Lemons, Tina v. Elwood Staffing Services, Inc.

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT GRAY
TINA LEMONS, ) Docket Number: 2019-02-0313
Employee, )
V. )
ELWOOD STAFFING SERVICES, ) State File Number: 20525-2019
INC., )
Employer, )
And )
ZURICH AMERICAN INSURANCE _ )_ Judge Brian K. Addington
COMPANY, )
Carrier. )
EXPEDITED HEARING ORDER
Tina Lemons alleged she injured her hand after a job change required her to use it
in an awkward fashion. She sought benefits, which Elwood Staffing denied. For the reasons
below, the Court holds she is not likely to prevail at a hearing on the merits in her request
for benefits because she did not prove the cause of her injury.
Claim History
Ms. Lemons worked for Elwood as a line worker at the John Deere plant. She
worked nine hours screwing in deck covers on February 16, which was different from her
normal work. She noticed pain in her hand that day and reported her injury to a John Deere
representative the next day. When the pain persisted, a plant nurse contacted Elwood to
arrange for Ms. Lemons to see a doctor. Elwood provided a panel, and Ms. Lemons saw
Dr. Bruce Berry. Ms. Lemons denied she chose Dr. Berry from the panel.
On March 19, she attended an appointment with Nurse Practitioner Marsh
Mantemarano. NP Mantemarano noted that Ms. Lemons’s injury was not considered work-
related based on her history and believed she could return to work without restrictions. Dr.
Berry reviewed and approved her recommendations, thereby denying Ms. Lemons further
treatment through workers’ compensation.
After learning that Elwood denied further treatment, Ms. Lemons scheduled an
exam with Dr. Billy Parsley, an orthopedic surgeon. She saw Dr. Parsley on April 26, and
in his office note he wrote that “she has not had any injury that she is aware of.” Dr. Parsley
performed trigger-release surgery on May 9.
Ms. Lemons returned to Dr. Parsley on May 26, and he wrote that he did not think
she was ready to resume full activity at work, and because of this he would complete her
short-term disability paperwork. He further noted: “The patient reports that she suffered
injury to that finger at work and was seen at urgent care for that, prior to being referred to
see me for it. With this documentation following the injury, I believe the trigger finger is
likely related to her injury.”
Dr. Parsley completed a slip on July 1, allowing Ms. Lemons to return to work on
July 8 without restrictions. Ms. Lemons testified she received a separation notice from
Elwood stating she resigned on May 8, but she denied quitting.
In August 2020, Ms. Lemons asked Dr. Parsley to clarify his opinion on the work-
relatedness of her injury. He stated: “This letter is in regard to the question whether the
patient’s injury to the right middle finger was related to the work injury. . . To that end I
would concur that her problem was related to her injury.”
Ms. Lemons requested temporary disability benefits for May 9 through July 8, 2019,
and payment for past medical benefits with Dr. Parsley. Elwood disputed that Ms. Lemons
rebutted the presumption of correctness allotted to Dr. Berry’s opinion, and therefore she
was not entitled to benefits.
Findings of Fact and Conclusions of Law
Ms. Lemons must show 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).
To do so, she must present evidence that she suffered an injury “arising primarily
out of and in the course and scope of employment” and “identifiable by time and place of
occurrence.” Tenn. Code Ann. § 50-6-102(14)(A). Ms. Lemons’s case is unique, in that
she alleged an injury after working one stressful shift. Since she did not suffer an obvious
injury, she must present medical proof to prove the work-relatedness of her claim. Cloyd
v. Hartco Flooring Co., 274 S.W.3d 638, 643 (Tenn. 2008).
Although Ms. Lemons asserted repetitive motions caused her injury, she failed to
provide sufficient medical evidence linking her injury to her employment. The medical
record adopted by Dr. Berry states that she did not suffer a work-related injury. Ms. Lemons
2
argued that she never chose Dr. Berry, however, she signed the physician panel and
attended the appointment at his office. His opinion is presumed correct on the issue of
causation. Tenn. Code Ann. § 50-6-102 (12)(A)(11).
Ms. Lemons offered Dr. Parsley’s opinion to counter Dr. Berry’s. However, Dr.
Parsley did not affirmatively state that Ms. Lemons suffered an injury arising primarily out
of and in the course and scope of her employment as required by Tennessee Code
Annotated section 50-6-102(14)(A). Rather, he stated on two separate occasions that her
injury was merely “related.” These statements are insufficient to overcome the presumption
given to Dr. Berry’s opinion and do not reach the standard of “primarily caused” by a work
injury that the Workers’ Compensation Law requires.
Considering all the evidence, the Court holds Ms. Lemons is not likely to succeed
at a hearing on the merits.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. Lemons’s request for benefits is denied at this time.
2. This case is set for a Status Hearing on January 15, 2021, at 3:30 p.m. Eastern
Time. The parties must call 855-543-5044 to participate. Failure to call might result
in a determination of the issues without the party’s participation.
ENTERED November 24, 2020.
/s/ Brian K. Addington
BRIAN K. ADDINGTON, JUDGE
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Ms. Lemons’s affidavit
First Report of Injury
Wage Statement
Choice of Physician Form
Employer’s offer of modified duty
Notice of Controversy
Refusal of Medical Treatment
Employer’s Collective Exhibit-Records with Table of Contents
Medical Note of Dr. B.K. Parsley
SO ANAMEWN
10. Medical Bills (Identification only)
Technical Record:
Petition for Benefit Determination
Dispute Certification Notice
Notice of Appearance
Expedited Hearing Order
Request for Expedited Hearing
Employer’s Response to Employee’s Second Request for Expedited Hearing
NWR WN
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent on November 24, 2020.
Name Certified | Fax | Email | Service sent to:
Mail
Tina Lemons, x x 7758 Asheville Highway
Employee Greeneville, TN 37743
collinstina3232@yahoo.com
David Deming, X | ddeming@manierherod.com
Employer’s Attorney dstevens@manierherod.com
dM Awa
Tian _»
PENNY SHRUM, COURT CLERK
we.courtclerk@tn.gov
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
conceming 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/
we.courtclerk@tn.gov | 1-800-332-2667
Docket No.:
State File No.:
Date of Injury:
Employee
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):
D Expedited Hearing Order filed on UO) Motion Order filed on
O Compensation Order filed on 0 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 !nj.:
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 | 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