Burnette, Gail v. K-Mart

FILED
December 26, 2014
T:> CO URT OF
WORKERS' COMPE:>SATIO:>
CLAIMS
Time: 11 :42 A:VI
COURT OF WORKERS' COMPENSATION CLAIMS
DIVISION OF WORKERS' COMPENSATION
EMPLOYEE: Gail Burnette DOCKET#: 2014-02-0020
STATE FILE#: 75706-2014
EMPLOYER: K-Mart DATE OF INJURY: 08/20/2014
INSURANCE CARRIER: Ace American Ins. Co.
EXPEDITED HEARING ORDER
THIS CAUSE came before the undersigned Workers' Compensation Judge upon the Request
for Expedited Hearing filed by Gail Burnette (Employee). Considering the positions of the parties,
the applicable law, and all of the evidence submitted, the Court hereby finds as follows:
On December 8, 2014, a Request for Expedited Hearing was filed with the Tennessee Court
of Workers' Compensation Claims, Division of Workers' Compensation, by Employee pursuant to
Tennessee Code Annotated section 50-6-239 to determine if the provision of medical benefits is
appropriate.
ANALYSIS
Issue
Whether Employee has presented sufficient evidence to prove she suffered a compensable
mJury.
Evidence Submitted
Employee did not file affidavits and other evidence in support of the Request for Expedited
Hearing, except for one doctor's note. Rule 0800-02-21-.14 (1 )(a) of the Tennessee Department of
Labor and Workforce Development, requires an employee to submit affidavits and information
supporting the claim with the Motion for Expedited Hearing. Employer did not file a response to the
Request for Expedited Hearing. Rule 0800-02-21-.14(1 )(b), requires an Employer to respond to the
Motion for Expedited Hearing no later than five (5) days after the Motion is filed with all the
information it has in its possession demonstrating an employee is not entitled to benefits.
The following exhibits were submitted for consideration:
1
Technical Record
• Exhibit 1: Petition for Benefits Determination
• Exhibit 2: Dispute Certification Notice
• Exhibit 3: Request for Expedited Hearing
Stipulated Exhibits
• Exhibit 4: University of Tennessee Medical Center (UT) medical records
• Exhibit 5: Cherokee Health Systems (CHS) medical records
History of Claim
Employee worked for Employer unloading trucks and performing pncmg integrity.
Employee normally unloaded trucks on Mondays and Thursdays of each week. During the first week
of August 2014, Employee's back began hurting. After her back pain began, Employee self-limited
lifting at work. Employee alleges.an injury to her back sometime on August 21, 2014, while lifting
heavy merchandise. Employee did not seek medical treatment on the alleged date of injury.
Employee presented to the emergency room at UT on August 24, 2014. She reported chronic
back pain "but feeling this week its worse". The pain was shooting down both of her legs.
Employee denied a recent injury. Employee told the providers at UT that she has suffered with
similar symptoms before "but not this bad". Employee underwent aCT scan of her abdomen and
pelvis which was normal. Employee was taken off work for two (2) days, advised to follow-up with
her primary care physician (PCP), and instructed not to do any heavy lifting until she saw her PCP.
Employee gave the doctor's note to her supervisor on August 26, 2014. The supervisor told
Employee that she had to work on the truck. Employee told the supervisor that she could not work
the truck. The supervisor told Employee if she could not do her job that she needed to go home.
Employee chose to go home.
On September 2, 2014, Employee went to her PCP, which is CHS. There she saw FNP
Matthew Beason. FNP Beeson placed employee off work that day, and noted she could return to
work on September 3, 2014, on light weight restrictions. He later opined on December 9, 2014, that
Employee suffered with a lumbar strain and cannot work until she sees a specialist.
Employee returned toUT on September 11,2014, complaining ofback and abdominal pain
for three (3) weeks as well as trouble urinating. It was noted that Employee had previously been seen
at UT on August 24, 2014, and diagnosed with kidney stones. Employee complained the pain was
not getting any better. It was noted by the providers at UT that Employee was seen for a
lumbrosacral strain and radicular pain.
Employer denied Employees claim on September 30,2014. The parties could not reach an
agreement concerning Employee's claim for benefits, so an Expedited Hearing was held on this
matter on December 19,2014. Employee and Chris Brown, Employer's attorney participated in the
2
hearing.
Employee's Contentions
Employee contends she injured her back lifting heavy items at work. She acknowledges she
has a history of back pain and kidney stones, but she asserts that the way in which her back hurts
now is different. She relies on the note from FNP Beason as proof that she suffered a back strain at
work and needs further evaluation.
Employer's Contentions
Employer contends that Employee has failed to prove she suffered a work injury. Employer
asserts that the medical records indicate Employee has had chronic back pain and kidney stones,
which are unrelated to a work-injury. Employer contends that Employee is not entitled to a panel of
physicians because she has failed to prove that she suffered a work injury.
Findings of Fact and Conclusions of Law
Standard Applied
When determining whether to award benefits, the Judge must decide whether the moving
party is likely to succeed on the merits at trial given the information available. See generally,
McCall v. Nat '! Health Care Corp., 100 S.W.3d 209, 214 (Tenn. 2003). In a workers'
compensation action, pursuant to Tennessee Code Annotated section 50-6-239(c)(6), Employee shall
bear the burden of proving each and every element of the claim by a preponderance of the evidence.
Employee must show the injury arose primarily out of and in the course and scope of employment.
Tenn. Code Ann.§ 50-6-102(13).
Factual Findings
The evidence proves Employee reported a non-specific injury and sought medical treatment
on her own at UT and CHS. Employee has kidney stones, chronic back pain, and a lumbar strain. No
provider has linked Employee's complaints of pain to her work.
Application of Law to Facts
The issue in this case is whether Employee has presented sufficient evidence to prove she
suffered a compensable injury. An injury is defined by Tennessee Code Annotated Section 50-6-
102(13) as follows:
"Injury" or "personal injury" mean an injury by accident, a mental
injury, occupational disease including diseases of the heart, lung and
hypertension, or cumulative trauma conditions including hearing loss, carpal
tunnel syndrome or any other repetitive motion conditions, arising primarily
out of and in the course and scope of employment, that causes death,
3
disablement or the need for medical treatment of the employee; provided, that:
(A) An 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, and shall not include the aggravation of a
preexisting disease, condition or ailment unless it can
be shown to a reasonable degree of medical certainty
that the aggravation arose primarily out of and in the
course and scope of employment;
(B) An 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;
(C) An injury causes death, disablement or the need for
medical treatment only if it has been shown to a
reasonable degree of medical certainty that it
contributed more than fifty percent (50%) in causing
death, disablement or need for medical treatment,
considering all causes.
Employee was very vague in describing her injury. She testified she was injured while lifting
heavy items at work. She did not describe with any specificity what she was lifting, what time it
happened other than the day, or if other workers observed her injury. The statute requires an
Employee to specify the incident or series of incidents that caused her injury, but Employee has
failed to do that.
Although Employer did not provide medical treatment when Employee reported her alleged
injury, Employee has sought medical treatment on her own. The medical records stipulated to by the
parties do not have any notation that Employee was injured at work. Rather, the medical records
from UT indicate Employee has chronic back pain and kidney stones. The medical records from UT
and CHS indicate Employee has a lumbar stain, and that according to FNP Beason, Employee should
not work until she sees a specialist. These records lack any notation of whether Employee's injury
was work related or not. As such, Employee has failed to prove she suffered an injury at work.
An employer is required to provide all medical treatment made reasonably necessary by
accident. Tenn. Code Ann. § 50-6-204(a)(l)(A). This would begin by an employer providing an
employee a panel of physicians. However, in this case, the evidence does not establish that
Employee requires medical treatment for an injury by accident at work. Therefore, Employer is not
obligated to provide a panel of physicians at this time.
Based upon all the evidence submitted, Employee has failed to prove she suffered a
compensable injury, and therefore her request for medical benefits is denied at this time.
4
IT IS, THEREFORE, ORDERED as follows:
1. The claim of Employee against Employer or its workers' compensation carrier for the
requested medical benefits is denied on the grounds of compensability.
2. This matter is set for Initial Hearing on February 10,2015, at 1:00 p.m. eastern time.
ENTERED this the 26th day of December 2014.
BRl``~N~
Workers' Compensation Judge
Initial Hearing:
An Initial Hearing has been set with Judge Brian K. Addington, Court of Workers
Compensation. You must call 865-594-6538 or toll free at 855-543-5044 to participate in the
Initial Hearing.
Please Note: You must call in on February 1. 2015, at 1:00 p.m. eastern time to participate.
Failure to call in may result in a determination of the issues without your further participation. All
conferences are set using Eastern Time (ET).
Right to Appeal:
Tennessee Law allows any party who disagrees with this Expedited Hearing Order to appeal the
decision to the Workers' Compensation Appeals Board. To file a Notice of Appeal, you must:
1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal".
2. File the completed form with the Court Clerk within seven (7) business days of the date the
Expedited Hearing Order was entered by the Workers' Compensation Judge.
3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.
4. The parties, having the responsibility of ensuring a complete record on appeal, may request
from the Court Clerk the audio recording of the hearing for the purpose of having a transcript
prepared by a licensed court reporter and filing it with the Court Clerk within ten (10)
calendar days of the filing of the Expedited Hearing Notice of Appeal. Alternatively, the
parties may file a statement of the evidence within ten ( 10) calendar days of the filing of the
Expedited Hearing Notice of Appeal. The statement of the evidence must be approved by the
Judge before the record is submitted to the Clerk of the Appeals Board.
5
5. If the appellant elects to file a position statement in support of the interlocutory appeal, the
appealing party shall file such position statement with the Court Clerk within three (3)
business days of the filing of the Expedited Hearing Notice of Appeal, specifying the issues
presented for review and including any argument in support thereof. If the appellee elects to
file a response in opposition to the interlocutory appeal, appellee shall do so within three (3)
business days of the filing of the appellant's position statement.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Expedited Hearing Order was sent to the
following recipients by the following methods of service on this the th day of December, 2014.
Name Certified First Via Fax Via Email Address
Mail Class Fax Number Email
Mail
Gail Burnett X X
C. Brown, Esq. X Chris.brown@leitnerfirm.com
Workers' Compensation Judge
6