Johnson, Eden v. Wal-mart Associates, Inc.

FILED

May 26,2015

T~COURTOF

WORKERS ' COMPEl\SATIO~

CLAIMS

Time : 1:29 P:\1

COURT OF WORKERS' COMPENSATION CLAIMS

DIVISION OF WORKERS' COMPENSATION

Eden Johnson, ) Docket#: 2014-06-0069

Employee, ) State File#: 85475/2014

v. ) Date of Injury: October 28, 2014

Wal-Mart Associates, Inc., ) Chief Judge Switzer

Employer, )

and )

Claims Mgmt., Inc., )

CarrierffPA. )

EXPEDITED HEARING ORDER

THIS CAUSE came before the undersigned Workers' Compensation Judge on April

23, 2015, upon the Request for Expedited Hearing filed by the Employee, Eden Johnson (Ms.

Johnson), on AprilS, 2015, pursuant to Tennessee Code Annotated section 50-6-239 (2014)

to determine if the Employer, Wal-Mart Associates, Inc. (Walmart), is obligated to provide

medical and temporary disability benefits. Considering the positions of the parties, the

applicable law, and all of the evidence submitted, the Court concludes that Ms. Johnson is

entitled to medical benefits and past temporary total disability benefits 1, but is not entitled to

ongoing temporary disability benefits at this time.

ANALYSIS

Issues

Whether Ms. Johnson sustained an injury arising primarily out of and in the

course and scope of her employment with Walmart.

Whether Ms. Johnson is entitled to medical benefits, and past or future

temporary total disability benejiti.

1 The Court concludes that Ms. Johnson is entitled to past temporary total disability, but does not order the specific

sums Walmart owes Ms. Johnson because the parties did not introduce, and the Court did not admit, a wage

statement into evidence.

2 The Dispute Certification Notice and attachments list several more issues for determination, but at the Expedited

Hearing, the parties agreed on the record that these were the central issues before the Court at this time.

1

Evidence Submitted

The Court admitted into evidence the exhibits below:

1. Medical records of Eden Johnson:

• Dr. Marcus Min, October 29, 2014-November 11, 2014 (8 pages)

• Dr. Jon Draud, November 22, 2014 (2 pages)

2. CD of three (3) videos of the incident from Walmart's security camera

3. Walmart Interview Summary & Witness Statement, December 15, 2014 (3 pages)

4. "Medical Bills & Expenses for Eden Johnson," marked for identification only, (8

pages)

5. "NAO (New Associate Orientation) Participant Checklist," January 7, 2014 (2 pages)

6. "Total History for EDEN JOHNSON," (1 page)

7. People greeter job description, May 28, 2014 (2 pages)

8. "Coaching for Improvement" (3 pages)

9. Ms. Johnson's Second Written Warning (2 pages)

10. "Violence-Free Workplace Policy," January 6, 2014 (2 pages)

11. "Wal-Mart Stores, Inc. EXIT INTERVIEW" (1 page)

12. State of Tennessee Separation Notice (1 page)

13. Walmart Witness Statement (1 page).

The Court designates the following as the Technical Record:

• Petitions for Benefit Determination (PBD), November 26, 2014, and December 1,

2014 3

• Employee's position statement, November 25, 2014, and December 19, 2014

• Employer's position statement, December 22, 20 14

• Dispute Certification Notice, December 23, 2014

• Order, April 8, 2015

• Request for Expedited Hearing, April 8, 2015

• Employer's Brief Opposing Employee's Petition for Benefit Determination and

Motion to Dismiss Petition for Benefit Determination (including "Evidence Exhibit

List" and "Table of Contents"), April 22, 2015

• Walmart Counsel's e-mail to the Court striking its Motion to Dismiss, May 22, 2015.

The Court did not consider attachments to the above filings unless admitted into

evidence during the Expedited Hearing. The Court considered factual statements in the

above filings or any attachments to them as allegations unless established by the evidence.

3

For unknown reasons, Ms. Johnson filed two, substantially identical PBDs.

2

The following witnesses provided in-person testimony: Ms. Johnson, Jay Sizemore

and Diana Henry. All witnesses viewed the video evidence (Ex. 2) at the hearing before

testifying.

History of Claim

Ms. Johnson is a seventy-six (76) year-old resident of Davidson County, Tennessee.

The incident giving rise to her injury, which is the subject of this claim, occurred on October

28,2014, while she worked as a greeter for Walmart. She alleged on her PBD that she "was

struck by patron." Three (3) Walmart security videos, which do not contain audio, recorded

the events surrounding the incident and the incident itself, in part. In the lower right-hand

comer of video one, Ms. Johnson is shown following a customer, Evelyn Darden, on foot as

Ms. Darden rode a motorized shopping cart (mart cart or motorized cart). Ms. Johnson

grabbed the back of the mart cart with her right hand and the handlebar with her left hand,

prior to Ms. Darden turning around and striking her. Ms. Johnson fell to the floor from the

blow. Videos two and three, shot from different angles, show Ms. Johnson conversing with

Ms. Darden prior to the physical assault, but not the assault itself.

Ms. Johnson testified that she received no specialized training for her position as a

greeter. It was her understanding that her duties were to:

[G]reet people, make them feel good about, you know, being

part of the Walmart family. And then I had to watch the- I had

to take care of the carts because they were very expensive, and I

should, urn- several managers, as well as the top manager, Mr.

Mark Morgan, told me that, urn, these, urn, carts are only for

disabled people.

Ms. Johnson testified that she did not know Ms. Darden, and never received formal

training regarding how to interact with a customer who is not disabled and attempts to use a

motorized cart. She said that another supervisor, "Anthony," told her to tell people they

should not use the carts because they are only for disabled persons. According to Ms.

Johnson, customers often disregarded her admonition, so that she would contact Anthony to

handle the situation. After a while, however, Anthony told her to do it herself.

Ms. Johnson testified that she did not intentionally grab or harm Ms. Darden, but

rather, she told her she should not use the mart cart because she is not disabled. According to

Ms. Johnson, Ms. Darden said, "Don't worry about it. Call a manager." Ms. Johnson agreed

to do so upon the condition that Ms. Darden wait for her return. Ms. Darden did not wait but

began to use the mart cart when Ms. Johnson turned away. Ms. Johnson testified that, in an

attempt to stop Ms. Darden from using the mart cart, she grabbed the back of the mart cart,

but she never touched Ms. Darden. Per Ms. Johnson, Ms. Darden said, "Don't touch my

3

hair." However, Ms. Johnson denied touching her hair; rather, Ms. Darden moved her head

on her own accord. Ms. Johnson said she was trying to do her job as she understood it. Ms.

Darden proceeded to strike her in the face, knocking her unconscious.

Ms. Johnson testified that an ambulance transported her to the emergency room at

Skyline Medical Center4 . She was there from approximately 3:00 or 4:00 p.m. until

approximately 11 :00 p.m. Ms. Johnson sought treatment with her primary care physician, Dr.

Marcus Min, on October 29, 20 14. Dr. Min wrote as the "Reason for Appointment" that Ms.

Johnson "[w]as assaulted last night at walmart (sic), patient does not remember being hit,

only knows patient was hit threw (sic) watching video tape" (Ex. 1, p. 1). Dr. Min excused

her from work for two weeks (Ex. 1, p. 3).

Ms. Johnson testified that Walmart terminated her, and that she has been unable to

secure employment since then. She testified that she meant Ms. Darden no harm and was

never involved in a fight before this incident. Walmart terminated Ms. Johnson on

November 6, 2014 (Ex. 11).

On cross-examination, Ms. Johnson acknowledged that she received computer-based

training and in particular Walmart's "Violence-Free Workplace Policy" (Ex. 10). The "NAO

Participant Checklist" (Ex. 5), dated January 7, 2014, bears her signature and confirms her

receipt of the training. Ms. Johnson agreed she was aware of the policy before the incident,

but maintained she did not violate the policy. She testified she did not "restrain, or attempt to

restrain" Ms. Darden, but admitted that she grabbed the back of the cart and the handlebar in

an attempt to stop Ms. Darden's use of the cart. Ms. Johnson acknowledged that Walmart

follows an employee progressive discipline policy, and that she received a previous written

warning for riding on a "cart mule" that pulls shopping carts (Ex. 9).

Ms. Johnson called Jay Sizemore, Asset Protection Manager for Walmart, as an

adverse witness. Mr. Sizemore testified that he viewed the same videos admitted into

evidence at the hearing before completing a "Walmart Interview Summary & Witness

Statement" dated December 15, 2014 (Ex. 3). The statement outlines what he observed on

the video.

Mr. Sizemore testified that any customer who wishes to use a motorized cart might do

so. He said that the job description for greeters does not entail overseeing customers' use of

the motorized carts, but that it "may have been deemed appropriate at the store." Mr.

Sizemore testified that, in his opinion, putting one's hand on the back of a cart is not an

attempt to assault, but it is "definitely infringing upon somebody's personal space and a

person might be threatened, definitely." He agreed that Ms. Johnson did not strike Ms.

Darden and was defending against the punch rather than throwing one. He said there was no

4

Neither party introduced medical records from this provider into evidence.

4

way to tell ifMs. Johnson intentionally pulled Ms. Darden's hair. His statement reads, "You

can see her hair begin to pull, as her head begins to tilt back and her knit cap begins to slide

off." The statement later provides, "It is unclear if the customer's hair was pulled

intentionally or not." Mr. Sizemore did not speak with Ms. Johnson about the case. On

cross-examination by Walmart's counsel, Mr. Sizemore said Walmart's training for all

employees prohibits touching of customers. On redirect, Mr. Sizemore said, "I can't say she

intentionally did anything to the customer, but I can say she intentionally tried to get the

customer off the mart cart."

Diana Henry, Walmart's Personnel Coordinator for the store where Ms. Johnson

worked, also testified. Ms. Henry maintains Walmart's employment records. She testified

that she personally knew Ms. Johnson and oversaw her training in January 2014. Ms. Henry

confirmed that Ms. Johnson received training on the Violence-Free Workplace Policy in

January and May 2014 (Ex. 6). She agreed that Walmart prohibits employees from touching

customers. Ms. Henry said Walmart enforces its Violence-Free Workplace Policy; for

example, Walmart terminated other employees from the same location for fighting in the

parking lot. Ms. Henry did not witness the incident on the day it occurred, nor did she

investigate it afterward. She testified that, in her opinion, grabbing the handlebar and seat

back of the mart cart violated the policy. However, on cross-examination, Ms. Henry said

she did not know whether Ms. Johnson's supervisors told her to allow only disabled persons

to use the motorized carts. She acknowledged that, if Ms. Johnson was overseeing the

motorized carts, she was not violating a Walmart policy. Ms. Henry testified that, from what

she could see in the videos, she did not think that Ms. Johnson committed an act of violence.

To date, Walmart provided neither medical nor temporary disability benefits. Ms.

Johnson filed a PBD on November 26, 2014, seeking medical and temporary disability

benefits. 5 The parties did not resolve the disputed issues through mediation and the

Mediating Specialist filed the Dispute Certification Notice on December 23, 20 15. On April

8, 2015, Ms. Johnson filed a Request for Expedited Hearing.

Ms. Johnson's Contentions

Ms. Johnson's injury arose primarily out of and in the course and scope of

employment with Walmart, entitling her to medical and temporary disability benefits. The

imposition of penalties is appropriate as well.

Walmart's Contentions

Ms. Johnson's injury did not arise primarily out of and in the course and scope ofher

employment with Walmart. Ms. Johnson's claim is not compensable because she engaged in

5

Ms. Johnson additionally sought discovery, but it appears the parties resolved the discovery-related issue(s).

5

willful misconduct. Walmart properly denied the claim.

Findings of Fact and Conclusions of Law

Standard Applied

"The Workers' Compensation Law shall not be remedially or liberally construed in

favor of either party but shall be construed fairly, impartially, and in accordance with basic

principles of statutory construction favoring neither the employee nor employer." Tenn.

Code Ann.§ 50-6-116 (2014). Tennessee Code Annotated section 50-6-239(c)(6) provides

that, "[u]nless the statute provides for a different standard of proof, at a hearing the employee

shall bear the burden of proving each and every element of the claim by a preponderance of

the evidence." Tenn. Code Ann.§ 50-6-239(c) (2014). A different standard of proof exists

for the issuance of interlocutory orders at expedited hearings than the standard of proof

required at compensation hearings. McCord v. Advantage Human Resourcing, No. 2014-06-

0063 (Tenn. Work. Comp. App. Bd., March 27, 2015). A workers' compensation judge may

enter an interlocutory order for medical or temporary benefits upon a determination that the

injured employee would likely prevail at a hearing on the merits. Tenn. Code Ann.§ 50-6-

239(d)(1) (2014); cf McCallv. Nat'/ Health Care Corp., 100 S.W.3d209, 214 (Tenn. 2003).

Factual Findings

On October 28, 2014, while attempting to prevent a customer's use of a motorized

cart, Ms. Johnson suffered an injury when a Walmart customer, Ms. Darden, struck her in the

face. Ms. Johnson did not intentionally pull Ms. Darden's hair or otherwise touch her. Ms.

Johnson sought unauthorized medical care from Dr. Min, who excused her from work for

two (2) weeks.

Application ofLaw to Facts

The Court denies Walmart's Motion to Dismiss at this time.

As an initial matter, in "Employer's Brief Opposing Employee's Petition for Benefit

Determination and Motion to Dismiss Petition for Benefit Determination," Walmart moved

to dismiss Ms. Johnson's PBD on two grounds.

First, Walmart argued that Ms. Johnson failed to timely request an Expedited Hearing

upon the filing of her Dispute Certification Notice. Rule 0800-02-21-.12(1) states:

Immediately after a dispute certification notice has been filed

with the clerk, either party seeking further resolution of any

disputed issues shall file a request for hearing with the clerk ....

6

If no request for hearing is filed within sixty (60) calendar days

after the date of issuance of the dispute certification notice, the

clerk shall docket the case and place the case on a separate

dismissal calendar for a show cause hearing. The clerk shall

send notice of the hearing to the parties, via regular or electronic

mail, indicating the claim number, the time of the hearing and

the judge assigned to the case. Either party may appear to show

cause as to why the case should not be dismissed.

Tenn. Comp. R. & Regs., Rule 0800-02-21-.12(1)(2014). The sixty- (60) day requirement is

not jurisdictional in the sense that a hearing request is mandatory to the Court having

continued ability to adjudicate a claim. In other words, failure to file a request for a hearing

is not fatal to continued prosecution of the case on the merits. Rather, as the second sentence

of the rule suggests, the sixty- (60) day requirement allows the Court to ensure that a case

timely proceeds through the system on the merits rather than it meeting its demise upon a

procedural technicality. If neither side seeks further resolution within the sixty- (60) day

timeframe, it prompts the clerk to schedule a show cause hearing, so that the Court may

determine if the parties intend to take further action in the case. This is precisely what

occurred in this matter. Specifically, on April 8, 2015, the Court conducted a Show Cause

Hearing, at which time Ms. Johnson, through Counsel, communicated an intention to

prosecute her claim. Accordingly, the Court ordered her to file a Request for Expedited

Hearing forthwith and scheduled a hearing date. Ms. Johnson complied with the Order.

Second, Walmart moved the Court to dismiss Ms. Johnson's case for failure to submit

an affidavit with the Request for Expedited Hearing. Counsel for Walmart argued that Rule

0800-02-21-.14(1)(a) requires a party to submit affidavits with a Motion for Expedited

Hearing. Since Ms. Johnson failed to submit any affidavits with her Motion for Expedited

Hearing, Walmart requested the Court dismiss her Motion for Expedited Hearing.

The Court denied the motion at the Expedited Hearing. Subsequently, The Tennessee

Workers' Compensation Appeals Board issued an opinion concluding that Rule 0800-02-21-

.14(1)(a) requires the filing of an affidavit. Hadzic v. Averitt Express, No. 2014-02-0064

(Tenn. Work. Comp. App. Bd., May 18, 2015). Based upon the opinion, the Court conducted

a teleconference with Counsel for the parties on May 19, 2015, to advise them of the Appeals

Board's ruling. Counsel for Walmart requested time to consider the opinion and confer with

his client regarding how to proceed. On May 22,2015, Walmart informed the Court that, in

the interests of judicial economy, as proof was already presented in this matter, it would

strike its Motion to Dismiss as related to the issue of the lack of a contemporaneous affidavit

filed with the Request for Expedited Hearing, to allow the Court to enter its decision. The

Court designated this communication as part of the Technical Record.

7

Ms. Johnson sustained an injury that arose primarily out ofand in the course

and scope of her employment with Walmart.

The Workers' Compensation Law defines "injury" and "personal injury" to mean an

injury by accident "arising primarily out of and in the course and scope of employment .... "

Tenn. Code Ann.§ 50-6-102(13)(A) (2014). An injury is "accidental" only ifthe injury is

caused by a specific incident, or set of incidents, arising primarily out of and in the course

and scope of employment, and is identifiable by time and place of occurrence[.] Id. An

injury "arises primarily out of and in the course and scope of employment" only if it has been

shown "by a preponderance ofthe evidence that the employment contributed more than fifty

percent (50%) in causing the injury, considering all causes[.]" Tenn. Code Ann. § 50-6-

102(13)(B) (2014).

The Tennessee Supreme Court has consistently held that, in order to qualify as a

compensable workers' compensation claim, an injury must both "arise out of' and occur "in

the course of' employment:

The phrase ''in the course of' refers to time, place, and

circumstances, and "arising out of' refers to cause or origin.

"[A]n injury by accident to an employee is in the course of

employment if it occurred while he was performing a duty he

was employed to do; and it is an injury arising out of

employment if caused by a hazard incident to such

employment." Generally, an injury arises out of and is in the

course and scope of employment if it has a rational connection

to the work and occurs while the employee is engaged in the

duties of his employment.

Cloyd v. Hartco Flooring Co., 274 S.W.3d 638, 643 (Tenn. 2008) (quoting Orman v.

Williams Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn. 1991)).

With particular regard to workplace assaults, the Tennessee Supreme Court

recognized the following three categories:

(1) Assaults with an "inherent connection" to employment, such as disputes over

performance, pay, or termination;

(2) Assaults stemming from "inherently private" disputes imported into the

employment setting from the claimant's domestic or private life and not exacerbated

by the employment; and,

(3) Assaults resulting from a "neutral force" such as random assaults on employees by

individuals outside the employment relationship.

8

Woods v. Harry B. Woods Plumbing Co., 967 S. W.2d 768, 771 (Tenn. 1998). The Supreme

Court explained in Woods that:

[A]ssaults resulting from a "neutral force" such as random

assaults may, or may not be compensable depending on the facts

and circumstances of the employment. See Beck v. State, 779

S.W.2d 367 (Tenn. 1989) (where employment necessarily

exposes employee to public risks, random assault from third

party is compensable).

Woods, 967 S.W.2d at 771-772. A neutral force assault is one that is neither personal to the

claimant nor distinctly associated with the employment. Wait v. Travelers Indem. Co., 240

S.W.3d 220, 228 (Tenn. 2007). In limited circumstances, where the employment involves

indiscriminate exposure to the general public, the street risk doctrine may supply the required

causal connection between the employment and the injury. !d. The street risk doctrine

provides that if the employment exposes the employee to the hazards of the street, it is a risk

or danger incident to and inherent in the employment and provides the necessary causal

connection between the employment and the injury. !d. The employee's visible

identification with his employment and his responsibility as custodian of his employer's

valuable property may provide a sufficient nexus between the assault and the employment.

!d. at 229.

In this case, Ms. Johnson credibly testified that, on October 28, 2014, while

performing her duties as she understood them, a customer struck her in the face. She offered

sufficient detail regarding the time, place and circumstances ofthe incident, which occurred

while performing a duty she was employed to do - greet patrons and oversee use of the

motorized carts. Ms. Johnson's injury bears a rational connection to her work because her

employment necessarily exposed her to public risks, to include random assaults from third

parties. The assault was not personal to Ms. Johnson because she and Ms. Darden did not

know each other before the altercation. The assault is not distinctly associated with

employment as a greeter. However, Ms. Johnson's employment exposed her to the hazards

of the street because, as may be seen on the videos, she wears clothing and a name tag that

visibly identify her as a Walmart employee, and the genesis of the altercation was Ms.

Johnson fulfilling her responsibility as a custodian of Walmart's valuable property, the

motorized carts.

Walmart argued Ms. Johnson was not performing a duty contained in the written job

description for greeters. However, Walmart presented no evidence to contradict Ms.

Johnson's assertion that her supervisors, including "Anthony" and Mr. Morgan, verbally

required her to oversee the motorized carts. Mr. Sizemore testified that such a task "may

have been deemed appropriate" at that particular location, while Ms. Henry testified that she

did not know whether Ms. Johnson's supervisors told her to allow only disabled persons to

9

use the motorized carts.

Ms. Johnson did not engage in willful misconduct at the time of her injury.

Walmart further argues that Ms. Johnson's claim is noncompensable because Ms.

Johnson engaged in willful misconduct. Tennessee Code Annotated section 50-6-llO(a)

(20 14) provides in subsection ( 1) that no compensation shall be allowed for an injury due to

the employee's "willful misconduct." If an employer defends on the grounds that the injury

arose from willful misconduct, the burden of proof is on the employer to establish the

defense. Tenn. Code Ann. § 50-6-110(b) (2014). To meet its statutory burden ofproofto

establish the defense of willful misconduct, an employer must prove the following four

elements:

(1) the employee's actual, as opposed to constructive, notice ofthe rule;

(2) the employee's understanding of the danger involved in violating the rule;

(3) the employer's bona fide enforcement of the rule; and

(4) the employee's lack of a valid excuse for violating the rule.

Mitchell v. Fayetteville Pub. Utils., 368 S.W.3d 442, 453 (Tenn. 2012).

In the instant case, the Court finds that Ms. Johnson did not violate the Violence-Free

Workplace Policy. The video does not clearly show her touching Ms. Darden. Rather it

shows her touching the cart's handlebar and the back of the seat. Mr. Sizemore, in his

written statement and testimony, could not say with certainty that Ms. Johnson pulled Ms.

Darden's hair or touched her in any way. Ms. Johnson credibly testified that she did not

touch Ms. Darden. Further, at the hearing, it was particularly compelling to the Court that

Ms. Henry testified that, from what she could see in the videos, she did not think that Ms.

Johnson committed an act of violence.

Assuming, arguendo, that Ms. Johnson did touch Ms. Darden and/or commit some

other act in violation of the policy, Walmart's willful misconduct defense still fails because

Walmart did not meet its burden of proving each of the four Mitchell elements necessary to

deny the claim. In particular, Walmart did not prove that Ms. Johnson lacked a valid excuse

for violating the rule. As previously noted, Ms. Johnson testified that at least two supervisors

told her that overseeing the motorized carts was one of her job duties. Walmart offered no

contradictory evidence. In sum, Ms. Johnson has satisfied her burden of establishing she

would likely prevail at a hearing on the merits because Walmart failed to satisfy its burden

with regard to its asserted willful misconduct defense.

10

Ms. Johnson is entitled to medical benefits, and in particular a panel of

physicians, and is entitled to past temporary total disability benefits for 14

days.

Tennessee law requires an employer to provide " ... free of charge to the employee

such medical and surgical treatment ... made reasonably necessary by accident as defined in

this chapter[.]" Tenn. Code Ann.§ 50-6-204(a)(1)(A) (2014). The statute further requires:

... [I]n any case when the employee has suffered an injury and

expressed a need for medical care, the employer shall designate

a group of three (3) or more independent reputable physicians,

surgeons, chiropractors or specialty practice groups if available

in the injured employee's community ... from which the injured

employee shall select one (1) to be the treating physician.

Tenn. Code Ann. § 50-6-204(a)(3)(A)(i) (2014).

To date, Walmart has not complied with the statutory requirement that it designate a

panel from which Ms. Johnson may select a treating physician. Instead, Walmart denied the

claim. Ms. Johnson sought treatment from unauthorized providers, both prior to and after the

denial. Because of the nature of the denial, she seeks penalties.

The Workers' Compensation Appeals Board recently summarized an employer's duty

to provide medical benefits as follows:

The mere notice of an alleged workplace accident, in and of

itself, does not trigger an employer's duty to provide medical

benefits in every case, without regard to the particular

circumstances presented. If an employer chooses to deny the

claim following its initial investigation, the employee must come

forward with sufficient evidence from which the trial court can

determine that the employee likely will prove a compensable

"injury by accident" at a hearing on the merits in accordance

with section 50-6-239(d)(l). Conversely, an employer who

elects to deny a claim runs the risk that it will be held

responsible for medical benefits obtained from a medical

provider of the employee's choice and/or that it may be subject

to penalties for failure to provide a panel of physicians and/or

benefits in a timely manner.

McCord v. Advantage Human Resourcing, No. 2014-06-0063 (Tenn. Work. Comp. App. Bd.,

March 27, 2015).

11

In the case at bar, Ms. Johnson has come forward with sufficient evidence from which

this Court determined that she likely will prove a compensable injury by accident at a hearing

on the merits in accordance with section 50-6-239(d)(l). The Court is authorized to order

medical benefits under that same provision. See Tenn. Code Ann.§ 50-6-239(d)(1) (2014).

Accordingly, the Court orders that Walmart designate a panel of physicians from which Ms.

Johnson shall have the privilege of selecting the authorized provider.

The Court is without sufficient evidence to order payment of the medical expenses of

either Dr. Min or any other providers at this time. The Tennessee Supreme Court held that an

employee must establish the necessity and reasonableness of non-authorized charges in order

to recover such expenses. Moore v. Town ofCollierville, 124 S.W.3d 93, 98 (Tenn. 2004).

In this matter, the Court marked Exhibit 4, "Medical Bills & Expenses for Eden Johnson,"

for identification purposes only but did not admit it into evidence. Ms. Johnson offered

insufficient evidence of the necessity and reasonableness of charges at this interlocutory

stage ofthe case.

With regard to whether Walmart may be subject to penalties for failure to provide a

panel of physicians and/or benefits in a timely manner, the Workers' Compensation Law

authorizes the Division to assess penalties for the failure to timely provide a panel. See Tenn.

Code Ann.§ 50-6-118(a)(l2) (2014). This Court does not possess the authority to impose

penalties; rather, pursuant to the statute and the Rules of the Division of Workers'

Compensation, this task falls under the purview of the Division's Penalty Program. See

Tenn. Comp. R. & Regs., 0800-02-13-.02(1 ). The Court notes that, upon its issuance, a copy

ofthis Order will be provided to the Penalty Program in accordance with Tenn. Comp. R. &

Regs., 0800-02-24-.03 (2015) ("In addition to referrals made by a workers' compensation

judge, any Division employee may refer any person or entity to the penalty program for the

assessment of a civil penalty whenever the referring employee believes that there may have

been a violation of the Division's rules or the Tennessee Workers' Compensation Act.").

The Court reasonably believes there may have been a violation of the Division's rules.

The Court turns now to Ms. Johnson's request for temporary total disability (TTD)

benefits. The Dispute Certification Notice lists her request for temporary partial disability

benefits only. At the Expedited Hearing, however, the parties agreed on the record that Ms.

Johnson was seeking either temporary total or partial disability benefits.

To establish such an entitlement as contemplated in Tennessee Code Annotated

section 50-6-207( 1), an employee must show that ( 1) the employee was totally disabled from

working as a result of a compensable injury; (2) that a causal connection exists between the

injury and the employee's inability to work; and (3) the duration of the period of the

employee's total disability. Gray v. Cullom Mach., Tool & Die, Inc., 152 S.W.3d 439, 443

(Tenn. 2004). Except in "the most obvious, simple and routine cases," an employee must

establish by expert medical testimony that an injury occurred and that there exists a causal

12

relationship between the injury and the employment activity. Wheetley v. State, 2014 Tenn.

LEXIS 476, No. M2013-01707-WC-R3-WC (Tenn. Workers' Comp. Panel, June 25, 2014)

(citing Excel Polymers, LLC v. Broyles, 302 S.W.3d 268, 274 (Tenn. 2009).

In this case, on October 29, 2014, the day after the incident, Dr. Min excused Ms.

Johnson from work for two weeks (Ex. 1, p. 3). Therefore, she met her burden with regard to

proving total disability and its duration. Although Dr. Min's records do not contain an

explicit statement regarding the causal connection between the injury and her inability to

work, Dr. Min listed the assault as the "Reason for Appointment." The Court characterizes

this case as "obvious, simple and routine," so that an explicit finding from the medical

evidence is unnecessary.

The Court finds that Ms. Johnson is entitled to past temporary total disability benefits

for the two- (2) week period. However, Ms. Johnson did not introduce into evidence proof of

her past wages or compensation rate. Therefore, the Court is without sufficient evidence to

calculate the award for past TTD benefits. In the interest of judicial economy, the Court

directs the parties to confer and determine the compensation rate. Walmart shall forthwith

pay two (2) weeks ofTTD benefits at the agreed upon rate. With regard to Ms. Johnson's

request for TTD benefits beyond the two-week timeframe, at this interlocutory stage, she has

not offered sufficient proof of entitlement under the Gray factors, and therefore, at this time,

her request is denied.

IT IS, THEREFORE, ORDERED as follows:

1. Walmart or its workers' compensation carrier shall provide Ms. Johnson with medical

treatment for her injuries as required by Tennessee Code Annotated section 50-6-204,

to be initiated by Walmart or its workers' compensation carrier providing Ms.

Johnson with a panel of physicians as required by that statute. Ms. Johnson or the

providers shall furnish all billings to Walmart, which shall pay said bills pursuant to

the applicable fee schedule. Walmart is not obligated to pay for any past medical

expenses at this time.

2. The parties shall confer regarding making a determination of Ms. Johnson's

compensation rate so that Walmart shall forthwith pay temporary total disability

benefits for 14 days, from October 29, 2014, through November 12, 2014.

3. Ms. Johnson's request for additional temporary total disability benefits is denied at

this time.

4. By copy of this Expedited Hearing Order, this matter is referred to the Penalty

Program for review of possible penalties regarding Walmart's failure to provide a

panel of physicians.

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5. This matter is set for Initial Hearing on July 14, 2015, at 10:00 a.m.

6. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance

with this Order must occur no later than seven (7) business days from the date of

entry of this Order as required by Tennessee Code Annotated section 50-6-

239(d)(3) (2014). The Insurer or Self-Insured Employer must submit

confirmation of compliance with this Order to the Division by email to

WCCompliance.Program@tn.gov no later than the seventh (7th) 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.

7. For questions regarding compliance, please contact the Workers' Compensation

Compliance Unit via email WCCompliance.Program@tn.gov or by calling (615) 253-

1471 or (615) 532-1309.

ENTERED this the 26th day of May, 2015.

ennetb M. Switzer, Chief Ju

Court of Workers' Compensation Claims

lni tial Hearing:

An Initial Hearing has been set with Chief Judge Kenneth M. Switzer, Court of

Workers' Compensation Claims. You must call615-532-9552 or toll free at 866-943-

0025 to participate in the Initial Hearing.

Please Note: You must call in on the scheduled date/time to participate. Failure

to call in may result in a determination of the issues without your further participation.

All conferences are set using Central Time (CT).

Right to Appeal:

Tennessee Law allows any party who disagrees with this Expedited Hearing Order to

appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of

Appeal, you must:

1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal."

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2. File the completed form with the Court Clerk within seven (7) business days of the

date the Workers' Compensation Judge entered the Expedited Hearing Order.

3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.

4. The parties, having the responsibility of ensuring a complete record on appeal, may

request from the Court Clerk the audio recording of the hearing for the purpose of

having a transcript prepared by a licensed court reporter and filing it with the Court

Clerk within ten (10) calendar days of the filing of the Expedited Hearing Notice of

Appeal. Alternatively, the parties may file a statement of the evidence within ten (10)

calendar days of the filing of the Expedited Hearing Notice of Appeal. The Judge

must approve the statement of the evidence before the Clerk of Court shall submit the

record to the Clerk of the Appeals Board.

5. If the appellant elects to file a position statement in support of the interlocutory

appeal, the appealing party shall file such position statement with the Court Clerk

within three (3) business days of the filing of the Expedited Hearing Notice of

Appeal, specifYing the issues presented for review and including any argument in

support thereof. If the appellee elects to file a response in opposition to the

interlocutory appeal, appellee shall do so within three (3) business days of the filing of

the appellant's position statement.

CERTIFICATE OF SERVICE

I hereby certifY that a true and correct copy of the Expedited Hearing Order was sent

to the following recipients by the following methods of service on this the 26th day ofMay,

2015.

Name Certified First Via Fax Via Email Address

Mail Class Fax Number Email

Mail

Tim Bowden, X Bowden ll;tdia@gmail.com;

Employ_ee's attorney Bowden law@bellsouth.net

Jay Johnson, X jax@iaxjohnsonlawfirm.com

Employer's attorney

Penalty Program X WCComoliance.Program@tn.gov

Peony Shr , Clerk of Court

Court of orkers' Compensation Claims

WC.CourtCierk@tn.gov

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