                  COURT OF WORKERS’ COMPENSATION CLAIMS
                    DIVISION OF WORKERS' COMPENSATION


EMPLOYEE: Laura Campbell                             DOCKET #: 2014-06-0070
                                                     STATE FILE #: 61906-2014
EMPLOYER: Mid-South Waffles, Inc., d/b/a             DATE OF INJURY: August 2, 2014
Waffle House

INSURANCE CARRIER: Brentwood Services

                             EXPEDITED HEARING ORDER

       THIS CAUSE came before the undersigned Workers' Compensation Judge on April 8,
2015, upon the Request for Expedited Hearing filed by Employee, Laura Campbell, on March 9,
2015, pursuant to Tennessee Code Annotated section 50-6-239 to determine if it is appropriate
that Employer, Mid-South Waffles, Inc., d/b/a Waffle House (“Waffle House”), provide
additional medical benefits.

       Attorney Charles Hicks represents Ms. Campbell. Attorney Sarah Reisner represents
Waffle House. Upon review of Ms. Campbell’s request, the technical record and the evidence
presented at the Expedited Hearing, the following order grants Ms. Campbell’s request for
medical benefits for the reasons set forth below.

                                        ANALYSIS

                                            Issues

       1. Whether Ms. Campbell sustained an injury arising primarily out of and in the course
          and scope of employment with Waffle House.

       2. Whether Waffle House is obligated to provide additional medical benefits.

                                    Evidence Submitted

       The Court admitted the following into evidence:

          Exh. 1-Medical records of Laura Campbell from Daniel Adkisson, PA-C, Dr.
          Demond White and Dr. Salyer of Dickson Medical Associates
          Exh. 2-Affidavit of Teresa Grimm, March 15, 2015
          Exh. 3-Affidavit of Valerie Mackens, December 18, 2014

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           Exh. 4-First Report of Injury, August 8, 2014
           Exh. 5-Letter from Leigh Purucker dated September 9, 2014 (for identification
           purposes only)
           Exh. 6-Notice of Denial of Claim for Compensation, September 9, 2014
           Exh. 7-Drug test results.

       The following witnesses testified at the hearing:

                      Laura Campbell
                      Teresa Grimm.

       The technical record consists of the following:

                      Petition for Benefit Determination, November 26, 2014;
                      Dispute Certification Notice, filed November 24, 2014; and,
                      Request for Expedited Hearing, March 9, 2015.

       The Court considered any factual statements contained within the pleadings and
attachments to them as allegations unless established by the evidence.

                                        History of Claim

         Ms. Campbell worked as a server at the Waffle House in Dickson, Tennessee. She
testified that, on August 2, 2014, a manager trainee was restocking the “low bar” with
condiments while she delivered food. While restocking the condiments, a bottle of Tabasco
sauce fell to the floor and shattered. Ms. Campbell stated her foot “slipped, slid, and gripped” in
the spilled sauce.

       Ms. Campbell’s co-worker, Teresa Grimm, witnessed the accident. Ms. Grimm testified
that “Ramona…was putting the stock up and when she did put it on the shelf, it broke. And as it
broke—we work in small area—Laura was [sic] had her back turned. It fell. Laura turned
around. I looked for a towel. I went to grab a towel and at the same time, she slipped in it and
her knee, well her leg, I’ll say her leg, twisted and she went to go down. And I went to see,
make sure she didn’t fall, and we put a towel over it after she got out of it.”

       Ms. Campbell testified that she reported the incident to Chris Tucker, the district
manager, and told him that her knee hurt. Ms. Grimm verified that Ms. Campbell had a
conversation with Mr. Tucker concerning the incident.

       Ms. Campbell further testified that she told the store manager, Tina Richardson, about the
accident on the following day. She told Ms. Richardson that her knee was swollen and hurting.
Ms. Campbell stated that she called Ms. Richardson again the following morning, August 4,
2014, and told her that she needed to see a doctor. When Ms. Richardson did not offer to send
Ms. Campbell to a doctor, Ms. Campbell told Ms. Richardson that she would be going to see her
own doctor.


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        That same day, Ms. Campbell visited her primary care provider, physician assistant
Daniel Adkisson, to seek treatment for her knee. Mr. Campbell testified that PA Adkisson told
her that “something was wrong with her ACL.” His treatment notes, which are difficult to
decipher, appear to say that she presented for “pain management” and a “knee injury” and further
state, “Recent fall at work, slipped on floor this past weekend.” He diagnosed “knee strain and
instability.” PA Adkisson told Ms. Campbell to get a brace for her knee.

        At some point after visiting PA Adkisson, Ms. Campbell testified that a person named
“Silver,” who worked in the human resources for Waffle House, called and told her to see Dr.
John Salyer.

        Ms. Campbell saw Dr. Salyer on August 12, 2014. The “history” portion of notes from
that visit state the pain onset was sudden, and, “Trauma type slipped, (sic.) occurred at work, 1
Week 3 Days ago on 8/2/2104.” X-rays performed that same day found “no evidence of acute
injury,” and, “[n]ormal appearance of left knee.” He diagnosed her with acute knee pain. Dr.
Salyer additionally wrote the following in a letter: “Laura Campbell is currently under my
medical care and may return to work at this time. She may return to work on August 13. Due to
the persistent pain in[]her let [sic] knee, she needs to have and [sic] MRI of her left knee. Please
relay this information to Workers Comp carrier so that they can schedule this.” (Exh. 1).

        Ms. Campbell testified that Mr. Tucker instructed her to bring him the records from her
visit with Dr. Salyer. Mr. Tucker was not at the restaurant so she left the records with Ms.
Grimm who put them in the “drop box” so that Mr. Tucker would find them when he “changed
the drawer” later in the day. Ms. Campbell testified that she heard nothing else about getting an
MRI from her supervisors at Waffle House and still has not received an MRI.

        On September 9, 2014, Brentwood Services, the TPA for Waffle House, issued a form C-
23, “Notice of Denial of Claim for Compensation,” stating that “the claim did not arise out of or
in the course of employment” as the basis for denial. (Exh. 6).

         She received no further treatment through workers’ compensation. She did visit PA
Adkisson again who gave her medicine to control the swelling in her knee. Ms. Campbell
testified that she attempted to get an MRI by using her private medical insurance but her medical
insurance refused to pay for the MRI because the injury occurred at work.

      Ms. Campbell testified that she had no prior left knee problems since having stitches in
her knee as a child. However, another co-worker, Valerie Mackens, indicated that Ms.
Campbell’s knee pain pre-existed the date of injury (Exh. 3). In her sworn affidavit, dated
December 19, 2014, Ms. Mackens stated that:

               On the morning of August 1, 2014, at approximately 8:00 a.m.,
               Laura Campbell told me that her left knee was hurting. She stated
               that she did not know why and mentioned that she might have slept
               on it wrong. She complained about this left knee pain at least three
               (3) times that day.



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When asked about Ms. Mackens’ statement, Ms. Campbell denied that she had told Ms. Mackens
that she had knee problems prior to August 2, 2014. Ms. Grimm testified that Ms. Campbell had
not complained to her about problems with her knee.

         Concerning the current condition of her knee, Ms. Campbell testified that “it hurts, it
throbs, it’s not solid.” When asked whether her knee affected her ability to work, Ms. Campbell
testified that “it hurts, but I have to work.”

                                 Ms. Campbell’s Contentions

        Ms. Campbell asserts she sustained an injury arising primarily out of and in the course
and scope of employment with Waffle House when she slipped in Tabasco sauce, twisting her
left knee. She seeks additional medical benefits and including continuing her treatment with Dr.
Salyer. In particular, she requests that the Court order Waffle House to pay for the MRI that Dr.
Salyer ordered.

                                 Waffle House’s Contentions

        Waffle House contends that Ms. Campbell failed to meet her burden of proof to show that
she sustained an injury arising primarily out of and in the course and scope of her employment.
Because the claim is not compensable, it is no longer obligated to provide additional medical
benefits.

                          Findings of Fact and Conclusions of Law

                                     Standard Applied

        When determining whether to award benefits, the Judge must decide whether the moving
party is likely to succeed on the merits at trial given the information available. See generally,
McCall v. Nat’l Health Care Corp., 100 S.W.3d 209, 214 (Tenn. 2003). In a workers’
compensation action, pursuant to Tennessee Code Annotated section 50-6-239(c)(6), the
employee shall bear the burden of proving each and every element of the claim by a
preponderance of the evidence. However, at the interlocutory, Expedited Hearing phase, the
employee need not prove each and every element of his or her claim by a preponderance of the
evidence to be entitled to temporary disability or medical benefits, but must instead present
evidence sufficient for the trial court to conclude that the employee would likely prevail at a
hearing on the merits in accordance with the express terms of section 50-6-239(d)(1). McCord v.
Advantage Human Resourcing, No. 79894-2014 (Tenn. Work. Comp. App. Bd., March 27,
2015). The employee must show the injury arose primarily out of and in the course and scope of
employment. Tenn. Code Ann. § 50-6-102(13) (2014). The workers’ compensation law shall
not be remedially or liberally construed but shall be construed fairly, impartially, and in
accordance with basic principles of statutory construction favoring neither the employee nor the
employer. Tenn. Code Ann. § 50-6-116 (2014).

                                       Factual Findings

       The Court finds that Ms. Campbell slipped in Tabasco sauce while working at Waffle
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House on August 2, 2014, and suffered an injury to her left knee. The Court finds that Ms.
Campbell timely reported the accident and her injury to both the district manager, Chris Tucker,
and the store manager, Tina Richardson. The Court finds that Waffle House did not provide Ms.
Campbell a panel of physicians when it first learned of the accident but did schedule an
appointment for Ms. Campbell with Dr. John Salyer. The Court finds that Ms. Campbell
rightfully sought care from her primary care provider when Waffle House failed to provide
medical care upon learning of the accident. The Court finds that Dr. Salyer examined Ms.
Campbell and determined that she needed an MRI of her left knee. The Court finds that, despite
not being offered a panel, Ms. Campbell is pleased with the treatment provided by Dr. Salyer and
he shall serve as the authorized treating physician.

                                  Application of Law to Facts

        The employee must show the injury arose primarily out of and in the course and scope of
employment. Tenn. Code Ann. § 50-6-102(13) (2014). An injury occurs in the course of
employment if it takes place while the employee was performing a duty he or she was employed
to perform. Fink v. Caudle, 856 S.W.2d 952, 958 (Tenn. Workers' Comp. Panel 1993). Thus,
the course of employment requirement focuses on the time, place, and circumstances of the
injury. Saylor v. Lakeway Trucking, Inc., 181 S.W.3d 314, 318 (Tenn. 2005). In contrast,
arising out of employment refers to causation. Reeser v. Yellow Freight Sys., Inc., 938 S.W.2d
690, 692 (Tenn. 1997). 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,
the element of causation is satisfied when the "injury has a rational, causal connection to the
work." Braden v. Sears, Roebuck & Co., 833 S.W.2d 496, 498 (Tenn. 1992).

        Here, Ms. Campbell testified that she hurt her knee when she slipped in Tabasco sauce
while serving food at Waffle House on August 2, 2014. Ms. Grimm affirmed Ms. Campbell’s
testimony. Furthermore, Ms. Campbell timely reported her injury to her supervisors. Although,
Ms. Mackens provided an affidavit stating that Ms. Campbell complained of knee pain on
August 2, 2014, Ms. Campbell denied making those statements and, even if she did complain of
knee pain, her complaints of pain would not render her claim noncompensable, as the August 2,
2014 incident could have aggravated a pre-existing condition. In any event, the Court finds that
Ms. Campbell has shown a likelihood of success on the merits at a compensation hearing and
has, therefore, carried her burden of proof in these proceedings.

        The statute provides that the employer shall furnish, free of charge to the employee, such
medical treatment made reasonably necessary by the accident. Tenn. Code Ann. § 50-6-
204(a)(1)(A) (2014). The law further states, “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.” Tenn. Code Ann. § 50-6-204(a)(3)(A) (2014). Further, “any
treatment recommended by a physician… selected pursuant to this subdivision (a)(3)… shall be
presumed medically necessary for treatment of the injured employee.” Tenn. Code Ann. § 50-6-
204(a)(3)(H) (2014).




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       Dr. Salyer has recommended that Ms. Campbell undergo an MRI. The Court finds his
recommendation reasonable and necessary. Accordingly, Waffle House shall pay the cost of the
MRI and further treatment recommended by Dr. Salyer.

        In addition to this finding, the Court also finds that Brentwood Services’ actions in this
case warrant investigation into whether the Division of Workers’ Compensation should assess a
civil penalty. The Division may assess a civil penalty of between fifty and five-thousand dollars
($50-$5,000) against any person or entity that “denied or stopped paying benefits for a claim of
temporary disability or medical benefits without first performing a reasonable investigation.”
Tenn. Comp. R. & Regs. 0800-02-24-.05(1)(c). Any Division employee may refer cases for a
civil penalty investigation whenever the employee “…believes that there may have been a
violation of the Division’s rules or the Tennessee Workers’ Compensation Act.” Id. at 0800-02-
24-.03. The Court believes that such a violation may have occurred.

         An x-ray or Ms. Campbell’s knee found “no evidence of acute injury,” and, “[n]ormal
appearance of left knee.” Despite the x-ray results, Dr. Salyer, the authorized treating physician,
still recommended that Ms. Campbell undergo an MRI due to the persistent pain in her left knee
and even drafted a letter, dated August 12, 2014, which stated “please relay this information to
Workers Comp carrier so that they can schedule this.” Brentwood Services issued a notice of
denial on September 9, 2014, despite the letter from Dr. Salyer recommending an MRI.

        At the hearing, Brentwood Services pointed to the x-ray results and the affidavit of
Valerie Mackens in support of the decision to deny Ms. Campbell’s claim. In the opinion of the
Court these pieces of evidence provided insufficient reason to abruptly terminate her care. First,
an x-ray would not reveal any possible soft-tissue or ligament damage and Dr. Salyer knew the
x-ray results when he ordered the MRI. Second, Brentwood Services could not have considered
Ms. Mackens’ affidavit as a basis to deny the claim because she did not complete it until
December 18, 2014—more than three months after Brentwood Services issued the denial notice.

        Based on the evidence presented, the Court believes that Brentwood Services may have
violated rule 0800-02-24-.05(1)(c) and refers this case to the Division’s penalty program for an
investigation.

 IT IS, THEREFORE, ORDERED as follows:

   1. Waffle House shall provide Ms. Campbell with medical treatment for her injuries as
      required by Tennessee Code Annotated section 50-6-204, to be re-initiated by authorizing
      an MRI and any further treatment with Dr. Salyer as he deems reasonable, necessary, and
      related to the work injury.

   2. This is not a final order.

   3. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
      with this Order must occur no later than seven (7) business days from the date of
      entry of this Order as required by Tennessee Code Annotated section 50-6-
      239(d)(3). The Insurer or Self-Insured Employer must submit confirmation of

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     compliance     with     this    Order    to    the    Division    by    email    to
     WCCompliance.Program@tn.gov no later than the seventh (7th) 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.

  4. For questions regarding compliance, please contact the Workers’ Compensation
     Compliance Unit via email WCCompliance.Program@tn.gov or by calling (615) 253-
     1471 or (615) 532-1309.

  5. This matter has been set for an initial hearing on July 8, 2015, at 10:00 a.m. (CDT).
     The hearing shall be conducted via teleconference. Instructions for participation
     are included below.

ISSUED AND FILED WITH THE CLERK ON THIS THE 11th DAY OF MAY, 2015.




                                        _____________________________________
                                        Joshua Davis Baker
                                        Workers' Compensation Judge




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Initial Hearing:

        An Initial Hearing has been set with Judge Joshua Davis, 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 (7) business days of the date
      the Workers’ Compensation Judge entered the Expedited Hearing Order.

   3. Serve a copy of the Request for Appeal upon the opposing party.

   4. 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 (10) calendar days of the filing of the Expedited Hearing Notice of
      Appeal. Alternatively, the parties may file a statement of the evidence within ten (10)
      calendar days of the filing of the Expedited Hearing Notice of Appeal. The Judge must
      approve the statement of the evidence must be approved by the Judge before the record is
      submitted to the Clerk of the Appeals Board.

   5. If the appellant elects to file a position statement in support of the interlocutory appeal,
      the appealing party shall file such position statement with the Court Clerk within three (3)
      business days of the filing of the Expedited Hearing Notice of Appeal, specifying the
      issues presented for review and including any argument in support thereof. If the
      appellee elects to file a response in opposition to the interlocutory appeal, appellee shall
      do so within three (3) business days of the filing of the appellant’s position statement.




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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 May, 2015.

Name                    Certified   First   Via   Fax      Via     Email Address
                        Mail        Class   Fax   Number   Email
                                    Mail
Employee’s attorney,                                       X       Larry_hicks@bellsouth.net
Charles Hicks
Employer/Carrier’s                                         X       sreisner@manierherod.com
attorney,       Sarah
Reisner
Compliance                                                         WCCompliance.Program@tn.gov



                                                      ____________________________________
                                                      Penny Patterson Shrum, Clerk
                                                      Tennessee Court of Workers’
                                                      Compensation Claims
                                                      WC.Court.Clerk@tn.gov




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