Bailey, Marie v. Amazon

FILED
May 03, 2022
10:22 AM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Marie P. Bailey ) Docket No. 2021-01-0057
)
v. ) State File No. 800047-2021
)
Amazon, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Audrey A. Headrick, Judge )

Affirmed and Remanded

The employee reported an injury to her right arm and shoulder when it was struck by a
large cart at work. The employer initially accepted the claim as compensable and
authorized medical treatment. Following two missed medical appointments, the employer
denied the claim and refused to authorize additional medical care. After an expedited
hearing, the trial court concluded the employee had come forward with sufficient evidence
to show a likelihood of prevailing at trial with respect to her claim for additional medical
benefits. The employer has appealed. We affirm the trial court’s order and remand the
case.

Presiding Judge Timothy W. Conner delivered the opinion of the Appeals Board in which
Judge Pele I. Godkin joined.

W. Troy Hart and Matthew B. Morris, Knoxville, Tennessee, for the employer-appellant,
Amazon

Carmen Y. Ware, Chattanooga, Tennessee, for the employee-appellee, Marie P. Bailey

Factual and Procedural Background

Marie P. Bailey (“Employee”) worked for Amazon (“Employer”) as a sorter. On
November 15, 2020, Employee was moving a large cart when another cart was pushed into
her, causing her to strike her right hand and arm against a cart. Employee reported the
incident and went to Employer’s onsite medical clinic where she received initial treatment
for pain, swelling, and bruising in her hand. The following day, she returned to the onsite
clinic and requested additional medical care. She was provided a panel of physicians from

1
which she selected Dr. Robert Sass. On November 24, 2020, Dr. Sass ordered x-rays of
the right hand, which revealed no fractures, and diagnosed Employee with a contusion of
the right hand. Employee was scheduled for a return visit on December 1, but the record
on appeal contains no report of a medical visit on that date.

On January 1, 2021, Employer notified Employee it had denied her claim due to her
missing two scheduled appointments on December 1 and December 17, 2020. Employer
then terminated her employment as of January 7, 2021. When Employee returned to Dr.
Sass’s office on January 11, 2021, Dr. Sass recommended an MRI of the right hand
“regarding pain [in the] thumb area following crush injury.” There is nothing in the record
indicating the MRI was authorized or completed, and there are no records indicating she
received any additional medical treatment.

Thereafter, Dr. Sass received a “Medical Questionnaire” from Employer’s counsel,
which he answered and signed on May 27, 2021. In question 2, Dr. Sass was advised “[p]er
Tennessee law” that “medical noncompliance occurs when patients fail to attend a single
scheduled doctor’s visit.” Dr. Sass was also advised that Employee had “missed at least
three regularly scheduled visits.” Dr. Sass was then asked, “Was this medical
noncompliance a negative impact on the treatment of [Employee]?” He responded “yes.”
He also responded “yes” to the following questions: “Is it your medical opinion that
[Employee]’s medical noncompliance acted as an intervening event that impacts her
recovery and treatment from her right hand contusion?” and “Do you believe that
[Employee]’s medical noncompliance and the delay in her treatment that it caused
contributed more than fifty percent (50%) in causing her current condition?”

After Employer denied her claim, Employee filed a petition for benefits and a
request for an evidentiary hearing. 1 During the hearing, Employee disputed Employer’s
characterization of the missed medical appointments. She testified she missed the
December 1 appointment because she was diagnosed with COVID-19, and she stated she
was never advised of the December 17 appointment.

Following the hearing, the trial court concluded Employee had come forward with
sufficient evidence to indicate a likelihood of her prevailing at trial in showing an
entitlement to additional medical benefits. The court put little weight on Dr. Sass’s
responses to the medical questionnaire and noted that several of the questions “assumed
facts not in evidence.” The trial court also noted that the statutory remedy for medical
noncompliance, if such noncompliance were proven, is the suspension of benefits during
the period of noncompliance, which was not done in this case. As a result, the court ordered
Employer to authorize additional medical care with Dr. Sass, and Employer has appealed.

1
At the time of the expedited hearing, Employee was self-represented. During the pendency of this appeal,
Employee’s attorney entered an appearance.
2
Standard of Review

The standard we apply in reviewing a trial court’s decision presumes that the court’s
factual findings are correct unless the preponderance of the evidence is otherwise. See
Tenn. Code Ann. § 50-6-239(c)(7) (2021). When the trial judge has had the opportunity
to observe a witness’s demeanor and to hear in-court testimony, we give considerable
deference to factual findings made by the trial court. Madden v. Holland Grp. of Tenn.,
Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar deference need be
afforded the trial court’s findings based upon documentary evidence.” Goodman v.
Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at *6 (Tenn.
Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and application of
statutes and regulations are questions of law that are reviewed de novo with no presumption
of correctness afforded the trial court’s conclusions. See Mansell v. Bridgestone Firestone
N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are also mindful of our
obligation to construe the workers’ compensation statutes “fairly, impartially, and in
accordance with basic principles of statutory construction” and in a way that does not favor
either the employee or the employer. Tenn. Code Ann. § 50-6-116 (2021).

Analysis

The issue in this appeal is whether Employee came forward with sufficient evidence
indicating she is likely to prevail at trial in proving an entitlement to additional medical
benefits. In circumstances where an employer alleges the employee has failed to comply
with prescribed medical treatment or failed to attend medical appointments, a court must
consider several statutory provisions. First, Tennessee Code Annotated section 50-6-
204(a)(3)(A)(i) requires an injured worker to “accept the medical benefits afforded under
this section” if the employer has satisfied its statutory obligation to provide a proper panel
of physicians in accordance with that subsection. In this case, it is undisputed that
Employer provided a proper panel and that Employee selected Dr. Sass from that panel.

Second, if an injured employee “refuses to comply with any reasonable request for
examination or to accept the medical or specialized medical services that the employer is
required to furnish,” then the employee’s “right to compensation shall be
suspended . . . while the injured employee continues to refuse.” Tenn. Code Ann. § 50-6-
204(d)(8) (emphasis added). We previously addressed this subsection in Newell v. Metro
Carpets, LLC, No. 2015-05-0091, 2016 TN Wrk. Comp. App. Bd. LEXIS 57 (Tenn.
Workers’ Comp. App. Bd. Sept. 28, 2016), as follows:

Since at least 1940, the Tennessee Supreme Court has interpreted this
provision to mean that in circumstances where an employee is noncompliant
with medical treatment, “compensation shall be held in abeyance, not
terminated.” Blevins v. Pearson Hardwood Flooring Co., 144 S.W.2d 781,
783 (Tenn. 1940); see also Hughes v. All Weather Insulation Co., 394 S.W.2d

3
638 (Tenn. 1965) (employee’s refusal to undergo recommended surgery
supported suspension of compensation).

Id. at *4-5. Here, it is questionable whether Employee’s actions constituted noncompliance
under subsection 204(d)(8). Employer has provided no evidence establishing Employee
“refused” authorized medical treatment offered by Employer. Employee testified without
refutation that she missed the December 1, 2020 appointment because she had been
diagnosed with COVID-19, and she was not aware of the December 17 appointment. 2
Thus, the evidence submitted at the expedited hearing supports the trial court’s conclusion
that Employee “never refused to accept the medical treatment [Employer] offered.”

Moreover, even if we assume the two missed appointments in December 2020
constituted medical noncompliance in accordance with subsection 204(d)(8), Employer’s
remedy, as noted above, was to suspend Employee’s compensation during the period of
noncompliance. See, e.g., Rhodes v. Amazon.com, LLC, No. 2018-01-0349, 2019 TN Wrk.
Comp. App. Bd. LEXIS 24, at *23-24 (Tenn. Workers’ Comp. App. Bd. June 11, 2019)
(“Employee’s refusal to attend [a medical appointment] based on location [of the
physician’s office] was unreasonable, and Employer appropriately suspended his right to
compensation as provided in section 50-6-204(d)(8).”). Instead, apparently before seeking
any explanation for the missed appointments from Employee, Employer issued a notice of
denial on January 1, 2021, and specifically based its denial on the alleged noncompliance.

Further, Employer’s efforts to support its denial by sending Dr. Sass a medical
questionnaire sometime later is unpersuasive. The questionnaire acknowledges Employee
suffered a work injury, but it asks Dr. Sass to presume certain statements of law as accurate
without providing any support for such statements. For example, the questionnaire
includes the following as a preamble to question 2: “Per Tennessee law, medical
noncompliance occurs when patients fail to attend a single scheduled doctor’s visit.”
(Emphasis added.) This statement of law is unsupported by any statutory or case law
reference. Moreover, question 3 suggested that medical noncompliance can act as “an
intervening event,” but, instead of using that phrase in the context of medical causation,
which is how that term is typically used in workers’ compensation cases, it asked whether
the noncompliance was “an intervening event that impacts her recovery and treatment.” 3
2
Employer asserts in its brief that Employee’s reasons for missing the appointments are immaterial. We
disagree. To establish medical noncompliance, Employer must show Employee refused treatment.
Cancelling an appointment due to a COVID-19 diagnosis and missing an appointment because she was
unaware of it do not demonstrate a refusal to accept medical services. Thus, Employee’s reasons for
missing the appointments are central to the determination of whether medical noncompliance exists.
3
The “independent, intervening act” defense was analyzed by the Tennessee Supreme Court in Anderson
v. Westfield Group, 259 S.W.3d 690 (Tenn. 2008). The defense can be established with evidence that an
independent, intervening act broke the chain of causation between the work-related accident and the
employee’s injury. Id. at 697. The Court made clear that when such a defense is based on an employee’s
conduct, the conduct must be deemed intentional, reckless, or negligent. Id. at 698-99. There is no proof
4
(Emphasis added.) Dr. Sass’s response to that question is irrelevant to the issue of whether
Employee suffered a work-related injury that resulted in the need for medical care.

In its brief, Employer argues that, by assessing the content of the questions posed to
Dr. Sass, the trial court became an advocate for Employee. We disagree. Pursuant to Rule
703 of the Tennessee Rules of Evidence, a trial court is instructed to consider “[t]he facts
or data . . . upon which an expert bases an opinion or inference.” A trial court is further
instructed to disallow opinion testimony “if the underlying facts or data indicate lack of
trustworthiness.” Tenn. R. Evid. 703. When evaluating expert proof, a trial court “is
allowed, among other things, to consider the qualifications of the experts, the
circumstances of their examinations, the information available to them, and the evaluation
of the importance of that information by other experts.” Bass v. The Home Depot U.S.A.,
Inc., No. 2016-06-1038, 2017 TN Wrk. Comp. App. Bd. LEXIS 36, at *9 (Tenn. Workers’
Comp. App. Bd. May 26, 2017) (emphasis added). The trial court had an obligation to
consider the facts or data underlying Dr. Sass’s opinions, including the hypothetical
conditions specified in the question, and it properly did so in this case.

Employer further argues that it “is not obligated to condition [its] questions to
experts in such a way as to present a beneficial case for the Employee.” While we agree
an employer need not couch questions to an expert in a light favorable to the employee, the
manner in which such questions are worded is relevant in considering the expert’s
responses. An employer risks a trial court giving little weight to an expert’s response to a
question that contains one or more misstatements of law or fact. In short, we agree with
the trial court’s assessment of the weight given to Dr. Sass’s responses to the medical
questionnaire.

In sum, it is undisputed that Employee suffered a work-related injury to her right
upper extremity. It is undisputed that Employee selected Dr. Sass as her authorized treating
physician. It is undisputed that Dr. Sass recommended an MRI and additional treatment
as a result of her work-related crush injury. It is undisputed that this recommendation for
additional treatment occurred after the two missed appointments that formed the basis of
Employer’s denial of the claim. Employer’s decision to deny Employee’s claim based on
her missing two medical appointments, without considering any explanation as to why she
missed the appointments, is unsupported by Tennessee law. The delay in treatment caused
by Employee’s unsupported denial of the claim is far more onerous under the
circumstances of this case than the two missed medical appointments.

Finally, Employee has asked that we deem Employer’s appeal frivolous and award
attorneys’ fees and costs. Although we disagree with Employer’s assertions regarding the
applicability of Tennessee Code Annotated section 50-6-204(d)(8) and the independent,

in this record that Employee’s failure to attend medical appointments on December 1 and 17 constituted
intentional, reckless, or negligent conduct and, in fact, Employer made no attempt to offer such proof.
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intervening act defense, we conclude Employer’s appeal is not frivolous under the
circumstances presented in this case.

Conclusion

For the foregoing reasons, we affirm the trial court’s order and remand the case.
Costs on appeal are taxed to Employer.

6
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Marie P. Bailey ) Docket No. 2021-01-0057
)
v. ) State File No. 800047-2021
)
Amazon, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Audrey A. Headrick, Judge )

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced
case was sent to the following recipients by the following methods of service on this the 3rd day
of May, 2022.

Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Matthew B. Morris X mbmorris@mijs.com
W. Troy Hart wth@mijs.com
Carmen Y. Ware X cyware@thewarelawfirm.com
Audrey A. Headrick, Judge X Via Electronic Mail
Kenneth M. Switzer, Chief Judge X Via Electronic Mail
Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov
Workers’ Compensation Claims

Olivia Yearwood
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov