                                                                                             FILED
                                                                                         January 12, 2015

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                                                                                      WORKERS ' CO:viPEl\"SATIO:"
                                                                                              CLAIMS

                                                                                            Time: 7:59 A:vi




                   COURT OF WORKERS' COMPENSATION CLAIMS
                     DIVISION OF WORKERS' COMPENSATION


EMPLOYEE: LAURA NELSON                                 DOCKET#: 2014-02-0012
                                                       STATE FILE#: 74906-2014
EMPLOYER: GPM INVESTMENTS                              DATE OF INJURY: 08/30/2014

INSURANCE CARRIER: PMA COMPANIES


                               EXPEDlTED HEARING ORDER

        THIS CAUSE came before the undersigned Workers' Compensation Judge upon the Request
for Expedited Hearing filed by GPM Investments (Employer) pursuant to Tennessee Code Annotated
section 50-6-239. Employer, at the hearing on the matter, requested an on the record determination
pursuant to Rule 0800-02-21-.14(1 )(c) of the Tennessee Comprehensive Rules and Regulations.
Upon review of Employer's request for expedited hearing filed November 25,2014, and the entirety
of the claim file, and in consideration of the applicable law, the Court finds that no additional
information is needed to decide Employer's request that Laura Nelson (Employee) has failed to
prove her alleged injury arose primarily in the course and scope of her employment.

                                            ANALYSIS

                                               Issue

        Whether there is sufficient evidence in the file to prove that Employee was injured primarily
in the course and scope of her employment.

                                       Evidence Submitted

       The Court reviewed the entire case file in reaching its decision. Specifically, the Court
reviewed and relied upon the following:

           1.   Employer's Request for Expedited Hearing with attached Brief
           2.   Dispute Certification Notice
           3.   Employee's Petition for Benefits Determination
           4.   Affidavit of Yolanda Crenshaw, Senior Account Representative PMA Companies
           5.   Employee's Recorded Statement of September 3, 2014
           6.   First Report of Injury

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           7.    Notice of Denial
           8.    Employee's written statement at time of the injury
           9.    Co-workers written statements
           10.   Panels of Physicians
           11.   Employee's refusal of medical treatment
           12.   Claiborne County Hospital Records

                                         History of Claim

       The pertinent claim history provided below is derived entirely from the claim file:

        Employee worked for Employer as an assistant manager. On August 30, 2014, Employee
took a smoke break with co-workers. While outside, Employee was approached by the daughter of a
former co-worker. The woman accused Employee of talking about the woman's husband. The
woman walked back to her car saying she was going to go to the police about Employee's husband.
Employee told the woman to "go ahead, 'cause [sic] you, I mean, we don't do anything wrong." In
response to Employee's retort, the woman came running toward Employee and pushed her down.
Employee fell backwards injuring her hands and back.

        Employee reported the matter to Employer and the police. Employer took Employee's and
other witnesses statements. The statements were consistent as to the events that occurred. Employee
quit her job on the date of injury. She sought emergency medical treatment on her own at Claiborne
County Hospital.

       Employee provided a recorded statement for Employer's workers' compensation carrier on
September 3, 2014. The carrier denied the claim on September 5, 2014, based on an altercation at
work involving a love triangle.

        Employee filed a Petition for Benefits Determination on September 22, 2014, seeking
medical benefits. The parties did not reach an agreement during mediation and a Dispute
Certification Notice was filed on November 14, 2014. Employer filed a Request for Expedited
Hearing on November 25,2014. An Expedited Hearing was set for December 15,2014. Employee
did not appear at the hearing. The matter was reset to January 7, 2015. Employee again failed to
appear for the hearing. At the start of the hearing, Employer made a motion to decide the case on the
record. The Court granted the motion.

                                      Employer's Contentions

        Employer contends that Employee has failed to present sufficient evidence to prove that her
injury arose primary out of and in the course and scope of her employment. Employer contends that
Employee was injured in an altercation that was personal in nature and unconnected to work other
than Employee was assaulted while at work.




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                                      Employee's Contentions

        Employee did not make any filings in response to the Notice of Expedited Hearing, but from
the information contained in her Petition for Benefit Determination she assaulted by the daughter of
a former disgruntled employee and that Employer had denied Employee benefits to which she was
entitled.

                             Findings of Fact and Conclusions of Law

                                              Standard Applied

        When determining whether to award benefits, the Judge must decide whether the moving
party is likely to succeed on the merits at trial given the information available. See generally,
McCall v. Nat'! Health Care Corp., 100 S.W. 3d 209, 214 (Tenn. 2003). In a workers'
compensation action, pursuant to Tennessee Code Annotated section 50-6-23 9(c)(6), Employee shall
bear the burden of proving each and every element of the claim by a preponderance ofthe evidence.
Employee must show the injury arose primarily out of and in the course and scope of employment.
Tenn. Code Ann.§ 50-6-102(13) ..

                                               Factual Findings

       The evidence proves Employee was assaulted by a third-party; the daughter of a former co-
worker. The assault was personal in nature concerning the respective women's husbands and not
associated with Employee's work, except that the assault happened at work.

                                         Application of Law to Facts

        The issue in this case is whether there is sufficient evidence in the file to prove that Employee
was injured primarily in the course and scope of her employment. To be successful on a claim for
benefits, an employee must show among other things that she was injured primarily in the course and
scope of employment. Tenn. Code. Ann.§ 50-6-102(13).

        In the course of employment refers to the time and place of occurrence. Employee was on a
smoke break; however, it appears that Employer allowed its employees to have smoke breaks. The
Tennessee Supreme Court has held that injuries while an employee is on an approved break happen
in the course of employment. Holder v. Wilson Sporting Goods Co., 723 S. W.2d 104, 107 (Tenn.
1987). Considering all the evidence in the file, Employee's injury happened in the course ofher
employment.

        Employee, however, has failed to prove her injury arose primarily out ofher employment. In
this case, Employee was injured by a third-party. The assault occurred because of personal issues
between the two. With respect to whether an assault arises out of employment, the Tennessee
Supreme Court has previously delineated assaults into three general classifications:




                                                    3
                  (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.

        Wait v. Travelers Indem. Co., 240 S.W.3d 220, 227 (Tenn. 2007).

       This case falls under the second prong mentioned in Wait. It is an assault stemming from an
"inherently private" dispute imported into the employment setting from Employee's domestic or
private life and not exacerbated by her employment. Such cases have been held to be not
compensable. White v. Whiteway Pharm., Inc., 360 S.W.2d 12 (Tenn. 1962). Considering all the
evidence contained in the file, Employee has failed to prove her injury arose primarily out of her
employment.

        Since Employee has failed to prove at this time that her injury meets the statutory definition
of injury, her request for medical benefits is denied.

IT IS, THEREFORE, ORDERED as follows:

    1. The claim of Employee against Employer or its workers' compensation carrier for the
       requested medical benefits is denied on grounds of compensability at this time.

    2. This matter is set for Initial Hearing on March 2, 2015, at 9:00a.m. Eastern time.

        ENTERED this the 12th day of January 2015.



                                               BRIAN K. ADDINGTO
                                               Workers' Compensation Judge

Initial Hearing:

         An Initial Hearing has been set with Judge Brian K. Addington, Court of Workers
Compensation. You must call 865-594-6538 or toll free at 855-543-5044 to participate in the
Initial Hearing.

        Please Note: You must call in on March 2, 2015. at 9:00a.m. Eastern time to participate.
Failure to call in may result in a determination of the issues without your further participation. All
conferences are set using Eastern Time (ET).




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 Ri ght 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 fmm entitled: "Expedited Hearing Notice of Appeal".

       2. File the completed form with the Court Clerk within seven (7) business days of the date the
          Expedited Hearing Order was entered by the Workers' Compensation Judge.

       3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.

       4. 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 (1 0)
          calendar days of the filing of the Expedited Hearing Notice of Appeal. Alternatively, the
          parties may file a statement of the evidence within ten (1 0) calendar days of the filing of the
          Expedited Hearing Notice of Appeal. The statement of the evidence must be approved by the
          Judge before the record is submitted to the Clerk of the Appeals Board.

       5. If the appellant elects to file a position statement in suppm1 of the interlocutory appeal, the
          appealing party shall file such position statement with the Court Clerk within three (3)
          business days of the filing of the Expedited Hearing Notice of Appeal, specifying the issues
          presented for review and including any argument in support thereof. If the appellee elects to
          file a response in opposition to the interlocutory appeal, appellee shall do so within three (3)
          business days of the filing of the appellant's position statement.

                                      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 12th day of January, 2015.


Name                      Certified   First    Via    Fax        Via      Email Address
                          Mail        Class    Fax    Number     Email
                                      Mail
Laura Nelson              X           X                           X       sharonmckinney@_hotmail.com
M. Forrester, Esq.                                                X       dstarnes@allen-kopet.com



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