Opinion

Holley, Medaris v. Southwest Airlines Co.

  • 2024 TN WC 21
Court
Tennessee Court of Workers' Compensation Claims
Filed
Mar 14, 2024
Status
Published
On the bench
Allen Phillips
Cited by
0 cases
Authority
More cited than 15.6%

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

1

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.

3

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

6

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

8

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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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