            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD


Malcolm S. Edwards                          ) Docket No. 2016-05-0727
                                            )
v.                                          )
                                            ) State File No. 38774-2016
The Job Shoppe U.S.A., et al.               )
                                            )
                                            )
Appeal from the Court of Workers’           )
Compensation Claims                         )
Dale Tipps, Judge                           )


                     Affirmed as Modified – Filed April 20, 2017

In this interlocutory appeal, the employee reported an injury to his neck and right arm as
a result of lifting activities at work. Although the employer initially provided the
employee a panel of physicians, it subsequently denied the claim based on information
indicating the employee had reported similar symptoms to his physician prior to the
alleged work accident. As a result of this denial, the employee did not see the specialist
to whom he was referred by the panel physician. Following an expedited hearing, the
trial court ordered the employer to authorize medical treatment “until the doctor has an
opportunity to address causation,” but denied the employee’s claim for temporary
disability benefits. We affirm the trial court’s decision as modified and remand the case
for any further proceedings that may be necessary.

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

Ryan Sarr, Nashville, Tennessee, for the employer-appellant, The Job Shoppe U.S.A.

Keith Jordan, Nashville, Tennessee, for the employee-appellee, Malcolm S. Edwards




                                            1
                          Factual and Procedural Background

       Malcolm S. Edwards (“Employee”) was employed by The Job Shoppe U.S.A.
(“Employer”), a temporary employment agency. He had been assigned to work at a plant
that manufactures car seats. On May 10, 2016, his second day of work, Employee
reported experiencing pain and symptoms in his neck and right arm after lifting car seats.
He reported these symptoms to his supervisor, who recommended he slow the pace of his
work activities. Employee was able to finish his shift, but he continued experiencing
pain. He asked his cousin, who was also a co-worker, to drive him home. The next
morning he went to a walk-in clinic complaining that he was unable to move his right
arm. The nurse practitioner at the clinic noted a complaint of severe right arm pain for
the last two or three weeks. She diagnosed radicular right arm pain and right arm
weakness, and she referred Employee to Dr. Jacob Schwarz, a neurosurgeon.

      After reporting his continued complaints to Employer, Employee was provided a
panel of physicians from which he selected Dr. Caleb Wallwork at Workers’ Health
Walk-In Clinic. Dr. Wallwork diagnosed recurrent neck pain “while doing moderately
heaving lifting” at work and a neck strain. Dr. Wallwork referred Employee to Dr.
Schwarz and also referred him “back to his pain clinic.”

        On July 20, 2016, Employee was seen by Angela Hatchett, a nurse at Dr.
Schwarz’s office. Nurse Hatchett noted Employee’s history of three prior neck surgeries
and a lumbar surgery. She further noted that his “symptoms started at time of lifting
incident at work 5/10/2016” and included “throbbing right arm pain” and “constant
numbness.” Employee underwent an EMG and nerve conduction study that revealed
possible “very mild acute or acute-on-chronic right C7 radiculopathy.” Nurse Hatchett
reiterated that Employee’s “symptoms reportedly started with [the] work incident.” She
ordered physical therapy and scheduled a return appointment with Dr. Schwarz.

       Before Employee returned to Dr. Schwarz’s office, Employer denied the claim.
During the expedited hearing that followed, Employer argued Employee had suffered
from chronic pain since his most recent prior neck surgery, had been referred to a pain
clinic where he received monthly treatment with narcotics, and had complained of the
exact same symptoms in the weeks prior to the alleged work accident. In response,
Employee asserted that the pain and symptoms he experienced prior to the lifting incident
at work were “nowhere near as intense” as those after the work accident.

       Following the expedited hearing, the trial court issued an order requiring
Employer to authorize medical treatment with Dr. Schwarz “until the doctor has an
opportunity to address causation.” However, the trial court also concluded that Employee
had not come forward with sufficient evidence to show he was likely to prevail at a
hearing on the merits with respect to the issue of medical causation. As a result, the trial
court denied Employee’s claim for temporary disability benefits. Employer has appealed.

                                             2
                                  Standard of Review

       The standard we apply 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) (2015). The trial court’s
decision may be reversed or modified if the rights of a 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).

                                        Analysis

        Employer presents a single issue on appeal: whether the trial court erred in
ordering additional medical treatment with Dr. Schwarz. Employer argues that because it
provided Employee a panel and authorized an evaluation with Dr. Wallwork, it satisfied
its statutory obligation and should not be required to authorize additional treatment as
recommended by Dr. Wallwork absent proof of a causal link between Employee’s
medical complaints and the reported work accident.

       We have previously addressed the standard of proof required at expedited
hearings. An employee need not prove at an expedited hearing each and every element of
his or her claim by a preponderance of the evidence in order to obtain temporary
disability benefits or medical benefits. See, e.g., McCord v. Advantage Human
Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Tenn.
Workers’ Comp. App. Bd. Mar. 27, 2015). Instead, an employee has the burden to come
forward with sufficient evidence from which the trial court can determine that the
employee is likely to prevail at a hearing on the merits consistent with Tennessee Code
Annotated section 50-6-239(d)(1). Id. However, “[t]his lesser evidentiary standard . . .
does not relieve an employee of the burden of producing evidence of an injury by
accident that arose primarily out of and in the course and scope of employment at an
expedited hearing, but allows some relief to be granted if that evidence does not rise to
the level of a ‘preponderance of the evidence.’” Buchanan v. Carlex Glass Co., No.
2015-01-0012, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at * 6 (Tenn. Workers’ Comp.
App. Bd. Sept. 29, 2015).

                                            3
        Moreover, it is our responsibility to conduct an in-depth examination of the trial
court’s factual findings and conclusions, Wilhelm v. Krogers, 235 S.W.3d 122, 126
(Tenn. 2007), within the mandate set out in Tennessee Code Annotated sections 50-6-
217(a)(3) and 50-6-239(c)(7) (2015). Section 50-6-239(c)(7) provides a presumption
“that the findings and conclusions of the workers’ compensation judge are correct, unless
the preponderance of the evidence is otherwise.” Furthermore, when the trial court has
seen and heard the witnesses, considerable deference must be given to the trial court’s
credibility findings. Tryon v. Saturn Corp., 254 S.W.3d 321, 327 (Tenn. 2008).

        The preliminary question in this case is whether Employee came forward with
sufficient evidence to show he is likely to prevail at trial in proving a compensable work
accident. With respect to that issue, the testimony supporting Employee’s claim was
uncontradicted. Employee testified that on his second day of employment, he
experienced increased pain and other symptoms in his neck and right arm after lifting car
seats at work. There is no dispute that he reported these symptoms to a supervisor.
There is also no dispute that he requested medical treatment. Employee’s testimony
regarding the facts of the accident was corroborated by Scotty Edwards, a co-worker.
Mr. Edwards described a specific lifting incident after which Employee grabbed his arm
and complained of acute pain. Although Employer attempted to call into question the
credibility of this testimony by noting Mr. Edwards’ familial connection to Employee,
Employer nevertheless offered no testimony or other evidence to refute the occurrence of
the work accident. Thus, the preponderance of the evidence supports a conclusion that
Employee came forward with sufficient evidence at the expedited hearing to show he is
likely to prevail in proving a compensable work accident.

       Once an employee has satisfied the burden of showing a likelihood of prevailing
on the initial issue of whether a compensable accident has occurred, a trial court can
order the initiation of medical and/or temporary disability benefits at an expedited
hearing. McCord, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *17. In the present case,
Employee satisfied his burden of showing a likelihood of prevailing at trial in proving the
occurrence of a compensable accident. Thus, although the trial court concluded that
Employee had not proven the work accident caused more than fifty percent of his
disability or need for medical treatment, considering all causes, that finding does not
weigh against the trial court’s decision to order additional medical treatment with the
physician to whom Employee was referred by the panel doctor at this stage of the case.
Therefore, we conclude the trial court’s decision to order Employer to authorize
additional treatment with Dr. Schwarz, who had not seen Employee after the work
accident due to Employer’s denial of the claim, was supported by the preponderance of
the evidence presented at the expedited hearing.

       Employer asserts that the panel physician, Dr. Wallwork, offered an opinion
supporting its argument that Employee’s current complaints were related solely to his
pre-existing condition. We disagree with this overly-narrow interpretation of Dr.

                                            4
Wallwork’s May 20, 2016 report. In that record, Dr. Wallwork noted Employee
complained of “new pain” after the lifting incident at work on May 10, 2016. In addition,
after reviewing the timeline of events after the work injury, which was consistent with
Employee’s testimony, Dr. Wallwork opined it was “reasonable” for Employee to seek an
appointment with Dr. Schwarz.

       We further disagree with Employer’s contention that Dr. Wallwork’s subsequent
comment (“it sounds like a recurrence of his old neck problems”) constituted an opinion
that the work accident did not cause a new injury or aggravate a pre-existing condition.
In fact, in the diagnosis section of his report, Dr. Wallwork specifically stated that
Employee suffered a “recurrence of pain while doing moderately heavy lifting . . . ten
days ago,” and that he suffered a “neck strain.” He then recommended a “referral back to
Dr. Schwartz.” Instead of supporting Employer’s argument on appeal, we conclude Dr.
Wallwork’s report supports the trial court’s decision to order Employer to authorize
additional medical treatment with Dr. Schwarz. Thus, we find no merit in Employer’s
argument.

        Employee asserts that the trial court erred in refusing to award temporary total
disability benefits based on Dr. Wallwork’s imposition of work restrictions in his May
20, 2016 report. In support of his argument, Employee cites portions of the statutory
definition of “injury” contained in Tennessee Code Annotated section 50-6-102(14)
(2016). However, Employee excluded a relevant portion of that definition, which states,

      [a]n 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.

Tenn. Code Ann. § 50-6-102(14)(C) (emphasis added). When considering this definition
in light of the standard of proof at an expedited hearing, we conclude that, in order to be
awarded temporary disability benefits at an expedited hearing, an employee must come
forward with sufficient evidence to show he or she is likely to prevail at trial in proving
the work accident contributed more than fifty percent in causing the temporary disability.
Given Dr. Wallwork’s equivocal statements concerning the cause of Employee’s
condition, we find the trial court did not err in denying temporary benefits at this time.

       Before concluding, we note that the trial court determined Employer “must return
[Employee] to Dr. Schwarz until the doctor has an opportunity to address causation.” We
respectfully disagree that setting such a condition on authorized medical treatment is
appropriate under these circumstances. As we have previously held,

      [w]hile an injured worker who meets the applicable statutory requirements
      is entitled to medical benefits, there is no “right to a causation opinion” as

                                            5
       such. See generally Tenn. Code Ann. § 50-6-204(d)(9), (g)(2)(B) (2015).
       If a trial court determines that medical benefits are appropriate, the court
       can order the initiation of such benefits. However, it is the parties’
       responsibility to secure expert opinions or other evidence necessary to
       address any applicable burden of proof.

Pool v. Jarmon D&Q Transp., No. 2015-06-0510, 2016 TN Wrk. Comp. App. Bd.
LEXIS 1, at *9-10 (Tenn. Workers’ Comp. App. Bd. Jan. 4, 2016). Thus, to the extent
the trial court’s order in this case can be interpreted to require Employer to authorize and
secure a “causation opinion” from Dr. Schwarz as part of the authorized medical
treatment, the order is modified to make clear that Employer must authorize such
treatment as is reasonable, necessary, and causally related to the work accident in
accordance with Tennessee Code Annotated section 50-6-204(a)(1)(A) (2016). It is the
responsibility of each party to secure whatever expert opinions such party may deem
appropriate in support of its case.

                                       Conclusion

       In light of the foregoing, we affirm the trial court’s order as modified and remand
the case for any further proceedings that may be necessary.




                                             6
                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD


Malcolm S. Edwards                                       )   Docket No.   2016-05-0727
                                                         )
v.                                                       )   State File No. 38774-2016
                                                         )
The Job Shoppe U.S.A., et al.                            )


                                     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 20th day of April, 2017.
 Name                    Certified   First Class   Via   Fax      Via     Email Address
                         Mail        Mail          Fax   Number   Email

 Keith Jordan                                                       X     jordanlawoffice@comcast.net
 Ryan Sarr                                                          X     rsarr@morganakins.com
 Dale Tipps, 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




Jeanette Baird
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-0064
Electronic Mail: WCAppeals.Clerk@tn.gov
