The opinion
FILED
Oct 10, 2024
12:42 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
JANICE SCOTT, ) Docket No.: 2023-08-01415
Employee, )
)
v. )
)
THE KROGER CO., )
Employer, ) State File No.: 24257-2022
)
And )
TROY HALEY, as ADMINISTRATOR of )
the BUREAU OF WORKERS’ )
COMPENSATION, SUBSEQUENT INJURY )
and VOCATIONAL RECOVERY FUND. ) Judge Shaterra R. Marion
)
EXPEDITED HEARING ORDER DENYING BENEFITS
(DECISION ON THE RECORD)
Ms. Scott requested an expedited hearing with a decision on the record in which she
seeks medical benefits for her alleged work injury. Kroger argued that her work injury did
not primarily cause the need for the medical treatment. For the reasons below, the Court
denies the requested benefits.
History of Claim
Ms. Scott claimed she injured her shoulder on February 26, 2022, when lifting a
heavy box. Her authorized treatment included a shoulder injection, x-rays, and an MRI,
which showed a chronic tendon tear and high-grade muscle atrophy.
On July 11, 2022, Ms. Scott’s authorized doctor referred her to orthopedist Dr.
Thomas Throckmorton for “discussions of definitive treatment.” Kroger provided a panel
of orthopedics four days later that included Dr. John Lochemes. 1
Ms. Scott signed the panel, selecting Dr. Lochemes on August 18, 2022. However,
she would not see him until almost a year later. At a mediation in August 2023, she agreed
to Dr. Lochemes as the authorized treating physician.
Shortly after the mediation, she sent a letter to her then-attorney saying that she
changed her mind and did not want to see Dr. Lochemes. Instead, she wanted to see Dr.
Throckmorton or another shoulder specialist. Kroger did not present evidence as to whether
it received this communication.
Despite the intentions stated in the letter, Ms. Scott did see Dr. Lochemes on
September 26, 2023. Dr. Lochemes conducted an exam and ordered shoulder x-rays, which
showed chronic rotator cuff arthropathy. He also reviewed her MRI and diagnosed chronic
rotator cuff arthropathy and a right-shoulder strain.
Dr. Lochemes recommended that Ms. Scott undergo a reverse total shoulder
operation, but he did not find that her work injury contributed more than 50% to the need
for the procedure. He also suggested that she see Dr. Throckmorton under her own
insurance for the surgery.
Ms. Scott requested to treat with Dr. Throckmorton to receive another opinion on
the primary cause of her shoulder injury.
Findings of Fact and Conclusions of Law
Evidentiary Ruling
Before deciding the substantive issue, the Court considers Kroger’s objection to the
Court’s consideration of settlement discussions and agreements. That objection is sustained
under Tennessee Rule of Evidence 408.
Analysis and Decision
Ms. Scott has the burden of proving she is likely to prevail at a hearing on the merits
on her claim for medical benefits. Tenn. Code Ann. § 50-6-239(c)(6) (2024); McCord v.
1
Ms. Scott accepted the panel by signing it, agreeing in mediation to see Dr. Lochemes, and then seeing
Dr. Lochemes.
Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar.
27, 2015).
To meet this burden, she must show that a physician found to a reasonable degree
of medical certainty that her work injury contributed more than 50% in causing her current
need for medical treatment, considering all causes. Tenn. Code Ann. § 50-6-102(12). The
Court holds that Ms. Scott did not carry her burden of proof.
Ms. Scott testified by affidavit that her work injury caused her current shoulder
problems. However, the Appeals Board found that an employee’s “subjective belief, no
matter how sincerely held, is not a sufficient basis to support her claim for workers’
compensation benefits.” Rucker v. Fed’l Express Corp., 2024 TN Wrk. Comp. App. Bd.
LEXIS 3, at *8 (Feb. 12, 2024). Instead, Ms. Scott must present medical evidence to
establish a causal relationship. Cloyd v. Hartco Flooring Co., 274 S.W.3d 638, 643 (Tenn.
2008).
The Court acknowledges that Ms. Scott believes her work injury caused her current
shoulder problems. However, Dr. Lochemes stated that Ms. Scott’s work did not contribute
more than 50% to her current need for medical treatment. The other doctors did not give
causation opinions.
Based on the evidence provided, the Court finds that Ms. Scott is not likely to prevail
at a hearing on the merits in showing that her work primarily caused her current need for
medical treatment and denies her request for medical benefits at this time.
IT IS THEREFORE ORDERED as follows:
1. Ms. Scott’s request for medical benefits is denied at this time.
2. The Court sets a status conference for Tuesday, November 5, 2024, at 1:15 p.m.
Central Time. The parties must call (866) 943-0014 to participate. Failure to call
may result in a determination of the issues without the party’s participation.
ENTERED October 10, 2024.
________________________________________
Judge Shaterra R. Marion
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Affidavit of Ms. Scott
2. Work Related Injury Report Form
3. Medical Records – Finn Medical Associates
4. Medical Records – BMG
5. Medical Records – Campbell Clinic
6. Email and Letter to Attorney Andrew Wener
7. First Report of Injury
8. Signed Panel for Dr. Woodall
9. Signed Panel for Dr. Miller
10. Signed Panel for Dr. Lochemes
11. Medical Records – Titan Orthopedics
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on October 10, 2024.
Name Certified Regular Email Sent to
Mail Mail
Janice Scott, X X 3267 Charlotte Road
Employee Memphis, TN 38109
Janice.scott44@gmail.com
Heather Douglas, X hdouglas@manierherod.com
Peyton Carr, pcarr@manierherod.com
Employer’s Attorneys
Timothy Kellum, X timothy.kellum@tn.gov
Subsequent Injury
Fund Attorney
_______________________________________
Penny Shrum
Clerk, Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
Right to Appeal:
If you disagree with the Court’s Order, you may appeal to the Workers’ Compensation
Appeals Board. To do so, you must:
1. Complete the enclosed form entitled “Notice of Appeal” and file it with the Clerk of the
Court of Workers’ Compensation Claims before the expiration of the deadline.
¾ If the order being appealed is “expedited” (also called “interlocutory”), or if the
order does not dispose of the case in its entirety, the notice of appeal must be filed
within seven (7) business days of the date the order was filed.
¾ If the order being appealed is a “Compensation Order,” or if it resolves all issues
in the case, the notice of appeal must be filed within thirty (30) calendar days of
the date the Compensation Order was filed.
When filing the Notice of Appeal, you must serve a copy on the opposing party (or attorney,
if represented).
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten calendar
days after filing 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 filing 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 your appeal.
3. You are responsible for ensuring a complete record is presented on appeal. If no court
reporter was present at the hearing, you may request from the Court Clerk the audio
recording of the hearing for a $25.00 fee. If you choose to submit a transcript as part of your
appeal, which the Appeals Board has emphasized is important for a meaningful review of
the case, a licensed court reporter must prepare the transcript, and you must file it with the
Court Clerk. The Court Clerk will prepare the record for submission to the Appeals Board,
and you will receive notice once it has been submitted. For deadlines related to the filing of
transcripts, statements of the evidence, and briefs on appeal, see the applicable rules on the
Bureau’s website at https://www.tn.gov/wcappealsboard. (Click the “Read Rules” button.)
4. After the Workers’ Compensation Judge approves the record and the Court Clerk transmits
it to the Appeals Board, a docketing notice will be sent to the parties.
If neither party timely files an appeal with the Appeals Board, the Court Order
becomes enforceable. See Tenn. Code Ann. § 50-6-239(d)(3) (expedited/interlocutory
orders) and Tenn. Code Ann. § 50-6-239(c)(7) (compensation orders).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________
Employer
Notice is given that ____________________________________________________________________
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board;ĐŚĞĐŬŽŶĞŽƌŵŽƌĞĂƉƉůŝĐĂďůĞďŽdžĞƐĂŶĚŝŶĐůƵĚĞƚŚĞĚĂƚĞĨŝůĞͲ
ƐƚĂŵƉĞĚŽŶƚŚĞĨŝƌƐƚƉĂŐĞŽĨƚŚĞŽƌĚĞƌ;ƐͿďĞŝŶŐĂƉƉĞĂůĞĚͿ͗
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ Other Order filed on_____________________
issued by Judge _________________________________________________________________________.
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
Parties
Appellant(s) (Requesting Party): _________________________________________ ܆Employer ܆Employee
Address: ________________________________________________________ Phone: ___________________
Email: __________________________________________________________
Attorney’s Name: ______________________________________________ BPR#: _______________________
Attorney’s Email: ______________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________
Appellee(s) (Opposing Party): ___________________________________________ ܆Employer ܆Employee
Appellee’s Address: ______________________________________________ Phone: ____________________
Email: _________________________________________________________
Attorney’s Name: _____________________________________________ BPR#: ________________________
Attorney’s Email: _____________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, _____________________________________________________________, certify that I have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the __________ day of ___________________________________, 20 ____.
______________________________________________
[Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082