     FILED
   Aug 08, 2018
   03:42 PM(ET)
 TENNESSEE COURT OF
WORKERS' COMPENSATION
       CLAIMS
with Dr. Jason Spangler. 1 Ms. Pierce testified Dr. Spangler assigned restrictions of no
lifting over fifteen pounds. She still treats with Dr. Spangler.

       Ms. Pierce stated White Stables never offered her a position within her restrictions
and she was unable to work until starting a new job at Athens Co-Op on November 26,
2017. Her job at Athens Co-Op pays the same amount she made at White Stables. Ms.
Pierce asked the Court to order White Stables to pay for past and ongoing medical
expenses, designate Dr. Spangler as the authorized treating physician, and pay accrued
temporary disability benefits from October 21 through November 25, 2017.

        White Stables called no witnesses and introduced no evidence. 2 It argued that the
farm/agricultural exemption applies. Additionally, White Stables argued that even if it
were not exempt under the agricultural exemption, it is not liable under the Equine
Activity Exemption. It argued Ms. Pierce was a "participant," which is defined as "any
person, whether amateur or professional, who engages in equine activity, whether or not a
fee is paid to participate in the equine activity."

                            Findings of Fact and Conclusions of Law

       Ms. Pierce need not prove eve.ry element of her claim by a preponderance of the
evidence to receive relief at an expedited hearing. Instead, she must present sufficient
evidence showing she 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).

                                               Exemptions

       White Stables claimed exemption from providing workers' compensation benefits
under the farm/agricultural and equine activities exemptions. It asked the Court to take
judicial notice of an O*NET online definition of "farmworkers, farm, ranch, and
aquacutural animals." The Court declines to take judicial notice of the definition, as it is
subject to reasonable dispute and not generally known. See Tenn. R. Evid. 201(b)
(2017).


1
 Ms. Pierce acknowledged that she did not file or introduce any of Dr. Spangler's records or bills into
evidence.
2
 White Stables attempted to introduce the affidavit of Pascal White into evidence. Ms. Pierce objected,
and the Court sustained the objection since White Stables did not provide the affidavit ten days before the
hearing as required by Mediation and Hearing Procedures 0800-02-2 I-. l 4(b ). Therefore, the Court
marked the affidavit for identification only. The Court notes the affidavit stated White Stables has not
had more than four employees regularly employed since January 1, 2018, but Ms. Pierce's injury occurred
on October 21, 2017.


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       White Stables also asked the Court to take judicial notice of Tennessee Code
Annotated sections 50-6-106 (D)( 4) and 44-20-101-105. The Court takes judicial notice
that these statutes exist. However, their existence does not alleviate White Stables'
burden of establishing application to this case. White Stables failed to introduce any
evidence or provide any testimony to establish applicability of either exemption.

       Additionally, White Stables argued exemption from providing workers'
compensation coverage because it only had four employees. The Bureau's Investigation
Report, admitted into evidence without objection, contained the following excerpt from a
December 1, 2017 interview with White Stables' business manager, Pascal White: "Ms.
White said that Ms. Pierce was hired to do barn chores such as clean stalls, clean, feed
and groom horses. Ms. White confirmed she had at least five workers []" (Emphasis
added.) The Court holds that Ms. Pierce is likely to succeed at a hearing on the merits of
establishing White Stables had five or more employees at the time of her injury and does
not qualify for a workers' compensation exemption.

                                          Injury

        To receive benefits, Ms. Pierce must show she suffered an injury "caused by a
specific incident, or set of incidents, arising primarily out of and in the course and scope
of employment ... [that] is identifiable by time and place of occurrence." An injury
"arises primarily out of and in the course and scope of employment" only if the
"employment contributed more than fifty percent (50%) in causing the injury,
considering all causes[.]" Tenn. Code Ann. § 50-6-102(14). "Except in the most
obvious, simple and routine cases, the claimant in a workers' compensation action must
establish by expert medical evidence the causal relationship . . . between the claimed
injury (and disability) and the employment activity." Orman v. William Sonoma, Inc.,
803 S.W.2d 672, 676 (Tenn. 1991).

       Ample proof established Ms. Pierce suffered a work-related injury. Ms. Pierce
provided a detailed description of the mechanism of injury and introduced medical
records and bills that outlined her treatment for the injury. White Stables provided no
testimony or evidence to rebut Ms. Pierce's description of the injury or the treatment she
received. The Court holds she suffered an injury arising primarily out of and in the
course and scope of employment.

                                     Medical Benefits

       Turning to the requested relief, the Court holds that White Stables must pay for
Ms. Pierce's past treatment with Sweetwater Hospital, Athens Walk-In Clinic, and Drs.
Trentham and Spangler. The Court further holds that White Stables must also provide
continuing reasonable, necessary treatment related to her work injury. See Tenn. Code
Ann. § 50-6-204(a)(l)(A). The Court appoints Dr. Spangler as the authorized treating


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physician. The Court finds treatment with Sweetwater Hospital, Athens Walk-In Clinic,
and Drs. Trentham and Spangler appropriate because White Stables failed to provide a
panel of physicians, thereby requiring Ms. Pierce to seek treatment on her own. See
Young v. Young Elec., 2016 TN Wrk. Comp. App. Bd. LEXIS 24, at* 18 (May 25, 2016).

                              Temporary Disability Benefits

        Ms. Pierce additionally seeks temporary disability benefits. Temporary partial
disability (TPD) benefits apply if she did not earn her average weekly wage due to
physician-assigned restrictions from the work injury. Specifically, "[t]emporary partial
disability refers to the time, if any, during which the injured employee is able to resume
some gainful employment but has not reached maximum recovery." Frye v. Vincent
Printing Co., 2016 TN Wrk. Comp. App. Bd. LEXIS 34, at *15-16 (Aug. 2, 2016.)

       Ms. Pierce testified about the restrictions assigned as a result of her injury, and
those restrictions are reflected in the medical records. She also testified she was unable
to work from October 21 until starting a new job on November 26, 2017. White Stables
offered no rebuttal testimony. Additionally, it did not rebut Ms. Pierce's testimony that
established her average weekly wage at $360.00 and her compensation rate at $240.00.
Thus, the Court concludes that Ms. White is likely to succeed at a hearing on the merits
that she is entitled to five weeks of TPD benefits in the amount of $1,200.00.

                                  Payment ofBenefits

        White Stables must provide Ms. Pierce with past and ongoing medical and TPD
benefits. However, because it did not have workers' compensation insurance at the time
of the accident, Tennessee Code Annotated section 50-6-802(e)(l) provides that the
Bureau has discretion to pay limited temporary disability and medical benefits via the
Uninsured Employer's Fund (UEF). The Court finds Ms. Pierce, through her testimony,
medical records, and the Bureau's Investigation Report, established the following pre-
requisites for UEF coverage: 1) She worked for an employer who failed to carry workers'
compensation insurance; 2) She suffered an injury primarily arising in the course and
scope of employment after July 1, 2015; 3) She was a Tennessee resident on the date of
the injury; and, 4) She provided notice to the Bureau of the injury and the employer's
failure to provide workers' compensation insurance no more than sixty days after the
injury occurred. See Tenn. Code Ann. § 50-6-80l(d)(l)-(4).

IT IS, THEREFORE, ORDERED as follows:

   1. White Stables shall provide Ms. Pierce with ongoing medical treatment for her
      injuries as required by Tennessee Code Annotated section 50-6-204, and Dr.
      Spangler shall be the authorized treating physician.



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   2. White Stables shall be responsible for reasonable, necessary, and related past
      medical treatment, including Sweetwater Hospital-$17 ,259 .00; Sweetwater
      Emergency Room physician Dr. Joshua Murphy-$220.01; and Tennessee Valley
      Radiology-$824.00. Medical bills shall be furnished to White Stables by
      Ms. Pierce or the medical providers.

   3. Ms. Pierce is entitled to five weeks of TPD benefits in the amount of $1,200.00

   4. Ms. Pierce is eligible to receive medical and temporary disability benefits from the
      Uninsured Employer's Fund pursuant to Tennessee Code Annotated section 50-6-
      801. The clerk shall forward a copy of this order to the Administrator for
      consideration of payment.

   5. This matter is set for a Scheduling Hearing on September 27, 2018, at 1:30 p.m.
      Eastern Time. The parties must call (865) 594-0091 or (toll-free) (855) 543-5041
      to participate in the Scheduling Hearing. Failure to appear by telephone may
      result in a determination of the issues without your further participation.

      ENTERED August 8, 2018.




                                  HON. LISA A. LOWE
                                  Workers' Compensation Judge

                                       APPENDIX

Exhibits:
      1) Affidavit of Kaitlin Pierce
      2) Expedited Request for Investigation Report
      3) Table of Contents of Medical Records
            o Sweetwater Hospital
            o Internal Medicine Associates
            o Athens Walk-In Clinic
            o Benchmark Physical Therapy
            o Medical Expenses
                   • Sweetwater Hospital
                   • Tennessee Valley Radiology
      4) Affidavit of Pascal White marked for identification only




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Technical Record:
      1) Petition for Benefit Determination
     2) Dispute Certification Notice
     3) Show Cause Order
     4) Request for Expedited Hearing
     5) Affidavit of Kaitlin Pierce
     6) Notice of Piling medical records of Dr. Nathan Trentham
     7) Motion to Compel
     8) Order Granting Motion to Compel
     9) Notice of filing Medical Records
      10) Affidavit of Pascal White
      11) Emails from White Stables to Bureau employee submitting affidavit of Pascal
         White

                          CERTIFICATE OF SERVICE

       I certify that a true and correct copy of the Order was sent to the following
recipients by the following methods of service on August 8, 2018.

Name                      Certified   Fax       Email   Service sent to:
                           Mail
Chris Beavers,                                   x      chris beavers@banksandj ones .com
Employee's Attorney

John Dupree,                                     x      john.dupree@knoxtnlaw.com
Employer's Attorney

UEF                                              x      Lashawn.pender@tn.gov




                                               IRUM, Court Clerk
                                       WC.CourtClerk@tn.gov




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