                                                                                   FILED
                                                                                 Nov 21, 2018
                                                                                 10:38 AM(CT)
                                                                              TENNESSEE COURT OF
                                                                             WORKERS' COMPENSATION
                                                                                    CLAIMS




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

ANGELA DOUGLAS,                                  ) Docket No. 2018-05-0914
        Employee,                                )
v.                                               )
                                                 )
ADIENT USA, LLC,                                 ) State File No. 66160-2017
         Employer,                               )
And                                              )
                                                 )
OLD REPUBLIC INS. CO.,                           ) Judge Dale Tipps
         Carrier.                                )




     EXPEDITED HEARING ORDER DENYING REQUESTED BENEFITS


       This matter came before the Court on November 14, 2018, for an Expedited
Hearing focusing on Ms. Douglas’s entitlement to medical benefits. The central legal
issues are whether Ms. Douglas’s claim is barred by failure to give proper notice and, if
not, whether she is likely to establish at a hearing on the merits that her injury arose
primarily out of and in the course and scope of her employment. For the reasons below,
the Court holds Ms. Douglas is not entitled to the requested benefits at this time.

                                    History of Claim

       Ms. Douglas testified that she suffered a left-knee injury while working for
Adient. She was initially unsure about the exact date of injury but later determined that it
occurred on July 24, 2017, the same day Adient had a visitor from Nissan, for whom
Adient built car seats. Ms. Douglas described working at two stations that were just a
few steps apart. As she turned to go from one station to the other, she felt a pop in her
left knee. This caused her to step off the line for a few moments, but she returned to
work and finished her shift. When, Ms. Douglas returned to work the next week, her
knee was painful and swollen. She began icing it in Adient’s first aid station during her
work breaks.

                                             1
       Ms. Douglas had an annual medical checkup on August 21 with her personal
physician, Dr. Dana Chandler. Dr. Chandler noted an approximately three-week history
of sharp and severe left knee pain. Ms. Douglas reported difficulty with stairs and said
her knee would “give out” at times. Although Ms. Douglas testified that she told Dr.
Chandler about injuring her knee at work, Dr. Chandler noted “no overt trauma.” Dr.
Chandler ordered x-rays and prescribed Prednisone.

       The next day, Ms. Douglas reported the injury to Human Resources and filled out
an injury report. Adient subsequently denied the claim, and Ms. Douglas sought
treatment on her own with Dr. Cason Shirley.

      Dr. Shirley’s October 19 record gave a July 24 onset date, when Ms. Douglas
“was putting a cushion in a seat and twisted her knee and it popped.” He diagnosed a
medial meniscus tear and gave her a lidocaine injection.

       David Miller, Adient’s Health and Safety Lead, and Steve Williams, Production
Superintendent, testified that they knew Ms. Douglas was icing her knee during her work
breaks. However, Adient was unaware that Ms. Douglas’s knee problem was work-
related until she filled out her injury report on August 22. They also explained that the
delay in learning of the alleged injury impaired their ability to investigate the claim.
Specifically, they were unable to review any video or speak to any witnesses with
memory of the incident.

        Ms. Douglas asked the Court to order Adient to provide medical treatment for her
knee.

       Adient contended that Ms. Douglas’s claim is barred by her failure to provide
proper notice of an injury. It also argued that, even if notice was legally adequate, Ms.
Douglas’s injury is not compensable because it was idiopathic. Finally, Adient
maintained that Ms. Douglas failed to meet her burden of proving that her knee injury
arose primarily out of and in the course and scope of her employment. For these reasons,
it asked the Court to deny her request.

                       Findings of Fact and Conclusions of Law

                                    Standard applied

       Ms. Douglas need not prove every element of her claim by a preponderance of the
evidence in order to obtain relief at an expedited hearing. Instead, she must present
sufficient evidence she is likely to prevail at a hearing on the merits. See Tenn. Code
Ann. § 50-6-239(d)(1) (2018); McCord v. Advantage Human Resourcing, 2015 TN Wrk.
Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

                                            2
                                          Notice

        Tennessee Code Annotated section 50-6-201(a)(1) provides that an injured
employee must give written notice of an injury within fifteen days unless it can be shown
that the employer had actual knowledge of the accident or that “reasonable excuse for
failure to give the notice is made to the satisfaction of the tribunal.”

        When the employer raises lack of notice as a defense, the burden is on the
employee to show either the employer had actual notice, that she provided notice, or that
her failure to give notice was reasonable under the circumstances. Hosford v. Red Rover
Preschool, 2014 TN Wrk. Comp. App. Bd. LEXIS 1, at *15 (Oct. 2, 2014). Our Appeals
Board explained the notice requirement “exists so that an employer will have an
opportunity to make a timely investigation of the facts while still readily accessible, and
to enable the employer to provide timely and proper treatment for an injured employee.”
Id. Guided by this authority, the Court must determine whether Ms. Douglas rebutted
Adient’s notice defense.

       The Court first finds Adient had no “actual notice” of the injury. There is no
evidence that any representative of Adient authorized to receive notice knew of the
incident when it occurred.

        Second, the Court turns to whether Ms. Douglas provided notice to Adient within
fifteen days. On this point, Ms. Douglas acknowledged she provided no written notice of
her alleged July 24 injury until August 22. Accordingly, the Court finds she failed to
provide timely notice.

         Next, the Court finds no reasonable excuse for Ms. Douglas’s failure to provide
timely notice of her injury. In Buckner v. Eaton Corp., 2016 TN Wrk. Comp. App. Bd.
LEXIS 84 (Nov. 9, 2016), the employee sustained an injury on July 21, 2015, at a
“specific time and place performing a specific task.” However, he did not report his
injury until September 2, 2015, forty-three days later. Id. at *3. Under such
circumstances, the Appeals Board concluded “that Employee’s excuse for failing to
provide timely notice of his work injury was not ‘reasonable,’ the standard mandated by
the legislature in section 50-6-201(a)(1).” Id. at *11. Specifically, “this was not a case
where symptoms developed gradually over time or were not immediately apparent.”
Rather, the employee “was immediately aware he hurt his back and shortly thereafter was
. . . unable to work.” Id.

        The facts of this case are similar. Like the employee in Buckner, Ms. Douglas
alleged an injury at a specific time and place while performing a specific task. She
testified that she felt her knee pop on July 24, 2017, which caused her to take a short
break from her duties. Although she kept working that day, she soon developed swelling

                                            3
and pain. Thus, any delayed reporting of her injury is not excused on grounds that her
“symptoms developed gradually over time or were not immediately apparent.” See
Buckner, at *11.

      However, the inquiry does not end there. Tennessee Code Annotated section 50-
6-201(a)(3) provides that the failure to give timely notice of a work-related injury will not
bar compensation “unless the employer can show, to the satisfaction of the workers'
compensation judge before which the matter is pending, that the employer was prejudiced
by the failure to give the proper notice, and then only to the extent of the prejudice.”
Accordingly, the Court must determine whether Adient suffered prejudice, and if so, to
what extent any such prejudice affects the benefits to which Ms. Douglas may be entitled.

       Prejudice may be found if the employer is denied the opportunity to make an
investigation while the facts are accessible or to enable it to provide timely and proper
treatment for the injured employee. Masters v. Industrial Garments Mfg. Co., 595
S.W.2d 811, 815 (Tenn. 1980) citing York v. Federal Chemical Co., 216 S.W.2d 725
(Tenn. 1949).

       Adient did not contend that the late notice prevented it from providing proper
medical treatment for Ms. Douglas. Instead, Mr. Miller testified that he didn’t have a
chance to conduct a proper investigation because “six weeks later, nobody can remember
anything” and video of the incident was not available due to the time elapsed. This
testimony is not entirely persuasive, as Mr. Miller overstated the number of weeks
between the alleged injury and the date of notice, which was actually less than thirty
days. Further, Mr. Miller did not testify that he actually tried to identify and interview
the witnesses to the incident, but implied that it would have been difficult or unfruitful to
do so. This inference is speculative and not proof of actual prejudice.

       The testimony about the video, however, is substantive. Adient had a right to
evaluate Ms. Douglas’s claim, including reviewing video of her work area to determine
whether her description of the injury was credible. The video was unavailable because of
her delay in reporting the injury. While the prejudicial effect appears slight in this case,
the fact remains that the delay impaired Adient’s ability to investigate the claim. The
Court must conclude, therefore, that Ms. Douglas appears unlikely to rebut Adient’s
notice defense.1

IT IS, THEREFORE, ORDERED as follows:

    1. Ms. Douglas’s claim against Adient and its workers’ compensation carrier for the
       requested medical benefits is denied at this time.

1
 Because Ms. Douglas appears unlikely to overcome the notice defense, the Court need not address
Adient’s causation arguments.
                                               4
   2. This matter is set for a Scheduling Hearing on January 15, 2019, at 10:00 a.m.
      You must call 615-741-2112 or toll-free at 855-874-0473 to participate. Failure to
      call may result in a determination of the issues without your further
      participation. All conferences are set using Central Time (CT).

       ENTERED this the 21st day of November, 2018.



                                   _____________________________________
                                   Judge Dale Tipps
                                   Court of Workers’ Compensation Claims



                                       APPENDIX

Exhibits:
   1. Affidavit of Angela Douglas
   2. October 18, 2017 office note of Dr. Cason Shirley
   3. Medical records from Dr. Dana Chandler
   4. Affidavits of David Miller, Steve Williams, Aaron Cowart, and Tony Simeri
   5. Injury report

Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing
   4. Adient’s Pre-Hearing Statement
   5. Adient’s Witness and Exhibit List




                             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 21st day of
November, 2018.




                                             5
Name                  Certified Fax       Email   Service sent to:
                      Mail
Angela Douglas,       X                   X       108 East Merchant St.
Employee                                          Mt. Pleasant, TN 38474
                                                  angeladouglass2009@yahoo.com
Kitty Boyte,                              X       kboyte@constangy.com
Employer’s Attorney




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




                                      6
                           Expedited Hearing Order Right to Appeal:

     If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:

   1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
      form with the Clerk of the Court of Workers’ Compensation Claims within seven
      business days of the date the expedited hearing order was filed. When filing the Notice
      of Appeal, you must serve a copy upon all parties.

   2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
      calendar days after filing of the Notice of Appeal. Payments can be made in-person at
      any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
      alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
      website or any Bureau office) seeking a waiver of the fee. You must file the fully-
      completed Affidavit of Indigency within ten calendar days of filing the Notice of
      Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
      result in dismissal of the appeal.

   3. You bear the responsibility of ensuring a complete record on appeal. You may request
      from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
      the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
      it with the court clerk within ten business days of the filing the Notice of
      Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
      parties within ten business days of the filing of the Notice of Appeal. The statement of
      the evidence must convey a complete and accurate account of the hearing. The Workers’
      Compensation Judge must approve the statement before the record is submitted to the
      Appeals Board. If the Appeals Board is called upon to review testimony or other proof
      concerning factual matters, the absence of a transcript or statement of the evidence can be
      a significant obstacle to meaningful appellate review.

   4. If you wish to file a position statement, you must file it with the court clerk within ten
      business days after the deadline to file a transcript or statement of the evidence. The
      party opposing the appeal may file a response with the court clerk within ten business
      days after you file your position statement. All position statements 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.




For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
 .
ll                                                                                                                 .I




                                    Tennessee Bureau of Workers' Compensation
                                           220 French Landing Drive, 1-B
                                             Nashville, TN 37243-1002
                                                   800-332-2667


                                               AFFIDAVIT OF INDIGENCY


     I,                                                , having been duly sworn according to law, make oath that
     because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
     waived. The following facts support my poverty.

     1. Full Name:_ _ _ _ _ _ _ _ _ _ __                      2. Address: - - - - - - - - - - - - -

     3. Telephone Number: - - - - - - - - -                   4. Date of Birth: - - - - - - - - - - -

     5. Names and Ages of All Dependents:

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

             - - - - - - - - - - - - - - -- -                 Relationship: - - - - - - - - - - - --

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

     6. I am employed by: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , -

             My employer's address is: - - - - - - - - - - - - - - - - - - - - - - - - -

             My employer's phone number is: - - - - - - - - - - - - - - - - - - - - - - -

     7. My present monthly household income, after federal income and social security taxes are deducted, is:

     $ _ _ _ _ _ _ ___

     8. I receive or expect to receive money from the following sources:

             AFDC            $            per month           beginning
             SSI             $            per month           beginning
             Retirement      $            per month           beginning
             Disability      $            per month           beginning
             Unemployment $               per month           beginning
             Worker's Camp.$              per month           beginning
             Other           $            per month           beginning



     LB-1108 (REV 11/15)                                                                               RDA 11082
9. My expenses are: ' ;                                                     !•
                                                                             '

        Rent/House Payment $              per month     Medical/Dental $            per month

        Groceries         $         per month           Telephone       $           per month
        Electricity       $         per month           School Supplies $           per month
        Water             $         per month           Clothing        $           per month
        Gas               $         per month           Child Care      $           per month
        Transportation $            per month           Child Support   $           per month
        Car               $          per month
        Other             $         per month (describe:


10. Assets:

        Automobile              $ _ _ __ _
                                                        (FMV) -    - - - - -- - - -
        Checking/Savings Acct. $ _ _ _ __
        House                   $ _ _ _ __
                                                        (FMV) - - -- - - -- - -
              )
        Other                   $ _ _ _ __              Describe:_ _ _ __ _ _ _ _ __


11. My debts are:

        Amount Owed                     To Whom




I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.




APPELLANT



Sworn and subscribed before me, a notary public, this

_ _ _ dayof _____________ ,20____




NOTARY PUBLIC

My Commission Expires:_ _ _ _ _ __ _




LB-1108 (REV 11/15)                                                                         RDA 11082
