Scruggs, Carla v. AMAZON , 2022 TN WC 32 ( 2022 )

FILED
Apr 07, 2022
08:21 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
CARLA SCRUGGS, ) Docket No. 2021-08-0875
Employee, ) 2021-08-0876
v. )
AMAZON, ) State File No. 39617-2021
Employer, ) 800483-2021
And )
AMERICAN ZURICH INS. CO., ) Judge Deana C. Seymour
Carrier. )
____________________________________________________________________________
EXPEDITED HEARING ORDER
The Court held an Expedited Hearing on March 16, 2022. Ms. Scruggs sought
medical and temporary disability benefits for a torn meniscus in her left knee. Amazon
argued her claims were barred by her failure to give proper notice of her injury. For the
reasons below, the Court holds Ms. Scruggs is likely to prevail at a hearing on the merits
regarding continued medical treatment for her left knee. However, she is not likely to
prevail on the issue of temporary disability benefits at this time.
History of Claim
Ms. Scruggs felt a pop and pain in her left knee while working for Amazon on April
9, 2021, but did not notify Amazon about her injury at the time. Instead, she finished her
shift, self-treated her knee, and continued working for days without seeking authorized
medical treatment.
Three weeks later, Ms. Scruggs injured her left knee again after slipping on a wet
substance on the floor at work on April 30. After the April 30 incident, she notified her
supervisor about both incidents. In response, Amazon provided a panel of physicians, from
which Ms. Scruggs selected Dr. Frederick Wolf.
When Dr. Wolf saw Ms. Scruggs on May 5, he noted that she presented for an
evaluation of her April 9 left-knee injury but did not mention the April 30 injury. He wrote,
“[s]he was putting totes on the line, as she pivoted, she felt a pop in her left knee and has
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had difficulty since that time.” He ordered an MRI and placed Ms. Scruggs on sedentary
duty.
The MRI revealed a lateral meniscus tear, and Dr. Wolf recommended surgery.
However, Amazon denied the April 9 claim on May 15, citing late reporting. 1 Amazon did
not file a Notice of Denial for the April 30 claim but argued that it was a continuation or
aggravation of the April 9 injury.
Ms. Scruggs testified that she did not notify Amazon of the April 9 incident because
she did not think she was seriously injured. She stated she left work every day with aches
and pains. She worked on a concrete floor and stood ten hours a day, so it was not unusual
for her to take over-the-counter medication or perform other self-care measures after a day
at work. The self-care she performed after the April 9 incident, which included taking over-
the-counter medication, soaking in an Epsom salt bath, and applying heat and ice packs to
her knee, eased her pain and enabled her to keep working.
However, when she slipped on April 30, she knew that she required medical
attention. Additionally, unlike after the April 9 injury when she could still perform her job,
Dr. Wolf placed her on sedentary duty, and she has been working in a modified capacity.
Dr. Wolf’s work restrictions and surgical recommendation were based on Ms. Scruggs’s
history that she injured her knee at work.
Amazon contended that Ms. Scruggs’s claims were barred by her failure to provide
proper notice of the first injury. It argued that it was prejudiced by the lack of notice, as it
could not investigate the claim or provide treatment for the initial injury. It also argued that
the April 30 incident was an aggravation of the April 9 injury and should likewise be
barred. For these reasons, it denied her requests for both claims.
Findings of Fact and Conclusions of Law
Ms. Scruggs must present sufficient evidence she is likely to prevail at a hearing on
the merits. See Tenn. Code Ann. § 50-6-239(d)(1) (2021); McCord v. Advantage Human
Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Notice
The threshold issue is whether Ms. Scruggs gave timely notice of her injuries.
Tennessee Code Annotated section 50-6-201(a)(1) provides that an injured employee must
give written notice of an injury within fifteen days unless it can be shown that the employer
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Dr. Wolf did not find out about the denial until June 8. He saw Ms. Scruggs several times after the claim
was denied, and the MRI was performed after the denial. He mentioned that he would continue to see her
under her private insurance, but it is not clear whether this occurred.
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had actual knowledge of the accident or that “reasonable excuse for failure to give the
notice is made to the satisfaction of the tribunal.” In addition, section 50-6-201(a)(3) states
that “[n]o defect or inaccuracy in the notice shall be a bar to compensation, unless the
employer can show, to the satisfaction of the workers’ compensation judge before which
the matter is pending, that the employer was prejudiced by the failure to give the proper
notice, and then only to the extent of the prejudice.”
When the employer raises lack of notice as a defense, the burden is on the employee
to show either the employer had actual notice, that she provided notice, or that her failure
to give notice was reasonable under the circumstances. Hosford v. Red Rover Preschool,
2014 TN Wrk. Comp. App. Bd. LEXIS 1, at *15 (Oct. 2, 2014). Our Appeals Board
explained the notice requirement “exists so that an employer will have an opportunity to
make a timely investigation of the facts while still readily accessible, and to enable the
employer to provide timely and proper treatment for an injured employee.” Id. Guided by
this authority, the Court must determine whether Ms. Scruggs met her burden of proof.
The Court first finds Amazon had no “actual notice” of the injury. As to whether
Ms. Scruggs provided notice to Amazon within fifteen days, she admitted she did not
provide notice of her alleged April 9 injury until April 30. So, the Court finds she did not
provide timely notice.
Turning to whether Ms. Scruggs had a reasonable excuse for her failure to provide
timely notice, the Court finds she did. Ms. Scruggs testified that aches and pains from
standing on a concrete floor for ten hours were normal for her. After her knee popped on
April 9, she followed her typical protocol of taking over-the-counter medication, soaking
in an Epsom salt bath, and applying heat and ice packs. This regimen eased her pain to the
point where she did not need medical treatment for her knee between April 9 and April 30.
She continued to work during this period.
According to Ms. Scruggs, it was not until she slipped on April 30 that she knew
she needed medical attention, and she immediately reported the injury. She also mentioned
the April 9 incident, missing the fifteen-day reporting requirement by six days. Based on
the facts, Ms. Scruggs showed to the satisfaction of the Court a reasonable excuse for her
failure to provide timely notice of the April 9 incident.
These same facts further support a finding that Amazon was not prejudiced by Ms.
Scruggs’s failure to provide timely notice of the April 9 incident. Ms. Scruggs reported her
injury just six days after the statutory notice window and did not seek medical treatment or
miss any work between April 9 and April 30.
Further, Amazon presented no evidence of any actual prejudice to its ability to
defend this claim. Prejudice may be found if the employer is denied the opportunity to
make an investigation while the facts are accessible or to provide timely and proper
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treatment for the injured employee. Masters v. Indus. Garments Mfg. Co., 595 S.W.2d 811,
815 (Tenn. 1980). However, while Amazon generally claimed the late notice prejudiced its
ability to investigate the claims, it failed to provide specifics. See also Hannah v. Senior
Citizens Home Assistance Serv., Inc., 2022 TN Wrk. Comp. App. Bd. LEXIS 15, at *16-
17 (Mar. 28, 2022) (Trial court correctly found employer showed no actual prejudice as a
result of delayed notice, where the employer offered no evidence of the asserted prejudice.)
Thus, the Court cannot find Ms. Scruggs’s failure to report the injury within fifteen
days resulted in a serious impediment to investigating the claim or providing treatment.
Therefore, the Court holds that Ms. Scruggs is likely to prevail at a hearing on the merits
on notice. This holding, however, does not end the inquiry.
Medical Benefits
Ms. Scruggs asks the Court to order Amazon to authorize the surgery recommended
by Dr. Wolf. To do so, the Court must determine whether Ms. Scruggs is likely to prevail
on the issue of whether her alleged injury arose primarily out of and in the course and scope
of her employment. She must show, “to a reasonable degree of medical certainty that it
contributed more than fifty percent (50%) in causing the . . . disablement or need for
medical treatment, considering all causes.” “Shown to a reasonable degree of medical
certainty” means that, in the opinion of the treating physician, it is more likely than not
considering all causes as opposed to speculation or possibility. See Tenn. Code Ann. § 50-
6-102(14).
The only medical proof introduced was Dr. Wolf’s records. While Dr. Wolf did not
provide a causation opinion that would satisfy the above definitions, his records do suggest
that Ms. Scruggs’s need for medical treatment arose from an incident at work. Moreover,
she selected Dr. Wolf from a panel, so he is considered her authorized treating physician.
Both the April 9 and April 30 incidents occurred at work. The only defense for the
April 9 injury was a lack of notice, which has been addressed, and Amazon did not
complete a Notice of Denial for the April 30 claim. Therefore, Ms. Scruggs appears likely
to prevail on her claim for continued medical treatment with Dr. Wolf for any condition
found to arise primarily out of her employment. However, issues over the precise cause of
the meniscal tear still loom. Thus, the Court is unable to order the requested surgery at this
time.
Temporary Disability Benefits
Ms. Scruggs also seeks temporary disability benefits. To prove entitlement to these
benefits, she must show (1) total disability from working as the result of a compensable
injury; (2) a causal connection between the injury and the inability to work; and (3) the
duration of the period of disability. Jones v. Crencor Leasing and Sales, 2015 TN Wrk.
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Comp. App. Bd. LEXIS 48, at *7 (Dec. 11, 2015). For temporary partial disability benefits,
she must show that her treating physician returned her to work with restrictions that
Amazon either could not or would not accommodate. Id. at *8.
Ms. Scruggs has continued to work modified duty for Amazon and has presented no
evidence that she is earning less while working in this capacity. Thus, the Court holds she
is unlikely to prevail at a hearing on her claim for temporary disability benefits at this time.
IT IS, THEREFORE, ORDERED as follows:
1. Amazon or its workers’ compensation carrier shall provide continued medical
treatment with Dr. Frederick Wolf for any condition to her left knee found to arise
primarily out of her employment.
2. Ms. Scruggs is not entitled to any temporary disability benefits at this time.
3. This case is set for a Scheduling Hearing on June 6, 2022, at 10:00 a.m. central
time. You must call 615-532-9550 or toll-free at 866-943-0014. Failure to call
might result in a determination of the issues without your participation.
4. 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.
ENTERED April 7, 2022.
________________________________________
Judge Deana C. Seymour
Court of Workers’ Compensation Claims
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APPENDIX
Technical Record
1. Petition for Benefit Determination (for date of injury April 9, 2021)
2. Petition for Benefit Determination (for date of injury April 30, 2021)
3. Dispute Certification Notice, along with additional issues raised by parties (for date
of injury April 9, 2021)
4. Dispute Certification Notice, along with additional issues raised by parties (for date
of injury April 30, 2021)
5. Hearing Request for April 9, 2021 injury, along with Ms. Scruggs’s Affidavit
6. Hearing Request for April 30, 2021 injury, along with Ms. Scruggs’s Affidavit
7. Motion to Dismiss for Failure to State a Claim (regarding April 9, 2021 injury)
8. Order Setting Expedited Hearing (for both injuries)
9. Employer’s Motion for Continuance of Expedited Hearing
10. Order on Employer’s Motion for Continuance
11. Joint Motion to Revise Scheduling Order
12. Employer’s Motion for Summary Judgment
13. Order on Joint Motion to Revise Scheduling Order
14. Employee’s Response in Opposition to Employer’s Motion for Summary Judgment
Exhibits
1. Medical records from OrthoSouth, including MRI report of May 24, 2021
2. Notice of Denial
3. Employee’s Choice of Physician form selecting Dr. Frederick Wolf
4. Employee’s Responses to Amazon’s Interrogatories and Requests for Production
for the April 9, 2021 claim
5. Employee’s Responses to Amazon’s Interrogatories and Requests for Production
for the April 30, 2021 claim
6. Employee’s Recorded Statement
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CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on April 7, 2022.
Name Certified U.S. Via Service sent to:
Mail Mail Email
Jonathan May, X jmay@forthepeople.com
Employee’s Attorney
Colleen Morris, X cmmorris@mijs.com
Employer’s Attorney cjstatham@mijs.com
_____________________________________
Penny Shrum, Court Clerk
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
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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 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
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