              TENNESSEE BUREAU OF WORKERS’ COMPENSATION
             IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                            AT MURFREESBORO

DANIEL COFFEY                                              )   Docket Nos: 2016-05-0132,
         Employee,                                         )             2016-05-0118
                                                           )
v.                                                         )   State File Numbers: 11206-2016,
                                                           )                     9740-2016
NISSAN NORTH AMERICA, INC.                                 )
         Employer,                                         )   Judge Dale Tipps
And                                                        )
                                                           )
SAFETY NATIONAL CAS. CORP.                                 )
         Insurance Carrier.                                )
                                                           )

                EXPEDITED HEARING ORDER GRANTING BENEFITS


        This matter came before the undersigned workers’ compensation judge on
September 27, 2016, on the Requests for Expedited Hearing filed by the employee,
Daniel Coffey, pursuant to Tennessee Code Annotated section 50-6-239 (2015). The
present focus of this case is whether Mr. Coffey is entitled to medical benefits for his
alleged cardiac event and hearing loss. The central legal issue is whether Mr. Coffey is
likely to establish at a hearing on the merits that he suffered an injury arising primarily
out of and in the course and scope of his employment and if so, whether his claim is
barred for failure to give adequate notice of injury. For the reasons set forth below, the
Court holds Mr. Coffey is likely to meet this burden on his hearing loss claim and is
entitled to medical benefits. 1

                                               History of Claim

      The following facts were established at the Expedited Hearing. After working at
the Nissan plant in Smyrna for some time as an employee of Yates, a Nissan
subcontractor, Mr. Coffey became a Nissan employee in March 2015. He testified he
1
 A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.

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was working as a forklift operator on August 24, 2015, when he began having chest pain.
He reported this to his lead, Benjamin Alexander, who told Mr. Coffey there were not
enough people to cover for him to leave. As a result, Mr. Coffey finished his shift before
reporting his chest pain to his supervisor, Tom Knoblett.

       Mr. Coffey told Mr. Knoblett that he had checked his blood pressure and it was
very high. Mr. Knoblett did not seem concerned, so Mr. Coffey went to a walk-in clinic,
which sent him to the emergency room.

       Records from StoneCrest Medical Center show that Mr. Coffey went to the
emergency room on August 24, 2015, with complaints of chest pain. He reported a
history of high blood pressure but he had been non-compliant in taking his blood pressure
prescription for the previous year. He also stated he had chest pain on his other side
about a week earlier, although it had resolved. The attending physician, Dr. James
Davidson, after reviewing an EKG and an x-ray, diagnosed hypertension and atypical
chest pain. He found Mr. Coffey to be “at relatively low risk” and suggested a stress test
and a gall bladder ultrasound. After administering an IV, Dr. Davidson found Mr.
Coffey’s condition improved and discharged him. (Ex. 8 at 1-10.)

       After leaving the emergency room, Mr. Coffey notified Mr. Knoblett that the
doctor had taken him off work for the next day. He gave Mr. Knoblett a copy of the
doctor’s note when he returned to work a couple of days later.

       Mr. Coffey also claims to have suffered hearing loss while working for Nissan.
He testified that he had a hearing test in August 2014 (while he was working for Yates),
which showed mild hearing loss in his left ear. He also had some ringing in his ear. He
provided this documentation to his previous supervisor, Donnie Jordan, who did not offer
any additional treatment or evaluation.

       Mr. Coffey testified he reported his hearing loss and a significant increase in the
ringing in his ears to Mr. Knoblett in October 2015. He repeated this notice to Mr.
Knoblett in January 2016 and asked to go to the doctor. Mr. Knoblett did not offer him
any treatment or evaluation.

       Mr. Coffey subsequently took FMLA leave to care for his ailing father. Nissan
terminated Mr. Coffey’s employment on May 5, 2016, before he returned to the job. His
last date worked was February 4, 2016. Because he was without health insurance for a
time, he has not sought treatment on his own.

       Nissan submitted two affidavits executed by Thomas Knoblett. He stated he was
Mr. Coffey’s supervisor on both of the alleged injury dates. Regarding both alleged
injuries, he stated, “To my recollection, Mr. Coffey did not report this condition as a
work related injury. If Mr. Coffey had reported this condition as a work related injury, an

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Employee/Manager Medical statement would have been completed and Mr. Coffey
would have been sent to the on-site medical clinic.” He further stated Mr. Coffey did not
request medical treatment for the claimed work-related injuries or comply with Nissan’s
injury reporting rules. (Ex. 9.)

      Mr. Coffey filed a Petition for Benefit Determination seeking medical and
temporary disability benefits. When the parties did not resolve the disputed issues
through mediation, the Mediating Specialist filed a Dispute Certification Notice, and Mr.
Coffey filed a Request for Expedited Hearing.

       At the Expedited Hearing, Mr. Coffey confirmed he was not seeking temporary
disability benefits at this time. He asserted he is entitled to medical benefits because he
gave clear and repeated notice of his problems to Mr. Knoblett, who simply refused to
report the injuries or provide any treatment. He requested payment of the emergency
room bills arising from his chest pain. He also seeks evaluation and possibly treatment of
his hearing loss and the ringing in his ears.

       Nissan countered that Mr. Coffey is not entitled to any workers’ compensation
benefits. It argued that it received no notice of either condition until Mr. Coffey filed the
PBDs in February 2016. As this does not meet the statutory notice requirements, Mr.
Coffey’s claim is barred.

       In the alternative, Nissan contended Mr. Coffey has not met his burden of
establishing that either injury arose primarily out of and in the course and scope of his
work with Nissan, because he submitted no medical opinions addressing causation. It
also noted that the left-ear hearing loss was identified in August 2014, several months
before Mr. Coffey became a Nissan employee, and that Mr. Coffey was exposed to loud
noises at his prior jobs. It pointed to a lack of evidence that Mr. Coffey’s work at Nissan
worsened the condition. It further contended that Mr. Coffey failed to identify a specific
incident or stressor as the cause of his chest pain, and pointed out several possible outside
factors, such as family stress and high blood pressure.

                       Findings of Fact and Conclusions of Law

       The following legal principles govern this case. Because this case is in a posture
of an Expedited Hearing, Mr. Coffey need not prove every element of his claim by a
preponderance of the evidence in order to obtain relief. McCord v. Advantage Human
Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Tenn. Workers’ Comp. App. Bd. Mar. 27, 2015). Instead, he must come forward with
sufficient evidence from which this Court might determine he is likely to prevail at a
hearing on the merits. Id.; Tenn. Code Ann. § 50-6-239(d)(1)(2015).

       To prove a compensable injury, Mr. Coffey must show that his alleged injury

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arose primarily out of and in the course and scope of his employment. Tenn. Code Ann.
§ 50-6-102(14) (2015). To do so, he must show his injury was caused by an incident, or
specific set of incidents, identifiable by time and place of occurrence. Tenn. Code Ann. §
50-6-102(14)(A) (2015). Further, he must show, “to a reasonable degree of medical
certainty that it contributed more than fifty percent (50%) in causing the . . . disablement
or need for medical treatment, considering all causes.” Tenn. Code Ann. § 50-6-
102(14)(C) (2015). “Shown to a reasonable degree of medical certainty” means that, in
the opinion of the treating physician, it is more likely than not considering all causes as
opposed to speculation or possibility. Tenn. Code Ann. § 50-6-102(14)(D) (2015).

         Applying these principles to the facts of this case, the Court cannot find at this
time that Mr. Coffey appears likely to meet his burden of proving a compensable injury.
Neither party submitted any medical opinions addressing the cause of Mr. Coffey’s
condition. Absent such an opinion, Mr. Coffey cannot prove “to a reasonable degree of
medical certainty” that his work “contributed more than fifty percent (50%) in causing
the . . . disablement or need for medical treatment, considering all causes.” Because Mr.
Coffey only seeks medical expense reimbursement for his chest pain claim, this finding
precludes any award of benefits at this time. However, additional analysis is required for
Mr. Coffey’s request for treatment in his hearing loss claim.

       Tennessee Code Annotated section 50-6-204(a)(3)(A)(i) (2015) provides:

       The injured employee shall accept the medical benefits afforded under this
       section; provided that in any case when the employee has suffered an injury
       and expressed a need for medical care, the employer shall designate a group
       of three (3) or more independent reputable physicians, surgeons,
       chiropractors or specialty practice groups if available in the injured
       employee’s community or, if not so available, in accordance with
       subdivision (a)(3)(B), from which the injured employee shall select one (1)
       to be the treating physician.

Further, an employee does not have to prove compensability in order to establish the
employer is obligated to provide a panel of physicians from which the employee may
choose an authorized physician. In McCord, the Workers’ Compensation Appeals Board
found that:

       [W]hether the alleged work accident resulted in a compensable injury has
       yet to be determined. Therefore, while Employee has not proven by a
       preponderance of the evidence that she suffered an injury arising primarily
       out of and in the course and scope of employment, she has satisfied her
       burden at this interlocutory stage to support an Order compelling Employer
       to provide a panel of physicians.


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 McCord at *16, 17. Thus, the question is whether Mr. Coffey has provided sufficient
evidence to satisfy his “burden at this interlocutory stage” that he is entitled to a panel of
physicians.

        The administrative rules governing an employer’s obligation to provide a panel
state, “[u]pon notice of any workplace injury, other than a minor injury for which no
person could reasonably believe requires treatment from a physician, the employer shall
immediately provide the injured employee a panel of physicians that meets the statutory
requirements for treatment of the injury.” Tenn. Comp. R. & Regs. 0800-02-01-.25(1)
(2015). An employer who fails to comply with this rule without good cause could be
assessed a civil penalty of up to $5,000. Id.

       The Court finds Mr. Coffey reported to Nissan that his hearing and the ringing in
his ears was getting worse, and he attributed these problems to workplace noise. Based
on the foregoing authority, this entitled him to a panel of physicians, which Nissan failed
to provide.

        Nissan’s notice defense is unpersuasive. Mr. Knoblett’s affidavit testimony that
Mr. Coffey did not report this condition as a work related injury or request treatment is
somewhat equivocal, insofar as he prefaces his statement with, “to my recollection,”
which infers some uncertainty as to the actual events. The Court had an opportunity to
observe Mr. Coffey and finds that he appeared steady, forthcoming, reasonable and
honest, which characteristics, according to the Tennessee Supreme Court, are indicia of
reliability. See Kelly v. Kelly, 445 S.W.3d 685, 694-695 (Tenn. 2014). He consistently
testified, both live and in his affidavit, that he repeatedly told his supervisors about his
hearing condition.

       Further, the Court notes that Mr. Coffey is not alleging a single event as the cause
of his ear problems, but attributes them to his daily exposure to noise at work. As a
gradual injury, Mr. Coffey’s claim is governed by Tennessee Code Annotated section 50-
6-201(b) (2015), which provides,

       In those cases where the injuries occur as the result of gradual or
       cumulative events or trauma, then the injured employee . . . shall provide
       notice of the injury to the employer within thirty (30) days after the
       employee:

   (1) Knows or reasonably should know that the employee has suffered a work-
       related injury that has resulted in permanent physical impairment; or

   (2) Is rendered unable to continue to perform the employee’s normal work
      activities as the result of the work-related injury and the employee knows or
      reasonably should know that the injury was caused by work-related

                                              5
        activities.

        Subsection (2) is inapplicable to Mr. Coffey because his hearing difficulties did
not render him unable to perform his normal work. As to subsection (1), because Mr.
Coffey has not received any medical evaluation or treatment for his hearing problems
since becoming a Nissan employee, there is no evidence suggesting he has any permanent
physical impairment resulting from a work-related injury, much less that he knew or
should have known about it. Therefore, Nissan’s receipt of Mr. Coffey’s PBD was
sufficient notice, as his last date of exposure to the noise at work was February 4, 2016,
and he filed the PBD for his hearing claim on February 16, 2016, fewer than thirty days
later.2

       Therefore, the Court finds Mr. Coffey provided sufficient evidence to satisfy his
burden at this interlocutory stage that he is entitled to a panel of physicians. Nissan is
ordered to provide a panel of physicians from which Mr. Coffey may choose an
authorized physician for evaluation and, if necessary, treatment of his alleged hearing
injuries in accordance with Tennessee Code Annotated section 50-6-204(a)(1)(A) (2015).

IT IS, THEREFORE, ORDERED as follows:

    1. Nissan or its workers’ compensation carrier shall provide Mr. Coffey with medical
       treatment for any work-related hearing injuries as required by Tennessee Code
       Annotated section 50-6-204 (2014), to be initiated by Nissan or its workers’
       compensation carrier providing Mr. Coffey with a panel of physicians as required
       by that statute. Medical bills shall be furnished to Nissan or its workers’
       compensation carrier by Mr. Coffey or the medical providers.

    2. Mr. Coffey’s request for reimbursement of his medical expenses related to his
       chest pain claim is denied at this time.

    3. This matter is set for an Initial (Scheduling) Hearing on November 29, 2016, at
       9:00 a.m.

    4. 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) (2015). The Insurer or Self-Insured
       Employer must submit confirmation of compliance with this Order to the
       Bureau by email to WCCompliance.Program@tn.gov no later than the
       seventh business day after entry of this Order. Failure to submit the

2
 The Court also notes Nissan failed to put on any proof showing it was prejudiced in any way by the alleged delay
in receiving notice of Mr. Coffey’s alleged injury.

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      necessary confirmation within the period of compliance may result in a
      penalty assessment for non-compliance.

   5. For questions regarding compliance, please contact the Workers’ Compensation
      Compliance Unit via email WCCompliance.Program@tn.gov or by calling (615)
      253-1471 or (615) 532-1309.


      ENTERED this the 29th day of September, 2016.


                                    Dale Tipps
                                 _____________________________________
                                 Judge Dale Tipps
                                 Court of Workers’ Compensation Claims

Initial (Scheduling) Hearing:

      An Initial (Scheduling) Hearing has been set with Judge Dale Tipps, Court of
Workers’ Compensation Claims. You must call 615-741-2112 or toll free at 855-
874-0473 to participate.

       Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation. All conferences are set using Central Time (CT).


Right 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 form entitled: “Expedited Hearing Notice of Appeal.”

   2. File the completed form with the Court Clerk within seven business days of the
      date the Workers’ Compensation Judge entered the Expedited Hearing Order.

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

   4. The appealing party is responsible for payment of a filing fee in the amount of
      $75.00. Within ten calendar days after the filing of a notice of appeal, payment
      must be received by check, money order, or credit card payment. Payments can be
      made in person at any Bureau office or by United States mail, hand-delivery, or

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   other delivery service. In the alternative, the appealing party may file an Affidavit
   of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
   fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
   of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
   will consider the Affidavit of Indigency and issue an Order granting or denying
   the request for a waiver of the filing fee as soon thereafter as is
   practicable. Failure to timely pay the filing fee or file the Affidavit of
   Indigency in accordance with this section shall result in dismissal of the
   appeal.

5. 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 calendar days of the filing of the Expedited
   Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
   the evidence within ten calendar days of the filing of the Expedited Hearing
   Notice of Appeal. The statement of the evidence must convey a complete and
   accurate account of what transpired in the Court of Workers’ Compensation
   Claims and must be approved by the workers’ compensation judge before the
   record is submitted to the Clerk of the Appeals Board.

6. If the appellant elects to file a position statement in support of the interlocutory
   appeal, the appellant shall file such position statement with the Court Clerk within
   five business days of the expiration of the time to file a transcript or statement of
   the evidence, specifying the issues presented for review and including any
   argument in support thereof. A party opposing the appeal shall file a response, if
   any, with the Court Clerk within five business days of the filing of the appellant’s
   position statement. All position statements pertaining to an appeal of an
   interlocutory order should include: (1) a statement summarizing the facts of the
   case from the evidence admitted during the expedited hearing; (2) a statement
   summarizing the disposition of the case as a result of the expedited hearing; (3) a
   statement of the issue(s) presented for review; and (4) an argument, citing
   appropriate statutes, case law, or other authority.




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                                               APPENDIX

Exhibits:
   1. Affidavits of Daniel Coffey
   2. Medical bills and account statements – Identification Only
   3. StoneCrest aftercare instructions – Identification Only
   4. StoneCrest prescriptions
   5. StoneCrest work excuse
   6. Nissan payroll stub
   7. Copies of text messages – Identification Only
   8. Indexed medical records from StoneCrest
   9. Affidavits of Thomas Knoblett
   10. C-32 Notice of Denial Forms
   11. C-41 Wage Statements
   12. Employment application
   13. Job Offer
   14. Page 38 of Nissan Employee Handbook
   15. Copy of text message dated August 24
   16. Mr. Coffey’s discovery responses
   17. Hearing Evaluation letter of August 7, 2014
   18. Concentra Medical Examination Report – Identification Only

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




3
   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.



                                                      9
                           CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Expedited Hearing Order
Granting Medical Benefits was sent to the following recipients by the following methods
of service on this the 30th day of September, 2016.


 Name                     Certified   Via         Via    Service sent to:
                           Mail       Fax        Email
 Daniel Coffey                                    X      Coffeybean24@gmail.com

 Thomas Tucker                                    X      tomtucker@bellsouth.net




                                        _____________________________________
                                        Penny Shrum, Clerk of Court
                                        Court of Workers’ Compensation Claims
                                        WC.CourtClerk@tn.gov




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