Stansbury, Pamela v. Federal Exprress Corp. ( 2021 )

FILED
Dec 20, 2021
12:52 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
PAMELA STANSBURY, ) Docket No.: 2021-08-0423
Employee, )
v. )
)
FEDERAL EXPRESS CORP., ) State File No.: 69937-2020
Employer, )
And )
)
ABIGAIL HUDGENS, Admin. of ) Judge Dale Tipps
SUBSEQUENT INJURY )
FUND FOR THE TENN. )
BUREAU OF WORKERS’ )
COMPENSATION. )
EXPEDITED HEARING ORDER
DENYING BENEFITS
The Court held an Expedited Hearing on December 14, 2021, to determine whether
Ms. Stansbury is likely to prove at a hearing on the merits that she is entitled to additional
medical and temporary disability benefits. Although all agreed that Ms. Stansbury suffered
a compensable head injury, the Court holds that she did not meet her burden for the
requested benefits and denies them at this time.
History of Claim
While working at FedEx, Ms. Stansbury was struck in the head on October 21, 2020.
FedEx provided a panel of physicians, from which she selected Dr. Alan Nadel.
Dr. Nadel diagnosed a mild posttraumatic headache, prescribed medication, and
took Ms. Stansbury off work. After seeing her several times, he released her with no work
restrictions on April 1, 2021, finding that nothing suggested any residual neurologic
problems.
FedEx made temporary total disability payments from the date of injury until Dr.
Nadel released her to return to work. However, due to the pandemic and transportation
problems, Ms. Stansbury was unable to cash or deposit several of the temporary disability
checks. The parties announced an agreement at the start of the hearing that FedEx would
examine its payment records and reissue any disability benefits that had not been cashed
or deposited.
In addition to the temporary disability benefit issue, Ms. Stansbury also sought
payment of medical expenses she says she incurred for emergency treatment before FedEx
offered her a panel. Further, she expressed dissatisfaction with Dr. Nadel’s treatment.
FedEx contended that it has provided all the medical treatment and disability
payments to which Ms. Stansbury is entitled. It argued that Ms. Stansbury did not present
any evidence supporting her claim for additional benefits or a different medical provider.
Findings of Fact and Conclusions of Law
For the Court to grant Ms. Stansbury’s requests, she must prove she is likely to
prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1) (2021); McCord
v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Mar. 27, 2015). FedEx does not contest the compensability of her injury. Therefore, the
question is whether she is likely to show she is entitled to the additional requested benefits.
Medical Benefits
Ms. Stansbury requested additional medical treatment and payment of past medical
expenses.
Tennessee Code Annotated section 50-6-204(a)(1)(A) provides that the employer
shall furnish, free of charge to the employee, medical treatment made reasonably necessary
by the accident. Further, the employer shall designate a group of three or more independent
reputable physicians, from which the employee shall select one to be the treating physician.
Tenn. Code Ann. § 50-6-204(a)(3)(A)(i).
Ms. Stansbury selected Dr. Nadel from a panel, and FedEx authorized treatment
with him for several months. She offered no proof that FedEx ever refused to authorize a
return to Dr. Nadel or that he refused to see Ms. Stansbury after he released her. Further,
although Ms. Stansbury was dissatisfied with Dr. Nadel’s treatment and felt she would
have done better with another doctor, she has not offered medical proof or identified any
legal basis that would justify an order changing her authorized physician.1
1
Ms. Stansbury was very frustrated about her inability to get copies of Dr. Nadel’s records, either from him
or from FedEx, and she characterized this as a coverup. While the Court is sympathetic, it has no remedy
Regarding the medical expenses, in certain circumstances an employer might be
held responsible for medical benefits obtained from a medical provider of the employee’s
choice. See McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, at *13 (Mar. 27, 2015). However, Ms. Stansbury stated in her petition that she
received a panel of physicians “around October 28,” or about a week after the accident.
She presented no proof that FedEx knew of her need for emergency room treatment or
failed to provide it. Without that evidence, the Court cannot order FedEx to pay for her
unauthorized treatment.
For these reasons, Ms. Stansbury has not proven she is likely to prevail on her claims
for additional medical benefits.
Temporary Disability Benefits
To receive temporary total disability benefits, Ms. Stansbury must prove (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. For temporary
partial disability benefits, she must show that her treating physician returned her to work
with restrictions that FedEx either could not or would not accommodate. See Jones v.
Crencor Leasing and Sales, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7, 8 (Dec. 11,
2015).
Beginning with the first category of benefits, the only medical opinion is Dr. Nadel’s
conclusion that Ms. Stansbury was unable to work after the injury until March 31, 2021.
FedEx has paid temporary disability benefits for that entire period (or will pay under the
parties’ agreement). As to temporary partial disability, Ms. Stansbury offered no medical
evidence of any work restrictions. Therefore, she is not likely to prove entitlement to
additional temporary disability benefits.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. Stansbury’s claims against FedEx for additional benefits are denied at this time.
2. This case is set for a Scheduling Hearing on March 9, 2022, at 10:00 a.m. You must
call toll-free at 855-874-0473 to participate. Failure to call might result in a
determination of the issues without your further participation. All conferences are
set using Central Time.
ENTERED December 20, 2021.
available under the current posture of the case.
_____________________________________
Judge Dale Tipps
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Ms. Stansbury’s Rule 72 Declaration Under Penalty of Perjury
2. Wage Statement
3. Dr. Nadel’s treatment notes
4. Dr. Nadel’s Form C-30A (identification only)
5. EMT records
6. October 29, 2020 LaBonheur record (identification only)
7. Methodist Minor Medical record (identification only)
8. October 29, 2020 St. Francis record (identification only)
9. October 29, 2020 emergency room discharge record
10. October 29, 2020 St. Francis Final Report (identification only)
11. Emergency discharge instructions (identification only)
12. Records from Church Health (identification only)
13. Petition for Benefit Determination
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. FedEx’s Pre-Hearing Brief
CERTIFICATE OF SERVICE
I certify that a copy of the Expedited Hearing Order was sent as indicated on
December 20, 2021.
Name Certified Via Via Service sent to:
Mail Fax Email
Pamela Stansbury X X Pstans20@gmail.com
Stephen Miller, X smiller@mckuhn.com
Employer’s Attorney
Timothy Kellum, X Timothy.kellum@tn.gov
SIVRF Attorney
______________________________________
PENNY SHRUM, COURT CLERK
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/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________
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):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ 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): _________________________________________ ☐Employer ☐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 1 of 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 I 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