                                                                                                  FILED
                                                                                                 July 19, 2017
                                                                                            TN COURT OF
                                                                                        WORKERS’ COMPENSATION
                                                                                               CLAIMS
                                                                                             Time 2:08 PM
                 TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                                 AT MEMPHIS

Cassandra Greene,                                          )   Docket No.: 2017-08-0069
           Employee,                                       )
v.                                                         )   State File No.: 4596-2017
                                                           )
Old Dominion Freight Line, Inc.,                           )   Judge Deana Seymour
           Employer.                                       )


                                    EXPEDITED HEARING ORDER


        This case came before the undersigned Workers’ Compensation Judge on June 28,
2017, on Ms. Greene’s Request for Expedited Hearing. The central legal issues are
whether Ms. Greene provided adequate notice of a mental injury related to her witnessing
a gunfight while working, and if so, whether she is entitled to medical and temporary
disability benefits. For the following reasons, the Court holds Ms. Greene demonstrated
she is likely to prevail at a hearing on the merits in establishing that she provided legally-
sufficient notice to Old Dominion; thus, she is entitled to medical benefits. However, she
has not shown entitlement to temporary disability benefits at this time.

                                                History of Claim

       Ms. Greene worked as a line haul truck driver for Old Dominion on March 14,
2016, when she witnessed a shoot-out in Georgia between the operators of two vehicles
traveling next to the truck she and her husband were co-driving to Texas. The driver of
one of the vehicles died.1

       Ms. Greene immediately reported the incident to an Old Dominion dispatcher,
who instructed her to drive on to Texas. She continued to work for Old Dominion and
began to experience insomnia, paranoia, and anxiety. Ms. Greene promptly asked for
assistance from several members of Old Dominion management, including her direct
supervisor, Carl; a human resources representative, Mike Ferrell; and another manager,

1
    Throughout the hearing, Ms. Greene referred to the incident she witnessed as “the murder.”

                                                           1
Sherwin. To counter this assertion, Old Dominion offered numerous affidavits into
evidence indicating that Ms. Greene did not report a work injury.2 However, it did not
submit affidavits from Carl, Mr. Ferrell, or Sherwin.

       On May 22, Ms. Greene met with Mr. Ferrell and asked him for help in dealing
with the problems she experienced following the incident. Mr. Ferrell referred Ms.
Greene to the Employee Assistance Program (EAP) and told her to apply for short-term
disability benefits.

       Through Old Dominion’s EAP, Ms. Greene began therapy with a licensed clinical
social worker, Mary Beth Wingfield, who referred her to a physician for medication
management. As directed, Ms. Greene saw her primary care physician, Dr. Alisha
Conway. Dr. Conway diagnosed her with post-traumatic stress disorder, panic attacks,
insomnia, and anxiety, and referred her to a therapist for counseling and to a psychiatrist
for more specialized treatment. It is unclear whether Ms. Greene received psychiatric
treatment.

       Ms. Greene asked the Court to order Old Dominion to provide medical and
temporary disability benefits for her mental injury. In the alternative, she asked for a
panel of physicians from which she could select an authorized physician to evaluate and
treat her. Old Dominion asked the Court to deny Ms. Greene’s request for benefits, as
she failed to provide adequate notice of a work injury and failed to prove that she
sustained a work-related mental injury.

                             Findings of Fact and Conclusions of Law

                                             Standard Applied

       To grant the relief Ms. Greene seeks, the Court must apply the following legal
principles. Ms. Greene, as the employee, bears the burden of proof on the essential
elements of her claim. Scott v. Integrity Staffing Solutions, 2015 TN Wrk. Comp. App.
Bd. LEXIS 24, at *6 (Aug. 18, 2015). She does not have to prove every element of her
claim by a preponderance of the evidence. Rather, Ms. Greene must present sufficient
evidence from which this Court could determine she is likely to prevail at a hearing on
the merits. McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, at *9 (Mar. 27, 2015).




2
 Old Dominion offered the affidavits of Ken Bence, Johnny Stricklin, Tim Wilkes, Steve Merritt, Jason Gordon,
James “Kirk” Rainwater, and Katrena Parker. According to these affidavits, Old Dominion did not receive notice of
Ms. Greene’s alleged injury until after she filed her Petition for Benefit Determination in January 2017.

                                                       2
                                          Notice

       Old Dominion insisted that Ms. Greene failed to provide adequate notice of her
injury. For the following reasons, this Court respectfully disagrees.

       The Workers’ Compensation Law requires “every injured employee” to
“immediately upon the occurrence of an injury, or as soon thereafter as is reasonable and
practicable” give notice of the injury to the employer and, if the employee fails to do so,
“no compensation shall be payable.” Tenn. Code Ann. § 50-6-201(a) (2016). The notice
must “state in plain and simple language . . . the time, place, nature, and cause of the
accident resulting in the injury.” Id. at § 50-6-201(b). When the employer raises lack of
notice as a defense, the burden shifts to the employee to show that notice was given, the
employer had actual notice, or failure to give notice was reasonable under the
circumstances. Hosford v. Red Rover Preschool, 2014 TN Wrk. Comp. App. Bd. LEXIS
1, at *15 (Oct. 2, 2014). The Workers’ Compensation Appeals Board explained that the
notice requirement “exists so that an employer will have an opportunity to make a timely
investigation of the facts while still readily accessible, and to enable the employer to
provide timely and proper treatment for an injured employee.” Id.

        Here, the Court finds the evidence regarding notice weighs in favor of Ms. Greene.
Ms. Greene testified unequivocally that she reported the incident to Old Dominion’s
dispatcher immediately after it occurred. She testified convincingly and without
hesitation regarding the actual logistics and time of the call. The Court accepts her
testimony as credible and finds it overcomes the affidavits of the Old Dominion
employees, whom Ms. Greene admitted she did not speak with about this incident.
Rather, she told other Old Dominion management employees that she had witnessed a
murder and needed help. These individuals included her immediate supervisor, human
resource manager, and dispatchers. After receiving notice, the human resource manager
referred Ms. Greene to EAP for counseling. For these reasons, the Court concludes Ms.
Greene sufficiently demonstrated that she is likely to prevail at a hearing on the merits in
establishing she gave timely notice of the shooting incident to Old Dominion.

                                        Causation

      Having found adequate notice, the Court turns to Old Dominion’s next defense,
lack of causation. The Court notes that an employee does not have to prove
compensability to activate the employer’s obligation to provide a panel of physicians
from which the employee may choose an authorized physician. See McCord, at *6. In
McCord, the Appeals Board noted:

       [A] contrary rule would require many injured workers to seek out, obtain
       and pay for a medical evaluation or treatment before his or her employer
       would have any obligation to provide medical benefits. The delays

                                             3
         inherent in such an approach, not to mention the cost barrier for many
         workers, would be inconsistent with a fair, expeditious, and efficient
         workers’ compensation system.

Id. at *9-10. In striking a balance of fairness and expediency between the parties, the
Appeals Board further noted that “mere notice of an alleged workplace accident, in and
of itself, does not trigger an employer’s duty to provide medical benefits in every case,
without regard to the particular circumstances presented.” Id. at *14. Further, at an
expedited hearing, an employee need not establish the compensability of his or her claim
by a preponderance of the evidence. Rather where the employee comes forward with
sufficient evidence to support that a work event resulted in injury, that evidence may also
support an order compelling an employer to provide a panel. See Lewis v. Molly Maid, et
al., 2016 TN Wrk. Comp. App. Bd. LEXIS 19, at *8-9 (Apr. 20, 2016).

       Upon careful application of this authority to the facts of this case, the Court holds
that Ms. Greene presented sufficient evidence demonstrating she is likely to prevail at a
hearing on the merits that she is entitled to a panel of psychiatrists. Ms. Greene reported
to Old Dominion a specific incident, which occurred at a specific time, while she worked
for Old Dominion. She notified Old Dominion’s human resource manager, who referred
her to EAP for help with the mental issues she told him she experienced after this
incident.

                              Temporary Disability Benefits

        To establish entitlement to temporary disability benefits, Ms. Greene must show
(1) a partial or total disability from working due to a compensable injury, (2) a causal
connection between the injury and her inability to work, and (3) the duration of that
period of disability. Jones v. Crencor Leasing and Sales, 2015 TN Wrk. Comp. App. Bd.
LEXIS 48, at *7 (Dec. 11, 2015). Ms. Greene did not introduce any evidence showing
that a physician kept her off work, or placed her under restrictions, due to a work-related
condition. While counseling and therapy notes suggest her non-physician providers may
have recommended she not work, there is no medical proof of disability. Thus, at this
time, Ms. Greene has not come forward with evidence to show entitlement to temporary
disability benefits.

IT IS, THEREFORE, ORDERED as follows:

   1. Old Dominion or its workers’ compensation carrier shall provide Ms. Greene a
      panel of psychiatrists from which she may choose an authorized physician for
      treatment pursuant to Tennessee Code Annotated Section 50-6-204 (2016).

   2. Ms. Greene’s request for temporary disability benefits is denied at this time.


                                             4
3. This matter is set for a Scheduling Hearing on July 31, 2017, at 11:30 a.m.
   Central Standard Time. The parties must call (toll-free) 866-943-0014 to
   participate in the Hearing. Failure to call may result in a determination of the
   issues without the parties’ 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)
   (2016). 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 may 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 this the 19th day of July, 2017.



                               _____________________________________
                               JUDGE DEANA SEYMOUR
                               Court of Workers’ Compensation Claims




                                         5
                                      APPENDIX

Exhibits:
   1. Affidavit of Cassandra Greene
   2. Affidavit of Ken Bence
   3. Affidavit of Johnny Stricklin
   4. Affidavit of Tim Wilkes
   5. Affidavit of Steve Merritt
   6. Affidavit of Jason Gordon
   7. Affidavit of James “Kirk” Rainwater
   8. Affidavit of Katrena Parker
   9. Line Haul Drivers’ Job Description
   10. Statements related to short-term disability payments made by Reliance Standard
       Life Insurance Co.
   11. Form C20 Employer’s First Report of Work Injury or Illness
   12. Form C-23 Notice of Denial of Claim for Compensation
   13. Counseling notes from Christian Family Counseling
   14. Records related to Ms. Greene’s therapy at The Transformation Center with Jill
       Hampton
   15. Medical records from Dr. Alisha Conway
   16. Application for Employment
   17. Driver’s Handbook acknowledgment, dated January 24, 2012
   18. Driver’s Handbook acknowledgment, dated March 11, 205
   19. Excerpts from Driver’s Handbook
   20. Equal Opportunity Notice
   21. Short-Term Disability paperwork

Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing and attached affidavit
   4. Memorandum of Law in Support of Old Dominion Freight Line, Inc.’s Position
      that Employee’s Claim Should be Denied and Dismissed with attachment
   5. Employee’s Pre-Hearing Memorandum with attachments

       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.




                                            6
                            CERTIFICATE OF SERVICE

        I certify that a true and correct copy of the Expedited Hearing Order was sent to
the following recipients by the following methods of service on this the 19th day of July,
2017.

 Name                       Certified Via       Via      Service sent to:
                            Mail      Fax       Email
 Laura Smittick,                                  X      laura@darrelloneal.com
 Employee’s Counsel
 Rockforde King,                                   X     rking@emlaw.com
 Employer’s Counsel



                                         _________________________________
                                         Penny Shrum, Clerk of Court
                                         Court of Workers’ Compensation Claims
                                         WC.CourtClerk@tn.gov




                                            7
