                                                                                                  FILED
                                                                                                Jul 30, 2019
                                                                                               09:18 AM(ET)
                                                                                            TENNESSEE COURT OF
                                                                                           WORKERS' COMPENSATION
                                                                                                  CLAIMS




             TENNESSEE BUREAU OF WORKERS' COMPENSATION
            IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                             AT KNOXVILLE

PHILLIP MULLIS SR.,                                 )   Docket No. 2018-03-1517
         Employee,                                  )
v.                                                  )
BLOUNT COUNTY COMMUNITY                             )
ACTION AGENCY,                                      )   State File No. 90221-2018
         Employer,                                  )
And                                                 )
PUBLIC ENTITY PARTNERS,                             )
         Carrier.                                   )   Judge Lisa A. Lowe


                EXPEDITED HEARING ORDER DENYING BENEFITS


        This case came before the Court on Phillip Mullis Sr.'s Request for Expedited
Hearing. The issue is whether Mr. Mullis established that he is likely to prevail at a
hearing on the merits in proving entitlement to benefits for an alleged work-related
hernia. 1 For the reasons below, the Court finds that Mr. Mullis failed to do so and denies
the requested benefits.

                                          History of Claim

       Mr. Mullis worked for Blount County Community Action Agency (BCCAA). His
duties included delivering meals to the elderly and picking up food from a food bank.

        Mr. Mullis testified that on either September 3, 4 or 5, 2018, he felt a sharp pain
and heard a "pop" on his left side when he bent over to pick up a box of food. He stated
that Lynnda Manville, the Supervisor and Senior Nutrition Director, asked if he was all
right, and he replied no. Mr. Mullis also alleged that Ms. Manville witnessed him yell out

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 Both the Petition for Benefit for Determination (PBD) and the Dispute Certification Notice (DCN) listed
a hernia injury. At the beginning of the hearing, Mr. Mullis confirmed that the issue before the Court was
whether he sustained a work-related hernia. However, he later testified that he actually sustained a
pinched left femoral artery. Since Mr. Mullis did not include the pinched left femoral artery claim on the
PBD or DCN, the Court is unable to address that issue.

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in pain and co-worker Renee Jennings helped him to his car because of the injury. He
testified that he did not return to work until the following Monday.

      Mr. Mullis claimed that he had a swollen groin and a hemorrhaged/purple left leg
from the work injury. After continuing to work for a month, he asked for time off to see
the doctor. Instead of granting his request, BCCAA fired him. He said he "self-
diagnosed" himself with a hernia, but a Veteran's Administration (VA) doctor informed
him he might have a pinched femoral artery.

        BCCAA claimed Mr. Mullis furnished no medical evidence establishing that he
sustained a work-related hernia and failed to provide timely notice of his alleged injury.
Specifically, BCCAA alleged that it first learned of Mr. Mullis's alleged hernia through a
letter from the Bureau of Workers' Compensation on November 27, 2018, requesting it
file a Tennessee Employer's First Report of Work Injury. BCCAA also claimed its time
records show that Mr. Mullis worked his full six-hour shifts the two days following the
alleged date of injury, and he continued working his regular shifts through September 26
with September 20 as the only exception.

       In response to the Bureau's inquiry, BCCAA's carrier obtained Mr. Mullis's
recorded statement. In that statement, Mr. Mullis admitted he did not know the date he
allegedly became injured but said that it was sometime in September. BCCA provided
Ms. Manville's affidavit, in which she stated that she did not hear Mr. Mullis call out or
make any type of exclamation of pain on September 5. She further denied that he told her
that he suffered a work injury. Additionally, Ms. Manville stated that she did not tell Mr.
Mullis to go home and the time records support her version of the facts over Mr. Mullis's.

       Ms. Manville noted that on September 27, Mr. Mullins called in sick, and on
September 28 he asked to work fewer days due to problems with his mother. At that time,
Mr. Mullis relayed to Ms. Manville that he had a tentative date of October 12 for right
hernia surgery. Ms. Manville indicated she was unable to reach Mr. Mullis at the
worksite later on September 28, and he never returned. As a result, BCCAA determined
that Mr. Mullis quit.

        BCCAA provided an affidavit from co-worker Violet Ross, which stated Mr.
Mullis told her on multiple occasions that he had a hernia for several years that needed
repair, but he was unable to schedule the surgery. Additionally, Mr. Mullis's VA records
showed he had a right inguinal hernia as far back as April 20 11.

       Notwithstanding the inconsistencies between Mr. Mullis's and Ms. Manville's
affidavit testimonies, BCCAA also questioned the alleged incident on the basis that no
food products or other goods were unloaded or unpacked on September 5. BCCAA
additionally alleged that no deliveries were made on that day or the day before.


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                        Findings of Fact and Conclusions of Law

       At an expedited hearing, Mr. Mullis must show he would likely prevail at a
hearing on the merits. McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

       For his hernia claim, Mr. Mullis must definitely prove to the satisfaction of the
Court that:

       (1)  There was an injury resulting in hernia or rupture;
       (2)  The hernia or rupture appeared suddenly;
       (3)  It was accompanied by pain;
       (4)  The hernia or rupture immediately followed the accident; and
       (5)  The hernia or rupture did not exist prior to the accident for which
       compensation is claimed.

Tenn. Code Ann. § 50-6-212(a) (2018). The hernia must result from an "injury by
accident arising primarily out of and in the course and scope" of Mr. Mullis's
employment. !d. This statutory criterion is "intended to insure that a claimant's hernia ...
'result[ ed] from the accident for which compensation is claimed, ' and not to a past
condition which is unrelated to the new injury." Rhodes v. Careall, Inc., No. W2010-
02192-WC-R3-WC, 2011 Tenn. LEXIS 1157, at *11 (Tenn. Workers' Comp. Panel Dec.
20, 2011).

        The Court finds Mr. Mullis failed to definitively prove the hernia criteria. First, he
failed to provide any medical proof that he sustained a work injury that resulted in a
hernia or rupture. Second, Mr. Mullis discussed the fact that his left leg, from groin to
toe, turned purple, but he did not testifY about an immediate bulge in his groin. Third, Mr.
Mullis described pain following an incident at work, but he admitted that he diagnosed
himself with a hernia and later believed his pain might have arisen instead from a
ruptured femoral artery. Fourth, Mr. Mullis provided no testimony or medical proof that a
hernia immediately followed a work injury. Finally, Mr. Mullis's VA records show he
had a right-sided hernia back in 2011. Admittedly Mr. Mullis testified his pain is now in
the left side of his groin and leg, but he provided no medical proof that he actually
sustained a left-sided hernia.

       For these reasons, the Court holds that Mr. Mullis failed to show a likelihood of
prevailing at a trial.

       IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Mullis' claim for his alleged work-related hernia is denied at this time.


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   2. This case is set for a Status Hearing/Scheduling Hearing on November 18,
      2019, at 9:30 a.m. Eastern Time. The parties must call 865-594-0109 to
      participate in the Scheduling Hearing. Failure to appear by telephone may result
      in a determination of the issues without the party's participation.

        ENTERED July 30, 2019.




                                       LISA A. LOWE, JUDGE
                                       Court of Workers' Compensation Claims


                                    APPENDIX

Exhibits:

   1.  Affidavit of Affidavit of Phillip Mullis
   2.  Affidavit of David Buchanan
   3.  Affidavit ofLynnda Manville
   4.  Affidavit of Charlotte Douglas
   5.  Affidavit of Violet Ross
   6.  Affidavit of Renee Jennings
   7.  Affidavit of Dan Sibley
   8.  Recorded Statement of Phillip Mullis
   9.  Table of Contents of Medical Record Excerpts of the Department of Veterans
       Affairs
   10. Medical Expense from Blount Memorial Physicians Group
   11. Medical Records of the Department of Veterans Affairs (for identification
       purposes only)

Technical Record:

   1.   Petition for Benefit Determination
   2.   Dispute Certification Notice
   3.   Request for Expedited Hearing
   4.   Employee's Witness List
   5.   Notice of Expedited Hearing
   6.   Employer's Response to the Employee's Request for Expedited Hearing
   7.   Employer's Memorandum
   8.   Employee's Second Request for Expedited Hearing- Amended Witness List


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                           CERTIFICATE OF SERVICE

     I certify that a copy of this Order was sent as indicated on July 30, 2019.

        Name             Certified   Fax       Email   Service sent to:
                          Mail
J>hillip Mullis,            X                   X      7619 Old Highway 73
Self-Represented                                       Townsend, TN 37882
Employee                                               0 ldbutnotforgottenmike@gmail.com

John T. Batson,                                 X      jbatson@watsonroach.com
Employer's Attorney




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