             IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                              AT NASHVILLE

JOSEPH RINGEN,                                             )   Docket No. 2015-06-1036
         Employee,                                         )
v.                                                         )   State File No. 67488-2015
VANQUISH WORLDWIDE,                                        )
         Employer,                                         )   Judge Joshua Davis Baker
And                                                        )
PROTECTION INSURANCE,                                      )
         Carrier.                                          )
                                                           )

    EXPEDITED HEARING ORDER DENYING REQUEST FOR TEMPORARY
                DISABILITY AND MEDICAL BENEFITS


       This matter came before the undersigned workers’ compensation judge on the
Request for Expedited Hearing filed by the employee, Joseph Ringen, pursuant to
Tennessee Code Annotated section 50-6-239 (2014). The present focus of this case is
whether Mr. Ringen may recover temporary disability and medical benefits from his
employer, Vanquish Worldwide (Vanquish). The central legal issue is whether Mr.
Ringen is likely to succeed in a hearing on the merits in establishing entitlement to these
benefits. For the reasons set forth below, the Court finds Mr. Ringen is unlikely to
prevail at a hearing on the merits and denies his request for temporary disability and
medical benefits.1

                                               History of Claim

       Mr. Ringen is a fifty-one-year-old resident of Sumner County, Tennessee,
employed by Vanquish. Mr. Ringen testified he was “whole” and “good to go so far as
healthwise” when he started work for Vanquish. However, he visited Dr. Goff at
Gallatin Chiropractic on July 3, 2015—two days before he began working for
Vanquish—for treatment of neck, shoulder and back pain. (Ex. 1.) Dr. Goff scheduled
him to return for more treatment in two weeks. Id.

1
 A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.
        The medical records indicated Mr. Ringen went to Gallatin Chiropractic more than
thirty times over the year prior to the July 3, 2015 visit. Id. Mr. Ringen stated he saw the
chiropractor for “general wellness” and to alleviate pains associated with yard work. He
admitted he was a regular maintenance chiropractic patient before he started work for
Vanquish.

       On July 5, 2015, Mr. Ringen began work as a delivery truck driver for Vanquish.
His job duties required him to deliver goods to Dell, Walmart and other local companies.
Mr. Ringen testified the truck Vanquish provided him to make deliveries “was considered
a backup truck used when the normal trucks were broken down for a day.” According to
Mr. Ringen, the truck “didn’t have shock absorbers under the seat, it shook, it had a bad
exhaust;” it was also extremely dirty. He claimed the truck shook, “pretty feverish.”

       On July 12, 2015, Mr. Ringen presented to the emergency room at Sumner
Medical Regional Center. (Ex. 1 at 48.) He went to the emergency room because he
“could not swallow.” According to the medical records, his symptoms began the
previous day and Mr. Ringen experienced similar symptoms in the past. Providers at
Sumner Regional diagnosed him with strep throat, gave him some antibiotics and
released him. Id. at 54. He visited Sumner Regional again with similar complaints on
July 29, 2015. At this visit, Providers at Sumner Regional determined Mr. Ringen did
not have strep throat and diagnosed him with a virus. (Ex. 1 at 22.)

       Sumner Regional billed $1,412.61 for the July 12 treatment, and $1,651.13 for the
July 29 treatment. He attempted to utilize his private insurance, Blue Cross and Blue
Shield, to pay for his visit to Sumner Regional, but his insurance declined to pay. (Ex. 4).
At the hearing, Mr. Ringen testified his policy expired before he went to Sumner
Regional.

        Mr. Ringen tried to have the July 29 visit covered under workers’ compensation
because he believed bacteria from the truck caused him to develop strep throat. At the
hearing, however, Mr. Ringen admitted he “couldn’t say, honestly, if it was from the
truck.”

       On July 24, 2015, Mr. Ringen returned to see Dr. Goff at Gallatin Chiropractic
complaining of pain in his neck and back. (Ex. 1.) The medical records indicate he told
Dr. Goff the truck he drove for work threw him around, and stated “he could hardly take
it.” Id. Mr. Ringen indicated his pain had increased since his previous visit. Id. Dr.
Goff advised he should return for more treatment “within the week.” Id. Dr. Goff did
not opine whether Mr. Ringen’s pain resulted from his work.

      Mr. Ringen testified that he soiled himself three times over a two-week period
beginning in the first week of August 2015, and cited the condition of the truck as the
cause of these incidents. He testified he did not soil himself outside of work over this

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period. He further testified he never soiled himself prior to coming to work for Vanquish
and had not done so since leaving Vanquish’s employ. He did not seek medical attention
following these incidents and admitted he did not know what “recompense” could be
provided.

       Over the course of his employment with Vanquish, Mr. Ringen sent several emails
and exchanged text messages with Vanquish employees. (Exs. 5, 6.) Most of these texts
and emails concerned discrepancies in his paycheck or the condition of his work truck.
On August 10, 2015, he emailed his supervisor, Greg Davis, and stated he needed to file a
workers’ compensation claim alleging “it all has to do with truck 124987.” (Ex. 6.) He
sent similar emails to Heidi Wright, Vanquish’s safety manager, on August 24, 25 and
27, 2015. Id.

       Mr. Ringen sent a copy of a video showing the condition of the truck to Heidi
Wright, Vanquish’s safety manager on August 27, 2015.2 Id. Mr. Ringen recorded the
video while driving. Shortly after sending the video, Mr. Davis terminated him for using
a cell phone while driving the truck. Mr. Ringen admitted using his cell phone while
driving violated Vanquish’s workplace rules.

       After his termination, Mr. Ringen continued to treat with Dr. Goff until January 5,
2016. (Ex. 1.) Following an office visit on January 5, 2016, Dr. Goff told Mr. Ringen
only to return as needed. Id. Dr. Goff never opined that Mr. Ringen’s need for
chiropractic care arose from his work for Vanquish.

       Mr. Ringen filed a Petition for Benefit Determination (PBD) seeking medical
benefits. (T.R. 1.) The parties did not resolve the disputed issues through mediation, and
the Mediating Specialist filed a Dispute Certification Notice (DCN). (T.R. 2.) The DCN
shows that Mr. Ringen also seeks temporary disability benefits. Mr. Ringen filed a
Request for Expedited Hearing, and this Court heard the matter on January 6, 2015.
(T.R. 3.)

       At the Expedited Hearing, Mr. Ringen asserted he asked Vanquish to see a
physician regarding pain the truck caused him. He asked the Court to award him the cost
of his medical bills from Sumner Regional and Dr. Goff. He also seeks temporary
disability benefits for time missed from work due to neck and back pain, strep throat, and
a virus. He claimed that he told Vanquish of his need for treatment on multiple occasions
yet Vanquish failed to provide him workers’ compensation benefits.

        Vanquish argued that Mr. Ringen’s claim is not compensable and his actions
constitute those of a disgruntled, rather than an injured, employee. It asserted Mr. Ringen
failed to prove a causal relationship between his work and any of his alleged injuries. It

2
    Mr. Ringen filed the video with the Clerk but did not move it into evidence.

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also asserted Mr. Ringen was not a credible witness.

       During the hearing, Vanquish asked permission to file Mr. Ringen’s chiropractic
records preceding his date of injury as a late-filed exhibit. Vanquish did not have the
records because Mr. Ringen refused to allow the chiropractor to release them. The Court
ordered Mr. Ringen to release the documents. It also granted Vanquish’s request to file
the records as a late filed exhibit. Vanquish filed the records with the Court on January
13, 2016.

                       Findings of Fact and Conclusions of Law

   I.     Vanquish’s Motion to Dismiss

        Prior to the hearing, Vanquish moved to dismiss Mr. Ringen’s Request for
Expedited Hearing arguing that his affidavit failed to allege a sufficient factual basis to
demonstrate entitlement to relief. The rule governing Requests for Expedited Hearing
states: “All motions for expedited hearing must be accompanied by affidavits and any
other information demonstrating that the employee is entitled to temporary disability or
medical benefits.” Tenn. Comp. R. & Regs. 0800-02-21-.14(1)(a) (2015). Contrary to
Vanquish’s position, the rule provides no specifics concerning the content of the
affidavit. The affidavit requirement exists to provide the employer fair notice of the facts
associated with an employee’s claim. See Hadzic v. Averitt Express, No. 2014-02-0064,
2015 TN Wrk. Comp. App. Bd. LEXIS 14 (Tenn. Workers’ Comp. App. Bd. May 18,
2015). The Court will not, however, read the affidavit in a vacuum. The Court agrees
that, standing alone, Mr. Ringen’s affidavit provides little, if any, specific evidence
concerning the circumstances of his alleged injury. When read in concert with the DCN
and the attached text messages and emails, however, the Court finds the affidavit
provides sufficient notice that Mr. Ringen seeks workers’ compensation benefits for
injuries allegedly associated with a work-related injury. The Court respectfully denies
Vanquish’s motion to dismiss Mr. Ringen’s Request for Expedited Hearing.

   II.    Mr. Ringen’s Claims for Relief

         Under the Workers’ Compensation Law, “injury” means “any injury by accident .
. . that causes death, disablement or the need for medical treatment[.]” Tenn. Code Ann.
§ 50-6-102(14) (2015). To be compensable, an injury must be “caused by a specific
incident, or set of incidents, arising primarily out of and in the course and scope of
employment.” Id. “An injury arises primarily out of and in the course and scope of
employment only if it has been shown by a preponderance of the evidence that the
employment contributed more than fifty percent (50%) in causing the injury, considering
all causes[.]” Id. (internal quotations omitted). The employee in a workers’
compensation claim has the burden of proof on all essential elements of a claim. Tindall


                                             4
v. Waring Park Ass’n, 725 S.W.2d 935, 937 (Tenn. 1987);3 Scott v. Integrity Staffing
Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn.
Workers’ Comp. App. Bd. Aug. 18, 2015).

       At an expedited hearing, 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 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). Accordingly, Mr. Ringen has the
burden of presenting sufficient evidence from which this Court can find that he is likely
to prevail at a hearing on the merits in proving entitlement to temporary disability and
medical benefits. The Court finds he failed to carry this burden.

       The charges Mr. Ringen incurred while seeking treatment for strep throat at the
Sumner Regional emergency room are not recoverable. Except in “the most obvious,
simple and routine cases,” a workers’ compensation claimant must establish by expert
medical testimony that he or she is injured and that there exists a causal relationship
between the injury and the claimant’s employment activity. Wheetley v. State, No.
M2013-01707-WC-R3-WC, 2014 Tenn. LEXIS 476, at *5 (Tenn. Workers’ Comp. Panel
June 25, 2014) (citing Excel Polymers, LLC v. Broyles, 302 S.W.3d 268, 274 (Tenn.
2009); Cloyd v. Hartco Flooring Co., 274 S.W.3d 638, 643 (Tenn. 2008)). Nothing in
the records from Sumner Regional referenced a causal relationship between Mr. Ringen’s
work for Vanquish and his strep throat. Furthermore, strep throat is not an obvious,
simple, and routine condition such as a cut, scratch, or bruise, thus proof of its work-
relatedness requires an expert medical opinion.

       Aside from Mr. Ringen’s failure to prove the cause of his strep throat, the Court
finds Mr. Ringen failed to give Vanquish proper notice before seeking emergency
treatment for the condition. At the earliest, Mr. Ringen provided Vanquish written notice
of his desire to seek treatment for his injuries under workers’ compensation on August
10, 2015. (Ex. 6.) Mr. Ringen received care at Sumner Regional on July 12 and 29,
2015. (Ex. 1 at 39, 48.) To recover the cost of this unauthorized care, Mr. Ringen must
prove he had good reason for seeking care without notifying the employer. See Lane v.
Olsen Staffing Servs., No. E2001-00380-WC-R3-CV, 2002 Tenn. LEXIS 34, at *7-8
(Tenn. Workers’ Comp. Panel Jan. 31, 2002) (citing Dorris v. INA Ins. Co., 764 S.W.2d
538 (Tenn. 1989)). The proof did not show Mr. Ringen’s need for care was so immediate
that he could not have contacted Vanquish before going to Sumner Regional.

3
 The Tennessee Workers’ Compensation Appeals Board allows reliance on precedent from the Tennessee Supreme
Court “unless it is evident that the Supreme Court’s decision or rationale relied on a remedial interpretation of pre-
July 1, 2014 statutes, that it relied on specific statutory language no longer contained in the Workers’ Compensation
Law, and/or that it relied on an analysis that has since been addressed by the general assembly through statutory
amendments.” McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, at *13 n.4 (Tenn. Workers’ Comp. App. Bd. Mar. 27, 2015).

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Additionally, he failed to show that Sumner Regional provided reasonable and necessary
care. For these reasons, Mr. Ringen cannot recover the costs for these medical bills.

       Mr. Ringen argued Vanquish should have provided him a panel of physicians to
treat his conditions. The administrative rules governing procedures in the Bureau of
Worker’s Compensation provide, “[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). The Court finds Mr. Ringen’s alleged back
and neck injury was the only condition that would have qualified for care under the rule.

       In an August 10, 2015 email, Mr. Ringen told Mr. Davis that he wished to file a
workers’ compensation claim because the gyration and shaking of the truck caused his
neck, back and head to hurt. (Ex. 6.) The Court agrees that the best course of action
would have been for Vanquish to provide a panel to Mr. Ringen at that time. It did not,
and its failure to do so could result in the assessment of a civil penalty of up to $5,000.
See Tenn. Comp. R. & Regs. 0800-02-01-.25(1) (2015).

       Mr. Ringen, however, received care for his back and neck condition from Dr.
Goff. Although it was reasonable for Mr. Ringen to seek treatment on his own once
Vanquish failed to provide a panel of physicians, the Court finds Mr. Ringen cannot
recover the costs of Dr. Goff’s chiropractic services because he failed to show the care
was reasonable and necessary to treat a work-related claim. Although Mr. Ringen
complained to Dr. Goff that his work for Vanquish hurt his back and neck, Dr. Goff
never causally related Mr. Ringen’s condition to his work. Without such an opinion, the
Court finds Mr. Ringen cannot meet his burden of proof.

       The Court finds Mr. Ringen is not entitled to receive temporary disability benefits.
An employee is entitled to receive temporary total disability benefits pursuant to
Tennessee Code Annotated § 50-6-207(1) (2015) whenever the employee suffered a
compensable, work-related injury that rendered the employee unable to work. See
Simpson v. Satterfield, 564 S.W.2d 953 (Tenn. 1978). Mr. Ringen presented no evidence
that any doctor took him off of work due to any of his conditions, nor did he prove
through medical expert opinion that his conditions were work-related. Having not proven
that he missed work due to a work-related injury, Mr. Ringen cannot demonstrate
entitlement to temporary disability benefits.

       Mr. Ringen has not come forward with sufficient evidence from which this Court
concludes he is likely to prevail at a hearing on the merits in proving he suffered an
injury that arose primarily in the course and scope of employment. Accordingly, his
requests for temporary disability and medical benefits are denied at this time. Because
the Court finds that Mr. Ringen failed to carry his burden of proof, the Court declines to

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rule on Vanquish’s claims concerning his credibility as a witness.

IT IS, THEREFORE, ORDERED as follows:

    1. Mr. Ringen’s claim against Vanquish and its workers’ compensation carrier for the
       requested temporary disability and medical benefits is denied at this time.

    2. This matter is set for an Initial (Scheduling) Hearing on February 29, 2016, at
       1:00 p.m. (CST).4

         ENTERED this the 28th day of January, 2016.


                                               _____________________________________
                                               Judge Joshua Davis Baker
                                               Court of Workers’ Compensation Claims

Initial (Scheduling) Hearing:

       An Initial (Scheduling) Hearing has been set with Judge Joshua Davis Baker,
Court of Workers’ Compensation Claims. You must call 615-741-2113 or toll-free
at 855-874-0474 to participate in the Initial Hearing.

       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.


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
  At the close of the Expedited Hearing, the parties agreed to hold this hearing at 10:00 a.m. The Court did not
know that it had a conflict at that time. If the parties cannot appear at the time listed above, please call the Clerk and
request a different time for the Initial Hearing.

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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
   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.




                                         8
                                                  APPENDIX

Exhibits:

    1.   Medical records from Sumner Regional Medical Center
    2.   Gallatin Chiropractic Records5
    3.   Affidavit of Joseph Ringen and attached documents
    4.   Medical bills
    5.   Text Messages and Screenshots submitted with Request for Expedited Hearing
    6.   Email Messages submitted with Request for Expedited Hearing
    7.   Expanded view of medical record dated July 29, 2015

Technical record:6
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing
   4. Vanquish’s Supplemental Brief
   5. Notice of Appearance submitted by J. Allen Brown
   6. Notice of Limited Appearance submitted by J. Allen Brown
   7. Vanquish’s Motion to Dismiss or an Extension of Time filed November 14, 2015
   8. Mr. Rignen’s Response to November 14, 2015 Motion to Dismiss
   9. Order filed November 24, 2015
   10. Notice of Filing Chiropractic Records dated January 12, 2016
   11. Mr. Ringen’s Response to Vanquish’s Supplemental Brief
   12. Prehearing Order
   13. Motion to Dismiss
   14. Notice of Hearing




5
 The Court allowed Vanquish to submit additional chiropractic records as a late-filed exhibit. Upon receipt, the
Court added those records to this exhibit.
6
   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 was
sent to the following recipients by the following methods of service on this the _____
                                                                                 28th  day
of January, 2016.


 Name                       Certified Via        Via     Service sent to:
                            Mail      Fax        Email
 Joseph Ringen                                           bluethunder320@aol.com
 J. Allen Brown                                          allen@jallenbrownpllc.com




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




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