                                                                                 FILED
                                                                               Feb 11, 2019
                                                                              12:56 PM(CT)
                                                                            TENNESSEE COURT OF
                                                                           WORKERS' COMPENSATION
                                                                                  CLAIMS




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

JULIE CROWE,                               ) Docket No. 2018-05-0638
         Employee,                         )
v.                                         )
                                           )
LOGAN’S ROADHOUSE,                         ) State File No. 38592-2018
         Employer,                         )
And                                        )
                                           )
AGRI GEN. INS. CO.,                        ) Judge Dale Tipps
          Carrier.                         )


      EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS


      This matter came before the Court on January 29, 2019, for an Expedited Hearing.
The central legal issue is whether Ms. Crowe 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 cannot find she is likely to prove this but
holds Ms. Crowe is entitled to a panel of physicians.

                                   History of Claim

        Ms. Crowe worked as a manager for Logan’s Roadhouse. She testified that, on
May 10, 2018, she and some other employees were “rolling silverware” in an area called
the garage. When a large tub was filled with completed silverware rolls, she asked co-
worker Kobe Beers to help her move it to the front of the restaurant. While they were
moving the tub, she felt a pop in her right shoulder. Ms. Crowe did not report the injury
at the time because she was the only manager present.

       Ms. Crow continued to have severe pain in her shoulder, and she reported it the
next day to her supervisor, Joanna Webb. Logan’s took no action regarding her injury.
Ms. Crowe worked the next few days and then went to her personal physician, Dr. Olen
Burns.

                                           1
       Dr. Burns’ records show that Ms. Crowe saw NP Alicia Harper on May 18 and
reported shoulder pain that began when she carried a large bin and felt her shoulder pop.
She said she could not hold her arm up or move it backwards without severe pain. NP
Harper suspected a labral or rotator-cuff tear and recommended an MRI.

       Eventually, Ms. Crowe contacted her district manager and received a password to
complete her workers’ compensation claim documents online. She filed a First Report of
Injury on May 24. Logan’s filed a Notice of Denial on June 19, stating that Mr. Beers
did not see her lift the silverware tub and that Ms. Crowe had a history of right-shoulder
problems.

      After Logan’s denied Ms. Crowe’s claim, she emailed Dr. Burns about Logan’s
contention that she had a preexisting condition. Dr. Burns responded:

        I do not believe that I have had any communications with any entity about
        your shoulder pain. Our medical records show that you were seen by Alicia
        Harper (NP) on May 18 and had NEW shoulder pain. There was no
        mention of previous history of shoulder pain. The first time I ever saw you
        was in 2016 and there was no mention of prior shoulder problems then. So
        I’m not sure where anyone would be able to call that a pre-existing
        condition.

       Kobe Beers testified at the hearing1 that the first time he heard of Ms. Crowe’s
claim was when his supervisors asked him for a written statement. He denied ever seeing
Ms. Crowe lift a bin of silverware. When asked if he ever helped her lift a bin of
silverware, he responded that he helped “a lot of people” but could not recall all of them.
On cross-examination, Ms. Crowe asked Mr. Beers if she asked him on May 10 to come
to the garage and help her carry a bin of silverware to the front. He said, “Maybe. I
don’t know. I can’t remember an exact day or anything about it.”

      Ms. Crowe said she still suffers from shoulder pain. She asked the Court to order
Logan’s to provide medical treatment and temporary disability benefits.

       Logan’s countered that Ms. Crowe is not entitled to additional workers’
compensation benefits. It questioned whether the injury actually occurred as she
described, arguing that the incident was unwitnessed and Ms. Crowe delayed telling
anyone about it. Logan’s also contended that her problems were the result of a
1
  Logan’s called several witnesses. Most of their testimony related to whether Ms. Crowe gave adequate
legal notice of her injury, i.e., whether she received training in reporting workers’ compensation claims
and when she actually reported this claim. Because Logan’s eventually conceded during the hearing that
it had notice of Ms. Crowe’s claim within fifteen days of May 5, the Court finds it unnecessary to
summarize that testimony or address the notice defense.
                                                   2
preexisting medical condition that was not aggravated by a work injury. Further, it
argued that Ms. Crowe failed to establish that her shoulder condition arose primarily out
of and in the course and scope of her employment.

                       Findings of Fact and Conclusions of Law

                                     Standard applied

       Ms. Crowe 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 demonstrating that 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).

                                         Causation

       To prove a compensable injury, Ms. Crowe must show that her alleged injury
arose primarily out of and in the course and scope of her employment. To do so, she
must identify a work-related incident, or specific set of incidents, identifiable by time and
place of occurrence, that led to the injury. Further, she must show, “to a reasonable
degree of medical certainty that [the incident] contributed more than fifty percent (50%)
in causing the . . . disablement or need for medical treatment, considering all causes.”
“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. See Tenn. Code Ann. § 50-6-102(14).

       Applying these principles to the facts of this case, the Court first notes that Ms.
Crowe’s description of the work-related incident has been unwavering – from her visit at
Dr. Burns’ office, to the First Report of Injury she completed, to the Petition for Benefit
Determination, her affidavit, and her testimony. She consistently described feeling a pop
in her shoulder while carrying a bin of silverware at work. Logan’s presented no
evidence of any other cause of the injury. Rather, Logan’s opposition is Mr. Beers’
testimony and the argument that Ms. Crowe delayed reporting the work injury.

        Regarding the alleged delay in reporting, a factual dispute exists as to when
Logan’s had actual notice of the injury. Ms. Crowe claimed she reported it to Ms. Webb
the day after it happened. Ms. Webb testified that she knew of Ms. Crowe’s injury but
was unaware that it occurred at work. Ultimately, this dispute is irrelevant. Regardless
of when Logan’s received notice, it admitted Ms. Crowe reported her work injury within
the fifteen-day period required by the statute. Further, it offered no authority for the
proposition that merely delaying a report of injury until the end of the fifteen-day period
constitutes cause to deny a claim.


                                             3
       As to Mr. Beers, the Court found him earnest, but his testimony and written
statements ran the gamut between contradictory and immaterial. His written statements,
which Logan’s emphasized were created on May 25,2 said that he had not seen Ms.
Crowe lift any silverware “in the last week.” As the injury occurred over two weeks
before May 25, these statements do not shed any light on whether Ms. Crowe lifted the
bin on May 10.

        Mr. Beers’ hearing testimony fared no better than his written statements. He first
testified that he never saw Ms. Crowe lift a bin of silverware. Then, when asked if he
ever helped her do that, he said he has helped “a lot of people” but could not recall all of
them. Finally, Ms. Crowe asked Mr. Beers on cross-examination if she asked him on
May 10 to come to the garage and help her carry a bin of silverware to the front. His
response was, “Maybe. I don’t know. I can’t remember an exact day or anything about
it.” The Court finds these ambiguities insufficient to overcome Ms. Crowe’s steady,
consistent, unequivocal testimony, which the Court found credible. Therefore, the Court
holds that Ms. Crowe demonstrated she is likely to establish a specific incident,
identifiable by time and place, at a hearing on the merits.

       The question then is whether Ms. Crowe appears likely to prove at a hearing on
the merits that her work was the primary cause of the injury and need for treatment. The
Court cannot find at this time that she is likely to meet this burden. Neither party offered
any medical opinions addressing the cause of Ms. Crowe’s condition. Absent this
opinion, she cannot prove “to a reasonable degree of medical certainty” that her work
“contributed more than fifty percent (50%) in causing the . . . disablement or need for
medical treatment, considering all causes.”

        However, the Court must also address Logan’s failure to provide a panel of
physicians. Tennessee Code Annotated section 50-6-204(a)(3)(A)(i) provides 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 . . . from which the injured employee shall select one (1) to be the treating
physician.” Further, the administrative rules require an employer to provide a panel no
later than three days after an employee expresses a need for medical care. Tenn. Comp.
R. & Regs. 0800-02-01-.06 (2018). An employer who fails to comply with this rule may
be assessed a civil penalty. Id.

       Further, at an expedited hearing, an employee need not establish the
compensability of her claim by a preponderance of the evidence, but rather where the
employee comes forward with sufficient evidence to support that a work event resulted in
injury, it may also be sufficient to support an order compelling an employer to provide a
panel. See Lewis v. Molly Maid, 2016 TN Wrk. Comp. App. Bd. LEXIS 19, at *8-9 (Apr.

2
    The fact that he dated one of the statements May 15 raises further questions about their reliability.
                                                        4
20, 2016). Thus, the question is whether Ms. Crowe provided sufficient evidence to
satisfy her burden at this interlocutory stage that she is entitled to a panel of physicians.

       Logan’s contended that Ms. Crowe suffered from a preexisting shoulder condition
but presented no evidence to support this argument. Likewise, Logan’s offered no proof
in support of its argument that the work injury did not aggravate the alleged preexisting
condition. Finally, even if it had some factual basis for this position, those facts would
not excuse Logan’s from its statutory duty to provide medical treatment once it received
notice of a work injury. The Court is constrained to the record before it because “judges,
like lawyers, are poorly positioned to formulate expert medical opinions.” Love v. Delta
Faucet Co., 2016 TN Wrk. Comp. App. Bd. LEXIS 45, at *15-16 (Sept. 19, 2016).
Similarly, parties cannot rely solely on their own medical interpretations to support their
arguments. Lurz v. Int’l Paper Co., 2018 TN Wrk. Comp. App. Bd. LEXIS 8, at *17
(Feb. 14, 2018).

       Therefore, the Court holds Ms. Crowe provided sufficient evidence to satisfy her
burden at this interlocutory stage that she is entitled to a panel of physicians. Logan’s
shall provide a panel from which Ms. Crowe may choose an authorized physician for
evaluation and, if appropriate, treatment of her alleged injuries in accordance with
Tennessee Code Annotated section 50-6-204(a)(1)(A).

                              Temporary Disability Benefits

        Ms. Crowe also seeks temporary disability benefits. An injured worker is eligible
for temporary total disability benefits if: (1) the worker became disabled from working
due to a compensable injury; (2) there is a causal connection between the injury and the
inability to work; and (3) the worker established the duration of the period of disability.
Jones v. Crencor Leasing and Sales, TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec.
11, 2015). As noted above, Ms. Crowe failed to prove she is likely to meet her burden of
proving a work-related injury. Therefore, the Court cannot find at this time that she
appears likely to prevail on a claim for temporary disability benefits at a hearing on the
merits.

IT IS, THEREFORE, ORDERED as follows:

   1. Logan’s shall provide Ms. Crowe with a panel of orthopedic physicians and any
      medical treatment made reasonably necessary by her May 10, 2018 injury.

   2. Ms. Crowe’s request for temporary disability benefits is denied at this time.

   3. This matter is set for a Scheduling Hearing on March 26, 2019, at 10:00 a.m. The
      parties must call toll-free at 855-874-0473 to participate. Failure to call in may
      result in a determination of the issues without the parties’ participation. All

                                             5
      conferences are set using Central Time.

   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).
      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
      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 at WCCompliance.Program@tn.gov.

      ENTERED this the 11th day of February, 2019.



                                         _____________________________________
                                         Judge Dale Tipps
                                         Court of Workers’ Compensation Claims



                                      APPENDIX

Exhibits:
   1. Affidavit of Julie Crowe
   2. First Report of Injury
   3. Wage Statement
   4. Notice of Denial
   5. Kobe Beers’ written statement dated 5-15-18
   6. Printout of texts with Bob Ross
   7. Printout of texts with Joanna Webb
   8. Copy of postcard from Bureau
   9. Photographs of silverware bins
   10. Records from Dr. Olen Burns
   11. Records from Stonecrest Medical Center
   12. Printout of Sprint bill
   13. Printout of Logan’s Workers Compensation Detail
   14. Kobe Beers’ undated written statement
   15. Photographs of scanned written statement


                                            6
Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing
   4. Employee’s Statement
   5. Employer’s Response to Request for Expedited Hearing
   6. Employee’s Response to Employer’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 11th day
of February, 2019.

  Name                      Certified    Email     Service Sent To
                             Mail
  Julie Crowe,                  X           X      506 Osage Court
  Self-Represented                                 LaVergne, TN 37086
  Employee                                         Molly0121@gmail.com
  John Barringer,                           X      jbarringer@manierherod.com
  Employer’s Attorney




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




                                           7
                           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
