                                                                                 FILED
                                                                               Jun 20, 2018
                                                                              07:26 AM(CT)
                                                                            TENNESSEE COURT OF
                                                                           WORKERS' COMPENSATION
                                                                                  CLAIMS



            TENNESSEE BUREAU OF WORKERS' COMPENSATION
          IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                           AT MEMPHIS

MARY MOORE,                                 )   Docket No.: 2017-08-1422
        Employee,                           )
v.                                          )
REAL NURSES LLC,                            )   State File No.: 96017-2017
         Employer,                          )
and                                         )
LIBERTY MUTUAL INSURANCE,                   )   Judge Deana Seymour
         Insurance Carrier.                 )


             EXPEDITED HEARING ORDER DENYING MEDICAL
                AND TEMPORARY DISABILITY BENEFITS


       This case came before the undersigned Workers' Compensation Judge on May 30,
2018, upon Mary Moore's Request for Expedited Hearing. The central legal issue is
whether Ms. Moore is likely to prevail at a hearing on the merits for entitlement to
medical and temporary disability benefits. The Court holds she is not likely to do so and
denies her request for benefits at this time.

                                   History of Claim

       Ms. Moore worked as a home health nurse for Real Nurses LLC when she claimed
a back injury from turning a patient on December 11, 2017. Ms. Moore's supervisor,
Tracie Willis, testified by affidavit that Ms. Moore worked on December 11 and
December 14 but declined work on December 15 and December 16. According to Ms.
Willis, Ms. Moore contacted the call center approximately thirty minutes after declining
work on December 16 and reported her alleged injury.

      Ms. Willis provided Ms. Moore a panel of doctors and scheduled an appointment
with DeSoto Family Medical. Rather than attending her scheduled appointment, Ms.
Moore presented to DeSoto Family Medical several days later, advising she needed a
work physical. When Ms. Willis contacted Ms. Moore about the missed appointment,
Ms. Moore stated she no longer wanted to see a workers' compensation doctor because
she wanted to treat with her own doctor.

                                           1
        Later, Ms. Moore filed a Petition for Benefit Determination, after which Real
Nurses' workers' compensation insurance carrier provided her with a new panel of
physicians. Ms. Moore suggested she signed and returned the panel to adjuster Michael
Aviles. However, Mr. Aviles testified by affidavit that he never received it. He further
testified that Ms. Moore refused to sign a medical release and provide him with related
medical records and bills.

      Ms. Moore failed to introduce any medical records or bills into evidence at the
Expedited Hearing. Nevertheless, she asked the Court to order Real Nurses to provide
medical treatment and pay temporary disability benefits.

       Real Nurses argued that Ms. Moore did not meet her burden of proving a work-
related injury. It claimed it tried twice to provide Ms. Moore with authorized treatment,
but she sought treatment on her own and then refused to provide a medical release or
medical records from her unauthorized treatment. Real Nurses contended this refusal of
treatment amounted to prejudicial non-compliance under the Tennessee Workers'
Compensation Law and urged the passage of time caused by Ms. Moore's delay would
make obtaining a causation opinion from a physician more difficult. In addition, Real
Nurses questioned the claim because Ms. Moore waited five days to report her injury and
because the circumstances surrounding her report were suspicious.

                       Findings of Fact and Conclusions of Law

                                    Standard Applied

        Ms. Moore bears the burden of proof on the essential elements of her claim. Scott
v. Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18,
2015). She does not have to prove every element of her claim by a preponderance of the
evidence but must present sufficient evidence for the Court to determine she is likely to
prevail at a hearing on the merits. McCord v. Advantage Human Resourcing, 2015 TN
Wrk. Comp. App. Bd. LEXIS 6, at *9 (Mar. 27, 2015).

                                       Causation

       To prove a compensable injury, Ms. Moore must show her alleged injury arose
primarily out of and in the course and scope of her employment. Tenn. Code Ann. § 50-
6-102(14)(B) (2017). An injury "arises primarily out of and in the course and scope of
employment" only if it contributes more than fifty percent in causing the injury,
considering all causes, as shown to a reasonable degree of medical certainty. Tenn. Code
Ann. § 50-6-102(14)(B) and (C). This contribution must be established to a reasonable
degree of medical certainty, which means that, in the opinion of the physician, it is more


                                            2
likely than not considering all causes, as opposed to speculation or possibility. !d. at
(14)(D).

       Here, Ms. Moore provided very little explanation about how she injured her back
and did not address Real Nurses' concerns regarding the circumstances surrounding her
report of the claim. Ms. Moore failed to introduce medical proof of a work injury. Thus,
the Court finds she is unlikely to prevail at a hearing on the merits that she sustained an
injury arising out of and in the course and scope of her employment.

         Furthermore, Ms. Moore's refusal of medical treatment amounts to non-
compliance under Tennessee Code Annotated section 50-6-204( d)(8) (20 17)("If the
injured employee refuses ... to accept the medical or specialized medical services that
the employer is required to furnish under this chapter, the injured employee's right to
compensation shall be suspended[.]"). This non-compliance prejudiced Real Nurses by
impeding its ability to adequately investigate the claim. For the above reasons, the Court,
at this time, denies Ms. Moore's claim for interlocutory relief.

      IT IS, THEREFORE, ORDERED as follows:

   1. Ms. Moore's claim against Real Nurses for medical and temporary disability
      benefits is denied at this time.

   2. This matter is set for a Scheduling Hearing on August 20, 2018, at 10:00 a.m.
      Central Standard Time. The parties must call (toll-free) 866-943-0014 to
      participate in the Hearing. Failure to call may result in a determination of the
      issues without the parties' participation.

      Entered this the 20th day of June, 2018.


                               ~& :; _Si_
                                  JUDGE DEA' A C. SEYMOUR
                                  Court of Workers' Compensation Claims




                                            3
                                      APPENDIX

 Exhibits :
    1. C-41 Wage Statement
    2. Affidavit of Matthew Aviles
    3. Affidavit of Tracie Willis

 Technical record:
    1. Petition for Benefit Determination
    2. Dispute Certification Notice
    3. Request for Expedited Hearing and attached affidavit (Collective)
    4. Notice of Appearance
    5. Order Resetting Expedited Hearing
    6. Real Nurses' Witness and Exhibit List


                            CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the foregoing was sent to the
 following recipients by the following methods of service on this the 20th day of June,
 2018.

Name                   Certified     Via       Via     Email Address
                       Mail          Fax       Email
Mary Moore,                                       X    marydenita@gmail.com
Employee
Shaterra Marion,                                   X   shaterra.marion@libertymutual.com
Employer's Attorney



                                   P& ~~::,Clerk
                                           »
                                   Court o Workers' Compensation Claims
                                   WC.CourtClerk@tn.gov




                                               4
                           Expedited Hearing Order Right to Appeal:

     If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:

   1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
      form with the Clerk of the Court of Workers’ Compensation Claims within seven
      business days of the date the expedited hearing order was filed. When filing the Notice
      of Appeal, you must serve a copy upon all parties.

   2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
      calendar days after filing of the Notice of Appeal. Payments can be made in-person at
      any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
      alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
      website or any Bureau office) seeking a waiver of the fee. You must file the fully-
      completed Affidavit of Indigency within ten calendar days of filing the Notice of
      Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
      result in dismissal of the appeal.

   3. You bear the responsibility of ensuring a complete record on appeal. You may request
      from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
      the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
      it with the court clerk within ten business days of the filing the Notice of
      Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
      parties within ten business days of the filing of the Notice of Appeal. The statement of
      the evidence must convey a complete and accurate account of the hearing. The Workers’
      Compensation Judge must approve the statement before the record is submitted to the
      Appeals Board. If the Appeals Board is called upon to review testimony or other proof
      concerning factual matters, the absence of a transcript or statement of the evidence can be
      a significant obstacle to meaningful appellate review.

   4. If you wish to file a position statement, you must file it with the court clerk within ten
      business days after the deadline to file a transcript or statement of the evidence. The
      party opposing the appeal may file a response with the court clerk within ten business
      days after you file your position statement. All position statements 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.




For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
   Filed Date Stamp Here                     EXPEDITED HEARING NOTICE OF APPEAL
                                                  Tennessee Division of Workers' Compensation
                                                                                                     Docket#: - - - -- -- - --
                                                      www.tn.go v/labor-wfd/wcomp.shtm l
                                                                                                     State File #/YR: - - -- - - --
                                                             wc.courtclerk@tn.gov
                                                                1-800-332-2667                       RFA#: _ _ _ _ _ _ _ _____ _

                                                                                                     Date of Injury: - - - -- - - - -
                                                                                                     SSN: _______ _ ______ __




                      Employee


                      Employer and Carrier

          Notice
          Noticeisg~enthat _ _ _ _ _ _ _~~--~~~~---~~~--------~
                                    [List name(s) of all appealing party(ies) on separate sheet if necessary]

          appeals the order(s) of the Court of Workers' Compensation Claims at _ __

           -~~~-----~~~~~~~~-to the Workers' Compensation Appeals Board .
           [List the date(s) the order(s) was filed in the court clerk's office]

          Judge___________________________________________

          Statement of the Issues
          Provide a short and plain statement of the issues on appeal or basis for relief on appeal:




          Additional Information
          Type of Case [Check the most appropriate item]

                             D   Temporary disability benefits
                             D   Medical benefits for current injury
                             D   Medical benefits under prior order issued by the Court

          List of Parties
          Appellant (Requesting Party): _____________ .A t Hearing: DEmployer DEmployee
          Address:. _______________________ ______________ ___________

          Party's Phone:.____________________________ Email: _________________________

          Attorney's Name:________________________________ ___ BPR#: - - - - - - - - - - - -

          Attorney's Address:. _ _ _ _ _~~-~~~~----~~----                                             Phone:
          Attorney's City, State & Zip code: _____________________ ___________ _ _ _ __ _
          Attorney's Email :_ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ __ _ _ _ __ _ _ _ _ _ _ __

                                        *Attach an additional sheet for each additional Appellant*

LB-1099    rev.4/15                                        Page 1 of 2                                                     RDA 11082
Employee Name: - - - -- - - -- - - -              SF#: _ _ _ _ __ _ _ _ _ DO l: _ __             _ __




Aopellee(s)
Appellee (Opposing Party): _ _ _ _ _ _ _ _.At Hearing: OEmployer DEmployee



Appellee's Address: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Appellee's Phone:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _.Email:_ _ _ _ _ _ __ _ _ _ _ _ __

Attorney's Name:_ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ BPR#: - - - - - - - -
Attorney's Address:._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Phone:

Attorney's City, State & Zip code: - - - -- - - - - - - - - - - - - - - - - - - -- -
Attorney's Email:._ _ _ _ __ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

                       * Attach an additional sheet for each additional Appellee *


CERTIFICATE OF SERVICE

I,                                             certify that I have forwarded a true and exact copy of this
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules of
Board of Workers' Compensation Appeals on this the              day of__, 20_ .



[Signature of appellant or attorney for appellant]



LB-1099   rev.4/1S                                Page 2 of 2                              RDA 11082
 .
ll                                                                                                                 .I




                                    Tennessee Bureau of Workers' Compensation
                                           220 French Landing Drive, 1-B
                                             Nashville, TN 37243-1002
                                                   800-332-2667


                                               AFFIDAVIT OF INDIGENCY


     I,                                                , having been duly sworn according to law, make oath that
     because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
     waived. The following facts support my poverty.

     1. Full Name:_ _ _ _ _ _ _ _ _ _ __                      2. Address: - - - - - - - - - - - - -

     3. Telephone Number: - - - - - - - - -                   4. Date of Birth: - - - - - - - - - - -

     5. Names and Ages of All Dependents:

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

             - - - - - - - - - - - - - - -- -                 Relationship: - - - - - - - - - - - --

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

     6. I am employed by: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , -

             My employer's address is: - - - - - - - - - - - - - - - - - - - - - - - - -

             My employer's phone number is: - - - - - - - - - - - - - - - - - - - - - - -

     7. My present monthly household income, after federal income and social security taxes are deducted, is:

     $ _ _ _ _ _ _ ___

     8. I receive or expect to receive money from the following sources:

             AFDC            $            per month           beginning
             SSI             $            per month           beginning
             Retirement      $            per month           beginning
             Disability      $            per month           beginning
             Unemployment $               per month           beginning
             Worker's Camp.$              per month           beginning
             Other           $            per month           beginning



     LB-1108 (REV 11/15)                                                                               RDA 11082
9. My expenses are: ' ;                                                     !•
                                                                             '

        Rent/House Payment $              per month     Medical/Dental $            per month

        Groceries         $         per month           Telephone       $           per month
        Electricity       $         per month           School Supplies $           per month
        Water             $         per month           Clothing        $           per month
        Gas               $         per month           Child Care      $           per month
        Transportation $            per month           Child Support   $           per month
        Car               $          per month
        Other             $         per month (describe:


10. Assets:

        Automobile              $ _ _ __ _
                                                        (FMV) -    - - - - -- - - -
        Checking/Savings Acct. $ _ _ _ __
        House                   $ _ _ _ __
                                                        (FMV) - - -- - - -- - -
              )
        Other                   $ _ _ _ __              Describe:_ _ _ __ _ _ _ _ __


11. My debts are:

        Amount Owed                     To Whom




I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.




APPELLANT



Sworn and subscribed before me, a notary public, this

_ _ _ dayof _____________ ,20____




NOTARY PUBLIC

My Commission Expires:_ _ _ _ _ __ _




LB-1108 (REV 11/15)                                                                         RDA 11082
