Opinion

Schmars, Chanda v. Express Employment Professionals, Inc.

  • 2022 TN WC 50
Court
Tennessee Court of Workers' Compensation Claims
Filed
Jun 27, 2022
Status
Published
On the bench
Kenneth M. Switzer
Cited by
0 cases

The opinion

FILED

Jun 27, 2022

09:45 AM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT NASHVILLE

Chanda Schmars, ) Docket No. 2022-06-0345

Employee, )

v. )

Express Employment Professionals, )

Inc., ) State File No. 9592-2022

Employer, )

And )

AIU Ins. Co., )

Carrier. ) Judge Kenneth M. Switzer

EXPEDITED HEARING ORDER

Two longstanding workers’ compensation principles command this case. First, the

employee bears the burden of proof; and second, the employee must prove that a specific

event or set of events caused her work injury.

Here, Chanda Schmars requested benefits for her knee, which she allegedly injured

while working for Express Employment Professionals. Express argued that she did not

identify a specific, injury-causing work event. On this record, the Court agrees. Ms.

Schmars did not introduce sufficient proof of what caused an acute right-knee meniscus

tear. Thus, her request is denied at this time.

History of Claim

On January 20, 2022, Ms. Schmars worked as a packer for Express assigned to work

at Baby Nov. She explained that the assignment entailed moving large boxes, unpacking

baby food pouches, and placing the pouches in smaller boxes. Ms. Schmars testified, “I

sustained an injury due to, I believe, moving a box—boxes across the room[.]” Ms.

Schmars wrote on her petition that she injured her right knee and leg “unboxing the baby

food pouches out of . . . the big boxes.” At the hearing, she clarified she injured her right

knee.

1

Ms. Schmars did not tell her supervisor at Baby Nov or anyone else about the injury

that day. She agreed on cross-examination that she did not experience a “sudden onset of

pain,” nor could she recall a specific event that caused her pain. No one witnessed the

injury. The next day, Ms. Schmars texted Express to say that she would not be working

that day but did not mention an injury. Ultimately, Ms. Schmars reported the injury on

January 24, by telling Express’s office manager, Nichole Minchey, “I hurt my knee.”

Express disputed Ms. Schmars’s mechanism of injury. It claimed that Ms. Schmars

did not sustain an injury; rather after working, she simply woke up the next day with leg

pain.

In support, Express offered Ms. Minchey’s testimony, who said that when Ms.

Schmars reported the injury, she did not mention any specific event. Express asked her to

complete a form describing her injury “in detail.” She wrote, “[W]orking at Baby Nov,

unpacking baby products.” On a report to Express’ carrier, Ms. Minchey wrote, “Said she

woke up and her right knee was hurting.”

On cross-examination, Ms. Schmars agreed that her interrogatory responses

describe that, on the date of injury, she felt “stiffness toward the end of work shift” in her

right knee and leg, and she had not experienced those symptoms before. Concerning

whether she suffered a previous knee injury, on redirect, Ms. Schmars said, “Basically, had

I had any prior symptoms? Uh, possibly. You know—I don’t—symptoms like—knee pain

or something? Uncomfortableness in my knee?” Express’s attorney did not ask her to

explain.

As for her treatment, Ms. Schmars went to the emergency room on her own, the day

after the alleged date of injury. Notes from the visit include a history that her symptoms

began “weeks ago” and were caused by “[n]o trauma by history[.]” The physician who

examined her wrote, “[L]ikely djd [degenerative joint disease].”

After Ms. Schmars reported the injury, Express offered a panel of physicians. She

chose Hometown Healthcare.1

At the first visit in February, notes state that Ms. Schmars experienced a “sudden

onset of pain while bending and lifting with a heavy box at work.” A nurse practitioner

ordered an MRI, which was reviewed at a follow-up appointment in March. Providers

noted a lateral meniscus tear in her knee and referred her to an orthopedic specialist.

1

The panel does not identify a physician but simply lists “Hometown Health Care.” This potentially

violates Tennessee Compilation Rules and Regulations 0800-02-01-.06(5) (May, 2018), which states that

“Walk-in clinics, urgent care facilities and other similar providers may be an option on a medical panel if

the provider is staffed by at least one physician and the name of the staff physician or medical director is

also indicated on the panel.” (Emphasis added).

2

Ms. Schmars saw a nurse practitioner at Specialty Orthopedic Group for further

evaluation. The nurse practitioner wrote that her pain began on “June 1, 2020, 2022 [sic]

and lifting a box of an unknown weight at her job. . . . There was no fall at the time of

injury. No history of previous knee issues.” He made a direct referral to an orthopedic

surgeon. Instead of honoring the referral, according to Ms. Schmars, the claim was denied

on March 24.

Ms. Schmars seeks additional treatment and temporary disability benefits. Express

countered that she failed to prove that her injury arose primarily out of work. In particular,

it argued that she did not prove a “specific incident” that caused the injury, so benefits

should be denied.

Findings of Fact and Conclusions of Law

It is well-settled that the employee in a workers’ compensation claim has the burden

of proof on all essential elements of the claim. Lurz v. Int’l Paper Co., 2018 TN Wrk.

Comp. App. Bd. LEXIS 8, at *14 (Feb. 14, 2018). At an expedited hearing, Ms. Schmars

must present sufficient evidence that she is likely to prevail at a hearing on the merits.

Tenn. Code Ann. § 50-6-239(d)(1) (2021); McCord v. Advantage Human Resourcing, 2015

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

In this case, the threshold issue is whether Ms. Schmars suffered an injury as that

term is defined under Workers’ Compensation Law. Tennessee Code Annotated section

50-6-102(14) defines “injury” as an “injury by accident . . . arising primarily out of and in

the course and scope of employment, that causes . . . disablement or the need for medical

treatment.” Subsection 50-6-102(14)(A) provides that “[a]n injury is ‘accidental’ only if

the injury is caused by a specific incident, or set of incidents, arising primarily out of and

in the course and scope of employment, and is identifiable by time and place of

occurrence.” (Emphasis added).

Here, Ms. Schmars testified, “I sustained an injury due to, I believe, moving a box—

boxes across the room[.]” She did not offer additional detail. Ms. Schmars testified that

she told Ms. Minchey when reporting the injury, “I hurt my knee.” Ms. Schmars agreed in

her cross-examination that no specific event caused her pain, nor did she experience sudden

pain while working. And, in a moment of candor on redirect, she said she “possibly” had

prior knee symptoms. Since Express’s attorney did not explore that statement, the Court

is unable to ascertain its weight.

Those are her words in Court. Ms. Schmars’ written statements are similarly vague

as to how, specifically, she hurt her knee at work. Ms. Schmars wrote on her petition that

she injured her right knee and leg “unboxing the baby food pouches out of . . . the big

boxes.” On the paperwork reporting the injury, when asked to describe the incident “in

detail,” she wrote, “[W]orking at Baby Nov, unpacking baby products.” Then, in

3

interrogatories, when asked how she became injured, she merely wrote that she felt

“stiffness toward the end of work shift” in her right knee and leg.

The medical records do not provide further clarification or explanation. The

emergency room notes state that Ms. Schmars was injured “weeks ago” and suffered “no

acute injury.” Other records say that she felt a “sudden onset of pain while bending and

lifting with a heavy box at work.” However, Ms. Schmars candidly testified that she did

not feel a sudden onset of pain. Moreover, the only medical causation opinion before the

Court states that her condition was “likely” degenerative joint disease.

Having observed Ms. Schmars’s demeanor, the Court has little reason to doubt her

honesty or sincerity. She even offered testimony against her own interest. By the same

token, Ms. Minchey convincingly testified that Ms. Schmars told her she woke up with

pain in her leg. Comparing their testimony, neither was more credible than the other.

In sum, the Court simply cannot find facts, even after an evidentiary hearing, as to

when and how Ms. Schmars became injured. This is an absolute baseline requirement in

the statute, and it is something she must prove. Without more supporting evidence, Ms.

Schmars has not shown she is likely to prevail at a hearing on the merits.

Because Ms. Schmars has not satisfied her burden, the Court cannot grant her

requested relief at this time.

IT IS, THEREFORE, ORDERED AS FOLLOWS:

1. The Court denies Ms. Schmars’s request for benefits at this time.

2. The Court refers Express Employment Professionals to the Compliance Program for

consideration of penalties for failing to offer a proper panel.

3. A status hearing will take place on August 29, 2022, at 10:00 a.m. Central Time. The

parties must call 615-532-9552 or 866-943-0025. Failure to call might result in a

determination of issues without your participation.

ENTERED June 27, 2022.

________________________________________

JUDGE KENNETH M. SWITZER

Court of Workers’ Compensation Claims

4

Appendix

Technical record:

1. Petition for Benefit Determination

2. Dispute Certification Notice

3. Order Setting Status Hearing

4. Order on Status Hearing

5. Motion to Compel

6. Employer’s Motion to Reset

7. Hearing Request

8. Order Granting Motion to Compel

9. Order Denying Motion to Reset

10. Motion to Compel Deposition and Expenses

11. Employer’s Motion to Continue

12. Order

13. Employer’s Motion to Continue

14. Employer’s Pre-Hearing Statement

15. Employer’s Exhibit and Witness List

16. Employer’s Pre-Trial Brief

Evidence:

1. Declaration of Ms. Schmars

2. Wage statement

3. First Report of Injury

4. Employee’s Choice of Physician form

5. Composite Medical Records

6. Text messages

7. Responses to Interrogatories

8. Express Services, Inc. report to third-party administrator

9. Text messages

10. Employee’s written injury report (late-filed)

5

CERTIFICATE OF SERVICE

I certify that a copy of this Order was sent as indicated on June 27, 2022.

Name Certified Regular Email Sent to

Mail mail

Chanda Schmars, X X chandaschmars@yahoo.com

employee 119 Moncrief Drive

Scottsville, KY 42164

Greg Fuller, Trent X ghfuller@mijs.com

Norris, employer’s tmnorris@mijs.com

attorneys

Compliance X WCCompliance.Program@tn.gov

Program

_______________________________________

Penny Shrum

Clerk, 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: “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

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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