1 TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT KINGSPORT

Giovanna Meier

, ) Docket No. 201 5

- 02

- 0 179 Employee, )

v. ) ) State File No. 42423

- 2015

Lowes Home Centers, Inc.

, ) Judge Brian K. Addington Employer. )

COMPENSATION HEARING ORDER

This matt er came before the undersigned W orkers’ C ompensation J udge on May 18, 2017, and June 9

, 201 7

, for a Compensation Hearing

. Ms. Meier brought this action

for temporary and permanent disability benefits and medical benefits.

T he central legal issue s are 1) whether Ms. Meier sustained a work

- related low

back injury by accident on April 27, 2017 , and 2) whether Lowes is responsible for unauthorized medical benefits, temporary disability benefits, and permanent partial disability benefits. F or the reason s set forth below, th is Court finds Ms. Meier failed to

establish by a prep onderance of the evidence that s he sustained a work

- related low

- back inju ry

. Accordingly, the Court hol ds that M s. Meier is not en titled to the requested workers’ compensation benefits from Lowes

.

History of Claim 1

Ms

. Meier is thirty

- nine year s old and wo rked as a customer service representative

for Lowes

. Ms. Meier, a Peruv ian, testified she i s only seventy percent proficient in

E nglish. She did not understand workers’ c ompensation prior to her injury, as it was not

available in Peru. When she started work for Lowes, no one explained to her how to file

1 The Court’s history includes testimony from Mr. and Ms. Meier during the Expedited Hearing and Ms. Meie r during Compensation Hearing. The Court takes judicial notice of testimony heard and exhibits admitted into evidence at the prior in

- person Expedited Hearing. See Hughes v. New Life Dev. Corp. , 387 S.W.3d 453, 457 n.1 (Tenn. 2012), holding, “we are perm itted to take judicial notice of the facts from earlier proceedings in the same

action.”2 a claim for workers’ compensation benefits

.

On April 2 7 , 2015 , Ms. Meier moved t w o concrete bags from on e shopping cart to another. She testified that, w hile doing so

, she felt pain in her left hip and knee. She did not report an injury that day. Instead, she went ho me
, took a pain pill and went to sleep.

Ms. Meier was not scheduled to work the next day. She testified she took additional pain medicine and decided to go to the emergency room . She had to pick up her daughter from school at 4:15 p.m., so she waited until then to go to the emergency

room

. After picking up her daughter, she noticed an electronic sign that informed the public there was a long wait at the emergency room, so she stopped at Dollar Tree to purchase some bread. While she was there

, she b ent to pick up the bread and testified she experienced pain in her back, hip, and leg. Mr. Meier observed Ms. Meier indicate pain when she bent over to pick up the bread.

Mr. and Ms. Meier testified they went straight to the emergency room after purchasing the bread; however, the emergency roo m notes indicate Ms. Meier arrived at 6:13 p.m., approximately two hours after picking up her daughter from school.

Ms. Meier treated at Johnson City Medical Center. Her chief complaint

referenced both the incident at Lo wes and when she was shopping. There is no mention of hip or back pain in the records, and a diagram on the physical examination page shows an arrow point ing to her left kneecap . Charity Styles, DO, diagnosed Ms. Meier with a

left

- knee sprain and provided her with crutches and a knee b race.

Ms. Meier returned to work on crutches the next day. Although everyone saw her

with the crutches

, no one mentioned workers’ compensation. During the day, a customer discussed workers’ compensation with her, so she decided to report her injury. Her injury report that day noted she lifted cement bags but did not realize there was any problem until later that night

, when her knee swelled and she then experienced pain.

The following day

, Ms. Meier completed a second injury report. This time she

incl uded both incidents. C oncerning the incident at Lowes, she said it was not painful at

all when it occurred and she just took an Advil at home. Concerning the incident while shopping, she indicated her knee felt like it was out of place, started swel ling, and caused

“ horrible pain. ” Ms. Meier returned home and took two Advil. The pain did not subside

, so she went to the emergency room at 7:00 p.m. because the pain was “worst every time.”

Following Ms. Meier’s second report, Lowes denied her claim , so she sought unauthorized medical treatment with Dr. Joseph Grant with Watauga Orthopedics. During her first examination w ith Dr. Grant on April 30, there w as no discussion about

any body part other than her knee. Dr. Grant assessed a recurrent sublux ation of the patella and recommended physical therapy. During follow

- up two weeks later

, Dr. Grant3 additionally assessed current tear of lateral cartilage or meniscus and localized

chondromalacia.

On May 28 , Dr. Grant assessed localized chondromalacia and for the first time mentioned “mile sciatica” after Ms. Meier stated that “the whole leg aches now.” Dr.

G rant ordered an MRI in June

, which revealed minor knee issues

, but he also referred her to her PCP because she suffered some sciatic symptoms.

Ms. Meier continued to work with restrictions without missing any substantial

time. Dr. Grant took Ms. Meier off work on July 9 until she could be evaluated by a spine specialist.

Ms. Meier came under the care of spine specialist Dr. Benjamin Knox for her sciatic symptoms. During her first appointment with Dr. Knox, Ms. Meier related the

incident at Lowes but did not discuss the incident at Dollar Tree. Dr. Knox noted pain in the thigh radiating into the calf with some back pain. He noted

, “It is no t necessarily confluent with her leg pain.” Eventually Ms. Meier underwent a laminotomy at L5

- S1 on

Nov ember 23

. Dr. Knox later assessed fibromyalgia syndrome on February 18, 2016

, and conti nued Ms. Meier off work for six weeks.

Ms. Meier later came u nder the care of Dr. Richard Duncan. Ms. Me ier testified

she underwent physical therapy at his direction. Dr. Duncan completed a medical records

review of Dr. Gr ant’s and Dr. Knox’s records at the request of Ms. Meier. He related her knee, thigh, and ba ck pain to the lifting incident at Lowes based on the history Ms. Meier provided, which did not include the incident at Dollar Tree but included as Dr. Duncan understood a “a pop and immediate pain in the back

. ”

Dr. Duncan also signed a C

- 32 Standard Fo rm Medical Report for Industrial Injuries and an attached C

- 30A. However, Dr. Duncan did not attach his CV, and the

repo rt filed was not an original. It did not contain his or Ms. Meier’s a ttorney’s supporting affidavit. Dr. Duncan found Ms. Meier reach ed maximum medical

im provement on December 27, 2016, and retained an eight

- percent whole body impairment.

Parties ’ Assertions at the Compensation Hearing

At the Compensation Hearing, Ms. Meier argued she suffered a back injury as a

result of the lifting incident at Lowes. She asserted she had difficulty explaining the full nature of her injury to Lowes and providers due to issues with the English language. She downplayed the incident at Dollar Tree

, asserting that it was just a continuation of t he pain she already suffered. She acknowledged she underwent unauthorized medical

treatment but that she had no choice since Lowes denied her claim. She asserted the Court should take judicial notice of Dr. Duncan’s credentials

, since he did not attach a4 CV to his C

- 32 form. She further argued entitlement to temporary total disability benefits from July 10 , 2015, until December 27, 2016; payment o f unauthorized medical benefits; and permanent benefits represent ing her eight

- percent whole body impairment.

Lowes a sserted that Ms. Meier gave different versions of events to Lowes a nd medical providers, noting her failure to tell them about the incident at Dollar Tree, even when the Court in a pri or order suggested the incident should be addressed by the

p roviders. Further, Ms. Meier failed to submit any admissible expert testimony concerning causation of her inj ury or the impairment she retain ed. As such, Lowes asked the Court to deny Ms. Meier’s claim for benefits.

The parties ’ Joint Pre

- Compensatio n Hearing Statement contained a stipulation to Ms. Meier’s average weekly wage at $200.85 and compensation rate of $133.90. However, the final DCN filed by the mediator stated the parties had not agreed on t hese

issues. Ms. Meier contended her correct co mpensation rate i s $136.63, while Lowes argued the stipulated rate should be the rate the Court used if it awarded benefits. The wage statement filed in this matter contains a total paid of $10,042.42 for forty

- nine weeks of employment.

Findings of F act and Conclusions of Law

The employee in a workers’ compensation claim has the burden of proof on all

essential elements of the claim. Scott v. Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24

, at *6 (Aug. 18, 2015). “ [ A ] t a compensation hearing where the injured employee has arrived at a trial on the merits, the employee must establish by a preponderance of the evidence that he or she is, in fact, entitled to the requested benefits.” Willis v. All Staff , 2015 TN Wrk. Com p. App. Bd. LEXIS 42

, at * 18 (Nov

. 9, 2015); s ee also Tenn. Code Ann. § 50

- 6

- 239(c)(6) (201 5 ) (“[T]he employee shall bear the burden of proving each and every element of the claim by a preponderance of the evidence.”).

Based on this burden, t he ini tial hurdle Ms. Meier must surmount is whether she suffered an injury at work. Tennessee Code Annotated section 50

- 6

- 102(14) (2016) defines an “injury” in pertinent part as “an injury by accident . . . arising primarily out of and in the course and scope of em ployment that causes death, disablement, or the need

for medic a l treatment of the employee.” (E mphasis added

. ) It is not enough for an employee to show a connection be tween her work and an injury. Rather, s he must provide an expert medical opinion that h er employment contributed more than fifty percent in causing her injury, considering all causes

. See Tenn. Code. Ann. § 50

- 6

- 102(14)(B) (2016) . (E mphasis added.)

Ms. Meier ’s case is complicated in that she originally reported a left

- leg inj ury and

later a low

- back injury and also had another incident a day after the first accident at

Lowes in which she suffered pain in her back while shopping. To further complicate5 matters, Ms. Meier now denies she injured her leg at all. As this matter does not involve an obvious injury

, Ms. Meier must present expert medical testimony to support her claim

for benefits. Scott , supra at *10

- 11

.

Although Dr. Knox and Dr. Duncan related Ms. Meier’s injury and need for

treatment to the incident at Lowes, neither st ated it arose primarily from that event

. Also,

Dr. Knox never stated he was addressing the issue with in a reasonable degree of medical certainty. However, a physician need not use particular words or phrases included in the statute to establish the requisite medical proof. Panzarella v. Amazon.com , 2017 Wrk. Comp. App. Bd. LEXIS 30, at *14 (May 15, 2017). The Court is more concerned with

sufficien t proof to establish these statutory requirements.

Here, the history Dr. Duncan related in the Medical Records Review does not conform to Ms. Meier’s testimony at trial. Ms. Meier never testified she felt a pop and immediate pain in her back at Lowes, yet that is what Dr. Duncan recorded and

considered

. Neither party took the de position of any physician to clarify the issue

.

Further, neither Dr. Knox nor Dr. Duncan considered the incident at Dollar Tree. Ms. Meier asserted it was unnecessary for t hem to consider that incident, but Ms. Meier herself considered it noteworthy when she went to the emergency room and noteworthy

of mention in her second report to Lowes. The Court notes that Ms. Meier did not go to the emergency room until after th e Doll ar Tree incident and that f ollowing the Dollar

Tree incident her pain was “horrible.” Based on the evidence submitted, t he Court is not

satisfied that either Dr. Knox or Dr. Duncan considered all causes in coming to their respective causation opinions.

Even if Ms. Meier had obtained an opinion that her injury arose primarily out of and in the course and scope of her employment, her attempt at presenting expert testimony concerning h er impairment failed . Lowes objected to Dr. Duncan’s C

- 32. The

Workers ’ Compensation Law allows a physician to “testify” by submitting an original ly signed C

- 32 or a copy of it with an affidavit by the physician or submitting attorney

veri fying the contents. Tenn. Code Ann. § 50

- 6

- 235(c)(1) (2016). The report must

cont ain the physician’s statement of qualifications. Id . The Court declin es to take judicial notice of Dr. Duncan’s qualifications, as this is not contemplated by the statu te in question. Ms. Meier submitted no affidavit to the copy of the report and no stateme nt of qualifications; thus

, the C

- 32 Ms. Meier attempted to submit is not admissible

.

Consequently, Ms. Meier has not carried her burden to establish that s he suffered a compensable injury while working fo r Lowes on April 27 , 2015, and h er claim for the requested workers’ compens ation benefits arising from that date of injury is denied.6 Alternative Findings

Solely in the event that an appellate body finds error in the compensability holding, the Court makes the following alternative findings for the sake of judicial

economy. See Cunningham v. Shelton Sec. Serv., 46 S.W.3d 131, 137

- 138 (Tenn. 2001). (“The trial court should . . . hear the entire case and make appropriate findings of fact, and alternative findings when necessary, for appellate rev iew.”) The following findings

are sol ely for this purpose and are not the conclusions of this C ourt but are alternative findings in the event an appeal results in reversal of this Court’s conclusion s set out
above.

• The Court finds Ms. Meier’ s average weekly wage is $204.95 and her compensation rate is $136.63 based on her earnings of $10,042.42 for the forty

- nine weeks contained on the wage statement.

• Based on Dr. Duncan ’s rating, Ms. Meier is entitled to an ini tial award of benefits for an eight

- percent permanent partial disability to the body as a

whole or thirty

- six weeks of benefits beginning December 27, 2016

. Ms. Meier’s initial period of benefits equates to $4,918.68.

• Ms. Meier is entitled to thirty

- seven weeks and six days of temporary total disability benefits (July 10, 2015, to March 31, 2016) or $5,172.43.

• Lowe ’s shall pay the medical expenses incurr ed as a result of the April 27

, 2015 work in jury as contained in exhibit 6

.

BASED ON THE CONCLUSIONS OF THE COURT SET OUT ABOVE, IT IS, THEREFORE, ORDERED a s f ollows:

1. Ms. Meier did not establish by a preponderance of the evidence that s he sustained an injury arising primarily out of an d in the course and scope of her employment. Her claim for all requested benefits is denied.

2. Lowes shall pay the $150.00 filing fee under Tennessee Compilation Rules and Regulations 0800

- 02

- 21

- .07 (2016) , for which execution may issue, if

necessary

.

3. Lowes shall complete and file with the Bureau an SD

- 1 within ten days of this judgment.

4. This is a final judgment.7 ENTERED this the 20 th day of June , 2017.

/s/ BRIAN K. ADDINGTON

HON. BRIAN K. ADDINGTON

Workers’ Compensation Judge8 APP ENDIX

Technical record :

• Initial Hearing Order

• Amended Scheduling Order

• Final Dispute Certifica tion Notice

• Joint Pre

- Compensation Hearing Statement

• Technical Record from the Expedited Hearing

• Employer’s Motion to Strike

Stipulated Findings of Facts of the Parties:

• Ms. Meier’s alleged date of injury is April 27, 2015.

• Ms. Meier is thirty

- nine years old and a r esident of Washington County, Tenn

.

Stipulated Conclusions of Law:

• This claim is governed by the Workers’ Compe nsation Laws for the State of

Tennessee

.

• An employment relationship existed between Ms. Meier and Lowes at all relevant

times.

Exhibits:

1. Collective Exhibit containing the exhibits from the Expedited Hearing

2. Wage Statement

3. Dr. Duncan’s Medical Records Review Report 2

4. Dr. Duncan note addressing causation and impairment (for Identification only) 3

5. Dr. Duncan’s C

- 32 and attached C

- 30 (for Identification only)

. 4

6. Collective exhibit

- Medical Bills 5

2 Lowes objected to this report as it was not signed. However, the Court concludes the report contains a typed signature. Lowes ’ objection is overruled.

3 Lowes objected to this report

, as it was not signed. Although it does appear to the Court to obtain a typed signature, this report appears to be an attachment to the C

- 32

, as it was created on the same day as the C

- 32. The

Court ruled the C

- 32 was inadmissibl e, so this attached report is inadmissible as well.

4 The admissibility of this exhibit is addressed in the body of the Order.

5 Lowes objected to the admissibility of these medical bills and asked the Court to strike them as being medical

records that were not properly provided prior to Compensation Hearing. The Court overrules the objection . The Court acknowledges the parties did not reach an agreement as to which or any of the medical bills were for Ms. Meier’s alleged injury ; however, the parties had opted to wait until after the Compensation Hearing to provide the records. The Court refused to allow the parties to bifurcate the issue and required Ms. Meier to file them when the

Co urt re

- opened proof for the purpose of submit ting the records and hear ing argument for and against their admissibility

. The Court further notes that Ms. Meier neither laid a pro per foundation for these medical bills nor did she provide a certification from the provid ers to the accuracy of the them , but the employer failed to object on these grounds.9 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Compensation Hearing Order was sent to the following recipients by the following me thods of service on this the 20 th
day of June , 2017

.

Name Certified

Mail Fax Email Service sent to:

Todd East , Esq.

, Employee’s Attorney X todd@toddeast.com jennifer@toddeast.com Jess Maples , Esq. Employer’s Attorney X Jess.maples@leitnerfirm.com

____ /s/ Penny Shrum

__ ________________ PENNY SHRUM, COURT CLERK wc.courtclerk@tn.gov