                    COURT OF WORKERS’ COMPENSATION CLAIMS
                      DIVISION OF WORKERS' COMPENSATION


EMPLOYEE: GAYNELL PORTILLA                                     DOCKET NO. 2015-06-0024

                                                               STATE FILE NO. 92928-2014

EMPLOYER: TYSON FOODS, INC.                                    DOI: NOVEMBER 18, 2014

                                                               JUDGE: BAKER

INSURANCE CARRIER: SELF-INSURED



                                EXPEDITED HEARING ORDER

        THIS CAUSE came before the Court upon the Request for Expedited Hearing filed on
April 7, 2015, by Gaynell Portilla, the employee, pursuant to Tennessee Code Annotated section 50-
6-239. The Court convened an in-person evidentiary hearing on May 20, 2015. Ms. Portilla
appeared pro se and attorney Terry Hill represented the employer, Tyson Foods, Inc. (Tyson). Upon
review of Ms. Portilla’s request for expedited hearing, the evidence presented at the hearing, and in
consideration of the applicable law, the Court enters the following order holding that Ms. Portilla is
not entitled to medical benefits.

                                                Issues

        Ms. Portilla seeks medical benefits. The propriety of awarding benefits depends upon the
resolution of one central issue: whether Ms. Portilla suffered an injury arising primarily out of and in
the course and scope of her employment for Tyson.

                                        Evidence Submitted

The Court accepted the following exhibits into evidence:

               Exh. 1, Medical Records of Gaynell Portilla (29 pages)
               Exh. 2, Affidavit of Kimberly Pedersen and Video Surveillance footage
               Exh. 3, Form C-42, Choice of Physician, November 25, 2014
               Exh. 4, Form C-20, FROI, November 26, 2014
               Exh. 5, Form C-23, Notice of Denial of Claim for Compensation, December 3, 2014
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                Exh. 6, Team Member Statement of Injury or Illness

The Court designated the following as the Technical Record:

               Petition for Benefit Determination, January 15, 2015
               Dispute Certification Notice, March 18, 2015
               Request for Expedited Hearing, April 7, 2015.

The Court did not consider attachments to the documents contained within the Technical Record
unless admitted into evidence during the hearing.

                                          History of Claim

       Ms. Portilla worked at the Tyson plant at the time the incident at issue occurred. She is
seventy-six (76) years old.

        Ms. Portilla testified that when she went to work on the morning of November 18, 2014, the
“stairway was so slippery that we had to hold on with both hands...just to get up the stairway.” The
“chaplain” was at the top of the stairs. Ms. Portilla and her co-workers told the chaplain about the
“issue of the stairway being so slippery” and he “took care of that for us.” Ms. Portilla suspected
that the person who cleaned the stairway used an inappropriate cleaning agent but did not present
any evidence affirming her belief. After climbing the stairs that morning, Ms. Portilla worked in the
plant “boxing” items until her lunch break.

         When the lunch break began at around 11:30 a.m., Ms. Portilla ascended four (4) flights of
stairs with her co-workers who were all making their way to the break room. Ms. Portilla laughed
and talked with her co-workers as she ascended the stairs. All of them were excited about the
upcoming Thanksgiving holiday. When they reached the landing at the top of the stairs, Ms. Portilla
testified that she stepped with her right foot “on something slippery” and her “right foot
gave…slipped.” When this happened, Ms. Portilla stated that she went forward and tried to grab the
banister. Ms. Portilla, however, could not reach the banister and fell backwards. Ms. Portilla
suffered injury to her lower back and elbow. Additionally, the hardhat she wore struck her nose
when she fell, causing it to bleed.

       After she fell, Ms. Portilla testified that several people came to her aid. She stated, “I kind of
had the breath knocked out of me.” Ms. Portilla further testified that, when she caught her breath,
Nurse Pederson and a supervisor, Janice, were inspecting the area of the floor where she fell.
According to Ms. Portilla, her supervisor stated that she could not find anything on the floor and
asked Ms. Portilla to “look at the bottom of her shoes.” Ms. Portilla testified that she then put her
“two fingers…on my shoes…and I rubbed my fingers together and it was the greasy substance of
some kind of meat.” Ms. Portilla claimed that her supervisor then looked at her and said, in an
aggressive manner, “you didn’t slip and fall did you, huh!”


      Video cameras in the plant captured the fall. (Exh. 2). Additionally, the plant nurse,
Kimberly Pederson, submitted an affidavit stating that she inspected the area where Ms. Portilla fell

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shortly after the incident. (Exh. 2). In the affidavit, Ms. Pederson further stated that she found no
substances on the floor, or irregularities in the floor that would have caused Ms. Portilla to trip, or
slip, and fall.

         After the fall, Ms. Portilla went to the onsite nurses’ station for triage. While at the nurses’
station, Ms. Portilla testified that another Tyson employee, Jeff Rowan, entered and told Ms. Portilla
that he believed she had “passed out.” Ms. Portilla denied that she had passed out. Mr. Rowan
allegedly repeated that he thought Ms. Portilla had passed out and then left the nurses’ station.

        Following the accident, Ms. Portilla filled out a form entitled “Team Member Statement of
Injury or Illness.” (Exh. 6). In the statement, Ms. Portilla wrote “top of stairs sliped [sic] and fell or
triped [sic] and fell” as the description of what she was doing when the accident occurred. In the
description of how the injury occurred, she wrote “I either sliped [sic] or triped [sic] and fell.”
Finally, in the portion of the form that asks if anything could have prevented the accident, Ms.
Portilla wrote, “I don’t know.”

        On cross-examination at the Expedited Hearing, Ms. Portilla admitted that she had already
cleared the stairs when the fall occurred, but maintained that a “greasy” substance caused her to fall.
 Ms. Portilla stated that, after leaving the plant floor, the workers have to apply a cleaning solution,
which she described as “foam that shoots out to disinfect our shoes.” Ms. Portilla stated that
sometimes the cleaning solution is available and sometimes it is not. She could not remember if the
cleaning solution was available on the day of the accident.

        Tyson provided Ms. Portilla medical care and physical therapy after the accident. (Exh. 1).
Then, on December 3, 2014, Tyson issued a notice denying the claim. (Exh, 5). As the basis for
denial, Tyson wrote, “Investigation found that injury was the result of her tripping over her own feet
and not the result of her work or work environment.”

                                     Ms. Portilla’s Contentions

       Ms. Portilla argues that she suffered a compensable workplace injury when she fell on
November 18, 2014, and is entitled to medical benefits. She claims that a slippery substance on the
bottom of her shoes that she believes came from inside the plant caused her to fall.

                                         Tyson’s Contentions

        Tyson maintains that the injury is idiopathic in nature and, therefore, not compensable. It
relies on the video surveillance and the affidavit of Kimberly Pederson in support of its defense.




                             Findings of Fact and Conclusions of Law

                                           Standard Applied

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        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). Tennessee Code Annotated section 50-6-239(c)(6) provides that, “[u]nless the statute
provides for a different standard of proof, at a hearing the employee shall bear the burden of proving
each and every element of the claim by a preponderance of the evidence.” Tenn. Code Ann. § 50-6-
239(c) (2014). The standard of proof for the issuance of interlocutory orders at expedited hearings is
different from the standard of proof at compensation hearings. McCord v. Advantage Human
Resourcing, No. 2014-06-0063 (Tenn. Work. Comp. App. Bd., March 27, 2015). A workers’
compensation judge may enter an interlocutory order for medical or temporary benefits upon a
determination that the injured employee would likely prevail at a hearing on the merits. Tenn. Code
Ann. § 50-6-239(d)(1) (2014); cf. McCall v. Nat’l Health Care Corp., 100 S.W.3d 209, 214 (Tenn.
2003).

                                          Factual Findings

     The Court finds that Ms. Portilla fell after reaching the top of stairs in the Tyson plant on
November 18, 2014. The Court finds that a special hazard did not contribute to the fall.

                                     Application of Law to Facts

        In order to receive temporary workers’ compensation benefits in a pretrial setting, the
employee must show that she is likely to prevail at a trial on the merits of his claim. See McCall,
100 S.W.3d at 214. An “injury” or “personal injury” by accident is compensable whenever “the
injury is caused by a specific incident, or set of incidents, arising primarily out of and in the course
and scope of employment.” Tenn. Code Ann. § 50-6-102(13) (2014). “An injury arises primarily
out of and in the course and scope of employment only if it has been shown by a preponderance of
the evidence that the employment contributed more than fifty percent (50%) in causing the injury,
considering all causes[.]” Id. (internal quotations omitted). In Tennessee, there is no formula that
clearly defines the line between accidents and injuries that arise out of and in the course of
employment, and those that do not. Instead, each case must be decided with respect to its own
attendant circumstances and not by resort to a formula. Bell v. Kelso Oil Co., 597 S.W.2d 731, 734
(Tenn. 1980).

         It is well established that the mere presence of the employee in the workplace at the time the
injury occurs does not establish that the injury arose out of the employment. Instead, the injury must
result from a danger or hazard peculiar to the work or be caused by a risk inherent in the nature of
the work. Thornton v. RCA Serv. Co., 221 S.W.2d 954, 955 (Tenn. 1949). For example, the
Supreme Court affirmed the trial court’s decision denying recovery to an employee who fell at work
due to a pre-existing spinal condition that caused his legs to tire and go numb. See Greeson v. Am.
Lava Corp., 392 S.W.2d 931, 935 (Tenn. 1965). In fact, “Tennessee courts have consistently held
that an employee may not recover for an injury occurring while walking unless there is an
employment hazard, such as a puddle or step, in addition to the injured employee’s ambulation.”
Wilhelm v. Krogers, 235 S.W.3d 122, 128-29 (Tenn. 2007). Furthermore, idiopathic injuries—those
with an “unexplained origin or cause”—do not arise out of the work unless there is “some condition

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of the employment that presents a peculiar or additional hazard.” Veler v. Wackenhut Serv’s, Inc.,
2011 Tenn. LEXIS at *3 (Tenn. Workers’ Comp. Panel Jan. 28, 2011) (holding that an employee’s
knee injury suffered while rising from his chair to retrieve files on a shelf at work was not
compensable).

       Here, Ms. Portilla testified that a slippery substance on her shoe caused her to fall. The
Court does not find her argument persuasive.

        The facts of this case care very similar to those in Dickerson v. Trousdale Mfg. Co., 569
S.W.2d 803 (Tenn. 1978). In Dickerson, an employee fell down in a workplace bathroom and
injured her back. Id. at 804. No one witnessed the fall and the employee testified that the floor of
the bathroom was wet, slippery and uneven. Id. Two coworkers who found the employee
unconscious on the bathroom floor testified that the floor of the bathroom was level and dry. Id.
Another coworker, who had helped the injured employee onto a stretcher, testified that the
employee’s clothes were dry. Id. Additionally, the employee suffered from a seizure condition that
could have caused the employee to fall. Id. The trial court found the employee’s fall arose from an
idiopathic condition and ruled the claim non-compensable. Id. On appeal, the Supreme Court
affirmed. Id.

        While the record contains no evidence that a medical condition caused Ms. Portilla to fall,
the record does contain, similarly to the facts in Dickerson, several compelling pieces of evidence
that contradict Ms. Portilla’s position. First, the video evidence does not show a hazardous
condition or indicate that Ms. Portilla slipped. In the video footage, the Court observed Ms. Portilla
climbed the stairs and then took a couple of steps before her feet became tangled. She then spun
around and fell backwards onto the floor. The Court did not observe that her feet slipped. Instead,
her feet appeared to maintain good traction on the floor until she tripped over them.

        Second, the Court observed several other workers climb the stairs both before and after Ms.
Portilla. At least one of the workers appeared to step on the exact spot where Mr. Portilla stepped
when she fell. The Court did not observe that this worker or any of the other workers slipped.
Furthermore, no one climbing the stairs attempted to avoid a hazardous or slippery area on the floor,
which leads the Court to conclude that no hazard existed.

         Finally, Ms. Portilla identified the chaplain, her supervisor, and Nurse Pederson as persons
who observed the hazardous condition of the floor or the substance on her shoes on November 18,
2014. Ms. Portilla, however, did not call any of these witnesses to testify or provide their affidavits
to corroborate her testimony. Ms. Portilla also did not indicate the presence of a slippery substance
on her shoes when she filled out the “Team Member Statement of Injury or Illness” immediately
after the accident. Additionally, the affidavit of Kimberly Pederson states that she inspected the area
and found nothing that would have caused Ms. Portilla to fall.


         Ms. Portilla bears the burden of proof and, while the amount of proof necessary to prevail in
an Expedited Hearing for temporary benefits is less than in a final compensation hearing, the Court
still has a duty to view the proof presented fairly, impartially, and in a manner favoring neither Ms.
Portilla nor Tyson. See Tenn. Code Ann. § 50-6-116. Upon consideration of the evidence, the Court

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finds that Ms. Portilla failed to carry her burden of proof and denies her claim for medical benefits.

 IT IS, THEREFORE, ORDERED as follows:

   1. Ms. Portilla’s request for medical benefits is denied at this time.

   2. This is not a final order.

   3. This matter is set for Initial Hearing via teleconference on Tuesday, July 7, 2015, at
      4:00 p.m. (CDT). Instructions on how to participate in the teleconference are included
      below.

   4. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance with
      this Order must occur no later than seven (7) business days from the date of entry of
      this Order as required by Tennessee Code Annotated section 50-6-239(d)(3). The
      Insurer or Self-Insured Employer must submit confirmation of compliance with this
      Order to the Division by email to WCCompliance.Program@tn.gov no later than the
      seventh (7th) 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 WCCompliance.Program@tn.gov or by calling (615) 253-1471 or (615) 532-
      1309.


ENTERED ON THIS THE 26TH DAY OF MAY, 2015.




                                               _____________________________________
                                               Joshua Davis Baker
                                               Workers' Compensation Judge




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INITIAL HEARING:

         An Initial Hearing has been set with Judge Joshua Davis Baker, Court of Workers’
Compensation Claims. You must call (615) 741-2113 or toll free at (855) 874-0474 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. All
conferences are set using Central Standard Time (CST).

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 (7) business days of the date the
      Expedited Hearing Order was entered by the Workers’ Compensation Judge.

   3. Serve a copy of the Request for Appeal upon the opposing party.

   4. 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 (10)
      calendar days of the filing of the Expedited Hearing Notice of Appeal. Alternatively, the
      parties may file a statement of the evidence within ten (10) calendar days of the filing of the
      Expedited Hearing Notice of Appeal. The statement of the evidence must be approved by the
      Judge before the record is submitted to the Clerk of the Appeals Board.

   5. If the appellant elects to file a position statement in support of the interlocutory appeal, the
      appealing party shall file such position statement with the Court Clerk within three (3)
      business days of the filing of the Expedited Hearing Notice of Appeal, specifying the issues
      presented for review and including any argument in support thereof. If the appellee elects to
      file a response in opposition to the interlocutory appeal, appellee shall do so within three (3)
      business days of the filing of the appellant’s position statement.




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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 26th day of May, 2015.

Name                   Certified   First       Via   Fax      Via     Email Address
                       Mail        Class       Fax   Number   Email
                                   Mail
Gaynell Portilla                                              X       gaynellart49@bellsouth.net
Terry Hill                                                    X       thill@manierherod.com



                                           _____________________________________
                                           Penny Shrum, Clerk
                                           Tennessee Court of Workers' Compensation Claims
                                           WC.CourtClerk@tn.gov




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