The opinion
FILED
Mar 07, 2023
12:00 PM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Steven Qualls ) Docket No. 2022-02-0451
)
v. ) State File No. 800994-2022
)
Federal Mogul, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Brian K. Addington, Judge )
Affirmed and Remanded
In this interlocutory appeal, the employee disputes the trial court’s conclusion that he did
not come forward with sufficient evidence to establish his entitlement to a panel of
physicians. The employee alleges he suffered a back injury at work when he lifted a heavy
box. Initial medical records from providers the employee saw on his own do not reflect
any reports or descriptions of a work-related accident. In a decision on the record, the trial
court concluded the employee had not shown he is likely to prevail at a hearing on the
merits in establishing an entitlement to medical benefits. The employee has appealed.
Having carefully reviewed the record, we affirm the trial court’s decision and remand the
case.
Presiding Judge Timothy W. Conner delivered the opinion of the Appeals Board in which
Judge Pele I. Godkin and Judge Meredith B. Weaver joined.
Christopher D. Markel, Chattanooga, Tennessee, for the employee-appellant, Steven
Qualls
Christopher G. Rowe, Brentwood, Tennessee, for the employer-appellee, Federal Mogul
Factual and Procedural Background
Steven Qualls (“Employee”) worked for Federal Mogul (“Employer”) as an “order
picker.” 1 He alleges he injured his back on or about June 24, 2022, by picking up a heavy
1
In the record, Employer is referred to as Tenneco, Inc., Tenneco Automotive, Tennco Automotive, or
Federal Mogul. In this opinion, we use the designation as reflected in the trial court’s expedited hearing
order.
1
box. 2 In a Rule 72 Declaration, Employee alleged that he reported the incident to a
supervisor he identified only as “Daniel” and that Daniel told him to “take it easy for the
rest of [his] shift.” Employee further stated that, after leaving work, his pain worsened,
which prompted him to seek medical care at a local emergency room. He described telling
the attending medical providers that he injured his back at work.
Employee asserted that he was given work restrictions by the emergency room
provider and relayed those restrictions to Employer the following day, but he was not given
modified duty work. Employee testified in his Rule 72 Declaration that he informed
numerous supervisors or others with managerial authority of his work-related injury,
including Daniel, “Victor,” Megan Poe, “Stewart,” and “John.” Four days later, he saw
Jennifer Dyer, NP, at The Health Group of McMinnville, who referred him for a
neurosurgical consultation.
Victor Stewart, an operations supervisor at Employer, filed a Rule 72 Declaration
in which he disputed Employee’s account of the events. Mr. Stewart stated that Employee
never reported any alleged work-related injury to him. Upon learning that Employee was
experiencing a problem with his back, Mr. Stewart requested that Employee speak with
John Kleinschmidt, the weekend operations manager, to discuss his work status. Mr.
Stewart stated he and Employee spoke with Mr. Kleinschmidt and that Employee was
asked to obtain more specific light duty restrictions to facilitate returning to work in a
modified duty capacity. Mr. Stewart denied that Employee at any time described a work
accident or stated that his medical treatment was associated with a work-related injury. Mr.
Stewart asserted that the first time he learned Employee was alleging a work-related injury
was when he received notice that a Petition for Benefit Determination had been filed. Mr.
Kleinschmidt also filed a Rule 72 Declaration corroborating the statement of Mr. Stewart.
The parties submitted medical records for the court’s review. The June 24, 2022
record from the emergency room indicates Employee presented for evaluation of back pain.
The history documented in that report indicates that the “onset was pa[s]t 2 weeks,
gradually worsening.” The record also stated, “Type of injury: none” and “The location
where the incident occurred was at home.” The report goes on to say that Employee “lifts
heavy objects at work and felt worsening pain today.” It further reflected that Employee
reported suffering from chronic neuropathy in both feet related to other health conditions.
He was diagnosed with mild spondylosis, and objective testing revealed no acute findings.
Employee indicated to the medical personnel that he thought he “blew his back out.”
Four days later, he saw his primary care provider, Ms. Dyer, who noted that
Employee had told the emergency room personnel that he “blew his back out” but that he
did not know how it happened. She observed that he worked in an auto parts store and did
2
Employee initially reported that the accident occurred on June 25, 2022, but he later indicated that the
date of injury was June 24, 2022.
2
a lot of lifting but stated that Employee indicated he was unsure how it happened. She
referred him to a neurosurgeon, but it does not appear from the record that he was evaluated
by a neurosurgical specialist at that time.
On August 1, 2022, approximately two weeks after filing a petition for benefit
determination, Employee called Ms. Dyer’s office, stating that the pain clinic to which they
had referred him did not accept workers’ compensation patients. The person who took the
message indicated that she had informed him that their office did not accept workers’
compensation patients either “if it is not handled in the correct way and we do not have [a]
recored [sic] of such injuries.” In response to the message, Ms. Dyer stated that “[t]his was
never worked up as a [sic] work comp. Pt never told me or ER that this was work comp.
If it was turned in as work comp then whomever he saw after us will have to handle it . . . I
am NOT going to change anything in my records so he needs to contact someone else.”
On September 27, 2022, Employee saw Dr. Jeffrey Peterson, an orthopedist, who
noted that Employee had lumbar facet joint pain, lumbar degenerative disc disease, neural
foraminal stenosis of the lumbar spine, and lumbar nerve root impingement. This record
is the first time a specific work accident was documented in the medical records, as
Employee told Dr. Peterson he experienced back pain after picking up a heavy box at work
in June. He denied having any back pain prior to lifting the box at work.
In conjunction with filing a request for an expedited hearing, Employee requested
that the court make a decision on the record, and Employer did not object. On December
8, the trial court issued an order denying Employee’s request for medical benefits,
concluding that Employee had not come forward with sufficient evidence to establish he
will likely prevail at a hearing on the merits. Employee has appealed.
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) (2022). When the trial judge has had the opportunity
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
3
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 (2022).
Analysis
In his notice of appeal, Employee asserts that the trial court erred in determining
where the preponderance of the evidence lies. He further asserts that he met his burden of
proof to establish entitlement to a panel of physicians. We disagree.
In Buchanan v. Carlex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App.
Bd. LEXIS 39 (Tenn. Workers’ Comp. App. Bd. Sept. 29, 2015), we addressed an injured
worker’s burden of proof at an expedited hearing:
An employee bears the burden of proof for all prima facie elements of
a workers’ compensation claim. . . . While we agree that an employee need
not prove his or her claim by a preponderance of the evidence at an expedited
hearing to obtain temporary disability or medical benefits, an employee
nevertheless has the burden to come forward with sufficient evidence of an
injury by accident from which the court can conclude that he or she is likely
to prevail at a hearing on the merits, consistent with Tennessee Code
Annotated section 50-6-239(d)(1).
Thus, an injured worker retains the burden of proof at all stages of a
workers’ compensation claim. At an expedited hearing, a trial court may
grant relief if the court is satisfied that an employee has met the burden of
showing that he or she is likely [to] prevail at a hearing on the merits. This
lesser evidentiary standard, embodied in section 50-6-239(d)(1), does not
relieve an employee of the burden of producing evidence of an injury by
accident that arose primarily out of and in the course and scope of
employment at an expedited hearing, but allows some relief to be granted if
that evidence does not rise to the level of a “preponderance of the evidence.”
Id. at *5-6 (citations omitted) (emphasis added).
In support of his contentions, Employee relies on our decision in McCord v.
Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS
6 (Tenn. Workers’ Comp. App. Bd. Mar. 27, 2015), to bolster his argument that he
presented sufficient evidence to meet the burden of proof at this interlocutory stage of the
case. That case concerned an injured worker who had received no medical care, either on
her own or authorized by her employer. We considered an employer’s obligation to
provide a panel of physicians in those circumstances, stating:
4
[A]n employee need not prove each and every element of his or her claim by
a preponderance of the evidence at an expedited hearing 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 in accordance with the express terms of
section 50-6-239(d)(1). A contrary rule would require many injured workers
to seek out, obtain, and pay for a medical evaluation or treatment before his
or her employer would have any obligation to provide medical benefits. The
delays inherent in such an approach, not to mention the cost barrier for many
workers, would be inconsistent with a fair, expeditious, and efficient
workers’ compensation system. See Tenn. Code Ann. § 4-3-1409(b)(2)(A)
(2014). Moreover, we note that since an expedited hearing is interlocutory
in nature, either party may present additional evidence at the final
compensation hearing and ask the trial court to reverse or modify the
interlocutory order.
Id. at 9-10. However, in that opinion, we also explained that “mere notice of an alleged
workplace accident, in and of itself, does not trigger an employer’s duty to provide medical
benefits in every case, without regard to the particular circumstances presented.” Id. at
*13 (emphasis added).
In the present case, based on our review of the “particular circumstances presented,”
we conclude the trial court did not err in assessing where the preponderance of the evidence
lies. In contrast to Employee’s statements in his Rule 72 declaration, the medical records
from the emergency room and Ms. Dyer do not support his testimony regarding the
occurrence of a specific work-related accident identifiable by time and place of occurrence,
despite those visits being on the day of the alleged incident and four days later, respectively.
Instead, those records reflect that Employee had been experiencing back pain for two
weeks and that he did not know how he injured himself. Ms. Dyer emphasized that in her
response to a phone message in which she indicated that Employee did not report a work
injury to her and that she would not alter her notes to reflect otherwise.
Moreover, Employer offered two Rule 72 Declarations of two operations managers
with whom Employee spoke about his need for modified duty. Employee maintains that
he informed both men of the work accident, but both managers deny any knowledge of a
work accident until they received notice that Employee had filed a petition for benefit
determination.
Employee saw an orthopedic surgeon on his own over two months after filing his
petition, and that record contains the first mention of a specific work-related accident. Even
then, however, Dr. Peterson has, to date, offered no opinion regarding causation and
whether Employee’s need for treatment arose primarily from a work-related accident. In
sum, the preponderance of the evidence supports the trial court’s conclusion that Employee
5
did not come forward with sufficient proof of a work-related injury to establish he is likely
to prevail at a hearing on the merits with respect to his entitlement to workers’
compensation benefits.
Conclusion
For the foregoing reasons, we affirm the trial court’s decision and remand the case.
Costs on appeal are taxed to Employee.
6
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Steven Qualls ) Docket No. 2022-02-0451
)
v. ) State File No. 800994-2022
)
Federal Mogul, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Brian K. Addington, 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 7th day
of March, 2023.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Christopher D. Markel X cmarkel@markelfirm.com
jdickey@markelfirm.com
Chris Rowe X cgrowe@mijs.com
jkprendergast@mijs.com
Brian K. Addington, 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