Lemons, Tina v. Elwood Staffing Services, Inc.

FILED
May 28, 2020
10:36 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
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 that she injured her hand due to a job change that required her
to use her hand in an awkward fashion for an entire shift. She sought medical and
temporary benefits, which Elwood Staffing denied. For the reasons below, the Court holds
she is not likely to prevail at a hearing on the merits regarding the cause of her injury and
denies the requested benefits.
Claim History
Ms. Lemons worked as a John Deere line worker for Elwood. She testified she
worked nine hours screwing in deck covers on February 16, which was outside her normal
work at the plant. She noticed pain in her hand that day and reported her injury to a John
Deere representative the next day. When the pain persisted, the John Deere nurse contacted
Elwood to arrange for Ms. Lemons to see a doctor. Ms. Lemons selected Dr. Bruce Berry
at Industricare from a physician panel and attended the appointment, although she testified
it was Elwood and not her who chose him.
On March 19, she attended an appointment with Industricare Nurse Practitioner
Marsh Mantemarano. Nurse Mantemarano wrote that Ms. Lemons’s injury was not
considered work-related based on her history and she could return to work without
restrictions. Dr. Berry noted that he reviewed and approved her recommendations. Ms.
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Lemons testified that Nurse Mantemarano suggested that she obtain treatment with an
orthopedist on her own.
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 return to work slip on July 1, allowing Ms. Lemons to return
on July 8 without restrictions. Ms. Lemons testified she received a separation notice from
Elwood stating she resigned from her position on May 8, but Ms. Lemons denied quitting.
Ms. Lemons requested temporary disability benefits for May 9 through July 8, 2019,
and medical benefits with Dr. Parsley for her injury. Elwood disputed that Ms. Lemons
had not rebutted the presumption of correctness allotted to Dr. Berry’s opinion and,
therefore, she was not entitled to benefits.
Findings of Facts 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 that she performed repetitive motions that caused
her injury, she failed to provide sufficient evidence to establish that she suffered an injury
arising primarily out of and in the course and scope of her employment. The medical record
adopted by Dr. Berry states that she did not suffer a work-related injury. Ms. Lemons
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)(ii).
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Ms. Lemons offered Dr. Parsley’s statements to counter Dr. Berry’s opinion.
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 said her injury was merely “related.”
This single statement is insufficient to overcome the presumption given to Dr. Berry’s
opinion and does not reach the standard of “primarily caused” by a work injury that the
Workers’ Compensation Statute requires.
Considering all the evidence, the Court holds Ms. Lemons is not likely to succeed
at a hearing on the merits. Her request for temporary disability and medical benefits is
denied at this time.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. Lemons’s request for temporary disability and medical benefits is denied at
this time.
2. This case is set for a Status Hearing on Tuesday, July 14, 2020, at 4:00 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 May 28, 2020.
__/S/ Brian K. Addington_______________
BRIAN K. ADDINGTON, JUDGE
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Ms. Lemons’s affidavit
2. First Report of Injury
3. Wage Statement
4. Choice of Physician Form
5. Notice of Controversy
6. Collective Medical records
7. Employer’s collective records
8. Medical Bills (For Identification Only).
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
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3. Show Cause Order
4. Request for Expedited Hearing
5. Response of Employer and Insurance Carrier to Request for Expedited Hearing
6. Motion to Continue Expedited Hearing
7. Order Rescheduling Expedited Hearing
8. Employers Response to Employee’s Request for Expedited Hearing
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent on May 28, 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
/S/ Penny Shrum
______________________________________
PENNY SHRUM, COURT CLERK
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 *
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Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, I-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
I, ________________________________________, having been duly sworn according to law, make oath that
because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name: 2. Address:
3. Telephone Number: 4. Date of Birth:
5. Names and Ages of All Dependents:
______________________________________ Relationship:
______________________________________ Relationship:
______________________________________ Relationship:
______________________________________ Relationship:
6. I am employed by:
My employer’s address is:
My employer’s phone number is:
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$ ___________________
8. I receive or expect to receive money from the following sources:
AFDC $ ________ per month beginning
SSI $ ________ per month beginning
Retirement $ ________ per month beginning
Disability $ ________ per month beginning
Unemployment $ ________ per month beginning
Worker’s Comp.$ ________ per month beginning
Other $ ________ per month beginning
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9. My expenses are:
Rent/House Payment $ ________ per month Medical/Dental $ ___________ per month
Groceries $ ________ per month Telephone $ per month
Electricity $ ________ per month School Supplies $ per month
Water $ ________ per month Clothing $ per month
Gas $ ________ per month Child Care $ per month
Transportation $ ________ per month Child Support $ per month
Car $_________ per month
Other $ _______ per month (describe: )
10. Assets:
Automobile $ (FMV)
Checking/Savings Acct. $
House $ (FMV)
Other $ Describe:
11. My debts are:
Amount Owed To Whom
I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.
_
APPELLANT
Sworn and subscribed before me, a notary public, this
_______ day of , 20_______.
NOTARY PUBLIC
My Commission Expires:
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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]
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