              IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                               AT KINGSPORT

Shelia Smithee                                             )   Docket No.: 2014-02-0022
            Employee,                                     )
v.                                                         )   State File Number: 78990/2014
Goodwill Industries                                        )
             Employer,                                     )   Judge Brian K. Addington
And                                                       )
Starnet Insurance. Co./Key Risk                           )
             Insurance Carrier/TPA.                       )
                                                          )

              EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS


       This cause came to be heard on November 2, 2015, for an Expedited Hearing. The
present focus of this case is the employee's entitlement to medical benefits when she was
unable to participate in a urine drug screen (UDS) upon her initial visit to an authorized
physician. The central legal issue is the compensability of the employee's claim in light
of the incomplete UDS. 1 For the reasons set forth below, the Court finds Ms. Smithee's
injury is compensable and grants her medical benefits at this time.

                                               History of Claim

       Employee, Sheila Smithee, is a sixty-year-old resident of Jefferson County,
Tennessee. (T.R. 1 at 1.) She worked for two years as an attendant at Goodwill
Industries' location in Russellville, Tennessee, where she received donated items and
assisted customers with recycling. On August 25, 2014, Ms. Smithee injured her back
while cleaning what she described as "a large mess" left by Goodwill drivers. (Ex. 1.)

       The next day, Ms. Smithee reported her injury to her supervisor, Jack Homer, and
reported it again on September 2, 2015. !d. Ms. Smithee's husband, Charles Breeden,
who filed an affidavit in this matter and testified at the hearing, also discussed Ms.
Smithee's injury with Mr. Homer. (See Exs. 1 and 2.) Mr. Homer only responded that
Ms. Smithee should "take it easy." !d.
1
 Additional information regarding the certified issues, technical record and exhibits admitted at the Expedited
Hearing is attached to this Order as an Appendix.
       On the morning of October 3, 2014, Mr. Horner met with Ms. Smithee and Mr.
Breeden in Morristown, Tennessee, to discuss her injury. /d. He prepared an accident
report and presented a C-42 physician panel to Ms. Smithee from which she selected
Healthstar Physicians (Healthstar). (Ex. 5.) Mr. Horner scheduled an appointment at
Healthstar later that afternoon. !d.

       When she arrived at Healthstar, Ms. Smithee used the restroom. /d. Afterward, a
nurse informed Ms. Smithee she would need to submit to a UDS. !d. Ms. Smithee
explained she had used the restroom shortly before and was unable to provide the needed
sample. !d.

       During the hearing, Ms. Smithee confirmed that the nurse offered her water and
allowed her an additional thirty minutes to become ready for the UDS. Ms. Smithee
added that, because Goodwill did not have a restroom at her work location and
discouraged employees leaving for bathroom breaks, she became accustomed to holding
her urine and could not produce on-demand.

       After a few hours, two nurses questioned Ms. Smithee and accused her of "hiding
something," or being "on drugs." Jd. Ms. Smithee offered to submit to a blood test, but
the nurses refused. !d. A Healthstar employee named Allison spoke with a Goodwill
Human Resources representative named Megan and informed Megan that Ms. Smithee
refused the UDS. !d. Allison instructed Ms. Smithee to leave Healthstar and informed her
Goodwill terminated her for failure to comply with the UDS . !d. Ms. Smithee never saw a
Healthstar physician. !d. Ms. Smithee testified she does not take illegal drugs or drink
alcohol.

       Later that afternoon, Ms. Smithee presented at ExpressHealth Clinic in Jefferson
City, Tennessee, in order to complete a UDS. The results were negative. (Ex. 4.) On
October 13, 2014, Ms. Smithee went for treatment at the Health Department in
Dandridge, Tennessee, complaining of back pain that she related to the August 25, 2014
work incident. (Ex. 3.) Goodwill denied Ms. Smithee's subsequent request for medical
care on Mr. Horner's assertion that she never told him that she injured her back at work.
(Ex. 1.) During the hearing, Goodwill acknowledged that it no longer employs Mr.
Horner.

       On August 28, 2015, the Court conducted a show cause hearing in this matter
concerning the failure to file a Request for Expedited Hearing or an Initial Hearing within
sixty days of February 24, 2015, the date of issuance of the Dispute Certification Notice.
(T.R. 3.) Ms. Smithee informed the Court that her attorney was unable to practice law
because she had been placed on disability inactive status. !d. Ms. Smithee advised that
she would proceed with the Expedited Hearing with or without her attorney. !d. The
Court found good cause to not dismiss Ms. Smithee's case and set the Expedited Hearing

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for November 2, 2015. Id.

       At the Expedited hearing, Ms. Smithee asserted that she injured her back at work
on August 25, 2014, and requested long-term medical care. She added that she preferred
to see her physician in Sevierville, Tennessee, Dr. Samuel McGaha, and that she did not
wish to return to Healthstar. Ms. Smithee also provided uncontroverted testimony that she
was not under the influence of alcohol or drugs either on the date of injury or on October
3, 2014.

      Goodwill contended that Ms. Smithee did not carry her burden of establishing a
compensable work injury. Goodwill also asserted that her failure to submit to the UDS at
Heathstar raised suspicions as to the veracity of her claim.

                                       ANALYSIS

       The Court utilizes the following legal principles in analyzing this matter:

       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); 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).

       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, 2015). 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 uncontroverted testimony presented in this matter established that Ms.
Smithee timely reported her alleged back injury to her supervisor, Mr. Homer. In
response, neither Mr. Homer nor any other Goodwill representative presented Ms.
Smithee with a panel of physicians.

       Tennessee Code Annotated section 50-6-204(a)(3)(A)(i) (2014) 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, ... from which the injured employee shall select one (1) to be the treating
physician."

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       Despite Ms. Smithee's repeated requests for treatment, Mr. Homer did not provide
the required panel of physicians until October 3, 2014, more than a month after the
injury. Ms. Smithee presented that same day to her selected provider; however, issues
regarding the UDS prevented her from seeing a physician and apparently led to her
termination.

       The Court recognizes an employer's right to require an injured worker to submit to
a UDS. However, it is unclear what benefit Goodwill hoped to derive from Ms. Smithee's
UDS over a month after the alleged date of injury occurred. Even if Ms. Smithee were
intoxicated on October 3, 2014, which her independent UDS later that day refutes, that
fact would have no bearing on whether she was intoxicated on the date of injury.

       The Court finds no impediment to Ms. Smithee's right to medical treatment for her
alleged injury of August 25, 2014. She requests the Court to appoint her primary care
physician, Dr. McGaha, as an authorized provider. The evidence presented at this point is
insufficient to support the designation of Dr. McGaha as the authorized provider. She has
only treated once at the local Health Department since October 3, 2014, not with Dr.
McGaha. However, Ms. Smithee may select one of the remaining facilities listed on the
previously-provided panel in order to receive authorized medical care for her injury. Ms.
Smithee shall be entitled to reasonable and necessary medical treatment directly related to
her work injury, if any, in accordance with the findings of her authorized physician.

IT IS, THEREFORE, ORDERED as follows:

   1. Ms. Smithee is entitled to select one of the remaining authorized facilities listed on
      the panel presented to her on October 3, 2014. She is entitled to reasonable and
      necessary medical treatment directly related to her work injury, if any, in
      accordance with the findings of her authorized physician.

   2. This matter is set for an Initial (Scheduling) Hearing on January 6, 2016, at 10:30
      a.m. Eastern.

   3. 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) (2014). The Insurer or Self-Insured
      Employer must submit confirmation of compliance with this Order to the
      Bureau by email to WCComplitllll'c.Prog ram @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.


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   4. For questions regarding compliance. please contact the Workers' Compensation
      Compliance Unit via email WCCo!_llp li <mcc. l rn!!n1 m(£1J.ln.gov or by calling (615)
      253-1471 or (615) 532-1309.


       ENTERED this the     6th   day of November, 2015.


                                           ~ (c .4~-
                                    Judge Brian K. Addington     #
                                    Court of Workers' Compensation Claims

Initial (Scheduling) Hearing:

      A Scheduling Hearing has been set \Vith 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 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

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   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 timelv 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 patties 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 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.




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                                               APPENDIX

Exhibits:
   1. Affidavit of Shelia Smithee, November 6, 2014
   2. Affidavit of Charles Breeden, November 6, 2014
   3. Medical record, Department of Health, October 13,2014
   4. Medical record, ExpressHealth Clinic, October 3, 2014
   5. Panel of physicians, October 3, 2014

Technical record: 2
   1. Petition for Benefit Determination, October 14, 2014
   2. Dispute Certification Notice, February 12, 2015
   3. Order Setting an Expedited Hearing, August 28, 2015




2
  The Court did not consider attachments to the above filings unless admitted into evidence during the Expedited
Hearing. The Court considered factual statements in the above 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 For
 Medical Benefits was sent to the following recipients by the following methods of service
 on this the 6th day ofNovember, 2015.


Name                 Certified   First   Via   Fax      Via     Sent To:
                     Mail        Class   Fax   Number   Email
                                 Mail
Sheila Smithee          X                                       1115 Green lee Street
                                                                Dandridge, TN 37725
Eric Harrison,                                           X      eharrison@wimberlylawson.com
Employer/Carrier's
Counsel




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

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