1 COURT OF WORKERS’ COMPENSATION CLAIMS

DIVISION OF WORKERS' COMPENSATION

EMPLOYEE: Laura Campbell DOCKET #: 2014-06-0070

STATE FILE #: 61906-2014 EMPLOYER: Mid-South Waffles, Inc., d/b/a DATE OF INJURY: August 2, 2014

Waffle House

INSURANCE CARRIER: B rentwood Services

EXPEDITED HEARING ORDER

THIS CAUSE came before the undersigned Workers' Compensation Judge on April 8, 2015, upon the Request for Expedited Hearing file d by Employee, Laura Campbell, on March 9, 2015, pursuant to Tennessee Code A nnotated section 50-6-239 to de termine if it is appropriate that Employer, Mid-South Waffles, Inc., d/ b/a Waffle House (“Waffle House”), provide

additional medical benefits.

Attorney Charles Hicks represents Ms. Campbell. Attorney Sarah Reisner represents Waffle House. Upon review of Ms. Campbell’s request, the technical re cord and the evidence presented at the Expedited Hearing, the following order grants Ms. Campbell’s request for

medical benefits for the reasons set forth below.

ANALYSIS

Issues

1. Whether Ms. Campbell sustained an injury ar ising primarily out of and in the course and scope of employment with Waffle House.

2. Whether Waffle House is obligated to provide additional medical benefits.

Evidence Submitted

The Court admitted the following into evidence:

Exh. 1-Medical records of Laura Campbe ll from Daniel Adkisson, PA-C, Dr. Demond White and Dr. Salyer of Dickson Medical Associates Exh. 2-Affidavit of Teresa Grimm, March 15, 2015 Exh. 3-Affidavit of Valerie Mackens, December 18, 20142 Exh. 4-First Report of Injury, August 8, 2014 Exh. 5-Letter from Leigh Purucker da ted September 9, 2014 (for identification purposes only)

Exh. 6-Notice of Denial of Claim for Compensation, September 9, 2014 Exh. 7-Drug test results.

The following witnesses testified at the hearing:

 Laura Campbell

 Teresa Grimm.

The technical record cons ists of the following:

 Petition for Benefit Determination, November 26, 2014;

 Dispute Certification Notice, filed November 24, 2014; and,

 Request for Expedited Hearing, March 9, 2015.

The Court considered any factual statemen ts contained within the pleadings and attachments to them as allegations unless established by the evidence.

History of Claim

Ms. Campbell worked as a server at the Waffle House in Dickson, Tennessee. She testified that, on August 2, 2014, a manager trai nee was restocking the “low bar” with

condiments while she delivered food. While re stocking the condiments, a bottle of Tabasco sauce fell to the floor and shattered. Ms. Campbe ll stated her foot “slippe d, slid, and gripped” in the spilled sauce.

Ms. Campbell’s co-worker, Teresa Grimm, witnessed the accident. Ms. Grimm testified that “Ramona...was putting the stock up and when she did put it on the shelf, it broke. And as it broke—we work in small area—Laura was [sic] had her back turned. It fell. Laura turned around. I looked for a towel. I went to grab a to wel and at the same time , she slipped in it and her knee, well her leg, I’ll say he r leg, twisted and she went to go down. And I went to see, make sure she didn’t fall, and we put a to wel over it after sh e got out of it.”

Ms. Campbell testified that she reported th e incident to Chris Tucker, the district manager, and told him that her knee hurt. Ms. Grimm verified th at Ms. Campbell had a

conversation with Mr. Tucker concerning the incident.

Ms. Campbell further testified th at she told the store manage r, Tina Richardson, about the accident on the following day. She told Ms. Richardson that her knee was swollen and hurting. Ms. Campbell stated that she called Ms. Ri chardson again the follo wing morning, August 4, 2014, and told her that she needed to see a doctor. When Ms. Richardson did not offer to send Ms. Campbell to a doctor, Ms. Campbell told Ms. Richardson that she would be going to see her

own doctor.3 That same day, Ms. Campbell visited her pr imary care provider, physician assistant Daniel Adkisson, to seek treatment for her knee. Mr. Campbell testified that PA Adkisson told her that “something was wrong with her ACL.” His treatment notes, which are difficult to decipher, appear to say that she presented for “pain management” and a “knee injury” and further state, “Recent fall at work, slipped on floor this past weekend.” He diagnosed “knee strain and instability.” PA Adkisson told Ms. Campbell to get a brace for her knee.

At some point after visiting PA Adkisson, Ms. Campbell tes tified that a person named “Silver,” who worked in the human resources for Waffle House, called and told her to see Dr. John Salyer.

Ms. Campbell saw Dr. Salyer on August 12, 20 14. The “history” portion of notes from that visit state the pain onset was sudden, and, “Trauma type slippe d, (sic.) occurred at work, 1 Week 3 Days ago on 8/2/2104.” X-rays performed that same day found “no evidence of acute injury,” and, “[n]ormal appearance of left knee. ” He diagnosed her with acute knee pain. Dr. Salyer additionally wrote the following in a le tter: “Laura Campbell is currently under my medical care and may return to work at this time . She may return to work on August 13. Due to the persistent pain in[]her let [sic] knee, she needs to have and [sic] MRI of her left knee. Please relay this information to Workers Comp carrier so that they can sc hedule this.” (Exh. 1).

Ms. Campbell testified that Mr. Tucker instru cted her to bring him the records from her visit with Dr. Salyer. Mr. Tuck er was not at the restaurant so she left the records with Ms. Grimm who put them in the “drop box” so that Mr. Tucker would find them when he “changed the drawer” later in the day. Ms. Campbell testified that she hear d nothing else about getting an MRI from her supervisors at Waffle House and still has not received an MRI.

On September 9, 2014, Brentwood Services, the TP A for Waffle House, issued a form C23, “Notice of Denial of Claim fo r Compensation,” stating that “the claim did not arise out of or in the course of employment” as the basis for denial. (Exh. 6).

She received no further treatment through wo rkers’ compensation. She did visit PA Adkisson again who gave her medicine to cont rol the swelling in her knee. Ms. Campbell testified that she attempted to get an MRI by us ing her private medical insurance but her medical insurance refused to pay for the MRI becau se the injury occurred at work.

Ms. Campbell testified that she had no prior left knee problems since having stitches in her knee as a child. However, another co-wor ker, Valerie Mackens, indicated that Ms. Campbell’s knee pain pre-existed the date of inju ry (Exh. 3). In her sworn affidavit, dated December 19, 2014, Ms. Mackens stated that:

On the morning of August 1, 2014, at approximately 8:00 a.m., Laura Campbell told me that her left knee was hurting. She stated that she did not know why and ment ioned that she might have slept on it wrong. She complained about th is left knee pain at least three (3) times that day.4 When asked about Ms. Mackens’ statement, Ms. Campbell denied that she had told Ms. Mackens that she had knee problems prior to August 2, 2014. Ms. Grimm testified that Ms. Campbell had not complained to her about problems with her knee.

Concerning the current condition of her knee, Ms. Campbell te stified that “it hurts, it throbs, it’s not solid.” When asked whether her knee affected he r ability to work, Ms. Campbell testified that “it hurts, bu t I have to work.”

Ms. Campbell’s Contentions

Ms. Campbell asserts she sustained an injury arising primarily out of and in the course and scope of employment with Waffle House wh en she slipped in Taba sco sauce, twisting her

left knee. She seeks additional medical benefits and including continuing her treatment with Dr. Salyer. In particular, she reque sts that the Court order Waffle H ouse to pay for the MRI that Dr. Salyer ordered.

Waffle House’s Contentions

Waffle House contends that Ms. Campbell failed to meet her burden of proof to show that she sustained an injury arising pr imarily out of and in the course and scope of her employment. Because the claim is not compensable, it is no longer obligated to provide additional medical

benefits.

Findings of Fact and Conclusions of Law

Standard Applied

When determining whether to award benefits, the Judge must decide whether the moving party is likely to succeed on the merits at trial given the information available. See generally, McCall v. Nat’l Health Care Corp

., 100 S.W.3d 209, 214 (Tenn. 2003). In a workers’ compensation action, pursuant to Tennessee Code Annotated sectio n 50-6-239(c)(6), the employee shall bear the burden of proving each and every element of the claim by a preponderance of the evidence. However, at the interlocutory, Expedi ted Hearing phase, the employee need not prove each and every element of his or her claim by a preponderance of the evidence to be entitled to temporary disability or medical benefits, but must instead present

evidence sufficient for the trial court to conclu de that the employee woul d likely prevail at a hearing on the merits in accordance with the express terms of section 50-6-239(d)(1). McCord v. Advantage Human Resourcing, No. 79894-2014 (Tenn. Work. Comp. App. Bd., March 27, 2015). The employee must show the injury arose pr imarily out of and in the course and scope of employment. Tenn. Code Ann. § 50-6-102(13) ( 2014). The workers’ compensation law shall not be remedially or liberally construed but shall be construed fairly, impartially, and in accordance with basic principles of statutory co nstruction favoring neither the employee nor the employer. Tenn. Code Ann. § 50-6-116 (2014).

Factual Findings

The Court finds that Ms. Campbell slipped in Tabasco sauce while working at Waffle5 House on August 2, 2014, and suffered an injury to her left knee. The Court finds that Ms. Campbell timely reported the accident and her injury to both the district manager, Chris Tucker, and the store manager, Tina Richardson. The C ourt finds that Waffle H ouse did not provide Ms. Campbell a panel of physicians when it first learned of the accident but did schedule an appointment for Ms. Campbell with Dr. John Sa lyer. The Court finds that Ms. Campbell rightfully sought care from her primary care pr ovider when Waffle House failed to provide medical care upon learning of the accident. The Court finds that Dr. Salyer examined Ms. Campbell and determined that she needed an MRI of her left knee. The Court finds that, despite not being offered a panel, Ms. Campbell is please d with the treatment provided by Dr. Salyer and

he shall serve as the author ized treating physician.

Application of Law to Facts

The employee must show the injury arose primar ily out of and in the course and scope of employment. Tenn. Code Ann. § 50- 6-102(13) (2014). An injury occurs in the course of employment if it takes place while the employee was performing a duty he or she was employed to perform. Fink v. Caudle , 856 S.W.2d 952, 958 (Tenn. Worker s' Comp. Panel 1993). Thus, the course of employment requirement focuse s on the time, place, and circumstances of the injury. Saylor v. Lakeway Trucking, Inc. , 181 S.W.3d 314, 318 (Tenn. 2005). In contrast, arising out of employment refers to causation. Reeser v. Yellow Freight Sys., Inc. , 938 S.W.2d 690, 692 (Tenn. 1997). An injury arises out of em ployment when there is a causal connection

between the conditions under which the work is required to be perfor med and the resulting injury. Fritts v. Safety Nat'l Cas. Corp. , 163 S.W.3d 673, 678 (Tenn. 2005) . Put another way,

the element of causation is satisfied when the "i njury has a rational, ca usal connection to the

work." Braden v. Sears, Roebuck & Co., 833 S.W.2d 496, 498 (Tenn. 1992)

.

Here, Ms. Campbell testified that she hurt he r knee when she slipped in Tabasco sauce while serving food at Waffle House on August 2, 2014. Ms. Grimm affirmed Ms. Campbell’s testimony. Furthermore, Ms. Campbell timely repor ted her injury to her supervisors. Although, Ms. Mackens provided an affidavit stating that Ms. Campbell complain ed of knee pain on August 2, 2014, Ms. Campbell denied making those stat ements and, even if she did complain of knee pain, her complaints of pain would not re nder her claim noncompensable, as the August 2, 2014 incident could have aggravated a pre-existing condition. In any event, the Court finds that Ms. Campbell has shown a likelihood of success on the merits at a compensation hearing and has, therefore, carried her burden of proof in these proceedings.

The statute provides that the employer shall fu rnish, free of charge to the employee, such medical treatment made reasonably necessa ry by the accident. Tenn. Code Ann. § 50-6- 204(a)(1)(A) (2014). The law further states, “the employer shall designate a group of three (3) or more independent reputable physic ians ... from which the injured employee shall select one (1) to be the treating physician.” Tenn. Code An n. § 50-6-204(a)(3)(A) (2014). Further, “any treatment recommended by a physician... selected pursu ant to this subdivis ion (a)(3)... shall be presumed medically necessary for treatment of the injured employee.” Tenn. Code Ann. § 50-6- 204(a)(3)(H) (2014).6 Dr. Salyer has recommended that Ms. Campbell undergo an MRI. The Court finds his recommendation reasonable and necessary. Accord ingly, Waffle House shall pay the cost of the MRI and further treatment recommended by Dr. Salyer.

In addition to this finding, the Court also fi nds that Brentwood Services’ actions in this case warrant investigation into whether the Divi sion of Workers’ Compensation should assess a civil penalty. The Division may assess a civil pe nalty of between fifty and five-thousand dollars ($50-$5,000) against any person or en tity that “denied or stopped paying benefits for a claim of temporary disability or medical benefits withou t first performing a reasonable investigation.” Tenn. Comp. R. & Regs. 0800-02-24-.05(1)(c). Any Division employee may refer cases for a civil penalty investigation whenever the employee “...believes that there may have been a

violation of the Division’s rules or the Tennessee Workers’ Compensation Act.” Id . at 0800-02-

24-.03. The Court believes that such a violation may have occurred.

An x-ray or Ms. Campbell’s knee found “no evidence of acute injury,” and, “[n]ormal appearance of left knee.” Despit e the x-ray results, Dr. Salyer, the authorized treating physician, still recommended that Ms. Campbe ll undergo an MRI due to the persistent pain in her left knee and even drafted a letter, date d August 12, 2014, which stated “pl ease relay this information to Workers Comp carrier so that they can schedule this.” Brentwood Services issued a notice of denial on September 9, 2014, despit e the letter from Dr. Salyer recommending an MRI.

At the hearing, Brentwood Services pointed to the x-ray results and the affidavit of Valerie Mackens in support of the decision to deny Ms. Campbell’s claim. In the opinion of the Court these pieces of evidence provided insufficient reason to abruptly termin ate her care. First, an x-ray would not reveal any possible soft-tis sue or ligament damage and Dr. Salyer knew the x-ray results when he ordered the MRI. Sec ond, Brentwood Services could not have considered Ms. Mackens’ affidavit as a basis to deny th e claim because she did not complete it until December 18, 2014—more than three months after Bren twood Services issued the denial notice.

Based on the evidence presented, the Court believes that Brentwood Services may have violated rule 0800-02-24-.05(1)(c) a nd refers this case to the Divi sion’s penalty program for an investigation.

IT IS, THEREFORE, ORDERED as follows:

1. Waffle House shall provide Ms. Campbell with medical treatment for her injuries as required by Tennessee Code Annotated section 50-6-204, to be re-initiated by authorizing an MRI and any further treatment with Dr. Salyer as he deems reasonable, necessary, and related to the work injury.

2. This is not a final order.

3. Unless interlocutory appeal of the Expedi ted Hearing Order is filed, compliance

with this Order must occur no later than seven (7) business days from the date of entry of this Order as required by Tennessee Code Annotated section 50-6- 239(d)(3). The Insurer or Self-Insured Employer must submit confirmation of7 compliance with this Order to the Division by email to WCCompliance.Program@tn.gov no later than the seventh (7th) business day after entry of this Order. Failure to submit the necessary confirmation within the period of compliance may result in a pena lty assessment for non-compliance.

4. For questions regarding compliance, please contact the Workers’ Compensation Compliance Unit via email WCCompliance.Program@tn.gov or by calling (615) 253- 1471 or (615) 532-1309.

5. This matter has been set for an initial he aring on July 8, 2015, at 10:00 a.m. (CDT). The hearing shall be conducted via teleconf erence. Instructions for participation

are included below.

ISSUED AND FILED WITH THE CLERK ON THIS THE 11th DAY OF MAY, 2015.

_____________________________________ Joshua Davis Baker Workers' Compensation Judge8 Initial Hearing:

An Initial Hearing has been set with Judge Joshua Davis, Court of Workers Compensation Claims. You must call (615) 741-2113 or toll free at (855) 874-0474 to participate in the Initial Hearing. Please Note: Y ou must call in on the scheduled date/time to participate. Failure to call in may result in a determination of the issues wit hout your further participation. All conferences are set using Central Time (CT).

Right to Appeal:

Tennessee Law allows any party who disagrees w ith 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 (7) business days of the date the Workers’ Compensation Judge ente red the Expedited Hearing Order.

3. Serve a copy of the Request for Appeal upon the opposing party.

4. The parties, having the res ponsibility of ensuring a comp lete record on appeal, may request from the Court Clerk the audio record ing of the hearing for the purpose of having a transcript prepared by a licen sed court reporter and filing it with the Court Clerk within ten (10) calendar days of the filing of the Expedited Hearing Notice of Appeal. Alternatively, the part ies may file a statement of the evidence within ten (10) calendar days of the f iling of the Expedited Hearing Noti ce of Appeal. The Judge must approve the statement of the evidence must be approved by the Judge be fore the record is submitted to the Clerk of the Appeals Board.

5. If the appellant elects to file a position st atement in support of the interlocutory appeal, the appealing party shall file such position statement with th e Court Clerk within three (3) business days of the filing of the Expedite d Hearing Notice of A ppeal, specifying the issues presented for review and including any argument in support thereof. If the appellee elects to file a response in opposition to the interlocutory appeal, appellee shall do so within three (3) business days of the filing of the a ppellant’s position statement.9 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Expedited Hearing Order was sent to the following recipients by the following methods of service on this the 11th day of May, 2015.

Name Certified

Mail First

Class

Mail Via

Fax Fax

Number Via

Email Email Address

Employee’s attorney,

Charles Hicks X Larry_hicks@bellsouth.net

Employer/Carrier’s attorney, Sarah

Reisner X sreisner@manierherod.com

Compliance WCCompliance.Program@tn.gov

____________________________________ Penny Patterson Shrum, Clerk

Tennessee Court of Workers’ Compensation Claims WC.Court.Clerk@tn.gov