TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Terrance Garcia Glenn ) Docket No. 2017-06-0584
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v. ) State File No. 48175-2016
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Sears Outlet Store, LLC, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Kenneth M. Switzer, Chief Judge )
Affirmed and Remanded - Filed February 28, 2019
The employee, an appliance salesman, alleged suffering work-related injuries to his neck,
back, and wrist when a refrigerator he was moving tipped and hit his head. The employer
initially denied the claim, but later authorized medical treatment before eventually
discontinuing benefits, resulting in the employee filing a petition requesting medical care
and temporary disability benefits. Following an expedited hearing, the trial court
determined the employee presented sufficient evidence to establish he would likely
prevail at trial and ordered the employer to provide medical and temporary disability
benefits. The employer has appealed. We affirm the trial court’s decision and remand
the case.
Judge David F. Hensley delivered the opinion of the Appeals Board in which Presiding
Judge Marshall L. Davidson, III, and Judge Timothy W. Conner joined.
Anthony M. Noel and Carolina V. Martin, Nashville, Tennessee, for the employer-
appellant, Sears Outlet Store, LLC
Terrance Garcia Glenn, Cane Ridge, Tennessee, employee-appellee, pro-se
Factual and Procedural Background
Terrance Garcia Glenn (“Employee”) was working as an appliance salesman for
Sears Outlet Store, LLC (“Employer”) on May 4, 2016, when he alleged suffering
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injuries when a refrigerator he was moving tipped over and hit his head.1 Employee
contends that approximately two hours after selling the refrigerator, it had not been
loaded onto the customer’s truck. Because the customer had threatened to cancel the
order if the refrigerator was not promptly loaded, Employee attempted to move it to the
loading area. He asserts that, in the process, the wheels on the refrigerator came into
contact with debris on the floor and the refrigerator tipped backwards, striking him on his
head and causing him to fall to the floor, allegedly causing his injuries. It is unclear from
the record whether the refrigerator fell to the floor or merely tilted to the point it made
contact with Employee’s head.
In a written statement submitted with Employee’s request for an expedited
hearing, Employee states that he “cracked his wrist because [he] tried to[] catch a big
Subzero refrigerator . . . that pulverized [his] . . . body.” At the expedited hearing,
Employee testified he grabbed the handles of the refrigerator “to sprint off with it” and
“bam,” the refrigerator “hit[] on top of my head. I go back and fall back to the floor,”
after which Employee testified he “pushed it on over to the dock.”
Employee testified he reported the injury to the assistant store manager, Angie
Harris, and a co-worker. According to Employee, he told Ms. Harris “I need to fill out an
injury report. Something [sic] wrong with my neck and stuff. I’m hurt really, really
bad.” He acknowledged he never reported the injury in writing. Ms. Harris testified that
she was not present at the time of the alleged incident and that Employee never reported a
work-related injury to her. When asked whether Employee sent her anything around the
date of the alleged incident, she stated “in June he sent – I think it was June 15th, he sent
a text message saying that he hurt hisself [sic] looking at the camera in the building. I
don’t know. Something like that.” On cross-examination, Employee asked Ms. Harris
whether he sent her a document on May 5, 2016, telling her that he “had broken [his]
neck from that refrigerator.” She testified she “found a document,” “[j]ust like something
from, like, a sprain or something, showing a strain or something. But it didn’t say where
it come [sic] from.”
Employee testified he woke up on May 5, 2016, experiencing severe neck pain
and went to an emergency room for treatment.2 While it is unclear from the record when
Employer provided Employee a panel of physicians, Employer ultimately did so, and
Employee chose Dr. James Fish, with whom he had already been treating, as his
authorized physician. The first office note from Dr. Fish in the record is for a March 15,
2017 visit, more than ten months after the alleged incident and prior to Employee’s
selection of Dr. Fish from the panel. Dr. Fish’s report of the March 2017 visit indicated
1 Employee initially identified the incident as occurring on May 2, 2016. After sales records indicated he
did not sell any refrigerators on May 2, but that he did sell a refrigerator on May 4, he alleged a May 4,
2016 date of injury.
2 The record on appeal does not include records of a May 5, 2016 visit to an emergency department.
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Employee was returning for a scheduled follow-up for low back pain that had been
present for one year and was progressive. It noted “parasthesias in the bilateral legs” that
did not follow specific dermatomal patterns and stated that Employee “also had an
[anterior cervical discectomy and fusion] C4-C6 previously and has improved
significantly.” According to the report, Employee reported a variety of symptoms that
had begun ten months earlier, including difficulty walking and right leg weakness. Dr.
Fish ordered a lumbar MRI and referred Employee for a lumbar epidural steroid
injection.
Approximately two weeks later, Employee filed a petition for medical and
temporary disability benefits, followed by a request for an expedited hearing. In an order
addressing a November 20, 2017 status conference, the trial court noted that Employee
had selected Dr. Fish as his treating physician, and that Employee’s first visit since
selecting Dr. Fish “will take place on November 20.” The order stated that “Dr. Fish
must evaluate and treat [Employee] before the claim can move forward.”
The report of Employee’s November 20, 2017 visit with Dr. Fish stated that
Employee had “a myriad of complaints,” including neck pain, mid-back pain, and low
back pain “going into the bilateral lower extremities.” The report again noted the earlier
cervical fusion “in October of 2016,” indicating Employee “has done well.” The report
indicated that the lumbar MRI Dr. Fish previously ordered revealed degenerative disc
disease. Dr. Fish made a referral for pain management for evaluation and treatment of
Employee’s cervical and lumbar spine. However, Employer did not provide Employee a
panel of pain management physicians or arrange for Employee to be evaluated by a pain
management physician.
In January 2018, Dr. Fish responded to a letter from Employer’s workers’
compensation administrator, which requested the doctor answer questions concerning
Employee’s diagnosis and prognosis. The letter also asked whether Employee’s
condition was causally related to his employment. It is unclear which questions some of
the handwritten responses were intended to address. Following a question concerning
Employee’s diagnosis, Dr. Fish wrote “coccydynia and lumbar hnp,” noting that the
clinical finding supporting the diagnoses was “MRI [lumbar] spine.” Beside a series of
questions concerning causation, Dr. Fish wrote “TBD [to be determined]” and noted that
Employee had a herniated disc at L5-S1. The letter questioned whether further care was
necessary “with regards to any part of the current condition that is related to his
employment,” and further requested, “[i]f so, please provide your specific
recommendations.” Beside these questions Dr. Fish wrote “coccygeal injection [and]
lumbar ESI [epidural steroid injection],” which was followed by an arrow pointing to
language stating “if coccydynia will cease treatment” and “if hnp will continue
[treatment].” Finally, the letter asked about Dr. Fish’s recommendations for ongoing
work and activity restrictions “directly necessary for any part of his ongoing injury
deemed work related.” Dr. Fish wrote “light duty at this time.”
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On April 20, 2018, apparently at Employee’s request, Dr. Fish sent a handwritten
note to the trial court stating “[p]atient sustained work related injuries to his cervical and
lumbar spine[.] He is still under my care for those issues.”
Employee was next seen by Dr. Fish on August 8, 2018, and he complained of
continued neck pain and low back pain. The report of the August 8 visit included the
following:
Patient has relayed to me throughout the course of our care for him that all
of his neck and back issues stem from the work injury in May of 2016. He
had [two] significant disc herniations with cervical radiculopathy which
necessitated surgical intervention. It is very feasible that a refrigerator
falling on an individual directly on the head could result in disc herniations.
Patient also has a disc herniation at L5-S1 [in] his lumbar spine which
again could be due to a fall such as the one he describes. If there is no
history of neck or back treatment prior [to] 2016 that [sic] I would have the
opinion that the work related injury caused his cervical and lumbar issues.
. . . .
He relays to me that on May 4, 2016 he was helping to move a commercial
grade refrigerator when the dolly slipped and the refrigerator fell back on
top of him hitting his head and neck, driving his body to the floor. He has
since then had significant neck pain and low back pain. . . . [H]e denies a
history of neck or back pain prior to the work related injury in 2016.
The August 8, 2018 report also noted Dr. Fish’s referral of Employee to Dr. John
Schneider for pain management. While the record includes correspondence indicating
Employee was seen by Dr. Schneider, no reports of Employee’s treatment with Dr.
Schneider or any other pain management specialist were considered by the trial judge.3
In its November 27, 2018 order, the trial court determined Employee presented
sufficient evidence to establish he would likely prevail at a hearing on the merits and
ordered Employer to provide treatment with Dr. Schneider. The court also ordered
Employer to file a wage statement so the court could calculate the correct compensation
rate and issue an order for temporary disability benefits. Employer has appealed.
3 Subsequent to the entry of the trial court’s expedited hearing order, Employee filed documents with the
trial court that were included in the record on appeal. We remanded the case for the trial judge to resolve
any dispute concerning the contents of the record, and the trial court subsequently entered an order stating
the court did not consider the documents submitted by Employee subsequent to the entry of the court’s
order awarding benefits. Accordingly, we will not consider those documents on appeal. See Hadzic v.
Averitt Express, No. 2014-02-0064, 2015 TN Wrk. Comp. App. Bd. LEXIS 14, at *13 n.4 (Tenn.
Workers’ Comp. App. Bd. May 18, 2015).
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Standard of Review
The standard we apply in reviewing a trial court’s decision presumes that the
court’s factual findings are correct unless the preponderance of the evidence is otherwise.
See Tenn. Code Ann. § 50-6-239(c)(7) (2018). When the trial judge has had the
opportunity to observe a witness’s demeanor and to hear in-court testimony, we give
considerable deference to factual findings made by the judge. Madden v. Holland Grp. of
Tenn., Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar deference need
be afforded the trial court’s findings based upon documentary evidence.” Goodman v.
Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at *6 (Tenn.
Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and application of
statutes and regulations are questions of law that are reviewed de novo with no
presumption of correctness afforded the trial court’s conclusions. See Mansell v.
Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are
also mindful of our obligation to construe the workers’ compensation statutes “fairly,
impartially, and in accordance with basic principles of statutory construction” and in a
way that does not favor either the employee or the employer. Tenn. Code Ann. § 50-6-
116 (2018).
Analysis
Employer contends the trial court erred in three respects: (1) in “deeming May 4,
2016 the correct date of injury”; (2) in concluding that Employer had actual notice of the
alleged injury; and (3) in determining Employee would likely prevail at trial in
establishing causation.
Date of Injury
Employee’s petition for benefits identified May 2 as the date of injury in one
location and May 4 in another. Employee testified the incident occurred on May 4. He
was cross-examined extensively as to the date of the accident and the dates on documents
that were either submitted to or issued by the Bureau of Workers’ Compensation
(“Bureau”). Employee testified he did not complete the petition for benefits, but that
personnel in the Bureau filled out the petition. The trial court noted that Employee’s
petition indicated it was completed by Bureau personnel. Employer asserts that
Employee “had numerous opportunities to correct the mistake [in the documents] and
provide the correct date of injury,” and that only after documentary evidence established
that Employee made no sales on May 2 did he “change[] his story during the Expedited
Hearing and allege[] the actual date of injury was May 4, 2016.” The trial court
concluded, “based on [Employee’s] testimony, . . . the date of injury [was] May 4, 2016.”
When the trial judge has seen and heard the witnesses, we give considerable
deference to the court’s credibility and factual determinations. See Tryon v. Saturn
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Corp., 254 S.W.3d 321, 327 (Tenn. 2008). Moreover, “[t]here shall be a presumption
that the findings and conclusions of the workers’ compensation judge are correct, unless
the preponderance of the evidence is otherwise.” Tenn. Code Ann. § 50-6-239(c)(7).
Based on our review of the record, we cannot conclude the evidence preponderates
against the trial court’s finding that the incident occurred on May 4, 2016. Accordingly,
we find no merit in Employer’s first issue.
Notice
Employee acknowledged he never provided Employer written notice of his injury.
However, he testified that immediately after the accident he told the assistant store
manager, Angie Harris, he was hurt and “I need to fill out an injury report.” By contrast,
Ms. Harris testified Employee never reported an injury to her, and she disputed
Employee’s assertion that she was present when the injury occurred. When asked
whether Employee sent her “anything around the date of injury for this claim, early
May,” she responded, “no,” but added that “in June he sent – I think it was June 15th, he
sent a text saying that he hurt hisself [sic] looking at the cameras in his building,” or
“[s]omething like that.” On cross-examination, Employee asked Ms. Harris whether she
received a document he sent to her telling her that he “had broken [his] neck from that
refrigerator.” She said she found a document, stating “it did not say what that document
was for. Just like something from, like, a sprain or something, showing a strain or
something.”
The trial court found Employee’s testimony on the notice issue to be more
credible, stating “[o]verall, he described the day’s event in greater detail.” The trial court
concluded that Employer “had actual notice of the accident immediately after it
happened.”
Employer asserts that the June 15 text message Ms. Harris received from
Employee was late and that, “[d]ue to this late notice, [Employer] was not afforded the
opportunity to conduct an investigation while evidence, such as camera footage, was still
available.” Stating it is important that Employer “offered no evidence regarding its use
of worksite cameras or of any prejudice it suffered as a result of the alleged delay,” the
trial court concluded it need not consider whether Employer was prejudiced by the late
notice because the court concluded Employer “had actual notice” of the injury.
Our review of the trial court’s assessment of in-court testimony is not without
limits. “When it comes to live, in-court witnesses, appellate courts should afford trial
courts considerable deference when reviewing issues that hinge on the witnesses’
credibility because trial courts are uniquely positioned to observe the demeanor and
conduct of witnesses.” Kelly v. Kelly, 445 S.W.3d 685, 692 (Tenn. 2014) (citation and
internal quotation marks omitted). Our review of the record here does not disclose
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sufficient evidence from which we can conclude that the trial court’s assessment of the
witnesses’ credibility was erroneous. Thus, we find no merit in Employer’s second issue.
Causation
Employer’s final issue concerns whether there is sufficient evidence to conclude
Employee will likely prevail at a hearing on the merits in establishing the compensability
of his claim. Although the issue is close, we conclude the evidence does not
preponderate against the trial court’s determination at this interlocutory stage of the case.
The documentary evidence included Dr. Fish’s handwritten responses to the January
2018 letter from Employer’s workers’ compensation administrator, which questioned
Employee’s diagnosis, prognosis, work and activity restrictions, and causation. Although
it is unclear precisely which questions some of Dr. Fish’s responses were intended to
address, the trial court interpreted Dr. Fish’s response to the question concerning whether
Employee’s condition was causally related to his employment to mean it was “to be
determined.” However, in a subsequent handwritten note signed by Dr. Fish and sent to
the Bureau on April 20, 2018, Dr. Fish stated that Employee “sustained work related
injuries to his cervical and lumbar spine.” The note also stated that Employee was “still
under [Dr. Fish’s] care for those issues.”
The report of Employee’s August 2018 visit with Dr. Fish included the doctor’s
observation that Employee had relayed to him throughout the course of Dr. Fish’s
treatment “that all of [Employee’s] neck and back issues stem from the work injury in
May of 2016.” This report noted that Employee “had [two] significant disc herniations
with cervical radiculopathy which necessitated surgical intervention.” Further, the report
stated “[i]t is very feasible that a refrigerator falling on an individual directly on the head
could result in disc herniations,” adding that Employee “also has a disc herniation at L5-
S1 . . . which again could be due to a fall such as the one he describes.” Finally, the
report stated that “[i]f there is no history of neck or back treatment prior [to] 2016,” then
Dr. Fish “would have the opinion that the work related injury caused his cervical and
lumbar issues.”
Employee denied a history of neck or back pain before the May 2016 work injury.
However, on cross-examination, Employer questioned Employee concerning medical
records that pre-dated the May 2016 incident in which Employee had reported cervical
and low back symptoms. Contending that Dr. Fish’s causation opinion was dependent on
Employee’s not having a history of neck or back treatment prior to the May 2016
incident, Employer asserts that Employee’s acknowledgment of medical visits prior to the
May 2016 accident in which he noted cervical and low back pain rendered Dr. Fish’s
opinion insufficient to support the trial court’s determination that Employee would likely
prevail at trial in establishing causation.
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An injured worker has the burden of proof on every essential element of his or her
claim. See Tenn. Code Ann. § 50-6-239(c)(6); 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). However, an employee can meet this burden at an
expedited hearing by presenting sufficient evidence from which the trial court can
determine that the injured employee would likely prevail at a hearing on the merits,
consistent with Tennessee Code Annotated section 50-6-239(d)(1). 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. There is a “presumption that the findings and conclusions of the
workers’ compensation judge are correct, unless the preponderance of the evidence is
otherwise.” Tenn. Code Ann. § 50-6-239(c)(7). Importantly, a doctor need not couch a
medical opinion “in a rigid recitation of the statutory definition,” but, instead, must
include “sufficient proof from which the trial court can conclude that the statutory
requirements of an injury as defined in section 50-6-102(14) are satisfied.” Panzarella v.
Amazon.com, Inc., No. 2015-01-0383, 2017 TN Wrk. Comp. App. Bd. LEXIS 30, at *14
(Tenn. Workers’ Comp. App. Bd. May 15, 2017).
Here, Dr. Fish indicated in January 2018 that causation was “to be determined.”
His April 20, 2018 note stated that Employee “sustained work related injuries to his
cervical and lumbar spine.” In the August 8, 2018 report, Dr. Fish noted that Employee
had relayed to him throughout the course of his treatment that Employee’s “issues stem
from the work injury.” The trial court noted that Dr. Fish’s reports included “a
description of the mechanism of injury that resemble[d] [Employee’s] testimony.” Dr.
Fish noted in the August 2018 report that Employee had significant cervical herniations
that necessitated surgery, adding that “[i]t is very feasible a refrigerator falling on an
individual directly on the head could result in disc herniations.” Dr. Fish also noted the
lumbar disc herniation “could be due to a fall such as the one [Employee] describe[d].”
Finally, Dr. Fish stated that “[i]f there is no history of neck or back treatment prior [to]
2016,” he “would have the opinion that the work related injury caused [Employee’s]
cervical and lumbar issues.” While this evidence falls short of what would be required at
trial to establish causation, we cannot conclude at this interlocutory stage that the
evidence preponderates against the trial court’s determination that Employee “would
likely prevail at a hearing on the merits.” Tenn. Code Ann. § 50-6-239(d)(1).
In reaching this conclusion, we are not unmindful of Employer’s argument that
Employee’s medical records establish a history of pre-injury evaluations for neck and
back complaints. Employer cross-examined Employee concerning medical records that
predated the May 4, 2016 work incident and in which Employee complained of cervical
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and low back issues. However, those medical records were not admitted into evidence,
prompting the trial court to note that it could not consider these records “in their
entirety.” Moreover, the trial court found Employee’s explanation that the previous
problems were “muscular rather than skeletal” to be “plausible.” In light of the trial
court’s determinations regarding the credibility of the testimony, and in the absence of
documentary evidence to the contrary, we cannot conclude that the preponderance of the
evidence addressing causation is otherwise than determined by the trial court.
Conclusion
For the foregoing reasons, we affirm the trial court’s order and remand the case.
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