Gillum, Mary v. Dollar General Corporation

FILED
Jun 12, 2020
12:25 PM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Mary Gillum ) Docket No. 2019-07-0191
)
v. ) State File No. 32026-2018
)
Dollar General Corporation )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Amber E. Luttrell, Judge )
Affirmed and Remanded
The employee alleged a bag of dog food fell on her at work, resulting in injuries to her neck
and shoulder. Following an expedited hearing, the trial court determined that the opinion
of the authorized treating physician was sufficient to establish that the employee would
likely prevail at a hearing on the merits and ordered the employer to provide a panel of
physiatrists for nonoperative treatment for her cervical strain as recommended by the
authorized physician. The trial court additionally determined that the employee was
entitled to eighteen days of temporary disability benefits. The employer has appealed. We
find no merit in the issues raised by the employer, and we affirm the trial court’s
determination and remand the case.
Judge David F. Hensley delivered the opinion of the Appeals Board in which Presiding
Judge Timothy W. Conner and Judge Pele I. Godkin joined.
James H. Tucker, Jr., Nashville, Tennessee, for the employer-appellant, Dollar General
Corporation
Mary Gillum, Bruceton, Tennessee, employee-appellee, pro se
Factual and Procedural Background
Mary Gillum (“Employee”) was employed by Dollar General Corporation
(“Employer”) as an Assistant Store Manager. She contends that on April 2, 2018, she was
moving a rolltainer of pet food when a bag of dog food fell on her left shoulder and injured
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her shoulder and neck. 1 The record does not include a detailed description of when the
incident occurred, other than during the course of Employee’s work on April 2, 2018. An
April 23, 2018 letter from Employee’s attorney at the time, written to provide Employer
with notice of Employee’s injury, stated that Employee was injured “when a 20-pound bag
of Gravy Train dog food fell off the top of a [rolltainer] onto her left shoulder.” 2 Similarly,
Employee’s March 2019 petition for benefits states that she “was moving a [rolltainer] of
dog food when a 20-pound bag of dog food fell from the top 7 feet onto [her] left shoulder.”
An affidavit Employee filed in support of her request for an expedited hearing in December
2019 states that she “was pulling a [rolltainer] out of pet food and some bags of dog food
fell on [her] left shoulder.”
Employee was the only witness to testify in person at the expedited hearing. She
described the incident as follows:
I was working fine, and then all of a sudden I had to go in back and get, you
know, some stuff out and start putting stuff on shelves. I grabbed a
[rolltainer] of pet food.
....
And when I pulled it out of the big ole mess that we had back there, one of
the bags of dog food fell on my left shoulder.
A written declaration, as allowed in accordance with Rule 72 of the Tennessee Rules
of Civil Procedure, signed by Employer’s Senior Claims Representative for its Risk
Management Department, asserted that Employer “did not carry 20-pound bags of Gravy
Train dog food” on April 2, 2018. Further, the declaration stated that the claims
representative “reviewed video footage recorded on April 2, 2018,” and that “[t]he footage
shows that [Employee] did not operate a [rolltainer] while at work on April 2, 2018.”
Employer offered no other witness testimony at the expedited hearing.
Employee sought medical care on the date of the alleged incident. She testified that
after the incident she “started working a little bit and then [she] started hurting really bad
and [she] was like, okay, something’s really wrong.” She further testified:
Well, I got off work. I did what I could. I didn’t mop the floor or nothing
[sic] that day because I was hurting. I got off work. I went and I messaged
Amber [Pilcher], my boss, and I told her I got off work.
1
The record does not include information describing a “rolltainer.” It is spelled in varied ways in the record
and appears to be a cart on which products may be loaded and transported inside Employer’s facility.
2
On September 12, 2019, an order was entered allowing Employee’s attorney to withdraw his
representation of Employee. Employee has been self-represented since the entry of the order.
2
....
I went to the doctors and they gave me some medicine and told me to stay
off work for a while. And that’s what happened.
The record includes several medical documents that address Employee’s shoulder
and neck complaints, some of which pre-date Employee’s alleged April 2, 2018 work
injuries. On April 2, 2018, the day Employee alleges to have injured her shoulder and
neck, she presented to Bruceton Clinic complaining of “[l]umbar pain with radiation down
left leg,” and “[a]cute pain of left shoulder.” The record of the April 2 visit notes that
Employee “presents for a [r]echeck of joint pain” and states that “[s]ymptoms are located
in the lower back and left shoulder (was lifting something and heard a pop. 03/30/2018).”
According to the report, Employee stated that the onset of her pain “was year(s) ago.” The
report additionally states “[t]here is no known event that preceded symptom onset.”
Further, the document noted that Employee
reports that the left shoulder pain is new. States that on 03/30/2018 she was
lifting something and felt a pop. States that pain has been severe since.
States that this is not workers[’] comp.
The record of the April 2 visit includes various time entries, beginning with 6:23
AM. For example, beside entries for “Health Maintenance History” and “Diagnostic
Studies History” the time entry is 6:26 AM. For entries identified as “Allergies” and
“Medication History” the stated time is 8:02 AM. Consistent with these time entries, a
LabCorp report dated April 6, 2018 indicates that specimens were collected from Employee
on April 2, 2018 at “0823 Local.” The record on appeal gives no indication of the time of
day Employee alleges the April 2 incident occurred.
The record also includes medical documents from Camden General Hospital’s
Emergency Department dated April 4, 2018. According to those records, Employee
presented on the evening of Wednesday April 4 “with neck injury and neck pain. The onset
was reported to be two days ago[,] . . . possibly related to heavy lifting of dog food on
[T]hursday at work.” In another location on these records, the “Primary Pain” is identified
as being in the left shoulder with “onset of symptoms Friday 03/30/2018.” Addressing
Employee’s subjective complaints, the emergency department records indicate Employee
came to the emergency room with complaints of left shoulder pain “with onset of
symptoms approx[imately] 6 days ago,” and those records state that “upon questioning
[patient] about possible injury [patient] states that she dropped a 50lb bag of dog food on
it at work prior to onset of pain.” These records further indicate Employee stated that her
pain radiates from her shoulder down to her fingertips, and that “pain presented 6 days
prior with worsening of symptoms and a progression down to fingertips.” Additionally,
these records state that Employee “was seen at [primary care physician’s] office on Friday
03/30/18,” that the doctor prescribed Baclofen and a Medrol dose pack, and that Employee
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reported “she has been taking meds as prescribed but did not get meds filled until Monday
04/02/18.”
X-rays taken on April 4, 2018 evidenced “moderately advanced degenerative
changes” in the mid and lower cervical spine “with discogenic disease, spondylosis and
facet arthropathy.” A cervical MRI performed on April 10, 2018 revealed cervical
spondylosis with spinal canal stenosis and neural foraminal narrowing.
Employee was seen one month after the alleged incident by Dr. William Scott for a
neurological consultation. On May 3, 2018, he recorded a history of a “female who several
months ago was at work when a 50 lb ba[g] of material fell on her left shoulder.” Dr.
Scott’s report noted that the April 10, 2018 MRI “reveals quite severe spondylosis
throughout the cervical spine . . . [and] mild to moderate disc bulging across the mid lower
cervical spine.” His report stated that Employee’s disc bulges “do cause mild approaching
moderate canal and neural foraminal stenosis.” Dr. Scott concluded that “in the absence
of symptomology correlating with nerve root impingement, [he] would not recommend
surgery at the current time.” Employee returned to the Bruceton Clinic on May 23, 2018.
The report of that visit essentially reproduced the information in the report of the April 2,
2018 visit.
In August 2018, Employer provided Employee a panel of doctors from which she
selected Dr. Blake Garside. Employee saw Dr. Garside on one occasion, October 17, 2018.
The report states that Employee was seen for an independent medical evaluation. However,
at the expedited hearing the parties stipulated that Dr. Garside was the authorized treating
physician selected from a panel of physicians. Dr. Garside’s report noted that “[g]reater
than 430 pages of medical records” were provided and reviewed, including those from
Bruceton Clinic, Camden General Hospital, and Dr. Scott. Dr. Garside’s report included
the following:
According to the records provided, [Employee] states that on April 2, 2018,
she was pulling on a [rolltainer] at work in Dollar General and 2 bags of dog
food fell off and struck her on the neck and posterior left shoulder.
According to [Employee], these weighed approximately 30 to 40 pounds.
Records at Bruceton Clinic said that she had initially felt a pop in her
shoulder on March 30, 2018. She stated that the left shoulder pain was new.
She presented at the Camden General Hospital Emergency Room on April 4,
2018, complaining of neck pain. She provided a history of pain with lifting
dog food at work and shoulder pain after dropping a dog food bag
approximately 6 days prior to this.
Dr. Garside noted that Employee complained of persistent pain and discomfort in
her posterior shoulder and neck, radiating down her arm. He reported that Employee had
“numbness down her arm and into her hand,” but that she denied “any problem
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including . . . numbness or tingling [preceding] the injury of April 2, 2018,” adding that
“[s]he states that she has had no similar symptoms, only low back pain since 2010.”
However, Dr. Garside also stated in his report that Employee’s “past medical history and
records provided for review suggest previous complaints of left hand and arm numbness
and tingling dating back to 2015.” He noted that Employee had been seen in 2015 at
Bruceton Clinic with a “7-month history of intermittent moderate left upper extremity pain
with numbness and tingling,” adding that the family nurse practitioner at the clinic “also
noted pain in the left periscapular region radiating to her hand and numbness in
[Employee’s] forearm.” In addition, Dr. Garside noted that Employee was evaluated by
Dr. Ronald Bingham in January 2016 and underwent electrodiagnostic testing that
suggested a left cervical radiculopathy for which Dr. Bingham recommended Employee
undergo “a short course of steroids and physical therapy.” The medical records admitted
into evidence included the records identified by Dr. Garside as evidencing Employee’s
complaints of left upper extremity pain, numbness, and tingling in 2015 and 2016.
Dr. Garside’s assessment noted chronic cervical spondylosis with acute cervical
strain and left scapular pain. In his report, he stated that Employee “has a recent history of
acute injury, in which she describes 2 bags of dog food struck her in the back of her neck
with increase in her symptoms.” Addressing causation, his report included the following:
Whereas, I do not feel these have caused her underlying pre-existing
spondylosis and degenerative changes, she has an acute increase in her pain,
likely related to the traumatic event. She has seen Dr. Scott, who does not
feel there is any surgical treatment that is indicated and previously
recommended consideration of trigger point injections. I would agree with
this recommendation and also recommend evaluation by a physiatrist for
treatment of the ongoing acute pain and with hopes to return her to her
baseline status.
In my opinion, [Employee’s] pre-existing cervical spondylosis is not
primarily related to her work injury. However, her mechanism of injury is
consistent with an acute strain of her cervical spine that would likely benefit
from continued nonoperative management such as physical therapy, anti-
inflammatory, or trigger point injections for return to her baseline status.
The issues raised at the expedited hearing included the compensability of
Employee’s claim and Employee’s entitlement to medical and temporary disability
benefits. Following the March 2020 evidentiary hearing, the trial court concluded that Dr.
Garside’s opinion regarding Employee’s acute cervical strain and need for nonoperative
treatment was “sufficient, at [the] expedited hearing stage, to show she is likely to prevail
in her request for medical benefits.” “Further,” the trial court stated, “the Court holds
[Employee] established entitlement to see a physiatrist, as recommended by Dr. Garside.”
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The court ordered Employer to provide a panel of physiatrists for nonoperative treatment
for Employee’s acute cervical strain.
Addressing Employee’s request for temporary disability benefits, the trial court
observed that Employee’s primary care providers took her off work through April 20, 2018,
and the court ordered Employer to pay temporary disability benefits from the date of
Employee’s injury to April 20, 2018, at Employee’s stipulated weekly rate. Employer has
appealed.
Standard of Review
The standard we apply in reviewing a trial court’s decision presumes that the court’s
factual findings are correct unless the preponderance of the evidence is otherwise. See
Tenn. Code Ann. § 50-6-239(c)(7) (2019). When the trial judge has had the opportunity
to observe a witness’s demeanor and to hear in-court testimony, we give considerable
deference to factual findings made by the trial court. Madden v. Holland Grp. of Tenn.,
Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar deference need be
afforded the trial court’s findings based upon documentary evidence.” Goodman v.
Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at *6 (Tenn.
Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and application of
statutes and regulations are questions of law that are reviewed de novo with no presumption
of correctness afforded the trial court’s conclusions. See Mansell v. Bridgestone Firestone
N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are also mindful of our
obligation to construe the workers’ compensation statutes “fairly, impartially, and in
accordance with basic principles of statutory construction” and in a way that does not favor
either the employee or the employer. Tenn. Code Ann. § 50-6-116 (2019).
Analysis
Employer presents two issues asserting the trial court erred in determining
Employee would likely prevail at trial. First, Employer contends Employee “failed to
produce any evidence of an injury by accident that arose primarily out of and in the course
and scope of employment at the expedited hearing.” Second, Employer asserts that Dr.
Garside’s report “does not sufficiently show Employee’s employment contributed more
than fifty percent in causing her injury, considering all causes.” As addressed below, we
find no merit in either issue.
Whether Employee Presented Evidence of an Injury by Accident
Employer contends Employee “provided no evidence whatsoever regarding Dr.
Garside’s examination and findings.” Employer acknowledges in its brief that the parties
“agreed to the admissibility of medical records including Dr. Garside’s examination notes
at the beginning of the expedited hearing.” However, Employer asserts that, thereafter,
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“Employee made no effort to actually introduce those records into evidence,” and that
“[b]ased on Employee’s failure to present any evidence regarding causation, the trial court
erred in concluding that she was likely to prevail at a hearing on the merits.”
Addressing the exhibits at the outset of the expedited hearing, the trial court first
questioned whether Employee wanted to make the affidavit she submitted in support of her
request for a hearing part of the documentary evidence to be considered at the expedited
hearing. She responded affirmatively, and Employer advised the court it had no objection
to the document being part of the documentary evidence. The court then turned to the
medical records and questioned the parties about an indexed set of medical records that
Employee’s former counsel had previously submitted. Counsel for Employer represented
that the medical records had been sent to Employee and that the parties had agreed to the
records. Upon questioning by the court, however, Employee objected to the relevance of
medical records pre-dating her alleged injury. The trial court overruled Employee’s
objection and allowed into evidence the records pre-dating her alleged injury, explaining
that the records were signed by the medical providers and, therefore, met the “qualification
for admissibility,” and that the records were relevant because they addressed Employee’s
preexisting medical conditions.
The trial court then addressed each of the exhibits identified in Employer’s amended
exhibit list that Employer indicated “may be presented” at the hearing. Each document
was sequentially marked as Exhibit 2 through Exhibit 10 for purposes of the expedited
hearing before the trial court returned to the medical records and identified them as “Exhibit
11, collective.” The court stated that it “shows those [medical records] are the exhibits that
the parties have previously agreed to put in today,” to which Employer’s counsel
responded, “[t]hat’s correct.” Accordingly, the record is clear that the medical records
were made exhibits and were admitted into evidence at the outset of the expedited hearing.
There was no need for either party to more formally offer the exhibits into evidence during
the course of the hearing.
The Sufficiency of the Report of Dr. Garside’s Evaluation
Employer asserts that Dr. Garside’s report “does not sufficiently show Employee’s
employment contributed more than fifty percent in causing her injury, considering all
causes.” It contends the trial court erred “in disregarding the more than fifty percent
causation requirement of Tennessee Code Annotated section 50-6-104(14)(B).”
Tennessee Code Annotated section 50-6-102(14) defines “injury” and “personal
injury” to mean “an injury by accident . . . arising primarily out of and in the course and
scope of employment . . . .” Section 50-6-102(14)(B) provides that “[a]n injury ‘arises
primarily out of and in the course and scope of employment’ only if it has been shown by
a preponderance of the evidence that the employment contributed more than fifty percent
(50%) in causing the injury, considering all causes.” We have previously stated that a
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physician does not have to couch his or her opinion in a rigid recitation of the statute, and
that physicians “need not use particular words or phrases included in the statute to establish
the requisite medical proof to succeed at trial.” Panzarella v. Amazon.com, Inc., No. 2015-
01-0383, 2017 TN Wrk. Comp. App. Bd. LEXIS 30, at *14 (Tenn. Workers’ Comp. App.
Bd. May 15, 2017). What is necessary to succeed at a hearing on the merits is “sufficient
proof from which the trial court can conclude that the statutory requirements of an injury
as defined in section 50-6-102(14) are satisfied.” Id. Here, the March 5, 2020 evidentiary
hearing was an expedited hearing conducted pursuant to Tennessee Code Annotated
section 50-6-239(d) and not a hearing on the merits as contemplated in section 50-6-239(c).
We have previously held that, at an expedited hearing, “an employee need not prove
every element of his or her claim by a preponderance of the evidence to be entitled to
temporary disability or medical benefits, but must instead present evidence sufficient for
the trial court to conclude that the employee would likely prevail at a hearing on the
merits.” McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Work.
Comp. App. Bd. LEXIS 6, at *9 (Tenn. Workers’ Comp. App. Bd. Mar. 27, 2015). We
have described an employee’s burden of proof in an expedited hearing as a “lesser
evidentiary standard” than the standard imposed by section 50-6-102(14). Buchanan v.
Carlex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6
(Tenn. Workers’ Comp. App. Bd. Sept. 29, 2015).
In closing arguments, the trial court asked Employer whether Dr. Garside’s opinions
were sufficient to meet the lesser evidentiary standard applicable to expedited hearings.
Employer responded that the applicable standard is whether Employee “can prevail at a
full evidentiary hearing based upon the information that’s been presented to the Court
today.” That standard, as argued by Employer, “is a 50.1 percent standard” that Employer
asserted had not been met at the expedited hearing. Employer’s argument fails to take into
account prior opinions in which we have explained the “likely to prevail at trial” standard
applicable at expedited hearings and how that standard differs from the ultimate burden of
proof applicable at a trial on the merits. Employer does not assert that the evidence
presented at the expedited hearing fails to support the trial court’s determination that
Employee is likely to prevail at trial, but essentially insists the applicable standard of proof
at the expedited hearing is not a lesser evidentiary standard as we have previously held.
We are unpersuaded by Employer’s argument.
Conclusion
For the foregoing reasons, we affirm the trial court’s determinations and remand the
case. Costs on appeal are taxed to Employer.
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TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Mary Gillum ) Docket No. 2019-07-0191
)
v. ) State File No. 32026-2018
)
Dollar General Corporation )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Amber E. Luttrell, Judge )
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced
case was sent to the following recipients by the following methods of service on this the 12th day
of June, 2020.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
James H. Tucker, Jr. X jtucker@manierherod.com
Denise Stevens dstevens@manierherod.com
Mary Gillum X driggersmonica@yahoo.com
Amber E. Luttrell, Judge X Via Electronic Mail
Kenneth M. Switzer, Chief Judge X Via Electronic Mail
Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov
Workers’ Compensation Claims
Olivia Yearwood
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov