1 TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT MURFREESBORO

ANGELA HEWLETT )

Employee, ) Docket No. 2015

- 05

- 0003 )

v. ) State File No. 879

- 2015 )

SMX STAFFING )

Employer,

And

NEW HAMPSHIRE INS. CO.

,

Insurer. ) ) ) ) ) ) Judge Dale Tipps

EXPEDITED HEARING ORDER DENYI NG REQUESTED BENEFITS

This matter came before the undersigned workers’ compensation judge on June 29, 2016 , on the Request for Expedited Hearing filed by the employee, Angela Hewlett

, pursuant to Tennessee Code Annotated section 50

- 6

- 239 (201 5 ). The presen t focus of

this case is whether Ms. Hewlett is entitled to additional medical treatment . The central legal issue is whether the evidence is sufficient for the Court to determine that Ms.

Hewlett is likely to establish at a hearing on the merits s he suffered an injury arising primarily out of an d in the course and scope of h er employment

. For the reason s set forth below, the Court finds Ms. Hewlett is not entitled to the requested medical benefits at this

time

. 1

History of Claim

The following facts were established at the Expedited Hearing on June 29, 2016

.

1 A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order as an appendix.2

Ms. Hewlett is a fifty

- five

- year

- old resident of Midway, Alabama

. She testified that

while working for the employer, SMX Staffing, on November 20, 2014, she fell and injured her elbow. She reported the injury, and SMX provided a panel of physicians.

Ms. Hewlett sel ected Dr. Phillip Coogan fro m the panel on February 19, 2015

. (Ex. 3.)

Ms. Hewlett testified that

, prior to receiving the physician’s panel

, she treated with Dr. Christian Vissers, who sent her for electrodiagnostic testing with Dr. Garrison

Stricklan d. Dr. Strickland’s report of December 24, 2014, indicated a severe bilateral median nerve entrapment at the wrists, consistent with bilateral carpal tunnel syndrome. Although she reported her right elbow was particularly painful, Dr. Strickland noted no evidence of right ulnar neuropathy. (Ex. 6.)

Dr. Coogan saw Ms. Hewlett on February 26, 2015. He noted she had “persistent carpal tunnel,” as well as right, middle, and ring finger triggering. She described the problems as beginning in November when she fell and injured her elbow. He noted she returned to production work, but subsequently quit in November. She then saw Dr. Vissers, who diagnosed carpal tunnel syndrome and recommended a carpal tunnel release. Dr. Coogan diagnosed sever e bilateral carpal tunnel syndrome , and stated this condition did not arise primarily out of the November 20, 2014 fall, nor Ms. Campbell’s other job duties with SMX. (Ex. 2.)

Following SMX ’s denial of her claim, Ms. Hewlett filed a P etition for B e nefit

D etermination seeking medical and temporary disability benefits . The parties did not resolve the disputed issues through mediation

, and the Mediati ng Specialist filed a
D ispute C ertification N otice , certifying the issues of compensability and medica l

treatment . Ms. Hewlett filed a Request for Expedited Hearing

.

At the Expedited H earing, Ms. Hewlett assert ed she was entitled to additional medical treatment. She contended Dr. Coogan only addressed her carpal tunnel syndrome, for which she is not seeking benefits. Therefore, she argues he failed to properly examine or diagnose her right elbow condition. She seeks an order requiring SMX to provide additional medical treatment for her elbow, which continues to hurt.

SMX counter ed it has provided all the benefits to which Ms. Hewlett is entitled. It argued the authorized treating physician (ATP), Dr. Coogan, opined Ms. Hewlett’s

condition is not work

- related, and as she has not presented any medical testimony to the contrary, Ms. Hewlett cannot meet her burden of proving a compensable claim.

Findings of F act and Conclusions of Law

The following legal principles govern this case. Because this case is in a posture of an Expedited Hearing, Ms. Hewlett need not prove every element of her claim by a preponderance of the evidence in order to obtain relief. McCord v. Advantage Human3

Reso urcing , No. 2014

- 06

- 0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7

- 8, 9 (Tenn. Workers’ Comp. App. Bd. Mar. 27, 2015). Instead, she must come forward with

suffi cient evidence from which this C ourt might determine she is likely to prevail at a hearing on the merits. Id .; Tenn. Code Ann. § 50

- 6

- 239(d)(1) (2015). In analyzing

whether s he has met her burden, the Court will not remedially or liberally construe the law in her favor, but instead shall construe the law fairly, impartially, and in accordance

wit h basic principles of statutory construction favoring neither Ms. Hewlett nor SMX

. See Tenn. Code Ann. § 50

- 6

- 116 (2015).

To prove a compensable injury, Ms. Hewlett must show her alleged injury arose primarily out of and in the course and scope of h er employment. Tenn. Code Ann. § 50

- 6

- 102(14) (2015). To do so, she must show her injury was caused by an incident, or specific set of incidents, identifiable by time and place of occurrence. Tenn. Code Ann. §

50

- 6

- 102(14)(A) (2015). Further, s he must show, “to a reasonable degree of medical certainty that it contributed more than fifty percent (50%) in causing the . . . disablement or need for medical treatment, considering all causes.” Tenn. Code Ann. § 50

- 6

- 102(14)(C) (2015). “Shown to a reasonable degree of medical certainty” means that, in the opinion of the treating physician, it is more likely than not considering all causes as opposed to speculation or possibility. Tenn. Code Ann. § 50

- 6

- 102(14)(D) (2015).

Applying these principles to the fac ts of this case, the Court cannot find that Ms. Hewlett appears likely to meet her burden of proving a compensable injury. M s. Hewlett

selected Dr. Coogan from a panel of physicians provided by SMX

. Therefore, Tennessee

Code Annotated section 50

- 6

- 102(1 4 )(E) (201 5 ) establishes a rebuttable presumption of

correctness for Dr. Coogan ’s caus ation opinion. That opinion stated Ms. Hewlett ’s condition did not arise primarily out of her employment.

Ms. Hewlett objects to Dr. Coogan ’s opinion on the ground it was medically

deficient. While her concern that Dr. Coogan failed to address her elbow complaints is understandable, the medical records admitted into evidence do not support it. Dr. Coogan noted in Ms. Hewlett’s history she reported her pro blems beginning with a fall at work in November. Even though he was aware of both the accident and Ms. Hewlett’s suspicion it was the cause of her symptoms, he still diagnosed her underlying problem as carpal tunnel syndrome, rather than an elbow pro blem. Further, Dr. Strickland’s testing specified a finding of no ulnar neuropathy.

More importantly, Ms. Hewlett submitted no medical evidence to support her claim that Dr. Coogan’s opinion was invalid. Her allegations regarding the quality of Dr. Coog an’s evaluation constitute nothing more than a lay opinion. The Court cannot substitute its medical opinion, or that of Ms. Hewlett, for the professional opinion of Dr. Coogan. Absent a contrary medical opinion, she cannot rebut the presumption of

correc tness afforded Dr. Coogan’s opinion by the statute. Scott v. Integrity Staffing

Solutions , No. 2015

- 01

- 0055

, 2015 TN Wrk

. Comp

. App

. Bd

. LEXIS 24 , at *8 ( Tenn.4

Workers’ Comp. App. Bd. Aug. 8, 2015).

Therefore, as a matter of law, Ms. Hewlett has not come forward with sufficient

evidence from which this Court concludes she is likely to prevail at a hear ing on the

merits. H er request for medical treatment is denied at this time.

IT IS, THEREFORE, ORDERED as follows:

1. Ms. Hewlett ’ s claim against SMX and its workers’ compensation carrier for the requested medical benefits is denied at this time

.

2. This matter is set for a n Initial (S cheduling) Hearing on August 18, 2016

, at 9:00

a.m.

ENTERED this the 1st day of July
, 2016

.

_____________________________________ Judge Dale Tipps

Court of Workers’ Compensation Claims

Initial (Scheduling) Hearing :

A n 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.5

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 th e 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 a n 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 Cle rk 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 o f 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 app ellant elects to file a position statement in support of the interlocutory appeal, the appe llant 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 eviden ce, 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 st at ements 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.6 APPENDIX

Exh ibits :

1. Affidavit of Angela Hewlett

2. February 26, 2015 office note of Dr. Philip Coogan

3. C

- 42 Choice of Physician Form

4. C

- 41 Wage Statement

5. C

- 23 Notice of Denial

6. December 24, 2014 report of Dr. Garrison Strickland

7. Acknowledgment Letter and Email (Identification Only)

8. Medical Bills and Physical Therapy Records (Identification Only)

9. Supportive Feedback documents (Identification Only)

10. Premier Radiology records on disc (Identification Only)

11. Surgical information sheets from Premier Orthopaedics (Iden tification Only)

Technical record: 2

1. Pet ition for Benefit Determination

2. Dispute Certification Notice

3. Request for Ex pedited Hearing

2 The Court did not consider attachments to Technical Record filings unless admitted into evidence during the Expedited Hea ring. The Court cons idered factual statements in these filings or any attachments to them as allegations unless established by the evidence.7 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 1st day of July

, 2016

.

Name Certified

Mail Fax

Number Via

Email Email Address

Angela Hewlett X P.O. Box 281 Midway, AL 36053 Jared Renfroe, Attorney X jrenfroe@spicerfirm.com

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