# Leon, Victor v. Bimbo Bakeries, Inc.

> Tennessee Workers' Compensation Appeals Board · January 22, 2025 · 2025 TN WC App. 3

URL: https://www.frixlaw.com/law-library/cases/10785099

## Case

- **Court:** Tennessee Workers' Compensation Appeals Board
- **Decided:** January 22, 2025
- **Citations:** 2025 TN WC App. 3
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Godkin, Weaver, Conner
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

FILED
Jan 22, 2025
01:36 PM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Victor Leon ) Docket No. 2023-03-8938
)
v. ) State File No. 64322-2023
)
Bimbo Bakeries, Inc., et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Pamela B. Johnson, Judge )

Affirmed and Remanded

In this interlocutory appeal, the employee contends the trial court erred by concluding he
was unlikely to prevail at a hearing on the merits in proving he suffered a compensable
hernia. The court found that the employee did not come forward with sufficient evidence
to meet the specific statutory requirements necessary to establish a compensable, work-
related hernia. As such, the court determined the employee had failed to show a likelihood
of proving that his hernia arose primarily out of and in the course and scope of his
employment. The employee has appealed. Upon careful consideration of the record, we
affirm the trial court’s decision and remand the case for further proceedings as may be
necessary.

Judge Pele I. Godkin delivered the opinion of the Appeals Board in which Presiding Judge
Timothy W. Conner and Judge Meredith B. Weaver joined.

Victor Leon, Knoxville, Tennessee, employee-appellant, pro se

John W. Barringer, Nashville, Tennessee, for the employer-appellee, Bimbo Bakeries, Inc.

Memorandum Opinion 1

Victor Leon (“Employee”) alleges he sustained an abdominal hernia on July 12,
2023, while working for Bimbo Bakeries, Inc. (“Employer”). Employee informed
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).
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Employer he had a “likely hernia” and indicated he was going to see his primary care
physician, Dr. Eduardo Mendez. On July 19, Employee was diagnosed with an umbilical
hernia and referred to a surgeon, Dr. Melissa Phillips, who he saw on August 9. Medical
records reflect that “[Employee] noted his hernia first a year ago” and reported it
“increasing in size since then.” Dr. Phillips diagnosed a reducible umbilical hernia and
recommended surgery.

On August 29, Employer filed a notice of denial, asserting Employee stated his
injury “is a result of work performed over the past 15 months” and that he had “knowledge
of [his] hernia one year ago.” Employer also stated that Employee failed to report his
hernia as being work-related and did not file a worker’s compensation claim when he
initially became aware of the hernia. On December 28, Employee filed a petition for
workers’ compensation benefits in which he described lifting goods into trucks that
“weighed in excess of 100 pounds” without assistance. Thereafter, a dispute certification
notice was issued identifying compensability, medical benefits, temporary disability
benefits, and permanent disability benefits as disputed issues, and the trial court scheduled
an expedited hearing for October 1, 2024.

On September 11, Employee filed a Standard Form Medical Report for Industrial
Injuries (“Form C-32”) completed by Dr. Mendez. On the form, Dr. Mendez indicated that
the hernia was caused by “a specific incident or series of incidents,” which he identified as
“[r]epetitive heavy lifting.” Also on the form, when asked if the employment activity was
more likely than not primarily responsible for the injury and need for treatment, Dr.
Mendez checked “Yes.”

At the expedited hearing, Employee testified that he did not know what a hernia was
but that he noticed changes around his navel in December 2022. The changes were not
accompanied by pain, so he took no action and attributed the changes to having gained
some weight. He explained that his pain started in July 2023, which is what prompted him
to seek medical attention. Employee testified that he did not have a hernia prior to working
for Employer and, in support of that assertion, pointed to a report from a Department of
Transportation (“DOT”) physical he underwent prior to beginning work for Employer that
indicted there were no “signs of hernia.”

However, during the hearing, Employee was unable to identify a specific day when
the hernia ruptured or a hernia-related bulge appeared, speculating that it happened when
he was performing heavy repetitive lifting in the course and scope of his employment
during an unspecified period of time. The trial court ultimately determined that, although
it was undisputed that Employee had developed an umbilical hernia, he had not met the
statutory requirements found in Tennessee Code Annotated section 50-6-212 for
establishing a compensable hernia. Specifically, the court found that Employee had not
“definitely proven to the satisfaction of the court” that the hernia “appeared suddenly,” that
it “immediately followed the accident,” or that it “did not exist prior to the accident.” Tenn.

2
Code Ann. § 50-6-212(a) (2024). Additionally, the court noted that Employee was unable
to identify a specific date on which the injury occurred and the hernia appeared.
Consequently, the court concluded Employee was unlikely to prevail at a hearing on the
merits in showing that he suffered a compensable hernia arising primarily out of and in the
course and scope of his employment and issued an order denying Employee’s request for
workers’ compensation benefits. Employee has appealed.

On appeal, Employee asserts that the trial court erred by failing to give sufficient
weight to the DOT physical performed prior to his employment with Employer. Although
we agree with Employee’s assertion that the report does not indicate that Employee had a
hernia before his employment with Employer began, we conclude that Employee’s
argument does not take into account the mandatory elements of a compensable hernia
found in Tennessee Code Annotated section 50-6-212. That section expressly applies to
claims for hernias “resulting from injury by accident arising primarily out of and in the
course and scope of the employee’s employment” and includes five criteria that must be
“definitely proven to the satisfaction of the court.” These are:

(1) There was an injury resulting in hernia or rupture;
(2) The hernia or rupture appeared suddenly;
(3) It was accompanied by pain;
(4) The hernia or rupture immediately followed the accident; and
(5) The hernia or rupture did not exist prior to the accident for which
compensation is claimed.

Tenn. Code Ann. § 50-6-212(a)(1)-(5).

Thus, Employee must do more than show that the hernia did not exist prior to May
2022 when he began his employment with Employer. He must also “definitely prove to
the satisfaction of the court” that his hernia satisfies each element set out above. As his
testimony at the expedited hearing illustrated, he is unable to do so. First, he is unable to
specify when the alleged work injury occurred. He reports performing heavy lifting for
Employer when he started work in May 2022, and he reports noticing a change around his
navel in December 2022. However, he is unable to identify with any specificity when the
hernia appeared or what he was doing when it occurred. Because he does not know when
the injury occurred, he is unable to prove that it appeared suddenly. Furthermore, his
testimony supports the conclusion that it was not accompanied by pain initially. He
testified that he noticed the changes near his navel in December 2022, but he testified he
did not experience pain associated with those changes until July 2023. Finally, because
Employee cannot identify an accident resulting in injury, it is impossible to know whether
the hernia immediately followed the accident.

In short, Employee’s argument is, essentially, that he did not have the hernia prior
to beginning work for Employer; that he did heavy lifting for Employer for some time; that

3
the heavy lifting must have caused the hernia; and, because the hernia was not pre-existing,
it is compensable. This position, however, does not satisfy the stringent requirements of
this statute. The statute governing hernias is specific as to what proof an injured worker
must present to receive compensation for a work-related hernia. Here, Employee has not
presented sufficient evidence to establish he will likely prevail at a hearing on the merits
in proving all five elements of Tennessee Code Annotated section 50-6-212. Thus, we
conclude the preponderance of the evidence supports the trial court’s decision to deny
benefits at this interlocutory stage of the case.

For these reasons, the trial court’s decision is affirmed, and the case is remanded to
the trial court. Costs on appeal are taxed to Employee.

4
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Victor Leon ) Docket No. 2023-03-8938
)
v. ) State File No. 64322-2023
)
Bimbo Bakeries, 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 22nd
day of January, 2025.

Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Victor Leon X vmleonn@yahoo.com
John Barringer X jbarringer@manierherod.com
pcarr@manierherod.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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10785099. Public record. Not legal advice.