                                                                                     F~ED

                                                                                    July 18, 2016

                                                                                   TN COURT OF
                                                                               WORKERS' CO!\JPI SATION
                                                                                      CLAIMS

                                                                                      Time 9:40AM



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

JASON DUNN,                                  )   Docket No.: 2016-03-0400
         Employee,                           )
v.                                           )
UNITED STATES                                )
INFRASTRUCTURE,                              )   State File No.: 51258-2015
         Employer,                           )
and                                          )
LIBERTY MUTUAL INSURANCE                     )   Judge Lisa Lowe Knott
COMPANY,                                     )
         Carrier.                            )


                          EXPEDITED HEARING ORDER
                         GRANTING MEDICAL BENEFITS
                              (REVIEW OF FILE)


       This matter came before the undersigned Workers' Compensation Judge on the
Request for Expedited Hearing filed by the Employee, Jason Dunn, pursuant to
Tennessee Code Annotated section 50-6-239 (2015). The central legal issue is whether
Mr. Dunn's left shoulder complaints and need for surgery resulted from his right shoulder
injury and resultant surgeries that arose primarily out of and in the course and scope of
his employment.

        Mr. Dunn requested the Court issue a ruling based on a review of the file without
 an evidentiary hearing. The employer, United States Infrastructure, voiced no objection.
 On June 27, 2016, the Court sent a Docketing Notice to the parties regarding the contents
of the record before it and gave the parties until July 7, 2016, to voice any objection to
the documents contained in the record or to offer additional evidence. Neither party
raised any objection to the documents contained in the record or offered any additional
evidence. Considering the positions of the parties, the applicable law, and all of the
evidence submitted, the Court concludes it needs no further information to render
judgment. For the reasons set forth below, the Court finds that Mr. Dunn is likely to


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    prevail at a hearing on the merits and his request for left shoulder surgery is granted. 1

                                                History of Claim

           Mr. Dunn is a thirty-eight-year-old resident of Blount County, Tennessee. United
    States Infrastructure (USI) employed Mr. Dunn as a utility worker.

      On October 17, 2014, Mr. Dunn injured his right shoulder while lifting a manhole
cover at work. He immediately reported the injury to USI. (Ex. 1.) On November 5,
2014, Mr. Dunn came under the care and treatment of authorized physician, Dr. Eric A.
Morgan, who diagnosed a labral tear with rotator cuff and bicep tendinosis. Dr. Morgan
performed surgery on Mr. Dunn's right shoulder in January and October 2015. (Ex. 6.)
Mr. Dunn also attended multiple physical therapy sessions. (Ex. 8.)

       In February 2015, Mr. Dunn began to experience problems with his left shoulder.
Mr. Dunn reported these problems to Dr. Morgan, his physical therapist, Liberty Mutual
Insurance Co., and the nurse case manager. Prior to the work injury at work, Mr. Dunn
did not have problems or symptoms in either of his shoulders. (Ex. 1.)

       Liberty Mutual authorized a left shoulder evaluation. Dr. Morgan diagnosed an
over-compensation injury to the left shoulder, which resulted from the original right
shoulder injury. Dr. Morgan further diagnosed a tear in the glenoid labrum of the left
shoulder, left bicep tendonitis, and an incomplete tear of the left rotator cuff. (Exs. 1, 6.)
After conservative treatment failed to improve Mr. Dunn's left shoulder complaints, Dr.
Morgan recommended surgery, which utilization review approved but Liberty Mutual
denied. (Ex. 4.)

        On April 20, 2016, Mr. Dunn underwent an independent medical evaluation
performed by Dr. Edward Kahn. Dr. Kahn noted the MRI showed evidence of tendonitis
but not a frank tear. When asked about causation, Dr. Kahn concluded the left shoulder
injury was age-related, not the result of a specific injury, and not caused by the October
17, 20 14 work incident. (Ex. 9.)

       In his affidavit, Mr. Dunn stated he did not have issues with either of his shoulders
before he sustained the work-related right shoulder injury. He further claimed his left
shoulder injury occurred because of the work-related right shoulder injury and he would
not need left shoulder surgery but for his original injury. Mr. Dunn relied upon Dr.
Morgan's March 10, 2016 letter wherein he opined Mr. Dunn's left shoulder condition is
more likely than not causally related to the October 17, 2014 work injury and that the
recommended surgery is reasonable and necessary. (Ex. 6.)

1
  A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.

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        USI countered that Mr. Dunn has not met his burden of proof because Dr. Kahn
opined Mr. Dunn's left shoulder was age-related and not related to the workplace injury.
Dr. Kahn also replied "no" when asked if Mr. Dunn's employment contributed more than
fifty percent in causing his left shoulder symptoms.

                           Findings of Fact and Conclusions of Law

        The employee in a workers' compensation claim has the burden of proof on all
essential elements of a claim. Scott v. Integrity Staffing Solutions, No. 2015-01-0055,
2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn. Workers' Comp. App. Bd. Aug.
18, 20 15). However, Mr. Dunn need not prove every element of his claim by a
preponderance of the evidence in order to obtain relief at an Expedited Hearing. McCord
v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015). At an Expedited
Hearing, Mr. Dunn has the burden to come forward with sufficient evidence from which
the trial court can determine that the he is likely to prevail at a hearing on the merits. ld.

       To be compensable under the workers' compensation statutes, an injury must arise
primarily out of and occur in the course and scope of the employment. Tenn. Code Ann.
§ 50-6-102(14) (2015). An injury means "an injury be accident ... arising primarily out
of and in the course and scope of employment, that causes death, disablement or the need
for medical treatment of the employee." ld. For an injury to be accidental, it must be
"caused by a specific incident, or set of incidents, arising primarily out of and in the
course and scope of employment, and is identifiable by time and place of occurrence, and
shall not include the aggravation of a preexisting disease, condition or ailment unless it
can be shown to a reasonable degree of medical certainty that the aggravation arose
primarily out of and in the course and scope of employment." Tenn. Code Ann. § 50-6-
102(14)(A) (2015).

        An injury arises primarily out of and in the course and scope of employment "only
if it has been shown by a preponderance of the evidence that the employment contributed
more than fifty percent (50%) in causing the injury, considering all causes." Tenn. Code
Ann. § 50-6-102(14)(B) (2015). Further, "[a]n injury causes death, disablement or the
need for medical treatment only if it has been shown to a reasonable degree of medical
certainty that it contributed more than fifty percent (50%) in causing the death,
disablement or need for medical treatment, considering all causes." Tenn. Code Ann. §
50-6-102(14)(C) (2015). An injury is shown to a reasonable degree of medical certainty
if "in the opinion of the physician, it is more likely than not considering all causes, as
opposed to speculation or possibility." Tenn. Code Ann.§ 50-6-102(14)(D) (2015).

       Generally, a subsequent injury, whether in the form of an aggravation of the
original injury or a new and distinct injury, is compensable if it is the direct and natural

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result of a compensable injury. Anderson v. Westfield Group, 259 S.W.3d 690, 696
(Tenn. 2008). Under the direct and natural consequences rule, "[ w]hen the primary
injury is shown to have arisen out of and in the course of employment, every natural
consequence that flows from the injury likewise arises out of the employment." 1
Larson's Workers' Compensation Law § 10 (2004 ). Consequently, "all the medical
consequences and sequelae that flow from the primary injury are compensable." !d. at §
10.01. The original compensable injury is deemed the cause ofthe damage flowing from
the subsequent injury-producing event. Anderson, at 697. There is no question that the
direct and natural consequences rule is an integral part of Tennessee's workers'
compensation jurisprudence. !d.

      USI accepted Mr. Dunn's right shoulder injury as compensable and authorized Dr.
Morgan to provide medical treatment. USI further authorized Dr. Morgan's evaluation of
Mr. Dunn's left shoulder and presumably paid for injections and therapy.

       USI disputed Mr. Dunn's left shoulder injury. On July 13, 2015, Dr. Morgan
noted Mr. Dunn's left shoulder "is still bothering him quite a bit and he has been having
problems with the left shoulder since surgery of the right shoulder due to
overcompensation with function." (Ex. 6) On March 10, 2016, in response to the
question, "Based on the history given by Mr. Dunn, as well as your evaluation, are the
medical conditions for which you have treated Mr. Dunn's left shoulder more likely than
not casually related to the work place injury which occurred on October 17, 2014[?]," Dr.
Morgan marked "YES." Additionally, Dr. Morgan wrote, "with immobility of [the] right
shoulder, the left shoulder was subject to overuse and resultant problem." Dr. Morgan
affirmed that the recommended left shoulder surgery is reasonable and necessary. !d.

        In contrast, Dr. Kahn saw Mr. Dunn on one occasion for an IME. Dr. Kahn
confirmed in his report that Mr. Dunn did not have any left shoulder complaints prior to
the work injury. In response to questions submitted by Liberty Mutual, Dr. Kahn stated
the following:

      In regards to his left shoulder it is likely that he has developed increased
      symptomatology secondary to having to use his left ann more than normal
      because of the injury to the right. However, this appears to be more
      inflammatory in nature and should respond to therapy and medication.
      (Emphasis added.) .. .In regards to Mr. Dunn's left shoulder, I have been
      asked to opine whether this was work-related or not. Clearly the findings
      on MRI scan are age-related and not the result of a specific injury. While it
      can be argued that the shoulder became symptomatic as a result of the
      injury and loss of use of his right shoulder, there was no specific injury to
      the left shoulder caused by the work-related incident of October 17,2014.

      Dr. Kahn noted Mr. Dunn's left shoulder should respond to therapy and

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medications. However, earlier in his report, he recorded that Mr. Dunn received
cortisone shots in his left shoulder and underwent physical therapy with no improvement.
Dr. Morgan confirmed this in his January 5, 2016 letter to Liberty Mutual by stating,
"[Mr. Dunn] has not made any progress from the non-operative treatment side of things,
and at this point, is an appropriate surgical candidate." Dr. Kahn acknowledged Mr.
Dunn did not have problems with his left shoulder prior to the work injury and developed
symptoms due to having to use his left arm more after the work-related right shoulder
injury. Dr. Kahn did not address whether the need for Mr. Dunn's left shoulder surgery
was more than fifty percent related to overuse as a result of the October 17, 2014 right
shoulder work-related injury.

        When weighing expert medical proof, this Court has the discretion to determine
which testimony to accept when presented with conflicting expert opinions. See
Kellerman v. Food Lion, Inc., 929 S.W.2d 333, 335 (Tenn. Workers' Comp. Panel Sept.
5, 1996); Johnson v. Midwesco, Inc., 801 S.W.2d 804, 806 (Tenn. 1990). Further, when
there is conflicting medical testimony, "the trial judge must obviously choose which view
to believe. In doing so, [the trial judge] is allowed, among other things, to consider the
qualifications of the experts, the circumstances of their examination, the information
available to them, and the evaluation of the importance of that information by other
experts." Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn. 1991). In
addition, it is reasonable that the physicians having greater contact with the employee
would have the advantage and opportunity to provide a more in-depth opinion, if not a
more accurate one. !d. at 677.

       In comparing the opinions of Dr. Morgan and Dr. Kahn, the Court places greater
weight on Dr. Morgan's opinion. There is no dispute Mr. Dunn did not have any left
shoulder complaints prior to the work injury. Dr. Morgan opined Mr. Dunn's left
shoulder problem was caused by overuse/overcompensation due to the work-related right
shoulder injury. The Court considers that opinion tantamount to saying the left shoulder
problem was a direct and natural result of the work-related right shoulder injury and
surgery. Mr. Dunn's left shoulder complaints did not improve with medication and
therapy. Finally, Dr. Morgan opined the left shoulder surgery was reasonable and
necessary, which Utilization Review confirmed. (Exs. 5, 6.)

       After careful consideration of the evidence, the Court finds Mr. Dunn has come
forward with sufficient evidence from which this Court concludes that he is likely to
prevail at a hearing on the merits. His request for the left shoulder surgery recommended
by Dr. Morgan is granted.

IT IS, THEREFORE, ORDERED as follows:

   1. USI or Liberty Mutual shall provide Mr. Dunn with medical treatment for his left
      shoulder injuries as required by Tennessee Code Annotated section 50-6-204

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       (20 15), to be initiated by USI or Liberty Mutual authorizing/approving the left
       shoulder surgery recommended by Dr. Morgan.

    2. This matter is set for an Initial (Scheduling) Hearing on September 7, 2016, at 10
       a.m. eastern time.

    3. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
       with this Order must occur no later than seven business days from the date of entry
       of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3)
       (2015). The Insurer or Self-Insured Employer must submit confirmation of
       compliance      with    this     Order    to    the   Bureau     by     email     to
       W Complian e.Program@tn .gov no later than the seventh business day after
       entry of this Order. Failure to submit the necessary confirmation within the period
       of compliance may result in a penalty assessment for non-compliance.

   4. For questions regarding compliance, please contact the Workers' Compensation
      Compliance Unit by email at W ompliance.Program@tn .gov or by telephone at
      (615) 253-1471 or (615) 532-1309.


       ENTERED this the 18th day of July, 2016.




                                         HON. LISA LOWE KNOTT
                                         Workers' Compensation Judge


Initial (Scheduling) Hearing:

       An Initial (Scheduling) Hearing has been set with Judge Lisa Lowe Knott, Court
of Workers' Compensation Claims. The parties must call 865-594-0901 or toll free 855-
383-0003 to participate in the Initial Hearing. Failure to appear by telephone may result
in a determination of the issues without your further participation.

Right to App al:

       Tennessee Law allows any party who disagrees with this Expedited Hearing Order
to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of
Appeal, you must:


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1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal."

2. File the completed form with the Court Clerk within seven business days of the
   date the Workers' Compensation Judge entered the Expedited Hearing Order.

3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.

4. The appealing party is responsible for payment of a filing fee in the amount of
   $75.00. Within ten calendar days after the filing of a notice of appeal, payment
   must be received by check, money order, or credit card payment. Payments can be
   made in person at any Bureau office or by United States mail, hand-delivery, or
   other delivery service. In the alternative, the appealing party may file an Affidavit
   of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
   fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
   of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
   will consider the Affidavit of Indigency and issue an Order granting or denying
   the request for a waiver of the filing fee as soon thereafter as is
   practicable. Failure to timely pay the filing fee or file the Affidavit of Indigency
   in accordance with this section shall result in dismissal of the appeal.

5. The parties, having the responsibility of ensuring a complete record on appeal,
   may request, from the Court Clerk, the audio recording of the hearing for the
   purpose of having a transcript prepared by a licensed court reporter and filing it
   with the Court Clerk within ten calendar days of the filing of the Expedited
   Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
   the evidence within ten calendar days of the filing of the Expedited Hearing
   Notice of Appeal. The statement of the evidence must convey a complete and
   accurate account of what transpired in the Court of Workers' Compensation
   Claims and must be approved by the workers' compensation judge before the
   record is submitted to the Clerk of the Appeals Board.

6. If the appellant elects to file a position statement in support of the interlocutory
   appeal, the appellant shall file such position statement with the Court Clerk within
   five business days of the expiration of the time to file a transcript or statement of
   the evidence, specifying the issues presented for review and including any
   argument in support thereof. A party opposing the appeal shall file a response, if
   any, with the Court Clerk within five business days of the filing of the appellant's
   position statement. All position statements pertaining to an appeal of an
   interlocutory order should include: (1) a statement summarizing the facts of the
   case from the evidence admitted during the expedited hearing; (2) a statement
   summarizing the disposition of th.e case as a result of the expedited hearing; (3) a
   statement of the issue(s) presented for review; and (4) an argument, citing
   appropriate statutes, case law, or other authority.

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                                       APPENDIX

Technical Record:
      • Petition for Benefit Determination, filed March 14, 2016;
      • Dispute Certification Notice, filed April 7, 2016;
      • Request for Expedited Hearing-On the Record Review, filed May 27, 2016
      • Employer's Position Statement Exhibit List, filed June 2, 20 16;
      • Employee's Exhibit List, filed June 16, 2016; and
      • Employee's Position Statement, filed July 7, 2016.

       The Court did not consider attachments to Technical Record filings unless
admitted into evidence during the Expedited Hearing. The Court considered factual
statements in these filings or any attachments to them as allegations unless established by
the evidence.

Exhibits:
       •    EXHIBIT 1: Affidavit of Jason Dunn;
       •    EXHIBIT 2: Affidavit ofEarl Bolin;
       •    EXHIBIT 3: Wage Statement;
       •    EXHIBIT 4: Notice of Denial of Claims for Compensation, Form C23;
       •    EXHIBIT 5: Utilization Review Document;
       •    EXHIBIT 6: Medical Records of Dr. Eric Morgan;
       •    EXHIBIT 7: Medical Records of Blount Memorial Total Rehabilitation;
       •    EXHIBIT 8: Medical Records of Therapy Plus;
       •    EXHIBIT 9: Medical Records of Dr. Edward Kahn; and
       •    EXHIBIT 10: Medical Records of Outpatient Diagnostic Center of Knoxville.




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                            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 18th day
of July, 2016.

Name                        Certified Via       Via     Service sent to:
                            Mail      Fax       Email
Stacie Miller, Esq.,                              X     smiller@adhknox.com
R. Kim Burnette, Esq.,                                  kburnette@adhknox.com
Employee's Counsel
Eric Shen, Esq.,                                 X      eric.shen@libertvinutual.com
Employer's Counsel




                                                        "'HRUM, Court Clerk
                                                        _ourtCier·k@tn.gov




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