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

TERRY ROHRENBACH                                        )    Docket No.: 2015-05-0600
         Employee,                                      )
v.                                                      )    State File Number: 74548-2015
YATES SERVICES                                          )
         Employer,                                      )    Judge Dale Tipps
And                                                     )
TRAVELERS INS.                                          )
         Insurance Carrier.                             )
                                                        )

                             COMPENSATION HEARING ORDER


        This matter came before the undersigned Workers’ Compensation Judge on
October 19, 2016, for a Compensation Hearing pursuant to Tennessee Code Annotated
section 50-6-239 (2015). The central legal issues are: (1) whether the employee, Terry
Rohrenbach, suffered an injury arising primarily out of and in the course and scope of his
employment with the employer, Yates Services; (2) whether Mr. Rohrenbach is entitled
to temporary disability benefits, and if so, in what amount; (3) whether Mr. Rohrenbach
is entitled to permanent disability benefits; and (4) whether Mr. Rohrenbach is entitled to
past or future medical benefits.1 For the reasons set forth below, the Court finds that Mr.
Rohrenbach established by a preponderance of the evidence that he sustained an injury
primarily arising out of and in the course and scope of his employment with Yates.
Accordingly, the Court finds that Mr. Rohrenbach is entitled to medical benefits,
temporary disability benefits, and permanent partial disability benefits.

                                             History of Claim

       Mr. Rohrenbach has worked as a Yates employee at the Nissan plant in Smyrna
for several years. He testified he never had any problems or symptoms with his left
shoulder until September 13, 2015, while working on the assembly line in the “Right-
Hand Front Member” station. On that date, he reached up to take a hood ledge off the
1
 A complete listing of the technical record and exhibits admitted at the Compensation Hearing is attached to this
Order as an appendix.

                                                       1
top of a stack of parts and felt a sharp pain in his left shoulder. He was unable to lift his
arm above chest level. He gave notice to his supervisor, who took him to the medical
department.

       Mr. Rohrenbach selected Premise Health, an onsite provider at Nissan, from a
physician panel on September 14, 2015. (Ex. 5 at 4.) He saw Robert Dickinson, an
advanced practice nurse, on that date for complaints of left shoulder pain. Mr.
Rohrenbach reported, “I was loading hood ledge and reached for a part and couldn’t raise
my arm.” APN Dickinson also noted:

       EE denies any slip, trip or fall but did state that he spread decorative gravel
       in his yard for three hours and he did take frequent breaks. Rates pain on a
       0 to 9 scale at 7. The pain is described as aching and stabbing/jabbing. The
       symptoms are reported as varying and intermittent. Reports improvement
       with self care including ice and OTC meds. Symptoms are reported to be
       worsened by certain motions.

He examined Mr. Rohrenbach, assessed a shoulder sprain, and prescribed Advil and
Tylenol. (Ex. 4 at 19.)

      Mr. Rohrenbach returned to the clinic and saw Dr. Woodall on September 17,
2015. He reported a rapid onset of left shoulder weakness and pain while reaching for a
part. Dr. Woodall assessed Mr. Rohrenbach’s range of motion and concluded,
“Idiopathic degenerative shoulder – believe is impingement (hypertrophy and spur) with
probable supraspinatus tear – not primarily related to work activities.” He prescribed
ibuprofen and restricted movement of the left arm. Id. at 21. Yates denied Mr.
Rohrenbach’s claims as idiopathic on October 1, 2015. (Ex. 5 at 5.)

        Mr. Rohrenbach subsequently sought treatment at a walk-in clinic, which
referred him to Dr. James Rungee. Mr. Rohrenbach saw Dr. Rungee on October 26,
2015. He described his problem to Dr. Rungee and told him his employer denied his
workers’ compensation claim because he had degenerative changes. Dr. Rungee ordered
an MRI, which showed a full-thickness tear of the rotator cuff, for which Dr. Rungee
recommended surgical repair. (Ex. 4 at 65-73.)

       Dr. Rungee performed a repair and debridement of the rotator cuff tear on
December 8, 2016. Id. at 84. On January 15, 2016, Mr. Rohrenbach requested a full-
duty release so that he could go back to work. Dr. Rungee declined to do this, pointing
out that Mr. Rohrenbach needed to continue his physical therapy. When Mr. Rohrenbach
returned on February 22, Dr. Rungee noted, “He is doing quite well. He says he is
having no pain or discomfort. He has not been able to return to work, but feels ready to
do such.” Dr. Rungee released Mr. Rohrenbach to full duty but instructed him to return if
he had any problems. Id. at 95, 102.

                                             2
       Mr. Rohrenbach underwent an independent medical evaluation with Dr. C. M.
Salekin on July 27, 2016. After reviewing medical records and performing a physical
examination, Dr. Salekin noted Mr. Rohrenbach complained of significant pain and
weakness. He complained he could not raise his arm above his shoulder due to his pain,
and he reported extreme difficulty with pushing, pulling, and lifting with his left arm. Dr.
Salekin assigned a 7% upper extremity impairment rating for full thickness rotator cuff
tear (default class 1, grade modifier 2) and a 5% impairment for Type II acromion and
coracoacromial ligament fraying (default class 1, grade modifier 2). Combined, these
translated to a 7% whole person rating. Id. at 198-200.

       The parties deposed several medical providers in this matter, beginning with Dr.
Rungee, a board-certified orthopedic surgeon. After Mr. Rohrenbach’s attorney provided
a detailed description of the actions performed by employees in the Right-Hand Front
Member station, he asked:

       Q: [I]s that consistent with a traumatic work injury?

       A: Yeah. I would say that’s consistent.

       Q: If that history is to be believed, is it more likely than not that his injury
       primarily arose out of his work?

       A: I don’t have any reason to doubt his story. But that’s all I have to go on
       is what he told me. But his description is consistent with a means of tear in
       your rotator cuff.

(Ex. 3 at 11-13.)

      Dr. Rungee went on to testify that Mr. Rohrenbach retained no permanent
impairment under the Sixth Edition of the American Medical Association’s Guides to the
Evaluation of Permanent Impairment (AMA Guides). He explained that, under the
Guides, “if you have a repaired rotator cuff and have no symptoms, then it’s a zero
percent impairment.” Id. at 9-10.

       Dr. Rungee was also asked about Mr. Rohrenbach’s medical expenses. Although
he did not have a copy of the other providers’ invoices, he testified that the treatment Mr.
received was necessary and that his charges were customary and ordinary charges for the
community. Id. at 13-15. He also said Mr. Rohrenbach would not have been able to
return to his regular job for three months after his surgery. Id. at 15-16.

        The next doctor to be deposed was Dr. Woodall, who testified that he is a board-
certified specialist in occupational medicine. His employer, Premise Health, contracts

                                              3
with Nissan to provide on-site medical services for Nissan and Yates employees. (Ex. 1
at 7-8.) Dr. Woodall testified Mr. Rohrenbach’s injury was not primarily related to his
work because:

       The basis is that shoulders as a group are primary idiopathic and
       degenerative. The most strongest [sic] observed factor in the literature for
       rotator cuff issues is age. It predominately occurs in the late 40s, early 50s.
       It is increased in the instance for people that work for long periods with
       their arms up above their head or with heavy loads over their head or with
       outstretched arms. His work was described as fairly light and generally
       below chest level. In addition, he also has a history of being a golfer and a
       fisherman. Both are sports in which they also have an increased instance of
       rotator cuff issues.

Id. at 15.

        On cross-examination, Dr. Woodall acknowledged that Mr. Rohrenbach
performed approximately 480 outstretched, overhead movements per day in his work. He
also stated that, other than tendinosis and some cystic changes, the October 2015 MRI did
not indicate degeneration in Mr. Rohrenbach’s shoulder. Id. at 23-24.

        The parties deposed Dr. Salekin on August 29, 2016. Regarding causation, he
testified at length about the types of motion Mr. Rohrenbach performed in his work and
the effect of those motions on various parts of the shoulder. He then concluded, “From a
reasonable degree of medical certainty, I believe work-related repetitive activity was the
main and primary cause of the injury to his rotator cuff.” (Ex. 2 at 17-19.) He also
confirmed his opinion that Mr. Rohrenbach retained a 7% upper extremity impairment
rating for full thickness rotator cuff tear and a 5% impairment for Type II acromion and
coracoacromial ligament fraying, resulting in a 7% whole person rating. Id. at 19-20.

        On cross-examination, Dr. Salekin disagreed that Mr. Rohrenbach had made a
complete recovery and testified that, in addition to Mr. Rohrenbach’s complaints of pain,
he had an impaired range of motion. He admitted, however, that he did not know Mr.
Rohrenbach’s condition on the day Dr. Rungee returned him to work without restrictions.
Id. at 48-52. He went on to testify that he based his impairment opinion on diagnostic
criteria set out in the Guides. Therefore, the impairment was based on the diagnosis
given by Mr. Rohrenbach’s doctors, as well as his pain, weakness, and restricted range of
motion. Id. at 58-59.

       Mr. Rohrenbach filed a Petition for Benefit Determination (PBD). The parties did
not resolve the disputed issues through mediation, and the Mediating Specialist filed a
Dispute Certification Notice (DCN).


                                             4
        At the Compensation Hearing, Mr. Rohrenbach asserted he is entitled to medical
treatment, temporary disability benefits, and permanent disability benefits for injuries to
his left shoulder arising primarily out of and in the course and scope of his employment.
Specifically, he argued his was an extremely repetitive job with many reaching
movements. He relied on Dr. Rungee’s opinion that his injury is consistent with an
overuse injury and Dr. Salekin’s causation opinion to rebut the statutory presumption of
correctness attached to the causation opinion of Dr. Woodall.

       Regarding that opinion, Mr. Rohrenbach argued that Dr. Woodall’s method and
conclusions are suspect because they are based on his opinion that rotator cuff injuries
after a certain age are primarily degenerative. Mr. Rohrenbach contended this would
effectively exclude shoulder injury claims by persons over forty-five years of age.
Further, he noted that Dr. Woodall only generally cited “literature” in support of this
opinion and failed to provide any specific studies or authority. Finally, Mr. Rohrenbach
objected to Dr. Woodall’s generalization about causation and pointed out his injury did
not occur in a vacuum, but happened after a significant number of repetitive shoulder
actions. The fact that he might be more prone to injury is not dispositive, as Yates must
take him as it finds him.

       Mr. Rohrenbach contended he was entitled to temporary total disability benefits
for the period of October 23, 2015, his first day off work, through February 22, 2016, the
date Dr. Rungee released him at MMI. He also requested payment of the medical bills
made an exhibit to Dr. Rungee’s deposition, reimbursement of a $1000.00 payment he
personally made to Dr. Rungee as a surgery deposit, and a panel of three physicians for
future treatment.

       Yates countered that Mr. Rohrenbach is not entitled to any workers’ compensation
benefits. It contended he failed to meet his burden of proving compensability because the
opinions of Drs. Rungee and Salekin are is insufficient to overcome the statutory
presumption afforded Dr. Woodall’s opinion.

      Yates argued that Mr. Rohrenbach mischaracterized Dr. Woodall’s testimony. It
contended he really just said that a person over forty-five years of age would typically
have degenerative changes in the shoulder – exactly what the doctors found in Mr.
Rohrenbach. What Dr. Woodall said is, that in this particular case, a man with
degenerative changes reached out – he did not lift anything or reach overhead – and this
event was not the primary cause of his injury.

       Yates disputed Dr. Rungee’s opinion that reaching out was the cause of Mr.
Rohrenbach’s injury because Dr. Rungee did not have all the relevant medical history.
He based his opinion strictly upon what Mr. Rohrenbach told him and did not review any
other medical records.


                                            5
       As to Dr. Salekin, Yates contended that his opinion is not entitled to any weight
whatsoever, particularly on the issue of permanent impairment. Yates first pointed out
that Dr. Salekin was retained solely to provide an independent evaluation and impairment
rating. It also questioned Mr. Rohrenbach’s description of his condition at the time he
saw Dr. Salekin, because he exhibited no pain or reduced range of motion at his last visit
with Dr. Rungee.

       Yates further questioned Dr. Salekin’s competency because he “keeps awful
records.” Yates was referring to an incident during Dr. Salekin’s deposition where
records from another patient were included in his packet of Mr. Rohrenbach’s medical
records. It also questioned whether Dr. Salekin, a neurologist, was a reliable source of an
orthopedic impairment opinion.

        Yates additionally challenged the basis of Dr. Salekin’s rating in the AMA Guides.
He based his rating in part on Mr. Rohrenbach still having pain at the time Dr. Rungee
released him. Yates argued that this is inaccurate and, as a result, Dr. Salekin utilized the
wrong part of the Guides. Dr. Rungee noted Mr. Rohrenbach to be pain-free and had no
objective findings at the time of MMI, which results in no impairment rating. Yates
argued that it was improper for Dr. Salekin to rely on Mr. Rohrenbach’s complaints of
pain five months after that release. It also questioned why, if Mr. Rohrenbach had pain
after returning to work, he never returned to Dr. Rungee for treatment, but went to Dr.
Salekin for an IME.

       In the event the Court were to find Mr. Rohrenbach’s injury to be compensable,
Yates contended that Dr. Rungee’s impairment opinion is more credible than that of Dr.
Salekin, which means Mr. Rohrenbach is not entitled to any permanent disability
benefits. It suggested that the correct beginning date for any temporary disability benefits
would be October 26, 2015, the date Mr. Rohrenbach first saw Dr. Rungee.

      Yates argued Mr. Rohrenbach’s medical bills are not recoverable because Dr.
Rungee did not review any of medical bills he was asked about during his deposition.
Thus, Mr. Rohrenbach has not met his burden of proving the bills were reasonable and
necessary.

                        Findings of Fact and Conclusions of Law

       The following legal principles govern this case. Mr. Rohrenbach has the burden
of proof on all essential elements of his 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). “[A]t a compensation hearing where the injured employee has
arrived at a trial on the merits, the employee must establish by a preponderance of the
evidence that he or she is, in fact, entitled to the requested benefits.” Willis v. All Staff,
No. 2014-05-0005, 2015 TN Wrk. Comp. App. Bd. LEXIS 42, at *18 (Tenn. Workers’

                                              6
Comp. App. Bd. Nov. 9, 2015); see also Tenn. Code Ann. § 50-6-239(c)(6) (2015)
(“[T]he employee shall bear the burden of proving each and every element of the claim
by a preponderance of the evidence.”). In analyzing whether Mr. Rohrenbach met his
burden, the Court will not construe the law remedially or liberally in his favor, but
instead must construe the law fairly, impartially, and in accordance with basic principles
of statutory construction favoring neither Mr. Rohrenbach nor Yates. See Tenn. Code
Ann. § 50-6-116 (2015).

                                     Compensability

        Mr. Rohrenbach’s burden includes proving his injury arose primarily out of and
occurred in the course and scope of his employment. Tenn. Code Ann. § 50-6-102(14)
(2015). To do so, he must show his injury was “caused by a specific incident, or set of
incidents, arising primarily out of and in the course and scope of employment, and is
identifiable by time and place of occurrence.” Tenn. Code Ann. § 50-6-102(14)(A)
(2015). Further, he must show, “to a reasonable degree of medical certainty that it
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).

        Applying these principles to the facts of this case, the Court finds Mr. Rohrenbach
met his burden of establishing a specific incident or set of incidents, identifiable by time
and place of occurrence. He testified, without contradiction, that he performed a highly
repetitive job and, while reaching out and up in the course of that job, he suffered a
sudden onset of pain in his shoulder.

       Turning to the issue of whether the injury arose primarily out of the incident or set
of incidents, as noted above, the medical testimony was contradictory. Dr. Woodall, as
the parties agree, was selected from a panel provided by Yates. Therefore, Tennessee
Code Annotated section 50-6-102(14)(E) (2015) establishes a rebuttable presumption of
correctness for Dr. Woodall’s causation opinion. Longstanding Tennessee caselaw
provides:

       When the medical testimony differs, the trial judge must obviously choose
       which view to believe. In doing so, he is allowed, among other things, to
       consider the qualifications of the experts, the circumstances of their
       examination, the information available to them, and the evaluation of the
       importance of that information by other experts.

Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn. 1991).

       After carefully reviewing the medical testimony, the Court finds the
preponderance of the medical proof is sufficient to overcome the presumption of
correctness attached to Dr. Woodall’s opinion. Although he opined that Mr.

                                             7
Rohrenbach’s condition did not arise primarily out of his employment, Dr. Woodall’s
opinion was somewhat general in nature, and he provided very little individual
justification for his opinion. Instead, he noted that “shoulders as a group are primary
idiopathic and degenerative,” and the “strongest observed factor in the literature for
rotator cuff issues is age.” Other than the fact that Mr. Rohrenbach fell into to the
applicable age bracket, Dr. Woodall did little to explain why Mr. Rohrenbach’s repetitive
work was not the primary cause of his particular injury. This is especially true in light of
his admission that the October 2015 MRI showed little degeneration in Mr. Rohrenbach’s
shoulder. Further, although he testified that the incidence of rotator cuff problems is
increased in people who work for long periods with their arms up above their head or
with outstretched arms, he failed to explain why this risk factor would not apply to Mr.
Rohrenbach, who he acknowledged performed approximately 480 outstretched overhead
movements per day in his work.

       Dr. Rungee’s testimony, while relevant to the issue of causation, was incomplete.
He failed to respond directly to counsel’s question of whether the injury arose primarily
out of Mr. Rohrenbach’s work. Instead, he testified that Mr. Rohrenbach’s description of
his work duties was “consistent with a means of” a rotator cuff tear.

       Dr. Salekin opined that Mr. Rohrenbach’s work-related repetitive activity was the
main and primary cause of the injury to his rotator cuff. Although Yates raised a number
of objections to Dr. Salekin’s testimony, most of those were directed at his impairment
opinion. The objections to his causation opinion were his alleged bias, his competency to
keep proper records, and whether he received an accurate history from Mr. Rohrenbach.

       The Court is not persuaded by these objections and finds that Dr. Rungee’s
testimony effectively mitigates any likelihood of bias by Dr. Salekin. Although Dr.
Rungee’s opinion is, by itself, insufficient to establish legal causation, it still constitutes
the opinion of a treating surgeon that Mr. Rohrenbach’s injury was consistent with the
work duties and event he described. As to the history Mr. Rohrenbach gave Dr. Salekin,
the Court had an opportunity to observe Mr. Rohrenbach as he testified and demonstrated
his problems with shoulder mobility. The Court finds that he appeared steady,
forthcoming, and honest, which characteristics, according to the Tennessee Supreme
Court, are indicia of reliability. See Kelly v. Kelly, 445 S.W.3d 685, 694-695 (Tenn.
2014). Finally, after reading the deposition transcript, the Court is unpersuaded that the
additional medical records found in Dr. Salekin’s file are sufficient to find that his
record-keeping was so deficient as to invalidate his causation opinion, especially as no
proof was presented to show that he failed to review the relevant medical records in
formulating his opinion.

       Yates suggested the history given in APN Dickinson’s notes of Mr. Rohrenbach
“spreading decorative gravel” is indicative of the real cause of his injury. This argument
is unpersuasive. Mr. Rohrenbach and his girlfriend testified credibly at trial that he had

                                              8
not spread any gravel. More importantly, there is no medical opinion that the alleged
gravel spreading was the cause of Mr. Rohrenbach’s rotator cuff tear. This is not
surprising when, on the day he reported the injury, he spent several hours performing his
work without problem before the onset of his symptoms. Further, the record in question
contains the following: “The symptoms are described as varying and intermittent.
Reports improvement with self care [sic] including ice and OTC meds.” These
statements are totally at odds with the undisputed description of an onset of symptoms
followed soon thereafter by a visit to the onsite clinic. This discrepancy raises questions
about the reliability of the notation about gravel spreading.

                             Entitlement to Medical Benefits

        Having found Mr. Rohrenbach sustained a compensable injury, the Court turns to
the issue of entitlement to medical benefits. Under the Workers’ Compensation Law,
“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[.]” Tenn.
Code Ann. § 50-6-204(a)(1)(A) (2015). “The injured employee shall accept the medical
benefits . . . provided that in any case when the employee has suffered an injury and
expressed a need for medical care, the employer shall designate a group of three (3) or
more independent reputable physicians . . . from which the employee shall select one (1)
to be the treating physician.” Tenn. Code Ann. § 50-6-204(a)(3)(A)(i) (2015).

       Although Mr. Rohrenbach chose to treat with Dr. Rungee and expressed
satisfaction with his treatment, he did not seek to have Dr. Rungee designated as his
authorized treating physician. Instead, he requested a panel of physicians. The Court
finds he is entitled to this panel and continued medical treatment, pursuant to section 50-
6-204.

        Regarding Mr. Rohrenbach’s past medical expenses, the only bills submitted were
those from Dr. Rungee’s medical group, Tennessee Orthopedic Alliance. He testified as
to the reasonableness and necessity of Mr. Rohrenbach’s medical treatment generally, but
admitted he had not reviewed any of the bills. (Ex. 3 at 14, 24-25.) Consequently, the
Court has no evidence with which to conclude whether the medical expenses incurred by
Mr. Rohrenbach were made reasonably necessary by his September 14, 2015 injury.
Therefore, while Yates is responsible for paying for any reasonable and necessary
medical treatment Mr. Rohrenbach underwent as a result of his compensable injury, the
Court cannot determine the actual amount of those expenses. Mr. Rohrenbach’s out-of-
pocket deposit to Tennessee Orthopedic Alliance is undisputed and he is entitled to
reimbursement for that expense.




                                            9
                                     Temporary Disability Benefits

       An injured worker is eligible for temporary total disability (TTD) 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. Jones v. Crencor Leasing and Sales,
No. 2015-06-0332, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Tenn. Workers’
Comp. App. Bd. Dec. 11, 2015) (citing Simpson v. Satterfield, 564 S.W.2d 953, 955
(Tenn. 1978)). The only proof submitted regarding a period of total disability was Dr.
Rungee’s testimony that Mr. Rohrenbach would have been completely off work for a
week after his surgery. Thus, it appears the bulk of Mr. Rohrenbach’s temporary
disability claim is actually for temporary partial disability.

        Temporary partial disability benefits, a category of vocational disability distinct
from temporary total disability, are available when the temporary disability is not total.
Id.; see also Tenn. Code Ann. § 50-6-207(1)-(2) (2015). Specifically, “[t]emporary
partial disability refers to the time, if any, during which the injured employee is able to
resume some gainful employment but has not reached maximum recovery.” Id. (citing
Williams v. Saturn Corp., No. M2004-01215-WC-R3-CV, 2005 Tenn. LEXIS 1032, at *6
(Tenn. Workers’ Comp. Panel Nov. 15, 2005)). Thus, in circumstances where the
treating physician has released the injured worker to return to work with restrictions prior
to maximum medical improvement, and the employer either (1) cannot return the
employee to work within the restrictions or (2) cannot provide restricted work for a
sufficient number of hours and/or at a rate of pay equal to or greater than the employee’s
average weekly wage on the date of injury, the injured worker may be eligible for
temporary partial disability. Id.

      Dr. Rungee testified that, during Mr. Rohrenbach’s post-surgical convalescence,
he would have been restricted and unable to perform his regular job. There was no
evidence indicating that Yates offered Mr. Rohrenbach any work within his restrictions
during this time. Thus, he qualified for temporary partial disability benefits until Dr.
Rungee released him at MMI. In combination with the week of total disability, Mr.
Rohrenbach is entitled to temporary disability benefits for the period of December 8,
2015 (the date of his surgery), through February 22, 2016. 2 At the stipulated
compensation rate of $463.99, this constitutes eleven weeks of benefits, or $5103.89.

                                Permanent Partial Disability Benefits

      Permanent Partial Disability benefits are owed when an employee sustains a
permanent impairment from a work injury but is still able to work. “In case of disability
2
 Although Mr. Rohrenbach maintained he was entitled to temporary disability benefits beginning in October 2015,
Dr. Rungee’s records do not address restrictions during that time, and Mr. Rohrenbach offered no medical evidence
of any other temporary disability benefit period.

                                                       10
partial in character but adjudged to be permanent, at the time the injured employee
reaches maximum medical improvement the injured employee shall be paid sixty-six and
two-thirds percent (66 2/3%) of the employee’s average weekly wages for the period of
compensation, which shall be determined by multiplying the employee’s impairment
rating by four hundred fifty (450) weeks.” Tenn. Code Ann. § 506-207(3)(A) (2015).

       As noted above, the Court admitted two medical impairment ratings into evidence
in this case. Both Dr. Rungee and Dr. Salekin used the same table from the AMA
Guides, Table 15-5, when rendering their respective impairment ratings. Mr. Rohrenbach
disputed Dr. Rungee’s conclusion that the AME Guides mandate a zero percent
impairment based upon an absence of symptoms following the surgery. Mr. Rohrenbach
argued this is incorrect because, as soon as he returned to work, his shoulder became
painful and restricted in its range of motion. Yates, on the other hand, argued Dr.
Rungee’s rating was more accurate than that of Dr. Salekin, who based his rating on
complaints of pain five months after MMI.

       The Court shares Yates’ concerns about Mr. Rohrenbach’s failure to return to Dr.
Rungee when his symptoms returned, but is unaware of any authority in the statute, case
law, or AMA Guides that limits the evaluation of an impairment rating solely to the date
of MMI. Further, Yates could have requested Mr. Rohrenbach return to Dr. Rungee for
an examination or asked Dr. Rungee about the propriety of a rating five months after
MMI. Insofar as the Court found Mr. Rohrenbach’s description of his current condition
to be credible, it must find that Dr. Rungee’s rating is improper.

         Turning to Dr. Salekin’s rating, Yates disputes the accuracy of his opinion that Mr.
Rohrenbach retained a 7% upper extremity impairment rating for full thickness rotator
cuff tear and a 5% impairment for Type II acromion and coracoacromial ligament
fraying, resulting in a 7% whole person rating. As a result, the Court carefully reviewed
Dr. Salekin’s deposition and notes that he did not provide any explanation as to why he
felt it was appropriate to include both diagnoses in his rating.

        The AMA Guides provides that “[m]ost impairment values for the upper extremity
are calculated using the diagnosis-based impairment (DBI) method.” Am. Med. Ass’n,
Guides to the Evaluation of Permanent Impairment at 385. This method calls for the
examiner to determine the impairment class, based upon the diagnosis, before modifying
that class using modifiers such as functional history or physical examination. The Guides
specify that, “In most cases only one diagnosis will be appropriate. If a patient has 2
significant diagnoses, for instance, rotator cuff tear and biceps tendonitis, the examiner
should use the diagnosis with the highest causally-related impairment rating for the
impairment calculation.” Id. at 387. Instructions for shoulder evaluation include the
following:

       In the shoulder, it is not uncommon for rotator cuff tears, a superior labrum

                                             11
       from anterior to posterior (SLAP) lesion or other labral lesions, and biceps
       tendon pathology to all be present simultaneously. The evaluator is
       expected to choose the most significant diagnosis and to rate only that
       diagnosis using the DBI method that has been described. If clinical studies
       confirm more than 1 of the following symptomatic diagnoses . . . the grade
       can be modified according to the Clinical Studies Adjustment Table.

Id. at 390.

        Based on the above, the Court concludes that Dr. Salekin incorrectly included Mr.
Rohrenbach’s additional 5% rating for impairment for Type II acromion and
coracoacromial ligament fraying. The Guides mandate that he should have utilized “the
diagnosis with the highest causally-related impairment rating” – the 7% rating for rotator
cuff tear, which converts to a 4% whole person rating. He could perhaps have then
modified that rating according to the Clinical Studies Adjustment Table, but there is no
evidence he did so. The Court therefore adopts his rotator cuff rating and finds Mr.
Rohrenbach suffered 4% impairment to the body from his compensable work-related
injury.

 IT IS, THEREFORE, ORDERED as follows:

   1. Yates shall provide Mr. Rohrenbach with medical treatment made reasonably
      necessary by the September 2, 2014 injury and in accordance with Tennessee
      Code Annotated section 50-6-204 (2015), to be initiated by Employer or its
      workers’ compensation carrier providing Employee with a panel of physicians as
      required by that statute.

   2. Yates shall pay any of Mr. Rohrenbach’s past medical expenses that were made
      reasonably necessary by the September 14, 2015 shoulder injury.

   3. Yates shall reimburse Mr. Rohrenbach for his out-of-pocket medical expenses in
      the amount of $1000.00.

   4. The stipulated compensation rate is $463.99 per week.

   5. Yates shall pay Mr. Rohrenbach temporary total disability and partial disability
      benefits in the amount of $5103.89 for the period from December 8, 2015, through
      February 22, 2016.

   6. Pursuant to Tennessee Code Annotated section 50-6-207(3) (2015), Yates shall
      pay Mr. Rohrenbach $8,351.82 in permanent partial disability benefits, which
      equates to 450 weeks times his impairment rating of 4%.


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   7. The Court further finds Mr. Rohrenbach’s counsel, Russell Thomas, provided
      good and valuable services to Mr. Rohrenbach in pursuit of his claim and is
      therefore entitled to recover a fee of twenty percent of his permanent and
      temporary disability award pursuant to Tennessee Code Annotated section 50-6-
      226 (2015).

   8. Costs of this cause of $150.00 are assessed against Yates pursuant to Tennessee
      Compilation Rules and Regulations 0800-02-21-.07 (2015), to be paid within five
      days of this order becoming final.

   9. Yates shall prepare and file a statistical data form within ten business days of the
      date of this order, pursuant to Tennessee Code Annotated section 50-6-244 (2015).

   10. After a Compensation Hearing Order entered by a Workers’ Compensation Judge
       has become final in accordance with Tennessee Code Annotated section 50-6-
       239(c)(7) (2015), compliance with this Order must occur in accordance with
       Tennessee Code Annotated section 50-6-239(c)(9) (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 fifth
       business day after this Order becomes final or all appeals are exhausted. Failure to
       submit the necessary confirmation within the period of compliance may result in a
       penalty assessment for non-compliance.

      ENTERED this the 1st day of November, 2016.


                                  _____________________________________
                                        Dale Tipps
                                        Workers’ Compensation Judge


Right to Appeal:

      Tennessee Law allows any party who disagrees with this Compensation Hearing
Order to appeal the decision to the Workers’ Compensation Appeals Board or the
Tennessee Supreme Court. To appeal your case to the Workers’ Compensation Appeals
Board, you must:

   1. Complete the enclosed form entitled: “Compensation Hearing Notice of Appeal.”

   2. File the completed form with the Court Clerk within thirty calendar days of the
      date the Workers’ Compensation Judge entered the Compensation Hearing Order.


                                            13
   3. Serve a copy of the Compensation 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 party filing the notice of appeal, 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 fifteen calendar days of the filing
      of the Expedited Hearing Notice of Appeal. Alternatively, the party filing the
      appeal may file a joint statement of the evidence within fifteen calendar days of
      the filing of the Compensation 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. See Tenn. Comp. R. & Regs. 0800-02-22-.03 (2015).

   6. After the Workers’ Compensation Judge approves the record and the Court Clerk
      transmits it to the Workers’ Compensation Appeals Board, the appeal will be
      docketed and assigned to an Appeals Board Judge for review. At that time, a
      docketing notice shall be sent to the parties. Thereafter, the parties have fifteen
      calendar days to submit briefs to the Appeals Board for consideration. See Tenn.
      Comp. R. & Regs. 0800-02-22-.02(3) (2015).

       To appeal your case directly to the Tennessee Supreme Court, the
Compensation Order must be final and you must comply with the Tennessee Rules
of Appellate Procedure. If neither party timely files an appeal with the Appeals
Board, this Order will become final by operation of law thirty calendar days after
entry, pursuant to Tennessee Code Annotated section 50-6-239(c)(7).



                                            14
                                               APPENDIX

Exhibits:
   1. Deposition Transcript of Dr. Gilbert Woodall
   2. Deposition Transcript of Dr. C. M. Salekin
   3. Deposition Transcript of Dr. James Rungee
   4. Stipulated medical records with index
   5. Stipulated exhibits with index
   6. Deposition Transcript of Terry Rohrenbach
   7. Deposition Transcript of Robert Dickinson
   8. Mr. Rohrenbach’s attendance printout

Technical Record:3
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing
   4. Employee’s Pre-trial Brief
   5. Employee’s Amended Pre-trial Brief
   6. Employee’s Brief Supplement
   7. Yates’ Pre-trial Memorandum
   8. Expedited Hearing Order
   9. Initial Hearing Order




3
   The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
Compensation Hearing. The Court considered factual statements in these filings or any attachments to them as
allegations unless established by the evidence.



                                                     15
                            CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Compensation Hearing Order
was sent to the following recipients by the following methods of service on this the 1st
day of November, 2016.

 Name                      Certified    Via         Via    Service sent to:
                            Mail        Fax        Email
 D. Russell Thomas                                  X      russthomas@thethomaslawfirm.co
                                                           m
 John R. Rucker, Jr.                                X      jkropog@ruckerlaw.com




                                   ______________________________________
                                           PENNY SHRUM, COURT CLERK
                                                wc.courtclerk@tn.gov




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