                                                                                     FILED
                                                                                 April 20, 2016
                                                                                    TENNESSEE
                                                                               WORKERS' COMPENSATION
                                                                                  APPEALS BOARD

                                                                                  Time: 10:30 A.M.


             TENNESSEE BUREAU OF WORKERS' COMPENSATION
                WORKERS' COMPENSATION APPEALS BOARD


Lea Ann Lewis                               )   Docket No. 2015-06-0456
                                            )
v.                                          )
                                            )   State File No. 51493-2015
Molly Maid, et al.                          )
                                            )
                                            )
Appeal from the Court of Workers'           )
Compensation Claims                         )
Robert Durham, Judge                        )


                     Affirmed and Remanded - Filed April 20, 2016


In this interlocutory appeal, the employee alleged she developed back pain during an
initial training period with the employer, requiring her to discontinue work on the third
day of training and seek emergency medical care. The employer's representative
acknowledged she was aware of the employee's complaints of back pain, but denied that
the employee related those complaints to her job. Rather, the employer asserted that the
employee attributed her problems to a prior injury. Following an expedited hearing, the
trial court concluded the employee did not come forward with sufficient evidence to
establish the compensability of her claim, but did come forward with sufficient evidence
to support an order requiring the employer to provide a panel of physicians. The
employer appealed. Having carefully reviewed the record, we affirm the trial court's
determination and remand the case for further proceedings.

Judge Timothy W. Conner delivered the opinion of the Appeals Board, in which Judge
Marshall L. Davidson, III, and Judge David F. Hensley joined.

Gordon C. Aulgur, Lansing, Michigan, for the employer-appellant, Molly Maid

Lea Ann Lewis, Sebastian, Florida, pro sc




                                            1
                          Factual and Procedural Background

        Lea Ann Lewis ("Employee"), a Florida resident, was employed by Molly Maid
("Employer") in Davidson County, Tennessee as a housekeeper-in-training for three days
in late October 2014. During the course of her training, Employee was required to use a
specialized vacuum cleaner that strapped onto her back, which she testified caused her to
begin experiencing back pain on her first day. On the second day of training, her trainer
declined her request to help adjust the straps of the device. On the third day of training,
October 31, 2014, she informed her trainer she was unable to continue working and asked
to return to the office. Upon her arrival at the office, she informed a representative of the
employer, Maricela Farrar, that she was unable to continue working due to back pain and
intended to go to the emergency room. Ms. Farrar then gave Employee a "return to work
job description" form and instructed her to request the physician to complete it.

        On November 5, 2014, Employee came to Employer's office to return uniforms
she had borrowed and to turn in the "return to work job description" form. Ms. Farrar
advised her that there was no work available within the restrictions assigned by the
physician. During that conversation, Employee became aware that a non-refundable
uniform fee would be deducted from her paycheck even though she never received a
uniform of her own. According to Ms. Farrar, Employee became upset and only then
advised Ms. Farrar that she intended to file a claim for workers' compensation benefits.
Employee disputed the implication that she threatened a workers' compensation claim in
retaliation for the uniform fee charge but acknowledged that she told Ms. Farrar she
planned to assert a claim for workers' compensation benefits as a result of her back pain.

        At some time thereafter, Employee moved to Florida. She filed a petition for
benefit determination and a request for expedited hearing, seeking payment of temporary
disability benefits and medical benefits. Following an evidentiary hearing, during which
Employee and other witnesses participated by telephone, the trial court issued an order
compelling Employer to provide a panel of physicians within Employee's community
from which she could choose an authorized physician. The trial court denied Employee's
request for temporary disability benefits and reimbursement of past medical expenses,
concluding that "she has provided insufficient evidence to establish she is likely to
prevail on the issue of compensability." Employer timely appealed.

                                   Standard of Review

       The standard of review to be applied by this Board in reviewing a trial court's
decision is statutorily mandated and limited in scope. Specifically, "[t]here shall be a
presumption that the findings and conclusions of the workers' compensation judge are
correct, unless the preponderance of the evidence is otherwise." Tenn. Code Ann. § 50-
6-239(c)(7) (2015). The trial court's decision must be upheld unless the rights of a party


                                             2
"have been prejudiced because findings, inferences, conclusions, or decisions of a
workers' compensation judge:

       (A)    Violate constitutional or statutory provisions;
       (B)    Exceed the statutory authority of the workers' compensation judge;
       (C)    Do not comply with lawful procedure;
       (D)    Are arbitrary, capricious, characterized by abuse of discretion, or
              clearly an unwarranted exercise of discretion;
       (E)    Are not supported by evidence that is both substantial and material
              in the light of the entire record."

Tenn. Code Ann. § 50-6-217(a)(3) (2015). Like other courts applying the standards
embodied in section 50-6-217(a)(3), we will not disturb the decision of the trial court
absent the limited circumstances identified in the statute.

                                         Analysis

        In McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk.
Comp. App. Bd. LEXIS 6, at *9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015), we
concluded that, at an expedited hearing, an employee need not prove each and every
element of his or her claim by a preponderance of the evidence in order to obtain
temporary disability benefits or medical benefits. Instead, we emphasized that 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
consistent with Tennessee Code Annotated section 50-6-239(d)(l). Id. Thus, while an
injured worker retains the burden of proof at all stages of a workers' compensation claim,
a trial court can grant relief at an expedited hearing if the court is satisfied that an
employee has met the burden of showing that he or she is likely prevail at a hearing on
the merits. Tenn. Code Ann.§ 50-6-239(d)(l) (2014).

       However, "[t]his lesser evidentiary standard, ... does not relieve an employee of
the burden of producing evidence of an injury by accident that arose primarily out of and
in the course and scope of employment at an expedited hearing, but allows some relief to
be granted if that evidence does not rise to the level of a 'preponderance of the
evidence."' Buchanan v. Car/ex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp.
App. Bd. LEXIS 39, at* 6 (Tenn. Workers' Comp. App. Bd. Sept. 29, 2015). Therefore,
in the present case, Employee had the burden of coming forward with sufficient proof
that a work injury occurred, as defined in Tennessee Code Annotated section 50-6-
102( 13) (2014 ), to allow the trial court to conclude she is likely to meet the
preponderance of the evidence standard at a hearing on the merits.

       The trial court in the present case concluded that Employee did not come forward
with sufficient evidence to establish that she suffered a compensable injury as a result of

                                            3
operating the vacuum cleaner within the course and scope of her employment. However,
the trial court determined that Employee did come forward with sufficient evidence to
establish her entitlement to a panel of physicians. Specifically, the trial court noted
Employee's testimony that she experienced back pain after operating the vacuum during
each of her three days of training and that she promptly informed her trainer and Ms.
Farrar of her back pain. She further alleged that the trainer refused to assist her in
adjusting the straps of the vacuum and instructed her to use the vacuum even after she
complained of back pain. Employer did not refute any of these allegations.

      Moreover, Ms. Farrar admitted that Employee did not appear to be experiencing
back pain at the time she interviewed for the job. Ms. Farrar acknowledged Employee
complained of back pain after one or more of her training sessions and admitted she was
aware Employee intended to go to the emergency room on October 31, 2014 for her back
pain. The record is clear that Employee was not offered a panel of physicians because
Ms. Farrar believed Employee's back pain related only to a preexisting condition.

        In its position statement on appeal, Employer insists that the trial court's decision
to order a panel of physicians was based solely on Employee's testimony and that it had
effectively challenged her credibility during the expedited hearing. While we agree that
Employee's credibility was called into question on several issues, we find that the trial
court did not rely solely on Employee's testimony. In fact, the trial court specifically
commented that the witness called by Employee, Mr. Schaefer, "corroborated
[Employee's] testimony" and that "[t)he medical evidence presented, although not
entirely clear, supports [Employee's) allegation that she began suffering severe back pain
while working for [Employer], which she attributed to using the vacuum cleaner."
Finally, the trial court commented, "[t]here is no medical proof establishing otherwise."
Therefore, we find, contrary to Employer's argument, that the trial court weighed
Employee's testimony in light of Employer's challenges to her credibility and also relied
on the testimony of Mr. Schaefer and the medical records submitted by the parties to
reach its determination.

       Thus, under the circumstances presented in this case, we agree that Employee
came forward with sufficient evidence to support a conclusion that she experienced back
pain after operating a vacuum cleaner in late October 2014. We also agree that, while
this evidence was insufficient to establish the compensability of her claim by a
preponderance of the evidence, it was sufficient to support an order compelling Employer
to provide a panel of physicians.




                                             4
                                       Conclusion

        For the foregoing reasons, we hold that the evidence does not preponderate against
the trial court's decision to order a panel of physicians. We further find that the trial
court's decision does not violate any of the standards set forth in Tennessee Code
Annotated section 50-6-217(a)(3). Accordingly, the trial court's order is affirmed and the
case is remanded to the trial court for any further proceedings as may be necessary.



                                                          W. Conner, Judge
                                                        s' Compensation Appeals Board




                                            5
                    TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                      WORKERS’ COMPENSATION APPEALS BOARD

Lea Ann Lewis                                           )   Docket No. 2015-06-0456
                                                        )
v.                                                      )
                                                        )    State File No. 51493-2015
Molly Maid, et al.                                      )


                                    CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the
referenced case was sent to the following recipients by the following methods of service
on this the 20th day of April, 2016.
 Name                   Certified   First Class   Via   Fax       Via     Email Address
                        Mail        Mail          Fax   Number    Email

 Lea Ann Lewis                                                       X    threewolves@gmail.com
 Gordon C. Aulgur                                                    X    Gordon.Aulgur@accidentfund.com
 Robert Durham, Judge                                                X    Via Electronic Mail
 Kenneth M. Switzer,                                                 X    Via Electronic Mail
 Chief Judge
 Penny Shrum, Clerk,                                                 X     Penny.Patterson-Shrum@tn.gov
 Court of Workers’
 Compensation Claims




Matthew Salyer
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: Matthew.Salyer@tn.gov
