         IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                          AT NASHVILLE


ANDY HUMPHREY,                                        )
        Employee,                                     )    Docket No. 2015-06-0107
                                                      )
v.                                                    )    State File No. 2015184197
                                                      )
LEWISBURG RUBBER AND                                  )    Judge Joshua Davis Baker
GASKET,                                               )
        Employer,                                     )
                                                      )
And                                                   )
                                                      )
ACCIDENT FUND INS. CO.,                               )
        Insurer.                                      )


                    ORDER DENYING TEMPORARY BENEFITS
                          (RECORD REVIEW ONLY)

        This cause came before the undersigned on a Request for Expedited
Hearing filed by the employee, Andy Humphrey, pursuant to Tennessee Code
Annotated § 50-6-239 (2014). Mr. Humphrey seeks accrued and future temporary
disability benefits and requests the Court enter an order based on review of the
case file. The central legal dispute concerns whether Mr. Humphrey’s injury arose
primarily out of and in the course and scope of his employment with the employer,
Lewisburg Rubber and Gasket. For the reasons provided below, the Court finds
Mr. Humphrey failed to carry his burden of proving that he is likely to succeed at
a hearing on the merits in proving a causal relationship between his injury and his
work for the employer. The Court denies his claim for temporary disability
benefits.1



1
  Additional information regarding the documents the Court considered in this record review is attached to
this Order as an Appendix.
                                   Claim History

       Mr. Humphrey is a sixty-three-year-old resident of Marshall County,
Tennessee. On December 23, 2014, a little less than two weeks prior to the date
of the alleged accident, Mr. Humphrey presented at Fast Pace Medical Clinic,
PLLC “with a chief complaint of pain of the left lower extremity.” (R. 4.) Fast
Pace’s providers diagnosed Mr. Humphrey with a sprain or strain and instructed
him to follow up with his primary care physician. Id.

       In his Petition for Benefit Determination (PBD), Mr. Humphrey alleged
that, on January 5, 2015, he fell and fractured his femur while walking from his
car to the door of his workplace at Lewisburg Rubber. He wrote, “walking on
crutches, due to sprained mussel [sic], slipped and fell on uneven ground in
parking lot, not handicapped [sic] friendly.” (R. 5.)

       That same day, Mr. Humphrey went to Marshall Medical Center where
providers transferred him to Williamson Medical Center upon determining he had
a fractured hip. At Williamson Medical Center, the medical notes indicate Mr.
Humphrey told Dr. Charnes he developed a “twinge in the left hip” while stepping
over his cats as he walked down the stairs to his basement carrying groceries
approximately two weeks before the date of the alleged workplace accident. (R.
9.)

       Following the incident at home, Dr. Charnes’ notes indicate Mr. Humphrey
experienced left-sided groin pain over the next several days, and went to a walk-in
clinic where he received medication. Id. His pain, however, continued to worsen
until he “felt kind of a pop in the left hip” while getting into his truck to go to
work the morning of January 5. When he arrived at work, the medical records
indicate that the he felt a similar discomfort in his hip while exiting his truck. He
used crutches to ambulate and received assistance from co-workers. Despite the
crutches and assistance of co-workers, Mr. Humphrey “eventually ended up flat on
his back in the parking lot.” Id. In the medical notes, Dr. Charnes stated the
following:

       [T]alking with the patient I feel that he initially injured that hip when
       he was walking down the stairs a few weeks back with his groceries,
       maybe that was the initial injury and then he had a further break
       today. Unclear on that, either way he has a left hip fracture.

Id.

      Dr. Perkinson, an orthopedic surgeon, operated on Mr. Humphrey’s hip on
January 6, 2015. (R. 7.) The operation note states, “The patient [is] a 62-year-old

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male who reports an approximately 2-week history or antecedent left hip pain after
going up stairs. He subsequently had a fall yesterday and was unable to
ambulate[.]” Id.

        Lewisburg Rubber filed a First Report of Injury on January 20, 2015. (R.
1.) The report stated it received notice of the injury on January 17, 2015. On
January 28, 2015, Lewisburg Rubber denied Mr. Humphrey’s claim, asserting that
his injury did not occur in the course and scope of his employment. (R. 2.)

       On May 13, 2015, Dr. Perkinson wrote a letter stating he believed Mr.
Humphrey’s femur fracture “was caused by his fall and not from a prior injury.”
(R. 3.) Mr. Humphrey filed a PBD seeking temporary disability and medical
benefits. (R. 5.) Mr. Humphrey and Lewisburg Rubber did not settle their dispute
through mediation, and the Mediating Specialist filed a Dispute Certification
Notice (DCN). (R. 14.) The DCN, however, did not list medical benefits as a
disputed issue.

       When neither party requested a hearing, the Court issued a show cause
order. Following a hearing, the Court declined to dismiss the claim but ordered
Mr. Humphrey to request a hearing before October 21, 2015. (R. 13.) Mr.
Humphrey filed a Request for Expedited Hearing and asked the Court to issue a
ruling based on the documents in the claim file. (R. 15.) Mr. Humphrey did not
provide an affidavit with his Request for Expedited Hearing. Lewisburg Rubber
did not file an objection to the Court considering Mr. Humphrey’s Request for
Expedited Hearing despite his failure to file an affidavit.

                      Application of Law and Conclusion

       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). The employee in a
workers’ compensation claim has the burden of proof on all essential elements of a
claim. Tindall v. Waring Park Ass’n, 725 S.W.2d 935, 937 (Tenn. 1987); Scott v.
Integrity Staffing Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd.
LEXIS 24, at *6 (Tenn. Workers’ Comp. App. Bd. Aug. 18, 2015). An employee
need not prove every element of his or her claim by a preponderance of the
evidence in order to obtain relief at an expedited hearing. McCord v. Advantage
Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6,
at *7-8, 9 (Tenn. Workers’ Comp. App. Bd. Mar. 27, 2015). At an expedited
hearing, an employee has the burden to come forward with sufficient evidence
from which the trial court can determine that the employee is likely to prevail at a
hearing on the merits. Id.

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       Under the Workers’ Compensation Law, an injury is accidental “only if the
injury is 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(13)(A) (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[.]” Tenn.
Code Ann. § 50-6-102(13)(B) (2014).

       The statutory requirements that an injury arise out of and in the course of
the employment are not synonymous “although both elements exist to ensure a
work connection to the injury for which the employee seeks benefits.”
Blankenship v. Am. Ordnance, 164 S.W.3d 350, 354 (Tenn. 2005).2 “Arising out
of employment” refers to causation. Reeser v. Yellow Freight Sys., 938 S.W.2d
690, 692 (Tenn. 1997). An injury arises out of employment when there is a causal
connection between the resulting injury and the conditions under which the work
is required to be performed. Fritts v. Safety Nat'l Cas. Corp., 163 S.W.3d 673,
678 (Tenn. 2005). An injury occurs in the course of employment if it takes place
while the employee performs a duty he or she is employed to perform. Fink v.
Caudle, 856 S.W.2d 952, 958 (Tenn. 1993). Thus, the “course of employment”
requirement focuses on the time, place, and circumstances of the injury. Saylor v.
Lakeway Trucking, Inc., 181 S.W.3d 314, 318 (Tenn. 2005).

       Here, Dr. Charnes’ records show that Mr. Humphrey told him he felt a
“twinge” in his hip several weeks before January 5, 2015, while carrying groceries
and stepping over his cats as he walked down the basement stairs in his home.
The pain progressively grew worse. On January 5, 2015, he felt a “pop” in his hip
while getting into, or out of, his truck. He described the pop as “very painful,” and
indicated he could no longer bear weight on his leg. He then used crutches to
ambulate towards the office door. Coworkers assisted Mr. Humphrey but he
“eventually ended up flat on his back in the parking lot.” The medical records do
not show that Mr. Humphrey told Dr. Charnes he fell in the parking lot. Instead,
the Court reads the records as showing that Mr. Humphrey was already in
considerable pain before he “ended up on his back” in the parking lot.



2
  The Tennessee Workers’ Compensation Appeals Board allows reliance on precedent from the Tennessee
Supreme Court “unless it is evident that the Supreme Court’s decision or rationale relied on a remedial
interpretation of pre-July 1, 2014 statutes, that it relied on specific statutory language no longer contained
in the Workers’ Compensation Law, and/or that it relied on an analysis that has since been addressed by the
general assembly through statutory amendments.” McCord v. Advantage Human Resourcing, No. 2014-
06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *13 n.4 (Tenn. Workers’ Comp. App. Bd. Mar. 27,
2015).

                                                      4
        Additionally, the January 6, 2015 operation note from Dr. Perkison states
that Mr. Humphrey experienced two weeks of left hip pain after going up stairs
and then had a fall “yesterday”—January 5, 2015. The notes state nothing about
the circumstances of the fall including where, or when, it occurred.

        Mr. Humphrey maintains in his PBD that he fell in the parking lot. He
attributes his broken femur to the fall. Mr. Humphrey, however, provided no
sworn testimony via affidavit to support his claim. Accordingly, the only credible
evidence before the Court regarding causation comes from the statements
attributed to him through the medical records. The Court finds the contents of
these statements insufficient to establish that Mr. Humphrey suffered an injury by
accident as defined by the Workers’ Compensation Law. Instead, the medical
records present more questions concerning the cause of his injury than answers.
Some of these questions might have been answered if Mr. Humphrey had filed an
affidavit supporting his Request for Expedited Hearing.

       For these reasons, the Court finds that Mr. Humphrey is not likely to
succeed at a hearing on the merits based on the documentation contained in the
claim file. Accordingly, Mr. Humphrey’s claim for temporary disability benefits
is denied at this time.

IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Humphrey’s claim for temporary disability benefits is denied at this
      time.

   2. This matter is set for a Scheduling Hearing on December 1, 2015, at 9:30
      a.m. (CST).

ENTERED ON THIS THE 17th DAY OF NOVEMBER, 2015.



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

Scheduling Hearing:

       A Scheduling 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 Hearing.


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       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
Time (CT).

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 business
            days of the date the Workers’ Compensation Judge entered the
            Expedited Hearing Order.

         3. Serve a copy of the Expedited Hearing Notice of Appeal upon the
            opposing party.

         4. The appealing party is responsible for payment of a filing fee in the
            amount of $75.00. Within ten calendar days after the filing of a
            notice of appeal, payment must be received by check, money order,
            or credit card payment. Payments can be made in person at any
            Bureau office or by United States mail, hand-delivery, or other
            delivery service. In the alternative, the appealing party may file an
            Affidavit of Indigency, on a form prescribed by the Bureau, seeking
            a waiver of the filing fee. The Affidavit of Indigency may be filed
            contemporaneously with the Notice of Appeal or must be filed
            within ten calendar days thereafter. The Appeals Board will
            consider the Affidavit of Indigency and issue an Order granting or
            denying the request for a waiver of the filing fee as soon thereafter
            as is practicable. Failure to timely pay the filing fee or file the
            Affidavit of Indigency in accordance with this section shall result
            in dismissal of the appeal.

         5. 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
            calendar days of the filing of the Expedited Hearing Notice of
            Appeal. Alternatively, the parties may file a joint statement of the

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   evidence within ten calendar days of the filing of the Expedited
   Hearing Notice of Appeal. The statement of the evidence must
   convey a complete and accurate account of what transpired in the
   Court of Workers’ Compensation Claims and must be approved by
   the workers’ compensation judge before the record is submitted to
   the Clerk of the Appeals Board.

6. If the appellant elects to file a position statement in support of the
   interlocutory appeal, the appellant shall file such position statement
   with the Court Clerk within three business days of the expiration of
   the time to file a transcript or statement of the evidence, specifying
   the issues presented for review and including any argument in
   support thereof. A party opposing the appeal shall file a response, if
   any, with the Court Clerk within three business days of the filing of
   the appellant’s position statement. All position statements pertaining
   to an appeal of an interlocutory order 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.




                               7
                                 APPENDIX

1. First Report of Injury, filed January 20, 2015
2. Notice of Denial of Claim for Compensation, dated January 28, 2015
3. May 13, 2015 letter from Dr. Brian T. Perkinson
4. Medical records of Fast Pace Medical Clinic, PLLC
5. Petition for Benefit Determination
6. Medical records of Williamson Medical Center
7. Medical records of Dr. Perkinson
8. Medical records of Dr. Calendine
9. Medical records of Dr. Charnes
10. X-ray
11. Lab result
12. Pay checks
13. Show Cause Hearing Order
14. Dispute Certification Notice
15. Request for Expedited Hearing
16. Lewisburg Rubber and Gasket’s letter to the Mediating Specialist




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                          CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the foregoing was sent to the
 following recipients by the following methods of service on this the ___day
                                                                           17th     of
 November, 2015.


Name                 Certified   Via      Via     Email Address
                     Mail        Fax      Email
Andy Humphrey                             x       Andh1@bellsouth.net
Gordon Aulgur                             x       Gordon.aulgur@accidentfund.com


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




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