                                                                                                            July 27, 2016

                                                                                                          IN COURT OF
                                                                                                      WORKIRS' COMPI SATION
                                                                                                             CLAIMS

                                                                                                              Time 8:26AM



              TENNESSEE BUREAU OF WORKERS' COMPENSATION
             IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                              AT KINGSPORT

Lisa Gragg,                                               )   Docket No.: 2015-02-0496
                  Employee,                               )
v.                                                        )
Christian Care Center of Johnson City,                    )   State File Number: 97862-2015
            Employer,                                     )
And                                                       )
GuideOne Mutual,                                          )   Judge Brian K. Addington
            Insurance Carrier.                            )
                                                          )

        EXPEDITED HEARING ORDER DENYING REQUESTED MEDICAL
                AND TEMPORARY DISABILITY BENEFITS


        This matter came before the undersigned Workers' Compensation Judge on July
19, 2016, on the Request for Expedited Hearing filed by the employee, Lisa Gragg, under
Tennessee Code Annotated section 50-6-239 (2015). The present focus of this case is
whether Christian Care is responsible for payment of medical and temporary disability
benefits. The central legal issue is whether Ms. Gragg suffered a compensable hernia
arising primarily out of and in the course and scope of her employment. 1 For the reasons
set forth below, the Court finds Ms. Gragg has not submitted sufficient evidence from
which this Court could conclude she is likely to prevail at a hearing on the merits on the
central legal issue and holds she is not entitled to medical or temporary disability benefits
at this time.

                                              History of Claim

       Prior to the alleged injury, Ms. Gragg worked for Christian Care as a certified
nursing assistant. For years, Ms. Gragg suffered many medical conditions, including
hernias and pulled stomach muscles. Ms. Gragg suffered a work-related hernia in early
2015, and Dr. Carlos Floresguerra repaired it on March 18, 2015. (Ex. 8 at 2-3.) Ms.
1
 A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an Appendix.
Gragg had an extended recovery from that surgical repair due to recurring infections and
did not return to work until June 2015.

        After Ms. Gragg reported the injury for which she underwent the hernia repair, she
testified Christian Care's management no longer treated her the same. She felt the human
resource staff and workers' compensation adjuster2 were unprofessional to her and it
affected her willingness to continue to work for her employer.

        After working several months, Ms. Gragg called the office of her primary care
provider, Dr. Dave Arnold, on October 23, 2015, and a nurse recorded the following from
the conversation: "States she coughed so hard she is going to have to have repeat hernia
surgery." (Ex. 7 at 3.) When Dr. Arnold later saw her on November 10, 2015, he noted,
"Her abdominal hernia has recurred and she is scheduled for repeat surgery on 11119."
ld. at 1. Ms. Gragg testified she underwent the surgery with Dr. Floresguerra.

       There is a dispute regarding the date of injury. Nearly a month after her report to
Dr. Arnold's office, Ms. Gragg testified she felt burning and stinging in her stomach
while working on November 23, 2015. 3 She went home, took a shower, and noticed a
lump around her belly button. Ms. Gragg claimed she contacted her supervisor to report
her observation, and she returned to the surgeon. She alleged she underwent the second
hernia surgery with Dr. Flores guerra after November 23, 2015. The doctor initially
released her to return to work post-surgery on December 8, 2015, but later gave Ms.
Gragg an additional week off work due to stomach pain ..J

       During December, Christian Care's workers' compensation carrier investigated
Ms. Gragg's claim and issued a Notice of Denial of Claim for Compensation on
December 16, 2015, on the grounds of preexisting condition. (Ex. 5.) Although Christian
Care paid for Ms. Gragg's repeat hernia surgery, it denied any additional medical
benefits.

       Despite the fact Dr. Floresguerra allowed Ms. Gragg to work, she never returned.
At first, she asked Christian Care for additional time to tend to personal matters;
Christian Care took her off its schedule at her request. Although Ms. Gragg attempted to
follow-up with Christian Care, no one returned her calls. However, she acknowledged
that she did not want to return to work because she felt Christian Care mistreated her
following her first injury report in early 2015. She felt it would be a hostile work
environment.


2
    Ms. Gragg did not provide the full names of these employees.

J   It does not appear to the Court that Ms. Gragg worked that day considering the facts presented.
4
    Neither party supplied medical records from Dr. Flores guerra regarding this surgery.

                                                            2
       Ms. Gragg filed a Petition for Benefit Determination seeking medical and
temporary disability benefits on December 14, 2015. (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.) After a Show Cause Hearing and Order dated June
8, 2016, Ms. Gragg filed a Request for Expedited Hearing on June 17, 2016. (T.R. 4 and
T.R. 3, respectively.) This Court heard the matter on July 19,2016.

       At the Expedited Hearing, Ms. Gragg asserted she suffered a new hernia on
November 23, 2015. She denied she called her personal physician on October 23, 2015,
to report a cough caused her need for surgery. Rather, she felt burning and stinging in her
stomach at work on November 23, 2015, and discovered a new hernia at home later that
day. She requested temporary disability benefits from the date of injury until now, as she
has not obtained a release from her doctor. She requested continued medical treatment, as
Christian Care stopped medical treatment after it denied her claim.

        Christian Care argued Ms. Gragg did not suffer an injury on November 23, 2015.
Instead, Ms. Gragg coughed at some point prior to October 23, 2015, and her need for
surgery was due to that coughing episode. Also, Christian Care asserted Ms. Gragg did
not point to any specific activity she performed at work that allegedly caused the hernia.
Christian Care contended Ms. Gragg's evidence was not sufficient to meet the criteria of
a compensable hernia or rupture under Tennessee Code Annotated section 50-6-212
(20 15). Christian Care asserted Ms. Gragg is not entitled to further medical or temporary
disability benefits.

                       Findings of Facts and Conclusions of Law

        As the injured employee seeking benefits, Ms. Gragg has the burden of proof on
all essential elements of a claim. 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, 20 15). Ms. Gragg 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). However, at an expedited hearing,
she has the burden to come forward with sufficient evidence from which the trial court
can determine that she is likely to prevail at a hearing on the merits. /d.

       For her claim to be compensable, Ms. Gragg must show she was injured by an
incident or set of incidents arising primarily out of and in the course and scope of her
employment, identifiable by time and place of occurrence. See Tenn. Code Ann. § 50-6-
102(13)(A) (2015). Further, under the Worker's Compensation Law, in order for a hernia
or rupture injury to be compensable, it must be definitively proven to the satisfaction of
the Court, that:


                                             3
              ( 1) There was an injury resulting in hernia or rupture;
              (2) The hernia or rupture appeared suddenly;
              (3) It was accompanied by pain;
              (4) The hernia or rupture immediately followed the accident; and
              (5) The hernia or rupture did not exist prior to the accident for which
                   compensation is claimed.

Tenn. Code. Ann. § 50-6-212(a) (2015).

       The Court finds there is conflicting evidence as to when the alleged incident
occurred that caused the hernia in question. The medical records suggest the injury
occurred during a coughing episode, which was followed by a surgical repair - all prior to
the alleged injury date on November 23, 2015. The weight of the evidence does not
support Ms. Gragg's assertion that she suffered a hernia at work on November 23, 2015.

       Also, other than testifying that she felt burning and stinging at work on November
23, 2015, Ms. Gragg failed to provide details of her activities at the time the injury
occurred. Her evidence failed to meet the statutory requirement that her injury was
caused by a specific incident or set of incidents at work. As Ms. Gragg failed to prove she
suffered an injury at work, she cannot satisfy the first criterion for a compensable hernia
as found in Tennessee Code Annotated 50-6-212(a), supra.

        The Court thus holds Ms. Gragg failed to come forward with sufficient evidence
from which the Court could conclude she is likely to prevail at a hearing on the merits
that she suffered a compensable hernia arising primarily out of and in the course and
scope of her employment; therefore, her request for medical and temporary benefits is
denied at this time.

IT IS, THEREFORE, ORDERED as follows:

   1. Ms. Gragg's claim against Christian Care and its workers' compensation carrier
      for the requested medical and temporary disability benefits is denied.

   2. This matter is set for Initial (Scheduling) Hearing on September 29, 2016, at 10:00
      a.m. Eastern.

       ENTERED this the 27 1h day of July, 2016.


                                                    {C .
                                   Judge Brian K. Addington
                                   Court of Workers' Compensation Claims


                                             4
Initial (Scheduling) Hearing:

       A Scheduling Hearing has been set with Judge Brian K. Addington, Court of
Workers' Compensation Claims. You must call 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).


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
      $75.00. 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

                                            5
   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.




                                         6
                                                 APPENDIX

Exhibits:
   1. Affidavit of Ms. Gragg;
   2. Affidavit of Randall Gragg; 5
   3. First Report oflnjury for injury dated February 23, 2015;
   4. Wage Statement;
   5. Notice of Denial;
   6. Panel of Physicians for February 23,2015 injury;
   7. Medical Records-Healing Hands Health Center;
   8. Medical Records-Franklin Woods Community Hospital; and
   9. Transcript of conversation between Ms. Gragg and adjuster.

Technical record: 6
   1. Petition for Benefit Determination, December 14, 2015;
   2. Dispute Certification Notice, February 4, 2016;
   3. Request for Expedited Hearing, June 17, 20 16;
   4. Order on Show Cause Hearing, June 8, 2016;
   5. Employer's Brief for Expedited Hearing; and
   6. Employer's Motion in Limine. 7




5
  The Court reserved ruling on this exhibit. The Coutt excludes this Affidavit, as Ms. Gragg did not provide this
prior to the Expedited Hearing, and because Mr. Gragg was listed as an in-person witness.
6
  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.
7
  The Court reserved ruling on this Motion. Christian Care filed the Motion to exclude all medical records because
the records did not comply with the Court's Rules. After careful review, the Court overrules the Motion. Ms. Gragg
submitted the medical records prior to the issuance of the Dispute Certification Notice, and the records were signed
by physicians.

                                                         7
                           CERTIFICATE OF SERVICE

     I hereby certify that a true and correct copy of the Expedited Hearing Order
 Denying Requested Medical and Temporary Disability Benefits was sent to the
 following recipients by the following methods of service on this the 2ih day of July,
 2016.

Name                  Certified Mail    Via Email    Service Sent To:
Ms. Lisa Gragg               X             X         122 Elizabethton Hwy.
                                                     BluffCity, TN 37618
                                                     rosesforbutterflies67 @yahoo.com
Dana Dalton, Es .                            X




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