                                                                                                        FILED
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                                                                                                       Time 3 :39' PM

                TENNESSEE BUREAU OF WORKERS' COMPENSATION
                  COURT OF WORKERS' COMPENSATION CLAIMS
                               AT MEMPHIS

EVE HOLYFIELD,                                           )    Docket No.: 2016-08-0669
         Employee,                                       )    State File Number: 35665-2016
                                                         )    Judge Jim Umsted
v.                                                       )
                                                         )
SENIOR HELPERS,                                          )
         Employer,                                       )
                                                         )
And                                                      )
                                                         )
TRAVELERS COMMERCIAL                                     )
CASUALTY CO.,                                            )
        Insurance Carrier.                               )




       EXPEDITED HEARING ORDER DENYING REQUESTED BENEFITS
                          (FILE REVIEW)


        This matter came before the Court upon a Request for Expedited Hearing (REH)
filed by the employee, Eve Holyfield, on October 7, 2016, pursuant to Tennessee Code
Annotated section 50-6-239 (2015). Both Ms. Holyfield and her employer, Senior
Helpers, requested that the Court decide this interlocutory claim for medical and
temporary disability benefits based on a review of the file without an evidentiary hearing.
The Court found no additional information was needed to determine whether Ms.
Holyfield is likely to prevail at a hearing on the merits of the claim. Accordingly,
pursuant to Tennessee Compilation Rules and Regulations Rule 0800-02-21-.14(l)(c)
(20 15), the Court decided the request for benefits based on a review of the written
materials and without the benefit of an evidentiary hearing. 1

1
  In making a file review determination, the Court makes no decision as to the admissibility of the information
submitted in the case file absent an objection from a party. Here, Senior Helpers moved to strike the collective
exhibit of medical records from St. Francis Hospital - Bartlett because the records were neither signed by a doctor
nor accompanied by a certification by the custodian of records. (T.R. 6.) The Court finds the motion is well taken

                                                         1
        Ms. Holyfield contends she is entitled to payment of unauthorized, past medical
expenses, ongoing medical treatment, and temporary disability benefits. The central legal
issues are: (1) whether Ms. Holyfield sustained a compensable injury arising primarily
out of and in the course and scope of her employment with Senior Helpers; (2) whether
Ms. Holyfield is entitled to payment of unauthorized past medical expenses; (3) whether
Ms. Holyfield is entitled to ongoing medical treatment; and (4) whether Ms. Holyfield is
entitled to temporary disability benefits, and if so, in what amount. For the following
reasons, the Court holds Ms. Holyfield has not come forward with sufficient evidence to
establish she is likely to prevail at a hearing on the merits that she sustained an injury
primarily arising out of and in the course and scope of her employment such that she
would be entitled to the requested benefits. 2

                                             History of Claim

       Based on the Court's file, Ms. Holyfield is a fifty-three-year-old resident of Shelby
County, Tennessee. (T.R. 1.) Senior Helpers hired her as a caregiver on or about April
5, 2012. (T.R. 4.) She claimed she developed scabies on her hands, arms, fingers, and
feet while caring for a Senior Helpers' client on or about May 12, 2016. (T.R. 1; T.R. 2.)
According to Ms. Holyfield, her hands began to itch in April 2016 after getting cat hair
all over her at the client's home. (Ex. 1.) She reported the issue to Senior Helpers on
May 12, 2016, and Senior Helpers sent her to Methodist Healthcare for a one-time
evaluation. (T.R. 4.)

        Nurse Practitioner Floyd Gresham evaluated Ms. Holyfield on May 12, 2016, and
indicated in his office note that her hands, wrist, and feet had been itching for about two
weeks after taking care of a patient with a sickly cat. (Ex. 6.) He diagnosed Ms.
Holyfield with scabies and noted the condition was work-related. (Ex. 6.) He prescribed
Permethrin cream for the rash, placed Ms. Holyfield on limited duty, and instructed her to
return to the clinic on May 16, 2016. (Ex. 6.)

       On May 13, 2016, Senior Helpers' workers' compensation carrier, Travelers
Commercial Casualty Co., denied Ms. Holyfield's claim. (Ex. 3.) Travelers denied the
claim due to a lack of evidence that Ms. Holyfield's condition was work related. (Ex. 3.)
Based on this denial, Ms. Holyfield filed a Petition for Benefit Determination on June 10,
2016. (T.R. 1.)

       After the parties attempted alternative dispute resolution, a Dispute Certification
Notice was filed with the Court clerk on August 4, 2016. (T.R. 2.) Thereafter, Ms.
Holyfield filed her REH. (T.R. 3.) In the affidavit filed with her REH, Ms. Holyfield
stated her hands were partially disfigured and she was in constant pain due to her

and has marked the exhibit for identification only. The records will not be admitted into evidence.
2
  The Court has attached, as an Appendix to this Order, a complete listing of both the technical record and the
exhibits it considered.

                                                      2
condition, which she related to her patient's cat. (Ex. 1.) She also indicated she no
longer had normal use of her hands and that she had to pay for her medical visits and
medication. (Ex. 1.)

        In response to Ms. Holyfield's REH and affidavit, Senior Helpers filed the
affidavit of Janie Phillips (Ex. 2) as well as a causation letter prepared by Dr. James
Turner (Ex. 8) as exhibits. Ms. Phillips, the daughter of the patient Ms. Holyfield was
assisting when she noticed her condition, testified that her mother fell and broke her hip
on April 26, 2016. (Ex. 2.) Due to her broken hip, Ms. Phillips' mother spent fifteen
days in the hospital as well as an additional twenty-five days in a rehabilitation facility.
(Ex. 2.) During this time, Ms. Phillips' mother was thoroughly examined by numerous
doctors and nurses. (Ex. 2.) However, none of these medical providers ever diagnosed
her with scabies or mentioned scabies. (Ex. 2.)

       Senior Helpers sent the affidavits of Ms. Holyfield and Ms. Phillips, along with
Ms. Holyfield's medical records from Methodist Healthcare, to Dr. Turner, a
dermatologist with Mid-South Dermatology and Skin Cancer Center, to get a causation
opinion. (T.R. 4.) In his November 1, 2016 letter, Dr. Turner initially stated that humans
have a different species of scabies than cats and there was no clinical evidence to suggest
cross contamination or infection occurs. (Ex. 8.) He further noted that Ms. Holyfield did
not have a laboratory diagnosis of scabies using skin scraping or biopsy to ensure a
proper diagnosis. (Ex. 8.) Finally, he indicated Ms. Holyfield gave a history of working
in home health and as a manicurist, which could explain her condition. (Ex. 8.) In light
of Dr. Turner's letter, Senior Helpers contends Ms. Holyfield cannot meet her burden of
proving her injury arose primarily out of and in the course of her employment.

                           Findings of Fact and Conclusions of Law

                                General Legal Principles

        Ms. Holyfield need not prove every element of her claim by a preponderance of
the evidence in order to recover medical and/or temporary disability benefits at an
Expedited Hearing. 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,
20 15). Instead, she must come forward with sufficient evidence from which this Court
might determine she is likely to prevail at a hearing on the merits. !d.; Tenn. Code Ann.
§ 50-6-239(d)(l) (2015). This lesser evidentiary standard does not relieve Ms. Holyfield
of the burden of producing evidence of an injury by accident that arose primarily out of
and in the course and scope of employment at an Expedited Hearing, but "allows some
relief to be granted if that evidence does not rise to the level of a 'preponderance of the
evidence."' Buchanan v. Car/ex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp.
App. Bd. LEXIS 39, at *6 (Tenn. Workers' Comp. App. Bd. Sept. 29, 2015).


                                             3
                Primarily Arising Out of and in the Course ofEmployment

        The Court initially must determine whether Ms. Holyfield has met her burden of
proving she is likely to prevail at a hearing on the merits of her claim. To be
compensable under the workers' compensation statutes, Ms. Holyfield's condition must
arise primarily out of and occur in the course and scope of the employment. Tenn. Code
Ann. § 50-6-1 02( 14) (20 15). "Arising primarily out of and in the course and scope of
employment" requires a showing, to a reasonable degree of medical certainty, that the
alleged work injury "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).

       The issue under consideration is whether Ms. Holyfield developed scabies on her
hands, arms, fingers, and feet while caring for a Senior Helpers' client on or about May
12, 2016, as she claimed. This is an issue requiring expert medical evidence. In
analyzing whether she met her burden, the Court will not remedially or liberally construe
the law in her favor, but instead shall construe the law fairly, impartially, and in
accordance with basic principles of statutory construction favoring neither Ms. Holyfield
nor Senior Helpers. See Tenn. Code Ann. § 50-6-116 (2015).

       The Court must evaluate and compare the report of Nurse Practitioner Gresham at
Methodist Healthcare and the report of Dr. Turner, a dermatologist with Mid-South
Dermatology and Skin Cancer Center. Nurse Practitioner Gresham evaluated Ms.
Holyfield on May 12, 2016, and indicated in his office note that her hands, wrist, and feet
had been itching for about two weeks after taking care of a patient with a sickly cat. He
diagnosed Ms. Holyfield with scabies and noted the condition was work-related. To the
contrary, Dr. Turner opined that humans have a different species of scabies than cats and
there was no clinical evidence to suggest cross contamination or infection occurs. He
further noted that Ms. Holyfield did not have a laboratory diagnosis of scabies using skin
scraping or biopsy to ensure a proper diagnosis. Finally, he indicated Ms. Holyfield gave
a history of working in home health and as a manicurist, which could explain her
condition.

       The Court finds that Dr. Turner is a more qualified expert in the field of
dermatologic conditions, such as scabies, and that he more completely and logically
explained his medical opinion. Dr. Turner discounted the likelihood of Ms. Holyfield
developing scabies from contact with a cat, and noted other potential causes of scabies.
Based on a comparison of the two conflicting medical reports, the Court holds Ms.
Holyfield is unlikely to prevail at a hearing on the merits on the issue of causation.


                                            4
Having determined this issue in favor of Senior Helpers, it is not necessary to address the
other issues raised by the parties.

   IT IS, THEREFORE, ORDERED as follows:

   1. Ms. Holyfield's claim against Senior Helpers for the requested benefits is denied
      at this time.

   2. This matter is set for a Status Conference on January 9, 2017, at 9:30 a.m. Central
      time.

       ENTERED this the 30th day of Nov? %

                                         ----==~--------------------------
                                         Judge Jim Umsted
                                         Court of Workers' Compensation Claims

                                   Status Conference:

       A Status Conference has been set with Judge Allen Phillips, Court of Workers'
Compensation Claims. You must call 731-422-5263 or toll-free at 855-543-5038 to
participate in the Status Conference.

       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. 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

                                            5
   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.




                                         6
                                    APPENDIX

The Court designates the following documents as the Technical Record:

   1. Petition for Benefit Determination, filed on June 10, 2016;
   2. Dispute Certification Notice, filed on August 4, 2016;
   3. Request for Expedited Hearing, filed on October 7, 2016;
   4. Senior Helpers' Expedited Hearing Pre-Trial Brief, filed on November 3, 2016;
   5. Order for File-Review Determination on Request for Expedited Hearing, filed
      November 14, 2016; and
   6. Senior Helpers' Motion to Strike Collective Exhibit of Medical Records from St.
      Francis Hospital - Bartlett.

The Court considered the following documents in reaching its decision. It designates
them as Exhibits for sake of reference:

   1. Ms. Holyfield's Affidavit, filed October 7, 20 16;
   2. Affidavit of Jane Phillips, filed November 3, 2016;
   3. Form C-23 Notice ofDenial of Claim for Compensation, filed June 21, 2016;
   4. Form C-41 Wage Statement and attached wage information, filed June 21, 2016;
   5. Collective Exhibit of four photographs of Ms. Holyfield, filed October 21, 2016;
   6. Collective Exhibit of Medical Records from Methodist Health care;
   7. Collective Exhibit of Medical Records from St. Francis Hospital - Bartlett
      (marked for identification only);
   8. Causation letter from Dr. James Turner, filed November 1, 2016;
   9. Mayo Clinic information regarding Scabies; and
   10.Monthly Claims Statement from Blue Cross Blue Shield of Tennessee.




                                          7
                            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 30th day
ofNovember, 2016.


Name                        Certified Via       Via     Service sent to:
                            Mail      Fax       Email
Eve Holyfield,                                    X     thefirstladyeh@gmail.com
Employee
Paul Nicks,                                       X     pnicks@travelers.com
Employer's Attorney



                                        P nny S   m, Clerk of Court
                                        Court o   orkers' Compensation Claims
                                        WC.Cou rtCierk@tn.gov




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