Gumm, Sara v. Buffalo Wild Wings , 2015 TN WC 176 ( 2015 )

IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT KNOXVILLE
SARA M. GUMM, ) Docket No.: 2015-03-0197
Employee, )
)
v. ) State File Number: 36951-2015
BUFFALO WILD WINGS, )
Employer, ) Judge Lisa A. Knott
)
And )
)
SEDGWICK CLAIMS )
MANAGEMENT SERVICES, )
Insurance Carrier. )
EXPEDITED HEARING ORDER GRANTING MEDICAL AND TEMPORARY
DISABILITY BENEFITS
(RECORD REVIEW)
This matter came before the undersigned Workers' Compensation Judge on the
Request for Expedited Hearing filed by the Employee, Sara Gumm, pursuant to
Tennessee Code Annotated section 50-6-239 (2014), and requested an on-the-record
determination of the issues set forth in the Dispute Certification Notice. The Employer,
Buffalo Wild Wings, did not request an in-person evidentiary hearing. This Court finds
that no additional information is needed to determine whether Ms. Gumm is likely to
prevail at a hearing on the merits of the claim. Accordingly, pursuant to Rule 0800-02-
21-.14(l)(c) (2015) of the Tennessee Compilation Rules and Regulations, the Court
decided the issues in this case upon a review of the written materials and without benefit
of an evidentiary hearing.
The present focus of this case is Ms. Gumm's left knee injury. The central legal
issue is whether Ms. Gumm is likely to prevail at a hearing on the merits that her left
knee injury arose primarily out of and in the course and scope of her employment, thus
entitling her to medical and temporary disability benefits. For the reasons set forth
below, the Court finds Ms. Gumm is likely to prevail at a hearing on the merits that her
left knee injury arose primarily out of and in the course of her employment, such that she
is entitled to medical and temporary disability benefits. 1
History of Claim
Ms. Gumm is an eighteen-year-old resident of Blount County, Tennessee. Buffalo
Wild Wings employed Ms. Gumm as a hostess. Ms. Gumm alleges that on May 5, 2015,
she slipped on ice and twisted her left knee. On May 6, 2015, Ms. Gumm presented to
Blount Memorial Hospital emergency room. The triage physician gave Ms. Gumm a
knee immobilizer and crutches and advised to weight bear as tolerated. Ms. Gumm
returned to Blount Memorial emergency room department on May 12, 2015, where she
was referred directly to Springbrook Occupational Therapy.
Dr. Bryan Thompson evaluated Ms. Gumm at Springbrook on May 14, 2015, for
ongoing left knee pain. He diagnosed Ms. Gumm with internal derangement, and
assigned restrictions of both walking and standing up to fifteen minutes per hour. Dr.
Thompson contacted Buffalo Wild Wings to advise that the diagnosis was not yet clear
and further testing would be necessary. Dr. Thompson referred Ms. Gumm back to Dr.
Michael Campbell because Dr. Campbell performed her previous left knee surgery.
Buffalo W·ild Wings provided a panel of physicians. (Ex. 8.) However, neither
party provided a signed copy indicating the selected physician. Dr. Brandon S. A bury 2
OrthoTennessee, evaluated Ms. Gumm on May 29, 2015. (Ex. 5.) He recommended an
MRI for consideration of an ACL tear, and restricted Ms. Gumm from working until her
follow-up appointment. !d. On June 17, 2015, Dr. Asbury reviewed the MRI results,
which demonstrated a patella contusion and no evidence of tears. Dr. Asbury opined:
I do believe that this is a new injury. She has no history of patellar
dislocation in the past so I do believe this is work-related. We will hold her
out of work approximately two further weeks, while we focus on therapy
and re-strengthening of the quadriceps. I do not think this is related to
chondromalacia of the patella, which actually had no evidence of this on
MRI today. !d.
It is unclear which treatment Ms. Gumm underwent and whether her work restrictions
continued post-June 17, 2015, because she did not provide any of Dr. Asbury's
subsequent records.
Ms. Gumm filed a Petition for Benefit Determination seeking temporary disability
and medical benefits. The parties did not resolve the disputed issues through mediation,
1
A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.
2
The panel of physicians did not contain Dr. Asbury. It is unclear whether he was an authorized treating physician.
2
and the Mediating Specialist filed a Dispute Certification Notice. This matter was set for
a show cause hearing, wherein Ms. Gumm advised that she filed a Request for Expedited
Hearing for an on-the-record determination. The undersigned Judge explained to Ms.
Gumm that only the submitted medical records would be considered, and provided
Buffalo Wild Wings an opportunity to respond to the Request for Expedited Hearing.
Subsequently, Ms. Gumm contacted the Court and requested permission to submit
additional medical records. Court staff informed Ms. Gumm if she wanted to submit
additional records, this matter would need to be scheduled for an in-person evidentiary
hearing. On November 19, 2015, Ms. Gumm advised the Court that she would like to
proceed with the previously submitted information.
Based on a review of the record, Ms. Gumm asserts she sustained a work-related
knee injury for which she is entitled to medical and temporary disability benefits. (Ex.
1.) Buffalo Wild Wings countered that Ms. Gumm delayed reporting her injury and
seeking medical treatment. It further countered that the medical records do not state that
Ms. Gumm's injury arose primarily out of and in the course of her employment. (T.R. p.
10.)
Findings of Fact and Conclusions of Law
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). The employee in a workers'
compensation claim has the burden of proof on all essential elements of a claim. Tindall
v. Waring Park Ass 'n, 725 S.W.2d 935, 937 (Tenn. 1987); 3 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). 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,
20 15). 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.
Buffalo Wild Wings alleges Ms. Gumm delayed providing notice of a work-
related injury and seeking medical treatment. However, the First Report of Injury notes
3
The Tennessee Workers' Compensation Appeals Board allows reliance on precedent from the Tennessee Supreme
Court "unless it is evident that the Supreme Court's decision or rationale relied on a remedial interpretation of pre-
July I, 2014 statutes, that it relied on specific statutory language no longer contained in the Workers' Compensation
Law, and/or that it relied on an analysis that has since been addressed by the general assembly through statutory
amendments." McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, at *13 n.4 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).
3
that Ms. Gunn provided notice of her injury and sought medical treatment the day after
the injury. (Exs. 6, 3.) The Court finds Buffalo Wild Wings' allegations of delayed
notice and medical treatment without merit.
Buffalo Wild Wings further alleges that the medical records do not support
causation of a work-related injury. It provided the affidavit of General Manager, Kendra
Hawkins, which noted Ms. Hawkins saw Ms. Gumm bending, squatting, and walking
without any physical problem at the end of her shift on May 5, 2015. (Ex. 2.) Buffalo
Wild Wings asserts the discrepancies in Ms. Gumm's physical exams and her observable
movements point to some cause or worsening outside of her employment. (T.R. p. 10.)
However, Dr. Asbury opined, "I do believe that this is a new injury. She has no history
of patellar dislocation in the past so I do believe this is work-related." (Emphasis added.)
(Ex. 5.) Based on the foregoing, the Court finds that Ms. Gumm is likely to prevail at a
hearing on the merits that her left knee injury arose primarily out of and in the course of
her employment.
An employee is entitled to receive temporary total disability benefits pursuant to
Tennessee Code Annotated section 50-6-207(1) (2014) whenever the employee has
suffered a compensable, work-related injury that has rendered the employee unable to
work. See Simpson v. Satterfield, 564 S.W.2d 953 (Tenn. 1978). In order to establish a
prima facie case for temporary total disability benefits, the worker must show ( 1) that he
or she was totally disabled and unable to work due to a compensable injury, (2) that the
work injury and inability to work are causally connected, and (3) the duration of the
disability. Gray v. Cullom Mach., Tool & Die, Inc., 152 S.W.3d 439, 443 (Tenn. 2004).
On May 14, 2015, Dr. Thompson restricted Ms. Gumm from walking or standing
more than fifteen minutes per hour. Ms. Hawkins' affidavit asserts that Buffalo Wild
Wings was able to accommodate those restrictions. Ms. Gumm did not provide any
information or documentation to refute that assertion. On May 29, 2015, Dr. Asbury
opined that Ms. Gumm should be off work pending her follow-up visit, and on June 17,
2015, he opined that she should be off work until her follow-up visit on July 7, 2015.
(Ex. 5.) Ms. Gumm has established that she was unable to work as a result of the
compensable injury from May 29, 2015, until July 7, 2015. 4 As stated previously, Ms.
Gumm did not submit any post-June 17, 2015 medical records. Therefore, the Court is
unable to determine whether Ms. Gumm is entitled to any temporary disability benefits
beyond July 7, 2015.
Therefore, as a matter of law, Ms. Gumm has come forward with sufficient
evidence from which this Court concludes that she is likely to prevail at a hearing on the
merits. Her request for medical benefits and temporary disability benefits for the periods
4
Buffalo Wild Wings did not submit a wage statement but did reference in its response to the Expedited Hearing
that Ms. Gumm's wages qualify her for the minimum compensation rate of $127.20. Ms. Gumm did not provide
any evidence to the contrary.
4
set forth above is granted at this time.
IT IS, THEREFORE, ORDERED as follows:
1. Medical care for Ms. Gumm's injuries shall be paid, and Buffalo Wild Wings or
its workers' compensation carrier shall provide Ms. Gumm with medical treatment
for these injuries as required by Tennessee Code Annotated section 50-6-204
(2014).
2. The amount of temporary disability benefit is $127.20 per week.
3. Payment of past-due benefits in the amount of $672.34 shall be made for the
period from May 29, 2015, to July 7, 2015.
4. This matter is set for an Initial (Scheduling) Hearing on February I 0, 20 16 at 9:00
am CST/10:00 am EST.
5. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
with this Order must occur no later than seven business days from the date of entry
of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3)
(2014). The Insurer or Self-Insured Employer must submit confirmation of
compliance with this Order to the Bureau by email to
WCCompliance.Program@tn .gov no later than the seventh business day after
entry of this Order. Failure to submit the necessary confirmation within the period
of compliance may result in a penalty assessment for non-compliance.
6. 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.
ENTERED this the 4th day of December, 2015.
Judge Lisa A. Knott
Court of Workers' Compensation Claims
Initial (Scheduling) Hearing:
An Initial (Scheduling) Hearing has been set with Judge Lisa A. Knott, Court of
Workers' Compensation Claims. You must call 865-594-0109 or toll-free at 855-
383-0003 to participate in the Initial Hearing.
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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.
Right to App al:
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:
1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal."
2. File the completed form with the Court Clerk within seven 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 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 Indigency may be filed contemporaneously with the Notice
of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
will consider the Affidavit of lndigency and issue an Order granting or denying
the request for a waiver of the filing fee as soon thereafter as is
practicable. Failure to timely pay the filing fee or file the Affidavit of
lndigency 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 calendar days of the filing of the Expedited
Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
the evidence within ten calendar days of the filing of the Expedited Hearing
Notice of Appeal. The statement of the evidence must convey a complete and
accurate account of what transpired in the Court of Workers' Compensation
Claims and must be approved by the workers' compensation judge before the
record is submitted to the Clerk of the Appeals Board.
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6. If the appellant elects to file a position statement in support of the interlocutory
appeal, the appellant shall file such position statement with the Court Clerk within
five business days of the expiration of the time to file a transcript or statement of
the evidence, specifying the issues presented for review and including any
argument in support thereof. A party opposing the appeal shall file a response, if
any, with the Court Clerk within three business days of the filing ofthe appellant's
position statement. All position statements pertaining to an appeal of an
interlocutory order should include: (1) a statement summarizing the facts of the
case from the evidence admitted during the expedited hearing; (2) a statement
summarizing the disposition of the case as a result of the expedited hearing; (3) a
statement of the issue(s) presented for review; and (4) an argument, citing
appropriate statutes, case law, or other authority.
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APPENDIX
Exhibits:
• EXHIBIT 1: Affidavit of Sara Gumm
• EXHIBIT 2: Affidavit of Kendra Hawkins
• EXHIBIT 3: Medical Records of Blount Memorial Hospital
• EXHIBIT 4: Medical Record ofBMH Occupational Health Center
• EXHIBIT 5: Medical Records ofOrthoTennessee
• EXHIBIT 6: First Report of Work Injury, for date of injury of May 5, 2015
• EXHIBIT 7: Sedgwick Correspondence to Dr. Asbury regarding Causation, dated
June 5, 2015
• EXHIBIT 8: Panel ofPhysicians, Form C42, for date of injury of May 5, 2015
Technical record: 5
Petition for Benefit Determination
Dispute Certification Notice
Show Cause Order
Request for Expedited Hearing
Response of Employer & Insurer to Employee's Request for Expedited Hearing
5
The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as
allegations unless established by the evidence.
8
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 4th day of
December, 2015.
Name Certified Via Via Service sent to:
Mail Fax Email
Sara M. Gumm, X X 3488 Pearly Smith Road
Employee Louisville, TN 3 7777
Jaimawb ite 1024(li2gmaiI. com
James V. Thompson, X jthomQson@raineykizer .com
Esq.
Employer's Counsel
Penny Shrum, Clerk of Court
Court of Workers' Compensation Claims
WC.CourtCierk@tn.gov
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