IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT NASHVILLE

ANDY HUMPHREY, )

 Employee, ) Docket No. 2015-06-0107

)

v. ) State File No. 2015184197

)

LEWISBURG RUBBER AND 

GASKET,

)

)

Judge Joshua Davis Baker

 Employer,

And

ACCIDENT FUND INS. CO.,

 Insurer.

)

)

)

)

)

)

ORDER DENYING TEMPORARY BENEFITS

(RECORD REVIEW ONLY)

This cause came before the undersigned on a Request for Expedited 

Hearing filed by the employee, Andy Humphrey, pursuant to Tennessee Code 

Annotated § 50-6-239 (2014). Mr. Humphrey seeks accrued and future temporary 

disability benefits and requests the Court enter an order based on review of the 

case file. The central legal dispute concerns whether Mr. Humphrey’s injury arose 

primarily out of and in the course and scope of his employment with the employer, 

Lewisburg Rubber and Gasket. For the reasons provided below, the Court finds 

Mr. Humphrey failed to carry his burden of proving that he is likely to succeed at 

a hearing on the merits in proving a causal relationship between his injury and his 

work for the employer. The Court denies his claim for temporary disability 

benefits.

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1 Additional information regarding the documents the Court considered in this record review is attached to 

this Order as an Appendix.
2

Claim History

Mr. Humphrey is a sixty-three-year-old resident of Marshall County, 

Tennessee. On December 23, 2014, a little less than two weeks prior to the date 

of the alleged accident, Mr. Humphrey presented at Fast Pace Medical Clinic, 

PLLC “with a chief complaint of pain of the left lower extremity.” (R. 4.) Fast 

Pace’s providers diagnosed Mr. Humphrey with a sprain or strain and instructed 

him to follow up with his primary care physician. Id.

In his Petition for Benefit Determination (PBD), Mr. Humphrey alleged 

that, on January 5, 2015, he fell and fractured his femur while walking from his 

car to the door of his workplace at Lewisburg Rubber. He wrote, “walking on 

crutches, due to sprained mussel [sic], slipped and fell on uneven ground in 

parking lot, not handicapped [sic] friendly.” (R. 5.) 

That same day, Mr. Humphrey went to Marshall Medical Center where 

providers transferred him to Williamson Medical Center upon determining he had 

a fractured hip. At Williamson Medical Center, the medical notes indicate Mr. 

Humphrey told Dr. Charnes he developed a “twinge in the left hip” while stepping 

over his cats as he walked down the stairs to his basement carrying groceries

approximately two weeks before the date of the alleged workplace accident. (R. 

9.)

Following the incident at home, Dr. Charnes’ notes indicate Mr. Humphrey 

experienced left-sided groin pain over the next several days, and went to a walk-in 

clinic where he received medication. Id. His pain, however, continued to worsen

until he “felt kind of a pop in the left hip” while getting into his truck to go to 

work the morning of January 5. When he arrived at work, the medical records 

indicate that the he felt a similar discomfort in his hip while exiting his truck. He 

used crutches to ambulate and received assistance from co-workers. Despite the 

crutches and assistance of co-workers, Mr. Humphrey “eventually ended up flat on 

his back in the parking lot.” Id. In the medical notes, Dr. Charnes stated the 

following:

[T]alking with the patient I feel that he initially injured that hip when 

he was walking down the stairs a few weeks back with his groceries, 

maybe that was the initial injury and then he had a further break 

today. Unclear on that, either way he has a left hip fracture. 

Id.

Dr. Perkinson, an orthopedic surgeon, operated on Mr. Humphrey’s hip on 

January 6, 2015. (R. 7.) The operation note states, “The patient [is] a 62-year-old 
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male who reports an approximately 2-week history or antecedent left hip pain after 

going up stairs. He subsequently had a fall yesterday and was unable to 

ambulate[.]” Id. 

Lewisburg Rubber filed a First Report of Injury on January 20, 2015. (R. 

1.) The report stated it received notice of the injury on January 17, 2015. On 

January 28, 2015, Lewisburg Rubber denied Mr. Humphrey’s claim, asserting that 

his injury did not occur in the course and scope of his employment. (R. 2.)

On May 13, 2015, Dr. Perkinson wrote a letter stating he believed Mr. 

Humphrey’s femur fracture “was caused by his fall and not from a prior injury.” 

(R. 3.) Mr. Humphrey filed a PBD seeking temporary disability and medical 

benefits. (R. 5.) Mr. Humphrey and Lewisburg Rubber did not settle their dispute 

through mediation, and the Mediating Specialist filed a Dispute Certification 

Notice (DCN). (R. 14.) The DCN, however, did not list medical benefits as a 

disputed issue. 

When neither party requested a hearing, the Court issued a show cause 

order. Following a hearing, the Court declined to dismiss the claim but ordered 

Mr. Humphrey to request a hearing before October 21, 2015. (R. 13.) Mr. 

Humphrey filed a Request for Expedited Hearing and asked the Court to issue a 

ruling based on the documents in the claim file. (R. 15.) Mr. Humphrey did not 

provide an affidavit with his Request for Expedited Hearing. Lewisburg Rubber 

did not file an objection to the Court considering Mr. Humphrey’s Request for 

Expedited Hearing despite his failure to file an affidavit. 

Application of Law and Conclusion

The Workers’ Compensation Law 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 of proof on all essential elements of a 

claim. Tindall v. Waring Park Ass’n, 725 S.W.2d 935, 937 (Tenn. 1987); 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). An employee 

need not prove every element of his or her claim by a preponderance of the 

evidence in order to obtain relief at 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. Id.
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Under the Workers’ Compensation Law, an injury is accidental “only if the 

injury is caused by a specific incident, or set of incidents, arising primarily out of 

and in the course and scope of employment, and is identifiable by time and place 

of occurrence.” Tenn. Code Ann. § 50-6-102(13)(A) (2014). “An injury ‘arises 

primarily out of and in the course and scope of employment’ only if it has been 

shown by a preponderance of the evidence that the employment contributed more 

than fifty percent (50%) in causing the injury, considering all causes[.]” Tenn. 

Code Ann. § 50-6-102(13)(B) (2014).

The statutory requirements that an injury arise out of and in the course of 

the employment are not synonymous “although both elements exist to ensure a 

work connection to the injury for which the employee seeks benefits.” 

Blankenship v. Am. Ordnance, 164 S.W.3d 350, 354 (Tenn. 2005).2“Arising out 

of employment” refers to causation. Reeser v. Yellow Freight Sys., 938 S.W.2d 

690, 692 (Tenn. 1997). An injury arises out of employment when there is a causal 

connection between the resulting injury and the conditions under which the work 

is required to be performed. Fritts v. Safety Nat'l Cas. Corp., 163 S.W.3d 673, 

678 (Tenn. 2005). An injury occurs in the course of employment if it takes place 

while the employee performs a duty he or she is employed to perform. Fink v. 

Caudle, 856 S.W.2d 952, 958 (Tenn. 1993). Thus, the “course of employment” 

requirement focuses on the time, place, and circumstances of the injury. Saylor v. 

Lakeway Trucking, Inc., 181 S.W.3d 314, 318 (Tenn. 2005). 

Here, Dr. Charnes’ records show that Mr. Humphrey told him he felt a 

“twinge” in his hip several weeks before January 5, 2015, while carrying groceries 

and stepping over his cats as he walked down the basement stairs in his home. 

The pain progressively grew worse. On January 5, 2015, he felt a “pop” in his hip 

while getting into, or out of, his truck. He described the pop as “very painful,” and

indicated he could no longer bear weight on his leg. He then used crutches to 

ambulate towards the office door. Coworkers assisted Mr. Humphrey but he 

“eventually ended up flat on his back in the parking lot.” The medical records do 

not show that Mr. Humphrey told Dr. Charnes he fell in the parking lot. Instead, 

the Court reads the records as showing that Mr. Humphrey was already in 

considerable pain before he “ended up on his back” in the parking lot. 

 

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 of pre-July 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).
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Additionally, the January 6, 2015 operation note from Dr. Perkison states

that Mr. Humphrey experienced two weeks of left hip pain after going up stairs 

and then had a fall “yesterday”—January 5, 2015. The notes state nothing about 

the circumstances of the fall including where, or when, it occurred. 

Mr. Humphrey maintains in his PBD that he fell in the parking lot. He 

attributes his broken femur to the fall. Mr. Humphrey, however, provided no 

sworn testimony via affidavit to support his claim. Accordingly, the only credible 

evidence before the Court regarding causation comes from the statements 

attributed to him through the medical records. The Court finds the contents of 

these statements insufficient to establish that Mr. Humphrey suffered an injury by 

accident as defined by the Workers’ Compensation Law. Instead, the medical 

records present more questions concerning the cause of his injury than answers. 

Some of these questions might have been answered if Mr. Humphrey had filed an 

affidavit supporting his Request for Expedited Hearing. 

For these reasons, the Court finds that Mr. Humphrey is not likely to 

succeed at a hearing on the merits based on the documentation contained in the 

claim file. Accordingly, Mr. Humphrey’s claim for temporary disability benefits 

is denied at this time. 

IT IS, THEREFORE, ORDERED as follows:

1. Mr. Humphrey’s claim for temporary disability benefits is denied at this 

time.

2. This matter is set for a Scheduling Hearing on December 1, 2015, at 9:30

a.m. (CST).

ENTERED ON THIS THE 17th DAY OF NOVEMBER, 2015.

____________________________________

Joshua Davis Baker, Judge

Court of Workers’ Compensation Claims

Scheduling Hearing:

A Scheduling Hearing has been set with Judge Joshua Davis Baker, 

Court of Workers’ Compensation Claims. You must call 615-741-2113 or toll 

free at 855-874-0474 to participate in the Hearing.
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Please Note: You must call in on the scheduled date/time to 

participate. Failure to call in may result in a determination of the issues 

without your further participation. All conferences are set using Central 

Time (CT).

Right to Appeal:

Tennessee Law allows any party 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. Complete the enclosed form entitled: “Expedited Hearing Notice of 

Appeal.”

2. File the completed form with the Court Clerk within seven business 

days of the date the Workers’ Compensation Judge entered the 

Expedited Hearing Order.

3. Serve a copy of the Expedited Hearing Notice of Appeal upon the 

opposing party. 

4. The appealing party is responsible for payment of a filing fee in the 

amount of $75.00. Within ten calendar days after the filing of a 

notice of appeal, payment must be received by check, money order, 

or credit card payment. Payments can be made in person at any 

Bureau office or by United States mail, hand-delivery, or other 

delivery service. In the alternative, the appealing party may file an 

Affidavit of Indigency, on a form prescribed by the Bureau, seeking 

a waiver of the filing fee. The Affidavit of Indigency may be filed 

contemporaneously with the Notice of Appeal or must be filed 

within ten calendar days thereafter. The Appeals Board will 

consider the Affidavit of Indigency 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 of having a transcript prepared by a 

licensed court reporter and filing it with the Court Clerk within ten 

calendar days of the filing of the Expedited Hearing Notice of 

Appeal. Alternatively, the parties may file a joint statement of the
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evidence within ten calendar days of the filing of the Expedited 

Hearing Notice of Appeal. The statement of the 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 submitted to 

the Clerk of the Appeals Board.

6. If the appellant elects to file a position statement in support of the 

interlocutory appeal, the appellant shall file such position statement 

with the Court Clerk within three business days of the expiration of 

the 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 three business days of the filing of 

the appellant’s position statement. All position statements pertaining 

to an appeal of an interlocutory order 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.
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APPENDIX

1. First Report of Injury, filed January 20, 2015

2. Notice of Denial of Claim for Compensation, dated January 28, 2015

3. May 13, 2015 letter from Dr. Brian T. Perkinson

4. Medical records of Fast Pace Medical Clinic, PLLC

5. Petition for Benefit Determination

6. Medical records of Williamson Medical Center

7. Medical records of Dr. Perkinson

8. Medical records of Dr. Calendine

9. Medical records of Dr. Charnes

10.X-ray

11.Lab result

12.Pay checks

13.Show Cause Hearing Order

14.Dispute Certification Notice

15.Request for Expedited Hearing

16.Lewisburg Rubber and Gasket’s letter to the Mediating Specialist
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CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was sent to the 

following recipients by the following methods of service on this the ___day of 

November, 2015.

Name Certified 

Mail

Via 

Fax

Via 

Email

Email Address

Andy Humphrey x Andh1@bellsouth.net

Gordon Aulgur x Gordon.aulgur@accidentfund.com

_____________________________________

Penny Shrum, Clerk

Tennessee Court of Workers’ Compensation 

Claims

WC.CourtClerk@tn.gov

17th