Bogard, Janice v. Federal Express Corp. , 2023 TN WC 24 ( 2023 )

FILED
Apr 03, 2023
12:01 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
JANICE BOGARD, ) Docket No.: 2022-08-1007
Employee, )
v. )
FEDERAL EXPRESS CORP., ) State File No.: 60211-2022
Employer, )
And )
INDEMNITY INSURANCE ) Judge Shaterra R. Marion
COMPANY OF NORTH AMERICA, )
Carrier. )
___________________________________________________________________________
EXPEDITED HEARING ORDER DENYING MEDICAL AND TEMPORARY
DISABILITY BENEFITS
In a March 27, 2023 expedited hearing, Ms. Bogard requested medical and
temporary disability benefits for alleged right ankle and foot injuries. Federal Express
disputed compensability. Because Ms. Bogard did not identify a work-related incident or
set of incidents to her right foot and ankle, the Court holds that she is unlikely to prevail at
a final hearing on the compensability of her claim.
History of Claim
Ms. Bogard alleged an injury either late evening on October 6 or early morning on
October 7, 2021, when iron and metal fell out of a box onto her foot and ankle. In her
incident report, she wrote that she “[p]icked up a package and metal fell on [her] left foot.”
Similarly, she reported to the onsite provider that she “lifted up a package that had
8 metal parts inside, and they all fell out and struck her L ankle.” An exam showed
tenderness across her “anterior L ankle and lateral ankle.” She attended two appointments
with the provider, and at her final visit four days later, she denied any pain or the need for
further treatment.
Ten months later, Ms. Bogard visited an urgent care clinic with right ankle pain
after “she picked up a box and metal fell onto the foot right / ankle.” The date of injury is
listed as March 10, 2022. X-rays of her right foot and ankle showed some soft tissue
swelling but were otherwise negative, and the provider ordered physical therapy. Notes
from her next visit say that “the WC lady states that she probably needs an MRI because
the DOI is really October of 2021.” But this record and subsequent records continue to list
the date of injury as March 10, 2022.
Seven months after that, Ms. Bogard saw a new doctor with complaints of right foot
pain. She stated she had been experiencing this pain for about eighteen months, since an
“injury in which she dropped heavy object onto R foot at work in October of 2021.” An
x-ray showed no acute fracture or osseous abnormalities, and she was prescribed
medication and home exercises.
Ms. Bogard testified that she actually injured her right foot instead of her left foot
as reported in the injury statement and medical records. She explained that she was
emotional at the time of the original injury statement and made a mistake in writing “left
foot.” She also testified she gave an amended injury statement to her manager listing her
right ankle as the affected body part, but he never gave her a copy despite multiple requests.
Further, she testified that the onsite provider was incorrect and actually treated her right
foot and ankle. She also disputed that she had denied needing further treatment and said
she requested a panel for her right ankle.
Findings of Fact and Conclusions of Law
Ms. Bogard must present sufficient evidence to show she is likely to prevail at a
final hearing. See Tenn. Code Ann. § 50-6-239(d)(1) (2022).
To prevail, Ms. Bogard must first show that her injury arose primarily out of and in
the course and scope of employment. To do so, she must prove a work-related incident or
set of incidents to her right foot and ankle identifiable by time and place of occurrence.
Tenn. Code Ann. § 50-6-102(12)(A). She has not done so.
Although Ms. Bogard is adamant she injured her right foot and ankle on or about
October 7, the Court does not find her testimony consistent with the evidence presented.
When she testified that she rewrote her October 6 statement, the Court did not find this
testimony credible. Her testimony seemed defensive with unreasonable explanations. See
Kelly v. Kelly, 445 S.W.3d 685, 694-695 (Tenn. 2014) (discussing indicia of witness
credibility). Further, her testimony that the October 7 records from the onsite provider are
incorrect was not credible. She visited the onsite provider three separate times, and only
her left foot is referenced.
Additionally, it was not until August 2022 that Ms. Bogard registered complaints
of a right foot and ankle injury. No medical evidence links this right ankle injury to her
initial workplace injury, nor did she present evidence as to why she waited ten months to
seek treatment for her right ankle injury.
Therefore, the Court holds Ms. Bogard is not likely to prevail at a hearing on the
merits that she is entitled to benefits for her right foot and ankle.
IT IS THEREFORE ORDERED as follows:
1. Ms. Bogard’s request for medical and temporary disability benefits is denied.
2. The Court sets a status conference on April 24, 2023, at 11:30 a.m. Central Time.
The parties must call (866) 943-0014 to participate. Failure to call might result in a
determination of the issues without the party’s participation.
ENTERED April 3, 2023.
________________________________________
Judge Shaterra R. Marion
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. First Report of Injury
2. White Sheet with Details of Injury
3. Employee Injury Statement
4. On-Site Injury Prevention Records
5. Concentra Records from August 15, 2022, and August 19, 2022
6. Concentra Records from August 15, 2022 through September 09, 2022
7. Dr. Libby Medical Record from March 20, 2023
1. Statement from Ms. Bogard’s Sister (for identification only)
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Hearing Request, along with Affidavit of Janice Bogard, filed December 27, 2022
4. Order on Status Hearing, dated February 8, 2023
5. Employer’s Expedited Hearing Statement
6. Employer’s List of Witnesses
7. Employer’s Exhibit List
8. Subsequent Injury Fund’s Pre-Expedited Hearing Brief
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing was sent as indicated on April 3, 2023.
Name Certified U.S. Via Service sent to:
Mail Mail Email
Janice Bogard, X X 3325 Wood Plank Road
Employee Apt 101
Memphis, TN 38119
janicebogard50@gmail.com
Salwa Bahhur, X salwa@swlawpllc.com
Employer’s Attorney
Timothy Kellum, X timothy.kellum@tn.gov
Subsequent Injury
Fund Attorney
_____________________________________
Penny Shrum, Court Clerk
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________
Employer
Notice is given that ____________________________________________________________________
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ Other Order filed on_____________________
issued by Judge _________________________________________________________________________.
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
Parties
Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee
Address: ________________________________________________________ Phone: ___________________
Email: __________________________________________________________
Attorney’s Name: ______________________________________________ BPR#: _______________________
Attorney’s Email: ______________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________
Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee
Appellee’s Address: ______________________________________________ Phone: ____________________
Email: _________________________________________________________
Attorney’s Name: _____________________________________________ BPR#: ________________________
Attorney’s Email: _____________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, _____________________________________________________________, certify that I have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the __________ day of ___________________________________, 20 ____.
______________________________________________
[Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082