              TENNESSEE BUREAU OF WORKERS' COMPENSATI ON
                 WORKERS' COMPENSATI ON APPEALS BOARD


Regina Kirk                                 ) Docket No. 2015-01-0036
                                            )
v.                                          )   State File No. 79228-2014
                                            )
Amazon.com, Inc.                            )
                                            )
Appeal from the Court of Workers'           )
Compensation Claims                         )
Thomas Wyatt, Judge                         )


                 Affirmed and Remanded- Filed November 16,2015


In this second interlocutory appeal of this case, the employee alleges a work-related left
shoulder injury. The frrst appeal followed an in-person evidentiary hearing that resulted
in the trial court's denial of medical and temporary disability benefits, which was
affirmed on appeal. The employee subsequently filed a second request for expedited
hearing that was supported by her orthopedic physician's responses to a letter from her
attorney. The second request sought a ruling on the record without an evidentiary
hearing. Following the trial court's review of the file, the court awarded medical and
temporary disability benefits, concluding that the employee would likely prevail at a
hearing on the merits in establishing her alleged injury arose primarily out of her
employment. The employer has appealed. After a careful review of the record, we
affirm the trial court's order and remand the case for such additional proceedings as may
be necessary.

Judge David F. Hensley delivered the opinion of the Appeals Board, in which Judge
Marshall L. Davidson, III, and Judge Timothy W. Conner joined.

Carmen Y. Ware, Chattanooga, Tennessee, for the employee-appellant, Regina Kirk

Charles Pierce, Knoxville, Tennessee, for the employer-appellee, Amazon.com, Inc.



                                            1
                               Factual and Procedural Background

            Regina Kirk ("Employee") is a packer employed with Amazon.com, Inc.
    ("Employer"), in Chattanooga, Tennessee. On September 24, 2014, she reported a left
    shoulder injury that occurred as she reached overhead for an item to pack in a box. 1 The
    Employer's First Report of Work Injury, which was completed on the alleged injury date,
    describes the injury as follows: "[l]eft shoulder strain developed gradual pain while
    packing." Employer's safety form titled "Associate First Report of Injury," which
    Employee signed on the alleged injury date, indicates the "Actual Incident Time" to be
    "11 :30 AM," and the "Time Incident Reported" to be "2:45 PM." It states, "shoulder
    popped while getting item to [place] in box [and] as day went on it feels like a pull to left
    arm above neck."

       Employee visited Employer's onsite medical facility, AmCare, at 2:45 on the
afternoon of the alleged injury. The initial Am Care report describes Employee's injury
similarly to the Associate First Report of Injury, stating ''while getting an item to place in
a box, her shoulder popped. " 2 It identifies the involved body parts to be "[l]eft upper
back/shoulder," and it indicates Employee received "ice therapy x 15 [minutes]." The
report states that Employee was to return to work without restrictions. Employee was
seen again at AmCare the following day where she received first-aid care described as
"ice for 15 minutes to left shoulder and [Biofreeze]." The AmCare records reflect
Employee also received "ice therapy for 15 [minutes]" on September 28 and 29, 2014 as
well.

       Employee requested to see a medical doctor and was provided a panel of medical
providers from which she selected Workforce Corporate Health ("Workforce") on
September 30, 2014. She was seen at Workforce on one occasion on October 6, 2014, by
Dr. Jayant Eldurkar. The report from that visit states that Employee "says she has pain in
the left shoulder," and it notes "[n]o particular incident occurred, but she states from
reaching across and lifting at heights." Dr. Eldurkar's report notes numerous tests and
maneuvers performed in his clinical evaluation of Employee's shoulder, none of which
was reported to be positive. His examination of Employee's upper back revealed "some
tenderness at the left rhomboid." The assessment included in his October 6, 2014 report
1
 The facts are taken from the Appeals Board's August 7, 2015 opinion affirming and remanding the trial
court's initial interlocutory order, the documents submitted in support of Employee's second request for
expedited hearing, and the transcript of the proceedings of the initial expedited hearing filed in the trial
court subsequent to Employer's filing of the notice of appeal. The facts included in the Appeals Board's
August 7, 2015 opinion were taken from the trial court's initial expedited hearing order and the exhibits
admitted into evidence at the initial expedited hearing.
2
  Tenn. Comp. R. & Regs. 0800-02-21-.16(6)(b) (2015) provides that "medical records signed by a
physician or accompanied by a certification that the records are true and accurate . . . ," shall be
admissible. Although no such certification for the AmCare records was provided, the parties stipulated to
the admissibility of those records.

                                                     2
states '"[l]eft rhomboid sprain/strain, not work related." (Emphasis added.) Employee
was instructed to "[r]etum to work without restrictions," and to "[r]etum to clinic as
needed." The report states that Employee was "discharged from our clinic."

        On the same date of Employee's examination by Dr. Eldurkar, the doctor dated
and signed an Employer-provided form identified as "Health Care Provider Request for
Medical Information." The document included a section to be completed by the health
care provider wherein the injury '"for which treatment is sought" was identified as "[left]
upper back spasm." The document also included an area for the provider to address
whether the injury is work-related by marking one of three boxes labeled "Work-
Related," '"Not Work-Related," or '"Undetermined." Consistent with the assessment
included in Dr. Eldurkar's report, he marked the box indicating Employee's injury was
"Not Work-Related." On October 17, 2014, Employer denied additional benefits, stating
as the basis for its denial, "[n]o medical evidence of a work related injury."

        Employee's left shoulder pain worsened as she continued her work as a packer.
She sought medical treatment on her own, and on February 19, 2015, she was seen by Dr.
Jason Robertson, an orthopedic physician. He recorded that Employee "presents in the
office today with a complaint of left shoulder pain that began 09/23/2014." The report
noted Employee's statement "that she was reaching for something on a shelf when her
left shoulder popped." Dr. Robertson examined Employee's shoulder and performed
range of motion tests, strength tests and "Specialty Tests." He noted positive "Neer and
Hawkin's [sic]" tests, which Dr. Eldurkar had found to be negative at the time of his
October 6, 2014 clinical evaluation. Dr. Robertson ordered and reviewed left shoulder x-
rays, which were interpreted to show a "type III acromion and mild glenohumeral
degenerative joint disease." In addition to prescribing medication, Dr. Robertson ordered
a four-week physical therapy program and imposed restrictions against '"lifting over 10
[pounds] [l]eft upper extremity until follow up." He also advised Employee to return to
him in four weeks.

       Prior to the issuance of the trial court's initial order denying benefits, Dr.
Robertson signed and dated three separate Employer-provided forms that were admitted
into evidence, which included his opinions concerning whether Employee's condition
was work-related. On February 23, 2015, he signed Employer's "Health Care Provider
Request for Medical Information," which stated that the document was "To Be Used For
Return to Work Verification or Restrictions." A box marked on the document indicated
that the condition for which Employee was examined on February 19, 2015, was "Not
Work-Related." A second copy of the document marked "REVISED 3/12/15," had the
"Not Work-Related" language marked through, and "Work-Related" was circled. Dr.
Robertson's initials and the date were handwritten beside the revisions. A second
Employer-provided form signed by Dr. Robertson titled "Attending Physician's
Statement of Work Capacity and Impairment" was also dated March 12, 2015. Dr.
Robertson identified the primary diagnosis on this document to be left shoulder

                                            3
    impingement. In the area for the doctor to indicate whether "the patient's primary
    condition [is] due to injury or illness arising out of the patient's employment," the
    document was marked, "[u]nknown." A third Employer-provided form requesting
    medical information, which was dated March 27, 2015 by Dr. Robertson, stated it is "To
    Be Used For Disability Accommodation & Fitness for Return to Work." It noted that
    Employee was last seen by the doctor on March 19, 2015, and that work restrictions were
    assigned at that visit. A box indicating the injury was "Work-Related" was marked, and
    Dr. Robertson's signature was written in the same section following the statement
    "overuse injury from overhead activity."

       Employee's initial petition for benefit determination was filed on February 20,
2015. Following the filing of a request for expedited hearing, the trial court conducted an
expedited hearing on June 15, 2015. On July 7, 2015, the trial court issued an order
denying Employee's claim for medical and temporary disability benefits, concluding that
Employee "did not submit sufficient medical expert opinion to establish that, at a hearing
on the merits, she would likely prevail in establishing that her injury arose primarily out
of and in the course and scope of employment." Employee appealed and submitted a
position statement to which she attached correspondence dated July 9, 2015, from her
attorney to Dr. Robertson. The correspondence presented the attorney's summary
understanding of the reason for Dr. Robertson's differing causation opinions. It also
presented two questions intended to clarify the doctor's opinion concerning whether
Employee's alleged injury was work-related. We refused to consider the document in
rendering our August 7, 2015 opinion affirming the trial court's denial of benefits
because the document was not admitted into evidence at the expedited hearing.

       Employee filed a second request for expedited hearing on August 18, 2015,
seeking a ruling on the record without an evidentiary hearing. 3 The July 9, 2015
correspondence with Dr. Robertson's responses and a "work slip" releasing Employee to
return to work as of June 23, 2015 were filed in support of Employee's request. Noting
that no affidavit was filed with Employee's second request for expedited hearing,
Employer objected to the request, asserting the administrative rules require that all
motions for expedited hearing be "accompanied by affidavits and any other information
demonstrating that the employee is entitled to temporary disability or medical benefits."
Tenn. Comp. R. & Regs. 0800-02-21-.14(l)(a) (2015). Employee subsequently refiled
the affidavit that was filed with her initial request for expedited hearing. Thereafter,
Employer filed a motion to dismiss Employee's claim, relying on Tennessee Code
Annotated section 50-6-239(d)(4) (2015) and Tenn. Comp. R. & Regs. 0800-02-21-
.14(3). Both the statute and the rule authorize a trial court to entertain a motion to

3
  The trial court has the authority to "issue an interlocutory order either awarding or denying temporary
disability or medical benefits based on a review of the documents submitted and without convening a
formal hearing." Tenn. Comp. R. & Regs. 0800-02-21-.02(13) (2015). See also Tenn. Code Ann. § 50-6-
239(d)(2) (2014).

                                                   4
 dismiss an employee's claim where a motion for temporary disability or medical benefits
 is denied on the basis that the claim is not compensable.

        Following oral arguments on Employer's motion to dismiss and on its objection to
the second request for expedited hearing, the trial court denied Employer's motion to
dismiss, concluding that Employee addressed the evidentiary inadequacies identified in
the trial court's July 7, 2015 order by filing the July 9, 2015 correspondence that included
Dr. Robertson's causation opinion. The court also found Employer's objection to the
request for expedited hearing to be meritless, noting that Employee had already filed an
affidavit with her initial request for expedited hearing. Referencing "the spirit of [Rule
10.03 of the Tennessee Rules of Civil Procedure]," which provides that an exhibit filed
with a pleading "shall be a part of the pleading for all purposes," the trial court concluded
that Employee's failure to refile the affidavit at the time the second request was filed "did
not eliminate the Court's ability to decide the [request] on its merits."

        After resolving the procedural matters, the trial court addressed the causation issue
 and whether Employee established sufficient evidence from which the trial court could
 determine that she would likely prevail at trial in rebutting Dr. Eldurkar's opinion that her
 injury was not work-related. Finding that Dr. Robertson's opinion "more likely
 represents an accurate causation assessment than Dr. Eldurkar's opinion," and finding
Employee's in-person testimony at the initial expedited hearing to be credible, the trial
court concluded that Employee "will likely prevail in rebutting Dr. Eldurkar's opinion ...
and in establishing that her left-shoulder injury arose primarily out of and in the course
and scope of her employment." The court ordered Employer to "pay for past treatment
and examination by Dr. Robertson and, at [Employee's] option, [she] may seek future
treatment of her work-related left-shoulder injury from Dr. Robertson or a physician
selected from a panel to be provided by [Employer]." Additionally, the trial court
awarded seventeen weeks and six days of temporary disability benefits based on
Employee's unrefuted testimony at the first expedited hearing addressing Employer's
inability to accommodate restrictions imposed by Dr. Robertson, and the ''work slip"
submitted by Employee with her second request for expedited hearing. The "work slip"
indicated that Dr. Robertson did not release Employee to return to unrestricted work until
June 23, 2015. Employer appeals the October 8, 2015 interlocutory order.

                                   Standard of Review

       The standard we apply in reviewing a trial court's decision is statutorily mandated
and limited in scope. Specifically, "[t]here shall be a presumption that the findings and
conclusions of the workers' compensation judge are correct, unless the preponderance of
the evidence is otherwise." Tenn. Code Ann. § 50-6-239(c)(7) (2014). The trial court's
decision must be upheld unless the rights of a party "have been prejudiced because
findings, inferences, conclusions, or decisions of a workers' compensation judge:


                                              5
         (A)     Violate constitutional or statutory provisions;
         (B)     Exceed the statutory authority of the workers' compensation judge;
         (C)     Do not comply with lawful procedure;
         (D)     Are arbitrary, capricious, characterized by abuse of discretion, or
                 clearly an unwarranted exercise of discretion;
         (E)     Are not supported by evidence that is both substantial and material
                 in the light of the entire record."

 Tenn. Code Ann. § 50-6-217(a)(3) (2015). In applying the standard set forth in
 subparagraph (E) above, courts have construed "substantial and material" evidence to
 mean "such relevant evidence as a reasonable mind might accept to support a rational
 conclusion and such as to furnish a reasonably sound basis for the action under
 consideration." Clay Cnty. Manor, Inc. v. State, Dep't of Health & Env't, 849 S.W.2d
 755, 759 (Tenn. 1993). Like other courts applying the standard embodied in section 50-
 6-217(a)(3), we will not disturb the decision of the trial court absent the limited
 circumstances identified in the statute.

                                                Analysis

        The dispositive issue in this interlocutory appeal is whether Employee presented
sufficient evidence from which the trial court could determine that she would likely
prevail at a hearing on the merits in overcoming the presumption afforded the authorized
treating physician's causation opinion. 4 The trial court determined that Employee would
likely prevail in establishing her injury to be work-related and awarded medical and
temporary disability benefits. Employer asserts that the trial court erred in three respects:
(1) by failing to dismiss the second request for expedited hearing for Employee's failure
to submit an affidavit with her request as required by Tenn. Comp. R. & Regs. 0800-02-
21-.14(1)(a); (2) in determining that the questionnaire signed by Dr. Robertson was
sufficient to support the trial court's order for benefits; and (3) in determining that the
medical evidence rebutted the presumption of correctness afforded Dr. Eldurkar's
opinion that Employee's injury was not work-related. For the reasons addressed below,
we conclude that the trial court did not err in awarding benefits.

                                    Requirement for Filing an Affidavit

      Tenn. Comp. R. & Regs. 0800-02-21-.14(1)(a) (2015) requires that all motions for
expedited hearings "must be accompanied by affidavits and any other information

4
  The trial court stated ''the central substantive issue presented for determination is whether [Employee]
sustained an injury arising primarily out of and in the course and scope of employment." We disagree
with the trial court's characterization of the issue. Given the procedural posture of the case, it is
premature to decide if Employee's injury arose primarily out of and in the course and scope of her
employment. Causation issues at expedited hearings concern whether the evidence is sufficient for the
trial court to determine that an employee is likely to prevail at a hearing on the merits.

                                                    6
demonstrating that the employee is entitled to temporary disability or medical benefits."
Employee filed information with her second request for expedited hearing, but she did
not file an affidavit with her second request until after Employer objected to her request.
Citing Hadzic v. Averitt Express, No. 2014-02-0064, 2015 TN Wrk. Comp. App. Bd.
LEXIS 14 (Tenn. Workers' Comp. App. Bd. May 18, 2015), Employer asserts there are
no exceptions to the affidavit requirement, and that the affidavit Employee filed after
Employer filed its position statement with the trial court "does not cure the deficiency."
We fmd no merit in Employer's position, nor do we interpret Hadzic to establish that
"there are no exceptions to the affidavit requirement" as asserted by Employer. The
issue in Hadzic concerned whether the affidavit requirement was limited to cases in
which "the party intends to rely on the affidavit at the hearing." Id. at *6. The trial court
in Hadzic found the failure to file an affidavit to be inconsequential because the employee
testified in person at the hearing, stating that a "party is only required to file an affidavit
if the moving party intends to rely on the affidavit[] at the Expedited Hearing." !d. at *7.
We vacated the trial court's decision, concluding that it "incorrectly determined the filing
of an affidavit is unnecessary when the party seeking an expedited hearing testifies at the
hearing." !d. at* 12.

        Here, Employee filed an affidavit with her initial request for expedited hearing,
which asserted that the injury occurred when she was "reaching for an item ... [at work]
when I felt my left shoulder pop followed by pain." The affidavit identified when the
work incident occurred, what medical providers examined Employee, what Employee
understood the providers' diagnoses to be, and whether the providers imposed work
restrictions. Without considering whether the inconvenience of attaching this affidavit to
the second request for expedited hearing outweighed the value of the affidavit, see Tenn.
R. Civ. P. 10.03 Advisory Commission Comment (2015), it is undisputed that (1)
Employer already had the affidavit; (2) the affidavit was already included in the court
file; and (3) Employee provided the responses from Dr. Robertson that were intended to
clarify his causation opinion with her second request for expedited hearing. Employer
has not shown or alleged any prejudice as a result of Employee's failure to refile the
affidavit with her new request or by Employee's refiling the affidavit following
Employer's objection to the request. Additionally, and as noted by the trial court,
Employee's "failure to refile the affidavit did not deprive [Employer] of information
needed to respond to the issues raised by the second [request]." Under the circumstances
presented, we conclude that the trial court did not err in declining to dismiss the second
request for expedited hearing.

            Overcoming the Presumption of Correctness of the Treating Physician's
                                Causation Opinion

       Employer contends that Dr. Robertson's July 14, 2015 responses to the questions
presented by Employee's attorney are insufficient to support the trial court's order for
benefits. Further, Employer asserts that the evidence does not overcome the presumption

                                              7
that the authorized treating physician's causation opinion is correct. The authorized
treating physician, Dr. Eldurkar, examined Employee on a single occasion and diagnosed
her with a "[l]eft rhomboid sprain/strain, not work related." Consistent with this
statement, the separate "Health Care Provider Request for Medical Information" form
signed by Dr. Eldurkar on the date of his examination identifies Employee's injury as
"[left] upper back spasm" and was marked to indicate that Employee's injury was "Not
Work-Related." Whether the preponderance of the evidence overcomes the presumption
of correctness attached to Dr. Eldurkar's causation opinion subsumes the issue raised by
Employer regarding whether Dr. Robertson's responses were sufficient to support the
trial court's award of benefits. The trial court's award of benefits was not based solely on
Dr. Robertson's July 14, 2015 responses to the questions from Employee's attorney, nor
was the trial court's award of benefits based solely on the medical evidence.

       At an expedited hearing, an employee need not prove every element of his or her
claim by a preponderance of the evidence, but must 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 consistent with Tennessee Code Annotated section 50-6-239(d)(l)
(2014). McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk.
Comp. App. Bd. LEXIS 6, at *9 {Tenn. Workers' Comp. App. Bd. Mar. 27, 2015). 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.
Carlex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6
(Tenn. Workers' Comp. App. Bd. Sept. 29, 2015).

       Furthermore, "[t]he opinion of the treating physician, selected by the employee
from the employer's designated panel of physicians ... 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(13)(E) (2014). Considering Employee's
testimony and the medical records admitted into evidence, the trial court concluded that
Employee "will likely prevail in rebutting Dr. Eldurkar's opinion of non-compensability
and in establishing that her left-shoulder injury arose primarily out of and in the course
and scope of her employment." While we disagree with the trial court's characterization
of Dr. Eldurkar's opinion as an "opinion of non-compensability" rather than a medical
opinion addressing causation, for the reasons addressed below we conclude that the trial
court did not err in awarding medical and temporary disability benefits.

       The appellant bears the burden of showing that the evidence presented in the trial
court preponderates against the trial court's findings. Mfrs. Canso!. Serv., Inc. v. Rodell,
42 S.W.3d 846, 865 (Tenn. Ct. App. 2000). "For the evidence to preponderate against a
trial court's fmding of fact, it must support another fmding of fact with greater
convincing effect." Bridgewater v. Adamczyk, 421 S.W.3d 617, 627 (Tenn. Ct. App.

                                             8
    20 13) (citations omitted). Employee was the only witness to testify at the initial
    expedited hearing, and the second expedited hearing was limited to the trial court's
    review of the file in accordance with Tenn. Comp. R. & Regs. 0800-02-21-.14(l)(c)
    (2015). In the order under review, the trial court found Employee's in-person testimony
    at the initial expedited hearing to be credible. Based on Employee's testimony, the
    exhibits admitted into evidence at the initial hearing, and the additional documents
    submitted with Employee's second request for expedited hearing, the trial court
    determined that Employee would likely prevail at a hearing on the merits in rebutting the
    treating physician's opinion that Employee's injury is not work-related.

         Reviewing courts must conduct an in-depth examination of the trial court's factual
findings and conclusions. Wilhelm v. Krogers, 235 S.W.3d 122, 126 (Tenn. 2007).
However, as noted above, "[t]here shall be a presumption that the findings and
conclusions of the workers' compensation judge are correct, unless the preponderance of
the evidence is otherwise." Tenn. Code Ann. § 50-6-239(c)(7) (2014). When the trial
court has seen and heard witnesses, considerable deference must be afforded the trial
court's factual findings. Tyron v. Saturn Corp., 254 S.W.3d 321, 327 (Tenn. 2008). No
similar deference need be afforded the trial court's fmdings based upon documentary
evidence such as medical records. See Glisson v. Mohon Int'l. Inc., 185 S.W.3d 348, 353
(Tenn. 2006). Having carefully reviewed and considered the transcript of the June 15,
2015 expedited hearing, 5 we cannot say that the trial court's assessment of Employee's
credibility was incorrect. Indeed, Employer has not identified any testimony from the
initial hearing that it asserts to be inconsistent or unreliable.

       Dr. Eldurkar's October 6, 2014 report indicates that he performed a physical
examination of Employee's left shoulder and upper back and identifies numerous tests
and maneuvers included in his examination. The report notes that Employee had full
range of motion in her left shoulder and that each test or maneuver performed during the
doctor's clinical evaluation was negative. The doctor's examination of Employee's upper
back revealed "some tenderness at the left rhomboid." The assessment included in the
report states "[l]eft rhomboid sprain/strain, not work related." Consistent with the
October 6, 2014 report, Dr. Eldurkar indicated on the Employer-provided request for
medical information that the "[left] upper back spasm" for which "treatment is sought"
was "Not Work-Related." As noted by the trial court, Dr. Eldurkar's medical practice
specialty, if any, is not identified in the record.

      Dr. Robertson is an orthopedic surgeon. The records document that Employee had
two visits with Dr. Robertson in contrast to her single visit with Dr. Eldurkar. The
mechanism of injury recorded by Dr. Robertson was consistent with Employee's

5
 We elected to review the transcript of the first expedited hearing filed by Employer because the trial
court expressly noted its reliance on the testimony in ruling on the second request without an evidentiary
hearing.

                                                    9
 testimony as to how she injured her shoulder. Also, Dr. Robertson obtained and
reviewed current shoulder x-rays, which he noted revealed "a type III acromion and mild
glenohumeral degenerative joint disease." While Dr. Robertson prepared or signed
records with conflicting information addressing whether Employee's left shoulder
condition was work-related, his July 14, 2015 responses to the questions posed by
Employee's attorney clarified and affirmed his opinion that "the work related events of
9/24/14, more likely than not, contributed more than 50% to primarily result in the left
shoulder injury ... and the need for the prescribed treatment." (Emphasis in original.)
The trial court found that Dr. Robertson's causation opinion "more likely represents an
accurate causation assessment than Dr. Eldurkar's opinion because he recorded a more
accurate history and utilized diagnostic testing to diagnose [Employee's] injury."
Finding Employee's in-person testimony at the initial expedited hearing to be credible,
the trial court concluded from her testimony, in conjunction with the court's
determination that Dr. Robertson ''was better-positioned to assess causation than was Dr.
Eldurkar," 6 that Employee ''will likely prevail in rebutting Dr. Eldurkar's opinion ... and
in establishing that her left-shoulder injury arose primarily out of and in the course and
scope of her employment." Our review leads us to conclude that the preponderance of
the evidence supports the trial court's determination that Employee established she is
likely to prevail at a trial on the merits in overcoming the presumption of correctness
afforded Dr. Eldurkar's causation opinion and in establishing that her left shoulder injury
arose primarily out of and in the course and scope of her employment.

                                             Conclusion

         For the foregoing reasons, we hold that the evidence does not preponderate
against the trial court's award of medical and temporary disability benefits. Additionally,
we find that the trial court's decision does not violate any of the standards identified in
Tennessee Code Annotated section 50-6-217(a)(3) (2015). Accordingly, the trial court's
decision is affirmed and the case is remanded for any further proceedings that may be
necessary.




                                                       David F. Hensley, Judge
                                                       Workers' Compensation Appeals Board




6
 The trial court found that "Dr. Robertson was in a better position to consider the causation [issue]
because he saw her almost five months after the date of injury." A physician's opinion should not
necessarily be given more weight the farther removed it is from the injury-producing event. Indeed, the
opposite may be true.

                                                  10
                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD

Regina Kirk                                              )   Docket No. 2015-01-0036
                                                         )
v.                                                       )
                                                         )    State File No. 79228-2014
Amazon.com, Inc.                                         )


                                     CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the
referenced case was sent to the following recipients by the following methods of service
on this the 16th day of November, 2015.
 Name                    Certified   First Class   Via   Fax       Via     Email Address
                         Mail        Mail          Fax   Number    Email

 Carmen Ware                                                          X    Cyware@thewarelawfirm.com
 W. Troy Hart                                                         X    wth@mijs.com
 Thomas Wyatt, Judge                                                  X    Via Electronic Mail
 Kenneth M. Switzer,                                                  X    Via Electronic Mail
 Chief Judge
 Penny Shrum, Clerk,                                                  X     Penny.Patterson-Shrum@tn.gov
 Court of Workers’
 Compensation Claims




Matthew Salyer
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: Matthew.Salyer@tn.gov
