                                                                                                FILED
                                                                                            February 6, 2015
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                   COURT OF WORKERS' COMPENSATION CLAIMS
                     DIVISION OF WORKERS' COMPENSATION

EMPLOYEE: Carol Griffis                               DOCKET#: 2014-06-0040
                                                      STATE FILE#: 70091-2014
EMPLOYER: Five Star Food Service                      DATE OF INJURY: August 21,2014

INSURANCE CARRIER: Key Risk
Management

           EXPEDITED HEARING ORDER DENYING MEDICAL BENEFITS

        THIS CAUSE came before the undersigned Workers' Compensation Judge upon the
Request for Expedited Hearing filed by Carol Griffis, Employee. Considering the positions of
the parties, the applicable law and all of the evidence submitted, the Court finds as follows:

        On December 12, 2014, Mr. Griffis filed a Request for Expedited Hearing with the
Tennessee Court of Workers' Compensation Claims, Division of Workers' Compensation,
pursuant to Tennessee Code Annotated section 50-6-239 to determine if Employer, Five Star
Food Service, Inc. ("Five Star"), is obligated to provide medical benefits. The undersigned
Workers' Compensation Judge conducted a telephonic Expedited Hearing on February 5, 2015.
Mr. Griffis participated, prose. Attorney Michael Jones represented Five Star and its Carrier.
After considering the parties' arguments, the applicable law, the technical record, and all the
testimony and evidence introduced at the Expedited Hearing, the Court concludes that Mr.
Griffis is not entitled to the medical benefits requested at this time.

                                           ANALYSIS

                                              Issue

       Whether Mr. Griffis presented sufficient evidence to establish that his alleged injury
arose primarily out of and in the course and scope of his employment.

                                      Evidence Submitted

       At the hearing, the Court received and considered the following evidence:

       Exhibit 1: Medical bill, Two Rivers Emergency Phys., PLLC, September 25, 2014
       Exhibit 2: Medical bill, Summit Medical Center, September 4, 2014
       Exhibit 3: Medical records, Concentra Medical Centers, August 22-29, 2014
       Exhibit 4: After Care instructions, Summit Medical Center, August 21, 2014.

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        In addition, the Court designates the pleadings below as the technical record:

        •   Petition for Benefit Determination, October 8, 2014
        •   Dispute Certification Notice, December 3, 2014
        •   Request for Expedited Hearing, December 12, 2014.

       The witnesses were Mr. Griffis and Robert Landon Martin, Five Star's corporate
representative and Director of Risk Management.

                                        History of Claim

        Mr. Griffis is a 35-year-old resident of Wilson County, Tennessee. He testified that he
injured his back at work on August 21, 2014, although he is unsure how or when it happened.
Later that day, Mr. Griffis went to the emergency room at Summit Medical Center, thinking he
may have suffered a heart attack. He testified, without objection, that the emergency room
physician, Dr. Cori McKean, ruled out heart attack. She informed him that he experienced a
"muscular spasm," and that this type of injury is similar to when a person works out and does not
feel soreness or pain until 24-48 hours later. Mr. Griffis' job is strenuous. He works as a route
sales and delivery person for Five Star. He testified that his supervisors have commented that his
route requires an employee who is physically fit. Mr. Griffis goes up and down stairs, pushing,
pulling and lifting heavy objects all day long, so that in his opinion the type of injury he
sustained could easily occur.

        Dr. McKean discharged Mr. Griffis that same day. Exhibit 4, the "After Care
Instructions" state, "The cause of your pain is not yet known." On cross-examination, Mr.
Griffis testified he read that statement when he was discharged and disagreed with it because Dr.
McKean told him it was "chest pain entering into my back." The form additionally indicates a
prescription for Ibuprofen and Flexeril. Mr. Griffis testified, without objection, that these
prescriptions treated a muscle spasm. He admitted he received no written document confirming
that he experienced a back spasm.

       Mr. Griffis received authorized care from Dr. William Dutton at Concentra Medical
Centers from August 22 through 29, 2014 (Exhibit 3). He also received physical therapy. The
physical therapy records were not provided. Dr. Dutton diagnosed "thoracic sprain" and placed
Mr. Griffis at maximum medical improvement (MMI) on August 29, 2014. Five Star paid for
Dr. Dutton's services and physical therapy before denying the claim.

       Five Star and its Carrier ultimately denied the claim. Mr. Griffis received medical bills in
the amount of $240.12 from Two Rivers Emergency Physicians (Exhibit 1) and $1,597.60 from
Summit Medical Center (Exhibit 2).

       On cross-examination, Mr. Griffis testified that he teaches and practices martial arts twice
per week. On re-direct, he explained that back injuries are very rare with the type of martial arts
he practices, Tae Kwon Do, as compared to the frequency of lower body and in particular leg
mJunes.



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        Mr. Martin testified that he handles workers' compensation matters for Five Star. He
stated that Mr. Griffis did not indicate a cause for the condition he alleges is work-related. On
cross-examination, Mr. Martin acknowledged receipt of a copy of the After Care Instructions
(Exhibit 4).

                                    Employee's Contentions

        Mr. Griffis contends he injured his back at some point on August 21, 2014. He is an
honest, hard-working employee who simply wants to be made whole from bills he received
relative to a work injury. The type of injury he sustained is consistent with the type of duties he
performs and the physical nature of his job. Mr. Griffis seeks an order that Five Star and/or its
Carrier pay both medical bills from the emergency room visit.

                                    Employer's Contentions

        Five Star contends the injury is not work-related. Five Star provided authorized care
until obtaining the emergency room records and discovering that the etiology of Mr. Griffis'
condition is unknown and it is thus not work-related. Mr. Griffis failed to satisfy his burden to
show that the medical evidence establishes causation and preponderates in his favor. As a result,
the injury did not arise primarily out of and in the course and scope of employment. Therefore,
Five Star properly denied the claim and declined to pay for unauthorized treatment.

                           Findings of Fact and Conclusions of Law

                                      Standard Applied

        When determining whether to award benefits, the Judge must decide whether the moving
party is likely to succeed on the merits at trial given the information available. See generally,
McCall v. Nat'! Health Care Corp., 100 S.W. 3d 209, 214 (Tenn. 2003). In a workers'
compensation action, pursuant to Tennessee Code Annotated section 50-6-239(c)(6) (2014), the
employee shall bear the burden of proving each and every element of the claim by a
preponderance of the evidence. The employee must show the injury arose primarily out of and
in the course and scope of employment. Tenn. Code Ann.§ 50-6-102(13) (2014).

                                      Factual Findings

        On August 21, 2014, Mr. Griffis experienced chest and back pain. He does not know
what specifically happened to cause his pain that day. Mr. Griffis performs job duties that are
physically demanding. He sought medical treatment on his own at Summit Medical Center, for
what he believed to be heart attack symptoms. Mr. Griffis received two bills from the ER visit,
in the amounts of $240.12 and $1,597 .60. The Summit Medical Center bill (Exhibit 2) indicates
that the charges are related to heart attack-type treatment. Upon his discharge, Mr. Griffis
received After Care Instructions that state that the cause of his pain is unknown.

      Mr. Griffis received authorized care from Concentra on August 22 through 29, 2014. Dr.
Dutton diagnosed thoracic strain and placed Mr. Griffis at MMI on August 29, 2014. The


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Concentra records do not state that the injury is work-related. Five Star denied the claim and
declined to pay for unauthorized care.

                                 Application ofLaw to Facts

       The issue in this case is whether Mr. Griffis presented sufficient evidence to prove he
suffered a compensable injury. Tennessee Code Annotated Section 50-6- 102(13) provides as
follows:

               "Injury" or "personal injury" mean an injury by accident ... ,
               provided, that:
               (A) An injury is "accidental" only if the injury is caused by a
               specific incident, or set of incidents, arising primarily out of and in
               the course and scope of employment, and is identifiable by time
               and place of occurrence ... ;
               (B) An injury "arises primarily out of and in the course and scope
               of employment" only if it has been shown by a preponderance of
               the evidence that the employment contributed more than fifty
               percent (50%) in causing the injury, considering all causes;
               (C) An injury causes death, disablement or the need for medical
               treatment only if it has been shown to a reasonable degree of
               medical certainty that it contributed more than fifty percent (50%)
               in causing death, disablement or need for medical treatment,
               considering all causes.

Tenn. Code Ann.§ 50-6-102(13)(A)-(C) (2014).

        In Tindall v. Waring Park Ass'n, 725 S.W.2d 935, 937-938 (Tenn. 1987), the Tennessee
Supreme Court defined the causal connection required before an injury will be held compensable
under the workers' compensation law. The Court opined that causal connection refers to cause
in the sense that the accident had its origin in the hazards to which the employment exposed the
employee while doing his work. !d. at 937. The mere presence at the place of injury because of
the employment will not result in the injury being considered as arising out of the employment.
Thornton v. RCA Serv. Co., 221 S.W.2d 954, 955 (Tenn. 1949). In all but the most simple and
obvious of cases, an employee must prove causation of his injury by expert medical proof.
Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn. 1991).

        In this case, Mr. Griffis did not describe a specific incident or set of incidents that took
place at work to cause his injury, other than to describe the physical nature of his job - pushing,
pulling, and carrying heavy objects, sometimes up and down stairs -- and his daily, earnest
attempts to perform at his best. He did not describe with any specificity what he lifted; what
time it happened, other than the day; or if other workers observed his injury. The statute requires
an employee to specify the incident or series of incidents that cause an injury, but Mr. Griffis
failed to do so. Further, the After Care Instructions from Summit Medical Center do not state
that the injury is work-related. Rather, they state that the cause of his pain is unknown.



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       The Court finds Mr. Griffis to be a credible witness. He gave the Court no reason to
doubt that he discussed the etiology of his symptoms with Dr. McKean, who perhaps verbally
conveyed an opinion or impression that the injury is work-related. However, the written
evidence does not support the conclusion that it is, in fact, her opinion to a reasonable degree of
medical certainty that it is more than fifty percent (50%) likely that the injury arose primarily out
of and in the course and scope of his employment. Likewise, the Concentra records lack any
notation that the injury is work-related. The only evidence for this Court regarding causation is
Mr. Griffis' testimony of his lay opinion. This is not a simple and obvious case that would
preclude the need for expert medical proof. Thus, he has not satisfied his burden under the
McCall standard that his injury arose primarily out of and in the course and scope of
employment.

  IT IS, THEREFORE, ORDERED as follows:

    1. Mr. Griffis' claim against Five Star and its workers' compensation carrier for the
       requested medical benefits is denied on the grounds of compensability. This is not a final
       order.

   2. This matter is set for Initial Hearing on March 5, 2015, at 9:00a.m.

       ENTERED this the 61h day of February, 2015.



                                              C ief Judge Ketme
                                              Tennessee Court of Workers'
                                              Compensation Claims


Initial Hearing:

       An Initial Hearing has been set with Chief Judge Kenneth M. Switzer, Court of
Workers Compensation. You must dial in at 615-532-9552 or 866-943-0025 toll free at to
participate in your scheduled conference.
        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:

    I. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal".


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       2. File the completed form with the Court Clerk within seven (7) business days of the date
          the Expedited Hearing Order was entered by the Workers' Compensation Judge.

       3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.

       4. 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 (10) calendar days of the filing of the Expedited Hearing Notice of
          Appeal. Alternatively, the parties may file a statement of the evidence within ten (10)
          calendar days of the filing of the Expedited Hearing Notice of Appeal. The statement of
          the evidence must be approved by the Judge before the record is submitted to the Clerk of
          the Appeals Board.

       5. If the appellant elects to file a position statement in support of the interlocutory appeal,
          the appealing party shall file such position statement with the Court Clerk within three (3)
          business days of the filing of the Expedited Hearing Notice of Appeal, specifying the
          issues presented for review and including any argument in support thereof. If the
          appellee elects to file a response in opposition to the interlocutory appeal, appellee shall
          do so within three (3) business days of the filing of the appellant' s position statement.

                                     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 6th day ofFebruary, 2015.


Name                     Certified   First    Via   Fax        Via     Email Address
                         Mail        Class    Fax   Number     Email
                                     Mail
 Carol     Griffis,                                            X       Mastergriffis597 (a)yahoo.com
Employee
 Michael    Jones,                                             X       Mjones(ti)wimberlylawson.com
Employer/Carrier'
s attorney




                                                Clerk, Court of Workers' Compensation Claims




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