                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD


         Employee: Regina Kirk                           )        Docket No. 2015-01-0036
                                                         )
         Employer: Amazon.com, Inc.                      )        State File No. 79228-2014



                                     CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the
referenced case was sent to the following recipients by the following methods of service
on this the 7th day of August, 2015.
 Name                    Certified   First Class   Via   Fax       Via     Email Address
                         Mail        Mail          Fax   Number    Email

 Carmen Y. Ware                                                      X     cyware@thewarelawfirm.com
 Charles E. Pierce                                                   X     cepierce@mijs.com
 Thomas Wyatt, Judge                                                 X     Via Electronic Mail
 Kenneth M. Switzer,                                                 X     Via Electronic Mail
 Chief Judge
 Penny Shrum, Clerk,                                                 X     Penny.Patterson-Shrum@tn.gov
 Court of Workers’
 Compensation Claims




Matthew Salyer
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: Matthew.Salyer@tn.gov
                                                                                         FILED
                                                                                     August 7, 2015
                                                                                         TEJ\'1'\ESSEE
                                                                                  WORKERS' CO~ IPENSAT I0:-1
                                                                                      APPEALS BOARD

                                                                                       Time: II:OOAM



             TENNESSEE BUREAU OF WORKERS' COMPENSATION
                WORKERS' COMPENSATION APPEALS BOARD


Employee: Regina Kirk                       ) Docket No. 2015-01-0036
                                            )
Employer: Amazon.com, Inc.                  )       State File No. 79228-2014
                                            )
                                            )
Appeal from the Court of Workers'           )
Compensation Claims                         )
Thomas Wyatt, Judge                         )


                   Affirmed and Remanded- Filed August 7, 2015


  OPINION AFFIRMING AND REMANDING INTERLOCUTORY ORDER OF
           COURT OF WORKERS' COMPENSATION CLAIMS

This interlocutory appeal involves an employee who claims to have suffered a work-
related shoulder injury. Following treatment at the employer's onsite clinic, the
employee requested additional medical care and was provided a panel of doctors from
which she selected a treating physician. After examining the employee on one occasion,
the physician completed and signed an employer-provided document stating his diagnosis
and designating the employee's injury as "Not Work-Related." The employer thereafter
denied the claim asserting there was no medical evidence of a work-related injury. The
employee sought additional medical care from an orthopedic surgeon who imposed work
restrictions that prevented the employee from returning to work. Upon the employee's
request and following the employee's filing of a petition for benefit determination, the
trial court held an expedited hearing. Finding that the physicians' causation opinions did
not assist the court, the trial court concluded that the employee did not present sufficient
medical evidence of a work injury and denied medical and temporary disability benefits.
Following the filing of a timely appeal notice, the employee submitted additional medical
information as an exhibit to the employee's position statement. After a careful review of
the record, we affirm the result reached by the trial court without giving consideration to


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the additional medical information, and we remand the case for such additional
proceedings as may be necessary.

Judge David F. Hensley delivered the opinion of the Appeals Board, in which Judge
Marshall L. Davidson, III, and Judge Timothy W. Conner, joined.

Carmen Y. Ware, Chattanooga, Tennessee, for the employee-appellant, Regina Kirk

Charles Pierce, Knoxville, Tennessee, for the employer-appellee, Amazon.com, Inc.

                                 Factual and Procedural Background

        The dispositive issue in this interlocutory appeal is whether the employee
presented sufficient medical evidence of a work-related injury at the expedited hearing
from which the trial court could determine that she would likely prevail at a hearing on
the merits. The trial court held that she did not. We agree with the result reached by the
trial court.

        Regina Kirk ("Employee") is a packer employed with Amazon.com, Inc.
("Employer"), in Chattanooga, Tennessee. On September 24, 2014, she reported a left
shoulder injury that occurred as she reached overhead for an item to pack in a box. The
Employer's First Report of Work Injury or Illness, completed on the alleged injury date,
includes the following description of how the injury occurred: "Left shoulder strain
developed gradual pain while packing." An "Associate First Report of Injury" safety
form signed by Employee on the same date indicates the "Actual Incident Time" to be
"11 :30 AM," and the "Time Incident Reported" to be "2:45 PM." It states "shoulder
popped while getting item to [place] in box [and] as day went on it feels like a pull to left
arm above neck." 1

       Employee went to Employer's onsite medical facility, AmCare, at 2:45 on the
afternoon of the alleged injury. The initial AmCare report, which was electronically
signed by an emergency medical technician, describes Employee's injury similarly to the
Associate First Report of Injury, stating "while getting an item to place in a box, her
shoulder popped."       It identifies the involved body parts to be "[l]eft upper
back/shoulder," and the report indicates Employee received "ice therapy x 15 mins." The
report states that Employee was to return to work without restrictions. Employee was
seen again at AmCare the following day where she received first-aid care described as
"ice for 15 minutes to left shoulder and [Biofreeze]." The AmCare records indicate that
Employee also received "ice therapy for 15 mins," on September 28 and 29, 2014.


1
 The parties did not submit a transcript of the proceedings in the trial court or a statement of the evidence. We have
gleaned the facts from the trial court's expedited hearing order and the exhibits admitted into evidence at the
expedited hearing.

                                                          2
       Following Employee's request to see a medical doctor, she was provided a panel
of medical providers from which she selected Workforce Corporate Health
("Workforce") on September 30, 2014. She was seen at Workforce on October 6, 2014,
by Dr. Jayant Eldurkar. The report states that Employee "says she has pain in the left
shoulder," and it notes "[n]o particular incident occurred, but she states from reaching
across and lifting at heights." Dr. Eldurkar's report notes numerous tests and maneuvers
performed in his clinical evaluation of Employee's shoulder, none of which was reported
to be positive. His examination of Employee's upper back notes "some tenderness at the
left rhomboid." The assessment included in his October 6, 2014 report states "[l]eft
rhomboid sprain/strain, not work related." Employee was instructed to "[r]eturn to work
without restrictions," and to "[r]eturn to clinic as needed." The report notes that
Employee was "discharged from our clinic."

        On the same date of Employee's examination by Dr. Eldurkar, the doctor dated
and signed an Employer-provided document identified as "Health Care Provider Request
for Medical Information." The document includes a section to be completed by the
health care provider wherein the injury "for which treatment is sought" is identified as
"[left] upper back spasm." This section of the document includes an area for the provider
to address whether the injury is work-related by marking one of three boxes indicated as
"Work-Related," "Not Work-Related," or "Undetermined." Dr. Eldurkar marked the box
indicating Employee's injury is "Not Work-Related." On October 17, 2014, Employer
denied additional benefits, stating "[ n]o medical evidence of a work related injury" as the
basis for denial in a notice submitted to the Bureau.

       Employee's left shoulder pain worsened as she continued her work as a packer.
Employee sought medical treatment on her own, and on February 19, 2015, she was seen
by Dr. Jason Robertson, an orthopedic physician. He recorded that Employee "presents
in the office today with a complaint of left shoulder pain that began 09/23/2014." The
report notes Employee's statement ''that she was reaching for something on a shelf when
her left shoulder popped." Dr. Robertson examined Employee's shoulder and performed
range of motion tests, strength tests and "Specialty Tests," noting positive "Neer and
Hawkin's" tests, which Dr. Eldurkar had noted to be negative at the time of his October
6, 2014 clinical evaluation. Dr. Robertson ordered and reviewed left shoulder x-rays,
noting a "type III acromion and mild glenohumeral degenerative joint disease." In
addition to prescribing medication, he prescribed a four-week physical therapy program
and imposed restrictions against "lifting over 10 LBS Left upper extremity until follow
up." He also requested Employee to return in four weeks.

       Dr. Robertson signed and dated three separate Employer-provided documents that
requested, among other information, his opinion concerning whether Employee's
condition was work-related. On February 23, 2015, he signed Employer's "Health Care
Provider Request for Medical Information," which states that the document is "To Be
Used For Return to Work Verification or Restrictions." The box marked on this

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document indicates that the condition for which Employee was examined on February 19,
2015, is "Not Work-Related." A second copy of this document was admitted into
evidence that is marked "REVISED 3112/15." It has the "Not Work-Related" box and
language marked through, and "Work-Related" is circled. Dr. Robertson's initials and
"3/12/15" are handwritten beside the revisions. A second Employer-provided document
signed by Dr. Robertson is also dated March 12, 2015, and is titled "Attending
Physician's Statement of Work Capacity and Impairment." Dr. Robertson identifies the
primary diagnosis on this document to be left shoulder impingement. In the area for the
doctor to indicate "No," "Yes" or "Unknown," following the question, "[i]s the patient's
primary condition due to injury or illness arising out of the patient's employment," the
document is marked, "Unknown." A third Employer-provided request for medical
information document states it is "To Be Used For Disability Accommodation & Fitness
for Return to Work." This document is dated March 27, 2015, and includes Dr.
Robertson's signature. The document notes that Employee was last seen by the doctor on
March 19, 2015, and that work restrictions were assigned at that visit. The box indicating
the injury is "Work-Related" is marked, and Dr. Robertson's signature is written in the
same section following the statement, "overuse injury from overhead activity."

        Employee filed a Petition for Benefit Determination on February 20, 2015,
requesting medical benefits for her alleged September 24, 2014 injury. Following
unsuccessful mediation and the filing of a Dispute Certification Notice, Employee filed a
request for an expedited hearing, indicating Employee wanted the assigned judge to issue
a ruling based on a review of the file without an evidentiary hearing. The trial court
issued an order finding "this claim is best determined in consideration of [Employee's]
testimony" and ordered an in-person evidentiary hearing. Employee was the only witness
to testify at the expedited hearing. On July 7, 2015, the trial court issued its order
denying Employee's claim for medical and temporary disability benefits, concluding that
Employee "did not submit sufficient medical expert opinion to establish that, at a hearing
on the merits, she would likely prevail in establishing that her injury arose primarily out
of and in the course and scope of employment." Employee timely filed a notice of appeal
on July 16, 2015, along with a Position Statement in Support of Appeal. Employee
exhibited to the position statement correspondence dated July 9, 2015, from Employee's
attorney to Dr. Robertson, which included questions presented to the doctor. The
purported "exhibit" includes responses from the doctor and his signature dated July 11,
20 15. Foil owing the expiration of the time to file a transcript or statement of the
evidence, the appeal was submitted to the Appeals Board on July 29, 2015.

                                  Standard of Review

       The standard of review to be applied by the Appeals Board in reviewing a trial
court's decision is statutorily mandated and limited in scope. Specifically, "[t]here shall
be a presumption that the findings and conclusions of the workers' compensation judge
are correct, unless the preponderance of the evidence is otherwise." Tenn. Code Ann. §

                                            4
50-6-239(c )(7) (20 14 ). The limited circumstances warranting reversal or modification of
a trial court's decision are specified in the statute:

              The workers' compensation appeals board may reverse or modify
      and remand the decision of the workers' compensation judge if the rights of
      any party have been prejudiced because findings, inferences, conclusions,
      or decisions of a workers' compensation judge:

             (A) Violate constitutional or statutory provisions;
             (B) Exceed the statutory authority of the workers' compensation
             judge;
             (C) Do not comply with lawful procedure;
             (D) Are arbitrary, capricious, characterized by abuse of discretion, or
             clearly an unwarranted exercise of discretion; or
             (E) Are not supported by evidence that is both substantial and
             material in the light of the entire record.

Tenn. Code Ann. § 50-6-217(a)(3) (2015). In applying the standard set forth in
subparagraph (E) above, courts have construed "substantial and material" evidence to
mean "such relevant evidence as a reasonable mind might accept to support a rational
conclusion and such as to furnish a reasonably sound basis for the action under
consideration." Clay Cnty. Manor, Inc. v. State, Dep't of Health & Env't, 849 S.W.2d
755, 759 (Tenn. 1993) (quoting Southern Ry. Co. v. State Bd. of Equalization, 682
S.W.2d 196, 199 {Tenn. 1984)). Like other courts applying the standard embodied in
section 50-6-217(a)(3), we will not disturb the decision of the trial court absent the
limited circumstances identified in the statute.

                                        Analysis

                                           A.

        Contemporaneously with the filing of the notice of appeal, Employee filed a
position statement with a two-page exhibit that includes a July 9, 2015 letter from
Employee's attorney to Dr. Robertson. The letter advises the doctor that it was unclear to
the trial court why the forms from his office presented conflicting causation opinions. It
presents two questions to the doctor in an attempt to clarify the doctor's opinion on
causation. The exhibit includes the doctor's responses and signature. Employee presents
as one of two issues on appeal ''whether the post hearing causation . . . letter . . . is
admissible on appeal to assist the Court in determining medical causation." We hold that
it is not. "[W]e will not consider on appeal testimony, exhibits, or other materials that
were not properly admitted into evidence at the hearing before the trial judge." Hadzic v.
Averitt Express, No. 2014-02-0064, 2015 TN Wrk. Comp. App. Bd. LEXIS 14, at *13
n.4 (Tenn. Workers' Comp. App. Bd. May 18, 2015).

                                            5
                                            B.

       Although not worded as such, Employee's second issue on appeal questions
whether the trial court erred in determining that Employee presented insufficient medical
evidence of a work-related injury from which the trial court could determine that
Employee would likely prevail at a hearing on the merits. The appellant bears the burden
of showing that the evidence presented in the trial court preponderates against the trial
court's findings. Mfrs. Consol. Serv., Inc. v. Rodell, 42 S.W.3d 846, 865 (Tenn. Ct. App.
2000). Without a transcript or a statement of the evidence, we cannot know what
evidence was presented to the trial court beyond the exhibits that were admitted into
evidence and the testimony as stated in the trial court's order. See Britt v. Chambers, No.
W2006-00061-COA-R3-CV, 2007 Tenn. App. LEXIS 38, at *8 (Tenn. Ct. App. Jan. 25,
2007).

       Here, Employee was the only witness to testifY at the expedited hearing. Based on
Employee's testimony and the exhibits admitted into evidence, the trial court found that
Employee '"felt a pop in her left shoulder that was accompanied by pain when, while
working at [Employer], she reached above her head to retrieve an item to pack in a box."
There is a presumption that the findings and conclusions of the workers' compensation
judge are correct, unless the preponderance of the evidence is otherwise. Tenn. Code
Ann. § 50-6-239(c)(7) (2014). Without a transcript or statement of the evidence, we
cannot conclude in this case that the evidence preponderates against the trial court's
decision.

                                             C.

       Dr. Eldurkar indicates on the Employer-provided request for medical information
that the '"[left] upper back spasm" for which "treatment is sought" is "Not Work-
Related." Dr. Eldurkar's October 6, 2014 report notes that he performed a physical
examination of Employee's left shoulder and upper back and identifies numerous tests
and maneuvers included in his examination. He notes that Employee had full range of
motion in her left shoulder and that each test or maneuver performed during his clinical
evaluation was negative. His examination of Employee's upper back revealed '"some
tenderness at the left rhomboid." The assessment included in the report states "[l]eft
rhomboid sprain/strain, not work related." Employee was instructed to "[r]eturn to work
without restrictions," and to '"[r]eturn to clinic as needed." The report also states that
Employee was '"discharged from our clinic."

       The trial court determined that Dr. Eldurkar '"ordered no diagnostic testing, and
offered no treatment," and that the doctor's opinion on causation is not entitled to the
statutory presumption '"because he did not treat [Employee]." In our view, the trial court
erred in determining that Dr. Eldurkar's opinion on causation is not entitled to the

                                             6
statutory presumption. Tennessee Code Annotated section 50-6-204(a)(3)(A)(i) (2014)
provides that the injured employee shall accept the medical benefits afforded under this
section, provided that the employer provides a panel of physicians as required "from
which the injured employee shall select one (1) to be the treating physician." Neither this
section nor Tennessee Code Annotated section 50-6-102( 13 )(E) includes a qualitative
standard for determining whether the selected physician is the "treating physician" whose
causation opinion is entitled to the presumption of correctness; rather, application of the
presumption is based on the employee's selection of the physician from an appropriate
panel. See generally Tenn. Comp. R. & Regs. 0800-02-06-.01(4) (defines "Authorized
Treating Physician" for purposes of utilization review as "the practitioner chosen from
the panel required by [Tennessee Code Annotated section] 50-6-204 or a practitioner
referred to by the practitioner chosen from the panel required by [section] 50-6-204, as
appropriate"). However, such error is harmless here as the trial court determined that
Employee did not establish sufficient medical evidence of causation. Applying the
presumption to Dr. EldtJrkar's opinion would not assist Employee in establishing
causation.

                                       Conclusion

         We hold that the evidence does not preponderate against the trial court's denial
of additional medical and temporary disability benefits. Additionally, we find that the
trial court's decision does not violate any of the standards identified in Tennessee Code
Annotated section 50-6-217(a)(3) (2015). Accordingly, the trial court's decision Is
affirmed and the case is remanded for any further proceedings that may be necessary.



                                                 David F. Hensley, Judge
                                                 Workers' Compensation~ peals Board




                                             7
