                                                                                        FILED
                                                                                  December 3, 2015
                                                                                       TENNESSEE
                                                                                  WORKERS' COMPENSATION
                                                                                     APPEALS BOARD

                                                                                      Time: 1:04 P.M.



             TENNESSEE BUREAU OF WORKERS' COMPENSATION
                WORKERS' COMPENSATION APPEALS BOARD


Jared Shannon                                )   Docket No. 2015-06-0052
                                             )
v.                                           )
                                             )   State File No. 88045-2014
United Parcel Service, Inc.                  )
                                             )
                                             )
Appeal from the Court of Workers'            )
Compensation Claims                          )
Kenneth M. Switzer, Chief Judge              )


                     Affirmed and Remanded- December 3, 2015


The employee alleged that he suffered right shoulder pain at work while attempting to
loosen packages that were jammed on a conveyor belt. The employer acknowledged that
the employee reported the incident on or about the date of its occurrence, but asserted that
he attributed his pain to a prior injury and elected not to report the incident as a work-
related accident. No panel of physicians was given and the employee sought treatment
on his own. After undergoing surgery and receiving an opinion from his physician that
his condition was not work-related, the employee sought a panel of physicians from the
employer. The employer refused the request for a panel and denied the claim. Following
an expedited hearing, the trial court issued an interlocutory order, concluding that the
employee provided proper notice of the alleged work injury but had not come forward
with sufficient evidence supporting his claim for medical benefits. Upon a careful review
of the record, we affirm.

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

Julie A. Reasonover, Nashville, Tennessee, for the employee-appellant, Jared Shannon

David Hooper, Brentwood, Tennessee, for the employer-appellee, United Parcel Service,
Inc.


                                             1
                             Factual and Procedural Background

       The employee, Jared Shannon ("Employee"), a twenty-four-year-old resident of
Davidson County, Tennessee, was employed by United Parcel Service, Inc.
("Employer"), as an Outbound Operations Supervisor. On July 31, 2014, he was clearing
a package jam from a conveyor belt when a package caught his right arm and jerked him
back. He experienced pain in his right shoulder. Employee testified that he immediately
notified a colleague, Chase Campbell, who was filling in for Employee's usual
supervisor, Joe Paul Tackett. After his shift, he sought treatment at Skyline Medical
Center ("Skyline"), where x-rays were taken and his right arm was placed in a sling.

       Employee testified that after returning to work following the accident, Lindiwee
Phipps, a safety supervisor, asked him why he was wearing a sling. He reported to Ms.
Phipps what had occurred. He also discussed the incident with other supervisors,
including Mr. Tackett, Leonard Wall, and Eric Ingalls. At the expedited hearing, the
parties offered conflicting testimony regarding these conversations. Employee testified
that he reported a work injury and was instructed by multiple supervisors at different
times to seek short term disability benefits and medical benefits through his group health
insurance. Mr. Wall testified, on the other hand, that he specifically asked Employee
whether he suffered a work-related injury and Employee replied, "[i]t's not a work-
related injury. We don't need to call it in." Mr. Wall further stated that Employee related
his pain to a previous motor vehicle accident and that the pain he experienced while
working on July 31 was a "residual effect" of that accident. Employee denied he ever
told any supervisor that his pain was related to a motor vehicle accident. While he
acknowledged the occurrence of a motor vehicle accident in May 2013, he denied
                                                                                          1
suffering any type of injury or symptoms related to his right shoulder as a result.
Employer did not provide Employee a panel of physicians.

       Pursuant to a referral from emergency room personnel at Skyline, Employee
sought treatment at The Hand Care Center and was initially evaluated by physician's
assistant Jeff Tinker. Mr. Tinker's August 13, 2014 report indicated that Employee
reported, "he injured his right shoulder at work 3 months ago. He states that he reached
for a box on a conveyor belt, and his right arm was pulled backwards." Employee denied
that he told Mr. Tinker or other personnel at The Hand Care Center that the injury
happened three months prior to the visit. An August 18, 20 14 MRI of the right shoulder
revealed arthritic changes "most typically seen in the setting of repetitive use
trauma/injury, typically weightlifting."


1
  The record contains inconsistent evidence concerning when the motor vehicle accident occurred.
Employee testified that it occurred on May 13, 2013, while Mr. Tinker's August 19, 2014 report and Dr.
Haslam's October 1, 2014 report reflect that the motor vehicle accident happened "3 months ago."
Neither the written statements submitted by Mr. Ingalls and Mr. Wall nor Mr. Wall's testimony include
any reference to when the motor vehicle accident purportedly occurred.
                                                  2
       Employee eventually came under the care of Dr. James Haslam at The Hand Care
Center. Dr. Haslam's October 1, 2014 report indicated that Employee reported
experiencing a right shoulder injury "from an MVA 3 months ago." Employee denied
making any such statement. Dr. Haslam recommended a distal clavicle excision, which
was performed on October 21, 2014. In the operative report, the pre-operative diagnosis
was "degenerative joint disease" and the post-operative diagnosis was "right shoulder os
acromial e."

        In a report dated January 6, 2015, Dr. Haslam evaluated Employee's post-surgical
status and commented, "[i]t is my opinion that this is not a work-related injury given his
                                   2
initial intake form and history. " This is the only expert medical causation opinion
offered into evidence by either party.

       On February 5, 2015, Employee filed a Petition for Benefit Determination, seeking
an order for a panel of physicians. Following unsuccessful mediation efforts, a Dispute
Certification Notice was filed on March 31, 2015, listing "Medical Benefits" as a
disputed issue. The Dispute Certification Checklist also indicated that compensability of
the claim, Employee's alleged preexisting condition, and notice were disputed issues.
Employee then filed a Request for Expedited Hearing and the court conducted an
evidentiary hearing on October 14, 2015. On October 19, 2015, the court issued an
Expedited Hearing Order Denying Medical Benefits, finding that, although Employee
gave proper notice of a work-related accident, he had not come forward with sufficient
evidence from which the trial court could conclude that he would likely prevail at a
hearing on the merits with respect to the issue of medical causation. Employee filed a
notice of appeal, and the record was received by the Clerk of the Workers' Compensation
Appeals Board on November 24, 2015.

                                           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:

          (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;

2
    The initial intake form from Dr. Haslam's office was not admitted into evidence.
                                                      3
       (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). Like other courts applying the standards
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

       In general, an employee bears the burden of proof on all prima facie elements of
his or her workers' compensation claim. Tenn. Code Ann. § 50-6-239(c)(6); see also
Buchanan v. Carlex Glass Co., No. 2015-01-0012, 2015 1N Wrk. Comp. App. Bd.
LEXIS 39, at *5 (Tenn. Workers' Comp. App. Bd. Sept. 29, 2015). At an expedited
hearing, however, 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)(1) (2014).
McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 1N 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, 2015 1N
Wrk. Comp. App. Bd. LEXIS 39, at *6.

        In his brief on appeal, Employee argues that he met two criteria establishing his
entitlement to a panel of physicians: (1) that he sustained an injury arising primarily out
of and in the course and scope of employment and (2) that he provided proper notice of
the accident to Employer. With respect to the issue of notice, the trial court rejected
Employer's argument that Employee's report of pain while performing work activities
was insufficient notice of a work-related accident. In reviewing the testimony in this
case, we find it incongruous for Employer to communicate to its employees that "no
injury is too small to report," yet take the position that Employee's specific report of pain
in his right shoulder while clearing a jam on a conveyor belt was insufficient to constitute
notice of a work accident. Thus, we affirm the trial court's finding that proper notice of a
work accident was given.

       However, with respect to Employee's argument that he has come forward with
sufficient evidence of an injury arising primarily out of and in the course and scope of
employment, we agree with the trial court that Employee has not met his burden at this
interlocutory stage. The statute provides that an injury '"arises primarily out of and in the
course and scope of employment' only if it has been shown by a preponderance of the
evidence that the employment contributed more than fifty percent (50%) in causing the

                                             4
injury, considering all causes." Tenn. Code Ann. § 50-6-102(14)(B) (2015) (emphasis
added). At the expedited hearing, Employee had the burden to come forward with
sufficient evidence from which the trial court could conclude that Employee is likely to
prove his medical condition, identified as "right shoulder os acromiale," arose primarily
from the work accident of July 31, 2014. The expert medical opinion included in the
record is contrary to Employee's position on this issue. Thus, the evidence does not
preponderate against the trial court's determination that Employee is not likely to prevail
at a hearing on the merits based on the evidence submitted.

                                        Conclusion

       We find that the trial court's order does not violate any of the standards identified
in Tennessee Code Annotated section 50-6-217(a)(3) (2015). Therefore, the order is
affirmed and the case is remanded to the trial court for any further proceedings that may
be necessary.



                                                 Timo hY. . Conner, Judge
                                                 Workers' Compensation Appeals Board




                                             5
                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD

Jared Shannon                                            )   Docket No. 2015-06-0052
                                                         )
v.                                                       )
                                                         )    State File No. 88045-2014
United Parcel Service, 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 3rd day of December, 2015.
 Name                    Certified   First Class   Via   Fax       Via     Email Address
                         Mail        Mail          Fax   Number    Email

 Julie Reasonover                                                     X    Julie@jstillman.com
 David Hooper                                                         X    dhooper@hooperzinn.com
 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
