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):
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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 *
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