                                                                                                        FILED

                                                                                                  November 29, 2016

                                                                                                    I COURT OF
                                                                                                     WORKERS'
                                                                                                   COMPE SATIO
                                                                                                      CL.ill1S

                                                                                                    Time: 8:24AM


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


DARLENE NOEL,                                       )         Docket No. 2016-08-0069
      Employee,                                     )
v.                                                  )
EAN HOLDINGS, LLC,                                  )          State File No. 9570-2015
      Employer,                                     )
And                                                 )
FARMINGTON INS. CO.,                                )          Judge Allen Phillips
       Insurance Carrier.                           )


             EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS



        This matter came before the undersigned Workers' Compensation Judge on
November 7, 2016, upon the Request for Expedited Hearing filed by Darlene Noel
pursuant to Tennessee Code Annotated section 50-6-239 (2015). Ms. Noel
requested medical and temporary disability benefits for an alleged head injury on
January 23, 2015. EAN Holdings disputed her entitlement to the requested
benefits on grounds that she failed to produce adequate proof of medical
causation. Accordingly, the central legal issue is whether Ms. Noel came forward
with sufficient evidence to show entitlement to any of the requested benefits. For
the following reasons, the Court holds Ms. Noel came forward with sufficient
evidence to show she is likely to prevail at a hearing on the merits regarding
entitlement to certain medical benefits but that she has not come forward with
sufficient evidence to show entitlement to temporary disability benefits. 1

                                     History of Claim

       At all relevant times, Ms. Noel worked for EAN at its Alamo Rental Car
location at Memphis International Airport. On January 23, 2015, Ms. Noel was

1
 The Court provides a complete listing of the Technical Record and Exhibits admitted at the Expedited
Hearing in an Appendix attached to this Order.

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walking toward a set of automatic sliding glass doors in the common area of the
rental car service desks. Whether by her inadvertence, malfunction of the doors, or
a combination thereof, Ms. Noel walked into a less than fully opened door and
struck her head against the glass.

      Initially, Ms. Noel attributed the event to her own clumsiness and
embarrassingly "laughed it off." However, as time passed, she felt dizzy and as if
her head were "spinning." Ms. Noel was transported to Methodist Hospital by
ambulance. No records of that visit are in evidence, but Ms. Noel testified
emergency room providers told her to follow up with her personal physician.

       Gloria Denby works for Hertz Rental Car. Her workstation was located
next to Ms. Noel's workstation at Alamo. On January 23, 2015, she saw Ms. Noel
strike her head against the glass door. When describing the injury, Ms. Denby
described a "hard blow" to the head that left Ms. Noel "dazed" and "out of it." She
recalled Ms. Noel requiring assistance after she struck her head.

       Following the event, EAN completed a First Report of Injury. (Ex. 1.) The
report indicates January 23, 2015, was the date EAN became aware of the injury.
Id. Ms. Noel testified that "Ms. Laura [sic] Smith" told her to "'use [her] medical
benefits under my medical insurance." 2 Ms. Noel's testimony was unclear as to
whether the conversation with Ms. Smith pertained to an incident of January 16,
2015, when she injured her neck at EAN or whether it pertained to the instant
incident. The Court heard a claim for the January 16, 2015 neck injury
contemporaneous with this claim.

        Regarding the alleged head injury of January 23, Ms. Noel testified to out-
of-pocket expenses and unpaid deductibles but presented no evidence of those
amounts. She took one month of "FMLA" time off from work between February
2015 and March 2015, a period when she also suffered effects from the January
16, 2015 incident. Otherwise, Ms. Noel did not miss work and remains employed
full-time at EAN. She continues to experience headaches and to receive medical
treatment from personal physicians.

     The only medical record placed into evidence was a note from Debora
Dowda, FNP from February 6, 2015. 3 In that note, Ms. Dowda recorded Ms. Noel

2
  Ms. Noel did not identify Ms. Smith in her testimony. However, the Court notes Ms. Lori Smith
completed a First Report of Injury regarding the neck injury incident of January 16, 2015. See Ex. 1. On
that report, Ms. Smith identifies herself as a "Supervisor II" at "The Frank Gates Service Co."
3
  EAN objected to admission of this record on grounds that the record did not bear "an electronic
signature." The Court overruled the objection because the record bore the typed name of Debora Dowda,
FNP with the notation "Electronically signed by: Debra Dowda." (Ex. 3 at 6.) EAN also objected to
admission of the record on grounds that it was drafted by a nurse practitioner rather than a physician. As
such, the record could not support a finding of causation. The Court overruled the objection because

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presented in, "follow-up of her work related injury. She has been unable to work
due to HA and skeletal pain." (Ex. 3 at 1.) Ms. Dowda assessed chest wall pain,
hypertension, diabetes, arthralgia of the shoulder region, headache syndromes, and
cervicalgia. I d. at 5. The plan was for Ms. Noel to return in one month "for release
for work if appropriate," to "await FMLA papers," and to refer to "neuro and
podiatry." Id. at 6. The "projected date to return to work" was March 2, 2015. Id.

       Ms. Noel testified she had seen a neurologist who informed her that she had
suffered a series of"mini-strokes." The timing of these events was unclear, but she
did not attribute them to the event of January 23, 2015. However, Ms. Noel wants
EAN to pay her medical bills and provide ongoing treatment for any head injury
that may have resulted from striking the glass door.

       For its part, EAN argued that a "mere notation in a medical record [of an]
on-the-job injury is insufficient to prove work-relatedness" in the absence of an
expert medical opinion causally linking the incident to the injury. (T.R. 5 at 6.)
Because there was "no identified injury and no medical reference of any kind to
establish any injury or its cause," the Court must deny Ms. Noel's claim. Id. at 7.

        EAN also argued the area where the accident occurred was a ''public area,"
and, as such, removed Ms. Noel's injury from being incident to her employment.
EAN argued this fact prevents any award of benefits to Ms. Noel.

                         Findings of Fact and Conclusions of Law

                                          Standard applied

        An injured worker has the burden of proof on every essential element of her
claim. Tenn. Code Ann. § 50-6-239(c)(6) (2015); see also Buchanan v. Car/ex
Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *5
(Tenn. Workers' Comp. App. Bd. Sept. 29, 2015). These elements include Ms.
Noel showing that her alleged injury arose primarily out of and in the course and
scope of her employment at EAN. Tenn. Code Ann. § 50-6-102(14) (2015). She
must also show her injury was caused by an incident, or specific set of incidents,
identifiable by time and place of occurrence Tenn. Code Ann. § 50-6-102(14)(A)

Tennessee Compilation Rule & Regulation 0800-02-21-16(6)(b) (2015) provides that medical records
signed by a physician shall be admissible. See also Morgan v. Macy's, No. 2016-08-0270, 2016 TN Wrk.
Comp. App. Bd. LEXIS 39, at *13 (Tenn. Workers' Comp. App. Bd. Aug. 31, 2016)(Medical records
submitted as evidence must bear an indicia of reliability.). Here, Ms. Dowda's name appeared not only in
the electronic signature form but also on a record in the signature line of Dr. Douglas O'Dea, identified by
Ms. Noel as the medical doctor who treated her. The Court found the record bore a sufficient indicia of
reliability. Notably, EAN argued the merits of the subject record in its "Position Statement." Regardless of
admissibility, the record was not dispositive to the outcome. The Court addresses the remaining issue of the
sufficiency of a nurse practitioner's opinions in the "Analysis" section ofthis Order.

                                                         3
(2015). Further, she must show, "to a reasonable degree of medical certainty that
[her alleged work injury] contributed more than fifty percent (50%) in causing the
... 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 treating physician, it is more likely
than not considering all causes as opposed to speculation or possibility. Tenn.
Code Ann.§ 50-6-102(14)(D) (2015).

        When considering the evidence, the Court finds Ms. Noel established a
specific incident on January 23, 20 15. She described an incident where she struck
her head on a glass door. Ms. Denby corroborated her testimony and actually
described a more violent impact and dramatic aftermath than did Ms. Noel. The
Court finds Ms. Noel and her witness very credible. They corroborated each
other's testimony regarding the exact mode of injury, Ms. Noel's reaction, and
quite importantly, Ms. Noel's behavior after the incident. Accordingly, Ms. Noel
established the specific incident criteria of the statutory definition of injury.

       Turning to the "arising primarily out of' requirement, the Court finds Ms.
Noel has not, at this interlocutory stage of the proceedings, established an injury
contributing more than fifty percent to her disablement or need for medical
treatment. Ms. Noel submitted only one medical record from a nurse practitioner.
A nurse's opinion is insufficient to establish causation. Richberger v. West Clinic,
P.C., 152 S.W.3d 505, 512 (Tenn. Ct. App. 2004). Moreover, even if the medical
record were legally sufficient, there is no opinion establishing causation contained
therein. Thus, the Court finds Ms. Noel has not established that she sustained an
injury arising primarily out of her employment.

        However, at this Expedited Hearing, Ms. Noel need not prove every
element of her claim by a preponderance of the evidence. Instead, she must come
forward with sufficient evidence from which the court can determine she is likely
to prevail at a hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(l) (2015);
McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk.
Comp. App. Bd. LEXIS 6, at *9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).
This lesser evidentiary standard "does not relieve an employee of the burden of
producing evidence of an injury by accident that arose primarily out of and in the
course and scope of employment at an expedited hearing, but allows some relief to
be granted if that evidence does not rise to the level of a 'preponderance of the
evidence."' Buchanan, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6. Guided
by this authority, the Court turns to whether Ms. Noel came forward with
sufficient evidence from which it might determine she would prevail at a hearing
on the merits regarding her claim for any medical benefits.

      As noted, Ms. Noel established a specific incident. She also established that

                                            4
EAN had notice of her injury. EAN offered no proof as to its actions after the
incident. After an employee provides notice of an injury to an employer,
Tennessee Code Annotated section 50-6-204(a)(l)(a) (2015) requires an
"employer or the employer's agent ... [to] furnish, free of charge to the employee,
such medical and surgical treatment ... made reasonably necessary by accident."
This requirement attaches to a claim after the employer has adequate time for
investigation of the employee's allegations. McCord, at *12. At that point, "[t]he
injured employee shall accept the medical benefits ... provided that in any case
when the employee has suffered an injury and expressed a need for medical care,
the employer shall designate a group of three (3) or more independent reputable
physicians . . . from which the employee shall select one (1) to be the treating
physician." Tenn. Code Ann.§ 50-6-204(a)(3)(A)(i) (2015).

        EAN did not provide Ms. Noel a panel of physicians but, instead argued
that she presented no proof of a causal relationship between her work and the
injury. In resolving the dispute, the Court looks to McCord, the formative case on
parties' obligations at the expedited hearing stage. There, our Appeals Board held:

      To date, there is no proof in the record that Employee's medical
      condition is causally-related to the alleged work accident. However,
      whether the alleged work accident resulted in a compensable injury
      has yet to be determined. Therefore, while Employee has not proven
      by a preponderance of the evidence that she suffered an injury
      arising primarily out of and in the course and scope of employment,
      she has satisfied her burden at this interlocutory stage to support an
      Order compelling Employer to provide a panel of physicians.

McCord, at *17.

       In McCord, as in this case, the employee established a specific work
incident. Likewise, both the McCord employee and Ms. Noel provided notice of
the incident. Finally, both the McCord employee and Ms. Noel were forced to seek
medical attention on their own for an alleged injury. Such proof is sufficient to
require EAN to provide a panel of physicians to Ms. Noel. See McCord, at *17.

      Further, the Court finds guidance in Lewis v. Merry Maid, No. 2015-06-
0456, 2016 TN Wrk. Comp. App. Bd. LEXIS 19 (Tenn. Workers' Comp. App.
Bd. Apr. 20, 2016). In that case, our Appeals Board affirmed an order that the
employer provide a panel of physicians by stating:

      [T]he trial court determined that Employee did come forward with
      sufficient evidence to establish her entitlement to a panel of
      physicians. Specifically, the trial court noted Employee's testimony

                                            5
       that she experienced back pain after [performing her job] ... and
       that she promptly informed her [supervisors] of her back pain.
       Employer did not refute these allegations.

!d. at *7.

         As did the employee in Lewis, Ms. Noel established pain after a specific
incident and that EAN had notice, and the Court finds that EAN did not refute any
of this evidence.

       Finally, the Court respectfully disagrees with EAN's argument that the
location of the incident, a public area, removes Ms. Noel from the coverage of the
law. Our Supreme Court has found that injuries sustained by employees who are
required to traverse a "public way" to access their work location are compensable
"because such travel [is] necessary" for the employee to report to work. Copeland
v. Leaf, Inc., 829 S.W.2d 140, 144 (Tenn. 1992). Here, the proof establishes the
door that Ms. Noel struck is used by the public and by employees.

       Taken in its totality, the Court finds that Ms. Noel has come forward with
sufficient evidence at this Expedited Hearing to show she is likely to prevail at a
hearing on the merits that she is entitled to a panel of physicians to evaluate her
injury of January 23, 2015.

                              Temporary disability benefits
        Under Tennessee law, to establish entitlement to temporary total benefits
(TTD), Ms. Noel must show (1) she was totally disabled to work by a
compensable injury; (2) a causal connection between the injury and her inability to
work; and, (3) the duration of that period of disability. Jones v. Crencor Leasing
and Sales, No. 2015-06-0332, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7
(Tenn. Workers' Comp. App. Bd. Dec. 11, 2015). At this time, Ms. Noel has not
come forward with any evidence to show entitlement to temporary disability
benefits. There is no medical opinion that provides a causal connection between
her alleged injury and any inability to work.


IT IS, THEREFORE, ORDERED as follows:
   1. Ms. Noel shall receive medical benefits from EAN for treatment of her
      injury of January 23, 2015, by EAN providing a panel of physicians
      qualified to treat head injuries from which she might choose the authorized
      physician.

   2. Ms. Noel's request for temporary disability benefits is denied at this time.

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   3. This matter is set for a Scheduling (Status) Hearing on February 6, 2017, at
      11:00 a.m. Central time.           ( 1
                                         \   \
ENTERED this the 29th day of

                                         \'
                          Allen Phillips, Judge
                          Court of Workers' Compensah



Scheduling (Status) Hearing:

      A Scheduling/Status Hearing has been set with Judge Allen Phillips,
Court of Workers' Compensation Claims. You must call toll-free at 731-422-
5263 or toll-free 855-543-5038 to participate in the 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

                                             7
   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 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 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.




                                      8
                                             APPENDIX

Exhibits:
   1. First Report of Injury (dated January 23, 2015);
   2. Wage Statement (DOl: January 23, 2015);
   3. Medical Records of Debora Dowda, FNP; and,
   4. Certified copy of"Final Decree" in Knox Co. Circuit Court, No. 2-90-15.


Technical record: 4
   1. Petition for Benefit Determination;
   2. Dispute Certification Notice;
   3. Request for Expedited Hearing;
   4. Employer's Position Statement (September 14, 2016); and,
   5. Employer's Pre-Hearing Brief(November 3, 2016).




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.




                                                        9
                              CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of this Expedited Hearing Order
was sent to the following recipients by the following methods of service on this the
29th day ofNovember, 2016.


             Name          Certified   First Class    Via       Service Sent To:
                            Mail          Mail       Email
Ms. Darlene Noel,              X           X                 3896 Brookmeade,
Self-represented                                             Memphis, TN 38127
Employee
Charles E. Pierce, Esq.,                              X      cepierce@mijs.com
Attorney for Employer


                                     12~ ~ijk-- '
                                    ~~m, Clerk of Court
                                    Court of Workers' Compensation Claims
                                    WC.CourtCierk@tn.gov




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