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

ROBERT WATSON,                                    )   Docket No. 2017-05-0515
         Employee,                                )
v.                                                )
CATLETT CONSTRUCTION,                             )   State File No. 36534-2017
         Employer,                                )
and                                               )
AUTO OWNERS INS. CO.,                             )   Judge Dale Tipps
         Carrier.                                 )


                              EXPEDITED HEARING ORDER
                                  DENYING BENEFITS
                               (DECISION ON THE RECORD)


        This matter came before the Court on September 17, 2018, for an Expedited
Hearing. The present focus of this case is whether Mr. Watson is entitled to medical
treatment and temporary disability benefits for his alleged back and left shoulder injuries.
The central legal issue is whether he is likely to establish at a hearing on the merits that
his injuries arose primarily out of and in the course and scope of his employment. For the
reasons below, the Court holds Mr. Watson failed to do so and is not entitled to benefits
at this time.

                                        History of Claim

       This is Mr. Watson’s second Expedited Hearing. Following the first Expedited
Hearing, the Court issued an order denying the requested benefits on February 26, 2018.1
The Court found that Mr. Watson would likely prevail at a hearing on the issues of notice
and statute of limitations, but that he was unlikely to prove that his condition arose
primarily out of and in the course and scope of his employment. Specifically, the Court
found that Mr. Watson’s medical records did not support his contention that he suffered a

1
 The Court summarized the full history of Mr. Watson’s injury and medical treatment in its prior order
and finds it unnecessary to repeat that summary here.
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discrete, identifiable injury on June 23, 2016. Therefore, he was not likely to prove his
injury arose in the course and scope of his job. On the “arising primarily out of
employment” element, the Court also found Mr. Watson’s medical proof insufficient to
establish a likelihood of success at a hearing on the merits.

       Mr. Watson appealed the Order. The Workers’ Compensation Appeals Board
affirmed.

       Afterward, Mr. Watson filed this Request for Expedited Hearing (REH) seeking a
decision on the record and filed three C-32 forms in support of his renewed REH.2 The
Court issued a Docketing Notice identifying the documents it received for review and
providing the parties an opportunity to file objections to the admissibility of any of those
documents. Neither party filed an objection, and the Court took up the hearing request on
September 17. 3

        Dr. Christopher Stark completed his first C-32 on December 4, 2017. His
description of the injury was simply, “shoulder,” and he identified a specific incident that
brought about the injury as, “6/23/26 moving windows/doors.” Dr. Stark then checked
the “yes” box next to the question, “Was the employment activity, more likely than not,
primarily responsible for the injury or primarily responsible for the need for treatment?”
He went on to indicate that the injury did not “involve the aggravation of a pre-existing
injury.”

        Dr. Stark signed a second C-32 on February 28, 2018.4 This time, his description
of the injury was, “Rotator cuff tear, labral tear, A-C joint injury.” His description of the
incident was now, “Injury June, 2016.” Dr. Stark also changed his previous opinion by
checking “yes” to indicate that the “injury involve[d] the aggravation of a pre-existing
injury.” He also stated the employment activity was primarily responsible for advancing
the pre-existing condition and was primarily responsible for the present need for
treatment.

       The third C-32 comes from Dr. Mark Hawkins, Mr. Watson’s chiropractor of
several years. He described the injury as “rotator cuff impingement” and the mechanism
of injury as “lifting windows.” In response to the question, “Was there a specific incident

2
  Mr. Watson filed two of these forms in the first Expedited Hearing. Catlett objected, and the Court
excluded them, finding that they did not comply with the provisions of Tennessee Code Annotated
section 50-6-235.
3
  Catlett filed a Notice of Objection to the Standard Form Medical Reports when Mr. Watson filed them
but included no grounds for that objection other than, “pursuant to Tenn. Code Ann. § 50-6-235(c)(2).”
The Court therefore interprets this filing as Catlett preserving its right to depose the doctors who
completed the C-32s. As Catlett stated no other grounds and filed no objection after the Docketing
Notice, the Court finds that they are admissible for this Expedited Hearing.
4
  The date on the form actually gives 2017 as the year, but this appears to be a clerical error.
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or set of incidents identified that brought about the injury,” Dr. Hawkins checked “no.”
To the “aggravation of a pre-existing injury” question, he checked “yes” but then put a
question mark next to his response, wrote an explanation, and then crossed the
explanation out. Dr. Hawkins also responded that the employment activity was primarily
responsible for advancing the pre-existing condition and was primarily responsible for
the present need for treatment.

                       Findings of Fact and Conclusions of Law

       Mr. Watson need not prove every element of his claim by a preponderance of the
evidence in order to obtain relief at an expedited hearing. Instead, he must come forward
with sufficient evidence from which this Court might determine he is likely to prevail at a
hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1) (2017); McCord v.
Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Mar. 27, 2015). To prove a compensable injury, Mr. Watson must show that his alleged
injuries arose primarily out of and in the course and scope of his employment. To do so,
he must show his injury arose primarily out of a work-related incident, or specific set of
incidents, identifiable by time and place of occurrence. See Tenn. Code Ann. § 50-6-
102(14). Applying these principles, the Court cannot find that Mr. Watson would likely
to meet his burden of proof at a hearing on the merits.

        At the first expedited hearing, the Court found that Mr. Watson would be unlikely
to prove at a hearing on the merits that his injury occurred in the course and scope of his
employment. The Court reached this conclusion because Mr. Watson’s medical records
and testimony did not support his contention that he suffered a discrete, identifiable
injury on June 23, 2016. Specifically, the medical records provided inconsistent dates of
injury, and no medical history mentioned the incident that allegedly caused his conditions
until seven months after they occurred.

       As noted above, the only new evidence submitted to the Court for this REH is the
three C-32s. The forms address medical causation, which relates to whether the injury
arose primarily out of his employment. Thus, Mr. Watson provided no additional
medical records, affidavits, or testimony in support of his claim that he suffered a specific
work related injury on June 23, 2016. The evidence, therefore, is still insufficient to find
that Mr. Watson would likely succeed in proving at a hearing on the merits that he
suffered a work related injury “identifiable by time and place of occurrence.”

        Because Mr. Watson failed to establish a likelihood of proving an injury occurring
in the course of his employment, the Court need not address whether the additional C-32s
are likely to meet the “arising primarily out of” requirement.




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IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Watson’s claim against Catlett Construction and its workers’ compensation
      carrier for the requested medical and temporary disability benefits is denied at this
      time.

   2. The Scheduling Order of June 14, 2018, remains in effect.

      ENTERED this the 20th day of September, 2018.



                                  _____________________________________
                                  Judge Dale Tipps
                                  Court of Workers’ Compensation Claims



                                      APPENDIX

Exhibits:
   1. All exhibits identified in the Court’s February 26, 2018 Expedited Hearing Order
   2. C-32 Form of Dr. Christopher Stark dated December 4, 2017
   3. C-32 Form of Dr. Christopher Stark dated February 28, 2017
   4. C-32 Form of Mark Hawkins, D.C. dated December 3, 2017

Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing
   4. Parties’ Pre-Hearing Statements
   5. Catlett’s Exhibit and Witness Lists
   6. Catlett’s Objections to C-32 Forms
   7. Second Request for Expedited Hearing
   8. Catlett’s Second Objections to C-32 Forms




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                            CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 20th day
of September, 2018.

 Name                     Certified   Fax       Email Service sent to:
                           Mail
 Robert Watson               X                   X     405 Hump Circle
                                                       Spring Hill, TN 37174
                                                       robertthumperwatson@gmail.com
 Michael Haynie,                                 X     mhaynie@manierherod.com
 Employer’s Attorney



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




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