                                                                                      FILED
                                                                                    Mar 07, 2019
                                                                                    01:51 PM(CT)
                                                                                 TENNESSEE COURT OF
                                                                                WORKERS' COMPENSATION
                                                                                       CLAIMS




            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
           IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                          AT MURFREESBORO

ALEX GEASLEY,                                     )   Docket No. 2018-05-0735
         Employee,                                )
v.                                                )
                                                  )
RUTHERFORD FARMERS COOP.,                         )   State File No. 40442-2018
        Employer,                                 )
And                                               )
                                                  )
SENTRY INS.,                                      )   Judge Dale Tipps
         Carrier.                                 )   e




      EXPEDITED HEARING ORDER DENYING REQUESTED BENEFITS


        This matter came before the Court on March 5, 2019, for an Expedited Hearing on
Mr. Geasley’s entitlement to medical and temporary disability benefits. The central
issues are whether his claim is barred by failure to give proper notice and, if not, whether
he is likely to establish at a hearing on the merits that his injury arose primarily out of and
in the course and scope of his employment. For the reasons below, the Court holds Mr.
Geasley is not entitled to the requested benefits at this time.

                                      History of Claim

      Mr. Geasley suffered a chemical burn injury to his left foot while working for
Rutherford Farmers Co-operative (Co-op) in 2017. The burn led to an ulcer wound,
which resulted in amputation of his great toe and first metatarsal. Co-op accepted the
claim as compensable and provided treatment with Dr. Jeffrey Poole. This Court
approved the parties’ settlement of the claim on May 21, 2018. However, unknown to
Co-op, Mr. Geasley was having problems at that time with another toe on the same foot.

      Mr. Geasley testified that he suffered a new left-foot injury while working for Co-
op on May 7, 2018. He described using a bar as a lever to move a conveyor when the bar

                                              1
slipped and struck his fourth toe. He did not report the incident but kept working. Mr.
Geasley already had a medical appointment pending for his 2017 claim, so he chose to
address this new problem with Dr. Poole at that time.

        Dr. Poole saw Mr. Geasley on May 15 and noted that the reason for the
appointment was, “Left 4th toe: Open sore after kicking something.” He also
documented, “Pt does not remember kicking anything overtly. He relates that the toe has
been open for approximately a week.” Dr. Poole noted an open skin ulcer and diagnosed
cellulitis. He debrided the wound and ordered an x-ray. On May 22, Dr. Poole observed
that the wound had worsened to the point that the bone was now exposed. He scheduled
toe amputation surgery for May 30 to prevent likely bone infection.

       Mr. Geasley reported the injury to Co-op on May 30. Co-op contacted Dr. Poole
to ask for a causation opinion, and the surgery was postponed. It issued a Notice of
Denial on June 4, based on a “lack of medical evidence suggesting injury occurred at
work.” Mr. Geasley then began treating with a different doctor.

At the hearing, Co-op introduced a C-32 Standard Form Medical Report completed by
Dr. Poole. Under “Mechanism of Injury,” he stated, “The Employee said he had an open
sore after he kicked something. He did not say the injury to his 4th toe was work-related.”
In response to the question of whether Mr. Geasley’s employment activity was primarily
responsible for the injury or his need for treatment, Dr. Poole said: “Mr. Geasley did not
report a work-related injury to his 4th toe. Additionally, Mr. Geasley is diabetic and has
experienced ulcers on his toes, including his 4th left toe, in the past. A diabetic ulcer can
appear for no reason.” He then added a note saying that this was a “non work-related
injury.” Dr. Poole also indicated Mr. Geasley’s condition did not involve the aggravation
of a preexisting injury.

       At the hearing, Mr. Geasley suggested that the facts speak for themselves, and he
asked the Court to order Co-op to pay for the treatment related to his left fourth-toe
condition.

        Co-op contended that Mr. Geasley’s claim is barred by his failure to provide
proper notice of an injury. It also argued that, even if notice was legally adequate, Mr.
Geasley failed to prove he is likely to establish that his injury arose primarily out of and
in the course and scope of his employment. For these reasons, it asked the Court to deny
his request.


                       Findings of Fact and Conclusions of Law

                                     Standard applied


                                             2
       Mr. Geasley need not prove every element of his claim by a preponderance of the
evidence in order to obtain relief at an expedited hearing. Instead, he must present
sufficient evidence he is likely to prevail at a hearing on the merits. See Tenn. Code Ann.
§ 50-6-239(d)(1) (2018); McCord v. Advantage Human Resourcing, 2015 TN Wrk.
Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

                                          Notice

        Tennessee Code Annotated section 50-6-201(a)(1) provides that an injured
employee must give written notice of an injury within fifteen days unless it can be shown
that the employer had actual knowledge of the accident or that “reasonable excuse for
failure to give the notice is made to the satisfaction of the tribunal.”

        When the employer raises lack of notice as a defense, the burden is on the
employee to show either the employer had actual notice, that he provided notice, or that
his failure to give notice was reasonable under the circumstances. Hosford v. Red Rover
Preschool, 2014 TN Wrk. Comp. App. Bd. LEXIS 1, at *15 (Oct. 2, 2014). Our Appeals
Board explained the notice requirement “exists so that an employer will have an
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 an injured employee.”
Id. Guided by this authority, the Court must determine whether Mr. Geasley met his
burden of proof.

       The Court first finds Co-op had no “actual notice” of the injury. Mr. Geasley
admitted he was alone when the alleged incident occurred, and there is no evidence that
any representative of Co-op authorized to receive notice knew of the incident at that time.

        Second, the Court turns to whether Mr. Geasley provided notice to Co-op within
fifteen days. Mr. Geasley admitted he did not provide notice of his alleged May 7 injury
until May 30. Accordingly, the Court finds he did not provide timely notice.

        Next, the Court finds no reasonable excuse for Mr. Geasley’s failure to provide
timely notice. In Buckner v. Eaton Corp., 2016 TN Wrk. Comp. App. Bd. LEXIS 84
(Nov. 9, 2016), the employee sustained an injury on July 21, 2015, at a “specific time and
place performing a specific task.” However, he did not report his injury until September
2, 2015, forty-three days later. Id. at *3. Under these circumstances, the Appeals Board
concluded “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).”
Id. at *11. Specifically, “this was not a case where symptoms developed gradually over
time or were not immediately apparent.” Rather, the employee “was immediately aware
he hurt his back and shortly thereafter was . . . unable to work.” Id.

       The facts of this case are similar. Like the employee in Buckner, Mr. Geasley

                                            3
alleged an injury at a specific time and place while performing a specific task. While he
did not seek immediate assistance, he testified he sought treatment for the problem with
Dr. Poole on May 15. Yet he still failed to report the injury until May 30. Thus, this
delay cannot be not excused on grounds that his “symptoms developed gradually over
time or were not immediately apparent.” See Buckner, at *11.

       However, the inquiry does not end there. Tennessee Code Annotated section 50-
6-201(a)(3) provides that failure to give notice will not bar a claim unless the employer
can show it was prejudiced by the lack of notice. Accordingly, the Court must determine
whether Co-op suffered prejudice, and if so, to what extent. Prejudice may be found if
the employer is denied the opportunity to make an investigation while the facts are
accessible or to provide timely and proper treatment for the injured employee. Masters v.
Industrial Garments Mfg. Co., 595 S.W.2d 811, 815 (Tenn. 1980).

        Co-op presented no evidence of any prejudice to its ability to defend this claim.
Further, the medical treatment Mr. Geasley received before he reported the injury was
with Co-op’s authorized physician from his other claim. In the absence of evidence on
this issue, the Court cannot find Mr. Geasley’s alleged failure to report the injury resulted
in prejudice to Co-op, such as a serious impediment to investigating the claim or
providing treatment. Therefore, the Court holds that Mr. Geasley is likely to prevail at a
hearing on the merits on the issue of notice.

                                         Causation

       To prove a compensable injury, Mr. Geasley must show that his alleged injury
arose primarily out of and in the course and scope of his employment. To do so, he must
show, “to a reasonable degree of medical certainty that it contributed more than fifty
percent (50%) in causing the . . . disablement or need for medical treatment, considering
all causes.” “Shown to a reasonable degree of medical certainty” means that, in the
opinion of the treating physician, it is more likely than not considering all causes as
opposed to speculation or possibility. See Tenn. Code Ann. § 50-6-102(14).

       The only medical proof introduced are the records and C-32 of Dr. Poole. He
stated unequivocally that Mr. Geasley’s injury was “non work-related.” Mr. Geasley
emphatically disagrees, and the Court finds sincere his belief that his work accident
caused this condition. However, his untrained diagnosis does not meet the required legal
standard. Absent any other medical opinion, Mr. Geasley cannot prove “to a reasonable
degree of medical certainty” that his work contributed more than fifty percent in causing
the injury or the need for the treatment recommended by Dr. Poole.

       Because Mr. Geasley failed to establish a likelihood of proving that his injury
arose primarily out of his work, the Court cannot find at this time that he appears likely to
prevail on a claim for the requested medical or temporary disability benefits.

                                             4
IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Geasley’s claim against Co-op and its workers’ compensation carrier for the
      requested medical benefits is denied at this time.

   2. This matter is set for a Scheduling Hearing on May 21, 2019, at 9:00 a.m. Please
      call toll-free at 855-874-0473 to participate, or appear in person at 845 Esther
      Lane, Murfreesboro, TN 37129. Failure to call or appear may result in a
      determination of the issues without your further participation. All conferences are
      set using Central Time (CT).

      ENTERED this the 7th day of March, 2019.



                                 _____________________________________
                                 Judge Dale Tipps
                                 Court of Workers’ Compensation Claims



                                     APPENDIX

Exhibits:
   1. Dr. Poole’s C-32 Standard Form Medical Report
   2. Affidavit of Adam Michalec
   3. Notice of Denial
   4. First Report of Injury
   5. Wage Statement
   6. Copy of May 21, 2018 settlement documents
   7. Photograph of Mr. Geasley’s work boot

Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing
   4. Co-op’s Pre-Hearing Statement
   5. Co-op’s Witness and Exhibit List
   6. Co-op’s Notice of Intent to Read Deposition Excerpts into Evidence
   7. Co-op’s Notice of Intent to Rely on C-32



                                           5
                            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 7th day of
March, 2019.



 Name                      Certified Fax        Email    Service sent to:
                           Mail
 Alex Geasley,             X                             3218 Floyd Road
 Employee                                                Eagleville, TN 37060
 Lee Ann Murray,                                X        leeamurray@feeneymurray.com
 Employer’s Attorney




                                          _____________________________________
                                          Penny Shrum, Clerk of Court
                                          Court of Workers’ Compensation Claims
                                          WC.CourtClerk@tn.gov




                                            6
                           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.
 .
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
