                                                                                  FILED
                                                                                Dec 04, 2018
                                                                                10:35 AM(CT)
                                                                              TENNESSEE COURT OF
                                                                             WORKERS' COMPENSATION
                                                                                    CLAIMS




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

Althea Myers,                                )   Docket No. 2018-06-1243
            Employee,                        )
v.                                           )   State File No. 43894-2018
Tyson Foods, Inc.,                           )
            Self-insured Employer.           )   Judge Dale Tipps
                                             )

      EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS


       This case came before the Court for an expedited hearing on November 29, 2018.
The issue is whether Ms. Myers’ right-knee complaints arose primarily out of and in the
course and scope of her employment at Tyson. For the following reasons, the Court
holds she is likely to succeed at a hearing on the merits in establishing entitlement to an
evaluation and potential treatment by the panel-selected physician.

                                    History of Claim

       Ms. Myers worked as a general laborer for Tyson. On April 5, 2018, she tripped
and fell over a pallet, injuring her right knee.

        Ms. Myers went to Tyson’s onsite clinic, where registered nurse Juliana Johnson
examined her. According to Ms. Johnson’s affidavit, Ms. Myers had full active range of
motion in her right knee, and “the skin was intact and that there was no scraped area, no
redness, no swelling, and no bruising.” Ms. Johnson iced the knee, applied a menthol
lotion and gave Ms. Myers Tylenol. Ms. Johnson noted, “Ms. Myers moved easily as she
left OHS [the clinic] and did not walk with a limp.” Ms. Myers returned to the clinic the
next day, and Ms. Johnson returned her to full-duty work. Ms. Myers returned to the
clinic on April 17 for a new hire follow-up exam and was again cleared for full-duty. She
again returned to the clinic on April 18, 19 and 20 for unrelated treatment and did not
mention the knee injury at those visits, per Ms. Johnson.

      Before and after the fall at work, Ms. Myers saw providers at Comprehensive Pain
Specialists approximately every two months. Treatment notes beginning in July 2017
show that Ms. Myers complained of “chronic pain” in her low back and right shoulder, as

                                            1
well as “bilateral knee pain present for several years ̶ reports osteoarthritis there.”
Providers diagnosed osteophytes in her knees, and other conditions involving other body
parts. An April 25, 2018 note reads, “pt states the right knee slight fall at work, using ice
and knee brace.” They noted swelling of the knee and recommended use of a brace. At
the next visit of May 17, Ms. Myers reported persistent knee pain, and the providers
prescribed a topical anti-inflammatory and recommended continued use of the brace.

      The next day, Ms. Myers met with Pam Blaker, a registered nurse at Tyson who
reviews occupational and non-occupational injuries but did not serve as a nurse case
manager in this case. She did not examine Ms. Myers. She took notes during their
conversation, which state, “denies work injury ̶ not want to file W.C.”

       Three days later, Ms. Myers requested workers’ compensation benefits. Tyson
offered a panel on May 21 from which Ms. Myers chose Dr. David Moore, and Tyson
ordered copies of her medical records at Dr. Moore’s request.

       Tyson’s claims adjuster, Stephanie Frazier, telephoned Ms. Myers on May 23.
According to Ms. Frazier’s affidavit, Ms. Myers told her that “By April 7, 2018 she was
pain free,” but the pain returned approximately one month later “when it began raining.”
Ms. Frazier further wrote:

       Ms. Myers said that she sees a doctor for pain management every two
       months and that the doctor told her it was the same knee she had
       complained about a year ago. When I asked Ms. Myers if her pain
       management doctor mentioned whether the current knee pain was related to
       the workers’ compensation claim or the previous problems with her knee,
       she responded that the doctor did not say. When I asked her why she
       thought the current pain is related to the workers’ compensation claim if
       she was pain free for about a month, Ms. Myers responded that nothing else
       would have caused it to hurt.

Ms. Frazier also obtained the records of Comprehensive Pain Specialists. When she
asked Ms. Myers about those records, Ms. Myers denied preexisting problems with her
knee.

       Tyson did not authorize a visit with Dr. Moore but instead denied the claim on
June 15. The denial notice stated, “Investigation determined that current complaints are
not related to the incident at work,” while a letter from Ms. Frazier said, “You reported
resolve from the incident which [sic] occurred at work. Personal medical records reflect
a long going pre-existing condition to your knees.” Ms. Frazier’s affidavit attributed the
denial to Ms. Myers’ allegedly reporting the knee pain resolved, her longstanding pre-
existing knee condition, and “the fact that Ms. Myers was not forthcoming about her pre-
existing knee problems during my investigation and even denied knowing about any prior

                                             2
knee problems when confronted with medical records revealing her long standing [sic]
knee problems.”

       During the hearing, Ms. Myers acknowledged prior problems and treatment for
her knee. However, the main reason she treated at Comprehensive Pain Specialists was
back pain, and her knee arthritis was not severe. Before the April 5 work accident, she
was having no problems with her knee. Ms. Myers denied that her knee pain resolved
after the work accident. Instead, she testified that her knee bothered her every day,
although she did not seek treatment at Tyson’s clinic every time it hurt.

       Ms. Myers requested medical treatment for continued knee pain.1 Tyson
countered that Ms. Myers failed to meet her burden of proving that that her knee injury
arose primarily out of and in the course and scope of her employment.

                            Findings of Fact and Conclusions of Law

       At an expedited hearing, Ms. Myers must establish she would likely prevail at a
hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1) (2018); McCord v.
Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Mar. 27, 2015). Ms. Myers must establish she is likely to prove she suffered an
accidental injury that was “caused by a specific incident, or set of incidents, arising
primarily out of and in the course and scope of employment, and is identifiable by time
and place of occurrence.” Tenn. Code Ann. § 50-6-102(14)(A).

        Ms. Myers credibly testified about the events before and after her fall at work on
April 5, and Tyson offered no contrary evidence. In fact, its records confirm the incident,
as well as Ms. Myers’ first aid treatment. Therefore, the Court holds that Ms. Myers is
likely to prove at a hearing on the merits that her injury occurred in the course and scope
of her employment.

       However, Ms. Myers must also establish that her current complaints arose
primarily out of her employment. On this point, Tyson argued Ms. Myers’ present
condition relates to pre-existing osteoarthritis rather than her fall at work.

       The Workers’ Compensation Law excludes as compensable “the aggravation of a
preexisting disease, condition or ailment unless it can be shown to a reasonable degree of
medical certainty that the aggravation arose primarily out of and in the course and scope

1
  Ms. Myers also requested six months of wages until she is able to find new employment. The Court
would normally consider this a request for temporary disability benefits. However, it cannot consider a
request for temporary disability benefits at this time because the mediator did not certify it as an issue; see
Tenn. Code Ann. § 50-6-239(b)(1) (“[O]nly issues that have been certified by a workers’ compensation
mediator within a dispute certification notice may be presented to the workers’ compensation judge for
adjudication.”).
                                                      3
of employment.” Tenn. Code Ann. § 50-6-102(14)(A). This must be shown “to a
reasonable degree of medical certainty that it contributed more than fifty percent (50%)
in causing the death, disablement or need for medical treatment, considering all causes.”
Tenn. Code Ann. § 50-6-102(14)(C).

         The Court also agrees with Tyson that no physician provided an opinion on
causation. Absent such an opinion, Ms. Myers cannot prove “to a reasonable degree of
medical certainty” that her work “contributed more than fifty percent (50%) in causing
the . . . disablement or need for medical treatment, considering all causes.” However, the
Court must also analyze Tyson’s failure to provide an initial appointment with Dr.
Moore, the panel physician.

       Tennessee Code Annotated section 50-6-204(a)(3)(A)(i) provides 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 injured employee shall select one (1) to be the treating physician.”
Further, at an expedited hearing, an employee need not establish the compensability of
his or her claim by a preponderance of the evidence, but rather where the employee
comes forward with sufficient evidence to support that a work event resulted in injury, it
may also be sufficient to support an order compelling an employer to provide a panel.
See Lewis v. Molly Maid, 2016 TN Wrk. Comp. App. Bd. LEXIS 19, at *8-9 (Apr. 20,
2016). In McCord, the Workers’ Compensation Appeals Board found that:

      [W]hether 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 *16, 17. Thus, the question is whether Ms. Myers provided sufficient
evidence to satisfy her “burden at this interlocutory stage” that she is entitled to an
appointment with Dr. Moore.

       Tyson based its denial on its adjuster’s assertion that the knee “resolved” before
Ms. Myers asserted her claim. However, the Court finds Ms. Myers credibly testified
that her knee pain persisted after the accident. The Court also believes her testimony that
the pain after the April 6 incident was more severe than before. Further, the
Comprehensive Pain Specialists records do not support Tyson’s contention. Rather, these
records show that Ms. Myers reported the fall in April 2018 and the providers offered
treatment for it. Although Tyson had this information, it failed to ask Comprehensive
Pain Specialists for an opinion as to whether Ms. Myers’ pain stemmed from her work
injury or her pre-existing osteoarthritis. Similarly, it failed to authorize a visit to the

                                            4
panel physician, who could have provided a causation opinion. Instead, Tyson simply
substituted its judgment for that of the medical providers. “Parties and their lawyers
cannot rely solely on their own medical interpretations of the evidence to successfully
support their arguments.” Lurz v. Int’l Paper Co., 2018 TN Wrk. Comp. App. Bd.
LEXIS 8, at *17 (Feb. 14, 2018).

        Tyson raised questions about what it considered Ms. Myer’s lack of candor about
her pre-existing knee problems. Even if valid, these concerns do not relieve an employer
of its statutory duty to provide a panel and medical treatment when an employee reports a
work injury.

       Therefore, the Court holds that while Ms. Myers has yet to establish
compensability, she has shown a likelihood of establishing entitlement to evaluation and
potential treatment of her alleged injury.

      IT IS, THEREFORE, ORDERED that:

   1. Tyson authorize an evaluation and potential treatment with Dr. Moore.

   2. This matter is set for a Scheduling Hearing on February 19, 2019, at 9:00 a.m.
      Central Time. The parties or their counsel must call 615-741-2112 or toll-free
      at 855-874-0473 to participate in the hearing. Failure to call may result in a
      determination of the issues without your participation.

   3. Unless interlocutory appeal of the Expedited Hearing Order is filed,
      compliance with this Order must occur no later than seven business days
      from the date of entry of this Order as required by Tennessee Code
      Annotated section 50-6-239(d)(3). The self-insured employer must submit
      confirmation of compliance with this Order to the Bureau by email to
      WCCompliance.Program@tn.gov no later than the seventh 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.
      For questions regarding compliance, please contact the Workers’ Compensation
      Compliance Unit via email at WCCompliance.Program@tn.gov.

ENTERED DECEMBER 4, 2018.



                                  ____________________________________
                                  JUDGE DALE TIPPS
                                  Court of Workers’ Compensation Claims


                                           5
                                     APPENDIX

Technical Record
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing
   4. Employer’s Expedited Hearing Brief

Exhibits
   1. Ms. Myers’ affidavit
   2. First Report of Work Injury
   3. Choice of Physicians form
   4. Denial form/letter
   5. Affidavit of Stephanie Frazier
   6. Team Member Statement of Injury
   7. Affidavit of Pam Blaker
   8. Post-Offer Health Assessment
   9. Handwritten notes of Ms. Blaker
   10. Encounters printout
   11. Affidavit of Juliana Johnson
   12. Medical records
   13. Wage Statement


                          CERTIFICATE OF SERVICE

       I certify that a copy of the Expedited Hearing Order was sent to the following
recipients by these methods of service on December 4, 2018.

Name                     Certified   Via        Via    Service sent to:
                          Mail       Fax       Email
Althea Myers, Self-         X                    X     808 Hillmore Dr.,
Represented Employee                                   Nashville TN 37218
                                                       thea63myers@gmail.com
Michael Haynie,                                 X      mhaynie@manierherod.com
Employer’s Attorney



                                       _____________________________________
                                       Penny Shrum, Clerk of Court
                                       Court of Workers’ Compensation Claims


                                           6
                           Expedited Hearing Order Right to Appeal:

     If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:

   1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
      form with the Clerk of the Court of Workers’ Compensation Claims within seven
      business days of the date the expedited hearing order was filed. When filing the Notice
      of Appeal, you must serve a copy upon all parties.

   2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
      calendar days after filing of the Notice of Appeal. Payments can be made in-person at
      any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
      alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
      website or any Bureau office) seeking a waiver of the fee. You must file the fully-
      completed Affidavit of Indigency within ten calendar days of filing the Notice of
      Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
      result in dismissal of the appeal.

   3. You bear the responsibility of ensuring a complete record on appeal. You may request
      from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
      the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
      it with the court clerk within ten business days of the filing the Notice of
      Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
      parties within ten business days of the filing of the Notice of Appeal. The statement of
      the evidence must convey a complete and accurate account of the hearing. The Workers’
      Compensation Judge must approve the statement before the record is submitted to the
      Appeals Board. If the Appeals Board is called upon to review testimony or other proof
      concerning factual matters, the absence of a transcript or statement of the evidence can be
      a significant obstacle to meaningful appellate review.

   4. If you wish to file a position statement, you must file it with the court clerk within ten
      business days after the deadline to file a transcript or statement of the evidence. The
      party opposing the appeal may file a response with the court clerk within ten business
      days after you file your position statement. All position statements 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.




For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
 .
ll                                                                                                                 .I




                                    Tennessee Bureau of Workers' Compensation
                                           220 French Landing Drive, 1-B
                                             Nashville, TN 37243-1002
                                                   800-332-2667


                                               AFFIDAVIT OF INDIGENCY


     I,                                                , having been duly sworn according to law, make oath that
     because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
     waived. The following facts support my poverty.

     1. Full Name:_ _ _ _ _ _ _ _ _ _ __                      2. Address: - - - - - - - - - - - - -

     3. Telephone Number: - - - - - - - - -                   4. Date of Birth: - - - - - - - - - - -

     5. Names and Ages of All Dependents:

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

             - - - - - - - - - - - - - - -- -                 Relationship: - - - - - - - - - - - --

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

     6. I am employed by: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , -

             My employer's address is: - - - - - - - - - - - - - - - - - - - - - - - - -

             My employer's phone number is: - - - - - - - - - - - - - - - - - - - - - - -

     7. My present monthly household income, after federal income and social security taxes are deducted, is:

     $ _ _ _ _ _ _ ___

     8. I receive or expect to receive money from the following sources:

             AFDC            $            per month           beginning
             SSI             $            per month           beginning
             Retirement      $            per month           beginning
             Disability      $            per month           beginning
             Unemployment $               per month           beginning
             Worker's Camp.$              per month           beginning
             Other           $            per month           beginning



     LB-1108 (REV 11/15)                                                                               RDA 11082
9. My expenses are: ' ;                                                     !•
                                                                             '

        Rent/House Payment $              per month     Medical/Dental $            per month

        Groceries         $         per month           Telephone       $           per month
        Electricity       $         per month           School Supplies $           per month
        Water             $         per month           Clothing        $           per month
        Gas               $         per month           Child Care      $           per month
        Transportation $            per month           Child Support   $           per month
        Car               $          per month
        Other             $         per month (describe:


10. Assets:

        Automobile              $ _ _ __ _
                                                        (FMV) -    - - - - -- - - -
        Checking/Savings Acct. $ _ _ _ __
        House                   $ _ _ _ __
                                                        (FMV) - - -- - - -- - -
              )
        Other                   $ _ _ _ __              Describe:_ _ _ __ _ _ _ _ __


11. My debts are:

        Amount Owed                     To Whom




I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.




APPELLANT



Sworn and subscribed before me, a notary public, this

_ _ _ dayof _____________ ,20____




NOTARY PUBLIC

My Commission Expires:_ _ _ _ _ __ _




LB-1108 (REV 11/15)                                                                         RDA 11082
