FILED 

November 29.20I6 

T -coURT OF 

WORKERS' 

COAIPINSATION 

CLAThfS 

Time: 8:24AM 

TENNESSEE BUREAU OF WORKERS' COMPENSATION 

IN THE COURT OF WORKERS' COMPENSATION CLAIMS 

AT MEMPHIS 

DARLENE NOEL, 

Employee, 

v. 

EAN HOLDINGS, LLC, 

Employer, 

And 

FARMINGTON INS. CO., 

Insurance Carrier. 

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Docket No. 2016-08-0054 

State File No. 80542-2015 

Judge Allen Phillips 

EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS 

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 injury to her 

neck on January 16, 2015. EAN Holdings disputed her entitlement to the requested 

benefits on grounds that she failed to produce adequate proof of causation. 

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

sufficient evidence to show entitlement to 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 in Memphis. On January 16, 2015, Ms. Noel had her back turned to a 

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 
large door while assisting another employee. She testified a co-worker, Doris 

Watkins, opened the door "with force," and the door "slammed" into her body 

between the neck and left shoulder. At the hearing, she pulled down the collar of 

her blouse to indicate the area of her body struck by the door. 

Ms. Watkins confirmed she accidentally struck Ms. Noel with a door 

described as large and heavy. She confirmed it struck Ms. Noel between her neck 

and left shoulder. Ms. Watkins added that an EAN manager was near the scene. 

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

located next to Ms. Noel's workstation at Alamo. The door in question, described 

by Ms. Denby as a heavy, "steel" door, opens from the Hertz side "into the Alamo 

side." Ms. Denby's location allowed her, through a window in the door, to witness 

Ms. Noel "bent over" helping a co-worker while Ms. Noel's back was turned. Ms. 

Denby testified that, "Ms. Doris [Watkins] slung the door open" and hit Ms. Noel 

"back here in her neck," indicating the same area of Ms. Noel's body as did Ms. 

Noel and Ms. Watkins. 

When describing her injury, Ms. Noel called it an "aggravation" or a "reinjury." She admitted prior left shoulder issues, including a September 5, 2013 

injury at EAN that required surgery. She also admitted prior neck and shoulder 

pain dating to the 1980s and continuing to 2007 when she underwent a "nerve 

block." However, she characterized her current complaints as new and different 

from her lingering pain from past injuries. 

Ms. Noel admitted entering into a settlement of her 2013 injury at EAN but 

pointed out the settlement addressed only her shoulders and knees. In the "Final 

Decree" approving the settlement, the Circuit Court of Knox County, Tennessee, 

approved a settlement of Ms. Noel's September 5, 2013 injury at EAN on January 

15, 2015. The order provided that EAN would pay Ms. Noel benefits equal to a six 

percent permanent partial disability for her left shoulder injury, with a closure of 

future medical expenses, and an additional $4,000 "to resolve any and all alleged 

injuries to her left knee, right knee, and right shoulder on a doubtful and disputed 

basis." (Ex. 5 at 2.) 

Ms. Noel testified that at some point after the January 16, 2015 event, "Ms. 

Laura [sic] Smith" told her to "use [her] medical benefits under my medical 

insurance."2 Thus, Ms. Noel used her health insurance to seek treatment. She 

testified that she had out-of-pocket expenses and unpaid deductibles but presented 

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

completed the First Report of Injury regarding the event. (Ex. 1.) On that report, Ms. Smith identified 

herself as a "Supervisor II" at "The Frank Gates Service Co." 

2 
no evidence of those amounts. She took one month of "FMLA" time off from 

work between February 2015 and March 2015. Otherwise, Ms. Noel did not miss 

work and remains employed full time at EAN. She continues to feel pain in her 

neck and testified she has difficulties at work with long sitting or standing. She 

continues 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 

was there 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. !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." !d. at 6. The "projected date to return to work" was March 2, 2015. !d. 

Ms. Noel testified she was not claiming her shoulders or knees were injured 

on January 16, 2015, but instead testified she felt pain in her neck "going down 

into her shoulders." She wants EAN to pay her medical bills and provide ongoing 

treatment for her neck issues. 

For its part, EAN asserted Ms. Noel described a new incident but there was 

no medical evidence to establish causation. Moreover, there was nothing in the 

medical record submitted, to which it objected, to differentiate Ms. Noel's current 

complaints from her previous complaints because there was "no identified injury 

and no medical reference of any kind to establish any injury or its cause." (T.R. 5 

at 7.) 

EAN "respectfully suggest[ ed] that [this case] represents, at best, a strike 

claim4 that has already been resolved and the settlement approved." !d. at 3. In 

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 

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 of this Order. 4 A "strike suit" is a derivative action based on no bona fide claim and brought with the intent to force 

defendants to settle out of court. www.merriam-webster.com (last visited Nov. 22, 2016). Here, the Court 

3 
support of that position, it cited Mitchell v. Randstad North America, Nos. 2015-

06-0954 and 0955, 2016 TN Wrk. Comp. App. Bd. LEXIS 32 (Tenn. Workers' 

Comp. App. Bd. Aug. 11, 20 16). In that case, our Appeals Board found a trial 

judge properly denied benefits to an employee who previously had settled a claim 

to include all disability from either any injury or any "aggravations." !d. at *5. 

That employee came forward with only his "bare allegations" that he sustained a 

new injury. Here, EAN argued, Ms. Noel has asserted only her "bare allegations" 

of a new injury and the Court should deem her current claim as part of the agreed 

settlement. 

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. Carlex 

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) 

(20 15). 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 16, 2015, causing injury to her neck. She described an 

incident where she was struck with force by a heavy door. Ms. Watkins and Ms. 

Denby corroborated her testimony. The Court finds Ms. Noel and her witnesses 

very credible. They each testified as to the exact mode of injury, Ms. Noel's 

reaction to being struck, and quite importantly, the exact area of Ms. Noel's body 

struck by the door. This is significant because Ms. Noel testified she is not 

claiming her shoulders were injured on January 16, 2015; she is claiming her neck 

and adjacent anatomy was struck by the door. This specific incident caused pain 

both in her neck and pain radiating down her arms. The fact the incident occurred 

interprets EAN's argument to mean that Ms. Noel brought a spurious claim to increase the perceived 

inadequacy of her settlement with EAN approved just one day before. 

4 
one day after her settlement of prior shoulder conditions is not necessarily, as 

argued by EAN, a "strike suit." Instead, the Court finds the fact that Ms. Noel's 

injuries to another part of her body occurred on January 16, 2015, just one day 

after the settlement, was purely coincidental. 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 ifthe 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 

EAN had notice of her injury. Ms. Noel sent EAN an e-mail with notice, EAN 

completed a First Report of Injury, and Ms. Noel and Ms. Watkins established that 

a supervisor was nearby when the incident occurred. Nevertheless, Ms. Noel 

testified a representative of EAN or its carrier advised her to proceed under her 

own health insurance. EAN did not rebut any of these facts. 

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 

5 
attaches to a claim after the employer has an adequate time for an 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 "is not entitled to any benefits under the Act because the alleged injuries in 

[this] claim have already been adjudicated and settled by lawful agreement." (T.R. 

4 at 4 )(Emphasis in original). However, EAN offered no proof that the injuries 

resolved in the settlement are the same as the injuries in this case. Likewise, the 

Court disagrees that Mitchell supports EAN's position. Here, unlike Mitchell, Ms. 

Noel did not settle all "aggravations" of any prior injury in the settlement 

agreement. In fact, she did not settle any neck claim whatsoever. Thus, the Court 

must look to the sufficiency of Ms. Noel's proof in context of the new incident. 

In McCord, the formative case on parties' obligations at the expedited 

hearing stage, 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 * 1 7. 

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, 20 16). In that case, our Appeals Board affirmed an order that the 

employer provide a panel of physicians by stating: 

6 
[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 

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. 

Id. at *7. 

As in Lewis, Ms. Noel established pain after a specific incident and that she 

promptly informed her supervisors, and the Court finds EAN did not refute any of 

this evidence. 

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 16, 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 16, 2015, by EAN providing a panel of physicians 

qualified to treat musculoskeletal injuries from which she might choose the 

authorized physician. 

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

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

11:00 a.m. Central time. 

7 
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 Initial 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 by United States mail, hand-delivery, or other 

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

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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 lndigency 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. 

9 
APPENDIX 

Exhibits: 

1. First Report of Injury (dated January 16, 2015); 

2. E-mail from Ms. Noel to EAN reporting her injury; 

3. Wage Statement (DOl: January 16, 2015); 

4. Medical Records of Debora Dowda, FNP; and 

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

Technical record: 5 

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). 

5 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. 

10 
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 Via Service Sent To: 

Mail Class Email 

X 

Mail 

X 3 896 Brookmeade, 

Memphis, TN 38127 

X cepierce@mijs.com 

./) ffi~/ 

Pe , Clerk of Court 

Cou~ ;;;w ;kers' Compensation Claims 

WC.CourtCierk@tn.gov 

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