             IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                              AT KINGSPORT


Katherine Perrault                                        )    Docket No.: 2015-02-0210
            Employee,                                     )
v.                                                        )    State File Number: 51173/2015
                                                          )
Gem Care, Inc.                                            )    Judge Brian K. Addington
            Employer,                                     )
And,                                                      )
Technology Ins. Co.                                       )
            Insurance Carrier.                            )

       EXPEDITED HEARING ORDER DENYING REQUESTED BENEFITS


        This matter came before the undersigned Workers' Compensation Judge on the
Request for Expedited Hearing filed by Katherine Perrault on August 11, 2015. Ms.
Perrault claims she suffered a hernia, ruptured appendix, and hemorrhoids following
lifting at work. The central issue in this case is whether Ms. Perrault sustained a
compensable injury arising primarily out of and in the course and scope of her
employment. 1 For the reasons set forth below, the Court finds that Ms. Perrault failed to
present sufficient from which the Court can determine that she is likely to prevail at a
hearing on the merits.

                                               History of Claim

      Ms. Perrault, is a forty-six-year-old resident of Jefferson County, Tennessee.
(T.R. 1 at 1.) She testified that she started work for Gem Care as an end-of-the-line
unloader, on May 4, 2015. She quickly moved to seal-press operator.

        Ms. Perrault testified that when she made seals, she picked up a part from two feet
off the ground, lifted it to chest level, pressed in a seal, and then removed the part to a
pallet. She estimated parts weighed fifty pounds.

1
  Additional information regarding the technical record and exhibits admitted at the Expedited Hearing is attached to
this Order as an Appendix.

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       On June 8, 2015, Ms. Perrault suffered instant pain under her breastbone and felt
she needed to have a bowel movement immediately after lifting a part. She went to the
restroom and passed blood. She passed blood several more times that day, but finished
her shift with lifting help from other employees. She testified no one saw her accident,
and she did not report her injury that day. She did see her acting supervisor, but did not
feel comfortable reporting her issues to him. Gem Care requires an employee to
immediately report an injury. (Ex. 5 at 2.)

       Ms. Perrault testified she contacted Iris Jordan, on-site manager, on June 9, 2015,
and reported she bled and vomited during the evening. Ms. Jordan testified Ms. Perrault
called and reported only she had been vomiting during the night, but later texted she also
suffered rectal bleeding.

       Ms. Perrault sought medical treatment at Morristown-Hamblen Healthcare System
(MRS) on June 9, 2015. Ms. Perrault's main complaint was blood in her stools. (Ex. 2 at
3.) She suffered with this problem on and off for a year with "solid problems with
bleeding for the past 5 days." Id. She also reported pain in her entire abdominal area,
and nausea and vomiting for five days. Jd. She told the doctors when she lived in
Michigan, she had a history of hemorrhoids and a urinary tract infection. ld. Medical
records from Mackinac Island Medical Center only indicate Ms. Perrault suffered a
urinary tract infection in Michigan. (See Ex. 1 at 2.)

       Ms. Perrault consulted with Dr. Linas Adams on June 10, 2015, at MHS. (Ex. 2 at
6.) Ms. Perrault told Dr. Adams that she was hospitalized for blood in her stool five
years prior. Ms. Perrault and her husband also told Dr. Adams she had been passing
blood for a year. Id. Ms. Perrault detailed her family history to Dr. Adams, including
references to her birth mother and another relative and their ages at death due to colon
cancer. Id. She also told Dr. Adams, "[T]hat she has a weak stomach and occasionally
experiences nausea and vomiting at the drop of a hat." Id.

       MRS discharged Ms. Perrault on June 11, 2015, with a diagnosis of a hiatal hernia
and large, grade three hemorrhoids. Jd. at 1. The providers at MRS placed Ms. Perrault
off work for two weeks and recommended follow-up with both her primary care provider
and Dr. Adams. Id.

       On June 12, 2015, Ms. Perrault's husband called Ms. Jordan. Ms. Jordan told him
that she needed to speak to Ms. Perrault. (Ex. 9 at 2.) On June 15, 2015, Ms. Perrault
reported a work-related hernia and hemorrhoids to Ms. Jordan based on her impression of
what the doctor told her. Jd. Ms. Perrault told Ms. Jordan she did not know when the
hernia happened. Id. at 2-3.

      Ms. Perrault returned to the emergency room at a later date and required an
emergency appendectomy.

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        On June 29, 2015, Ms. Perrault saw Don Stanton, PA-C. Ms. Perrault reported she
lifted up to 125 lbs. /d. at 35. Ms. Perrault weighs approximately 147 lbs. /d. at 4. He
assessed bloody stool and hemorrhoids, although the rectal blood test was negative. See
!d., at 35-36.

       Ms. Perrault filed a Petition for Benefit Determination seeking additional medical
and temporary disability benefits. (T.R. 1 at 1.) The parties did not resolve the disputed
issues through mediation, and the Mediating Specialist filed a Dispute Certification
Notice. (T.R. 2.) Ms. Perrault filed a Request for Expedited Hearing, the Court heard the
matter on September 18, 20 15.

        Ms. Perrault asserted she suffered a compensable injury on June 8, 2015, while
lifting a part. She testified she never suffered a hernia, appendix problems, or bloody
stools prior to the incident in question. She claimed narcotic medications caused her to
misstate the length of her medical condition to her doctors, as she only suffered these
issues after June 8, 2015. Ms. Perrault requested past and on-going temporary disability
benefits and medical benefits for a hiatal hernia, appendectomy, and hemorrhoids. Ms.
Perrault has not worked since June 8, 2015.

      Ms. Perrault presented all of her medical records in a disc format at the Expedited
Hearing, including the records concerning her appendectomy. Since Ms. Perrault did not
provide these records to the Court and opposing party in advance of the Expedited
Hearing, the Court excluded the records. Ms. Perrault argued her need for the
appendectomy relates to the work-incident on June 8, 2015.

        Gem Care asserted Ms. Perrault suffered with long-term medical issues not related
to her work, and that she failed to present expert medical proof of a causal connection
between her medical conditions and her work. Gem Care weighed the items Ms. Perrault
lifted at work, and the heaviest weighed thirty-seven and one-half pounds. (Ex. 10 at 2.)

                              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); 2 Scott v. Integrity Staffing

2
  The Tennessee Workers' Compensation Appeals Board allows reliance on precedent from the Tennessee Supreme
Court "unless it is evident that the Supreme Court's decision or rationale relied on a remedial interpretation of pre-
July 1, 2014 statutes, that it relied on specific statutory language no longer contained in the Workers' Compensation
Law, and/or that it relied on an analysis that has since been addressed by the general assembly through statutory
amendments." McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Work. Comp. App. Bd.

                                                          3
Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn.
Workers' Comp. App. Bd. Aug. 18, 2015). 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,
20 15). 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.

       The Court recognizes an employer's obligations under Tennessee Code Annotated
section 50-6-204(a)(3)(A)(i) (2014), which requires that "in any case when the employee
has suffered an injury and expressed a need for medical care, the employer shall
designate a group of three (3) or more independent reputable physicians, surgeons,
chiropractors or specialty practice groups . . . from which the injured employee shall
select one (1) to be the treating physician." The Workers' Compensation Law places
great emphasis on the opinion of the panel-selected physician, whose determination
"shall be presumed correct on the issue of causation," rebuttable by a preponderance of
the evidence. Tenn. Code Ann.§ 50-6-102(13)(E) (2014).

        However, as the Workers' Compensation Appeals Board opined:

        [M]ere 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. If an employer
        chooses to deny the claim following its initial investigation, the employee
        must come forward with sufficient evidence from which the trial court can
        determine that the employee likely will prove a compensable "injury by
        accident" at a hearing on the merits in accordance with section 50-6-
        239(d)(l).

McCord, at *13-14.

       In the present case, no one saw the accident in question. Ms. Perrault did not
report her incident the day of occurrence, even though she saw a supervisor. Ms. Perrault
told her doctors that she previously suffered bloody stools and hemorrhoids from one to
five years prior. None of these dates correspond to the alleged date of injury. She also
suffered nausea and vomiting for days prior to the alleged incident. She stated the time
of injury she related to her doctor was incorrect due to narcotic pain medication.
However, the medical providers also detailed a history of family members, and their ages
at death, due to colon problems. She offered no explanation as to how this information
was correct, yet the length of her rectal bleeding and hemorrhoids was incorrect. She

LEXIS 6, *13 n.4 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).

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also grossly overestimated to her doctors the weight of the parts she lifted. The variations
in the extent and length of her prior medi ca l conditions and any possible connection to
her present alleged injury are too significant to ignore. See Woodlawn Mem. Park, Inc. v.
Keith, 70 S.W.3d 691, 697 (Tenn. 2002). Her testimony is insufficient to establish she
suffered a work-related injury.

       Further, the medical records do not reflect an opinion from a doctor that her
condition was work-related. The records indicate Ms. Perrault lifted items at work, but
do not state her work primarily caused her conditions. Gem Care acted reasonably in
refusing to provide medical or temporary disability benefits to Ms. Perrault.

        The Court finds Ms. Perrault has not come forward with sufficient evidence at this
time from which the Court can determine she is likely to succeed at a hearing on the
merits.


IT IS, THEREFORE, ORDERED as follows:

   1. Ms. Perrault's claim against Gem Care for the requested medical benefits and
      temporary disability benefits is denied.

   2. This matter is set for an Initial (Scheduling) Hearing on November 13, 2015, at
      2:00p.m. Eastern time.

       ENTERED this the 6th day of October, 2015.


                                        ~ ~Ad~
                                             ~
                                   Judge Brian K.
                                   Court of Workers' Compensation Claims

Initial (Scheduling) Hearing:

      A Scheduling Hearing has been set with Judge Brian K. Addington, Court of
Workers' Compensation Claims. You must call 865-594-6538 or toll-free at 855-
543-5044 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 Eastern Time (ET).




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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."

   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
      $75.00. 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
      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

                                             6
       any, with the Court Clerk within three business days of the filing ofthe 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.

                            CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Expedited Hearing Order
 Denying Requested Benefits was sent to the following recipients by the following
 methods of service on this the 6th day of October, 2015.


Name            Certified    First   Via     Fax    Via   Email Address
                Mail         Class   Fax     Number Email
                             Mail
William                                                 X       williamevansesq@gmail.com
Evans, Esq.
Joe Lynch,                                              X       jlynch@wimberlylawson.com
Esq.



                                           Penny Shrum, Clerk of Court
                                           Court of Workers' Compensation Claims
                                           W .Court lerk@tn.gov




                                             7
                                         APPENDIX

Exhibits:
   1. Medical records Mackinac Medical Center, certified August 25, 2015
   2. Medical records from MHS and Don Stanton, PA-C
   3. Wage Statement
   4. Training sign-in sheet
   5. Training slides
   6. First Report of Injury
   7. First Article Inspection sheets
   8. Affidavit--Katherine Perrault
   9. Affidavit--Iris Jordan
   10. Affidavit--Richard Gaylon

Technical record:i
   1. Petition for Benefit Determination, July 2, 2015
   2. Dispute Certification Notice, July 23, 2015
   3. Request for Expedited Hearing, August 5, 2015
   4. Employee's Expedited Hearing Brief, September 3, 2015
   5. Employer's Expedited Hearing Brief, September 14, 2015


i 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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