McCord, Patricia v. Advantage Human Resourcing , 2015 TN WC 21 ( 2015 )

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COURT OF WORKERS' COMPENSATION CLAIMS
DIVISION OF WORKERS• COMPENSATION
EMPLOYEE: PATRICIA MCCORD DOCKET NO. 2014-06-0063
STATE FILE NO. 79894-2014
EMPLOYER: ADVANTAGEHUMAN DATEOFINJURY: OCTOBER3,2014
RESOURCING
INSURANCE CARRIER: NEW HAMPSHIRE, INS. CO.
EXPEDITED HEARING ORDER
THIS CAUSE carne before the undersigned Workers' Compensation Judge upon the
Request for Expedited Hearing filed on Janmuy 26, 2015, by Patricia McCord, the employee,
pursuant to Temessee Code Annotated section 50-6-239(d). Ms. McCord requested an
evidentiary heru.ing pursuant to Rule 0800-02-21-.14(1 )(b) of the Tennessee Comprehensive
Rules and Regulations. The undersigned convened a heru.ing of this matter in person on
Februru.y 9, 2015. Attorney Kim Thompson represented Ms. McCord and attorney Achieme
Fazio represented the employer, Advantage Human Resourcing (Advantage). Upon review of
Ms. McCord's request, the evidence submitted, the testimony of the witnesses, the ru.·gurnents of
counsel, and in consideration of the applicable law, the Court enters the following order for
medical benefits.
Issue
\Vhether Advantage should be required to provide Ms. McCord a panel of physicians for
treatment of her work-related injury.
Evidence Submitted
The Corut admitted the following exhibits into evidence upon the pru.·ties' stipulation of
their admissibility:
A Medical records of Southern Hills
B. Medical records of Southern Hills
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C. Affidavit of Roosevelt Burrell
D. Affidavit of Cindy Doty
History of Claim
Ms. McCord is a fifty-four-year-old resident of Davidson County, Tennessee. She did
not complete high school but has earned her GED.
Advantage, an employee staffing agency, secured work for Ms. McCord as a packer at
Cerqa, a client of Advantage. When Ms. McCord first began working for Advantage, she
watched a safety video that provided instructions on reporting workplace injuries. Ms. McCord
had filed a workers' compensation claim while working for another employer before she began
working for Advantage. She had also suffered a back injury approximately six years ago but
denied any lingering pain or effects.
On October 3, 2014, Ms. McCord allegedly suffered an injury to her back and shoulder
while lifting boxes in the course and scope of her work for Cerqa. Each box weighed at least
twenty-four pounds (24 lbs.) and Ms. McCord testified that she lifted the boxes on an almost
continuous basis throughout the workday. Near the end of her shift, Ms. McCord testified that
she felt something pop in her back while lifting a box and experienced sudden pain on the left
side of her back, just below the beltline. Ms. McCord finished her shift and went home.
After she arrived home, Ms. McCord's back pain increased. She attempted to get up
from her bed several times to use the restroom but was unable to do so. Ms. McCord contacted
her sister, who called 911. An ambulance transported Ms. McCord to Southern Hills Medical
Center (Southern Hills) where she arrived just after midnight on the morning of October 4, 2014.
Ms. McCord testified that she did not tell the paramedics that she injured her back at work but
does not recall them asking this question.
The intake notes from Southern Hills state that Ms. McCord reported an "acute onset of
back pain after getting up from a seated position." (Exh. A, p. 1). Providers at Southern Hills
performed aCT scan that revealed a disc bulge at the L4-5 level of Ms. McCord's spine. (Exh.
A, p. 5). The records list "N" in response to the question "Is This a Work Related Injury." (Exh.
A, p. 8). Southern Hills diagnosed Ms. McCord with a herniated disc and discharged her at 2:28
a.m. on October 4. (Exh. A, p. 13). Providers at Southern Hills prescribed Flexeril, Lortab and a
Medrol Pack, and instructed Ms. McCord to follow-up with the Orthopedic Clinic at Nashville
Metro General Hospital. I d.
After her release, Ms. McCord's son drove her home. At home, Ms. McCord contacted
her supervisor at Cerqa, Roosevelt Burrell. In that conversation, Ms. McCord told Mr. Burrell
that she could not work that day but did not tell him she had suffered a work-related injury.
(Exh. C).
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At the hearing, the Court refused to accept Mr. Burrell's and Ms. Doty's affidavits into evidence. Upon
reflection, the ruling was in error. Rule 0800-02-21-.14 requires that parties submit affidavits when filing
or responding to a motion for temporary benefits. Advantage submitted the affidavits in accordance with
this rule. Accordingly, the Court reconsidered its ruling and accepts the affidavits into evidence.
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The following day, Ms. McCord began experiencing pain in her right shoulder so she
returned to Southern Hills. The intake records from October 5, 2014, indicate that Ms. McCord
complained of "right shoulder pain" that began approximately three weeks earlier. (Exh. B, p.
1). Ms. McCord told the medical providers that she performed heavy lifting at work but did
not indicate that a workplace accident caused the pain. (Exh. B, p. 1). The records list "N" in
response to the question "Is This a Work Related Injury." (Exh. B, p. 5). An x-ray of Ms.
McCord's shoulder revealed no abnormalities. (Exh. B, p. 3). The medical providers diagnosed
Ms. McCord with a shoulder strain and discharged her. (Exh. B, p. 4).
Ms. McCord returned to work a Cerqa on October 7, 2014. During the shift, Ms.
McCord tried to give Mr. Burrell some medical paperwork. (Exh. C). Mr. Burrell told her to
give the paperwork to Advantage. (Exh. C). Eventually, Ms. McCord finished her shift and left
Cerqa.
That same day, Advantage terminated its agreement to provide workers for Cerqa. (Exh.
D). Cathy Doty, a recruiter for Advantage, called Ms. McCord on the afternoon of October 7, to
tell her that her assignment at Cerqa had ended. (Exh. D). At some point during the
conversation, Ms. McCord told Ms. Doty that she hurt her back at work. Ms. Doty told Ms.
McCord that she needed to come into the office and fill out an accident report. (Exh. D). Ms.
McCord went to the office and completed the report at approximately 4:45 p.m.
Employee's Contentions
Ms. McCord argues that she is entitled to medical treatment. She maintains that she
suffered an injury that arose primarily out of and in the course and scope of her employment and
timely reported the injury to Advantage. She denies fabricating the injury. She requests that the
Court order Advantage to provide a panel of doctors for treatment.
Employer's Contentions
Advantage argues that the circumstances surrounding Ms. McCord's alleged injury and
the medical records show that she suffered an injury at home rather than during her shift at work.
Advantage claims that Ms. McCord's failure to notify Advantage the suffered an injury before
learning that she would no longer be working at Cerqa, and her failure to inform medical
providers at Southern Hills that work caused her injury support its position. Advantage asks that
the Court deny Ms. McCord's request for medical benefits.
Findings of Fact and Conclusions of Law
Standard Applied
In order to receive temporary workers' compensation in a pretrial setting, an employee
must show that she is likely to prevail at a trial on the merits of her claim. See McCall v. Nat'l
Health Care Corp., 100 S.W.3d 209, 214 (Tenn. 2003). In a workers' compensation action,
pursuant to Tennessee Code Annotated section 50-6-239(c)(6), the injured employee has the
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burden of proving each and every element ofthe claim by a preponderance ofthe evidence. The
employee must show that the injury arose primarily out of and in the course and scope of
employment. Tenn. Code Ann. § 50-6-102(13)(2014).
Factual Findings
The Court finds that Ms. McCord suffered a work-related injury on October 3, 2014. The
Court additionally finds that Ms. McCord timely reported the injury to Advantage on October 7,
2014. The Court also finds that Ms. McCord attempted to report the injury before she learned
that her assignment at Cerqa had ended. The Court further finds that Ms. McCord is a credible
witness.
Application ofLaw to Facts
Advantage maintains that Ms. McCord did not suffer a compensable work-related injury.
Under Tennessee Workers' Compensation law, an "injury" or "personal injury" by accident is
compensable whenever ''the injury is caused by a specific incident, or set of incident, arising
primarily out of and in the course and scope of employment." Tenn. Code Ann. § 50-6-102(13)
(2014). "An injury arises primarily out of and in the course and scope of employment only if it
has been shown by a preponderance of the evidence that the employment contributed more than
fifty percent (50%) in causing the injury, considering all causes[.]" Jd. (internal quotations
omitted).
Ms. McCord testified that she felt something pop in her back while lifting a box during
her shift at Cerqa. She experienced sudden pain on the left side of her back. Ms. McCord denied
that her back hurt prior to the accident and did not identify any other possible cause of the "pop"
in her back. Ms. McCord testified that she sought emergency medical care at Southern Hills
when her back pain intensified after she had left work for the day. An x-ray taken at Southern
Hills revealed a herniated disc.
Advantage has neither denied that Ms. McCord's job duties as a packer included lifting
boxes nor has it denied that Ms. McCord lifted boxes on October 3, 2014. Instead, Advantage's
defense turns upon the timing in which Ms. McCord reported the injury. Advantage maintains
that the timing of the report, and the fact that she did not inform Southern Hills that she suffered
her injury at work, renders her claim suspect.
With respect Ms. McCord's failure to report her injury as work-related to the providers at
Southern Hills, the Court finds Ms. McCord's testimony credible. Ms. McCord admitted that she
did not tell Southern Hills that she hurt her back or shoulder at work. She stated, however, that
she did not recall them asking this question but would have informed them of her concerns if
they had asked. Southern Hills records indicate that Ms. McCord 's injuries were not work-
related. The Court finds, however, that medical records are not definitive proof on this issue.
The medical records from October 4, 2014, indicate that Ms. McCord 's claim is not work-
related. (Ex. A, p. 8). The indication in the October 4 records follows the history Ms. McCord
provided which did not mention work. The medical records from October 5, however, contain
exactly the same indication. (Exh. B, p. 5). The Court finds that this indication does not reflect
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Ms. McCord's recorded history because Ms. McCord reported that she "does a lot of heavy
lifting at work." (Exh. B, p. I). The Court finds that this indication, which does not accurately
reflect the history Ms. McCord provided, corroborates Ms. McCord's testimony that the
providers at Southern Hills never asked whether she suffered an injury at work.
The Court also finds Ms. McCord's testimony concerning reporting the injury credible.
Ms. McCord testified that she did not notify her supervisor, Roosevelt Burrell, of her injury
during her shift on October 3, 2014, or on October 4. Ms. McCord further testified that she
returned to work at Cerqa on the morning of October 7, 2014. Mr. Burrell's affidavit
corroborates Ms. McCord's testimony on these issues. (Exh. C). Additionally, Ms. McCord
testified that she reported the injury on the day she returned to work. Mr. Burrell's affidavit
stated that Ms. McCord tried to give him some "medical paperwork" on the day she returned to
work. I d. Mr. Burrell, however, instructed her to give the paperwork to the staffing agency. I d.
The Court finds that Ms. McCord attempted to report the injury to Mr. Burrell during her shift by
giving him the medical paperwork.
Furthermore, the Court finds that this all occurred before Ms. Doty notified Ms. McCord
that her assignment at Cerqa had ended. Ms. Doty testified that she called Ms. McCord at 4:00
p.m. on the afternoon of October 7, 2014, to inform her that her assignment at Cerga had ended.
Because Ms. McCord did not know that her assignment with Cerqa had ended before she first
attempted to report the claim, the Court finds that Ms. McCord did not fabricate an injury in
retaliation for the elimination of her assignment at Cerqa. The Court further finds that Ms.
McCord did not fabricate an injury at all.
The Court finds that Ms. McCord carried her burden of establishing that she suffered an
injury primarily arising out of and in the course and scope of her employment with Advantage.
The Court denies Advantage's defense with regard to this issue.
While the timing of the report resulted in conflict between the parties concerning the
validity of the claimed injury, there is no doubt that Ms. McCord reported her claim in a timely
manner pursuant to Tennessee Workers' Compensation Law:
Every injured employee or the injured employee's representative
shall, immediately upon the occurrence of an injury, or as soon
thereafter as is reasonable and practicable, give or cause to be
given to the employer who has no actual notice, written notice of
the injury, and the employee shall not be entitled to physician's
fees or to any compensation that may have accrued under this
chapter, from the date of the accident to the giving of notice, unless
it can be shown that the employer had actual knowledge of the
accident. No compensation shall be payable under this chapter,
unless the written notice is given to the employer within thirty (30)
days after the occurrence of the accident, unless reasonable excuse
for failure to give the notice is made to the satisfaction of the
tribunal to which the claim for compensation may be presented.
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Tenn. Code Ann. § 50-6-201(a)(1) (2014). Ms. McCord alleged that she suffered an injury on
October 3, 2014. Ms. Doty testified that Ms. McCord came to her office and completed a written
accident report on October 8, 2014. Accordingly, Ms. McCord provided written notice of the
accident to Advantage within thirty days after the accident occurred.
Based on these facts, the Court finds that Ms. McCord established a prima facie case for
a compensable work-related injury and, depending on the medical proof on causation, is likely to
prevail at trial. Because she established a prima facie case, Advantage must provide medical
treatment. Tennessee law requires an employer to provide " ... free of charge to the employee
such medical and surgical treatment ... made reasonably necessary by accident as defined in this
chapter[.]" See Tenn. Code Ann. § 50-6-204(a)(l)(A) (2014). Upon being provided notice of a
workplace injury, the workers' compensation law requires an employer to " ... designate a group
of three (3) or more independent reputable physicians, surgeons, chiropractors or specialty
practice groups if available in the injured employee's community or, if not so available, in
accordance with subdivision (a)(3)(B), from which the injured employee shall select one (1) to
be the treating physician." !d. at 50-6-204(a)(3)(A)(i). Advantage shall provide medical
treatment to Ms. McCord in accordance with this statute
IT IS, THEREFORE, ORDERED as follows:
1. Advantage shall provide Ms. McCord with medical treatment for her injuries as required
by Tennessee Code Annotated section 50-6-204, to be initiated by providing Ms. McCord
with a panel of three physicians from which she shall have the right to choose the
authorized treating physician.
2. This is not a final order.
3. This matter is set for Initial Hearing via teleconference on Tuesday, April14, 2015, at 10
a.m. (CDT). Instructions on how to participate in the teleconference are included below.
4. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
with this Order must occur no later than seven (7) business days from the date of
entry of this Order as required by Tennessee Code Annotated section 50-6-
239(d)(3). The Insurer or Self-Insured Employer must submit confirmation of
compliance with this Order to the Division by email to
WCCompliance.Program@ tn.gov no later than the seventh (7th) business day after
entry of this Order. Failure to submit the necessary confirmation within the period
of compliance may result in a penalty assessment for non-compliance.
5. For questions regarding compliance, please contact the Workers' Compensation
Compliance Unit via email WCCompliance. Program@tn.gov or by calling (615) 253-
1471 or (615) 532-1309.
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ISSUE AND FILED WITH THE CLERK ON THIS THE 27th DAY OF FEBRUARY,
2015.
Joshua Davis Baker
Workers' Compensation Judge
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Initial Hearing:
An Initial Hearing has been set with Judge Joshua Davis, Court of Workers
Compensation Claims. You must call (615) 741-2113 or toll free at (855) 874-0474 to participate
in the Initial Hearing. 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 (7) business days of the date
the Expedited Hearing Order was entered by the Workers' Compensation Judge.
3. Serve a copy of the Request for Appeal upon the opposing party.
4. The parties, having the responsibility of ensuring a complete record on appeal, may
request from the Court Clerk the audio recording ofthe hearing for the purpose of having
a transcript prepared by a licensed court reporter and filing it with the Court Clerk within
ten (10) calendar days of the filing of the Expedited Hearing Notice of
Appeal. Alternatively, the parties may file a statement of the evidence within ten ( 10)
calendar days of the filing of the Expedited Hearing Notice of Appeal. The statement of
the evidence must be approved by the Judge before the record is submitted to the Clerk of
the Appeals Board.
5. If the appellant elects to file a position statement in support of the interlocutory appeal,
the appealing party shall file such position statement with the Court Clerk within three (3)
business days of the filing of the Expedited Hearing Notice of Appeal, specifying the
issues presented for review and including any argument in support thereof. If the
appellee elects to file a response in opposition to the interlocutory appeal, appellee shall
do so within three (3) business days ofthe filing of the appellant's position statement.
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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 27thday of February,
2015.
Name Certified First Via Fax Via Email Address
Mail Class Fax Number Email
Mail
Ad1ienne Fazio X afazio(a)eraclides.com
Kim Thompson X kthom vson(a),tl!!vllc.com
Ch1isten Bryant christen(a),tl!!D ll c. com
~tc~::;~crk
Tennes · e Com1 ofWorkers'
Compensation Claims
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