                                                                                            FILED

                                                                                        TNCO URT OF
                                                                                   W ORKERS' OOYP,INSATIO N
                                                                                          <CLAIMS

                                                                                            Time 7: 15 . W
                                                                                                         .

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

Brenda N owman,                                     )    Docket No. 2016-06-1944
           Employee,                                )
v.                                                  )
Gap, Inc.,                                          )    State File No. 61440-2016
             Employer,                              )
And                                                 )
Safety National Casualty Corp.,                     )   Judge Kenneth M. Switzer
            Carrier.                                )


        EXPEDITED HEARING ORDER DENYING REQUESTED RELIEF


       This case came before the undersigned Workers' Compensation Judge on March
29, 2017, on Ms. Nowman's Request for Expedited Hearing. The present focus of this
case is her entitlement to medical and temporary disability benefits. Gap, Inc. asserted
she failed to provide adequate notice and she did not sustain an injury arising primarily
out of and in the course and scope of employment. For the reasons set forth below, the
Court finds she is not likely to prevail at a hearing on the merits that she gave sufficient
notice of an incident resulting in injury that occurred at work or that she suffered an
injury as defined in the Workers' Compensation Law. Accordingly, her request for
benefits is denied.

                                          History of Claim

       Ms. Nowman worked at Gap as a merchandise handler. She testified that on May
26, 2016, at approximately 7 p.m., she reached over to her left side to grab a box to scan
when she felt a sharp pain in her low back that brought her to her knees for five to ten
minutes. 1 She walked to the office and spoke with her supervisor, Eddie Whitehead, and
told him, "I'm in pain, [and] that I needed to go to the E.R. He then said, 'OK. I hope
1
  Although Ms. Nowman listed the date of injury on her Petition for Benefit Determination as May 25,
2016, she insisted at the Expedited Hearing that the actual date of injury is May 26, 2016. The emergency
room records from Sumner Regional Medical Center stated the date of service as May 25, 2016, time
10:02 p.m. The Court finds the date of injury is May 25, 2016.

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you feel better,' and turned around and walked out." Ms. Nowman's affidavit contains
similar statements regarding the mechanism of injury and the manner in which she
notified her supervisor. Ms. Nowman acknowledged she did not tell him her pain related
to a work event. She further acknowledged an understanding that Gap's policy is to
report work injuries "the day of or the day after," as contained in Gap's employee
handbook. Mr. Whitehead did not testify.

      Ms. Nowman sought treatment at Sumner Regional Medical Center later that
evening, where providers noted, in part:

        The patient presents with pain that appears to be acute on chronic. The
        symptoms are located in the low back. Onset: the symptoms/episode
        began/occurred one year ago when the patient fractured her coccyx. She
        states that the pain began gradually increasing one month ago and became
        even worse today after pushing and pulling on boxes. . . . The problem
        was sustained from a chronic condition.

The notes further document provider's impression as "low-back back, problem is an
acute exacerbation," but are silent regarding excusing Ms. Nowman from work or
restricting her work abilities. (Ex. 2 at 33-35.)

       Mitchell Spivey, Gap's Human Resources Manager, testified that Ms. Nowman
came to him on May 26 and provided an off-work slip from the hospital, but no one
offered the slip into evidence. 2 According to Mr. Spivey, Ms. Nowman "did not say she
injured herself' at that time, and they arranged for paid time off for the next few days.
Mr. Spivey spoke with her again after a May 31 visit with her primary care physician.
He maintained Ms. N owman did not state in either conversation that she suffered a
workers' compensation claim and that if she had, he would have followed a different
procedure. Tiffany Brawner, Gap's Campus Safety Leader, who manages the initial
stages of workers' compensation claims, similarly testified that Gap's process for work
accidents is distinct from when an employee reports a non-work-related health condition,
which may or may not be documented.

       After the emergency room treatment, Ms. Newman followed up with her primary
care physician, Dr. John Taylor, with a series of office visits over the next two months.

2
  Gap filed a Motion to Amend Witness List before the Expedited Hearing to allow Mr. Spivey to testify
although Gap did not identify him as a potential witness in its March 15 Witness List. Gap argued his
testimony was necessary because Ms. Nowman testified in her deposition that she gave notice of her work
injury to Mr. Spivey. Tennessee Compilation Rules and Regulations 0800-02-21-.14(l)(b) (2016)
requires a party opposing a hearing request to list witnesses it intends to call at an expedited hearing.
Subsection (c) further states that witnesses not disclosed in accordance with the rule "will not be
considered unless good cause is shown as to why the evidence/witness was not disclosed." The Court
found good cause and granted Gap's motion.

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!d. at 4 7-5 5. At the May 31 initial visit, the note states that she complained of "low-back
pain for 5 days new onset[.] ... Started while she was working at GAP last Thursday."
Dr. Taylor wrote a letter stating she "was seen in the office today [and] was found to have
a back injury with muscle spasm and sacroiliitis of the right side." The letter excused
Ms. Nowman from work through June 3 but did not state that the injury related to work.
!d. at 70. During subsequent visits, Dr. Taylor referred Ms. Nowman to physical therapy,
completed FMLA papers, placed her on restrictions, and finally recommended she
consult a back specialist.

       At some point in early June, Ms. Nowman began short-term disability leave.
Neither party moved into evidence a copy of her application. Ms. Nowman was unable
to recall if she certified on the application whether she indicated the injury was work-
related. She testified that at some point, she spoke with "Chelsea" in Human Resources
at Gap, who told her that, "I can't do both - I can't do short-term disability and also
workmen's comp, so I chose workmen's comp."

       According to Mr. Spivey, Ms. Nowman contacted Gap on August 2 to request a
referral to a back specialist as recommended by Dr. Taylor. Ms. Nowman testified she
did not recall that conversation. At that time, an unidentified Gap employee prepared an
"Accident/Incident Investigation Report," which Gap attempted to introduce into
evidence through Ms. Brawner's testimony, but could not establish the business-record
exception to the hearsay rule.

        As a result of Ms. Nowman's contact on August 2, Ms. Brawner offered a panel,
and Ms. Nowman selected Family Health Care of Gallatin. Ms. Nowman saw Susan
Anderson, FNP on August 4. Gap sought to introduce medical records from this visit
into evidence, but the Court ruled they are inadmissible because they did not bear a
physician's signature nor were they accompanied by a certification from the physician or
records custodian that they are true and accurate. See Tenn. R. & Regs. 0800-02-21-
.16(b) (2016). The Court, likewise, declined to admit a "check-the-box" causation letter
from providers at Family Health Care, finding sufficient indicia to undermine the letter's
reliability.

      After the Family Health Care visit, Gap denied Ms. Nowman's claim on August
11. She has not returned to work at Gap.

        During the hearing, Ms. Nowman repeatedly denied prior back problems.
However, Gap identified several medical records indicating a history of emergency room
and regular doctor visits for low-back complaints. (Ex. 2 at 10-32, 37-46.) The earliest
record documents emergency care at Sumner Regional Medical Center in October 2013,
stating, "[S]he was lying on her stomach at home with [sic] her 3-year-old fell onto her
md back." The next record, from April 2014, states she presented to the E.R. "with
complaints of Back Pain- no know [sic] injury, was drinking on Friday .... Unknown

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is [how] she injured herself or fell, but she woke the next morning with pain in her low
back and over her tailbone." Then in September 2015, Ms. Nowman returned to the
emergency room "with pain in her tailbone after she twisted at work. She has history of
coccyx fracture in the past." Ms. Nowman followed up with Dr. Taylor after the incident
in 2015. Notes from an October 15, 2015 visit contain a history of her lifting a sixty-
pound box at work followed by sharp back pain. Ms. Nowman either stated she did not
recall these visits and/or insisted that some of these visits related to her "tailbone" only or
her hip. She acknowledged that some of them were for back issues.

                                  Findings of Fact and Conclusions of Law

       As in all workers' compensation actions, Ms. Nowman, as the injured employee,
has the burden of proof on the essential elements of her claim. Scott v. Integrity Staffing
Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). However,
since this is an expedited hearing, she only has to come forward with sufficient evidence
from which the Court can determine she is likely to prevail at a hearing on the merits in
order to meet her burden. McCord v. Advantage Human Resourcing, 2015 TN Wrk.
Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

        Resolution of the two central issues in this case (adequate notice and medical
causation) requires that this Court make credibility determinations. The Tennessee
Supreme Court gave indicia of witness credibility, so that trial courts consider whether a
witness is "calm or agitated, at-ease or nervous, self-assured or hesitant, steady or
stammering, confident or defensive, forthcoming or deceitful, reasonable or
argumentative, honest or biased." Kelly v. Kelly, 445 S.W.3d 685, 694-695 (Tenn. 2014).
In this case, this Court observed Ms. Nowman's demeanor and finds that, in addition to
frequently being unable to recall critical events, she appeared agitated, nervous, hesitant,
defensive and argumentative. She was generally not a credible witness.

       Applying the general principles of burden of proof and assessing credibility to the
facts of this case, the Court first considers whether she gave legally sufficient notice. The
Workers' Compensation Law mandates that "[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." Tenn. Code Ann. § 50-6-201(a)(l) (2015). The statute additionally
provides that "[n]o compensation shall be payable ... 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." Id. (emphasis added). 3 The
notice requirement contained in section 50-6-201 "exists so that the employer will have
the opportunity to make a timely investigation of the facts while still readily accessible,

3
    For injuries occurring after July 1, 2016, the notice requirement is fifteen days rather than thirty.

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and to enable the employer to provide timely and proper treatment for the injured
employee." Buckner v. Eaton Corp., et al., 2016 TN Wrk. Comp. App. Bd. LEXIS 84, at
*6-7 (Nov. 9, 2016).

        The credibility finding is significant to resolve the notice issue because Ms.
Nowman did not provide written notice as the statute generally requires. Thus, the Court
looks to whether Gap had actual notice and must discern this from the competing
versions of conversations between Ms. Nowman and other Gap employees. By her own
admission, Ms. Nowman did not tell Mr. Whitehead that she injured her back while
reaching over to grab a box on May 25. Rather, she merely told him she was "in pain."
The Court further accredits Mr. Spivey's testimony and finds that Ms. Nowman did not
convey to him on May 26 or after May 31 that the work incident caused her back pain. It
is also telling to this Court that Ms. Nowman admitted she "chose" workers'
compensation over short-term disability. In sum, Ms. Nowman first told Gap her back
pain was work-related on August 2, well past the timeframe required under the Workers'
Compensation Law. Therefore, the Court holds at this time she is not likely to prevail at
a hearing on the merits regarding notice and, accordingly, no benefits are payable under
the statute.

        As to the remaining issue in this case, Ms. Nowman disputed that she suffered
preexisting back problems. She testified that she could not recall visits to the emergency
room or Dr. Taylor complaining of low-back pain, or she attempted to characterize the
visits as treatment only for her "tailbone" or hip. The Court finds her testimony was not
credible and accredits the medical records themselves as persuasive proof that she had an
approximate three-year history of low-back problems predating the alleged incident.

        The Workers' Compensation Law requires that, for the Court to find Ms. Nowman
sustained a compensable injury, she must show that she suffered an "injury by accident ..
. arising primarily out of and in the course and scope of employment[.]" Tenn. Code
Ann. § 50-6-102(14) (2016). She must further show that "the employment contributed
more than fifty percent (50%) in causing the death, disablement or need for medical
treatment, considering all causes," and this must be shown "to a reasonable degree of
medical certainty." Id. at § 50-6-102(14)(B)-(C). Applying these standards, the Court
concludes Ms. Nowman failed to demonstrate at this time that the employment is more
than fifty percent responsible for her need for treatment, given her previous back
problems, and that, other than noting the history she gave, the providers she saw after
May 25, 2016, did not relate her condition to work.

       Thus, the Court concludes she failed to demonstrate a likelihood of success at a
hearing on the merits on the issues of adequate notice and medical causation, and
therefore, at this time, the Court denies her requested relief.

IT IS, THEREFORE, ORDERED as follows:

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   1. Ms. Nowman's request for workers' compensation benefits is denied at this time.

   2. This matter is set for a Scheduling Hearing on May 22, 2017, at 8:30a.m. Central.
      You must call 615-532-9552 or toll-free at 866-943-0025 to participate in the
      Hearing. Failure to call may result in a determination of the issues without
      your further participation.

                                  ENTERED this the 4th day of April, 2017.



                                     ge Kenneth M. Switzer
                                  Court of Workers' Com pens



                                      APPENDIX

Exhibits:
   1. Ms. Nowman's Affidavit
   2. Compilation Medical Records
   3. First Report of Injury
   4. Wage statement
   5. C-42 Choice of Physician
   6. Denial
   7. Degenerative Disc Disease-Topic Overview
   8. Facebookposts, March 17, September 18,2015, October 2, 2015
   9. Facebook post, September 11, 2016
   10. Facebook post, September 15
   11. Facebook posts, September 23, November 29, 2016, December 25, 2016
   12. Family Health Care of Gallatin records (for identification only; includes causation
       letter contained within DCN)

Technical record:
   1. Petition for Benefit Determination
   2. Employer's Position Statement
   3. Dispute Certification Notice
   4. Request for Expedited Hearing
   5. Employer's Response to Employee's Request for Expedited Hearing
   6. Employer's Witness List
   7. Employer's Motion to Amend Witness List


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                            CERTIFICATE OF SERVICE

       I certify that a true and correct copy of the Expedited Hearing Order Denying
Requested Relief was sent to the following recipients by the following methods of service
on this the 4th day of April, 20 17.

Name                        Certified Via       Via     Service sent to:
                            Mail      Fax       Email
Brenda Nowman,                                    X     Browneyegirl813@yahoo.com
Self-represented
Stephen Morton,                                   X     Ste12hen. morton@mgclaw .com
Employer's Counsel



                                          enny; hrum, Clerk of Court
                                         Court of Workers' Compensation Claims
                                         WC.CourtClerk@tn.gov




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