                                                                                                                    FILED
                                                                                                              JUNE 6, 2016

                                                                                                                   TN COURT OF
                                                                                                        WORKERS' CO!\IPI NSATIO N
                                                                                                               CLA.Il\IS

                                                                                                                   Time: ll:t7 Al\1


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

Kirk Sikora                                                  )    Docket No.: 2016-04-0025
                     Employee,                               )
v.                                                           )    State File Number: 2125-2016
Cassens Transport, Co.                                       )
            Employer,                                        )    Judge Robert Durham
And                                                          )
New Hampshire Ins. Co.                                       )
            Insurance Carrier.                               )


           EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS


       THIS CAUSE came before the undersigned Workers' Compensation Judge on
May 20, 2016, upon the Request for Expedited Hearing (REH) filed by the employee,
Kirk Sikora, on March 15, 2016, pursuant to Tennessee Code Annotated section 50-6-239
(20 15) to determine if the employer, Cassens Transpmt, Co., is obligated to pay for Mr.
Sikora's emergency room treatment incurred on January 1, 2016. 1

       The dispositive issue is whether any injuries Mr. Sikora sustained during an
assault on December 31, 20 15, arose primarily out of and in the course and scope of his
employment with Cassens. 2 A secondary issue is whether Mr. Sikora is entitled to
reimbursement for emergency room treatment received on January 1, 2016. The Court
finds the evidence submitted by Mr. Sikora is sufficient to establish he sustained an
injury arising primarily out of and in the course and scope of his employment. The Court
further finds Cassens authorized the emergency room treatment, thus creating the
presumption that it was reasonable and necessary. As a result, Cassens shall pay this
expense in accordance with fee schedule guidelines.



1
  At the hearing, Mr. Sikora stipulated that the only benefit he sought from the Expedited Hearing was
reimbursement for the emergency room visit.
2
    Additional information regarding the technical record and exhibits is attached to this Order as an Appendix.

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                                    History of Claim

        Mr. Sikora is a forty-nine-year-old resident of Smith County, Tennessee, who
works as a truck driver for Cassens Transport, Co. (T.R. 1 at 1.) Mr. Sikora's testimony
as to the events ofDecember 31,2015, and January 1, 2016, were essentially uncontested
by Cassens. Mr. Sikora testified that on December 31, 2015, he drove from Cassens'
terminal in Smyrna, Tennessee to Chicago, Illinois, where he picked up a load for his
return trip to Tennessee. Given that he had already worked the maximum length of time
allowed by federal regulations and Cassens' policy, Mr. Sikora stopped at a Best Western
hotel in Lafayette, Indiana to take a mandatory ten-hour rest break. He testified Cassens
paid for the expenses associated with the stay, and he had stayed there several times
before.

        Mr. Sikora checked in to the hotel at approximately 3:30 p.m. and went to bed
around 8:00p.m. At 10:30 p.m., Mr. Sikora was awakened by noise from a party down
the hall from his room. After some time, he called to the front desk to complain but the
noise continued unabated. Mr. Sikora got up from bed and slammed his door as loudly as
he could to get the attention of the partygoers. The noise quieted, but after five minutes,
someone knocked on his door. Mr. Sikora told the person to go away, and they did;
however, fifteen minutes later, someone began pounding on his door. Mr~ Sikora again
demanded they leave him alone, but this time the pounding continued.

       Mr. Sikora rose from bed and opened the door to face three men. He testified he
could smell alcohol on their breath. One of the men asked him "what his problem was."
Mr. Sikora told him he was a truck driver and needed to get some sleep since he would be
leaving for work in a few hours, and he was not there to "party." One of the other men
then grabbed him by the throat and pushed him back against the glass closet door next to
the door of his room. Mr. Sikora told him to "get the fl'** out of his face" but testified
the man's grip became so tight that he momentarily passed out. He woke almost
immediately to find himself on the closet floor surrounded by glass. The men were still
outside his door. He told them he would have to call the police because of the damage
done to the door. At that point, the men left.

        Mr. Sikora called the police, but after a brief investigation, they left without
arresting anyone. Mr. Sikora told them he did not need medical treatment at that time.
The hotel moved him to another floor, and he slept for a few hours before waking to get
in his truck. He testified that upon waking, he had difficulty breathing and could barely
talk. After some time, he contacted the terminal and left a voicemail telling them he
needed medical attention. When he got back to Smyrna, he texted his dispatcher, Jim
Firkus, and told him he was back and needed medical attention. He asked if there was
somewhere specific he was required to go. He testified Mr. Firkus called and told him he
could seek medical attention anywhere.


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       After dropping off his truck, Mr. Sikora went to the emergency room at Stonecrest
Medical Center. He underwent tests for his neck and knee and was released shortly
thereafter. 3 Mr. Sikora returned to work and has not sought any additional medical
treatment. He testified he is not currently experiencing any symptoms.

       On cross-examination, Mr. Sikora conceded he did nothing to inform his alleged
assailants that he was in any way connected to Cassens. He further testified he initiated
contact with the parties by slamming his door. He also admitted he did not include any
statement in his affidavit about the parties having alcohol on their breath.

       Mr. Sikora filed a Petition for Benefit Determination seeking medical benefits on
January 29, 2016. The parties did not resolve the disputed issues through mediation, and
the Mediating Specialist filed a Dispute Certification Notice on March 18, 2016. Mr.
Miller filed an REH on March 15, 2016. The Court heard the matter on May 20, 2016.

       At the Expedited Hearing, Mr. Sikora contended he was at the hotel as required by
law and Cassens' policy; thus, he was in the course of employment at the time of the
assault. He further contended his injuries arose primarily out of his employment in that
the assault occurred due to a conflict between his need to sleep so he could drive the next
day and the party occurring down the hall from his room. Cassens countered that while
the injury may have occurred while Mr. Sikora was in the course of his employment, it
did not arise from his employment given that the alleged assailants were not even aware
Mr. Sikora worked for Cassens at the time of the assault.

                                 Findings of Fact and Conclusions of Law

        The Court considers the following legal principles in reaching its conclusions in
this matter. The Court must interpret the Workers' Compensation Law fairly, impartially
and in accordance with basic principles of statutory construction favoring neither the
employee nor employer. Tenn. Code Ann. § 50-6-116 (2015). The employee in a
workers' compensation claim has the burden of proof on all essential elements of a claim.
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, 2015).

       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.
This lesser evidentiary standard "does not relieve an employee of the burden of

3
    The parties did not enter any actual medical records into evidence.

                                                             3
producing evidence of an injury by accident that arose primarily out of and in the course
and scope of employment at an expedited hearing, but allows some relief to be granted if
that evidence does not rise to the level of a 'preponderance of the evidence."' Buchanan
v. Car/ex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6
(Tenn. Workers' Comp. App. Bd. Sept. 29, 2015).

       In order to establish compensability, an employee must prove he sustained an
injury "arising primarily out of and in the course and scope of employment. Tenn. Code
Ann. § 50-6-102(14)(A) (2015). Johnson v. Wal-Mart Associates, Inc., No. 2014-06-
0069, 2015 TN Wrk. Comp. App. Bd. LEXIS 18, at *11-12 (Tenn. Workers' Comp. App.
Bd. July 2, 2015), addresses how the courts interpret this language:

         The statutory requirements that an injury arise out of and in the course of
         the employment are not synonymous "although both elements exist to
         ensure a work connection to the injury for which the employee seeks
         benefits." 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. Thus, the course of employment requirement focuses on the time,
         place, and circumstances of the injury. By contrast, arising out of
         employment refers to causation. 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. Put another way, an
         injury arises out of employment when it "has a rational, causal connection
         to the work."

(Citations omitted).    Mr. Sikora must provide sufficient evidence regarding the
circumstances of his assault to show he is likely to prevail at a hearing on the merits with
regard to both elements in order to prevail. Tenn. Code Ann. § 50-6-102(14)(A) (2015).

       Similar to the employer in Padilla v. Twin City Fire Ins. Co., 324 S.W.3d 507, 511
(Tenn. 2010), 4 Cassens did not focus its argument on whether Mr. Sikora was in the
course of his employment, but instead disputed whether the injury "arose out of' his
employment with Cassens. Nevertheless, the Court finds both federal law and Cassens'
policy required Mr. Sikora to take a ten-hour rest break immediately after working the
maximum time allowed. Furthermore, Cassens paid for his stay at the Best Western hotel
in Lafayette, Indiana, and had done so several times in the past. The assault occurred
during Mr. Sikora's mandatory rest break at the hotel. Therefore, the Court finds the
4
 The Tennessee Workers' Compensation Appeals Board allows reliance on precedent from the Tennessee Supreme
Court "unless it is evident that the Supreme Court's decision or rationale relied on a remedial interpretation of pre-
July I, 2014 statutes, that it relied on specific statutory language no longer contained in the Workers' Compensation
Law, and/or that it relied on an analysis that has since been addressed by the general assembly through statutory
amendments." McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, *13 n.4 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).


                                                          4
assault occurred while Mr. Sikora was in a place his employment required him to be at a
time he was required to be there. See Johnson, supra, at * 11-12. Thus, the Court finds
Mr. Sikora was in the course of his employment with Cassens at the time of the assault.
!d.

      With regard to ansmg out of employment, the Supreme Court has generally
recognized three types of assaults that occur in the workplace:

       (1) assaults with an "inherent connection" to employment such as disputes
       over performance, pay or termination; (2) assaults stemming from
       "inherently private" disputes imported into the employment setting from
       the claimant's domestic or private life and not exacerbated by the
       employment; and (3) assaults resulting from a "neutral force" such as
       random assaults on employees by individuals outside the employment
       relationship.

Padilla, supra, at *511-12 (Tenn. 2010) (citations omitted); see also Wait v. Travelers
Indem. Co. ofIll., 240 S.W.3d 220,227 (Tenn. 2007).

        In this matter, Cassens argues Mr. Sikora's situation is similar to that of the
employee in Wait. Wait, supra, at *223. Ms. Wait worked for her employer from her
home. !d. While making lunch, she invited a man into her kitchen where he brutally
assaulted her. !d. The assault had nothing to do with Ms. Wait's employment other than
she happened to be working from home where the assault occurred. !d. Under those
circumstances, the Court found Ms. Wait's injuries were the result of a "neutral force"
that did not arise from her employment and declined to award her benefits. !d. at 227-28.

        Cassens argues the Court should find the same to be true in Mr. Sikora's case
since the assault occurred in a neutral location and the assailants were not even aware Mr.
Sikora was a Cassens employee. Cassens contends that, as in the Wait case, the only
connection between Mr. Sikora's injury and his employment with Cassens was that he
was required to be at the hotel at the time of the assault. Cassens avers that, while that
may be sufficient to meet the requirement that the injury be in the course of employment,
it is not enough to establish the injury primarily arose out of employment. See !d.

        However, the Court is not persuaded by Cassens' argument. In Mr. Sikora's case,
he was in the midst of a mandatory break so he might be sufficiently rested to perform his
job safely the next day. The party down the hall prevented him from obtaining this rest.
Mr. Sikora attempted to call attention to this interruption, perhaps unwisely, by slamming
his door very loudly. When he did so, the parties eventually confronted each other and
Mr. Sikora told them he needed to rest because he was a truck driver and would be on the
road in a few hours. At that point, he was physically attacked, sustaining the injuries that
led to his emergency room visit the next day.

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       Therefore, unlike the employee in Wait where the assault had no connection to
Ms. Wait's employment, the assault on Mr. Sikora originated from his mandatory rest
period and his need for sleep so he could safely perform his job the next day. Certainly,
it was in Cassens' best interests that he be able to sleep before getting behind the wheel
of his truck. While Mr. Sikora may not have chosen the best option in seeking relief
from the noise of the party, the Court nevertheless finds a sufficient causal connection to
establish the assault and resulting injury arose out of his employment. Johnson, supra, at
*11-12.

        As a result, the Court finds Mr. Sikora provided sufficient evidence to establish he
is likely to prevail at a hearing on the merits with regard to whether his injuries primarily
arose out of and in the course of his employment with Cassens, thus rendering his injuries
compensable. Tennessee Code Annotated section 50-6-102(14)(A) (2015).

        With regard to the emergency room treatment, the undisputed evidence is that Mr.
Sikora explicitly asked his dispatch manager, Jim Firkus, if he was required · to seek
medical care at a particular location and Mr. Firkus advised him to seek medical
treatment wherever he could find it. Thus, Mr. Firkus authorized the treatment provided
by Stonecrest Medical Center. Treatment requested and furnished by an authorized
treating physician for work-related injuries is presumed to be medically necessary and
reasonable. See, Crump v. B &P Constr. Co., 703 S.W.2d 140, 145 (Tenn. 1986); Russell
v. Genesco, Inc., 651 S.W.2d 206, 211 (Tenn. 1983). Therefore, the Court finds Mr.
Sikora provided sufficient evidence to establish he would prevail at trial on the issue of
payment for treatment provided by Stonecrest Medical Center for injuries causally related
to the assault on December 3 1, 20 15. !d.

 IT IS, THEREFORE, ORDERED as follows:

 1. Cassens shall pay the emergency room bill for expenses incurred for the treatment
 of Mr. Sikora's injuries causally related to the assault of December 31, 2015, in
 accordance with fee schedule guidelines.

 2. This matter is set for Initial Hearing/Status Conference on July 6, 2016, at 1:30
 p.m.C.T.

 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) (2015). The Insurer or Self-Insured Employer must submit confirmation
 of compliance with this Order to the Bureau by email to
 WCCompliance.Program@tn.gov no later than the seventh business day after


                                             6
 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.

ENTERED THIS THE ~'hDAY OF JUNE, 2016.

                        ~-ge__________________
                               Court of Workers' Compensation Claims




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 Initial Hearing:

         An Initial Hearing/Status Conference has been set with Judge Robert
 Durham, Court of Workers' Compensation Claims. You must call 615-253-0010 or
 toll-free at 866-689-9049 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
       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 timely pay the filing fee or f"de 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

                                             8
   with the Court Clerk within ten calendar days of the filing of the Expedited
   Hearing Notice of Appeal. Alternatively, the parties 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
   five 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 five business days ofthe filing of the 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.




                                         9
                                     APPENDIX

Exhibits:

1.     Affidavit of Kirk Sikora;
2.     Employee Worker's Comp Wage Calculation; and
3.     Medical bill from Stonecrest Medical Center.

Technical Record:

1.     Petition for Benefit Determination;
2.     Request for Expedited Hearing; and
3.     Dispute Certification Notice.




                           CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Expedited Hearing Order
Granting Medical Benefits was sent to the following recipients by the following methods
of service on this the _th
                       6 day of June, 2016.

Name                    Certified     Via          Via      Service sent to:
                         Mail         Fax         Email
Kirk Sikora                X                       X        246 Meadow Green Lane, Apt. C
                                                            Gordonsville, TN 38563
                                                            prazjsus@)yahoo.com
Peter Rosen                                        X        prosen_@levineorr.com




                                                             , Clerk of Court
                                                           r-kers' Compensation Claims
                                                          lerk@tn.gov




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