                IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                               AT MURFREESBORO

ANTHONY JONES                                     )   Docket No.: 2015-05-0427
         Employee,                                )
v.                                                )   State File Number: 77314-2015
TROJAN LABOR OF NASHVILLE,                        )
LLC                                               )
         Employer.                                )   Judge Dale Tipps
                                                  )

          EXPEDITED HEARING ORDER DENYING REQUESTED BENEFITS


        This matter came before the undersigned workers’ compensation judge on January
6, 2016, on the Request for Expedited Hearing filed by the employee, Anthony Jones,
pursuant to Tennessee Code Annotated section 50-6-239 (2015). The present focus of
this case is the compensability of Mr. Jones’ back and right-shoulder injury and his
entitlement to temporary disability benefits. The central legal issue is whether Mr. Jones
is likely to establish he suffered an injury arising primarily out of and in the course and
scope of his employment at a hearing on the merits. For the reasons set forth below, the
Court finds Mr. Jones is not entitled to the requested medical and temporary disability
benefits at this time.

                                          History of Claim

       Mr. Jones is a forty-three-year-old resident of Maury County, Tennessee. He
began working for Trojan in 2012. Trojan is a temporary agency that supplies
construction workers. On September 16, 2015, Mr. Jones was working an assignment as
a carpenter in a new Hardees restaurant in Murfreesboro, Tennessee. He claims he
injured his back and right shoulder on that date while lifting an oven.1

       On September 24, 2015, Mr. Jones filled out an injury report form. He stated his
injury occurred on September 16, 2015, while “unloading boxes off truck at Hardees.”
He described, “I was unloading a truck with two others and one of the guys did not have
support and the weight of the box was too heavy and I felt instant pain go through my

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    Sometimes referred to as “burners.”

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back.”

       Mr. Jones gave a recorded statement to Trojan’s workers’ compensation carrier on
September 28, 2015, and a transcription of that statement was admitted into evidence
without objection. In his statement, Mr. Jones said his injury occurred on September 16,
2015, while unloading a tractor-trailer at the Hardees restaurant. He and another worker
had a stove burner on their shoulders when the other employee dropped his end. Mr.
Jones did not know the name of the other employee, but he knew it was not Doug, the
only other Trojan employee on site that day. Mr. Jones said he “went to the ground”
when the other employee dropped the burner. He felt something in his back and had to
stretch. He did not know his shoulder was injured until the next day. (Ex. 11.)

       In his affidavit, Mr. Jones said he and a co-worker, Doug Stanley, were lifting the
oven to stack it on another oven when Mr. Stanley dropped his end. This jerked Mr.
Jones’ shoulder and caused him to support more weight. He immediately felt pain in his
right shoulder. Mr. Jones told the construction supervisor he injured his back
“immediately after this accident.” (Ex. 1.)

       During the hearing, Mr. Jones testified he did not drop his end of the oven or fall
to the ground. He also testified he immediately knew his shoulder was hurt after the
incident, but did not know he had injured his back until he woke up the next morning. He
did not report the injury to his immediate supervisor that day, but he did tell Dave, the
supervisor in charge of the construction company to whom Mr. Jones was assigned. Mr.
Jones testified the co-worker involved in the incident was Doug Stanley. He explained
that he denied this during his recorded statement because he did not want to get Mr.
Stanley in trouble with Trojan.

       Mr. Jones testified he hurt so badly he could not get out of bed the morning after
the injury. He did not go to work. Instead, Mr. Jones stayed home and took Advil. His
symptoms grew worse, so he went to Urgent Care on September 18, 2015. When
personnel at Urgent Care realized he was claiming a work injury, they contacted Trojan
and refused to treat him because Urgent Care was not an authorized provider. Mr. Jones
went to the emergency room and received treatment on September 22, 2015.

      Mr. Jones went to Trojan and filled out claim paperwork on September 24, 2015.
Trojan gave him a panel of medical providers, and he selected Care Spot. Trojan
subsequently terminated him for a positive drug test. Mr. Jones has not worked for
Trojan since September 16, 2015.

       Mr. Jones saw Stephanie Vaughn, ARNP at Care Spot on September 24, 2015. He
reported injuring himself performing a two-man lift of a 300-pound industrial oven when



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his partner lost his grip on his side of the oven.2 After examining Mr. Jones and
reviewing his x-rays, Ms. Vaughn assessed bicipital tendonitis of the right shoulder and
lumbar strain. She prescribed Robaxin, assigned work restrictions, and referred Mr.
Jones to an orthopedist. (Ex. 2.)

       At the request of the parties, Douglas Stanley executed two separate affidavits
regarding Mr. Jones’ claim. In the first, dated November 24, 2015, he described
unloading a truck at the Hardees jobsite that contained appliances and kitchen equipment
on September 14, 2015. Over the next two days, he and other workers moved the
appliances into the building with a forklift. He recalled helping to lift and stack ovens on
September 15 and 16. The ovens were heavy “and generally there were up to six people
helping lift these items.” Mr. Jones was one of the people he worked with on those days.
(Ex. 4.)

        In Mr. Stanley’s second affidavit of December 3, 2015, he added that he did not
recall any specific lifting incident on September 15 or 16 where he and Mr. Jones were
the only two employees lifting ovens together. He did not recall dropping his end of an
oven or witnessing any injury to Mr. Jones. Mr. Jones did not tell him about any injury
while on the job site or as they rode home together. (Ex. 14.)

       Mr. Stanley testified at the hearing that he did not recall any lifting incident or Mr.
Jones injuring himself on September 16, 2015. He said that heavy lifting would have
involved more than two workers at a time, and the ovens would probably be heavy
enough to require additional help. On cross-examination, he initially said he did not
specifically recall lifting the oven. He later said he remembered Mr. Jones and two other
workers helping to lift it although he did not know the date.

       Mr. Jones filed a Petition for Benefit Determination seeking temporary disability
and medical benefits. The parties did not resolve the disputed issues through mediation,
and the Mediating Specialist filed a Dispute Certification Notice (DCN). Mr. Jones filed
a Request for Expedited Hearing and asked the Court to enter an order based on its
review of the case file. Trojan requested an evidentiary hearing, and this Court heard the
matter on January 6, 2016.

       At the Expedited Hearing, Mr. Jones informed the Court that he was not seeking a
determination of temporary disability benefits at this time. The parties agreed the
remaining issues identified in the DCN for determination are compensability, notice,
causation, misrepresentation, unauthorized medical treatment, and Mr. Jones’ entitlement
to medical care.

           At the Expedited Hearing, Mr. Jones asserted he is entitled to medical benefits as a

2
    The intake note states the injury occurred while “lifting/unloading truck.”

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result of work injuries to his shoulder and back on September 16, 2015. He contended
that notice was proper, as Trojan had actual notice of the injury on September 18, 2015,
and written notice on September 24, 2015. Mr. Jones also argued he established that the
accident occurred. He acknowledged the descriptions of the injury vary somewhat, but
contended a reasonable reading of the statements shows he told essentially the same
story. Mr. Jones claimed “unloading the truck” is a general term encompassing
unloading the truck, unpacking boxes, and installing equipment. He explained he was
imprecise in his description of the incident because he did not realize its importance or
the level of scrutiny it would receive.

       Mr. Jones contended the Care Spot records established his injuries are work-
related because the authorized physician’s causation opinion is presumed to be correct.
He also argued that any reasonable doubt as to the cause of an injury is to be resolved in
favor of the employee.

       Trojan countered that Care Spot only diagnosed Mr. Jones’ condition, but did not
provide any medical opinion as to the cause of the condition. More importantly, not only
is there no proof of causation, Mr. Jones provided no verification or corroborating
testimony that the alleged incident occurred. Mr. Stanley said the incident did not
happen, and Mr. Jones’ affidavits, medical records, and recorded statement vary greatly.

                                Findings of Fact and Conclusions of Law

        The Workers’ Compensation Law shall not be remedially or liberally construed in
favor of either party but shall be construed fairly, impartially and in accordance with
basic principles of statutory construction favoring neither the employee nor
employer. Tenn. Code Ann. § 50-6-116 (2015).3 In general, an employee bears the
burden of proof on all prima facie elements of his or her workers’ compensation
claim. Tenn. Code Ann. § 50-6-239(c)(6) (2015); see also Buchanan v. Carlex Glass
Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *5 (Tenn.
Workers’ Comp. App. Bd. Sept. 29, 2015). At an expedited hearing, an employee need
not prove every element of his or her claim by a preponderance of the evidence, but must
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 consistent with Tennessee Code
Annotated section 50-6-239(d)(1) (2015). McCord v. Advantage Human Resourcing, No.
2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Tenn. Workers’ Comp.
App. Bd. Mar. 27, 2015). This lesser evidentiary standard “does not relieve an employee
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, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6.

3
    Contrary to Mr. Jones’ reliance upon pre-reform case law.

                                                           4
       The first issue to be determined is whether Mr. Jones actually suffered an accident
at work. In reviewing the evidence submitted, the Court notes the following undisputed
or unrebutted facts:

         1. Mr. Jones was working for Trojan on September 16, 2015.
         2. His duties on that date included helping to unload, unpack, and install
            restaurant fixtures and equipment at the Hardees jobsite.
         3. Mr. Jones finished his shift on September 16, 2015, and went home without
            reporting an injury to Trojan.
         4. He reported an injury to Trojan on September 18, 2015, when he went to
            Urgent Care and told the providers he had suffered a work injury.

The parties vigorously dispute almost every other fact, especially the occurrence of a
work-related event.

       Contrary to Trojan’s argument, Mr. Jones is not required to provide any
verification or corroborating testimony that the alleged incident occurred in order to
prove a compensable injury. However, the lack of independent verification means
resolution of the factual disputes is contingent on a credibility determination.

       The Court is cognizant that Mr. Jones might be an imperfect historian and medical
records and descriptions of injury are susceptible to errors and variation. Taken alone,
the various mechanisms of injury described by Mr. Jones might not be fatal to his claim.
Similarly, Mr. Jones’ failure to mention the injury to Trojan for two days before seeking
medical attention might not be unusual.4 However, there are other discrepancies not so
easily dismissed.

        Mr. Jones stated in his affidavit that he reported the injury to Tim Tella. He later
testified in the hearing he did not report to it Mr. Tella but to someone named Dave. In
his recorded statement, Mr. Jones said he eased the oven to the ground when Mr. Stanley
dropped his end of the oven. In the hearing, he testified he never completely set his end
of the oven on the ground. Whether he felt pain in his shoulder or low back at the time of
the incident also varies in his medical records, affidavit, recorded statement, incident
report, and testimony.

      Most troubling is Mr. Jones’ assertion in his recorded statement that Mr. Stanley
was not involved in the incident. Mr. Jones acknowledged this was not true, but offered
the excuse that he did not want to get Mr. Stanley in trouble. The Court notes that
another reason not to identify Mr. Stanley would be the possibility that he might deny the

4
  It should be noted the Court is not finding Mr. Jones’ claim to be barred for insufficient notice. It appears notice of
the claim was legally adequate, pursuant to Tennessee Code Annotated section 50-6-201(a)(1) (2015).

                                                           5
incident. Mr. Jones’ intentional deception to someone investigating his claim calls his
claim into question and magnifies the effect of the myriad inconsistencies in all his other
statements. After carefully reviewing the testimony and exhibits, the Court cannot credit
Mr. Jones’ claim of a specific lifting injury on September 18, 2015. Accordingly, Mr.
Jones has not shown he is likely to prevail at a hearing on the merits that his injuries
arose primarily out of or in the course and scope of his employment as required by
Tennessee Code Annotated section 50-6-102(14) (2015).

       Therefore, as a matter of law, Mr. Jones has not come forward with sufficient
evidence from which this Court can conclude he is likely to prevail at a hearing on the
merits. Mr. Jones’ request for medical and temporary disability benefits is denied at this
time.

IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Jones’ claim against Trojan and its workers’ compensation carrier for the
      requested medical and temporary disability benefits is denied.

   2. This matter is set for an Initial (Scheduling) Hearing on February 24, 2016, at 9:00
      a.m., Central Time.

      ENTERED this the 21st day of January, 2016.


                                  _____________________________________
                                  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:

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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
   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

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statement of the issue(s) presented for review; and (4) an argument, citing
appropriate statutes, case law, or other authority.




                                 8
                                               APPENDIX

Exhibits:
   1. Affidavit of Anthony Jones
   2. Records from Care Spot
   3. Records from Maury Regional Medical Center (Identification Only)
   4. November 24, 2015 Affidavit of Douglas Stanley
   5. C-20 First Report of Injury
   6. Written Statement of Timothy Tella (Identification Only)
   7. Specimen Result Certificate
   8. C-41 Wage Statement
   9. C-42 Panel of Physicians
   10. C-23 Notice of Denial
   11. Recorded Statement of Anthony Jones
   12. Affidavit of Heather Jones
   13. Affidavit of Kellie Von Schipmann
   14. December 3, 2015 affidavit of Douglas Stanley
   15. Witness Report
   16. September 28, 2015 letter from Anita Williams
   17. Employee’s Report of Injury
   18. Incident Investigation Report

Technical record:5
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing




5
   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.



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                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the Expedited Hearing Order
Denying Requested Benefits was sent to the following recipients by the following
methods of service on this the 21st day of January, 2016.


Name                    Certified   Via         Via    Service sent to:
                         Mail       Fax        Email
Tracy Moore                                     X      tracy@moorepeden.com

Laurenn Disspayne                               X      ldisspayne@manierherod.com




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




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