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

DEDRA VINSON,                               )   Docket No. 2017-05-0173
         Employee,                          )
v.                                          )
DILLARD’S, INC.,                            )   State File No. 89163-2015
         Employer,                          )
And                                         )
SAFETY NAT. CAS. CORP.,                     )   Judge Dale Tipps
         Insurance Carrier.                 )
                                            )


            EXPEDITED HEARING ORDER GRANTING BENEFITS


       This matter came before the Court on February 28, 2018, for an Expedited
Hearing. The present focus of this case is whether Ms. Vinson is entitled to medical and
temporary disability benefits for her alleged left hip injury. The central legal issue is
whether Ms. Vinson is likely to establish at a hearing on the merits that her injury arose
primarily out of and in the course and scope of her employment. For the reasons set forth
below, the Court holds Ms. Vinson is likely to meet this burden and is entitled to the
requested medical benefits but not temporary disability benefits.

                                    History of Claim

       Ms. Vinson worked for Dillard’s as a sales associate. On October 22, 2015, she
climbed a set of portable stairs to get some Christmas decorations. As she backed down
the stairs, her right foot missed a step. Her left foot remained stationary as she fell
backwards and caught herself with the railing. This forced her left leg into what one of
her doctors described as a “figure-four position.” Although Ms. Vinson felt pain in her
hip, she completed her workday. She did not report the accident because she “doesn’t
run to the doctor over every little thing,” and she thought that some rest would take care
of it.



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       The day after her accident, Ms. Vinson began a scheduled vacation. She took this
time off to assist her mother, who was having knee surgery. Ms. Vinson testified that her
mother was able to walk unassisted following the surgery and needed little physical
support or care. Ms. Vinson said she suffered neither an accident nor a hip injury while
caring for her mother, yet she continued having pain in her hip and problems walking
during her time off. When Ms. Vinson returned to work on November 4, she reported the
injury and received a panel of physicians.

        After seeing several doctors, Ms. Vinson began treating with Dr. Thomas Byrd on
July 8, 2016. He noted evidence of damage to the labrum cartilage in the left hip, as well
as some tendon damage. On October 27, after additional diagnostic tests and a course of
injections, Dr. Byrd recommended arthroscopic surgery to repair Ms. Vinson’s labrum
cartilage. Dillard’s filed a Notice of Controversy a few days later and terminated
benefits.

        In his deposition, Dr. Byrd noted that Ms. Vinson had degenerative changes in
both hips that were asymptomatic prior to the accident. He felt “the difficulty she’s
experiencing that we recommended surgery for her seemed to come from following the
accident.” Asked if the workplace fall was the primary cause of her injury, Dr. Byrd
testified, “That is correct.” He elaborated, “So the fall certainly precipitated the
symptoms for which she was being treated. So if she was not having symptoms, we
wouldn’t be recommending treatment.”

        On cross-examination, Dr. Byrd acknowledged that Ms. Vinson had preexisting
arthritis in her hip and that it was possible her symptoms could have any number of other
causes. However, he reiterated that her responses were consistent and that he believed
her fall “clearly aggravated” her condition.

      Ms. Vinson requested that the Court order Dillard’s to provide the surgery that Dr.
Byrd recommended. She also requested payment of any temporary disability to which
she might be entitled following that surgery.

       Dillard’s countered that Ms. Vinson is not entitled to workers’ compensation
benefits. It contended Ms. Vinson failed to establish that her work was the primary cause
of her condition. Dillard’s contended that Ms. Vinson’s accident was unwitnessed, that
she did not immediately report the injury, and that her injury might have occurred while
she was taking care of her mother.

                       Findings of Fact and Conclusions of Law

      Ms. Vinson need not prove every element of her claim by a preponderance of the
evidence in order to obtain relief at an expedited hearing. Instead, she must come
forward with sufficient evidence from which this Court might determine she is likely to

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prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1) (2017);
McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at
*7-8, 9 (Mar. 27, 2015).

                                      Compensability

       To prove a compensable injury, Ms. Vinson must show that her alleged injury
arose primarily out of and in the course and scope of her employment. To do so, she
must show her injury primarily arose out of a work-related incident, or specific set of
incidents, identifiable by time and place of occurrence. Further, she must show, “to a
reasonable degree of medical certainty that it contributed more than fifty percent (50%)
in causing the . . . disablement or need for medical treatment, considering all causes.”
“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. See Tenn. Code Ann. § 50-6-102(14) (2016).

       Applying these principles to the facts of this case, the Court first notes that, while
Dillard’s questioned the details of Ms. Vinson’s description of the accident, it presented
no testimony or other proof to contradict her claim that she suffered a hip injury at work
on October 22, 2015. Ms. Vinson denied Dillard’s insinuation that she injured herself
while taking care of her mother and testified she suffered no other injury. The Court
found her testimony credible, but more importantly, it was unrebutted. Thus, the Court
finds no genuine dispute that Ms. Vinson established a specific incident, identifiable by
time and place. The question to be resolved, therefore, is whether she appears likely to
prove at a hearing on the merits that her work was the primary cause of the injury. The
Court finds that Ms. Vinson is likely to meet this burden.

       The only medical proof submitted regarding causation was Dr. Byrd’s opinion that
Ms. Vinson’s workplace accident was the primary cause of her injury. Dillard’s
questioned Dr. Byrd’s opinion on the basis that the injury history Ms. Vinson gave him
was untrustworthy. This argument fails for the same reason as noted above – Dillard’s
presented no proof that Ms. Vinson’s history was inaccurate or untruthful.

       Dillard’s noted that Ms. Vinson had a preexisting condition, and it suggested that
other causes might be responsible for her current problem. However, the only evidence
presented showed that Ms. Vinson injured her hip at work and that the work accident
caused her need for treatment. Absent any evidence to the contrary, Ms. Vinson
therefore appears likely to prevail at a hearing on the merits in proving that her workplace
accident was the primary cause of her need for treatment.

                                     Medical Benefits

       Having found Ms. Vinson is likely to prevail on causation at a hearing on the

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merits, the Court must address her request for medical benefits. Under the Workers’
Compensation Law, “the employer or the employer’s agent shall furnish, free of charge
to the employee, such medical and surgical treatment . . . made reasonably necessary by
accident[.]” Tenn. Code Ann. § 50-6-204(a)(1)(A). Dillard’s must therefore provide
reasonable and necessary treatment with Dr. Byrd, including his recommended hip
surgery.

                             Temporary Disability Benefits

       Ms. Vinson also seeks payment of temporary disability benefits. However, she
did not request temporary disability for any period between her injury and the hearing.
Instead, she requested temporary disability benefits for time she may miss from work
after her hip surgery. The Court cannot prospectively order benefits that may or may not
be owed in the future. Therefore, it must deny Ms. Vinson’s request at this time.

IT IS, THEREFORE, ORDERED as follows:

   1. Dillard’s shall provide Ms. Vinson with medical treatment made reasonably
      necessary by her October 22, 2015 injury in accordance with Tennessee Code
      Annotated section 50-6-204, including the surgery ordered by Dr. Byrd.

   2. Ms. Vinson’s request for temporary disability benefits is denied at this time.

   3. This matter is set for a Scheduling Hearing on April 25, 2018, at 1:00 p.m. The
      parties must call 615-741-2112 or toll-free at 855-874-0473 to participate. Failure
      to call in may result in a determination of the issues without the parties’
      participation. All conferences are set using Central Time (CT).

   4. 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 Insurer or 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.

   5. For questions regarding compliance, please contact the Workers’ Compensation
      Compliance Unit via email at WCCompliance.Program@tn.gov.




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      ENTERED this the 5th day of March, 2018.


                                   _____________________________________
                                   Judge Dale Tipps
                                   Court of Workers’ Compensation Claims


                                       APPENDIX

Exhibits:
   1. Wage Statement
   2. Accident Investigation Report
   3. First Report of Injury
   4. Notice of Controversy
   5. Deposition transcript of Dr. Thomas Byrd

Technical record:
   1. Request for Expedited Hearing
   2. Dispute Certification Notice
   3. Parties’ Pre-Hearing Statements


                            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 5th day of
March, 2018.

 Name                      Certified    Via        Via Service sent to:
                            Mail        Fax       Email
 D. Russell Thomas,                                 X   russthomas@thethomaslawfirm.c
 Employee’s Attorney                                    om
                                                        Kathryn@thethomaslawfirm.com
 James Tucker,                                      X   jtucker@manierherod.com
 Employer’s Attorney



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