              IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                               AT MEMPHIS

Gregory Williams,                                          )    Docket No.: 2015-08-0305
            Employee,                                      )
v.                                                         )    State File Number: 37336-2015
New Egg, Inc.,                                             )
            Employer,                                      )   Judge Jim Umsted
And                                                        )
Chubb Group,                                               )
            Insurance Carrier.                             )


         EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS


       This matter came before the undersigned Workers' Compensation Judge on the
Request for Expedited Hearing filed by the employee, Gregory Williams, pursuant to
Tennessee Code Annotated section 50-6-239 (2014). Mr. Williams seeks medical and
temporary disability benefits for a left shoulder injury. The employer, NewEgg, Inc.,
denied compensability of Mr. Williams' claim. The central legal issues are whether Mr.
Williams provided adequate notice of his alleged injury to NewEgg, and whether the
alleged injury primarily arose out of and in the course and scope of Mr. Williams'
employment. For the reasons set forth below, the Court finds Mr. Williams' claim is
compensable, that he provided a reasonable excuse for late notice, that he is entitled to
medical benefits, but that he failed to submit sufficient evidence showing entitlement to
temporary disability benefits. 1

                                               History of Claim

       Mr. Williams is a fifty-year-old resident of Shelby County, Tennessee. He alleged
an injury to his left shoulder on November 14, 2014, while lifting boxes at work, and
while temporarily working out of his regular job assignment. According to Mr. Williams,
he immediately reported his injury to his temporary supervisor, Sandra Jones. However,
Ms. Jones denied that Mr. Williams told her he sustained a job-related injury, and in any
event, she was not his official supervisor. Mr. Williams testified he thought his injury
1
 A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.

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was minor, so he did not seek medical treatment through NewEgg. Instead, he treated
with his primary care physician, Dr. Gina Hanissian, at Hanissian Health Care. Dr.
Hanissian referred Mr. Williams to an orthopedic specialist, and he began treating with
Dr. David Brown at OrthoMemphis on March 27,2015.

        Dr. Brown diagnosed Mr. Williams with left shoulder impingement syndrome and
bursitis and treated him conservatively with injections, medication, and a home exercise
program until April 17, 2015. On that date, Dr. Brown noted that Mr. Williams had not
improved with conservative measures, and he ordered an MRI. Following his visit with
Dr. Brown, Mr. Williams spoke to managers Damion Wintery and Carnell McFadden
about his continuing shoulder problems. At that time, NewEgg sent Mr. Williams to
Concentra Medical Centers for an evaluation of his left shoulder. 2 Dr. Tracye Kyles at
Concentra diagnosed Mr. Williams with a shoulder strain and referred him to an
orthopedic specialist.

       Mr. Williams underwent an MRI of his left shoulder on April 22, 2015. It
revealed a normal rotator cuff but showed extensive labral degeneration or a
nondisplaced labral tear involving the biceps anchor and posterior and inferior labrum.
When Mr. Williams presented to Dr. Brown on May 5, 2015, Dr. Brown diagnosed him
with a left shoulder SLAP tear and labral tear. However, Dr. Brown indicated that Mr.
Williams' pain had improved and that he could return as needed if his symptoms
worsened.

        Mr. Williams filed a Petition for Benefit Determination (PBD) seeking medical
and temporary disability benefits. The parties did not resolve the disputed issues through
mediation, and the Mediating Specialist filed a Dispute Certification Notice (DCN). Mr.
Williams filed a Request for Expedited Hearing, and this Court heard the matter on
October 26, 2015. At the Expedited Hearing, Mr. Williams asserted that he sustained a
job-related injury, gave proper notice, and his claim should be deemed compensable.
NewEgg countered that Mr. Williams failed to give notice of his injury as required by
statute and his claim should be denied.

                              Findings of Fact and Conclusions of Law

      The Workers' Compensation Law shall not be remedially or liberally construed in
favor of either party but shall be construed fairly, impartially and in accordance with
basic principles of statutory construction favoring neither the employee nor
employer. Tenn. Code Ann. § 50-6-116 (2014). The employee in a workers'
compensation claim has the burden of proof on all essential elements of a claim. Tindall
v. Waring Park Ass 'n, 725 S.W.2d 935, 937 (Tenn. 1987); 3 Scott v. Integrity Staffing
2
 A dispute exists as to whether Mr. Williams received a panel of physicians from NewEgg.
3
 The Tennessee Workers' Compensation Appeals Board allows reliance on precedent from the Tennessee Supreme
Court "unless it is evident that the Supreme Court's decision or rationale relied on a remedial interpretation of pre-

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Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn.
Workers' Comp. App. Bd. Aug. 18, 2015). An employee need not prove every element
of his or her claim by a preponderance of the evidence in order to obtain relief at an
expedited hearing. 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,
20 15). At an expedited hearing, an employee has the burden to come forward with
sufficient evidence from which the trial court can determine that the employee is likely to
prevail at a hearing on the merits. !d.

       At the expedited hearing, Mr. Williams testified credibly that he injured his left
shoulder while working on November 14, 2014. No contrary evidence was submitted.
Thus, the Court finds that Mr. Williams sustained a work-related injury on that date.
Having so found, the Court must determine whether Mr. Williams is precluded from
receiving workers' compensation benefits based upon improper notice.

         Tennessee Code Annotated§ 50-6-20l(a)(l) (2014) provides:

         Every injured employee or the injured employee's representative shall,
         immediately upon the occurrence of an injury, or as soon thereafter as is
         reasonable and practicable, give or cause to be given to the employer who
         has no actual notice, written notice of the injury, and the employee shall not
         be entitled to physician's fees or to any compensation that may have
         accrued under this chapter, Porn the date of the accident to the giving of
         notice, unless it can be shown that the employer had actual knowledge of
         the accident. No compensation shall be payable under this chapter, unless
         the written notice is given to the employer within thirty (30) days after the
         occurrence of the accident, unless reasonable excuse for failure to give the
         notice is made to the satisfaction of the tribunal to which the claim for
         compensation may be presented. (Emphasis added.)

       It is the determination of the Court that Mr. Williams did not properly report his
job injury until after his April 17, 2015 visit with Dr. Brown, when he first learned that
his condition might be more serious than he initially thought. Until that time, he might
have mentioned to a temporary supervisor, Sandra Jones, that his arm hurt, but she was
not his direct supervisor, and he did not complete a written incident report or request
medical treatment. The Court finds, however, that Mr. Williams' explanation for his
delay in giving proper notice was reasonable under the circumstances, as he believed his
injury was minor and temporary. Finally, on April 17, 2015, after his left shoulder pain
did not improve, Mr. Williams reported his work injury to his supervisors at NewEgg.

July 1, 2014 statutes, that it relied on specific statutory language no longer contained in the Workers' Compensation
Law, and/or that it relied on an analysis that has since been addressed by the general assembly through statutory
amendments." McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, *13 n.4 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).

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Thereafter, an injury report was completed, and NewEgg provided Mr. Williams
authorized medical treatment at Concentra.

        NewEgg filed a notice of denial of Mr. Williams' claim on July 17, 2015, on the
basis "[T]here is no clear mechanism of injury. This claimant was injured on 11119/14,
but did not report the injury until April2015." Pursuant to the requirement of Tennessee
Code Annotated section 50-6-201(a)(l), the Court finds that Mr. Williams provided a
reasonable excuse for his delay in giving notice of his injury and, therefore, his claim is
not barred. It has not been shown that NewEgg had actual notice of the injury, and the
first legally sufficient notice of the claim was given by Mr. Williams on April 17, 20 15.
Therefore, pursuant to statute, Mr. Williams is not entitled to benefits before that date.

       The parties stipulated that the medical treatment at Concentra was authorized. The
physicians at Concentra referred Mr. Williams to an orthopedic specialist. Dr. Hanissian,
Mr. Williams' personal physician, also referred Mr. Williams to an orthopedic group,
OrthoMemphis. Mr. Williams is currently a patient of Dr. Brown at OrthoMemphis. The
Court finds it appropriate to designate Dr. Brown as Mr. Williams' authorized treating
physician, and NewEgg shall be responsible for medical treatment expense with
Concentra and Dr. Brown/OrthoMemphis. Mr. Williams has not presented evidence
showing that he is entitled to temporary disability benefits at this time.

       Therefore, the Court concludes that Mr. Williams has come forward with
sufficient evidence to show that he is likely to prevail at a hearing on the merits as to
compensability. Thus, his request for medical benefits is granted. However, due to a lack
of medical evidence showing any periods of disability at this time, his request for
temporary disability benefits is denied.

IT IS, THEREFORE, ORDERED as follows:

1.    NewEgg or its workers' compensation carrier shall provide Mr. Williams
reasonable and necessary medical treatment for his work injury pursuant to Tennessee
Code Annotated section 50-6-204 (2014), to be initiated by NewEgg or its workers'
compensation carrier providing Mr. Williams with continued medical treatment with Dr.
Brown at OrthoMemphis who is designated as the authorized treating physician. Further,
NewEgg or its workers' compensation carrier shall pay Mr. Williams' medical bills for
treatment rendered after April 17, 2015, for his work injury. Mr. Williams or the medical
providers shall furnish the medical bills to NewEgg or its workers' compensation carrier.

2.    Mr. Williams' request for temporary disability benefits is denied. At this time,
Mr. Williams has not come forward with sufficient evidence from which the Court may
conclude he is likely to prevail at a hearing on the merits on this issue.



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3.     This matter is set for an Initial (Scheduling) Hearing on December 9, 2015, at 1:30
p.m. central time.

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) (2014). The
Insurer or Self-Insured Employer must submit confirmation of compliance with this
Order to the Bureau by email to WCComplianc .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 WC ompliance. Program@t n. gov or by calling (615) 253-
1471 or (615) 532-1309.


       ENTERED this the 5th day of November, 2015.




Initial (Scheduling) Hearing:

      An Initial (Scheduling) Hearing has been set with Judge Jim Umsted, Court of
Workers' Compensation Claims. You must call 615-532-9550 or toll-free at 866-
943-0014 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."


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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 lndigency 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
   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
   three 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 three 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.


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                                          APPENDIX

Exhibits:
   1. Affidavit of Gregory Williams;
   2. Form C-31 Medical Waiver and Consent;
   3. Form C-20 Employer's First Report of Work Injury or Illness;
   4. Form C-23 Notice ofDenial of Claim for Compensation;
   5. Form C-41 Wage Statement;
   6. Correspondence dated July 29, 2015, from Dr. Gina Hanissian at Hanissian Health
       Care;
   7. Medical record from Concentra Medical Centers, dated April 17, 2015;
   8. Medical records from OrthoMemphis, dated March 27, April 17, April 22, and
       May 5, 2015;
   9. Affidavit of Kranise Hawthorne; and
   10. OrthoMemphis report dated May 5, 2015. 4

Technical record: 5
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing
   4. NewEgg, Inc.'s position statement of September 10, 2015




4
 The Court did not admit Exhibit 10 into evidence but marked it for identification only.
5
   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.


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                            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 5th day of
November, 2015.


 Name                        Certified Via       Via     Service sent to:
                             Mail      Fax       Email
 David A. E. Lumb,                                 X     dl@darrellcastle.com
 Employee's Counsel
 Adrienne Fazio,                                   X     afazio@manierherod.com
 Employer's Counsel




                                         1
                                         Penny SbrJm, Clerk of Court
                                         Court of Workers' Compensation Claims
                                         WC.Cou.-tCierk@tn.gov




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