                  TENNESSEE DIVISION OF WORKERS’ COMPENSATION
                     WORKERS’ COMPENSATION APPEALS BOARD


Employee: LaToya Dorsey                            )       Docket No. 2015-01-0017
                                                   )
Employer: Amazon.com, Inc.                         )       State File No. 7541-2015



                                   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 14th day of May, 2015.
 Name                  Certified   First Class   Via   Fax      Via     Email Address
                       Mail        Mail          Fax   Number   Email

 LaToya Dorsey                                                    X     LatoyaWilson73@yahoo.com
 Kristen Stevenson                                                X     Kcstevenson@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
                                                                                    May 14,2015

                                                                                  TEN:-;ESSEE
                                                                             WORKERS' CO:\IPE:-;S.-\TIO:-;
                                                                                APPEALS BOARD

                                                                                    Time: 1:00PM


            TENNESSEE DIVISION OF WORKERS' COMPENSATION
               WORKERS' COMPENSATION APPEALS BOARD


Employee: LaToya Dorsey                    )       Docket No. 2015-01-0017
                                           )
Employer: Amazon.com, Inc.                 )       StateFileNo. 7541-2015
                                           )
                                           )
Appeal from the Court of Workers'          )
Compensation Claims                        )
Thomas Wyatt, Judge                        )


                           Affirmed in Part, Vacated in Part
                          and Remanded- Filed May 14,2015


  OPINION AFFIRMING IN PART, VACATING IN PART, AND REMANDING
              INTERLOCUTORY ORDER OF COURT OF
                WORKERS' COMPENSATION CLAIMS

 The employee alleged that repetitive work activities after her return to work in May 2014
 caused or aggravated symptoms in her right wrist and arm. The employer provided a
 panel of physicians, from which the employee selected Workforce as the authorized
provider. Employee was examined by a nurse practitioner and a physician at Workforce,
 but the opinion concerning causation was rendered and signed by the nurse practitioner.
Five days later, the employer denied the claim based on "no medical evidence of a work-
related injury per panel physician." Following an expedited hearing, the trial court
concluded that the employer did not comply with statutory provisions regarding a panel
of physicians and ordered the employer to provide a new panel of physicians to the
employee. Having carefully reviewed the record, we affirm the trial court's exercise of
jurisdiction, vacate the trial court's order for a new panel of physicians, and remand the
case to the Court of Workers' Compensation Claims.

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

                                               1
Kristen C. Stevenson, Knoxville, Tennessee, for the employer-appellant, Amazon.com,
Inc.

LaToya Dorsey, Chattanooga, Tennessee, prose


                           Factual and Procedural Background

       The employee, LaToya Dorsey ("Employee"), is a 42 year-old resident of
Hamilton County, Tennessee. She is employed by Amazon.com ("Employer") as a
"stower," which requires her to use a hand scanner to scan totes, items, and storage bins.
The hand scanner weighs approximately two pounds and requires a triggering action to
activate the scanner. Employee testified that she uses the hand scanner between 800 and
1,500 times per shift. She is right hand dominant.

        Beginning in 2013, Employee experienced pain and symptoms ill'her right hand
and wrist while working for Employer. She was on medical leave for approximately one
year and returned to work in May 2014. Employee testified that "within a couple of
months [of returning to work], I was starting to feel the same pain all over again in my
wrist, which is now going ... towards my elbow." The parties stipulated and the trial
court accepted as a stipulation that the date ofthe alleged work injury was December 21,
2014. The Petition for Benefit Determination also lists December 21, 2014 as the date of
InJury.

       Following the filing of the Petition for Benefit Determination, the parties were
unable to reach a compromise and a Dispute Certification Notice ("DCN") was filed on
March 9, 2015. The only issues listed on the DCN were: (1) "whether Employee
sustained an injury that arose primarily out of and in the course and scope of employment
with Employer" and (2) "whether Employee sustained an injury in the course of
employment with Employer." The parties were given an opportunity to include
additional issues and the mediator certified that "none of the parties submitted a list of
additional issues for inclusion in this dispute certification notice after a copy of the notice
was provided to the parties."

        On March 9, 2015, Employee filed a Request for Expedited Hearing and requested
an in-person, evidentiary hearing. The hearing occurred on April 6, 2015. At the
expedited hearing, the parties stipulated, and the trial court accepted as stipulations, that
Employer provided a "proper" or "legally compliant" panel of physicians and that
"Workforce" was selected by Employee as the authorized medical provider. On April
17, 2015, the trial court issued an interlocutory order. The trial court concluded that "the
medical records admitted into evidence do not contain medical expert opinion
establishing that the conditions in Ms. Dorsey's right hand and wrist arose primarily out

                                              2
of and in the course and scope of her employment." However, the trial court further
found that Employer failed to provide Employee a sufficient panel because the employer
included on its panel "a facility where the injured worker is primarily examined and
treated by a non-physician practitioner." As a result, the trial court ordered Employer to
"offer [Employee] a panel of physicians who practice in the fields of orthopedics or hand
surgery for future treatment and examination of the right hand and wrist symptoms, if
any, that are related to the repetitive work that she performed on and after she returned to
[Employer] in May, 2014." The court also concluded that it had jurisdiction to hear the
dispute since Employee "testified that she began missing work due to right hand and
wrist symptoms in January, 20 15." Employer timely filed its Notice of Appeal and the
case was submitted to the Clerk of the Appeals Board on May 7, 2015.

                                   Standard of Review

        The standard of review applicable 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. § 50-6-239(c)(7)
(2014). The trial court's decision may be reversed or modified and remanded "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 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 County Manor, Inc. v.
State of Tennessee, 849 S.W.2d 755, 759 (Tenn. 1993) (quoting Southern Railway 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.




                                            3
                                          Analysis

                                  Jurisdiction ofthe Court

        In its Brief in Support of Request for Appeal of Expedited Hearing Order,
Employer included as a disputed issue "whether the court erred in finding that the court
has jurisdiction of the claim." Yet, in its pre-hearing statement, Employer did not raise
the issue of jurisdiction. Instead, Employer reiterated the "contested issues" as reflected
on the DCN, which did not include jurisdiction. Employer did not assert in its pre-
hearing statement that Employee's claim was not subject to post-July 1, 2014 statutes.
Moreover, during the course of the expedited hearing, counsel for Employer did not
expressly challenge the court's authority to hear the case, but merely commented that
"the statute of limitations may be an issue, as well as venue, if we're dealing with a 2013
claim." Counsel then stated that Employee was not entitled to temporary disability
benefits since there was no medical proof of a physician restricting her from work
"arising out of the December 21, 2014, injury that we're here on today." Finally, and
perhaps most telling, Employer stipulated during the expedited hearing that the date of
the alleged injury was .December 21, 2014.

        A stipulation is an agreement between the parties regarding business before the
court. It is entered into mutually and voluntarily. A stipulation obviates the need for
evidence regarding the stipulated matter. Although the parties may not stipulate to
questions of law, stipulations within the range of possibly true facts and valid legal
strategies are allowed. On appeal, stipulations are binding on the parties and may not be
altered. Bearman v. Camastos, 385 S.W.2d 91, 93 (Tenn. 1964); Overstreet v. Shoney's,
Inc., 4 S.W.3d 694, 701 (Tenn. Ct. App. 1999).

        In the present case, the stipulation concerning the date of injury is binding on the
parties and the court. This stipulated fact, combined with Employee's allegation that her
work activities after July 1, 2014 caused or aggravated her condition, establishes that the
trial court properly exercised jurisdiction over this case.

            Sufficiency of the Panel of Physicians/Employer's Denial of Claim

        As discussed above, the DCN listed the contested issues in the case. It did not
include whether the panel of physicians given to Employee was legally sufficient. In
accordance with Tennessee Code Annotated section 50-6-239(b ), issues not listed on the
DCN may not be presented for adjudication unless the trial court makes express findings
that the parties did not have knowledge of the issue prior to the issuance of the DCN; that
the parties could not have known of the issue despite reasonable investigation; and that
prohibiting presentation of the issue would result in substantial injustice to the petitioning
party. Tenn. Code Ann. § 50-6-239(b)(l) & (2) (2014). The preconditions to raising
issues other than those identified on the DCN have not been met in this case.

                                              4
         Moreover, at the expedited hearing, the parties stipulated, and the trial court
 accepted as a stipulation, that the panel provided to Employee was "proper" and "legally
 compliant." The legal sufficiency of the panel provided to Employee was not ripe for
 adjudication at the expedited hearing. See Bearman, 385 S.W.2d at 93. Therefore, the
 trial court's order for a new panel of physicians is vacated.

        Nevertheless, Employer listed no valid basis for denial of this claim on its Form
 C-23, Notice of Denial, submitted to the Division on or about February 16, 2015. The
 medical records from Workforce, introduced without objection as Exhibit 8, do not
 contain an opinion from a physician regarding causation, as alleged in Employer's Notice
 of Denial. The opinion of the nurse practitioner, as indicated on Employer's "Health
 Care Provider Request for Medical Information" form, dated February 11, 2015, did not
 and could not provide a valid basis for denial of the claim based on causation. See, e.g.,
 Hinson v. Claiborne & Hughes Health Ctr., No. M2006-02306-COA-R3-CV, 2008 Tenn.
 App. LEXIS 105, at * 15 (Tenn. Ct. App. Feb. 26, 2008) ("a nurse is not an expert who
 can testify as to medical causation"). Therefore, since Employee received a "legally
 compliant" panel and selected a provider from that panel, that provider remains
 Employee's authorized provider for purposes of this claim.

        Finally, Employer alleges in its Brief in Support of Request for Appeal of
 Expedited Hearing Order that the Workforce physician, Dr. Jayant Eldurkar, has issued a
 report addressing causation. That report is not part of this record and we will not
 speculate as to its contents or its impact, if any, on this case. This matter will be
 remanded to the trial court for further proceedings as may be necessary.

                                           Conclusion

          The trial court properly exercised jurisdiction in this case based on: ( 1) the parties'
  express stipulation to a date of injury after July 1, 2014; (2) Employee's allegation that
  work activities after July 1, 2014, caused or aggravated her condition; and (3) Employer's
  failure to raise the issue ofjurisdiction in the Dispute Certification Notice and/or any pre-
. hearing statements. Moreover, since the parties expressly stipulated that the panel of
  physicians provided to Employee was legally compliant, and Employee selected a
  provider from that panel, the selected provider remains Employee's authorized provider.
  Therefore, the trial court's order for a new panel of physicians is vacated and this matter
  is remanded for further proceedings as may be necessary.



                                                     Tim t y      • Conner, Judge
                                                             ·s' Compensation Appeals Board


                                                5
