IN THE COURT OFWORKERS' COMPENSATION CLAIMS ATMEMPHIS ERNESTPEEPLES Employee, 

### v. BAPTISTMEMORIAL HOSPITAL MEMPHIS Employer, And BRENTWOOD SERVICESADMIN. TPA. ) DocketNo.: 2015-08-0268 ) ) State File No.: 31748-2015 ) ) Judge Amber E. Luttrell ) ) ) ) ) )

EXPEDITED HEARING ORDERDENYINGMEDICALAND TEMPORARY DISABILITYBENEFITS (RECORD REVIEW ONLY)

THIS CAUSE came before the undersigned Workers' Compensation Judge upon the Request for Expedited Hearing (REH) filed by the employee, Ernest Peeples, pursuant to Tennessee Code Annotated section 50-6-239 (2014). Mr. Peeples seeks medical and temporary disability benefits. Mr. Peeples requested the Court render its decision based upon a review ofthe case file without an evidentiary hearing. Baptist Memorial Hospital did not objectto this request. 1 Upon review of the file, the Court finds that no affidavit accompanied Mr. Peeples' REH as required by Tennessee Compilation Rules and Regulations 0800-02-21- .14(l)(a) (2015). Thus, the Court must deny Mr. Peeples' REH at this time. Even ifMr. Peeples' REH complied with the procedural affidavit requirement, the Court further finds the record is insufficient at this time to prove Mr. Peeples is likely to prevail at a hearing onthe merits on the issue ofcompensability.

1By making an on-the-record determination, the Court makes no decision as to the admissibility ofthe information submitted in the case file absent an objection from a party. The Court notes in this case the parties did notraise any objection to admissibility ofany information in the file; therefore, the Courtreviewed and consideredthe entire case file in making its determination.History ofClaim Mr. Peeples is a fifty-seven-year-old resident ofShelby County, Tennessee. (T.R. 1.) He worked as a floor finisher for Baptist Memorial Hospital-Memphis. !d. Mr. Peeples alleged a work injury to his right knee. !d. Mr. Peeples stated in a recorded statement taken by the workers' compensation carrier that on the date ofinjury he was waiting on the floor to dry when his right legjust gave out. (Ex. 7 at 3.) Baptist denied the claim stating, "Claim does not appear to be compensable. Not specific cause of Ernest'srightknee giving out." (Ex. 4.)
Mr. Peeples filed a Petition for BenefitDetermination (PBD)(T.R. 1.) Mr. Peeples described the alleged injury in the PBD by stating, "Overyears in the position as a floor care employee the condition of my injury knee is in relationship ofthe job at Baptist Hospital." !d. The parties did not resolve the disputed issues through mediation, and the Mediation Specialist filed a DCNonAugust 13, 2015. (T.R. 2.) Mr. Peeples filed an REH on September 18, 2015. (T.R. 3.) In its response to Mr. Peeples' REH, Baptist raised the issue that Mr. Peeples did not file the required supporting affidavit in compliance with Tennessee Compilation Rules and Regulations 0800-02-21-.14(l)(a) (2015). (T.R. 4.) Baptist further contended that Mr. Peeples failed to meet his burden ofproving a compensable work injury to his knee in the course and scope ofhis employmentwithBaptist. !d. Findings ofFact and Conclusions ofLaw 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 ofhis or her 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.
In Hadzic v. Averitt Express, the Workers' Compensation Appeals Board specifically addressed the need for supporting affidavits to an REH. Hadzic v. Averitt Express, No. 2014-02-0664, 2015 TN Wrk. Comp. App. Bd. LEXIS 14, at *7-8 (Tenn. 2Workers' Comp. App. Bd. May 18, 2015). The Board cited Tennessee CompilationRules and Regulations 0800-02-21-.14(1) (a) (2015) as follows: (1) After a case is placed on the docket, ifthere is a dispute over temporary disability or medical benefits, either party may request an expediting [sic] hearing of the issue of temporary disability or medical benefits by indicating its desire for an expedited hearing on the request for hearing form orby a [sic] filing a separate motion. The indication ofthe desire for an expedited hearing on the request for hearing form shall serve as the motion for expeditedhearing. (a) All motions for expedited hearing must be accompanied by affidavits and any other information demonstrating that the employee is entitled to temporary disability or medical benefits. (Emphasis added.) !d. The Boardheld that the words "all" and "must"in the rule require that an affidavit accompany every REH, without exception, for it to bevalid. !d. at

## *10. The Board further determined the rule is more than a "mere technicality," but "is intended to provide for the efficient and expedient resolution of disputed issues." !d. (citing Tenn. Comp. R. & Regs. 0800-02-21-.01 (2015)). The Board held the regulation was designed to encourage "litigants to be proactive from the outset in obtaining and organizing evidence supporting the claim," as well as notifYing the other party offacts being asserted, so they may "prepare for the hearing or otherwise respond as they are expected to do." !d. at 

## *11. Had Mr. Peeples satisfied the procedural affidavit requirement, he still did not submit any medical records or evidence in support ofhis claim from which the Court could conclude that he is likely to prevail at a hearing on the merits on the issue of compensability. The only documents submitted by Mr. Peeples were work status notes from OrthoMemphis, a Baptist leave of absence request form and Aetna Insurance Company explanation of benefits forms. While potentially relevant to the issue of entitlementto temporary disability benefits, those documents do not support Mr. Peeples' claim that he sustained a compensable work injury to his knee arising out ofand in the course and scope ofhis employment. In sum, the Court finds Mr. Peeples did not file the required affidavit or otherwise come forward with medical proofor any evidence in support ofhis claim for medical and temporary disability benefits. Accordingly, Mr. Peeples' request for medical and temporary disability benefits is denied.

3ITIS, THEREFORE, ORDERED as follows: 1. Mr. Peeples' request for medical and temporary disability benefits is denied at this time. 2. This matter is set for an Initial (Scheduling) Hearing on January 4, 2016 at 10 a.m. (CDT).



### ENTEREDthis the 5th day

### oa:ber,2015.

# lhlk£~ Judge AmberE. Luttrell CourtofWorkers' Compensation Claims

lnitial (Scheduling)Hearing: An Initial (Scheduling) Hearing has been set with Judge Amber E. Luttrell, CourtofWorkers' Compensation Claims. You mustcall 901-543-2668 ortoll-free at 855-543-5046 to participate. 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 yourfurther participation.All conferences are setusing CentralTime (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: l. Complete the enclosed form entitled: "ExpeditedHearing Notice ofAppeal." 2. File the completed form with the Court Clerk 

### within seven business days ofthe date the Workers' CompensationJudge enteredthe ExpeditedHearing Order. 3. Serve a copy ofthe ExpeditedHearingNotice ofAppeal upon the opposingparty. 4. The appealing party is responsible for payment ofa fiJing 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 cardpayment. Payments can be
4made 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 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 or must be filed within ten 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 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 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 submittedto the Clerk oftheAppeals Board. 6. Ifthe appellant elects to file a position statement in support ofthe interlocutory appeal, the appellant shall file suchposition statement withthe Court Clerk within three 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 three 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, or other authority.

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### APPENDIX The Cou rt reviewed the following documents and designates these documents as the TechnicalRecord? 1. Petition for BenefitDetermination (PBD), filed July 15, 2015 2. Dispute CertificationNotice (DCN), filed August 13, 2015 3. Request for ExpeditedHearing (REH), filed September 18, 2015 4. Employer'sResponseto REH 5. Employer's Position Statementin Response to PBD The Courtreviewed the following documents in reaching its decision and designates the documents as Exhibits solely for ease ofreference bythe Court: 1. OrthoMemphis work status notes, Baptistleave ofabsence request form, and AetnaInsurance CompanyExplanation ofBenefits forms (collective exhibit) 2. C20 EmployerFirstReport ofWorkInjury 3. BaptistEmployee OccurrenceReport 4. C23 Notice ofDenial, dated March 13, 2015 5. C41 Wage Statement 6. Job DescriptionofFloorFinisher 7. Recorded statementtranscript ofMr. Peeples, datedMarch 12, 2015

2 The Court did not consider attachments to Technical Record filings unless admitted into evidence during the Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as allegations unless establishedby the evidence.

6CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the Expedited Hearing Order Denying Medical Benefits was sent to the following recipients by the following methods ofservice on this the_thday ofNovember, 2015.

Name Certified Mail ErnestPeeples, X Employee
J. MatthewKirby,Esq., Counsel for Employer Via Via Service sentto: Fax Email X Emestgeeglesl @gmail.com; 1983 East GladneyDrive Memphis, Tennessee 38114 X mkirb:y(a).harrisshelton.com

Penny Shrum, ClerkofCourt Court ofWorkers' Compensation Claims WC.CourtCierk@tn.gov

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