The opinion
FILED
Jun 27, 2022
11:19 AM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Carla Scruggs ) Docket Nos. 2021-08-0875
) 2021-08-0876
v. )
) State File Nos. 39617-2021
Amazon.com Services, LLC, et al. ) 800483-2021
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Deana C. Seymour, Judge )
Affirmed and Remanded
The employee alleged she injured her left knee at work but did not report the incident to
her employer at that time. Instead, she finished her shift and self-treated her knee at home.
The employee continued working her regular shifts and requested no medical treatment
from the employer until approximately three weeks later, when she slipped and allegedly
injured her left knee again. The employee then reported both incidents to the employer.
After initially providing a panel of physicians and authorizing treatment, the employer
declined to provide ongoing benefits for either injury because the employee failed to
provide timely notice of the first accident. The employee filed a petition for benefits and
later filed two hearing requests, one for each claim. After the cases were consolidated, the
employer filed a motion for summary judgment. Following a hearing, the trial court issued
an order denying the employer’s motion for summary judgment and a separate order for
continued medical treatment with the authorized physician for any left knee condition
found to arise primarily out of her employment. The employer has appealed. Having
carefully reviewed the record, we affirm the trial court’s denial of the employer’s motion
for summary judgment and affirm the trial court’s order for medical treatment. Further,
we deem the employer’s appeal frivolous, and we remand the case for a determination of
reasonable attorneys’ fees and costs arising from the frivolous appeal.
Judge Pele I. Godkin delivered the opinion of the Appeals Board in which Presiding Judge
Timothy W. Conner and Judge Meredith B. Weaver joined.
W. Troy Hart and Colleen M. Morris, Knoxville, Tennessee, for the employer-appellant,
Amazon.com Services, LLC
Jonathan L. May, Memphis, Tennessee, for the employee-appellee, Carla Scruggs
1
Factual and Procedural Background
On April 9, 2021, Carla Scruggs (“Employee”) allegedly injured her left knee when
she lifted a tote while working for Amazon.com Services, LLC (“Employer”). Employee
did not immediately report the injury to Employer or seek medical treatment. Rather, she
finished her shift and went home where she took over-the-counter medications and used
ice and heat to manage her pain. Employee continued to work her scheduled shifts until
April 30, when she slipped in liquid at work and allegedly injured the same knee.
Employee reported the April 9 and April 30 incidents to Employer on April 30 and was
initially seen at AmCare, Employer’s on-site medical clinic, where she was given
ibuprofen, ice, and a wrap for her knee. Employer later provided a panel of physicians
from which Employee selected Dr. Frederick Wolf as her authorized physician.
Dr. Wolf first evaluated Employee on May 5 and noted she was having difficulty
with her left knee. Medical records reflect Employee reported symptoms that “began as a
result of an injury at work on 04/9/2021.” Employee described “pulling totes on the line
[and], as she pivoted she felt a pop in her left knee and has had difficulty since that time.”
Dr. Wolf ordered an MRI, obtained x-rays, which revealed no fracture, and placed
Employee on light-duty restrictions. On May 17, Employer submitted a Notice of Denial
for the April 9, 2021 injury. Employee returned to Dr. Wolf on May 18, with continued
pain in her left knee, and Dr. Wolf continued her current prescription medication regimen
and light-duty restrictions. Thereafter, an MRI of Employee’s left knee was performed
that revealed a lateral meniscus tear, and Dr. Wolf recommended surgery. On June 8, Dr.
Wolf noted that Employee’s claim “was denied a number of weeks ago but we were never
informed of this.”
Employee filed a petition for benefit determination and, following an unsuccessful
mediation, two requests for expedited hearing, one for each date of injury. In response,
Employer filed a Motion to Dismiss, which the trial court noted should be treated as a
motion for summary judgment and which the trial court denied. The court’s order allowed
Employer an opportunity to file a motion for summary judgment. The court also
consolidated Employee’s two claims and set the matter for a hearing. The parties agreed
to address both Employee’s requests for benefits and the motion for summary judgment
Employer anticipated filing at the same hearing. On February 4, 2022, Employer filed a
motion for summary judgment. After a March 16, 2022 hearing, the trial court issued an
order denying Employer’s motion for summary judgment on April 6 and an order awarding
medical benefits to Employee on April 7. Employer has appealed both orders.
Standard of Review
The standard we apply in reviewing a trial court’s decision presumes that the court’s
factual findings are correct unless the preponderance of the evidence is otherwise. See
Tenn. Code Ann. § 50-6-239(c)(7) (2021). When the trial judge has had the opportunity
2
to observe a witness’s demeanor and to hear in-court testimony, we give considerable
deference to factual findings made by the trial court. Madden v. Holland Grp. of Tenn.,
Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar deference need be
afforded the trial court’s findings based upon documentary evidence.” Goodman v.
Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at *6 (Tenn.
Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and application of
statutes and regulations are questions of law that are reviewed de novo with no presumption
of correctness afforded the trial court’s conclusions. See Mansell v. Bridgestone Firestone
N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are also mindful of our
obligation to construe the workers’ compensation statutes “fairly, impartially, and in
accordance with basic principles of statutory construction” and in a way that does not favor
either the employee or the employer. Tenn. Code Ann. § 50-6-116 (2021).
Analysis
In its notice of appeal and in the statement of the issues in its brief on appeal,
Employer identifies four issues for review. However, Employer addresses only two of the
issues in the argument section of its brief, which we have restated as follows: (1) whether
the trial court erred in finding that Employee is likely to prevail at a hearing on the merits
regarding timeliness of notice and/or reasonable excuse for failure to give timely notice;
(2) whether the trial court erred in determining Employer was not prejudiced by the late
notice of Employee’s April 9, 2021 injury. Employer addresses the third issue, i.e.,
whether the trial court erred in ordering medical benefits, in the conclusion of its brief,
asserting it is unnecessary to analyze the issue in more detail given its position on the first
two issues. 1
Notice
Tennessee Code Annotated section 50-6-201(a) provides that “[e]very injured
employee . . . shall, immediately upon the occurrence of an injury, or as soon thereafter as
is reasonable and practicable, give or cause to be given to the employer who has no actual
notice, written notice of the injury.” The statute additionally provides that “[n]o
compensation shall be payable . . . unless the written notice is given to the employer within
fifteen (15) days after the occurrence of the accident, unless reasonable excuse for failure
to give the notice is made to the satisfaction of the tribunal to which the claim for
compensation may be presented.” Tenn. Code Ann. § 50-6-201(a) (2021). The notice
requirement “exists so that the employer will have the opportunity to make a timely
1
Employer failed to address the fourth issue identified in the notice of appeal and its brief, which concerned
the trial court’s denial of its motion for summary judgment. Accordingly, we treat the issue as having been
waived by Employer. See Moore & Seiferth v. Ingles Markets, Inc., No. 2015-02-0193, 2015 TN Wrk.
Comp. App. Bd. LEXIS 54, at *4 (Tenn. Workers’ Comp. App. Bd. Nov. 4, 2015). In addition, Employer
did not address the April 30 injury in its notice of appeal or its brief on appeal; thus, any issues regarding
the order for benefits pertaining to the April 30 date of injury are also waived.
3
investigation of the facts while still readily accessible, and to enable the employer to
provide timely and proper treatment for the injured employee.” Jones v. Sterling Last
Corp., 962 S.W.2d 469, 471 (Tenn. 1998). However, as we have previously observed, the
2013 Workers’ Compensation Reform Act (“Reform Act”) amended the notice
requirement as follows:
No defect or inaccuracy in the notice shall be a bar to compensation, unless
the employer can show, to the satisfaction of the workers’ compensation
judge before which the matter is pending, that the employer was prejudiced
by the failure to give the proper notice, and then only to the extent of the
prejudice.
Tenn. Code Ann. § 50-6-201(a)(3). In a recent case addressing this issue, we explained
that, to prevail on a notice defense, the employer must demonstrate the existence of “actual
prejudice” caused by the employee’s giving of late notice. Hannah v. Senior Citizens
Home Assistance Service, Inc., No. 2020-03-1093, 2022 TN Wrk. Comp. App. Bd. LEXIS
15, at *16-17 (Tenn. Workers’ Comp. App. Bd. Mar. 28, 2022).
Here, Employer contends Employee “injured her left knee and, without reasonable
excuse, failed to provide[] Employer with any notice of the event.” Further, Employer
asserts Employee’s admission that she continued to self-treat and “doctor on her knee”
after the April 9 incident is, in essence, evidence of the severity of her injury and indicative
of a “sudden onset of pain identifiable by a specific event.” 2
Employee concedes she did not provide notice of her alleged April 9 injury until
April 30; however, Employee contends she had a reasonable excuse for her failure to
provide timely notice. Specifically, Employee testified that she did not immediately
provide notice of the April 9 work incident because she “attribute[d] it just like I did to any
other day, you know, I go home with aches and pains every day. So it’s just like days I’ve
reached onto the line and grabbed a tote and it’s heavy and it – I have a – I hurt my neck,
so I mean, it’s like I’m going home and I’m going to take care of it. That’s what I always
do.” Employee also noted she was able to finish her April 9 shift and was able to continue
working her scheduled shifts until the April 30 work incident.
With regard to the April 30 incident, Employee testified that she felt her knee pop
and had to go to the break room because she needed to sit down. When asked how she
ended up at Employer’s onsite medical facility that day, Employee responded:
2
In support of its contention that the trial court erred in finding Employee’s excuse reasonable, Employer
relied on three factors outlined in Gluck Bros., Inc. v. Pollard, 426 S.W.2d 763 (Tenn. 1968). However, as
Employee emphasized in her brief on appeal, these factors were utilized in cases decided prior to the passage
of the Reform Act. The proper analysis to determine the reasonableness of an employee’s excuse for late
notice of an injury is dictated by the current version of Tennessee Code Annotated section 50-6-201, which
requires a different analysis than pre-reform law.
4
I went and sat for a minute, but like, when it happened, I knew something
wasn’t right. I just did not feel – it wasn’t normal, so I went and sat and I –
as I was sitting, I could feel the swelling, [my knee] started to throb and it
was, like, okay. I need to do something. I have to go and get some help
because this isn’t something I can help, so I went to Am[C]are.
Employee testified that the pain she felt following the April 30 work incident was different
than her previous symptoms. After considering the facts and testimony of Employee, the
trial court concluded Employee had a reasonable excuse for her failure to provide timely
notice of the first accident. Our review of the record supports the trial court’s
determination.
Prejudice Resulting From Late Notice
Employer next contends that “Employee’s failure to provide notice, in and of itself,
is a clear prejudice to Employer.” However, Employer cites nothing to support this
statement. In fact, if Employer’s argument were taken to its logical conclusion, every
incident of late notice would, per se, constitute prejudice, and the provisions of Tennessee
Code Annotated section 50-6-201(a)(3) would be rendered superfluous. The legislature
has expressed its intent that a trial court consider the reasons for late notice, consider
whether the late notice resulted in prejudice to the employer under the circumstances of
that particular case, and fashion an appropriate remedy if one is needed. In contrast to the
clear meaning of subsection 201(a)(3), Employer’s argument would make such an analysis
unnecessary.
In the present case, Employee reported the April 9 incident six days after the fifteen-
day time period specified in subsection 201(a)(1) lapsed. In addition, as the trial court
noted, “[Employer] presented no evidence of any actual prejudice to its ability to defend
this claim” and “while [Employer] generally claimed late notice prejudiced its ability to
investigate claims, it failed to provide specifics.” We agree. Thus, we conclude the
evidence does not preponderate against the trial court’s determination that Employer failed
to demonstrate actual prejudice as required by section 50-6-201(a)(3).
Order for Medical Benefits
At an expedited hearing, “an employee need not prove every element of his or her
claim by a preponderance of the evidence to be entitled to temporary disability or medical
benefits, but must instead present evidence sufficient for the trial court to conclude that the
employee would likely prevail at a hearing on the merits.” McCord v. Advantage Human
Resourcing, No. 2014-06-0063, 2015 TN Work. Comp. App. Bd. LEXIS 6, at *9 (Tenn.
Workers’ Comp. App. Bd. Mar. 27, 2015). We have described an employee’s burden of
proof in an expedited hearing as a “lesser evidentiary standard” than the burden imposed
5
at trial. Buchanan v. Carlex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd.
LEXIS 39, at *6 (Tenn. Workers’ Comp. App. Bd. Sept. 29, 2015).
Employer asserts the trial court erred by “awarding . . . workers’ compensation
benefits to an Employee who knowingly, willfully, and intentionally refused to provide
notice of a work injury[] that required medical attention[] for 22 consecutive days [and]
that kept [Employee] in constant pain,” contending it “rewards the bad actions of
[Employee].” 3 The only medical proof introduced at the expedited hearing was Dr. Wolf’s
records. Although Dr. Wolf did not provide an explicit causation opinion, the court noted
that he was Employee’s authorized physician, and it determined that his medical records
“do suggest that [Employee’s] need for medical treatment arose from an incident at work.”
We note that, because Dr. Wolf was selected from Employer’s panel, any treatment
he recommended is “presumed to be medically necessary for treatment of the injured
employee.” Tenn. Code Ann. § 50-6-204(a)(3)(H). Thus, the burden was on Employer to
establish that treatment recommended by Dr. Wolf was not medically necessary for
treatment of the injured worker. Here, the court emphasized there was no dispute that the
April 9 incident occurred at work, and the only defense Employer put forth regarding the
April 9 injury was a lack of notice. Consequently, the court determined Employee was
likely to prevail at a hearing on the merits with regard to her claim for continued medical
treatment with Dr. Wolf. The court tailored its order to encompass continued medical
treatment with Dr. Wolf “for any condition found to arise primarily out of [Employee’s]
employment” but did not order the requested meniscal surgery since “issues over the
precise cause of the meniscal tear still loom.” Under the circumstances presented in this
case, we discern no error in the trial court’s determination.
Frivolous Appeal
Finally, Employee contends Employer’s appeal is frivolous and requests costs and
attorneys’ fees arising from the frivolous appeal. Specifically, Employee asserts, in part,
that “there was no legitimate factual or legal issue that would suggest a reasonable chance
of success for [Employer] on appeal.” Employee asserts Employer “took no meaningful
steps in the discovery phase of this cause beyond issuance of standard written
discovery . . ., took no fact witness depositions, nor did it take the deposition of
[Employee]. [Employer] took no expert medical depositions . . . [and] did not even ask the
Authorized Treating Physician to complete one of its customary causation questionnaires
before showing up on appeal to make empty arguments about what such medical opinions
3
Employer has provided no proof that Employee “knowingly, willfully, and intentionally refused” to
provide notice of an injury. Rather, the proof adduced at the expedited hearing was that Employee believed
the April 9 incident resulted in nothing more than the usual aches and pains she experiences as a part of her
daily work life and that it was only after the April 30 incident that she believed she had suffered a work-
related injury necessitating medical treatment. As stated above, Employer did not address the alleged April
30 injury or the denial of that injury in its brief.
6
might mean for the case.” Employee further points to the fact that Employer failed to put
on any proof outside the cross-examination of Employee, and “did not even touch upon
summary judgment in its appeal, other than to include it on the Notice of Appeal and list it
in the ‘Statement of Issues’ in its brief.” 4
As we have noted previously, a frivolous appeal is one that is devoid of merit or
brought solely for delay. Yarbrough v. Protective Servs. Co., Inc., No. 2015-08-0574, 2016
TN Wrk. Comp. App. Bd. LEXIS 3, at *11 (Tenn. Workers’ Comp. App. Bd. Jan. 25,
2016); see also Burnette v. WestRock, No. 2016-01-0670, 2017 TN Wrk. Comp. App. Bd.
LEXIS 66, at *15 (Tenn. Workers’ Comp. App. Bd. Oct. 31, 2017) (“Stated another way,
a frivolous appeal is one that . . . had no reasonable chance of succeeding.” (internal
citation and quotation marks omitted)). Litigants “should not be required to endure the
hassle and expense of baseless litigation. Nor should appellate courts be required to waste
time and resources on appeals that have no realistic chance of success.” Yarbrough, 2016
TN Wrk. Comp. App. Bd. LEXIS 3, at *10-11 (internal citations omitted). We agree that
Employer presented no credible argument on appeal and that it had no realistic chance of
success on appeal. Thus, we conclude Employer’s appeal is devoid of merit and is
frivolous, and Employee is entitled to recover reasonable attorneys’ fees and costs
associated with the frivolous appeal, the amount of which shall be determined by the trial
court on remand.
Conclusion
For the foregoing reasons, we affirm the trial court’s order denying Employer’s
motion for summary judgment and the court’s expedited hearing order requiring Employer
to provide additional medical care. Further, we deem Employer’s appeal frivolous and
remand the case to the trial court for a determination of attorneys’ fees and costs to be
awarded to Employee.
4
As noted in footnote 1 above, Employer identified the trial court’s denial of its motion for summary
judgment as an issue in its notice of appeal and in its statement of the issues on appeal, but it failed to offer
any substantive argument addressing this issue in its brief. Moreover, as noted above, Employer did not
address its denial of the April 30 incident in its brief or offer any substantive argument as to how the
compensability of the April 30 incident is linked to its denial of the April 9 incident. It offered no medical
evidence to suggest that the two incidents were related or that the second incident represented an
exacerbation or re-injury.
7
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Carla Scruggs ) Docket Nos. 2021-08-0875
) 2021-08-0876
v. )
) State File Nos. 39617-2021
Amazon.com Services, LLC, et al. ) 800483-2021
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Deana C. Seymour, Judge )
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced
case was sent to the following recipients by the following methods of service on this the 27th day
of June, 2022.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Jonathan L. May X jmay@forthepeople.com
W. Troy Hart X wth@mijs.com
cmmorris@mijs.com
cjstatham@mijs.com
Deana C. Seymour, Judge X Via Electronic Mail
Kenneth M. Switzer, Chief Judge X Via Electronic Mail
Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov
Workers’ Compensation Claims
Olivia Yearwood
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov