McGinnis, Barbara v. RANGE LINE DISCOUNT DELI , 2020 TN WC 108 ( 2020 )

FILED
Oct 08, 2020
08:20 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
IN THE
AT MEMPHIS
BARBARA McGINNIS, ) Docket No. 2019-08-1005
Employee, )
v. ) State File No. 94206-2019
RANGE LINE DISCOUNT DELI, )
Uninsured Employer. ) Judge Amber Luttrell
EXPEDITED HEARING ORDER
for medical and temporary disability benefits. Range Line Discount Deli did not
appear. For the reasons below, the Court holds Ms. McGinnis is entitled to a panel of
physicians but is not entitled to the requested temporary disability benefits or payment of
medical bills at this time.
History of Claim
Ms. McGinnis worked as a cook for Range Line Discount Deli. On July 20, 2019,
she injured her right foot, right arm/shoulder, back, and right side of her body when she
tripped over a piece of aluminum, slipped in water, and fell to the floor. Her coworker,
LaKeith Jamerson, testified by affidavit that he witnessed the accident and assisted her
afterward.
Ms. McGinnis went to the emergency room, but she did not produce records from
that treatment. She stated the providers took x-rays and prescribed medication. She was
unable to obtain a follow-up appointment with her personal physicians for several months.
According to the records, in October 2019, Ms. McGinnis saw Dr. Pooja Sethi and
reported a history of her fall on July 20, among other health concerns. She complained of
resulting pain in her neck, right shoulder, low back, and foot. She then saw Dr. Christopher
Jackson throughout 2019 and 2020 for chronic back, neck, and right-shoulder pain.
Dr. Jackson ordered cervical, thoracic, and lumbar MRIs and treated Ms. McGinnis
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conservatively for her symptoms. His records did not mention at work
until August 28, 2020. At that visit, Dr. Jackson noted that four weeks before coming to
the clinic, Ms. McGinnis suffered a fall that caused worsening neck and right-shoulder
blade pain. Ms. McGinnis testified that Dr. Jackson is currently treating her for pain.
Ms. McGinnis also testified regarding the notice she provided Range Line and her
efforts to file an accident report. Range Line is owned by Nabil Haimed, but his sons, Ali
and Mohammed, help manage the business. Ms. McGinnis sent text messages to Ali and
Mohammed requesting they fill out an accident report. Mohammed responded by text and
attempted to dissuade her from filing a report. She also sent a text message to Mr. Haimed
but received no response.
Ms. McGinnis then filed a Petition for Benefit Determination, and the Bureau
initiated an investigation.1 A compliance specialist stated that the specialist
interviewed Ms. McGinnis, Mr. Nassar, one of sons who helped run the
business, and who stated he was the manager. Big Ali
said but he could not provide any proof of
coverage. The specialist noted he found no policy for Range Line in NCCI, and Ms.
McGinnis said she worked with seven other employees. Finally, the specialist confirmed
Ms. McGinnis is a Tennessee resident and that she provided notice to the Bureau of her
days of her injury.
Ms. McGinnis seeks medical benefits, temporary disability benefits, payment of her
outstanding medical bills and reimbursement for bills paid by her insurance.
Findings of Fact and Conclusions of Law
Ms. McGinnis must provide sufficient evidence from which this Court might
determine she is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-
239(d)(1) (2019); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App.
Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Compensability
To prove a compensable injury, Ms. McGinnis must show that her alleged injuries
arose primarily out of and in the course and scope of her employment. To do so, she must
prove a work-related incident identifiable by time and place of occurrence. Tenn. Code
Ann. § 50-6-
that [the incident] contributed more than fifty percent (50%) in causing the . . .
degree
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Ms. McGinnis advised the Court that she served a copy of her Petition for Benefit Determination on Range Line by
mail.
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it is more likely than
not considering all causes as opposed to speculation or possibility. See Tenn. Code Ann. §
50-6-102(14)(C)-(D).
Applying these principles, the Court finds the undisputed testimony from Ms.
McGinnis and Mr. Jamerson proved that she injured her foot, right arm/shoulder, back and
right side of her body when she fell on July 20, 2019. Therefore, the Court holds she is
likely to show a specific incident, identifiable by time and place, at trial.
The question then is whether Ms. McGinnis appears likely to establish that her work
primarily caused the injury and need for treatment. The Court cannot find at this time that
she is likely to meet this burden. None of the medical records mention causation. Thus, she
has not proven
than fifty percent (50%) in causing the . . . disablement or need for medical treatment,
However, the Court must also address failure to provide a panel of
physicians. Tennessee Code Annotated section 50-6-204(a)(3)(A)(i) provides that,
when the employee has suffered an injury and expressed a need for medical care, the
employer shall designate a group of three (3) or more independent reputable physicians . .
. from which the injured employee shall select one (1) to be the tr
also require an employer to provide a panel no later than three days after an
employee expresses a need for medical care. Tenn. Comp. R. & Regs. 0800-02-01-.06
(2018).
Further, at an expedited hearing, an employee need not establish the compensability
of her claim by a preponderance of the evidence. Rather, where the employee presents
sufficient evidence to support that a work event resulted in injury, it may also be sufficient
to support an order compelling an employer to provide a panel. See Lewis v. Molly Maid,
2016 TN Wrk. Comp. App. Bd. LEXIS 19, at *8-9 (Apr. 20, 2016). Thus, the question is
whether Ms. McGinnis provided sufficient evidence to establish at this expedited hearing
stage that she is entitled to a panel of physicians. Her undisputed testimony was that she
suffered a specific injury, reported it to her employer, and attempted to file an accident
report to seek benefits. The Court holds this is sufficient evidence to satisfy her burden at
this stage that she is entitled to a panel of physicians. Range Line shall provide a panel
from which Ms. McGinnis may choose an authorized physician for treatment of her alleged
injuries.
Temporary Disability and Medical Bills
To establish entitlement to temporary benefits, Ms. McGinnis must show (1) she
became disabled from working due to a compensable injury, (2) a causal connection
between that injury and his inability to work, and (3) the duration of the period of disability.
Jones v. Crencor Leasing and Sales, TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11,
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2015). The Court finds Ms. McGinnis did not introduce sufficient evidence to satisfy these
factors. Thus, her request for temporary disability benefits is denied at this time.
Ms. McGinnis also requested payment of her medical bills for treatment of her
alleged injury. However, she did not provide corresponding records for all of the bills, nor
did she show that the expenses were causally related to the work injury or that the treatment
was reasonable and necessary. Without an expert opinion, the Court cannot speculate as to
the reasonableness, necessity, and causal relationship of the treatment and charges to the
work injury. See Eaves v. Ametek, Inc., 2018 TN Wrk. Comp. App. Bd. LEXIS 57, at *8-
9 (Sept. 14, 2018) (Trial court erred in ordering employer to pay medical expenses when
the employee offered no proof that the expenses were reasonable, necessary, or causally
related to the work accident). For these reasons, the Court holds that Ms. McGinnis is not
likely to prevail at trial as to payment of past medical expenses.
Payment of Benefits
Finally, Range Line must provide medical benefits. However, since it did not have
has discretion to pay limited medical expenses if certain criteria are met. (See
attached Benefits Request Form). Ms. McGinnis must establish that she: 1) worked for an
uninsured employer; 2) suffered an injury primarily 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 Range Line
Line. Tenn. Code Ann. § 50-6-801(d)(1)-(5).
The Court finds Ms. McGinnis worked for an uninsured employer, Range Line
Discount Deli, and that she is likely to prevail at a hearing on the merits that she suffered
an injury primarily within the course and scope of her employment on July 20, 2019. She
was a Tennessee resident on that date, and she provided notice to the Bureau within sixty
judgment for benefits. Ms. McGinnis satisfied the requirements of section 50-6-801(d).
IT IS, THEREFORE, ORDERED as follows:
1. Range Line Discount Deli shall provide Ms. McGinnis a panel of physicians for her
injury under Tennessee Code Annotated section 50-6-204.
2. Ms. McGinnis satisfied the requirements of Tennessee Code Annotated section 50-
6-801(d) and thus is eligible to request limited medical benefits from the UEF at the
McGinnis must complete and file the attached form.
Ms. McGinnis may contact an Ombudsman at 1-800-332-2667 for assistance with
this process.
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3. Unless an 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 confirmation within seven business days
may result in a penalty assessment for non-compliance. For questions regarding
WCCompliance.Program@tn.gov.
ENTERED October 8, 2020.
_____________________________________
JUDGE AMBER E. LUTTRELL
APPENDIX
Exhibits:
1.
2.
3. Expedited Request for Investigation Report
4. Medical records (collective exhibit)
5. Medical bills (Memphis Radiological and Regional One Health)
6. Medical documentation (collective exhibit-4 pages)
7. City of Memphis EMS Services bill
8. Text messages between Ms. McGinnis and employer
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Order Setting Case for Show Cause Hearing
4. Order Resetting Case for Show Cause Hearing
5. Order Granting Additional Time Following Show Cause Hearing
6. Request for Expedited Hearing
7. Order Setting Expedited Hearing (by telephone)
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CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on October 8, 2020.
Name Certified First Email Service sent to:
Mail Class
Mail
Barbara McGinnis, X X 2448 Wellons Ave.,
Self-represented Employee Memphis, TN 38127
barbaramcginnis9@gmail.com
Range Line Discount Deli, X X 3467 Range Line Rd.,
Uninsured Employer Memphis, TN 38127
LaShawn Pender, X lashawn.pender@tn.gov
Program Coordinator
Compliance Unit X amanda.terry@tn.gov
_____________________________________
Penny Shrum, Clerk of Court
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