Ibarra, Grecia M. v. Amazon Fulfillment Services, Inc., , 2019 TN WC 183 ( 2019 )

FILED
Dec 19, 2019
10:16 AM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT CHATTANOOGA
Grecia M. Ibarra, ) Docket No. 2019-01-0368
Employee, )
Vv. )
Amazon Fulfillment Services, Inc., ) State File No. 29413-2019
Employer, )
And )
American Zurich Insurance Company, ) Judge Audrey A. Headrick
Carrier. )
EXPEDITED HEARING ORDER
The Court held an Expedited Hearing on December 9, 2019, to determine whether
Ms. Ibarra is likely to establish at trial that she is entitled to a panel of orthopedists.
Amazon disputed her entitlement to a panel, asserting that Ms. Ibarra failed to provide
timely notice, did not sustain an identifiable injury, and did not prove causation.’ For the
reasons below, the Court holds that Ms. Ibarra is entitled to a panel.
History of Claim
Ms. Ibarra allegedly injured her low back while repetitively lifting heavy boxes
and totes on or about September 15, 2018, while working for Amazon. Ms. Ibarra stated
she complained weekly to her supervisor about the back pain in September as it
worsened. Some days, Ms. Ibarra cried at work or missed work due to the pain. After
reporting her injury, Ms. Ibarra received ice packs and heat pads from Amcare, Amazon’s
on-site medical clinic.” She did not receive a physician panel until April 23, 2019, after
her supervisor’s manager learned of her injury.
' The parties stipulated that Amazon timely submitted additional defenses to the mediator to include with
the Dispute Certification Notice.
* Ms. Ibarra continued working at Amazon performing the same job duties; however, once weekly
Amazon permitted her to work light-duty from September through November.
l
From the panel, Ms. Ibarra selected Dr. Natasha Ballard and saw her on April 29.
She reported back pain for approximately six months from lifting heavy items at work,
which worsened over time. Ms. Ibarra denied any history of back injury or family history
of back problems. Dr. Ballard’s notes reflected “[uJnknown causation” and “[w]ill refer
to ortho for further evaluation.” Approximately two weeks later, Ms. Ibarra received
Amazon’s letter denying her claim. In June, Dr. Ballard responded to a letter from Ms.
Ibarra’s counsel. When asked if she made the orthopedic referral to determine medical
causation regarding Ms. Ibarra’s claimed work injury, Dr. Ballard checked “yes.”
After Amazon’s denial, Ms. Ibarra sought emergency treatment in July for acute
low-back pain.’ The provider ordered a CT lumbar spine scan, which showed a mild
broad-based disc bulge at L4-L5 and a mild central broad-based disc protrusion at L5-S1.
The provider diagnosed a lumbar strain and prescribed pain medication and muscle
relaxants. Other than some unsuccessful chiropractic treatment, Ms. Ibarra received no
further treatment.
Findings of Fact and Conclusions of Law
To prevail at an expedited hearing, Ms. Ibarra must show a likelihood of
prevailing at a hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1) (2019). The
Court holds she did.
Defenses
Amazon raised lack of timely notice as a defense to Ms. Ibarra’s claim. Tennessee
Code Annotated section 50-6-201(a)(1) requires an employee to give written notice of a
work injury “immediately upon the occurrence of an injury, or as soon thereafter as is
reasonable and practicable” to an employer who has no actual notice. However, section
50-6-201(b)(1) requires an employee suffering from a gradual injury to provide notice
within fifteen days after the employee: “(1) [k]nows or reasonably should know that the
employee has suffered a work-related injury that has resulted in permanent physical
impairment.”
Here, Ms. Ibarra’s unrebutted testimony is that she reported her gradual, work-
related back pain to her supervisor in September. She credibly testified she continued
reporting her ongoing back pain to her supervisor and received treatment at Amcare until
she received a panel in April. The Court finds Amazon had actual notice of Ms. Ibarra’s
injury in September 2018 when she reported her injury to her supervisor and when
Amazon modified her work activities. Since Amazon had actual notice of Ms. Ibarra’s
injury, its notice defense fails.
> Ms. Ibarra did not submit a complete copy of the provider’s records. Instead, she provided an After
Visit Summary, which included the CT lumbar spine test results.
2
Next, Amazon raised lack of an identifiable injury as a defense to Ms. Ibarra’s
claim. Tennessee Code Annotated section 50-6-102(13)(A)(1) defines an “accidental”
injury as one “caused by a specific incident, or set of incidents, arising out of and in the
course of employment, and is identifiable by time and place of occurrence.” However,
section 50-6-102(13)(C) recognizes cumulative trauma or repetitive motion conditions as
accidental injuries if “such conditions arose primarily out of and in the course and scope
of employment.”
Amazon presented no proof contradicting Ms. Ibarra’s description of events
occurring in September 2018. Instead, Ms. Ibarra’s unrebutted testimony is that she
developed worsening back pain in September from repetitively lifting heavy boxes and
totes. Therefore, the Court finds that she sustained a gradual injury at Amazon,
identifiable by time and place. Thus, the Court holds Amazon’s lack of identifiable
injury defense fails.
Causation
The remaining question to be resolved is whether Ms. Ibarra appears likely to
prove her low-back condition arose primarily out of her employment at Amazon, which
caused the need for medical treatment. A causation opinion by Dr. Ballard, as panel
physician, is “presumed correct[.]” Tenn. Code Ann. § 50-6-102 (14)(E). However, the
Court finds that Dr. Ballard provided no opinion regarding causation. Thus, denying Ms.
Ibarra’s claim on the basis of lack of causation at this juncture is premature. McCord v.
Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *17-19
(Mar. 27, 2015).
Panel
Regarding her request for the orthopedic referral, Dr. Ballard, her panel physician,
referred Ms. Ibarra to an orthopedist. When the treating physician refers the employee to
a specialist physician, the employer must either accept a specified physician or provide a
panel of specialists within three business days unless it accepts a direct referral. Tenn.
Code Ann. § 50-6-204(a)(3)(A)Gi). Since Dr. Ballard made no specific referral, Amazon
must provide a panel of orthopedic specialists.
IT IS, THEREFORE, ORDERED as follows:
1. Amazon shall provide Ms. Ibarra an orthopedist panel for her back injury under
Tennessee Code Annotated section 50-6-204.
2. This case is set for a Status Hearing on Wednesday, February 12, 2020, at 2:00
p.m. Eastern Time. The parties must call 423-634-0164 or toll-free at 855-383-
3
0001 to participate. Failure to call might result in a determination of the issues
without the party’s participation.
. 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 its
entry under Tennessee Code Annotated section 50-6-239(d)(3). Zurich 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 at WCCompliance.Program/@tn.gov.
. For questions regarding compliance, please contact the Workers’ Compensation
Compliance Unit via email at WCCompliance.Program@tn.gov.
ENTERED December 19, 2019.
Qui dunn Host iG
AUDREY A. HEADRICK
Workers’ Compensation Judge
APPENDIX
Exhibits:
Pel
—
Panel
Dr. Ballard’s causation response
Rule 72 Declaration of Grecia Ibarra
Erlanger medical records
Technical record:
1.
Mm B&B YW bo
Petition for Benefit Determination
Dispute Certification Notice
Request for Expedited Hearing
Response in Opposition to Request for Expedited Hearing
Employer’s Witness and Exhibit List
CERTIFICATE OF SERVICE
I certify that a copy of this Expedited Hearing Order was sent as indicated on December
19, 2019.
Name Certified Email Service sent to:
Mail
Chris Markel, x cmarkel@markelfirm.com
Employee’s Attorney
Tiffany Sherrill, 4 tbsherrill@mijs.com
Employer’s Attorney
PENN
i”) AWA ww WZ nl oernusin
Y SHRUM, COURT CLERK
we.courtclerk@tn.gov
Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1.
Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
form with the Clerk of the Court of Workers’ Compensation Claims within seven
business days of the date the expedited hearing order was filed. When filing the Notice
of Appeal, you must serve a copy upon all parties.
You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of the Notice of Appeal. Payments can be made in-person at
any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
website or any Bureau office) seeking a waiver of the fee. You must file the fully-
completed Affidavit of Indigency within ten calendar days of filing the Notice of
Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
result in dismissal of the appeal.
You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business days of the filing of the Notice of Appeal. The statement of
the evidence must convey a complete and accurate account of the hearing. The Workers’
Compensation Judge must approve the statement before the record is submitted to the
Appeals Board. If the Appeals Board is called upon to review testimony or other proof
concerning factual matters, the absence of a transcript or statement of the evidence can be
a significant obstacle to meaningful appellate review.
If you wish to file a position statement, you must file it with the court clerk within fen
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements 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.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
Bias
EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers’ Compensation
www.th.gov/labor-wid/weomp.shtml:
we.courtclerk@th.gov
1-800-332-2667
Docket #:
State File #/YR:
Employee
Vv.
Employer
Notice
Notice is given that
[List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s) of the Court of Warkers’ Compensation Claims at
to the Workers’ Compensation Appeals
Board. [List the date(s) the order(s) was filed in the court clerk’s office]
Judge
‘Statement of the Issues
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Additional Information
Type of Case [Check the most appropriate iter]
( Temporary disability benefits
C1 Medical benefits for current injury
C1 Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): At Hearing: DEmployer Employee
Address:
Party’s Phone: ___ Email;
Attomey’s Name: BPR#:
Attorney's Address: Phone:
Attomey's City, State & Zip code:
Attorney's Email: : ‘ 2
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 10/18 Page 1 of 2 RDA 11082
Emplayee Name: SFa#: BOK:
Appellee(s)
Appellee (Opposing Party): ._,At Hearing: OEmployer (JEmployee
Appellee’s Address:
Appellee’s Phone: Email:
Attorney's Name: BPR#:
Attorney's Address: Phone:
Attorney’s City, State & ZJp code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, , certify that | have forwarded a true and exact copy of this
Expedited Hearing Notice of Appeal by First Class, United States Mall, postage prepaid, to all parties
and/or thelr attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules
of Board of Workers’ Compensation Appeals on this the day of ,20
[Signature of appellant or attorney for appellant]
LB-1099_ rev. 10/18 Page 2 of 2 RDA 11082
Tennessee Bureau of Workers' Compensation
220 French Landing Drive, !-B
Nashville, TN 37243-1002
800-332-2667
1,
AFFIDAVIT OF INDIGENCY
, having been duly swom according to law, make oath that
because of my poverty, | am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facta support my poverty.
1. Full Name:
3. Telephone Number:
5. Names and Ages of All Dependents:
6. | am employed by:
2. Address:
4. Date of Birth:
Relationship;
Relationship:
Relationship:
Relationship:
My employer's address Is:
My employer's phone number is:
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$
8. | receive or expect to receive money from the following sources:
AFDC $
ssl $
Retirement $
Disability $
Unemployment $
Worker's Comp.$
Other 5
LB-1108 (REV 11/15)
per month
per month
per month
per month
per month
per month
per month
beginning
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RDA 11082
9. My expenses are:
per month
per month
per month
per month
per month
per month
RentHouse Payment $ parmonth Medical/Dental $
Groceries $ per month Telephone $
Electricity $ per month Schoo! Suppites $
Water $ per month Clothing $
Gas $ per month Child Care $
Transportation $ per month Child Support $
Car $ per month
Other $__ per month (describe:
10. Assets:
Automobile 5 (FMV)
Checking/Savings Acct. $
House $ (FMV)
Other $ Describe:
11. My debts are:
Amount Owed
To Whom
hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that | am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, thia
day of
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV 11/15)
,20
RDA 11082