                                                                                 FILED
                                                                               Mar 26, 2019
                                                                               11:11 AM(CT)
                                                                             TENNESSEE COURT OF
                                                                            WORKERS' COMPENSATION
                                                                                   CLAIMS




           TENNESSEE BUREAU OF WORKERS’ COMPENSATION
          IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                           AT NASHVILLE

CHARLES CATO,                               )   Docket No. 2017-06-1179
         Employee,                          )
v.                                          )
HUXTABLE ELECTRIC, INC.                     )   State File No. 45849-2017
         Employer,                          )
and                                         )
AMERICAN FIRE & CASUALTY                    )   Judge Joshua Davis Baker
CO.,                                        )
         Carrier.                           )


                         EXPEDITED HEARING ORDER



       The Court convened an expedited hearing on March 20, 2019, to determine
whether Huxtable must provide Mr. Cato medical benefits. Huxtable argued it should not
be required to provide medical benefits because Mr. Cato cannot prove that his injury
arose primarily out of and the course and scope of employment at a final hearing. The
Court disagrees and orders Huxtable to provide Mr. Cato medical benefits.

                                    Claim History

       Mr. Cato alleged a left-shoulder injury on or about September 26, 2016, while
carrying a piece of plywood in the course of his work for Huxtable. He eventually
treated with Dr. James McGehee, who diagnosed a SLAP tear and labral cyst and
performed corrective surgery. Mr. Cato paid for all the treatment with his private
medical insurance.

      A dispute over causation of Mr. Cato’s injury arose from different descriptions of
how it occurred. Dr. McGehee testified Mr. Cato told him “his left shoulder popped”
while moving some boxes and that he had a history of instability and intermittent pain
from a high school injury and a 2011 lumber-carrying incident. On an intake form, Mr.
Cato made no mention of a 2016 injury, indicating his left-shoulder problems began in
1991 and 2011, and that his present shoulder problem was not work-related and occurred
at “home.”

       Mr. Cato admitted he lied to medical providers about the cause of his accident per
instruction from his supervisor, project manager Robert Frost. According to Mr. Cato,
Mr. Frost told him to seek medical treatment under his private insurance rather than
workers’ compensation.1

        Mr. Frost denied he refused to provide medical treatment for Mr. Cato. He
testified he offered to “take him to the doctor,” meaning he could receive treatment
through workers’ compensation, but that if he wouldn’t accept treatment under workers’
compensation, then he needed to go to his own doctor. He also testified that Mr. Cato
reported the plywood incident several days after it occurred.

        Mr. Frost’s son, Justin, who also worked for Huxtable, affirmed that an incident
involving plywood as described by Mr. Cato occurred on the jobsite.2 However, he also
testified that Mr. Cato complained of soreness in his left arm from a prior sports injury
before the workplace accident occurred and experienced some pain while “pulling wire.”

       Concerning the causal relationship between the plywood incident and Mr. Cato’s
SLAP shoulder injury, Huxtable maintained that Mr. Cato injured his shoulder before the
workplace accident and cited Dr. McGehee’s deposition testimony to support its position.
To that end, Dr. McGehee testified that Mr. Cato never informed him of a work-related
accident as a possible cause of his injury. Based on the lack of information concerning a
work-related accident, Dr. McGehee testified he could not say that Mr. Cato’s SLAP tear
and associated labral cyst arose primarily from his work:

        Q: And as we sit here today, based upon the history in your chart, your
        record that we’ve gone over this morning, that you cannot tell the Court,
        considering all possible causes of the labral tear and his cyst, that they arose
        primarily out of his job?

        A: Based on my medical records, no.

        On cross-examination, Mr. Cato’s counsel informed Dr. McGehee that Mr. Cato
testified under oath that “he was carrying a piece of plywood across the worksite when

1
  Defense counsel asked Mr. Cato if he declined medical treatment because of the required drug test. Mr.
Cato admitted he smoked marijuana but denied that fear of a drug test prompted him to decline medical
treatment. He maintained that Mr. Frost instructed him to seek treatment under his private health
insurance rather than workers’ compensation.
2
 Another coworker, Jasen Hightower, provided an affidavit stating he witnessed the event with the
plywood and heard Mr. Cato say he hurt his shoulder immediately after.

                                                   2
the wind caught the plywood and caused him to twist . . . or pull his shoulder.” Counsel
then asked whether this occurrence would be “consistent” with the injury he suffered.
Dr. McGehee replied, “I would say that a labral tear certainly could be caused by a
sudden twist of the shoulder, yes.” He stated further:

       I’m trying to answer delicately. I would say that if that is the sequence of
       events that occurred—which I have no first-hand knowledge of—but if
       that’s the sequence of events that occurred, then, yes, I think that to a
       greater than 50 percent threshold, that mechanism could have easily caused
       his symptoms.

       Later in the deposition, the following exchange occurred:

       Q: I’m going to ask one more thing. Well, Doctor, as you know, we sent a
       letter to your office that specifically stated – just like we’ve talked about on
       this cross-examination, that Mr. Cato was advised not to turn this into
       workers’ compensation. But Mr. Cato testified under oath, he’s had
       witnesses who saw the accident. And based upon that information, if the
       Judge found that information credible, you would agree that the mechanism
       [of] injury that he has reported under oath is consistent and would be
       consistent with the injury that you treated for.

       A: Yes.

       Q: And based on that information, you would agree based on the history
       he’s testified to under oath that the injury is primarily a result of his work
       accident while working for Huxtable.

       A: Yes. I think that if that is what happened, then that would be the causal
       event for treatment.

       Huxtable denied the claim, asserting that Mr. Cato’s first account to medical
providers was the accurate version of his injury’s origination. It admitted in its brief,
however, that all medical care provided for his shoulder was reasonable and necessary
should the court determine Mr. Cato’s injury arose primarily out of and in the course and
scope of employment. It also agreed that Dr. McGehee should serve as the authorized
treating physician.

                        Findings of Fact and Conclusions of Law

      While Mr. Cato must prove all essential elements of his claim by a preponderance
of the evidence at a final hearing, he need only present sufficient evidence at this
expedited hearing that he is likely to prevail at a final hearing. See Tenn. Code Ann. § 50-

                                              3
6-239(d)(1) (2018); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *9 (Mar. 27, 2015). Mr. Cato carried this burden.

        The parties’ dispute concerns the causal relationship between Mr. Cato’s work and
his injury. The dispute has two distinct parts: the factual circumstances of the claim and
medical causation.

       The factual portion of the dispute turns on whether the mechanism of injury fits
within the legal definition of an injury. Workers’ Compensation Law defines an “injury”
as an “injury by accident . . . arising primarily out of and in the course and scope of
employment.” Tenn. Code Ann. § 50-6-102(14). Although the Court questioned Mr.
Cato’s credibility, as he admittedly lied to medical providers, all witnesses testified that
an incident occurred. Mr. Cato said the incident occurred when the wind caught a piece
of plywood at the jobsite; Justin Frost testified he witnessed the accident; and Jasen
Hightower provided an affidavit stating he witnessed it as well. Finally, Mr. Frost
admitted Mr. Cato reported the incident to him. Accordingly, the Court finds that an
incident occurred on the jobsite involving a piece of plywood.

       What happened after Mr. Cato told Mr. Frost about the incident is unclear. Mr.
Cato said Mr. Frost told him to seek medical care on his own. Mr. Frost, on the other
hand, said he initially offered to take Mr. Cato to the doctor but admitted telling Mr. Cato
to see a doctor on his own if he would not let Mr. Frost take him. In any event, the
reason Mr. Cato went to a doctor on his own is not important as Huxtable conceded to the
reasonable medical necessity of his care if the Court found he would likely prevail at a
hearing on the merits.

       This brings the Court to the final piece of the puzzle: medical causation. Huxtable
argued that Dr. McGehee’s causation opinion was insufficient because it failed to
consider “all causes” of Mr. Cato’s injury. See id. at § 50-6-102(14)(C). The Court
disagrees.

       While Dr. McGehee testified that Mr. Cato’s injury did not arise primarily out of
his work because medical records contained a different account of his injury, he changed
his opinion when presented with evidence of a workplace incident. In this Court’s view,
the parties presented Dr. McGehee with two possible scenarios: Mr. Cato’s injury was
preexisting, or the injury occurred when wind caught plywood he was carrying at the
jobsite. Upon considering both scenarios, the Court finds Dr. McGehee determined the
injury arose primarily out of the employment in terms of medical causation when he
agreed “if that is what happened, then that would be the causal event for treatment.”
Because the evidence showed that the wind catching the plywood is what happened, it
must follow that this is the causal event for treatment. The Court holds Mr. Cato would
likely prevail at a hearing on the merits in proving his left-shoulder injury arose primarily
out of and in the course of his employment for Huxtable.

                                             4
IT IS THEREFORE ORDERED:

       1. In accordance with its agreement, Huxtable shall provide Mr. Cato
          reasonable and necessary medical treatment for his left-shoulder injury with
          Dr. McGehee serving as the authorized treating physician.

       2. Huxtable shall reimburse Mr. Cato and/or his private medical insurer for all
          reasonable and necessary medical care previously provided for this injury.

       3. The parties shall participate in a telephonic status conference with the Court
          on Monday, May 13, 2019, at 11:00 a.m. (CDT).


ENTERED MARCH 26, 2019.




                               ___________________________________
                               Joshua Davis Baker, Judge
                               Court of Workers’ Compensation Claims




                                         5
                                      APPENDIX


Exhibits:

   1.   Medical records
   2.   Mr. Cato’s affidavit
   3.   Affidavit of Jasen Hightower
   4.   Deposition of Dr. James B. McGehee, including 5 attached exhibits

Technical Record:

   1.   Petition for Benefit Determination
   2.   Dispute Certification Notice
   3.   Request for Expedited Hearing
   4.   Employer’s Notice of Opposition to Requested Relief
   5.   Employee’s Prehearing Brief
   6.   Employee’s Witness and Exhibit List
   7.   Employer’s Prehearing Brief




                                            6
                          CERTIFICATE OF SERVICE

       I certify that a true and correct copy of this Order was sent to the following
recipients by the following methods of service on March 26, 2019.

Name                   Certified     Via    Via    Service sent to:
                        Mail         Fax   Email
Adam Selvidge,                               X     adam@reasonoverlaw.com
Julie Reasonover;                                  julie@reasonoverlaw.com
Employee’s
Attorneys
Owen Lipscomb,                                 X   Owen.lipscomb@libertymutual.com
Employer’s Attorney




                                   ____________________________________________
                                   Penny Shrum, Court Clerk
                                   Court of Workers’ Compensation Claims
                                   Wc.courtclerk@tn.gov




                                           7
                           Expedited Hearing Order Right to Appeal:

     If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:

   1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
      form with the Clerk of the Court of Workers’ Compensation Claims within seven
      business days of the date the expedited hearing order was filed. When filing the Notice
      of Appeal, you must serve a copy upon all parties.

   2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
      calendar days after filing of the Notice of Appeal. Payments can be made in-person at
      any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
      alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
      website or any Bureau office) seeking a waiver of the fee. You must file the fully-
      completed Affidavit of Indigency within ten calendar days of filing the Notice of
      Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
      result in dismissal of the appeal.

   3. You bear the responsibility of ensuring a complete record on appeal. You may request
      from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
      the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
      it with the court clerk within ten business days of the filing the Notice of
      Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
      parties within ten business days of the filing of the Notice of Appeal. The statement of
      the evidence must convey a complete and accurate account of the hearing. The Workers’
      Compensation Judge must approve the statement before the record is submitted to the
      Appeals Board. If the Appeals Board is called upon to review testimony or other proof
      concerning factual matters, the absence of a transcript or statement of the evidence can be
      a significant obstacle to meaningful appellate review.

   4. If you wish to file a position statement, you must file it with the court clerk within ten
      business days after the deadline to file a transcript or statement of the evidence. The
      party opposing the appeal may file a response with the court clerk within ten business
      days after you file your position statement. All position statements 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.




For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
 .
ll                                                                                                                 .I




                                    Tennessee Bureau of Workers' Compensation
                                           220 French Landing Drive, 1-B
                                             Nashville, TN 37243-1002
                                                   800-332-2667


                                               AFFIDAVIT OF INDIGENCY


     I,                                                , having been duly sworn according to law, make oath that
     because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
     waived. The following facts support my poverty.

     1. Full Name:_ _ _ _ _ _ _ _ _ _ __                      2. Address: - - - - - - - - - - - - -

     3. Telephone Number: - - - - - - - - -                   4. Date of Birth: - - - - - - - - - - -

     5. Names and Ages of All Dependents:

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

             - - - - - - - - - - - - - - -- -                 Relationship: - - - - - - - - - - - --

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

     6. I am employed by: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , -

             My employer's address is: - - - - - - - - - - - - - - - - - - - - - - - - -

             My employer's phone number is: - - - - - - - - - - - - - - - - - - - - - - -

     7. My present monthly household income, after federal income and social security taxes are deducted, is:

     $ _ _ _ _ _ _ ___

     8. I receive or expect to receive money from the following sources:

             AFDC            $            per month           beginning
             SSI             $            per month           beginning
             Retirement      $            per month           beginning
             Disability      $            per month           beginning
             Unemployment $               per month           beginning
             Worker's Camp.$              per month           beginning
             Other           $            per month           beginning



     LB-1108 (REV 11/15)                                                                               RDA 11082
9. My expenses are: ' ;                                                     !•
                                                                             '

        Rent/House Payment $              per month     Medical/Dental $            per month

        Groceries         $         per month           Telephone       $           per month
        Electricity       $         per month           School Supplies $           per month
        Water             $         per month           Clothing        $           per month
        Gas               $         per month           Child Care      $           per month
        Transportation $            per month           Child Support   $           per month
        Car               $          per month
        Other             $         per month (describe:


10. Assets:

        Automobile              $ _ _ __ _
                                                        (FMV) -    - - - - -- - - -
        Checking/Savings Acct. $ _ _ _ __
        House                   $ _ _ _ __
                                                        (FMV) - - -- - - -- - -
              )
        Other                   $ _ _ _ __              Describe:_ _ _ __ _ _ _ _ __


11. My debts are:

        Amount Owed                     To Whom




I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.




APPELLANT



Sworn and subscribed before me, a notary public, this

_ _ _ dayof _____________ ,20____




NOTARY PUBLIC

My Commission Expires:_ _ _ _ _ __ _




LB-1108 (REV 11/15)                                                                         RDA 11082
