                                                                                               FILED
                                                                                            May 30, 2019
                                                                                            10:41 AM(ET)
                                                                                         TENNESSEE COURT OF
                                                                                        WORKERS' COMPENSATION
                                                                                               CLAIMS




             TENNESSEE BUREAU OF WORKERS' COMPENSATION
            IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                             AT KNOXVILLE

JENNIFER NOWLIN,                                   ) Docket No. 2019-03-0012
         Employee,                                 )
                                                   )
v.                                                 ) State File No. 82431-2018
LOWES HOME CENTERS,                                )
        Employer.                                  )
                                                   ) Judge Lisa A. Lowe


                EXPEDITED HEARING ORDER DENYING BENEFITS
                            Decision on the Record


       This case came before the Court on Ms. Nowlin's Request for Expedited Hearing
seeking a decision on the record. Lowes Home Centers (Lowes) did not object to a
decision on the record. 1 Ms. Nowlin seeks payment of her outstanding medical bills,
temporary disability benefits, authorized treatment with Dr. Daniel Cordas, and
attorney's fees. The issue is whether Ms. Nowlin is likely to prevail at a hearing on the
merits on entitlement to these benefits by establishing causation. For the reasons below,
the Court holds Ms. Nowlin is not likely to prevail and she is not entitled to the requested
benefits.

                                    Ms. Nowlin's Contentions

       Ms. Nowlin worked for Lowes as a fulfillment coordinator pulling items from the
shelves for online orders and taking them to either the delivery or pick-up bay. She
alleged that on October 12, 2018, a customer came in to pick up a microwave.

       In her affidavit, Ms. Nowlin noted that the microwave was placed on top of a
refrigerator. As she attempted to pull the microwave down, it was much heavier than
expected and jerked her arm down, pinning her arm between the microwave and
1
  The Court issued a Docketing Notice allowing the parties until May 17 to object to any exhibits and to
file position statements. Lowes filed a position statement, but Ms. Nowlin did not. The Court holds it
needs no additional information to issue a decision on the record.

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refrigerator. Ms. Nowlin stated she felt immediate right-shoulder pain that progressed as
she finished her shift. However, she did not report her injury until a day or two later
during a "sync up" meeting with her supervisor, Candace Reed.

       Ms. Reed provided a panel of physicians, and Ms. Nowlin chose LeConte Medical
Center for initial treatment. She saw Dr. Darin Hale at LeConte on October 23 and
complained that she fell at work about two days ago. He diagnosed right-shoulder injury
and right cervical radiculopathy. He instructed her to follow up with her primary care
physician within the week and assigned restrictions of avoiding heavy lifting and
strenuous activity.

          Ultimately, Ms. Nowlin came under the care of Dr. Daniel Cordas, an
orthopedist. Dr. Cordas's records revealed that her chief complaint continued to be right
shoulder and neck pain with radiation and numbness into her right hand. He made
multiple diagnoses and injected Ms. Nowlin's shoulder but noted no improvement. He
restricted her from working for one week and recommended a cervical spine MRI.
Lowes declined to authorize the MRI and denied the claim. Lowes subsequently fired
Ms. Nowlin for poor attendance.

       Ms. Nowlin seeks reimbursement for out-of-pocket medical expenses. She also
requested temporary partial disability benefits, since she remains under restrictions.
Additionally, Ms. Nowlin asked for continued authorized treatment with Dr. Cordas and
attorney's fees.

                                  Lowes's Contentions

       Lowes argued that Ms. Nowlin is not entitled to benefits because she failed to
establish that she sustained an injury arising primarily from her employment at a specific
date and time. Ms. Nowlin gave inconsistent descriptions of her injury and conflicting
accounts of when she reported it. On October 23, Ms. Nowlin completed a handwritten
report that contradicts her affidavit testimony. In the report, Ms. Nowlin said she was
picking up a microwave box, lost her grip, and her hand got pinned under the box. She
also said she "never thought much about it until last week."

       Ms. Reed stated in her affidavit that, contrary to Ms. Nowlin's assertions, the only
"sync up" meeting happened on October 29, not a day or two after the alleged injury.
Lowes also submitted an email containing a statement from its Loss Prevention Manager,
Ian Pastorius, which contained the following:

      On Thursday, 10/25 around 8:00 a.m., I spoke to [Ms. Nowlin] about her
      ann. She said she hurt it pulling a microwave earlier that week in
      receiving. I asked her what time the incident took place and she did not
      know. I pulled the microwave sales of the date and there were none found.

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       I also pulled the sales on 10/12/2018 and there were no microwave sales
       that day either. Jennifer said the incident took place in the PL bay in
       receiving. There is no video of that area or at customer service with a
       microwave. She said there were no employees around receiving to see the
       incident take place.

Lowes also provided a statement from an employee, Cameron Netherland, who stated he
was with Ms. Nowlin in the pick-up bay moving orders around and cleaning. He stated
he moved all boxes and items and did not recall Ms. Nowlin moving anything or
becoming injured.

                       Findings of Fact and Conclusions of Law

       Ms. Nowlin must present sufficient evidence to prove she is likely to prevail at a
hearing on the merits. McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015); Tenn. Code Ann. § 50-6-239(d)(l) (2018).
Ms. Nowlin must show she suffered an accidental injury that was "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." Tenn. Code Ann. §
50-6-102(14).

        Here, the threshold issue is whether Ms. Nowlin came forward with sufficient
evidence to establish the occurrence of a specific incident on October 12, 2018,
identifiable by time and place of occurrence. For the reasons below, the Court holds she
did not.

        Ms. Nowlin's affidavit indicated she injured her shoulder and right arm on
October 12, 2018, when retrieving a microwave and that her right arm was pinned
between the microwave and a refrigerator. She stated she felt immediate pain and
reported the injury a day or two later during a "sync up" meeting. In Ms. Nowlin's
handwritten October 23 statement, she said she was picking up a microwave box, lost her
grip, and her hand got pinned under the box. She said she "never thought much about it
until last week and it's really hurting bad[ly] now and going down my shoulder and ann."

        In contrast, Ms. Reed denied a sync-up meeting took place until October 29 and
stated that Ms. Nowlin reported the injury on October 23, not a day or two following the
alleged incident. Lowes's Loss Prevention Manager said there were no microwaves sold
on October 12, the date Ms. Nowlin claimed her injury occurred, and Mr. Netherland
worked with Ms. Nowlin that date and did not recall her moving anything or becoming
injured. Further, the October 23 LeConte Medical Center note indicated Ms. Nowlin
injured her shoulder at work about two days earlier.



                                           3
       Ms. Nowlin made inconsistent statements about how and when the injury occurred
and when she experienced pain and radiating symptoms. She also made conflicting
statements about when she reported the injury. These inconsistencies call into question
her credibility. Based on those inconsistencies and the refuting statements of Lowes's
witnesses, the Court concludes that Ms. Nowlin failed to come forward with sufficient
evidence to prove likelihood of success at trial in establishing she sustained a specific
work-Telated incident identifiable by time and place of occurrence.

IT IS, THEREFORE, ORDERED as follows:

   1. Ms. Nowlin's claim against Lowes Home Centers is denied at this time.

   2. This case is set for a Scheduling Hearing on July 30, 2019 at 10:00 a.m.
      Eastern Time. The parties must call (865) 594-0109 or (toll-free) (855) 383-0003
      to participate in the Scheduling Hearing. Failure to appear by telephone may
      result in a determination of the issues without your further participation.

      ENTERED on May 30, 2019.



                                  LISA A. LOWE, JUDGE
                                  Court of Workers' Compensation Claims

                                     APPENDIX

Exhibits:
   1. Affidavit of Jennifer Nowlin
  2. Lowes Home Centers Workers' Compensation Employee Statement
  3. Wage Statement, Form C-41
  4. Separation Notice
  5. Employee's Choice of Physician, Form C-42
  6. Medical Records of LeConte Medical Center
  7. Medical Records of Dr. Daniel Cordas, Smoky Mountain Orthopedics
  8. Medical Expense from Jack Hughston Memorial Hospital
  9. Medical Expenses ofWal-Mart Pharmacy
   10. Docketing Notice for On-The-Record Determination
   11. Lowes's Response to Employee's Request for Expedited Hearing
   12. Affidavit of Terrence Woodley
  13. Statement oflan Pastorius
  14. Affidavit of Candace Reed



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Technical Record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing




                           CERTIFICATE OF SERVICE

       I certify that a correct copy of the Expedited Hearing Order was sent to the
following recipients as indicated below on May 30, 2019.

         Name             Certified   Fax        Email   Service sent to:
                           Mail
Jon athan Doolan,                                 X      jonathan@collinsdoolan.com
Employee's Attorney

C. Christopher Brown,                             X      chris.brown@leitnerfirm.com
Employer's Attorney




                                                    · ~UM , Court Clerk
                                           WC.CourtClerk@tn.gov




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