Glenn, Terrence v. Sears Outlet Store, LLC

2018 TN WC 189
CourtTennessee Court of Workers' Compensation Claims
DecidedNovember 27, 2018
Docket2017-06-0584
StatusPublished

This text of 2018 TN WC 189 (Glenn, Terrence v. Sears Outlet Store, LLC) is published on Counsel Stack Legal Research, covering Tennessee Court of Workers' Compensation Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Glenn, Terrence v. Sears Outlet Store, LLC, 2018 TN WC 189 (Tenn. Super. Ct. 2018).

Opinion

FILED

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TENNESSEE BUREAU OF WORKERS' COMPENSATION IN THE COURT OF WORKERS' COMPENSATION CLAIMS AT NASHVILLE

Terrance Garcia Glenn, ) Docket No. 2017-06-0584 Employee, ) v. ) Sears Outlet Store, LLC, ) State File No. 48175-2016 Employer, ) And ) Ace American Ins. Co., ) Judge Kenneth M. Switzer Carrier. )

EXPEDITED HEARING ORDER FOR MEDICAL AND TEMPORARY DISABILITY BENEFITS

Terrance Garcia Glenn requested medical and temporary disability benefits for alleged work injuries to his back and neck. 1 Sears Outlet Store asserted he did not provide timely notice and his injuries did not arise primarily out of and in the course and scope of employment. The Court held an expedited hearing on November 20, 2018, and concludes that Mr. Glenn presented sufficient evidence that he would likely prevail at a hearing on the merits for the requested benefits.

History of Claim

Mr. Glenn worked for Sears selling appliances. He testified that late in the morning of May 4, 2016, he sold a commercial refrigerator weighing approximately 400 pounds. 2 About two hours later, Mr. Glenn learned that the refrigerator was moved to the 1 Mr. Glenn also mentioned injuries to his wrist and hips, as well as emotional distress, but the medical records do not document these injuries, and the Court will not consider them at this time. 2 The Dispute Certification Notice lists May 2, 2016, as the date of injury, while the Petition for Benefit . determination lists the date of injury as both May 2 and May 4. Mr. Glenn testified that he did not complete the Petition for Benefit Determination but rather an ombudsman with the Bureau of Workers' Compensation wrote the information because he was heavily medicated at the time. The document states on the last page that a Bureau ombudsman completed the form and it was witnessed by another Bureau loading dock but not loaded onto the customer's vehicle, and the customer threatened to cancel the sale if it were not loaded within ten minutes. Anxious to close the sale, Mr. Glenn attempted to move the refrigerator, which had been placed on wheels. It stopped suddenly when it made contact with a trash pile on the floor; the refrigerator fell backward and struck Mr. Glenn on the top of his head, injuring his head and neck.

Concerning notice, Mr. Glenn testified that immediately after the accident, he told the assistant store manager, Angie Harris, he was hurt and she needed to complete an accident report. According to him, she refused. On cross-examination, he said he gave verbal notice to Ms. Harris and "Miss Amy," a co-worker. Mr. Glenn acknowledged he never gave written notice.

For her part, Ms. Harris testified that she was not present when the accident occurred. She said if Mr. Glenn suffered an injury at work, he was to report it to her and the manager on duty. Ms. Harris said Mr. Glenn never reported an injury to her, but on June 15, he sent her a text saying he "hurt himself; look at the cameras." She did not say whether she or anyone else at Sears checked the surveillance cameras after she received the text. On cross-examination, she could not recall after the accident helping to move the refrigerator while Mr. Glenn allegedly told her his neck hurt. Ms. Harris did not testify about how Sears' lack of knowledge regarding the alleged injury prejudiced its efforts to investigate the claim. 3

As for his medical treatment, Mr. Glenn testified that he went to the emergency room the day after the accident for the neck injury, but he did not introduce these records. Ultimately, Sears offered a panel, and Mr. Glenn chose Dr. James Fish.

The incomplete medical records document a visit in November 2017 that lists Sears' third-party administrator, Sedgwick CMS, as the carrier. Dr. Fish diagnosed lumbar spondylosis, lumbrosacral radiculitis, low-back pain, displacement of lumbar intervertebral disc without myelopathy, spinal stenosis in the cervical region, cervical spondylosis and neck pain. He referred Mr. Glenn to pain management; there is no evidence that Sears offered a panel of pain management specialists. Rather, it sent Dr. Fish a letter in January 2018 asking if Mr. Glenn's condition casually related to his employment. Dr. Fish responded "TBD," which the Court interprets as "to be determined."

employee. The Court notes that dates on state-created documents are controlled by the date identified in the first report of injury, presumably filed by Sears. If that document gave May 2 as the date of injury, then all following state file documents would contain that date despite what Mr. Glenn contends. The Court finds, based on Mr. Glenn's testimony, that the date of injury is May 4, 2016. 3 Mr. Glenn offered extensive testimony without objection regarding disagreements between him and his co-workers, which apparently culminated with him filing charges against Sears with the EEOC sometime before the alleged date of injury. However, this testimony is not relevant to the disputed issues, and the Court declines to recount it.

2 Dr. Fish completed an April 2, 2018 "Work Status Report" taking Mr. Glenn off work for one month. Dr. Fish prepared a later, undated note, stating, "Patient sustained work related injuries to his cervical and lumbar spine. He is still under my care for those issues." Then, at an August 8 office visit, Dr. Fish wrote:

Patient has relayed to me throughout. the course of our care for him that all ofhis neck and back issues stem from the work injury in May of2016. He had 2 significant disc herniations with cervical radiculopathy which necessitated surgical intervention. It is very feasible that a refrigerator falling on an individual directly on the head could result in disc herniations. Patient also has a disc herniation at L5-S 1 and his lumbar spine[,] which again could be due to a fall such as the one he describes. If there is no history of neck or back treatment prior [to] 2016 that [sic] I would have the opinion that the work related injury caused his cervical and lumbar issues.

(Ex. 2 at 13.) Dr. Fish also noted the following history:

He relays to me that on May 4, 2016 he was helping to move a commercial grade refrigerator when the dolly slipped and the refrigerator fell back on top of him hitting his head and neck, driving his body to the floor. He has since then had significant neck pain and low back pain. . . . [H]e denies a history of neck or back pain prior to the work related injury in 2016.

!d. at 14.

Dr. Fish again referred Mr. Glenn to pain management and for an evaluation and treatment with Dr. John Schneider. Dr. Fish did not mention restrictions or excusing him from work at that visit. The notes list the insurer as "BCBS Network P." Mr. Glenn testified that this insurance is through his wife's employment. Mr. Glenn further testified that he receives treatment at a Brentwood pain management clinic, but he was unable to recall the physician's name. An appointment notice in the medical records suggests that he sees Dr. Schneider.

Mr. Glenn acknowledged a physical altercation with a co-worker that happened before the alleged date of injury sometime in 2015, but Mr. Glenn said he did not seriously injure his neck in the encounter. On cross-examination, he agreed he was in a car accident in 2005 or 2006 and that he saw providers since approximately 2006 for his back, neck and other body parts. Mr. Glenn explained they treated "spasms" relating to muscular pain, while Dr. Fish treated fractures to bones in his neck and back. Although Sears questioned Mr. Glenn about these events and asked that he read aloud from some of the records, Sears did not introduce copies of the treatment notes into evidence. Neither

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Related

§ 50-6
Tennessee § 50-6
§ 50-6-102
Tennessee § 50-6-102(14)
§ 50-6-239
Tennessee § 50-6-239(d)(l)

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2018 TN WC 189, Counsel Stack Legal Research, https://law.counselstack.com/opinion/glenn-terrence-v-sears-outlet-store-llc-tennworkcompcl-2018.