Bogard, Janice v. Federal Express Corp.

FILED

Apr 03, 2023

12:01 PM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT MEMPHIS

JANICE BOGARD, ) Docket No.: 2022-08-1007

Employee, )

v. )

FEDERAL EXPRESS CORP., ) State File No.: 60211-2022

Employer, )

And )

INDEMNITY INSURANCE ) Judge Shaterra R. Marion

COMPANY OF NORTH AMERICA, )

Carrier. )

___________________________________________________________________________

EXPEDITED HEARING ORDER DENYING MEDICAL AND TEMPORARY

DISABILITY BENEFITS

In a March 27, 2023 expedited hearing, Ms. Bogard requested medical and

temporary disability benefits for alleged right ankle and foot injuries. Federal Express

disputed compensability. Because Ms. Bogard did not identify a work-related incident or

set of incidents to her right foot and ankle, the Court holds that she is unlikely to prevail at

a final hearing on the compensability of her claim.

History of Claim

Ms. Bogard alleged an injury either late evening on October 6 or early morning on

October 7, 2021, when iron and metal fell out of a box onto her foot and ankle. In her

incident report, she wrote that she “[p]icked up a package and metal fell on [her] left foot.”

Similarly, she reported to the onsite provider that she “lifted up a package that had

8 metal parts inside, and they all fell out and struck her L ankle.” An exam showed

tenderness across her “anterior L ankle and lateral ankle.” She attended two appointments

with the provider, and at her final visit four days later, she denied any pain or the need for

further treatment.

Ten months later, Ms. Bogard visited an urgent care clinic with right ankle pain

after “she picked up a box and metal fell onto the foot right / ankle.” The date of injury is

listed as March 10, 2022. X-rays of her right foot and ankle showed some soft tissue

swelling but were otherwise negative, and the provider ordered physical therapy. Notes

from her next visit say that “the WC lady states that she probably needs an MRI because

the DOI is really October of 2021.” But this record and subsequent records continue to list

the date of injury as March 10, 2022.

Seven months after that, Ms. Bogard saw a new doctor with complaints of right foot

pain. She stated she had been experiencing this pain for about eighteen months, since an

“injury in which she dropped heavy object onto R foot at work in October of 2021.” An

x-ray showed no acute fracture or osseous abnormalities, and she was prescribed

medication and home exercises.

Ms. Bogard testified that she actually injured her right foot instead of her left foot

as reported in the injury statement and medical records. She explained that she was

emotional at the time of the original injury statement and made a mistake in writing “left

foot.” She also testified she gave an amended injury statement to her manager listing her

right ankle as the affected body part, but he never gave her a copy despite multiple requests.

Further, she testified that the onsite provider was incorrect and actually treated her right

foot and ankle. She also disputed that she had denied needing further treatment and said

she requested a panel for her right ankle.

Findings of Fact and Conclusions of Law

Ms. Bogard must present sufficient evidence to show she is likely to prevail at a

final hearing. See Tenn. Code Ann. § 50-6-239(d)(1) (2022).

To prevail, Ms. Bogard must first show that her injury arose primarily out of and in

the course and scope of employment. To do so, she must prove a work-related incident or

set of incidents to her right foot and ankle identifiable by time and place of occurrence.

Tenn. Code Ann. § 50-6-102(12)(A). She has not done so.

Although Ms. Bogard is adamant she injured her right foot and ankle on or about

October 7, the Court does not find her testimony consistent with the evidence presented.

When she testified that she rewrote her October 6 statement, the Court did not find this

testimony credible. Her testimony seemed defensive with unreasonable explanations. See

Kelly v. Kelly, 445 S.W.3d 685, 694-695 (Tenn. 2014) (discussing indicia of witness

credibility). Further, her testimony that the October 7 records from the onsite provider are

incorrect was not credible. She visited the onsite provider three separate times, and only

her left foot is referenced.

Additionally, it was not until August 2022 that Ms. Bogard registered complaints

of a right foot and ankle injury. No medical evidence links this right ankle injury to her

initial workplace injury, nor did she present evidence as to why she waited ten months to

seek treatment for her right ankle injury.

Therefore, the Court holds Ms. Bogard is not likely to prevail at a hearing on the

merits that she is entitled to benefits for her right foot and ankle.

IT IS THEREFORE ORDERED as follows:

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

2. The Court sets a status conference on April 24, 2023, at 11:30 a.m. Central Time.

The parties must call (866) 943-0014 to participate. Failure to call might result in a

determination of the issues without the party’s participation.

ENTERED April 3, 2023.

________________________________________

Judge Shaterra R. Marion

Court of Workers’ Compensation Claims

APPENDIX

Exhibits:

1. First Report of Injury

2. White Sheet with Details of Injury

3. Employee Injury Statement

4. On-Site Injury Prevention Records

5. Concentra Records from August 15, 2022, and August 19, 2022

6. Concentra Records from August 15, 2022 through September 09, 2022

7. Dr. Libby Medical Record from March 20, 2023

1. Statement from Ms. Bogard’s Sister (for identification only)

Technical Record:

1. Petition for Benefit Determination

2. Dispute Certification Notice

3. Hearing Request, along with Affidavit of Janice Bogard, filed December 27, 2022

4. Order on Status Hearing, dated February 8, 2023

5. Employer’s Expedited Hearing Statement

6. Employer’s List of Witnesses

7. Employer’s Exhibit List

8. Subsequent Injury Fund’s Pre-Expedited Hearing Brief

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing was sent as indicated on April 3, 2023.

Name Certified U.S. Via Service sent to:

Mail Mail Email

Janice Bogard, X X 3325 Wood Plank Road

Employee Apt 101

Memphis, TN 38119

janicebogard50@gmail.com

Salwa Bahhur, X salwa@swlawpllc.com

Employer’s Attorney

Timothy Kellum, X timothy.kellum@tn.gov

Subsequent Injury

Fund Attorney

_____________________________________

Penny Shrum, Court Clerk

Court of Workers’ Compensation Claims

WC.CourtClerk@tn.gov

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