                                                                                                                      FILED
                                                                                                                   October 7, 2015
                                                                                                                    I " COURT OF
                                                                                                               WORKERS ' CO~IPE:>S.-\TIO:>
                                                                                                                        CL.-\DIS

                                                                                                                     Time: 7:15 A.1\'l




              IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                             AT CHATTANOOGA

Cheryl L. Moffat,                                         )    Docket No.: 2015-01-0145
            Employee,                                     )
v.                                                        )    State File Number: 43475-2015
The Blue Chair, Inc.,                                     )
           Employer,                                      )    Judge Thomas Wyatt
And                                                       )
RTW Insurance Co.                                         )
           Insurance Carrier.                             )


              EXPEDITED HEARING ORDER DENYING MEDICAL AND
                     TEMPORARY DISABILITY BENEFITS


       This claim came before the Court on September 15, 2015, for an in-person
Expedited Hearing. The issues presented for determination at the Expedited Hearing
were whether Cheryl L. Muffat, the employee, injured her right foot at work on January
29, 2015, and if she did, whether she gave her employer, The Blue Chair, Inc. (Blue
Chair), timely notice of her claim. 1 For the reasons set forth below, the Court finds Ms.
Muffat is not entitled to the requested medical and temporary disability benefits.

                                              History of Claim

       According to her Petition for Benefit Determination, Ms. Muffat is a sixty-three-
year-old resident of Grundy County, Tennessee. (T.R. 1 at 1.) On January 29, 2015, the
alleged date of injury, she worked as a cook for Blue Chair at its restaurant in Sewanee,
Tennessee. (Ex. 4 at 1.) Ms. Muffat allegedly fractured her right foot when she tripped
while hanging a floor mat on the rail of the restaurant's back porch. !d. The porch rail
broke as she attempted to place the mat over it, causing her to stumble and bend her right
foot forward. !d.

       Ms. Muffat claims she told her managers, Amy Hanna and Nichalaus Rent, she
injured her foot at work the day after the injury occurred. !d. In the Notice of Denial of
1
 Additional information regarding the technical record and the exhibits admitted at the Expedited Hearing is
attached to this Order as an Appendix.

                                                         1
Claim it filed, Blue Chair stated it denied Ms. Muffat's claim because her "work related
injury was not reported--to the Blue Chair. We w~re only made aware she injured herself
at home and only notified regarding the work related complaint after [Ms. Muffat] was
terminated." (Ex. 5.) Blue Chair denied Ms. Muffat's claim without paying benefits.

       Ms. Muffat sought emergency care for right-foot pain on February 2, 2015, at
Southern Tennessee Regional Health Center. (Ex. 3 at 1.) X-rays taken on this visit
revealed no fracture or misalignment. (Ex. 3 at 2.) Ms. Muffat mentioned her right foot
to a physician at the hospital on two subsequent visits for which she was treated for other
conditions. (Ex. 3.)

        Ms. Muffat eventually came under the care of Dr. Robert Bell at Highland Rim
Foot and Ankle Clinic, PLLC for her right-foot complaints. (Ex. 2 at 1.) On April 8,
2015, Dr. Bell ordered x-rays and diagnosed a "stress fracture [of the] right third
metatarsal" and "degenerative arthropathy of the right second tarsometatarsal joint." (Ex.
2 at 2.) Dr. Bell instructed Ms. Muffat to wear an air cast for all weight-bearing
activities. !d.

       Ms. Muffat saw Dr. Bell on two subsequent occasions. (Ex. 2 at 4-5.) On the
most recent visit on May 18, 2015, Dr. Bell interpreted an x-ray examination to show
some healing of the right-foot fracture and instructed Ms. Muffat to continue using the air
cast. (Ex. 2 at 5.)

       Ms. Muffat worked at Blue Chair until April 27, 2015, when the restaurant
terminated her for an alleged bad attitude and interpersonal problems with co-employees.
(Ex. 4 at 2.) Ms. Muffat claims the stated reasons for the termination are false.

                              Findings of Fact and Conclusions of Law

                                           General Legal Authority

      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); 2 Scott v. Integrity Staffing
2
 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-
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).


                                                          2
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.

                                       Notice

        Tennessee Code Annotated section 50-6-201(a)(l) (2014) provides, "[e]very
injured employee ... 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[.]" (Emphasis added.) Tennessee Code
Annotated section 50-6-201(a)(4) (2014) provides, "notice shall be given personally to
the employer or the employer's agent or agents having charge of the business at the time
the injury was sustained by the employee."

        The Tennessee Supreme Court has equated timely verbal notice of the work-
relatedness of an injury with actual notice. See Earls v. Calsonic Yorozu Corp., No.
M2002-01309-WC-R3-CV, 2003 Tenn. LEXIS 732, at *6 (Tenn. Workers' Comp. Panel
Oct. 2, 2014), holding, "[the employee] gave verbal notice to her supervisor[.] Hence,
the employer had actual knowledge of her injury." See generally Bogus v. Manpower
Temporary Services, 823 S.W.2d 544, 545-7 (Tenn. 1992); CNA Ins. Co. v. Transou, 614
S.W.2d 335, 336-7 (Tenn. 1981). Tennessee Code Annotated section 50-6-201(a)(4)
(2014) provides, "notice shall be given personally to the employer or the employer's
agent or agents having charge of the business at the time the injury was sustained by the
employee."

       The evidence at the Expedited Hearing differed sharply on the notice issue. Ms.
Muffat testified she did not report her injury the evening it occurred because she closed
the restaurant by herself. She testified she told her supervisors, Ms. Hanna and Mr. Rent,
"the very next day" that she hurt her foot at work, explaining how the injury occurred.
(Ex. 4 at 1.) On cross-examination, Ms. Muffat conceded she did not work again after
the injury occurred until February 1, 2015, thus the notice she allegedly gave occurred
two days after the alleged injury.

       Ms. Muffat testified she communicated with a co-employee on Facebook about
injuring her foot and sought to introduce a print-out of February 1, 2015 posts to her
Facebook page. (Ex. 7.) The Court overruled Blue Chair's hearsay objection as to the
posts made by Ms. Muffat, but sustained the objection as to posts made by another
person. A posting under the name "Cheryl Rinehart Muffat" includes the following text:

                                            3
"I may have broke my foot the day I did a dbl I was setting the mats out side [sic] and
tripped on them." (Ex. 7.)

        Ms. Hanna was the "front of the house" manager at Blue Chair's restaurant at the
time Ms. Muffat allegedly injured her right foot. She testified that, in early February,
2015, she observed Ms. Muffat limping at work and asked her what was wrong. Ms.
Muffat allegedly responded that she injured her foot at home when she fell over an
ottoman. 3 She testified Ms Muffat joked about the ottoman incident several times,
calling herself "clumsy." Ms. Hanna claimed Ms. Muffat never told her she injured her
foot at work.

       Blue Chair submitted the affidavits of Gary Sturgis, a co-owner of Blue Chair, and
Amy Nelson, a server. Both affidavits support Ms. Hanna's claim that Ms. Muffat told
her she injured her foot at home.

       Blue Chair also presented the telephonic testimony of Mr. Rent, who now lives in
St. Louis, Missouri. Mr. Rent testified Ms. Muffat told him two or three weeks after she
was hurt that she tripped on a mat at work, reinjuring her right foot. Mr. Rent testified
Ms. Muffat told him she initially injured her foot at home.

        As kitchen manager at Blue Chair's restaurant on the date of injury, Mr. Rent had
direct supervisory authority over Ms. Muffat, a cook. 4 As such, he is a person to whom
Ms. Muffat may give notice of her injury in satisfaction of the statutory requirement. See
Tenn. Code Ann. ~ 50-6-201(a)(4) (2014). Mr. Rent's testimony that, within two or three
weeks of the date of injury, Ms. Muffat told him she injured her right foot at work
establishes Ms. Muffat gave notice within the time period established by section 50-6-
20l(a)(l). Accordingly, the Court finds that, at a final compensation hearing, Ms. Muffat
will likely prevail in her claim she gave Blue Chair timely notice of her right-foot injury.

                                               Causation

        Except in the most obvious, simple and routine cases, an employee in a workers'
compensation case must establish a causal relationship between the claimed injury and
the employment activity by expert medical testimony, as supplemented by the lay
evidence. Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 676 {Tenn. 1991). Because
Ms. Muffat reported to others she first injured her right foot at home, this claim does not
present an "obvious, simple and routine" claim in which expert medical opinion of
causation is not required.

        According to the reforms to the Workers' Compensation Law, "[a]n injury causes
3
  Ms. Muffat testified she does not own an ottoman.
4
Mr. Rent testified he terminated Ms. Muffat.     Ms. Hanna testified she and Mr. Rent made a joint decision to
terminate Ms. Muffat.

                                                      4
death, disablement or the need for medical treatment only if it has been shown by a
reasonable degree ofmedical certainty that it contributed more than·fifty percent (50%)
in causing the death, disablement or the need for medical treatment, considering all
causes." Tenn. Code Ann. §50-6-102(13)(C) (2014). Tennessee Code Annotated section
50-6-102(13)(D) (2014) provides, "'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." (Emphasis added.)

       Dr. Bell noted in his initial treatment note that Ms. Muffat's "[o]nset of symptoms
was gradual," and that she denied "any inciting traumatic event." (Ex. 2 at 1.) The
records documenting subsequent visits to Dr. Bell do not indicate Ms. Muffat told him
that she suffered a work-related injury. Further, Dr. Bell's records do not indicate he
addressed the work-relatedness of Ms. Muffat's right-foot condition or that Ms. Muffat
asked him to do so. Based on the above facts, the Court finds Ms. Muffat did not report
to Dr. Bell that she hurt her right foot on the job at Blue Chair.

        The only other medical records in evidence in this claim are those of Southern
Tennessee Regional Health System. While the Southern Tennessee records from a visit
on February 2, 2015, indicate Ms. Muffat reported she, "tripped on a floor mat 4 days
ago" (Ex. 2 at 3), the notes do not contain the causation opinion required by statute. In
fact, the practitioners at Southern Tennessee never diagnosed a fracture in Ms. Muffat's
right foot, but assessed her problem as a sprain, strain, or contusion. (Ex. 3.)

       In that the medical records introduced at the Expedited Hearing do not contain an
expert medical opinion that Ms. Muffat's broken right foot is work-related, the Court
finds that, at a hearing on the merits, Ms. Muffat is unlikely to prevail in establishing the
work-relatedness of her alleged injury.

       IT IS, THEREFORE, ORDERED as follows:

   1. Ms. Muffat's claim against Blue Chair and its workers' compensation carrier for
      the requested medical benefits and temporary disability benefits is denied at this
      time.

   2. This matter is set for an Initial (Scheduling) Hearing on December 16, 2015, at
      10:00 a. m. Eastern Time.




                                             5
       ENTERED this the 7th day of October, 2015.




                                  Judge Thomas Wyatt
                                  Court of Workers' Compensation Claims

Initial (Scheduling) Hearing:

      A Scheduling Hearing has been set on December 16, 2015, at 10:00 a.m., Eastern
Time, with Judge Thomas Wyatt, Court of Workers' Compensation Claims. You
must call 615-741-3061 or toll-free at 855-747-1721 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 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.




                                         7
                           eERTIFieATE OF SERVICE

       I hereby certify that a true and correct copy of the Expedited Hearing Order
Denying Additional Medical and Temporary Disability Benefits was sent to the following
recipients by the following methods of service on this the 7th day of October, 20 15.

          Name             Certified Via       Via     Service sent to:
                           Mail      Fax       Email
Cheryl L. Muffat                                 X     Scuffy1211@yahoo.com
Daniel Howard,                                   X     Daniel.Howard@SH-Trial. com
Employer/Carrier's
Counsel



                                       --&             ~~ -
                                       Penn: ! jm, Clerk of Court
                                       Court o · orkers' Compensation Claims
                                       WC.CourtCierk@tn.gov




                                           8
                                                APPENDIX

Exhibits:
   1. Billing Records of Advanced Radiology Associates; Southeastern Emergency
       Physicians; Southern Tennessee Regional Health System; and Highland Rim Foot
       & Ankle Clinic, PLLC;
   2. Records of Highland Rim Foot & Ankle Clinic, PLLC/Dr. Robert Bell;
   3. Records of Southern Tennessee Regional Health System;
   4. Affidavit of Cheryl L. Muffat;
   5. Notice of Denial of Claim For Compensation (C-23);
   6. Wage Statement (C-41);
   7. Facebook communication of Cheryl L. Muffat;i
   8. Affidavit of Amy Nelson; and
   9. Affidavit of Gary Sturgis.

Technical record:
   1. Petition for Benefit Determination, filed June 9, 2015;
   2. Dispute Certification Notice, filed July 31, 2015;
   3. Request for Expedited Hearing, filed August 14, 2015
   4. Affidavit of Cheryl L. Muffatt, filed June 3, 2015;
   5. Defendant's Pre-Hearing Brief, filed August 27, 2015;
   6. Motion for Extension, filed August 18, 2015;
   7. Motion to Present Witness Testimony by Telephone, filed September 1, 2015;
   8. Order granting extension, filed August 21, 2015; and
   9. Order granting leave for witness to testify by telephone, filed September 9, 2015.

       The Court considered factual statements in the above filings as allegations unless
established by the evidence introduced at the Expedited Hearing. The Court did not
consider attachments to the above filings unless introduced into evidence as an exhibit.



' The Court sustained Blue Chair's hearsay objection to the comments of Misty Bryant recorded on the exhibit and
did not consider the comments in the determination of this claim. The comments remain in the record for
identification purposes only.




                                                       9
