Jones, Betsy A. v. Dollar General , 2017 TN WC 149 ( 2017 )

FILED
August 2, 27017
TENNESSEE BUREAU OF WORKERS’ COMPENSATION =—- 7X COURT OF
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS | pps pewsatton
AT JACKSON CLAIMS
BETSY A. JONES, ) Docket No. 2017-07-0074 Time 12:45 PAL
Employee, )
Vv. )
DOLLAR GENERAL, ) State File No. 910-2017
Employer, )
And, )
STATE NATIONAL INS. CO., ) Judge Allen Phillips
Insurance Carrier. )
EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS
This case came before the undersigned Workers’ Compensation Judge on July 11,
2017, on Betsy Jones’ Request for Expedited Hearing. Ms. Jones requested medical
benefits for a hernia; Dollar General contended the hernia did not meet the statutory
requirements of Tennessee Code Annotated section 50-6-212. Accordingly, the issue is
whether Ms. Jones satisfied the statutory requirements for a compensable hernia. The
Court holds she did and orders medical benefits.
History of Claim
Ms. Jones is a store manager for Dollar General. On December 17, 2016, she
noticed a painless “knot” in her abdomen after stacking forty-pound bags of dog food.
She indicated the knot was in the right-lower quadrant of her abdomen, just above an
appendectomy scar.
On December 27, Ms. Jones first felt pain in the area of the knot when working
with her supervisor, Gayle Blackburn. Ms. Jones reported the pain to Ms. Blackburn, who
told her to call the injury-reporting “hotline.” Ms. Blackburn also completed a First
Report of Work Injury that stated: “[Employee] alleges almost 2 weeks ago she was...
stacking bags of dog food weighing up to 40 Ibs. and a little later noticed a ‘lump’ about
the size of a ‘baseball’ in her abdomen in the RLQ.”’
Ms. Jones called the “hotline,” and a Dollar General representative referred her for
medical evaluation. On December 30, Ms. Jones described the December 17 incident to
Dr. Lawrence Jackson and told him that the knot in her abdomen “started hurting a few
days later and is getting worse.” Dr. Jackson referred Ms. Jones for an ultrasound of her
abdomen which showed “no evidence of right anterior abdominal wall hernia or other
focal abnormality.” However, Ms. Jones contended the technician did not scan the area of
the knot but instead focused on the midline of her abdomen near the navel.
After the ultrasound, Ms. Jones returned to Dr. Jackson, who palpated an
“incisional” hernia “superior to her old appendectomy scar.” He advised Ms. Jones to see
a surgeon.
On January 9, 2017, Dollar General denied the claim on grounds that “[Ms.
Jones’] injury did not occur in the course and scope of employment.” Specifically, Dollar
General contended Ms. Jones’ hernia did not satisfy the requirements of Tennessee Code
Annotated section 50-6-212. At the hearing, Dollar General particularly contested the
statutory requirement that a hernia must be “accompanied by pain,” arguing Ms. Jones
did not experience pain until “several days” after the hernia’s appearance.
For her part, Ms. Jones argued she never had a hernia before December 17. She
admitted she did not feel pain until December 27 but related the pain to the hernia she
first noticed ten days earlier. She requested medical treatment and payment of two
outstanding medical bills.
Findings of Fact and Conclusions of Law
Standard applied
Ms. Jones must come forward with sufficient evidence from which the Court can
determine she is likely to prevail at a hearing on the merits. Tenn. Code Ann. § 50-6-
239(d)(1) (2016). Because she alleged a hernia injury, she must “definitely prove[] to the
satisfaction of the court” that:
(1) There was an injury resulting in hernia or rupture;
(2) The hernia or rupture appeared suddenly;
(3) It was accompanied by pain;
(4) The hernia or rupture immediately followed the accident; and
' Dollar General did not define “RLQ,” but the Court reads it to mean “right lower quadrant” in context.
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(5) The hernia or rupture did not exist prior to the accident for which
compensation is claimed.
Tenn. Code Ann. § 50-6-212(a) (2016).
Analysis
The reason for the strict requirements of section 50-6-212(a) is “to remove the
issue [of what is a compensable hernia] as far as possible from the field of conjecture and
speculation.” Matthews v. Hardaway Contracting Co., 163 S.W.2d 59, 60 (Tenn. 1942)).
Thus, an employee seeking benefits for a hernia must “bring [her] case within the
provisions” of that section. /d. at 62. Guided by this authority, the Court will analyze the
evidence in light of each of the statutory requirements.
(1) Injury resulting in hernia
Ms. Jones testified that she injured herself on December 17 while moving forty-
pound bags of dog food. The Court observed Ms. Jones testify and noted she was self-
assured, confident, and forthcoming. She detailed her injury steadily and without
hesitation. The Court finds her credible. See Kelly v. Kelly, 445 S.W.3d 685, 694-95
(Tenn. 2014). Likewise, the Court finds consistent statements in her affidavit filed with
the hearing request, and in the history she provided Dr. Jackson.
Looking to the medical evidence, the Court notes Dr. Jackson palpated a hernia
and referred Ms. Jones to a surgeon but did not provide a causation opinion. However,
Ms. Jones need not produce a causation opinion at this hearing but must only come
forward with sufficient evidence to show she would likely prevail at a hearing on the
merits. This lessened standard of proof is designed to prevent an injured employee, like
Ms. Jones, from having “to seek out, obtain, and pay for . . . medical evaluation or
treatment before . . . her employer would have any obligation to provide medical
benefits.” McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, at *13-14 (Mar. 27, 2015). “The delays inherent in such an approach, not to
mention the [potential cost barrier for Ms. Jones], would be inconsistent with a fair,
expeditious, and efficient workers' compensation system.” Jd. at *10.
The Court finds Ms. Jones’ testimony and Dr. Jackson’s statements establish that
she would likely prevail at a hearing on the merits regarding the injury requirement.
(2) Sudden appearance
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When our Legislature used the word “suddenly,” it meant that the hernia must
have developed without warning or “without previous notice.” Etter v. Blue Diamond
Coal Co., 215 S.W.2d 803, 806 (Tenn. 1948). Here, Dollar General did not refute that
Ms. Jones first noticed a “knot” in her abdomen after moving bags of dog food. Hence,
the Court finds Ms. Jones satisfied the sudden-appearance requirement.
(3) Accompanied by pain
Ms. Jones testified she felt a sharp pain in the knot on her abdomen on December
27, ten days after she first noticed it. The Court finds this onset of pain satisfies the
statutory requirement.
The Court notes the statute does not attach a time limitation to the “accompanied
by pain” requirement. This absence of a time limitation is unlike other provisions of the
statute that require a “sudden appearance” of a hernia and that it “immediately follow” an
accident. Instead, section 50-6-212(a)(3) simply says a hernia must be “accompanied by
pain,” without providing when an employee must feel the pain. For example, the Appeals
Board explained that an employee who felt pain two days after an incident allegedly
causing a hernia satisfied the pain requirement. Long v. Hamilton-Ryker, 2015 TN Wrk.
Comp. App. Bd. LEXIS 23, at *10 (July 31, 2015). There, the employee had only a
“funny feeling” on the day he lifted heavy objects but then felt a “tweak” of pain over the
next two days. /d. Based on those facts, the Board affirmed an award of benefits.
In this case, Dollar General argued the onset of pain “a day or two” later satisfies
the requirement but that an onset ten days later does not. The Court disagrees. To dictate
when the pain from a hernia must appear grafts onto the statute a requirement that does
not exist. Instead, as our Supreme Court has explained, even the word “immediately”
does not mean “instantaneous;” it means only that a hernia “appears so soon after the
injury that it would not be possible to attribute it to any other cause.” Etter, at 806. Logic
dictates the same regarding the onset of pain here. The Court cannot attribute Ms. Jones’
pain to any cause other than the knot in her abdomen. Accordingly, the Court finds Ms.
Jones satisfied the requirement that her hernia “was accompanied by pain.”
(4) Immediately following the accident
In Etter, the Supreme Court also explained that the meaning of the word
“immediately” depends upon the circumstances and events in connection with which the
word is used. /d. Here, Ms. Jones testified credibly that she felt a defect in her abdomen
after moving merchandise, and the Court finds she satisfied the requirement that her
hernia immediately followed the accident.
(5) The hernia was not pre-existing
The criteria of section 50-6-212 are intended to insure that a hernia “result[ed]
from ‘the accident for which compensation is claimed,’ and not [from] a past condition
[.|” Capps v. Goodlark Med. Ctr., Inc., 804 S.W.2d 887, 889 (Tenn. 1991). Here, Ms.
Jones testified the knot appeared on her abdomen on December 17, and the Court
believes her. Further, she explained the knot was above her thirty-seven-year-old
appendectomy scar. Merely because Dr. Jackson called the hernia “incisional” does not
mean the hernia was preexisting; he too noted it was “superior to her old appendectomy
scar.” Thus, the Court finds Ms. Jones established the requirement that her hernia was not
preexisting.
Conclusion
The Court holds the evidence shows Ms. Jones would likely prevail at a hearing
on the merits in proving she suffered a compensable hernia. Accordingly, Dollar General
“shall furnish [Ms. Jones] . . . such medical and surgical treatment . . . made reasonably
necessary by [her] accident].]” Tenn. Code Ann. § 50-6-204(a)(1)(A) (2016). Namely,
Dollar General shall provide a panel of surgeons to evaluate and treat Ms. Jones.
IT IS, THEREFORE, ORDERED as follows:
1. Dollar General shall provide a panel of surgeons under Tennessee Code
Annotated section 50-6-204(a)(3) for evaluation and/or treatment, including
surgery, of Ms. Jones’ hernia injury of December 17, 2016. Ms. Jones or the
providers shall provide their billing to Dollar General.
2. Dollar General shall pay Ms. Jones’ bills for medical treatment in the following
amounts:
e Three Rivers Hospital-$40.41
e Radiology Alliance-$22.06.
3. This matter is set for a Scheduling (Status) Hearing on Thursday, October 26,
2017, at 10:30 a.m. Central time. You must call 731-422-5263 or toll-free 855-
543-5038 to participate in the Hearing.
4. 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)
(2016). 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
ENTERED this the 2nd day of August, 2017. ip
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.
I lL Lh ‘ I} aw
Allen Phillips, Judg
Court $f Workefs’ ompensation Claims
APPENDIX
Exhibits:
1. Affidavit of Betsy Jones
2. First Report of Injury
3. Notice of Denial of Claim for Compensation
4. Medical Records of Waverly Family Medicine (Dr. Lawrence Jackson)
5. Collective Medical Bills
Technical record:
AYN
Petition for Benefit Determination
Dispute Certification Notice
Request for Expedited Hearing
Order Denying File Review Expedited Hearing
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this Expedited Hearing Order was sent
to the following recipients by the following methods of service on this the 2" day of
August, 2017.
| Name Via Email Service Sent To:
Betsy A. Jones, xX Betsiboo2000(@yahoo.com
Self-Represented Employee
Travis Ledgerwood, Esq., Xx tledgerwood@manierherod.com
Attorney for Employer
7
/ Loe em
Penny Shrum, Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov