            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD


Darlene Noel                                  ) Docket No. 2016-08-0054
                                              ) Docket No. 2016-08-0069
v.                                            )
                                              ) State File No. 45760-2015
EAN Holdings, LLC, et al.                     ) State File No. 9570-2015
                                              )
                                              )
Appeals from the Court of Workers’            )
Compensation Claims                           )
Allen Phillips, Judge                         )


                  Affirmed and Remanded – Filed January 19, 2017

In these interlocutory appeals, the employer asserts the trial court erred in ordering it to
provide panels of physicians to the employee, who had reported two work-related
accidents occurring within ten days after her settlement of a prior shoulder injury claim.
She alleged these accidents caused pain and symptoms in her head, neck, and shoulders.
The employer denied both claims, asserting that the employee’s conditions were pre-
existing and were not caused or aggravated by any “identified injury.” We affirm the
trial court’s determination that the employee is entitled to panels of physicians, and we
remand the cases for any further proceedings that may be necessary.

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

Alex B. Morrison, Knoxville, Tennessee, for the employer-appellant, EAN Holdings,
LLC

Darlene Noel, Memphis, Tennessee, employee-appellee, pro se




                                             1
                                     Memorandum Opinion1

       These interlocutory appeals, which we have consolidated for purposes of appellate
review, arise from two alleged accidents reported by Darlene Noel (“Employee”) while
she worked for EAN Holdings, LLC (“Employer”) at an airport rental car facility. First,
on January 16, 2015, Employee was struck in the upper back by a door that had been
opened forcefully by a co-worker. Second, on January 23, 2015, Employee was
approaching an automatic door that failed to open properly, resulting in her striking the
door with her head. Both accidents were witnessed by co-workers. Employer denied
benefits, asserting that any medical conditions, pain, or other symptoms reported by
Employee following these accidents related to a September 5, 2013 work-related fall,
which the parties settled on January 15, 2015.

        At the expedited hearing, Employee testified concerning the circumstances of the
two work incidents. In addition, Employee presented testimony from the co-worker who
struck her with the door on January 16, 2015, as well as a co-worker who witnessed both
the January 16 incident and the January 23, 2015 incident when she struck the automatic
door. Employer did not refute the testimony of Employee and her two co-workers
regarding these events. Nevertheless, it argued at the expedited hearing that Employee
was not entitled to medical or temporary disability benefits because she had recently
settled her September 5, 2013 claim involving some of the same body parts. Employer
further argued that Employee’s proof was insufficient to establish that her alleged
medical conditions arose primarily out of the reported work accidents. It also objected to
the introduction of medical records offered by Employee because they were
electronically signed by a nurse practitioner. The trial court overruled Employer’s
objection and allowed Employee to introduce the nurse practitioner’s records.

       Following the expedited hearing, the trial court concluded in both cases that
Employee had presented sufficient evidence to entitle her to a panel of physicians, but
that she had not presented sufficient evidence to support an award of temporary disability
benefits. On appeal, Employer raises two issues pertaining to both claims: (1) the trial
court erred in admitting into evidence the medical records of the nurse practitioner, and
(2) the evidence does not support an order for medical benefits. It also asserts, with
respect to the second alleged accident, that there was no “hazard incident to
employment.”

      With respect to the first issue, the introduction of medical records as evidence is
governed by the Mediation and Hearing Procedures of the Tennessee Department of
Labor and Workforce Development, which state in pertinent part:
1
 “The Appeals Board may, in an effort to secure a just and speedy determination of matters on appeal and
with the concurrence of all judges, decide an appeal by an abbreviated order or by memorandum opinion,
whichever the Appeals Board deems appropriate, in cases that are not legally and/or factually novel or
complex.” Appeals Bd. Prac. & Proc. § 1.3.
                                                   2
        All medical records signed by a physician, including via electronic
        signature, or accompanied by a certification that the records are true and
        accurate which has been signed by a medical provider or custodian of the
        records shall be admissible. . . . For purposes of medical records, an
        electronic signature shall suffice if, in the opinion of the workers’
        compensation judge, the electronic signature demonstrates that the medical
        provider approved the contents of the medical record.

Tenn. Comp. R. & Regs. 0800-02-21-.16(6)(b) (2016). As evidenced by the last
sentence, this rule is designed to assist the trial court in determining the authenticity of
medical records that have been offered into evidence. The rule deems medical records
admissible if certain indicia of reliability are met: (1) they are signed by a physician, (2)
they are electronically signed by a physician, or (3) they include a certification form
signed by the medical provider or custodian of the records.2

       In the present case, Employee offered into evidence the February 6, 2015 record of
Debora Dowda, FNP. It is not signed by a physician and contains no electronic signature
of a physician. Moreover, Employee did not offer the prescribed certification form with
the medical record. Thus, this record does not fall within any of the three categories of
admissible medical records described by Tenn. Comp. R. & Regs. 0800-20-21-.16(6)(b).
Consequently, it was error for the trial court to accept this medical record into evidence.
However, given the nature of the trial court’s determination, the error was harmless. The
record was not offered to prove the cause of Employee’s medical conditions and was not
relied on by the trial court in reaching its determination that Employee was entitled to a
panel of physicians. As such, Employer’s argument as to this issue does not mandate a
reversal or modification of the trial court’s order as urged by Employer.3

       Employer next argues that the evidence presented did not support an order for
benefits. Specifically, in objecting to the admission of the nurse practitioner’s medical
record, Employer asserts, “there is no other medical evidence presented to support an

2
  Notably, although the regulation identifies certain medical records that are admissible, it does not speak
to whether the contents of such records are relevant, material, or otherwise entitled to any weight. Even if
a trial court determines that medical records are authentic and admissible pursuant to this rule, that
determination does not prevent a party from objecting on other grounds to the trial court’s consideration
of all or parts of the records.
3
  On December 15, 2016, following the filing of Employer’s Notices of Appeal, Employee filed
approximately one hundred fifty pages of documents purporting to be medical bills and medical records.
Our role in evaluating a trial court’s decision on appeal entails taking into account information the trial
court had before it at the time it decided the issues, as opposed to considering information the parties may
seek to present on appeal. Hadzic v. Averitt Express, No. 2014-02-0064, 2015 TN Wrk. Comp. App. Bd.
LEXIS 14, at *13 n.4 (Tenn. Workers’ Comp. App. Bd. May 18, 2015). Thus, we will not consider on
appeal “testimony, exhibits, or other materials that were not properly admitted into evidence at the
hearing before the trial judge.” Id.
                                                     3
award of benefits, and therefore, the Employee is completely lacking in the necessary
expert medical testimony to support a finding of a compensable injury.” This argument
misconstrues both the trial court’s decision and the standard of proof applicable to an
expedited hearing. Contrary to Employer’s argument, the trial court did not find
Employee had proven a compensable injury, but instead determined that “[Employee] has
not established that she sustained an injury arising primarily out of her employment.”
Nevertheless, the trial court correctly noted that the relevant inquiry was not whether
Employee had proven by a preponderance of the evidence that she sustained injuries
arising primarily out of and in the course and scope of employment, but whether she
came forward with sufficient evidence to show she was likely to prevail at trial in
establishing one or more compensable injuries. See McCord v. Advantage Human
Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Tenn.
Workers’ Comp. App. Bd. Mar. 27, 2015). In that regard, Employee offered unrefuted
testimony regarding the two work accidents that was corroborated by two witnesses.
Employer offered no witness testimony and no other evidence that the accidents in
question did not occur as alleged. Thus, we conclude there was sufficient evidence to
support a finding that Employee was involved in accidents at work on January 16, 2015
and on January 23, 2015 that triggered Employer’s obligation to provide panels of
physicians in accordance with Tenn. Comp. R. & Regs. 0800-02-01-.25 (2015).

       Finally, with respect to the January 23, 2015 accident, Employer argues that
because the door in question was accessible to the general public, her accident that day
did not arise from a hazard peculiar to her employment. Again, however, this argument
goes to the ultimate question of causation and is not pertinent to the limited issue decided
at the expedited hearing. The trial court found that Employee had presented sufficient
evidence at the expedited hearing to show she is likely to prevail at trial and that satisfies
Employee’s burden at this interlocutory stage of the case.

       For the reasons discussed above, we find the evidence supported the trial court’s
order for Employer to provide panels of physicians to Employee as a result of her January
16, 2015 and January 23, 2015 work accidents. The trial court’s order is affirmed, and
the case is remanded to the trial court for any further proceedings that may be necessary.




                                              4
                         TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                           WORKERS’ COMPENSATION APPEALS BOARD

Darlene Noel                                               )   Docket No.   2016-08-0054
                                                           )   Docket No.   2016-08-0069
                                                           )
v.                                                         )   State File No. 45760-2015
                                                           )   State File No. 9570-2015
                                                           )
EAN Holdings, LLC, 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 19th day of January, 2017.
 Name                      Certified   First Class   Via   Fax      Via     Email Address
                           Mail        Mail          Fax   Number   Email

 Darlene Noel                  X                                            3896 Brookmeade Street
                                                                            Memphis, TN 38127
 Alex B. Morrison                                                     X     abmorrison@mijs.com
 Allen Phillips, 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
