COURT OF WORKERS' COMPENSATION CLAIMS 

AT KINGSPORT 

Carolyn Sue Newport 

Employee, 

) Docket No.: 2015-02-0029 

) 

v. ) State File No.: 9209-2015 

) 

BSH Home Appliance Corp. ) Date of Injury: January 28, 2015 

Employer, ) 

And ) Judge: Brian K. Addington 

) 

American Zurich Ins. Co. ) 

Insurance Carrier. ) 

EXPEDITED HEARING ORDER 

(RECORD REVIEW ONLY) 

THIS CAUSE came before the undersigned Workers' Compensation Judge on July 

13, 2015, upon the Request for Expedited Hearing filed by Carolyn Sue Newport (Ms. 

Newport), the Employee, on June 9, 2015, pursuant to Tennessee Code Annotated section 

50-6-239 (2014) to determine if the Employer, BSH Home Appliance Corporation (BSH) 

is obligated to provide medical and temporary disability benefits. 1 Considering the 

positions of the parties, the applicable law, and all of the evidence submitted, the Court 

concludes that Ms. Newport is not entitled to the requested benefits. 

ANALYSIS 

Issues 

1. Whether Ms. Newport sustained an injul'y that arose primarily out of and in 

the course and scope of her employment with BSI:I.-

1 The parties reque ted a ruling based on a review of the file without an evidentiary hearing. 2 The Mediating Speciali t did not check 'whether Employee sustained an injury that arose primarily out of and in 

the course and scope of employment with Employer' as an issue on the DCN, but checked "whether Employee 

suslained an injury in the course of employment with mployer." The mediator marked a disputed issue for the 

Court to resolve is whether Ms. Newport sustained a compensable injury as defined within the 2014 Workers' 

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2. Whether BSH is obligated to provide a panel of physicians upon notice from Ms. 

Newport of an alleged injury. 

3. Whether Ms. Newport is entitled to any past or future temporary total disability 

benefits, and if so, in what amount. 

4. Whether Employee is entitled to any past or future temporary partial disability 

benefits, and if so, in what amount. 

Evidence Submitted 

The Court admitted into evidence the exhibits below: 

1. First Report of Injury one ( 1) page 

2. Panel of Physicians one ( 1) page 

3. Accident Report four ( 4) pages 

4. Medical Records: Occupational Health Systems (OHS) ten (1 0) pages. 

The Court designated the following as the technical record: 

• Petition for Benefit Determination (PBD), February 19, 2015 

• Letter Attached to PBD-Attorney Ameesh Kherani 

• BSH Position Statement, March 12,2015 

• Dispute Certification Notice (DCN), April 8, 2015 

• Request for Expedited Hearing, June 9, 2015. 

The Court did not consider attachments to the above filings unless admitted into 

evidence during the Expedited Hearing. The Court considered factual statements in the 

above filings or any attachments thereto as allegations unless established by the evidence. 

History of Claim 

Ms. Newport is a sixty-five (65) year old resident of Campbell County, Tennessee. 

She works as an assembler for BSH. Ex. 3, page 1. On January 21, 2015, Ms. Newport 

reported to BHS that she suffered a low-back injury on January 15, 2015. Ms. Newport 

was unsure how the injury happened, but she did report that her job required "repetitive 

action, pulling items, bending, and turning ofbody." Ex. 3, pages 1-2. 

BSH provided Ms. Newport a panel of physicians and she chose OHS (Ex. 2). 

She began treatment on January 21, 2015. Ms. Newport reported, to PA-C Ronald 

Flowers, the gradual onset of symptoms of pain radiating from her lower back through 

her left knee to the foot. Ex. 4, page 1. X-rays, according to the providers at OHS, 

Compensation Law. 

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revealed degenerative disc changes at L5-S 1 and findings consistent with spondylolysis 

at L4 bilaterally. Ex. 4, page 3. PA-C Flowers diagnosed low back strain, spondylolysis, 

degenerative disc disease, and subjective left knee pain. Jd. He recommended over-thecounter pain medication and physical therapy. Ex. 4, page 4. Dr. John McElligott signed 

the treatment notes as the supervising physician. I d. 

On January 22, 2015, Ms. Newport returned to OHS. She no longer suffered pain 

in her left leg and her back had improved. Ex. 4, page 6. In the present symptoms 

section of the medical notes, the following entry appears: 

Note: Patient says that she owns several horses and usually 

hoists bales of hay to feed them. Currently, as admitted by the 

patient, she is unable to do the normal tasks that she normally 

undertakes, due to the recent discomfort in her lower back. 

!d. The discussion portion of the treatment notes contains this entry: 

After review of the mechanism of injury and/or lack thereof on 

all diagnoses listed for this evaluation now or related to this 

evaluation, I do not feel that this injury/exposure is work related. 

See TN WC Law effective July 1, 2014, TN 50-6-102 (13). Preexisting conditions are very likely or the MOl is not substantial 

to provide the present findings or lack of findings. 

Ex. 4, page 8. Following the physical exam, Dr. McElligott released Ms. Newport from 

care. Ex. 4, pages 9-10. 

BSH discontinued medical treatment after it received OSH's January 22, 2015 

note. 

Ms. Newport filed a PBD on February 19, 2015, seeking medical and temporary 

disability benefits. The parties did not resolve the disputed issues through mediation and 

the Mediation Specialist filed the DCN on April 8, 2015. 

Ms. Newport's Contentions 

Ms. Newport contends that she presented sufficient evidence to establish that she 

suffered a compensable injury that arose primarily out of and in the course and scope of 

her employment. She asserts that she is entitled to a panel of physicians for continued 

care. 

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BSH's Contentions 

BSH contends that Ms. Newport has submitted insufficient evidence to prove her 

injury arose primarily out of and in the course and scope of her employment. BHS 

asserts that the authorized treating physician, OSH, determined that her injury was not 

related to her employment. BSH avers that Ms. Newport is not entitled to an additional 

panel of physicians. 

Findings of Fact and Conclusions of Law 

Standard Applied 

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). An employee need not prove every 

element of his or her claim by a preponderance of the evidence in order to obtain relief at 

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. 

Factual Findings 

Ms. Newport reported a gradually occurring lower back and left leg injury to BSH. 

BSH provided Ms. Newport a panel of physicians. After x-rays and two examinations, 

the authorized treating physician determined Ms. Newport's alleged injury was not workrelated. 

Application of Law to Facts 

Ms. Newport did not sustain an injury that arose primarily out of and in the course 

and scope of employment with BSH. The Workers' Compensation Law defines "injury" 

and "personal injury" to mean an injury by accident "arising primarily out of and in the 

course and scope of employment .... " Tenn. Code Ann.§ 50-6-102(13)(A) (2014). An 

injury is "accidental" only if the injury is caused by a specific incident, or set of 

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

identifiable by time and place of occurrence[.] !d. An injury "arises primarily out of and 

in the course and scope of employment" 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 .... " Tenn. Code Ann. § 50-6-102(13)(8) (2014). 

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In the case at bar, the authorized treating physician, Dr. McElligott, determined 

that the "diagnoses" from which Ms. Newport suffered were not work related and very 

likely pre-existing. Although not eloquent, Dr. McElligott's opinion is sufficiently clear 

to indicate that Ms. Newport's injury did not arise primarily out of and in the course and 

scope of her employment. 

Ms. Newport has not come forward with sufficient evidence from which this Court 

concludes that she is likely to prevail at a hearing on the merits. 

IT IS, THEREFORE, ORDERED as follows: 

1. Ms. Newport's claim against BSH and its workers' compensation carrier for the 

requested medical and temporary benefits is denied. At this time, Ms. Newport 

has not come forward with sufficient evidence from which this Court concludes 

that she is likely to prevail at a hearing on the merits. 

2. This matter is set for Initial Hearing on September 14, 2015, at 10:00 a.m. 

ENTERED this the 16th day of July 2015. 

Judge Brian K. Addington 

Court of Workers' Compensation Claims 

Initial Hearing: 

An Initial Hearing has been set with Judge Addington, Court of Workers' 

Compensation Claims. You must call 865-594-6538 or toll free at 855-543-5044 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. All conferences are set using Central Time (CT). 

Ri ght 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: 

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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 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 (1 0) 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 Affidavit of Indigency, on a form prescribed by the 

Bureau, seeking a waiver of the filing fee. The Affidavit of lndigency may be 

filed contemporaneously with the Notice of Appeal or must be filed within ten 

(1 0) 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 timelv 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 (10) calendar days of the filing of the Expedited 

Hearing Notice of Appeal. Alternatively, the parties may file a statement of the 

evidence within ten ( 1 0) calendar days of the filing of the Expedited Hearing 

Notice of Appeal. The Judge must approve the statement of the evidence before 

the Court Clerk may submit the record to the Clerk of the Appeals Board. 

6. If the appellant elects to file a position statement in support of the interlocutory 

appeal, the appealing party shall file such position statement with the Court Clerk 

within three (3) business days of the filing of the Expedited Hearing Notice of 

Appeal, 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 appellant's position statement. 

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CERTIFICATE OF SERVICE 

~ 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 16th day 

of JulyP 2015. 

r::-:--r-·-··-·-~------.-=----:~--=--r---c-::::·------.----=-=-~ ~ ··················-··-·-·····-~·· 

Name' Certified Via Via Service sent to: 

Mail Fax Email -- .......... ___ .... ---+----

X akh~rani@dhdlaw(cljgmail.com 

X David. wea~hcm1an(a)zurichna.com 

Pen~lerb~G Court of Workers' Compensation Claims 

WC.CourtCierk@tn.gov 

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