                                                                                FILED
                                                                              Aug 06, 2018
                                                                              10:08 AM(CT)
                                                                            TENNESSEE COURT OF
                                                                           WORKERS' COMPENSATION
                                                                                  CLAIMS




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

ANN HATHAWAY,                              )   Docket No. 2017-06-2295
        Employee,                          )
v.                                         )
                                           )
DELAWARE NORTH COMPANIES,                  )   State File No. 31594-2015
SPORTSERVICE,                              )
        Employer,                          )
                                           )
NEW     HAMPSHIRE         INSURANCE        )   Judge Joshua Davis Baker
CO.,                                       )
             Carrier.                      )



       EXPEDITED HEARING ORDER DENYING MEDICAL BENEFITS


       The Court convened an Expedited Hearing on August 2, 2018. Ms. Hathaway
requested medical and temporary disability benefits for a shoulder injury. Delaware
North Companies argued that the statute of limitations bars her claim. The Court holds
Ms. Hathaway would not likely prevail at a hearing on the merits in proving she timely
filed her petition seeking workers’ compensation benefits and denies her claim.

                                  History of Claim

       This claim concerned an alleged denial of treatment for a work-related, shoulder
injury. Ms. Hathaway worked part time for Delaware North, a company that provides
labor for sporting events. In that capacity, she worked at Bridgestone arena during
Nashville Predators’ games where she sold merchandise in the “team store,” a souvenir
shop offering Predators’ paraphernalia.

       On February 10, 2015, while working at Bridgestone, Ms. Hathaway injured her
right shoulder while lifting a box from an overhead shelf. She said she heard a “pop”
accompanied by pain. She testified she immediately reported the accident to her
supervisor but continued to work.
       Over the next several weeks, Ms. Hathaway continued to work through the pain.
When it finally became too intense, she contacted Delaware North’s human resource
office seeking assistance. Delaware North provided Ms. Hathaway medical treatment
with Dr. Calvin Dyer.

       Dr. Dyer diagnosed right shoulder impingement likely accompanied by bursitis.
He x-rayed her shoulder but determined it best to “avoid imaging studies.” He gave her a
cortisone shot and released her to return to full-duty work on July 30, 2015. He
determined she had no permanent impairment.

        Ms. Hathaway continued working her job throughout 2015 and 2016. Then, in
April 2017, she returned to Dr. Dyer complaining of increased shoulder pain. Dr. Dyer
gave her another cortisone shot and scheduled a follow-up appointment. He did not
relate the pain to Ms. Hathaway’s prior shoulder injury at that time.

       When Ms. Hathaway returned several months later complaining of continuing
pain, Dr. Dyer ordered an MRI which revealed a partially-torn, right rotator cuff. He
operated on her shoulder, and Ms. Hathaway used her private medical insurance to cover
the cost. Following surgery, Dr. Dyer wrote the following medical note:




       Delaware North declined to pay for treatment provided by Dr. Dyer, citing
expiration of the statute of limitations, as it had made its last voluntary medical payment
on December 7, 2015. Ms. Hathaway filed her petition on December 20, 2017.

                       Findings of Fact and Conclusions of Law

      Ms. Hathaway has the burden of proof but need not prove every element of her
claim by a preponderance of the evidence to receive relief at an expedited hearing.

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Instead, she must present sufficient evidence to prove she would likely prevail at a
hearing on the merits. McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). The Court finds she failed to carry this
burden and denies her claim.

        The determinate issue in this claim is the statute of limitations. Where the
employer voluntarily pays benefits, the Workers’ Compensation Law provides that the
employee’s “right to compensation shall be forever barred” unless the employee files a
PBD within one year after “the date of the last authorized treatment or the time employer
ceased to make payment of compensation to or on behalf of the employee.” Tenn. Code
Ann. § 50-6-203(b)(2) (2017). The employer has the burden of producing facts to show
that the statute of limitations bars a claim. Once the employer establishes those facts, the
claim is barred unless the employee proves that an exception exists. See Cloyd v. Hartco
Flooring Co., 274 S.W.3d 638, 647 (Tenn. 2008) (citing Ingram v. Earthman, 993
S.W.2d 611, 633; Jones v. Coal Creek Mining & Mfg. Co., 180 S.W. 179, 182 (Tenn.
1915).

       Delaware North made its last voluntary benefit payment on December 7, 2015.
Ms. Hathaway did not file her petition until December 20, 2017, more than two years
later. Delaware therefore established facts showing the statute of limitations bars Ms.
Hathaway’s claim. She must now show that an exception extended the one-year statute
for her claim to remain viable.

       On this issue, Ms. Hathaway posited two arguments. First, she argued the statute
of limitations should not bar her claim because she did not know Delaware North closed
her case after Dr. Dyer originally released her. If she had known she needed to seek
additional treatment within a year or risk losing her right to further care, she would have
done so. Second, Ms. Hathaway argued that Delaware North failed to provide all
medical care reasonable and necessary to treat her injury. Because she did not know she
had a torn her rotator cuff until December 2017, the statute should not have begun to run
until Dr. Dyer informed her of the problem and related it to her work for Delaware North.
The Court finds neither argument persuasive.

       While the Court sympathizes with Mr. Hathaway, her lack of knowledge
concerning the statute of limitations will not extend the statute. See Mosby v. McDowell
Ctr. for Children, 2014 Tenn. LEXIS 703, at *18-19 (Tenn. Workers’ Comp. Panel Oct.
2, 2014) (“More than 170 years of Tennessee case law reveals a general public policy . . .
mere ignorance of the law will not serve as an excuse for a litigant’s error or omission.”).
Furthermore, Delaware North had no obligation to warn her that the statute of limitations
would expire if she failed to pursue additional care or file a petition within one year after
it made its last voluntary benefit payment.

       Ms. Hathaway’s lack of knowledge concerning the extent and severity of her
injury also did not work to extend the statute of limitations. In general, the law provides
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that the statute of limitations will not commence “until by reasonable care and diligence it
is discoverable and apparent that an injury compensable under the workmens’
compensation laws has been sustained.” Norton Co. v. Coffin, 553 S.W.2d 751, 752
(Tenn. 1977). This concept is generally referred to as the “discovery rule.” The Appeals
Board addressed the applicability of the discovery rule in Johnson v. Stanley Convergent
Security Systs., 2017 TN Wrk Comp. App. Bd. LEXIS 44 (Aug. 3, 2017). In Johnson,
the worker felt a “pop” in his shoulder followed by immediate pain. He reported the
injury to his supervisor the following day but never received a panel. More than a year
after the accident, he filed a PBD, and the employer moved for summary judgment. The
trial court denied the motion, in part, stating that it was not “discoverable and apparent”
that the worker sustained a compensable injury. The Appeals Board reversed the trial
court and stated the following: “[a]n employee who suffers an acute work injury, as in
this case, cannot toll the statute of limitations by claiming he or she was unaware of the
full extent of the resulting injury.” Id. at *9.

       Like the employee in Johnson, Ms. Hathaway suffered an acute injury and
reported it the same day. However, in this case, Delaware North provided Ms. Hathaway
medical care and the doctor released her after a couple of visits. Afterward, Ms.
Hathaway continued to have pain but waited more than a year to seek additional
treatment. While her sense of resolve and work ethic are impressive, Ms. Hathaway
knew she suffered an acute workplace injury, believed she still needed treatment, yet
waited too long to request it. Additionally, no evidence showed her delay in seeking
treatment resulted from action on the part of Delaware North.

       The Court holds that the discovery rule and Ms. Hathaway’s lack of knowledge
concerning the statute of limitations did not extend the claim-filing deadline. Because
she filed her claim after expiration of the statute, the Court holds Ms. Hathaway is
unlikely to succeed at a hearing on the merits in proving entitlement to benefits available
under the Workers’ Compensation Law.

IT IS ORDERED as follows:

   1. Ms. Hathaway’s request for benefits is denied.

   2. This matter is set for a status conference on Monday, September 24, 2018, at 9:00
      a.m. (CDT). You must call 615-741-2113 or toll-free 855-874-0474 to
      participate in the Hearing. Failure to call may result in a determination of
      issues without your further 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 Insurer or Self-Insured Employer must submit confirmation of compliance
      with this Order to the Bureau by email to WCCompliance.Program@tn.gov no
                                             4
    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 ON AUGUST 6, 2018.



                                ___________________________________
                                Joshua Davis Baker, Judge
                                Court of Workers’ Compensation Claims




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                                     APPENDIX

Exhibits:

   1.   Medical records
   2.   First Report of Injury
   3.   Final Medical Report
   4.   Hathaway Affidavit
   5.   Russell Affidavit
   6.   Letter Dated May 24, 2017

Technical Record:

   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing




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                          CERTIFICATE OF SERVICE

       I certify that a true and correct copy of this Order was sent to the following
recipients by the following methods of service on August 6, 2018.

Name                      Certified   Via        Via    Service sent to:
                           Mail       Fax       Email
Ann Hathaway                 X                    X     934 Elvira Ave.
                                                        Nashville, TN 37216
                                                        ann.hathaway@tn.gov
Kenneth Veit                                     X      kenny.veit@leitnerfirm.com




                                ____________________________________________
                                Penny Shrum, Court Clerk
                                Court of Workers’ Compensation Claims
                                Wc.courtclerk@tn.gov




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