               COURT OF WORKERS' COMPENSATION CLAIMS
                            AT MEMPHIS

Sharon L. Berry,                            )    Docket No.: 2015-08-0200
            Employee,                       )
v.                                          )    State File No.: 41816-2015
Wolfchase Hospitality, Inc. d/b/a/          )
Hilton Garden,
             Employer,                      )    Date of Injury: May 24, 2015
and                                         )
State Auto Insurance Companies,             )    Judge: Jim Umsted
             Insurance Carrier.             )


     EXPEDITED HEARING ORDER DENYING REQUEST FOR BENEFITS


      THIS CAUSE came before the undersigned Workers' Compensation Judge on
August 31,2015, upon the Request for Expedited Hearing filed by Sharon L. Berry, the
Employee, on July 21, 2015. Ms. Berry requests the Court to determine if the Employer,
Wolfchase Hospitality, Inc. d/b/a Hilton Garden (Wolfchase), is obligated to provide
medical and temporary disability benefits.                          ·

        The undersigned Workers' Compensation Judge conducted an in-person Expedited
Hearing on August 31, 2015. Robert 0. Binkley, Jr., attorney for Wolfchase, did not
appear for the in-person hearing, and the Court allowed him to participate by telephone.
Considering the positions of the parties, the applicable law, and all of the evidence
submitted, the Court concludes that Ms. Berry is not entitled to medical or temporary
disability benefits.

                                     ANALYSIS

                                        Issues

       The parties agreed that the following issues identified on the DCN and on the
attached Dispute Certification Checklist remain in dispute:

      1. Compensability of the claim;

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       2. Whether Employee sustained an injury that arose primarily out of and in the
          course and scope of employment with Employer;
       3. Whether Employee's injury was idiopathic in nature;
       4. Whether Employee sustained an injury in the course of employment with
          Employer;
       5. Whether Employer is obligated to pay for any past medical expenses and/or
          mileage expense;
       6. Whether Employee is entitled to additional medical care as recommended by a
          physician;
       7. Whether Employee is entitled to an evaluation by another physician; and
       8. Whether Employee is entitled to any past or future temporary total disability
          benefits, and if so, in what amount.

                                   Evidence Submitted

       The Court designated the following as the technical record:

          1.   Petition for Benefit Determination (PBD), filed June 18, 2015;
          2.   Dispute Certification Notice (DCN), filed July 21, 2015;
          3.   Request for Expedited Hearing, filed July 21, 2015; and
          4.   Employer's Position Statement, dated July 15, 2015.

      The Court admitted into evidence the exhibits below. However, exhibits 10, 11,
      and 12 were marked for identification only, with authenticity stipulated, and
      objections as to relevancy, reasonableness, necessity, and causation reserved:

          1. Affidavit of Sharon L. Berry;
          2. Form C-20 Employer's First Report of Work Injury or Illness;
          3. Form C-41 Wage Statement;
          4. Form C-23 Notice ofDenial of Claim for Compensation;
          5. Denial letter dated June 9, 2015;
          6. Document entitled "Employee Interview;"
          7. Employee Pay Stubs dated between March 7, 2015, and June 3, 2015;
          8. Medical records from Baptist Minor Medical Center Cordova;
          9. Medical records from St. Francis Hospital Bartlett;
          10. Limited work duty medical letters from Bartlett Raleigh Internal Medicine;
          11. Off work notice from Tri-State Orthopaedics and Robotic Surgery;
          12. Prescription information from Walgreens Pharmacy; and
          13. Medical Bills from St. Francis Hospital Bartlett.

      The Court did not consider attachments to the above filings unless admitted into
evidence during the Expedited Hearing. The Court considered factual statements in the
above filings or any attachments to them as allegations unless established by the

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evidence.

       Ms. Berry provided in-person testimony.

                                Stipulations of the Parties

       Prior to this Expedited Hearing, the parties stipulated, as follows:

   1. Wolfchase is an Employer as defined by Tennessee Code Annotated section 50-6-
      102(12) (2014);

   2. Ms. Berry was an employee of Wolfchase as defined by Tennessee Code
      Annotated 50-6-102(11) (2014) at the time of her alleged injury;

   3. Ms. Berry timely reported her alleged injury;

   4. Ms. Berry's average weekly wage (A WW) at the time of her alleged injury was
      $374.04, which is equivalent to a weekly compensation rate (CR) of$249.38.

                                     History of Claim

       Ms. Berry worked as a chef for Wolfchase. She testified that May 24, 2015 , was a
busy workday, and her job required walking, standing, and cooking. Ms. Berry testified
the she and her supervisor noticed that her swollen ankle. The supervisor recommended
she put some ice on her ankle. Ms. Berry declined the suggestion and said she would
keep working and take some Tylenol. Later, the swelling increased, and Ms. Berry went
to Baptist Minor Medical Center (BMMC) near her workplace.

       At BMMC, the physician diagnosed a left-ankle sprain. The handwritten history
of injury was "while in the kitchen I turned and sprained my ankle." A more detailed
typed history was "[Patient] was standing at work as a chef and turned quickly and felt
pain in ankle and thought it was nothing but as she continued to work over the next one
hour it just kept getting worse and started limping to walk because of pain in ankle."
BMMC provided conservative treatment over a period of several days with medication
and an ankle boot. Ms. Berry did not improve, and on June 4, 2015, BMMC
recommended a referral to an orthopedic specialist.

       On June 9, 2015, Wolfchase filed a "Notice of Denial," denying the claim on the
basis "employee doesn't cite any specific injury or incident that arose out of her
employment .... "

      Ms. Berry decided to see her personal physician, Dr. Herminia Balderama. Dr.
Balderama ordered an X-ray and MRI of the left ankle. On June 11, 2015, the

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radiological testing revealed soft tissue swelling, subcutaneous edema, and tenosynovitis.
According to Ms. Berry, Dr. Balderama referred her to an orthopedic physician, Dr.
Apurva Dalal at Tri-State Orthopaedics and Robotic Surgery (Tri-State). Ms. Berry did
not submit records from Tri-State, but she testified they gave her a shot in her ankle that
made her feel much better. Ms. Berry remained off work until Tri-State released her on
July 31, 2015. When she returned to work, Wolfchase reduced the number of hours she
could work, so Ms. Berry decided to obtain employment elsewhere.

      On cross-examination, Ms. Berry testified regarding her injury, "I don't know
what happened ... but something happened." Her testimony continued, as follows:

Q:As far as your ankle goes, you don't really know what happened?
A: Something happened to me in the kitchen when I was working that day.
Q: Did you slip on anything?
A: I don't believe I slipped on nothing. I don't believe, but I don't know, but it
happened in the kitchen.

Q: You don't remember any water on the floor?
A: No, I don't believe there was no water on the floor.
Q: Okay. Don't believe there was any food on the floor?
A: I don't know. I promise you, I don't know.
Q: You didn't slip?
A: No. Not to my knowledge.
Q: You didn't fall, to your knowledge?
A: I definitely didn't fall.
Q: All you know is that your ankle started bothering you?
A: Well you know what, I turned. I turned with a pan in my hand ... maybe that's when
it happened. I don't know. I don't know ....

Q: Do you really know how you hurt your ankle, or do you just know that your ankle
started hurting while you were at work?
A: I know I hurt my ankle in the kitchen.

Q: As far as what caused your ankle to start hurting, is it also true that you don't know
what caused your ankle to start hurting?
A: Right. That's right. But, every day I go to work, and I don't hurt myself. That day, I
hurt myself.
Q: The floor in the kitchen, is it level?
A: No ... even though it's a brand new hotel ... we had some things happen with the
building, you know, and all that stuff.
Q: Is it true that you didn't trip or slip or fall over any of those things?
A: No. I didn't. That's the truth, I didn't.
Q: What's the surface of that floor?

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A: Concrete ... some kind of concrete.
Q: The fact that it's a concrete floor, that didn't have anything to do with your ankle
starting to hurt? Did it?
A: I don't know. All I know ... that day ... I either sprained my ankle, it was a stress
fracture, or something. When I turned around, I didn't never hear nothing crack ... and
when I turned around and went back on the line I felt my ankle swelling up. I really did.
Q: As far as your turning goes, was there anything unusual about that, with how you
normally tum?
A: No. Not to my knowledge. No.

       Ms. Berry filed a PBD on June 18, 2015, seeking medical and temporary disability
benefits. The parties did not resolve the disputed issues through mediation, and the
mediator filed the DCN on July 21, 2015.

                                Ms. Berry's Contentions

      Ms. Berry contends this is a compensable injury. Her ankle injury occurred while
working.She requests that Wolfchase pay for her medical treatment with Tri-State and
temporary disability benefits.

                                Wolfchase's Contentions

        Wolfchase contends Ms. Berry's ankle injury did not arise out of employment, but
is an idiopathic injury. Therefore, it claims her injury is not compensable.

                       Findings of Fact and Conclusions of Law

                                       Standard Applied

        The Workers' Compensation Law shall not be remedially or liberally construed in
favor of either party but shall be construed fairly, impartially and in accordance with
basic principles of statutory construction favoring neither the employee nor
employer. Tenn. Code Ann. § 50-6-116 (2014). 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, 20 15). 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.




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                                   Factual Findings

       The Court finds Ms. Berry sustained an injury to her left ankle during working
hours on May 24, 2015 that required medical treatment. However, she does not know the
cause ofthe injury.

                                 Application ofLaw to Facts

       Tennessee Code Annotated section 50-6-102(13) (2014) provides that "Injury"
and "personal injury" mean "an injury by accident ... arising primarily out of and in the
course and scope of employment, that causes death, disablement or the need for medical
treatment of the employee; provided, that: (A) An injury is "accidental" only if the injury
is caused by a specific incident, or set of incidents, arising primarily out of and in the
course and scope of employment, and is identifiable by time and place of occurrence ...
 "

        It is well-established that an injury must both "arise out of' as well as be "in the
course" of employment in order to be compensable under the workers' compensation
statute. Hill v. Eagle Bend Mfg., Inc., 942 S.W.2d 483, 487 (Tenn. 1997). The phrase "in
the course of' refers to time, place and circumstances, and "arising out of' refers to cause
or origin. !d. An injury by accident is "in the course of' employment if it occurred while
he was performing a duty he was employed to do. Fink v. Caudle, 856 S.W.2d 952, 958
(Tenn. 1993). An injury "arises out of' employment if it is caused by a hazard incident
to such employment. Thornton v. RCA Serv. Co., 221 S.W.2d 954, 955 (Tenn. 1949).
An accidental injury arises out of one's employment when there is apparent to the rational
mind, upon a consideration of all the circumstances, 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). The mere presence
of an employee at the place of injury because of his employment will not alone result in
the injury being considered as arising out of the employment. Wilhelm v. Krogers, 235
S.W.3d 122, 127 (Tenn. 2007).

        In this case, Ms. Berry was clearly in "the course of her employment" when the
injury occurred. The important question for purposes of compensability is whether the
injury arose primarily out of the employment or was idiopathic in nature. In workers'
compensation cases, benefits have generally not been allowed where the cause of an
injury has been found to be due to "some diseases or other idiopathic condition personal
to the employee, absent some special hazard of the employment." Wilhelm, 235 S.W.3d
at 128.

      In this case, Ms. Berry credibly testified that she hurt her ankle in the kitchen, but
she does not know the cause of her ankle injury. She could not point to any hazard of
employment that caused her injury, nor could she identify a specific incident that caused

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her injury.

       Therefore, Ms. Berry failed to meet her burden of establishing that her injury arose
primarily out of her employment. The Court finds Ms. Berry's injury is idiopathic in
nature. As such, she is not entitled to workers' compensation benefits.

IT IS, THEREFORE, ORDERED as follows:

    1. Ms. Berry's claim against Wolfchase and its workers' compensation carrier for the
       requested medical and temporary disability benefits is denied. At this time, Ms.
       Berry has not come forward with sufficient evidence from which this Court
       concludes that she is likely to prevail at a hearing on the merits.

   2. This matter is set for an Initial Hearing on November 23, 2015 at 1:00 p.m.

       ENTERED this the 5th day     oCZA
                                         --~--------------~--------
                                         Jim Umsted, Judge
                                         Court of Workers' Compensation Claims

Initial Hearing:

       A Scheduling Hearing has been set with Judge Jim Umsted, Court of Workers'
Compensation Claims. You must call 615-532-9550 or toll free at 866-943-0014 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.

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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 .ftle 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
   with the Court Clerk within ten calendar days of the filing of the Expedited
   Hearing Notice of Appeal. Alternatively, the parties may file a statement of the
   evidence within ten calendar days of the filing of the Expedited Hearing Notice of
   Appeal. The Judge must approve the statement of the evidence before the Court
   Clerk may submit the record 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
   three 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 three business days of the 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.




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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 5th day of
  October, 2015.


Name                      Certified   First   Via       Fax      Via     Email Address
                          Mail        Class   Fax       Number   Email
                                      Mail
Sharon Berry                                                     X       s. berry078@gmail.com

Robert 0. Binkley, Jr.,                                          X       rbinkley@raineykizer.com
Esq.




                                                Penny Shrum, Clerk of Court
                                                Court of Workers' Compensation




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