Opinion

Thompson, Jessica v. Weigel's Stores, Inc.

  • 2025 TN WC App. 2
Court
Tennessee Workers' Compensation Appeals Board
Filed
Jan 17, 2025
Status
Published
On the bench
Weaver, Godkin, Conner
Cited by
0 cases

The opinion

FILED

Jan 17, 2025

09:53 AM(CT)

TENNESSEE

WORKERS' COMPENSATION

APPEALS BOARD

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Jessica Thompson ) Docket No. 2023-03-6769

)

v. ) State File No. 72701-2023

)

Weigel’s Stores, Inc., et al. )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Pamela B. Johnson, Judge )

Affirmed and Remanded

In this interlocutory appeal, the employee reported suffering a work-related injury when a

swinging door struck her left foot. Video evidence and statements of co-workers

indicated that the employee sat down and removed her shoe after the alleged incident,

then attempted to take a few steps before being assisted out of the store. The employer

denied the claim due to purported inconsistencies between the employee’s description of

the incident and videos from in-store cameras. Later, in its discovery responses, the

employer asserted that the incident either did not occur or, if it did occur, it did not arise

out of or in the course and scope of the employment. Following an expedited hearing, the

trial court ordered the employer to provide the employee a panel of physicians, and the

employer appealed. We affirm the trial court’s order and remand the case.

Presiding Judge Timothy W. Conner delivered the opinion of the Appeals Board in which

Judge Pele I. Godkin and Judge Meredith B. Weaver joined.

Andrew J. Hebar and Brendan M. Walsh, Knoxville, Tennessee, for the employer-

appellant, Weigel’s Stores, Inc.

Ameesh A. Kherani, Jacksboro, Tennessee, for the employee-appellee, Jessica Thompson

1

Memorandum Opinion 1

This appeal highlights the legal difference between a work-related accident and a

work-related injury. Jessica Thompson (“Employee”) began working for Weigel’s

Stores, Inc. (“Employer”), on or about September 5, 2023, at one of its stores in Knox

County. On September 14, 2023, Employee was re-entering the kitchen area of the store

when a swinging door struck her left foot. Initially, Employee reported that she believed

a manager named Brian had pushed the swinging door into her, causing her to fall. In a

written statement, a co-worker reported seeing the swinging door strike Employee’s foot,

but she indicated that Employee did not fall. Another co-worker reported that she did not

see the incident, but that she heard Employee had gotten hurt and came to help. She

subsequently carried Employee on her back to Employee’s car because Employee was

unable to bear weight on her left leg. A third co-worker confirmed the occurrence and

reported the incident to a member of management the same day it occurred. There is also

an unsigned written statement in the record indicating that Employee had “left store w/o

reporting incident.”

Employee filed a petition on September 27 indicating that Employer had refused

to provide any medical treatment or temporary disability benefits. In her petition,

Employee stated that she “continue[s] to be symptomatic and in need of medical

treatment.” In its discovery responses, Employer indicated it had denied the claim

because “Employer is of the opinion that [this] injury did not occur at all, and if any such

injury had occurred, it did not occur out of and in the course and scope of employment

with the Employer.” On October 13, 2023, Employer filed a Notice of Denial, asserting

that there were no witnesses to the alleged incident. On October 17, 2023, Employer

issued a Separation Notice stating Employee had quit her job as of September 14.

A March 2024 medical report from an urgent care clinic reflects that Employee

reported ongoing complaints of left foot pain following a September 14, 2023 injury at

work. She had worn a brace since the accident but reported being unable to return to

work due to her need for “constant assistance.” X-rays revealed no fractures, dislocation,

or other injury or infectious disease. The provider, Dr. Derrick Roland, diagnosed

Employee with an “injury of cutaneous sensory nerve at ankle and foot level, left leg”

and a “foot sprain.” Dr. Roland also described her condition as “foot neuritis” and

“complex regional pain syndrome.”

A dispute certification notice (“DCN”) issued in April 2024 listed three defenses

to the claim: (1) that the “injury did not occur”; (2) that the injury did not arise out of and

in the course and scope of employment; and (3) that any medical treatment and resulting

1

“The Appeals Board may, in an effort to secure a just and speedy determination of matters on appeal and

with the concurrence of all judges, decide an appeal by an abbreviated order or by memorandum opinion,

whichever the Appeals Board deems appropriate, in cases that are not legally and/or factually novel or

complex.” Tenn. Comp. R. & Regs. 0800-02-22-.03(1) (2023).

2

expenses were “not causally related to [the] injury.” For her part, Employee asserted in a

supplement to the DCN that Employer had denied the claim in bad faith.

In its responses to Employee’s requests for admissions, Employer admitted only

that Employee had alleged work-related injuries but stated that this admission “shall in

no way be construed as an admission that the Employee actually sustained any injuries

whatsoever.” (Emphasis in original.) During the expedited hearing, video evidence was

presented showing Employee coming through the swinging door on the date in question. 2

Employee testified that, at one point in the video, the swinging door caught her foot,

although that event was difficult to clearly see on the video. In a second video, Employee

is seen removing her shoe after the incident and attempting to stand and take a few steps.

Then she was seen being assisted out of the store by a co-worker. Following the hearing,

the trial court concluded Employee had come forward with sufficient evidence of a work-

related accident to support an order for the provision of a panel of physicians. Employer

has appealed.

As the trial court noted, the law mandates employers in this state to provide “free

of charge to the employee, such medical and surgical treatment . . . as ordered by the

attending physician . . . made reasonably necessary by accident as defined in this

chapter.” Tenn. Code Ann. § 50-6-204(a)(1)(A) (emphasis added); see also Tenn. Comp.

R. & Regs. 0800-02-01-.06(1) (stating that “[f]ollowing receipt of notice of a workplace

injury and the employee expressing a need for medical care, an employer

shall . . . provide the employee a panel of physicians” (emphasis added)).

We addressed a similar factual scenario in Lewis v. Molly Maid, No. 2015-06-

0456, 2016 TN Wrk. Comp. App. Bd. LEXIS 19 (Tenn. Workers’ Comp. App. Bd. Apr.

20, 2016). In Lewis, the employee alleged she hurt her back during her training period

three days after starting work. Id. at *2. The employer denied the claim, alleging that the

employee’s back condition pre-existed the employment and that the employee’s report of

an alleged work accident lacked credibility. Id. at *7-8. Although the trial court

concluded the employee had not come forward with sufficient evidence establishing the

compensability of her claim, it determined she had come forward with enough to support

an order for a panel of physicians. Id. at *3-4.

In Lewis, we noted on appeal that the employee had presented evidence from a co-

worker corroborating the occurrence of a work-related accident. Id. at *8. We then

concluded that the medical evidence supported a finding that the employee began

experiencing back pain while working for the employer. Id. We explained that,

2

The videos replayed at an accelerated speed and showed the scene at an angle that apparently made the

videos difficult to interpret.

3

under the circumstances presented in this case, we agree that [the

employee] came forward with sufficient evidence to support a conclusion

that she experienced back pain after operating a vacuum cleaner in late

October 2014. We also agree that, while this evidence was insufficient to

establish the compensability of her claim by a preponderance of the

evidence, it was sufficient to support an order compelling [the employer] to

provide a panel of physicians.

Id. at *8-9.

In sum, an employer’s statutory obligation to provide a panel of physicians is

triggered by the occurrence of a work-related accident and a request for medical

treatment, irrespective of whether any injury has been identified. After receiving a report

of a work-related accident and a request for medical care, an employer is statutorily

obligated to provide a panel of physicians unless the employer asserts some affirmative

defense that would disqualify the employee from receiving benefits. Employers are

entitled to investigate claims and make preliminary determinations as to the

compensability of the accident based on that investigation. Tenn. Comp. R. & Regs.

0800-02-14-.04(6). Employers are not, however, in a position to make medical

determinations regarding whether an accident has caused an injury. Thompson v.

Comcast Corp., No. 2017-05-0639, 2018 TN Wrk. Comp. App. Bd. LEXIS 1 (Tenn

Workers’ Comp. App. Bd. Jan. 30, 2018) (“[P]arties and their lawyers cannot rely on

their own medical interpretations of the evidence to successfully support their

arguments.”); see also McCord v. Advantage Human Resourcing, No. 2014-06-0063,

2015 TN Wrk. Comp. App. Bd. LEXIS 6 (Tenn. Workers’ Comp. App. Bd. Mar. 27,

2015) (The employee “has come forward with sufficient evidence entitling her to a panel

of physicians . . . [W]hether the alleged work accident resulted in a compensable injury

has yet to be determined.”).

Here, the trial court did not determine the compensability of Employee’s claim at

this interlocutory stage of the case. Instead, the court concluded Employee had come

forward with sufficient evidence of the occurrence of a work-related accident and a

request for medical treatment to support an order for the provision of a panel of

physicians. We find no error in that determination. Thus, we affirm the trial court’s

order and remand the case. Costs on appeal are taxed to Employer.

4

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Jessica Thompson ) Docket No. 2023-03-6769

)

v. ) State File No. 72701-2023

)

Weigel’s Stores, Inc., et al )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Pamela B. Johnson, Judge )

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced

case was sent to the following recipients by the following methods of service on this the 17th day

of January, 2025.

Name Certified First Class Via Via Sent to:

Mail Mail Fax Email

Andrew J. Hebar X ahebar@wimberlylawson.com

Brendan M. Walsh bwalsh@wimberlylawson.com

Ameesh Kherani X akherani@kheranilaw.com

Lisa Cutsinger lcutsinger@kheranilaw.com

Pamela B. Johnson, Judge X Via Electronic Mail

Kenneth M. Switzer, Chief Judge X Via Electronic Mail

Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov

Workers’ Compensation Claims

Olivia Yearwood

Clerk, Workers’ Compensation Appeals Board

220 French Landing Dr., Ste. 1-B

Nashville, TN 37243

Telephone: 615-253-1606

Electronic Mail: WCAppeals.Clerk@tn.gov

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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