                                                                                                                FILED
                                                                                                          September 13, 201,6

                                                                                                             TNCO URT OF
                                                                                                       W ORKI.R.S' O OMPlNS m o N
                                                                                                                CL'ill.'J:S

                                                                                                               Tim.eo 12 :21 PM




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

ROBERT LAWRENCE,                                           )    Docket No.: 2015-07-0147
         Employee,                                         )
v.                                                         )    State File Number: 53531-2015
STOP N' SHOP,                                              )
          Employer.                                        )    Judge Allen Phillips


          EXPEDITED HEARING ORDER DENYING MEDICAL BENEFITS


        This matter came before the undersigned Workers' Compensation Judge on
August 31, 2016, upon the Request for Expedited Hearing filed by the employee, Robert
Lawrence, pursuant to Tennessee Code Annotated section 50-6-239 (2015). Mr.
Lawrence seeks medical benefits for a right knee injury. 1 Stop N' Shop did not appear for
the hearing. Accordingly, the central legal issue is whether Mr. Lawrence came forward
with sufficient evidence to show entitlement to medical benefits. For the reasons set forth
below, the Court finds Mr. Lawrence has not come forward with sufficient evidence, at
this time, to show entitlement to medical benefits. 2

                                               History of Claim

       Mr. Lawrence is a thirty-year-old resident of Gibson County, Tennessee. He
worked for Stop N' Shop, a convenience store located in Humboldt, Tennessee. On May
18, 2015, he testified he was moving a case of soft drinks when the cashier on duty,
"David," who was the storeowner's nephew, confronted him. Mr. Lawrence testified that
David began "getting in his face" and "next thing I know he got more [sic] closer to me
and I go flying over [a case on the floor]." This fall caused Mr. Lawrence to suffer what
he described as a dislocation of his right knee.


1
  Mr. Lawrence filed a previous Petition for Benefit Determination that this Court dismissed on February 16, 2016,
for his failure to prosecute the action. Mr. Lawrence filed the instant action on April26, 2016.
2
  The Court has attached a compl.ete listing of the technical record and exJ1ibits admitted at the Expedited Hearing to
this Order as an appendix.

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           When further detailing the event, Mr. Lawrence testified his sister came to the
    store on the night in question and David was talking to her. He "[b]elieve[d] [David's]
    anger ... towards me [was] over my sister because he wanted, he liked her, he wanted to
    date her but she wasn't, I guess she wasn't going for it, but that was part of the anger."
    He offered no other theory of David's motive. The storeowner later called Mr. Lawrence
    while he was still at the store, cursed him, and told him to leave.

             Mr. Lawrence called his sister to pick him up. His sister, Gloria Lawrence,
    testified she picked up her brother and noted his injured knee at that time. She was
    unaware of any affection directed toward her by David, the cashier, although she did state
    she was at the store on the night in question before the incident. She did not witness the
    incident and had no other personal knowledge of the event.

      Antonio Lamont Hall, identified by Mr. Lawrence as his "cousin," testified he
drove Mr. Lawrence to Humboldt General Hospital on the night of the injury. He
corroborated Mr. Lawrence's knee injury by his personal observation but, had no
knowledge of the incident itself. He later transported Mr. Lawrence to further medical
appointments.

       Mr. Lawrence testified he reported the injury on the night it occurred by calling
"Alex," the store manager; Alex cursed him "in his own language." 3 His attempts at
further contact with the employer were unsuccessful. As of the date of the hearing, he
indicated he bore no animosity to Stop N' Shop but, as he testified, he wants them to
"stand up for what happened in the store."

        Mr. Lawrence testified he suffers from a learning disability, the exact nature of
which is unclear, and that he was training for the Special Olympics before the injury. He
obtained a high school diploma. When he was eighteen, he had surgery to repair a
dislocation of his knee, but it had improved to normal function prior to the injury in
question.

       Mr. Lawrence offered medical records from Innovative Orthopedics in Paris,
Tennessee. These indicated he suffered injury when he "got into it with his boss" and
confirmed the prior knee dislocation. The provider diagnosed chondromalacia of the
patella and recommended physical therapy. As of May 19, 2016, Mr. Lawrence was to
follow up in one month. The records are consistent with Mr. Lawrence's testimony
regarding his medical treatment.

       Mr. Lawrence has not worked since the incident. He currently receives social
security disability and Medicare benefits.

3
  Mr. Lawrence testified the store owners and staff, with the exception of Mr. Lawrence, are of Middle Eastern
descent.

                                                      2
                        Findings of Fact and Conclusions of Law

                                     Standard applied

        Because this case is in a posture of an Expedited Hearing, Mr. Lawrence need not
prove every element of his claim by a preponderance of the evidence in order to obtain
relief. McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk.
Comp. App. Bd. LEXIS 6, at *7-8 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).
Instead, he must come forward with sufficient evidence from which this Court might
conclude he would prevail at a hearing on the merits. !d. at *9. However, this lesser
evidentiary standard does not relieve Mr. Lawrence from coming forward with sufficient
evidence upon which the Court may appropriately find that his injury arose primarily out
of and in the course and scope of employment. !d. When making this determination, the
Court will not remedially or liberally construe the law in favor of Mr. Lawrence or Stop
N' Shop but will construe it fairly, impartially, and in accordance with basic principles of
statutory construction. Tenn. Code Ann.§ 50-6-116 (2015).

       At this Expedited Hearing, Mr. Lawrence chose to proceed without an attorney,
which is his prerogative. "It is well-settled, however, that pro se litigants must comply
with the same standards to which lawyers must adhere." Bates v. Command Ctr., Inc.,
No. 2014-06-0053, 2015 TN Wrk. Comp. App. Bd. LEXIS 10, at *3 (Tenn. Workers'
Comp. App. Bd. Apr. 2, 20 15). While this Court must take into account that Mr.
Lawrence has no legal training and little familiarity with the judicial system, it must also
be mindful of the boundary between fairness to Mr. Lawrence, as a pro se litigant, and
unfairness to Stop N' Shop. Bucher v. Diversco, No. 2015-05-0184, 2015 TN Wrk.
Comp. App. Bd. LEXIS 46, at *9 (Tenn. Workers' Comp. App. Bd. Nov. 18, 2015). It is
not the role of this Court to construct Mr. Lawrence's case or arguments for him. Sneed v.
Bd. of Prof'! Responsibility of the Supreme Court of Tenn., 301 S.W.3d 603, 615 (Tenn.
2010).

                             Entitlement to Medical Benefits

       Under the Workers' Compensation Law, "the employer or the employer's agent
shall furnish, free of charge to the employee, such medical and surgical treatment . . .
made reasonably necessary by accident[.]" Tenn. Code Ann. § 50-6-204(a)(l)(A) (2015).
However, the injury for which the employee seeks benefits must arise "primarily" out of
and in the course and scope ofthe employment. Tenn. Code Ann. § 50-6-102(14) (2015).
Further, "[a]n injury causes death, disablement or the need for medical treatment only if it
has been shown to a reasonable degree of medical certainty that it contributed more than
fifty percent (50%) in causing the death, disablement or need for medical treatment,
considering all causes." Tenn. Code Ann. § 50-6-102(14)(C) (2015). "'Shown to a
reasonable degree of medical certainty' means that, in the opinion of the physician, it is
more likely than not considering all causes, as opposed to speculation or possibility."

                                             3
Tenn. Code Ann. § 50-6-102(14)(D) (2015).

       Mr. Lawrence bears the burden of proof for all prima facie elements of a workers'
compensation claim. Tenn. Code Ann. § 50-6-239(c)(6) (2015). However, as stated
above, at this Expedited Hearing he is not required to prove his injury arose primarily out
of the employment by a preponderance of the evidence, but instead must come forward
with sufficient evidence to show a likelihood of prevailing on this issue at a full hearing
on the merits. However, when applying even this relaxed standard, the Court is
constrained to find that he failed to provide such evidence.

       Mr. Lawrence must show that his injury both arose out of and occurred in the
course and scope of his employment at Stop N' Shop. An injury occurs in the course of
employment if it takes place while the employee was performing a duty the employer
hired him or her to perform. Fink v. Caudle, 856 S.W.2d 952, 958 (Tenn. Workers'
Comp. Panel 1993). Thus, the course of employment requirement focuses on the time,
place, and circumstances of the injury. Saylor v. Lakeway Trucking, Inc., 181 S.W.3d
314, 318 (Tenn. 2005). Here, when construing the facts impartially, Mr. Lawrence
offered sufficient evidence that his injury was in the course of his employment; he was
carrying a case of drinks as part of his work as a convenience store employee.

       However, in this case, the arising-out-of requirement is pivotal. Arising out of the
employment refers to causation. Reeser v. Yellow Freight Sys., Inc., 938 S.W.2d 690, 692
(Tenn. 1997). An injury arises out of the employment when there is a causal connection
between the conditions under which the work must be performed and the resulting injury.
Fritts v. Safety Nat'! Cas. Corp., 163 S.W.3d 673, 678 (Tenn. 2005). Of particular
importance here is the principle that, "the mere presence of the employee at the place of
injury because of the employment is not enough, as the injury must result from a danger
or hazard peculiar to the work or be caused by a risk inherent in the nature of the work."
Blankenship v. Am. Ordnance, 164 S.W.3d 350, 354 (Tenn. 2005). Accordingly, "an
injury purely coincidental, or contemporaneous, or collateral, with the employment ...
will not cause the injury ... to be considered as arising out of the employment." Jackson
v. Clark & Fay, Inc., 270 S.W.2d 389, 390 (Tenn. 1954).

       Mr. Lawrence testified he wanted Stop N' Shop to "stand up for what happened in
the store." But, as stated, his mere presence at Stop N' Shop is not enough; there must be
a danger or hazard peculiar to the work or a risk inherent in the nature of the work. The
Court finds no such connection.

      In so finding, the Court looks to Tennessee law relating to workplace assaults.
There are three categories for such events:

      (1) Assaults with an "inherent connection" to employment, such as disputes
      over performance, pay, or termination;

                                            4
       (2) Assaults stemming from "inherently private" disputes imported into the
       employment setting from the claimant's domestic or private life and not
       exacerbated by the employment; and,

       (3) Assaults resulting from a "neutral force," such as random assaults on
       employees by individuals outside the employment relationship.

Woods v. Harry B. Woods Plumbing Co., 967 S.W.2d 768, 771 (Tenn. 1998). Assaults
falling into the first category are compensable. Wait v. Travelers Indem. Co. of Ill., 240
S.W.3d 220, 227 (Tenn. 2007). Assaults falling into the second category are not. Woods,
at 771. The third category does not apply.

        Mr. Lawrence testified David "got in his face" over the apparent rejection by Mr.
Lawrence's sister. There is no other proof before the Court. Therefore, his injury does not
fall into the first category because, by his own testimony, the incident with David had no
inherent connection to the employment. The incident did not stem from "performance,
pay or termination," or any matter that appears to have a connection to work, other than
the tangential fact that both men worked at Stop N' Shop.

       The Court finds the incident stemmed from either an "inherently private dispute,"
the purported rejection of David by Mr. Lawrence's sister or, from some other unknown
cause. In either circumstance, the employment bears no relation to the incident.

        The Court finds Mr. Lawrence's description of his physical impairment credible.
It also sympathizes with his pain and his frustration at his treatment by his former
employer. Notwithstanding, this Court finds Mr. Lawrence is not entitled to workers'
compensation benefits simply because the incident occurred at Stop N' Shop. The
dispositive factor is that the injury did not arise primarily out of his employment. This
result holds true even though Stop N' Shop failed to appear. This Court cannot grant
benefits to a claimant by default if the basic allegations of the claim do not fit within the
coverage formula of the law. However, the Court notes this Expedited Hearing is
interlocutory in character and Mr. Lawrence may later present evidence of a work
relation at a final Compensation Hearing.

IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Lawrence's claim against Stop N' Shop for medical benefits is denied at this
      time.

   2. This matter is set for an Initial (Status) Hearing on December 8, 2016, at 10:00
      a.m. Central time.


                                             5
       ENTERED this the 13th day of Se~·-...... -




Initial (Status) Hearing:

      An Initial (Status) Hearing has been set with Judge Allen Phillips, Court of
Workers' Compensation Claims. You must call 731-422-5263 or toll-free at 855-
543-5038 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.


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
      $75.00. 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

                                            6
   the request for a wmver of the filing fee as soon thereafter as is
   practicable. Failure to timely pay the filing fee or file the Affidavit of
   lndigency 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
   statement of the issue(s) presented for review; and (4) an argument, citing
   appropriate statutes, case law, or other authority.




                                         7
                                               APPENDIX


Exhibits:
   1. Affidavit of Robert Lawrence; and
   2. Medical Records oflnnovative Orthopedics (Dr. Cutright).


Technical record:
   1. Petition for Benefit Determination;
   2. Dispute Certification Notice; and
   3. Request for Expedited Hearing. 4




4
   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.


                                                      8
                            CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 13th day
of September, 2016.

Name                        Certified Via       Via     Service sent to:
                            Mail      Fax       Email
Robert Lawrence,               X
Self-Represented                                        1317 North 13th Ave.,
Employee                                                Humboldt, TN 38343
Mohammed El Malild,             X
Self-Represented                                        524 North Central Ave.,
Employer                                                Humboldt, TN 3 8343




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