                                                                                  FILED
                                                                                Jun 25, 2018
                                                                                09:06 AM(CT)
                                                                              TENNESSEE COURT OF
                                                                             WORKERS' COMPENSATION
                                                                                    CLAIMS




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

TERESA SIMS,                                 )   Docket No. 2018-06-0105
         Employee,                           )
v.                                           )
                                             )
FRED’S, INC.,                                )   State File No. 66673-2016
          Employer,                          )
                                             )
SAFETY NATIONAL CASUALTY                     )
CORP.,                                       )   Judge Joshua Davis Baker
         Carrier.                            )



            EXPEDITED HEARING ORDER GRANTING BENEFITS


       The Court convened an Expedited Hearing on June 14, 2018. Ms. Sims requested
reinstatement of medical and temporary disability benefits that Fred’s suspended after the
authorized physician refused to operate due to Ms. Sims’ uncontrolled diabetes. Fred’s
argued Ms. Sims’ failure to control her preexisting diabetes rendered her noncompliant.
For the reasons below, the Court holds Ms. Sims is likely to prevail at a hearing on the
merits and orders Fred’s to reinstitute her benefits.

                                    History of Claim

       On August 29, 2016, Ms. Sims suffered multiple injuries, including injuries to her
ankle and back, when she fell from a truck cab while working for Fred’s. Fred’s accepted
her claim as compensable and provided medical treatment with several physicians,
including Dr. Tarek Elalayli.

       Dr. Elalayli treated Ms. Sims’ back injury and then referred her to Dr. Roger
Passmore. Dr. Passmore diagnosed a calcaneus fracture and recommended surgery, but
he then cancelled the surgery because of Ms. Sims’ uncontrolled diabetes.

       Ms. Sims testified she sporadically received diabetic treatment for twenty-five
years. She had no insurance, so she often purchased insulin and supplies out-of-pocket
and rationed them. Ms. Sims said she could not afford the treatment needed to control
her diabetes and allow Dr. Passmore to operate.

        After Dr. Passmore cancelled the surgery, Fred’s suspended Ms. Sims’ benefits on
November 21, 2017, for non-compliance “with controlling her insulin levels.” Ms. Sims
testified she earned no income from that date until she began working for a temporary
agency on March 26, 2018. Ms. Sims earned an average weekly wage of $855.32 which
translated to a compensation rate of $570.21.

       Both Drs. Passmore and Elalayli completed Standard Form Medical Reports. Dr.
Elalayli reported that Ms. Sims’ inability to work because of her back injury lasted until
January 8. Dr. Passmore provided no date and wrote, “Unknown as I have only seen the
patient once almost one year after her injury.”

                          Findings of Fact and Conclusions of Law

       Ms. Sims 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. Instead, Ms.
Sims 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 carried this burden and orders
Fred’s to provide her temporary disability and medical benefits.

       An employer is required to provide an injured worker “such medical and surgical
treatment . . . as ordered by the attending physician . . . made reasonably necessary by
accident.” See Tenn. Code Ann. § 50-6-204(a)(1)(A) (2017). However, when an
employee refuses to “accept the medical or specialized medical services” the employer is
obligated to furnish, then “compensation shall be suspended and no compensation shall
be due and payable while the injured employee continues to refuse.” Id. at 50-6-
204(d)(8).

       Fred’s argued Ms. Sims is noncompliant with medical treatment because she
neglected to control her diabetes. Fred’s also insists it should not be required to act as her
private health insurer simply because she lacks coverage to control her diabetes. Ms.
Sims asserted her benefits were wrongfully suspended, as she did not refuse treatment,
services, or an examination. She emphasized she would not need medical care to manage
her diabetes if not for her work injury. She requested reinstatement of her benefits,
repayment of accrued benefits, and diabetic treatment to facilitate her ankle surgery.1



1
 Ms. Sims also requested assessment of twenty-five percent penalty under Tenn. Code Ann. section 50-6-
205(b)(3)(A) for Fred’s failure to timely pay temporary disability benefits after November 27, 2017. The
Court will address this issue via a separate order if necessary.
                                                       2
       The Workers’ Compensation Law requires an employer to take an employee as he
finds him. See Coleman v. Coker, 321 S.W.2d 540, 541 (Tenn. 1959). When the primary
injury is shown to have arisen out of and in the course of employment, every natural
consequence that flows from the injury likewise arises out of the employment. See
Ogden v. McMinnville Tool and Die, Inc., TN Wrk. Comp. App. Bd. LEXIS 14, at * 11
(May 7, 2018). Additionally, all the medical consequences and sequelae that flow from a
primary injury are compensable. Id.
       Ms. Sims cited Rogers v. Shaw, 813 S.W.2d 397 (Tenn. 1991) to support her
argument that Fred’s must provide her diabetic treatment. In Rogers, the Tennessee
Supreme Court ordered the employer to pay for heart bypass surgery to treat a preexisting
cardiovascular condition because the employee could not have surgery for the work
injury without first undergoing the bypass. The Court wrote, “Although the experts
agreed that the bypass surgery was ‘needed,’ there was no proof that immediate treatment
was required or planned solely due to the heart condition.” Id. at 400. Significantly, his
need for the bypass surgery did not arise from his preexisting condition but arose instead
from his work injury.
       In determining if Ms. Sims’ need for diabetic treatment is the direct and natural
result of her work injury, the essential issue is whether that treatment is “reasonably
necessary” to treat her work injury. Dr. Passmore recommended surgery for Ms. Sims’
work injury but refused to operate until her diabetes came under control. Ms. Sims
credibly testified that she needs treatment to control her diabetes so she can have surgery,
but she cannot afford it. As in Rogers, Ms. Sims needs treatment for her preexisting
condition, but she planned no “immediate treatment” until the workplace accident. In
other words, Ms. Sims could continue living with poorly controlled diabetes if not for her
work injury. Thus, the Court holds she would likely prevail in proving the
reasonableness and necessity of the diabetic treatment at a trial on the merits.
        The Court further holds Fred’s must pay Ms. Sims accrued temporary disability
benefits. To recover temporary total disability benefits at an expedited hearing, Ms. Sims
must show she would likely prevail at hearing on the merits in proving: (1) she is totally
disabled and unable to work due to a compensable injury, (2) the work injury and
inability to work are causally connected, and (3) the duration of her disability. Jewell v.
Cobble Constr. and Arcus Restoration, 2015 TN Wrk. Comp. App. Bd. LEXIS 1, at *21
(Jan. 12, 2015).
       The Court finds Ms. Sims would likely prevail in proving all three elements at a
hearing on the merits. Based on Dr. Elalayli’s opinion, her back injury prevented her
from working until January 8, 2018.2 Fred’s ended her benefit payments on November

2
  Because Dr. Passmore declined to offer his opinion on the C-32 Standard Form Medical Report without
further examining Ms. Sims, the Court cannot ascertain whether Ms. Sims would likely prevail in proving
entitlement to temporary disability benefits from January 8, until she began working for the temporary
agency on March 26, 2018 .
                                                    3
26, 2018. Fred’s must pay Ms. Sims the accrued temporary disability benefits for this
six-week period.
      It is ORDERED as follows:

   1. Fred’s shall reinstate Ms. Sims’ medical benefits.

   2. Fred’s shall pay Ms. Sims $3,421.26 in accrued temporary disability benefits.

   3. Fred’s shall provide a panel of physicians from which Ms. Sims’ shall select one
      to serve as an authorized treating physician for diabetic treatment that would
      facilitate surgery for her work-related ankle injury.

   4. This matter is set for a status conference on Monday, August 27, 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.


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


ENTERED ON JUNE 25, 2018.



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




                                            4
                                        APPENDIX

Exhibits:

   1.   Medical Records
   2.   Ms. Sims’ Rule 72 Declaration
   3.   First Report of Injury
   4.   Wage Statement
   5.   Notice of Controversy

Technical Record:

   1.   Petition for Benefit Determination
   2.   Dispute Certification Notice
   3.   Request for Expedited Hearing
   4.   Fred’s Prehearing Brief
   5.   Ms. Sims’ Prehearing Brief




                                             5
                          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 June ____,
                                                        25th 2018.


Name                      Certified   Via        Via    Service sent to:
                           Mail       Fax       Email
Zachary Wiley,                                    X     zwiley@forthepeople.com
Employee’s Attorney                                     rforrest@forthepeople.com

James Tucker,                                    X      jtucker@manierherod.com
Employer’s Attorney




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




                                            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.
   Filed Date Stamp Here                     EXPEDITED HEARING NOTICE OF APPEAL
                                                  Tennessee Division of Workers' Compensation
                                                                                                     Docket#: - - - -- -- - --
                                                      www.tn.go v/labor-wfd/wcomp.shtm l
                                                                                                     State File #/YR: - - -- - - --
                                                             wc.courtclerk@tn.gov
                                                                1-800-332-2667                       RFA#: _ _ _ _ _ _ _ _____ _

                                                                                                     Date of Injury: - - - -- - - - -
                                                                                                     SSN: _______ _ ______ __




                      Employee


                      Employer and Carrier

          Notice
          Noticeisg~enthat _ _ _ _ _ _ _~~--~~~~---~~~--------~
                                    [List name(s) of all appealing party(ies) on separate sheet if necessary]

          appeals the order(s) of the Court of Workers' Compensation Claims at _ __

           -~~~-----~~~~~~~~-to the Workers' Compensation Appeals Board .
           [List the date(s) the order(s) was filed in the court clerk's office]

          Judge___________________________________________

          Statement of the Issues
          Provide a short and plain statement of the issues on appeal or basis for relief on appeal:




          Additional Information
          Type of Case [Check the most appropriate item]

                             D   Temporary disability benefits
                             D   Medical benefits for current injury
                             D   Medical benefits under prior order issued by the Court

          List of Parties
          Appellant (Requesting Party): _____________ .A t Hearing: DEmployer DEmployee
          Address:. _______________________ ______________ ___________

          Party's Phone:.____________________________ Email: _________________________

          Attorney's Name:________________________________ ___ BPR#: - - - - - - - - - - - -

          Attorney's Address:. _ _ _ _ _~~-~~~~----~~----                                             Phone:
          Attorney's City, State & Zip code: _____________________ ___________ _ _ _ __ _
          Attorney's Email :_ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ __ _ _ _ __ _ _ _ _ _ _ __

                                        *Attach an additional sheet for each additional Appellant*

LB-1099    rev.4/15                                        Page 1 of 2                                                     RDA 11082
Employee Name: - - - -- - - -- - - -              SF#: _ _ _ _ __ _ _ _ _ DO l: _ __             _ __




Aopellee(s)
Appellee (Opposing Party): _ _ _ _ _ _ _ _.At Hearing: OEmployer DEmployee



Appellee's Address: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Appellee's Phone:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _.Email:_ _ _ _ _ _ __ _ _ _ _ _ __

Attorney's Name:_ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ BPR#: - - - - - - - -
Attorney's Address:._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Phone:

Attorney's City, State & Zip code: - - - -- - - - - - - - - - - - - - - - - - - -- -
Attorney's Email:._ _ _ _ __ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

                       * Attach an additional sheet for each additional Appellee *


CERTIFICATE OF SERVICE

I,                                             certify that I have forwarded a true and exact copy of this
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules of
Board of Workers' Compensation Appeals on this the              day of__, 20_ .



[Signature of appellant or attorney for appellant]



LB-1099   rev.4/1S                                Page 2 of 2                              RDA 11082
 .
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
