McMillan, Kathrine v. Kentucky Electronics, Inc. dba Precision Industries, Inc.

FILED
December 14, 2015
TICOURTOF
WORKERS' CO:\IPE~SATIO~
CLAD1S
Time: 11:02 At"\1
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT COOKEVILLE BY INTERCHANGE
Katherine McMillan, ) Docket No.: 2015-06-0523
Employee, )
v. ) State File No.: 50101-2015
)
Kentucky Electronics, Inc., d/b/a )
Precision Industries, Inc. )
Employer, )
And ) Judge Robert Durham
)
The Hartford, )
Insurance Carrier/TPA. )
EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS
THIS CAUSE came before the undersigned Workers' Compensation Judge upon
the Request for Expedited Hearing (REH) filed by Katherine McMillan, the employee, on
October 26, 2015, pursuant to Tennessee Code Annotated section 50-6-239 (2014) to
determine if the employer, Kentucky Electronics, Inc. (KEI), is obligated to provide
additional medical benefits.
The dispositive issue is whether Ms. McMillan sustained an injury that primarily
arose out of and in the course and scope of her work-related accident on June 19, 2015. 1
The Court finds the evidence submitted by Ms. McMillan is sufficient to establish she is
likely to prevail at a hearing on the merits with regard to her entitlement to additional
medical benefits. 2
History of Claim
Ms. McMillan is a fifty-five-year-old resident of Sumner County, Tennessee, who
. worked as a sorter for KEI. (T.R. 1 at 1.) She testified that on Friday, June 19, 2015, she
attempted to scoot a pallet with a large, empty box on it by pushing the box. As she
1
The parties stipulated temporary disability benefits were not an issue at this time.
2
Additional information regarding the technical record and exhibits is attached to this Order as an Appendix.
1
pushed the box, it slid across the pallet. She tripped over the pallet and fell to her knees,
while her momentum continued to push the box forward with her hands still on top of the
box, causing her to arch her back. Ms. McMillan then released the box and fell all the
way to her stomach with her arms outstretched. She testified she immediately felt pain in
her knees and her right side, but the pain went away after a few seconds.
Pam High, Ms. McMillan's co-worker, testified she witnessed the fall and helped
Ms. McMillan to her feet. She asked Ms. McMillan if she were hurt, and she replied she
was not. Ms. High testified Ms. McMillan raised her shirt to look at her stomach, and she
observed that it did not appear bruised or scratched. Despite Ms. McMillan's assertion
that she was uninjured, Ms. High urged her to file an accident report as required by
company policy.
Ms. McMillan testified she then went to her supervisor and completed an accident
report. In the description of her injury, she noted, "My knees went to the floor. It was
red and my stomach hurt a little. I was still holding the box when I fell and also hurt my
lower back." (Ex. 7 at 2.) However, she did not seek medical attention and finished out
her shift.
Ms. McMillan did not work over the weekend. When she returned the following
week, Ms. High asked her how she was feeling. According to Ms. High's testimony, Ms.
McMillan told her she was feeling well except that she had tripped over a mop bucket her
friend had left on the floor at home. Brenda Kepley, a supervisor for KEI, testified Ms.
McMillan also told her on June 22 or June 23 that she tripped over a mop bucket at home,
resulting in pain.
Ms. McMillan testified she did not trip over a mop bucket over the weekend in
question; however, she did bump into a kitty litter box, causing her to bruise her ankle.
Her friend, Fred Hamilton, testified no one mopped the floor that weekend and he did not
see or hear Ms. McMillan fall; however, she did show him her bruised ankle from
tripping over the kitty litter box.
Ms. McMillan testified she worked the entire week of June 22 through June 26,
but began experiencing pain in her right abdomen that continued to worsen. While
shopping on Saturday, June 27, the pain became so intense Ms. McMillan decided to seek
treatment at Sumner Regional Medical Center to determine if her pain related to her
appendix.
According to the ED Physician Documentation form, Ms. McMillan presented
with right-sided abdominal pain that "began/occurred gradually three days ago, and
became worse this morning." (Ex. 1 at 1.) The record initially reported Ms. McMillan
stated she "had a dull ache that she attributed to having a cold and coughing," but which
had worsened. !d. However, the next sentence states, "[p]atient states that the pain
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started after a fall at work. She denies any injury to her abdomen." !d. Furthermore, the
Physician Documentation form concludes with a "correction" indicating the sentence,
"[p]atient states that she has a dull ache that she attributed to having a cold and coughing,
but then it became worse today," was deleted from the chart. (Ex. 1 at 3.)
While at the emergency room, Ms. McMillan underwent a CT scan of her
abdomen, which revealed an "approximately 4 x10 em lower RlGHT rectus sheath
hematoma." As a result, the hospital admitted her overnight for observation. According
to the admission report, Ms. McMillan "was at work on Monday and twisted her body.
She was fine after that, but as the week progressed, she noted RLQ pain that was getting
progressively worse." (Ex. 1 at 6.) The file also contains a "Report of Consultation" that
states Ms. McMillan had an "awkward twisting fall yesterday and began having lower
abdominal pain." (Ex. 1 at 11.)
Ms. Kepley testified Ms. McMillan called her while she was at the hospital and
told her she had fallen at work the week before. (Ex. 1 at 6.) Ms. Kepley told her this
was the first she heard of her falling at work, but she would report it to KEI' s insurance
carrier. ld. The hospital discharged Ms. McMillan the following day, stating she
suffered from a rectus sheathe hematoma that "should spontaneously resolve in 1-2
weeks." (Ex. 1 at 15. i
Following her hospital stay, KEI provided a panel of physicians to Ms. McMillan,
and she chose Gallatin Urgent Care (GUC). (Ex. 4.) On July 2, Ms. McMillan saw
Andrea Reed, N.P., with GUC. (Ex. 2 at 1.) The record noted Ms. McMillan complained
of pain following a fall at work on June 19. (Ex. 2 at 1.) Her abdominal pain had
improved. ld. N.P. Reed marked the box indicating her condition was work-related.
(Ex. 2 at 2.) She placed Ms. McMillan on light duty, stating she could return to work on
July 2. ld.
On July 7, KEI denied Ms. McMillan's claim on the basis that she fell at home
subsequent to her work accident, and she failed to establish her injury arose out of and in
the course of her employment with KEI. (Ex. 5.) Despite the denial, Ms. McMillan
returned to GUC on July 8. (Ex. 2 at 3.) She complained of worsening pain in her right
abdomen. ld. N.P. Reed again diagnosed her with a hematoma, but recommended she
see a surgeon since her pain should have been improving. ld. She restricted her from
any lifting, pushing or pulling. (Ex. 2 at 4.) Finally, she again noted Ms. McMillan's
condition was work-related. (Ex. 2 at 4.)
Ms. McMillan testified she returned to work for KEI until she quit in October
2015, to obtain another job. She further testified her abdominal pain has resolved.
3
The parties did not provide a bill for the hospital visit.
3
Ms. McMillan filed a Petition for Benefit Determination seeking medical benefits.
The parties did not resolve the disputed issues through mediation, and the Mediating
Specialist filed a Dispute Certification Notice. Ms. McMillan filed a Request for
Expedited Hearing, and the Court heard the matter on December 4, 2015. At the
Expedited Hearing, Ms. McMillan asserted she sustained a job-related injury, and the
Court should deem her claim compensable. KEI countered that Ms. McMillan failed to
prove her injury primarily arose out of and in the course and scope of her employment.
As such, KEI argued the Court should deny her claim.
Findings of Fact and Conclusions of Law
The Workers' Compensation Law shall not be remedially or liberally construed in
favor of either party but shall be construed fairly, impartially and in accordance with
basic principles of statutory construction favoring neither the employee nor
employer. Tenn. Code Ann. § 50-6-116 (2014). The employee in a workers'
compensation claim has the burden of proof on all essential elements of a claim. Tindall
v. Waring Park Ass'n, 725 S.W.2d 935, 937 (Tenn. 1987); 4 Scott v. Integrity Staffing
Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn.
Workers' Comp. App. Bd. Aug. 18, 2015).
An employee need not prove every element of his or her claim by a preponderance
of the evidence in order to obtain relief at an expedited hearing. McCord v. Advantage
Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-
8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015). At an expedited hearing, an
employee has the burden to come forward with sufficient evidence from which the trial
court can determine that the employee is likely to prevail at a hearing on the merits. !d.
This lesser evidentiary standard "does not relieve an employee of the burden of
producing evidence of an injury by accident that arose primarily out of and in the course
and scope of employment at an expedited hearing, but allows some relief to be granted if
that evidence does not rise to the level of a 'preponderance of the evidence."' Buchanan
v. Car/ex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6
(Tenn. Workers' Comp. App. Bd. Sept. 29, 2015).
While the evidence provided by the parties contains inconsistencies regarding
several details surrounding Ms. McMillan's injury, the undisputed proof establishes she
fell awkwardly to the floor on June 19, 2015, with both arms outstretched and holding to
the top of a box. While Ms. McMillan candidly testified she only felt abdominal pain for
4
The Tennessee Workers' Compensation Appeals Board allows reliance on precedent from the Tennessee Supreme
Court "unless it is evident that the Supreme Court's decision or rationale relied on a remedial interpretation of pre-
July I, 2014 statutes, that it relied on specific statutory language no longer contained in the Workers' Compensation
Law, and/or that it relied on an analysis that has since been addressed by the general assembly through statutory
amendments." McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, at *13 n.4 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).
4
a few moments initially, it was painful enough to cause her to lift her shirt and examine
her stomach for marks or bruising. Her co-worker, Ms. High, felt the accident
sufficiently serious to warrant reporting it to their supervisor. Furthermore, Ms.
McMillan mentioned stomach pain in the report she completed immediately after the
accident. (Ex. 7 at 2.)
The evidence at the expedited hearing was inconsistent regarding whether Ms.
McMillan tripped over a mop bucket at home on June 20 or 21. However, the Court
finds this to be of little consequence. While Ms. McMillan did not admit to telling Ms.
High and Ms. Kepley that she tripped over a mop bucket, she did testify to stumbling
over a kitty litter box. Furthermore, neither Ms. High nor Ms. Kepley testified that Ms.
McMillan specifically told them she suffered abdominal pain as a result of the incident at
home. At this time, there is no evidence that attributes Ms. McMillan's abdominal pain
to a trip or fall at home on June 20 or 21.
The medical records from Sumner Regional Medical Center are also inconsistent
with regard to the progression of Ms. McMillan's symptoms. The Physician
Documentation form states Ms. McMillan attributed her symptoms to coughing, and then
in the next sentence states she asserted the pain began after she fell at work. (Ex. 1 at 1.)
In one section, the medical records also state that the pain began on Monday when she
twisted her body; in another section, the records state the pain began three days earlier,
and in yet another section, the records assert the pain began when she experienced an
"awkward twisting fall yesterday." The Court finds it difficult to give any weight to such
disparate accounts within the same set of records; however, when considered together,
the common thread appears to be that Ms. McMillan claimed her pain began after falling
at work and then progressively worsened, thus generally supporting her testimony at the
hearing.
Finally, following her hospital stay, KEI offered a panel of physicians to Ms.
McMillan in accordance with Tennessee Code Annotated section 50-6-204(3)(A)(i)
(2014), and she chose GUC as her authorized treating physician. (Ex. 7.) In this matter,
GUC's records include Ms. McMillan's account that she fell at work on June 19, and in
status notes for both July 2 and July 8, N.P. Reed checked the box inquiring whether the
injury is work-related as "yes." Furthermore, N.P. Reed wrote the July 8 note the day
after KEI issued a Notice of Denial for Ms. McMillan's claim. While N.P. Reed's
opinion as to causation might not be entitled to a presumption of correctness pursuant to
Tennessee Code Annotated section 50-6-102(13)(E) (2014), the Court considers it a
factor in Ms. McMillan's favor in determining whether she is likely to prevail at a
hearing on the merits on the issue. Furthermore, KEI provided no expert medical proof
rebutting N.P. Reed's opinion as stated in these notes.
Therefore, given the entirety of the evidence, the Court finds Ms. McMillan is
likely to prevail at a hearing on the merits in establishing that she suffered from a
5
hematoma that primarily arose out of and in the course and scope of her work-related
accident on June 19, 2015. Buchanan, supra, at *6. As a result, the Court further finds
that KEI must provide a panel of surgeons for the evaluation, and if necessary, further
treatment of Ms. McMillan as recommended by N.P. Reed in her July 8 note. (Ex. 2 at
3.) Tenn. Code Ann. § 50-6-204(a)(l)(A).
With regard to Ms. McMillan's emergency room treatment and subsequent
hospitalization at Sumner Regional Medical Center, whether an employee is justified in
seeking payment for unauthorized medical expenses from an employer depends upon the
circumstances of each case. Buchanan v. Mission Ins. Co., 713 S.W.2d 654, 656 (Tenn.
1986). In this instance, the undisputed evidence is that Ms. McMillan's abdominal pain
suddenly and severely intensified on Saturday, and her condition was of sufficient
severity that it warranted an overnight stay in the hospital. (Ex. 1.) Furthermore, Ms.
McMillan notified her supervisor, Ms. Kepley, as soon as she could conveniently do so.
(Ex. 9 at 5.)
Thus, the Court finds it was reasonable for Ms. McMillan to seek emergent care
and submit to hospitalization for treatment of her work-related injury, and KEI is
obligated to pay the reasonable and necessary expenses associated with this care m
accordance with Workers' Compensation Law. Buchanan, supra, at *656.
IT IS, THEREFORE, ORDERED as follows:
1. KEI shall provide a panel of surgeons in accordance with the recommendation of
GUC for the evaluation, and if necessary, further treatment of Ms. McMillan's
work-related injury of June 19, 2015.
2. KEI shall pay the reasonable and necessary medical expenses associated with
Ms. McMillan's emergency room treatment and subsequent hospitalization at
Sumner Regional Medical Center on June 27 and June 28, 2015, in accordance
with Workers' Compensation Law.
3. This matter is set for Initial Hearing on January 27, 2016, at 10:00 a.m. C.T.
ENTERED THIS THE 14th DAY OF DECEMBER, 2015.
~dgt=
Court of Workers' Compensation Claims
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Initial Hearing:
An Initial Hearing has been set with Judge Robert Durham, Court of
Workers' Compensation Claims. You must call 615-253-0010 or toll-free at 866-
689-9049 to participate in the Initial Hearing.
Please Note: You must call in on the scheduled date/time to participate.
Failure to call in may result in a determination of the issues without your further
participation. All conferences are set using Central Time (CT).
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 business days of the
date the Workers' Compensation Judge entered the Expedited Hearing Order.
3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.
4. The appealing party is responsible for payment of a filing fee in the amount of
$75.00. Within ten calendar days after the filing of a notice of appeal, payment
must be received by check, money order, or credit card payment. Payments can be
made in person at any Bureau office or by United States mail, hand-delivery, or
other delivery service. In the alternative, the appealing party may file an Affidavit
of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
will consider the Affidavit of Indigency and issue an Order granting or denying
the request for a waiver of the filing fee as soon thereafter as is
practicable. Failure to timely pay the filing fee or file the Affidavit of
Indigency in accordance with this section shall result in dismissal of the
appeal.
5. The parties, having the responsibility of ensuring a complete record on appeal,
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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 calendar days of the filing of the Expedited
Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
the evidence within ten calendar days of the filing of the Expedited Hearing
Notice of Appeal. The statement of the evidence must convey a complete and
accurate account of what transpired in the Court of Workers' Compensation
Claims and must be approved by the workers' compensation judge before the
record is submitted to the Clerk of the Appeals Board.
6. If the appellant elects to file a position statement in support of the interlocutory
appeal, the appellant shall file such position statement with the Court Clerk within
five business days of the expiration of the time to file a transcript or statement of
the evidence, specifying the issues presented for review and .including any
argument in support thereof. A party opposing the appeal shall file a response, if
any, with the Court Clerk within five business days of the filing of the appellant's
position statement. All position statements pertaining to an appeal of an
interlocutory order 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.
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APPENDIX
Exhibits:
1. Medical records from Sumner Regional Medical Center;
2. Medical records from Gallatin Urgent Care;
3. The Hartford Physical Demands Analysis;
4. Choice of Physician Form;
5. Notice ofDenial;
6. Wage Statement;
7. KEI Industries Injury Report;
8. Affidavit of Katherine McMillan; and,
9. Affidavits of Pam High and Brenda Kepley.
Technical Record:
1. Petition for Benefit Determination;
2. Dispute Certification Notice;
3. Request for Expedited Hearing; and,
4. Transfer Order.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy ofthe Expedited Hearing Order for
Medical Benefits was sent to the following recipients by the following methods of service
on this the _th day of December, 2015.
Name Certified Via Via Service sent to:
Mail Fax Email
Vakessha Hood- X Vhslaw 1@gmail.com
Schneider,
T. Tamara Gauldin X Tamara. Gauldin@thehartford.com
___& jtUfo-'
Penn~m, Clerk of Court
Court of Workers' Compensation Claims
WC.CourtClerk@tn.gov
9