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

    DONNA WILHITE,                                         )    Docket No. 2016-06-0414
            Employee,                                      )
    v.                                                     )    State File No. 19556-2016
                                                           )
    LOWES MILLWORKS,                                       )    Judge Joshua Davis Baker
            Employer.                                      )

                                   EXPEDITED HEARING ORDER
                                     FOR MEDICAL BENEFITS

       This matter came before the Court on December 15, 2016, upon the Request for
Expedited Hearing filed by Donna Wilhite. The present focus of this case is Ms.
Wilhite’s entitlement to medical benefits and temporary disability benefits. For the
reasons set forth below, the Court holds Ms. Wilhite will likely succeed at a hearing on
the merits in proving her entitlement to medical benefits, and orders Lowes Millworks to
provide those benefits. The Court also holds Ms. Wilhite is unlikely to succeed at a
hearing on the merits in her claim for temporary disability benefits and denies her request
for those benefits.1

                                               History of Claim

       This case concerns an injury Ms. Wilhite allegedly suffered to her right-ring finger
on September 19, 2015, while staining a door on the production line at Lowes. Ms.
Wilhite testified, as she stained doors during her weekend shift, she experienced a severe
cramp in her hand, and her right-ring finger became difficult to bend. Ms. Wilhite said
she reported the condition to her supervisor who “shrugged his shoulders and walked
off.” She continued to work, and her finger began to swell. She took an Ace bandage
from the first-aid kit, wrapped her finger and continued working. Ms. Wilhite reported
the condition to her “team-lead” at the end of her shift and applied ice to her finger at
home.




1
 A complete listing of exhibits and the technical record admitted at the Expedited Hearing is attached to this Order
as an appendix.
       Ms. Wilhite returned to work the following day. By the end of this shift, her
finger had swollen considerably and turned purple. She again reported her condition to
her supervisor and team-lead, but “nothing was documented or done about it.” At the end
of the shift, a coworker, Marty Lamborn, cut a ring off her finger with a pair of tin snips.
(Ex. 2, 3.) The swelling subsided as well as the discoloration, but the pain continued.

       Ms. Wilhite did not receive any medical treatment from Lowes and went to an
orthopedic doctor on September 28, utilizing her private insurance for payment. At that
point, her finger had become “stuck” in a bent position with the tip touching the palm of
her right hand. She received a Cortisone shot in the base of the right-ring finger, which
provided some temporary relief.

       Approximately six months later, Ms. Wilhite experienced the same symptoms in
her right-ring finger while working on the production line at Lowes. She went “into the
office” at that time and told Human Resources she had suffered a previous injury to her
finger, which was not documented. At that time, Lowes contacted its third-party
administrator, Sedgwick CMS. Lowes also provided Ms. Wilhite a panel of physicians.
She selected a physician from the panel, but testified Lowes told her she would need to
wait for approval before seeing the doctor.

       Sedgwick contacted Ms. Wilhite, and she provided three oral statements detailing
the incident and her injury. Approximately one week later, a Sedgwick representative
contacted Ms. Wilhite and told her the claim had been denied. Neither party submitted
written documentation showing that Sedgwick denied the claim.

        Ms. Wilhite never saw a doctor under workers’ compensation. She continued to
seek treatment on her own by utilizing her private insurance and paying the copays out-
of-pocket. She came under the care of Dr. Robert Pickering, who diagnosed her with
trigger finger and recommended surgery. Although her private insurance initially
approved the surgery and it was scheduled, the approval was later rescinded when it came
to light that her injury might be work-related. (Ex. 2.) Ms. Wilhite cancelled her surgery
and filed this claim seeking medical and temporary disability benefits.

       During the period of time Ms. Wilhite was dealing with her trigger-finger
condition, she also developed De Quervain’s tenosynovitis in her right wrist, which is not
at issue in this case. She underwent surgery for this condition and missed several weeks
of work. At the hearing, Ms. Wilhite admitted that she lost no time from work due to her
trigger-finger condition.




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                       Findings of Fact and Conclusions of Law

       The following general principles govern adjudication of this proceeding. Ms.
Wilhite has the burden of proof on all essential elements of her workers’ compensation
claim. Tindall v. Waring Park Ass’n, 725 S.W.2d 935, 937 (Tenn. 1987); Scott v.
Integrity Staffing Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS
24, at *6 (Tenn. Workers’ Comp. App. Bd. Aug. 18, 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 *7-8, 9 (Tenn. Workers’ Comp. App. Bd. Mar. 27,
2015). At an expedited hearing, Ms. Wilhite has the burden to come forward with
sufficient evidence from which this Court can determine that she is likely to prevail at a
hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1) (2016).

        To recover benefits, Ms. Wilhite must prove she suffered an “injury” as that term
is defined by the Workers’ Compensation Law: “Injury means an injury by accident . . .
arising primarily out of and in the course and scope of employment.” Tenn. Code Ann. §
50-6-102(14) (2016). In order to be compensable as an injury by accident, the injury
must be “caused by a specific incident, or set of incidents, arising primarily out of an in
the course and scope of employment, and is identifiable by time and place of
occurrence[.]” Id. at § 50-6-102(14)(A). “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.” Id. at § 50-6-102(14)(B).

        In this Court’s opinion, Ms. Wilhite’s uncontroverted testimony that she
developed pain and swelling in her right-ring finger while staining doors on a production
line at work was sufficient to satisfy her burden of proving the accident resulted from a
specific set of incidents that arose primarily out of and in the course and scope of her
employment. See Id. at § 50-6-102(14)(A). She reported the incident to her supervisors
on more than one occasion.

       Upon being provided notice of a workplace injury, the Workers’ Compensation
Law requires an employer to “designate a group of three (3) or more independent
reputable physicians . . . from which the injured employee shall select one (1) to be the
treating physician.” Id. at § 50-6-204(a)(3)(A)(i). The administrative rules governing
procedures in the Bureau of Worker’s Compensation provide, “[u]pon notice of any
workplace injury . . . the employer shall immediately provide the injured employee a
panel of physicians that meets the statutory requirements for treatment of the injury.”
Tenn. Comp. R. & Regs. 0800-02-01-.25(1) (2016). Furthermore, an employer who fails
to provide a medical panel runs the risk of being required to pay the cost of treatment an
employee secures on her own. See Young v. Young Electric Co., et al., No. 2015-06-0860
                                            3
2016 TN Wrk. Comp. App. Bd. LEXIS 24, at *16-19 (Workers’ Comp. App. Bd. May
25, 2016).

       Ms. Wilhite testified, without contradiction, that she reported the condition of her
finger to her supervisor on the day she first experienced hand cramps and finger swelling.
Lowes should have provided Ms. Wilhite a panel of physicians that day. It failed to do
so, forcing Ms. Wilhite to seek treatment on her own.

       It was not until six months had passed and Ms. Wilhite’s finger condition returned
that Lowes finally offered her a panel of physicians. After offering the panel, however,
Lowes declined to make her an appointment and, instead, denied the claim outright
without Ms. Wilhite ever seeing a doctor. Ms. Wilhite then again sought treatment on her
own through her personal insurance and paid out-of-pocket for the copays.

      The Court finds that Lowes failed in its duty to provide Ms. Wilhite timely
medical care. For that reason, the Court refers this matter to the Penalty Unit for
consideration of whether Lowes should be assessed a civil penalty.

       The Court further finds that Ms. Wilhite reasonably sought medical treatment on
her own when Lowes failed to provide care. Ms. Wilhite is currently treating with Dr.
Pickering.2 The Court appoints Dr. Pickering as the authorized treating physician and
orders Lowes to provide continuing care with that physician.

       Ms. Wilhite also seeks temporary disability benefits. Ms. Wilhite admitted she
missed no time from work due to her trigger-finger condition. Accordingly, the Court
denies her request for temporary disability benefits.

IT IS, THEREFORE, ORDERED as follows:

    1. Lowes shall provide Ms. Wilhite medical care with the authorized treating
       physician, Dr. Pickering.

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




2
  Ms. Wilhite requested reimbursement for past medical expenses and her out-of-pocket expenses. Although she
included some of the medical bills and copay receipts with the Dispute Certification Notice, she never made them an
exhibit at the heaing. Without the bills being in evidence, the Court cannot order Lowes to repay these costs.
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  3. The clerk shall forward a copy of this order to the Penalty Unit for consideration
     of assessing a civil penalty against Lowes for its failure to provide timely medical
     care.

  4. This matter is set for a Scheduling Hearing on February 13, 2017, at 9:30 a.m.
     (CDT). The Court will convene the hearing via telephone. You must call 615-
     741-2113 or toll-free at 855-874-0474 to participate in the Hearing.

  5. 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.

  6. For questions regarding compliance, please contact the Workers’ Compensation
     Compliance Unit via email WCCompliance.Program@tn.gov or by calling (615)
     253-1471.

ENTERED ON THIS THE 22ND DAY OF DECEMBER, 2016.

                                 _____________________________________
                                 Judge Joshua Davis Baker
                                 Court of Workers’ Compensation Claims




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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:

   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.

   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
                                            6
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 (25 pages)
    2. Affidavit Donna Wilhite
    3. Affidavit of Steve Lamborn
    4. Wage Statement
    5. Operative Report of June 20, 2016
    6. Letter from Lowe’s regarding surgery
    7. Letter from Lowe’s regarding termination
    8. Letter from Cigna regarding short-term disability filed
    9. First Report of Injury
    10. C-31 and C-42 forms
    11. Ms. Wilhite’s written statement

Technical Record:3

    1. Petition for Benefit Determination
    2. Dispute Certification Notice
    3. Request for Expedited Hearing




3
 The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
Compensation Hearing. The Court considered factual statements in these filings or any attachments to them as
allegations unless established by the evidence.
                                                        8
                           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 22nd day of
 December, 2016.

Name               Certified   Via    Via       Service sent to:
                    Mail       Fax   Email
Donna Wilhite         x                 X       dkw3dogd@yahoo.com
Jordan Puryear                          x       jordan.puryear@leitnerfirm.com
Kenny Veit                             X        kenny.veit@leitnerfirm.com


                                 _____________________________________
                                 Penny Shrum, Clerk
                                 Court of Workers' Compensation Claims
                                 WC.CourtClerk@tn.gov




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