                 IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                                  AT MEMPHIS

James Yarbrough,                                                       Docket No.: 2015-08-0574
           Employee,
v.                                                                     State File No.: 48061-2015
Protective Services Co., Inc.,
             Employer,                                                 Judge: Jim Umsted
And

Builders Mutual Insurance Co.,
            Insurance Carrier.


          EXPEDITED HEARING ORDER FOR MEDICAL AND TEMPORARY
                          DISABILITY BENEFITS


        This case came before the undersigned Workers' Compensation Judge on March
30, 2016, upon the Request for Expedited Hearing filed by the employee, James
Yarbrough, pursuant to Tennessee Code Annotated section 50-6-239 (2015). The central
legal issue is whether the employer, Protective Services Co., Inc., must provide medical
and temporary disability benefits for Mr. Yarbrough's alleged work-related right-
shoulder injury. For the reasons set forth below, the Court finds Mr. Yarbrough is
entitled to continued medical treatment for his right shoulder as well as ongoing
temporary disability benefits beginning September 4, 2015. 1

                                                  History of Claim

        Mr. Yarbrough is a fifty-six-year-old resident of Shelby County, Tennessee.
Protective hired him as a flooring installer on or about January 15, 2005. Mr. Yarbrough
claimed he injured his right shoulder on April 16, 2015, after striking it on an overhead
cabinet while at work. According to Mr. Yarbrough, he reported his injury the following
day to Protective's Operations Manager, Parker Moore. However, Protective asserts it
did not receive notice of the alleged work injury until June 19, 2015. On that date,
Protective filed a First Report of Work Injury with its workers' compensation insurance
carrier, Builders Mutual. Thereafter, on June 22, 2015, Builders Mutual sent Mr.

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

                                                             1
Yarbrough a panel of physicians from which he selected Dr. Robert Riley Jones as his
authorized treating physician.

       Mr. Yarbrough presented to Dr. Jones for the first time on June 26, 2015. He
advised Dr. Jones he "raised up while working on a cabinet and hit his right shoulder at
the acromioclavicular joint and anterior shoulder." (Deposition of Dr. Jones, Page 8, line
6-8). Dr. Jones diagnosed Mr. Yarbrough with biceps tendinitis, ordered x-rays of his
right shoulder, and injected the shoulder. Dr. Jones also released Mr. Yarbrough to full-
duty work.

      Dr. Jones treated Mr. Yarbrough conservatively through September 4, 2015.
During his September 4, 2015 visit, Mr. Yarbrough indicated his symptoms were
worsening and he had been unable to work. Accordingly, Dr. Jones ordered an MRI and
took Mr. Yarbrough completely off work. Mr. Jones had the MRJ performed on
September 21, 20 15. It showed "narrowing of the subacromial space with impression on
the supraspinatus musculotendinous junction by degenerative changes of the
acromioclavicular joint" but no rotator cuff tear. Based on these findings, Dr. Jones
recommended surgery and kept Mr. Yarbrough off work on September 22, 2015.

       On September 25, 2015, Builders Mutual sent correspondence to. Dr. Jones, asking
him to address whether Mr. Yarbrough's injury arose primarily out of his employment.
Dr. Jones responded by marking, "Yes" and noting, "Direct trauma to Right AC joint-
Continued pain & popping." Despite Dr. Jones' opinion and an October 6, 2015
Utilization Review decision approving the surgery, Builders Mutual filed a Notice of
Controversy with the Bureau on October 8, 2015, denying the requested surgery based on
causation. The notice indicated the surgery was requested to repair a pre-existing
condition not causally related to an alleged injury.

      Mr. Yarbrough returned to see Dr. Jones on October 19, 2015. In his office note,
Dr. Jones reiterated his opinion that Mr. Yarbrough's right-shoulder injury arose
primarily out of his employment. Dr. Jones specifically stated,

      In reviewing this patient's record he probably did have some pre-existing
      problems. However, when he injured the shoulder he primarily injured the
      acromioclavicular joint and also caused an impingement causing pain in the
      biceps tendon. If he had not had this injury, then he would not have had
      any problems. Based on my best medical judgment this is greater than
      50.1% related to his on-the-job injury and will require surgery to resolve
      his problem.

Dr. Jones changed Mr. Yarbrough's diagnosis to impingement syndrome of the right
shoulder, contusion of right shoulder, and biceps tendinitis and indicated this diagnosis
was consistent with Mr. Yarbrough's mechanism of injury. He also continued Mr.

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Yarbrough's off-work status.

       Mr. Yarbrough saw Dr. Jones once more on November 9, 2015. Dr. Jones noted
Mr. Yarbrough continued to have problems with his right shoulder. Once again, Dr.
Jones reiterated his causation opinion. He kept Mr. Yarbrough off work and indicated he
would provide Mr. Yarbrough with some pain medication.

        During the Expedited Hearing held on March 30, 2016, Mr. Yarbrough testified he
hit his right shoulder on an overhead cabinet while working for Protective on April 16,
2015. He experienced immediate and intense pain that made him feel woozy but
managed to finish the workday. According to Mr. Yarbrough, he spoke to his operations
manager, Mr. Moore, the following day and asked for a lighter workload because he had
injured his shoulder. Mr. Moore gave Mr. Yarbrough a lighter workload but did not offer
Mr. Yarbrough any medical treatment for his shoulder or tell him to report the injury to
anyone else. Mr. Yarbrough further testified he spoke to Mr. Moore prior to seeking
medical treatment on his own on May 1, 2015. Mr. Yarbrough advised Mr. Moore he
needed to see a doctor for his shoulder and renewed his request for a lighter workload.
Once again, Mr. Moore assisted Mr. Yarbrough with his workload but did not offer
medical treatment or tell him to report his injury to anyone. Mr. Yarbrough stated it was
not until he brought in medical bills from his May 1, 20 15 treatment that he received a
panel of physicians, from which he selected Dr. Jones.

       Mr. Yarbrough noted he has not been able to work a full week since the injury.
He further mentioned Dr. Jones had not yet released him back to work since taking him
off work on September 4, 2015. Mr. Yarbrough indicated he continued to have problems
with his shoulder and asked the Court to order Protective to pay for the surgery Dr. Jones
recommended.

        Protective's Operations Manager, Parker Moore, and Office Manager, Leslie
Hays, both testified on its behalf at the hearing. Mr. Moore testified he first learned of
Mr. Yarbrough's injury in late May or early June. According to Mr. Moore, he asked Mr.
Yarbrough about the status of a job, and Mr. Yarbrough advised he had injured his
shoulder on another job several weeks earlier. Mr. Yarbrough indicated, however, he
would work through it and finish the project as soon as possible. Thereafter, when Mr.
Yarbrough brought in medical bills for payment, Mr. Moore directed him to Ms. Hays.
Mr. Moore testified he knew of no written policies or rules associated with reporting a
workers' compensation claim, but he typically referred injured employees to Ms. Hays.
Mr. Moore stated he did not tell Mr. Yarbrough to report his injury to Ms. Hays when he
first learned of it because Mr. Yarbrough stated he would work through it. Mr. Moore
did not recall Mr. Yarbrough asking for lighter work or taking off work for a shoulder
InJury.

      Ms. Hays testified she first learned of Mr. Yarbrough's injury when he came in to

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file a First Report of Injury on June 19, 2015. According to Ms. Hays, Mr. Yarbrough
advised he was moving a stove, and when he raised up, he hit his shoulder on a cabinet
above him. While Ms. Hays stated Protective had no written policies in place for
reporting workers' compensation claims, she asserted Mr. Moore was supposed to tell
injured employees to report any injury to her. She stated Mr. Moore should not make a
determination about the extent of the injury but should simply tell the injured employee
to report the injury. Ms. Hays testified Mr. Yarbrough never called her to advise he
could not work due to a shoulder issue, and she prepared a spreadsheet showing when
and where Mr. Yarbrough worked since the date of his alleged injury. Ms. Hays
explained the designation of "no work" on the spreadsheet meant either Mr. Yarbrough
called out or there was no work available for him that day.

        Both Mr. Yarbrough and Protective relied on the deposition testimony of Dr. Jones
at the hearing. Mr. Yarbrough pointed to Dr. Jones' opinion that the diagnostic testing
findings were consistent with the mechanism of his injury. (Ex. 17 at 10.) In addition,
Mr. Yarbrough directed the Court to Dr. Jones' objective findings of coarse crepitus (Ex.
17 at 16) and an indentation on the rotator cuff (Ex. 17 at 17 -18) to show anatomic
changes resulting from the work injury. Moreover, Mr. Yarbrough focused on Dr. Jones'
opinion that the work incident primarily caused Mr. Yarbrough's shoulder injury. (Ex.
17 at 21-22.) On the other hand, Protective noted that Dr. Jones admitted during his
deposition that Mr. Yarbrough's MRI results showed only degenerative changes. (Ex. 17
at 24.)

       Protective also had the deposition testimony of Dr. Claiborne Christian admitted
into evidence at the hearing. During his deposition, Dr. Christian opined the work
incident of April 16, 2015, did not cause any anatomic change in Mr. Yarbrough's right
shoulder (Ex. 18 at 17) and Mr. Yarbrough's shoulder condition did not primarily arise
out of the work injury. (Ex. 18 at 19.) Mr. Yarbrough argued, however, that Dr.
Christian performed a record review only and did not perform a physical examination or
review the films of his diagnostic testing. (Ex. 18 at 19.) Furthermore, Mr. Yarbrough
pointed out that Protective paid Dr. Christian for his opinion. (Ex. 18 at 20.) Finally, Mr.
Yarbrough noted that Dr. Christian agreed there could be microscopic changes within Mr.
Yarbrough's shoulder joint that could constitute anatomical changes resulting from
trauma. (Ex. 18 at 25-26.)

                       Findings of Fact and Conclusions of Law

                                General Legal Principles

       At an Expedited Hearing, Mr. Yarbrough need not prove every element of his
claim by a preponderance of the evidence in order to recover temporary disability and/or
medical benefits. 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,

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 20 15). Instead, he must come forward with sufficient evidence from which this Court
 might determine he is likely to prevail at a hearing on the merits. !d.; Tenn. Code Ann. §
 50-6-239( d)(l) (20 15). This 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. Car/ex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp.
 App. Bd. LEXIS 39, at *6 (Tenn. Workers' Comp. App. Bd. Sept. 29, 2015).

                                      Compensability

         To be compensable, Mr. Yarbrough must show his alleged injury arose primarily
 out of and in the course and scope of his employment. Tenn. Code Ann. § 50-6-102(14)
 (20 15). Further, he must show, "to a reasonable degree of medical certainty that [his
 alleged work injury] contributed more than fifty percent (50%) in causing the . . .
 disablement or need for medical treatment, considering all causes." Tenn. Code Ann. §
 50-6-102(14)(C) (2015). "The opinion of the treating physician, selected by the
 employee from the employer's designated panel of physicians pursuant to § 50-6-
 204(a)(3), shall be presumed correct on the issue of causation but this presumption shall
 be rebuttable by a preponderance of the evidence." Tenn. Code Ann. § 50-6-102(14)(E)
 (2015).

        With these legal principles in mind, the Court finds Mr. Yarbrough injured his
 right shoulder on April 16, 2015, at work after striking it on an overhead cabinet. Mr.
 Yarbrough gave notice of his injury the following day to Protective's Operations
 Manager, Parker Moore. Mr. Yarbrough presented as a reasonable, honest and credible
 witness, and the Court accepts as correct his account of the April 16, 20 15 incident. Dr.
_Jones is an authorized treating physician, selected by Mr. Yarbrough from a panel of
 physicians. As such, his opinion that the work injury contributed more than fifty percent
 in causing the need for medical treatment carries a statutory presumption of correctness.
 The Court also examined the opposing opinion of Dr. Christian, a non-treating physician
 who performed a record review only, and finds Dr. Jones' causation opinion has not been
 rebutted by a preponderance of the evidence. Accordingly, the Court finds that Mr.
 Yarbrough's right-shoulder injury is compensable.

                                     Medical Benefits

       Pursuant to Tennessee Code Annotated section 50-6-204(a)(l)(A) (2015), "the
employer or the employer's agent shall furnish, free of charge to the employee, such
medical and surgical treatment ... made reasonably necessary by accident as defined in
this chapter." Any treatment recommended by a physician or chiropractor selected
pursuant to this subdivision (a)(3) or by referral, if applicable, shall be presumed to be
medically necessary for treatment of the injured employee. Tenn. Code Ann. § 50-6-

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204(a)(l)(H) (2015). This presumption has not been rebutted. Accordingly, the Court
finds Mr. Yarbrough is entitled to reasonably necessary medical treatment as
recommended by his authorized treating physician, Dr. Jones, and as required by
Tennessee Code Annotated section 50-6-204 (2015).

                              Temporary Disability Benefits

        An injured worker is eligible for temporary disability benefits if: (1) the worker
became disabled from working due to a compensable injury; (2) there is a causal
connection between the injury and the inability to work; and (3) the worker established
the duration of the period of disability. Simpson v. Satterfield, 564 S.W.2d 953, 955
(Tenn. 1978). Temporary total disability benefits are terminated either by the ability to
return to work or attainment of maximum recovery. !d. The Court finds Mr. Yarbrough
has been unable to work since September 4, 2015, when Dr. Jones took him off work due
to his compensable right-shoulder injury. Accordingly, Mr. Yarbrough is entitled to
temporary total disability benefits beginning on that date and continuing until he attains
maximum recovery or is able to return to work. The parties stipulated Mr. Yarbrough's
weekly compensation rate for temporary disability benefits is $932.80, the maximum
compensation rate as of April 16, 20 15.

      IT IS, THEREFORE, ORDERED as follows:

   1. Protective Services Company, Inc. or its workers' compensation carrier shall
      provide Mr. Yarbrough reasonably necessary medical treatment as recommended
      by his authorized treating physician, Dr. Jones, and as required by Tennessee Code
      Annotated section 50-6-204 (2015).

   2. Protective Services Company, Inc. or its workers' compensation carrier shall
      provide Mr. Yarbrough temporary total disability benefits in the weekly amount of
      $932.80, beginning September 4, 2015, and continuing until he attains maximum
      recovery or is able to return to work. Past temporary total disability, benefits from
      September 4, 2015, to April 13, 2016 (222 days or 31.7 weeks), in the total
      amount of$29,569.76, shall be paid in a lump sum.

   3. This matter is set for a Status Hearing on May 23, 2016, at 11:30 a.m. Central
      time.

   4. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
      with this Order must occur no later than seven business days from the date of entry
      of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3)
      (2015). The Insurer or Self-Insured Employer must submit confirmation of
      compliance     with    this    Order      to   the    Bureau     by    email     to
      WCCompliance.Program@tn.gov no later than the seventh business day after

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       entry of this Order. Failure to submit the necessary confirmation within the period
       of compliance may result in a penalty assessment for non-compliance.

   5. For questions regarding compliance, please contact the Workers' Compensation
      Compliance Unit via email WCCompliance.Program@tn.gov or by calling (615)
      253-1471.

       ENTERED this the 13th day of A
                                    _>_----...


                              ~                  ~~.
                                  Judge Jim Umsted
                                  Court of Workers' Compensation Claims




Status Conference:

       A Status Conference has been set with Judge Jim Umsted, Court of Workers'
Compensation Claims. You must call 615-532-9550 or toll-free at 866-943-0014 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.


Rlght 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

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   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.

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
   five 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 five business days of the filing of the 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.




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                                    APPENDIX

Exhibits:
   1. Affidavit of James Yarbrough (marked for identification only);
   2. Declaration of Leslie Hays (marked for identification only);
   3. Declaration of Parker Moore (marked for identification only);
   4. Declaration of Sandra J. Noble (marked for identification only);
   5. Declaration ofPhillip Noble (marked for identification only);
   6. Amended Declaration of Phillip Noble (marked for identification only);
   7. Form C-20 Employer's First Report of Work Injury or Illness;
   8. Form C-42 Agreement Between Employer/Employee Choice of Physician;
   9. Form C-27 Notice of Controversy;
   10. Form C-41 Wage Statement;
   11. Utilization Review letter, dated October 6, 2015;
   12. Correspondence forwarding panel of physicians to Mr. Yarbrough, dated June 22,
       2015;
   13. Deposition of Phillip Noble (marked for identification only);
   14. Deposition of Leslie Hays (marked for identification only);
   15. Deposition of Parker Moore (marked for identification only);
   16. Deposition of Sandra Noble (marked for identification only);
   17. Deposition of Robert Riley Jones, M.D.;
   18. Deposition of Claiborne A. Christian, M.D.;
   19. Methodist Germantown bill dated June 10, 2015;
  20.Insurance form, dated May 14, 2015;
  21. Methodist Health care bill, dated June 22, 20 15;
  22.Methodist Healthcare appointment reminder, dated June 9, 2015;
  23. Spreadsheet of Mr. Yarbrough's jobs after April 16, 20 15; and
  24. Declaration of Andrew C. Clarke in Support of Attorney Fees and Costs (marked
       for identification only).

Technical record:
   1. Petition for Benefit Determination;
   2. Dispute Certification Notice, filed on December 2, 2015;
   3. Request for Expedited Hearing;
   4. Protective's Motion for Evidentiary Hearing;
   5. Mr. Yarbrough's Response to Motion for Evidentiary Hearing;
   6. Protective's position statements ofNovember 10, 2015, and December 18, 2015;
   7. Mr. Yarbrough's Motion to Strike Affidavits;
   8. Order for Expedited Hearing, filed December 16, 2015;
   9. Order Affirming and Remanding Order for Expedited Hearing, filed January 25,
      2016;and
   10.Mr. Yarbrough's Pre-Hearing Brief.


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                            CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 13th day
of April, 2016.


Name                        Certified Via       Via     Service sent to:
                            Mail      Fax       Email
Andrew C. Clarke,                                 X     aclarke@accfrrm.com
Employee's Attorney
Catherine C. Dugan,                               X     cate@Qetersonwhi te.com
Employer's Attorney




                                        Penny Shrum, Clerk of Court
                                        Court of Workers' Compensation Claims
                                        WC.CourtClerk@tn.gov




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