The opinion
FILED
Nov 03, 2023
12:07 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT KNOXVILLE
MICHAEL DAY, ) Docket Number: 2023-03-00128
Employee, )
v. )
GOLD CREEK FOODS, LLC., ) State File Number: 86263-2022
Employer, )
and )
GREAT AMERICAN ALLIANCE ) Judge Brian K. Addington
INSURANCE COMPANY, )
Carrier. )
EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS
The Court held an expedited hearing on October 28, 2023, at Mr. Day’s request that
the Court order medical benefits for his alleged work injury. After reviewing the evidence,
the Court finds Mr. Day is likely to prove at a hearing on the merits that he is entitled to
additional medical benefits.
Claim History
Mr. Day testified that he injured his back on November 29, 2022. He stated he was
lifting and transporting fifty-pound bags of food seasonings onto a pallet and eventually
into a cooler. However, a stainless-steel table prevented him from moving the bags of
seasonings with his forklift, so he moved the table to clear a path. When he did, a clamp
fell from it, and when he bent over to pick it up, he felt pain in his back.
Because the injury occurred at the end of his shift, Mr. Day testified he was unable
to find a supervisor to whom he could report the injury. So he left, hoping the pain would
subside, but it worsened as he drove home. He later went to an emergency room and was
discharged early the next day.
After he left the emergency room, he went to Gold Creek and waited for his
supervisor to report the injury. He testified that someone in human resources told him he
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could not file a claim because he did not report his injury the same day it happened. He
testified that he returned to Gold Creek the next day and was given a panel, from which he
selected Dr. Kevin Bailey. He never saw Dr. Bailey, but a nurse practitioner, Lindsey
Lundquist, who referred him back to his primary care doctor to obtain an MRI. Dr. Bailey
did not sign her records, and no proof suggests he saw them.
Mr. Day’s medical records and witnesses for the employer painted a slightly
different picture. Specifically, an emergency room provider recorded that [p]atient stated
that he did heavy lifting yesterday at work, fifty-pound bags . . . stated he awoke with
severe radiculopathy in his right leg.” Another notation included that Mr. Day’s pain
started “yesterday . . . after lifting stuff at work.”
Ms. Lundquist wrote in her office note that “[p]atient states he had to move a sheet
of metal to one side. Patient states when he did this, a clamp fell onto the ground. Patient
bent down to pick this up and felt an immediate grabbing pain to his right lower back.”
She also noted that the pain worsened on the way home, and he went to the emergency
room.
Mr. Day’s own nurse practitioner wrote, “Patient states on [November 30, 2022] he
was moving a pallet at work and hurt himself.”
Witnesses from Gold Creek also testified supervisors were at work on the date of
injury to whom Mr. Day could have reported the injury, and he violated work rules by
failing to do so. Supervisors were also displeased when they gave him the second panel,
and he left work without telling them. They eventually fired him for failing to return to
work. Gold Creek denied the claim on December 16, primarily because of Mr. Day’s
differing versions of the injury.
Mr. Day argued that he told the providers exactly what happened and could not
control what they wrote in his records. He contended that he was able to identify when
and how the injury occurred. He requested an orthopedic panel to evaluate his back. Gold
Creek countered that it rightfully denied Mr. Day’s claim because he gave differing
versions of how he injured his back.
Findings of Fact and Conclusions of Law
To prevail, Mr. Day must prove he is likely to prevail at a hearing on the merits.
Tenn. Code Ann. § 50-6-239(d)(1) (2023). Specifically, Mr. Day must show that his
injuries arose primarily out of and in the course and scope of his employment and prove a
work-related incident, or specific set of incidents, identifiable by time and place of
occurrence. Tenn. Code Ann. § 50-6-102(12)(A).
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Mr. Day’s medical records differ from his testimony and Rule 72 declaration.
However, enough similarities exist between the records and his testimony under the lesser
standard of proof at this expedited hearing to show that he is entitled to a panel of
physicians.
Gold Creek provided a panel, from which Mr. Day chose Dr. Bailey. However,
when he went to Dr. Bailey’s office, he never saw him, only a nurse practitioner.
Additionally, Gold Creek’s denial of the claim stopped the authorized medical provider
from offering additional treatment.
The Court finds at this interlocutory stage that Mr. Day has offered sufficient
evidence to show that he is entitled to see Dr. Bailey. Dr. Bailey did not see Mr. Day or
sign off on the records of Nurse Lundquist. It follows then that Gold Creek shall authorize
Dr. Bailey to see Mr. Day. Gold Creek shall give copies of all of Mr. Day’s medical records
to Dr. Bailey before the appointment.
It is ORDERED as follows:
1. Gold Creek shall authorize an appointment with Dr. Kevin Bailey as soon as
possible and supply all his medical records regarding this incident to Dr. Bailey.
2. A status hearing is scheduled for Tuesday, December 5, 2023, at 2:00 p.m.
Eastern Time. The parties must call 855-543-5044 to participate. Failure to
call may result in a determination of issues without a party’s participation.
3. Unless an interlocutory appeal of the Expedited Hearing Order is filed,
compliance with this Order must occur no later than seven business days from
the date of entry of this Order as required by Tennessee Code Annotated section
50-6-239(d)(3). The employer must submit confirmation of compliance with
this Order to the Bureau by email to WCCompliance.Program@tn.gov no later
than the seventh business day after entry of this Order. Failure to submit
confirmation within seven business days may result in a penalty assessment for
non-compliance. For questions regarding compliance, contact the Workers’
Compensation Compliance Program via email at
WCCompliance.Program@tn.gov.
ENTERED November 3, 2023.
/s/ Brian K. Addington
______________________________________
BRIAN K. ADDINGTON, JUDGE
Court of Workers’ Compensation Claims
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Appendix
Exhibits:
1. Mr. Michael Brian Day, Jr.’s Rule 72 Declaration
2. Mr. Michael Lee Day’s Rule 72 Declaration
3. Wage Statement
4. Notice of Denial
5. Notice of Employee Termination/Separation
6. Patient Ledger (Mountain People’s Health Councils, Inc.)
7. Medical records Tennova LaFollette Medical Center
8. Medical records of Lindsey Lundquist, FNP (Jacksboro Clinic)
9. Medical records Methodist Medical Center
10. Medical records Mountain People’s Health Councils, Inc.
11. Work Status Note of Ortho Tennessee
12. Gold Creek Treatment of First Aid Injuries Form
13. Physician Panel
14. Gold Creek Employment Application
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Hearing Request
4. Status Hearing Order (May 17, 2023)
5. Status Hearing Order (May 17, 2023) (Duplicate)
6. Status Hearing Order (July 20, 2023)
7. Hearing Request
8. Order Denying Request for Record Review
9. Employee’s Position Statement
10. Employee’s Brief in Support of Employee’s Request for Expedited Hearing
11. Employer/Carrier Opposition to Decision on the Record
CERTIFICATE OF SERVICE
I certify that a correct copy of this Order was sent on November 3, 2023.
Name Certified Fax Email Service sent to:
Timothy Roberto, X troberto@brownandroberto.com
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Employee’s Attorney cmagnusson@brownandroberto.com
mgonzalez@brownandroberto.com
Gerard Jabaley, X gjabaley@wimberlylawson.com
Employer’s Attorney aburge@wimberlylawson.com
______________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
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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