            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD

Douglas A. Buckner                           ) Docket No. 2016-01-0303
                                             )
v.                                           ) State File No. 70600-2015
                                             )
Eaton Corp., et al.                          )
                                             )
                                             )
Appeal from the Court of Workers’            )
Compensation Claims                          )
Thomas Wyatt, Judge                          )


                  Reversed and Remanded - Filed November 9, 2016


In this interlocutory appeal, the employer challenges the trial court’s determination that
the employee’s failure to provide timely notice of his work-related injury should be
excused. Following an expedited hearing, the trial court found that the employee had not
given timely notice of his acute back injury but had provided a valid excuse for that
failure, namely, that he was unaware of the full nature and extent of the injury. The trial
court then ordered medical and temporary disability benefits. The employer has
appealed, arguing that (1) the employee’s failure to provide timely notice should not be
excused, (2) the medical evidence was insufficient to award benefits, and (3) the trial
court incorrectly calculated the employee’s average weekly wage. We hold that the trial
court erred in concluding the employee’s excuse for failing to provide timely notice was
reasonable. Accordingly, the award of benefits is reversed and the case is remanded for
further proceedings consistent with this opinion.

Presiding Judge Marshall L. Davidson, III, delivered the opinion of the Appeals Board in
which Judge David F. Hensley and Judge Timothy W. Conner joined.

M. Reed Martz, Oxford, Mississippi, for the employer-appellant, Eaton Corporation

Matthew G. Coleman, Cleveland, Tennessee, for the employee-appellee, Douglas
Buckner




                                            1
                         Factual and Procedural Background

       Douglas Buckner (“Employee”), a press operator, alleges suffering an injury to his
low back while performing his work duties for Eaton Corporation (“Employer”) on July
20, 2015. Employee, who worked second shift at Employer’s plant, testified that at
approximately 9:00 p.m. on July 20, 2015, he and a co-worker were performing a two-
person job when he lifted a forty-pound part and placed it on his machine. Certain
gauges on the machine were stuck, so Employee then had to lean and push on the gauges
with both hands to move them into the correct position. While performing this task,
Employee felt a “pinch” in his low back and experienced pain. He testified, “I hurt my
back that night.”

       When Employee’s shift ended a few hours later, he went home and slept. When
he awoke around noon, he felt pain in the same location that he felt the “pinch” the night
before. He was unable to stand and had to call a neighbor for assistance. Employee
reported experiencing no problems with his back prior to the work incident hours earlier.

       On July 21, 2015, Employee reported for his scheduled shift but was in pain, was
“bent over,” and was only able to take “baby steps.” He told his supervisor, Tony
Edwards, that he had hurt himself “last night.” When Mr. Edwards asked him how he
had injured himself, Employee replied that he did not know. Employee had a subsequent
conversation with Employer’s human resources representative, Kandace Hansen.
Employee informed her that he woke up in pain, was unable to walk, and was unsure how
he had injured himself or whether it had occurred at work. Employee informed Ms.
Hansen that he was in pain and wanted to go home, which he did. According to
Employee, he essentially laid on his couch for the next two weeks and did not work due
to the condition of his back. Employee acknowledged that when Mr. Edwards and Ms.
Hansen asked him whether he injured himself at work and how the injury happened, he
replied he “wasn’t sure” and was “vague” in his responses. In fact, Employee testified
that he “didn’t report anything prior to September 2nd.”

       Employee sought medical care on his own and eventually came under the care of
Dr. Scott Hodges, an orthopedic surgeon, who performed surgery for a herniated disc in
Employee’s back. He placed Employee at maximum medical improvement on December
31, 2015 and assigned an 8% permanent impairment rating. Employee has since returned
to work for Employer.

        After conducting an expedited hearing, the trial court concluded that Employee
had failed to provide timely notice of his injury but that such failure was excused because
he did not “immediately know the full nature and seriousness” of the injury. The trial
court then awarded medical and temporary disability benefits. Employer has appealed,
asserting as error the trial court’s conclusion that Employee had a reasonable excuse for
his failure to provide timely notice as required by Tennessee Code Annotated section 50-

                                            2
6-201. Employer also contends that the medical proof was insufficient to award benefits
and that the trial court incorrectly calculated Employee’s average weekly wage.

                                         Standard of Review

       The standard we apply in reviewing a trial court’s decision is statutorily mandated
and limited in scope. Specifically, “[t]here shall be a presumption that the findings and
conclusions of the workers’ compensation judge are correct, unless the preponderance of
the evidence is otherwise.” Tenn. Code Ann. § 50-6-239(c)(7) (2015). The trial court’s
decision may be reversed or modified if the rights of a party “have been prejudiced
because findings, inferences, conclusions, or decisions of a workers’ compensation judge:

        (A)     Violate constitutional or statutory provisions;
        (B)     Exceed the statutory authority of the workers’ compensation judge;
        (C)     Do not comply with lawful procedure;
        (D)     Are arbitrary, capricious, characterized by abuse of discretion, or
                clearly an unwarranted exercise of discretion; or
        (E)     Are not supported by evidence that is both substantial and material
                in the light of the entire record.”

Tenn. Code Ann. § 50-6-217(a)(3) (2015).

                                                 Analysis

       Employer raises three issues on appeal: (1) whether the trial court erred in finding
that Employee offered a reasonable excuse for failing to provide timely notice of his
injury within the meaning of Tennessee Code Annotated section 50-6-201, (2) whether
the medical proof was sufficient to award benefits, and (3) whether the trial court erred in
calculating Employee’s average weekly wage. Our resolution of the notice issue is
dispositive of the appeal, pretermitting our consideration of the two remaining issues.

        The Workers’ Compensation Law mandates that “[e]very injured employee . . .
shall, immediately upon the occurrence of an injury, or as soon thereafter as is reasonable
and practicable, give or cause to be given to the employer who has no actual notice,
written notice of the injury.” Tenn. Code Ann. § 50-6-201(a)(1) (2015). The statute
additionally provides that “[n]o compensation shall be payable . . . unless the written
notice is given to the employer within thirty (30) days after the occurrence of the
accident, unless reasonable excuse for failure to give the notice is made to the
satisfaction of the tribunal to which the claim for compensation may be presented.”1 Id.
(emphasis added). The notice must convey “in plain and simple language the time, place,

1
 The legislature has reduced the time to give notice from thirty days to fifteen days for injuries that occur
on or after July 1, 2016.

                                                     3
nature, and cause of the accident resulting in injury.” Tenn. Code Ann. § 50-6-201(a)(2).
The notice requirement contained in section 50-6-201 “exists so that the employer will
have the opportunity to make a timely investigation of the facts while still readily
accessible, and to enable the employer to provide timely and proper treatment for the
injured employee.” Jones v. Sterling Last Corp., 962 S.W.2d 469, 471 (Tenn. 1998).

       Here, the trial court correctly ruled that Employee failed to give notice of his work
injury within the thirty days prescribed by section 50-6-201(a)(1), finding that his various
conversations with Employer’s representatives were too vague or uncertain to adequately
put Employer on notice that he sustained a work-related injury. The trial court explained
that Employee repeatedly informed Employer that he did not know how he hurt his back
and that merely telling his supervisor that he got hurt “last night” was insufficient.

       However, the trial court also determined Employee had provided a reasonable
excuse for his failure to give timely notice and, therefore, an award of benefits was not
barred by section 50-6-201(a)(1). Specifically, the trial court found Employee did not
know that his back pain was related to his work for Employer and that he “did not
immediately know the full nature and seriousness of his injury.” In making this
determination, the trial court relied upon Maples v. Federal-Mogul Corp., No. 2015-04-
0039, 2016 TN Wrk. Comp. App. Bd. LEXIS 8 (Tenn. Workers’ Comp. App. Bd. Feb.
17, 2016), where we held that an employee’s failure to give timely notice was excused
because the employee was unaware that her gradually occurring injury arose primarily
out of her employment. Id. at *23-24. In fact, the employee in Maples had been told by
a physician that her condition was not causally related to her employment. Id. at *23.

       Unlike in the present case, a significant factor in the resolution of Maples was the
gradual nature of the employee’s injury. The trial court in the present case observed that
section 50-6-201(a)(1) does not distinguish between acute injuries, such as the one with
which we are faced here, and injuries resulting from cumulative trauma. While it is true
that section 50-6-201(a) makes no such distinction, section 50-6-201(b) does specifically
address notice in gradual or cumulative trauma cases. That subsection provides:

       In those cases where the injuries occur as the result of gradual or
       cumulative events or trauma, then the injured employee or the injured
       employee’s representative shall provide notice of the injury to the employer
       within thirty (30) days after the employee:

              (1) Knows or reasonably should know that the employee has
                  suffered a work-related injury that has resulted in
                  permanent physical impairment; or

              (2) Is rendered unable to continue to perform the employee’s
                  normal work activities as the result of the work-related

                                             4
                    injury and the employee knows or reasonably should
                    know that the injury was caused by work-related
                    activities.

Tenn. Code Ann. § 50-6-201(b) (emphasis added). Given that the employee in Maples
was alleging a gradually occurring injury, her notice obligation was controlled by section
50-6-201(b). The employee in the present case alleges suffering an acute injury, not a
gradually occurring one, and thus Maples is not controlling.

       Moreover, we note that an “employer’s knowledge of the fact that an employee
became ill while at work does not necessarily of itself charge the employer with notice
that such illness constituted or resulted in a compensable injury.” Smith v. Tenn.
Furniture Indus., Inc., 369 S.W.2d 721, 731 (Tenn. 1963). At the same time, it is well-
settled that an injured worker’s claim is not barred by the failure to notify his or her
employer of the extent of the injury when giving notice, as “[t]he nature and extent of the
employee’s injuries, and the issue of medical causation, usually come to light in the
course of treatment of the employee’s injuries.” Quaker Oats Co. v. Smith, 574 S.W.2d
45, 48 (Tenn. 1978). Nevertheless, the inability of an injured worker to notify his or her
employer of the exact nature or extent of an injury does not relieve the worker of the
obligation to inform the employer of the accident resulting in that injury, especially when
the accident was a single, sudden event. Excusing untimely notice for an acute work
injury until the employee knows the full extent of the nature or seriousness of the injury,
exact diagnosis, or treatment plan would, in many cases, completely frustrate the purpose
of the notice statute.

       Returning to the facts of this case, it is clear that Employee, who testified he never
had problems with his back prior to the incident for which he claims benefits, felt a pinch
and pain at a specific time and place performing a specific task at work, i.e., leaning over
and pushing hard against gauges that were stuck on his machine after lifting a heavy
object. Employee testified, “I hurt my back that night.” Within hours, he had difficulty
standing, had to summon a neighbor because he could not function on his own, could not
work, and had to rest on his couch the next two weeks. This is not a case where
symptoms developed gradually over time or were not immediately apparent. To the
contrary, Employee was immediately aware he hurt his back at work and shortly
thereafter was unable to function without assistance and unable to work for
approximately two weeks. Based on these facts, we conclude that Employee’s excuse for
failing to provide timely notice of his work injury was not “reasonable,” the standard
mandated by the legislature in section 50-6-201(a)(1).2



2
 “Reasonable” has been defined as “fair, proper, or moderate under the circumstances; sensible.” Black’s
Law Dictionary (10th ed. 2014).

                                                   5
       However, the inquiry does not end there. Tennessee Code Annotated section 50-
6-201(a)(3) provides that the failure to give timely notice of a work-related injury will not
bar compensation “unless the employer can show, to the satisfaction of the workers’
compensation judge before which the matter is pending, that the employer was prejudiced
by the failure to give the proper notice, and then only to the extent of the prejudice.”
Whether Employer suffered prejudice as a result of Employee’s failure to give timely
notice and, if so, “the extent of the prejudice,” was not addressed in the trial court, and it
is not our place to address such issues in the first instance on appeal. See Fritts v.
Anderson Cty. Election Comm’n, No. E2003-00015-COA-R3-CV, 2003 Tenn. App.
LEXIS 564, at *8 (Tenn. Ct. App. Aug. 11, 2003) (“It is inappropriate for this Court to
assume the role of original fact finder, even if the factual record appeared complete.”).

       Therefore, we remand the case to the trial court for further proceedings regarding
whether Employer suffered prejudice as a result of Employee’s failure to provide timely
notice and, if so, how benefits should be impacted “to the extent of the prejudice” as
contemplated by section 50-6-201(a)(3). Also, while we express no opinion on the issue
because it is pretermitted, the trial court may consider Employer’s contention that it
incorrectly calculated Employee’s average weekly wage.3

                                        Conclusion

        For the foregoing reasons, we hold that the evidence preponderates against the
trial court’s determination that Employee presented a reasonable excuse for his failure to
provide notice within the time required by section 50-6-201. Accordingly, the trial
court’s award of benefits is reversed, and the case is remanded for additional proceedings
consistent with this opinion.




3
  Employee’s brief on appeal addresses this issue in one sentence: “The employee abides by the
calculations of the Department with regard to the AWW.”

                                              6
                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD

Douglas A. Buckner                                       )   Docket No.   2016-01-0303
                                                         )
v.                                                       )   State File No. 70600-2015
                                                         )
Eaton Corp., et al.                                      )


                                     CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the
referenced case was sent to the following recipients by the following methods of service
on this the 9th day of November, 2016.
 Name                    Certified   First Class   Via   Fax      Via     Email Address
                         Mail        Mail          Fax   Number   Email

 Matthew G. Coleman                                                 X     mcoleman@loganthompsonlaw.com
 M. Reed Martz                                                      X     reed@freelandmartz.com
 Thomas Wyatt, Judge                                                X     Via Electronic Mail
 Kenneth M. Switzer,                                                X     Via Electronic Mail
 Chief Judge
 Penny Shrum, Clerk,                                                X     Penny.Patterson-Shrum@tn.gov
 Court of Workers’
 Compensation Claims




Jeanette Baird
Deputy Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-0064
Electronic Mail: Jeanette.Baird@tn.gov
