             TENNESSEE BUREAU OF WORKERS' COMEPNSATION
            IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                             AT NASHVILLE

Kim ala Petty,                                      )   Docket No. 2017-06-1259
             Employee,                              )
v.                                                  )
Progress, Inc.,                                     )   State File No. 44610-2016
             Employer,                              )
And                                                 )
United Heartland Ins. Co.,                          )   Judge Kenneth M. Switzer
             Carrier.                               )


        EXPEDITED HEARING ORDER DENYING REQUESTED RELIEF


       This case came before the Court on December 4, 2017, for an expedited hearing.
Kimala Petty seeks medical and temporary disability benefits for an alleged work injury.
Progress, Inc. argued that her claim is time-barred. 1 The Court agrees and denies her
requests but refers the case to the Penalty Unit for investigation regarding whether
Progress paid for authorized care.

                                         History of Claim

        Ms. Petty works for Progress as a live-in companion caring for two disabled
clients. On June 9, 2016, she rose at 6:00 a.m., clocked in and assisted them with
showering and dressing, including changing a diaper. Afterward, Ms. Petty entered a
shower, as she had done while clocked in for several years. As she stepped in, "both legs
went opposite ways." Ms. Petty fell, injuring her back and knee.

       Progress offered a panel, and Ms. Petty chose Concentra. She saw providers on
June 10 and June 14. Meanwhile, the carrier investigated the claim and issued a Notice
of Denial on June 17 asserting the injury occurred while performing non-work-related
duties. Ms. Petty continued treatment using her private health insurance. The carrier
1
  According to the Dispute Certification Notice, Progress also contests the compensability of the claim,
asserting "course and scope of employment" and "personal comfort." However, because the Court holds
that the claim is time-barred, it need not decide this issue at this time.

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paid for the June 14 visit on June 30 but offered no proof of paying for the June 10 visit.
Ms. Petty testified that she received a bill in January 2017 for the June 10 visit, which
remains unpaid. 2 She visited the Bureau of Workers' Compensation at some point after
the denial, where someone" told her she had "a year from the date of the last claim being
paid" to file her petition. Ms. Petty received paperwork at that visit but did not file her
Petition for Benefit Determination until July 10, 2017, more than a year since the last
paid medical expense. On cross-examination Ms. Petty admitted that she incorrectly
thought that the injury occurred in August.

                           Findings of Fact and Conclusions of Law

       Ms. Petty has the burden to present sufficient evidence from which this Court can
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 *7 -8, 9 (Mar. 27, 20 15).
Specifically, Ms. Petty bears the burden to show that she timely filed her claim. The
Workers' Compensation Law provides:

        In instances when the employer has voluntarily paid workers'
        compensation benefits, within one (1) year following the accident resulting
        in injury, the right to compensation is forever barred, unless a petition for
        benefit determination is filed with the bureau on a form prescribed by the
        administrator within one (1) year from the latter of the date of the last
        authorized treatment or the time the employer ceased to make payments of
        compensation[]

Tenn. Code Ann.§ 50-6-203(b)(2) (2017) (emphasis added).

       Here, the Court finds authorized treatment at Concentra occurred on June 10 and
14. Progress voluntarily paid for the June 14 visit on June 30, 2016, and Ms. Petty filed
her Petition for Benefit Determination on July 10,2017. Applying these facts to the law,
the Court finds Ms. Petty failed to file her Petition within one year after Progress ceased
making payments of compensation. The fact that the June 10 bill likely remains unpaid
does not, as a matter of law, extend the statute of limitations.

       Ms. Petty presented as a credible witness. The Court found her believable in all
aspects of her testimony: she appeared calm, at ease, self-assured, steady, confident,
forthcoming, reasonable and honest. See Kelly v. Kelly, 445 S.W.3d 685, 694-695 (Tenn.

2
  Over Progress' hearsay and relevancy objections, the Court admitted into evidence invoices as Exhibits
10 and 11. The Court admitted them because they ha e a tendency to make it more probable that Ms.
Petty learned of the possibility of outstanding sums for care related to the fall, which is a fact of
consequence to the determination of this action at this time. Further, the Court is not accepting them for
the truth of the matter asserted. Progress also objected to the admissibility of Exhibit 12, a past-due
notice, on hearsay grounds. The Court reserved ruling at the hearing but now sustains the objection.
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2014 ). She credibly testified she received invoices for the authorized treatment as late as
January 2017. Ms. Petty asserted that because she learned in January 2017 of potentially
outstanding sums for her work-injury treatment, the statute of limitations began running
from that date. However, she cited no legal authority for this assertion, and the Court
likewise located none. Thus, the Court must hold that the statute of limitations expired
on June 30, 2017, and Ms. Petty's claim is time-barred.

                                     Penalty Referral

        Once the statute expired, this Court's authority to order that Progress pay any
unpaid sums for authorized care also terminated. See Tenn. Code Ann. § 50-6-
204(a)(l)(A) (The employer shall furnish "free of charge to the employee" medical
treatment made reasonably necessary by the work accident.). Tennessee Compilation
Rules and Regulations 0800-2-14.07(1) (1999) provides that "[a]ll medical costs owed
under the Tennessee Workers' Compensation Law shall be paid within forty-five (45)
days of receipt of bill or invoice." Based on Ms. Petty's credible testimony, the Court
refers this case to the Penalty Program to investigate whether Progress fully paid for
authorized care. See Tenn. Comp. R. & Regs. 0800-02-24-.03 ("'[A]ny [Bureau]
employee may refer any person or entity to the penalty program for the assessment of a
civil penalty whenever the referring employee believes that there may have been a
violation of the [Bureau's] mles or the Tennessee Workers' Compensation Act.").

      IT IS, THEREFORE, ORDERED:

   1. Ms. Petty's requests for medical and temporary disability benefits are denied at
      this time.

   2. The Court refers the case to the Penalty Unit.

   3. This case is set for a scheduling hearing on February 5, 2018, at 10:00 a.m. You
      must call 615-532-9552 or toll-free at 866-943-0025 to participate in the hearing.
      Failure to call may result in a determination of the issues without your further
      participation.

                                   ENTERED December 6, 2017.




                                   Court of Workers' CompensatioJV



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                                             APPENDIX

Evidence:
   1. Affidavit of Kimala Petty
   2. Affidavit of Gayle Seard Brown
   3. Affidavit of Carol D. Page
   4. Affidavit of Elaine Franklin
   5. Declaration of Rhonda Thornton and exhibits
   6. Medical records: Premier Radiology, Select Physical Therapy, Concentra
   7. Deposition ofKimala Petty-excerpts
   8. Choice of Physician form
   9. Notice of Denial
   10. Invoice
   11. Invoice
   12. Past-due notice (Identification only)
   13. Petition for Benefit Determination
   14. Complete deposition transcript3

Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing
   4. Employer's Pre-Hearing Statement
   5. Pre-Expedited Hearing Statement of Employer and Insurer




3
  The Court inadvertently referred to the transcript as Exhibit 13 during the hearing but now corrects the
record to reflect it as Exhibit 14.

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                             CERTIFICATE OF SERVICE

        I certify that a copy of the Expedited Hearing Order was sent to these recipients by
the following methods of service on December 6, 2017.

 Name                     Certified     Via        Via    Sent to:
                           Mail         Fax       Email
Kimala Petty, self-          X                     X      3050 Richmond Hill Dr.,
represented                                               Nashville, TN 37207,
Employee                                                  kimaladoetty@y_ahoo.com
Cole Stinson,                                      X      Cole.stinson@accidentfund.com
Employer's attorney




                                                          Clerk of Court




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