     FILED
   Mar 28, 2018
   09:58 AM(CT)
 TENNESSEE COURT OF
WORKERS' COMPENSATION
       CLAIMS
"[T]his claim is denied for idiopathic fall."

        The parties introduced medical records that indicated Ms. Bullard saw Dr. Barton
Williams the day after the injury. Dr. Williams noted Ms. Bullard's history of injury at
work when she fell on her left arm and elbow. He further noted the emergency room
providers performed a reduction of her dislocated elbow. He diagnosed a left elbow
dislocation, status post closed reduction with comminuted radial head fracture, and
collateral ligament injury. He performed surgery on her elbow one week later. Dr.
Williams' post-operative report stated, [Ms. Williams] underwent operative repair of a
left elbow terrible triad injury. Her radial head was replaced . . .In addition, she
underwent medial and lateral collateral ligament repair . . . as well as anterior capsular
repair."

       Ms. Bullard testified Dr. Williams performed a second surgery on her elbow two
weeks later, and she is scheduled to undergo a third surgery. She has not worked for FPG
since her injury and does not know her employment status with the company. On cross-
examination, Ms. Bullard acknowledged that she provided no off-work notes to her
employer during her treatment. She requested medical benefits with Dr. Williams as her
authorized physician, payment of her medical bills, and temporary disability benefits. She
did not introduce any medical bills or work-status notes into evidence.

       Tonya Wright, James Chesney, and Ashley Jenkins testified for FPG. Ms. Wright,
a coworker of Ms. Bullard, testified consistently with Ms. Bullard regarding the location
of the entrance and exit doors at the building where she fell. Ms. Wright did not see Ms.
Bullard fall. She called Ms. Bullard over to "look at some paperwork" and saw her on the
ground. Ms. Wright acknowledged that each building they worked in had steps going in
and out.

        Mr. Chesney is FPG's Operations Support Manager, which includes helping with
safety and handling workers' compensation claims. He stated Ms. Bullard never
presented any off-work or light-duty notes to him, and FPG would meet any light-duty
restrictions. On cross-examination, Mr. Chesney agreed that janitorial employees are
required to go up and down stairs while working. He did not dispute that Ms. Bullard was
"on the clock" at the time of her injury.

       Ms. Jenkins testified by affidavit. She stated Ms. Bullard informed her in the
recorded statement that "she was coming out of the door and missed the step." Ms.
Bullard told her she did not have anything in her hands when she fell, the area was not
slippery, and no visible defects were on the step.

                        Findings of Fact and Conclusions of Law

      At an Expedited Hearing, Ms. Bullard must come forward with sufficient evidence

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from which this Court might determine she is likely to prevail at a hearing on the merits .
Tenn. Code Ann. § 50-6-239(d)(l) (2017).

       An injury must arise primarily out of and in the course and scope of the
employment to be compensable under the Workers' Compensation Law. The term
"injury" is defined as an injury by accident arising primarily out of and in the course and
scope of employment that causes the need for medical treatment. For an injury to be
accidental, it must be caused by a specific incident, or set of incidents, arising primarily
out of and in the course and scope of employment, and identifiable by time and place of
occurrence. See Tenn. Code Ann. § 50-6-102(14).

       The record is clear as to when and where the incident occurred. No one questioned
whether Ms. Bullard was acting in the course and scope of her employment when she
exited the building and missed the step. The Court therefore concludes that Ms. Bullard
demonstrated she is likely to prevail at a hearing on the merits in proving a specific
incident, identifiable by and time and place of occurrence.

       The dispute is whether Ms. Bullard's injury arose primarily out of her
employment. FPG asserted Ms. Bullard's fall resulted from an idiopathic event and not
the result of an employment hazard. An idiopathic injury has "unexplained origin or
cause, and generally does not arise out of the employment unless 'some condition of the
employment presents a peculiar or additional hazard."' Frye v. Vincent Printing Co.,
2016 TN Wrk. Comp. App. Bd. LEXIS 34, at *11 (Aug. 2, 2016) (internal citation
omitted). "Cause" in this context is not "proximate cause" as used in the law of
negligence; rather, "cause means that the accident originated in the hazards to which the
employee was exposed as a result of performing his or her job duties." Id. at *12. Further,
Tennessee courts "have consistently held that an employee may not recover for an injury
occurring while walking unless there is an employment hazard, such as a puddle of water
or a step, in addition to the employee's ambulation." Wilhelm v. Krogers, 235 S.W.3d
122, 128-129 (Tenn. 2007).

       Here, FPG argued that "most buildings that are built these days have a one-step
down or curb close to the building ... the fact that the building she was cleaning and then
exiting at the time she fell had only one step is clearly not a peculiar or additional hazard
to her employment." Further, it argued that, had Ms. Bullard fallen at the entrance door to
the same building where there are two steps, it would have been a hazard incident to the
employment and thus a compensable injury. The Court finds FPG's argument
unpersuasive.

       Ms. Bullard provided undisputed testimony that when she exited the building, she
missed the single step outside the door and fell onto the concrete on her arm. Ms. Bullard
was exiting the building because her job required it, and the area included a step that
resulted in her fall. She was not walking on a flat surface when she fell. The Court finds

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the step constituted a specific hazard of Ms. Bullard's employment beyond mere
ambulation, and she is likely to prevail on the issue of whether she suffered an accident
arising primarily out of her employment.

        Turning to medical benefits, FPG argued Ms. Bullard introduced no medical
causation opinion linking her elbow conditions and treatment to her work injury. Ms.
Perry must prove "to a reasonable degree of medical certainty that [the injury]
contributed more than fifty percent (50%) in causing the death, disablement or need for
medical treatment, considering all causes." Tenn. Code Ann. § 50-6-102(14)(B). The
term "reasonable degree of medical certainty" means that "in the opinion of the
physician, it is more likely than not considering all causes, as opposed to speculation or
possibility." Tenn. Code Ann. § 50-6-102(14)(D). Thus, causation must be established by
expert medical testimony. However, at this interlocutory stage, she need not prove her
injury by a preponderance of the evidence. Instead, she must only come forward with
sufficient evidence to show a likelihood of prevailing at a hearing on the merits. See
McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6
(Mar. 27, 2015).

       Based on the foregoing, the Court holds Ms. Bullard provided sufficient evidence
demonstrating she is likely to prevail at trial in establishing that her injury was not
idiopathic in nature thus she is entitled to medical benefits for her reported injury.
Further, the Court holds Ms. Bullard justifiably sought medical treatment on her own
once FPG denied her claim the day after the injury. Accordingly, the Court holds FPG
must provide her reasonable and necessary medical treatment related to the injury and
shall authorize treatment with Dr. Williams. See Young v. Young Elec. Co., 2016 TN
Wrk. Comp. App. Bd. LEXIS 24 (May 25, 2016), citing McCord, at *13 ("[A]n employer
who elects to deny a claim runs the risk that it will be held responsible for medical
benefits obtained from a medical provider of the employee's choice[.]").

       Because Ms. Bullard did not introduce evidence to show a likelihood of prevailing
in her request for past medical expenses or temporary disability, the Court denies her
request for medical bill reimbursement and temporary disability at this time. Ms. Bullard
may pursue her claim ~or these benefits at a later date.

   IT IS THEREFORE ORDERED as follows:

   1. Facilities Performance Group shall provide Ms. Bullard with medical treatment as
      required by Tennessee Code Annotated section 50-6-204. Dr. Barton Williams
      shall become the authorized treating physician.

   2. This matter is set for a Status Hearing on May 7, 2018 at 9:30 a.m. Central
      Time. The parties must call 855-543-5039 to participate in the hearing.


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   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).
      The Insurer or Self-Insured Employer must submit confirmation of compliance
      with this Order to the Bureau by email to WCCompliance.Program@tn.g v no
      later than the seventh 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. For questions regarding compliance, please
      contact the Workers'          Compensation Compliance Unit via email
      WCCompliance.Program@tn.gov.

   ENTERED this the 28th day of March, 2018.




                                   a!:t:/lu/
                                   Court of Workers' Compensation Claims


                                     APPENDIX

Technical Record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing
   4. Motion to Continue
   5. Order Granting Motion to Continue
   6. Employer's Expedited Hearing Pre-Trial Brief
   7. Employer's Witness List
   8. Employer's Exhibit List
   9. Employee's Pretrial Memorandum

Exhibits:
   1. Medical Records-Nova Care and Methodist
   2. Ortho Memphis records
   3. Notice of Denial
   4. Photo of entrance door to FedEx building
   5. Photo of exit door to FedEx building
   6. Affidavit of Ashley Jenkins
   7. Employee Accident/Injury Report
   8. Nova work status note


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                             CERTIFICATE OF SERVICE


       I hereby certify that a true and correct copy of this Order was sent to the following
recipients by the following methods of service on this the 28th day of March, 2018.

Name                                  Via Email         Service sent to:
John Dunlap, Esq.,                         x            JdunlapOO@gmail.com
Attorney for Employee
Paul Nicks, Esq.,                          x            pnicks@travelers.com
Attorney for Employer                                   llunaman~travelers.com




                                          Penny ' rum, Clerk of Court
                                          Court of Workers' Compensation Claims
                                          WC.CourtClerk@tn.gov




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