                                                                                                  FILED
                                                                                                Feb 24, 2020
                                                                                                02:07 PM(ET)
                                                                                          TENNESSEE COURT OF
                                                                                         WORKERS' COMPENSATION
                                                                                                CLAIMS




                 TENNESSE BUREAU OF WORKERS' COMPENSATION
               IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                              AT CHATTANOOGA

Vickie Noblitt,                                       )   Docket No. 2019-01-0463
             Employee,                                )
v.                                                    )   State File No. 45410-2019
Green Acres Produce,                                  )
            Uninsured Employer.                       )   Judge Audrey A. Headrick


                                 EXPEDITED HEARING ORDER


       Ms. Noblitt requested that Green Acres provide her with medical and temporary
disability benefits .for an upper right-arm injury. Green Acres disputed that Ms. Noblitt
injured her arm at work and asserted it offered her work within her restrictions. For the
reasons below, the Court grants the requested medical benefits but denies temporary
disability benefits.

                                            History of Claim

      Ms. Noblitt, a baker at Green Acres, lifted a heavy container of bleach and injured
her upper right-arm on May 8, 2019. She stated the pain made her nauseous, so she
placed both hands on the sink. A co-worker saw Ms. Noblitt and told Sandra Bishop,
Green Acres's owner, that Ms. Noblitt hurt her arm. Ms. Bishop asked Ms. Noblitt if she
was okay, and Ms. Noblitt responded that she was fine and finished her shift. Ms. Noblitt
worked the next day primarily using her left hand.

       Two days after the injury, Ms. Noblitt told Ms. Bishop that she needed to see a
doptor due to the bruising and an egg-shaped lump that developed. Ms. Bishop told Ms.
Noblitt she would pay for her to go to the doctor. 1 Ms. Noblitt immediately went to an
urgent-care facility where the provider diagnosed a biceps tendon rupture, ordered an
ultrasound, recommended a sling, and referred her to an orthopedist.



1
    The testimony was unclear as to whether Ms. Bishop or Green Acres paid for the treatment.

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       After the urgent-care visit, Ms. Bishop agreed to pay for the ultrasound. 2
Although Ms. Bishop paid for the urgent-care visit and ultrasound, she refused to pay for
any additional treatment. After she declined to pay, Ms. Noblitt did not obtain treatment
on her own.

       Ms. Bishop testified she refused to pay for additional treatment because she
disputed whether Ms. Noblitt's injury occurred at Green Acres. She noted that Ms.
Noblitt finished her shift on May 8 and worked on May 9. Ms. Noblitt also noted that
Ms. Bishop was upset regarding Green Acres's lunch policy shortly before the May 8
injury. Further, Ms. Bishop stated Ms. Noblitt complained of being tired from planting
flowers in her yard before the May 8 injury.

       The parties also contested the availability of post-injury work at Green Acres, but
they agreed that Ms. Noblitt did not work at Green Acres after May 9.

       With the exception of the urgent-care visit and ultrasound, Green Acres did not
provide Ms. Noblitt with any medical or temporary disability benefits. Ms. Noblitt, a
Tennessee resident, notified the Bureau of Workers' Compensation of her May 8 injury
on June 25. 3 The Bureau's Compliance Unit investigated and prepared an Expedited
Request for Investigation Report, noting that Green Acres admitted it was uninsured at
the time of Ms. Noblitt's injury. Ms. Bishop later acknowledged she should have had
workers' compensation coverage, and she obtained coverage after Ms. Bishop's injury. 4

                              Findings of Fact and Conclusions of Law

       Ms. Noblitt must present sufficient evidence demonstrating she is likely to prevail
at a hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(l) (2019). The Court
holds she is likely to prevail in her claim for medical benefits but not temporary disability
benefits.

                                              Medical Benefits

       Under the Workers' Compensation Law, an employer must provide medical
treatment made reasonably necessary by the work injury. Tenn. Code Ann. § 50-6-
204(a). To receive benefits, Ms. Noblitt must show, to a reasonable degree of medical
certainty, that the May 8, 2019 incident contributed more than fifty percent in causing the
need for medical treatment, considering all causes. Tenn. Code Ann. § 50-6-102(14).

1
    The parties did not submit the ultrasound report.
3
  The investigator noted that Ms. Noblitt resides in Cleveland, Tennessee but has a Georgia driver's
license.
4
    Ms. Bishop admitted that Green Acres had five or more employees when Ms. Noblitt was injured.

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       Here, the evidence is sufficient to show that lifting a heavy container of bleach on
May 9 caused Ms. Noblitt's work injury and need for medical treatment. The urgent-care
provider referred Ms. Noblitt to see an orthopedist for her biceps tendon rupture. Based
on the evidence, Green Acres must provide an orthopedist panel from which Ms. Noblitt
may select an authorized treating physician.

                              Temporary Disability Benefits

        Ms. Noblitt also requested temporary disability benefits. There are two kinds of
temporary disability benefits: temporary total and temporary partial. To receive
temporary total disability benefits, Ms. Noblitt must prove (1) she became disabled from
working due to a work injury; (2) a causal connection between the injury and her inability
to work; and (3) the duration of her disability. Jones v. Crencor Leasing and Sales, TN
Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11, 2015). Concerning temporary partial
disability benefits, Ms. Noblitt is eligible for benefits if she earned less than her average
weekly wage due to work restrictions. See Tenn. Code Ann. § 50-6-207(2)(A).

        Here, Ms. Noblitt submitted no medical proof taking her off work or reflecting
work restrictions, aside from use of a sling, and/or the duration of any restrictions. Due
to the lack of evidence, the Court must deny her request for temporary disability benefits
at this time.

                                    Payment ofBenefits

       Green Acres must provide medical benefits. However, since it did not have
workers' compensation insurance at the time of the injury, the Uninsured Employers
Fund has discretion to pay limited medical expenses if certain criteria are met. (See
attached Benefits Request Form.) Ms. Noblitt must establish, through her testimony,
medical records, and the Bureau's Compliance report, that she proved or is likely to
prove that she: 1) worked for an uninsured employer; 2) suffered an injury arising
primarily out of and in the course and scope of employment on or after July 1, 2015; 3)
was a Tennessee resident on the date of injury; 4) provided notice to the Bureau of the
injury and of the employer's lack of coverage within sixty days of the injury; and, 5)
secured a judgment for workers' compensation benefits against Green Acres for the
injury. Tenn. Code Ann.§ 50-6-801(d)(l)-(5).

       The Court finds that Ms. Noblitt worked for an uninsured employer, Green Acres,
and that she is likely to prevail at a hearing on the merits that she suffered an injury
arising primarily out of her employment on May 8, 2019. She was a Tennessee resident
on that date, and she provided notice to the Bureau within sixty days of her injury and of
Green Acres's lack of coverage. This order serves as a judgment for benefits. Ms.
Noblitt satisfied all of the requirements of section 50-6-801 (d).

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IT IS, THEREFORE, ORDERED as follows:

  1. Green Acres shall provide Ms. Noblitt an orthopedist panel for her upper right-arm
     injury under Tennessee Code Annotated section 50-6-204.

  2. The Court refers this matter to the Compliance Program for consideration of the
     imposition of any applicable penalties.

  3. This case is set for a Status Hearing on Monday, April 20, 2020, at 9:00 a.m.
     Eastern Time. The parties must ca11423-634-0164 or toll-free at 855-383-0001 to
     participate. Failure to call might result in a determination of the issues without the
     party's participation.

  4. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
     with this Order must occur no later than seven business days from the date of entry
     of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3).
     The Employer must submit confirmation of compliance with this Order to the
     Bureau by email to WCCompliance.Program@tn.gov no later than the seventh
     business day after entry of this Order. Failure to submit the necessary
     confirmation within the period of compliance may result in a penalty assessment
     for non-compliance.

  5. For questions regarding compliance, please contact the Workers' Compensation
     Compliance Unit via email at WCCompliance.Program@tn.gov.

     IT IS ORDERED.

     ENTERED February 24, 2020.




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                                    APPENDIX

Exhibits:
   1. Affidavit of Vickie Noblitt
   2. Medical records of Urgent Care East
   3. Expedited Request for Investigation Report

Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing
   4. Notice of Expedited Hearing
   5. Motion for Continuance
   6. Order Continuing Expedited Hearing
   7. Notice of Expedited Hearing




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                            CERTIFICATE OF SERVICE

       I certify that a copy of this Order was sent as indicated on February 24, 2020.

       Name               Certified       Email      Service sent to:
                           Mail
Tim Henshaw,                                X       tim@mcmahanlawfirm.com
Employee's Attorney

Green Acres Produce,         X              X        Attn: Sandra Bishop
Uninsured Employer                                   4845 Wilson Drive NW
                                                     Cleveland, TN 37312
                                                     bishopgene@bellsouth.net
Compliance Program                          X        WCCompliance.program@tn.gov

LaShawn Pender,                             X        lashawn.pender@tn.gov
UEF Program




                                                 ~~WI~
                                          PEN~, COURT CLERK 1
                                          wc.courtclerk@tn.gov




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