              IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                               AT MEMPHIS

ERNEST PEEPLES                                              )    Docket No.: 2015-08-0268
         Employee,                                          )
v.                                                          )    State File No.: 31748-2015
                                                            )
BAPTIST MEMORIAL HOSPITAL                                   )    Judge Amber E. Luttrell
MEMPHIS                                                     )
         Employer,                                          )
And                                                         )
                                                            )
BRENTWOOD SERVICES ADMIN.                                   )
       TPA.                                                 )


     EXPEDITED HEARING ORDER DENYING MEDICAL AND TEMPORARY
                        DISABILITY BENEFITS
                      (RECORD REVIEW ONLY)


       THIS CAUSE came before the undersigned Workers' Compensation Judge upon
the Request for Expedited Hearing (REH) filed by the employee, Ernest Peeples,
pursuant to Tennessee Code Annotated section 50-6-239 (20 14). Mr. Peeples seeks
medical and temporary disability benefits. Mr. Peeples requested the Court render its
decision based upon a review of the case file without an evidentiary hearing. Baptist
Memorial Hospital did not object to this request. 1

       Upon review of the file, the Court finds that no affidavit accompanied Mr.
Peeples' REH as required by Tennessee Compilation Rules and Regulations 0800-02-21-
.14(l)(a) (2015). Thus, the Court must deny Mr. Peeples' REH at this time. Even if Mr.
Peeples' REH complied with the procedural affidavit requirement, the Court further finds
the record is insufficient at this time to prove Mr. Peeples is likely to prevail at a hearing
on the merits on the issue of compensability.

1
  By making an on-the-record determination, the Court makes no decision as to the admissibility of the information
submitted in the case file absent an objection from a party. The Court notes in this case the parties did not raise any
objection to admissibility of any information in the file; therefore, the Court reviewed and considered the entire case
file in making its determination.
                                    History of Claim

       Mr. Peeples is a fifty-seven-year-old resident of Shelby County, Tennessee. (T.R.
1.) He worked as a floor finisher for Baptist Memorial Hospital-Memphis. !d. Mr.
Peeples alleged a work injury to his right knee. !d. Mr. Peeples stated in a recorded
statement taken by the workers' compensation carrier that on the date of injury he was
waiting on the floor to dry when his right leg just gave out. (Ex. 7 at 3.) Baptist denied
the claim stating, "Claim does not appear to be compensable. Not specific cause of
Ernest's right knee giving out." (Ex. 4.)

       Mr. Peeples filed a Petition for Benefit Determination (PBD)(T.R. 1.) Mr. Peeples
described the alleged injury in the PBD by stating, "Over years in the position as a floor
care employee the condition of my injury knee is in relationship of the job at Baptist
Hospital." !d. The parties did not resolve the disputed issues through mediation, and the
Mediation Specialist filed a DCN on August 13, 2015. (T.R. 2.)

      Mr. Peeples filed an REH on September 18, 2015. (T.R. 3.) In its response to Mr.
Peeples' REH, Baptist raised the issue that Mr. Peeples did not file the required
supporting affidavit in compliance with Tennessee Compilation Rules and Regulations
0800-02-21-.14(l)(a) (2015). (T.R. 4.) Baptist further contended that Mr. Peeples failed
to meet his burden of proving a compensable work injury to his knee in the course and
scope of his employment with Baptist. !d.

                       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); 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, 20 15). 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.

       In Hadzic v. Averitt Express, the Workers' Compensation Appeals Board
specifically addressed the need for supporting affidavits to an REH. Hadzic v. Averitt
Express, No. 2014-02-0664, 2015 TN Wrk. Comp. App. Bd. LEXIS 14, at *7-8 (Tenn.

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Workers' Comp. App. Bd. May 18, 2015). The Board cited Tennessee Compilation Rules
and Regulations 0800-02-21-.14(1) (a) (2015) as follows:

       ( 1) After a case is placed on the docket, if there is a dispute over temporary
       disability or medical benefits, either party may request an expediting [sic]
       hearing of the issue of temporary disability or medical benefits by
       indicating its desire for an expedited hearing on the request for hearing
       form or by a [sic] filing a separate motion. The indication of the desire for
       an expedited hearing on the request for hearing form shall serve as the
       motion for expedited hearing.
       (a) All motions for expedited hearing must be accompanied by affidavits
       and any other information demonstrating that the employee is entitled to
       temporary disability or medical benefits.

(Emphasis added.) !d. The Board held that the words "all" and "must" in the rule require
that an affidavit accompany every REH, without exception, for it to be valid. !d. at *10.

        The Board further determined the rule is more than a "mere technicality," but "is
intended to provide for the efficient and expedient resolution of disputed issues." !d.
(citing Tenn. Comp. R. & Regs. 0800-02-21-.01 (2015)). The Board held the regulation
was designed to encourage "litigants to be proactive from the outset in obtaining and
organizing evidence supporting the claim," as well as notifYing the other party of facts
being asserted, so they may "prepare for the hearing or otherwise respond as they are
expected to do." !d. at * 11.

        Had Mr. Peeples satisfied the procedural affidavit requirement, he still did not
submit any medical records or evidence in support of his claim from which the Court
could conclude that he is likely to prevail at a hearing on the merits on the issue of
compensability. The only documents submitted by Mr. Peeples were work status notes
from OrthoMemphis, a Baptist leave of absence request form and Aetna Insurance
Company explanation of benefits forms. While potentially relevant to the issue of
entitlement to temporary disability benefits, those documents do not support Mr. Peeples'
claim that he sustained a compensable work injury to his knee arising out of and in the
course and scope of his employment.

      In sum, the Court finds Mr. Peeples did not file the required affidavit or otherwise
come forward with medical proof or any evidence in support of his claim for medical and
temporary disability benefits. Accordingly, Mr. Peeples' request for medical and
temporary disability benefits is denied.




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  IT IS, THEREFORE, ORDERED as follows:

    1. Mr. Peeples' request for medical and temporary disability benefits is denied at this
       time.

   2. This matter is set for an Initial (Scheduling) Hearing on January 4, 2016 at 10 a.m.
      (CDT).


       ENTERED this the 5th day oa:ber, 2015.


                                          lhlk£~
                                  J udge Amber E. Luttrell
                                  Court of Workers' Compensation Claims


lnitial (Scheduling) Hearing:

      An Initial (Scheduling) Hearing has been set with Judge Amber E. Luttrell,
Court of Workers' Compensation Claims. You must call 901-543-2668 or toll-free at
855-543-5046 to participate.

       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:

   l. 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 fiJing 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

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   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,
   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
   three 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 three 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.




                                         5
                                               APPENDIX

The Court reviewed the following documents and designates these documents as the
Technical Record?

     1.   Petition for Benefit Determination (PBD), filed July 15, 2015
     2.   Dispute Certification Notice (DCN), filed August 13, 2015
     3.   Request for Expedited Hearing (REH), filed September 18, 2015
     4.   Employer's Response to REH
     5.   Employer's Position Statement in Response to PBD

The Court reviewed the following documents in reaching its decision and designates the
documents as Exhibits solely for ease of reference by the Court:

    1. OrthoMemphis work status notes, Baptist leave of absence request form, and
       Aetna Insurance Company Explanation ofBenefits forms (collective exhibit)
    2. C20 Employer First Report of Work Injury
    3. Baptist Employee Occurrence Report
    4. C23 Notice of Denial, dated March 13, 2015
    5. C41 Wage Statement
    6. Job Description of Floor Finisher
    7. Recorded statement transcript of Mr. Peeples, dated March 12, 2015




2
   The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as
allegations unless established by the evidence.


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                           CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Expedited Hearing Order
Denying Medical Benefits was sent to the following recipients by the following methods
of service on this the _th
                       5   day ofNovember, 2015.




Name                      Certified   Via        Via    Service sent to :
                           Mail       Fax       Email
Ernest Peeples,              X                   X      Emestgeeglesl @gmail.com;
Employee                                                1983 East Gladney Drive
                                                        Memphis, Tennessee 3 8114
J. Matthew Kirby, Esq.,                          X      mkirb:y(a).harrisshelton.com
Counsel for Employer




                                       Penny Shrum, Clerk of Court
                                       Court of Workers' Compensation Claims
                                       WC.CourtCierk@tn.gov




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