The opinion
FILED
Mar 14, 2024
07:00 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
MEDARIS HOLLEY, ) Docket No. 2023-08-0672
Employee, )
v. )
SOUTHWEST AIRLINES CO., )
Employer, ) State File No. 87130-2022
And )
STARR SPECIALTY INS. CO., )
Carrier, )
And, ) Judge Allen Phillips
TROY HALEY, ADMINISTRATOR, )
BUREAU OF WORKERS’ )
COMPENSATION, SUBSEQUENT )
INJURY and VOCATIONAL )
RECOVERY FUND. )
EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS
AND PENALTY REFERRAL
Mr. Holley requested medical and temporary disability benefits for a shoulder
injury. Southwest claimed he failed to give timely notice of the injury. The Court held an
Expedited Hearing on February 29, 2024, and holds Mr. Holley is entitled to medical
benefits, specifically a panel of physicians, but denies his request for temporary disability
benefits.
History of Claim
Mr. Holley worked for Southwest as a ramp agent, which required loading and
unloading aircraft. He started work in March 2022 and began having right shoulder pain in
April. By July, the pain became “excruciating,” and he had difficulty performing his work.
He was “100% certain” his pain was work-related, and on July 9, he went to an urgent care
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facility, where he received a compression sleeve and medication. 1
Around that time, Mr. Holley and one of his supervisors, Ira Bembry, were talking
during a lull in work. Mr. Bembry, who was wearing a knee brace, asked Mr. Holley about
the compression sleeve. Mr. Holley said it was for shoulder pain and that he had been given
medication. He said Mr. Bembry appeared sympathetic and told him to follow up on his
shoulder because it “could deteriorate.”
Mr. Holley did not tell Mr. Bembry he went to urgent care and did not “verbatim”
say his pain stemmed from lifting baggage. However, Mr. Holley testified that, given “the
work we did,” he thought Mr. Bembry “knew what was going on.”
Shortly after that conversation, Mr. Holley decided to resign. He called another
supervisor, Joyce Jeltz, to inform her of his intention, and she asked Mr. Holley to meet
with her first. Mr. Holley said he conveyed to Ms. Jeltz during their meeting that his
shoulder pain was a “central part” of his decision, as was the amount of mandatory
overtime. Ms. Jeltz assured Mr. Holley that anticipated new hires would lessen overtime,
but Mr. Holley said she offered no information regarding workers’ compensation. He
resigned later that month because he did not believe he could continue working.
The conversations with Mr. Bembry and Ms. Jeltz are the only communications with
Southwest before Mr. Holley resigned. He testified other supervisors saw him wearing the
sleeve, but any conversations with them were “scanty,” and he did not tell them he was
hurt at work.
After resigning, Mr. Holley went on his own to orthopedic surgeon Dr. Apurva
Dalal, who recorded that Mr. Holley had “significant difficulty” after working at Southwest
for a month. By July, his pain had gotten so bad that he quit. Dr. Dalal suspected a rotator
cuff tear, and an MRI confirmed it. In November, Dr. Dalal said Mr. Holley needed a
shoulder replacement, but he was not interested in surgery at that time. Dr. Dalal offered
no further treatment and said Mr. Holley could return as needed. In neither of the two
records did Dr. Dalal say the shoulder condition was work-related, nor did he place any
restrictions.
After seeing Dr. Dalal, Mr. Holley claimed he sent a letter to Aquan White, a
manager at Southwest. In it, Mr. Holley detailed the events leading to his resignation and
specifically said he resigned on July 16 after telling Ms. Jeltz of his “shoulder concerns.”
Then, on December 2, Mr. Holley sent a message to Southwest’s workers’
compensation email address. He mentioned the urgent care visit and Ms. Jeltz’s statement
regarding new hires. He detailed Dr. Dalal’s findings and said “he would appreciate
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The parties did not offer records from that visit.
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feedback regarding filing a Workman [sic] Compensation Claim” because he had left
messages on the “automated line” with no response.
A December 6 letter from Southwest’s claims administrator stated they received his
claim and listed, without explanation, an injury date of July 8, 2022. The administrator
wrote they must “determine if [the] claim qualifies under the workers’ compensation law.”
On December 7, the administrator sent Mr. Holley another letter that stated: “After careful
consideration of all available information, it is our opinion that your claim for Workers’
Compensation benefits is not compensable.”
At the hearing, Mr. Holley testified he had no shoulder problems before working at
Southwest and when his symptoms began shortly afterward, he was still in his probationary
period. Thus, he was concerned about his ability to perform the work and about losing his
job if he reported an injury.
Mr. Holley said he spoke with a Southwest representative regarding his claim in
December and provided requested information. He also said he talked with a representative
of the insurance company “a couple of times” before learning of the denial.
Southwest confronted Mr. Holley with portions of his deposition, particularly the
details of his conversation with Ms. Jeltz where he gave reasons for his resignation other
than his shoulder. Southwest moved Mr. Holley’s entire deposition into evidence. In it, he
testified he “knew Ms. Jeltz was aware” he was complaining about his shoulder; “of,
course, yes” he told Ms. Jeltz he was having shoulder problems. He further testified that
he “specifically” told her about shoulder problems, and he told her that he could no longer
perform his job.
Southwest offered the sworn declaration of Mr. Bembry, who said Mr. Holley never
reported a shoulder injury to him and, to his knowledge, did not report it to anyone else.
Southwest also called Ms. Jeltz, who said she receives many claims and had no
incentive not to accept Mr. Holley’s. She said Mr. Holley did not report an injury or
problems with his shoulder. She recalled he said in their meeting that he was resigning
because of the heat, mandatory overtime, and because “he couldn’t do it.” She added he
was a nice man and a great worker. She also testified that no one from the insurance
company spoke with her regarding Mr. Holley’s claim.
Mr. White testified Mr. Holley told him he was resigning because the job was not a
“good fit.” He completed a separation notice to that effect in July and said Mr. Holley did
not report a work injury at that time. He claimed he did not see the letter Mr. Holley
addressed to him in the fall and that no one from the insurance company called him about
the claim. Like Ms. Jeltz, he considered Mr. Holley a good worker.
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Based on this proof, Mr. Holley contended he gave notice, or that Southwest had
actual knowledge of his injury. He said Southwest offered no evidence that its
administrator contacted anyone to investigate the claim, and it failed to show any prejudice
even if he did not report the injury until December. Though he may not want surgery at
this point, he still wants Southwest to furnish treatment with Dr. Dalal.
Southwest countered that Mr. Holley first reported his alleged injury in December,
months after the fact. It noted his statements that his shoulder started hurting in April, but
he did not report it until December. Southwest argued Ms. Jeltz’s version of the meeting
“makes more sense,” considering Mr. Holley worked several more days rather than leaving
immediately because of excruciating pain. Southwest claimed it was prejudiced by the
delay because it might have provided a panel earlier and avoided what is now a potential
shoulder replacement.
Findings of Fact and Conclusions of Law
At this Expedited Hearing, Mr. Holley must show he would likely prevail at trial in
proving he gave timely notice. See Tenn. Code Ann. § 50-6-239(d)(1) (2023). Because he
alleged a gradual or cumulative injury, section 201(b) requires Mr. Holley to give notice
within 15 days of one of these two events:
• When he knew or reasonably should have known that he suffered a
work-related injury resulting in permanent impairment; or
• When he was rendered unable to continue working because of an
injury and knew or reasonably should have known it was caused by
his work.
Whether Mr. Holley gave the required notice is determined by answering several
questions under Ernstes v. Printpack, No. W2023-00863-SC-R3-WC, 2024 Tenn. LEXIS
1, at *13-14 (Tenn. Workers’ Comp. Panel Jan. 2, 2024), a case involving a gradually
occurring injury.
First, did the employee gave timely written notice? Mr. Holley did not. He was
“100% certain” his shoulder condition was work related in July 2022, and he quit his job
that month because he could not continue. He offered no proof that he gave written notice
within 15 days of either of those events.
Second, because Mr. Holley did not give written notice, Ernstes requires answering
this question: did Southwest have “actual knowledge” of Mr. Holley’s alleged injury? Id.
at *13. The Court finds Southwest did.
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Two interactions with Southwest before Mr. Holley’s resignation might support
actual knowledge. First, Mr. Bembry saw Mr. Holley wearing a compression sleeve, asked
him about it, and suggested he pay attention to his shoulder. Mr. Holley thought Mr.
Bembry, himself wearing a brace and appearing sympathetic, “knew what was going on.”
But Mr. Holley admitted he did not report an injury to Mr. Bembry, and a report of pain is
not enough unless the employee says the pain is work-related. Int’l Playing Card and Label
Co., Inc. v. Broyles, 381 S.W.2d 888, 892 (Tenn. 1964).
But the second interaction did provide Southwest with actual knowledge. An
employee provides an employer actual knowledge if he reasonably conveys to the
employer that he is claiming an injury arising out of and in the course of his employment.
Masters v. Indus. Garments Mfg. Co., Inc., 595 S.W.2d 811, 816 (Tenn. 1980).
Mr. Holley said repeatedly in his deposition that he told Ms. Jeltz about his shoulder
at the July meeting. At the hearing, he testified he told her that his shoulder pain while
working was a “central part” of his resignation and that he could no longer perform his job.
Mr. Holley’s version of the meeting with Ms. Jeltz is plausible. Knowing what he
did at the time, Mr. Holley would logically report to his supervisor. Specifically, at the time
they talked, he had been to an urgent care facility, received medication and a compression
sleeve, and had talked with Mr. Bembry, who seemed concerned. At the time they talked,
Mr. Holley had been in pain for some weeks and had contemplated how an injury might
affect his probationary status before he reached the point of having to act. At the time they
talked, Ms. Jeltz knew of the nature of Mr. Holley’s job, and at the time they talked, Ms.
Jeltz agreed Mr. Holley said, “he couldn’t do it.”
Conversely, Southwest’s position is unconvincing. The administrator told Mr.
Holley it would investigate the claim, but only one day later, it denied it without mentioning
notice. Moreover, Ms. Jeltz and Mr. White said no one from the administrator called them
regarding the claim, and Southwest offered no evidence to show the administrator
investigated the claim. It specifically offered no proof from the representative whom Mr.
Holley said he communicated with.
In sum, the facts support a finding that in July 2022, Mr. Holley resigned because
of his shoulder and he reasonably conveyed that he had a work injury. The Court finds Mr.
Holley credible and believes his version of the events. Ms. Jeltz and Mr. White considered
him a good worker, and his testimony and demeanor during the hearing supported those
opinions. He was calm, steady, and most of all reasonable when he explained his version.
See Kelly v. Kelly, 445 S.W.3d 685, 694-695 (discussing indicia of witness credibility).
As to the requested benefits, Mr. Holley offered no proof of entitlement to
temporary disability benefits. Further, his limited contact with Dr. Dalal does not justify
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designating him the treating physician. Thus, Southwest shall provide Mr. Holley a panel
of orthopedic surgeons, from which he might choose one for evaluation and treatment.
Finally, an adjusting entity must make a compensability decision within 15 days of
receiving notice and advise the employee in writing via a Notice of Denial form. The notice
must include the basis for denial. Tenn. Comp. R. & Regs. 0800-02-14.04(6) (2022). The
denial letter to Mr. Holley was timely, but not on a Bureau form and did not include the
basis for denial. Thus, a referral for consideration of a penalty under Rule 14-.10(3) is
appropriate.
IT IS, THEREFORE, ORDERED as follows:
1. Southwest shall provide Mr. Holley a panel of orthopedic surgeons and schedule
an appointment with Mr. Holley’s selected surgeon for evaluation and treatment.
2. The Court refers the case to the Compliance Program for consideration of a penalty
for failure to provide Mr. Holley with a proper Notice of Denial.
3. The Court sets a Status Hearing for Wednesday, July 10, 2024, at 9:00 a.m.
Central Time. The parties must call 731-422-5263 or toll-free 855-543-5038 to
participate.
4. Unless interlocutory appeal of this Expedited Hearing Order is filed, compliance
must occur no later than seven business days from the date of entry as required by
section 239(d)(3). Southwest must submit confirmation of compliance 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 the necessary confirmation within the
period of compliance may result in a penalty assessment for non-compliance. For
questions regarding compliance, please contact the Workers’ Compensation
Compliance Unit via email at WCCompliance.Program@tn.gov.
ENTERED March 14, 2024.
_____________________________________
JUDGE ALLEN PHILLIPS
Court of Workers’ Compensation Claims
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APPENDIX
Exhibits
1. Medical Records of Dr. Dalal
2. Wage Statement
3. Attachments to Petition for Benefit Determination
4. Representation letter
5. Mr. Holley’s letter to Southwest manager
6. Letters from claim administrator
7. Mr. Holley’s affidavit in support of Expedited Hearing
8. Separation Notice
9. Mr. Holley’s e-mail to workers’ compensation representative
10. Sworn declaration of Ira Bembry
11. Mr. Holley’s deposition
Technical Record
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Order Setting Expedited Hearing—July 13, 2023
5. Employer’s Motion to Continue Expedited Hearing and to Compel Discovery
6. Employee’s Response to Motion to Compel and For Protective Order
7. Employer’s Response to Employee’s Response to Motion to Compel
8. Employer’s Expedited Hearing Statement
9. Order Granting Motion to Continue and Compelling Discovery
10. Status Hearing Order-October 12, 2023
11. Order Setting Expedited Hearing—November 7, 2023
12. Employer’s Witness and Exhibit List
13. Employer’s Expedited Hearing Statement
14. Notice of Expedited Hearing—February 29, 2024
15. Employer’s Motion for Videoconference Appearance
16. Order Allowing Appearance by Videoconference
17. Employee’s attachment to Petition for Benefit Determination
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CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on March 14, 2024.
Name Email Service Sent To:
Andrew L. Wener, Employee’s Attorney X awener@wenerlawfirm.com
B. Duane Willis, Employer’s Attorney X dwillis@morganakins.com
Timothy Kellum, Second Injury Fund Attorney X timothy.kellum@tn.gov
Compliance Program X WCCompliance.Program@tn.gov
_____________________________________
Penny Shrum, Court Clerk
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
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Right to Appeal:
If you disagree with the Court’s Order, you may appeal to the Workers’ Compensation
Appeals Board. To do so, you must:
1. Complete the enclosed form entitled “Notice of Appeal” and file it with the Clerk of the
Court of Workers’ Compensation Claims before the expiration of the deadline.
If the order being appealed is “expedited” (also called “interlocutory”), or if the
order does not dispose of the case in its entirety, the notice of appeal must be filed
within seven (7) business days of the date the order was filed.
If the order being appealed is a “Compensation Order,” or if it resolves all issues
in the case, the notice of appeal must be filed within thirty (30) calendar days of
the date the Compensation Order was filed.
When filing the Notice of Appeal, you must serve a copy on the opposing party (or attorney,
if represented).
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten calendar
days after filing 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 filing 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 your appeal.
3. You are responsible for ensuring a complete record is presented on appeal. If no court
reporter was present at the hearing, you may request from the Court Clerk the audio
recording of the hearing for a $25.00 fee. If you choose to submit a transcript as part of your
appeal, which the Appeals Board has emphasized is important for a meaningful review of
the case, a licensed court reporter must prepare the transcript, and you must file it with the
Court Clerk. The Court Clerk will prepare the record for submission to the Appeals Board,
and you will receive notice once it has been submitted. For deadlines related to the filing of
transcripts, statements of the evidence, and briefs on appeal, see the applicable rules on the
Bureau’s website at https://www.tn.gov/wcappealsboard. (Click the “Read Rules” button.)
4. After the Workers’ Compensation Judge approves the record and the Court Clerk transmits
it to the Appeals Board, a docketing notice will be sent to the parties.
If neither party timely files an appeal with the Appeals Board, the Court Order
becomes enforceable. See Tenn. Code Ann. § 50-6-239(d)(3) (expedited/interlocutory
orders) and Tenn. Code Ann. § 50-6-239(c)(7) (compensation orders).
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