TENNESSEE BUREAU OF WORKERS' COMPENSATION IN THE COURTOFWORKERS' COMPENSATION CLAIMS ATNASHVILLE Anthony Amofa, Employee, 

### v. Yates Services, Employer, And Traveler's Insurance Company, Carrier. ) DocketNo.: 2016-06-0773 ) ) State File No.: 10081-2016 ) ) Judge Kenneth M. Switzer ) ) )

EXPEDITED HEARING ORDERGRANTINGMEDICALBENEFITS

This case came before the undersigned Workers' Compensation Judge on December 19, 2016, on the Request for Expedited Hearing filed by Anthony Amofa pursuant to Tennessee Code Annotated section 50-6-239 (2016). The present focus of this case is the compensability of Mr. Amofa's claim and his entitlem nt to medical benefits. 1 Forthe reasons setforth below, the Court holds be appears likely to prevail at a hearing on the merits in proving that he sustained an injury as defined within the Workers' CompensationLaw and is therefore entitledtotherequestedmedicalbenefits. History ofClaim

Mr. Amofa is a fifty-year-old resident ofDavidson County, Tennessee. He works at Yates, a staffing agency for Nissan, as an associate in manufacturing services. He testifiedthat, on January 2, 2016, while working on the assembly line, he "startedhaving problems lifting the screwing machine to work." (Ex. 1 at 1.) He began falling behind and stopped the line twice. !d. Eventually the "lead" adjusted the machine, and afterward Mr. Amofa was able to operate it comfortably. !d. at 2. Approximately three hours later, Mr. Amofabeganto experiencepain in his waist. !d. Mr. Amofa clarified at

1 The Petition for Benefit Determination states that Mr. Amofa seeks only medical benefits, while the Dispute Certification Notice lists his entitlementto medical and temporary disability benefits as disputed issues. However, the parties offered no argument regarding Mr. Amofa's entitlement to temporary disability benefits at the Expedited Hearing. Therefore, the Court considers the request waived at this time.
1the Expedited Hearing that, by the term "waistline pain," he meant the pain radiated
across the front and back ofhis body. Mr. Amofa wrote a similar description ofhow he became injured in an "Employee/Manager Medical Statement" dated February 8. (Ex. 11.) Yates introduced no evidence to contradict Mr. Amofa's testimony regarding the mechanism ofinjury.2

Over the next few days, the pain worsened and began radiating down to Mr. Amofa's thighs. /d. at 2. On January 26, he reported the injury to his supervisor, Sheila Geesling, who accompanied him to the Yates Safety Office. Staffthere recommended Mr. Amofa see his personal physician. Despite his report ofinjury, Yates failed to file a FirstReport ofInjury atthattime.

Later that same day, Mr. Amofa saw Dr. John Adewumi, his personal physician. Progress Notes indicate he gave a history ofback pain for one to two months and the mechanism ofinjury was "lifting at work." (Ex. 9 at 22.) Dr. Adewumi assessed low back pain and lower abdominal pain, noting, "symptoms and exams are most consistent ofa benign musculoskeletal back injury." !d. at 25. He ordered x-rays and prescribed pain medications, including Hydrocodone and Metaxalone. (Ex. 1 at 3; Ex. 9 at 26; Ex. 10.) Mr. Amofa co-paid $30 for these medications.3 (Ex. 10.) Dr. Adewumi additionally referredhimtophysicaltherapy. (Ex. 9 at 25.)

Mr. Amofa continued to work, and his symptoms gradually worsened. On February 8, Mr. Amofa again spoke with Ms. Geesling about the injury. The supervisor accompanied him to PremiseHealth, the onsite clinic for Nissan and Yates. Upon arrival at Premise Health, Mr. Amofa completed the Employee/Manager Medical Statement describing the January 2 incident. (Ex. 11.) He additionally signed a Choice of Physician form selecting Premise Health. (Ex. 3.) He explained they gave him the document and told him, "Your first time this is a form you have to sign." Yates completed a First Report ofInjury form on that date, noting that Mr. Amofa saw his personal physician for "back pain" and that he felt "discomfort in his back and waist area." (Ex. 2.)

Once in the Premise Health exam room, Dr. Robert Tessler, a "fill-in doctor," questioned him about his diet, according to Mr. Amofa. (Ex. 1 at 4.) A one-page note documents the encounter. (Ex. 9 at 50.) Dr. Tessler assessed Mr. Amofa with, "[a]bdominal pain likely secondary to constipation and not primarily work related," and, "Will review records and x-ray once obtained but doubtful will support a work related

2The insurance adjuster wrote in the causation letter to Dr. Adewumi, the unauthorized physician, that, "Mr. Amofa is alleging a lower back injury on l/2/l6that he stated [he] was not able to twist due to pain. He didn't note a specific incident that causedthepain." (Ex. ?)(Emphasis added)

. The Court finds the adjuster's assertion thatMr. Amofadid notidentify an injury-causing incident is incorrect.

3 Mr. Amofarefilled the Hydrocodone prescription on March 30.
2diagnosis." Dr. TesslerreturnedMr. Amofato regular duty. !d.

Mr. Amofa testified he returned to Premise some time later and saw Dr. Gilbert Woodall. There are no notes documenting the visit. According to Mr. Amofa, Dr. Woodall told him the injury was not work-related. Mr. Amofa questioned how he reached that conclusion, given that Dr. Woodall had not seen the x-rays. Dr. Woodall's response,perMr. Amofa, was that whetherornothe sawthe x-rays, "Iknowhowto treat
a case." Dr. Woodall leftthe room atthatpoint. Yates offered no evidence to contradict Mr. Amofa's account ofthis conversation.

At avisitto Premise on February 26, Mr. AmofatoldN.P. Candace Humes he was returning "Forfollow up on lumbarpain claim." !d. at 52. She assessed him with "Low back pain-due to EE continuously seeking treatment from his PCP4" and recommended makingthis claim "NOTPRIMARILY WORKRELATED." (Emphasis in original.) NP Humesreturnedhimto workwith restrictions.

The insurance adjuster subsequently sent a letter to Premise. !d. at 55. Specifically, the adjuster asked, "Please provide your expert medical opinion, to a reasonable degree ofmedical certainty, as to whether Mr. Amofa's diagnosis and the need for treatment arises primarily out ofand in the course and scope ofemployment with Yates." "No" is circled in the February 29, 2016 response. The letter is not addressed to any provider in particular, and it bears an illegible signature. In the margin next to the signature are the printed words, "Dr. Woodall." The Premise Health records contain no treatment notes documenting Dr. Woodall's examination ofMr. Amofa, nor are there any indications he reviewed his colleagues' treatment notes. Based on this letter, Yates deniedMr. Amofa's claim on March 3. (Exs. 4, 5.)
Several days after the denial, Mr. Amofa saw Dr. Terri Walker at Premise for the
same back issues. (Ex. 9 at 54.) Dr. Walker's notes state, "Low back pain more likely from spondylosis and DDD as diagnosed by PCP." !d. The notes additionally confirmed thatMr. Amofatold herhis claimwas denied. Dr. Walker adoptedtherestrictionsplaced by Dr. Adewumi.
Meanwhile, Mr. Amofa continued treating with Dr. Adewumi. On February 25, he reported his back pain worsening. !d. at 18. Dr. Adewumi reviewed the x-rays and noted "mild multi-level spondylosis most advanced at L4-L5." !d. at 20. Dr. Adewumi noted the "plan: Explained that symptoms and exam are most consistent exacerbation of lumber [sic] spondylosis due to repetitive activity such as lifting and bending." !d. He diagnosed lumbago, recurrent; spondylosis without myelopathy or radiculopathy, lumbar region; exacerbated, and again referred Mr. Amofa to physical therapy. !d. Mr. Amofa

4 The Court cannot understand this reference, which appears to convey that Mr. Amofa's injury was the result ofcontinuoustreatment with his personal physician. 3participated in physical therapy from March 11-28, per a statement totaling $467.84. (Ex. 10.) He introduced into evidence only notes from the initial physical therapy evaluation (Ex. 9at4 7-48) buttestifiedthatphysical therapy improvedhis condition.

The medical records suggestthat Dr. Adewumi might have referred Mr. Amofato an orthopedist at some point. !d. at 41. While there are no treatment records from an orthopedist, it appears Mr. Amofa saw Dr. JasonHaslambecause Dr. Adewumi'srecords contain a May 31 MRI report listing Dr. Haslam as the referring physician. !d. at 49. That report contains a "history" that reads, "lowbackpain down boththighs since lifting strain inJanuary 2016." !d.

Mr. Amofa returned to Dr. Adewumi on March 29, May 3 and June 6. At these visits, Dr. Adewumi diagnosed low back pain and kept him on restricted duty. Dr. Adewumi additionally responded to a causation letter from the insurance adjuster on December 9, 2016. (Ex. 7.) It asked, "Based on your review and evaluation, can you state with a reasonable degree ofmedical certainty thatMr. Amofa has sustained a work related injury that arose primarily out ofand in the course and scope ofemployment at Yates?" He responded, "Yes," and wrote the "work-relateddiagnosis" as "lowbackpain & muscle spasm." !d.

Mr. Amofatestified that he took FMLA leave until returning to work at Yates but still experiencesbackpain after sitting for extendedperiods oftime.

Mr. Amofa filed aPetition for BenefitDetermination seekingmedical benefits. At the Expedited Hearing, Mr. Amofa asserted the January 2 work incident aggravated the degenerative disc disease in his back and that the Premise Health providers reached an incorrect conclusion regarding causation. Yates countered that Mr. Amofa complained only of"waistline pain," which providers at Premise opined is non-work-related, and the Premise Health causation opinion is correct. Therefore, the denial was proper and Mr. Amofa is entitledto no additional benefits. Findings ofFactand Conclusions ofLaw

In order to grant or deny the reliefMr. Amofa seeks, the Court must apply the following general legal principles. Mr. Amofa, as the employee, bears the burden of proofon all prima facie elements ofhis workers' compensation claim. Tenn. Code Ann. § 50-6-239(c)(6) (2016); see also Buchanan v. Car/ex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *5 (Tenn. Workers' Comp. App. Bd. Sept. 29, 2015). At an expedited hearing, Mr. Amofa has the burden to come forward with sufficient evidence from which this Court can determine he is likely to prevail at a hearing on the merits. McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).

4The specific issue is whether Mr. Amofa suffered an injury as defined under the Workers' Compensation Law. The law defines an injury as "accidental" only if it is caused by a specific incident arising primarily out of and in the course and scope of employment. It excludes the aggravation of a preexisting condition "unless it can be shown to a reasonable degree ofmedical certainty that the aggravation arose primarily out ofand inthe course and scope ofemployment." Tenn. CodeAnn. § 50-6-102(14)(A) (2016). "Shownto areasonable degree ofmedical certainty" means that, inthe opinion of thephysician, it is more likely thannot considering all causes, as opposedto "speculation
or possibility." Tenn. Code Ann. § 50-6-102(14)(D) (2016). Also, the opinion ofthe authorized treating physician selected by the employee from a panel "shall be presumed correct on the issue of causation but this presumption shall be rebuttable by a preponderance oftheevidence." Tenn. CodeAnn. §50-6-102(14)(E) (2016).
Here, Yates challenged Mr. Amofa's account ofthe mechanism ofinjury, noting that the lead adjusted the machinery Mr. Amofa operated on January 2 so that it became comfortable for him to resume using it. Yates, however, introduced no evidence to contravene Mr. Amofa's credibletestimony regarding the pain he experienced as a result ofoperating the equipment. The fact that Yates altered the setting on the machinery to make it easier to use has no bearing on whether it already had caused Mr. Amofa pain and injury.

Yates additionally argued that Mr. Amofa only complained ofwaistline pain and
never stated, "I hurt my back." These assertions are underminedbyboththeFirstReport ofInjury form and the Premise records where NP Humes noted he was "here for follow up on lumbarpainclaim."

Itis undisputed that Yates provided a panel and Mr. Amofa chose Premise as the authorizedtreatingphysician, but only afterarriving atPremise, notbefore, andunderthe apparent beliefhe would not obtain treatment unless he signed. Frankly, the Court is unsettled about this scenario. Nevertheless, under the Workers' Compensation Law, this selection results in a presumption that Premise Health providers' opinions on causation
are correct but rebuttable by a preponderance ofthe evidence. Dr. Woodall apparently opined in a causation letter that Mr. Amofa's injury is not work-related; Dr. Adewumi reachedthe opposite conclusion.5

In resolving such a conflict between medical opinions, a trial court generally has the discretion to choose which expert to accredit. Kellerman v. Food Lion, Inc., 929 S.W.2d 333, 335 (Tenn. 1996); Johnson v. Midwesco, Inc., 801 S.W.2d 804, 806 (Tenn.

5 In finding that Dr. Woodall opined the injury is not work-related, the Court notes the letter does not indicate to whom it was sent and the signature is illegible, yet it affords Premise Health and Yates the benefitofthe doubt and acceptsthatthe letter is what itpurportsto be. 51990). In evaluating conflicting expert testimony, a trial court may consider, among other things, "the qualifications of the experts, the circumstances of their examination, the information available to them, and the evaluation of the importance of that information through other experts." Brees v. Escape Day Spa & Salon, No. 2014-06-0072, 2015 TN Wrk. Comp. App. Bd. LEXIS 5, at *14 (Tenn. Workers' Comp. App. Bd. Mar. 12, 2015), citingOrman v. Williams Sonoma, Inc., 803 S.W.2d672, 676 (Tenn. 1991). Applying these legal principles to the facts ofthis case, the Court observes that neitherparty submitted qualifications ofeitherphysician exceptto acknowledge thatthey
are medical doctors. As for the circumstances ofthe examinations, the medical records document that three different providers from Premise-Dr. Tessler, N.P. Humes and Dr. Walker-actually examined Mr. Amofa. The Court disregards N.P. Humes' opinion because she is not qualified to assess causation. See Dorsey v. Amazon.com, No. 2015- 01-0017,2015 TN Wrk. Comp. App. Bd. LEXIS 13, at *10 (Tenn. Workers' Comp. App. Bd. May 14, 2015) ("The opinion ofthe nurse practitioner

. . . did not and could not provide avalidbasis for denial ofthe claimbased on causation." (Citations omitted.)).

The Court finds Dr. Tessler did not render an opinion on causation, but rather engaged in speculation contrary to section 50-6-102(14)(D) when he noted he would "review the records and x-rays but doubtful will support a work-related diagnosis." There are no records suggesting he performed a record review orread the x-rays to make
a final determination. As for Dr. Walker, her note dated March 11-seven days after Yates denied the claim and eleven days after Dr. Woodall's purported non-work-related finding- contains a history outlining Dr. Adewumi's treatment. She performed an examination but it is unclear whether she reached a conclusion as to the cause ofhis injury; yet she affirmedthe workrestrictions from Dr. Adewumi. Assuming it is indeed his signature on the causation letter, Dr. Woodall appears to have rendered an opinion on causation. However, there is no evidence that Dr. Woodall reviewed his colleagues' notes or any other records ofhis treatment, and he formulated his opinion very early in the treatment process. Although entitled to a presumption of correctness, the Court places little weight upon the causation opinion he gave in the causation letter.

In contrast, Dr. Adewumi appears to have performed complete examinations on at least five occasions over the course ofapproximately five months. It seems reasonable thatthephysicianshaving greatercontactwiththe Plaintiffwouldhavethe advantage and opportunity to provide a more in-depth opinion, ifnot a more accurate one. Orman, at 677. Dr. Adewumi additionally ordered and evaluated the x-rays and presumably reviewed the MRI report. Further, as Mr. Amofa's primary care physician, he possessed greater familiarity with Mr. Amofa's history and had more information available to him when he rendered an opinion. In sum, the Court holds that Dr. Adewumi's opinion on causation rebutted by a preponderance ofthe evidence the presumption ofcorrectness to

6the Premise Health opinion, which, as outlined above, has many deficiencies. Therefore,
as amatteroflaw, Mr. Amofahas come forward with sufficient evidence from whichthis Court concludes he is likely to prevail at a hearing on the merits regarding the compensability ofhis claim. Having so found, the Court next considers Mr. Amofa's entitlement to medical benefits. Mr. Amofacrediblytestifiedthat, although Dr. Adewumi returnedhimto work, he continues experiencingbackpain

. There is no indicationDr. Adewumi orDr. Haslam placed him at maximum medical improvement or assessed an impairment rating. The Court holds that, under Tennessee Code Annotated section 50-6-204(a)(1)(A) (2016), Yates must provide him with past and continuing reasonable and necessary medical treatment related to the injury. Given Dr. Adewumi's familiarity with the injury, it is appropriate that he continue providing treatment, and the Court appoints him as the authorizedtreatingphysician, subjectto any referrals for specialty carehe mightmake. Finally, with regard to sums Mr. Amofa paid for past medical care, the Appeals Board held, "In circumstances where an employer refuses to provide medical treatment and/or denies the employee's claim, such employer bears the risk of being held responsible for medical expense incurred by the employee in the event the claim is deemed compensable." Young v. Young Electric, No. 2015-06-0860, 2016 TN Wrk. Comp. App. Bd. LEXIS 24, at *16 (Tenn. Workers' Comp. App. Bd. May 25, 2016). Here, Mr. Amofa testified that, prior to the denial, Yates directed him to treat with his primary care physician. However, he introduced proof of only the co-pay sums for prescriptions and physical therapy prescribed by Dr. Adewumi relative to the workrelated injury. The Court finds these amounts reasonable and necessary and holds that Yates is responsible for their prompt payment, but cannot order payment for any additional pastmedical care at this time because Mr. Amofa did not satisfy his burden of provingthe amounts he paidforthis care.


### ITIS, THEREFORE, ORDERED as follows:

1. Yates or its workers' compensation carrier shall provide Mr. Amofa with medical treatment as required by Tennessee Code Annotated section 50-6-204 (2016) with Dr. Adewumi or any specialty providers to whom he might refer Mr. Amofa. Medical bills shall be furnished to Yates or its workers' compensation carrier by Mr. Amofaorthe medicalproviders.

2. Yates shall promptly pay and/or reimburse Mr. Amofa $30.00 for the co-pays for his prescription medicines as well as the co-pays to Results Physiotherapy in the amount of$467.84.

3. This matter is set for a Scheduling Hearing on March 6, 2017, at 9:15 a.m. You must call 615-532-9552 or toll-free at 866-943-0025 to participate in the Hearing.

7You must call in on the scheduled date/time to participate. Failure to call in may result in a determination ofthe issues withoutyourfurtherparticipation.

4. Unless interlocutory appeal ofthe Expedited Hearing Order is filed, compliance withthis Ordermust occurno laterthan sevenbusiness days from the date ofentry ofthis Order as required by Tennessee Code Annotated section 50-6-239(d)(3) (2016). The Insurer or Self-Insured Employer must submit confirmation of compliance with this Order to the Bureau by email to WCCompliance.Program@t n.gov no later than the seventh business day after entry ofthis Order. Failureto submitthenecessary confirmationwithintheperiod of compliance may result in a penalty assessment for non-compliance. For questions regarding compliance, please contact the Workers' Compensation Compliance Unit via email WCCompliance.Program@Ln.gov or by calling (615) 253-1471 or (615) 532-1309.

ENTEREDthis the 21st day ofDecember,2016.

Rightto Appeal:

Tennessee Law allows any party who disagrees with this ExpeditedHearing Order to appeal the decisionto the Workers' Compensation Appeals Board. To file aNotice of Appeal, youmust:
1. Completethe enclosed form entitled: "ExpeditedHearingNotice ofAppeal."

2. File the completed form with the Court Clerk within seven business days ofthe date the Workers' CompensationJudge enteredthe ExpeditedHearing Order.

3. Serve acopy oftheExpeditedHearingNotice ofAppealuponthe opposingparty.
4. The appealing party is responsible for payment ofa filing fee in the amount of $75.00. Within ten calendar days after the filing ofa notice ofappeal, payment mustbereceivedby check, money order, orcredit cardpayment. Payments canbe made in person at any Bureau office or by United States mail, hand-delivery, or other delivery service. Inthe alternative, the appealingparty may file an Affidavit ofIndigency, on a form prescribed by the Bureau, seeking a waiver ofthe filing fee. The Affidavit ofIndigency may be filed contemporaneously with the Notice ofAppeal ormustbe filed withinten calendar days thereafter. TheAppeals Board

8will consider the Affidavit ofIndigency 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 ofthe hearing for the purpose ofhaving 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 ofAppeal. Alternatively, the parties may file ajoint statement of the evidence within ten calendar days of the filing of the Expedited Hearing Notice ofAppeal. The statement ofthe 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 submittedto the ClerkoftheAppeals Board.

6. Ifthe appellant elects to file a position statement in support ofthe interlocutory appeal, the appellant shall file suchposition statementwith the Court Clerk within five business days ofthe expiration ofthe 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 ofthe filing ofthe appellant's position statement. All position statements pertaining to an appeal of an interlocutory order should include: (1) a statement summarizing the facts ofthe
case from the evidence admitted during the expedited hearing; (2) a statement summarizing the disposition ofthe case as a result ofthe expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an argument, citing appropriate statutes, case law, orotherauthority.

9APPENDIX
Exhibits: 1. AffidavitofAnthony Amofa, October 31, 2016 2. FirstReport oflnjury,February 8, 2016 3. Choice ofPhysicianForm, February 8, 2016 4. Notice ofDenial,March 3, 2016 5. Denial letter from carrierto Mr. Amofa, March 3, 2016 6. Wage statement 7. Causation letter, December 9, 20166 9. Medicalrecords ofAnthonyAmofa 10.Medical bills 1l.Employee/ManagerMedical Statement, February 8, 2016

Technicalrecord:7 1. PetitionforBenefitDetermination, May 3, 2016 2. Dispute CertificationNotice, June 27, 2016 3. Request for Expedited Hearing, October 31, 2016 4. Employer'sNotice ofFiling,December 8, 2016

6 Yates objected to the admissibility ofPre-marked Exhibit 8, a letter signed by Stephen Johnson, FNPBC, on the basis that Mr. Johnson is not qualified to render an opinion on causation. The Court sustained the objection.

7The Courtdid not considerattachmentsto Technical Recordfilings 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. 10CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy ofthe Expedited Hearing Order was sent to the following recipients by the following methods ofservice on this the 21st day ofDecember, 2016.

Name AnthonyAmofa, selfrepresented

JohnRucker, Employer's attome Certified Mail

X Via Fax Via Email X

X Service sentto:

3209 Grace CrestPoint NashvilleTN37217 ahamofa mail.com jrucker@ruckerlaw.com

Pen 

### y Shrum, Cl rk ofCourt CourtofWorkers' Compensation Claims WC.CourtClerk@tn.gov

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