## FILED Jul 30, 2019 09:18 AM(ET) TENNESSEE COURT OF WORKERS' COMPENSATION

CLAIMS



### TENNESSEE BUREAUOFWORKERS' COMPENSATION INTHE COURT OFWORKERS' COMPENSATIONCLAIMS AT KNOXVILLE PHILLIPMULLIS SR., ) 

### DocketNo. 2018-03-1517 Employee, ) 

### v. ) 

### BLOUNT COUNTYCOMMUNITY ) 

### ACTIONAGENCY, ) 

### StateFile No. 90221-2018 Employer, ) 

### And ) 

### PUBLIC ENTITYPARTNERS, ) 

### Carrier. ) 

### Judge Lisa A. Lowe

EXPEDITEDHEARING ORDERDENYING BENEFITS

This case came before the Court on Phillip Mullis Sr.'s Request for Expedited Hearing. The issue is whether Mr. Mullis established that he is likely to prevail at a hearing on the merits in proving entitlement to benefits for an alleged work-related hernia. 1

### For the reasons below, the Court finds that Mr. Mullis failed to do so and denies the requestedbenefits. History ofClaim Mr. Mullis worked for Blount County Community Action Agency (BCCAA). His duties included delivering meals to the elderly andpicking up food from a food bank. Mr. Mullis testified that on either September 3, 4 or 5, 2018, he felt a sharp pain and heard a "pop" on his left side when he bent over to pick up a box offood. He stated that Lynnda Manville, the Supervisor and Senior Nutrition Director, asked ifhe was all right, and he replied no. Mr. Mullis also alleged that Ms. Manville witnessed him yell out

1Both the Petition for Benefitfor Determination (PBD) and the Dispute Certification Notice (DCN) listed a hernia injury. Atthe beginning ofthe hearing, Mr. Mullis confirmed thatthe issue before the Court was whether he sustained a work-related hernia. However, he later testified that he actually sustained a pinched left femoral artery. Since Mr. Mullis did not include the pinched left femoral artery claim on the PBD orDCN, the Court is unable to address that issue. 1in pain and co-worker Renee Jennings helped him to his car because ofthe injury. He testified thathe did not returnto workuntil the following Monday. Mr. Mullis claimed that he had a swollen groin and a hemorrhaged/purple left leg from the work injury. After continuing to work for a month, he asked for time offto see the doctor. Instead of granting his request, BCCAA fired him. He said he "selfdiagnosed" himselfwith a hernia, but a Veteran's Administration (VA) doctor informed himhe mighthave a pinched femoral artery. BCCAA claimed Mr. Mullis furnished no medical evidence establishing that he sustained a work-related hernia and failed to provide timely notice ofhis alleged injury. Specifically, BCCAA alleged that it first learned ofMr. Mullis's alleged herniathrough a letter from the Bureau ofWorkers' Compensation on November 27, 2018, requesting it file a Tennessee Employer's First Report ofWork Injury. BCCAA also claimed its time records show that Mr. Mullis worked his full six-hour shifts the two days following the alleged date ofinjury, and he continued working his regular shifts through September 26 with September20 as the only exception. In response to the Bureau's inquiry, BCCAA's carrier obtained Mr. Mullis's recorded statement. In that statement, Mr. Mullis admitted he did not know the date he allegedly became injured but said that it was sometime in September. BCCA provided Ms. Manville's affidavit, in which she stated that she did not hear Mr. Mullis call out or make any type ofexclamation ofpain on September 5. She further denied that he toldher that he suffered a work injury. Additionally, Ms. Manville statedthat she did not tell Mr. Mullis to go home andthe timerecords supportherversion ofthe facts overMr. Mullis's. Ms. Manville noted that on September 27, Mr. Mullins called in sick, and on September 28 he asked to work fewer days due toproblems withhis mother. Atthattime, Mr. Mullis relayed to Ms. Manville that he had a tentative date ofOctober 12 for right hernia surgery. Ms. Manville indicated she was unable to reach Mr. Mullis at the worksite later on September 28, and he never returned. As a result, BCCAA determined thatMr. Mullis quit. BCCAA provided an affidavit from co-worker Violet Ross, which stated Mr. Mullis told her on multiple occasions that he had a hernia for several years that needed repair, but he was unable to schedule the surgery. Additionally, Mr. Mullis's VArecords showedhe had a right inguinal hernia as far back as April 2011. Notwithstanding the inconsistencies between Mr. Mullis's and Ms. Manville's affidavit testimonies, BCCAA also questioned the alleged incident on the basis that no food products or other goods were unloaded or unpacked on September 5. BCCAA additionally alleged thatno deliveries were made onthat day orthe day before.

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### Findings ofFact and Conclusions ofLaw At an expedited hearing, Mr. Mullis must show he would likely prevail at a hearing on the merits. 

### McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). For his hernia claim, Mr. Mullis must definitely prove to the satisfaction ofthe Courtthat: 

### (1) Therewas an injuryresulting inhernia orrupture; (2) Thehernia orrupture appeared suddenly; (3) Itwas accompaniedbypain; (4) The hernia orrupture immediately followed the accident; and (5) The hernia or rupture did not exist prior to the accident for which compensation is claimed. Tenn. Code Ann. § 50-6-212(a) (2018). The hernia must result from an "injury by accident arising primarily out of and in the course and scope" of Mr. Mullis's employment. 

### !d. This statutory criterion is "intendedto insure that a claimant's hernia

... 'result[ed] from the accident for which compensation is claimed,' and not to a past condition which is unrelated to the new injury." 

### Rhodes v. Careall , Inc., No. W2010- 02192-WC-R3-WC, 2011 Tenn. LEXIS 1157, at *11 (Tenn. Workers' Comp. Panel Dec. 20, 2011). The Court finds Mr. Mullis failed to definitively prove the hernia criteria. First, he failed to provide any medical proof that he sustained a work injury that resulted in a hernia or rupture. Second, Mr. Mullis discussed the fact that his left leg, from groin to toe, turnedpurple, buthe did nottestifY about an immediate bulge inhis groin. Third, Mr. Mullis described pain following an incident at work, but he admitted that he diagnosed himself with a hernia and later believed his pain might have arisen instead from a ruptured femoral artery. Fourth, Mr. Mullis providedno testimony ormedicalproofthat a hernia immediately followed a work injury. Finally, Mr. Mullis's VA records show he had a right-sided hernia back in 2011. Admittedly Mr. Mullis testified his pain is now in the left side of his groin and leg, but he provided no medical proof that he actually sustained a left-sidedhernia. For these reasons, the Court holds that Mr. Mullis failed to show a likelihood of prevailing at a trial. 

### IT IS, 

### THEREFORE, ORDERED as follows: 1. Mr. Mullis' claim for his alleged work-relatedherniais denied at this time.

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### 2. This case is set for a Status Hearing/Scheduling Hearing on November 18, 2019, at 9:30 a.m. Eastern Time. The parties must call 865-594-0109 to participate 

### in the Scheduling Hearing

. Failure to appear by telephone may result in a determination ofthe issues withoutthe party'sparticipation. ENTEREDJuly30, 2019.

LISAA. LOWE,JUDGE CourtofWorkers' Compensation Claims

APPENDIX 

### Exhibits: 1. Affidavit ofAffidavit ofPhillip Mullis 2. Affidavit ofDavid Buchanan 3. Affidavit ofLynndaManville 4. Affidavit ofCharlotte Douglas 5. Affidavit ofViolet Ross 6. Affidavit ofRenee Jennings 7. Affidavit ofDan Sibley 8. Recorded Statement ofPhillip Mullis 9. Table of Contents of Medical Record Excerpts of the Department of Veterans Affairs 10.Medical Expense from BlountMemorial Physicians Group 11.Medical Records of the Department of Veterans Affairs (for identification purposes only) Technical Record: 1

. Petition for BenefitDetermination 2. Dispute CertificationNotice 3. Request for Expedited Hearing 4. Employee's Witness List 5. Notice ofExpedited Hearing 6. Employer's Response to theEmployee's Request for Expedited Hearing 7

. Employer's Memorandum 8

. Employee's Second Request for Expedited Hearing- Amended Witness List

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### CERTIFICATE OF SERVICE I certify that a copy ofthis Orderwas sent as indicated onJuly 30, 2019. Name Certified Fax Email Service sentto: Mail J>hillip Mullis, X X 7619 Old Highway 73 Self-Represented Townsend, TN 37882 Employee 

### 0 ldbutnotforgottenmike@gmail.com John T. Batson, X jbatson@watsonroach.com Employer's Attorney



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