                                                                                               FILED
                                                                                            Nov 08, 2019
                                                                                            08:57 AM(CT)
                                                                                         TENNESSEE COURT OF
                                                                                        WORKERS' COMPENSATION
                                                                                               CLAIMS




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

Donina Valle,                                            )   Docket No. 2018-06-2262
     Employee,                                           )
v.                                                       )
American Lumper Service, Inc.,                           )   State File No. 93985-2018
      Employer,                                          )
And                                                      )
Arch Insurance Company,                                  )   Judge Kenneth M. Switzer
      Carrier.                                           )


                                  EXPEDITED HEARING ORDER


       Donina Valle requested medical and temporary disability benefits for back, neck
and arm injuries from a fall at work. American Lumper Service argued that it offered all
the medical benefits to which Ms. Valle is entitled, and she is not entitled to temporary
disability benefits. 1 After an expedited hearing on November 6, the Court holds that Ms.
Valle is entitled to a panel of orthopedists in Columbus, Ohio, where she relocated, but
not temporary disability benefits.

                                            History of Claim

       Ms. Valle testified that she worked as a laborer for ALS loading and unloading
boxes and packages off a conveyor belt into trucks? On November 15, 2018 Ms. Valle
noticed a tall stack of boxes on the belt that were beyond her reach. She stepped up,
attempting to retrieve the boxes. Her left foot "got stuck in a band that was placed there
incorrectly." Ms. Valle lost her balance, slipped and fell to the floor, landing on her
back. She injured her back, head and shoulder. Coworkers helped her up, and she
walked to a nearby table to sit. ALS introduced video footage that depicted the accident

1
 The dispute certification notice also lists compensability and willful misconduct as issues, but ALS did
not raise these arguments at the hearing.
2
    Ms. Valle speaks Spanish, and ALS provided an interpreter at the hearing.
substantially as Ms. Valle described it. ALS sent her to an urgent-care clinic several days
later rather than offering a panel of physicians at the time ofinjury. 3

        At the first visit, providers diagnosed cervical and right-shoulder strains, and
contusions to her head, lumbar spine and hand. They prescribed medication, referred her
to physical therapy and assigned restricted duty. Ms. Valle returned for follow-up visits
until the end of February. She participated in physical therapy and underwent a shoulder
injection. MRis of the lumbar spine and shoulder revealed no acute findings. The
physician released her from treatment on February 27, 2019.

        Afterward, ALS offered a panel of orthopedic specialists, and Ms. Valle chose Dr.
Joseph Wieck. She saw him twice. At the first visit in May, he assessed low-back and
right-shoulder pain but concluded that she was "treated adequately" for the work injury.
He placed her at maximum medical improvement, released her to work without
restrictions, and assigned a zero-percent impairment rating. Dr. Wieck also wrote that
she "will follow up with us as needed." He later signed a form C-30A indicating that he
did not anticipate the need for future treatment for her injury.

       After Ms. Valle filed her hearing request, ALS authorized the second visit. ALS
provided transportation to and from Columbus, Ohio to Dr. Wieck's office in Tennessee.
At the October 28 visit, he noted, "We again discussed this at length with her. We
discussed that there is not evidence of significant injury or anything that would require
further intervention. I would treat this with anti-inflammatory and stretching and
strengthening exercises. She remains fit for work. She will followup [sic] if needed."
Ms. Valle testified, and Dr. Wieck's records confirm, that he gave her a prescription for
pain medication at the appointment.

        Following her injury, Ms. Valle returned to work in early December 2018. ALS
accommodated her restrictions for approximately three weeks and then returned her to
full duty, although her restrictions remained in place until February 25. Ms. Valle
testified that she found it difficult due to pain to work two consecutive days at full duty,
so she asked to work every other day. She said the "boss's right hand" agreed to this and
said he would not report it to her supervisor. Ms. Valle agreed she could not do any
heavy lifting at that time due to the work injury and kidney stones. ALS terminated her
on April 10, 2019. Her testimony did not offer a reason for the termination. Likewise,
ALS offered no proof on why it discharged her.

       Ms. Valle testified that she underwent surgery to remove "kidney stones" two days
later. ALS characterized the procedure as related to gallstones but introduced no records
from the surgery or follow-up care. Ultimately, Ms. Valle moved to Ohio and sought
unauthorized treatment for her work injury at an urgent-care clinic. She further testified

3
    The mediator referred the case to the Compliance Program for consideration of a penalty.

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that she is currently participating in physical therapy at her own expense. The Court
admitted no records or bills from this treatment into evidence.

       Ms. Valle said she still experiences daily pain from the injury, which leaves her
unable to work. The dispute certification notice listed temporary disability benefits as an
issue, but she made no arguments regarding her entitlement to them. Rather, she only
requested medical treatment.

       For its part, ALS questioned Ms. Valle's credibility and whether the incident
resulted in serious injuries. It contended it provided all treatment to which she is entitled,
and that she was released for full-duty work with no impairment. As for temporary
disability benefits, ALS argued Ms. Valle's termination was due to missing work for her
gallstones, which "mimic back pain."

                        Findings of Fact and Conclusions of Law

       Ms. Valle must present sufficient evidence from which the Court can determine
she is likely to prevail at a hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(1)
(2019).

       Initially the Court addresses ALS's contention that Ms. Valle lacked credibility.
The Tennessee Supreme Court gave indicators of witness credibility, so that trial courts
consider whether a witness is "calm or agitated, at ease or nervous, self-assured or
hesitant, steady or stammering, confident or defensive, forthcoming or deceitful,
reasonable or argumentative, honest or biased." Kelly v. Kelly, 445 S.W.3d 685, 694-695
(Tenn. 2014). The Court observed Ms. Valle and finds she was calm, at ease, self-
assured, steady, confident, forthcoming, reasonable and honest.

       Next, the Court turns to Ms. Valle's request for additional treatment. ALS argued
that the authorized treatment it provided satisfied its obligations under the Workers'
Compensation Law.

        Tennessee Code Annotated section 50-6-204(a)(3)(H) provides that any treatment
recommended by a physician selected from a panel is presumed medically necessary.
Further, the Appeals Board held that, where a panel-selected physician finds no
additional treatment necessary and places the injured worker at maximum medical
improvement, absent evidence to the contrary, the worker is not entitled to additional
treatment. Petty v. Convention Prod. Rigging, 2016 TN Wrk. Comp. App. Bd. 95, at
*18-19 (Dec. 29, 2016). Ms. Valle chose Dr. Wieck from a panel. Dr. Weick signed a
C-30A stating he did not anticipate further medical treatment. However, at her last office
visit in October, Dr. Wieck treated her with prescription medication and agreed that she
could "follow-up as needed."


                                              3
       Similar circumstances occurred in Limberakis v. Pro-Tech Security, Inc., 2017 TN
Wrk. Comp. App. Bd. LEXIS 53 (Sept. 12, 2017). In that case, the employer accepted
the claim and provided authorized care until the physician refused to schedule further
appointments. The trial court ordered the employer to replace that doctor on a panel and
provide reasonable, necessary and related treatment with the employee's selected panel
physician. The employer appealed.

       On appeal, the Appeals Board affirmed. The Board cited longstanding law that,
"an employee's assessment as to his or her own physical condition is competent
testimony that is not to be disregarded." Id. at *6. The Board further held that "an
employer cannot unilaterally terminate an employee's entitlement to reasonable and
necessary medical benefits following a compensable work injury," and, "Unless a court
terminates an employee's entitlement to medical benefits, or approves a settlement in
which the parties reach a compromise on the issue of future medical benefits, an injured
worker remains entitled to reasonable and necessary medical treatment causally-related to
the work injury[.]" Id. at *7.

        Ms. Valle credibly testified that she suffered an injury that altered her ability to
perfonn her work duties and that she still suffers pain from the work accident. The Court
rejects ALS's unsupported argument that Ms. Valle's gallstones rather than work might
be responsible for her back pain. Although Dr. Wieck seemed to have little to offer her,
he continued to treat Ms. Valle and indicated a willingness to do so "as needed." ALS
cannot unilaterally terminate Ms. Valle's right to reasonably necessary and related
treatment. At this interlocutory stage, the Court has neither terminated her entitlement to
treatment nor approved a settlement compromising the issue of future medical benefits.
Thus, Ms. Valle remains entitled to medical benefits.

       Ordinarily the Court would order that Ms. Valle be permitted to return to Dr.
Wieck. However, since she has moved to Columbus, Ohio, ALS must provide a panel of
orthopedic specialists "in the injured employee's community." Tenn. Code Ann. § 50-6-
204(a)(3)(A)(i).

       Finally, Ms. Valle requested temporary disability benefits, although she stated
during her testimony that she only wanted additional treatment. However, at the close of
the hearing, she asked whether this order will address her entitlement to temporary
disability benefits.

       Temporary partial disability refers to the time, if any, during which the injured
employee is able to resume some gainful employment but has not reached maximum
recovery. Hackney v. Integrity Staffing Solutions, Inc., 2016 TN Wrk. Comp. App. Bd.
LEXIS 29, at * 11 (July 22, 2016). In all cases of temporary partial disability, the
compensation shall be sixty-six and two-thirds percent of the difference between the
average weekly wage of the worker at the time of the injury and the wage the worker is

                                             4
able to earn in the worker's partially disabled condition. Tenn. Code Ann. § 50-6-
207(2)(A). Further, a termination due to a violation of workplace rules may relieve an
employer of its obligation to provide temporary partial disability benefits, provided the
termination was related to the workplace violation. Jones v. Crencor Leasing and Sales,
2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *8 (Dec. 11, 20 15).

       Applying these principles, Ms. Valle offered no proof of her wages at the time of
her injury or the wage she earned in her partially disabled condition. She likewise
provided little detail about her termination other than she asked for a schedule that
allowed her to not work consecutive days due to pain. Neither party offered proof as to
whether the termination related to a workplace violation or her work injury. Ms. Valle
has not satisfied her burden, and her request is denied.

IT IS, THEREFORE, ORDERED as follows:

   1. ALS must offer a panel of orthopedic specialists in Ms. Valle' s community
      (Columbus, Ohio) for any additional reasonable and necessary treatment related to
      the work injury.

   2. Ms. Valle's request for temporary disability benefits is denied at this time.

   3. This case is set for a status hearing on January 28, 2020, at 9:45 a.m. Central
      time. The parties must call 615-532-9552 or toll-free 866-943-0025 to participate
      in the hearing.

   4. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
      with this Order must occur no later than seven business days from the date of entry
      of this Order as required by Tennessee Code Annotated section 50-6-239( d)(3).
      The Insurer or Self-Insured Employer must submit confirmation of compliance
      with this Order to the Bureau by email to WCCompli ance.Program@tn.gov no
      later than the seventh business day after entry of this Order. Failure to submit the
      necessary confirmation within the period of compliance might result in a penalty
      assessment for non-compliance. For questions regarding compliance, please
      contact the Workers' Compensation Compliance Unit vta email at
      WCCompliance.Program@tn.gov.

                                          ENTERED November 8, 2019.




                                             5
                                     APPENDIX

Exhibits:
   1. Affidavit of Donina Valle
   2. Composite Medical records
   3. First Report on Injury
   4. Panel ofPhysicians, March 23, 2019
   5. Panel of Physicians, unsigned
   6. Ohio Bureau of Workers' Compensation-Physician's Report of Work Ability
       (identification only)
   7. Video footage of accident
   8. Panel of Physicians, May 2, 2019
   9. Email from the nurse case manager to the adjuster

Technical Record:
   1. Petition for Benefit Determination
   2. Penalty Referral
   3. Dispute Certification Notice
   4. Request for Expedited Hearing
   5. Employer's Brief

                           CERTIFICATE OF SERVICE

     I certify that a copy of this Expedited Hearing Order was sent as indicated on
November 8, 2019.
             Name                  Certified     Email   Sent To:
                                    Mail
Donina Valle, self-represented        X                  2388 Northland Square Drive
employee                                                 South, Apt. E
                                                         Columbus, OH 43231-5831
Sean Hunt, Employer's Attorney                     X     sean@thehuntfirm.com
                                                         mohammed@thehuntfirm.com




                                           W c.courtclerk@tn.gov




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