            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD

Robert Watson                                 )   Docket No. 2017-05-0515
                                              )
v.                                            )   State File No. 36534-2017
                                              )
Catlett Construction, et al.                  )
                                              )
                                              )
Appeal from the Court of Workers’             )
Compensation Claims                           )
Dale A. Tipps, Judge                          )

                  Affirmed and Remanded—Filed December 14, 2018

In this second appeal in this case, the employee contends the trial court erred in failing to
consider his medical reports to be sufficient proof of a specific injury, which he alleges
arose out of and in the course and scope of his employment. The trial court determined
the employee had presented insufficient proof to establish he will likely succeed at trial
and denied his request for medical and temporary disability benefits. The employee has
appealed. The employer has asked that we find this appeal frivolous and award
attorney’s fees and costs. We affirm the trial court’s decision, conclude the appeal is not
frivolous, and remand the case.

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

Robert Watson, Spring Hill, Tennessee, employee-appellant, pro se

Michael Haynie, Nashville, Tennessee, for the employer-appellee, Catlett Construction

                           Factual and Procedural Background

       We previously issued an opinion in this case on May 18, 2018, containing the
factual history of the case as follows:

              Robert Watson (“Employee”) began working for Catlett
       Construction (“Employer”) installing windows and doors in 2012. He
       alleged that he suffered injuries to his left shoulder and low back on June
       23, 2016, when he lifted a window and experienced sharp pain.

                                             1
       Employee acknowledged having problems with his left shoulder and
low back prior to going to work for Employer, but he asserted he informed
his supervisor, Joel Catlett, on multiple occasions that he was experiencing
pain and other symptoms as a result of his work. He maintained he told
Mr. Catlett about the June 23, 2016 incident that caused an increase in his
pre-existing symptoms. He testified that Mr. Catlett responded by telling
him he was an independent contractor who was not covered by workers’
compensation and that his problems were the result of normal wear and
tear.

        Mr. Catlett acknowledged that Employee complained of shoulder
and back problems, but he denied that Employee ever expressed a belief
that those problems were related to his employment. Mr. Catlett and
Employee were friends prior to their working relationship, and Mr. Catlett
testified he was aware that Employee had a history of problems with his
shoulder and back and, in fact, wore a back brace and used an ice pack on
his shoulder before Employer hired him. Employer denied being aware
Employee claimed he suffered work-related injuries prior to his termination
in May 2017.

       Employee sought treatment on his own, initially treating with Teresa
Pisani, a physician’s assistant, on June 28, 2016. At that time, he
complained of low back pain that began two days prior. Ms. Pisani noted
that “[p]atient installs windows all day and is literally wearing out his
back[.] [H]e over did [it] at home on Sunday.” Employee returned to Ms.
Pisani approximately one year later on June 8, 2017. At that time, Ms.
Pisani observed that “[s]ince he did not have shoulder and back problems
[prior to starting work for Employer in September 2012], it is likely that
they incurred [sic] secondary to the repetitive lifting and twisting motion
required to install windows and doors.” Employee also saw Dr. John
Klekamp for his back pain in October 2016, and the record of that visit
indicates Employee had a “sharp onset” of back pain approximately one
year previously while installing windows.

        On August 5, 2016, Employee saw Dr. Christopher Stark for his left
shoulder complaints. Dr. Stark noted that Employee reported a “long
history of left shoulder problem[s] going on about a year” as well as a “1-
year history of back problems.” Dr. Stark continued treating Employee for
his left shoulder injury, ultimately performing surgery. On November 12,
2017, Dr. Stark stated that “[t]he injury he had at the time of surgery in
August 2017 does correlate and is related to the work he was performing in
2016.”


                                     2
Watson v. Catlett Constr., No. 2017-05-0515, 2018 TN Wrk. Comp. App. Bd. LEXIS 19,
at *1-4 (Tenn. Workers’ Comp. App. Bd. May 18, 2018) (footnotes omitted).

       Following the first expedited hearing, the trial court determined Employee had
presented sufficient evidence from which the court could conclude he was likely to
prevail at trial in establishing he gave proper notice of his injury. However, the trial court
declined to award medical or temporary disability benefits based on a finding that
Employee had not presented sufficient evidence to establish he was likely to prevail in
showing his injuries arose primarily out of and in the course and scope of his
employment. See Tenn. Code Ann. § 50-6-102(14) (2018). The trial court noted that
Employee had provided inconsistent dates of injury and that his testimony and medical
records did not identify a specific date of injury. Employee appealed that order, which
we affirmed on May 18, 2018.

       At the second expedited hearing, which was a decision on the record, Employee
submitted, without objection from Employer, Standard Form Medical Reports (“C-32
reports”) prepared by Dr. Stark and Dr. Mark Hawkins, Employee’s chiropractor. 1 Dr.
Stark prepared two C-32 reports dated December 4, 2017 and February 28, 2018. 2 On
both reports, in response to an inquiry regarding whether a specific incident or series of
incidents brought about Employee’s injury, Dr. Stark marked “[y]es.” He also indicated
the employment activity was primarily responsible for Employee’s need for treatment.
On the February report, he described the incident as “6/23/16 moving windows/doors”
and noted Employee’s injury was a “[r]otator cuff tear, labral tear, AC joint injury.”

       However, in contrast to Dr. Stark, Dr. Hawkins marked “[n]o” in response to the
inquiry regarding whether a specific incident or series of incidents caused Employee’s
injury. He indicated that the mechanism of injury was “lifting windows.” Dr. Hawkins
also initially marked “[y]es” in response to whether Employee’s injury resulted from an
aggravation of a pre-existing injury, but then marked out his answer and placed a
question mark beside the inquiry. He identified Employee’s injury as “rotator cuff
impingement” and marked “yes” to the inquiry of whether the employment activity was
primarily responsible for Employee’s need for treatment.

       The trial court declined to award medical or temporary disability benefits, finding
that Employee’s proof was still insufficient to establish he was likely to prevail in
showing that he suffered a work-related injury identifiable by time and place of
occurrence. The trial court reasoned that, although the three C-32 reports addressed

1
  The trial court noted Employer filed a notice of objection “pursuant to Tenn. Code Ann. § 50-6-
235(c)(2),” but determined Employer was reserving its right to depose the doctors rather than objecting to
the admissibility of the reports. Employer has not appealed that determination.
2
 The trial observed that, while Dr. Stark dated the second C-32 report February 28, 2017, that appeared to
be a clerical error.
                                                    3
causation, Employee had not submitted evidence establishing that his injury occurred in
the course and scope of his employment. The trial court also noted that the three reports
were the only new evidence submitted and that Employee did not submit additional
records, affidavits, or testimony establishing that he suffered injuries resulting from a
specific incident at work on June 23, 2016. Employee has appealed.

                                    Standard of Review

       The standard we apply in reviewing a trial court’s decision presumes that the
court’s factual findings are correct unless the preponderance of the evidence is otherwise.
See Tenn. Code Ann. § 50-6-239(c)(7) (2018). When the trial judge has had the
opportunity to observe a witness’s demeanor and to hear in-court testimony, we give
considerable deference to factual findings made by the trial court. Madden v. Holland
Grp. of Tenn., Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar
deference need be afforded the trial court’s findings based upon documentary evidence.”
Goodman v. Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at
*6 (Tenn. Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and
application of statutes and regulations are questions of law that are reviewed de novo with
no presumption of correctness afforded the trial court’s conclusions. See Mansell v.
Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are
also mindful of our obligation to construe the workers’ compensation statutes “fairly,
impartially, and in accordance with basic principles of statutory construction” and in a
way that does not favor either the employee or the employer. Tenn. Code Ann. § 50-6-
116 (2018).

                                          Analysis

                                              A.

       Before addressing Employee’s arguments, we address as a preliminary matter
Employer’s assertion that our prior decision, Watson v. Catlett Construction, No. 2017-
05-0515, 2018 TN Wrk. Comp. App. Bd. LEXIS 19 (Tenn. Workers’ Comp. App. Bd.
May 18, 2018), dictates the result here. Employer, relying on the “law of the case”
doctrine, contends Employee is precluded from litigating a second appeal on an issue
decided in his first appeal, i.e., whether he is likely to prove a compensable injury at trial.
We disagree.

        The law of the case doctrine generally prohibits relitigation of issues that have
been decided in a prior appeal of the same case. Memphis Publ’g Co. v. Tenn. Petroleum
Underground Storage Tank Bd., 975 S.W.2d 303, 306 (Tenn. 1998). As such, “an
appellate court’s decision on an issue of law is binding in later trials and appeals of the
same case if the facts on the second trial or appeal are substantially the same as the facts
in the first trial or appeal.” Id. The law of the case doctrine, “which applies to issues that

                                              4
were actually before the appellate court in the first appeal and to issues that were
necessarily decided by implication,” serves several important objectives: the rule
“promotes the finality and efficiency of the judicial process, avoids indefinite relitigation
of the same issue, fosters consistent results in the same litigation, and assures the
obedience of lower courts to the decisions of appellate courts.” Id.

       However, “[w]hile the doctrine of the law of the case can be a useful tool for the
sake of judicial economy and consistency, the doctrine is neither a constitutional mandate
nor a limitation” on a court’s power. State v. Hall, 461 S.W.3d 569, 500 (Tenn. 2015).
“Rather, it is a longstanding discretionary rule of judicial practice which is based on the
common sense recognition that issues previously litigated and decided by a court of
competent jurisdiction ordinarily need not be revisited.” Memphis Publ’g Co., 975
S.W.2d at 306. Because the law of the case principle “is merely a practice to guide the
courts,” it “directs a court’s discretion [but] it does not limit the tribunal’s power.”
Creech v. Addington, 281 S.W.3d 363, 383 (Tenn. 2009).

        In the present case, Employee submitted additional evidence at the second
expedited hearing, from which the trial court’s present expedited hearing order arises.
Employee was not precluded from doing so or from arguing he suffered an injury from a
specific incident, and we are not precluded from reviewing the issue in light of the new
evidence submitted. See Green v. Rogers Grp., No. 2016-04-0085, 2017 TN Wrk. Comp.
App. Bd. LEXIS 34, at *3-4 (Tenn. Workers’ Comp. App. Bd. May 22, 2017). Simply
put, the law of the case doctrine does not apply to these circumstances.

                                             B.

        Turning to the merits of this appeal, Employee asserts the trial court erred in
concluding that the C-32 reports were insufficient to establish he would likely prevail at
trial in proving a work-related injury identifiable by time and place of occurrence. In
response, Employer asks that we find this appeal to be frivolous, asserting Employee
should be sanctioned because he is attempting to relitigate matters already determined in
the prior appeal.

        An injured worker has the burden of proof on every essential element of his or her
claim. Tenn. Code Ann. § 50-6-239(c)(6). However, 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 trial consistent with Tennessee Code
Annotated section 50-6-239(d)(1). 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

                                             5
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).

       Generally, to be compensable, an injury must arise primarily out of and in the
course and scope of employment and must cause death, disablement, or the need for
medical treatment of the employee. Tenn. Code Ann. § 50-6-102(14). An “accidental
injury” is one that is “caused by a specific incident, or set of incidents,” and is
“identifiable by time and place of occurrence.” Tenn. Code Ann. § 50-6-102(14)(A).
Furthermore, “[a]n 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 injury, considering
all causes.” Tenn. Code Ann. § 50-6-102(14)(B). An “accidental” injury generally does
not include the aggravation of a pre-existing condition “unless 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.” Tenn. Code Ann. § 50-6-102(14)(A).

       A key component of the 2013 Workers’ Compensation Reform Act is the
requirement that the injury for which benefits are sought arise “primarily out of and in the
course and scope of the employment.” Tenn. Code Ann. § 50-6-102(14). Traditionally,
courts have held that the statutory requirements that an injury arise out of and in the
course and scope of the employment are not synonymous “although both elements exist
to ensure a work connection to the injury for which the employee seeks benefits.”
Blankenship v. Am. Ordnance Sys., LLC, 164 S.W.3d 350, 354 (Tenn. 2005). An injury
occurs in the course of employment if it takes place while the employee was performing a
duty he or she was employed to perform. Fink v. Caudle, 856 S.W.2d 952, 958 (Tenn.
1993). Thus, the course of employment requirement focuses on the time, place, and
circumstances of the injury. Saylor v. Lakeway Trucking, Inc., 181 S.W.3d 314, 318
(Tenn. 2005).

        Mindful of these principles, the question before us is whether the evidence
preponderates against the trial court’s finding that Employee did not come forward with
sufficient evidence that he suffered an injury on June 23, 2016 in the course of his
employment. The trial court found the C-32 reports were not sufficient to establish
Employee suffered an injury identifiable by time and place of occurrence. The court
pointed out that the only difference between the second expedited hearing and the first
expedited hearing was Employee’s submission of the three C-32 reports. The court noted
that at the first hearing, the medical records and testimony did not support a finding that
he had suffered a specific injury on June 23, 2016. The court concluded that the newly
introduced evidence was still insufficient, noting the various alleged dates of injury and
the lack of any documented medical history identifying a specific incident or set of
incidents.


                                             6
        After reviewing the record, we cannot conclude that the evidence preponderates
against the trial court’s finding that Employee is not likely to prevail in proving he
suffered a work-related injury on a date certain. Rather, and consistent with the trial
court’s findings, Employee’s medical records establish that he reported inconsistent dates
of injury. At a June 28, 2016 doctor’s visit, he complained of back pain, which the
record reflects began two days prior to his visit. Employee’s reported history indicated
he installed windows, which was wearing out his back, as well as his belief that he “over
did” it at home on the Sunday prior to that visit. Moreover, although Employee is correct
that Drs. Stark and Hawkins identified the lifting and moving of windows, respectively,
as the mechanism of his shoulder injury, this alone does not establish the occurrence of a
specific incident on June 23 or a set of incidents identifiable by time and place of
occurrence.

        Additionally, there are inconsistencies in the C-32 forms themselves. Dr. Stark’s
December report lists a specific incident occurring on “6/23/16 moving windows/doors.”
However, Dr. Hawkins’s response indicated there was no specific incident or series of
incidents. In short, aside from Employee’s assertion that the injury occurred at work,
there is nothing in the record establishing Employee’s injuries occurred in the course and
scope of his employment. The evidence does not preponderate against the trial court’s
finding in that regard. 3

                                                   C.

       Employer asks that we find Employee’s appeal to be frivolous and to award
sanctions in the form of attorney’s fees and costs. As we have noted in prior cases, a
frivolous appeal is one that is devoid of merit or brought solely for delay. Yarbrough v.
Protective Servs. Co., Inc., No. 2015-08-0574, 2016 TN Wrk. Comp. App. Bd. LEXIS 3,
at *11 (Tenn. Workers’ Comp. App. Bd. Jan. 25, 2016). In light of the additional
evidence submitted by Employee and considered by the trial court, we do not find this
appeal to be frivolous, and we deny Employer’s request for sanctions pursuant to Tenn.
Comp. R. & Regs. 0800-02-22-.04(6) (2018).

                                             Conclusion

        For the foregoing reasons, we hold that the evidence does not preponderate against
the trial court’s decision. Accordingly, the trial court’s decision is affirmed and the case
is remanded.




3
  Because we affirm the trial court’s conclusion that Employee did not establish he suffered an injury in
the course and scope of his employment, any discussion of whether his injury arose out of his
employment is pretermitted.
                                                   7
                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD

Robert Watson                                                 )     Docket No. 2017-05-0515
                                                              )
v.                                                            )     State File No. 36534-2017
                                                              )
Catlett Construction, et al.                                  )
                                                              )
                                                              )
Appeal from the Court of Workers’                             )
Compensation Claims                                           )
Dale A. Tipps, Judge                                          )

                                       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 14th day of December, 2018.

 Name                              Certified   First Class   Via   Fax      Via     Sent to:
                                   Mail        Mail          Fax   Number   Email

 Robert Watson                                     X                         X      405 Hump Circle
                                                                                    Spring Hill, TN 37174;
                                                                                    robertthumperwatson@gmail.com
 Michael Haynie                                                              X      mhaynie@manierherod.com
 Dale A. Tipps, Judge                                                        X      Via Electronic Mail
 Kenneth M. Switzer, Chief Judge                                             X      Via Electronic Mail
 Penny Shrum, Clerk, Court of                                                X      Penny.Patterson-Shrum@tn.gov
 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: WCAppeals.Clerk@tn.gov
