The opinion
FILED
Apr 26, 2019
09:00 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT GRAY
PATRICIA SMITH, ) Docket No. 2018-02-0365
Employee, )
v. )
HEALTHCARE SERVICE GROUP, ) State File No. 37845-2018
.Employer, )
and )
NEW HAMPSHIRE INS. CO., ) Judge Brian K. Addington
Carrier. )
EXPEDITED HEARING ORDER
This matter came before the Court on April 23, 2019, for an Expedited Hearing.
The issues are whether Patricia Smith is likely to succeed at trial in proving she gave
timely notice of her injury and whether she submitted sufficient medical proof to show
she suffered a compensable injury. For the reasons below, the Court denies benefits at
this time.
Claim History
Ms. Smith worked as a manager for Healthcare Service Group, which provided
housekeeping services to a nursing home. Ms. Smith often worked long hours and
performed the work of other employees because HSG understaffed the site. On March
30, 2018, she scrubbed the floors on her knees. As she attempted to rise, her foot slipped
and her left knee hit the floor. She testified she experienced the same feeling as hitting
her "funny bone." Ms. Smith did not report an injury.
As time passed, Ms. Smith experienced worsening knee pain and swelling. She
eventually wore a brace she purchased herself. She continued working for several
months, although she self-limited her work activities. 1
On May 21, Ms. Smith used an especially heavy floor scrubber and noticed her
knee swelled more than it ever had. She reported an injury to HSG the following day.
1
Ms. Smith took a week off work in April to attend to her ill husband.
1
Instead of providing a physician panel, HSG directed Ms. Smith to Urgent Care. Ms.
Smith told the providers about the March 30 incident, and they took an x-ray, placed her
.on light-duty, diagnosed patellar bursitis, and made an orthopedic referral.
As a result, HSG directed Ms. Smith to Dr. Thomas Whitman without providing a
panel. Dr. Whitman recommended physical therapy that she attended. He then
recommended an MRI, but HSG filed a Notice of Controversy and denied her claim on
June 21 on the basis that she did not provide timely notice and gave different accounts
about how the injury occurred. 2
Following the denial, Ms. Smith sought medical treatment on her own with Dr.
James Shipley and underwent an MRI. 3
Ms. Smith argued she is entitled to medical and temporary benefits. She
contended HSG was wrong to stop her treatment with Dr. Whitman. If it had continued
treatment, she would have undergone the MRI sooner and obtained a better outcome with
her injury.
HSG argued Ms. Smith did not provide timely notice and prejudiced the
employer's ability to investigate the March 30 incident. Further, she provided no excuse
for failing to provide notice because it was obvious she injured herself, as she self-treated
and self-limited her work activities. Even if she had provided timely notice, she failed to
provide medical evidence that her condition was primarily caused by her work.
Findings of Fact and Conclusions of Law
Ms. Smith need not prove every element of her claim by a preponderance of the
evidence to obtain relief at an expedited hearing. Instead, she must present sufficient
evidence that 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).
An employee has an obligation to provide written notice to her employer within
fifteen days of the injury, unless the employee has a reasonable excuse. Tenn. Code Ann.
§ 50-6-201(a)(1). No defect or inaccuracy in providing notice shall bar a claim, unless
an employer can prove the failure to provide proper notice prejudiced it, and then only to
the extent of the prejudice. Tenn. Code Ann. § 50-6-20l(a)(2).
Here, Ms. Smith knew she injured her knee on March 30, but she did not provide
notice until May 22. She knew she injured her knee because she felt worsening pain and
swelling, self-treated with a brace, and self-limited her work activities. She argued that
she tried to work through the pain. This is commendable, but it does not absolve her
2
HSG provided no proof for its reasoning.
3
Other than a notation that Dr. Shipley was treating Ms. Smith, the parties did not introduce his records.
2
obligation to provide timely notice. Also, HSG has shown that it was prejudiced by her
actions as Ms. Smith chose to self-treat instead of obtaining medical treatment, and
during this time, her condition worsened. The Court holds that Ms. Smith is unlikely to
succeed at trial in proving she gave timely notice of her injury.
Even if Ms. Smith could prove she gave timely notice, she has not presented an
opinion in where a physician primarily related her knee condition and her need for
treatment to her work injury. See Tenn. Code Ann.§ 50-6-102(14). Thus, she is unlikely
to succeed at trial in proving she suffered a compensable injury.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. Smith's claim against HSG and its workers' compensation carrier for medical
and temporary benefits is denied at this time.
2. This matter is set for a Scheduling Hearing on June 18, 2019, at 10:00 a.m.
Eastern Time. The parties must call 855-543-5044 toll-free to participate in the
Scheduling Hearing. Failure to appear by telephone may result in a determination
of the issues without the party's participation.
ENTERED this the 26th day of April, 2019.
IS/ Brian K. Addington
BRIAN K. ADDINGTON, JUDGE
Court of Workers' Compensation Claims
Appendix
Exhibits
1. Affidavit of Patricia Smith
2. First Report of Injury
3. Notice of Controversy
4. Off work note-Dr. James Shipley
5. Medical records
a. Pro Compounding Pharmacy
b. Mountain States Medical Group
c. Appalachian Orthopedics
d. Lab test chain of custody form
e. Med Works Occupational Medicine
f. Cora Physical Therapy
6. Witness statements (Identification purposes only)
3
X
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