                                                                                                             FILED
                                                                                                          August 26, 2016

                                                                                                          1N COURT Of
                                                                                                      WORKERS ' CO!\!PENSATIO N
                                                                                                             CLAIMS

                                                                                                             Tim e 10 :58 A.\1

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

Thomas Lee,                                              ) Docket No.: 2015-08-0247
                  Employee,                              )
v.                                                       ) State File No.: 77260-2014
Federal Express Corporation,                             )
            Employer.                                    ) Judge Jim Umsted


                              COMPENSATION HEARING ORDER


        This case came before the undersigned Workers' Compensation Judge for a
Compensation Hearing under Tennessee Code Annotated section 50-6-239 (2015). The
present focus of this case is whether the employee, Thomas Lee, sustained a work-related
left-shoulder injury while working for employer, Federal Express Corporation. The
central legal issues are: (1) whether Mr. Lee sustained a compensable left-shoulder
injury, arising primarily out of and in the course and scope of his employment with
Federal Express; (2) whether Mr. Lee is entitled to payment of unauthorized, past
medical expenses; (3) whether Mr. Lee is entitled to continued medical treatment for his
left shoulder; and (4) whether Mr. Lee is entitled to permanent disability benefits, and if
so, in what amount. For the reasons set forth below, the Court holds Mr. Lee has not
established by a preponderance of the evidence that he sustained a compensable injury
arising primarily out of and in the course and scope of his employment such that he
would be entitled to the requested medical and permanent disability benefits.

                                             History of Claim

        The following facts were established at the Compensation Hearing held on August
15, 2016. Mr. Lee is a sixty-seven-year-old resident of Brandon, Mississippi who
worked in Federal Express' audio-visual department for approximately twenty-three
years. While the specific date of his injury is in question, Mr. Lee testified he sustained a
work-related injury to his left shoulder after moving a heavy case at work. 1 According to
Mr. Lee, he reported his injury to his direct supervisor, Glenn Davis, the day following
his injury, but he told Mr. Davis he did not want to file a workers' compensation claim.
1
  Mr. Lee initially reported an injury date of August 6, 2014. However, at the Compensation Hearing, he testified
the injury occurred on July 24, 2014, the date Target delivered stools to Federal Express for an event.
       After his injury, Mr. Lee sought medical treatment from various unauthorized
medical providers. 2 He initially presented to his primary care physician at Baptist
Medical Group (BMG) with complaints of left shoulder pain that began three weeks prior
to his August 4, 2014 visit. He denied any falls or trauma during that visit.

       Two days later, on August 6, 2014, Mr. Lee sought treatment at Campbell Clinic.
He described a gradual onset of left-shoulder pain that he specifically indicated was not
related to work. Physician's Assistant Tasha Sabino diagnosed him with biceps tendinitis
and ordered physical therapy and a steroid injection. When his symptoms did not
improve, P.A. Sabino referred him to Dr. Patrick Toy for further evaluation.

       After evaluating Mr. Lee on September 15, 2014, Dr. Toy diagnosed him with
left-shoulder rotator cufftendinopathy and ordered an MRI of his left shoulder. The MRI
revealed severe tendinosis of the supraspinatus and subscapularis but showed a normal
long biceps tendon. On September 29, 2014, Dr. Toy referred Mr. Lee to Dr. Santos
Martinez to discuss possible PRP injections and instructed Mr. Lee to follow up as
needed. The next day, Mr. Lee filed a claim with Federal Express for workers'
compensation benefits.

       When Mr. Lee saw Dr. Martinez for the first time on October 9, 2014, he
described straining his left shoulder while moving a case (of audio equipment) at work.
Dr. Martinez administered a steroid injection and ordered additional physical therapy but
did not recommend the PRP injections at that time. Dr. Martinez last saw Mr. Lee on
November 20, 2014. However, during a physical therapy appointment on December 9,
2014, Mr. Lee advised both his shoulders hurt after working on his new stove at home.

       Three months later, on March 9, 2015, Mr. Lee returned to Dr. Toy, complaining
of significant pain in his left shoulder. Since Mr. Lee had exhausted all conservative
treatment, Dr. Toy recommended surgery. Dr. Toy performed surgery on March 23,
2015, and during the surgery, he found free edge tearing of the labrum as well as a high-
grade partial tear of the biceps anchor. After providing post-operative treatment, Dr. Toy
released Mr. Lee from care on June 15, 2015.

       The physicians who evaluated Mr. Lee provided conflicting medical testimony
about the cause of his injuries. Dr. Toy testified in his deposition that he saw nothing in
his notes suggesting the partial tear in Mr. Lee's biceps tendon was related to his work.
(Ex. 2 at 42.) He also noted that Mr. Lee's September 2014 MRI showed no injury to the
biceps tendon and suggested Mr. Lee could have sustained another injury between the
date of his MRI and his surgery. (Ex. 2 at 31-3 2.) He further testified the labral tearing
was "probably related to wear and tear over time." (Ex. 2 at 42-43.) Dr. Toy indicated
2
  Prior to his alleged work injury, Mr. Lee mentioned a week-long history of left arm pain when he attended a
follow-up appointment at Baptist Medical Group on July 9, 2014. His medical provider diagnosed him with biceps
tendinitis.

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Mr. Lee had full range of motion in his shoulder upon examination on June 15, 2015, and
would have "a minimal impairment rating" under the AMA Guidelines. (Ex. 2 at 35, 42.)

        To the contrary, deposition testimony of Dr. Apurva Dalal suggested the biceps
tendon injury was related to Mr. Lee's work. Dr. Dalal performed an independent
medical evaluation (IME) of Mr. Lee on May 20, 2015, and opined "with more than
ninety-percent certainty" that "when he tried to lift that audio equipment his biceps
tendon ruptured." (Ex. 3 at 10, 15-16.) Dr. Dalal testified Mr. Lee retained a permanent
disability rating of seven percent to the body as a whole due to range of motion deficits
he noted during the evaluation. (Ex. 3 at 18-19.)

       Mr. Lee testified he returned to work for Federal Express but recently retired for
reasons unrelated to his alleged work injury. He further testified he continues to have
left-shoulder pain and has trouble performing duties related to his personal photo-
scanning business. He asked the Court to order Federal Express to provide a panel of
physicians for continued medical treatment for his shoulder. He also asked for payment
of past medical expenses and permanent disability benefits.

        Federal Express presented no competing testimony to oppose Mr. Lee's
description of his left-shoulder injury, but it did point out that Mr. Lee originally reported
his date of injury as August 6, 2014, and denied the injury was work related when he
initially presented to Baptist Medical Group and Campbell Clinic. Furthermore, it
suggested Mr. Lee might have sustained a new injury in December 2014, when he
attempted to move his new stove at home. Federal Express argued that Dr. Toy's
causation opinion should hold more weight since he actually treated Mr. Lee's shoulder,
whereas Dr. Dalal only performed a one-time IME. Accordingly, based on the medical
proof presented, Federal Express maintained Mr. Lee had not met his burden of proving
his left-shoulder injury primarily arose out of and in the course and scope of his
employment.

                        Findings of Fact and Conclusions of Law

                                 General Legal Principles

       Mr. Lee has the burden of proof on all essential elements of his 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, 2015). "[A]t a compensation
hearing where the injured employee has arrived at a trial on the merits, the employee
must establish by a preponderance of the evidence that he or she is, in fact, entitled to the
requested benefits." Willis v. All Staff, No. 2014-05-0005, 2015 TN Wrk. Comp. App.
Bd. LEXIS 42, at * 18 (Tenn. Workers' Comp. App. Bd. Nov. 9, 2015); see also Tenn.
Code Ann. § 50-6-239(c)(6) (2015) ("[T]he employee shall bear the burden of proving
each and every element of the claim by a preponderance of the evidence."). In this case,

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the Court must interpret the Workers' Compensation Law fairly, impartially, and without
favor for either Mr. Lee or Federal Express. Tenn. Code Ann. § 50-6-116 (2015).

                           Compensability of Mr. Lee's Injuries

       The Court must first address whether Mr. Lee satisfied the burden of proving he
sustained a compensable, work-related, left-shoulder injury. To be compensable under
the Workers' Compensation Law, an injury must arise primarily out of and occur in
the course and scope of the employment; be caused by an incident or specific set of
incidents; and be identifiable by time and place of occurrence. Tenn. Code Ann. § 50-6-
102(14) (2015).

       There is a conflict in opinion among the physicians who testified. Dr. Toy noted
he saw nothing in his notes suggesting Mr. Lee's injury related to his work. However,
Dr. Dalal testified Mr. Lee's injury occurred at work when he tried to lift audio
equipment. The Court finds these conflicting medical opinions are the result of Mr. Lee
providing a different history of injury to each physician.

        At the Compensation Hearing, Mr. Lee testified his left shoulder injury occurred at
work on July 24, 2014. However, according to medical records, about two weeks before
this alleged injury date, he sought medical treatment at BMG for left arm pain. He again
sought treatment for left-shoulder pain at BMG on August 4, 2014, which he claimed
began about three weeks earlier without falls or trauma. Two days later, on August 6,
2014, he sought treatment at Campbell Clinic for a gradual onset of left-shoulder pain he
advised was not related to work. To the contrary, Dr. Dalal, who performed an IME on
May 20, 2015, at the request of Mr. Lee, relied on the history provided by Mr. Lee that he
sustained his injury at work.

       The Court finds Mr. Lee provided inconsistent statements when describing how
his left-shoulder pain began, and it would be speculative for the Court to accept Mr.
Lee's current explanation that it occurred at work. Therefore, based upon the evidence
and the applicable legal principles, the Court holds Mr. Lee failed to satisfy the burden of
proving his left-shoulder injury arose primarily out of and in the course and scope of his
employment. This decisive issue having been determined, the Court need not rule on any
other issues. Accordingly, it is the Court's determination Mr. Lee is not entitled to the
requested benefits.

      IT IS, THEREFORE, ORDERED that the claim of Mr. Lee against Federal
Express for the requested medical and permanent disability benefits be denied.

      The filing fee of $150.00 for this cause is taxed to Federal Express under Rule
0800-02-21-.07 (2015) of the Tennessee Compilation Rules and Regulations. Federal
Express additionally shall prepare and file a statistical data form within ten business days

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of the date of this order, pursuant to Tennessee Code Annotated section 50-6-244 (2015).

      ENTERED this the 26th day of August, 2016. ~


                                 <2z
                                   Judge Jim Umsted
                                   Court of Workers' Compensation Claims


Right to Appeal:

       Tennessee Law allows any party who disagrees with this Compensation Hearing
Order to appeal the decision to the Workers' Compensation Appeals Board or the
Tennessee Supreme Court. To appeal your case to the Workers' Compensation Appeals
Board, you must:

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

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

   3. Serve a copy of the Compensation 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 lndigency in
      accordance with this section shall result in dismissal of the appeal.

  5. The party filing the notice of appeal, 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 fifteen calendar days of the filing
     of the Compensation Hearing Notice of Appeal. Alternatively, the party filing the

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      appeal may file a joint statement of the evidence within fifteen calendar days
      of the filing of the Compensation 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. See Tenn. Comp. R. & Regs. 0800-02-22-.03 (20 15).

   6. After the Workers' Compensation Judge approves the record and the Court Clerk
      transmits it to the Workers' Compensation Appeals Board, the appeal will be
      docketed and assigned to an Appeals Board Judge for review. At that time, a
      docketing notice shall be sent to the parties. Thereafter, the party who filed the
      notice of appeal shall have fifteen calendar days after the issuance of the docketing
      notice to submit a brief to the Appeals Board for consideration. Any opposing
      party shall have fifteen calendar days after the filing of the appellant's brief to file
      a brief in response. No reply briefs shall be filed. Briefs shall comply with the
      Practice and Procedure Guidelines of the Workers' Compensation Appeals
      Board. See Tenn. Comp. R. & Regs. 0800-02-22-.03(6) (2015).

       To appeal your case directly to the Tennessee Supreme Court, the
Compensation Order must be final and you must comply with the Tennessee Rules
of Appellate Procedure. If neither party timely files an appeal with the Appeals
Board, this Order will become final by operation of law thirty (30) calendar days
after entry, pursuant to Tennessee Code Annotated section 50-6-239(c)(7).




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                                       APPENDIX

Technical record:
   • Petition for Benefit Determination, filed July 9, 2015;
   • Dispute Certification Notice, filed July 31, 2015;
   • Request for Initial Hearing, filed September 10, 2015;
   • Initial Hearing Order, issued October 21, 2015;
   • Amended Initial Hearing Order, issued May 2, 2016;
   • Federal Express' Statement Concerning Witnesses, filed July 19, 2016;
   • Federal Express' Statement Concerning Exhibits, filed July 19, 2016;
   • Federal Express' Pre-Hearing Statement, filed August 1, 2016;
   • Mr. Lee's Pre-Trial Brief, filed August 8, 2016;
   • Mr. Lee's Pre-Hearing Statement, filed August 9, 2016; and
   • Dispute Certification Notice, filed August 11, 2016.

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

Stipulated Findings of Facts of the Parties:
    • Mr. Lee is sixty-seven years of age.
   • Mr. Lee has completed the 12th grade and has obtained a high school diploma.
   • Mr. Lee did not receive any temporary disability benefits.
   • Mr. Lee has returned to work for Federal Express, earning the same or greater
       wages as he was earning prior to the injury.
   • Mr. Lee's average weekly wage is $1,997.54, which entitles him to a weekly
       compensation rate of $932.80, subject to the state maximum rate for permanent
       disability benefits.
   • Federal Express filed a Notice of Denial on February 6, 2015.

 tipulated Conclusions of Law of the Partie :
    • The claim is governed by the Workers' Compensation Laws for the state of
       Tennessee.
    • An employment relationship existed between the Mr. Lee and Federal Express at
       all relevant times.
    • Mr. Lee filed a Petition for Benefit Determination within the applicable statute of
       limitations.

Exhibits:
   • EXHIBIT I: Deposition transcript of Dr. Santos Martinez;


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•   EXHIBIT 2: Deposition transcript of Dr. Patrick Toy;
•   EXHIBIT 3: Deposition transcript of Dr. Apurva Dalal;
•   EXHIBIT 4: Collective exhibit of medical records filed by Employer on June 30,
    2016;
•   EXHIBIT 5: Form C-20 Employer's First Report of Work Injury or Illness
•   EXHIBIT 6: Form C-41 Wage Statement;
•   EXHIBIT 7: Target Shipping Confirmation, dated July 24, 2014;
•   EXHIBIT 8: Email from Glenn Davis, dated January 8, 2015;
•   EXHIBIT 9: Employee's Workers' Compensation Questionnaire;
•   EXHIBIT 10: Campbell Clinic Intake Form, dated August 6, 2014; and
•   EXHIBIT 11: Campbell Clinic Intake Form, dated October 9, 2014.




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                           CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the foregoing was sent to the
 following recipients by the following methods of service on this the 26th day of
 August, 2016.

Name                   Certified     Via   Via      Email Address
                       Mail          Fax   Email
Steve Taylor,                                 X     staylor@tcmfirm.com
Employee's Attorney
Jonathan L. May,                               X    jmay@Jewisthomason.com
Employer's Attorney



                                   P nny rum, Clerk
                                   Court Workers' Compensation Claims
                                   WC.CourtClerk@tn.gov




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