Schmars, Chanda v. Express Employment Professionals, Inc.

FILED
Jun 27, 2022
09:45 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
Chanda Schmars, ) Docket No. 2022-06-0345
Employee, )
v. )
Express Employment Professionals, )
Inc., ) State File No. 9592-2022
Employer, )
And )
AIU Ins. Co., )
Carrier. ) Judge Kenneth M. Switzer
EXPEDITED HEARING ORDER
Two longstanding workers’ compensation principles command this case. First, the
employee bears the burden of proof; and second, the employee must prove that a specific
event or set of events caused her work injury.
Here, Chanda Schmars requested benefits for her knee, which she allegedly injured
while working for Express Employment Professionals. Express argued that she did not
identify a specific, injury-causing work event. On this record, the Court agrees. Ms.
Schmars did not introduce sufficient proof of what caused an acute right-knee meniscus
tear. Thus, her request is denied at this time.
History of Claim
On January 20, 2022, Ms. Schmars worked as a packer for Express assigned to work
at Baby Nov. She explained that the assignment entailed moving large boxes, unpacking
baby food pouches, and placing the pouches in smaller boxes. Ms. Schmars testified, “I
sustained an injury due to, I believe, moving a box—boxes across the room[.]” Ms.
Schmars wrote on her petition that she injured her right knee and leg “unboxing the baby
food pouches out of . . . the big boxes.” At the hearing, she clarified she injured her right
knee.
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Ms. Schmars did not tell her supervisor at Baby Nov or anyone else about the injury
that day. She agreed on cross-examination that she did not experience a “sudden onset of
pain,” nor could she recall a specific event that caused her pain. No one witnessed the
injury. The next day, Ms. Schmars texted Express to say that she would not be working
that day but did not mention an injury. Ultimately, Ms. Schmars reported the injury on
January 24, by telling Express’s office manager, Nichole Minchey, “I hurt my knee.”
Express disputed Ms. Schmars’s mechanism of injury. It claimed that Ms. Schmars
did not sustain an injury; rather after working, she simply woke up the next day with leg
pain.
In support, Express offered Ms. Minchey’s testimony, who said that when Ms.
Schmars reported the injury, she did not mention any specific event. Express asked her to
complete a form describing her injury “in detail.” She wrote, “[W]orking at Baby Nov,
unpacking baby products.” On a report to Express’ carrier, Ms. Minchey wrote, “Said she
woke up and her right knee was hurting.”
On cross-examination, Ms. Schmars agreed that her interrogatory responses
describe that, on the date of injury, she felt “stiffness toward the end of work shift” in her
right knee and leg, and she had not experienced those symptoms before. Concerning
whether she suffered a previous knee injury, on redirect, Ms. Schmars said, “Basically, had
I had any prior symptoms? Uh, possibly. You know—I don’t—symptoms like—knee pain
or something? Uncomfortableness in my knee?” Express’s attorney did not ask her to
explain.
As for her treatment, Ms. Schmars went to the emergency room on her own, the day
after the alleged date of injury. Notes from the visit include a history that her symptoms
began “weeks ago” and were caused by “[n]o trauma by history[.]” The physician who
examined her wrote, “[L]ikely djd [degenerative joint disease].”
After Ms. Schmars reported the injury, Express offered a panel of physicians. She
chose Hometown Healthcare.1
At the first visit in February, notes state that Ms. Schmars experienced a “sudden
onset of pain while bending and lifting with a heavy box at work.” A nurse practitioner
ordered an MRI, which was reviewed at a follow-up appointment in March. Providers
noted a lateral meniscus tear in her knee and referred her to an orthopedic specialist.
1
The panel does not identify a physician but simply lists “Hometown Health Care.” This potentially
violates Tennessee Compilation Rules and Regulations 0800-02-01-.06(5) (May, 2018), which states that
“Walk-in clinics, urgent care facilities and other similar providers may be an option on a medical panel if
the provider is staffed by at least one physician and the name of the staff physician or medical director is
also indicated on the panel.” (Emphasis added).
2
Ms. Schmars saw a nurse practitioner at Specialty Orthopedic Group for further
evaluation. The nurse practitioner wrote that her pain began on “June 1, 2020, 2022 [sic]
and lifting a box of an unknown weight at her job. . . . There was no fall at the time of
injury. No history of previous knee issues.” He made a direct referral to an orthopedic
surgeon. Instead of honoring the referral, according to Ms. Schmars, the claim was denied
on March 24.
Ms. Schmars seeks additional treatment and temporary disability benefits. Express
countered that she failed to prove that her injury arose primarily out of work. In particular,
it argued that she did not prove a “specific incident” that caused the injury, so benefits
should be denied.
Findings of Fact and Conclusions of Law
It is well-settled that the employee in a workers’ compensation claim has the burden
of proof on all essential elements of the claim. Lurz v. Int’l Paper Co., 2018 TN Wrk.
Comp. App. Bd. LEXIS 8, at *14 (Feb. 14, 2018). At an expedited hearing, Ms. Schmars
must present sufficient evidence that she is likely to prevail at a hearing on the merits.
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).
In this case, the threshold issue is whether Ms. Schmars suffered an injury as that
term is defined under Workers’ Compensation Law. Tennessee Code Annotated section
50-6-102(14) defines “injury” as an “injury by accident . . . arising primarily out of and in
the course and scope of employment, that causes . . . disablement or the need for medical
treatment.” Subsection 50-6-102(14)(A) provides that “[a]n injury is ‘accidental’ only if
the injury is caused by a specific incident, or set of incidents, arising primarily out of and
in the course and scope of employment, and is identifiable by time and place of
occurrence.” (Emphasis added).
Here, Ms. Schmars testified, “I sustained an injury due to, I believe, moving a box—
boxes across the room[.]” She did not offer additional detail. Ms. Schmars testified that
she told Ms. Minchey when reporting the injury, “I hurt my knee.” Ms. Schmars agreed in
her cross-examination that no specific event caused her pain, nor did she experience sudden
pain while working. And, in a moment of candor on redirect, she said she “possibly” had
prior knee symptoms. Since Express’s attorney did not explore that statement, the Court
is unable to ascertain its weight.
Those are her words in Court. Ms. Schmars’ written statements are similarly vague
as to how, specifically, she hurt her knee at work. Ms. Schmars wrote on her petition that
she injured her right knee and leg “unboxing the baby food pouches out of . . . the big
boxes.” On the paperwork reporting the injury, when asked to describe the incident “in
detail,” she wrote, “[W]orking at Baby Nov, unpacking baby products.” Then, in
3
interrogatories, when asked how she became injured, she merely wrote that she felt
“stiffness toward the end of work shift” in her right knee and leg.
The medical records do not provide further clarification or explanation. The
emergency room notes state that Ms. Schmars was injured “weeks ago” and suffered “no
acute injury.” Other records say that she felt a “sudden onset of pain while bending and
lifting with a heavy box at work.” However, Ms. Schmars candidly testified that she did
not feel a sudden onset of pain. Moreover, the only medical causation opinion before the
Court states that her condition was “likely” degenerative joint disease.
Having observed Ms. Schmars’s demeanor, the Court has little reason to doubt her
honesty or sincerity. She even offered testimony against her own interest. By the same
token, Ms. Minchey convincingly testified that Ms. Schmars told her she woke up with
pain in her leg. Comparing their testimony, neither was more credible than the other.
In sum, the Court simply cannot find facts, even after an evidentiary hearing, as to
when and how Ms. Schmars became injured. This is an absolute baseline requirement in
the statute, and it is something she must prove. Without more supporting evidence, Ms.
Schmars has not shown she is likely to prevail at a hearing on the merits.
Because Ms. Schmars has not satisfied her burden, the Court cannot grant her
requested relief at this time.
IT IS, THEREFORE, ORDERED AS FOLLOWS:
1. The Court denies Ms. Schmars’s request for benefits at this time.
2. The Court refers Express Employment Professionals to the Compliance Program for
consideration of penalties for failing to offer a proper panel.
3. A status hearing will take place on August 29, 2022, at 10:00 a.m. Central Time. The
parties must call 615-532-9552 or 866-943-0025. Failure to call might result in a
determination of issues without your participation.
ENTERED June 27, 2022.
________________________________________
JUDGE KENNETH M. SWITZER
Court of Workers’ Compensation Claims
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Appendix
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Order Setting Status Hearing
4. Order on Status Hearing
5. Motion to Compel
6. Employer’s Motion to Reset
7. Hearing Request
8. Order Granting Motion to Compel
9. Order Denying Motion to Reset
10. Motion to Compel Deposition and Expenses
11. Employer’s Motion to Continue
12. Order
13. Employer’s Motion to Continue
14. Employer’s Pre-Hearing Statement
15. Employer’s Exhibit and Witness List
16. Employer’s Pre-Trial Brief
Evidence:
1. Declaration of Ms. Schmars
2. Wage statement
3. First Report of Injury
4. Employee’s Choice of Physician form
5. Composite Medical Records
6. Text messages
7. Responses to Interrogatories
8. Express Services, Inc. report to third-party administrator
9. Text messages
10. Employee’s written injury report (late-filed)
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CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on June 27, 2022.
Name Certified Regular Email Sent to
Mail mail
Chanda Schmars, X X chandaschmars@yahoo.com
employee 119 Moncrief Drive
Scottsville, KY 42164
Greg Fuller, Trent X ghfuller@mijs.com
Norris, employer’s tmnorris@mijs.com
attorneys
Compliance X WCCompliance.Program@tn.gov
Program
_______________________________________
Penny Shrum
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