             IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                            AT MURFREESBORO

DAVID WILLIAMS                                            )   Docket No.: 2015-05-0235
         Employee,                                        )
v.                                                        )   State File Number: 75284-2014
NISSAN NORTH AMERICA, INC.                                )
         Employer,                                        )   Judge Dale Tipps
And                                                       )
SAFETY NAT. CAS. CORP.                                    )
         Insurance Carrier.                               )
                                                          )

       EXPEDITED HEARING ORDER DENYING REQUESTED BENEFITS


       This matter came before the undersigned workers’ compensation judge on January
13, 2016, on the Request for Expedited Hearing filed by the employee, David Williams,
pursuant to Tennessee Code Annotated section 50-6-239 (2015). The present focus of
this case is the compensability of Mr. Williams’ right arm and shoulder injury and his
entitlement to medical and temporary disability benefits. The central legal issue is
whether Mr. Williams is likely to establish at a hearing on the merits he suffered an
injury arising primarily out of and in the course and scope of his employment. For the
reasons set forth below, the Court finds Mr. Williams is not entitled to the requested
benefits at this time.

                                              History of Claim

         Mr. Williams is a forty-nine-year-old resident of Rutherford County, Tennessee.
He reported a left arm and shoulder work injury to Nissan in June 2014. Nissan accepted
the claim and provided benefits. Mr. Williams treated with authorized treating physician
(ATP), Dr. Jeffrey Hazlewood, received a rating, and settled the claim. (Ex. 8.) While
still treating for his left arm and shoulder claim, Mr. Williams reported injuries to his
right elbow and right shoulder on September 18, 2014. (Ex. 1.) 1 Nissan provided a panel
of physicians, and Mr. Williams again selected Dr. Hazlewood. (Ex. 4.)
1
 During the hearing, Nissan’s attorney questioned whether Mr. Williams intended to include current left elbow and
shoulder problems in this claim. Mr. Williams’ attorney stated that, for the purposes of this Expedited Hearing, the
only injuries at issue were the right arm and shoulder.

                                                         1
      On October 1, 2014, Mr. Williams went to Dr. Hazlewood for evaluation of right
shoulder and elbow pain that began four days before he reported it to Nissan. Mr.
Williams described a gradual onset of pain that he attributed to repetitive motion at work.
Dr. Hazlewood examined Mr. Williams and found:

       Generalized right shoulder girdle pain and right lateral elbow pain. I don’t
       really get a lateral epicondylitis on exam, but just some tenderness around
       the elbow itself without swelling. I don’t find any evidence of ligament or
       tendon rupture. The shoulder seems to be more of a generalized rotator
       cuff tendinitis type syndrome and possibly impingement. I do not find any
       suggestion of rotator cuff tear.

(Ex. 7.)

       Dr. Hazlewood went on to note:

       First of all, I am asked to address causation. I just don’t see how this is a
       “true work related event,” and certainly there is no structural anatomical
       injury from a “harmful event at work,” in my opinion. He feels it is due to
       compensation. I can’t call it a repetitive overuse type phenomenon given
       the fact that he has been working the same job he has worked for quite
       awhile [sic], and he never had any problems before. One can call this a
       compensation effect, but per the research literature a compensation effect
       does not cause a work compensable injury/structural injury. Also, I don’t
       really think there is a structural injury here as much as just either idiopathic
       shoulder pain and elbow pain vs. soreness in the muscles from using his
       arm more on the right. . . . I expressed all these opinions to him the best I
       could in terms of causation. I cannot state this is a work related injury,
       especially with the new laws that have come out July 1st.

Dr. Hazlewood made some suggestions as to conservative treatment and released Mr.
Williams with no restrictions. Id.

      Based on Dr. Hazlewood’s findings, Nissan denied Mr. Williams’ claim on
October 9, 2014. (Ex. 3.) Mr. Williams then sought unauthorized treatment with Dr.
Roderick Vaughan. (Ex. 8.)

       Dr. Vaughan first saw Mr. Williams on October 20, 2014, for complaints of right
elbow and shoulder pain since June 2014. Mr. Williams associated the problem to
increased use of his right arm since his left arm surgery. He also reported intermittent
numbness. Based on his examination, as well as MRIs and electrodiagnostic studies, Dr.
Vaughan diagnosed right rotator cuff syndrome, right lateral epicondylitis/tendinopathy,

                                              2
and right cubital tunnel syndrome. He performed right lateral epicondylar debridement
and ulnar nerve decompression surgery on December 11, 2014. (Ex. 10.)

      Mr. Williams filed a Petition for Benefit Determination seeking medical and
temporary disability benefits. The parties did not resolve the disputed issues through
mediation, and the Mediating Specialist filed a Dispute Certification Notice. Mr.
Williams filed a Request for Expedited Hearing, and this Court heard the matter on
January 13, 2016.

       At the Expedited Hearing, Mr. Williams relied on the history contained in Dr.
Hazlewood’s October 1, 2014 note. He noted the history is consistent with Mr.
Williams’ affidavit that he suffered a repetitive use injury to his right arm and shoulder
while working for Nissan. He further argued the Court should disregard Dr.
Hazlewood’s causation opinion because the doctor provided a legal conclusion, rather
than a medical opinion. Based on the totality of the medical evidence, along with Mr.
Williams’ own statements, he contended he is likely to satisfy his burden of proving a
compensable gradual injury.

       Nissan countered that, as the ATP, Dr. Hazlewood’s causation opinion is
statutorily presumed to be correct, and Mr. Williams submitted no medical evidence
sufficient to overcome that presumption. As a result, the medical proof establishes that
Mr. Williams right elbow and shoulder condition was not primarily caused by his work.
Alternatively, Nissan argued that it is entitled to an offset against any temporary
disability award for payments made to Mr. Williams under its employer-funded disability
plan.

                       Findings of Fact and Conclusions of Law

       The Workers’ Compensation Law shall not be remedially or liberally construed in
favor of either party but shall be construed fairly, impartially and in accordance with
basic principles of statutory construction favoring neither the employee nor
employer. Tenn. Code Ann. § 50-6-116 (2014). In general, an employee bears the
burden of proof on all prima facie elements of his or her workers’ compensation
claim. Tenn. Code Ann. § 50-6-239(c)(6); see also Buchanan v. Carlex Glass Co., No.
2015-01-0012, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *5 (Tenn. Workers’ Comp.
App. Bd. Sept. 29, 2015). 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 court can determine that the employee is
likely to prevail at a hearing on the merits consistent with Tennessee Code Annotated
section 50-6-239(d)(1) (2014). 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). This lesser evidentiary standard “does not relieve an employee of the
burden of producing evidence of an injury by accident that arose primarily out of and in

                                            3
the course and scope of employment at an expedited hearing, but allows some relief to be
granted if that evidence does not rise to the level of a ‘preponderance of the evidence.’”
Buchanan, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6.

        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). Injury is defined as “an injury by 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.” Id. 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.”
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).

       Mr. Williams selected Dr. Hazlewood from a panel of physicians provided by
Nissan.    Therefore, Tennessee Code Annotated section 50-6-102(14)(E) (2015)
establishes a rebuttable presumption of correctness for Dr. Hazlewood’s causation
opinion that Mr. Williams’ condition is not work related.

        Mr. Williams objected to Dr. Hazlewood’s causation analysis, arguing it is more
legal conclusion than medical opinion. Mr. Williams is correct that Dr. Hazlewood’s
report is not the epitome of clarity. However, the October 1, 2014 record states: “I just
don’t see how this is a ‘true work related event,’ and certainly there is no structural
anatomical injury from a ‘harmful event at work[,]’” and, “I can’t call it a repetitive
overuse type phenomenon given the fact that he has been working the same job he has
worked for quite awhile [sic], and he never had any problems before.” Dr. Hazlewood
went on to say he believed Mr. Williams’ problems were either idiopathic shoulder pain
and elbow pain or sore muscles. Dr. Hazlewood’s references to the new law aside, he
expressed his opinion that Mr. Williams suffered no acute injury and no repetitive use
injury.

       Mr. Williams argued Dr. Hazlewood’s subsequent records belie his conclusion
that the injuries are not work-related. He contended the October 8, 2014 treatment note
shows that his condition worsened because of his use of the arm at work. Mr. Williams
relied on Dr. Hazlewood’s notation that he “returns for the same problems” and “[h]e is
actually some worse than the last visit.” Mr. Williams’ reliance on these records is
misplaced. The October 8, 2014 record clearly states in several places that Mr. Williams’
complaints and Dr. Hazlewood’s examination and treatment were related to the left arm
and shoulder only.

       Dr. Vaughan’s diagnoses of right rotator cuff syndrome, right lateral

                                            4
epicondylitis/tendinopathy, and right cubital tunnel syndrome are certainly more
extensive than that of Dr. Hazlewood. However, Dr. Vaughan’s records are void of any
causation opinion, much less any opinion relating these problems to Mr. Williams’ work.
The Court cannot substitute its medical opinion, or that of Mr. Williams, for the
professional opinion of Dr. Hazlewood. Absent a contrary medical opinion, Mr.
Williams cannot rebut the presumption of correctness afforded Dr. Hazlewood’s opinion
by the statute. Scott v. Integrity Staffing Solutions, No. 2015-01-0055, 2015 TN Wrk.
Comp. App. Bd. LEXIS 24, at *8 (Tenn. Workers’ Comp. App. Bd. Aug. 8, 2015).

        Therefore, as a matter of law, Mr. Williams has not come forward with sufficient
evidence from which this Court may conclude he is likely to prevail at a hearing on the
merits. The Court must deny his requests for medical and temporary disability benefits at
this time.

IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Williams’ claim against Nissan and its workers’ compensation carrier for the
      requested medical and temporary disability benefits is denied.

   2. This matter is set for an Initial (Scheduling) Hearing on March 2, 2016, at 9:00
      a.m.

      ENTERED this the 26th day of January, 2016.


                                  _____________________________________
                                  Judge Dale Tipps
                                  Court of Workers’ Compensation Claims

Initial (Scheduling) Hearing:

      An Initial (Scheduling) Hearing has been set with Judge Dale Tipps, Court of
Workers’ Compensation Claims. You must call 615-741-2112 or toll free at 855-
874-0473 to participate.

       Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation. All conferences are set using Central Time (CT).




                                           5
Right to Appeal:

       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:

   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

                                            6
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 the 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.




                                     7
                                               APPENDIX

Exhibits:
   1. C-20 First Report of Injury
   2. C-41 Wage Statement
   3. C-23 Notice of Denial
   4. C-42 Choice of Physician Form
   5. Affidavit of Sheila Taylor
   6. Employee/Manager Medical Statement
   7. Records of Dr. Jeffrey Hazlewood
   8. Affidavit of David Williams
   9. Medical Bills (Identification only)
   10. Records of Tennessee Orthopaedics
   11. May 13, 2015 letter from Dr. Roderick Vaughan (Identification only)

Technical record:2
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing




2
   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.



                                                      8
                          CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Expedited Hearing Order
 Denying Requested Benefits was sent to the following recipients by the following
 methods of service on this the 26th day of January, 2016.


Name                  Certified   Fax    Via         Email Address
                      Mail        Number Email
Marshall McClarnon,                        X         marshall@poncelaw.com
Esq.
Thomas Tucker, Esq.                            X     tomtucker@bellsouth.com




                                      _____________________________________
                                      Penny Shrum, Clerk of Court
                                      Court of Workers’ Compensation Claims
                                      WC.CourtClerk@tn.gov




                                         9
