The opinion
FILED
Apr 18, 2019
08:23 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
LILLIAN HOWARD, ) Docket No. 2018-05-0841
Employee, )
v. )
)
NHC HEALTHCARE/PULASKI, LLC, ) State File No. 60684-2018
Employer, )
And )
)
PREMIER GROUP INS. CO., ) Judge Dale Tipps
Carrier. )
EXPEDITED HEARING ORDER DENYING REQUESTED BENEFITS
This matter came before the Court on April 10, 2019, for an Expedited Hearing on
Ms. Howard’s entitlement to medical and temporary disability benefits. The central
issues are whether she is likely to establish at a hearing on the merits that she gave proper
notice and, if not, whether her injury arose primarily out of and in the course and scope of
her employment. For the reasons below, the Court holds Ms. Howard provided adequate
notice but is not entitled to the requested benefits at this time.
History of Claim
Ms. Howard suffered a back injury while working for another employer in 2015.
That employer accepted the claim as compensable and provided treatment with Dr.
Robert Clendenin. This Court approved the parties’ settlement of the claim in May 2017,
with Dr. Clendenin designated as the authorized physician for future treatment. Ms.
Howard was unable to return to her job and eventually began working for NHC at the end
of October 2017.
Ms. Howard testified that she felt something happen to her back while taking a
1
load of laundry out of the washing machine at work on February 2, 2018. 1 She finished
her shift and went to the office of her supervisor, Chasity Jones, to report the incident.
She could not locate Ms. Jones, so she clocked out and went home. When Ms. Howard’s
husband learned she was suffering from back pain, he advised her to report the injury, so
she called Ms. Jones at work and told her what had happened. Ms. Jones told Ms.
Howard to keep her informed.
The next day was Saturday, and Ms. Howard traveled to Huntsville with her
family for some shopping. When they arrived at the mall, she began having difficulty
walking due to back pain. She cut the trip short and returned home. Her pain worsened
to the point that she had to go to the emergency room on Sunday. She returned to the
emergency room on Monday.
On Tuesday, Ms. Howard went to her primary care doctor because the medicines
and injections from the emergency room were ineffective. His treatment provided no
relief either. Ms. Howard had a follow-up appointment scheduled with Dr. Clendenin
under her previous workers’ compensation claim, and she called to see if that
appointment could be moved up. She could not get her appointment changed, so she saw
Dr. Clendenin on February 27.
Following that appointment with Dr. Clendenin, Ms. Howard called an
administrator at NHC, who said that her claim was denied. Beginning with her first
emergency room visit, Ms. Howard’s doctors assigned temporary restrictions or took her
completely off work, and she has not worked for NHC or any other employer since
February 2, 2018.
On cross-examination, Ms. Howard admitted that she described her injury in the
Petition for Benefit Determination (PBD) as occurring over a period of five months of
“pulling, tugging and lifting wet laundry.” She explained that the PBD was incorrect and
that she sent it in by error.
Ms. Jones testified that Ms. Howard reported hurting her back at home in
December 2017, which caused her to miss work. She denied receiving any notice of a
work injury on February 2, 2018, although Ms. Howard left a voicemail that she would
be out of work on February 5 because of her back. Ms. Jones said Ms. Howard did not
report a specific work injury until the last week of February. At that time, Ms. Howard
was unable to identify a specific date or incident.
Records from Dr. Clendenin show that Ms. Howard saw him on February 27 for
follow-up of her previous work injury. He noted that he had not seen her since the
1
There was some confusion as to the exact date, but Ms. Howard said she was sure it was the first Friday
in February, which the Court notes was February 2.
2
previous April. Ms. Howard “was doing well until about the second of this month when
she was shopping and developed acute onset of severe pain in her back and leg.” She
reported severe pain. Dr. Clendenin assessed possible acute right lumbar radiculopathy
with a significant possibility of a new disc herniation.
On March 1, Ms. Howard returned to Dr. Clendenin after her MRI. He noted a
new right paracentral protrusion at L5-S1. At the next visit, Dr. Clendenin noted that Ms.
Howard was much better after an epidural injection. He recommended either another
injection or a surgical referral.
Ms. Howard had the injection and returned to Dr. Clendenin’s office on May 30,
where she saw Mary Feulner, a nurse practitioner. Ms. Howard, who was using a
wheelchair, reported significant back and right leg pain. NP Feulner noted, “She is
wondering if her symptoms are from an injury she had in January.” After a third epidural
injection, Ms. Howard saw Dr. Clendenin on July 10 and reported significant
improvement in her pain. He told her she could seek a second opinion with a back
surgeon if she wished, and he encouraged her to find a lighter job.
At the hearing, Ms. Howard requested that the Court order NHC to provide
additional medical treatment. Her PBD also included requests for temporary disability
benefits.
NHC contended that Ms. Howard’s claim is barred by her failure to provide proper
notice of an injury. It also argued that, even if notice were legally adequate, Ms. Howard
failed to prove she is likely to establish that she suffered an injury by accident arising
primarily out of and in the course and scope of her employment. For these reasons, it
asked the Court to deny her request.
Findings of Fact and Conclusions of Law
Standard applied
Ms. Howard need not prove every element of her claim by a preponderance of the
evidence in order to obtain relief at an expedited hearing. Instead, she must present
sufficient evidence she is likely to prevail at a hearing on the merits. See Tenn. Code
Ann. § 50-6-239(d)(1) (2018); McCord v. Advantage Human Resourcing, 2015 TN Wrk.
Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Notice
Tennessee Code Annotated section 50-6-201(a)(1) provides that an injured
employee must give written notice of an injury within fifteen days unless it can be shown
that the employer had actual knowledge of the accident or that “reasonable excuse for
3
failure to give the notice is made to the satisfaction of the tribunal.” The parties dispute
whether Ms. Howard actually gave NHC notice of her alleged February 2, 2018 injury.
The answer to this question lies in the C20 First Report of Injury filed by NHC.
Contrary to Ms. Jones’s testimony, the First Report states that NCS received notice of the
injury on February 5, only three days after the alleged injury date.
Further, Tennessee Code Annotated section 50-6-201(a)(3) provides that failure to
give notice will not bar a claim unless the employer can show it was prejudiced by the
lack of notice. Prejudice may be found if the employer is denied the opportunity to make
an investigation while the facts are accessible or to provide timely and proper treatment
for the injured employee. See Masters v. Industrial Garments Mfg. Co., 595 S.W.2d 811,
815 (Tenn. 1980). NHC presented no evidence of any prejudice to its ability to defend
this claim or provide proper medical treatment.
For these reasons, the Court holds that Ms. Howard is likely to prevail at a hearing
on the merits on the issue of notice.
Compensability
To prove a compensable injury, Ms. Howard must show that her alleged injuries
arose primarily out of and in the course and scope of her employment. This includes the
requirement that she must establish a work-related incident, or specific set of incidents,
identifiable by time and place of occurrence. Tenn. Code Ann. § 50-6-102(14)(A).
Regarding the requirement to identify a work-related incident, the PBD Ms.
Howard completed and signed did not describe a specific incident. Instead, she wrote
that her injury occurred over the course of several months. The First Report of Injury
states that she was unable to describe what happened or when. Further, the only medical
records introduced do not support her contention that she suffered a discrete, identifiable
injury on February 2, 2019, as they do not mention an injury until her fourth visit, four
months later. Even then, nothing indicates that the injury occurred at work. Under these
circumstances, the Court cannot find at this time that Ms. Howard is likely prove the
existence of the “work-related incident” required by section 50-6-102(14)(A).2
Even if Ms. Howard were to establish an identifiable injury, she would have to
show, “to a reasonable degree of medical certainty that it contributed more than fifty
percent (50%) in causing the . . . disablement or need for medical treatment, considering
2
The definition of “injury” in Tennessee Code Annotated section 50-6-102(14) includes cumulative
trauma or repetitive motion conditions. However, Ms. Howard claimed in her affidavit and insisted at the
hearing that she was seeking benefits for a specific February 2 injury. Further, she explicitly disavowed
the allegations in her PBD and denied a gradual injury. Based on that testimony, the Court cannot find
she would likely prevail on a claim for a cumulative trauma injury.
4
all causes.” “Shown to a reasonable degree of medical certainty” means that, “in the
opinion of the treating physician, it is more likely than not considering all causes as
opposed to speculation or possibility.” See Tenn. Code Ann. § 50-6-102(14).
The only medical records introduced at the hearing were those of Dr. Clendenin,
who did not address causation. Thus, Ms. Howard offered no evidence that her work
contributed more than fifty percent in causing her need for medical treatment.
Ms. Howard appeared sincere in her belief that her work activities caused her
condition. However, the Court must abide by the causation requirements of the Workers’
Compensation Law and cannot infer from the mere existence of Ms. Howard’s back
condition that her employment caused it. The Court thus finds she is unlikely to prove at
this time that her condition arose primarily out of and in the course and scope of her
employment.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. Howard’s claim against NHC Healthcare and its workers’ compensation
carrier for the requested medical benefits is denied at this time.
2. This matter is set for a Scheduling Hearing on June 18, 2019, at 9:00 a.m. Please
call toll-free at 855-874-0473 to participate. Failure to call or appear may result in
a determination of the issues without your further participation. All conferences
are set using Central Time (CT).
ENTERED this the 18th day of April, 2019.
_____________________________________
Judge Dale Tipps
Court of Workers’ Compensation Claims
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APPENDIX
Exhibits:
1. Affidavit of Lillian Howard
2. First Report of Injury
3. Notice of Denial of Claim
4. Physician Return-to-Work certificates
5. Imaging Reports
6. Medical Records
7. Settlement documents from previous workers’ compensation claim
8. December 12, 2017 treatment note (Identification Only)
9. Wage Statement
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. NHC’s Response in Opposition to Request for Expedited Hearing
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 18th day
of April, 2019.
Name Certified Fax Email Service sent to:
Lillian Howard, X Lilhoward9894@gmail.com
Employee
Frank Gallina, X fgallina@plcslaw.com
Employer’s Attorney
_____________________________________
Penny Shrum, Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
6
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.
.
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