             IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                              AT NASHVILLE

    VALLEY MATHIS,                                         )
             Employee,                                     ) Docket No. 2015-06-0547
                                                           )
    v.                                                     ) State File No. 56054-2015
                                                           )
    THE KROGER CO.,                                        ) Judge Joshua Davis Baker
            Employer.                                      )

         EXPEDITED HEARING ORDER DENYING REQUESTED RELIEF

       This matter came before the Court on a Request for Expedited Hearing filed by the
employee, Valley Mathis, pursuant to Tennessee Code Annotated section 50-6-239
(2015). The present focus of this case is the compensability of Ms. Mathis’ claim, as
well as her entitlement to medical treatment for her injury, reimbursement for past
medical treatment and temporary disability benefits. For the reasons set forth below, the
Court finds Ms. Mathis is unlikely to succeed at a hearing on the merits in proving
entitlement to the requested relief.1

                                               History of Claim

      Ms. Mathis is a fifty-six-year-old resident of Davidson County, Tennessee, who
worked as a stock clerk for the employer, The Kroger Co. See Ex. 4. The main issue of
contention at this time concerns whether Ms. Mathis had an accident while working for
Kroger.

       At the expedited hearing, Ms. Mathis testified she fell while pulling a pallet of dog
food at approximately 12:30 or 12:45 a.m. on May 12 or 14, 2015. She also stated the
accident occurred on a Friday night; however, neither May 12 nor May 14 fell on a
Friday in 2015. Ms. Mathis testified she told her supervisor, Grady Wilkes, about her
injury immediately after she fell, and he told her to come with him to an upstairs office to
complete an accident report. According to Ms. Mathis, Mr. Wilkes helped fill out the
report and placed the completed report in her file. She then returned to work.

1
 A complete listing of exhibits and the technical record admitted at the Expedited Hearing is attached to this Order
as an appendix.
      At the hearing, Mr. Wilkes denied Ms. Mathis told him she had an accident at
work involving a pallet jack or that she was hurt at work from another fall. He testified
Ms. Mathis told him about a workplace injury to her left wrist and lower back on
February 28, 2015, after tripping over a sign.

       While, at the expedited hearing, Ms. Mathis testified her accident occurred on
May 12 or May 14, she also admitted she told the claims adjustor the date of injury was
June 11, 2015. Additionally, she listed June 11, 2015, as the date of the accident in her
Petition for Benefit Determination (PBD) and wrote the date of injury as June 11, 2015,
on a letter she sent to Kroger. (Ex. 7; T.R. 1.) Finally, Ms. Mathis’ Affidavit provided
June 14, 2015, as the date of injury. (Ex. 1.) The date on the Affidavit, however, is
scratched out and appears to be altered. Id.

        A letter from Kroger to Ms. Mathis dated June 4, 2015, provides that Kroger
discharged her effective May 18, 2015. (Ex. 8.) At the hearing, Ms. Mathis conceded
Kroger suspended her on May 18, 2015, for dishonesty for taking a $20 bill from a
change dispenser. She did not return to Kroger after her suspension and discharge and
admitted she wrote a letter resigning from Kroger on June 6, 2015.

       Ms. Mathis testified that she went to Southern Hills for treatment immediately
after her shift ended on the date of injury. However, she did not introduce medical
records documenting this visit. She subsequently saw Dr. David West, D.O., on June 26,
2015, who diagnosed joint pain in her forearm and shoulder. (Ex. 3 at 12.) Notes from
that visit indicate she presented with wrist pain, worse on the left than the right, and
includes a notation that “the symptom started 3-4 years ago.” Id. Ms. Mathis denied she
told Dr. West the symptoms began three to four years ago and instead claimed she told
him she had experienced pain for “about a week.” At a follow-up visit to Dr. West on
July 14, 2015, he recommended shoulder surgery.2 Id. at 16. She provided the
previously-referenced written notice of injury to Kroger two days later. (Ex. 7.)

       Prior to Kroger denying her claim (Ex. 5), Ms. Mathis filed a PBD. (T.R. 1.) The
parties did not resolve the disputed issues through mediation, and the Mediating
Specialist filed a Dispute Certification Notice. (T.R. 2.) Ms. Mathis filed a Request for
Expedited Hearing (T.R. 3), and this Court heard the matter on March 30, 2016.3

2
 At the expedited hearing Ms. Mathis attempted to introduce films of an MRI ordered by Dr. West, which allegedly
document a need for shoulder surgery. Kroger objected to its admissibility, which objection this Court sustained
because the proposed exhibit was not timely filed. See Tenn. Comp. R. & Regs. 0800-02-21-.14(1)(a) (2015).
3
  During the expedited hearing at the close of Ms. Mathis’ case-in-chief, Kroger moved to dismiss her claim for
failure to state a claim upon which relief can be granted under McCall v. Nat’l Health Corp., 100 S.W.3d 209, 214
(Tenn. 2003). The Court denied the motion, finding that Ms. Mathis’ testimony set forth a prima facie case that she
suffered a workplace injury.
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                       Findings of Fact and Conclusions of Law

        The Court applies the following legal principles to decide this matter. In general,
Ms. Mathis bears the burden of proving all elements of her claim by a preponderance of
the evidence in order to recover workers’ compensation benefits. Tenn. Code Ann § 50-
6-239(c)(6) (2015); see also Buchanan v. Carlex Glass Co., No. 2015-01-0012, 2015 TN
Wrk. Comp. Appl. Bd. LEXIS 39, at *5 (Tenn. Workers’ Comp. App. Bd. Sept. 29,
2015). However, she is not required to prove every element of her claim by a
preponderance of the evidence in order to obtain relief at an expedited hearing. See
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). Instead,
she must come forward with sufficient evidence from which this Court can determine she
is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1)
(2015). For the reasons provided below, the Court finds Ms. Mathis failed to carry her
burden of proving a likelihood of success at a trial on the merits on the issue of whether
she sustained an injury arising primarily in the course and scope of employment.

       In order for Ms. Mathis to be eligible for benefits, she must have suffered an
injury, or injuries, as defined by the Workers’ Compensation Law. Under the Workers’
Compensation Law, an “injury” means “an injury by accident . . . arising primarily out of
and in the course and scope of employment, that causes death, disablement, or the need
for medical treatment of the employee[.]” Tenn. Code Ann. § 50-6-102(14) (2015). To
constitute a viable claim for workers’ compensation benefits the injury must be “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 Court finds Ms. Mathis failed to carry her burden of proving she suffered an
injury in the course and scope of her employment with Kroger. Although Ms. Mathis
testified her injury occurred on May 12 or May 14 at the Expedited Hearing, she provided
June dates of injury in all conversations and correspondence filed before the hearing. In
her phone interview with the adjuster, Ms. Mathis gave June 11, 2015, as the date of
injury. In her PBD, Ms. Mathis listed June 11, 2015, as her date of injury. (T.R. 1.) The
affidavit she filed in support of her Request for Expedited Hearing listed June 14, 2015,
as the date of injury. (Ex. 1.) Finally, the letter Ms. Mathis sent to Kroger on July 16,
2015, listed her date of injury as June 11, 2015, although it appears the document might
have been altered. (Ex. 2.)
       In addition to the documentation where Ms. Mathis consistently maintained she
suffered an injury in June 2015, the Court also heard Mr. Wilkes’ testimony. The Court

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finds Mr. Wilkes credibly testified Ms. Mathis did not report an injury involving a pallet
jack.
       Based on a review of all the evidence, the Court finds Ms. Mathis failed to show
she suffered an injury on May 12 or 14, 2015. Instead, the evidence as it stands now
shows the injury occurred on June 11, 2015. Because Kroger terminated Ms. Mathis
employment on May 18, 2015, her June 11, 2015 injury could not have occurred during
her employment for Kroger. Accordingly, the Court finds Ms. Mathis is unlikely to
succeed at a hearing on the merits in proving she suffered injury in the course and scope
of her employment for Kroger.

       This finding does not preclude Mr. Mathis from marshalling additional evidence
prior to the compensation hearing to prove her injury occurred in May 2015. As the
evidence stands now, however, her claim must fail.

IT IS, THEREFORE, ORDERED as follows:

   1. Ms. Mathis’ claim for medical and temporary disability benefits and
      reimbursement of medical expenses is denied.

   2. This matter is set for an Initial (Scheduling) Hearing on May 23, 2016, at 8:30
      a.m. (CDT).

                     12th
ENTERED ON THIS THE ____DAY OF APRIL, 2016.


                                         ___________________________
                                         Judge Joshua Davis Baker
                                         Court of Workers’ Compensation Claims




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Initial Hearing:

An Initial (Scheduling) Hearing has been sent for May 23, 2016, at 8:30 a.m. Central
Time 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. 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:

   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
      $75.000. 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
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   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

Exhibits:

   1. Affidavit of Valley Mathis
   2. Affidavit of Grady Wilkes
   3. Medical Records of Valley Mathis:
          Southern Pain Institute, Neurography and Electromyography Report, June
            10, 2015
          Premier Orthopedics, exam by Dr. Viraslav, July 8, 2015, and MRI read by
            Dr. Resnick
          Dr. West office visits, June 26, 2015 and July 14, 2015
   4. FROI, July 17, 2015
   5. Form C-23, Notice of Denial, July 31, 2015
   6. Wage Statement, August 3, 2015
   7. Ms. Mathis’ written notice of accident/injury, July 16, 2015
   8. The Kroger Co. letter discharging Ms. Mathis, June 4, 2015

Technical Record:

   1.   Petition for Benefit Determination, July 27, 2015
   2.   Dispute Certification Notice, August 28, 2015
   3.   Request for Expedited Hearing, December 21, 2015
   4.   Employer’s Response to Employee’s Request for Expedited Hearing, December
        23, 2015




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                            CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of this Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 4th day of
April, 2016.

 Name                      Certified    Via        Via    Service sent to:
                            Mail        Fax       Email
 Valley Mathis, self-         X                     X     Valley815@gmail.com; 2531
 represented                                              Glenrose Ave., Apt. B6, Nashville
                                                          TN 37210
 Heather Douglas,                                  X      hdouglas@manierherod.com
 Employer’s attorney




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




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