The opinion
FILED
September 20.. 201,6
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WORKIRS'CO:MPlNSATION
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TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT MEMPHIS
Diana Gray, Docket No.: 2015-08-0461
Employee,
v. State File No.: 79466-2015
Daffy Duck Learning Akademy, Judge Jim Umsted
Uninsured Employer.
EXPEDITED HEARING ORDER FOR MEDICAL AND TEMPORARY
DISABILITY BENEFITS
This case came before the undersigned Workers' Compensation Judge on
September 14, 2016, upon the Request for Expedited Hearing filed by the employee,
Diana Gray, pursuant to Tennessee Code Annotated section 50-6-239 (2015). The central
legal issue is whether Daffy Duck Learning Akademy (DDLA), must provide medical
and temporary disability benefits for Ms. Gray's alleged work-related foot injury. For the
reasons set forth below, the Court finds Ms. Gray is entitled to medical treatment for her
foot as well as temporary disability benefits. 1
History of Claim
Ms. Gray is a thirty-six-year-old resident of Shelby County, Tennessee. She
worked as the Assistant Director for DDLA, a sole proprietorship. On August 14, 2015,
she injured her left foot at work when a can fell on it. She immediately called Ms.
Daphene Booker, owner of DDLA, and reported her injury. Both Ms. Booker and her
husband, Todd Harris, came to DDLA to check on Ms. Gray's condition, with Mr. Harris
arriving first. They observed Ms. Gray's foot injury and called Ms. Gray's husband,
Anthony Parker. Mr. Parker came to DDLA and took Ms. Gray to the emergency room
at Methodist South Hospital (MSH).
According to the medical records at MSH, Ms. Gray complained of left foot pain
due to a can falling on top of her toes. The emergency department diagnosed a foot
contusion and found no fracture with x-ray. MSH reported Ms. Gray could return to
work on August 18, 2016, with no restrictions. The parties disputed when Ms. Gray
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A complete listing of the technical record and exhibits is attached to this Order as an appendix.
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returned to work, but Ms. Booker and Mr. Harris both testified she returned to work on
August 18, 2016, and worked regular duty until September 4, 2015, when she left work to
go to Ognibene Clinic because of continued foot pain. Ms. Booker confirmed she
suggested that Ms. Gray go to Ognibene Clinic because Dr. Frank Ognibene is a foot
specialist. DDLA offered no panel of physicians.
On the initial visit to Dr. Ognibene, Ms. Gray reported she injured her left great
toe at work when a can fell on her foot. Dr. Ognibene diagnosed a non-displaced fracture
and reported surgery was not necessary. He conservatively treated Ms. Gray for the toe
fracture from September 4, 2015, to November 4, 2015. During this time, he assigned
non-weight bearing, light duty work. Ms. Gray testified DDLA told her it did not have
light duty work available. Dr. Ognibene also treated Ms. Gray for a fungal foot infection
and toe-nail removal, none of which was shown to be work related.
DDLA admitted it did not carry workers' compensation insurance at the time of
Ms. Gray's injury. It argued Ms. Gray violated company safety rules by wearing open
toe shoes at the time of injury. However, it submitted no evidence that this rule was in
effect, or that it was enforced. DDLA also argued not all of Dr. Ognibene's treatment
related to a fractured toe.
Ms. Gray testified she has not seen a physician for her injury since Dr. Ognibene
released her. She testified her husband's insurance paid part of her medical bills, and she
owes the balance. Ms. Gray did not return to work because the staff at DDLA criticized
her on Facebook and she did not feel comfortable working with them again. Ms. Gray
asked for additional medical care because her foot is still hurting. DDLA argued it had no
responsibility for Facebook posts by staff members.
Findings of Fact and Conclusions of Law
General Legal Principles
At an Expedited Hearing, Ms. Gray need not prove every element of her claim by
a preponderance of the evidence in order to recover temporary disability and/or medical
benefits. McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk.
Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).
Instead, she must come forward with sufficient evidence from which this Court might
determine she is likely to prevail at a hearing on the merits. !d.; Tenn. Code Ann. § 50-6-
239(d)(1) (2015). This lesser evidentiary standard "does not relieve an employee of the
burden of producing evidence of an injury by accident that arose primarily out of and in
the course and scope of employment at an expedited hearing, but allows some relief to be
granted if that evidence does not rise to the level of a 'preponderance of the evidence."'
Buchanan v. Carlex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd.
LEXIS 39, at *6 (Tenn. Workers' Comp. App. Bd. Sept. 29, 2015).
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Compensability
The first issue this Court must address is whether Ms. Gray sustained a
compensable injury. To be compensable under the Workers' Compensation Law, an
injury must arise primarily out of and occur in the course and scope of the
employment; be caused by an incident or specific set of incidents; and be identifiable
by time and place of occurrence. Tenn. Code Ann. § 50-6-102(14) (2015). Medical
evidence is generally required in order to establish a causal relationship, "[ e]xcept
in the most obvious, simple and routine cases." 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)).
Ms. Gray credibly testified she injured the great toe on her left foot on August 14,
2015, when a can fell and hit her foot at work. The medical records confirmed this.
DDLA did not dispute Ms. Gray's description of the work incident. Applying the above
legal principles, the Court holds that Ms. Gray has come forward with sufficient
evidence showing she is likely to prevail on the issue of compensability at a hearing on
the merits.
Medical Benefits
Pursuant to Tennessee Code Annotated section 50-6-204(a)(l)(A) (2015), "the
employer or the employer's agent shall furnish, free of charge to the employee, such
medical and surgical treatment ... made reasonably necessary by accident as defined in
this chapter."
Having found Ms. Gray is likely to prevail on the issue of compensability at a
hearing on the merits, the Court holds DDLA must provide medical treatment made
reasonably necessary by the work-related accident. The Court holds the treatment at
MSH to be reasonable and necessary. The Court also holds the treatment by Dr.
Ognibene for the fracture reasonably necessary. However, the Court holds finds no
evidence connecting Dr. Ognibene's treatment for Ms. Gray's fungal infection or nail
removal to her work injury.
Furthermore, the Court holds Dr. Ognibene shall be deemed Ms. Gray's
authorized treating physician. Ms. Gray complains her foot still hurts, and the Court
holds she is entitled to a return visit for examination and, if necessary, treatment with Dr.
Ognibene.
Entitlement to Temporary Disability Benefits
An injured worker is eligible for temporary disability benefits if: (1) the worker
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became disabled from working due to a compensable injury; (2) there is a causal
connection between the injury and the inability to work; and (3) the worker established
the duration of the period of disability. Simpson v. Satterfield, 564 S.W.2d 953, 955
(Tenn. 1978). Temporary disability benefits are terminated either by the ability to return
to work or attainment of maximum recovery. Id.
The August 14, 2015 medical report from MSH indicated Ms. Gray could return to
work on August 18, 2015, without restrictions. Dr. Ognibene assigned restricted duty
work from September 4, 2015, to November 6, 2015. However, DDLA provided no light
duty work. The parties introduced no other records indicating any medical restrictions
from working.
The Court finds Ms. Gray was unable to work for four days from August 14, 2015,
until August 18, 2015. The Court also finds she was unable to work full duty and could
obtain no light-duty work due to her injury during the sixty-three day period from
September 4, 2015, until November 6, 2015. Ms. Gray's request for temporary disability
benefits after November 6, 2015, is not supported by the medical proof.
Amount of Temporary Disability Benefits
Pursuant to Tennessee Code Annotated section 50-6-207(1)(A) (2015), "[for
injuries] producing temporary total disability, [an injured employee is entitled to] sixty-
six and two-thirds percent (66 2/3%) of the average weekly wages" during the period of
disability. Also, according to Tennessee Code Annotated section 50-6-207(2)(B) (2015),
"[i]n all cases of temporary partial disability ... the compensation shall be sixty-six and
two-thirds percent (66 2/3%) of the difference between the average weekly wage of the
worker at the time of the injury and the wage the worker is able to earn in the worker's
partially disabled condition." Because Ms. Gray had no earnings during the period of
disability, temporary total disability benefits and temporary partial disability benefits are
equivalent.
The Court determines Ms. Gray is entitled to temporary disability benefits for the
sixty-seven day period previously described. The parties agree her average weekly wage
(A WW) is $450.00, thereby making her weekly compensation rate (CR) $300.00.
Therefore, Ms. Gray is entitled to a combination of temporary total disability benefits and
temporary partial disability benefits of $300.00 per week for a period of nine weeks and
four days. This totals $2,871.42.
Ms. Gray is eligible to apply for benefits pursuant to
Tennessee Code Annotated section 50-6-801 et seq
Although this Court holds DDLA must provide Ms. Gray temporary disability and
medical benefits, it is unclear whether payment will be forthcoming, as DDLA did not
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have workers' compensation insurance at the time of the accident. Under Tennessee
Code Annotated section 50-6-802(e)(l) (2015), however, the Bureau has discretion to
pay limited temporary disability and medical benefits to employees who have established
medical causation of their injury and meet the following criteria:
( 1) The employee worked for an employer who failed to carry workers'
compensation insurance;
(2) The employee suffered an injury primarily arising in the course and scope
of employment after July 1, 20 15;
(3) The employee was a Tennessee resident on the date of the injury; and
(4) The employee provided notice to the Bureau of the injury and the
employer's failure to provide workers' compensation insurance no more
than sixty days after the injury occurred.
Tenn. Code Ann. § 50-6-801(d)(1)-(4) (2015).
Here, Ms. Gray established that she broke her toe while working and underwent
medical treatment for the broken toe. Her testimony and the medical records are
sufficient to establish that a work-related incident occurred and that the incident resulted
in Ms. Gray suffering a broken toe. Accordingly, the Court finds Ms. Gray is likely to
prevail at a hearing on the merits in proving she suffered a compensable work-related
lllJUry.
The Court also finds Ms. Gray successfully established the remaining criteria. The
Request for Investigation Report filed as Exhibit 10 with the Court established:
1. The existence of the employer/employee status;
2. Employer is uninsured;
3. Employer has ten employees and is subject to the act;
4. Employee suffered injury after July 1, 2015;
5. The injury was primarily within the course and scope of employment while
employer was uninsured; and,
6. Employee was a Tennessee resident, and notice was given to the Bureau within
sixty days of the injury.
The Court, therefore, holds Ms. Gray meets all the criteria to qualify as an eligible
employee under Tennessee Code Annotated section 50-6-801 et seq.
IT IS, THEREFORE, ORDERED as follows:
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1. DDLA shall provide Ms. Gray reasonably necessary medical treatment as
recommended by her authorized treating physician, Dr. Ognibene, and as required
by Tennessee Code Annotated section 50-6-204 (2015). This includes a return
visit to Dr. Ognibene for examination and, if necessary, treatment made
reasonably necessary by the work injury.
2. DDLA shall pay past medical bills incurred at MSH for emergency treatment, and
shall also pay past medical bills incurred for treatment with Dr. Ognibene for
treatment of the toe fracture. This does not include payment for treatment related
to the toenail removal or treatment for the fungal infection.
3. DDLA shall provide Ms. Gray past temporary disability benefits for four days
from August 14, 2015, until August 18, 2015, and sixty-three days from
September 4, 2015, until November 6, 2015. The Court determines Ms. Gray is
entitled to temporary disability benefits for this sixty-seven-day period. The
AWW is $450.00, and the weekly CR is $300.00. Therefore, Ms. Gray is entitled
to a combination of temporary total disability benefits and temporary partial
disability benefits of $300.00 per week for a period of nine weeks and four days.
This totals $2,871.42.
4. Ms. Gray is eligible to receive temporary disability and medical benefits from the
Uninsured Employer's Fund pursuant to Tennessee Code Annotated section 50-6-
801 et seq. The clerk shall forward a copy of this order to the Administrator for
consideration of payment.
5. This matter is set for a Status Hearing on November 7, 2016, at 10:00 a.m. Central
time.
6. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
with this Order must occur no later than seven business days from the date of entry
of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3)
(2015). The Insurer or Self-Insured Employer must submit confirmation of
compliance with this Order to the Bureau by email to
WCCompliance.Program@tn.gov no later than the seventh 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 WCC mpliance.Program@tn.gov or by calling (615)
253-1471.
ENTERED this the 20th day of September, 2016.
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Judge Jim Umsted
Court of Workers' Compensation Claims
Status Conference:
A Status Conference has been set with Judge Jim Umsted, Court of Workers'
Compensation Claims. You must call 615-532-9550 or toll-free at 866-943-0014 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.
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."
2. File the completed form with the Court Clerk within seven 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 appealing party is responsible for payment of a filing fee in the amount of
$75.00. Within ten calendar days after the filing of a notice of appeal, payment
must be received by check, money order, or credit card payment. Payments can be
made in person at any Bureau office or by United States mail, hand-delivery, or
other delivery service. In the alternative, the appealing party may file an Affidavit
of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
will consider the Affidavit of Indigency and issue an Order granting or denying
the request for a waiver of the filing fee as soon thereafter as is
practicable. Failure to timely pay the filing fee or file the Affidavit of
lndigency in accordance with this section shall result in dismissal of the
appeal.
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5. 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 calendar days of the filing of the Expedited
Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
the evidence within ten calendar days of the filing of the Expedited Hearing
Notice of Appeal. The statement of the evidence must convey a complete and
accurate account of what transpired in the Court of Workers' Compensation
Claims and must be approved by the workers' compensation judge before the
record is submitted to the Clerk of the Appeals Board.
6. If the appellant elects to file a position statement in support of the interlocutory
appeal, the appellant shall file such position statement with the Court Clerk within
five business days of the expiration of the time to file a transcript or statement of
the evidence, specifying the issues presented for review and including any
argument in support thereof. A party opposing the appeal shall file a response, if
any, with the Court Clerk within five business days of the filing of the appellant's
position statement. All position statements pertaining to an appeal of an
interlocutory order should include: (1) a statement summarizing the facts of the
case from the evidence admitted during the expedited hearing; (2) a statement
summarizing the disposition of the case as a result of the expedited hearing; (3) a
statement of the issue(s) presented for review; and (4) an argument, citing
appropriate statutes, case law, or other authority.
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APPENDIX
Exhibits:
1. Ms. Gray's Affidavit
2. Statement of Ms. Moore (not admitted, marked for identification only)
3. Statement of Anthony Parker
4. Statement of Reverend J.E. Cooper
5. Text message between Employee and Ms. Booker
6. Photograph of Employee's shoe (not admitted, marked for identification only)
7. Collective exhibit of selected medical records from Methodist LeBonheur
Healthcare (also including a complete set ofthese medical records marked as 7.B.)
8. Collective exhibit of medical records from Ognibene Clinics (also including a
complete set of these medical records marked as 8.B.)
9. Collective exhibit of medical bills submitted by Employee
10. Collective exhibit of documentation related to the Uninsured Employer Fund's
investigation
11. Collective exhibit-photographs of Ms. Gray's foot following her injury
12. Facebook statements of staff employees at DDLA (not admitted, marked for
identification only)
Technical record:
1. Petition for Benefit Determination, filed October 6, 2015
2. Dispute Certification Notice, filed November 20, 2015
3. Request for Expedited Hearing, filed April 18, 2016
4. Employer's position statement
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the foregoing was sent to the
following recipients by the following methods of service on this the 20th day of
September, 2016.
Name Certified Via Email Service Sent To:
Diana Gray, X 1923 Tacoma Avenue
Self-represented Memphis, 1N 3 8116
Em lo ee
X X daphenebooker@gmail.com
2343 Elvis Presley Blvd.
Mem his, 1N 38106
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