FILED ,·.?,,·\t;:···;',!J.,, SEP 161014 f., .....-,.:~'; W Aio '* IJ. \ r! ,,~ \l,lllrtf•• }i ~~ , ; ; ·,. , .( i nt COURT OF ' ( :, ::•~ ;,';:.,\:..: WOI'KEilS COMPENSATION CLA)MS ·-.....,..;:· .Z: '(g f~>-- b; fp tl.nf.b 't. Y1!A-·- COUR.T OF WORKERS' COMPENSATION CLAIMS DIVISION OF WORKERS' COMIJENSATION
EMPLOYEE: .JOYCE WHALEY DOCKET#: 2014-03-0001 STATE FILE#: 54798-2014 EMPLOYER: FIRST TENNESSEE BANK DATE OF INJURY: July 18,2014 NATIONAL
INSURANCE CARRIER: TRUMBULL INSURANCE COMPANY
EXPEDITED HEARING ORDER
TI-JIS CAUSE came beti)re the undersigned Workers' Compensation Judge upon the Request for Expediteu Hearing filed by .Joyce Whaley (Employee). Considering the positions ofthe parties, the applicable law, and all of the evidence submitted the Court hereby finds as follows:
On August 28, 2014, a Request lor Expedited Hearing was filed with the Tennessee Court of Workers' Compensation Claims, Division of Workers' Compensation, by Employee pursuant to Tennessee Code Annotated section 50-6-239 to determine whether Employee is entitled to medical and temporary disability benefits.
ANALYSIS
Issue
Whether Employee's injury arose out of her employment or was idiopathic in nature.
Evidence Submitted
Employee has filed an affidavit and other evidence in support of the Request for Expedited Hearing. Specifically, the Court received and considered the following evidence that was submitted by Employee and marked as Exhibits:
• Exhibit 1: Dispute Certification Notice (DCN) • Exhibit 2: Petition for Benefit Determination (PBD) • Exhibit 3: Stipulation • Exhibit 4: First Report of Work Injury • Exhibit 5: Notice of Denial of Claim for Compensation • Exhibit 6: Written Statement of Ruth Fostmeier • Exhibit 7: Medical Records of Dr. Alan Whiton
Employer has t1led a response to th~ Request for Expedited Hearing. The Court has received and considered the following evidenced that was submitted by Employer and marked as Exhibits:
• Exhibit 8: Wage Statement • Exhibit 9: Panel of Physicians • Exhibit l 0: Case law references
History of Claim
On July 18, 2014, Employee was working as a drive-through teller at Employer's bank. A customer called her name and as she turned to face the teller line, she tripped over her feet and fell injuring her right ankle and foot. She was transported to University of Tennessee Medical Center via ambulance where she was treated in the emergency room and diagnosed with fractures. Employee followed up with orthopedic Dr. Alan Whiton. Dr. Whiton diagnosed her with a closed fracture of her ankle and dosed fracture of her metatarsal bone. Dr. Whiton opined that the fractures were stable and Employee ''can weight bear as tolerated" and her "off work time will depend upon [her] level of pain."
On July 22, 2014, Employer/Carrier issued a Notice of Denial of Claim for Compensation stating that "Employee had [an] idiopathic injury. The Carrier reserves the right to add detenses.'' On August 1, 2014, Employee filed a PBD seeking medical and tempora1y disability benefits and she filed a Motion for Expedited Hearing on August 28, 2014. The matter was heard on September 9, 2014, with Employee, Employer Representative Debbie Mannon, and Employer/CatTier's attorney Blair Cannon participating.
Employee's Contentions
Employee stated that Employer opened at 7: IS a.m. on July 18, 2014. She was working on the drive lhrough line which is offto the side from the teller line. If the person on the teller line is not helping a customer, it is their joh to come help at the drive through line and vice versa. The goal is to greet and be friendly to the customers and assist them in an efficient manner. She testified that a commercial customer was at the teller line and called out her name. She had just finished up with a customer on the drive through line, and pursuant to her job duties, she turned to greet the customer. She testified that as she was turning, she "tripped on her feet and fell." Employee testified that she has made that tum "a million times before and never had a problem." She further testified that she "did not trip on a chair or rug." Employee averred that at the time she fell, she was working and perfo1ming her regular job duties and that is why she thinks it should be covered under workers' compensation.
Employer's Contentions
Employer/Carrier's attorney stated that to have a compensable, work-related injury in Tennessee, the injury must occur in the course of and arise out ofthe employment. In this case, there is no question that the injury occurred "in the course of employment" because Employee was on Employer's premises performing her regular job duties at the time ofinjwy. However, Employee's injury did not "arise out ofher employment." Case law in Tennessee holds that the "mere presence at work at the time of injury will not be enough" and idiopathic injuries do not arise out of the employment unless "some condition of the employment presents a peculiar or additional hazard." Shearon v. Seaman, 198 S.W.3d 209, 214 (Tenn. Ct. App. 2006). 5'ee also, Sudduth v. Williams, 517 S. W. 2d 520 (Tenn. 1974). In addition, the Tennessee Supreme Court has fmiher observed that "Tennessee courts have consistently held that an employee may not recover ti.Jr an injury occurring while walking unless there is an employment hazard, such as a puddle of water or a step, in addition to the injury employee's ambulation." Wilhelm v. Krogers, 235 S.W. 3d 122, 128-129 (Tenn. 2007). Employer/Carrier's attorney stated that Employee has not alleged any hazards incident to her employment that caused her fall. By Employee's own testimony, she tripped over her feet. Therefore, Employee's injury is idiopathic and not covered under workers' compensation.
Findings of Fact and Conclusions of Law
.)'tandard Applied
When determining whether to award benefits, the Judge must decide whether the moving party is likely to succeed on the merits at trial given the infonnation available. See generally, McCall v Nat'! Health Care Corp., I 00 S.W. 3d 209,214 (Tenn. 2003) and Tenn. Code Ann.§ 50- 6-238 (20 12). In a workers' compensation action, pursuant to Tennessee Code Annotated section 50-6-239(c)(6), Employee shall bear the burden of proving each and every element of the claim by a preponderance of the evidence. Employee must show the injury arose primarily out of and in the course and scope of employment. Tenn. Code Ann. § 50-6-1 02(13).
Factual Findings
The paziies stipulated and agreed to all of the facts in this case. The only issue in dispute is the legal issue of whether Employee's fall and injury arose out ofher employment or were idiopathic.
Application ofLaw to Facts
Arising Out of and in the Course of Employment
In Tindall v. Waring Park Ass'n, 725 S. W.2d 935 (Tenn. 1987), the Tennessee Supreme Court ddined the cau!'>al connection required before an injury will be held compensable in workers' compensation. The court opined that causal connection does not mean proximate cause as used in the law of negligence, but cause in the sense that the accident had its origin in the hazards to which the employment exposed the employee while doing his work. ld.
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FILED ,·.?,,·\t;:···;',!J.,, SEP 161014 f., .....-,.:~'; W Aio '* IJ. \ r! ,,~ \l,lllrtf•• }i ~~ , ; ; ·,. , .( i nt COURT OF ' ( :, ::•~ ;,';:.,\:..: WOI'KEilS COMPENSATION CLA)MS ·-.....,..;:· .Z: '(g f~>-- b; fp tl.nf.b 't. Y1!A-·- COUR.T OF WORKERS' COMPENSATION CLAIMS DIVISION OF WORKERS' COMIJENSATION
EMPLOYEE: .JOYCE WHALEY DOCKET#: 2014-03-0001 STATE FILE#: 54798-2014 EMPLOYER: FIRST TENNESSEE BANK DATE OF INJURY: July 18,2014 NATIONAL
INSURANCE CARRIER: TRUMBULL INSURANCE COMPANY
EXPEDITED HEARING ORDER
TI-JIS CAUSE came beti)re the undersigned Workers' Compensation Judge upon the Request for Expediteu Hearing filed by .Joyce Whaley (Employee). Considering the positions ofthe parties, the applicable law, and all of the evidence submitted the Court hereby finds as follows:
On August 28, 2014, a Request lor Expedited Hearing was filed with the Tennessee Court of Workers' Compensation Claims, Division of Workers' Compensation, by Employee pursuant to Tennessee Code Annotated section 50-6-239 to determine whether Employee is entitled to medical and temporary disability benefits.
ANALYSIS
Issue
Whether Employee's injury arose out of her employment or was idiopathic in nature.
Evidence Submitted
Employee has filed an affidavit and other evidence in support of the Request for Expedited Hearing. Specifically, the Court received and considered the following evidence that was submitted by Employee and marked as Exhibits:
• Exhibit 1: Dispute Certification Notice (DCN) • Exhibit 2: Petition for Benefit Determination (PBD) • Exhibit 3: Stipulation • Exhibit 4: First Report of Work Injury • Exhibit 5: Notice of Denial of Claim for Compensation • Exhibit 6: Written Statement of Ruth Fostmeier • Exhibit 7: Medical Records of Dr. Alan Whiton
Employer has t1led a response to th~ Request for Expedited Hearing. The Court has received and considered the following evidenced that was submitted by Employer and marked as Exhibits:
• Exhibit 8: Wage Statement • Exhibit 9: Panel of Physicians • Exhibit l 0: Case law references
History of Claim
On July 18, 2014, Employee was working as a drive-through teller at Employer's bank. A customer called her name and as she turned to face the teller line, she tripped over her feet and fell injuring her right ankle and foot. She was transported to University of Tennessee Medical Center via ambulance where she was treated in the emergency room and diagnosed with fractures. Employee followed up with orthopedic Dr. Alan Whiton. Dr. Whiton diagnosed her with a closed fracture of her ankle and dosed fracture of her metatarsal bone. Dr. Whiton opined that the fractures were stable and Employee ''can weight bear as tolerated" and her "off work time will depend upon [her] level of pain."
On July 22, 2014, Employer/Carrier issued a Notice of Denial of Claim for Compensation stating that "Employee had [an] idiopathic injury. The Carrier reserves the right to add detenses.'' On August 1, 2014, Employee filed a PBD seeking medical and tempora1y disability benefits and she filed a Motion for Expedited Hearing on August 28, 2014. The matter was heard on September 9, 2014, with Employee, Employer Representative Debbie Mannon, and Employer/CatTier's attorney Blair Cannon participating.
Employee's Contentions
Employee stated that Employer opened at 7: IS a.m. on July 18, 2014. She was working on the drive lhrough line which is offto the side from the teller line. If the person on the teller line is not helping a customer, it is their joh to come help at the drive through line and vice versa. The goal is to greet and be friendly to the customers and assist them in an efficient manner. She testified that a commercial customer was at the teller line and called out her name. She had just finished up with a customer on the drive through line, and pursuant to her job duties, she turned to greet the customer. She testified that as she was turning, she "tripped on her feet and fell." Employee testified that she has made that tum "a million times before and never had a problem." She further testified that she "did not trip on a chair or rug." Employee averred that at the time she fell, she was working and perfo1ming her regular job duties and that is why she thinks it should be covered under workers' compensation.
Employer's Contentions
Employer/Carrier's attorney stated that to have a compensable, work-related injury in Tennessee, the injury must occur in the course of and arise out ofthe employment. In this case, there is no question that the injury occurred "in the course of employment" because Employee was on Employer's premises performing her regular job duties at the time ofinjwy. However, Employee's injury did not "arise out ofher employment." Case law in Tennessee holds that the "mere presence at work at the time of injury will not be enough" and idiopathic injuries do not arise out of the employment unless "some condition of the employment presents a peculiar or additional hazard." Shearon v. Seaman, 198 S.W.3d 209, 214 (Tenn. Ct. App. 2006). 5'ee also, Sudduth v. Williams, 517 S. W. 2d 520 (Tenn. 1974). In addition, the Tennessee Supreme Court has fmiher observed that "Tennessee courts have consistently held that an employee may not recover ti.Jr an injury occurring while walking unless there is an employment hazard, such as a puddle of water or a step, in addition to the injury employee's ambulation." Wilhelm v. Krogers, 235 S.W. 3d 122, 128-129 (Tenn. 2007). Employer/Carrier's attorney stated that Employee has not alleged any hazards incident to her employment that caused her fall. By Employee's own testimony, she tripped over her feet. Therefore, Employee's injury is idiopathic and not covered under workers' compensation.
Findings of Fact and Conclusions of Law
.)'tandard Applied
When determining whether to award benefits, the Judge must decide whether the moving party is likely to succeed on the merits at trial given the infonnation available. See generally, McCall v Nat'! Health Care Corp., I 00 S.W. 3d 209,214 (Tenn. 2003) and Tenn. Code Ann.§ 50- 6-238 (20 12). In a workers' compensation action, pursuant to Tennessee Code Annotated section 50-6-239(c)(6), Employee shall bear the burden of proving each and every element of the claim by a preponderance of the evidence. Employee must show the injury arose primarily out of and in the course and scope of employment. Tenn. Code Ann. § 50-6-1 02(13).
Factual Findings
The paziies stipulated and agreed to all of the facts in this case. The only issue in dispute is the legal issue of whether Employee's fall and injury arose out ofher employment or were idiopathic.
Application ofLaw to Facts
Arising Out of and in the Course of Employment
In Tindall v. Waring Park Ass'n, 725 S. W.2d 935 (Tenn. 1987), the Tennessee Supreme Court ddined the cau!'>al connection required before an injury will be held compensable in workers' compensation. The court opined that causal connection does not mean proximate cause as used in the law of negligence, but cause in the sense that the accident had its origin in the hazards to which the employment exposed the employee while doing his work. ld. The mere presence at the place of injury because of employment will not result in the injury being considered as arising out of the employment. !d. The injury must result from a danger or hazard peculiar to the work or be caused by a risk inherent in lhc nature of the work. Thornton v. RCA Serv. Co., 221 S.W .2d 954,955 (Tenn. 1949). Idiopathic Injuries
In Wilhelm v. Krogers, supra, the court reiterated that workers' compensation benefits are usually not awarded when the employee's injury is due to an idiopathic condition and not a "special hazard" of the employment. An idiopathic injury will be compensable, however, "if an employment hazard causes or exacerbates the injury. /d. (quoting Phillips v. A & H Constr. Co., 134 S.W.3d 145, 148 (Tenn. 2004)). A causal link must exist between the employment and the injury for the incident to be considered as arising out of employment. /d at 128. Teru1essee courts have repeatedly held that an injury that occurs while walking is not compensable unless an employment hazard such as a puddle of water exists and causes the injury. ld. at 129 (citing Williams v. Metro. Uov 't ofNashville & Davidson Cnty., No. M2002-03038-WC-R3-CV, 2004 Tenn. LEXIS 148,2004 WL 370296, at *4 (Tenn. Workers' Comp. Panel March 1, 2004)).
Jn this case, there is no dispute that Employee's i1~jury occurred in the course of her employment since she was at work perfom1ing her regular duties at the time of injury. The issue is whether Employee's injury arose out of her employment or was idiopathic in nature. Employee testified that she did not trip on her chair or the rug. She did not identify any hazard specific to her employment that caused her to fall. In tact, she testified that she "tripped over her feet" and made that same tum "a million times before and never had a problem." Therefore, Employee has failed to meet her burden of establishing that her injury arose out of her employment. The Court finds Employee's injury was idiopathic in nature and, as such, she is not entitled to workers' compensation benefits.
IT IS, THEREFORE, ORDERED as follows:
The claim of Employee against Employer or its workers' compensation carrier for the requested medical and temporary disability benefits is tknied on the grounds of compensability.
ENTER~D this the 16th d~y of September 2014.
l&iA.IU,(o1t LISA A. KNOTT Workers' Compensation Judge Right to Appeal:
Tennessee Law allows any party who disagrees with this Expedited I fearing Order to appeal the decision to the Workers' Compensation Appeals Board. To file a Request for Appeal, you must:
I. Complete the enclosed form enlitled: "Request for Appeal".
2. File the completed form with the Court Clerk within seven (7) business duys of the date the Expedited Hearing Order was entered by the Workers' Compensation Judge.
3. Serve a copy ofthe Request for Appeal upon the opposing party. CERTIFICATE OF SERVICE
I hereby certifY that a true and correct copy of the Expedited Hearing Order was sent to the following recipients by the following methods of service on this the 16th day of September, 2014.
Name Certified First Via Fax Via Email Address Mail Class Fax Number Email Mail Joyce E. Whaley X Debbie Mannon X dcmannon~firsthorizon.com Blair Cannon X 1. blair .cannon@thehartford.com
LISA A. KNOTT Workers' Compensation Judge Received Date Stamp Here REQUEST FOR APPEAL Tennessee Division of Workers' Compensation Docket#: - - - - - - - - - www.state.tn.us/iabor-wfd/wcomp.sbtml StateFIIe #/VR:._ _ _ _-' wc.courtderk@tn.gov 1·800-332-2667 RFA #: _ _ _ _ _ _ _ __
Date of Injury: - - - - - - - - SSN: ______________
Style
v.
Notice Notice is given that - - - - - - - - - - - - - - - - - - - - - - - - - - - - [List name(s) of all appealing party(ies) on separate sheet if necessary]
. , Select Office Local ion appeals the order(s) of the Court of Workers' Compensation Cla;ms at - - - - - - - - - - - - - - - -
to the Workers' Compensation Appeals Board. ------------------------------- [List the date(s) the orderls) was flied In the court clerk's office)
Additional Information
Type of Case [Check the most appropriate item]
0 Temporary disability benefits D Medical benefits for current injury 0 Medical benefits under prior order issued by the Court 0 Permanent Disability Benefits (Employee is at maximum medical Improvement)
Compensation Judge_s_e_l_ ec_t_H_e_r_e______________
list of Parties
Appellant (Requesting Party):._ __ _ _ _ _ _.At Compensation Hearing: DPiaintlff DDefendant Address:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Party's Phone:.______ _ _ _ _ _ _ _ _ _ _ Email ;._ _ _ _ _ _ _ _ _ __ _ __ _
Attorney's Narne:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ BPR#; - - - - - - -
Attorney's Address: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Phone: - - - - - - -
Attorney's Address:·- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - Attorney's Email: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
• Attach an additional sheet for each additional Appellrmt • LB rev. /14 Page 1 of 2 RDA 10183 Employee Name: _ _ _ - -- -- SFII: 001: _ _ _ __
Appellegfsl Appellee (Opposing Party):._ _ _ _ _ _ _.....At Compensation Hearing: DPiaintlff ODefendant Appellee's Address: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ Appellee's Phone:.__ _ __ _ _ _ _ _ _ _ _ _ Email:_ _ _ _ _ _ _ _ _ _ _ __
Attorney'sName:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ BPR#: - - - - - - - Attorney's Address:._ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ _ Phone: - - - - - -
Attorney's Address: - - - - - - - - - - - - - - - - - -- -- - - -- - - - Attorney's Email:._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
"'Attach an additional sheet for each additional Appellee "'
CERTIFICATE OF SERVICE
1, certify that I have forwarded a true and exact copy of this Request for Appeal by First Class, United States Mail, postage prepaid, to all parties and/or their 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 rev. /14 Page 2 of 2 RDA 10183