
      progressive, degenerative condition over time.

      In terms of her carpal tunnel syndrome, it is possible that it can be caused
      by her work because [the] condition has improved without working. I
      would disagree with Dr. Greenberg that this would require surgery, because
      it is improved with rest. I think it would improve with wrist splinting and
      appropriate work restrictions. I would defer to a hand surgeon for a
      definitive declaration of the carpal tunnel syndrome as work related, though
      it is unlikely that more than 50% of the carpal tunnel syndrome is related to
      her work, especially given the past medical history of diabetes.

      Determination of maximum medical improvement and impairment rating
      are thus not indicated as it is more likely than not that these conditions are
      not work related.


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Id.

      Century’s workers’ compensation carrier sent a letter to Dr. Johnson on August
17, 2015, asking “whether Ms. Campbell’s diagnosis and the need for treatment arises
primarily out of and in the course and scope of employment [with] Century Mold
Company, Inc.” Dr. Johnson circled the “no” response and indicated that seventy-five
percent of Ms. Campbell’s condition was the result of pre-existing conditions unrelated to
her employment. Id.

     After Ms. Campbell saw Dr. Johnson, Century denied the claim as non-
compensable. (Ex. 6.)

       Ms. Campbell filed a Petition for Benefit Determination seeking medical treatment
and temporary disability benefits. The parties did not resolve the disputed issues through
mediation, and the Mediating Specialist filed a Dispute Certification Notice. Ms.
Campbell filed a Request for Expedited Hearing, and this Court heard the matter on
December 9, 2015. At the Expedited Hearing, Ms. Campbell asserted she is entitled to
reimbursement for her medical expenses, continuing medical treatment, and temporary
disability benefits.1 Century countered that Ms. Campbell is not entitled to any workers’
compensation benefits because she failed to present sufficient evidence that her work was
the primary cause of her injuries.

                              Findings of Fact and Conclusions of Law

       The Workers’ Compensation Law shall not be remedially or liberally construed in
favor of either party but shall be construed fairly, impartially and in accordance with
basic principles of statutory construction favoring neither the employee nor
employer. Tenn. Code Ann. § 50-6-116 (2014). The employee in a workers’
compensation claim has the burden of proof on all essential elements of a claim. Tindall
v. Waring Park Ass’n, 725 S.W.2d 935, 937 (Tenn. 1987);2 Scott v. Integrity Staffing
Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn.
Workers’ Comp. App. Bd. Aug. 18, 2015). At an expedited hearing, an employee need
not prove every element of his or her claim by a preponderance of the evidence, but must
come forward with sufficient evidence from which the trial court can determine that the
employee is likely to prevail at a hearing on the merits consistent with Tennessee Code

1
  Ms. Campbell was concerned that her claim was denied for lack of notice, and she testified emphatically that she
had repeatedly complained about her symptoms to her superiors. The Court notes that Century did not raise notice
as a defense on the DCN or in the hearing.
2
  The Tennessee Workers’ Compensation Appeals Board allows reliance on precedent from the Tennessee Supreme
Court “unless it is evident that the Supreme Court’s decision or rationale relied on a remedial interpretation of pre-
July 1, 2014 statutes, that it relied on specific statutory language no longer contained in the Workers’ Compensation
Law, and/or that it relied on an analysis that has since been addressed by the general assembly through statutory
amendments.” McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, at *13 n.4 (Tenn. Workers’ Comp. App. Bd. Mar. 27, 2015).

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Annotated section 50-6-239(d)(1) (2014). McCord v. Advantage Human Resourcing, No.
2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Tenn. Workers’ Comp.
App. Bd. Mar. 27, 2015). This lesser evidentiary standard “does not relieve an employee
of the burden of producing evidence of an injury by accident that arose primarily out of
and in the course and scope of employment at an expedited hearing, but allows some
relief to be granted if that evidence does not rise to the level of a ‘preponderance of the
evidence.’” Buchanan v. Carlex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp.
App. Bd. LEXIS 39, at *6 (Tenn. Workers’ Comp. App. Bd. Sept. 29, 2015).

        To be compensable under the workers’ compensation statutes, an injury must arise
primarily out of and occur in the course and scope of the employment. Tenn. Code Ann.
§ 50-6-102(13) (2014). Injury is defined as “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.” Id. For an injury to be accidental, it must
be “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.”
Tenn. Code Ann. § 50-6-102(13)(A) (2014). “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(13)(B) (2014).

       Ms. Campbell selected Dr. Johnson from a panel of physicians provided by
Century. Therefore, Tennessee Code Annotated section 50-6-102(13)(E) (2014)
establishes a rebuttable presumption of correctness for his causation opinion. That
opinion is “it is more likely than not that these conditions are not work related.” Dr.
Johnson confirmed that opinion in his response to the August 17, 2015 letter, where he
indicated Ms. Campbell’s diagnosis and the need for treatment did not arise primarily out
of and in the course and scope of her employment with Century.

        Ms. Campbell submitted a letter signed by Kristin McBay, Dr. Adams’ nurse
practitioner, that stated: “Ms. Campbell has been seen in this office on two different
occasions 6/3/15 and 9/9/15 both regarding lower back pain, neck pain, and right
extremity pain due to work related injury.” (Ex. 11.) Century objected to the admission
of the letter into evidence on the grounds that it was hearsay, it was not previously
disclosed, and a nurse practitioner was not competent to give a medical opinion of
causation. The Court finds that, to the extent Ms. McBay’s letter may contain a causation
opinion, it is inadmissible, as she is not a physician qualified to give such an opinion.
Even if the Court were to find Ms. McBay’s opinion constituted competent medical
evidence of causation, it would be insufficient to overcome the presumption of
correctness of Dr. Johnson’s opinion because it merely states Ms. Campbell’s injuries are
“work related.” This does not constitute an opinion that Ms. Campbell’ work was the
primary cause of her injuries.


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       Ms. Campbell offered no other medical proof addressing causation. Therefore, as
a matter of law, she has not come forward with sufficient evidence from which this Court
may conclude she is likely to prevail at a hearing on the merits. Her request for medical
and temporary disability benefits is denied at this time.

IT IS, THEREFORE, ORDERED as follows:


   1. Ms. Campbell’s claim against Century Mold Company, Inc., and its workers’
      compensation carrier for the requested medical and temporary disability benefits is
      denied.

   2. This matter is set for an Initial (Scheduling) Hearing on February 17, 2016, at 9:00
      a.m.

      ENTERED this the 14th day of December, 2015.


                                  _____________________________________
                                  Judge Dale Tipps
                                  Court of Workers’ Compensation Claims

Initial (Scheduling) Hearing:

      An Initial (Scheduling) Hearing has been set with Judge Dale Tipps, Court of
Workers’ Compensation Claims. You must call 615-741-2112 or toll free at 855-
874-0473 to participate.

       Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation. All conferences are set using Central Time (CT).


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 business days of the
      date the Workers’ Compensation Judge entered the Expedited Hearing Order.

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

4. The appealing party is responsible for payment of a filing fee in the amount of
   $75.00. Within ten calendar days after the filing of a notice of appeal, payment
   must be received by check, money order, or credit card payment. Payments can be
   made in person at any Bureau office or by United States mail, hand-delivery, or
   other delivery service. In the alternative, the appealing party may file an Affidavit
   of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
   fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
   of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
   will consider the Affidavit of Indigency and issue an Order granting or denying
   the request for a waiver of the filing fee as soon thereafter as is
   practicable. Failure to timely pay the filing fee or file the Affidavit of
   Indigency in accordance with this section shall result in dismissal of the
   appeal.

5. 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 prepared by a licensed court reporter and filing it
   with the Court Clerk within ten calendar days of the filing of the Expedited
   Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
   the evidence within ten calendar days of the filing of the Expedited Hearing
   Notice of Appeal. The statement of the evidence must convey a complete and
   accurate account of what transpired in the Court of Workers’ Compensation
   Claims and must be approved by the workers’ compensation judge before the
   record is submitted to the Clerk of the Appeals Board.

6. If the appellant elects to file a position statement in support of the interlocutory
   appeal, the appellant shall file such position statement with the Court Clerk within
   five business days of the expiration of the time to file a transcript or statement of
   the evidence, specifying the issues presented for review and including any
   argument in support thereof. A party opposing the appeal shall file a response, if
   any, with the Court Clerk within five business days of the filing of the appellant’s
   position statement. All position statements pertaining to an appeal of an
   interlocutory order 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.




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                                               APPENDIX

Exhibits:
   1. Affidavit of Beverly Campbell
   2. Records from Elite Sports Medicine
   3. Certified records from Elite Sports Medicine
   4. Return to work notes (Identification Only)
   5. Nerve conduction study
   6. Bureau forms
   7. Letter from Renee Appenauer (Identification Only)
   8. Written statement of Lynnette Shellhouse
   9. Accident investigation report
   10. Letter from Excellus (Identification Only)
   11. Letter from Kristin McBay (Identification Only)

Technical record:3
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing




3
   The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as
allegations unless established by the evidence.



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                           CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Expedited Hearing Order
Denying Medical and Temporary Disability Benefits was sent to the following recipients
by the following methods of service on this the _____
                                                14th day of December, 2015.


Name                     Certified    Via        Via    Service sent to:
                          Mail        Fax       Email
Beverly Campbell            X                           208 Fairway Green Dr.
                                                        Shelbyville, TN 37160
Emil Storey, Jr., Esq.                           X      cstoreyj@travelers.com




                                       _____________________________________
                                       Penny Shrum, Clerk of Court
                                       Court of Workers’ Compensation Claims
                                       WC.CourtClerk@tn.gov




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