Compton, Pamela v. Mo's Investments, Inc d/b/a Sicily Restuarant , 2017 TN WC 168 ( 2017 )

FILED
August 31,2017
TN COURT OF
WOREERS’ COMPENSATION
CLAMS
Time 12:55 AM
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT KINGSPORT
PAMELA J. COMPTON,
Employee,
Docket Number: 2017-02-0178
Vv.
MO’S INVESTMENTS, INC. d/b/a
SICILY RESTAURANT
Uninsured Employer,
)
)
)
) State File Number: 25350-2017
)
)
) Judge Brian K. Addington
EXPEDITED HEARING ORDER
This matter came before the undersigned Workers’ Compensation Judge on
August 29, 2017 upon Pamela J. Compton’s Request for Expedited Hearing. The central
legal issue is whether Ms. Compton suffered an injury arising primarily out of and in the
course and scope of employment with Mo’s Investments, Inc. d/b/a Sicily Restaurant.
The Court holds Ms. Compton has not come forward with sufficient evidence to establish
she is likely to prevail at a hearing on the merits. Therefore, she is not entitled to the
requested medical and temporary disability benefits at this time.
History of Claim
Ms. Compton worked as a waitress and dish washer for Sicily Restaurant when
she claimed she suffered an injury at work.
She provided different dates of injury and areas of injury throughout the history of
her claim. On Ms. Compton’s Petition for Benefit Determination (PBD), she listed an
injury date of “March 2 or 3, 2017,” and described a cut on her left hand. With her
Request for Expedited Hearing, Ms. Compton provided an affidavit that she suffered
injury “on or about” the last of February or early March. The affidavit also claimed she
cut her arm. When Ms. Compton testified during the Expedited Hearing, she stated she
believed she became injured on March 2, 2017. The undersigned asked her to point out
her injury, and she indicated her left arm, where the Court observed no obvious injury.
Ms. Compton did not immediately seek treatment. Later, she asked for medical
treatment, and a supervisor told her to go to the doctor. Ms. Compton went to her own
physician, Doctor’s Assisted Wellness, and then later to Urgent Care at Wellmont
Medical Associates.
In an effort to support her claim, Ms. Compton submitted medical bills, receipts,
and one excuse. The bills from Doctor’s Assisted Wellness dated back to February 24,
2017. The excuse is for a doctor’s appointment that day but provided no explanation for
the appointment. She went back to Doctor’s Assisted Wellness on March 3, to Urgent
Care on March 5, and back to Doctor’s Assisted Wellness of March 9 and 16. The
receipts from Doctor’s Assisted Wellness indicated Ms. Compton received Subutex
treatment for drug dependency. The receipt from Urgent Care did not explain the
treatment.
Mohamed Hashem owns Sicily Restaurant. He did not witness Ms. Compton
suffer an injury and only heard verbal reports about her alleged injury and missing work.
At some point, Ms. Compton provided the Urgent Care bill to him, and he paid $22.24
toward it. Ms. Hashem refused to pay any other bills because they appeared to be for
regular doctor’s visits and not a work injury.
The parties discussed Ms. Compton’s wages during the Expedited Hearing, but
neither side presented any written proof.
During the Expedited Hearing, Ms. Compton requested payment of past medical
expenses and a week and a half to two weeks of temporary total disability benefits.
Mr. Hashem appeared on behalf of Mo’s Investments d/b/a Sicily Restaurant
without an attorney. The Court did not allow Mr. Hashem to enter or object to exhibits,
cross-examine witnesses, or make arguments. |
Findings of Fact and Conclusions of Law
In this workers’ compensation case, Ms. Compton has the burden to prove all
essential elements of her claim. Scott v. Integrity Staffing Solutions, 2015 TN Wrk.
Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). However, she need not prove every
element of her claim by a preponderance of the evidence to obtain relief at an Expedited
Hearing. Instead, she must come forward with sufficient evidence from which the trial
court can determine that she is likely to prevail at a hearing on the merits. McCord v.
' “Any corporation . . . must be represented by counsel in all proceedings occurring in the court of worker’
compensation claims[.]” Tenn. Comp. R & Regs. 0800-02-21-.05 (1)(c) (2016).
2
Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Mar. 27, 2015).
Ms. Compton must show she suffered an injury caused by a specific incident or set
of incidents arising primarily out of and in the course and scope of employment,
identifiable by time and place of occurrence. Tenn. Code Ann. § 50-6-102(14)(A)
(2016).
Here, Ms. Compton did not recall the date of injury. Her PBD listed an injury date
of March 2 or 3, while she testified “she believed’ it occurred on March 2 but signed an
affidavit that it happened late February or early March. Medical bills suggested it could
have occurred before February 24. Based on these discrepancies and the record as a
whole, the Court finds that Ms. Compton failed to identify the time of her injury.
Further, Ms. Compton did not prove the claimed injury. In her PBD, Ms.
Compton described a hand injury, but her affidavit and testimony claimed an arm injury
where but no obvious injury was visible. Further, she provided no medical records to
document the alleged injury. Except in the most obvious cases, an employee must
present expert medical evidence to prove her claim. Orman v. Williams Sonoma, Inc.,
803 S.W.2d 672, 676 (Tenn. 1991). Ms. Compton did not present any expert medical
evidence of the injury, which is required for her to prove she suffered an injury at work.
As for the issue of temporary benefits, Ms. Compton presented only one excuse
for a scheduled doctor’s appointment on February 24. Temporary total disability benefits
are owed only after seven days of disability resulting from the injury. Tenn. Code Ann. §
50-6-205(a). Because Ms. Compton failed to prove the date of her injury, the Court
cannot find that her excuse related to her alleged work injury. Even if it did, the
Workers’ Compensation Law requires seven excused days before benefits are owed.
Because Ms. Compton did not provide sufficient proof that she suffered an injury
on March 2, expert medical proof of her injury, or medical excuses from work for more
than one day, the Court denies her request for past medical and temporary total disability
benefits. She has not come forward with sufficient evidence to establish she is likely to
prevail at a hearing on the merits at this time.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. Compton’s request for benefits is denied at this time.
2. This matter is set for a Scheduling Hearing on October 10, 2017, at 10:00 a.m.
Eastern Time. The parties must call 855-943-5044 toll-free to participate in the
hearing. Failure to appear by telephone may result in a determination of the issues
without your participation.
ENTERED this the 31st day of August, 2017.
/s/ Brian K. Addington
Judge Brian K. Addington
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
Ms. Compton’s affidavit
Collective Exhibit-Medical Bills
Email from Mr. Hashem to the Bureau
Collective Exhibit- Check, Medical Excuse, and Medical Bills
Expedited Request for Investigation Report
ve WN
Technical Record
1. Dispute Certification Notice
2. Petition for Benefit Determination
3. Request for Expedited Hearing
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 the31stday of
August, 2017.
Name Certified | First | Via Via Address
Mail Class | Fax | Email
Mail
111 Maden Drive
Pamela Compton xX xX Gray, TN 37615
pamcompton7(@yahoo.com
Sicily Restaurant 405 Roy Martin Road
c/o xX xX Gray-Johnson City, TN 37615
Mohammed
Hashem
edhashem@gmail.com
/s/ Penny Shrum
PENNY SHRUM, Court Clerk
WC.CourtClerk@tn.gov