Opinion

Lemons, Tina v. Elwood Staffing Services, Inc.

  • 2020 TN WC 48
Court
Tennessee Court of Workers' Compensation Claims
Filed
May 28, 2020
Status
Published
On the bench
Brian K. Addington
Cited by
0 cases
Authority
More cited than 12.5%

The opinion

FILED

May 28, 2020

10:36 AM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT GRAY

TINA LEMONS, ) Docket Number: 2019-02-0313

Employee, )

v. )

ELWOOD STAFFING SERVICES, ) State File Number: 20525-2019

INC., )

Employer, )

And )

ZURICH AMERICAN INSURANCE ) Judge Brian K. Addington

COMPANY, )

Carrier. )

EXPEDITED HEARING ORDER

Tina Lemons alleged that she injured her hand due to a job change that required her

to use her hand in an awkward fashion for an entire shift. She sought medical and

temporary benefits, which Elwood Staffing denied. For the reasons below, the Court holds

she is not likely to prevail at a hearing on the merits regarding the cause of her injury and

denies the requested benefits.

Claim History

Ms. Lemons worked as a John Deere line worker for Elwood. She testified she

worked nine hours screwing in deck covers on February 16, which was outside her normal

work at the plant. She noticed pain in her hand that day and reported her injury to a John

Deere representative the next day. When the pain persisted, the John Deere nurse contacted

Elwood to arrange for Ms. Lemons to see a doctor. Ms. Lemons selected Dr. Bruce Berry

at Industricare from a physician panel and attended the appointment, although she testified

it was Elwood and not her who chose him.

On March 19, she attended an appointment with Industricare Nurse Practitioner

Marsh Mantemarano. Nurse Mantemarano wrote that Ms. Lemons’s injury was not

considered work-related based on her history and she could return to work without

restrictions. Dr. Berry noted that he reviewed and approved her recommendations. Ms.

1

Lemons testified that Nurse Mantemarano suggested that she obtain treatment with an

orthopedist on her own.

After learning that Elwood denied further treatment, Ms. Lemons scheduled an

exam with Dr. Billy Parsley, an orthopedic surgeon. She saw Dr. Parsley on April 26, and

in his office note he wrote that “she has not had any injury that she is aware of.” Dr. Parsley

performed trigger release surgery on May 9.

Ms. Lemons returned to Dr. Parsley on May 26, and he wrote that he did not think

she was ready to resume full activity at work and because of this he would complete her

short-term disability paperwork. He further noted:

The patient reports that she suffered injury to that finger at work and was

seen at urgent care for that, prior to being referred to see me for it. With this

documentation following the injury, I believe the trigger finger is likely

related to her injury.

Dr. Parsley completed a return to work slip on July 1, allowing Ms. Lemons to return

on July 8 without restrictions. Ms. Lemons testified she received a separation notice from

Elwood stating she resigned from her position on May 8, but Ms. Lemons denied quitting.

Ms. Lemons requested temporary disability benefits for May 9 through July 8, 2019,

and medical benefits with Dr. Parsley for her injury. Elwood disputed that Ms. Lemons

had not rebutted the presumption of correctness allotted to Dr. Berry’s opinion and,

therefore, she was not entitled to benefits.

Findings of Facts and Conclusions of Law

Ms. Lemons must show she is likely to prevail at a hearing on the merits. See Tenn.

Code Ann. § 50-6-239(d)(1) (2019); McCord v. Advantage Human Resourcing, 2015 TN

Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

To do so, she must present evidence that she suffered an injury “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). Ms. Lemons’s case is unique, in that

she alleged an injury after working one stressful shift. Since she did not suffer an obvious

injury, she must present medical proof to prove the work-relatedness of her claim. Cloyd

v. Hartco Flooring Co., 274 S.W.3d 638, 643 (Tenn. 2008).

Although Ms. Lemons asserted that she performed repetitive motions that caused

her injury, she failed to provide sufficient evidence to establish that she suffered an injury

arising primarily out of and in the course and scope of her employment. The medical record

adopted by Dr. Berry states that she did not suffer a work-related injury. Ms. Lemons

argued that she never chose Dr. Berry, however, she signed the physician panel and

attended the appointment at his office. His opinion is presumed correct on the issue of

causation. Tenn. Code Ann. § 50-6-102 (12)(A)(ii).

2

Ms. Lemons offered Dr. Parsley’s statements to counter Dr. Berry’s opinion.

However, Dr. Parsley did not affirmatively state that Ms. Lemons suffered an injury arising

primarily out of and in the course and scope of her employment as required by Tennessee

Code Annotated section 50-6-102(14)(A). Rather, he said her injury was merely “related.”

This single statement is insufficient to overcome the presumption given to Dr. Berry’s

opinion and does not reach the standard of “primarily caused” by a work injury that the

Workers’ Compensation Statute requires.

Considering all the evidence, the Court holds Ms. Lemons is not likely to succeed

at a hearing on the merits. Her request for temporary disability and medical benefits is

denied at this time.

IT IS, THEREFORE, ORDERED as follows:

1. Ms. Lemons’s request for temporary disability and medical benefits is denied at

this time.

2. This case is set for a Status Hearing on Tuesday, July 14, 2020, at 4:00 p.m.

Eastern Time. The parties must call 855-543-5044 to participate. Failure to

call might result in a determination of the issues without the party’s participation.

ENTERED May 28, 2020.

__/S/ Brian K. Addington_______________

BRIAN K. ADDINGTON, JUDGE

Court of Workers’ Compensation Claims

APPENDIX

Exhibits:

1. Ms. Lemons’s affidavit

2. First Report of Injury

3. Wage Statement

4. Choice of Physician Form

5. Notice of Controversy

6. Collective Medical records

7. Employer’s collective records

8. Medical Bills (For Identification Only).

Technical Record:

1. Petition for Benefit Determination

2. Dispute Certification Notice

3

3. Show Cause Order

4. Request for Expedited Hearing

5. Response of Employer and Insurance Carrier to Request for Expedited Hearing

6. Motion to Continue Expedited Hearing

7. Order Rescheduling Expedited Hearing

8. Employers Response to Employee’s Request for Expedited Hearing

CERTIFICATE OF SERVICE

I certify that a copy of this Order was sent on May 28, 2020.

Name Certified Fax Email Service sent to:

Mail

Tina Lemons, X X 7758 Asheville Highway

Employee Greeneville, TN 37743

collinstina3232@yahoo.com

David Deming, X ddeming@manierherod.com

Employer’s Attorney dstevens@manierherod.com

/S/ Penny Shrum

______________________________________

PENNY SHRUM, COURT CLERK

wc.courtclerk@tn.gov

4

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: “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.

NOTICE OF APPEAL

Tennessee Bureau of Workers’ Compensation

www.tn.gov/workforce/injuries-at-work/

wc.courtclerk@tn.gov | 1-800-332-2667

Docket No.: ________________________

State File No.: ______________________

Date of Injury: _____________________

___________________________________________________________________________

Employee

v.

___________________________________________________________________________

Employer

Notice is given that ____________________________________________________________________

[List name(s) of all appealing party(ies). Use separate sheet if necessary.]

appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the

Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-

stamped on the first page of the order(s) being appealed):

□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________

□ Compensation Order filed on__________________ □ Other Order filed on_____________________

issued by Judge _________________________________________________________________________.

Statement of the Issues on Appeal

Provide a short and plain statement of the issues on appeal or basis for relief on appeal:

________________________________________________________________________________________

________________________________________________________________________________________

________________________________________________________________________________________

________________________________________________________________________________________

Parties

Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee

Address: ________________________________________________________ Phone: ___________________

Email: __________________________________________________________

Attorney’s Name: ______________________________________________ BPR#: _______________________

Attorney’s Email: ______________________________________________ Phone: _______________________

Attorney’s Address: _________________________________________________________________________

* Attach an additional sheet for each additional Appellant *

LB-1099 rev. 01/20 Page 1 of 2 RDA 11082

Tennessee Bureau of Workers’ Compensation

220 French Landing Drive, I-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 Comp.$ ________ 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

_______ day of , 20_______.

NOTARY PUBLIC

My Commission Expires:

LB-1108 (REV 11/15) RDA 11082

Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________

Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee

Appellee’s Address: ______________________________________________ Phone: ____________________

Email: _________________________________________________________

Attorney’s Name: _____________________________________________ BPR#: ________________________

Attorney’s Email: _____________________________________________ Phone: _______________________

Attorney’s Address: _________________________________________________________________________

* Attach an additional sheet for each additional Appellee *

CERTIFICATE OF SERVICE

I, _____________________________________________________________, certify that I have forwarded a

true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described

in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this

case on this the __________ day of ___________________________________, 20 ____.

______________________________________________

[Signature of appellant or attorney for appellant]

LB-1099 rev. 01/20 Page 2 of 2 RDA 11082

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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