FILED

March 20, 2017

TN COURT OF
WORKERS’ COMPENSATION
CLAIMS

 

Time 17:24PM
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT KINGSPORT
William Gibson, )
Employee, ) Docket No. 2015-02-0359
)
Vv. ) State File No. 57726-2015
)
Pleasant Hill Market, ) Judge Brian K. Addington
Un-insured Employer. )

 

EXPEDITED HEARING ORDER DENYING REQUESTED BENEFITS

 

This matter came before the undersigned Workers’ Compensation Judge on
March 10, 2017, upon the Request for Expedited Hearing filed by William Gibson
for temporary disability and medical benefits. The central legal issue is whether
Mr. Gibson suffered an injury as defined by the Workers’ Compensation Law.
For reasons set for below, the Court holds Mr. Gibson has failed to present
sufficient evidence to establish he is likely to prevail at a hearing on the merits that
he suffered an injury as defined by the Workers’ Compensation Law, and
therefore, he is not entitled to the requested benefits.

History of the Claim

Mr. Gibson worked as a chef for Pleasant Hill Market. On May 25, 2016,
Angela Boggs, manager, asked Mr. Gibson to bring buttermilk to work. When he
arrived at the restaurant, a co-worker asked Mr. Gibson not to park close to the
restaurant, so Mr. Gibson parked further away. As he walked toward the
restaurant, he struck the toes of both feet on a raised portion in the parking lot
pavement. Mr. Gibson did not fall and did not mention the incident to Ms. Boggs
at that time.

Mr. Gibson and Pleasant Hill dispute the timing of Mr. Gibson’s notice of a
work injury. However, all agree Mr. Gibson reported the injury within thirty days
of its occurrence. The day after the Mr. Gibson’s alleged injury, Ms. Boggs
terminated Mr. Gibson for two unrelated events. Regardless, Mr. Gibson filed a
Petition for Benefit Determination on June 1, 2016. Pleasant Market denied it
owed Mr. Gibson any benefits.

Because Pleasant Hill did not have workers’ compensation insurance, Rene
Gallardo, Compliance Specialist, performed an investigation of both Pleasant Hill
and the incident in question. His report, admitted as Exhibit 2, noted the
following: 1) Pleasant Hill did not have workers’ compensation insurance
although it had six employees; 2) the injury occurred after July 1, 2015, while at
work; 3) Mr. Gibson was a Tennessee resident on the date of injury; and, 4) Mr.
Gibson provided notice to the Bureau within sixty days of the incident.
Additionally, Mr. Gallardo noted Mr. Gibson did not seek medical attention on his
own.

After Mr. Gallardo’s investigation, the Bureau provided Mr. Gibson a
medical causation evaluation with Dr. Galen Smith per Tennessee Code Annotated
§ 50-2-802(d)(1) (2016). Mr. Gibson informed Dr. Smith that, “[he] walked into
this bump and said it jolted and hyperextended his knees and ‘slammed’ his
ankles. However he was able to stay upright and did not fall.”

Following the examination, which included a review of prior and current x-
ray films, Dr. Smith determined to a reasonable degree of medical certainty that
the incident in question did not cause significant new injury to either knee or
ankle. Dr. Smith also determined that Mr. Gibson’s stumbling incident did not
aggravate his previous arthritic condition. He further stated that he did not feel
this was a compensable injury under workers’ compensation.' (Ex. 3.)

Mr. Gibson testified he treated with his personal physicians before and after
his appointment with Dr. Smith. He further offered he was unable to return to
work until January 9, 2017.

Primarily, Mr. Gibson asserted he suffered a soft-tissue injury when he
stumbled over the bump in Pleasant Hill’s parking lot. He contended this entitled
him to continued medical benefits and temporary disability benefits from the date
of injury until January 8, 2017.

Pleasant Hill pointed out that Mr. Gibson failed to inform anyone of an
injury until after Ms. Boggs terminated him for cause and relied upon Dr. Smith’s
medical records, which established Mr. Gibson did not suffer a work-injury. It
requested the Court deny Mr. Gibson’s claim.

 

' The parties did not depose Dr. Smith. The Court notes that the issue of whether or not the above injury is
a compensable injury is a question of law for the Court to decide, not a medical question.
Findings of Fact and Conclusions of Law

As in all workers’ compensation actions, Mr. Gibson, as the claimant, has
the burden of proof on all essential elements of his claim. Tenn. Code Ann. § 50-
6-239(c)(6) (2016); see also Buchanan v. Carlex Glass Co., 2016 TN Wrk. Comp.
App. Bd. LEXIS 39, at *5 (Sept. 29, 2016). He need not prove every element of
his claim by a preponderance of the evidence in order to obtain relief at an
expedited hearing. McCord v. Advantage Human Resourcing, 2016 TN Wrk.
Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2016). Instead, at an expedited
hearing, Mr. Gibson must come forward with sufficient evidence from which this
Court can determine he is likely to prevail at a hearing on the merits that he
suffered a work related injury. Id.

Because Mr. Gibson must first prove he suffered an injury by
accident at work, the Court examined the offered evidence to support the claim for
a work-related injury. Although Mr. Gibson asserted, without contradiction, he
stumbled over a raised area in Pleasant Hill’s parking lot, he failed to provide
sufficient evidence to prove he suffered an injury arising primarily out of and in
the course and scope of his employment as a result of his stumble. See Tenn.
Code Ann. § 50-6-102(14) (2016). Dr. Smith’s medical records constitute the
only expert medical proof offered. He found that Mr. Gibson’s stumbling incident
neither caused a significant new injury, nor aggravated a pre-existing new
condition.

These findings standing alone and without contradiction leave the Court
with no choice but to conclude that Mr. Gibson did not sustain a work injury.
Having considered all the evidence presented, it does not appear Mr. Gibson is
likely to succeed at a hearing on the merits that he sustained an injury arising
primarily out of and in the course and scope of his employment.

For the forgoing reasons, Mr. Gibson’s request for medical and temporary
benefits is denied at this time.

IT IS, THEREFORE, ORDERED as follows:

l. Mr. Gibson’s request for medical and temporary disability benefits is
denied at this time.

2. This matter is set for a Scheduling Hearing on April 25, 2017, at 11:00 a.m.
Eastern Time. The parties must call 855-943-5044 toll-free to participate in the
hearing. Failure to appear by telephone may result in a determination of the issues
without your further participation.
ENTERED this the 20" day of March, 2017.

/s/ Brian kK. Addington
Brian K. Addington
Workers’ Compensation Judge
APPENDIX

Exhibits

1. Affidavit of Mr. Gibson

2. Expedited Request for Investigation Report
3. Medical Records-Dr. Galen Smith

4. Wage Records

Technical Record

1. Petition for Benefit Determination
2. Dispute Certification Notice

3. Request for Expedited Hearing

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

I hereby certify that a true and correct copy of the foregoing was sent to the
following recipients by the following methods of service on March 20, 2017.

 

 

 

 

 

 

 

 

 

Name Certified | Via | Via Sent To:
— Mail Fax | Email
William Gibson, xX X 175 Knob Creek Dock Lot #105
Self-Represented Johnson City, TN 37601
| Employee chefwilliamgibson@gmail.com
Frankie Slaughter, Esq. X | flsjrlaw@yahoo.com
Employer’s Attorney

 

/s/ Penny Shrum
PENNY SHRUM, COURT CLERK
Court of Workers’ Compensation Claims

 
