Burleson v. Germantown Partners Supercuts

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Walter Burleson ) Docket No. 2016-08-1241
)
v. ) State File No. 78490-2016
)
Germantown Partners Supercuts, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Amber E. Luttrell, Judge )

Affirmed and Remanded - Filed August 15, 2017

The employee, a stylist at a hair salon, alleges he suffered an injury to his low back when
he assisted a client out of a chair. The employer denied the claim, asserting the employee
did not suffer a specific incident that resulted in his alleged injury. Following an
expedited hearing, the trial court denied temporary disability and medical benefits,
concluding the employee presented insufficient proof that he would likely prevail at trial
in establishing an injury arising primarily out of his employment. The employee has
appealed. We affirm the trial court’s decision and remand the case to the trial court for
any additional proceedings that may be necessary.

Judge David F. Hensley delivered the opinion of the Appeals Board in which Presiding
Judge Marshall L. Davidson, III, and Judge Timothy W. Conner joined.

Monica R. Rejaei, Memphis, Tennessee, for the employee-appellant, Walter Burleson

Gordon C. Aulgur, Lansing, Michigan, for the employer-appellee, Germantown Partners
Supercuts

Memorandum Opinion1

Walter Burleson (“Employee”) alleged suffering an injury to his low back on
September 20, 2016, while assisting a client out of a chair in the course and scope of his
1
“The Appeals Board may, in an effort to secure a just and speedy determination of matters on appeal and
with the concurrence of all judges, decide an appeal by an abbreviated order or by memorandum opinion,
whichever the Appeals Board deems appropriate, in cases that are not legally and/or factually novel or
complex.” Appeals Bd. Prac. & Proc. § 1.3.
1
employment as a stylist with Germantown Partners Supercuts (“Employer”). In an
expedited hearing, he testified he had finished washing the client’s hair and, when the
client stood up, she was unsteady. He stated that when he caught her to prevent her from
falling, his “back gave.” He described feeling immediate pain in his low back and, after
completing the services provided to the client, lying down on the floor in the office at the
rear of the business to seek relief from his pain.

Employee testified the receptionist was standing by the wash station when the
incident occurred and that she saw and talked to him when he was lying down. He
remained at work after the incident, but in the afternoon he asked the assistant manager if
he could leave early. Employee testified he told the assistant manager he needed to leave
because he had injured his back. The assistant manager, who also testified at the
expedited hearing, acknowledged Employee asked to leave work early that day, but stated
he made no mention of having suffered any injury precipitating the request. The assistant
manager further testified that it was not uncommon for Employee to ask to leave early if
business was slow.

Employee testified he went home and lay on his couch and that his symptoms
worsened over the course of the evening and night. He stated he tried to pick up his
daughter but was unable to do so because of the pain, so he sought medical care. He
testified he first sought medical treatment the day following the incident, September 21,
at Baptist Memorial Hospital. The emergency department check-in sheet for that visit
was marked to indicate that the reason for the visit was not work-related. The attending
medical care provider’s notes stated that Employee had felt pain in his back the day
before and that he felt his back “give way” the morning of the visit. The record also
reflected that Employee had seen a doctor that morning and that Employee had
experienced this problem in the past. Employee denied experiencing back problems prior
to the September 20, 2016 incident at work.

The parties agree that Employee called Employer on September 21 to notify
Employer he would not be in to work that day. The manager with whom Employee
spoke denied that Employee indicated his absence was related to a work injury.
Employee, on the other hand, testified he discussed the work injury in this conversation
with his manager. No report of injury was completed at that time. The manager, also a
witness at the expedited hearing, stated that when he learned about the alleged injury he
undertook an investigation of Employee’s claim. In the course of the investigation, he
determined which client Employee was helping at the time of the alleged incident and
interviewed her.2 He stated he also interviewed the receptionist and that neither the client
nor the receptionist reported witnessing any type of incident or injury. According to the

2
Employee testified that he did not remember the name of the client and that he could not confirm
whether the client to whom the manager spoke was the correct person. The manager testified he
determined who the client was by looking at the business records for the day in question.
2
manager, the client stated that she did not fall, that Employee did not grab her, that
Employee did not report an injury to her, and that she did not observe anything wrong
with Employee on the day in question. Neither the client nor the receptionist testified at
the expedited hearing.

Employee was seen by a chiropractor on September 22. The note from that visit
reflects that the chiropractor performed a “re-evaluation,” but it makes no mention of a
work-related injury or any mechanism of injury. The following day, September 23, 2016,
Employee was seen by Dr. Douglas Cannon at Campbell Clinic Orthopedics. The record
of that visit states that Employee “was noticing a little aching Tuesday, and Wednesday
he picked up his daughter and just developed severe pain.”3 Employee testified that Dr.
Cannon’s records were inaccurate and that, rather than picking up his daughter and
feeling pain, he had been unable to pick her up due to his pain. When Employee returned
to Dr. Cannon on September 30, 2016, he reported he was no better. Dr. Cannon
suspected an acute disc herniation and recommended physical therapy, telling Employee
that his insurance company likely would not approve an MRI.

Employee attended physical therapy on October 3, 2016. The record of that visit
is the first indication in the medical records that Employee’s condition was work-related,
stating Employee “reports that about 2 or 3 weeks ago, he was working at his job as a
stylist and was trying to help a woman out of the chair, bent over and felt immediate pain
in his back.” On October 5, 2016, Employee returned to the emergency department at
Baptist Hospital reporting worsening pain. On this visit the emergency department
check-in sheet was marked to indicate that the visit was work-related. An MRI was
performed during Employee’s visit that revealed “L4-5 left paracentral disc herniation
with left lateral recess stenosis and moderate encroachment on the traversing left L5
nerve root.” The October 5, 2016 emergency department report indicated that the
emergency room physician consulted with Dr. Kenan Arnautovic, a neurosurgeon, who
recommended that Employee follow up with him.

Employee saw Dr. Arnautovic on October 11, 2016. Following the doctor’s
examination and review of the MRI films, he indicated that a disc extrusion at L4-5 was
probably the source of Employee’s pain. He recommended surgery, but would not
proceed until it was determined whether Employee’s workers’ compensation claim would
be accepted as compensable. On October 21, 2016, Employer denied the claim, asserting
the alleged injury “did not arise out of or within the scope of employment.”

Employee returned to Dr. Cannon on January 20, 2017, complaining of continued
pain. Dr. Cannon reviewed the October 2016 MRI films and noted multilevel disc
degeneration and small disc herniations at L4-S1. He offered conservative care,
including an epidural steroid injection, and noted the likelihood of future surgical

3
As noted by the trial court, “Tuesday” in this record would correspond to September 20, 2016.
3
intervention. Employee returned to Dr. Cannon two weeks after receiving the epidural
injection and reported brief improvement followed by a worsening of his symptoms. Dr.
Cannon ordered additional diagnostic testing and, after discussing the test results with
Employee, referred him to a surgeon.

Employee was seen by Dr. Francis Camillo, an orthopedic surgeon at Campbell
Clinic, on March 6, 2017. Dr. Camillo’s initial report stated that Employee “was helping
one of his clients out of a chair, and she fell, and he went to grab her.” Dr. Camillo
performed surgery on March 28, 2017.

Following an expedited hearing, the trial court denied the benefits Employee had
requested, concluding Employee failed to present sufficient evidence to show he would
likely prevail at trial in establishing his injury arose primarily out of his employment.
The trial court found that Employee had not established the occurrence of a specific
incident at work resulting in injury. Employee has appealed, asserting the trial court
erred “as to [the] weight given to Employer [sic] witnesses in light of their full testimony
[as] compared with Employee [sic] testimony.” Additionally, Employee asserts that the
medical records “contain sufficient language to meet the statutory definition of injury,
and as such, Employee is entitled to medical and temporary disability benefits.” For the
reasons that follow, we find no merit in Employee’s assertions.

We review a trial court’s decision with “a presumption that the findings and
conclusions of the workers’ compensation judge are correct, unless the preponderance of
the evidence is otherwise.” Tenn. Code Ann. § 50-6-239(c)(7) (2016). At an expedited
hearing, an employee need not prove every element of his or her claim by a
preponderance of the evidence, but must come forward with sufficient evidence from
which the trial judge can determine he or she is likely to prevail at a hearing on the
merits. Tenn. Code Ann. § 50-6-239(d)(1); McCord v. Advantage Human Resourcing,
No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Tenn. Workers’
Comp. App. Bd. Mar. 27, 2015). Thus, an injured worker retains the burden of proof,
albeit a lesser burden, at an expedited hearing. Buchanan v. Carlex Glass Co., No. 2015-
01-0012, 2015 TN Wrk Comp. App. Bd. LEXIS 39, at * 6 (Tenn. Workers. Comp. App.
Bd. Sept. 29, 2015). “To satisfy that burden, an employee must offer evidence of a
‘specific incident, or set of incidents, . . . identifiable by time and place of occurrence.’”
Id. at *14. Moreover, “[w]hen [issues of] credibility and weight to be given testimony
are involved, considerable deference is given to the trial court when the trial judge has
had the opportunity to observe the witness’ demeanor and to hear in-court testimony.”
Foreman v. Automatic Sys., Inc., 272 S.W.3d 560, 571 (Tenn. 2008).

Similar to the present case, Buchanan concerned an employee who alleged a
work-related accident that he claimed to have resulted in a compensable injury. The
employer presented evidence that the event did not occur as the employee reported, and
we held that, even at an expedited hearing, an injured worker must still present sufficient

4
proof that an accident resulting in injury occurred for the trial judge to conclude the
employee is likely to prevail at trial. Buchanan, 2015 TN Wrk. Comp. App. Bd. LEXIS
39, at *14. Here, Employer conducted an investigation, which included speaking with
two individuals who were identified as having witnessed the incident. Based on its
investigation, Employer concluded that the alleged accident did not occur as Employee
claimed. Its investigation further indicated that neither the receptionist nor the client with
whom Employee was working at the time of the purported incident acknowledged
witnessing any event as described by Employee. The medical records immediately
following the alleged incident made no reference to an injury occurring at work or to the
mechanism of injury described by Employee. Rather, they indicated the reason for
Employee’s visits was not work-related and that Employee’s severe pain complaints
began when he picked up his daughter. Two of the medical records referenced possible
prior treatment of Employee’s low back, one of which also suggested Employee had
experienced similar problems in the past. Both Employee’s assistant manager and
manager testified that Employee’s initial communications with them immediately
following the alleged incident made no mention of a work-related injury.

The trial court carefully considered the proof, including the testimony presented at
the expedited hearing, and concluded Employee’s testimony was contradicted and
outweighed by Employer’s witnesses’ testimony. As we have previously observed,

where, as here, there is conflicting evidence, factual findings often hinge on
credibility determinations. As such, “[w]hen the trial court has heard in-
court testimony, considerable deference must be afforded in reviewing the
trial court’s findings of credibility and assessment of the weight to be given
to that testimony.” Tryon v. Saturn Corp., 254 S.W.3d 321, 327 (Tenn.
2008). . . . See Clark v. Willamette Indus., Inc., No. E1999-02693-WC-R3-
CV, 2001 Tenn. LEXIS 138, at *6 (Tenn. Workers’ Comp. Panel Feb. 27,
2001) (“The issue of the credibility of the live witnesses, one of whom was
the [employee], was of critical importance to the case. The trial judge
clearly made a judgment about this issue, as was his prerogative, and his
judgment must be given considerable deference.”); Neas v. Neas, No.
E2015-00292-COA-R3-CV, 2015 Tenn. App. LEXIS 968, at *14 (Tenn.
Ct. App. Dec. 15, 2015) (“The Trial Court, to some extent, implicitly did
not credit [a party’s] explanation. This was within the Trial Court’s
prerogative as the determiner of credibility, and we give strong deference to
trial courts’ credibility determinations.”).

Willis v. Express Towing, No. 2016-06-0702, 2017 TN Wrk. Comp. App. Bd. LEXIS 15,
at *14-15 (Tenn. Workers’ Comp. App. Bd. Feb. 9, 2017). Based on the foregoing, we
decline to disturb the trial court’s findings.

5
Having determined the trial court did not err in concluding Employee failed to
present sufficient evidence that he will likely prevail at trial in establishing a work-related
incident resulting in an injury, neither an assessment of the medical proof nor
consideration of Employee’s request for an award of attorney’s fees is necessary.
Accordingly, we affirm the trial court’s order and remand the case for any further
proceedings that may be necessary.

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

Walter Burleson ) Docket No. 2016-08-1241
)
v. ) State File No. 78490-2016
)
Germantown Partners Supercuts, et al. )

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 15th day of August, 2017.
Name Certified First Class Via Fax Via Email Address
Mail Mail Fax Number Email

Monica Rejaei X mrejaei@nstlaw.com
Gordon Aulgur X gordon.aulgur@accidentfund.com
Amber E. Luttrell, Judge X Via Electronic Mail
Kenneth M. Switzer, X Via Electronic Mail
Chief Judge
Penny Shrum, Clerk, X Penny.Patterson-Shrum@tn.gov
Court of Workers’
Compensation Claims

Matthew Salyer
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