Bailey, Joey v. Country Farm & Home Center, LLC

FILED
Jul 21, 2021
03:12 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT COOKEVILLE
JOEY BAILEY, ) Docket No.: 2021-04-0026
Employee, )
v. )
COUNTRY FARM & HOME ) State File No.: 800054-2021
CENTER, LLC. )
Employer, )
And ) Judge Robert Durham
FFVA MUT. INS. CO. )
Insurer. )
EXPEDITED HEARING ORDER
GRANTING BENEFITS
This Court held an Expedited Hearing on July 8, 2021. Mr. Bailey sought medical
and temporary disability benefits for a right-foot injury. Country Farm asserted the injury
did not primarily arise out of and in the course and scope of employment because it was
idiopathic. The Court holds that Mr. Bailey is likely to prove at trial that his injury arose
primarily out of employment and is entitled to workers’ compensation benefits.
History of Claim
It is undisputed that on November 2, 2020, Mr. Bailey tore a tendon in his right
foot while working as a delivery driver for Country Farm. 1 However, Country Farm
argued that Mr. Bailey’s various accounts of the incident support its contention that the
injury was idiopathic in nature and did not arise primarily out of Mr. Bailey’s
employment. Thus, the Court will summarize these accounts in chronological order.
Mr. Bailey immediately notified Country Farm’s general manager, Paul Schultz,
1
The parties also agreed to the following: (1) Mr. Bailey’s compensation rate is $422.06; (2) Mr. Bailey
has been unable to work for Country Farm since the date of injury; and, Mr. Bailey received one month of
temporary total disability benefits.
1
that he had injured his right foot and was in severe pain. Mr. Schultz told him to go to a
walk-in clinic for immediate care. That same day, Mr. Schultz sent an email to human
resource manager Sara Elder that stated Mr. Bailey told him “he stepped on the moffett
and something popped in his foot.” 2 Later, his affidavit stated that Mr. Bailey informed
him that “he injured his right foot on the jobsite while walking on uneven terrain.”
Mr. Bailey completed an “employee questionnaire” on the day of the injury. In
describing how the injury occurred, he stated that he “was walking to the moffett after I
moved my work truck at the jobsite” when he felt the “snap” in his foot.
Mr. Bailey followed Mr. Shultz’s directions and went to the walk-in-clinic that
day. Treatment notes stated the injury occurred “when he went to step today at work”
and felt a “loud pop” on the bottom of his right foot. The provider “strongly suspected” a
plantar fascia tear, ordered an MRI, and restricted Mr. Bailey to sedentary duty, which
Country Farm could not accommodate.
The MRI revealed at least a longitudinal tendon tear and suspected full-thickness
tear with possible retraction. At a follow-up visit, the provider ordered an immediate
orthopedist referral and kept Mr. Bailey on sedentary duty.
On November 9, County Farm filed a First Report of Injury that stated Mr.
Bailey’s injury occurred when he “stepped on the moffett and something popped in his
right foot.”
Country Farm offered a panel of orthopedists, and Mr. Bailey chose Dr. Jeffrey
Herring. His record noted that Mr. Bailey was delivering materials, and the “terrain was
uneven at the new work-site place.” Dr. Herring diagnosed a tendon tear/rupture. He
went on to note that the “work injury with the uneven terrain was more than likely the
causative injury.” He recommended surgical repair and restricted Mr. Bailey from
driving commercially but wrote he could work at a sitting job.
Country Farm then denied Mr. Bailey’s claim on the grounds that he suffered an
“idiopathic” injury. Mr. Bailey filed a Petition for Benefit Determination and in the
supporting affidavit described the accident as follows: “On [November 2], I was walking
on uneven terrain to load a moffett and stepped into a rut causing my right foot to point
downward. When I went to step out of the rut, my foot popped.” In his interrogatory
responses, he stated that he “was walking on uneven terrain to load a moffett and my
right foot stepped into a rut causing it to bend and pop.”
At Mr. Bailey’s deposition, he testified that his injury occurred when he pushed
2
At the hearing, Mr. Bailey described a “moffett” as a forklift that is carried on the delivery truck and is
used to load and unload building supplies onto and from the truck.
2
off with his right foot to remove it from the rut. He felt the pop in his foot at that point.
At the hearing, Mr. Bailey testified consistently with his deposition testimony.
When asked about his various accounts of the accident, Mr. Bailey stated that
there was no inconsistency—he had been walking across the rutted building site but was
in the act of stepping onto the moffett when the injury occurred. He provided a picture of
the purported building site that showed considerable mud, rutting, and building debris.
However, it was taken a few weeks after the injury, and he was not the photographer.
As for medical proof, Mr. Bailey offered two reports from Dr. Herring. The first
was a “medical questionnaire” signed by Dr. Herring on November 24, 2020. Dr.
Herring wrote that Mr. Bailey’s rupture of a degenerative tendon was “primarily (greater
than 50%) related” to the November 2 incident and due to walking on uneven terrain.
Dr. Herring provided an additional causation opinion on a surgical “pre-
certification” form signed on December 10. He diagnosed a tendon tear that required
surgery. He further noted Mr. Bailey’s “industrial injury” was the “major contributing
cause” to Mr. Bailey’s disability and need for surgery, and he did not consider any “prior
diseases or conditions” to be contributing factors.
Finally, Mr. Bailey returned to Dr. Herring on May 27, 2021, which visit was not
authorized by Country Farm. Dr. Herring ordered an MRI that confirmed his previous
diagnosis. He again recommended surgery.
Mr. Bailey wore a boot to the hearing. He testified that he never had problems
with his right foot before the November 2 incident. He remains unable to drive
commercially and has not worked anywhere since his injury. He continues to have
considerable difficulty with his foot and wishes to undergo the surgery recommended by
Dr. Herring.
Findings of Fact and Conclusions of Law
Mr. Bailey must present evidence from which this Court can determine that he is
likely to prove at trial that his right-foot tendon tear arose primarily out of and in the
course and scope of his employment, as well as his entitlement to medical and temporary
disability benefits. See McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *9 (Mar. 27, 2015).
Country Farm does not dispute that Mr. Bailey suffers from a tendon tear in his
right foot. However, it argues that the injury was idiopathic and thus non-compensable
under workers’ compensation law. “An idiopathic injury is one that has an unexplained
origin or cause, and generally does not arise out of the employment unless some
condition of the employment presents a peculiar or additional hazard.” McCaffery v.
3
Cardinal Logistics, 2015 TN Wrk. Comp. App. Bd. LEXIS 50, at *9 (Dec. 10, 2015)
(citations omitted). An idiopathic injury is only compensable if the employment hazard
“causes or exacerbates the injury.” Id. at *10.
Country Farm bases its argument on two grounds: (1) Mr. Bailey’s various
inconsistent statements regarding how the incident occurred, and that the evidence points
to the injury occurring before he attempted to step on to the moffett; and (2) the “uneven
terrain” of the building site did not create an employment hazard sufficient to establish a
non-idiopathic injury.
The Court does not find Mr. Bailey’s various statements inconsistent; they simply
do not provide a complete account of the accident. Many of the descriptions are
contained in medical records that did not require a detailed account. The Court finds it
significant that Mr. Schultz’s email, which was sent on the day of injury, clearly stated
that Mr. Bailey told him the pop occurred as he stepped onto the moffett. Many of the
other accounts also refer to the moffett.
In his testimony, Mr. Bailey explained that his right foot was in a rut and he was in
the process of stepping onto the moffett with his left foot when he felt the right-foot
tendon snap. Country Farm offered no evidence but rather argument of asserted
inconsistent statements to contest Mr. Bailey’s credibility on this issue. Based on its
observation of Mr. Bailey and the evidence presented, the Court finds Mr. Bailey to be a
credible witness and that he is likely to prove his injury occurred as he described.
In determining whether this incident rises to the level of a “peculiar or additional”
hazard of employment sufficient to cause an injury arising out of employment, the Court
notes that the hazard need not be great. “Tennessee courts have consistently held that an
employee may not recover for an injury occurring while walking unless there is an
employment hazard, such as a puddle of water or a step, in addition to the injured
employee’s ambulation.” Bullard v. Facilities Performance Grp., 2018 TN Wrk. Comp.
App. Bd. LEXIS 37, at *11 (Aug. 17, 2018) (emphasis added). In Bullard, the employee
injured herself after missing a single step she forgot was there as she exited a building.
The Appeals Board determined the hazard was sufficient to make the injury non-
idiopathic. Id.
The Court finds that Mr. Bailey’s attempt to step onto the moffett while his right
foot was in a rut is a sufficient employment hazard to make the injury non-idiopathic. In
addition, Dr. Bailey’s unrefuted opinion was that walking on uneven ground primarily
caused Mr. Bailey’s tendon tear, resulting disability, and need for surgery. Thus, the
Court holds that Mr. Bailey is likely to prove that he sustained a right-foot tendon tear on
November 2, 2020, that primarily arose out of and in the course and scope of his
4
employment. See Tenn. Code Ann. § 50-6-102(14) (2020). 3
Given this holding, the Court must now address benefits. Regarding the
unauthorized medical expenses Mr. Bailey incurred with Dr. Herring after Country Farm
denied his claim, Mr. Bailey did not prove the reasonableness or necessity of these
expenses. See Hackney v. Integrity Staffing Solutions, 2016 TN Wrk. Comp. App. Bd.
LEXIS 29, at *8-9 (July 22, 2016). Thus, the Court holds that he is not entitled to
reimbursement for these past expenses at this time.
However, as to continued medical treatment, the Court holds that Country Farm
shall authorize further reasonable and necessary medical treatment with Dr. Herring for
the November 2 work injury, including but not limited to, surgical repair of the tendon.
See Tenn. Code Ann. § 50-6-204)(a)(1)(A).
The Court next considers temporary partial disability benefits. An injured worker
may be entitled to temporary partial disability benefits when the temporary disability
resulting from a work-related injury is not total. See Tenn. Code Ann. § 50-6-207(1)-(2).
“Temporary partial disability refers to the time, if any, during which the injured
employee is able to resume some gainful employment but has not reached maximum
recovery.” Hackney, at *11. The injured worker must also show the difference between
what he could have earned in his partially disabled state and his average weekly wage.
Tenn. Code Ann. § 50-6-207(2)(A).
The undisputed testimony is that Mr. Bailey is currently under restrictions that
limit him to a sitting job only and prohibit him from working as a commercial truck
driver. Country Farm is unable to accommodate those restrictions, and Mr. Bailey has
not worked since his injury. The Court holds that Mr. Bailey is entitled to temporary
partial disability benefits at a rate of $422.06 from December 3, 2020, through the date of
this order, for a total of $13,867.69. Country Farm shall also pay ongoing temporary
partial disability benefits until Mr. Bailey reaches maximum medical improvement, is
released from his restrictions, or is able to return to work.
IT IS, THEREFORE, ORDERED THAT:
1. Mr. Bailey’s request for reimbursement of unauthorized medical expenses is
denied at this time. Country Farm shall authorize Dr. Herring to continue
providing reasonable and necessary medical treatment to Mr. Bailey, including
but not limited to surgery.
3
Even if Mr. Bailey’s injury occurred as he walked across the muddy, heavily rutted building site before
he attempted to step onto the moffett, it would still likely constitute a hazard that would make the injury
non-idiopathic.
5
2. Country Farm shall pay Mr. Bailey temporary partial disability benefits at a
compensation rate of $422.06 from December 3 through the date of this order,
for a total of $13,867.69, as well as ongoing temporary partial disability
benefits as long as Mr. Bailey’s restrictions remain in place and he is unable to
work, or he reaches maximum medical improvement. Mr. Bailey’s attorney is
entitled to fees of twenty percent from this award.
3. This case is set for a Scheduling Hearing on Thursday, September 2, 2021, at
9:00 a.m. Central Time. The parties must call 615-253-0010 to participate.
Failure to appear might result in a determination of the issues without the
party’s participation.
4. Unless interlocutory appeal of the Expedited Hearing Order is filed,
compliance with this Order must occur no later than seven business days from
the date of entry of this Order as required by Tennessee Code Annotated
section 50-6-239(d)(3). The Insurer or Self-Insured Employer must submit
confirmation of compliance with this Order to the Bureau by email to
WCCompliance.Program@tn.gov no later than the seventh business day after
entry of this Order. Failure to submit the necessary confirmation within the
period of compliance might result in a penalty assessment for non-compliance.
For questions regarding compliance, please contact the Workers’
Compensation Compliance Unit via email at
WCCompliance.Program@tn.gov.
ENTERED on July 21, 2021.
_____________________________________
ROBERT DURHAM, JUDGE
Court of Workers’ Compensation Claims
APPENDIX
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Order Allowing Amendment to Witness List
5. Mr. Bailey’s Witness and Exhibit List
6. Country Farm’s Witness and Exhibit List
7. Mr. Bailey’s Expedited Hearing Brief
8. Country Farm’s Expedited Hearing Brief
6
Exhibits:
1. Denial Letter
2. Mileage Statement
3. Mr. Bailey’s affidavit
4. Mr. Bailey’s Medical Records and Bills
5. Mr. Bailey’s deposition
6. First Report of Injury
7. Affidavit from Paul Schultz
8. Email from Paul Shultz
9. Choice of Physician Form for Satellite Med
10. Choice of Physician Form for Dr. Herring
11. Notice of Denial
12. Employee Questionnaire
13. Wage Statement
14. Interrogatory Responses
15. Picture of work site
16. Medical Bill
17. Recorded Statement Summary for I.D. only
CERTIFICATE OF SERVICE
I certify that a copy of the Order was sent as indicated on July 21, 2021.
Name Certified Via Email Address
Mail Email
Julie Reasonover X julie@reasonoverlaw.com
leanna@reasonoverlaw.com
Garrett Franklyn X gpfranklyn@mijs.com
_____________________________________
PENNY SHRUM, Court Clerk
WC.CourtClerk@tn.gov
7
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