TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
PAULETTE CARTER, ) Docket No. 2019-05-1059
Employee, )
V. )
FRITO-LAY, INC., ) State File No. 52007-2019
Employer, )
And )
INDEMNITY INS. Co. ) Judge Dale Tipps
Carrier. )
EXPEDITED HEARING ORDER DENYING BENEFITS
This case came before the Court on July 2, 2020, for an Expedited Hearing on
whether Ms. Carter is entitled to additional medical and temporary disability benefits. To
receive these benefits, Ms. Carter must show that her time off work and her need for
additional medical treatment arose primarily out of and in the course and scope of her
employment. The Court holds Ms. Carter failed to meet this burden and denies the
requested benefits.
History of Claim
Ms. Carter was at work on June 9, 2019, when a stack of boxes fell on her. She
reported the injury and received on-site physical therapy treatments for several days until
Frito-Lay provided a panel of physicians. Ms. Carter selected Occupational Health Group
(OHG), where an MRI revealed several tears and a bone lesion. The doctor at OHC
referred Ms. Carter to her primary care physician to address the lesion and referred her to
an orthopedic specialist for her work injuries. She selected Dr. Troy Layton from a panel
of physicians.
Ms. Carter had her first appointment with Dr. Layton on July 29 for complaints of
pain and weakness in her right shoulder. He observed the bone lesion in the glenoid that
was not work-related and noted that she had already had a bone scan to diagnose the lesion.
Regarding the work injury, he was “very concerned that the radiologist under-read the
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severity of the tear.” He diagnosed sprain of the right shoulder cuff capsule and
impingement syndrome of the right shoulder, and he performed a subacromial injection.
When Ms. Carter returned on August 26, Dr. Layton noted that she was “getting a workup”
at Vanderbilt regarding the lesion. He recommended arthroscopy with decompression and
rotator cuff repair once that workup was complete.
Ms. Carter filed a petition for benefit determination after Vanderbilt sent its findings
to Dr. Layton. The petition stated she was concerned about proceeding with the
arthroscopy because she was unsure whether Dr. Layton was taking her other conditions
into account. She testified that as a result, Dr. Layton agreed to perform a MR arthrogram
When Ms. Carter next saw Dr. Layton on October 8, he noted that “there is really
nothing I can offer her until we get the MR arthrogram which we recommended... a month
ago and apparently was approved but for some reason was not performed.” He could not
comment on Ms. Carter’s complaints of pain between the shoulder blades or in the neck
because he does not treat that part of the body. He had “no explanation for why her
shoulder appears to be dropping other than voluntary muscular temporary dysfunction.
There is no intra-articular shoulder pathology, rotator cuff or labral, that would cause this.”
Reviewing the MR arthrogram on October 22, Dr. Layton said that the labrum was
completely intact, although there was some chronic joint arthrosis. He also discussed a
“very limited partial-thickness tear” on the undersurface of the supraspinatus. Dr. Layton
recommended non-surgical management and referred Ms. Carter to a physiatrist for her
complaints of neck pain.
Ms. Carter next saw Dr. Layton on November 14. His office note for that visit is
unusual, in that that it only recites the past medical history with no history of her present
illness or reason for her visit. It also contained no information in the “Impression and Plan”
section other than the notation “patient education.” However, the Employee Return to
Work form from that date shows that he reiterated his physiatrist referral, this time
specifying “refer to Dr. Hazlewood.”
On December 3, Ms. Carter returned to Dr. Layton. She had not yet seen a
physiatrist but said the appointment had been set. He told her that her shoulder blade pain
was brought on by her physical therapy for the work injury, but the medial shoulder and
neck pain was not related to her right shoulder injury. Dr. Layton reiterated that he would
not recommend surgery and that the bone lesion is not work-related. He said he would see
her on an as-needed basis.
Dr. Hazlewood first saw Ms. Carter on December 9. His impression included
chronic right shoulder pain, with the MRI showing “some partial rotator cuff tears, but
nothing significant.” He felt Ms. Carter’s guarding and atypical pain behavior was out of
proportion to her MRI findings. Dr. Hazlewood noted her history of fibromyalgia and
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chronic opioid dependency and felt that might be factoring into her presentation. He
doubted cervical disc herniation but recommended a cervical spine MRI and EMG of the
right arm.
Ms. Carter returned to Dr. Hazlewood after her tests. He found degenerative
changes and bilateral osteophytic disc complexes but no acute disc pathology. The EMG
showed carpel tunnel syndrome but no cervical radiculopathy or brachial plexopathy. Dr.
Hazlewood had no further recommendations and placed Ms. Carter at MMI. He wrote,
“Tt]he type of injury she describes should not cause any structural neck pathology.” He
characterized “subjective pain and no objective explanation” but said he would see Ms.
Carter again as needed.
For several years before her work injury, Ms. Carter regularly saw her personal
physician, Dr. Paul Sain, for chronic pain management. His records show he prescribed
opioids for fibromyalgia and neuropathy. Ms. Carter continued to treat with Dr. Sain after
her work injury, and he referred her to an orthopedic specialist, Dr. Robert Beasley, who
assessed AC joint arthritis and an incomplete tear of the right rotator cuff, “unspecified
whether traumatic.”
Dr. Sain completed a C-30A Final Medical Report on June 20, 2020, stating that
Ms. Carter was unable to work from January 16, 2020, to the present. He also wrote a
letter that stated he had “witnessed more of an effort to determine who was responsible for
her symptoms rather than an effort to treat the patient and get to the root of her problems.”
He concluded:
I feel, that as her family physician, I am best qualified to coordinate her care
and recommend treatment and referrals. I have been very limited in this case
and I feel that the system has failed Mrs. Carter. Whether the subchondral
cyst was present prior to the injury, or a result of the injury (as was the
opinion of her orthopedic oncologist); whether the arthritis in her cervical
spine was a predisposing factor, or the bulging discs in her neck were present
before or after the injury, these things are irrelevant to me as a family
physician. I just know that she has been in pain, she has been shuffled around
the system, and she has been unable to get needed care that I cannot provide.
At the hearing, Ms. Carter explained that she appreciates the treatment she received,
but it has not solved her problems. She feels that her injuries have made her a completely
different person, and she wants her pre-injury life back. In her Pre-Trial Brief, she
requested: 1) a neurosurgeon or orthopedic surgeon to evaluate her cervical spine and right
shoulder; 2) “medical benefits for work related injuries;” 3) compensation for time lost in
wages and mileage; 4) reimbursement of medical bills and mileage; and 5) for Dr. Sain to
oversee and coordinate all future medical care. Additional issues identified in the joint
Pre-Compensation Hearing Statement are: 6) not receiving a panel within three days of
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injury; 7) not receiving a panel for physiatrist referral; and 8) job status — returning to Frito-
Lay when she is able.!
Frito-Lay contended that Ms. Carter is not entitled to additional benefits. It pointed
out that she received medical benefits through authorized specialists and temporary
disability benefits during the time those physicians took her off work. Frito-Lay argued
that both authorized doctors have given an opinion that Ms. Carter’s current symptoms are
not related to her work accident and have dismissed her from care. Therefore, she is not
entitled to any additional treatment. Finally, Ms. Carter is not entitled to a second opinion
because neither authorized doctor is currently recommending surgery.
Findings of Fact and Conclusions of Law
Ms. Carter must provide sufficient evidence from which this Court might determine
she is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1)
(2019); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS
6, at *7-8, 9 (Mar. 27, 2015). To prove a compensable injury, Ms. Carter must show that
her alleged injuries arose primarily out of and in the course and scope of her employment.
This includes the requirement that she must show, “to a reasonable degree of medical
certainty that [the incident] contributed more than fifty percent (50%) in causing the .. .
disablement or need for medical treatment, considering all causes.” “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.
See Tenn. Code Ann. § 50-6-102(14).
Medical Benefits
Frito-Lay does not dispute that an injury occurred. The first question, therefore, is
whether Ms. Carter appears likely to prove at a hearing on the merits that her work injury
primarily caused her current symptoms or need for treatment. The Court cannot find at
this time that she is likely to meet this burden.
Frito-Lay has provided Ms. Carter with medical treatment, including every
specialist recommended by her authorized doctors. This includes an orthopedic surgeon,
Dr. Layton, for her shoulder complaints, and a physiatrist, Dr. Hazlewood, to evaluate her
cervical spine. The Court understands Ms. Carter’s dissatisfaction with the results of her
treatment, but she has not identified any legal basis that would justify an order for
additional medical benefits. Although Dr. Sain believes Ms. Carter needs a neurosurgeon,
' Ms. Carter also testified about a second injury that occurred on July 23, 2019, and about issues related to
her termination and her desire to regain her job at Frito-Lay. The Court has no jurisdiction over the July
23 injury, as it was not included in the Petition for Benefit Determination or the Dispute Certification
Notice, nor was it consolidated with this claim. Similarly, the Court has no jurisdiction over Ms. Carter’s
employment claims.
none of the authorized physicians has made that referral. Further, the Court has no
evidence that this purported need for a neurosurgeon arose primarily out of this accident.
Dr. Sain’s critique of Ms. Carter’s course of treatment is general rather than specific, and
does not constitute medical proof that her treatment was improper or inadequate. Without
that type of proof, the Court has no authority to order the additional neurosurgical or
orthopedic evaluation she seeks. See Baker y. Electrolux, 2017 TN Wrk. Comp. App. Bd.
LEXIS 65, at *7-10 (Oct. 20, 2017).?
Next, Ms. Carter is not entitled to a second opinion under Tennessee Code
Annotated section 50-6-204(a)(3)(C), because it only applies to cases where the authorized
doctor has recommended surgery. See Petty v. Convention Prod. Rigging, 2016 TN Wrk.
Comp. App. Bd. LEXIS 95, at *20-21 (Dec. 29, 2016). Ms. Carter argued she is entitled
to a second opinion because Dr. Layton recommended surgery. She is correct that he made
that recommendation, but he changed his mind after the arthrogram. This means Ms. Carter
has no current medical recommendation that would support an order for a second opinion,
and the Court cannot substitute its judgment for Dr. Layton’s opinion that no surgery is
necessary.
One of the issues Ms. Carter identified was the fact that she did not receive a panel
of physiatrists. As noted above, Dr. Layton referred Ms. Carter to a physiatrist for her
complaints of neck pain on October 22, and Frito-Lay did not provide a panel. Instead,
Ms. Carter said Frito-Lay asked her to return to Dr. Layton before the next scheduled
appointment. She did so on November 14, and he changed his physiatrist referral to specify
Dr. Hazlewood. The Court declines to order a replacement panel at this time, as Ms. Carter
accepted Dr. Hazlewood’s treatment and did not present any evidence suggesting that it
was medically deficient. However, the Court is troubled by Frito-Lay’s circumvention of
its responsibility to promptly provide a valid panel of physicians in response to Dr.
Layton’s original referral, as required by Tennessee Compilation Rules and Regulations
0800-02-01-.06(2). Therefore, the Court refers this case to the Compliance Program for
investigation and possible assessment of a civil penalty.? Upon its issuance, a copy of this
Order will be sent to the Compliance Program. See Tenn. Comp. R. & Regs. 0800-02-24-
03.
Ms. Carter’s request for Dr. Sain to oversee and coordinate all her future medical
care is not supported by the proof. As noted above, Frito-Lay has discharged its statutory
* The parties disputed whether Dr. Hazlewood’s causation opinion is entitled to the presumption of
correctness. It is not, since Dr. Hazlewood was a direct referral and was not selected from a panel. See
Gilbert v. United Parcel Service, Inc., 2019 TN Wrk. Comp. App. Bd. LEXIS 20, at *13 (June 7, 2019).
However, because no other medical opinion regarding causation was admitted into evidence, Dr.
Hazlewood’s causation opinions are unrebutted at this time.
> This assessment should include consideration of Ms. Carter’s testimony that Frito-Lay also failed to
provide an initial panel within three days of notice of injury and instead provided on-site physical therapy
treatment for several days.
obligation to provide medical benefits made reasonably necessary by accident. Tennessee
Code Annotated section 50-6-204(a)(3)(A)(i) requires Ms. Carter to “accept the medical
benefits afforded under this section” and allows employers to designate the panel doctors
who are authorized to provide those benefits. Both Dr. Layton and Dr. Hazlewood said
that they would see Ms. Carter again as needed, and she presented no evidence that Frito-
Lay refused to allow her to return to them. Thus, it appears treatment with the authorized
doctors is still available. Without any proof that Frito-Lay failed to provide required
treatment, the Court has no authority to replace the authorized physicians with Dr. Sain.
Regarding Ms. Carter’s request for medical bill reimbursement, an employer may
be required to pay for unauthorized treatment if it does not provide the treatment made
reasonably necessary by the work injury. See Hackney v. Integrity Staffing Solutions, 2016
TN Wrk. Comp. App. Bd. LEXIS 29, at *8-9 (July 22, 2016). As noted above, the Court
has no proof that Frito-Lay failed to provide authorized physicians or failed to approve the
treatment they ordered. Therefore, without evidence that Ms. Carter’s unauthorized
medical bills were the result of denied treatment or that the bills represent reasonable and
necessary treatment, the Court cannot order Frito-Lay to reimburse her for those expenses.‘
Temporary Disability Benefits
To receive temporary total disability benefits, Ms. Carter must establish: (1) she
became disabled from working due to a compensable injury; (2) a causal connection
between her injury and her inability to work; and (3) her period of disability. Jones v.
Crencor Leasing and Sales, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11,
2015). The parties stipulated that Frito-Lay paid temporary disability benefits through
January 15, 2020, when Dr. Hazlewood said she reached maximum medical improvement.
Ms. Carter presented evidence regarding additional dates of disability in Dr. Sain’s C-30A
report. However, as noted above, she presented no medical proof that the conditions
addressed by Dr. Sain arose primarily out of this accident. Without that evidence, Ms.
Carter cannot show that her disability was caused by a compensable injury. Therefore, she
has not proven she is likely to succeed on a claim for temporary total disability benefits.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. Carter’s claims against Frito-Lay for additional medical and temporary
disability benefits are denied at this time.
2. This case is set for a Scheduling Hearing on September 24, 2020, at 9:00 a.m. You
must call toll-free at 855-874-0473 to participate. Failure to call might result in a
* In response to Ms. Carter’s claim for mileage reimbursement, Frito-Lay’s counsel stated during the
hearing that if she filed a reimbursement request for her visits with Dr. Hazlewood, Frito-Lay would pay
her mileage.
determination of the issues without your further participation. All conferences are
set using Central Time.
ENTERED JULY 16, 2020.
is er
Cy oe ee a
Judge Dale Tipps
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1.
SNAYAYWN
9.
Indexed medical records
Photograph of Ms. Carter and PPW box
C-32 Standard Medical Form (Identification only)
C-30A Final Medical Report
June 11, 2020 letter of Dr. Sain
February 13, 2020 email (Identification only)
January 115, 2020 letter of Dr. Sain
Annotated medical records (Identification only)
Annotated Return-to-Work forms (Identification only)
10. Annotated Choice of Physician form (Identification only)
11. July 23, 2019 Choice of Physician form
12. Wage Statement
13. Dr. Layton’s November 14, 2020 referral to Dr. Hazlewood
14. Records of Dr. Layton
15. Records of Dr. Hazlewood
16. Affidavit of Paulette Carter
17. Attendance documents
18. Accident Investigation Form
19. Medical bills and receipts (Identification only)
Technical record:
SNAYNR WN
Petition for Benefit Determination
Dispute Certification Notice
Request for Expedited Hearing
Notice of Intent to Use C-32
Objection to C-32
Joint Exhibit List
Joint Pre-Compensation Hearing Statement
Employer’s Pre-Trial Brief
9. Employee’s Pre-Trial Brief
CERTIFICATE OF SERVICE
I certify that a copy of the Expedited Hearing Order was sent as indicated on July
16, 2020.
Name Certified | Email | Service Sent To
Mail
Paulette Carter xX Gtp.2000daytona@gmail.com
John R. Lewis, xX john@johnlewisattorney.com
Employer’s Attorney
Compliance Program xX WCCompliance.Program@tn. gov
fy
eS
fj) f{
U/
Penny Shrum, Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Notice of Appeal,” and file the form with the
Clerk of the Court of Workers’ Compensation Claims within seven business days of the
date the expedited hearing order was filed. When filing the Notice of Appeal, you must
serve a copy upon all parties.
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of the Notice of Appeal. Payments can be made in-person at
any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
website or any Bureau office) seeking a waiver of the fee. You must file the fully-
completed Affidavit of Indigency within ten calendar days of filing the Notice of
Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
result in dismissal of the appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business days of the filing of the Notice of Appeal. The statement of
the evidence must convey a complete and accurate account of the hearing. The Workers’
Compensation Judge must approve the statement before the record is submitted to the
Appeals Board. If the Appeals Board is called upon to review testimony or other proof
concerning factual matters, the absence of a transcript or statement of the evidence can be
a significant obstacle to meaningful appellate review.
4. If you wish to file a position statement, you must file it with the court clerk within ten
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements 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.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
we,courtclerk@tn.gov | 1-800-332-2667
Docket No.:
State File No.:
Date of Injury:
Employee
Employer
Notice is given that
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
D Expedited Hearing Order filed on O Motion Order filed on
O Compensation Order filed on O Other Order filed on
issued by Judge
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Parties
Appellant(s) (Requesting Party): [lEmployer!” Employee
Address: Phone:
Email:
Attorney’s Name: BPR#:
Attorney’s Email: Phone:
Attorney's Address:
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page lof 2 RDA 11082
Employee Name: Docket No.: Date of Inj.:
Appellee(s) (Opposing Party): [| Employer [~ Employee
Appellee’s Address: Phone:
Email:
Attorney’s Name: BPR#:
Attorney’s Email: Phone:
Attorney’s Address:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, , certify that | have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the day of , 20
[Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082