                                                                                           Fil.-ED

                                                                                        April :5~ 20.18
            TENNESSEE BUREAU OF WORKERS' COMPENSATION
                                                                                      l'NCOlT.Rl"OF
           IN THE COURT OF WORKERS' COMPENSATION CLAIMS                                 WORKERS'
                            AT JACKSON                                               COlIE''J!.NSA.l']ON
                                                                                         CT.A.:EJ.ts
RICKY AUSTIN,                                )
                                                                                         2:39P.. M.
         Employee,                           )     Docket No. 2016-07-0037
v.                                           )
RR RD TRUCKING, INC.                         )
         Employer,                           )
And                                          )     State File No. 69491-2014
PROTECTIVE INS. CO.                          )
         Insurance Carrier,                  )
and                                          )
SUBSEQUENT INJURY AND                        )     Judge Allen Phillips
VOCATIONAL RECOVERY FUND.                    )


       EXPEDITED HEARING ORDER DENYING MEDICAL BENEFITS


        Mr. Austin requested medical benefits for an injury to his left shoulder. RR RD
Trucking (RR) asserted his injury did not arise out of the employment and denied his
claim. The Court heard the disputed issues on April 2, 2018 and holds Mr. Austin is not
entitled to the requested benefits.

                                    History of Claim

       Mr. Austin worked for RR as a truck driver. He injured his right shoulder on
August 9, 2014, while hooking a trailer to a truck. RR accepted his claim and provided
treatment with Dr. Timothy Sweo. Dr. Sweo diagnosed a right rotator cuff tear and right
biceps rupture that he surgically repaired. He continued to follow Mr. Austin for his right
shoulder through 2016. Dr. Sweo did not record any history of left shoulder issues
between September 2014 and May 2016. On May 2 2016, he placed Mr. Austin at
maximum medical improvement for his right shoulder injury.

       Mr. Austin claimed his left shoulder also hurt at the time of injury and that he told
Dr. Sweo. However, Mr. Austin's primary claim was that he injured his left shoulder due
to overusing his left arm, since he could not use his right arm during treatment. These

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complaints were first documented when Mr. Austin returned to Dr. Sweo on August 16,
2016, complaining of "shoulder pain on the left greater than the right." Dr. Sweo did not
include a description of injury other than Mr. Austin saying the injury "occurred at work"
The next note is dated March 29, 2017, when Dr. Sweo diagnosed a "complete rotator
cuff tear or rupture of [the] left shoulder, not specified as trauma." Dr. Sweo
recommended surgery. He maintained his diagnosis and his recommendation through
June 2017, although Mr. Austin was not a surgical candidate during that period because
of other non-work-related health issues.

        Dr. Sweo testified by deposition that patients who have shoulder surgery might
develop problems with overuse of the opposing arm, but that Mr. Austin's pain
complaints "this far out [was] unusual." He said the right shoulder injury "contributed" to
the left shoulder pathology and caused it to develop more rapidly. As to whether the right
shoulder more likely than not caused the need for left shoulder treatment, Dr. Sweo said,
"I can't really say that. I think eventually he would have needed something done to the
left shoulder. I think the fact that it flared up shortly after his right side was related to
having to overuse it." He further said any opinion he might give as to how much of Mr.
Austin's need for medical treatment is attributable to RR would be "a total gue~s."

       RR introduced records from one of Mr. Austin's primary care providers, Madison
Family Practice, dating back to August 2014. Those providers documented the August 9,
2014 injury to his right shoulder, but the first mention of the left shoulder came on June
16, 2016, when Mr. Austin said his left shoulder started hurting two weeks earlier. He
said was "painting and cleaning out cars." He explained at the hearing that these activities
were merely painting a bed for his granddaughter and cleaning out his wife's car, and he
suffered no actual injury. The records contain two more references to left shoulder pain
(in October 2016 and March 2017) but state no cause for Mr. Austin's complaints.

       Mr. Austin claimed he injured his left shoulder through overuse because of the
right shoulder surgery. He denied any other injury or that his left shoulder condition was
related to other health issues. He requested that the Court order RR pay for the left
shoulder surgery recommended by Dr. Sweo. He continues to work as a truck driver for
RR and admitted no temporary benefits are yet due.

      RR pointed to the June 16, 2016 record of Madison Family Practice as showing
Mr. Austin suffered shoulder issues unrelated to his work. It joined the Subsequent Injury
Fund in arguing that Dr. Sweo's testimony did not establish the requisite causal
connection between Mr. Austin's employment and his left shoulder condition.

                       Findings of Fact and Conclusions of Law

      Mr. Austin must come forward with sufficient evidence from which this Court
might determine he is likely to prevail at a hearing on the merits. Tenn. Code Ann. § 50-

                                             2
6-239( d)(l) (2017). The Court holds he did not do so.

        To prevail, Mr. Austin must show his alleged left shoulder injury arose primarily
out of and in the course and scope of his employment and was caused by an incident, or
set of incidents, identifiable by time and place of occurrence. Further, he must show to a
reasonable degree of medical certainty that the injury contributed more than fifty percent
to his need for medical treatment. "Shown to a reasonable degree of medical certainty"
means that, in the opinion of the treating physician, it is more likely than not considering
all causes as opposed to speculation or possibility. Tenn. Code Ann. § 50-6-102(14)(A)-
(D).

       First, Mr. Austin did not establish an incident identifiable by time and place of
occurrence. He testified he felt pain in his left shoulder at the time of the right shoulder
injury in 2014, but Dr. Sweo's medical records reflect that he first mentioned left
shoulder pain on August 12, 2016. At that time, Mr. Austin did "indicate the injury
occurred at work," but did not provide any details. Further, Dr. Sweo did not know of the
June 16 record of Madison Family Practice, where the provider noted Mr. Austin's left
shoulder began hurting only two weeks earlier.

       Secondly, Dr. Sweo could not say the employment contributed more than fifty
percent to the left shoulder condition. Dr. Sweo stated Mr. Austin's need for left shoulder
treatment "was related to having to overuse" the left arm. However, when asked if that
need for treatment was more likely than not related to Mr. Austin's employment, Dr.
Sweo stated, "I can't really say that." Further, he said he would be "totally guessing"
regarding the extent to which the employment contributed to the need for treatment. This
testimony fails to establish a greater than fifty percent connection between his
employment and his need for left shoulder treatment, and the Court holds he likely would
not prevail at a hearing on the merits.

       IT IS, THEREFORE, ORDERED as follows:

   1. The Court denies Mr. Austin's request for medical benefits at this time.

   2. This matter is set for a telephonic Status Hearing on Monday, June 4, 2018, at
      9:30 a.m. Central Time. The parties must call toll-free at 855-543-5038 to
      participate in the hearing. Failure to call in  y result ·n a determination of the
      issues without a party's further participa ·
                                                   '
       ENTERED this the     5th   day of April, (),




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                                      APPENDIX

Exhibits:
   1. Deposition of Dr. Timothy Sweo
   2. Medical Records of Madison Family Practice
   3. Madison Family Practice office note of June 16, 2016

Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Order Setting Case for Show Cause Hearing
   4. Request for Scheduling Hearing
   5. Request for Expedited Hearing
   6. Pre-Hearing Brief of Subsequent Injury Fund
   7. Employer's "Plain and Concise Statement Denying Relief Sought"
   8. Employer's Witness and Exhibit List
   9. Subsequent Injury Fund's Witness and Exhibit List
   10. Employee's Witness and Exhibit List


                               CERTIFICATE OF SERVICE

        I certify that a true and correct copy of this Expedited Hearing Order was sent to
the following recipients by the following methods of service on this the 5th day of April,
2018.

                 Name                        Via Email          Service sent to:
Jeff Boyd, Attorney for Employee                 x        jboyd@borenandboyd.com

J. Allen Brown, Attorney for Employer            x        allen@jallenbrownpllc.com

Art D. Wells, Attorney for SIVRF                 x        art.wells@tn.gov



                                         ~~ ·
                                                      >.'v0   {,U0-- ,

                                                  ·um Clerk of Court
                                         Court of Workers' Compensation Claims




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