Anderson, Barry v. Aramark ( 2016 )

FILED
April 6, 2016
TiiCOURTOF
WORKERS ' C0~1PEL'ISATIO~
CLAll'IS
Time: 12:13 PM
COURT OF WORKERS' COMPENSATION CLAIMS
AT MEMPHIS
Barry Anderson, Docket No.: 2015-08-0295
Employee,
v. State File No.: 58886-2015
Aramark,
Employer, Judge: Jim Umsted
And
Indemnity Insurance Co. of North America,
Insurance Carrier.
EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS
This case came before the undersigned Workers' Compensation Judge on March
23, 2016, upon the Request for Expedited Hearing filed by the employee, Barry
Anderson, pursuant to Tennessee Code Annotated section 50-6-239 (2015). The central
legal issue is whether the employer, Aramark, must provide medical and temporary
disability benefits for Mr. Anderson's alleged work-related right-knee injury. For the
reasons set forth below, the Court finds Mr. Anderson is entitled to a panel of
physicians. 1
History of Claim
Mr. Anderson is a forty-six-year-old resident of Shelby County, Tennessee. He
worked for Aramark for approximately ten years. On May 19, 2015, Aramark transferred
him to the "mats cell." This position entailed pulling and rolling wet mats and moving
the mats with a cart. According to Mr. Anderson, this position was more strenuous than
the job he held prior to his transfer.
On May 26, 2015, Mr. Anderson claimed he injured his right knee while pulling
mats. He reported the injury to Patsy Sharp, his shop steward, and also to Tom
McMillan, the plant manager, and asked to be moved back to his former department. He
testified he asked for medical treatment, but none was offered. He continued working in
1
A complete listing of the technical record and exhibits is attached to this Order as an appendix.
the mats cell after his injury until his right-knee pain became unbearable.
He sought treatment on his own with his primary care physician, Dr. Lloyd
Robinson, on July 24, 2015. He presented with complaints of bilateral leg pain, and he
advised Dr. Robinson his right-knee symptoms began after his job duties changed. He
told Dr. Robinson his new job was more strenuous and involved significant bending. Dr.
Robinson took x-rays of Mr. Anderson's knees, which showed evidence of a prior
ACL/MCL repair of the left knee but no acute findings for the right knee. Dr. Robinson
diagnosed Mr. Anderson with right-knee pain and osteoarthrosis and prescribed
medication for pain. He also placed Mr. Anderson on restricted duty and referred him to
an orthopedic specialist.
Mr. Anderson began treating with an orthopedic specialist, Dr. Anthony Mascioli
at Campbell Clinic, on August 3, 2015. Dr. Mascioli diagnosed Mr. Anderson with a
right-knee medial meniscus tear and ordered physical therapy. Dr. Mascioli also placed
Mr. Anderson on light-duty restrictions of no deep knee bending, squats, or
pushing/pulling more than twenty-five pounds. In addition, he limited Mr. Anderson to
eight-hour shifts until further notice. On August 17, 2015, Dr. Mascioli ordered an MRI
of Mr. Anderson's right knee. To date, the MRI has not been performed.
Aramark terminated Mr. Anderson's employment on August 3, 2015, due to issues
with his production. Thereafter, on August 17, 2015, it denied Mr. Anderson's workers'
compensation claim. It argued there was no mechanism of injury by accident and that the
alleged injury was personal and pre-existing in nature. It also asserted the injury did not
arise primarily out of and in the course and scope of Mr. Anderson's employment.
During the Expedited Hearing held on March 23, 2016, 2 the parties agreed Mr.
Anderson was an employee of Aramark at the time of his alleged injury on May 26, 2015,
and his average weekly wage was $518.00. Mr. Anderson testified he was pulling down
on a wet mat on May 26, 2015, when he began to feel burning in his right leg. According
to Mr. Anderson, he asked for medical treatment for his right knee when he reported the
injury to Ms. Sharp. He further testified Aramark refused to provide him with paperwork
to file a workers' compensation claim because it claimed there was no new injury. He
advised he had a prior left-knee injury for which he was on FMLA for the past four years.
At the Expedited Hearing, Mr. Anderson called his union representative, Sheila
Dogan, to testify on his behalf. Ms. Dogan testified Mr. Anderson was on FMLA,
allowing him to work with restrictions, due to a previous injury at the time of his alleged
May 26, 2015 injury. Ms. Dogan was involved in the grievance process that arose after
Aramark transferred Mr. Anderson to the mats cell. She confirmed the mats cell position
2
The Court also set Aramark's Motion to Dismiss for Failure to Prosecute for hearing on March 23, 2016.
However, Aramark's attorney, Christopher M. Myatt, withdrew the motion during preliminary discussions.
2
was more strenuous than Mr. Anderson's prior job and indicated the position caused Mr.
Anderson problems with both of his knees.
No witnesses testified on behalf of Aramark.
Findings of Fact and Conclusions of Law
At an Expedited Hearing, Mr. Anderson need not prove every element of his claim
by a preponderance of the evidence in order to recover temporary disability and/or
medical benefits. 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,
20 15). Instead, he must come forward with sufficient evidence from which this court
might determine he is likely to prevail at a hearing on the merits. !d.; Tenn. Code Ann. §
50-6-239(d)(1) (2015). This lesser evidentiary standard "does not relieve an employee of
the burden of producing evidence of an injury by accident that arose primarily out of and
in the course and scope of employment at an expedited hearing, but allows some relief to
be granted if that evidence does not rise to the level of a 'preponderance of the
evidence."' Buchanan v. Car/ex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp.
App. Bd. LEXIS 39, at *6 (Tenn. Workers' Comp. App. Bd. Sept. 29, 2015). In
analyzing whether he has met his burden, the Court will not remedially or liberally
construe the law in his favor, but instead shall construe the law fairly, impartially, and in
accordance with basic principles of statutory construction favoring neither Mr. Anderson
nor Aramark. See Tenn. Code Ann.§ 50-6-116 (2015).
To be compensable under the workers' compensation statutes, Mr. Anderson's
injury must arise primarily out of and occur in the course and scope of the employment.
Tenn. Code Ann. § 50-6-102(14) (2015). "Injury" is defined as "an injury by accident ..
. arising primarily out of and in the course and scope of employment, that causes death,
disablement or the need for medical treatment of the employee." !d. An injury is
"accidental" only if it "is caused by a specific incident, or set of incidents," and "is
identifiable by time and place of occurrence." !d. "Arising primarily out of and in the
course and scope of employment" requires a showing, to a reasonable degree of medical
certainty, that the alleged work injury "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).
In this case, the Court finds Mr. Anderson presented as a reasonable and honest
witness. The Court finds him credible and his account of the May 26, 2015 incident is
believable. As such, the Court finds Mr. Anderson's right-knee injury occurred on May
26, 2015, while he was pulling on a wet mat at work. Accordingly, the Court finds Mr.
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Anderson's injury arose primarily out of and in the course and scope of the employment
as required by Tennessee Code Annotated section 50-6-102(14) (2015). The Court
further finds that Aramark received proper notice of Mr. Anderson's injury.
Mr. Anderson seeks medical care for his right knee. While he presented no
medical proof his work injury caused his right-knee condition, the law does not require
him to present proof of medical causation to obtain medical care at an Expedited Hearing.
See McCord, 2015 TN Wrk. Camp. App. Bd. LEXIS 6, at *9. He only must prove he is
likely to prevail at a hearing on the merits concerning his entitlement to medical
treatment. Tenn. Code Ann. § 50-6-239(d)(1) (2015). The Court finds he carried this
burden. Accordingly, the Court finds Aramark must provide medical benefits in the form
of a panel of physicians from which Mr. Anderson may select an authorized physician to
provide treatment for any injuries arising primarily out of the May 26, 2015 work
accident. See Tenn. Code Ann. § 50-6-207(a)(3)(A)(i) (2015).
Mr. Anderson also seeks reimbursement for past medical expenses and temporary
disability benefits. The Court finds Mr. Anderson presented insufficient evidence at this
hearing to justify an award for past medical expenses and temporary disability benefits.
The Court notes that this is an interlocutory ruling, and Mr. Anderson is not precluded
from requesting said benefits at a later hearing.
IT IS, THEREFORE, ORDERED as follows:
1. Aramark or its workers' compensation carrier shall provide a panel of physicians
so Mr. Anderson can select an authorized treating physician to provide treatment
for any injuries arising primarily out of the May 26, 2015 work accident as
required by Tennessee Code Annotated section 50-6-204 (2015).
2. This matter is set for an Initial (Scheduling) Hearing on May 30, 2016, at 10:30
a.m. Central Time.
3. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
with this Order must occur no later than seven business days from the date of entry
of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3)
(2015). The Insurer or Self-Insured Employer must submit confirmation of
compliance with this Order to the Bureau by email to
WCCompliance.Program@tn.gov no later than the seventh 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.
4. For questions regarding compliance, please contact the Workers' Compensation
Compliance Unit via email WCCompliance.Pr gram@tn.gov or by calling (615)
253-1471.
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ENTERED this the 6th day of Ap~
ri~016. ~
Judge Jim Umsted
Court of Workers' Compensation Claims
Status Conference:
A Status Conference has been set with Judge Jim Umsted, Court of Workers'
Compensation Claims. You must call 615-532-9550 or toll-free at 866-943-0014 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.
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.
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 the 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 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
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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 Clerk 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 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 submitted to the Clerk of the Appeals Board.
6. If the appellant elects to file a position statement in support of the interlocutory
appeal, the appellant 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 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 Clerk within five business days of the filing of the appellant's
position statement. All position statements 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.
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APPENDIX
Exhibits:
1. Affidavit of Barry Anderson;
2. Form C-23 Notice ofDenial of Claim for Compensation;
3a. Photograph of Mr. Anderson's knees;
3b. Photograph of Mr. Anderson pushing cart with mats;
3c. Photograph of mats;
3d. Photograph of Mr. Anderson pulling cart with mats;
3e. Photograph of Mr. Anderson pushing cart with mats;
4. Medical records from Robinson and Associates PC; and
5. Medical records from Campbell Clinic.
Technical record:
1. Petition for Benefit Determination;
2. Dispute Certification Notice;
3. Request for Expedited Hearing;
4. Aramark's position statement of August 24, 2015;
5. Aramark's Motion to Dismiss for Failure to Prosecute;
6. Order on Show Cause Hearing; and
7. Order for Expedited Hearing.
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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 6th day
of April, 2016.
Name Certified Via Via Service sent to:
Mail Fax Email
Barry Anderson, X bthecrown3l @aol.com
Employee
Christopher M. Myatt, X cm~att@syicerfirm .com
Employer's Attorney
, Clerk of Court
rkers' Compensation Claims
'Ierk@tn.gov
8