                                                                                               FILED
                                                                                            Dec 19, 2019
                                                                                            10:16 AM(ET)
                                                                                         TENNESSEE COURT OF
                                                                                        WORKERS' COMPENSATION
                                                                                               CLAIMS




             TENNESSEE BUREAU OF WORKERS' COMPENSATION
            IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                           AT CHATTANOOGA

Grecia M. Ibarra,                                   )    Docket No. 2019-01-0368
            Employee,                               )
v.                                                  )
Amazon Fulfillment Services, Inc.,                  )    State File No. 29413-2019
            Employer,                               )
And                                                 )
American Zurich Insurance Company,                  )    Judge Audrey A. Headrick
            Carrier.                                )


                               EXPEDITED HEARING ORDER


       The Court held an Expedited Hearing on December 9, 2019, to determine whether
Ms. Ibarra is likely to establish at trial that she is entitled to a panel of orthopedists.
Amazon disputed her entitlement to a panel, asserting that Ms. Ibarra failed to provide
timely notice, did not sustain an identifiable injury, and did not prove causation. 1 For the
reasons below, the Court holds that Ms. Ibarra is entitled to a panel.

                                          History of Claim

       Ms. Ibarra allegedly injured her low back while repetitively lifting heavy boxes
and totes on or about September 15, 2018, while working for Amazon. Ms. Ibarra stated
she complained weekly to her supervisor about the back pain in September as it
worsened. Some days, Ms. Ibarra cried at work or missed work due to the pain. After
reporting her injury, Ms. Ibarra received ice packs and heat pads from Amcare, Amazon's
on-site medical clinic. 2 She did not receive a physician panel until April 23, 20 19, after
her supervisor's manager learned of her injury.


1
  The parties stipulated that Amazon timely submitted additional defenses to the mediator to include with
the Dispute Certification Notice.
2
 Ms. Ibarra continued working at Amazon performing the same job duties; however, once weekly
Amazon permitted her to work light-duty from September through November.
       From the panel, Ms. Ibarra selected Dr. Natasha Ballard and saw her on April 29.
She reported back pain for approximately six months from lifting heavy items at work,
which worsened over time. Ms. Ibarra denied any history of back injury or family history
of back problems. Dr. Ballard's notes reflected "[u]nknown causation" and "[w]ill refer
to ortho for further evaluation." Approximately two weeks later, Ms. Ibarra received
Amazon's letter denying her claim. In June, Dr. Ballard responded to a letter from Ms.
Ibarra's counsel. When asked if she made the orthopedic referral to determine medical
causation regarding Ms. Ibarra's claimed work injury, Dr. Ballard checked "yes."

       After Amazon's denial, Ms. Ibarra sought emergency treatment in July for acute
low-back pain. 3 The provider ordered a CT lumbar spine scan, which showed a mild
broad-based disc bulge at L4-L5 and a mild central broad-based disc protrusion at L5-S 1.
The provider diagnosed a lumbar strain and prescribed pain medication and muscle
relaxants. Other than some unsuccessful chiropractic treatment, Ms. Ibarra received no
further treatment.

                          Findings of Fact and Conclusions of Law

       To prevail at an expedited hearing, Ms. Ibarra must show a likelihood of
prevailing at a hearing on the merits. See Tenn. Code Ann.§ 50-6-239(d)(l) (2019). The
Court holds she did.

                                             Defenses

       Amazon raised lack of timely notice as a defense to Ms. Ibarra's claim. Tennessee
Code Annotated section 50-6-201(a)(l) requires an employee to give written notice of a
work injury "immediately upon the occurrence of an injury, or as soon thereafter as is
reasonable and practicable" to an employer who has no actual notice. However, section
50-6-20l(b)(l) requires an employee suffering from a gradual injury to provide notice
within fifteen days after the employee: "( 1) [k]nows or reasonably should know that the
employee has suffered a work-related injury that has resulted in permanent physical
impairment."

        Here, Ms. Ibarra's unrebutted 'testimony is that she reported her gradual, work-
related back pain to her supervisor in September. She credibly testified she continued
reporting her ongoing back pain to her supervisor and received treatment at Amcare until
she received a panel in April. The Court finds Amazon had actual notice of Ms. Ibarra's
injury in September 2018 when she reported her injury to her supervisor and when
Amazon modified her work activities. Since Amazon had actual notice of Ms. Ibarra's
injury, its notice defense fails.

3
 Ms. Ibarra did not submit a complete copy of the provider's records. Instead, she provided an After
Visit Summary, which included the CT lumbar spine test results.

                                                 2
       Next, Amazon raised lack of an identifiable injury as a defense to Ms. Ibarra's
claim. Tennessee Code Annotated section 50-6-102(13)(A)(l) defines an "accidental"
injury as one "caused by a specific incident, or set of incidents, arising out of and in the
course of employment, and is identifiable by time and place of occurrence." However,
section 50-6-102(13)(C) recognizes cumulative trauma or repetitive motion conditions as
accidental injuries if "such conditions arose primarily out of and in the course and scope
of employment."

        Amazon presented no proof contradicting Ms. Ibarra's description of events
occurring in September 20 18. Instead, Ms. Ibarra's unrebutted testimony is that she
developed worsening back pain in September from repetitively lifting heavy boxes and
totes. Therefore, the Court finds that she sustained a gradual injury at Amazon,
identifiable by time and place. Thus, the Court holds Amazon's lack of identifiable
injury defense fails.

                                        Causation

       The remaining question to be resolved is whether Ms. Ibarra appears likely to
prove her low-back condition arose primarily out of her employment at Amazon, which
caused the need for medical treatment. A causation opinion by Dr. Ballard, as panel
physician, is "presumed correct[.]" Tenn. Code Ann. § 50-6-102 (14)(E). However, the
Court finds that Dr. Ballard provided no opinion regarding causation. Thus, denying Ms.
Ibarra's claim on the basis of lack of causation at this juncture is premature. McCord v.
Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at * 17-19
(Mar. 27, 2015).

                                          Panel

       Regarding her request for the orthopedic referral, Dr. Ballard, her panel physician,
referred Ms. Ibarra to an orthopedist. When the treating physician refers the employee to
a specialist physician, the employer must either accept a specified physician or provide a
panel of specialists within three business days unless it accepts a direct referral. Tenn.
Code Ann. § 50-6-204(a)(3)(A)(ii). Since Dr. Ballard made no specific referral, Amazon
must provide a panel of orthopedic specialists.

IT IS, THEREFORE, ORDERED as follows:

   1. Amazon shall provide Ms. Ibarra an orthopedist panel for her back injury under
      Tennessee Code Annotated section 50-6-204.

   2. This case is set for a Status Hearing on Wednesday, February 12, 2020, at 2:00
      p.m. Eastern Time. The parties must call 423-634-0164 or toll-free at 855-383-

                                             3
   0001 to participate. Failure to call might result in a determination of the issues
   without the party's participation.

3. 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 its
   entry under Tennessee Code Annotated section 50-6-239(d)(3). Zurich 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 may result in a penalty assessment for non-compliance. For
   questions regarding compliance, please contact the Workers' Compensation
   Compliance Unit via email at WCComplianoe.Program@.tn .gov.

4. For questions regarding compliance, please contact the Workers' Compensation
   Compliance Unit via email at WCCompliance.Program@tn.gov.

   ENTERED December 19, 2019.




                                     Workers' Compensation Judge




                                        4
                                        APPENDIX

 Exhibits:
        1.   Panel
        2.   Dr. Ballard's causation response
        3.   Rule 72 Declaration of Grecia Ibarra
        4.   Erlanger medical records


 Technical record:
    1. Petition for Benefit Determination
    2. Dispute Certification Notice
    3. Request for Expedited Hearing
    4. Response in Opposition to Request for Expedited Hearing
    5. Employer's Witness and Exhibit List

                              CERTIFICATE OF SERVICE

 I certify that a copy of this Expedited Hearing Order was sent as indicated on December
 19, 2019.

        Name               Certified      Email     Service sent to:
                            Mail
Chris Markel,                               X       cmarkel@markelfirm.com
Employee's Attorney
Tiffany Sherrill,                           X       tbsherrill@mij s.com
Employer's Attorney




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                                                PENY s      M,COuRT CLERK
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                                                   wc.courtclerk@tn.gov




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