FILED 

November 29, 2016 

TENNESSEE BUREAU OF WORKERS' COMPENSATION 

IN THE COURT OF WORKERS' COMPENSATION CLAIMS 

AT MEMPHIS 

DARLENE NOEL, ) Docket No. 2016-08-0069 

Employee, ) 

v. ) 

EAN HOLDINGS, LLC, ) State File No. 9570-2015 

Employer, ) 

And ) 

FARMINGTON INS. CO., ) Judge Allen Phillips 

Insurance Carrier. ) 

EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS 

I COURT OF 

WORKERS' 

COMPE SATIO 

CL.ill1S 

Time: 8:24AM 

This matter came before the undersigned Workers' Compensation Judge on 

November 7, 2016, upon the Request for Expedited Hearing filed by Darlene Noel 

pursuant to Tennessee Code Annotated section 50-6-239 (2015). Ms. Noel 

requested medical and temporary disability benefits for an alleged head injury on 

January 23, 2015. EAN Holdings disputed her entitlement to the requested 

benefits on grounds that she failed to produce adequate proof of medical 

causation. Accordingly, the central legal issue is whether Ms. Noel came forward 

with sufficient evidence to show entitlement to any of the requested benefits. For 

the following reasons, the Court holds Ms. Noel came forward with sufficient 

evidence to show she is likely to prevail at a hearing on the merits regarding 

entitlement to certain medical benefits but that she has not come forward with 

sufficient evidence to show entitlement to temporary disability benefits. 1 

History of Claim 

At all relevant times, Ms. Noel worked for EAN at its Alamo Rental Car 

location at Memphis International Airport. On January 23, 2015, Ms. Noel was 

1 The Court provides a complete listing of the Technical Record and Exhibits admitted at the Expedited 

Hearing in an Appendix attached to this Order. 

1 
walking toward a set of automatic sliding glass doors in the common area of the 

rental car service desks. Whether by her inadvertence, malfunction of the doors, or 

a combination thereof, Ms. Noel walked into a less than fully opened door and 

struck her head against the glass. 

Initially, Ms. Noel attributed the event to her own clumsiness and 

embarrassingly "laughed it off." However, as time passed, she felt dizzy and as if 

her head were "spinning." Ms. Noel was transported to Methodist Hospital by 

ambulance. No records of that visit are in evidence, but Ms. Noel testified 

emergency room providers told her to follow up with her personal physician. 

Gloria Denby works for Hertz Rental Car. Her workstation was located 

next to Ms. Noel's workstation at Alamo. On January 23, 2015, she saw Ms. Noel 

strike her head against the glass door. When describing the injury, Ms. Denby 

described a "hard blow" to the head that left Ms. Noel "dazed" and "out of it." She 

recalled Ms. Noel requiring assistance after she struck her head. 

Following the event, EAN completed a First Report of Injury. (Ex. 1.) The 

report indicates January 23, 2015, was the date EAN became aware of the injury. 

Id. Ms. Noel testified that "Ms. Laura [sic] Smith" told her to "'use [her] medical 

benefits under my medical insurance."2 Ms. Noel's testimony was unclear as to 

whether the conversation with Ms. Smith pertained to an incident of January 16, 

2015, when she injured her neck at EAN or whether it pertained to the instant 

incident. The Court heard a claim for the January 16, 2015 neck injury 

contemporaneous with this claim. 

Regarding the alleged head injury of January 23, Ms. Noel testified to outof-pocket expenses and unpaid deductibles but presented no evidence of those 

amounts. She took one month of "FMLA" time off from work between February 

2015 and March 2015, a period when she also suffered effects from the January 

16, 2015 incident. Otherwise, Ms. Noel did not miss work and remains employed 

full-time at EAN. She continues to experience headaches and to receive medical 

treatment from personal physicians. 

The only medical record placed into evidence was a note from Debora 

Dowda, FNP from February 6, 2015. 3 In that note, Ms. Dowda recorded Ms. Noel 

2 Ms. Noel did not identify Ms. Smith in her testimony. However, the Court notes Ms. Lori Smith 

completed a First Report of Injury regarding the neck injury incident of January 16, 2015. See Ex. 1. On 

that report, Ms. Smith identifies herself as a "Supervisor II" at "The Frank Gates Service Co." 3 EAN objected to admission of this record on grounds that the record did not bear "an electronic 

signature." The Court overruled the objection because the record bore the typed name of Debora Dowda, 

FNP with the notation "Electronically signed by: Debra Dowda." (Ex. 3 at 6.) EAN also objected to 

admission of the record on grounds that it was drafted by a nurse practitioner rather than a physician. As 

such, the record could not support a finding of causation. The Court overruled the objection because 

2 
presented in, "follow-up of her work related injury. She has been unable to work 

due to HA and skeletal pain." (Ex. 3 at 1.) Ms. Dowda assessed chest wall pain, 

hypertension, diabetes, arthralgia of the shoulder region, headache syndromes, and 

cervicalgia. I d. at 5. The plan was for Ms. Noel to return in one month "for release 

for work if appropriate," to "await FMLA papers," and to refer to "neuro and 

podiatry." Id. at 6. The "projected date to return to work" was March 2, 2015. Id. 

Ms. Noel testified she had seen a neurologist who informed her that she had 

suffered a series of"mini-strokes." The timing of these events was unclear, but she 

did not attribute them to the event of January 23, 2015. However, Ms. Noel wants 

EAN to pay her medical bills and provide ongoing treatment for any head injury 

that may have resulted from striking the glass door. 

For its part, EAN argued that a "mere notation in a medical record [of an] 

on-the-job injury is insufficient to prove work-relatedness" in the absence of an 

expert medical opinion causally linking the incident to the injury. (T.R. 5 at 6.) 

Because there was "no identified injury and no medical reference of any kind to 

establish any injury or its cause," the Court must deny Ms. Noel's claim. Id. at 7. 

EAN also argued the area where the accident occurred was a ''public area," 

and, as such, removed Ms. Noel's injury from being incident to her employment. 

EAN argued this fact prevents any award of benefits to Ms. Noel. 

Findings of Fact and Conclusions of Law 

Standard applied 

An injured worker has the burden of proof on every essential element of her 

claim. Tenn. Code Ann. § 50-6-239(c)(6) (2015); see also Buchanan v. Car/ex 

Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *5 

(Tenn. Workers' Comp. App. Bd. Sept. 29, 2015). These elements include Ms. 

Noel showing that her alleged injury arose primarily out of and in the course and 

scope of her employment at EAN. Tenn. Code Ann. § 50-6-102(14) (2015). She 

must also show her injury was caused by an incident, or specific set of incidents, 

identifiable by time and place of occurrence Tenn. Code Ann. § 50-6-102(14)(A) 

Tennessee Compilation Rule & Regulation 0800-02-21-16(6)(b) (2015) provides that medical records 

signed by a physician shall be admissible. See also Morgan v. Macy's, No. 2016-08-0270, 2016 TN Wrk. 

Comp. App. Bd. LEXIS 39, at *13 (Tenn. Workers' Comp. App. Bd. Aug. 31, 2016)(Medical records 

submitted as evidence must bear an indicia of reliability.). Here, Ms. Dowda's name appeared not only in 

the electronic signature form but also on a record in the signature line of Dr. Douglas O'Dea, identified by 

Ms. Noel as the medical doctor who treated her. The Court found the record bore a sufficient indicia of 

reliability. Notably, EAN argued the merits of the subject record in its "Position Statement." Regardless of 

admissibility, the record was not dispositive to the outcome. The Court addresses the remaining issue of the 

sufficiency of a nurse practitioner's opinions in the "Analysis" section ofthis Order. 

3 
(2015). Further, she must show, "to a reasonable degree of medical certainty that 

[her alleged work injury] contributed more than fifty percent (50%) in causing the 

... disablement or need for medical treatment, considering all causes." Tenn. 

Code Ann. § 50-6-102(14)(C) (2015). "Shown to a reasonable degree of medical 

certainty" means that, in the opinion of the treating physician, it is more likely 

than not considering all causes as opposed to speculation or possibility. Tenn. 

Code Ann.§ 50-6-102(14)(D) (2015). 

When considering the evidence, the Court finds Ms. Noel established a 

specific incident on January 23, 20 15. She described an incident where she struck 

her head on a glass door. Ms. Denby corroborated her testimony and actually 

described a more violent impact and dramatic aftermath than did Ms. Noel. The 

Court finds Ms. Noel and her witness very credible. They corroborated each 

other's testimony regarding the exact mode of injury, Ms. Noel's reaction, and 

quite importantly, Ms. Noel's behavior after the incident. Accordingly, Ms. Noel 

established the specific incident criteria of the statutory definition of injury. 

Turning to the "arising primarily out of' requirement, the Court finds Ms. 

Noel has not, at this interlocutory stage of the proceedings, established an injury 

contributing more than fifty percent to her disablement or need for medical 

treatment. Ms. Noel submitted only one medical record from a nurse practitioner. 

A nurse's opinion is insufficient to establish causation. Richberger v. West Clinic, 

P.C., 152 S.W.3d 505, 512 (Tenn. Ct. App. 2004). Moreover, even if the medical 

record were legally sufficient, there is no opinion establishing causation contained 

therein. Thus, the Court finds Ms. Noel has not established that she sustained an 

injury arising primarily out of her employment. 

However, at this Expedited Hearing, Ms. Noel need not prove every 

element of her claim by a preponderance of the evidence. Instead, she must come 

forward with sufficient evidence from which the court can determine she is likely 

to prevail at a hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(l) (2015); 

McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. 

Comp. App. Bd. LEXIS 6, at *9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015). 

This lesser evidentiary standard "does not relieve an employee of the burden of 

producing evidence of an injury by accident that arose primarily out of and in the 

course and scope of employment at an expedited hearing, but allows some relief to 

be granted if that evidence does not rise to the level of a 'preponderance of the 

evidence."' Buchanan, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6. Guided 

by this authority, the Court turns to whether Ms. Noel came forward with 

sufficient evidence from which it might determine she would prevail at a hearing 

on the merits regarding her claim for any medical benefits. 

As noted, Ms. Noel established a specific incident. She also established that 

4 
EAN had notice of her injury. EAN offered no proof as to its actions after the 

incident. After an employee provides notice of an injury to an employer, 

Tennessee Code Annotated section 50-6-204(a)(l)(a) (2015) requires an 

"employer or the employer's agent ... [to] furnish, free of charge to the employee, 

such medical and surgical treatment ... made reasonably necessary by accident." 

This requirement attaches to a claim after the employer has adequate time for 

investigation of the employee's allegations. McCord, at * 12. At that point, "[t]he 

injured employee shall accept the medical benefits ... provided that in any case 

when the employee has suffered an injury and expressed a need for medical care, 

the employer shall designate a group of three (3) or more independent reputable 

physicians . . . from which the employee shall select one (1) to be the treating 

physician." Tenn. Code Ann.§ 50-6-204(a)(3)(A)(i) (2015). 

EAN did not provide Ms. Noel a panel of physicians but, instead argued 

that she presented no proof of a causal relationship between her work and the 

injury. In resolving the dispute, the Court looks to McCord, the formative case on 

parties' obligations at the expedited hearing stage. There, our Appeals Board held: 

To date, there is no proof in the record that Employee's medical 

condition is causally-related to the alleged work accident. However, 

whether the alleged work accident resulted in a compensable injury 

has yet to be determined. Therefore, while Employee has not proven 

by a preponderance of the evidence that she suffered an injury 

arising primarily out of and in the course and scope of employment, 

she has satisfied her burden at this interlocutory stage to support an 

Order compelling Employer to provide a panel of physicians. 

McCord, at * 17. 

In McCord, as in this case, the employee established a specific work 

incident. Likewise, both the McCord employee and Ms. Noel provided notice of 

the incident. Finally, both the McCord employee and Ms. Noel were forced to seek 

medical attention on their own for an alleged injury. Such proof is sufficient to 

require EAN to provide a panel of physicians to Ms. Noel. See McCord, at * 17. 

Further, the Court finds guidance in Lewis v. Merry Maid, No. 2015-06-

0456, 2016 TN Wrk. Comp. App. Bd. LEXIS 19 (Tenn. Workers' Comp. App. 

Bd. Apr. 20, 2016). In that case, our Appeals Board affirmed an order that the 

employer provide a panel of physicians by stating: 

[T]he trial court determined that Employee did come forward with 

sufficient evidence to establish her entitlement to a panel of 

physicians. Specifically, the trial court noted Employee's testimony 

5 
that she experienced back pain after [performing her job] ... and 

that she promptly informed her [supervisors] of her back pain. 

Employer did not refute these allegations. 

!d. at *7. 

As did the employee in Lewis, Ms. Noel established pain after a specific 

incident and that EAN had notice, and the Court finds that EAN did not refute any 

of this evidence. 

Finally, the Court respectfully disagrees with EAN's argument that the 

location of the incident, a public area, removes Ms. Noel from the coverage of the 

law. Our Supreme Court has found that injuries sustained by employees who are 

required to traverse a "public way" to access their work location are compensable 

"because such travel [is] necessary" for the employee to report to work. Copeland 

v. Leaf, Inc., 829 S.W.2d 140, 144 (Tenn. 1992). Here, the proof establishes the 

door that Ms. Noel struck is used by the public and by employees. 

Taken in its totality, the Court finds that Ms. Noel has come forward with 

sufficient evidence at this Expedited Hearing to show she is likely to prevail at a 

hearing on the merits that she is entitled to a panel of physicians to evaluate her 

injury of January 23, 2015. 

Temporary disability benefits 

Under Tennessee law, to establish entitlement to temporary total benefits 

(TTD), Ms. Noel must show (1) she was totally disabled to work by a 

compensable injury; (2) a causal connection between the injury and her inability to 

work; and, (3) the duration of that period of disability. Jones v. Crencor Leasing 

and Sales, No. 2015-06-0332, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7 

(Tenn. Workers' Comp. App. Bd. Dec. 11, 2015). At this time, Ms. Noel has not 

come forward with any evidence to show entitlement to temporary disability 

benefits. There is no medical opinion that provides a causal connection between 

her alleged injury and any inability to work. 

IT IS, THEREFORE, ORDERED as follows: 

1. Ms. Noel shall receive medical benefits from EAN for treatment of her 

injury of January 23, 2015, by EAN providing a panel of physicians 

qualified to treat head injuries from which she might choose the authorized 

physician. 

2. Ms. Noel's request for temporary disability benefits is denied at this time. 

6 
3. This matter is set for a Scheduling (Status) Hearing on February 6, 2017, at 

11:00 a.m. Central time. ( 1 

\ \ 

ENTERED this the 29th day of \' 

Allen Phillips, Judge 

Court of Workers' Compensah 

Scheduling (Status) Hearing: 

A Scheduling/Status Hearing has been set with Judge Allen Phillips, 

Court of Workers' Compensation Claims. You must call toll-free at 731-422-

5263 or toll-free 855-543-5038 to participate in the Hearing. 

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. 

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 

7 
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 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 five 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 five 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. 

8 
APPENDIX 

Exhibits: 

1. First Report of Injury (dated January 23, 2015); 

2. Wage Statement (DOl: January 23, 2015); 

3. Medical Records of Debora Dowda, FNP; and, 

4. Certified copy of"Final Decree" in Knox Co. Circuit Court, No. 2-90-15. 

Technical record: 4 

1. Petition for Benefit Determination; 

2. Dispute Certification Notice; 

3. Request for Expedited Hearing; 

4. Employer's Position Statement (September 14, 2016); and, 

5. Employer's Pre-Hearing Brief(November 3, 2016). 

4 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 established by the evidence. 

9 
CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy of this Expedited Hearing Order 

was sent to the following recipients by the following methods of service on this the 

29th day ofNovember, 2016. 

Name 

Ms. Darlene Noel, 

Self-represented 

Employee 

Charles E. Pierce, Esq., 

Attorney for Employer 

Certified First Class Via Service Sent To: 

Mail 

X 

Mail Email 

X 3896 Brookmeade, 

Memphis, TN 38127 

X cepierce@mijs.com 

12~ ~ijk-- ' 

~~m, Clerk of Court 

Court of Workers' Compensation Claims 

WC.CourtCierk@tn.gov 

10