The opinion
FILED
Aug 10, 2018
11:20 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT MEMPHIS
Erma Pearson, Docket No.: 2017-08-1356
Employee,
v. State File No.: 93573-2017
Guardian Industries Corp.,
Employer. Judge: Deana C. Seymour
EXPEDITED HEARING ORDER
This case came before the Court on August 3, 2018, on Erma Pearson's Request
for Expedited Hearing. The issue is whether Ms. Pearson is likely to prevail at a hearing
on the merits concerning entitlement to a panel of orthopedists. 1 The Court holds she is
likely to do so and grants her request for an orthopedic panel.
History of Claim
Ms. Pearson worked as a press operator for Guardian Industries Corp. (Guardian).
On July 19, 2016, she slipped and fell in oil at work, claimed injuries to her back and
right knee and reported her fall to Guardian. Guardian provided a panel of generalists,
and she selected OccuMed. However, when her OccuMed physician referred her to an
orthopedist, Guardian sent her to Dr. Lonergan without a specialist panel or a direct
referral from her treating physician. 2
Dr. Lonergan began treating Ms. Pearson in August 2016. He noted back surgery
in 2004 as well as longstanding right knee pain. He diagnosed her with a lumbosacral
sprain and right knee arthritis with a recent aggravation and contusion. He prescribed
medication for pain and spasms and ordered physical therapy. He also placed Ms.
Pearson on sedentary work restrictions.
1
Ms. Pearson also raised the issue of temporary disability benefits in the Dispute Certification Notice.
However, she presented no evidence at the hearing regarding this issue.
2
Dr. Lonergan was Ms. Pearson's medical impairment registry doctor for a prior claim.
1
When Ms. Pearson continued to have issues with her back, Dr. Lonergan ordered
an MRI of her lumbar spine. The MRI did not reveal anything acute but showed chronic
degenerative changes that did not indicate any spinal canal or foramina! compromise. Dr.
Lonergan placed Ms. Pearson at maximum medical improvement for her back contusion
on October 27, 2016. He also stated that her knee condition remained chronic and noted
that a total knee replacement was previously recommended.
Guardian ultimately denied the claim based on willful misconduct. 3 Afterward,
Ms. Pearson filed a Petition for Benefit Determination, asking the Court to order
Guardian to provide an orthopedic panel.
At the hearing, Ms. Pearson testified that oil was on the floor when she arrived at
her work station on the date of her injury. She had to stand in the oil until a cleaning crew
arrived. Ms. Pearson testified that, as the cleaning crew took care of the oil, she had to
move toward her machine to pull a part off the conveyor to keep the machine from
breaking. She contended that Guardian would have terminated her had she not done so.
She slipped when she moved forward, and her feet flew straight out from under her, so
she fell backwards.
Wyatt Edwards testified on behalf of Guardian. He stated he was familiar with Ms.
Pearson's work station and testified that if one part were not pulled off before a second
part came down, the line would stop; however, it would not break the machine. Mr.
Edwards denied that Guardian would have fired Ms. Pearson if the line stopped.
Guardian also introduced a statement from co-worker James Ross. According to
Mr. Ross, he was on the crew that came to clean the oil at Ms. Pearson's work station.
Mr. Ross stated that he mopped from the conveyor to the table and asked Ms. Pearson to
move so he could finish. Instead of moving back, however, Ms. Pearson moved forward
onto the wet floor and fell.
Findings of Fact and Conclusions of Law
Standard Applied
Ms. Pearson bears the burden of proof on the essential elements of her claim.
Scott v. Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6
(Aug. 18, 20 15). She does not have to prove every element of her claim by a
preponderance of the evidence but must present sufficient evidence for the Court to
determine she is likely to prevail at a hearing on the merits. McCord v. Advantage Human
Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Mar. 27, 2015).
3
While the Notice of Denial only listed willful misconduct as the basis for Guardian's denial, Guardian
also raised lack of causation as a second basis.
2
Willful Misconduct
The Court turns first to Guardian's contention that Ms. Pearson's failure to use a
safety device bars her recovery. Guardian pointed to Tennessee Code Annotated section
50-6-110, which provides that no compensation shall be allowed for an injury due to an
employee's "willful failure or refusal to use a safety device."
In Scarbrough v. Right Way Recycling, LLC, 2015 TN Wrk. Comp. Ap. Bd.
LEXIS *9 (April 20, 20 15), the Appeals Board defined the elements necessary to
successfully defend a workers' compensation claim on the basis of willful misconduct,
willful disobedience of safety rules, or willful failure to use a safety device. The
employer must prove: (1) the employee's actual, as opposed to constructive notice of the
safety 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. !d. at* 14.
Here, none of these elements were established at the hearing because Guardian
offered no proof to support them. Based on Guardian's lack of proof, Ms. Pearson is
likely to prevail on the issue of her alleged willful misconduct.
Panel ofPhysicians
The Court next turns to Ms. Pearson's request for a panel of orthopedists. An
employee does not have to prove compensability to activate the employer's obligation to
provide a panel of physicians from which the employee may choose a doctor. See
McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at
*6 (Mar. 27, 2015). In McCord, the Appeals Board reasoned:
[A] contrary rule would require many injured workers to seek out, obtain
and pay for a medical evaluation or treatment before his or her employer
would have any obligation to provide medical benefits. The delays
inherent in such an approach, not to mention the cost barrier for many
workers, would be inconsistent with a fair, expeditious, and efficient
workers' compensation system.
!d. at *9-10.
Thus, at an expedited hearing, an employee need not establish the compensability
of her claim by a preponderance of the evidence. She must only come forward with
sufficient evidence to support that a work event resulted in injury. If she does so, it may
be sufficient to support an order compelling an employer to provide a panel. See Lewis v.
Molly Maid, 2016 TN Wrk. Comp. App. Bd. LEXIS 19, at *8-9 (Apr. 20, 2016).
3
Upon application of the authority to the facts, the Court holds that Ms. Pearson
presented sufficient evidence to demonstrate that she is likely to prevail at a hearing on
the merits as to whether she is entitled to an orthopedic panel. The parties stipulated that
Ms. Pearson slipped and fell in oil at her work station while performing her job duties for
Guardian. Ms. Pearson received a panel of generalists. However, when her treating
physician referred her to an orthopedist, Guardian sent her to Dr. Lonergan without a
specialist panel and without a direct referral from her treating physician.
IT IS, THEREFORE, ORDERED as follows:
1. Guardian or its workers' compensation insurance carrier shall provide Ms. Pearson
with a panel of orthopedic specialists from which she may choose an authorized
physician for treatment pursuant to Tennessee Code Annotated Section 50-6-204.
2. This matter is set for a Scheduling Hearing on October 22, 2018, at 8:30 a.m.
Central Standard Time. The parties must call (toll-free) 866-943-0014 to
participate in the Hearing. Failure to call in may result in a determination of the
issues without the parties' participation.
3. 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).
The Insurer or Self-Insured Employer must submit confirmation of compliance
with this Order to the Bureau by email to WCCompliance.Program@tn. g v 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. For questions regarding compliance, please
contact the Workers' Compensation Compliance Unit vta email
WCCmnJJ Iiance.Program@tn.gov.
Entered this the ~ day of August, 2018.
~D~DEANA~OUR
Court of Workers' Compensation Claims
4
10th
Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
form with the Clerk of the Court of Workers’ Compensation Claims within seven
business days of the date the expedited hearing order was filed. When filing the Notice
of Appeal, you must serve a copy upon all parties.
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of 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 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 the appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business days of the filing of the Notice of Appeal. The statement of
the evidence must convey a complete and accurate account of the hearing. The Workers’
Compensation Judge must approve the statement before the record is submitted to the
Appeals Board. If the Appeals Board is called upon to review testimony or other proof
concerning factual matters, the absence of a transcript or statement of the evidence can be
a significant obstacle to meaningful appellate review.
4. If you wish to file a position statement, you must file it with the court clerk within ten
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements 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.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
Filed Date Stamp Here EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers' Compensation
Docket#: - - - -- -- - --
www.tn.go v/labor-wfd/wcomp.shtm l
State File #/YR: - - -- - - --
wc.courtclerk@tn.gov
1-800-332-2667 RFA#: _ _ _ _ _ _ _ _____ _
Date of Injury: - - - -- - - - -
SSN: _______ _ ______ __
Employee
Employer and Carrier
Notice
Noticeisg~enthat _ _ _ _ _ _ _~~--~~~~---~~~--------~
[List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s) of the Court of Workers' Compensation Claims at _ __
-~~~-----~~~~~~~~-to the Workers' Compensation Appeals Board .
[List the date(s) the order(s) was filed in the court clerk's office]
Judge___________________________________________
Statement of the Issues
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Additional Information
Type of Case [Check the most appropriate item]
D Temporary disability benefits
D Medical benefits for current injury
D Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): _____________ .A t Hearing: DEmployer DEmployee
Address:. _______________________ ______________ ___________
Party's Phone:.____________________________ Email: _________________________
Attorney's Name:________________________________ ___ BPR#: - - - - - - - - - - - -
Attorney's Address:. _ _ _ _ _~~-~~~~----~~---- Phone:
Attorney's City, State & Zip code: _____________________ ___________ _ _ _ __ _
Attorney's Email :_ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ __ _ _ _ __ _ _ _ _ _ _ __
*Attach an additional sheet for each additional Appellant*
LB-1099 rev.4/15 Page 1 of 2 RDA 11082
Employee Name: - - - -- - - -- - - - SF#: _ _ _ _ __ _ _ _ _ DO l: _ __ _ __
Aopellee(s)
Appellee (Opposing Party): _ _ _ _ _ _ _ _.At Hearing: OEmployer DEmployee
Appellee's Address: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Appellee's Phone:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _.Email:_ _ _ _ _ _ __ _ _ _ _ _ __
Attorney's Name:_ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ BPR#: - - - - - - - -
Attorney's Address:._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Phone:
Attorney's City, State & Zip code: - - - -- - - - - - - - - - - - - - - - - - - -- -
Attorney's Email:._ _ _ _ __ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, certify that I have forwarded a true and exact copy of this
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules of
Board of Workers' Compensation Appeals on this the day of__, 20_ .
[Signature of appellant or attorney for appellant]
LB-1099 rev.4/1S Page 2 of 2 RDA 11082
.
ll .I
Tennessee Bureau of Workers' Compensation
220 French Landing Drive, 1-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
I, , having been duly sworn according to law, make oath that
because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name:_ _ _ _ _ _ _ _ _ _ __ 2. Address: - - - - - - - - - - - - -
3. Telephone Number: - - - - - - - - - 4. Date of Birth: - - - - - - - - - - -
5. Names and Ages of All Dependents:
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
- - - - - - - - - - - - - - -- - Relationship: - - - - - - - - - - - --
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
6. I am employed by: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , -
My employer's address is: - - - - - - - - - - - - - - - - - - - - - - - - -
My employer's phone number is: - - - - - - - - - - - - - - - - - - - - - - -
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$ _ _ _ _ _ _ ___
8. I receive or expect to receive money from the following sources:
AFDC $ per month beginning
SSI $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Camp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are: ' ; !•
'
Rent/House Payment $ per month Medical/Dental $ per month
Groceries $ per month Telephone $ per month
Electricity $ per month School Supplies $ per month
Water $ per month Clothing $ per month
Gas $ per month Child Care $ per month
Transportation $ per month Child Support $ per month
Car $ per month
Other $ per month (describe:
10. Assets:
Automobile $ _ _ __ _
(FMV) - - - - - -- - - -
Checking/Savings Acct. $ _ _ _ __
House $ _ _ _ __
(FMV) - - -- - - -- - -
)
Other $ _ _ _ __ Describe:_ _ _ __ _ _ _ _ __
11. My debts are:
Amount Owed To Whom
I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
_ _ _ dayof _____________ ,20____
NOTARY PUBLIC
My Commission Expires:_ _ _ _ _ __ _
LB-1108 (REV 11/15) RDA 11082