Nowman, Brenda v. Gap, Inc. , 2017 TN WC 68 ( 2017 )

FILED
TNCO URT OF
W ORKERS' OOYP,INSATIO N
445 S.W.3d 685, 694-695 (Tenn. 2014).
In this case, this Court observed Ms. Nowman's demeanor and finds that, in addition to
frequently being unable to recall critical events, she appeared agitated, nervous, hesitant,
defensive and argumentative. She was generally not a credible witness.
Applying the general principles of burden of proof and assessing credibility to the
facts of this case, the Court first considers whether she gave legally sufficient notice. The
Workers' Compensation Law mandates that "[e]very injured employee . . . 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." Tenn. Code Ann. § 50-6-201(a)(l) (2015). The statute additionally
provides that "[n]o compensation shall be payable ... 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." Id. (emphasis added). 3 The
notice requirement contained in section 50-6-201 "exists so that the employer will have
the opportunity to make a timely investigation of the facts while still readily accessible,
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For injuries occurring after July 1, 2016, the notice requirement is fifteen days rather than thirty.
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and to enable the employer to provide timely and proper treatment for the injured
employee." Buckner v. Eaton Corp., et al., 2016 TN Wrk. Comp. App. Bd. LEXIS 84, at
*6-7 (Nov. 9, 2016).
The credibility finding is significant to resolve the notice issue because Ms.
Nowman did not provide written notice as the statute generally requires. Thus, the Court
looks to whether Gap had actual notice and must discern this from the competing
versions of conversations between Ms. Nowman and other Gap employees. By her own
admission, Ms. Nowman did not tell Mr. Whitehead that she injured her back while
reaching over to grab a box on May 25. Rather, she merely told him she was "in pain."
The Court further accredits Mr. Spivey's testimony and finds that Ms. Nowman did not
convey to him on May 26 or after May 31 that the work incident caused her back pain. It
is also telling to this Court that Ms. Nowman admitted she "chose" workers'
compensation over short-term disability. In sum, Ms. Nowman first told Gap her back
pain was work-related on August 2, well past the timeframe required under the Workers'
Compensation Law. Therefore, the Court holds at this time she is not likely to prevail at
a hearing on the merits regarding notice and, accordingly, no benefits are payable under
the statute.
As to the remaining issue in this case, Ms. Nowman disputed that she suffered
preexisting back problems. She testified that she could not recall visits to the emergency
room or Dr. Taylor complaining of low-back pain, or she attempted to characterize the
visits as treatment only for her "tailbone" or hip. The Court finds her testimony was not
credible and accredits the medical records themselves as persuasive proof that she had an
approximate three-year history of low-back problems predating the alleged incident.
The Workers' Compensation Law requires that, for the Court to find Ms. Nowman
sustained a compensable injury, she must show that she suffered an "injury by accident ..
. arising primarily out of and in the course and scope of employment[.]" Tenn. Code
Ann. § 50-6-102(14) (2016). She must further show that "the employment contributed
more than fifty percent (50%) in causing the death, disablement or need for medical
treatment, considering all causes," and this must be shown "to a reasonable degree of
medical certainty." Id. at § 50-6-102(14)(B)-(C). Applying these standards, the Court
concludes Ms. Nowman failed to demonstrate at this time that the employment is more
than fifty percent responsible for her need for treatment, given her previous back
problems, and that, other than noting the history she gave, the providers she saw after
May 25, 2016, did not relate her condition to work.
Thus, the Court concludes she failed to demonstrate a likelihood of success at a
hearing on the merits on the issues of adequate notice and medical causation, and
therefore, at this time, the Court denies her requested relief.
IT IS, THEREFORE, ORDERED as follows:
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1. Ms. Nowman's request for workers' compensation benefits is denied at this time.
2. This matter is set for a Scheduling Hearing on May 22, 2017, at 8:30a.m. Central.
You must call 615-532-9552 or toll-free at 866-943-0025 to participate in the
Hearing. Failure to call may result in a determination of the issues without
your further participation.
ENTERED this the 4th day of April, 2017.
ge Kenneth M. Switzer
Court of Workers' Com pens
APPENDIX
Exhibits:
1. Ms. Nowman's Affidavit
2. Compilation Medical Records
3. First Report of Injury
4. Wage statement
5. C-42 Choice of Physician
6. Denial
7. Degenerative Disc Disease-Topic Overview
8. Facebookposts, March 17, September 18,2015, October 2, 2015
9. Facebook post, September 11, 2016
10. Facebook post, September 15
11. Facebook posts, September 23, November 29, 2016, December 25, 2016
12. Family Health Care of Gallatin records (for identification only; includes causation
letter contained within DCN)
Technical record:
1. Petition for Benefit Determination
2. Employer's Position Statement
3. Dispute Certification Notice
4. Request for Expedited Hearing
5. Employer's Response to Employee's Request for Expedited Hearing
6. Employer's Witness List
7. Employer's Motion to Amend Witness List
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CERTIFICATE OF SERVICE
I certify that a true and correct copy of the Expedited Hearing Order Denying
Requested Relief was sent to the following recipients by the following methods of service
on this the 4th day of April, 20 17.
Name Certified Via Via Service sent to:
Mail Fax Email
Brenda Nowman, X Browneyegirl813@yahoo.com
Self-represented
Stephen Morton, X Ste12hen. morton@mgclaw .com
Employer's Counsel
enny; hrum, Clerk of Court
Court of Workers' Compensation Claims
WC.CourtClerk@tn.gov
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