                                                                                   FILED
                                                                              December 18, 201 7

                                                                                  TNCO URT OF
                                                                           li\~ORKI.RS ' O O:uPlNSATIO N
                                                                                     C LAIMS



              TENNESSEE BUREAU OF WORKERS' COMPENSATION
          IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                         AT CHATTANOOGA

Kenneth R. Booth,                            )   Docket No.: 2017-01-0361
            Employee,                        )
v.                                           )
Allegis Group,                               )   State File No.: 24640-2017
            Employer,                        )
And                                          )
Agri General Insurance Company,              )   Judge Audrey A. Headrick
            Carrier.                         )


                          EXPEDITED HEARING ORDER


        This matter came before the undersigned workers' compensation judge on
November 28, 2017, on Kenneth Booth's Request for Expedited Hearing. The central
legal issue is whether Mr. Booth is likely to establish at trial that he suffered an injury
arising primarily out of his employment. For the reasons set forth below, the Court holds
he is entitled to the requested medical benefits.

                                    History of Claim

        Although the parties dispute the compensability of Mr. Booth's right-shoulder
condition, the facts are essentially undisputed. Mr. Booth, age 60, worked for Allegis
Group, a temporary agency, which placed him at Volkswagen as a production worker.
His job duties required unloading carts containing parts that weighed between twenty and
thirty-five pounds. Mr. Booth's workstation floor was steel-plated. While unloading a
cart on April 4, 2017, the locking mechanism failed, causing him to fall and land on his
right shoulder.

      Dr. Allen Von Gremp, whom Mr. Booth selected from a panel, diagnosed him
with a right shoulder sprain and referred him for physical therapy. (Ex. 4.) Dr. Von
Gremp noted, "mech of injury shows causation and work relation >51%." (Ex. 6.) After
physical therapy was unsuccessful, Dr. Von Gremp referred Mr. Booth to Dr. Rickey
Hutcheson, an orthopedic surgeon.


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        Allegis Group opted not to provide Mr. Booth with a panel of orthopedic
surgeons. Instead, it authorized Mr. Booth to see Dr. Hutcheson. Dr. Hutcheson
diagnosed a right shoulder strain and rotator cuff tear. He also ordered an arthrogram
MRI. At that time, Dr. Hutcheson provided an opinion "with greater than 51% certainty
that this is work-related." (Ex. 1.) _

        At Mr. Booth's next visit, Dr. Hutcheson reviewed Mr. Booth's May 20
arthrogram MRI that showed a massive rotator cuff tear. After reviewing the MRI
results, Dr. Hutcheson changed his causation opinion. He explained that the retraction,
atrophy, and scarring indicated that the rotator cuff tears had "not occurred acutely over
the period of a month." !d. Dr. Hutcheson commented that the fall "just caused him to
have pain." !d. He concluded that he could not say "with greater than 51% certainty that
this is work related because of the nature of the atrophy and chronic appearance of the
tears." !d. Dr. Hutcheson further determined that the rotator cuff was not repairable and
recommended that Mr. Booth have a shoulder replacement in the future under his private
health insurance. On the same day, Allegis Group denied Mr. Booth's claim.

      Mr. Booth sought a second opinion from Dr. Todd Bell, an orthopedic surgeon.
Dr. Bell recommended arthroscopic surgery to repair his rotator cuff. He advised that
Mr. Booth's "symptoms are greater than 50% related to the work injury on 4/4/17, both
temporally and mechanistically." (Ex. 2.)

        During his deposition, Dr. Hutchison reiterated his prior opinion that Mr. Booth's
rotator cuff tears and need for surgery were due to degenerative changes. Dr. Hutchison
stated, "[Mr. Booth] may have had some fibers that got tom [at the time of his fall] ...
[b ]ut the greater than 51 percent of the rotator cuff for sure was already tom because of
the muscle atrophy." (Ex. 1.) He based his opinion on his interpretation of Mr. Booth's
MRI, which he felt showed muscle atrophy, significant retraction of the infraspinatus and
supraspinatus muscles, and degenerative changes within the AC joint.

        Dr. Hutchison found that the only intact tendon at the time of Mr. Booth's fall was
the teres minor tendon. He explained that a person's shoulder can still function with only
one tendon attached, but the person would experience weakness. Dr. Hutchison admitted
he did not "know what [Mr. Booth's] strength level was prior to [the fall]." !d.
However, he agreed that when Mr. Booth fell:

      His shoulder ceased to function. It became weaker after the accident,
      which I felt was more due to the trauma and the strain component of it, but
      in no way was it related to the rotator cuff tendons that were tom because of
      the fact that they had been tom prior to the accident.

!d.


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       During Dr. Bell's deposition, he explained how his interpretation of Mr. Booth's
MRI differed from Dr. Hutchison's. First, Dr. Bell did not see significant atrophy of the
muscles indicative of a long-term process. Regarding the severe retraction, Dr. Bell
stated that, "[u]sually, severe retraction is associated with a longstanding tear and/or a
very long tear. So, very large tears even that are relatively recent can retract severely."
(Ex. 2.) Dr. Bell further explained that, "it's not really absolutely clear that impingement
causes the tear. Tear [sic] can also cause the impingement." !d. As to the fraying of the
subscapularis tendon, Dr. Bell stated that fraying is not always evidence of a degenerative
process.
       Dr. Bell also testified about causation. He stated he based his evaluation on "[t]he
timeline, the mechanism, and the findings seen on his exam and on his MRI and also his
lack of shoulder symptoms prior to the fall." ld. Dr. Bell felt the cause of Mr. Booth's
pain and weakness was the rotator cuff tear, which he felt "was most likely related to his
work-related fall a month prior to his [visit with Dr. Bell]." !d.
        Mr. Booth credibly testified regarding his level of functioning before and after his
fall. He testified in detail regarding the vigorous and physically demanding pre-
employment testing, or "boot camp physical," that he underwent and passed. After
Allegis Group hired him to work at Volkswagen, Mr. Booth's production job required
him to unload parts from carts that weighed twenty to thirty-five pounds. In his personal
time, Mr. Booth regularly golfed, camped, made furniture in his woodshop, chopped
firewood, loaded and unloaded firewood, and performed all of his own yardwork.
Further, Mr. Booth emphatically stated he did not experience any pain or weakness in his
right shoulder prior to his fall on April4.

       After Mr. Booth's fall, he indicated he experienced pain and weakness in his right
shoulder that restricted or prevented him from performing many of his prior activities. 1
For the activities that he still tried to perform, Mr. Booth indicated he performed them
with difficulty. His shoulder pain also causes him to have problems sleeping at night.

       Mr. Booth argued that his pre-existing physical condition refutes Dr. Hutchison's
opinion that his rotator cuff tears were present before his work-related fall on April4. He
also argued that Dr. Bell's opinion supports his position that he sustained a compensable
injury. Therefore, he requested that the Court designate Dr. Bell as his treating physician.

        Allegis Group argued that Dr. Hutchison's opinion regarding causation is
presumed correct under Tennessee Code Annotated section 50-6-102(12)(A)(ii) (2017).
It further argued that Dr. Bell's opinion failed to rebut the presumption of correctness



1
  Mrs. Booth testified, corroborating Mr. Booth's level of function before and after his fall. She also
stated she was not aware of Mr. Booth having any right-shoulder problems before the fall.


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given to Dr. Hutchison. Therefore, Allegis Group requested that the Court deny Mr.
Booth's request.

                       Findings of Fact and Conclusions of Law

                                General Legal Principles

       Mr. Booth bears the burden of proof on all essential elements of his workers'
compensation claim. Scott v. Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd.
LEXIS 24, at *6 (Aug. 18, 2015). However, due to the interlocutory nature of an
expedited hearing, the Court is not required at this stage to determine if Mr. Booth has
proven compensability of his claim by a preponderance of the evidence in order to initiate
benefits. Instead, the Court must consider the evidence before it and determine if Mr.
Booth is likely to satisfy his burden of proof at a compensation hearing. McCord v.
Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Mar. 27, 2015).

       The Workers' Compensation Law requires the employer to "furnish, free of charge
to the employee, such medical and surgical treatment ... made reasonably necessary by
accident[.]" When the treating physician selected from a panel refers an employee to a
specialist, "[t]he employer shall be deemed to have accepted the referral, unless the
employer, within three (3) business days, provides the employee a panel of three (3) or
more independent reputable [specialists]." Tenn. Code Ann. § 50-6-204(a). Since
A11egis Group opted not to offer Mr. Booth a panel upon Dr. Von Gremp's referral to Dr.
Hutchison, Allegis Group is "deemed to have accepted the referral." !d. This resulted in
Dr. Hutchison becoming "the treating physician." Engler v. Able Moving Co., No.
W2016-02125-SC-R3-WC, 2017 Tenn. LEXIS 713, at *11-12 (Tenn. Workers' Comp.
Panel Oct. 30, 20 17). As a result, the presumption of correctness on the issue of
causation attaches to Dr. Hutchison. !d. at *13-14; Tenn. Code Ann.§ 50-6-102(14)(£).

       Mr. Booth requested that the Court order Allegis Group to provide him with
additional medical treatment with his own physician, Dr. Bell. Mr. Booth must show, to
a reasonable degree of medical certainty, that the incident "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). Likewise, an aggravation of a pre-existing
condition is compensable only if "it can be shown to a reasonable degree of medical
certainty that the aggravation arose primarily out of and in the course and scope of
employment." !d.




                                            4
                                             Medical Benefits

       Here, the dispute revolves around the MRI interpretations of Dr. Hutchison and
Dr. Bell. Both experts were qualified and provided a great deal of testimony about their
interpretations as well as the supporting reasons behind their opinions. The Court did not
summarize that testimony in detail but considered it carefully.

       After considering the medical and lay evidence presented, the Court gives greater
weight to Dr. Bell's opini non the issues of causation and th less-invasive, arthroscopic
shoulder surgery he recommended. 2 On the issue of causation, the Court accepts Dr.
Bell's opinion because it is consistent with the credible testimony of Mr. Booth. Thus,
the Court holds that Dr. Bell's opinion rebuts Dr. Hutchison's opinion by a
preponderance of the evidence. Dr. Hutchison, who believes the rotator cuff tears existed
prior to Mr. Booth's fall, admitted he did not "know what [Mr. Booth's] strength level
was prior to [the fall]." He testified that a person with rotator cuff tears such as Mr.
Booth could function but would experience weakness.

        The Court observed Mr. Booth testify and noted he was self-assured, confident,
and forthcoming. He detailed his vigorous level of physical activity and lack of right-
shoulder pain or weakness prior to the fall. Mr. Booth also described his limited level of
activity as well as right-shoulder pain and weakness that developed after his fall. The
Court finds him credible. See Kelly v. Kelly, 445 S.W.3d 685, 692-95 (Tenn. 2014).
Likewise, the Court finds consistent Mr. Booth's testimony and the medical history he
provided to Dr. Hutchison and Dr. Bell documenting that he had no right-shoulder
problems before the fall. When considering all of the evidence, the Court finds that Mr.
Booth sustained his right-shoulder rotator cuff tears when he fell onto a steel-plated floor
while performing his job.

        Accordingly, the Court holds the evidence shows Mr. Booth is likely to prevail at
a hearing on the merits in proving he suffered a right-shoulder injury arising primarily out
of his employment.

IT IS, THEREFORE, ORDERED as follows:

    1. Allegis Group or its carrier shall authorize Mr. Booth to continue treating with Dr.
       Bell and, if he still deems it appropriate, authorize a right-shoulder arthroscopic
       surgery for treatment of his April4, 2017 injury. Mr. Booth or the providers shall
       furnish Allegis Group or its carrier bills for the charges incurred for compensable
       care, and Allegis Group or its carrier shall timely pay these charges.


2
  Regarding causation, Dr. Bell's office note stated Mr. Booth's "symptoms are greater than 50% related
to the work injury on 4/4/17, both temporally and mechanistically." (Ex. 2.)


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2. This matter is set for a Status Hearing on Tuesday, January 30, 2018, at 2:30p.m.,
   Eastern Time. You must call 423-634-0164 or toll-free at 855-383-0001 to
   participate. Failure to call may result in a determination of the issues without your
   participation.

3. 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) (2017).   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 entry of this Order. Failure to submit the
   necessary confirmation within the period of compliance may result in a
   penalty assessment for non-compliance.

4. For questions regarding compliance, please contact the Workers' Compensation
   Compliance Unit via email WCCompliance.Program@tn.gov.

   ENTERED this the 18th day of December, 2017.




                               Judge Audr'ey...A~J1eadrick
                               Court of Workers' Compensation Claims




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                                    APPENDIX

Exhibits:
   1. Deposition of Dr. Rickey Hutcheson
   2. Deposition of Dr. Todd Bell
   3. First Report
   4. Panel
   5. Wage Statement
   6. Medical records ofDr. Alan Von Gremp
   7. Notice of Denial
   8. Drawing by Mr. Booth

Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Show Cause Order
   4. Order on Show Cause Hearing
   5. Request for Expedited Hearing
   6. Notice of Expedited Hearing
   7. Motion to Dismiss Request for Expedited Hearing
   8. Order Denying Motion to Dismiss Request for Expedited Hearing
   9. Employer and Carrier's Witness and Exhibit Statement
   10. Employee's Witness and Exhibit Statement
   11. Notice of Filing of Deposition (Dr. Hutcheson)
   12. Notice of Filing of Deposition (Dr. Bell)
   13. Expedited Hearing Brief of All egis Group and Agri General Insurance Company




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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 18th day of
 December, 2017.

Name                   Certified       Via         Email Address
                       Mail            Email
Christian Lanier,                          X       lanierlaw@comcast.net
Employee's Attorney
David J. Deming,                           X       ddeming@manierherod.com
Employer's Attorney




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