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

JANA MCQUIDDY,                                            )      Docket No. 2015-06-0593
        Employee,                                         )
                                                          )
v.                                                        )      State File No. 21252-2015
                                                          )
ST. THOMAS HOSPITAL,                                      )      Judge Joshua Davis Baker
         Employer.                                        )


                                 COMPENSATION HEARING ORDER


       This matter came before the Court on June 8, 2016, for a compensation hearing
pursuant to Tennessee Code Annotated section 50-6-239 (2015). The central legal issue is
the degree of permanent medical impairment.1 For the reasons set forth below, this Court
finds the employee, Janice McQuiddy, failed to prove by a preponderance of the evidence
that she suffered an injury arising primarily out of and in the course and scope of her
employment with St. Thomas Hospital.

                                                History of Claim

       Ms. McQuiddy is a fifty-two-year-old resident of Davidson County, Tennessee who
worked as a phlebotomist for St. Thomas. In her Petition for Benefit Determination (PBD),
Ms. McQuiddy alleged that on March 11, 2015, she slipped in some iced tea and fell injuring
her hip, left shoulder and back. St. Thomas accepted the claim and provided Ms. McQuiddy
medical care.

      Ms. McQuiddy treated for a period of time and attempted to return to work for St.
Thomas upon release by the authorized treating physician. Eventually, the relationship
between St. Thomas and Ms. McQuiddy soured, and St. Thomas terminated her.


1
  A complete listing of the technical record, stipulations, and exhibits admitted at the Compensation Hearing is attached
to this Order as an appendix.
       Ms. McQuiddy filed a PBD seeking temporary and permanent disability and medical
benefits. The parties did not resolve the disputed issues through mediation, and the
mediating specialist filed a Dispute Certification Notice (DCN). The parties then
participated in this compensation hearing.

       At the compensation hearing, Ms. McQuiddy was the only witness and testified
generally about her accident and the injuries she suffered. Ms. McQuiddy, however,
introduced no competent expert medical proof of her injuries. At the close of Ms.
McQuiddy’s proof, St. Thomas moved to dismiss her claim because she failed to carry her
burden of proving she suffered a compensable injury. The Court granted St. Thomas’
motion at the hearing and dismissed this claim.

                        Findings of Fact and Conclusions of Law

        In this workers’ compensation claim, Ms. McQuiddy has the burden of proof on all
essential elements of the claim. 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).
 “[A]t a compensation hearing where the injured employee has arrived at a trial on the merits,
the employee must establish by a preponderance of the evidence that he or she is, in fact,
entitled to the requested benefits.” Willis v. All Staff, No. 2014-05-0005, 2015 TN Wrk
Comp. App. Bd. LEXIS 42, at *18 (Tenn. Workers’ Comp. App. Bd. Nov. 9, 2015); see also
Tenn. Code Ann. § 50-6-239(c)(6) (2015) (“[T]he employee shall bear the burden of proving
each and every element of the claim by a preponderance of the evidence.”).

       In order to succeed in her cause, Ms. McQuiddy must prove she suffered an injury as
defined by the Workers’ Compensation Law. In this context, 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).

        Additionally, and pertinent here, a workers’ compensation injury requires expert
medical evidence to support an award of benefits. Except in “the most obvious, simple and
routine cases,” an injured employee must establish by expert medical testimony that he or she
is injured and a causal relationship exists between the injury and the employee’s work
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.
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2008)).

       In general, the injured employee must fulfill this requirement through expert medical
testimony from a physician. The Tennessee Supreme Court discussed the manner in which
expert medical opinions must be presented in a workers’ compensation case in Carter v.
Quality Outdoor Prods., 303 S.W.3d. 265 (Tenn. 2010). In Carter, the Court discussed the
constraints of Tennessee Code Annotated section 50-6-235(c), which allows a party to
present the direct testimony of a physician through the physician’s written medical report
without having to take a deposition. Id. at 267. The Court also addressed admission of a
medical report with respect to the Tennessee Rules of Evidence when the physician is
unavailable as defined by Tennessee Rule of Evidence 804(a). The Court stated, “[a] written
medical report is hearsay and is admissible only if it satisfies an exception to the hearsay
rule.” Id. The Court went on to find that although the doctor in the case could not testify, his
written medical report did not satisfy any exception to the hearsay rule rendering the
testimony inadmissible. Id.

       Here, Ms. McQuiddy provided medical records concerning her condition but no
written medical report or deposition testimony.2 The Court accepted these records, which
contain statements concerning the cause of her condition. St. Thomas objected to the Court’s
consideration of these statements because they constituted hearsay and must be excluded
pursuant to Rules 801 and 802 of the Tennessee Rules of Evidence. The Court sustained the
objection.

       At the close of proof, St. Thomas moved to dismiss Ms. McQuiddy’s claim arguing
that she failed to carry her burden of proof. In Burchfield v. Renfree, 2013 Tenn. App.
LEXIS 685 (Tenn. Ct. App. Oct. 18, 2013), the Court of Appeals reiterated the principles
regarding directed verdicts—the same standard to be applied to motions to dismiss for lack of
proof:

        The rule for determining a motion for directed verdict requires the trial judge
        and the appellate courts to look to all of the evidence, take the strongest,
        legitimate view of the evidence in favor of the opponent of the motion and
        allow all reasonable inferences from it in his favor. The court must disregard
        all countervailing evidence and if there is then any dispute as to any material,
        determinative evidence or any doubt as to the conclusions to be drawn from
        the whole evidence, the motion must be denied. The court may grant the
        motion only if, after assessing the evidence according to the foregoing


2
 Ms. McQuiddy secured a C-32 form, Medical Report in Lieu of Deposition, prior to the hearing. Ms. McQuiddy’s
physical therapist completed the form. St. Thomas objected to introduction of the C-32 prior to the hearing. Ms.
McQuiddy, however, never moved to introduce the C-32 form during her testimony. Even if she had introduced the C-
32, the opinion contained within did not come from a physician and could not support her cause.

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       standards, it determines that reasonable minds could not differ as to the
       conclusions to be drawn from the evidence.

Id. at *86-87 (internal citations omitted).

       Without the statements in the medical records, a medical report completed by a
physician or deposition testimony, Ms. McQuiddy cannot prevail in her claim because there
is no medical proof of the cause of her injury. Because Ms. McQuiddy presented no medical
proof of causation, reasonable minds could not differ on the conclusion to be drawn from the
evidence. See Burchfield, 2013 Tenn. App. LEXIS 685 at *86-87. After careful
consideration of the evidence as a whole, this Court concludes that Ms. McQuiddy failed to
establish by a preponderance of the evidence that her injury arose primarily out of and in the
course or scope of her employment with St. Thomas.

       IT IS, THEREFORE, ORDERED as follows:

   1. Ms. McQuiddy’s claim against St. Thomas for workers’ compensation benefits is
      denied on the grounds of compensability.

   2. The filing fee for this this cause is taxed to the St. Thomas, pursuant to Rule 0800-02-
      21-.07 (2015) of the Tennessee Compilation Rules and Regulations.


       ENTERED ON THIS THE 28TH DAY OF JUNE, 2016.



                                              _____________________________________
                                              Joshua Davis Baker, Judge
                                              Court of Workers’ Compensation Claims
Right to Appeal:

      Tennessee Law allows any party who disagrees with this Compensation Hearing Order
to appeal the decision to the Workers’ Compensation Appeals Board or the Tennessee
Supreme Court. To appeal your case to the Workers’ Compensation Appeals Board, you
must:

   1. Complete the enclosed form entitled: “Compensation Hearing Notice of Appeal.”

   2. File the completed form with the Court Clerk within thirty calendar days of the date
      the Workers’ Compensation Judge entered the Compensation Hearing Order.


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3. Serve a copy of the Compensation 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 party filing the notice of appeal, 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 fifteen calendar days of the filing of the
   Expedited Hearing Notice of Appeal. Alternatively, the party filing the appeal may
   file a joint statement of the evidence within fifteen calendar days of the filing of the
   Compensation 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. See Tenn. Comp. R.
   & Regs. 0800-02-22-.03 (2015).

6. After the Workers’ Compensation Judge approves the record and the Court Clerk
   transmits it to the Workers’ Compensation Appeals Board, the appeal will be
   docketed and assigned to an Appeals Board Judge for review. At that time, a
   docketing notice shall be sent to the parties. Thereafter, the parties have fifteen
   calendar days to submit briefs to the Appeals Board for consideration. See Tenn.
   Comp. R. & Regs. 0800-02-22-.02(3) (2015).

To appeal your case directly to the Tennessee Supreme Court, the Compensation
Order must be final and you must comply with the Tennessee Rules of Appellate
Procedure. If neither party timely files an appeal with the Appeals Board, this
Order will become final by operation of law thirty (30) calendar days after entry,
pursuant to Tennessee Code Annotated section 50-6-239(c)(7).




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                                      APPENDIX

Technical record:

       Petition for Benefit Determination
       Dispute Certification Notice
       St. Thomas’ Motion to Dismiss
       Notice of Appearance
       Notice of Hearing St. Thomas Motion to Dismiss
       Order Denying St. Thomas’ Motion to Dismiss
       Show Cause Hearing Notice Order
       Show Cause Hearing Order
       Rule 16 Order
       Order Setting Initial Hearing
       Ms. McQuiddy’s Motion to Compel
       Order Denying Ms. McQuiddy’s Motion to Compel
       Notice Objecting to Admissibility of Medical Records
       St. Thomas’ Witness and Exhibit List
       Notice of Objection to Use of Form C-32
       Ms. McQuiddy’s Pre-Compensation Hearing Statement
       Subpoena

       The Court did not consider attachments to Technical Record filings unless admitted
into evidence during the Compensation Hearing. The Court considered factual statements in
these filings or any attachments to them as allegations unless established by the evidence.

Exhibits:

   1.   Medical Records
   2.   Ms. McQuiddy’s Application for FMLA Leave
   3.   St. Thomas Correspondence – Termination of Employment
   4.   Photographs
   5.   Medical Appointment Letter




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                               CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the foregoing was sent to the following
 recipients by the following methods of service on this the _____
                                                                28th day of June, 2016.

Name                     Certified     Via       Via     Email/Mailing Address
                          Mail         Fax      Email
Jana McQuiddy               X                     X      2913 Scott Ave
                                                         Nashville, TN 37216
                                                         Jabmcquiddy@gmail.com

Lee Ann Murray                                     X     leeamurray@feeneymurray.com



Mary Head                                          X     mary@feeneymurray.com




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




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