## FILED Apr 17, 2018 04:05 PM(CT) TENNESSEE COURT OF WORKERS' COMPENSATION

CLAIMSMs. Miles went to Jackson-Madison County General Hospital. A nurse's triage document recorded that Ms. Miles reported backpain for "3 months" butthat itworsened that morning. She said her pain worsened when moving around and lifting at work but denied any "known injury." During an examination, Ms. Miles told another provider that her back pain began "2 days ago." That provider listed the "location where the incident occurred" as "VARIOUS" and addedMs. Miles said she "cooks, has 7kids" and engages in "frequent lifting/tuming/[and] bending." The provider called the injury "repetitive," diagnosed a back strain, and restricted Ms. Miles from working for three days.

Ms. Miles testified she presented the emergency room note to Mr. Robinson, who then gave her "FMLA papers." Ms. Miles said she had never claimed workers' compensation benefits before and knew nothing of the system. She returned to Food Giant on December 16 but could not work because ofpain. Mr. Robinson and the deli manager sentherhome.

Ms. Miles saw her primary health care provider, Susan Yeomans, a Family Nurse Practitioner (FNP), that day. Ms. Miles said she told FNP Yeomans about the December 12 incident, but the record indicates only that she suffered a "strain while working [but] not workers comp." The record stated that Ms. Miles constantly lifted and cooked at Food Giant. Further, Ms. Miles complained her back had hurt for two weeks. FNP Yeomans recommended an MRI and that Ms. Miles remain off work until completed. Ms. Miles's counsel later asked Ms. Yeomans in a letter ifshe believed Ms. Miles's back pain arose primarily out ofthe employment; Ms. Yeomans indicated it did.

Food Giant contended its first notice that Ms. Miles claimed a work injury occurred when Ms. Miles's attorney contacted it in January 2017. Itthen denied the claim based on Mr. Robinson's statement that Ms. Miles specifically denied a work injury. It further assertedthe medicalrecords contained no history ofthe alleged injury.

Ms. Miles testified she was "fine" before the incident. She said she told both the emergency room providers and Ms. Yeomans about the incident at Food Giant. She contended the hospital records, "as often seen with hospital records," are not specific as to medical causation; however, the nurse practitioner's opinion is sufficient under the relaxed burden of an expedited hearing. Ms. Miles requested a panel ofphysicians to evaluate her back, payment of temporary disability benefits from the date of injury forward, and attorney's fees under Tennessee Code Annotated section 50-6-226(d)(l)(B) for Food Giant's failure to timely initiate benefits. 

### Findings ofFact and Conclusions ofLaw

Ms. Miles must present sufficient evidence that she would likely prevail at a hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(l) (2017). The Court must construe the law fairly and impartially, favoring neither Ms. Miles nor Food Giant. Id. §

250-6-116.

Ms. Miles and Mr. Robinson both appeared sincere in theirrespective descriptions ofthe events ofDecember 12. The Court cannot say that either witness was more or less credible than the other. Thus, the Court will look to the documentary evidence to determine ifMs. Miles satisfiedthe applicable burden ofproof.

An employee's lay testimony along with corroborative expert testimony may support a finding that an employee would prevail at a hearing on the merits. Lamb v. KARM Thrift Stores, LLC, 2017 TN Wrk. Comp. App. Bd. LEXIS 42, at *9 (July 26, 2017). Here, however, the Court cannot find the medical evidence corroborates Ms. Miles's testimony. To the contrary, two separate authors at the emergencyroom recorded Ms. Miles'spain began eithertwo days orthree months prior. Admittedly, Ms. Miles said herpain worsenedthat morning, butthe records also state "no known injury" and notably contain no reference to the specific incident. Ms. Yeomans also recorded no history of the specific incident. A "specific incident" identifiable by time and place ofoccurrence is the first element ofthe definition for a compensable injury. Tenn. Code Ann. § 50-6- 102(14)(A). The absence of any reference to an incident allegedly occurringjust two hours previous is compelling. Moreover, although Ms. Miles testified she did not have priorproblems withherback, the records indicate ahistory ofbackpain.

Ms. Miles argues Lewis v. MerryMaid, 2016 TN Wrk. Comp. App. Bd. LEXIS 19 (Apr. 20, 2016) requires that Food Giant provide her a panel. The Court respectfully disagrees. In Lewis, the employee reported a specific incident that caused back pain to two different supervisors. The employerdid not refute thatreporting. Further, the medical evidence supported the employee's allegations that she suffered back pain while performing a specifictaskwith no medical evidence to the contrary. Id. at *7-8.
Here, Food Giant refuted Ms. Miles's account regarding the alleged Injury. Moreover, the medical records contain evidence at variance with Ms. Miles's version of how herpainbegan.

For these reasons, the Court holds Ms. Miles did not establish she would likely prevail at a hearing on the merits as to whether she suffered an injury primarily arising from her employment. Thus, the Court need not address her specific requests for benefits.

IT 

### IS, THEREFORE, ORDERED as follows:

1. The Court denies Ms. Miles's claim against Food Giant and its workers' compensation carrier for the requested benefits at this time.

2. This matter is set for a Status Hearing on Monday, July 9, 2018, at 9:30 a.m.

3Central Time. You must call toll-free 855-543-5038 to participate in the hearing. Failure to call may result in a determination ofthe issues without your further participation

. ,.-., ENTERED this the 

### 17th day ofApr

## ~nsation Claims

APPENDIX

Exhibits: 1. Medical Records of Jackson-Madison Co

. General Hospital and Tri-County Family Medicine and Urgent Care

Technical record: 1. Petition for BenefitDetermination 2. Dispute CertificationNotice 3. Request for Expedited Hearing 4. Employee'sPre-HearingBriefand Witness List 5. Employer'sPre-HearingBrief

CERTIFICATE OF SERVICE

I certify that a true and correct copy ofthis Expedited Hearing Order was sent to the following recipients by the following methods ofservice on this the 1 

## ih day ofApril, 2018.

Name MonicaRejaei, Esq., Attorney for Em loyee James H. Tucker, Jr., Esq., Attome for Em lo er ViaEmail 

## x



## x Service sentto: mrejaei@nstlaw.com
cmc rath nstlaw.com jtucker@manierherod.com dstevens manierherod.com 

# J2 )llfk--'**Shrum,** Clerk ofCourt Court ofWorkers' Compensation Claims

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