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

Jason Thomas,                                                    )   Docket No.: 2016-01-0424
           Employee,                                             )
v.                                                               )   State File No.: 12789-2016
Brunswick-Sea Ray,                                               )
           Employer,                                             )   Judge Audrey A. Headrick


                                      EXPEDITED HEARING ORDER
                                      (DECISION ON THE RECORD)


       This claim came before the Court upon a Request for Expedited Hearing filed by
Jason Thomas pursuant to Tennessee Code Annotated section 50-6-239 (2015). Mr.
Thomas seeks medical benefits and temporary disability benefits for his left shoulder
condition. Mr. Thomas requested that the Court review the documents in the file and
issue a decision on the record without an evidentiary hearing. Brunswick-Sea Ray did
not object to a decision on the record determination. The Court issued its docketing
notice on December 12, 20 16, and neither party responded. The central legal issue is
whether Mr. Thomas would likely prevail at a hearing on the merits in proving he
sustained an injury or aggravation to his pre-existing left shoulder condition that arose
primarily out of and in the course and scope of his employment with Brunswick.
Secondary issues include whether Mr. Thomas is entitled to reimbursement for medical
expenses and temporary disability benefits.

       This Court holds it needs no additional information to determine these
           1
issues. Based upon .the record, the Court finds the evidence submitted is insufficient to
establish Mr. Thomas is likely to prevail at a hearing on the merits in proving he
sustained an injury or aggravation to his pre-existing left shoulder condition that arose
primarily out of and in the course and scope of his employment with Brunswick. 2

1
 Accordingly, pursuant to Tennessee Code Annotated section S0-6-239(d)(2) (2016), Tennessee Compilation Rules
and Regulations 0800-02-21-.14(1)(f) (2016), and Rule 7.02 of the Practices and Procedures of the Court of
Workers ' Compensation Claims (20 16), the Court decides this matter upon a review of the written materials.

2
    A complete listing of the technical record and exhibits is attached to this Order as an appendix.

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                                           History of the Claim
       Here, the parties do not dispute that a boat mold liner fell on top of Mr. Thomas on
February 18, 2016. 3 The parties dispute whether Mr. Thomas would likely prevail at a
hearing on the merits in rebutting the statutory presumption of correctness afforded to the
authorized treating physician's causation opinion that his left shoulder condition did not
arise primarily out of the February accident.
       Mr. Thomas was transported by ambulance to University of Tennessee Medical
Center following the accident. (Ex. 9.) The records reflect Mr. Thomas complained of
severe back pain with left leg numbness as well as left shoulder pain. Regarding his left
shoulder, the only diagnostic testing performed at that time, an x-ray, indicated no acute
findings.
       Following his discharge from the hospital, Brunswick sent Mr. Thomas to
Lakeway Urgent Care for a fitness-for-duty determination by Dr. John Sanabria. (Ex. 6.)
Dr. Sanabria' s record reflects that Mr. Thomas complained of intense right shoulder pain
while at the emergency room. He noted that Mr. Thomas "inconsistently complains of
exaggerated subjective pain diffusely in his right shoulder and back." !d. Dr. Sanabria
diagnosed Mr. Thomas with low back pain and an "[u]nspecified sprain of right shoulder
joint." !d. He indicated he requested and reviewed Mr. Thomas' emergency room
records and stated the following: "They confirm the fact that no acute findings were
encountered. Given the inconsistencies in the exam room, it is possible the patient is
malingering. For now, he will be given the benefit of the doubt." ld.
        Brunswick later offered Mr. Thomas a panel of physicians from which he selected
Dr. Paul Becker. (Ex. 3.) Dr. Becker's initial visit note indicates Mr. Thomas sought
treatment options for his left shoulder pain. (Ex. 8.) To rule out a labrum tear, Dr.
Becker ordered an MRI arthrogram. The April 5 MRI showed an "[ e]xtensive labral
tear." !d. Dr. Zachary Jumper, a radiologist, supplemented the report with an Addendum
as follows:
        Left shoulder InJUry 2118/2016. Previous MRI is now available dated
        5/2/20 14.    Anterior inferior and posterior inferior labral tearing with
        posterior paralabral cysts again seen, not significantly changed, better
        visualized on MR arthrogram 4/5/2016 consistent with chronic findings.
        Superior labrum not well evaluated on previous noncontrast exam in 2014
        due to lack of joint fluid. No rotator cuff tendon tear seen.
Id.


3
 The records reflect that Mr. Thomas varied in telling his medical providers the estimated weight of the boat mold.
Some records reflect it weighed 400 pounds, while others state it weighed I ,000 pounds.


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       Mr. Thomas returned on April 11 to see Dr. Becker. At that visit, Dr. Becker
reviewed the MRI results and opined he did not see anything "to indicate that there is
really any new injury sustained to the left shoulder." !d. He specifically noted the two
MRis showed "the same tears were present but it looked like they are more involved."
!d. Upon hearing Dr. Becker's opinion, Mr. Thomas "walked out during the explanation
of the findings and was not happy with the results." !d. Dr. Becker proceeded to close
Mr. Thomas' case and placed him at maximum medical improvement.
        On the same day, Dr. Becker responded to a causation letter from Brunswick's
third-party administrator. 4 (Ex. 10.) He diagnosed Mr. Thomas with "chronic labral tear
left shoulder." !d. Dr. Becker also marked the option to opine that Mr. Thomas' current
condition "DID NOT primarily arise out of [his] employment (50% or under due to
work)." !d. On April 13, Brunswick filed a Notice of Controversy denying the claim.
(Ex. 5.)

       After Brunswick denied his claim, Mr. Thomas sought treatment on his own with
Dr. Christopher S. Bowman. 5 (Ex. 11.) On April 26, Mr. Thomas reported left shoulder
pain after a mold fell on him at work. He told Dr. Bowman that Dr. Becker thought the
findings on his April 5 left shoulder MRI were pre-existing. On May 6, Mr. Thomas
opted to proceed with surgery by Dr. Bowman for his left shoulder labral tear. (Ex. 7 .)
At a post-operative visit on June 2, Dr. Bowman noted, "there is some question as to
whether injury at work caused labral tearing seen at surgery." (Ex. 11.) He opined as
follows: "Although I cannot answer this question definitively, we discussed how
findings at surgery were more extensive than findings on MRI from 5114." !d.

        On July 3, Mr. Thomas filed a Petition for Benefit Determination seeking medical
and temporary disability benefits in relation to his left shoulder condition. The parties
did not resolve the disputed issues through mediation, and the mediator filed a Dispute
Certification Notice on August 30. On the Dispute Certification Notice, the Mediator
listed compensability, medical benefits, and temporary disability benefits as disputed
issues. 6 Brunswick timely submitted an Employer Objection to Dispute Certification
Notice. In response to a Show Cause Hearing, Mr. Thomas filed a Request for Expedited
Hearing.

       Mr. Thomas argued he sustained a compensable left shoulder injury on February
18, 2016. In support of his contention, Mr. Thomas argued that the mold falling on him
and pinning him underneath it caused his left shoulder condition and required him to have

4
    Brunswick is self-insured. (Ex. 2.)
5
  The record reflects Mr. Thomas previously saw Dr. Bowman on April 15, 2015, for left shoulder pain following
his involvement in a motor vehicle accident. (Ex. II.) Based upon the results of a left shoulder MRI, Dr. Bowman
injected Mr. Thomas' "left ac joint." (Ex. 7; Ex. II.)
6
    lnitially, Brunswick's timely objection to the DCN was inadvertently not included with the Mediator's filing.


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surgery. He relied on the opinion of Dr. Bowman. Brunswick argued the Court should
deny Mr. Thomas' claim because Dr. Becker, the panel physician, opined that Mr.
Thomas' left shoulder injury was not primarily caused by the work injury on February
18, 2016.

                       Findings of Fact and Conclusions of Law

       Mr. Thomas has the burden of proof on all essential elements of a workers'
compensation claim. Scott v. Integrity Staffing Solutions, No. 2015-01-0055, 2015 TN
Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn. Workers' Comp. App. Bd. Aug. 18, 2015).
He is not required to prove every element of his 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, 2015). At an expedited hearing, Mr. Thomas
has the burden to come forward with sufficient evidence from which the trial court can
determine that he is likely to prevail at a hearing on the merits. ld. This lesser
evidentiary standard does not relieve Mr. Thomas 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).
       Brunswick asserts Mr. Thomas failed to show he is likely to prevail at a hearing on
the merits in proving causation of his alleged work-related, left shoulder injury. In order
to establish causation, Mr. Thomas 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." 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." The phrase "reasonable degree of medical
certainty" means that, in the opinion of the physician, it is more likely than not
considering all causes as opposed to speculation or possibility." Further, the causation
opinion of the panel physician, Dr. Becker, "shall be presumed correct but this
presumption shall be rebuttable by a preponderance of the evidence." Jd. at § 50-6-
102(14) (2015).
       Under the Workers' Compensation Law, Mr. Thomas must rebut the presumption
of correctness regarding the medical opinion of Dr. Becker in order to prevail. To do so,
Mr. Thomas submitted the opinion of Dr. Bowman who performed his left-shoulder
surgery. Dr. Bowman opined that, "[a]lthough I cannot answer this question [regarding
causation] definitively, we discussed how findings at surgery were more extensive than
findings on MRI from 5/14." (Ex. 5.) Conversely, Dr. Becker reviewed the pre-accident
and post-accident MRI results and opined he did not see anything "to indicate that there
                                            4
is really any new injury sustained to the left shoulder." (Ex. 8.) Dr. Becker also opined
that Mr. Thomas' left shoulder condition did not arise primarily out of the accident. The
Court holds that the mere submission of the opinion of Dr. Bowman is not sufficient to
overcome the statutory presumption in favor of Dr. Becker. See Sanker v. Nacarato
Trucks, Inc., eta/., No. 2016-06-0101,2016 TN Wrk. Comp. App. Bd. LEXIS 27, at *11-
13 (Tenn. Workers' Comp. App. Bd. July 6, 2016).
       Accordingly, the Court holds Mr. Thomas is unlikely to prevail at a hearing on the
merits in proving that his left-shoulder condition is related to the February 18, 2016
accident. Therefore, the Court denies his request for medical and temporary disability
benefits.

IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Thomas' requested relief is denied at this time.

   2. This matter is set for a Scheduling Hearing on February 22, 2017, at 2:00 p.m.,
      ET.


      ENTERED this the 21st day of December, 2016.




                                  Judge Audre '  Headrick
                                  Court of Workers' Compensation Claims

Scheduling Hearing:


       A Scheduling Hearing has been set on February 22, 2017, at 2:00 p.m. Eastern
Time, with Judge Audrey A. Headrick, Court of Workers' Compensation Claims.
You must call 423-634-0164 or toll free at 855-383-0001 to participate in the
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.




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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.

   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
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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 Jason Thomas
        2.     First Report oflnjury
        3.     Panel of physicians
        4.     Wage Statement
        5.     Notice of Controversy
        6.     Medical records of Lakeway Urgent Care
        7.     Medical records of Sweetwater Hospital
        8.     Medical records of Dr. Paul Becker
        9.     Medical records ofUniversity of Tennessee Medical Center
        10.    Response of Dr. Becker to correspondence from Cheryl Hawthorne, Senior
               Claims Representative ofESIS
        11.    Medical records of Dr. Christopher Bowman
        12.    Brunswick Boat Group's "Job Physical Requirements"


Technical record:

   1.   Petition for Benefit Determination
   2.   Dispute Certification Notice, including list of additional issues filed by Brunswick
   3.   Show Cause Order
   4.   Order on Show Cause Hearing
   5.   Request for Expedited Hearing
   6.   Employer Response to Request for Expedited Hearing
   7.   Docketing Notice for Review of the File Determination




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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 21st day
 ofDecember, 2016.
       Name          Certified   Via    Fax         Via              Email Address
                       Mail      Fax   Number      Email


Jason Thomas            X                             X    139 Village Lane
                                                           Madisonville, TN 37354
                                                           sweettn5 ~ yahoo.com
Sam Doak, Atty                                        X    sdoak@adb.knox .com




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




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