             IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                              AT NASHVILLE

LAURY NAVYAC,                                              )   Docket No. 2015-06-0677
          Employee,                                        )
v.                                                         )   State File No. 60024-2015
UNIVERSAL HEALTHCARE                                       )
SERVICES,                                                  )   Judge Joshua Davis Baker
          Employer.                                        )
                                                           )

         EXPEDITED HEARING ORDER DENYING MEDICAL BENEFITS

       This matter came before the undersigned workers’ compensation judge on the
Request for Expedited Hearing filed by the employee, Laury Navyac, pursuant to
Tennessee Code Annotated section 50-6-239 (2015). The present focus of this case is
whether the employer, Universal Healthcare Services (UHS), must provide Ms. Navyac
medical care for an alleged work-related injury. The central legal issue is whether Ms.
Navyac will likely prevail at a hearing on the merits in proving that her injury arose
primarily out of and in the course and scope of her employment for UHS. For the reasons
set forth below, the Court finds Ms. Navyac is unlikely to prevail at a hearing on the
merits on the issue of compensability.1

                                               History of Claim

        Laury Navyac is a forty-five year old resident of Davidson County, Tennessee.
Ms. Navyac worked as the Assistant Accounts Receivable Manager for Universal Health
Services. UHS and its subsidiaries own and operate more than 235 acute care and
behavioral health facilities and surgery centers in thirty-seven states. Ms. Navyac works
with these facilities in billing, collections, and end-of-month reconciliations. Ms. Navyac
spent most of her time working from the office. Her job duties, however, required her to
travel to other locations on some occasions.

      UHS supervisors instructed Ms. Navyac to drive to Waverly, Tennessee, on July
28, 2015, where she was to train Natchez Trace Youth Academy (the Academy) staff on
UHS’ accounting software. She left her home in Brentwood, Tennessee, at 7:00 a.m. in
1
 A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.

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order to arrive at the Academy at 9:00 a.m. to begin training. UHS did not tell her the
route to take while traveling to the Academy. Ms. Navyac testified she took the most
direct route from her home to the Academy. Ms. Navyac received hourly pay from the
time she left her residence in Brentwood until she returned to her home later that evening.
       Approximately one hour into her trip, Ms. Navyac exited Interstate 40 at Highway
46 in Dickson and stopped at McDonald’s near the interchange for a restroom break. She
also purchased breakfast food to go. On her way out of the restaurant, she slipped on a
wet floor, injured her ankle and sustained some bruises. Ms. Navyac notified two people
in her office of the injury but continued to the Academy where she completed the
training. She then returned to her residence.
       UHS initially accepted the claim and provided medical care. Ms. Navyac saw Dr.
William Dutton at Concentra on July 30, 2015. (Ex. 1, at 1-14). After an examination,
he referred her to Dr. David West for an orthopedic evaluation. Id. at 15-17. Ms. Navyac
saw Dr. West the same day. Id. He diagnosed an ankle fracture and recommended
surgery. Id.

      On August 7, 2015, UHS notified Ms. Navyac it denied her claim. Ms. Navyac
proceeded with ankle surgery under her personal insurance. Id. at 33-35.

       Ms. Navyac filed a PBD on August 8, 2015, seeking temporary disability and
medical benefits. (T.R. 1.) The parties did not resolve the disputed issues through
mediation, and the Mediating Specialist filed a Dispute Certification Notice on October
26, 2015. (T.R. 2.) Ms. Navyac filed a Request for Expedited Hearing pursuant to
Tennessee Code Annotated section 50-6-239 (2015). (T.R. 3.) The Court heard the
matter on January 27, 2016.
       At the Expedited Hearing, Ms. Navyac acknowledged she received her regular
wages during her period of recuperation and no longer sought temporary disability
benefits. Additionally, Ms. Navyac stated she continues to receive treatment for her
ankle fracture, and the amount of her medical expenses is undetermined.2
       Ms. Navyac asserted that she was on a special errand, enroute to provide training
for a UHS customer, when she stopped at McDonald’s to use the restroom and purchase
food. Because the travel that brought her to the McDonald’s was required by her work,
Ms. Navyac argues her injury arose primarily out of and in the course and scope of her
employment for UHS.

       UHS argued that Ms. Navyac’s injury did not occur within the course of her
employment because her decision to purchase food at McDonald’s converted her
restroom stop into an off-premises meal. Because her injury occurred during an off-
premises meal, Ms. Navyac’s injuries are not compensable.

2
    Ms. Navyac did not present medical bills for payment at the Expedited Hearing.

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       UHS further argued Ms. Navyac’s injuries arose outside the scope of her
employment. Although scope is not specifically defined, UHS argues that the inclusion
of the term in Tennessee Code Annotated section 50-6-102(14)(B) cannot be ignored.
UHS claims the scope of Ms. Navyac’s work for UHS did not include stopping at
McDonald’s to use the restroom and purchase food.

                             Findings of Fact and Conclusions of Law

        The central dispute concerns whether Ms. Navyac’s injuries at McDonald’s arose
primarily out of and in the course and scope of her employment for UHS. “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[.]” Tenn. Code Ann. §
50-6-102(14)(B) (2015). An injury arises out of employment when there is a causal
connection between the conditions under which the work is required to be performed and
the resulting injury. Fritts v. Safety Nat’l Cas. Corp., 163 S.W.3d 673, 678 (Tenn. 2005).
Put another way, an injury arises out of employment when it “has a rational, causal
connection to the work.” Braden v. Sears, Roebuck & Co., 833 S.W.2d 496, 498 (Tenn.
1992). “An injury occurs in the course of employment if ‘it takes place within the period
of the employment, at a place where the employee reasonably may be, and while the
employee is fulfilling work duties or engaged in doing something incidental thereto.’”
Hubble v. Dyer Nursing Home, 188 S.W.3d 525, 534 (Tenn. 2006) (citing Blankenship v.
Am. Ordnance Sys., LLC, 164 S.W.3d 350, 354 (Tenn. 2005)).

       The Court finds Ms. Navyac’s injuries occurred in the course of her employment.
Her travel to the Academy furthered the interest of her employer. Despite the inclusion
of this duty in her job description, Ms. Navyac testified that travel constituted only five
percent of her workplace duties. Furthermore, UHS paid Ms. Navyac wages for the time
spent traveling to the Academy. UHS normally did not pay Ms. Navyac wages for the
time spent traveling to work. For these reasons, the Court finds Ms. Navyac’s activities
fell outside the purview of her normal business activities yet furthered UHS’ business
interests. Accordingly, the Court finds her activity in traveling to the Academy qualified
as a special errand undertaken in the course of her employment.3

      Even if traveling to the Academy fell within the course of her employment, UHS
argued that Ms. Navyac’s meal purchase took her out of it. It cited Greenfield v.
Manufacturers Cas. Co., 281 S.W.2d 47 (Tenn. 1955) in support of this argument. In
Greenfield, the Supreme Court ruled the employee’s injury incurred while traveling from
her work for an evening meal noncompensable. Id. This Court disagrees that Greenfield

3
 The Court could have also found that Ms. Navyac’s activities constituted work in the normal course of her regular
job duties because she was on the clock when the accident occurred and travel is listed as part of her work duties.
The Court designated her activities a special errand because UHS normally did not pay her for driving to work.


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applies. Instead, the Court finds Ms. Navyac’s brief actions were more akin to a comfort
break incidental to her work than an off-premises meal. The Supreme Court cited to
Professor Larson to address the issue of “comfort breaks”:

           [E]mployees who, within the time and space limits of their employment,
           engage in acts which minister to personal comfort do not thereby leave the
           course of employment, unless the extent of the departure is so great that an
           intent to abandon the job temporarily may be inferred or unless the method
           chosen is so unusual and unreasonable that the conduct cannot be
           considered an incident of the employment. 1A Larson, Workmen’s
           Compensation Law, § 21 (1990).

Carter v. Volunteer Apparel, Inc., 833 S.W.2d 492, 495 (Tenn. 2002).

       Here, Ms. Navyac stopped at McDonald’s to use the restroom and purchased food
secondarily. Ms. Navyac was in the course of her employment when she entered the
restaurant to use the restroom. She was on the way to another facility to provide training
at the direction of her supervisor and stopping to use the restroom is an act incidental to
her travel that falls within the purview of the workers’ compensation coverage formula.
Likewise, the Court finds the brief deviation from her path to and from the restroom to
purchase food did not remove her from the course of her employment for UHS. Ms.
Navyac did not eat the food at McDonald’s and made her way toward the exit directly
after purchasing it intending to eat her meal while completing her journey to the
Academy.

        UHS next argues that Ms. Navyac’s injury did not occur within the scope of her
employment. Although the phrase “course and scope of employment” appears often in
workers’ compensation jurisprudence, the general assembly only recently added the term
“scope” to the statutory definition of injury. Accordingly, there is little Tennessee case
law concerning its meaning in this context. The central focus when construing any
statute is to “ascertain and give effect to the intention or purpose of the legislature as
expressed in the statute.” In re Adoption of A.M.H., 215 S.W.3d 793, 808 (Tenn. 2007)
(citing State ex rel. Rector v. Wilkes, 436 S.W.2d 425, 427 (Tenn. 1968)). To that end,
unless the language is ambiguous, the Court must derive legislative intent “from the
natural and ordinary meaning of the statutory language within the context of the entire
statute without any forced or subtle construction that would extend or limit the statute’s
meaning.” Id., citing State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000). Merriam
Webster’s defines “scope” as “space or opportunity for unhampered, motion, activity, or
thought” or “extent of treatment, activity, or influence[.]”4 By applying this definition,
the court finds that scope as used in the context of Tennessee Code Annotated section 50-
6-102(14)(B) means the extent of activity normally associated with work.

4
    See Merriam Webster Dictionary, http://www.merriam-webster.com/dictionary/scope.

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        With the above definition of scope in mind, the Court finds that Ms. Navyacs’ trip
to the restroom and brief stop to purchase food fell within the scope of her employment.
Restroom breaks are in integral part of work and UHS certainly knew that Ms. Navyac
may need to stop and use the restroom during her trip to the Academy. As she was
travelling in furtherance of UHS’ business interest, the location of her stop made no
difference unless the choice of facilities exposed her to unreasonable risk.

      The last, and in the opinion of this Court, most significant issue is whether Ms.
Navyac’s injury “arose primarily out of her employment.” See Tenn. Code Ann. § 50-6-
102(14)(B) (2015). As stated previously in this order, for an injury to arise primarily out
of and in the course and scope of employment, the employment must have “contributed
more than fifty percent (50%) in causing the injury, considering all causes.” Id.

        Here, there is no doubt that water on the floor of McDonald’s caused Ms. Navyac
to slip and fall. The parties also agree Ms. Navyac injured her ankle in the fall. Neither
UHS nor anyone associated with it put the water on the floor. Additionally, UHS did not
require Ms. Navyac to stop at that McDonald’s to use the restroom, but could certainly
foresee that she would stop to use the restroom. Ms. Navyac voluntarily chose to stop at
McDonald’s because she believed the restrooms would be clean.

       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. Tenn. Code Ann. § 50-6-239(d)(1) (2015); 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). Although it is a
close issue, the Court finds Ms. Navyac is unlikely to prevail at a hearing on the merits in
proving her injury arose primarily out of her employment. Although her stop at
McDonald’s occurred within the course and scope of her employment and exposed her to
the risk associated with the stop, it was the wet McDonald’s floor, rather than her mere
presence in the restaurant, that contributed more than fifty percent in causing her to slip
and fall.

       Therefore, as a matter of law, Ms. Navyac has not come forward with sufficient
evidence from which this Court concludes that she is likely to prevail at a hearing on the
merits. Her claim is denied on compensability grounds.

IT IS, THERFORE, ORDERED THAT:

   1. Ms. Navyac’s claim against UHS and its workers’ compensation carrier for the
      requested medical benefits is denied at this time.

   2. This matter is set for an Initial (Scheduling) Hearing on March 21, 2016, at 9:30

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       a.m. (CDT).

       ENTERED this the 11th day of February, 2016.


                                  _____________________________________
                                  Judge Joshua Davis Baker
                                  Court of Workers’ Compensation Claims

Initial Hearing:

      A Scheduling Hearing has been set with Judge Joshua Davis Baker, Court of
Workers’ Compensation Claims. You must call 615-741-2113 or toll free at 855-
874-0474 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 Central Time (CT).


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

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   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
   any, with the Court Clerk within three 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 records5
       2. Affidavit of Laury Navyac
       3. Job description

Technical record:6
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing
   4. Notice of Deposition of Laury Navyac
   5. Pre-hearing Order




5
    Ms. Navyac did not enter the medical bills originally submitted with this exhibit into evidence.
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.

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                            CERTIFICATE OF SERVICE

        I hereby 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 _____
                                                                                  11th day
of February, 2016.


 Name                       Certified Via       Via      Service sent to:
                            Mail      Fax       Email
 William B. Hicky                                 X      will@hickylaw.com
 Gregory H. Fuller                                X      ghfuller@mijs.com




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




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