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IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT NASHVILLE

Gaynell Portilla, )

)

Docket No.: 2015-06-0024

Employee, ) State File No.: 92928-2014

v. )

) Judge Joshua Davis Baker

Tyson Foods, )

)

Employer. )

COMPENSATION HEARING ORDER

THIS CAUSE came before the undersigned Workers’ Compensation Judge pursuant 

to Tennessee Code Annotated section 50-6-239 (2014) for a Compensation Hearing. The 

employee, Gaynell Portilla, seeks permanent workers’ compensation benefits. The dispute 

concerns whether Ms. Portilla’s injury arose primarily out of her work for Tyson or resulted 

from an idiopathic event. The Court finds that Ms. Portilla’s injury did not arise primarily 

out of her work with Tyson and dismisses her claim.

History of Claim

Ms. Portilla is a seventy-six-year-old resident of Sumner County, Tennessee. She 

worked packaging food in Tyson’s food processing plant.

On November 18, 2014, Ms. Portilla slipped on the landing at the top of the stairs as 

she made her way to break area for lunch. Asbiel Benitez, a front-line supervisor for Tyson, 

arrived on the scene of the accident immediately after co-workers helped Ms. Portilla up 

from the floor. He called for assistance for Ms. Portilla. Her direct supervisor and plant

healthcare workers placed Ms. Portilla in a wheelchair and took her to Tyson’s health clinic. 

Mr. Benitez inspected the area where she fell for hazards. He found nothing wet or slippery 

in the area and found no other hazards, such as meat or water, which could have caused Ms. 

Portilla to fall. 

Kimberly Pedersen, a nurse and the safety manager for Tyson, stated in her deposition 

that she also investigated the accident area shortly after Ms. Portilla fell. (Ex. 2.) Like Mr. 
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Benitez, Nurse Pedersen also found no hazards on the floor. Id. at 9-10. Video cameras in 

the plant also captured the fall. (Ex. 1.) 

Ms. Portilla denied that Mr. Benitez arrived on the scene first. She testified she saw 

Nurse Pederson and her supervisor, Janice, inspecting the area but did not see Mr. Benitez. 

According to Ms. Portilla, her supervisor stated that she could not find anything on the floor 

and asked Ms. Portilla to “look at the bottom of her shoes.” Ms. Portilla testified that she felt 

something slippery on the bottom of her shoes. 

After the fall, Ms. Portilla went to the Tyson health clinic. Ms. Portilla maintains that 

Mr. Benitez escorted her to the health clinic; Mr. Benitez denied escorting her. 

Following the accident, Ms. Portilla filled out a form entitled “Team Member 

Statement of Injury or Illness.” (Ex. 3.) In the statement, Ms. Portilla wrote “top of stairs 

sliped [sic] and fell or triped [sic] and fell” as the description of what she was doing when the 

accident occurred. Id. In the description of how the injury occurred, she wrote “I either 

sliped [sic] or triped [sic] and fell.” Id. Finally, in the portion of the form that asks if 

anything could have prevented the accident, Ms. Portilla wrote, “I don’t know.” Id.

Tyson provided Ms. Portilla medical care and physical therapy after the accident but 

later denied the claim. As the basis for denial, Tyson wrote, “Investigation found that injury 

was the result of her tripping over her own feet and not the result of her work or work 

environment.” (Ex. 5.) 

Ms. Portilla filed a Petition for Benefit Determination seeking temporary disability 

and medical benefits. (T.R. 1.) The parties did not resolve their dispute through mediation,

and the Mediating Specialist issued a Dispute Certification Notice. (T.R. 2.) Ms. Portilla 

requested an Expedited Hearing. (T.R. 3.) After a hearing, the Court denied her request for 

temporary disability and medical benefits. (T.R. 4.) Tyson moved to dismiss the claim, and 

the Court denied its motion. (T.R. 6, 7.) The parties appeared for a compensation hearing on 

October 15, 2015.

Findings of Fact and Conclusions of Law

In order for an injury to be compensable, it must have been accidental. Under the 

Tennessee 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 
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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).1

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). In Tennessee, there is no formula that clearly defines the line between accidents and 

injuries that arise out of and in the course of employment, and those that do not. Instead, 

each case must be decided with respect to its own attendant circumstances and not by resort 

to a formula. Bell v. Kelso Oil Co., 597 S.W.2d 731, 734 (Tenn. 1980).

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). Tennessee Code Annotated section 50-6-239(c)(6) provides that, 

“[u]nless the statute provides for a different standard of proof, at a hearing the employee shall

bear the burden of proving each and every element of the claim by a preponderance of the 

evidence.” Tenn. Code Ann. § 50-6-239(c) (2014). 

It is well established that the mere presence of the employee in the workplace at the 

time the injury occurs does not establish that the injury arose out of the employment. Instead, 

the injury must result from a danger or hazard peculiar to the work or be caused by a risk 

inherent in the nature of the work. Thornton v. RCA Serv. Co., 221 S.W.2d 954, 955 (Tenn. 

1949). For example, the Supreme Court affirmed the trial court’s decision denying recovery 

to an employee who fell at work due to a pre-existing spinal condition that caused his legs to 

tire and go numb. See Greeson v. Am. Lava Corp., 392 S.W.2d 931, 935 (Tenn. 1965). In 

fact, “Tennessee courts have consistently held that an employee may not recover for an injury 

occurring while walking unless there is an employment hazard, such as a puddle or step, in 

addition to the injured employee’s ambulation.” Wilhelm v. Krogers, 235 S.W.3d 122, 128-

29 (Tenn. 2007). Furthermore, idiopathic injuries—those with an “unexplained origin or 

cause”—do not arise out of the work unless there is “some condition of the employment that 

presents a peculiar or additional hazard.” Veler v. Wackenhut Servs., Inc., 2011 Tenn. LEXIS

78, at *9 (Tenn. Workers’ Comp. Panel 2011). 

 

1 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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The Court took testimony in this claim at an Expedited Hearing.2 Following the 

hearing, the Court entered an order denying Ms. Portilla medical benefits because the 

evidence at that time showed no hazardous condition in the area where Ms. Portilla fell. 

(T.R. 4.) The Court did not, however, find Ms. Portilla’s claim noncompensable, giving her 

an opportunity to submit additional proof to support her argument that a substance on the 

floor or on the bottom of her shoes caused her to slip. The evidence Ms. Portilla presented at 

the Compensation Hearing did not materially differ from the evidence she presented at the 

Expedited Hearing. 

Tyson maintains that Ms. Portilla suffered an idiopathic fall and that her claim is not 

compensable. It relies on the video surveillance, Nurse Pedersen’s deposition and Mr. 

Benitez’s testimony. For the following reasons, the Court agrees with Tyson. 

The video evidence does not show a hazardous condition or indicate that Ms. Portilla 

slipped. In the video footage, the Court observed that Ms. Portilla climbed the stairs and 

took a couple of steps on the landing before her feet became tangled. She then spun around

and fell backwards onto the floor. The Court did not observe that her feet slipped. Instead, 

her feet appeared to maintain good traction on the floor until she tripped over them. (Ex. 1.)

Second, the Court observed several other workers climb the stairs both before and 

after Ms. Portilla. At least one of the workers appeared to step on the exact spot where Ms. 

Portilla stepped when she fell. The Court did not observe that this worker or any of the other 

workers slipped. Furthermore, no one climbing the stairs attempted to avoid a hazardous or

slippery area on the floor, which leads the Court to conclude that no hazard existed. 

Finally, Mr. Benitez testified that he inspected the area where Ms. Portilla fell almost 

immediately after the accident occurred and found no hazards in the area that could have 

caused Ms. Portilla to fall. Nurse Pedersen corroborated Mr. Benitez’s testimony in her 

deposition. (Ex. 2.)

Ms. Portilla bears the burden of proof in this action. The Court finds nothing in the 

evidence, other than Ms. Portilla’s testimony that she felt something slippery on her shoes, 

showing that a hazard caused her to fall. Further, Mr. Benitez’s and Nurse Pedersen’s 

testimony confirm that Tyson inspected the area after Ms. Portilla’s fall and found no 

hazards. The Court must view the proof presented fairly, impartially, and in a manner 

favoring neither Ms. Portilla nor Tyson. See Tenn. Code Ann. § 50-6-116. Upon 

consideration of the evidence, the Court finds that Ms. Portilla failed to carry her burden of 

proving she suffered a compensable injury and denies her request for relief. 

 

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In determining this claim, the Court takes judicial notice of testimony heard and exhibits admitted into evidence at 

the prior in-person Expedited Hearing. See Hughes v. New Life Dev. Corp., 387 S.W.3d 453, 457 n.1 (Tenn. 2012), 

holding, “we are permitted to take judicial notice of the facts from earlier proceedings in the same action.”
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IT IS, THEREFORE, ORDERED that Ms. Portilla’s claim for workers’ compensation 

benefits against her employer, Tyson, is dismissed with prejudice

ENTERED ON THE 13

TH DAY OF NOVEMBER, 2015.

_____________________________________

Joshua Davis Baker, Judge

Court of Workers' Compensation Claims
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Right to Appeal:

Tennessee Law allows any party who disagrees with this Compensation 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: “Compensation Hearing Notice of Appeal.”

2. File the completed form with the Court Clerk within thirty days of the date the 

Compensation Order was entered by the Workers’ Compensation Judge. See Tenn. 

Comp. R. & Regs. 0800-02-22-.01(1)(b) (2015).

3. Serve a copy of the Request for 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 party filing the notice of appeal, 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 fifteen calendar days of the filing of the 

Expedited Hearing Notice of Appeal. Alternatively, the party filing the appeal may 

file a joint statement of the evidence within fifteen calendar days of the filing of the 

Compensation 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. See Tenn. Comp. R. 

& Regs. 0800-02-22-.03 (2015).

6. After the Workers’ Compensation Judge approves the record and the Court Clerk 

transmits it to the Workers’ Compensation Appeals Board, the appeal will be 
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docketed and assigned to an Appeals Board Judge for Review. At that time, a 

docketing notice shall be sent to the parties. Thereafter, the parties have fifteen (15) 

calendar days to submit briefs to the Appeals Board for consideration. See Tenn. 

Comp. R. & Regs. 0800-02-22-.02(3). 
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APPENDIX

Exhibits:

1. Video surveillance footage

2. Deposition of Kimberly Pedersen

3. Team Member Statement of Injury or Illness

4. First Report of Injury

5. Notice of Claim Denial

6. Choice of Physician Form

Technical Record:

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1. Petition for Benefit Determination

2. Dispute Certification Notice

3. Request for Expedited Hearing

4. Expedited Hearing Order

5. Initial Hearing Order

6. Tyson’s Motion to Dismiss

7. Order Denying Tyson’s Motion to Dismiss

8. Tyson’s Witness and Exhibit List

 

3 The Court did not consider attachments to the above filings unless admitted into evidence during the Compensation 

Hearing. The Court considered factual statements in the above filings or any attachments to them as allegations unless 

established by the evidence.
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CERTIFICATE OF SERVICE

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

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

November, 2015.

Name Certified 

Mail

First 

Class 

Mail

Via 

Fax

Fax 

Number

Via 

Email

Email Address

Gaynell Portilla X gaynellart49@bellsouth.net

Terry Hill X thill@manierherod.com

_____________________________________

Penny Shrum, Clerk

Tennessee Court of Workers' Compensation Claims

WC.CourtClerk@tn.gov