               COURT OF WORKERS’ COMPENSATION CLAIMS
                 BUREAU OF WORKERS' COMPENSATION
                         AT MURFREESBORO

Rosemary Boyd                                   Docket No.: 2015-06-0257
           Employee,
v.                                              State File No.: 72453-2014

Hewlett Packard Co.                             Date of Injury: August 18, 2014
            Employer,
And                                             Judge: Dale Tipps

Old Republic Ins. Co.
            Insurance Carrier.


                          EXPEDITED HEARING ORDER
                            (RECORD REVIEW ONLY)



        THIS CAUSE came before the undersigned Workers’ Compensation Judge upon
the Request for Expedited Hearing filed on June 10, 2015, by Rosemary Boyd, pursuant
to Tennessee Code Annotated section 50-6-239. Ms. Boyd requested that the Court
render its decision based on a review of the case file. Hewlett Packard Co. did not object
to this request. Upon review of the file, the Court finds that Ms. Boyd is not entitled to
the requested temporary disability or medical benefits.

                                         Issues

 Whether Ms. Boyd sustained an injury on August 18, 2014, arising primarily out of and
        in the course and scope of her employment with Hewlett Packard; and

       If so, whether Ms. Boyd is entitled to medical and/ or temporary disability
benefits.

                                  Evidence Submitted

      The Court designates the following documents as the Technical Record:

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         Petition for Benefit Determination (PBD), filed March 23, 2015
         Dispute Certification Notice (DCN), filed May 13, 2015
         Request for Expedited Hearing (REH), filed June 10, 2015.

      The Court reviewed the following documents in reaching its decision and
designates the following documents as Exhibits for ease of reference by the Court:

             Exh. 1       Affidavit of Michael Fisher1
             Exh. 2       Affidavit of Dr. Brandon Downs
             Exh. 3       C-23 Notice of Denial of Claim
             Exh. 4       November 9, 2014, letter from Janet Villani
             Exh. 5       January 16, 2015, letter to Dr. Brandon Downs
             Exh. 6       Medical Records from Premier Orthopedics2
             Exh. 7       Medical Records from Concentra Medical Centers
             Exh. 8       Account Information Report from Premier Orthopaedics.

                                              History of Claim

        Ms. Boyd worked as a clerk for Hewlett Packard and allegedly injured her right
shoulder in the course and scope of her work on August 18, 2014. See PBD. Ms. Boyd
had prior problems with her shoulder and underwent a right shoulder arthroscopy with
rotator cuff repair, subacromial decompression, distal clavical excision, and limited
debridement on June 20, 2014. She returned to her surgeon, Dr. Downs, on August 26,
2014, reporting persistent pain since an incident of burning pain in the posterior shoulder
on August 11, 2014.            Dr. Downs assessed right impingement syndrome,
bursitis/tenosynovitis, and rotator cuff sprain/tear. He assigned a five (5) pound lifting
restriction and recommended an MRI. See Exhibit 6 at pp. 1-2.

       Ms. Boyd returned to Dr. Downs on August 28, 2014. He noted that the MRI
indicated recurrent tearing of the right rotator cuff with extension of tearing to the
supraspinatus tendon. He also noted that Ms. Boyd had increased symptoms after a post-
operative injury. He recommended revision rotator cuff repair and assigned restrictions
of four hours of work per day with no right shoulder lifting. Id. at pp. 7-9. Ms. Boyd
continued to treat with Dr. Downs, but delayed surgery while she awaited approval from
Hewlett Packard’s workers’ compensation carrier. Dr. Downs performed a steroid

1
  Mr. Fisher is Ms. Boyd’s attorney. As there is no indication he intends to be a witness in this matter, the Court
considers the statements made in Mr. Fisher’s affidavit to be allegations. The Court is not relying on the statements
contained in the affidavit in determining whether Ms. Boyd is entitled to workers’ compensation benefits.
2
  The Court numbered the medical records included in these exhibits, as counsel for Hewlett Packard failed to
comply with Rule 0800-02-21-.16(6), which provides: “All medical records, exceeding ten (10) pages, must be
accompanied by a chronological table of contents, identifying the medical provider, date, and numbered as in the
table of contents.”

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injection on September 19, 2014, but Ms. Boyd reported minimal improvement. Her last
visit with Dr. Downs took place on October 3, 2014. Id. at pp. 11-20.

        While she was treating with Dr. Downs, Ms. Boyd also went to Concentra Medical
Centers (Concentra) on September 12, 2014, complaining of shoulder pain that started
while she was using the computer. She reported, “I was keying claims and reached for
the F-6 button and felt something like a split in my right shoulder with burning and pain
that followed.” Her history noted that she had rotator cuff repair in December 2013, and
again in June 2014. Ms. Boyd stated that she was scheduled for surgery, but she came to
Concentra through her workers’ compensation claim. Dr. Saritha Reddy examined Ms.
Boyd and diagnosed shoulder strain. She noted Ms. Boyd needed an orthopedic referral,
but she felt “this reported condition is unlikely work related.” She instructed Ms. Boyd
to continue following her orthopedist’s restrictions. See Exhibit 7 at pp. 2-4. Ms. Boyd
returned to Concentra and saw Dr. Fatimah Syed on September 16, 2014, and September
25, 2014. Dr. Syed assessed a rotator cuff tear and stated, “Mechanism of injury does not
support rotator cuff tear. Patient has preexisting condition in the same shoulder and has a
history of previous recurrent rotator cuff injury and tear.” Id. at pp. 10-17.

      Hewlett Packard filed a Notice of Denial on November 9, 2014, asserting that Ms.
Boyd’s injury did not arise out of and in the course of her employment. See Exhibit 3.

       In a letter dated January 16, 2015, Ms. Boyd’s attorney asked Dr. Downs whether
her “right shoulder injury arose primarily out of the scope and course of her
employment.” The letter contains a checkmark in the “Yes” response and Dr. Downs’
signature. See Exhibit 5. Ms. Boyd also submitted a document titled “Affidavit of Dr.
Brandon Downs.” The document bears Dr. Downs’ signature but is not dated or
notarized. It states that Dr. Downs treated Ms. Boyd “for a work-related injury sustained
to her right shoulder on or about August 18, 2014.” He opined that Ms. Boyd was
involved in a work accident on August 18, 2014, “that primarily resulted in an injury to
her right shoulder,” that the injury resulted in an anatomical change or progression of pre-
existing symptoms, and that Ms. Boyd needs additional treatment. See Exhibit 2.

                                Ms. Boyd’s Contentions

        Ms. Boyd contends that she is entitled to medical and temporary disability benefits
as a result of a work related injury. Specifically, she argues that she suffered a rotator
cuff tear while using a computer keyboard in the course of her work for Hewlett Packard.
She acknowledges that she had a prior injury for which she underwent rotator cuff
surgery in December 2013, and June 2014, but she contends she was working within her
medical restrictions when she reinjured the shoulder on August 18, 2014. Ms. Boyd
relies on Dr. Downs’ affidavit that she suffered an anatomical change to her shoulder that
arose primarily out of and in the course and scope of her employment.


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      In addition to medical treatment, Ms. Boyd seeks temporary partial disability
(TPD) benefits from the date of the injury until she was laid off on March 13, 2015. She
contends she is also entitled to ongoing temporary total disability (TTD) benefits
beginning on March 14, 2015.

                            Hewlitt Packard’s Contentions

      Hewlett Packard contends that Ms. Boyd is not entitled to any workers’
compensation benefits. It relies on the opinions of Dr. Reddy and Dr. Syed that Ms.
Boyd’s shoulder injury was not work related.

                       Findings of Fact and Conclusions of Law

                                    Standard Applied

        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). At an expedited hearing, an employee
need not prove every element of his or her claim by a preponderance of the evidence in
order to be eligible for benefits. McCord v. Advantage Human Resourcing, No. 2014-06-
0063, 2015 TN Wrk Comp App Bd LEXIS 6, *7-8, 9 (Tenn. Workers’ Comp. App. Bd.
March 27, 2015); cf. McCall v. Nat’l Health Corp., 100 S.W.3d 209, 214 (Tenn.
2003). Instead, an employee must come forward with sufficient evidence from which the
trial judge could conclude that the employee is likely to prevail at a hearing on the
merits. Id.

                                       Factual Findings

        Ms. Boyd suffered from preexisting right shoulder problems, for which she
underwent rotator cuff surgery in December 2013 and again in June 2014. She began
experiencing additional pain in her right shoulder in August 2014. Ms. Boyd sought
unauthorized care from her prior surgeon, Dr. Downs, and he diagnosed a recurrent
rotator cuff tear. Hewlett Packard provided authorized treatment from Concentra, but
later denied the claim on November 9, 2014.

                                  Application of Law to Facts

       Whether Ms. Boyd sustained an injury on August 18, 2014 arising primarily out of
and in the course and scope of employment with Hewlett Packard.

       The Tennessee Workers’ Compensation Act defines “injury” and “personal
injury” as an injury by accident,… arising primarily out of and in the course and scope of

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employment, that causes death, disablement or the need for medical treatment of the
employee; provided, that:

        (A) An injury is “accidental” only if the injury is 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;

        (B) 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;

        (C) An 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;

        (D) “Shown to a reasonable degree of medical certainty” means that, in the
        opinion of the physician, it is more likely than not considering all causes, as
        opposed to speculation or possibility;

        (E) The opinion of the treating physician, selected by the employee from
        the employer’s designated panel of physicians pursuant to § 50-6-204(a)(3),
        shall be presumed correct on the issue of causation but this presumption
        shall be rebuttable by a preponderance of the evidence.

Tenn. Code Ann. § 50-6-102(13) (2014).

       The submitted medical records show that three physicians addressed causation:
Dr. Downs, Dr. Reddy, and Dr. Syed. The Concentra physicians, Dr. Reddy and Dr.
Syed, were authorized providers, and the PBD filed by Ms. Boyd indicates that she
selected Concentra from a panel of physicians offered by Hewlett Packard.3 Because
these doctors were panel selections, the opinions of the Concentra physicians are entitled
to the presumption of correctness on the issue of causation, pursuant to subsection (E)
above. Those opinions are, “this reported condition is unlikely work related” and
“[m]echanism of injury does not support rotator cuff tear.”

3
 The PBD also indicates that Dr. Downs was the physician selected from the panel, but this appears to be an error.
The medical records show that Ms. Boyd returned to her original surgeon, Dr. Downs, before Hewlett Packard
began providing authorized treatment through Concentra.

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       In Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn. 1991), the
Tennessee Supreme Court provided several factors for consideration in cases of
conflicting medical opinions courts, including “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.” Dr. Downs’ affidavit states that
he is a board-certified orthopedic physician, but it says nothing else about his
qualifications. The parties submitted no proof at all regarding the qualifications of Dr.
Syed or Dr. Reddy. The almost total lack of information makes an evaluation of the
physicians’ relative qualifications impossible. As to the other factors, all three doctors
examined and treated Ms. Boyd following the accident, in roughly the same time period,
and there is general agreement on the diagnosis. The only difference is Dr. Downs’
opinion that Ms. Boyd sustained a work-related injury to her right shoulder that resulted
in an anatomical change or progression of pre-existing symptoms. Dr. Downs, however,
did not provide any explanation as to how he reached this conclusion. In the absence of
any supporting explanation of how Ms. Boyd tore her rotator cuff while typing on a
keyboard, the Court finds that Dr. Downs’ statement is insufficient to rebut the
presumption of correctness of the authorized physicians’ opinions at this time. Therefore,
Ms. Boyd has not demonstrated that she is likely to prevail at a hearing on the merits.



IT IS, THEREFORE, ORDERED as follows:

   1. Ms. Boyd’s claim against Hewlett-Packard or its workers’ compensation carrier
      for the requested medical and temporary disability benefits is denied at this time.

   2. This matter is set for Initial Hearing on September 3, 2015, at 10:00 a.m.

   3. ENTERED this the 6th day of July, 2015.


                                  _____________________________________
                                  DALE TIPPS
                                  Workers' Compensation Judge

Initial Hearing:

        An Initial Hearing has been set with Judge Dale Tipps, Court of Workers’
Compensation. You must call 615-741-2112 or toll free at 855-874-0437 to participate in
the Initial Hearing.

       Please Note: You must call in on the scheduled date/time to participate. Failure to

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call in may result in a determination of the issues without your further participation. All
conferences are set using Central Time (CT).

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 (7) 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 (10) 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
      (10) 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 (10) calendar days of the filing of the Expedited
      Hearing Notice of Appeal. Alternatively, the parties may file a statement of the
      evidence within ten (10) calendar days of the filing of the Expedited Hearing
      Notice of Appeal. The Judge must approve the statement of the evidence before
      the Court Clerk may submit the record to the Clerk of the Appeals Board.

   6. If the appellant elects to file a position statement in support of the interlocutory
      appeal, the appealing party shall file such position statement with the Court Clerk
      within three (3) business days of the filing of the Expedited Hearing Notice of
      Appeal, specifying the issues presented for review and including any argument in

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        support thereof. If the appellee elects to file a response in opposition to the
        interlocutory appeal, appellee shall do so within three (3) business days of the
        filing of the appellant’s position statement.

                            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 6th day of
July, 2015.


 Name                      Certified    Via        Via    Service sent to:
                            Mail        Fax       Email
                                                   X      mfisher@ddzlaw.com
 Michael Fisher
                                                   X      Janet.villani@sedgwickcms.com
 Janet Villani



                                   _____________________________________________
                                          PENNY SHRUM, COURT CLERK
                                              wc.courtclerk@tn.gov




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