                                                                             FILED

                                                                           TN COURI'OF
                                                                    l'\rORKIRS' CO..;JPl .S ..'\.TION
                                                                             CLilllS

                                                                            Time· 1:32 PM
           TENNESSEE BUREAU OF WORKERS' COMPENSATION
          IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                           AT NASHVILLE

Cleaster Marshall,                          )   Docket No. 2016-06-1687
            Employee,                       )
v.                                          )
Gate Precast Company,                       )   State File No. 67709-2016
            Employer,                       )
And                                         )
XL Specialty Insurance,                     )   Judge Kenneth M. Switzer
            Carrier.                        )


       EXPEDITED HEARING ORDER DENYING REQUESTED RELIEF


        This case came before the undersigned Workers' Compensation Judge on March
30, 2017, on Mr. Marshall's Request for Expedited Hearing. The present focus of this
case is whether he gave legally sufficient notice of his alleged work-related injury and
whether he suffered an injury arising primarily out of and in the course and scope of
employment with Gate Precast. For the reasons set forth below, the Court holds Mr.
Marshall gave sufficient notice but did not come forward with sufficient evidence of an
injury arising primarily out of employment. Thus, the Court denies his requested relief at
this time.

                                    History of Claim

       Mr. Marshall worked for Gate Precast. He alleged that on February 14, 2016, he
was "working on a pad" and "building steps" at a university. He had to kneel to do the
work, and as long he was kneeling on a flat surface and wearing knee pads, he felt okay.
However, to do this work, the steps were laid down in a "v" shape, and Mr. Marshall had
to kneel with his knees inside the "v." After several hours in that position, he
experienced knee pain and promptly told his supervisor, Nathan Grissom. The next day
at work, the pain "really got bad," necessitating medical care. The description Mr.
Marshall provided on his Petition for Benefit Determination (PBD) of the mechanism of
injury similarly states:


                                            1
        2-14-16 I was working on a Pad [sic] & we were building steps for a
        University. The first day my knees started hurting. I complained about &
        over night my knees swole real badly & the next day I had to do the same
        job which was 2-15-2016. And my knees continued to get worse. The next
        Day I went to see my Doctor Korivi. . . . This was also reported to my
              .     I
        superv1sor.

        Mr. Marshall further testified that constant standing at work caused the veins in his
legs "to break." He attempted to introduce documentation into evidence regarding this
allegation, but the Court denied his request because he failed to timely file the
documents. 2

        Mr. Marshall additionally stated he fell on the ice at work, landing on his hip, on
February 9, 2016, and he "might have" told Gate Precast at that time he did not need
treatment as a result of the fall. He acknowledged previous treatment with his hip but
stated, "I got reinjured when I fell," and, "later on it bothered me." He also alleged an
eye injury from "mixing chemicals" on his PBD but offered no testimony or documentary
evidence to support the allegation.

        Mr. Marshall saw his primary care physician, Dr. Giriprasadarao Korivi, on
February 16. (Ex. 2 at 1-2, 4-5.) Mr. Marshall gave a history of"right knee and hip pain:
ongoing for 3 years or longer. Intermittent exacerbation. Current exacerbation x 1 week.
fell [sic] on his right hip last week. He is able to walk but notes worsening knee pain. He
has had steroid shots in the hip and knee in the past." Dr. Korivi diagnosed right-knee
and right-hip pain, referred him for an orthopedic evaluation, and excused him from work
for that day.

       The next day, Mr. Marshall saw Dr. Allison Cabrera, an orthopedic surgeon. (Ex.
2 at 14-20.) Records from that visit state that she saw him previously for bilateral hip
pain, and, "[T]oday is having hip, buttock and knee pain, right knee is the most severe.
He was kneeling for some time at work within the last week and says that really
aggravated his knee[.] ... He is not currently taking any medication for and no new

1
  Gate Precast argued February 14, 2016, was a Sunday and that Mr. Marshall did not work that day. Mr.
Marshall conceded the date of injury was not a Sunday. The Court finds the incident occurred on
February 15, 2016, rather than February 14, as noted on the PBD. The discrepancy, in and of itself, is not
determinative of the outcome in this case. As our Supreme Court observed, "Even if minor and
insignificant details vary, an injured worker should not be penalized simply for being a poor historian."
Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 677 (Tenn. 1991).
2
  See Tenn. Comp. R. & Regs. 0800-020-21-.14( 1)(a)-( c) (20 16) (Request for expedited hearing must be
accompanied by documents demonstrating the party is entitled to the requested relief, and evidence not
disclosed in accordance with this rule will not be considered unless good cause is shown as to why the
evidence/witness was not disclosed.).


                                                    2
injury or falls." She diagnosed primary osteoarthritis of the right hip, "other chronic
pain," and "chronic pain of the right knee," and excused him from work until February
22. Mr. Marshall submitted no additional records from Dr. Cabrera after this visit. He
testified he continued to work despite the pain because he felt he "had no other choice."
Mr. Marshall insisted that telling Gate Precast about work injuries rarely resulted in
seeing a doctor, but rather the typical response was just to "Take it easy." Gate Precast
terminated him in May 2016 citing "lack of work."

       Gate Precast contested the sufficiency of Mr. Marshall's notice and whether he
sustained an injury as defined by the Workers' Compensation Law.

       With regard to its notice argument, Gate Precast offered into evidence documents
its counsel referred to as "affidavits" from two supervisors, who denied Mr. Marshall
reported a knee injury, but rather stated that he fell on ice before the alleged date of injury
and did not need medical treatment. The Court declined to admit the documents into
evidence because the notary's statement reads that the notary herself made the statement
and does not state that the affiants were sworn. Therefore, they are not valid affidavits. 3

        Gate Precast relied on the testimony of Sarah Parker, its human resources
manager, who testified she investigated the claim and first learned that Mr. Marshall filed
a workers' compensation claim in September after he filed his PBD and several months
after his termination. She stated Mr. Marshall reported falling on ice on February 9 but
according to an incident report, which was not admitted into evidence, he told supervisors
he did not need treatment. According to Ms. Parker, he gave no notice of a knee injury
after that date. Gate Precast never provided a panel or authorized any treatment.

       As to whether Mr. Marshall sustained an injury as defined by the Workers'
Compensation Law, Gate Precast argued Mr. Marshall suffered from longstanding
preexisting conditions.     Medical records from Dr. Korivi indicate he diagnosed
osteoarthritis as early as August 2014. Notes from the next visit of April 1, 2015, read
that Dr. Korivi diagnosed "bilateral knee pain and swelling: present for 3 years. No
better with shots. had [sic] seen dr. Cabrera for this." Mr. Marshall additionally saw Dr.
Kishorkumar Desai, a rheumatologist, in May 2015, who diagnosed joint pain,
rheumatoid arthritis and osteoarthritis.

      Mr. Marshall, who is self-represented, wrote on the PBD that the date of injury is
"1997 2nd time 2013." He clarified that he suffered hernias at work in 1997 and 2010 or
2013. The Court explained at the Expedited Hearing that it has no jurisdiction to order

3
  "An affidavit is a written statement by an affiant that was made under oath." Kenyon v. Handa/, 122
S.W.3d 743, 752 n.6 (Tenn. Ct. App. 2003). "The document, without a signature or oath, does not
commit its purported author to any of the substantive statements it contains and, thus, has no evidentiary
value." !d. at 752.


                                                    3
any relief for Mr. Marshall's alleged injuries sustained before July 1, 2014, precluding
workers' compensation benefits related to the hernias.

                       Findings of Fact and Conclusions of Law

       As in all workers' compensation actions, Mr. Marshall, as the claimant, has the
burden of proof on the essential elements of his claim. Scott v. Integrity Staffing
Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). However,
since this is an expedited hearing, he only has to come forward with sufficient evidence
from which the Court can determine he is likely to prevail at a hearing on the merits in
order to meet his burden. McCord v. Advantage Human Resourcing, 2015 TN Wrk.
Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

         Applying these legal principles first within the context of Gate Precast's notice
defense, the Workers' Compensation Law mandates that "[e]very injured employee ...
shall, immediately upon the occurrence of an injury, or as soon thereafter as is reasonable
and practicable, give or cause to be given to the employer who has no actual notice,
written notice of the injury." Tenn. Code Ann. § 50-6-201(a)(l) (2015). The statute
additionally provides that "[n]o compensation shall be payable . . . unless the written
notice is given to the employer within thirty (30) days after the occurrence of the
accident, unless reasonable excuse for failure to give the notice is made to the
satisfaction of the tribunal to which the claim for compensation may be presented." !d.
(emphasis added). The notice requirement contained in section 50-6-201 "exists so that
the employer will have the opportunity to make a timely investigation of the facts while
still readily accessible, and to enable the employer to provide timely and proper treatment
for the injured employee." Buckner v. Eaton Corp., et al., 2016 TN Wrk. Comp. App.
Bd. LEXIS 84, at *6-7 (Nov. 9, 2016).

        Here, the Court finds Mr. Marshall credibly testified that he told Mr. Grissom
about injuring his knees after almost a full day's work kneeling on them inside the "v" of
stairs laid flat. Gate Precast's counsel vigorously cross-examined him, yet Mr. Marshall
did not alter his testimony. Gate Precast did not offer countervailing testimony from Mr.
Grissom. Further, Ms. Parker did not relay first-hand knowledge regarding the
circumstances of Mr. Marshall's injuries but rather conveyed her impressions resulting
from her "investigation," largely of hearsay documents and conversations with
supervisors about events that happened several months earlier. The Court accredits Mr.
Marshall's testimony over hers in this regard.

       However, to award the benefits Mr. Marshall seeks, he must satisfy his burden to
show he is likely to prevail at a hearing on the merits regarding whether he sustained an
injury as defined in the Workers' Compensation Law. That definition provides that
"injury" means an "injury by accident ... arising primarily out of and in the course and
scope of employment, that causes ... disablement or the need for medical treatment[.]"

                                             4
Tenn. Code Ann. § 50-6-102(14). The definition further states that an injury does not
include "the aggravation of a preexisting disease, condition or ailment unless it can be
shown to a reasonable degree of medical certainty that the aggravation arose primarily
out of and in the course and scope of employment[.]" !d. at § 50-6-102(14)(A). In
addition, 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."
!d. at § 50-6-102(14)(B). Moreover, this must be shown "to a reasonable degree of
medical certainty." !d. at§ 50-6-102(14(C).

        Applying these criteria, the Court looks to the medical evidence and finds that Mr.
Marshall suffers from osteoarthritis and rheumatoid arthritis, the onset of which pre-dated
February 2016. The medical records from the February 16 visit with Dr. Korivi mention
a fall at work approximately one week before the visit, but are notably silent regarding
the kneeling incident. Meanwhile, Dr. Cabrera's notes from February 17 mention pain
while kneeling but also that he reported "no new injuries or falls."

        McCord instructs that Mr. Marshall need not prove his case by a preponderance of
the evidence at the expedited hearing phase, but at the lower standard that he is "likely to
prevail at a hearing on the merits." The Court cannot find at this time that Mr. Marshall
satisfied even this lower burden, given that the medical records are equivocal at best
regarding his history, and they strongly suggest that other causes, such as Mr. Marshall's
preexisting arthritis, might be responsible for the onset of pain he experienced at work,
rather than his employment activities. As our Appeals Board observed, "an injury purely
coincidental, or contemporaneous, or collateral, with the employment ... will not cause
the injury ... to be considered as arising out of the employment." Hosford v. Red Rover
Preschool, 2014 TN Wrk. Comp. App. Bd. LEXIS 1, at *20-21 (Oct. 2, 2014) (Citation
omitted). Therefore, as a matter of law, Mr. Marshall has not come forward with
sufficient evidence from which this Court concludes that he is likely to prevail at a
hearing on the merits, and his request for workers' compensation benefits is denied at this
time.

       As a final matter, after Mr. Marshall filed the PBD, Bureau staff notified Gate
Precast of its obligation to file a First Report of Injury. Likewise, the mediation specialist
made a penalty referral for Gate Precast's failure to file this required form. Court staff
brought this to Gate Precast's counsel's attention on the date of the Expedited Hearing.
To date, it has failed to file the form. Tennessee Compilation Rules and Regulations
0800-2-14-.03(2) requires insurers to file a report of accident on Form C-20. Further, any
Bureau employee may refer any entity to the penalty program for the assessment of a
penalty whenever the referring employee believes there may have been a violation of the
Bureau's rules. Tenn. Comp. R. & Regs. 0800-02-24-.03. The Court believes there may
have been a rules violation and thus refers the matter to the Penalty Unit for consideration
of whether a penalty assessment is warranted.

                                              5
IT IS, THEREFORE, ORDERED as follows:

  1. Mr. Marshall's claim against Gate Precast and its workers' compensation carrier
     for the requested medical and temporary disability benefits is denied at this time.

  2. This matter is set for a Scheduling Hearing on May 22, 2017, at 9:00a.m. Central.
     You must call 615-532-9552 or toll-free at 866-943-0025 to participate in the
     Hearing. Failure to call in may result in a determination of the issues without
     your further participation.

  3. This matter is referred to the Penalty Unit for consideration of whether a penalty
     should be assessed regarding the employer/carrier's failure to file Form C-32.

                                ENTERED this the 4th day of April, 2017.



                                  dge Kenneth M. Switzer
                                Court of Workers' Compensat




                                          6
                                      APPENDIX

Exhibits:
   1. Affidavit
   2. Medical records
   3. Wage statement
   4. Letter from Bureau of Workers' Compensation to Gate Precast
   5. Penalty Referral Checklist
   6. Revised wage statement
   7. Separation notice

Technical record:
   1. Petition for Benefit Determination
   2. Employer position statement
   3. Dispute Certification Notice
   4. Request for Expedited Hearing
   5. Employer and Insurance Carrier Response in Opposition to Employee's Request
      for Expedited Hearing; (Blank discovery, interrogatories, was attached but no
      motion to compel was filed. Therefore, it is not included as part of the technical
      record.)
   6. Employer's Supplemental Response in Opposition to Employee's Request for
      Expedited Hearing (Without attachments)

                            CERTIFICATE OF SERVICE

       I certify that a true and correct copy of the Expedited Hearing Order Denying
Requested Relief was sent to the following recipients by the following methods of service
on this the 4th day of April, 2017.

Name                    Certified Via     Via     Service sent to:
                        Mail      Fax     Email
Cleaster Marshall,         X                      567 Donna Dr., Clarksville TN 37042
Self-represented
Fred Hodge,                                 X     tbodge@howell- fisher. com
Employer's Counsel
Penalty Unit                                X     WCCompliance.Program(a),tn. !!OV




                                                rum, Clerk of Court
                                         Court Workers' Compensation Claims
                                         WC.CourtClerk@tn.gov

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