Palmer, Norman v. Paul Hardy , 2016 TN WC 211 ( 2016 )

FILED
September 21.2016
TN COURT OF
WORKERS' COl'i.IPENS.ffiON
CLIDIS
Time· 1:53 PM
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT KINGSPORT
Norman Palmer, ) Docket No.: 2016-02-0026
Employee, )
v. )
Paul Hardy, ) State File Number: 3024-2016
Employer, )
And )
Hartford Insurance Company, ) Judge Brian K. Addington
Insurance Carrier. )
)
EXPEDITED HEARING ORDER DENYING REQUESTED MEDICAL
AND TEMPORARY DISABILITY BENEFITS
This matter came before the undersigned Workers' Compensation Judge on
September 19, 2016, on the Request for Expedited Hearing filed by the employee,
Norman Palmer, under Tennessee Code Annotated section 50-6-239 (2015).
The present focus of this case is whether Paul Hardy is responsible for payment of
medical and temporary disability benefits to Mr. Palmer. The central legal issue is
whether Mr. Palmer suffered an injury that arose primarily out of and in the course and
scope of his employment. 1 For the reasons set forth below, the Court finds Mr. Palmer
has not submitted sufficient evidence from which this Court could conclude he is likely to
prevail at a hearing on the merits and holds he is not entitled to medical or temporary
disability benefits at this time.
History of Claim
Mr. Palmer worked as a laborer for Paul Hardy. Prior to his employment, he
informed Mr. Hardy he suffered epileptic seizures. On October 21 , 2015, Mr. Palmer and
a co-worker, Josh Roberts, installed flashing on a roof. They reached the roof by ladder.
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A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an Appendix.
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Once on the roof, the workers determined they needed some supplies from the
truck. Mr. Palmer went to retrieve them and testified he remembered seeing the ladder as
he walked toward it. The next thing Mr. Palmer remembered was Mr. Roberts assisting
him as he lay on the ground. His face was bleeding, and his back and groin areas hurt.
Mr. Palmer thought he suffered a seizure and had no remembrance of how he came to be
laying in the driveway. Mr. Palmer testified that the ladder was still standing where they
placed it when they climbed onto the roof. Mr. Roberts called Mr. Hardy, who instructed
Mr. Roberts to take Mr. Palmer home.
Five days later, Mr. Palmer sought medical treatment at Jefferson Memorial
Hospital for head pain and headaches. (Ex. 4 at 9.) Extensive diagnostic tests found no
fractures but indicated multilevel cervical degenerative disc disease. /d. at 22-23. Upon
his release from the hospital, the medical providers advised Mr. Palmer to follow up with
his primary care physician or a neurologist for a work release and evaluation. /d. at 12.
However, Mr. Palmer did not seek medical attention again until January 7, 2016,
when he presented to Jefferson Memorial for low back pain. /d. at 2-3. The providers
prescribed Cyclobenzaprine, a muscle relaxer. /d. at 1. Mr. Palmer testified he has not
treated elsewhere due to financial difficulties.
Mr. Palmer requested medical treatment and temporary disability benefits from
Mr. Hardy. Mr. Hardy's insurance carrier issued a Notice of Denial on January 28, 2016,
and asserted Mr. Palmer suffered a seizure not causally related to his work. (Ex. 3.)
Mr. Palmer filed a Petition for Benefit Determination seeking medical and
temporary disability benefits on January 14, 2016. (T .R. 1 at 1.) The parties did not
resolve the disputed issues through mediation, and the Mediating Specialist filed a
Dispute Certification Notice. (T.R. 2.) Mr. Palmer filed a Request for Expedited
Hearing on July 7, 2016. (T.R. 5.)
At the Expedited Hearing, Mr. Palmer acknowledged he suffered epileptic seizures
prior to employment with Mr. Hardy. He also asserted he informed Mr. Hardy of his
condition during their first conversation before his hire. Mr. Palmer argued that, although
he does not remember what happened, he injured himself at work when he fell from the
roof and was therefore entitled to medical and temporary disability benefits. He stated he
missed work for approximately seven months before taking a job with a previous
employer. 2
Mr. Hardy asserted Mr. Palmer failed to prove he suffered a compensable injury,
as he had no remembrance of what caused his injury and presented no witness to prove
2
Mr. Palmer did not provide exact dates, but he did report he returned to work for a prior employer approximately
two months prior to the Expedited Hearing.
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how he was injured. Mr. Hardy further argued that Mr. Palmer was not entitled to
medical benefits or temporary disability benefits because he failed to prove he suffered a
compensable injury.
Findings of Facts and Conclusions of Law
As the injured employee seeking benefits, Mr. Palmer has the burden of proof on
all essential elements of his claim. Scott v. Integrity Staffing Solutions, No. 2015-01-
0055,2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn. Workers' Comp. App. Bd.
Aug. 18, 20 15). Mr. Palmer need not prove every element of his claim by a
preponderance of the evidence in order to obtain relief at 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). However, at an
expedited hearing, he has the burden to come forward with sufficient evidence from
which the trial court can determine that he is likely to prevail at a hearing on the merits.
!d.
To be compensable under the Workers' Compensation Law, an injury must arise
primarily out of and occur in the course and scope of the employment. Tenn. Code Ann.
§ 50-6-1 02(14) (20 15). The term "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 the injury is caused by a specific incident, or set of incidents, arising
primarily out of and in the course and scope of employment. Tenn. Code Ann § 50-6-
102(14)(a) (2015).
Mr. Palmer failed to present any evidence that he sustained an injury by accident
arising primarily from work. He has no remembrance of the alleged accident. Mr.
Palmer only recalls I) seeing the ladder as he walked towards it on the roof and 2)
receiving assistance from Mr. Roberts while he was on the ground. Mr. Palmer asks the
Court to assume that he fell from the roof. However, the Court cannot fill in the gaps of
Mr. Palmer's testimony.
Mr. Palmer did not point to any specific hazard of employment on the ground that
caused his injuries; rather, he asserted that he fell from the roof. Although a fall while
working at a height could lead to a compensable injury, Mr. Palmer has not proven he fell
from a height. There is any number of possible explanations as to how Mr. Palmer came
to be on the ground, and the Court will not presume one.
The Court can only characterize "his fall" as idiopathic because there is no
explanation for it. Mr. Palmer claims to have suffered an epileptic seizure and fell from
the roof; however, even that explanation is pure speculation, as there is no evidence of
what actually happened. Idiopathic InJuries are not compensable unless the work
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environment presents a peculiar hazard. Thomas v. Zipp Express, No. 2015-06-0546,
2016 TN Wrk. Comp App. Bd. LEXIS 35, at *15 (Tenn. Workers' Comp. App. Bd. Aug.
2, 2016). Because Mr. Palmer failed to provide evidence of a specific incident at work
arising primarily out of and in the course and scope of employment, the Court finds he
has failed to provide sufficient proof to meet the definition of "injury" according to the
Workers' Compensation Law.
The Court holds Mr. Palmer failed to come forward with sufficient evidence from
which the Court could conclude he is likely to prevail at a hearing on the merits that he
suffered an injury arising primarily out of and in the course and scope of his employment;
therefore, his request for medical and temporary disability benefits is denied at this time.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Palmer's claim against Paul Hardy and his workers' compensation carrier for
the requested medical and temporary disability benefits is denied.
2. This matter is set for Initial (Scheduling) Hearing on November 1, 2016, at 4:00
p.m. Eastern Time.
ENTERED this the 21st day of September, 2016.
Judge Brian K. Addington
Court of Workers' Compensation Claims
Initial (Scheduling) Hearing:
A Scheduling Hearing has been set with Judge Brian K. Addington, Court of
Workers' Compensation Claims. You must call toll-free at 855-543-5044 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 Eastern Time (ET).
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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
Indigencv 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
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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 Mr. Palmer;
2. First Report of Injury;
3. Notice of Denial of Claim for Compensation;
4. Medical Records-Jefferson Memorial Hospital; and,
5. Collective Medical Bills (for Identification Only).
Technical record: 3
1. Petition for Benefit Determination, January 14, 2016;
2. Dispute Certification Notice, February 4, 2016;
3. Show Cause Order, May 20, 2016;
4. Order on Show Cause Hearing, June 29, 20 16;
5. Request for Expedited Hearing, July 7, 2016; and,
6. Employer's Response to Petition for Benefit Determination.
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The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as
allegations unless established by the evidence.
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Expedited Hearing Order
Denying Requested Medical and Temporary Disability Benefits was sent to the
following recipients by the following methods of service on this the 21st day of
September, 2016.
Name Certified Mail Via Email Service Sent To:
Mr. Norman Palmer X X 1339 Friends Station Road
New Market, TN 37820
housework 1967@yahoo.com
Joseph Ballard, Esq. X Joseph. ballard@thehartford.com
rum, Clerk of Court
urtClerk@tn.gov
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