              TENNESSEE BUREAU OF WORKERS’ COMPENSATION
             IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                              AT NASHVILLE

MARY FRANCES VESTER,                                       )   Docket No. 2016-06-1427
         Employee,                                         )
v.                                                         )   State File No. 51488-2016
HOME HEALTH CARE OF MIDDLE                                 )
TENNESSEE, LLC,                                            )   Judge Joshua Davis Baker
         Employer,                                         )
and                                                        )
UNITED HEARTLAND,                                          )
         Insurer.                                          )

    EXPEDITED HEARING ORDER DENYING TEMPORARY DISABILITY AND
                        MEDICAL BENEFITS

       This matter came before the Court on November 1, 2016, on the Request for
Expedited Hearing filed by Mary Frances Vester pursuant to Tennessee Code Annotated
section 50-6-239 (2015). The present focus of this case is Ms. Vester’s entitlement to
temporary disability and medical benefits. The central legal issue is her likelihood of
success in proving the compensability of her injury at a trial on the merits. Home Health
Care of Middle Tennessee, LLC denied the claim because its records showed Ms. Vester
was not working on the date of the accident. Based on the proof presented at this time,
the Court finds Ms. Vester was not working for Home Health Care on the date of the
accident and holds she is unlikely to prevail at a hearing on the merits in proving the
compensability of her injury. Accordingly, the Court denies her request for temporary
disability and medical benefits.1

                                               History of Claim

       This case concerns an injury that Ms. Vester, a registered nurse, allegedly suffered
while providing home-based nursing services for Home Health Care. According to her
Petition for Benefit Determination (PBD), Ms. Vester suffered an injury on June 21,
2016, at the home of Anastasia Murray, located in Hartsville, Tennessee. She claimed to
have injured her cervical spine while carrying a forty-five-pound toddler, who suffered
from spina bifida, back and forth to the restroom over the course of two days. (T.R. 1.)
In an affidavit, Ms. Vester stated the accident occurred sometime during the week of June
20, but did not provide a specific date.

         At the hearing, the proof focused primarily on when the accident occurred. Ms.

1
 A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.
Vester repeatedly testified she injured herself on either June 20 or 21, a Monday or a
Tuesday. She further testified she reported the injury to Home Health Care on the day it
occurred, but Home Health Care refused to provide her a panel of physicians.

       Concerning these issues, Home Health Care presented the testimony of its human
resources manager, Kelly Thiede. First, Ms. Thiede testified that Ms. Vester had not
worked for Home Health Care on either June 20 or 21. According to a productivity
report from Home Health Care, Ms. Vester worked on June 15 and was then off work for
several weeks before returning on June 30 and July 1. (Ex. 7.) Ms. Vester testified she
was off from work because of her injury and returned as soon as she felt able. She also
maintained she was at work on June 20 and 21 and was paid for her time.

       Ms. Thiede further testified she did not know Ms. Vester allegedly suffered injury
at work until she met with her on July 7. Ms. Thiede stated she provided Ms. Vester a
panel of physicians at the meeting, but Ms. Vester refused to select a physician.
According to Ms. Thiede, instead of selecting a physician, Ms. Vester told her she would
treat with whomever she chose and “sue the company later to pay her debts.” A notation
from Ms. Vester on the Choice of Physician Form confirmed her desire not to receive
treatment under workers’ compensation. (Ex. 6.) Despite her testimony and the assertion
in her PBD that she did not receive a panel, Ms. Vester admitted she made the notation
on the panel form, but claimed she did so while under the influence of medication.

       Ms. Vester testified she had difficulty remembering the exact dates of events. She
blamed her lack of memory on medication she took for fibromyalgia and her difficult
working environment. Ms. Vester explained her work was difficult because she had to
travel long distances, from Bellevue to Hartsville, to work at the Murray home. She
additionally stated it was difficult to care for the child because of Ms. Murray’s demand
for additional services, such as cleaning the dishes and bathrooms. Despite her self-
proclaimed memory lapses, Ms. Vester vehemently maintained she suffered the injury on
June 20 or 21.

       As for reporting the injury, Ms. Vester testified she reported it on the day it
occurred. She explained she could not call her office from the Murray home because she
had no cell service, so she called the “on-call service” when she arrived home and said
she was hurt. Ms. Vester’s husband, Samuel Vester, corroborated her testimony so far as
confirming she called in to report the injury. Mr. Vester, however, also testified he could
not remember the exact date she made the call, but believed it was on a Monday or a
Tuesday.

       Ms. Vester argued she suffered an injury at work, and Home Health Care should
be required to pay for her medical care, and pay her temporary disability benefits. Home
Health Care argued Ms. Vester failed to carry her burden of proving she suffered an
injury in the course and scope of her employment and asked that the Court deny her
request for temporary disability and medical benefits.


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                       Findings of Fact and Conclusions of Law

       In determining whether to grant Ms. Vester relief, the Court must apply the
following legal principles. Ms. Vester bears the burden of proof on all prima facie
elements of her workers’ compensation claim. Tenn. Code Ann. § 50-6-239(c)(6)
(2015); see also Buchanan v. Carlex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp.
App. Bd. LEXIS 39, at *5 (Tenn. Workers’ Comp. App. Bd. Sept. 29, 2015). She need
not prove every element of 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- 9 (Tenn. Workers’
Comp. App. Bd. Mar. 27, 2015). At an expedited hearing, Ms. Vester has the burden to
come forward with sufficient evidence from which this Court can determine she is likely
to prevail at a hearing on the merits. Id.

       The central dispute concerns whether Ms. Vester’s injurious event occurred in the
course and scope of her employment for Home Health Care. “An injury occurs in the
course of employment if ‘it takes place within the period of the employment, at a place
where the employee reasonably may be, and while the employee is fulfilling work duties
or engaged in doing something incidental thereto.’” Hubble v. Dyer Nursing Home, 188
S.W.3d 525, 534 (Tenn. 2006) (citing Blankenship v. Am. Ordnance Sys., LLC, 164
S.W.3d 350, 354 (Tenn. 2005)).

        The Court finds Ms. Vester failed to carry her burden of proving she suffered an
injury in the course and scope of her employment with Home Health Care. Although she
testified the injury occurred on either June 20 or 21, and her testimony was somewhat
corroborated by Mr. Vester, she admitted having difficulty remembering dates.
Additionally, the weight of the remaining evidence, particularly Ms. Thiede’s testimony
and the productivity report, cast serious doubt on Ms. Vester’s credibility. Furthermore,
Ms. Vester stated in her affidavit and in-court testimony that she did not receive a panel
of physicians when she asked for one. This assertion proved untrue and casts further
doubt on her credibility.

       The Court, therefore, finds Ms. Vester was not at work for Home Health Care on
the date her injury allegedly occurred. Because she was not working for Home Health
Care at that time, her injury could not have occurred in the course and scope of her
employment. Accordingly, the Court holds that Ms. Vester is unlikely to prevail at a
hearing on the merits in proving she suffered a compensable workplace injury. For this
reason, the Court must deny her request for temporary disability and medical benefits.

IT IS, THEREFORE, ORDERED as follows:

   1. Ms. Vester’s claim for temporary disability and medical benefits is denied at this
      time.

   2. This matter is set for an Initial (Scheduling) Hearing on January 9, 2017, at 11:00
      a.m. (CDT).
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ENTERED THIS THE 9TH DAY OF NOVEMBER, 2016.



                                  ________________________________________
                                  Judge Joshua Davis Baker
                                  Court of Workers’ Compensation Claims

Initial Hearing:

An Initial (Scheduling) Hearing has been sent for January 9, 2017, at 11:00 a.m. (CST)
with Judge Joshua Davis Baker, Court of Workers’ Compensation Claims. You
must call 615-741-2113 or toll free at 855-874-0474 to participate in the Initial
Hearing.

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:

   1. 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 filing fee in the amount of
      $75.000. 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
      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.
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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
   five 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 five 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.




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                                                  APPENDIX

Exhibits:

      1. Medical records: TriStar Skyline Medical Center; Dr. Augustin Vitualla at
         Lakeview Wellness Clinic; Vanderbilt Sports Medicine; and, Dr. David L. Harrom
      2. Ms. Vester’s affidavit
      3. Samuel Vester’s affidavit
      4. Employer’s incident report form
      5. Wage Statement
      6. Physician panel
      7. Productivity report

Technical record:2

      1. Petition for Benefit Determination, filed August 1, 2016
      2. Dispute Certification Notice, filed September 28, 2016
      3. Request for Expedited Hearing, filed October 12, 2016
      4. Employer’s Motion to allow Rhonda Thornton to testify via telephone at
         Expedited Hearing, filed October 14, 2016
      5. Court’s Order granting request for Rhonda Thornton to testify by telephone 3




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.
3
    Home Health Care did not call Ms. Thornton as a witness.
                                                          6
                              CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the foregoing was sent to the
 following recipients by the following methods of service on this the 9th day of
 November, 2016.


Name                    Certified   Via     Via   Email Address
                        Mail        Fax     Email

Mary Frances Vester         X                 X     1205 Plymouth Avenue
                                                    Nashville, Tennessee 37216
                                                    astrofran@aol.com
Gordon Aulgur                                 X     gordon.aulgur@accidentfund.com



 _______________________________________
 Penny Shrum, Court Clerk
 Wc.courtclerk@tn.gov




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