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### TENNESSEEBUREAUOFWORKERS' COMPENSATION INTHE COURT OFWORKERS' COMPENSATIONCLAIMS AT NASHVILLE CleasterMarshall, ) 

### DocketNo. 2016-06-1687 Employee, ) 

### v. ) 

### GatePrecastCompany, ) 

### StateFileNo. 67709-2016 Employer, ) 

### And ) 

### XL SpecialtyInsurance, ) 

### Judge Kenneth M. Switzer Carrier. )



### EXPEDITEDHEARING ORDERDENYINGREQUESTEDRELIEF

This case came before the undersigned Workers' Compensation Judge on March 30, 2017, on Mr. Marshall's Request for Expedited Hearing. The present focus ofthis case is whether he gave legally sufficient notice ofhis alleged work-related injury and whether he suffered an injury arising primarily out of and in the course and scope of employment with Gate Precast. For the reasons set forth below, the Court holds Mr. Marshall gave sufficient notice but did not come forward with sufficient evidence ofan injury arising primarily out ofemployment. Thus, the Court denies his requested reliefat this time. HistoryofClaim Mr. Marshall worked for Gate Precast. He alleged that on February 14, 2016, he was "working on a pad" and "building steps" at a university. He had to kneel to do the work, and as long he was kneeling on a flat surface and wearing knee pads, he felt okay. However, to do this work, the steps were laid down in a "v" shape, and Mr. Marshall had to kneel with his knees inside the "v." After several hours in that position, he experienced knee pain and promptly told his supervisor, Nathan Grissom. The next day at work, the pain "really got bad," necessitating medical care. The description Mr. Marshall provided on his Petition for Benefit Determination (PBD) ofthe mechanism of injury similarly states:

12-14-16 I was working on a Pad [sic] & we were building steps for a University. The first day my knees started hurting. I complained about & over night my knees swole real badly & the next day I had to do the same jobwhichwas 2-15-2016. Andmyknees continuedto getworse. Thenext Day I went to see my Doctor Korivi.

. . . This was also reported to my

. I superv1sor. Mr. Marshall furthertestifiedthat constant standing atwork causedtheveins in his legs "to break." He attempted to introduce documentation into evidence regarding this allegation, but the Court denied his request because he failed to timely file the documents.2
Mr. Marshall additionally stated he fell on the ice at work, landing on his hip, on February 9, 2016, and he "might have" told Gate Precast at that time he did not need treatment as a result ofthe fall. He acknowledged previous treatment with his hip but stated, "I got reinjured when I fell," and, "later on it bothered me." He also alleged an eye injury from "mixingchemicals"onhis PBDbut offeredno testimony ordocumentary evidenceto supportthe allegation. Mr. Marshall saw his primary care physician, Dr. Giriprasadarao Korivi, on February 16. (Ex. 2 at 1-2, 4-5.) Mr. Marshall gave a history of"rightknee andhippain: ongoing for 3 years or longer. Intermittent exacerbation. Current exacerbation x 1week. fell [sic] on his righthip lastweek. He is able towalkbutnotes worseningkneepain. He has had steroid shots in the hip and knee in the past." Dr. Korivi diagnosed right-knee andright-hip pain, referredhim for an orthopedic evaluation, and excused him from work for that day. The next day, Mr. Marshall saw Dr. Allison Cabrera, an orthopedic surgeon. (Ex. 2 at 14-20.) Records from that visit state that she saw him previously for bilateral hip pain, and, "[T]oday is having hip, buttock and knee pain, right knee is the most severe. He was kneeling for some time at work within the last week and says that really aggravated his knee[.]

... He is not currently taking any medication for and no new

1Gate Precast argued February 14, 2016, was a Sunday and that Mr. Marshall did not workthat day. Mr

. Marshall conceded the date of injury was not a Sunday. The Court finds the incident occurred on February 15, 2016, ratherthan February 14, as noted on the PBD. The discrepancy, in and ofitself, is not determinative of the outcome in this case. As our Supreme Court observed, "Even if minor and insignificant details vary, an injured worker should not be penalized simply for being a poor historian." Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 677 (Tenn. 1991).
2 See Tenn. Comp. R

. & Regs. 0800-020-21-

.14(1 )(a)-(c) (2016) (Request for expedited hearing must be accompanied by documents demonstrating the party is entitled to the requested relief, and evidence not disclosed in accordance with this rule will not be considered unless good cause is shown as to why the evidence/witness was not disclosed.).
2injury or falls." She diagnosed primary osteoarthritis ofthe right hip, "other chronic pain," and "chronic pain ofthe right knee," and excused him from work until February 22. Mr. Marshall submitted no additional records from Dr. Cabrera after this visit. He testified he continued to work despite the pain because he felt he "had no other choice." Mr. Marshall insisted that telling Gate Precast about work injuries rarely resulted in seeing a doctor, but rather the typical response wasjustto "Take it easy." Gate Precast terminatedhim in May 2016 citing "lackofwork." Gate Precast contested the sufficiency ofMr. Marshall's notice and whether he sustained an injury as definedby the Workers' CompensationLaw. With regard to its notice argument, Gate Precast offered into evidence documents its counsel referred to as "affidavits" from two supervisors, who denied Mr. Marshall reported aknee injury, butrather statedthat he fell on ice before the alleged date ofinjury and did not need medical treatment. The Court declined to admit the documents into evidence because the notary's statementreads that the notary herselfmade the statement and does not state thatthe affiants were sworn. Therefore, they are notvalid affidavits.3 Gate Precast relied on the testimony of Sarah Parker, its human resources manager, who testified she investigated the claim andfirst learned thatMr. Marshall filed a workers' compensation claim in September after he filed his PBD and several months after his termination. She stated Mr. Marshall reported falling on ice on February 9 but accordingto an incidentreport, which was not admitted into evidence, he told supervisors he did not need treatment. According to Ms. Parker, he gave no notice ofa knee injury afterthat date. Gate Precastneverprovided apanel orauthorized any treatment. As to whether Mr. Marshall sustained an injury as defined by the Workers' Compensation Law, Gate Precast argued Mr. Marshall suffered from longstanding preexisting conditions. Medical records from Dr. Korivi indicate he diagnosed osteoarthritis as early as August 2014. Notes from the next visit ofApril 1, 2015, read that Dr. Korivi diagnosed "bilateral knee pain and swelling: present for 3 years. No better with shots. had [sic] seen dr. Cabrera for this." Mr. Marshall additionally sawDr. Kishorkumar Desai, a rheumatologist, in May 2015, who diagnosed joint pain, rheumatoid arthritis and osteoarthritis. Mr. Marshall, who is self-represented, wrote on the PBD that the date ofinjury is "1997 2nd time 2013." He clarified that he suffered hernias at work in 1997 and 2010 or 2013. The Court explained at the Expedited Hearing that it has no jurisdiction to order

3 "An affidavit is a written statement by an affiant that was made under oath." Kenyon v. Handa/, 122 S.W.3d 743, 752 n.6 (Tenn. Ct. App. 2003). "The document, without a signature or oath, does not commit its purported author to any ofthe substantive statements it contains and, thus, has no evidentiary value." !d. at 752.
3any relief for Mr. Marshall's alleged injuries sustained before July 1, 2014, precluding workers' compensationbenefits relatedtothe hernias. Findings ofFact and Conclusions ofLaw As in all workers' compensation actions, Mr. Marshall, as the claimant, has the burden of proof on the essential elements of his claim. 

### Scott v. Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). However, since this is an expedited hearing, he only has to come forward with sufficient evidence from which the Court can determine he is likely to prevail at a hearing on the merits in order to meet his burden. 

### McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). Applying these legal principles first within the context of Gate Precast's notice defense, the Workers' Compensation Law mandates that "[e]very injured employee

... shall, immediately uponthe occurrence ofan injury, or as soonthereafter as is reasonable and practicable, give or cause to be given to the employer who has no actual notice, written notice ofthe injury." Tenn. Code Ann. § 50-6-201(a)(l) (2015). The statute additionally provides that "[n]o compensation shall be payable

. . . unless the written notice is given to the employer within thirty (30) days after the occurrence of the accident, 

### unless reasonable excuse for failure to give the notice is made to the satisfaction of the tribunal to which the claim for compensation may be presented." !d. (emphasis added). The notice requirement contained in section 50-6-201 "exists so that the employer will have the opportunity to make a timely investigation ofthe facts while still readily accessible, and to enablethe employerto providetimely andpropertreatment for the injured employee." 

### Buckner v. Eaton Corp., et al., 2016 TN Wrk. Comp. App. Bd. LEXIS 84, at *6-7 (Nov. 9, 2016). Here, the Court finds Mr. Marshall credibly testified that he told Mr. Grissom about injuring his knees after almost a full day's workkneeling onthem inside the "v" of stairs laid flat. Gate Precast's counsel vigorously cross-examined him, yet Mr. Marshall did not alter his testimony. Gate Precast did not offer countervailing testimony from Mr. Grissom. Further, Ms. Parker did not relay first-hand knowledge regarding the circumstances ofMr. Marshall's injuries but rather conveyed her impressions resulting from her "investigation," largely of hearsay documents and conversations with supervisors about events that happened several months earlier. The Court accredits Mr. Marshall'stestimony overhers inthis regard. However, to award the benefits Mr. Marshall seeks, he must satisfy his burden to show he is likely to prevail at a hearing on the merits regarding whether he sustained an injury as defined in the Workers' Compensation Law. That definition provides that "injury" means an "injury by accident

... arising primarily out ofand in the course and scope ofemployment, that causes ... disablement or the need for medical treatment[.]" 4Tenn. Code Ann. § 50-6-102(14). The definition further states that an injury does not include "the aggravation of a preexisting disease, condition or ailment unless it can be shown to a reasonable degree ofmedical certainty that the aggravation arose primarily out of and in the course and scope of employment[.]" !d. at § 50-6-102(14)(A). In addition, an injury "arises primarily out ofand in the course and scope ofemployment" 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." !d. at § 50-6-102(14)(B). Moreover, this must be shown "to a reasonable degree of medical certainty." !d. at§ 50-6-102(14(C). Applying these criteria, the Court looks to the medical evidence and finds that Mr. Marshall suffers from osteoarthritis and rheumatoid arthritis, the onset ofwhichpre-dated February 2016. The medical records from the February 16 visit with Dr. Korivi mention a fall at work approximately one week before the visit, but are notably silent regarding the kneeling incident. Meanwhile, Dr. Cabrera's notes from February 17 mention pain whilekneelingbut also thathe reported "nonew injuries or falls." McCordinstructs that Mr. Marshall neednotprove his case by a preponderance of the evidence at the expeditedhearingphase, but at the lower standard that he is "likely to prevail at a hearing on the merits." The Court cannot find at this time that Mr. Marshall satisfied even this lower burden, given that the medical records are equivocal at best regarding his history, and they strongly suggest that other causes, such as Mr. Marshall's preexisting arthritis, might be responsible for the onset ofpain he experienced at work, ratherthan his employment activities. As ourAppeals Board observed, "aninjury purely coincidental, or contemporaneous, or collateral, with the employment

... will not cause the injury

...to be considered as arising out ofthe employment." Hosfordv. RedRover Preschool, 2014 TN Wrk. Comp. App. Bd. LEXIS 1, at *20-21 (Oct. 2, 2014) (Citation omitted). Therefore, as a matter of law, Mr. Marshall has not come forward with sufficient evidence from which this Court concludes that he is likely to prevail at a hearing on the merits, andhis request for workers' compensationbenefits is denied at this time. As a final matter, after Mr. Marshall filed the PBD, Bureau staffnotified Gate Precast ofits obligationto file aFirstReport ofInjury. Likewise, the mediation specialist made a penalty referral for Gate Precast's failure to file this required form. Court staff brought this to Gate Precast's counsel's attention on the date ofthe Expedited Hearing. To date, it has failed to file the form. Tennessee Compilation Rules and Regulations 0800-2-14-.03(2) requires insurers to file areport ofaccident on Form C-20. Further, any Bureau employee may refer any entity to the penalty program for the assessment of a penalty wheneverthe referring employee believes there may have been a violation ofthe Bureau'srules. Tenn. Comp. R. & Regs. 0800-02-24-.03. The Courtbelieves there may have been a rules violation and thus refers the matterto the PenaltyUnit for consideration ofwhether apenalty assessment is warranted. 5

### ITIS, THEREFORE,ORDERED as follows: 1. Mr. Marshall's claim against Gate Precast and its workers' compensation carrier forthe requestedmedical andtemporary disability benefits is denied atthis time. 2. This matter is set for a SchedulingHearing on May 22, 2017, at 9:00a.m. Central. 

### You must call 615-532-9552 or toll-free at 866-943-0025 to participate in the Hearing. Failureto call in may resultin a determination oftheissues without yourfurtherparticipation. 3. This matter is referred to the Penalty Unit for consideration ofwhether a penalty shouldbe assessedregardingthe employer/carrier's failure to file Form C-32. 

### ENTEREDthisthe 4th dayofApril,2017.

dge KennethM. Switzer CourtofWorkers' Compensat

6APPENDIX 

### Exhibits: 1

. Affidavit 2

. Medicalrecords 3. Wage statement 4. Letter from Bureau ofWorkers' Compensationto Gate Precast 5. PenaltyReferral Checklist 6. Revisedwage statement 7. Separationnotice Technical record: 1. Petition for BenefitDetermination 2. Employerposition statement 3. Dispute CertificationNotice 4. Request for ExpeditedHearing 5. Employer and Insurance Carrier Response in Opposition to Employee's Request for Expedited Hearing; (Blank discovery, interrogatories, was attached but no motion to compel was filed. Therefore, it is not included as part ofthe technical record.) 6. Employer's Supplemental Response in Opposition to Employee's Request for ExpeditedHearing (Without attachments) CERTIFICATE OF SERVICE 

### I certify that a true and correct copy ofthe Expedited Hearing Order Denying RequestedReliefwas sentto the following recipients bythe following methods ofservice on this the 4th day ofApril, 2017.

Name Certified Via Mail Fax CleasterMarshall, X 

### Self-represented FredHodge, Employer's Counsel Penalty Unit Via Service sentto: Email 567 DonnaDr., ClarksvilleTN 37042 X 

### tbodge@howell-fisher.com X 

### WCCompliance.Program(a),tn. !!OV

rum, ClerkofCourt Court Workers' Compensation Claims WC.CourtClerk@tn.gov 7