             IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                              AT NASHVILLE

Jared Shannon,                                            )    Docket No.: 2015-06-0052
           Employee,                                      )
v.                                                        )    State File Number: 88045-2014
United Parcel Service, Inc.,                              )
            Employer,                                     )    Chief Judge Kenneth M. Switzer
And                                                       )
Liberty Mutual Insurance Company,                         )
            Carrier.                                      )


         EXPEDITED HEARING ORDER DENYING MEDICAL BENEFITS


       This matter came before the undersigned workers' compensation judge on the
Request for Expedited Hearing filed by the employee, Jared Shannon, pursuant to
Tennessee Code Annotated section 50-6-239 (2015). The present focus of this case is
Mr. Shannon's entitlement to a panel of physicians. The central legal issues are the
adequacy of Mr. Shannon's notice, whether the alleged injury arose primarily out of and
in the course and scope of employment with UPS, and whether UPS is obligated to
provide a panel. For the reasons set forth below, the Court finds Mr. Shannon gave
legally-sufficient notice of an alleged work-related injury. However, at this time, he has
not come forward with sufficient proof that he is likely to prevail at a hearing on the
merits regarding the work-relatedness of the injury; therefore, his request for medical
benefits (a panel) is denied. 1

                                               History of Claim

        Mr. Shannon is a twenty-four-year-old resident of Davidson County, Tennessee.
(T .R. 1 at 1.) He alleged that, on July 31, 2014, while working as a supervisor for UPS,
he injured his right arm and shoulder. !d. Specifically, he "was breaking jammed
packages and moving boxes when my right arm extended and pushed behind me." (Ex. 2
at 1.)

1
 A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.

                                                          1
       Mr. Shannon testified he reported the injury immediately afterward to part-time
supervisor Chase Campbell, and that on August 1, 2014, he reported it to his regular
supervisor, Joe Paul Tackett, and the safety supervisor, Lindiwee Phipps. !d. UPS
countered that Mr. Shannon maintained in the discussions with Mr. Tackett and Ms.
Phipps that his injury was not work-related, but rather, his shoulder hurt as a result of
injuries sustained in a motor vehicle accident three months earlier.

       Specifically, UPS offered the testimony of Leonard Wall, supervisor for Mr.
Shannon's shift, the '"twilight sort," as well as memoranda (Exs. 5, 6.) from Eric Ingalls
and Mr. Wall, respectively. The memoranda indicated that Mr. Shannon told them the
injury stemmed from the automobile accident three months earlier, rather than breaking
the jam on July 31, 2014. Mr. Shannon conceded at the hearing that he sustained injuries
in a car accident on May 13, 2013, but stated he did not injure his right shoulder. 2 He
denied previous injury to his right shoulder and insisted that the first treatment on the
shoulder occurred the day after the work injury.

      UPS contended the first notice it received of Mr. Shannon alleging his injuries as
work-related was correspondence dated October 28, 2014, from Mr. Shannon's attorney.
(Ex. 8.) UPS denied the claim twenty-eight days later on November 25, 2014,
concluding, '"No medical evidence to support a work injury." (Ex. 4.) 3

        Mr. Shannon went to the Skyline Medical Center emergency room on the morning
of August 1, 2014, where Dr. Todd Arkava diagnosed '"sprain shoulder/arm NOS" and
'"accident N.O.S." (Ex. 1 at 9.) The records classified the injury as non-work-related, but
stated, '"Pt states 'I was at work slinging boxes when my shoulder started hurting."' !d. at
15. Mr. Shannon testified that Skyline referred him to The Hand Care Center.

        Mr. Shannon saw providers at The Hand Care Center for approximately six
months, beginning with Jeff Tinker, PA-C on August 13, 2014. At that visit, PA-C
Tinker noted the following history: '"[P]atient states that he injured his right shoulder at
work 3 months ago. He states that he reached for a box on a conveyor belt and his right
arm was pulled backwards .... The symptoms have been present for 3 months." !d. at
34. Mr. Shannon returned on August 19, 2014, which record listed the history as,
'"[P]atient states that the initial injury to his right shoulder was from an MVA three
months ago. He states that it has gotten worse since he reinjured it moving boxes on a
conveyor belt on 7/31114 .. [sic] ... The symptoms have been present for 3 months." !d.
at 38. Mr. Shannon testified that he never told providers at The Hand Care Center that he

2
  The Court presumes Mr. Shannon meant 2014. Mr. Shannon testified that he injured his knees, back and neck in
the accident. The medical records admitted into evidence, Exhibit 1, only contain notes relative to treatment of the
alleged work injury; neither party introduced records regarding Mr. Shannon's post-automobil e accident treatment.
3
  UPS offered no evidence of its claim investigation and, in particular, how it determined on ~o vember 25, 2014,
that the medical evidence failed to support a work injury, given that Dr. Haslam rendered his explicit finding of no
medical causation more than a month later, on January 6, 2015.

                                                         2
sustained the right-shoulder injury in a motor vehicle accident, and that its records are
incorrect.

        Dr. Jason Haslam of The Hand Care Center performed right-shoulder arthroscopic
surgery with subacromial decompression and distal clavicle excision with excision of os
acromiale on October 21, 2014. (Ex. 1 at 67-68.) Dr. Haslam subsequently noted on
January 6, 2015, "It is my opinion that this is not a work-related injury given his his [sic]
initial intake form and history." (Ex. 1 at 73.) The initial intake form is not included in
the medical records admitted into evidence at the Expedited Hearing, and the attorneys
informed the Court that they had not seen it.

       Mr. Shannon filed a Petition for Benefit Determination seeking medical benefits.
The parties did not resolve the disputed issues through mediation, and the Mediating
Specialist filed a Dispute Certification Notice. Mr. Shannon filed an amended Request
for Expedited Hearing, and this Court heard the matter on October 14, 2015.

       At the Expedited Hearing, Mr. Shannon asserted he provided adequate, timely
notice of the injury in conversations with Chase Campbell, Lindiwee Phipps, Joe Paul
Tackett, Eric Ingalls and Mr. Wall. He argued the provision of notice of an injury, under
the Workers' Compensation Law, provides him an "absolute right" to a panel of
physicians to evaluate his injury and provide a causation opinion. Dr. Haslam's
causation opinion is not entitled to any presumption of correctness.

        UPS maintained that Mr. Shannon gave notice of an ''incident," but failed to give
notice of a work-related injury. UPS argued it relied on Mr. Shannon's representations to
multiple persons, all of whom are trained regarding procedures in workers'
compensation, that the injuries stemmed from the car accident three months prior to the
alleged date of injury. Further, because Mr. Shannon's own medical provider opined the
injury is not work-related, UPS contended he is not entitled to medical benefits.

                              Findings of Fact and Conclusions of Law

      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). The employee in a workers'
compensation claim has the burden of proof on all essential elements of a claim. Tindall
v. Waring Park Ass'n, 725 S.W.2d 935, 937 (Tenn. 1987);5 Scott v. Integrity Staffing

4
  UPS additionally argued that Mr. Shannon's alleged injury is not causally related to his work at UPS because "os
acromiale" is a congenital shoulder condition. However, UPS introduced no expert medical evidence to explain its
assertion and substantiate its theory of causation. Therefore, at this time the Court rejects it.
5
  The Tennessee Workers' Compensation Appeals Board allows reliance on precedent from the Tennessee Supreme
Court "unless it is evident that the Supreme Court's decision or rationale relied on a remedial interpretation of pre-

                                                          3
Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn.
Workers' Comp. App. Bd. Aug. 18, 2015). An employee need not prove every element
of his or her claim by a preponderance of the evidence in order to obtain relief at an
expedited hearing. McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015
TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27,
20 15). At an expedited hearing, 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. !d.

       The Court turns first to the issue of notice, as it is potentially dispositive. The
controlling statute, Tennessee Code Annotated section 50-6-201(a)(l) (2015), provides in
pertinent part that:
         Every injured employee ... shall, immediately upon the occurrence of an
         injury, or as soon thereafter as is reasonable and practicable, give or cause
         to be given to the employer who has no actual notice, written notice of the
         injury ... unless it can be shown that the employer had actual knowledge of
         the accident. (Emphasis added.)
"It is significant that written notice is unnecessary in those situations where the employer
has actual knowledge of the injury." Earls v. Calsonic Yorozu Corp., No. M2002-01309-
WC-R3-CV, 2003 Tenn. LEXIS 732, at *6 (Tenn. Workers' Comp. Panel Aug. 26, 2003)
(citing George v. Building Materials Corp., 44 S.W.3d 481,485 at n.1 (Tenn. 2001)).
       The notice requirement contained in section 50-6-201 "exists so that an employer
will have an opportunity to make a timely investigation of the facts while still readily
accessible, and to enable the employer to provide timely and proper treatment for an
injured employee." Jones v. Sterling Last Corp., 962 S.W.2d 469, 471 (Tenn. 1998);
Hosford v. Red Rover Preschool, No. 2014-05-0002, 2014 TN Wrk. Comp. App. Bd.
LEXIS 1, at *15 (Tenn. Workers' Comp. App. Bd. Oct. 2, 2014). Consequently, "the
giving of statutory notice to the employer is an absolute prerequisite to the right of an
employee to recover compensation under the workers' compensation law." Bogus v.
Manpower Temp. Serv., 823 S.W.2d 544, 546 (Tenn. 1992). When lack of notice is
raised as a defense, the burden is on the employee to show that notice was given, the
employer had actual notice, or the failure to give notice was reasonable under the
circumstances. Tenn. Code Ann. § 50-6-201(a)(l) (2014); Jones, 962 S.W.2d at 472.
       Applying these principles, the Court concludes that Mr. Shannon provided verbal
notice of a work-related incident resulting in injury, based on his testimony and the
memoranda UPS generated from Mr. Wall and Mr. Ingalls relative to its investigation


July I, 2014 statutes, that it relied on specific statutory language no longer contained in the Workers' Compensation
Law, and/or that it relied on an analysis that has since been addressed by the general assembly through statutory
amendments." McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, *13 n.4 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).

                                                         4
(Exs. 5, 6). Mr. Shannon satisfied his burden to show that UPS had actual notice. The
Court is unpersuaded by UPS' argument that Mr. Shannon gave notice of an "incident"
but not a "work-related injury." The plain language of the statute merely requires notice
of an "injury," which Mr. Shannon gave, according to UPS' own documents. Moreover,
the level of UPS' employees' training in workers' compensation is not relevant to the
question of whether or not the incident is work-related. They knew an incident resulting
in injury to Mr. Shannon took place at work. Whether the resulting need for treatment
came from the injury requires a medical opinion.
      Having given legally-sufficient notice, Mr. Shannon argued the statute provides an
"absolute right" to medical benefits, and in particular, a panel of physicians. Mr.
Shannon cited Hardin v. Dewayne 's Quality Metals, No. 2015-07-0067, 2015 TN Wrk.
Comp. LEXIS 70 (Tenn. Ct. Workers' Comp. Oct. 2, 2015), as authority for this
proposition. The Court disagrees on two bases. 6

        First, in Hardin, the Court ordered the employer to provide a panel of physicians
upon finding that the employee gave adequate notice of an injury. !d. at *9-11. In
Hardin, unauthorized treatment had already occurred, but, other than the employee's
testimony that the physician told him the injury was work-related, the evidence indicated
that the physician had not rendered a causation opinion. The trial court ordered a panel to
evaluate and treat the employee, and to provide a causation opinion. In Mr. Shannon's
case, all of those activities occurred before the Expedited Hearing. In Quaker Oats v.
Smith, 574 S.W.2d 45, 48 (Tenn. 1978), the Supreme Court held, "The nature and extent
of an employee's injuries, and the issue of medical causation, usually come to light in the
course of treatment of the employee's injuries." The nature and extent of Mr. Shannon's
injuries, and medical causation, have already come to light over the course of six months'
treatment with Dr. Haslam.

       Second, in McCord, the employee argued that notice of an alleged workplace
accident, in and of itself, was sufficient to trigger an employer's duty to provide medical
benefits. McCord, supra at *10. The Appeals Board disagreed, concluding:

           The statute and rules contemplate that an employer has an initial period of
           time following receipt of notice of a work accident, not to exceed fifteen
           days, within which it must investigate a claim and make a preliminary
           decision on compensability. Adopting Employee's approach would require
           an employer to provide medical benefits without regard to the particular
           circumstances of the case and regardless of any defenses to the claim,
           effectively making these rules superfluous. Moreover, an inflexible
           approach mandating that an employer provide medical benefits as a matter
           of course ignores the fact that every case is different and should be
           evaluated on its own merits.
6
    Hardin, as a trial court opinion, bears only persuasive value upon this Court.

                                                             5
!d. at *12.

       To be compensable under the workers' compensation statutes, an injury must arise
primarily out of and occur in the course and scope of the employment. Tenn. Code Ann.
§ 50-6-102(13) (2014). 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 in causing the need for medical treatment,
considering all causes. Tenn. Code Ann. § 50-6-102(13)(C) (2014). Except in the most
obvious, simple and routine cases, the claimant in a workers' compensation action must
establish by expert medical evidence the causal relationship between the claimed injury
and the employment activity. Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 676
(Tenn. 1991).

        In this case, the parties do not dispute that Mr. Shannon was "breaking a jam" on a
conveyor belt, resulting in pain to his right shoulder. Mr. Shannon reported the injury
occurred at work to providers at both Skyline and The Hand Care Center. Where the
parties disagree is whether the right-shoulder pain resulted primarily from the incident at
work, or if the work incident merely aggravated pain from injuries sustained in the car
accident. Mr. Shannon's injury is not "obvious, simple or routine;" thus the Court looks
to the expert medical evidence regarding causation.

        The records from both Skyline and The Hand Care Center contain inconsistencies.
Skyline classified the injury as non-work related, but also noted, "Pt states 'I was at work
slinging boxes when my shoulder started hurting.'" At The Hand Care Center, history
from Mr. Shannon's first visit states, "[P]atient states that he injured his right shoulder at
work 3 months ago. He states that he reached for a box on a conveyor belt and his right
arm was pulled backwards." However, notes from the next visit indicate, "[P]atient states
that the initial injury to his right shoulder was from an MVA three months ago. He states
that it has gotten worse since he reinjured it moving boxes on a conveyor belt on
7/31114." It is unnecessary for the court to reach a conclusion regarding causation solely
on these inconsistent medical records.

        However, considering the records in conjunction with Dr. Haslam's causation
opinion, the evidence presently weighs in UPS' favor. Specifically, in his note of
January 6, 2015, Dr. Haslam concluded, "It is my opinion that this is not a work-related
injury given his ... initial intake form and history." Mr. Shannon correctly argued that
Dr. Haslam's opinion, given his status as an unauthorized provider, is not entitled to a
presumption of correctness. See Tenn. Code Ann. § 50-6-102 (13)(E) (2015). However,
that does not mean his opinion is entitled to no weight at all. Indeed, the court places
significant weight upon Dr. Haslam's opinion at this stage of the case, given that, upon
the present record, he treated Mr. Shannon on six occasions over the course of six
months, and he provided the only medical opinion in the record. Significantly, Mr.

                                              6
Shannon introduced no medical evidence to contradict Dr. Haslam's opinion. The Court
concludes that, at this time, Mr. Shannon has not come forward with sufficient evidence
from which this Court may conclude that he is likely to prevail at a hearing on the merits
regarding his entitlement to medical benefits.

        As a final matter, the Tennessee Workers' Compensation Appeals Board reminded
the parties in McCord, supra at *11-12, that the Bureau's rules set forth "Claims
Handling Standards," which require that decisions on workers' compensation coverage
and compensability "shall be made within fifteen (15) days of verbal or written notice of
accident." Tenn. Comp. R. & Regs., 0800-2-14-.04(7) (2015). Stated another way, "The
statute and rules contemplate that an employer has an initial period of time following
receipt of notice of a work accident, not to exceed fifteen days, within which it must
investigate a claim and make a preliminary decision on compensability." McCord, supra
at * 12. In the case at bar, UPS argued- and this Court rejected- that it received notice
of the injury on October 28, 2014. Even assuming this were correct, UPS made a
decision on compensability well beyond the fifteen-day timeframe for its investigation.

       The "Claims Handling Standards" provide that, "In addition to other penalties
provided by applicable law and regulation, violations of any of the above rules shall be
subject to enforcement by Commissioner of the Tennessee Department of Labor pursuant
to TCA § 50-6-419(c)." Tenn. Comp R. & Regs., 0800-2-14-.08(1) (2015). Upon its
issuance, a copy of this Order will be provided to the Penalty Program. See Tenn. Comp.
R. & Regs., 0800-02-24-.03 (2015) ("In addition to referrals made by a workers'
compensation judge, any [Bureau] employee may refer any person or entity to the penalty
program for the assessment of a civil penalty whenever the referring employee believes
that there may have been a violation of the [Bureau's] rules or the Tennessee Workers'
Compensation Act."). The Court reasonably believes there might have been a violation
of the Bureau's rules.

IT IS, THEREFORE, ORDERED AS FOLLOWS:

   1. Mr. Shannon's requested medical benefit, a panel, is denied at this time.

   2. This matter is set for an Initial (Scheduling) Hearing on December 1, 2015, at
      10:45 a.m. Central time.

      ENTERED this the 19th day of October, 2015.



                                   hief Judge Kenneth M. Switzer:
                                  Court of Workers' Compensati


                                            7
Initial (Scheduling) Hearing:

        An Initial (Scheduling) Hearing has been set with Chief Judge Kenneth M.
Switzer, Court of Workers' Compensation Claims. You must call 615-532-9552 or
toll-free at 866-943-0025 to participate in the Initial Hearing.

       Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation.


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 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 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
      Indigency in accordance with this section shall result in dismissal of the
      appeal.



                                            8
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 calendar days of the filing of the Expedited
   Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
   the evidence within ten calendar days of the filing of the Expedited 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.

6. If the appellant elects to file a position statement in support of the interlocutory
   appeal, the appellant shall file such position statement with the Court Clerk within
   three business days of the expiration of the time to file a transcript or statement of
   the evidence, specifying the issues presented for review and including any
   argument in support thereof. A party opposing the appeal shall file a response, if
   any, with the Court Clerk within three business days of the filing ofthe appellant's
   position statement. All position statements pertaining to an appeal of an
   interlocutory order should include: (1) a statement summarizing the facts of the
   case from the evidence admitted during the expedited hearing; (2) a statement
   summarizing the disposition of the case as a result of the expedited hearing; (3) a
   statement of the issue(s) presented for review; and (4) an argument, citing
   appropriate statutes, case law, or other authority.




                                         9
                                              APPENDIX

Exhibits:

    1.   Medical records of Jared Shannon, jointly submitted, September 30,2015
    2.   Affidavit of Jared Shannon, June 26, 2015-Ex. 2
    3.   First Report of Injury, Nov. 5, 2015
    4.   Form C-23, Notice ofDenial, Nov. 25, 2014
    5.   Memo to Liberty Mutual from Eric Ingalls, November 13, 2014
    6.   Memo from Leonard Wall to Brian Welker, November 14, 2014
    7.   ISO ClaimSearch Match Report Summary
    8,   Letter from Mr. Shannon's Counsel's Paralegal to UPS, October 28, 2014.

Technical record:i

    1. Petition for Benefit Determination, February 5, 2015
    2. Employee's position statement, February 5, 2015, without attachments
    3. Employer's position statement, dated February 25, 2015 , filed June 9, 2015,
       without attachments
    4. Dispute Certification Notice, March 31, 20 15
    5. Request for Expedited Hearing (Amended to include an affidavit), June 26, 2015
    6. Joint Filing of Pre-Compensation Hearing Statement, Oct. 1, 2015
    7. Employee's Pre-Hearing Brief, October 5, 2015.



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




                                                     10
                           CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Expedited Hearing Order
Denying Medical Benefits was sent to the following recipients by the following methods
of service on this the 19th day of October, 2015.


Name                       Certified Via        Via     Service sent to:
                           Mail      Fax        Email
Julie Reasonover,                                 X     Julie@j stillman.com
Employee's Counsel
David Hooper,                                     X     dhooper@hooperzinn.com
Employer's Counsel
Penalty Program                                   X     WCCompliance.Program@tn.g
                                                        ov



                                        enny Sbr   , Clerk of Court
                                       Court of Workers' Compensation Claims
                                       WC.CourtCJerk@tn.gov




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