IN THE COURT OF WORKERS' COMPENSATION CLAIMS AT COOKEVILLE Timmy Thomas, Employee, 

### v.

Wal-MartAssociates, Inc. Employer, ) DocketNo.: 2015-04-0082 ) ) State File No.: 77493-2014 ) ) ) ) ) Judge Robert Durham

EXPEDITED HEARING ORDERDENYINGBENEFITS

THIS CAUSE came before the undersigned Workers' Compensation Judge upon the Request for Expedited Hearing (REH) filed by Timmy Thomas on November 17, 2015, pursuant to Tennessee Code Annotated section 50-6-239 (2015) to determine if Wal-Mart Associates, Inc. (Wal-Mart), is obligated to provide workers' compensation benefits.
The dispositive issues are whether Mr. Thomas can establish a workers' compensation claim for an acute injury when he cannot remember the specific date the accident occurred, and whether he provided sufficient notice ofa work-related injury to Wal-Mart. For the reasons set forth below, the Court finds Mr. Thomas' failure to remember the specific date of his injury would not preclude him from workers' compensation benefits; however, he failed to provide timely notice ofhis work-related injury to Wal-Mart in accordance with Tennessee Code Annotated section 50-6-201 (2014). Therefore, the Court finds Mr. Thomas is unlikelyto prove a compensable injury at ahearing onthe merits and denies his claim for benefits. History ofClaim

Mr. Thomas is a thirty-one-year-old resident ofPutnam County, Tennessee. (Ex. 12 at 6.) He has worked for Wal-Mart in maintenance for approximately four years. (Ex. 12 at 23.) On August 25, 2014, Mr. Thomas treated with his personal medical provider, N.P. Linda Stover. (Ex. 7 at 1.) Mr. Thomas reported he hurt his low back

1several weeks earlierpicking up a heavy object at work. !d. He complained oflow back pain radiating into his buttocks and legs with some intermittent numbness. !d. N.P. Stoverdiagnosed a backache andprescribedNaproxen and Flexeril. (Ex. 7 at 3.)

Mr. Thomas returned to N.P. Stover on September 30, 2014, complaininghis back pain had not improved and requesting an MRI. (Ex. 7 at 4.) N.P. Stover continued treatmentwith muscle relaxers andpain medication, and ordered an MRI. (Ex. 7 at 5.) According to the affidavit ofJoshua Emmert, Mr. Thomas' immediate supervisor, Mr. Thomas missed several days ofwork in late September 2014 because ofback pain. (Ex. 12 at 12.) However, he nevertold Mr. Emmert that the backpain stemmed from an injury at work. !d. Approximately two weeks after he first missed work from backpain, Mr. Thomas called Mr. Emmert and told him he hurt his back at work while lifting a box ofstripper wax; however, he never provided a specific date ofinjury. !d. Mr. Emmert advisedhimto come in and complete accidentpaperwork. !d.

On October2, 2015, Mr. Thomas completed an "Associate Statement"withregard to his claim. (Ex. 12 at 2.) Mr. Thomas listedthe date ofinjury as August 25, 2014. !d. He statedhe was stackingboxes ofwaxwhenhe picked one up "the wrong way" and felt pain in his lowback. !d. Onthe report, Mr. Thomas identified "Kenny," a co-worker, as a witness. !d. The pain initially went away, but returned that night and gradually worsened. (Ex. 12 at 3.)

The accident report is filled with significant spelling errors and inconsistencies. For example, the word "maintenance" is spelled "mantnice," "stacking" is spelled "stakeing," "remember" is spelled "remilder," and "again" is spelled "agin." He also completed a section ofthe report reserved for hernias and ruptures. (Ex. 12 at 2-3.) Mr. Thomas responded to one question as follows: "At the time you were injured, did you stop working? Yes. Ifso, how long? No, I keep working." !d. Finally, Mr. Thomas signed the signature line indicating he prepared the accident report, but also signed the signature line indicating someone elsepreparedthe report for him. !d.

Mr. Thomas completed an "Associate Incident Report" the same day, again indicating he hurthis backatwork whilepickingup aboxofwax. (Ex. 12 at 4.) Aswith the accident report, this form also contained numerous misspelled words, including "singel" for "single," "worng" for "wrong," and "nees" for "knees." !d. He again listed the date of injury as August 25, 2014. !d. Wal-Mart offered Mr. Thomas a panel of physicians from which he selected Dr. Roy Anderson with Quality Medical Center. (Ex. 12 at 5.) Onthe form, Mr. Thomas listedthe date ofinjury as September 15, 2014. !d.

After completing his paperwork, Mr. Thomas visited Quality Medical Center. (Ex. 9 at 1.) He described injuring his low back at work while lifting a box ofwax, stating he felt pain in his low back when he bent overto liftthe box. !d. He complained

2ofconstant, burning pain that radiated down both legs and into his feet. /d. Laurajane Officer Dundey, FN noted Mr. Thomas' complaints as stemming from a "new workrelated injury." (Ex. 9 at 2.) She prescribed muscle relaxers and steroids, and placed significantrestrictions onMr. Thomas' physical activities for one week. (Ex. 9 at 2.) FN Dundey scheduledMr. Thomasto return onOctober9; however, there is norecord ofMr. Thomasreturningto QualityMedical Center. /d. Shortly thereafter, Brandace Lewis, Personnel Coordinator for Wal-Mart, asked Mr. Emmert to verify ifMr. Thomas worked on August 25. (Ex. 2 at 1.) Mr. Emmert checked the time card report and noted Mr. Thomas did not work on August 25. 

### !d. There is no record ofWal-Mart paying any workers' compensation benefits following this discovery. 1 Mr. Thomas took medical leave from Wal-Mart on November 3, 2014. (Ex. 1at 1.)

Mr. Thomasresumed carewithN.P. Stoverandunderwent anMRI on October22. (Ex. 8 at 1.) Atthe L4-L5 level, the MRI revealed "disc dessication with circumferential disc bulge and a largerightparacentral/foraminal disprotrusionwhichcauses severeright lateral recess stenosis and severe central canal narrowing. There is displacement ofthe cauda equine nerve roots posteriorly, particularly the transversing right-sided nerve roots." 

### !d.

N.P. Stover referred Mr. Thomas to Dr. Joseph Jestus with Tier 1 Neurosurgery, and onNovember 11, 2014, Julianne Buckner, PA-C with Tier 1, evaluated him. (Ex. 10 at 11.) PA Bucknernoted Mr. Thomas injured his low back on August 21, 2014, while lifting a heavy box. 

### Id. Mr. Thomas treated conservatively for two months without any improvement. (Ex. 10 at 5.), On February 16, 2015, Dr. Jestus performed a lumbar microdiscectomy at the L4-L5 level. (Ex. 10 at 4.) The last note from Tier 1 dated February 20, 2015, indicated Mr. Thomas was improving, but still experienced occasional pain. (Ex. 10 at 1.) P A Bucknertook him offwork for another month. (Ex. 10 at2.) Although the parties did not provide any additional records, Mr. Thomas testified he was on medical leave for his low back until May 7, 2015. He then returned to full duty at Wal-Mart. On July 27, 2015, Mr. Thomas filed a Petition for Benefit Determination (PBD) seeking workers' compensation benefits. (Ex. 12 at 6.) In the PBD, he listed his date of injury as September 23, 2014. /d. Mr. Thomas filed an affidavit dated October 26, 2015, in support ofhis Request for Expedited Hearing listing his date ofinjury as August 7, 2014. (Ex. 12 at 10.)

In support ofits position, Wal-Mart submitted the affidavits ofMr. Emmert and Ms. Lewis. Mr. EmmerttestifiedMr. Thomas did not work onAugust 25, 2015. (Ex. 12

1 Neitherparty provided aNotice ofDenial ofBenefitsto the Court. 3at 12.) Ms. Lewis testified that, according to Wal-Mart's attendance records, Mr. Thomas did not work on August 7, August 25, September 15, or September 23, 2014. (Ex. 12 at 14.)

At the hearing, Mr. Thomas admitted he did not work on August 25, 2014. He statedhe did notreport the injury until several weeks after it occurred, and bythe time he did, he had forgotten the day ithappened. Hetestifiedhe did everythingto try to find out the date it happened, buthe did not have any luck. Mr. Thomas did not testify as to any other dates for the work-related accident. While he testified he was a high school graduate, the Court observed Mr. Thomas had a great deal of difficulty in reading a portion ofhis affidavit aloud.

At the hearing, the parties stipulated to the admissibility ofthe medical records, and that Mr. Thomas' average weekly wage was $241.24, resulting in a compensation rate of$160.83.

Mr. Thomas filed a Petition for Benefit Determination seeking medical and temporary disability benefits. The parties did not resolve the disputed issues from the PBD through mediation, andthe Mediating Specialistfiled a Dispute CertificationNotice. Mr. Thomas filed a Request for Expedited Hearing, and the Court heard the matter on December 17, 2015. At the Expedited Hearing, Mr. Thomas asserted he sustained ajob-related injury, andthe Court should deemhis claim compensable. Wal-Mart counteredthatMr. Thomas failed to establish a date of injury, which is an essential element of his claim. Furthermore, Wal-Mart argues the Court should deny Mr. Thomas' claim based on lack ofnotice andthe statute oflimitations. Findings ofFact and Conclusions ofLaw

The Workers' CompensationLaw shall not be remedially or liberally construed in favor of either party but shall be construed fairly, impartially and in accordance with basic principles of statutory construction favoring neither the employee nor employer. Tenn. Code Ann. § 50-6-116 (2014). The employee in a workers' compensation claim has the burden ofproofon all essential elements ofa claim. 

### Tindall
v. Waring ParkAss 'n, 725 S.W.2d 935, 937 (Tenn. 1987);2 

### Scott v. Integrity Staffing Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn. Workers' Comp. App. Bd. Aug. 18, 2015).

2 The Tennessee Workers' Compensation Appeals Board allows reliance on precedent from the Tennessee Supreme Court "unless it is evident that the Supreme Court's decision or rationale relied on a remedial interpretation ofpreJuly 1, 2014 statutes, that it relied on specific statutory language no longer contained in the Workers' Compensation Law, and/or that it relied on an analysis that has since been addressed by the general assembly through statutory amendments." McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *13 n.4 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015). 4An employee need notprove every element ofhis orher claim by a preponderance ofthe evidence in order to obtain reliefat an expedited hearing. 

### McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7- 8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015). At an expedited hearing, an employee has the burden to come forward with sufficient evidence from which the trial court can determine that the employee is likely to prevail at a hearing on the merits. !d. This lesser evidentiary standard "does not relieve an employee of the burden of producing evidence ofan injury by accident that arose primarily out ofand in the course and scope ofemployment at an expedited hearing, but allows somereliefto be granted if that evidence does not rise to the level ofa 'preponderance ofthe evidence."' 

### Buchanan
v. Carlex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6 (Tenn. Workers' Comp. App. Bd. Sept. 29, 2015).

In order to prove a compensable claim, an employee must establish he sustained
an "injury by accident

. . . arising primarily out of and in the course and scope of employment." Tenn. Code Ann. § 50-6-102(14) (2014). The injury is accidental only if it is caused "by a specific incident or set ofincidents

...identifiable by time andplace of occurrence." Tenn. CodeAnn.§ 50-6-102(14)(A) (2014).

In this instance, the Court is convinced Mr. Thomas sustained an injury to his low backwhilepicking up abox ofwaxin the course and scope ofhis employmentwithWalMart. He consistently provided the same history ofinjury to every medical provider and in every accident report. He simply cannot remember the specific date the incident occurred.

In 

### Lee v. Shoney's, Inc., No. M1999-00469-WC-R3-CV, 2000 Tenn. LEXIS 359, at *1-2 (Tenn. Workers' Comp. Panel June 26, 2000), the employee twisted his hip in November and was given lighter duty bythe employeruntil he felt a sharppain in his hip in January. The trial court found the employee suffered a compensable injury, even though the exact date of injury was uncertain, since there was no issue regarding the timeliness ofthe action. !d. at *3.

On appeal, the employer in 

### Lee argued the injury could not have occurred in the
course ofemployment since the employee did not work onthe day the trial court found to be the date ofthe injury. !d. at *4. The Panel held that, "[w]hile the Chancellor may have been mistaken as to the date ofthe injury, the evidence fails to preponderate against the finding that the injury occurred at work and while the employee was performing an assignedtask. The first issue is resolved in favor ofthe employee." !d.

As in 

### Lee, the Court finds that, in this instance, Mr. Thomas is likely to prevail on the issue of whether "the injury occurred at work and while [he] was performing an assigned task." !d. While Tennessee Code Annotated section 50-6-102(14)(A) (2014) requires the injury be "identifiable by time and place of occurrence," it does not

5necessarily require the identification of a specific date of injury. When Mr. Thomas visited N.P. Stover on August 25, 2014, the record indicates he had been suffering from symptoms for "several weeks." (Ex. 7 at 1.) Thus, the Court finds Mr. Thomas likely sustained the low back injury in the first weeks ofAugust 2014. Were there no other issues, the Court would find there was sufficient evidence to find Mr. Thomas would likelyprevail attrial withregardto establishing a compensable injury.
However, Tennessee Code Annotated section 50-6-201(a)(l) (2014) requires an employeetoprovide noticetohis employeronce he has sustained a work-related injury:
(a)(1) Every injured employee or the injured employee's representative shall, immediately uponthe occurrence ofan injury, oras soonthereafter as is reasonable and practicable, give or cause to be given to the employer who has no actual notice, written notice of the injury[.]

. . . No compensation shall be payable under this chapter, unless the written notice is given the employer within thirty (30) days of the accident, unless reasonable excuse for failure to givethenotice is madeto the satisfaction of the tribunal to whichthe claim for compensationmaybepresented.

Inthis matter, Mr. Thomas not onlyprovided insufficient evidence to establish the date of injury, the Court finds Mr. Thomas also provided insufficient evidence to establish when he first provided notice ofhis injury to Wal-Mart. Mr. Thomas testified he told his manager, Mr. Emmert, about his low back injury, but admitted it was some time after the actual incident occurred, and he did not testify as to the actual date. Through his affidavit, Mr. Emmert testified that approximately two weeks after Mr. Thomas first missed work because of back pain, he received a phone call from Mr. Thomas advising him that he hurt his back at work. (Ex. 2 at 1.) However, he does not indicate when Mr. Thomas began missing work or when the call actually occurred. 

### !d. Therefore, there is nothing intherecord to indicatewhenWal-Martreceived actual notice ofMr. Thomas' injury. The employee bears the burden ofproving all essential elements ofhis claim, includingnotice. Scott, supra, at *6.
It is undisputed that Wal-Mart received written notice ofMr. Thomas' injury on October 2, 2014. (Ex. 3 at 1.) However, by that time, assuming Mr. Thomas' accident occurred in the first weeks ofAugust, itwas well past thirty days from the accident, and thus in violation ofTennessee Code Annotated section 50-6-201 (2014). Furthermore, Mr. Thomas did not provide any excuse for failing to provide notice earlier. In his testimony, he candidly admitted he should have notified Wal-Mart earlier, but he simply failedto do so. Therefore, Mr. Thomas did not establish a "reasonableexcuse" for failure to provide timely notice of his work injury. See Tenn. Code Ann. § 50-6-20l(a)(1) (2014). Finally, Tennessee CodeAnnotated section 50-6-20l(a)(3) (2014) provides that:

6No defect or inaccuracy in the notice shall be a barto compensation, unless the employer can show, to the satisfaction ofthe workers' compensation judgebefore which the matter is pending, that the employer was prejudiced by the failure to give the proper notice, and then only to the extent ofthe prejudice.

The Court finds this subsection only applies ifthere has been some notice given within thirty days ofthe injury date, and it is defective in some respect. It would not apply in those instances where the employee did not provide any notice within the mandated timeframe. Otherwise, the bar against compensation if the employee inexcusably fails to provide notice withinthirty days wouldbe oflittle consequence. See Tenn. Code Ann. § 50-6-201(a)(l). Thus, this section would be inapplicable to Mr. Thomas' claim, sincehe admittedlyprovidedno noticewithinthirty days ofhis injury.
Nevertheless, Wal-Mart alleges Mr. Thomas' delay in providing notice did result in prejudice, in that it could not adequately investigate the claim given that Mr. Thomas could not identify the date ofinjury. (T.R. 4 at 4.) Although the Court does not find Wal-Mart was "paralyzed" by the lack ofa specific date ofinjury (T.R. 4 at 4), there is
some merit to the argument. As Mr. Thomas admitted in his testimony, by the time he provided notice ofhis accident, he had forgotten the exact date it occurred. Ifhe had providedtimely notice with an accurate date ofinjury, Wal-Martwould havebeen able to conduct a complete investigation.
Therefore, the Court finds Mr. Thomas provided sufficient evidence to establish he is likely to prevail at a hearing on the merits as to whether he sustained an "accidental injury" in accordance with Tennessee Code Annotated section 50-6-102(14) (2014). However, he failed to come forward with sufficient evidence from which the Court can conclude he provided adequate notice as required by Tennessee Code Annotated section 50-6-201(a)(l) (2014). As a result, the Court finds he is not entitled to workers' compensationbenefits atthis time.

ITIS, THEREFORE, ORDERED as follows:

1. Mr. Thomas' request for workers' compensationbenefits is denied at this time

2. This matter is set for Initial HearingonFebruary 2, 2016, at 9:00a.m. C.T.



### ENTEREDTHISTHE4thDAY OF**JA 6.** 

# ~ Robert V. Durham,Judge CourtofWorkers' Compensation Claims

7Initial Hearing:

An Initial Hearing has been set with Judge Robert Durham, Court of Workers' Compensation Claims. You must call 615-253-0010 or toll-free at 866- 689-9049 toparticipatein theInitialHearing.

Please Note: You must call in on the scheduled date/time to participate. Failure to call in may result in a determination ofthe issues without your further participation. All conferences are setusing CentralTime (CT).

Rightto Appeal:

TennesseeLaw allows anyparty who disagrees with this Expedited Hearing Order to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of Appeal, you must:
1. Completethe enclosed form entitled: "ExpeditedHearingNotice ofAppeal."

2. File the completed form with the Court Clerk 

### within seven business days ofthe date the Workers' CompensationJudge enteredtheExpeditedHearing Order.

3. Serve a copy oftheExpeditedHearingNotice ofAppeal upon the opposingparty.
4. The appealing party is responsible for payment ofa filing fee in the amount of $75.00. Within ten calendar days after the filing ofa notice ofappeal, payment mustbe receivedby check, money order, orcreditcardpayment. Payments canbe made in person at any Bureau office or by United States mail, hand-delivery, or other delivery service. In the alternative, the appealingparty may file an Affidavit ofIndigency, on a form prescribed by the Bureau, seeking a waiver ofthe filing fee. The Affidavit ofIndigency may be filed contemporaneously with the Notice ofAppeal ormustbe filed withinten calendar days thereafter. The Appeals Board will consider the Affidavit ofIndigency and issue an Order granting or denying the request for a waiver of the filing fee as soon thereafter as is practicable. Failure to timely pay the filing fee or file the Affidavit of Indigency in accordance with this section shall result in dismissal of the appeal.
5. The parties, having the responsibility of ensuring a complete record on appeal, may request, from the Court Clerk, the audio recording of the hearing for the purpose ofhaving a transcript prepared by a licensed court reporter and filing it

8

### with the Court Clerk within ten calendar days of the filing of the Expedited Hearing Notice ofAppeal. Alternatively, the parties may file ajoint statement of the evidence within ten calendar days of the filing of the Expedited Hearing Notice ofAppeal. The statement ofthe evidence must convey a complete and accurate account of what transpired in the Court of Workers' Compensation Claims and must be approved by the workers' compensation judge before the record is submittedto the ClerkoftheAppeals Board.

6. Ifthe appellant elects to file a position statement in support ofthe interlocutory appeal, the appellant shall file suchposition statementwiththe Court Clerk within five business days ofthe expiration ofthe time to file a transcript or statement of the evidence, specifying the issues presented for review and including any argument in support thereof. A party opposing the appeal shall file a response, if any, with the Court Clerk within five business days ofthe filing ofthe appellant's position statement. All position statements pertaining to an appeal of an interlocutory order should include: (1) a statement summarizing the facts ofthe
case from the evidence admitted during the expedited hearing; (2) a statement summarizing the disposition ofthe case as a result ofthe expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an argument, citing appropriate statutes, case law, orother authority.

9APPENDIX


### Exhibits:

I. AffidavitofTimmyThomas dated October26, 2015; 2. Affidavit ofJoshuaEmmert; 3. Affidavit ofBrandace Lewis; 4. Associate IncidentReport; 5. FirstReport oflnjury; 6. Wage Statement; 7. Medical Records ofTLCFamily Care, P.C.; 8. MRI report from PremierMedical Center; 9. Medical records from QualityMedical Center; I0. Medical records from Tier I Neurosurgery; II. Consent forms from Tier I Neurosurgery; I2. Wal-Mart's collected exhibits:
a. C-4I Wage Statement, b. Associate Statement,
c. Associate IncidentReport, d. C-42 Choice ofPhysicianForm,
e. Petition for BenefitDetermination dated 7/27 /I5, f. Petition for BenefitDetermination dated 10/06/I5, g. Affidavit ofTimmy Thomas, h. Affidavit ofJoshuaEmmert, i. 

### Affidavit ofBrandaceLewis with attachments.

Technical Record:

I. Dispute CertificationNotice; 2. Request for ExpeditedHearing; 3. Objectionto DCN; 4. Request for ExpeditedHearing; 5. Employer's Motionto Continue ExpeditedHearing; and, 6. OrderDenyingEmployer'sMotionto Continue.

10CERTIFICATE OF SERVICE



### I hereby certify that a true and correct copy of the Expedited Hearing Order Denying Benefits was sent to the following recipients by the following methods of service onthis the _th

### day ofJanuary, 2016.

Name Certified Mail TimmyThomas X Celeste Watson Via Via Service sentto: Fax Email X Timmy.thomas22@yahoo.com X cmwatsonlaw@gmail.com

Penny Shrum, ClerkofCourt CourtofWorkers' Compensation Claims WC.CourtClerk@tn.gov

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