Noblitt, Vickie v. Green Acres Produce ( 2020 )

FILED
Feb 24, 2020
02:07 PM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT CHATTANOOGA
Vickie Noblitt, ) Docket No. 2019-01-0463
Employee, )
v. ) State File No. 45410-2019
Green Acres Produce, )
Uninsured Employer. ) Judge Audrey A. Headrick
EXPEDITED HEARING ORDER
Ms. Noblitt requested that Green Acres provide her with medical and temporary
disability benefits for an upper right-arm injury. Green Acres disputed that Ms. Noblitt
injured her arm at work and asserted it offered her work within her restrictions. For the
reasons below, the Court grants the requested medical benefits but denies temporary
disability benefits.
History of Claim
Ms. Noblitt, a baker at Green Acres, lifted a heavy container of bleach and injured
her upper right-arm on May 8, 2019. She stated the pain made her nauseous, so she
placed both hands on the sink. A co-worker saw Ms. Noblitt and told Sandra Bishop,
Green Acres’s owner, that Ms. Noblitt hurt her arm. Ms. Bishop asked Ms. Noblitt if she
was okay, and Ms. Noblitt responded that she was fine and finished her shift. Ms. Noblitt
worked the next day primarily using her left hand.
Two days after the injury, Ms. Noblitt told Ms. Bishop that she needed to see a
doctor due to the bruising and an egg-shaped lump that developed. Ms. Bishop told Ms.
Noblitt she would pay for her to go to the doctor.' Ms. Noblitt immediately went to an
urgent-care facility where the provider diagnosed a biceps tendon rupture, ordered an
ultrasound, recommended a sling, and referred her to an orthopedist.
' The testimony was unclear as to whether Ms. Bishop or Green Acres paid for the treatment.
1
After the urgent-care visit, Ms. Bishop agreed to pay for the ultrasound.”
Although Ms. Bishop paid for the urgent-care visit and ultrasound, she refused to pay for
any additional treatment. After she declined to pay, Ms. Noblitt did not obtain treatment
on her own.
Ms. Bishop testified she refused to pay for additional treatment because she
disputed whether Ms. Noblitt’s injury occurred at Green Acres. She noted that Ms.
Noblitt finished her shift on May 8 and worked on May 9. Ms. Noblitt also noted that
Ms. Bishop was upset regarding Green Acres’s lunch policy shortly before the May 8
injury. Further, Ms. Bishop stated Ms. Noblitt complained of being tired from planting
flowers in her yard before the May 8 injury.
The parties also contested the availability of post-injury work at Green Acres, but
they agreed that Ms. Noblitt did not work at Green Acres after May 9.
With the exception of the urgent-care visit and ultrasound, Green Acres did not
provide Ms. Noblitt with any medical or temporary disability benefits. Ms. Noblitt, a
Tennessee resident, notified the Bureau of Workers’ Compensation of her May 8 injury
on June 25.° The Bureau’s Compliance Unit investigated and prepared an Expedited
Request for Investigation Report, noting that Green Acres admitted it was uninsured at
the time of Ms. Noblitt’s injury. Ms. Bishop later acknowledged she should have had
workers’ compensation coverage, and she obtained coverage after Ms. Bishop’s injury."
Findings of Fact and Conclusions of Law
Ms. Noblitt must present sufficient evidence demonstrating she is likely to prevail
at a hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1) (2019). The Court
holds she is likely to prevail in her claim for medical benefits but not temporary disability
benefits.
Medical Benefits
Under the Workers’ Compensation Law, an employer must provide medical
treatment made reasonably necessary by the work injury. Tenn. Code Ann. § 50-6-
204(a). To receive benefits, Ms. Noblitt must show, to a reasonable degree of medical
certainty, that the May 8, 2019 incident contributed more than fifty percent in causing the
need for medical treatment, considering all causes. Tenn. Code Ann. § 50-6-102(14).
> The parties did not submit the ultrasound report.
* The investigator noted that Ms. Noblitt resides in Cleveland, Tennessee but has a Georgia driver’s
license.
* Ms. Bishop admitted that Green Acres had five or more employees when Ms. Noblitt was injured.
2
Here, the evidence is sufficient to show that lifting a heavy container of bleach on
May 9 caused Ms. Noblitt’s work injury and need for medical treatment. The urgent-care
provider referred Ms. Noblitt to see an orthopedist for her biceps tendon rupture. Based
on the evidence, Green Acres must provide an orthopedist panel from which Ms. Noblitt
may select an authorized treating physician.
Temporary Disability Benefits
Ms. Noblitt also requested temporary disability benefits. There are two kinds of
temporary disability benefits: temporary total and temporary partial. To receive
temporary total disability benefits, Ms. Noblitt must prove (1) she became disabled from
working due to a work injury; (2) a causal connection between the injury and her inability
to work; and (3) the duration of her disability. Jones v. Crencor Leasing and Sales, TN
Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11, 2015). Concerning temporary partial
disability benefits, Ms. Noblitt is eligible for benefits if she earned less than her average
weekly wage due to work restrictions. See Tenn. Code Ann. § 50-6-207(2)(A).
Here, Ms. Noblitt submitted no medical proof taking her off work or reflecting
work restrictions, aside from use of a sling, and/or the duration of any restrictions. Due
to the lack of evidence, the Court must deny her request for temporary disability benefits
at this time.
Payment of Benefits
Green Acres must provide medical benefits. However, since it did not have
workers’ compensation insurance at the time of the injury, the Uninsured Employers
Fund has discretion to pay limited medical expenses if certain criteria are met. (See
attached Benefits Request Form.) Ms. Noblitt must establish, through her testimony,
medical records, and the Bureau’s Compliance report, that she proved or is likely to
prove that she: 1) worked for an uninsured employer; 2) suffered an injury arising
primarily out of and in the course and scope of employment on or after July 1, 2015; 3)
was a Tennessee resident on the date of injury; 4) provided notice to the Bureau of the
injury and of the employer’s lack of coverage within sixty days of the injury; and, 5)
secured a judgment for workers’ compensation benefits against Green Acres for the
injury. Tenn. Code Ann. § 50-6-801(d)(1)-(5).
The Court finds that Ms. Noblitt worked for an uninsured employer, Green Acres,
and that she is likely to prevail at a hearing on the merits that she suffered an injury
arising primarily out of her employment on May 8, 2019. She was a Tennessee resident
on that date, and she provided notice to the Bureau within sixty days of her injury and of
Green Acres’s lack of coverage. This order serves as a judgment for benefits. Ms.
Noblitt satisfied all of the requirements of section 50-6-801(d).
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IT IS, THEREFORE, ORDERED as follows:
1.
Green Acres shall provide Ms. Noblitt an orthopedist panel for her upper right-arm
injury under Tennessee Code Annotated section 50-6-204.
The Court refers this matter to the Compliance Program for consideration of the
imposition of any applicable penalties.
This case is set for a Status Hearing on Monday, April 20, 2020, at 9:00 a.m.
Eastern Time. The parties must call 423-634-0164 or toll-free at 855-383-0001 to
participate. Failure to call might result in a determination of the issues without the
party’s participation.
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).
The 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.
. For questions regarding compliance, please contact the Workers’ Compensation
Compliance Unit via email at WCCompliance.Program(@tn.gov.
IT IS ORDERED.
ENTERED February 24, 2020.
<
A. HEADRICK
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Affidavit of Vickie Noblitt
2. Medical records of Urgent Care East
3. Expedited Request for Investigation Report
Technical record:
Petition for Benefit Determination
Dispute Certification Notice
Request for Expedited Hearing
Notice of Expedited Hearing
Motion for Continuance
Order Continuing Expedited Hearing
Notice of Expedited Hearing
= Mi eb eo
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on February 24, 2020.
Name Certified Email Service sent to:
Mail
Tim Henshaw, Xx tim@memahanlawfirm.com
Employee’s Attorney
Green Acres Produce, Xx xX Attn: Sandra Bishop
Uninsured Employer 4845 Wilson Drive NW
Cleveland, TN 37312
bishopgene@bellsouth.net
Compliance Program Xx WCCompliance.program@tn.gov
LaShawn Pender, XxX lashawn.pender@tn.gov
UEF Program
Penny Shaun W lpemmaadny?
PENNY SHRUM, COURT CLERK |
we.courtclerk@tn.gov
Filed Date Stamp Here
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work
wc.ombudsman@tn.gov
1-800-332-2667
REQUEST FOR BENEFITS FROM THE UNINSURED EMPLOYERS FUND
Eligible employees may use this form to request benefits from the Uninsured Employers Fund (UEF) if
they are injured while working for an employer that failed to provide:
1. Workers’ compensation insurance as required by the TN Workers’ Compensation Law; and,
2. Medical and/or disability benefits as required by the TN Workers’ Compensation Law.
This form MUST be completed and sent via certified mail to the following address:
Tennessee Bureau of Workers’ Compensation
ATTN: UEF Benefit Manager
Uninsured Employers Fund
220 French Landing Drive, Suite 1B
Nashville, TN 37243-1002.
This form MUST be sent within sixty (60) calendar days after the claim is over and MUST include:
r
A court order stating your employer owes you benefits and that you may request UEF benefits;
2. Acompleted Internal Revenue Service (IRS) Form, W-9 Request for Taxpayer Information and
Certification available at www.irs.gov; and
3. Acompleted Bureau of Workers’ Compensation Form C31 Medical Waiver and Consent available
on the “Forms” link at www.tn.gov/workerscomp.
I certify that I believe I am eligible for benefits from the UEF; that my employer has not paid all or part of
the benefits Iam due; and my employer has not complied with an order issued by the Court of Workers’
Compensation Claims.
I, , request benefits from the Uninsured Employers Fund.
(Print Your Name)
Signature Date
Tennessee Law allows the State of Tennessee to recover payments made by the UEF for temporary
disability benefits or medical benefits. An agreement between you and your employer for payment of
benefits must be pre-approved by the UEF before being approved by a workers’ compensation judge.
LB-3284 (NEW 4/19) RDA 10183
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Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Notice of Appeal,” and file the form with the
Clerk of the Court of Workers’ Compensation Claims within seven business days of the
date the expedited hearing order was filed. When filing the Notice of Appeal, you must
serve a copy upon all parties.
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of the Notice of Appeal. Payments can be made in-person at
any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
website or any Bureau office) seeking a waiver of the fee. You must file the fully-
completed Affidavit of Indigency within ten calendar days of filing the Notice of
Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
result in dismissal of the appeal.
3: You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business days of the filing of the Notice of Appeal. The statement of
the evidence must convey a complete and accurate account of the hearing. The Workers’
Compensation Judge must approve the statement before the record is submitted to the
Appeals Board. If the Appeals Board is called upon to review testimony or other proof
concerning factual matters, the absence of a transcript or statement of the evidence can be
a significant obstacle to meaningful appellate review.
4. If you wish to file a position statement, you must file it with the court clerk within fen
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements should include: (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.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
Siw Ur pow/workforce/inipries-at-work/,
we.courtderk@tn.gov | 1-800-332-2667
Docket No.:
State File No.:
Date of Injury:
Employee
Vv.
Employer
Notice is given that
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
O Expedited Hearing Order filed on QO Motion Order filed on
O Compensation Order filed:on O Other Order filed on
issued by Judge
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Parties
Appellant(s) (Requesting Party}: Oo Employer[_lEmployee
Address: Phone:
Email:
Attorney’s Name: . BPR#
Attorney’s Email: Phone:
Attorney’s Address:
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
Employee Name; Docket No.: Date of Inj.:
Appellee(s) (Opposing Party): (1) Employer LJEmployee
Appellee’s Address: Phone:
Email:
Attorney's Name: BPR#:
Attorney’s Email: Phone:
Attorney's Address:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, , certify that | have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the day of ,20
[Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082
Tennessee Bureau of Workers' Compensation
I,
because of my poverty, lam unable to
waived, The following facts support my
1. Full Name:
3. Telephone Number:
5. Names and Ages of All Dependents:
220 French Landing Drive, I-B
Nashville, TN 37243-1002
800-392-2667
AFFIDAVIT OF INDIGENCY
, having been duly swom according to law, make oath that
bear the costs of this appeal and request that the filing fee to appeal be
poverty.
2. Address:
4. Date of Birth:
Relationship;
———
Relationship:
Relationship:
Relationship:
6. | am employed by.
My employer's address ta:
My employer's phone number is:
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$
8. | receive or expect to racelve money from the following sources:
AFDC $ per month beginning
SSI $ per month beginning.
Retirement 5 per month beginning
Disability $ per month beginning
Unemployment $ per month “beginning
Worker's Comp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15)
RDA 11082
9. My expenses are:
RentHouse Payment $ parmonth Medical/Dental $ per month
Groceries $ __. per month Telephone $.. , per month
Electricity $ per month Schoo! Supplias $. : per month
Water $ per month Clothing $ per month
Gas $ per month Child Care $ per month
Transportation $ sper month Chitd Support $__ spar month
Car $ per month
Other $ per month (describe: )
10. Assets:
Automobile $ (FMV)
Checking/Savings Acct. §
House $ (FMV)
Other $ Describe:
11. My debts are:
Amount Owed To Whom
(hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that | am financially unable to pay the costs of thia appasl.
PELLANT
Sworn and subscribed before me, a notary public, this
day of —- __, 20
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV ] 1/15) RDA 11082