Miner, Katherine Echardt v, Vaco Holding, LLC , 2016 TN WC 223 ( 2016 )

FILED
September 29 ,~ 201 ~6
TN COURT OF
Y\ ORKIRS' 001/.IPl.NS ..ffiO N
C LAIMS
Time 3 :13PM
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT NASHVILLE
Katherine Eckardt, f/k/a Katherine ) Docket No.: 2015-06-0974
Miner, )
Employee, )
v. )
Vaco Holding, LLC, ) State File Number: 51047-2015
Employer, )
And )
The Hartford, ) Judge Kenneth M. Switzer
Insurance Carrier. )
EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS
This case .came before the undersigned Workers' Compensation Judge on
September 20, 2016, on the Request for Expedited Hearing filed by Katherine Eckardt
under Tennessee Code Annotated section 50-6-239 (2015). The present focus of this case
is the sufficiency of Ms. Eckardt's notice and whether she sustained an injury arising
primarily out of and in the course and scope of her employment. For the reasons set forth
below, the Court holds she is likely to prevail at a hearing on the merits on both issues
and grants her request for medical benefits. 1
History of Claim
Ms. Eckardt worked for Vaco Holding, LLC, a staffing agency, which placed her
fulltime at the Advisory Board Company (ABC) in June or July of 2014. On November
17, 2014, Ms. Eckardt walked into a glass door at ABC, making contact with the door
face first. (Ex. 2 at 1.) She attended a staff meeting shortly afterward where she told
ABC co-workers about the incident. !d. She additionally mentioned it in a self-
deprecating manner via an email circulated the same day to ABC staff. (Ex. 5 at 1.) The
next day, Ms. Eckardt's nose became bruised and swollen from the impact, but it
1
The Court considered only the issues the parties addressed at the Expedited Hearing and did not consider
at this time the additional issues listed on the Dispute Certification Notice. A complete listing of the
technical record and exhibits admitted at the Expedited Hearing is attached to this Order as an appendix.
gradually healed over the next month. She did not seek medical attention in the days and
weeks following the accident. Ms. Eckardt testified she did not realize she sustained a
serious injury, noting that others in the office had run into the door as well and were not
seriously injured.
ABC hired her on January 1, 2015, and she presently works as a senior service line
administrative manager. Ms. Eckardt acknowledged that Vaco paid her prior to that date
and she submitted weekly timesheets to Vaco until becoming an ABC employee. (Ex. 9.)
She conceded she did not notify Vaco about the injury until July 7, 2015.
Ms. Eckardt sought treatment after noticing in January or February 2015 that her
left eye began watering excessively. She telephoned Dr. Anita Cranford, O.D., who
indicated the condition might be a result of allergies and told her to call back if the
problem persisted or worsened. It did, prompting Ms. Eckardt to see Dr. Cranford on
April 23, 2015. Dr. Cranford diagnosed dacryocystitis of the left eye, prescribed Keflex
and Prednisone for seven to ten days, and concluded she would refer Ms. Eckardt to a
specialist if the problem continued. (Ex. 1 at 9.) Notes from that visit listed the "chief
complaint" as "Left upper and lower lid swollen. This happened about the same time hit
by a door on the left side of the face. Getting a discharge now from the left eye." !d. at
8. However, Ms. Eckardt testified the conversation did "not definitively" link the
incident at work with her condition.
After the April 2015 visit with Dr. Cranford, Ms. Eckardt's condition gradually
worsened. She sought emergency treatment at Williamson Medical Center on June 23,
2016, giving a history that "several months ago she accidentally was struck in the face by
door[.]" !d. at 12. Dr. James Cleveland diagnosed dacryocystitis, counseled her on the
"need for follow-up," and referred her to an ophthalmologist, Dr. Daniel Weikert. Dr.
Weikert referred her to Dr. Behin Barahami at Vanderbilt University Medical Center,
whom she saw on July 1 and August 5, 2015. See generally Ex. 1 at 15-24. Ultimately,
Dr. Kelly Everman performed surgery to clear her tear duct on September 9, 2016,
shortly before this hearing. (Ex. 8.) 2
2
Vaco objected to the admissibility of Exhibit 8, a Form C-36 "Attending Physician's Report," arguing it
was not filed ten business days before the scheduled Expedited Hearing in accordance with Tennessee
Compilation Rules and Regulations 0800-02-21-.16(6)( a) (20 15). The Court's Practices and Procedures
Rule 7.01 requires all evidence to be considered by a court during an expedited hearing to be submitted in
accordance with the applicable rules set forth in 0800-02-21. Rule 7.01 additionally provides, "[a]bsent
extraordinary circumstances and approval of the assigned Judge, evidence may not be considered if
submitted after the expiration of the applicable rules and regulations." The Court overruled Vaco's
objection, finding extraordinary circumstances because: I) Ms. Eckardt underwent the surgery fewer than
ten business days before the Expedited Hearing; 2) counsel filed the document on the date of its creation,
September 15, 2016; and, 3) it is relevant to issues before the Court at this interlocutory stage. Having
received the record, the Court relied on no part of the report in making its decision.
2
As for causation, in a letter dated December 29, 2015, Dr. Cranford wrote, "The
dacryocystitis was probably caused by the blow to the left side of her face from the
door," and, "It is my opinion that the only reason for the patient's vision on this date was
because of the injury sustained from the blow from the door." Id. at 7.
Regarding notice to Vaco, Ms. Eckardt reported the injury to ABC on June 23,
2015, following the visit to Williamson Medical Center. 3 ABC advised her on July 7 that
she needed to pursue her claim against Vaco, as she was Vaco's employee at the time of
the injury. On that same day, Ms. Eckardt notified Vaco about the injury. Babette
Stewart, Vaco's Director of Human Resources, confirmed receipt of notice on July 7.
After providing notice, Ms. Eckart proceeded with treatment under the belief it
was covered under workers' compensation until she learned on October 23, 2015, that
was not the case. She immediately telephoned Vaco and spoke to Ms. Stewart, who in a
subsequent conversation, indicated an insurance adjuster was attempting to contact Ms.
Eckardt. Ms. Eckardt denied receiving any messages from the adjuster, and left a
voicemail with the designated adjuster that same day. She spoke with the adjuster on
November 13 and learned of the denial of her claim based on the statute of limitations;
the adjuster incorrectly thought the date of injury was November 1, 2014. (Ex. 11.)
Vaco announced withdrawal of this defense at the Expedited Hearing. 4
As for Vaco's notice defense, Ms. Stewart explained Vaco's procedures for
reporting injuries: Upon receiving notice of an injury, the local office where the injured
employee works contacts the carrier to report the injury, and Ms. Stewart receives a claim
number and updates as the claim progresses. She testified if she were notified, Ms.
Stewart would have informed the carrier; the carrier would have investigated; and Ms.
Eckardt would receive a panel. Ms. Stewart admitted Vaco employees are not trained on
how to report workers' compensation injuries, although Vaco posts signs in its office
regarding claims-reporting procedure. Ms. Stewart acknowledged she does not
investigate claims nor does she know what the carrier does to investigate claims. She
was unaware of what the carrier did after it received notice in July 2015. Ms. Stewart
could not identifY any part of Ms. Eckardt's testimony that was untrue.
Ms. Eckardt filed a Petition for Benefit Determination. After mediation failed, the
3
Ms. Eckardt introduced a series of emails between her and ABC staff notifYing them of the injury and
their response. Vaco objected to the admissibility of the emails and in particular to the responses from
ABC, arguing they are hearsay, and because ABC is not a party, the emails cannot be admitted as an
exception as admissions by a party-opponent. The Court admitted the emails into evidence for
identification purposes only and marked them as Exhibit 6, taking the objection under advisement at the
Expedited Hearing. The Court now sustains the objection. See Tenn. R. Evid. Rule 803 (1.2) (2016).
4
The Dispute Certification Notice lists the date of injury as a disputed issue. Although it appears Vaco no
longer contests this issue, for the sake of clarity, the Court finds Ms. Eckardt's date of injury is November
17,2014.
3
Ms. Eckardt filed a Petition for Benefit Determination. After mediation failed, the
mediator filed a Dispute Certification Notice. Ms. Eckardt subsequently filed a hearing
request.
During the Expedited Hearing, at the close of Ms. Eckardt's proof, Vaco moved to
dismiss her claim for past temporary disability benefits, arguing she did not miss time
from work due to the injury. The Court agreed and granted the motion, observing
additionally that her entitlement to temporary disability benefits was not certified to the
Court as an issue for resolution on the Dispute Certification Notice. Vaco moved to
dismiss the remaining claim for medical benefits, which the Court denied.
Ms. Eckardt contended she gave sufficient notice to Vaco and acted reasonably
under the circumstances. Further, Vaco was not prejudiced by the delay in receiving
notice of the injury, given that the evidence suggests the carrier took no steps to
investigate the claim when it received notice. The medical proof establishes causation.
Vaco countered it should have received notice within thirty days of the event, but that did
not occur. Ms. Eckardt delayed seeking medical treatment for several months until April
2015, so that other causes possibly responsible for infected tear duct could be ruled out.
Findings of Fact and Conclusions of Law
The following general legal principles govern this case. Ms. Eckardt bears the
burden of proof on all prima facie elements of her workers' compensation claim. Tenn.
Code Ann. § 50-6-239(c)(6) (2015); see also Buchanan v. Car/ex Glass Co., No. 2015-
01-0012, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *5 (Tenn. Workers' Comp. App.
Bd. Sept. 29, 2015). Ms. Eckardt need not prove every element of 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). Rather, at an
expedited hearing, Ms. Eckardt has the burden to come forward with sufficient evidence
from which this Court can determine that she is likely to prevail at a hearing on the
merits. Id.
In this particular matter, whether she provided adequate notice and whether she
sustained an injury arising primarily out of and in the course and scope of employment
are the two specific issues, which the Court addresses below.
Notice
The Court first considers Vaco' s notice defense. The Workers' Compensation
Law states in relevant part: "[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
4
satisfaction of the tribunal to which the claim for compensation may be presented."
Tenn. Code Ann. § 50-6-201(a)(1) (2015) (emphasis added). In addition, "No defect or
inaccuracy in the notice shall be a bar to compensation, unless the employer can show to
the satisfaction of the workers' compensation judge before which the matter is pending,
that the employer was prejudiced by the failure to give the proper notice, and then only to
the extent of the prejudice." Tenn. Code Ann.§ 50-6-201(a)(3) (2015).
The Workers' Compensation Appeals Board explained the notice defense as
follows:
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. 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. 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.
Hosford v. Red Rover Preschool, No. 2014-05-0002, 2014 TN Wrk. Comp. App. Bd.
LEXIS 1, at * 15 (Tenn. Workers' Comp. App. Bd. Oct. 2, 2014) (internal citations
omitted).
Applying these legal principles, here, no one disputes that Ms. Eckardt did not
give written notice to Vaco within thirty days of the accident. Therefore, the Court
considers whether she provided a "reasonable excuse" for this failure and whether Vaco
suffered prejudice by her failure to give proper notice.
The Court finds Ms. Eckardt a credible witness. She recounted all relevant events
in sufficient detail and in a straightforward, forthright manner. Based on this testimony
and the providers' records, the Court finds Ms. Eckardt did not realize the potential work-
relatedness or severity of the condition of her left eye duct until the June 23, 2015 visit to
the Williamson Medical Center emergency room. Although notes from an earlier visit
with Dr. Cranford in April 2015 suggest Ms. Eckardt gave a history of being "hit by a
door on the left side of the face," Ms. Eckardt credibly testified that Dr. Cranford did not
"definitively link" the incident and her condition at that time. As for the severity of her
condition, Dr. Cranford's notes confirm at that point the tear duct did not require follow
up, noting a referral would be necessary only if the problem persisted. In contrast, the
June 23, 2015 Williamson Medical Center notes call for follow up within twenty-four to
forty-eight hours.
5
The Court further finds the Williamson Medical Center encounter prompted Ms.
Eckardt to give verbal notice to ABC on June 23, 2015. Ms. Eckardt acted reasonably by
giving notice solely to ABC at that point, given that for close to a year prior, she worked
fulltime in the ABC office and she stopped reporting her time to Vaco approximately six
months beforehand. It appears to the Court that Ms. Eckardt considered herself a fully
integrated ABC team member, and Vaco's role in placing her there, reasonably, became
an afterthought. ABC seemed to share that impression, given that it took approximately
two weeks after the June 23, 2015 notice until it realized Vaco, rather than ABC, is the
responsible employer. As soon as ABC reminded her on July 7, 2015, that Vaco was her
employer on the date of injury, Ms. Eckardt immediately notified Vaco regarding the
injury. The Court holds she satisfied her burden to show her failure to give notice was
reasonable under the circumstances.
Further, as previously stated, the Workers' Compensation Law requires the
employer to show, to the satisfaction of the workers' compensation judge before which
the matter is pending, "that the employer was prejudiced by the failure to give the proper
notice, and then only to the extent of the prejudice." The Court finds Vaco failed to show
prejudice by Ms. Eckardt's failure to give proper notice, in that Ms. Stewart conceded she
does not investigate workers' compensation claims, nor was she aware of any efforts its
carrier took to investigate the claim after July 7, 2015. In fact, the evidence at this point
suggests the carrier took no steps to investigate the claim between that date and the
November 2015 denial. In sum, the Court holds as a matter of law that Ms. Eckardt is
likely to prevail at a hearing on the merits regarding the sufficiency of her notice of injury
to Vaco.
Causation
Next, the Court considers whether Ms. Eckardt has satisfied her burden to show
she sustained an injury arising primarily out of and in the course and scope of her
employment with Vaco. See Tenn. Code Ann. § 50-6-102(14) (2015). The Workers'
Compensation Law provides that 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(14)(B) (2015). Further, "[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).
Applying these standards in this case, Ms. Eckardt credibly testified she became
injured at work by walking into the glass door. Vaco did not refute the testimony, and
the medical records document that she told the providers about the incident when
relaying her history. Further, Dr. Cranford wrote in the December 29, 2015 letter that the
6
dacryocystitis "was probably caused by the blow to the left side of her face from the
door," and, "It is my opinion that the only reason for the patient's vision on this date was
because of the injury sustained from the blow from the door." Vaco introduced no
contrary medical opinion. Moreover, at the expedited hearing stage, per McCord, supra,
Ms. Eckardt need not demonstrate causation by a preponderance of the evidence but only
that she is likely to prevail at a hearing on the merits. On this record, the Court holds she
satisfied that burden.
Ordinarily after reaching that conclusion, the Workers' Compensation Law
requires the employer to provide medical benefits commencing with the provision of a
panel of physicians. See Tenn. Code Ann. § 50-5-204(a)(3)(A)(i) (2015). However,
given that Ms. Eckardt underwent lengthy treatment culminating with surgery earlier this
month, common sense dictates the designation of Dr. Everman as the authorized treating
physician. Vaco shall provide continuing, reasonable, necessary and related care. See
Tenn. Code Ann.§ 50-6-204(a)(l)(A) (2015).
IT IS, THEREFORE, ORDERED as follows:
1. Medical care for Ms. Eckardt's injuries shall be paid and Vaco or its workers'
compensation carrier shall provide Ms. Eckardt with medical treatment for these
injuries as required by Tennessee Code Annotated section 50-6-204 (2015) with
Dr. Everman. Medical bills shall be furnished to Vaco or its workers'
compensation carrier by Ms. Eckardt or the medical providers.
2. This matter is set for an Initial (Scheduling) Hearing on November 8, 2016, at 9:00
a.m. Central.
3. 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)
(2015). 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. 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.
7
ENTERED this the 29th day of Septe ber 2016.
Initial (Scheduling) Hearing:
An Initial (Scheduling) Hearing has been set with Judge Kenneth M. Switzer,
Court of Workers' Compensation Claims. You must call 615-532-9552 or toll-free
at 866-943-0025 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.
Right 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:
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 ord~r, 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 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 timely pay the filing fee or file the Affidavit of
Indigency in accordance with this section shall result in dismissal of the
appeal.
8
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.
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 five business days of the filing of the 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.
9
APPENDIX
Exhibits:
1. Ms. Eckardt's medical records, filed by Vaco: Dr. Cranford; Williamson Medical
Center; Vanderbilt University Medical Center (Subpoena on page 10 omitted)
2. Affidavit of Katherine Miner
3. Wage statement
4. Three photographs of glass door at ABC
5. Email from Ms. Eckardt to Southwind Financial Operations (ABC) entitled
"Huddle Notes," November 17, 2014
6. June 23-July 7, 2015 emails between Ms. Miner and ABC staff-For identification
only
7. Four photographs of Ms. Eckardt's injury
8. Filed September 15, 2016: C-30, Attending Physician's Report: Dr. Everman
9. Vaco timesheet
10. First Report of Injury, July 16, 2016
11.Notice ofDenial, November 13,2016
Technical record: 5
1. Petition for Benefit Determination, November 17, 20 15
2. Event Timeline/Description (Ms. Eckardt's position statement)
3. Employer's position statement, December 4, 2015
4. Dispute Certification Notice, February 17, 2016
5. Request for Expedited Hearing, June 23, 2016
6. Employer's Expedited Hearing Brief, August 10, 2016
7. Order Granting Continuance, August 15, 2016
8. Brief on Behalf of Katherine Eckardt for Expedited Hearing, September 9, 2016
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.
10
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Expedited Hearing Order
Granting Medical Benefits was sent to the following recipients by the following methods
of service on this the 29th day of September, 2016.
Name Certified Via Via Service sent to:
Mail Fax Email
Michael Mills, X Michael.mills@millscooner.comc
Employee's Counsel astbiz.net
Tamara Gauldin, X Tamara.gauldin@thehartford. com
Employer's Counsel
P nny Sh , Clerk of Court
Court of orkers' Compensation Claims
WC.CourtCierk@tn.gov
11