Rodgers, Teretha v. HBC dba Saks Fifth Avenue ( 2020 )

FILED
May 28, 2020
11:37 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
TERETHA RODGERS, ) Docket No. 2019-06-1998
Employee, )
v. )
HBC d/b/a SAKS FIFTH AVENUE, ) State File No. 100976-2019
Employer, )
And )
SAFETY NATIONAL CASUALTY ) Judge Joshua Davis Baker
CORP., )
Carrier. )
____________________________________________________________________
EXPEDITED HEARING ORDER
(DECISION ON THE RECORD)
____________________________________________________________________
This claim came before the Court on Ms. Rodgers’s request for expedited hearing
on the record. Ms. Rodgers requested temporary disability and medical benefits,
including reimbursement of medical expenses, for a meniscal tear in her right knee. For
the reasons below, the Court denies Ms. Rodgers’s request.
Claim History
The Court derived these facts from file documentation. Ms. Rodgers worked for
HBC as a warehouse order picker, which involved climbing ladders and kneeling. On
April 5, 2019, Ms. Rodgers complained to her supervisor of right-leg pain and left early
to obtain emergency care.
The Court does not have the emergency room records but does have records of
Ms. Rodgers’s treatment with Dr. Blake Garside. Initially, Dr. Garside suggested Ms.
Rodgers believed her injury had occurred gradually without an identifiable cause when he
wrote, “She has been experiencing pain in the right knee now for 2 months . . . She does
not recall any specific injury.” Dr. Garside neither noted any potential causes nor
suggested a primary cause. Ultimately, he surgically repaired Ms. Rodgers’s lateral
meniscus tear.
1
HBC asserted Ms. Rodgers deprived it of the opportunity to provide medical care
or temporary disability benefits by failing to report a work injury until six months after
leaving work early for emergency treatment. According to affidavits from two of her
supervisors, Ms. Rodgers said she could not work because of an injury and a surgery but
never said that work caused her injury. Also, in her application to HBC for a leave of
absence, Ms. Rodgers wrote that she needed leave for her “personal serious health
condition.”
Ms. Rodgers’s written statements convey uncertainty over the injury’s
development. In her petition, Ms. Rodgers characterized her injury as developing over
three weeks from climbing and kneeling at work. In her affidavit, however, she
suggested her injury happened on April 5 while climbing ladders at work.
Findings of Fact and Conclusions of Law
As an initial matter, HBC objected to including the majority of documents in the
claim file on hearsay grounds. These included: (1) NCCI proof of coverage inquiry;
Cigna Claim Details; a billing statement from Vanderbilt University Medical Center; and
billing statements from other medical providers. The Court agrees that these items are
hearsay. Additionally, none of these items are properly authenticated by a record’s
custodian, so none fall under any hearsay exceptions found in Tennessee Rule of
Evidence 901.
Turning to the substance of Ms. Rodgers’s claim, in order to prevail at an
expedited hearing, she must present sufficient evidence from which the Court can
determine she is likely to prevail at a hearing on the merits. Tenn. Code Ann. § 50-6-
239(d)(1) (2019). HBC argued Ms. Rodgers is not entitled to workers’ compensation
benefits because she did not present sufficient evidence of medical causation and did not
provide notice of a work injury. The Court denies Ms. Rodgers’s requested benefits for
lack of medical proof but declines to address the notice defense.
The Court declines to decide the notice issue for two reasons. First, the Court
holds that Ms. Rodgers failed to present sufficient evidence of medical causation.
Second, the documentation does not clarify whether Ms. Rodgers alleged a gradual or an
acute injury. For these reasons, the Court cannot determine whether Ms. Rodgers should
have provided notice under Tennessee Code Annotated section 50-6-201(a)(1) or section
50-6-201(b).
The notice issue aside, the main failing of Ms. Rodgers’s claim concerns expert
medical proof. To prevail at a final hearing, Ms. Rodgers must prove she suffered a work
injury by presenting “expert medical proof that the alleged injury is causally related to the
employment when the case is not ‘obvious, simple [or] routine.’” Berdnik v. Fairfield
2
Glade Com’ty Club, 2017 TN Wrk. Comp. App. Bd. LEXIS 32, at *10-11(may 18,
2017). While lay testimony is probative, it is insufficient to prove causation without
expert medical evidence. Scott v. Integrity Staffing Solutions, 2015 TN Wrk. Comp. App.
Bd. LEXIS 24, at *12 (Aug. 18, 2015) (“Employee’s lay testimony in this case, without
corroborative expert testimony, did not constitute adequate evidence of medical
causation.”).
Here, Ms. Rodgers failed to prove causation through expert medical evidence. In
fact, based on the leave request she subnmitted to HBC, even Ms. Rodgers seemed
unsure of the cause of her injury. Likewise, her surgeon, Dr. Garside, noted that Ms.
Rodgers suffered knee pain for two months but stated “no specific injury.” Because she
conveyed no specific injury, Dr. Garside did not relate the cause of her condition to work.
Without expert medical evidence on causation, the Court cannot find that Ms. Rodgers
would likely prove her injury arose primarily out of her employment. Therefore, the
Court holds Ms. Rodgers is not likely to prevail at a final hearing.
IT IS ORDERED as follows:
1. The Court denies Ms. Rodgers’s request for benefits at this time.
2. The Court sets this claim for a scheduling hearing on July 6, 2020, at 9:30 a.m.
Central Time. The parties must call (615) 741-2113 or toll-free at (855) 874-
0474 to participate. Failure to call might result in a determination of the issues
without the party’s participation.
ENTERED May 28, 2020.
___________________________________
Joshua Davis Baker, Judge
Court of Workers’ Compensation Claims
3
APPENDIX
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing and Teresa Rodgers’s Affidavit
4. Affidavit of Nicki Wilcox
5. Affidavit of Charles Lohn
6. Affidavit of Bridget Hollis
7. Medical Records
8. Leave of Absence Request Form
9. Letter
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on May 28, 2020.
Name Certified Email Service sent to:
Mail
Teretha Rodgers, X tarodgers5510@gmail.com
Employee
Catheryne Grant, X catherynelgrant@feeneymurray.com
Employer’s Attorney jessica@feeneymurray.com
/S/ Penny Shrum
____________________________________________
Penny Shrum, Court Clerk
Court of Workers’ Compensation Claims
Wc.courtclerk@tn.gov
4
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 ten
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: (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.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________
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):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ 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): _________________________________________ ☐Employer ☐Employee
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
Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, I-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
I, ________________________________________, having been duly sworn according to law, make oath that
because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name: 2. Address:
3. Telephone Number: 4. Date of Birth:
5. Names and Ages of All Dependents:
______________________________________ Relationship:
______________________________________ Relationship:
______________________________________ Relationship:
______________________________________ Relationship:
6. I am employed by:
My employer’s address is:
My employer’s phone number is:
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$ ___________________
8. I receive or expect to receive money from the following sources:
AFDC $ ________ per month beginning
SSI $ ________ per month beginning
Retirement $ ________ 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:
Rent/House Payment $ ________ per month Medical/Dental $ ___________ per month
Groceries $ ________ per month Telephone $ per month
Electricity $ ________ per month School Supplies $ per month
Water $ ________ per month Clothing $ per month
Gas $ ________ per month Child Care $ per month
Transportation $ ________ per month Child Support $ per 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
I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.
_
APPELLANT
Sworn and subscribed before me, a notary public, this
_______ day of , 20_______.
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV 11/15) RDA 11082
Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________
Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee
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 I 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