TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT NASHVILLE
Lloyd Wade, ) Docket No. 2015-06-0970
Employee, )
v. ) State File No. 91748-2015
AAA Cooper Transportation, )
Employer, Self-insured. ) Chief Judge Kenneth M. Switzer
)
EXPEDITED HEARING ORDER DENYING REQUESTED RELIEF
This case came before the undersigned workers' compensation judge on the
Request for Expedited Hearing filed by the employee, Lloyd Wade, pursuant to
Tennessee Code Annotated section 50-6-239 (20 15). The present focus of this case is the
timeliness of the notice of injury and whether Mr. Wade sustained an injury arising
primarily out of and in the course and scope of employment with AAA Cooper. For the
reasons set forth below, the Court finds Mr. Wade provided timely notice, but has not
satisfied his burden at this interlocutory stage to show the injury is work-related.
Therefore, he is not entitled to the requested relief. 1
History of Claim
Mr. Wade is a fifty-nine-year-old resident of Davidson County, Tennessee. He
worked at AAA Cooper and its predecessor as a truck driver for approximately fifteen
years. He served in the United States Marine Corps from 1976 until his honorable
discharge in 1996. Mr. Wade suffered a work-related back injury on October 7, 2005
(Ex. 5), which resolved.
Mr. Wade testified that on May 11, 2015, at approximately 1:30 a.m., he injured
his back when attempting to maneuver heavy office equipment and supplies through a
narrow doorway. According to his affidavit (Ex. 2), Mr. Wade returned to his workplace
and reported his injury to his supervisor, Rick Daniel. Mr. Daniel acted unconcerned and
took no steps to provide medical attention. Mr. Wade continued to work over the next
1
A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.
1
few weeks, despite worsening pain, which he attempted to alleviate with over-the-counter
medications and stretching exercises. Co-workers helped him load his truck, but he
continued to deliver and move equipment on his own. The pain eventually intensified to
the point where he experienced difficulty with tasks of daily living.
The only medical records admitted into evidence at the expedited hearing appear
incomplete 2 and consist of ten pages documenting care at the Department of Veterans
Affairs Tennessee Valley Healthcare System. See generally Ex. 1. A "Medication
Reconciliation" dated May 1, 2015 - prior to the alleged date of injury - lists various
conditions including "back pain." It also indicates Mr. Wade received a steroid injection
and underwent x-rays on that date.
On May 16, 2015, he saw his primary care provider, Lori Emery, FNP. He
offered no notes from this examination into evidence, although the records contain an
MRI report bearing that date and listing Ms. Emery as the referral source. The
"impression" portion of the MRI report listed several lumbar issues. Providers at the VA
memorialized the MRI results in a letter to Mr. Wade sent on or about May 19, 2016,
informing him of a "slipped disc" and that the MRI revealed arthritis in several vertebrae.
A progress note dated June 12, 2016, under "review of symptoms" reads, "States
he is in severe back pain, for the past few months." It is unclear due to missing pages
whether Ms. Emery is the author of that note. She wrote a letter the same day stating that
Mr. Wade "is having an exacerbation of back pain and is in excruciating pain. He is
unable to drive a trucik [sic] for now." The VA records contain no mention of a
workplace incident, and the letter on June 12, 2015, is the first mention of work
restrictions.
According to Mr. Wade, he presented the letter to Mr. Daniel, who told him he
"could not accept that." Thus on June 16, 2015, Mr. Wade completed a Family Medical
Leave Act (FMLA) "Leave of Absence Request." Ex. 7. He testified he completed
FMLA absence request when Mr. Daniel told him he "needed to fill out some
paperwork" because the June 12, 2015 letter from the VA restricted him from working.
Mr. Wade returned to work to take a "Driver Fitness" test on June 29, 2015. The
report documenting the results (Ex. 6) lists a "health history," under which a box is
checked indicating he suffers from "chronic low back pain." Mr. Wade explained the
physician checked the box, but acknowledged he signed the form certifying it to be true
and accurate, so he could, in his opinion, keep his job.
Mr. Wade completed a second "Leave of Absence Request" on June 30, 2015, and
a "Supplemental Leave Request" on September 24, 2015. The September form lists
2
The pages are numbered with several pages missing.
2
options for "reason for leave," including "work-related injury or illness." On Mr. Wade's
form, the box checked reads: "my own serious health condition." (Underlining in
original.) Mr. Wade testified at the hearing that Mr. Daniel assisted him in completing
the FMLA leave requests and, though he did not check that option, he acknowledged
signing the forms.
Mr. Daniel did not appear at the expedited hearing. According to Mr. Daniel's
affidavit (Ex. 3), at no time during the FMLA process did Mr. Wade report a work-
related injury. Moreover, he never reported a June 2015 back injury to anyone at AAA
Cooper during his employment. Instead, Mr. Daniel stated in his affidavit:
Though I cannot recall the specific date, a few months prior to June 2015,
Mr. Wade told me that he was having back pain. At that time, I asked him
if he had sustained a work injury and needed treated. [sic] Mr. Wade
responded that he had not had a work injury and declined treatment. He
informed me that he was treating at the VA for back pain. Mr. Wade did
not tell me about a specific incident, work-related or otherwise, that caused
his back pain, other than he had previously hurt his back while in the
Marine Corps.
Mr. Wade acknowledged discussing his military service at work, but denied hurting his
back while in the Marines. He further denied hurting his back in any previous
employment.
Mr. Wade's FMLA leave expired in November 2015, after which AAA Cooper
terminated him for failing to return to work. He has been unable to work since that time.
Mr. Wade continues treating at the VA for back pain.
Mr. Wade filed his Petition for Benefit Determination on November 16, 2015. He
did not complete the "date of injury" section on the form. The First Report ofinjury (Ex.
4) lists the date of injury as June 12, 2015, but the form is undated and does not indicate
who prepared it. Mr. Wade explained June 12, 2015, was the date he gave AAA Cooper
the letter from Ms. Emery, but the injury actually occurred on May 11, 2015.
After the parties failed to reach an agreement at mediation, the mediating
specialist filed a Dispute Certification Notice indicating that Mr. Wade seeks a panel of
physicians, reimbursement for past medical expenses and past temporary disability
benefits. Mr. Wade filed a Request for Expedited Hearing, and the Court heard the
matter on April21, 2016.
At the expedited hearing, Mr. Wade asserted he sustained an injury by accident
arising primarily out of and in the course and scope of employment when he hurt his back
while delivering heavy office furniture and supplies for AAA Cooper. He additionally
3
argued he reported the injury to Mr. Daniel, but Mr. Daniel failed to offer medical care.
AAA Cooper countered that Mr. Wade is not entitled to workers compensation benefits
because he did not satisfY his burden under McCalP to show he sustained an injury by
accident arising primarily out of and in the course and scope of employment. Further,
AAA Cooper contended Mr. Wade failed to give timely notice of his injuries.
Findings of Fact and Conclusions of Law
In order to grant or deny Mr. Wade's requested relief, the Court must apply the
following legal principles. Mr. Wade bears the burden of proof on all essential elements
of his claim. Scott v. Integrity Staffing Solutions, No. 2015-01-0055, 2015 TN Wrk.
Comp. App. Bd. LEXIS 24, at *6 (Tenn. Workers' Comp. App. Bd. Aug. 18, 2015).
However, he need not prove every element of his claim by a preponderance of the
evidence in order to obtain relief at this 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). Rather, at an expedited hearing, Mr.
Wade has the burden to come forward with sufficient evidence from which the trial court
can determine he is likely to prevail at a hearing on the merits. !d.; Tenn. Code Ann. §
50-6-239(d)(1) (2015).
Notice
The requirement that an employee provide proper notice is a prerequisite to
recovery of benefits. Therefore, the Court will address the issue first. Here, AAA
Cooper asserted Mr. Wade failed to give adequate notice of an alleged injury. Tennessee
Code Annotated section 50-6-201 (2015) provides in pertinent part:
(a)(1) Every injured employee or the injured employee's representative
shall, immediately upon the occurrence of an injury, or as soon thereafter as
is reasonable and practicable, give or cause to be given to the employer
who has no actual notice, written notice of the injury, and the employee
shall not be entitled to physician's fees or to any compensation that may
have accrued under this chapter, from the date of the accident to the giving
of notice, unless it can be shown that the employer had actual knowledge of
the accident. No compensation shall be payable under this chapter, 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
3
Counsel for AAA Cooper referred to controlling case law as McCall [v. Nat'! Health Care Corp.], 100 S.W.3d 209
(Tenn. 2003)]. As noted infra, the more recent authority is McCord v. Advantage Human Resourcing, where the
Tennessee Workers' Compensation Appeals Board cited McCall and characterized the standard of proof adopted by
the general assembly under the Reform Act of2013 as "distinctly similar" to that announced in McCall. 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).
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compensation may be presented.
In Hosford v. Red Rover Preschool, No. 2014-05-0002, 2014 TN Wrk. Comp.
App. Bd. LEXIS I, at *15 (Tenn. Workers' Comp. App. Bd. Oct. 2, 2014), the Appeals
Board explained:
The notice requirement contained in section 50-6-201 "exists so that an
employer will have an opportunity to make a timely investigation of the
facts while still readily accessible, and to enable the employer to provide
timely and proper treatment for an injured employee." Jones v. Sterling
Last Corp., 962 S.W.2d 469, 471 (Tenn. 1998). Consequently, "the giving
of statutory notice to the employer is an absolute prerequisite to the right of
an employee to recover compensation under the workers' compensation
law." Bogus v. Manpower Temp. Serv., 823 S.W.2d 544, 546 (Tenn. 1992).
When lack of notice is raised as a defense, the burden is on the employee to
show that notice was given, the employer had actual notice, or the failure to
give notice was reasonable under the circumstances. Tenn. Code Ann. §
50-6-201(a)(l) (2014); Jones, 962 S.W.2d at 472.
Applying these principles, the Court finds Mr. Wade provided AAA Cooper
adequate notice of his injury. This Court had the opportunity to observe Mr. Wade
testifY. To the Court, Mr. Wade appeared forthcoming, reasonable and honest during his
testimony. These characteristics, according to the Tennessee Supreme Court, are indicia
of reliability. See Kelly v. Kelly, 445 S.W.3d 685, 694-695 (Tenn. 2014). Weighed
against Mr. Daniel's affidavit, the Court finds Mr. Wade's live testimony and affidavit
more credible.
However, our Appeals Board rejected the assertion that "mere notice of an alleged
workplace accident, in and of itself, is sufficient to trigger an employer's duty to provide
medical benefits[.]" McCord, 2015 TN Wrk. Comp. App. Bd. LEXIS 6 at *10, 13.
Instead, the Board explained the statute and rules contemplate that an employer has an
initial period of time following rec ipt of notice of a work accident to investigate the
claim and make a preliminary determination on compensability. 4 /d. at * 12. The Board
4
McCord referenced the Tennessee Compilation Rules and Regulations Chapter 0800-2-14, "Claims Handling
Standards," which outline the steps employers/carriers must take to investigate a claim upon receipt of verbal or
written notice of an alleged workplace injury from an employee. Notably, the rules require employers/insurers to
make a decision on compensability within fifteen days of verbal or written notice of accident. Tenn. Comp. R. &
Regs. 0800-2-14(7) (2015). In addition, "[a]ll pertinent documents ofthe [Bureau] of Workers' Compensation shall
be filed within fifteen (15) days of verbal or written notice of accident." !d. In this matter, the file contains no
notice of denial, and AAA Cooper introduced a wage statement (Ex. 9) into evidence at the expedited hearing, well
past the fifteen-day timeframe for investigation. The "Claims Handling Standards" further provide that, "In addition
to other penalties provided by applicable law and regulation, violations of any of the above rules shall be subject to
enforcement by Commissioner of the Tennessee Department of Labor pursuant to TCA § 50-6-419(c)." Tenn.
Comp R. & Regs. 0800-2-14-.08(1) (2015). Upon its issuance, a copy ofthis Order will be provided to the Penalty
Program in accordance with Tenn. Comp. R. & Regs. 0800-02-24-.03 (20 15). ("In addition to referrals made by a
workers' compensation judge, any [Bureau] employee may refer any person or entity to the penalty program for the
5
reasoned, "An inflexible approach mandating that an employer provide medical benefits
as a matter of course ignores the fact that every case is different and should be evaluated
on its own merits. !d. Further, "the statute limits an employer's duty to provide medical
benefits to cases where the employee has sustained an injury by accident as defined in the
statute." !d. at *11.
Causation
Turning now to the central issue of the case -whether Mr. Wade sustained an
injury arising primarily out of and in the course and scope of his employment - the
starting point of analysis is the statute itself. The Workers' Compensation Law defines
an "injury" as "an injury by accident ... arising primarily out of and in the course and
scope of employment, that causes ... the need for medical treatment." Tenn. Code Ann.
§ 50-6-102(14) (2015). Further, an injury is "accidental":
[O]nly 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, and shall not include the
aggravation of a preexisting disease, condition or ailment unless it can be
shown to a reasonable degree of medical certainty that the aggravation
arose primarily out of and in the course and scope of employment.
Tenn. Code Ann. § 50-6-102(14)(A) (2015).
The statutory requirements that an injury arise out of and in the course of the
employment are not synonymous "although both elements exist to ensure a work
connection to the injury for which the employee seeks benefits." Blankenship v. Am.
Ordnance Sys., 164 S.W.3d 350, 354 (Tenn. 2005). 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. Workers' Comp.
Panel 1993 ). Thus, the course of employment requirement focuses on the time, place,
and circumstances of the injury. Saylor v. Lakeway Trucking, Inc., 181 S.W.3d 314,318
(Tenn. 2005). By 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
employment when there is a causal connection between the conditions under which the
work is required to be performed and the resulting injury. Fritts v. Safety Nat'! Cas.
Corp., 163 S.W.3d 673, 678 (Tenn. 2005). Put another way, an injury arises out of
employment when it "has a rational, causal connection to the work." Braden v. Sears,
Roebuck & Co., 833 S.W.2d 496,498 (Tenn. 1992).
assessment of a civil penalty whenever the referring employee believes that there may have been a violation of the
[Bureau's] rules or the Tennessee Workers' Compensation Act."). The Court reasonably believes there was a
violation of the Bureau's rules.
6
In addition, "[ a]n injury causes death, disablement or the need for medical
treatment only if it has been shown to a reasonable degree of medical certainty that it
contributed more than fifty percent (50%) in causing the death, 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
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) (Internal quotation omitted).
Thus, causation must be established by expert medical testimony, and an employee's lay
testimony, without corroborative expert testimony, does not constitute adequate evidence
ofmedical causation. Scott, 2015 TN Wrk. Comp. App. Bd. LEXIS 24 at *12.
The Court finds Mr. Wade's testimony sufficient to prove he suffered an injury in
the course of employment with AAA Cooper. Mr. Wade's credible, unrefuted testimony
is that he hurt his low back while moving heavy office furniture and supplies through a
narrow doorway at work for AAA Cooper.
Had Mr. Wade received no medical care, this Court would be inclined to order
AAA Cooper to provide a panel upon the Court finding he satisfied his burden to show
that an incident took place at work resulting in injury. At an expedited hearing, an
employee need not establish the compensability of his or her claim by a preponderance of
the evidence, but rather where the employee comes forward with sufficient evidence to
support that a work event resulted in injury, it may also be sufficient to support an order
compelling an employer to provide a panel. See Lewis v. Molly Maid, et al, No. 2015-06-
0456, 2016 TN Wrk. Comp. App. Bd. LEXIS 19, at *8-9 (Tenn. Workers' Comp. App.
Bd. Apr. 20, 2016). However, in the present case there is sufficient medical proof before
the Court, and based on that proof, the Court cannot conclude Mr. Wade's injury is
causally related to his work.
First, the medical records indicate in a note dated May 1, 2016, that Mr. Wade
reported back pain and received an injection prior to the alleged date of injury. Nowhere
in the records admitted into evidence did a provider indicate that Mr. Wade hurt his back
at work. Mr. Wade testified he continues to treat at the VA, but introduced no records
other than the May 1 through June 12, 2015 records. The Court suspects the additional
records, predating and after that timeframe, would likely shed additional light on
causation. It is possible he suffers from a preexisting condition that the May 11, 2015
accident aggravated. But the records do not state that, and this Court cannot award
benefits on the basis of possibility or speculation alone.
Second, the FMLA documents and in particular the September 24, 2014 leave
request do not request leave for a work-related injury. Rather, the option directly below
it- "my own serious health condition" - is checked. Mr. Wade acknowledged signing
this document.
7
*****SUPPLEMENTAL LEAVF.*****
lEAVE OF ABSENCE REQUEST FORM
Name i,.( 0 '\J GJ .(.t:_t\. i l i 2/J 0 lf
Hire Date_:)__;
Employee 10~ ill !Q ~ 9-- location rJvtS -ll tJ::F
Sto lus: V Rogular Pre-regular l'art·tlma
l rcquestpermlsslonl~daysofffrllmworl:!
OR
0 ~~t.~~ (date)
-lf2- through (date)
to be absent on an Intermittent or roduced schedulo: _ _ _ (date) through _ _ _ (date)
for the reuon(s) checked below:
~Ore: If the le>vo request Is for medlcol r