The opinion
FILED
Nov 05, 2018
08:26 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT JACKSON
SHANNON AVERY, ) Docket No. 2018-07-0320
Employee, )
v. )
JACKS FOOD STORE, LLC, ) State File Nos. 44013-2017
Employer, )
And, )
PLAZA INS. CO., ) Judge Allen Phillips
Carrier. )
EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS
Ms. Avery requested medical benefits for an injury on June 11, 2017.' The
dispositive issue is whether her injury arose out of the employment or was idiopathic.
The Court conducted an Expedited Hearing on November 1, 2018, and holds Ms. Avery
likely would prevail at a hearing on the merits that her injury arose out of the
employment.
History of Claim
Ms. Avery worked as a clerk for Jacks, a convenience store. On June 11, she
stepped down from a step and felt pain in her left knee. She introduced photographs of
the step revealing it was approximately six inches in height and that the floor above it had
loose carpet and protruding nails. The floor below was smooth tile. She pointed to photos
showing her standing at the step and demonstrated how the doorway where the step was
located was so narrow that she had to “twist” through it. Additionally, a surveillance
video from the store recorded images immediately after the incident showing Ms. Avery
appearing in pain and having difficulty walking.
''Ms. Avery marked the Temporary Disability Benefits box on the Petition for Benefit Determination but
claimed only three missed days, a period not compensable under law. Tenn. Code Ann. § 50-6-205(a)
(2018) (no compensation allowed for the first seven days of disability resulting from an injury).
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Jacks denied the claim on June 16 on grounds that Ms. Avery’s injury was
idiopathic. Specifically, it contended the step was not a hazard peculiar to Ms. Avery’s
work.
Because of Jacks’ denial, Ms. Avery sought medical treatment on her own. On
June 11, a provider at Jackson-Madison County General Hospital diagnosed left-knee
pain and swelling and took her off work for three days. The provider told Ms. Avery to
follow up with an orthopedic specialist.
Ms. Avery saw an orthopedist, Dr. Nicholas Vance, on August 31. Dr. Vance
recorded that Ms. Avery suffered “an acute left knee injury [that] occurred in June after
stepping down off a stair at work.” He suspected a medial meniscal tear and
recommended an MRI. On September 5, he noted the MRI revealed a complex tear of the
left medial meniscus. He believed Ms. Avery needed surgery, but she opted for “a course
of anti-inflammatories due to her financial situation.” Dr. Vance told her to return in four
weeks. Dr. Vance stated Ms. Avery’s “type of meniscal tear is commonly associated with
the type of injury she describes. Her symptoms, exam, and MRI findings are very
consistent with her story of falling due to mis-stepping off of a curb.”” Ms. Avery offered
no other medical records. She produced medical bills from Dr. Vance and the hospital.
Based on the evidence, Ms. Avery requested payment of her medical bills and
continued treatment for her knee injury. Jacks maintained its position and confronted Ms.
Avery regarding the specifics of the incident, namely, whether she tripped, fell or merely
stepped. Ms. Avery could not say for certain whether her foot caught a raised nail or if
she stumbled against the loose carpet. She simply recalled stepping down while twisting
through the narrow opening and feeling her knee pop. Thus, Jacks’ position was that her
exposure to the step was not peculiar to her employment, as she is exposed to steps away
from work just as she is at work.
Findings of Fact and Conclusions of Law
To be compensable, Ms. Avery must establish that her injury was caused by a
specific incident, or set of incidents, arising primarily out of and in the course and scope
of employment, and identifiable by time and place of occurrence. Tenn. Code Ann. § 50-
6-102(14)(A) (2018). At this Expedited Hearing, she must come forward with sufficient
evidence showing she likely would prevail at a hearing on the merits. Tenn. Code Ann. §
50-6-239(d)(1). Because the parties do not contest the incident, the Court turns to
whether her injury arose primarily out of the employment.
Jacks asserted the injury was idiopathic, meaning of “unexplained origin or
cause.” Idiopathic injuries generally do not arise out of the employment unless “some
*Dr. Vance’s mistaken use of the word “curb” rather than “step” does not affect the outcome.
a
condition of the employment presents a peculiar or additional hazard.” Frye v. Vincent
Printing Co., 2016 TN Wrk. Comp. App. Bd. LEXIS 34, at *11 (Aug. 2, 2016). In the
context of a work injury, “cause” means the accident originated in a hazard to which the
employee was exposed as a result of performing her job duties. /d. at *12.
In Bullard v. Facilities Performance Grp., 2018 TN Wrk. Comp. App. Bd. LEXIS
37 (Aug. 7, 2018), the Appeals Board noted, “Tennessee courts have consistently held
that an employee may not recover for an injury occurring while walking unless there is an
employment hazard, such as a puddle of water or a step, in addition to the injured
employee’s ambulation.” Jd. at *11 citing Wilhelm v. Kroger, 235 S.W.3d 122, 128-29
(Tenn. 2007) (emphasis added). Here, Ms. Avery was exposed to the step because of her
work. Contrary to Jacks’ argument, she need not establish anything more than that; her
job required her to step down from one level to another, and in so doing she injured her
knee. Further, in Bullard, the Appeals Board rejected an argument that a single step 1s not
an employment hazard. Jd. Moreover, even if Ms. Avery did catch her foot on loose
carpet or raised nails, she did so because those hazards attended her work. Based on the
evidence, the Court holds Ms. Avery likely would prevail at a hearing on the merits that
her injury arose out of her employment.
Turning to medical benefits, Ms. Avery must prove “to a reasonable degree of
medical certainty that [her injury] contributed more than fifty percent (50%) in causing
[her] disablement or need for medical treatment, considering all causes.” Tenn. Code
Ann. § 50-6-102(14)(B). The term “reasonable degree of medical certainty” means that
“in the opinion of the physician, it is more likely than not considering all causes, as
opposed to speculation or possibility.” Tenn. Code Ann. § 50-6-102(14)(D). Again, at
this interlocutory proceeding, Ms. Avery need only come forward with evidence showing
a likelihood of prevailing at a hearing on the merits. The Court finds she did.
Dr. Vance stated Ms. Avery’s condition “is commonly associated with the type of
injury she describe[d],” and her examination and MRI were “very consistent” with
stepping down from a step. In Lewis v. Molly Maid, 2016 TN Wrk. Comp. App. Bd.
LEXIS 19 (Apr. 20, 2016), the Appeals Board affirmed an award of medical benefits
where the employee reported a specific incident unrefuted by the employer. Further, the
medical evidence supported the employee’s allegations that she suffered pain when
performing a specific task when there was no medical evidence to the contrary. Jd. at *7-
8. The same is true here, and the Court holds Ms. Avery is entitled to medical treatment
“made reasonably necessary” by her injury. Tenn. Code Ann. § 50-6-204(a)(1)(A).
Because Jacks did not provide medical benefits, Ms. Avery justifiably sought
treatment on her own. She established a relationship with Dr. Vance, and any belated
attempt by Jacks to force Ms. Avery to treat with a panel physician after establishing that
relationship cannot succeed. Burnette v. WestRock, 2017 TN Wrk. Comp. App. Bd.
LEXIS 66, at *12 (Oct. 31, 2017). In that case, the employee asked for medical care, did
3
not receive it, and the employer knew the employee sought care on his own. Jd. at *13.
Likewise, there was an “absence of information supporting a compensability defense as
to the occurrence of the accident.” /d. The facts here fit squarely within Burnette, and the
Court designates Dr. Vance the treating physician.
Finally, the Court holds Ms. Avery is entitled to payment of some medical bills.
“[A]n 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.” Young
v. Young Elec. Co., 2016 TN Wrk. Comp. App. Bd. LEXIS 24, at *16 (May 25, 2016).
Ms. Avery incurred bills from Jackson-Madison County General Hospital and Dr. Vance.
She testified without contravention regarding the amount she paid Dr. Vance but said the
hospital bill had “been discharged in bankruptcy.” Because of this testimony, the Court
reserves any decision on recovery of the hospital bill pending further proof of any
discharge. Conversely, it orders payment of Dr. Vance’s bills based on Ms. Avery’s proof
that she paid them.
IT IS, THEREFORE, ORDERED as follows:
1. Jacks shall reimburse Ms. Avery for the medical bills of Dr. Vance (Sports
Orthopedic and Spine) in the amount of $880.60.
2. Jacks shall provide Ms. Avery with reasonable and necessary medical treatment
under Tennessee Code Annotated section 50-6-204(a)(3)(A)(i). Dr. Vance is
designated the authorized physician.
G2
. This matter is set for a Status Hearing on Tuesday, January 29, 2019 at 9:30
a.m. Central time. The parties must call 731-422-5263 or toll-free 855-543-
5038 to participate in the Hearing.
4. 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.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. For questions regarding compliance, please
contact the Workers’ Compensation Compliance Unit via email
WCCompliance.Program@tn. gov.
ENTERED this the 5" day of November 2018.
Judge Alten Phillips\
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
Medical records of Dr. Nicholas Vance
Medical records of Jackson Madison County General Hospital
Medical bills of Dr. Vance and hospital
Collective photos of the step and surrounding area
USB drive depicting surveillance video of accident
Additional collective photos of step and surrounding area
oo Ve a he
Technical record:
Petition for Benefit Determination
Dispute Certification Notice
Request for Expedited Hearing
Employer’s Response to Employee’s Request for Expedited Hearing
WN
CERTIFICATE OF SERVICE
I certify that a true and correct copy of this Expedited Hearing Order was sent to
the following recipients by the following methods of service on this the 5" day of
November, 2018.
Name Email | Service sent to:
Shannon Avery, Employee xX shannonbabygirl72@yahoo.com
John P. Wade, Attorney for Employer xX jwade@mbbslaw.com
Penny Shrum, Clerk of Court
Court of Workers’ Compensation Claims