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TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT MURFREESBORO

LILLIAN HOWARD, ) Docket No. 2018-05-0841

Employee, )

v. )

)

NHC HEALTHCARE/PULASKI, LLC, ) State File No. 60684-2018

Employer, )

And )

)

PREMIER GROUP INS. CO., ) Judge Dale Tipps

Carrier. )

EXPEDITED HEARING ORDER DENYING REQUESTED BENEFITS

This matter came before the Court on April 10, 2019, for an Expedited Hearing on

Ms. Howard’s entitlement to medical and temporary disability benefits. The central 

issues are whether she is likely to establish at a hearing on the merits that she gave proper 

notice and, if not, whether her injury arose primarily out of and in the course and scope of 

her employment. For the reasons below, the Court holds Ms. Howard provided adequate 

notice but is not entitled to the requested benefits at this time.

History of Claim

Ms. Howard suffered a back injury while working for another employer in 2015. 

That employer accepted the claim as compensable and provided treatment with Dr. 

Robert Clendenin. This Court approved the parties’ settlement of the claim in May 2017, 

with Dr. Clendenin designated as the authorized physician for future treatment. Ms. 

Howard was unable to return to her job and eventually began working for NHC at the end 

of October 2017.

Ms. Howard testified that she felt something happen to her back while taking a 

FILED

Apr 18, 2019

08:23 AM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS
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load of laundry out of the washing machine at work on February 2, 2018.1 She finished 

her shift and went to the office of her supervisor, Chasity Jones, to report the incident. 

She could not locate Ms. Jones, so she clocked out and went home. When Ms. Howard’s 

husband learned she was suffering from back pain, he advised her to report the injury, so 

she called Ms. Jones at work and told her what had happened. Ms. Jones told Ms. 

Howard to keep her informed.

The next day was Saturday, and Ms. Howard traveled to Huntsville with her 

family for some shopping. When they arrived at the mall, she began having difficulty 

walking due to back pain. She cut the trip short and returned home. Her pain worsened 

to the point that she had to go to the emergency room on Sunday. She returned to the 

emergency room on Monday.

On Tuesday, Ms. Howard went to her primary care doctor because the medicines 

and injections from the emergency room were ineffective. His treatment provided no 

relief either. Ms. Howard had a follow-up appointment scheduled with Dr. Clendenin

under her previous workers’ compensation claim, and she called to see if that 

appointment could be moved up. She could not get her appointment changed, so she saw 

Dr. Clendenin on February 27.

Following that appointment with Dr. Clendenin, Ms. Howard called an 

administrator at NHC, who said that her claim was denied. Beginning with her first 

emergency room visit, Ms. Howard’s doctors assigned temporary restrictions or took her 

completely off work, and she has not worked for NHC or any other employer since 

February 2, 2018.

On cross-examination, Ms. Howard admitted that she described her injury in the 

Petition for Benefit Determination (PBD) as occurring over a period of five months of 

“pulling, tugging and lifting wet laundry.” She explained that the PBD was incorrect and 

that she sent it in by error.

Ms. Jones testified that Ms. Howard reported hurting her back at home in 

December 2017, which caused her to miss work. She denied receiving any notice of a 

work injury on February 2, 2018, although Ms. Howard left a voicemail that she would 

be out of work on February 5 because of her back. Ms. Jones said Ms. Howard did not 

report a specific work injury until the last week of February. At that time, Ms. Howard 

was unable to identify a specific date or incident.

Records from Dr. Clendenin show that Ms. Howard saw him on February 27 for 

follow-up of her previous work injury. He noted that he had not seen her since the 

 

1 There was some confusion as to the exact date, but Ms. Howard said she was sure it was the first Friday 

in February, which the Court notes was February 2.
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previous April. Ms. Howard “was doing well until about the second of this month when 

she was shopping and developed acute onset of severe pain in her back and leg.” She 

reported severe pain. Dr. Clendenin assessed possible acute right lumbar radiculopathy 

with a significant possibility of a new disc herniation.

On March 1, Ms. Howard returned to Dr. Clendenin after her MRI. He noted a 

new right paracentral protrusion at L5-S1. At the next visit, Dr. Clendenin noted that Ms. 

Howard was much better after an epidural injection. He recommended either another 

injection or a surgical referral.

Ms. Howard had the injection and returned to Dr. Clendenin’s office on May 30, 

where she saw Mary Feulner, a nurse practitioner. Ms. Howard, who was using a 

wheelchair, reported significant back and right leg pain. NP Feulner noted, “She is 

wondering if her symptoms are from an injury she had in January.” After a third epidural 

injection, Ms. Howard saw Dr. Clendenin on July 10 and reported significant 

improvement in her pain. He told her she could seek a second opinion with a back 

surgeon if she wished, and he encouraged her to find a lighter job.

At the hearing, Ms. Howard requested that the Court order NHC to provide 

additional medical treatment. Her PBD also included requests for temporary disability 

benefits.

NHC contended that Ms. Howard’s claim is barred by her failure to provide proper 

notice of an injury. It also argued that, even if notice were legally adequate, Ms. Howard

failed to prove she is likely to establish that she suffered an injury by accident arising

primarily out of and in the course and scope of her employment. For these reasons, it 

asked the Court to deny her request.

Findings of Fact and Conclusions of Law

Standard applied

Ms. Howard need not prove every element of her claim by a preponderance of the 

evidence in order to obtain relief at an expedited hearing. Instead, she must present 

sufficient evidence she is likely to prevail at a hearing on the merits. See Tenn. Code 

Ann. § 50-6-239(d)(1) (2018); McCord v. Advantage Human Resourcing, 2015 TN Wrk. 

Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). 

Notice

Tennessee Code Annotated section 50-6-201(a)(1) provides that an injured 

employee must give written notice of an injury within fifteen days unless it can be shown 

that the employer had actual knowledge of the accident or that “reasonable excuse for 
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failure to give the notice is made to the satisfaction of the tribunal.” The parties dispute 

whether Ms. Howard actually gave NHC notice of her alleged February 2, 2018 injury. 

The answer to this question lies in the C20 First Report of Injury filed by NHC. 

Contrary to Ms. Jones’s testimony, the First Report states that NCS received notice of the 

injury on February 5, only three days after the alleged injury date.

Further, Tennessee Code Annotated section 50-6-201(a)(3) provides that failure to 

give notice will not bar a claim unless the employer can show it was prejudiced by the 

lack of notice. Prejudice may be found if the employer is denied the opportunity to make 

an investigation while the facts are accessible or to provide timely and proper treatment 

for the injured employee. See Masters v. Industrial Garments Mfg. Co., 595 S.W.2d 811, 

815 (Tenn. 1980). NHC presented no evidence of any prejudice to its ability to defend 

this claim or provide proper medical treatment.

For these reasons, the Court holds that Ms. Howard is likely to prevail at a hearing 

on the merits on the issue of notice.

Compensability

To prove a compensable injury, Ms. Howard must show that her alleged injuries 

arose primarily out of and in the course and scope of her employment. This includes the 

requirement that she must establish a work-related incident, or specific set of incidents, 

identifiable by time and place of occurrence. Tenn. Code Ann. § 50-6-102(14)(A).

Regarding the requirement to identify a work-related incident, the PBD Ms. 

Howard completed and signed did not describe a specific incident. Instead, she wrote 

that her injury occurred over the course of several months. The First Report of Injury

states that she was unable to describe what happened or when. Further, the only medical 

records introduced do not support her contention that she suffered a discrete, identifiable 

injury on February 2, 2019, as they do not mention an injury until her fourth visit, four 

months later. Even then, nothing indicates that the injury occurred at work. Under these 

circumstances, the Court cannot find at this time that Ms. Howard is likely prove the 

existence of the “work-related incident” required by section 50-6-102(14)(A).2

Even if Ms. Howard were to establish an identifiable injury, she would have to 

show, “to a reasonable degree of medical certainty that it contributed more than fifty 

percent (50%) in causing the . . . disablement or need for medical treatment, considering 

 

2 The definition of “injury” in Tennessee Code Annotated section 50-6-102(14) includes cumulative 

trauma or repetitive motion conditions. However, Ms. Howard claimed in her affidavit and insisted at the 

hearing that she was seeking benefits for a specific February 2 injury. Further, she explicitly disavowed 

the allegations in her PBD and denied a gradual injury. Based on that testimony, the Court cannot find

she would likely prevail on a claim for a cumulative trauma injury.
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all causes.” “Shown to a reasonable degree of medical certainty” means that, “in the 

opinion of the treating physician, it is more likely than not considering all causes as 

opposed to speculation or possibility.” See Tenn. Code Ann. § 50-6-102(14). 

The only medical records introduced at the hearing were those of Dr. Clendenin, 

who did not address causation. Thus, Ms. Howard offered no evidence that her work 

contributed more than fifty percent in causing her need for medical treatment. 

Ms. Howard appeared sincere in her belief that her work activities caused her 

condition. However, the Court must abide by the causation requirements of the Workers’ 

Compensation Law and cannot infer from the mere existence of Ms. Howard’s back

condition that her employment caused it. The Court thus finds she is unlikely to prove at 

this time that her condition arose primarily out of and in the course and scope of her 

employment. 

IT IS, THEREFORE, ORDERED as follows: 

1. Ms. Howard’s claim against NHC Healthcare and its workers’ compensation 

carrier for the requested medical benefits is denied at this time. 

2. This matter is set for a Scheduling Hearing on June 18, 2019, at 9:00 a.m. Please 

call toll-free at 855-874-0473 to participate. Failure to call or appear may result in 

a determination of the issues without your further participation. All conferences 

are set using Central Time (CT). 

ENTERED this the 18th day of April, 2019. 

_____________________________________ 

 Judge Dale Tipps 

Court of Workers’ Compensation Claims 
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APPENDIX

Exhibits:

1. Affidavit of Lillian Howard

2. First Report of Injury

3. Notice of Denial of Claim

4. Physician Return-to-Work certificates

5. Imaging Reports

6. Medical Records

7. Settlement documents from previous workers’ compensation claim

8. December 12, 2017 treatment note (Identification Only)

9. Wage Statement

Technical record:

1. Petition for Benefit Determination

2. Dispute Certification Notice

3. Request for Expedited Hearing

4. NHC’s Response in Opposition to Request for Expedited Hearing

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Expedited Hearing Order was

sent to the following recipients by the following methods of service on this the 18th day 

of April, 2019.

Name Certified 

Mail

Fax Email Service sent to:

Lillian Howard,

Employee

X Lilhoward9894@gmail.com

Frank Gallina,

Employer’s Attorney

X fgallina@plcslaw.com

_____________________________________

Penny Shrum, Clerk of Court

Court of Workers’ Compensation Claims

WC.CourtClerk@tn.gov
Expedited Hearing Order Right to Appeal:

If you disagree with this Expedited Hearing Order, you may appeal to the Workers’ 

Compensation Appeals Board. To appeal an expedited hearing order, you must:

1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the 

form with the Clerk of the Court of Workers’ Compensation Claims within seven 

business days of the date the expedited hearing order was filed. When filing the Notice 

of Appeal, you must serve a copy upon all parties. 

2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten 

calendar days after filing of 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 fee. You must file the fullycompleted 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 the appeal.

3. You bear the responsibility of ensuring a complete record on appeal. You may request 

from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of 

the proceedings is to be filed, a licensed court reporter must prepare the transcript and file 

it with the court clerk within ten business days of the filing the Notice of 

Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both 

parties within ten business days of the filing of the Notice of Appeal. The statement of 

the evidence must convey a complete and accurate account of the hearing. The Workers’ 

Compensation Judge must approve the statement before the record is submitted to the 

Appeals Board. If the Appeals Board is called upon to review testimony or other proof 

concerning factual matters, the absence of a transcript or statement of the evidence can be 

a significant obstacle to meaningful appellate review.

4. If you wish to file a position statement, you must file it with the court clerk within ten

business days after the deadline to file a transcript or statement of the evidence. The 

party opposing the appeal may file a response with the court clerk within ten business 

days after you file your position statement. All position statements should include: (1) a 

statement summarizing the facts of the case from the evidence admitted during the 

expedited hearing; (2) a statement summarizing the disposition of the case as a result of 

the expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an 

argument, citing appropriate statutes, case law, or other authority.

For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.


ll 

. 

Tennessee Bureau of Workers' Compensation 

220 French Landing Drive, 1-B 

Nashville, TN 37243-1002 

800-332-2667 

AFFIDAVIT OF INDIGENCY 

.. I 

I, , having been duly sworn according to law, make oath that 

because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be 

waived. The following facts support my poverty. 

1. Full Name: ___________ _ 2. Address:-------------

3. Telephone Number:--------- 4. Date of Birth:-----------

5. Names and Ages of All Dependents: 

----------------- Relationship:-------------

----------------- Relationship:-------------

---------------- - Relationship:-------------

----------------- Relationship:-------------

6. I am employed by: ------------------------------,-

My employer's address is:-------------------------

My employer's phone number is:-----------------------

7. My present monthly household income, after federal income and social security taxes are deducted, is: 

$ _______ __ 

8. I receive or expect to receive money from the following sources: 

AFDC $ per month beginning 

SSI $ per month beginning 

Retirement $ per month beginning 

Disability $ per month beginning 

Unemployment $ per month beginning 

Worker's Camp.$ per month beginning 

Other $ per month beginning 

LB-1108 (REV 11/15) RDA 11082 
9. My expenses are: ' ; !• 

' 

Rent/House Payment $ per month Medical/Dental $ per month 

Groceries $ per month Telephone $ per month 

Electricity $ per month School Supplies $ per month 

Water $ per month Clothing $ per month 

Gas $ per month Child Care $ per month 

Transportation $ per month Child Support $ per month 

Car $ per month 

Other $ per month (describe: 

10. Assets: 

Automobile $ ____ _ 

Checking/Savings Acct. $ ____ _ 

House 

) 

Other 

11. My debts are: 

Amount Owed 

$ _ ___ _ 

$ ____ _ 

To Whom 

(FMV) - ---------

(FMV) ----------

Describe: _____ _____ _ 

I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete 

and that I am financially unable to pay the costs of this appeal. 

APPELLANT 

Sworn and subscribed before me, a notary public, this 

___ dayof _____________ ,20 ___ _ 

NOTARY PUBLIC 

My Commission Expires: _ _ _____ _ 

LB-1108 (REV 11/15) RDA 11082