TENNESSEE BUREAU OFWORKERS' COMPENSATION IN THE COURT OF WORKERS' COMPENSATION CLAIMS AT NASHVILLE Patsy Brumit, Employee, 

### v. VanderbiltUniversity Medical Center, Employer, and Vanderbilt, Carrier. ) DocketNo.: 2016-06-1080 ) ) ) State File Number: 32943-2015 ) ) ) Judge Kenneth M. Switzer )

EXPEDITED HEARING ORDERDENYING REQUESTED RELIEF

This case came before the undersigned Workers' Compensation Judge on the Request for Expedited Hearing filed by Patsy Brumit pursuant·to Tennessee Code Annotated section 50-6-239 (2015). The present focus ofthis case is her entitlement to medical and temporary disability benefits as a result ofan alleged work-related injury to Ms. Brumit's shoulders. The central legal issue is whether her injuries arose primarily out ofand in the course and scope ofher employment. For the reasons set forth below, the Court holds Ms. Brumit is not likely to prevail at a hearing on the merits that her injuries arose primarily out ofand in the course and scope ofher employment and denies the requested reliefatthis time. 1 History ofClaim Ms. Brumit worked for Vanderbilt University Medical Center as a clinical supply tech since 2004. On April 24, 2015, while stocking and pulling supplies, she pulled an exceptionally heavy tote weighing approximately fifty or sixty pounds and felt immediate, sharppaininboth shoulders. Vanderbilt initially accepted her claim as compensable, and she selected Vanderbilt Occupational Health Clinic from a panel of healthcare providers. (Ex. 3.)

1A complete listing ofthe technical record and exhibits admitted at the Expedited Hearing is attached to this Order as an appendix. 1Ms. Brumit testified providers there referred her to a specialist, although neither party submittedmedical records from Occupational Health. As for the specialist referral, Ms. Brumit testified that Occupational Health staff chose Dr. Paul Rummo. Vanderbilt disputed this, offering the testimony ofits Claims Administrator, Jeff Davis, VUMC Risk Management. Mr. Davis said it was "his understanding" that Ms. Brumit likely selected Dr. Rummo onsite at Occupational Health. However, he was unable to locate the form memorializing this choice. Instead, Mr. Davis relied upon a "clinical communication" from staffat Occupational Health to Vanderbilt's Corporate Health Case Manager service advising that they paneled Ms. Brumit and she chose "Dr. Rummo/Dr. Singh." (Ex. 5.) Dr. Rummo saw Ms. Brumit for the first time on June 3, and continued to see her until August 13, treating her conservatively. (Ex. 1 at 1-12.) Dr. Rummo ordered an MRI ofherright shoulder, which revealed full thickness and full width tear ofherrotator cuffwithretraction and atrophy. !d. at 4. In a July 13 office note, Dr. Rummo described the injury as "workrelated," buthe also noted, "it is difficulty [sic] to say ifinjury caused the rotator cufftearing on the right since she has atrophy and retraction, which definitely puts her on the chronic stage[.]" !d. at 6. Ms. Brumit refused surgery at that time, and Dr. Rummo administered injections and recommended physical therapy, along with restrictions onher activity. !d. As she continued to see Dr. Rummo, he ordered x-rays of the right shoulder, which showed acromioclavicular osteoarthritis. !d. at 9. In an office note dated August 13, Dr. Rummo wrote, "I do thinkthat herrotator cufftears are chronic and not acute and notrelated to herwork injury." !d. at 12. Based onthis statement, Vanderbilt denied the claim and advisedMs. Brumit ofthe decision by email datedAugust 18.2 (Ex. 2 at 3.) Following Vanderbilt's denial, Ms. Brumit sought treatment through her private health insurance with Dr. Charles Cox. He performed multiple surgical procedures on both her shoulders to repair the rotator cufftears. (Ex. 1 at 13-45.) In an office note dated August 20, Dr. Cox wrote, "Although she had no pain prior to her injury, the atrophy indicates that she did have a rotator cufftear priorto this. I told her there might be an acute-on-chronic component." !d. at 15. Ms. Brumit continues treating with Dr. Cox. Ms. Brumit argued that ifshe had tears priorto the April 2015 incident, she would have felt pain beforehand, which she did not. She additionally asserted that, because the incident happened at work, it is work-related, and lifting totes at work for the past twelve years has "taken atoll on me."

2 Vanderbilt offered Ms. Brumit a surgical panel for rotator cuffsurgery on August 17, 2015, but withdrew that panel after reviewing Dr. Rummo's August 13 note. 2Vanderbilt argued that Ms. Brumit failed to provide any medical proofthat her injury arose primarily out of and in the course and scope ofemployment. Vanderbilt assertedthat, to the contrary, twophysicians opinedhercondition is notwork-related. Findings ofFact and Conclusions ofLaw The following legal principles govern this case. In general, Ms. Brumit, as the employee, bears the burden of proof on all prima facie elements of her workers' compensation claim. See Tenn. Code Ann. § 50-6-239(c)(6) (2015); see also Buchanan v. Carlex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *5 (Tenn. Workers' Comp. App. Bd. Sept. 29, 2015). Ms. Brumit need not prove every element ofher claim by a preponderance ofthe evidence in order to obtain reliefat an expedited hearing. 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). Rather, at an expedited hearing, she has the burden to come forward with sufficient evidence from which this Court can determine she is likely to prevail at a hearing onthe merits. /d.
To be compensable under the Workers' Compensation Law, an injury must arise primarily out ofand in the course and scope ofthe employment. Tenn. Code Ann. § 50-6-102(14) (2015). The opinion ofthe treating physician selected from a panel "shall be presumed correct on the issue ofcausation but this presumption shall be rebuttable by apreponderance ofthe evidence." Tenn. Code Ann. § 50-6-102(14)(E) (2015). Further, "[i]t is well established that the mere presence in the workplace at the time an injury occurs will not result in the injury being considered as arising out ofthe employment." Thornton v. RCA Serv. Co., 221 S.W.2d 954, 955 (Tenn. 1949). The Court had an opportunity to observe Ms. Brumit and finds she appeared steady, forthcoming, reasonable and honest, which characteristics, according to the Tennessee Supreme Court, are indicia ofreliability. See Kelly v. Kelly, 445 S.W.3d 685, 694-695 (Tenn. 2014). She credibly testified she felt immediate pain in her shoulders when attemptingto move an extraordinarily heavytote at work. However, Ms. Brumit's mere presence at work at the time her injury occurred will not result in this Court considering it as arising out ofemployment. Rather, the Courtmust lookto the opinions ofthe medical experts. Dr. Rummo gave Ms. Brumit the initial impression her condition was workrelated but ultimately concludedherrotator cufftears are "chronic and not acute and not related to her work injury." Ms. Brumit offered no countervailing opmwn. She likewise offered no medicalproofofa gradually occurring injury. Instead, Ms. Brumit disputed selecting Dr. Rummo from a panel, implicitly 3arguing that ifhe is not the authorized treating physician, his opinion is not entitled to a presumption ofcorrectness. With regard to referrals, the Workers' Compensation Law states, "When necessary, the treating physician selected in accordance with this subdivision (a)(3)(A) shall make referrals to a specialist physician, surgeon, or chiropractor and immediately notify the employer." Tenn. Code Ann. § 50-6- 204(a)(3)(A)(ii) (2015). Here, Ms. Brumit selected Occupational Health, and according to her testimony, whomever she saw there referred her to a specialist. Without the medical records, this Court does not know whether the referral called for an individual by name or merely a practitioner within that area ofexpertise. Mr. Davis- also a credible witness- testified that Vanderbilt honored the referral by providing an onsite panel, although he admitted on cross-examination that he does not have a copy ofthe Choice ofPhysicians form documenting her selection.3 Nonetheless, the email from Occupational Health to Corporate Health Case Manager service substantiates Mr. Davis' assertion. Ms. Brumit bears the burden ofproof on all essential elements ofher claim, which would entail introducing the Occupational Health medical records, which presumably might shed some light on the exactnature ofthe referral. However, even if Dr. Rummo were not the authorized treating physician, Vanderbilt correctly observed that both physicians opined Ms. Brumit's injuries are chronic in nature. In support of that position, Vanderbilt pointed out that her unauthorized physician, Dr. Cox, appeared to agree that the injury is not work-related whenhe opined, "Although shehad nopainpriorto her injury, the atrophy indicatesthat she did have arotator cufftearpriorto this. Itold herthere might be an acute-on-chronic component." The Court is cognizant of Ms. Brumit's sincerely-held belief that the work incident caused her bilateral rotator cufftears. Nonetheless, our Appeals Board held that an employee's lay testimony, without corroborative expert testimony, does not constitute adequate evidence ofmedical causation. Scott v. Integrity Staffing Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *11-12 (Tenn. Workers' Comp. App. Bd. Aug. 18, 2015). Notably, in Scott, the Appeals Board observed, "Judges are not well-suited to second guess a medical expert's treatment, recommendations, and or diagnoses absent some conflicting medical evidence or some othercountervailing evidenceproperly admitted into the record." ld. at *8. Therefore, as a matter oflaw, the Court holds Ms. Brumit has not come forward with sufficient evidence showing she is likely to prevail on the issue ofcompensability

3 Vanderbilt's failure to maintain a copy ofthe completed form is a direct violation ofTennessee Code Annotated section 50-6-204(a) (3)(D)(i) (2015). Whether that failure is subject to penalty under Tennessee Code Annotated section 50-6-118(12) (2015) is a question to be addressed by the Bureau's Compliance Program. The Court observes ifit is not cause for a penalty, then the statute is bark withoutbite. 4at a hearing on the merits. Her requests for medical and temporary disability benefits are denied at this time.
ITIS, THEREFORE, ORDERED as follows: 1. Ms. Brumit's claim against Vanderbilt for the requested benefits is denied at this time. 2. This matter is set for an Initial (Scheduling) Hearing on November 21, 2016, at 8:30a.m. Centraltime. ENTEREDthis the4th dayofOctober,2016.

ge Kenneth M. Switzer ConrtofWorkers' Compensation Initial (Scheduling) Hearing:
An Initial (Scheduling) Hearing has been set with Judge Kenneth M. Switzer, Court ofWorkers' Compensation Claims. You must call 615-532-9552 or toll-free at866-943-0025to participatein theInitialHearing. 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 yourfurther participation. Rightto Appeal:
Tennessee Law allows any party who disagrees withthis ExpeditedHearing Order to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice 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 a copy ofthe ExpeditedHearingNotice 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 5mustbereceivedby check, money order, or credit cardpayment. Payments canbe 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 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 within ten calendar days thereafter. The Appeals Board will 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 of the 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 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 submittedto the Clerk ofthe Appeals Board.
6. Ifthe appellant elects to file a position statement in support ofthe interlocutory appeal, the appellant shall file suchposition statement with 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 Clerkwithin 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.

6APPENDIX Exhibits: 1. Medical Records 2. Affidavit ofPatsy Brumit 3. Form C-42, Employee's Choice ofPhysician form 4. MRI films 5. Case manager email documentingreferral, May 5, 2015 Technical record: 1. Petition for BenefitDetermination, June 9, 2016 2. Ms. Brumit'sPre-MediationPosition Statement, undated 3. Employer'sPosition Statement, June 23, 2016 4. Dispute CertificationNotice, July 14, 2016 5. Request for Expedited Hearing, August 3, 2016 6

. Request for Expedited Hearing, August 15,2016 7. Vanderbilt's Response in Opposition to Request for Expedited Hearing, September 15, 2016

CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the Expedited Hearing Order Denying Requested Reliefwas sent to the following recipients by the following methods ofservice onthis the 4th day ofOctober, 2016.

Name Certified Via Mail Fax PatsyBrumit, X Self-represented Employee Nathaniel Cherry, Employer's Counsel Compliance Program Via Service sentto: Email 9069 Highway 49 East, Orlinda, TN 37141

X ncherry@howardtatelaw.com

X WCComoliance.orogramraJ.tn,_gov

Penny Shrum, ClerkofCourt CourtofWorkers' CompensationClaims WC.CourtClerk@tn.gov
7