FILED

September 21, 2017

TN COURT OF
WORKERS’ COMPENSATION
CLAIMS

Time: 11:20 AM

 

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

AT KNOXVILLE
JOHNNIE W. SANDERS, ) Docket No.: 2017-03-0327
Employee, )
V. )
WAL-MART ASSOCIATES, INC., ) State File No.: 20140-2017
Employer, )
and )
NEW HAMPSHIRE INSURANCE ) Judge Pamela B. Johnson
COMPANY, )
Carrier. )

EXPEDITED HEARING ORDER DENYING BENEFITS

 

This matter came before the undersigned Workers’ Compensation Judge on
August 25, 2017, for an Expedited Hearing. The central legal issue is whether Johnnie
W. Sanders demonstrated he is likely to prevail at a hearing on the merits that his injury
arose primarily out of and in the course and scope of his employment with Wal-Mart
Associates, Inc., and, if so, whether Mr. Sanders is entitled to medical and temporary
disability benefits. Wal-Mart asserted, regardless of whether Mr. Sanders’ injury arose
out of and in the course and scope of his employment, his claim is barred by the statute of
limitations. For the reasons set forth below, the Court holds Mr. Sanders failed to
demonstrate he is likely to prevail at a hearing on the merits. Therefore, the Court denies
his claim for benefits at this time.

History of Claim

Mr. Sanders worked for Wal-Mart as a truck driver when he slipped, fell, and
injured his low back. The slip-and-fall occurred in Pageland, South Carolina, while he
refueled his truck.

Mr. Sanders stated this was the only slip-and-fall. However, he provided multiple
conflicting dates of injury: a June 2015 injury date in his hearing testimony; a June 8,
2015 injury date in his Affidavit; an August 14, 2015 injury date in an Associate Incident

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Report; a January 2016 injury date in an Associate Incident Report; and a June 8, 2016
injury date in his Petition for Benefit Determination.

The evidence further demonstrated that Mr. Sanders reported the Pageland slip-
and-fall to the Wal-Mart Operations Manager, Travis Dickenson, on August 16, 2015, but
declined medical treatment. In turn, Mr. Dickenson sent an email to Safety Manager Ken
L. Motley, Sr. to notify him of Mr. Sanders’ incident. Human Resources Clerk Kim
Fleenor also received Mr. Dickerson’s email and contacted Mr. Sanders to request that he
complete an Associate Incident Report. On the same day, she prepared a Manager’s
Investigation of Accident report and offered medical care. Mr. Sanders again declined.

As time passed, Mr. Sanders realized his back pain was more serious and sought
medical care on his own. He initially treated with his primary care physician and later
with neurosurgeon Dr. James Maguire. His treatment included physical therapy and
ultimately back surgery.’

Due to his continued back pain and surgery, Mr. Sanders requested medical leave
in March 2016. Human Resource Manager Randy Duncan assisted Mr. Sanders with the
leave process. During their discussion, Mr. Sanders mentioned that he previously
reported a back injury. Mr. Duncan asked Mr. Sanders if he wanted to file for workers’
compensation benefits instead of medical leave. Mr. Duncan further advised that, if Mr.
Sanders elected to use workers’ compensation benefits, then he could not treat with his
personal physician but would have to see a workers’ compensation physician. Mr.
Sanders wanted to continue to treat with his personal physician and declined workers’
compensation. Mr. Sanders’ leave began March 22, 2016, and afterward he never
returned to work.

While on leave, Mr. Sanders called Ms. Fleenor to inquire about filing a workers’
compensation claim on May 26, 2016. He told Ms. Fleenor that his doctor ordered
surgery and the price was high, so he wanted to switch over to workers’ compensation.
Ms. Fleenor instructed Mr. Sanders to come in to complete the workers’ compensation
paperwork. She also offered him a panel of physicians, but Mr. Sanders rejected the
panel and advised he would continue to treat with his own physician.

Several days later, Mr. Sanders met with Ms. Fleenor on June 8, 2016, and
informed her that his back surgery was expensive and asked to file for workers’
compensation. She helped him complete the necessary paperwork. Mr. Sanders could
not recall a specific date of injury but advised that the slip-and-fall occurred in January
2016. Ms. Fleenor completed a First Report of Work Injury and randomly chose January

 

'Mr. Sanders did not introduce the records of his treatment but sought to introduce his medical bills.
Wal-Mart objected on grounds of hearsay, authenticity, and lack of evidence that the expenses were
reasonable and necessary. The Court took the objection under advisement. The Court sustains the
objection and did not consider the bills in making its findings of fact and conclusions of law.

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15, 2016. Mr. Sanders also completed an Associate Incident Report, made a selection
from a panel of physicians, and acknowledged he would be personally responsible for
unauthorized treatment.

Mr. Sanders went to the panel physician and informed the doctor that he was
under the care of another physician who ordered surgery. The panel physician did not
evaluate or treat Mr. Sanders and never submitted a bill to the Claims Adjuster, Tracy
House. Ms. House later denied Mr. Sanders’ claim due to his inability to identify a
specific date of injury.

On March 15, 2017, Mr. Sanders filed his PBD listing the date of injury as June 8,
2016. When the claim did not resolve through mediation, the Mediator issued a Dispute
Certification Notice. Afterward, Mr. Sanders filed a Request for Expedited Hearing. His
supporting Affidavit stated he was injured on June 8, 2015.

Findings of Fact and Conclusions of Law

The following legal principles govern the Court’s analysis. Mr. Sanders bears the
burden of proving all essential elements of his claim by a preponderance of the evidence.
Scott v. Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6
(Aug. 18, 2015). At an Expedited Hearing, however, his burden of proof requires him
only to come forward with sufficient evidence from which this Court can determine that
he is likely to prevail at a hearing on the merits. See McCord v. Advantage Human
Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Mar. 27, 2015). This lesser
evidentiary standard does not relieve Mr. Sanders of the burden of producing evidence of
an injury by accident arising 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 v. Carlex Glass Co.,
2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6 (Sept. 29, 2015).

The Court will address Wal-Mart’s statute of limitations defense first because it is
potentially determinative. The Workers’ Compensation Law provides that when the
employer has not paid workers’ compensation benefits, the right to compensation “shall
be forever barred, unless ... a petition for benefit determination is filed with the bureau .

. within one year after the accident resulting in injury.” Tenn. Code Ann. § 50-6-
203(b)(1) (2016). Statutes of limitations exist to ensure fairness by prohibiting undue
delay in bringing claims and to give defendants timely notice of potential lawsuits. See
American Pipe & Constr. Co. v. Utah, 414 U.S. 538, 554-55 (1974).

Further, Wal-Mart has the burden of proof to establish facts, which it claims as a
bar to Mr. Sander’s workers’ compensation claim, such as the expiration of the statute of
limitations. Once Wal-Mart establishes its affirmative defense, the burden shifts to Mr.
Sanders to demonstrate a recognized exception. See Cloyd v. Hartco Flooring Co., 274

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S.W.3d 638, 647 (Tenn. 2008) (citing Ingram v. Earthman, 993 $.W.2d 611, 633)
(internal quotations omitted).

Here, while the Court finds Mr. Sanders to be credible, it finds him to be a poor
historian. Upon careful consideration of the evidence as a whole, the Court finds Mr.
Sanders’ Pageland slip-and-fall occurred on August 14, 2015. He timely reported the
Pageland incident but declined treatment. As such, Wal-Mart did not pay any workers’
compensation benefits to or on behalf of Mr. Sanders’ August 14, 2015 claim. Thus, Mr.
Sanders did not file his PBD until March 15, 2017, more than one year after the injury.
The Court therefore concludes Wal-Mart established facts to support its statute of
limitations defense. Because Wal-Mart established the affirmative defense, the burden
now shifts to Mr. Sanders to provide a recognized exception that tolls the statute, which
he did not. As a matter of law, the Court concludes Mr. Sanders failed to demonstrate he
is likely to prevail at a hearing on the merits that he filed his claim within the statute of
limitations.

The Court likewise concludes that Mr. Sanders failed to demonstrate that his
injury arose primarily out of and in the course and scope of employment. An injury
arises primarily out of and in the course and scope of employment if it is caused by a
specific incident, or set of incidents, identifiable by time and place of occurrence. Tenn.
Code Ann. § 50-6-102(14). Further, this must be shown by a preponderance of the
evidence that the employment contributed more than fifty percent in causing the injury,
considering all causes. Jd.

Although Mr. Sanders received treatment from his personal physician and Dr.
Maguire, he did not introduce the office notes from Dr. Maguire’s treatment or any
opinion relating his injury and need for treatment to the employment. Without a medical
opinion linking the injury and need for treatment to work, Mr. Sanders failed to
demonstrate he is likely to prevail at a hearing on the merits that his injury arose
primarily out of and in the course and scope of his employment. Therefore, as a matter of
law, this Court holds that Mr. Sanders failed to satisfy his burden of proof and denies his
request for benefits at this time.

IT IS, THEREFORE, ORDERED as follows:

1. Mr. Sanders’ claim against Wal-Mart Associates, Inc. and its workers’
compensation carrier for the requested benefits is denied at this time.

2. This matter is set for a Scheduling Hearing on October 23, 2017, at 1:30 p.m.
Eastern Time. The parties must call 865-594-0091 or 855-543-5041 toll-free to
participate in the Scheduling Hearing. Failure to appear by telephone may result
in a determination of the issues without your participation.
ENTERED this the 21st day of September, 2017.

 

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PAMELA B. JOHNSON, JUDGE
Court of Workers’ Compensation Claims

APPENDIX

Technical Record:

l.
2
3.
4

5.

Petition for Benefit Determination

. Dispute Certification Notice

Request for Expedited Hearing

. Employer’s Pre-Hearing Brief and Response in Opposition to Employee’s

Request for Expedited Hearing
Table of Contents and Witness List in Support of Employer’s Response in
Opposition to Employee’s Request for Expedited Hearing

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.

Exhibits:
1.
2.

-

wIAY

2

Affidavit of Johnnie W. Sanders
Affidavit of Travis Dickenson, July 14, 2017
a. Email correspondence, August 18, 2015
Affidavit of Travis Dickenson, July 18, 2017
Affidavit of Kim Fleenor, May 17, 2017
a. Timeline of Injury and Treatment
Statements by Ms. Fleenor, May 26, 2016-June 15, 2016
Affidavit of Kim Fleenor, July 17, 2017
Affidavit of Randy Duncan, May 17, 2017
Affidavit of Randy Duncan, July 17, 2017
Affidavit of Ken L. Motley, Sr., May 17, 2017
a. Associate Incident Report
Manger’s Investigation of Accident
Affidavit of Ken L. Motley, Sr., July 14, 2017
a. Fleet Safety Manual, Page 70

10. Affidavit of Ken L. Motley, Sr., July 17, 2017

11.

Affidavit of Tracy House, July 19, 2017

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a. CMI Decline Letter, June 8, 2016
b. CMI Financial Statement
12. Affidavit of Randy Duncan, May 17, 2017
a. Workers’ Compensation File
b. Personnel File

c. Medical File
13. Wage Statement, Form C-41

14. First Report of Work Injury, Form C-20
15. Notice of Controversy, Form C-27

16. (Marked for Identification Only)Medical Bills
17. Drivers Pay Manual, August 1998
18. (Marked for Identification Only) Drivers Reference and Pay Manuals
19, Liberty Mutual Medical Documents

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 21st day

of September, 2017.

CERTIFICATE OF SERVICE

 

 

 

 

Employer’s Attorney

 

 

 

 

 

Name Certified | Fax | Email | Service sent to:
Mail
Johnnie Sanders, x xX Johnnie Sanders
Self-Represented 1204 Park Hill Circle
Employee Knoxville, TN 37909
casanders@fullsail.edu
Celeste Watson, x celeste@cmwatsonlaw.com

 

  

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PENNY GHRUM, Court Clerk’
WC.CourtClerk@tn.gov

 
