           TENNESSEE BUREAU OF WORKERS’ COMPENSATION
              WORKERS’ COMPENSATION APPEALS BOARD


Sally A. Lurz                               ) Docket No. 2015-02-0462
                                            )
v.                                          )
                                            ) State File No. 62185-2015
International Paper Company, et al.         )
                                            )
                                            )
Appeal from the Court of Workers’           )
Compensation Claims                         )
Brian K. Addington, Judge                   )


                Affirmed and Certified as Final – Filed February 14, 2018

The employee, a machine operator, reported a fall while working on a production line,
resulting in pain and other symptoms in her right shoulder and right knee. The employer
initially provided a panel of physicians, but later denied the claim, relying on video
evidence from security cameras inside the facility suggesting that the employee was
“guarding” her right upper extremity prior to the alleged work accident and, therefore,
must have injured her shoulder outside of work. Following a review of the video
evidence, the authorized treating physician acknowledged that it “raised questions about
the causality of her injury,” but, despite these misgivings, he opined that the work
accident was, more likely than not, primarily responsible for the shoulder injury and the
need for medical treatment. Following a compensation hearing, the trial court determined
the employee’s claim was compensable and awarded temporary disability benefits,
permanent disability benefits, and medical benefits. The employer has appealed. We
affirm the decision of the trial court and certify the order as final.

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

Mary C. DeCamp, Chattanooga, Tennessee, and J. Matt Drake, Knoxville, Tennessee, for
the employer-appellant, International Paper Company

Jeffrey C. Taylor, Morristown, Tennessee, for the employee-appellee, Sally A. Lurz



                                           1
                          Factual and Procedural Background

       Sally A. Lurz (“Employee”) worked for International Paper Company
(“Employer”) at its manufacturing facility in Hamblen County, Tennessee. On July 30,
2015, Employee was working on a machine called a Jumbo Folder Gluer, which forms
cardboard boxes. As she was attempting to free a unit that had become stuck on the
conveyor line, she fell forward into the box, reportedly striking her right shoulder on the
box and her right knee on the rollers. The incident was unwitnessed. Employee
continued working for another thirty minutes until a scheduled break. At that time, she
informed a co-worker what had happened. She then reported the incident to a supervisor,
Joey Bolinger, and a manager, David Weiss.

        After Employee reported the incident, Employer provided a panel of physicians,
from which Employee selected Dr. Shannon Hancock. Dr. Hancock examined
Employee, ordered x-rays, and referred her to an orthopedic specialist. Thereafter,
Employee selected Dr. Brian Holloway from a panel of orthopedic physicians. Upon
review of an MRI, Dr. Holloway diagnosed a full thickness tear in the right rotator cuff
and recommended surgery. In a September 9, 2015 report, Dr. Holloway opined that
“there is a greater than 50% chance this was related to that injury with that fall. Certainly
it fits her diagnosis, fits her findings on the MRI[,] and fits her clinical and diagnostic
exam.”

        Thereafter, Employer provided Dr. Holloway with excerpts from security camera
footage taken near the time clock on the day prior to, as well as the morning of, the
alleged accident. Dr. Holloway noted that the footage taken on July 29 showed
Employee using both arms, swinging her right arm, using her right arm to open the door,
and using her right arm at the time clock. However, on the morning of July 30, prior to
the alleged accident, the video suggested she was protecting her right arm and not using it
as she had the previous day. In a November 4, 2015 letter, Dr. Holloway commented as
follows:

       [I]t looks like she may have had an injury to that right arm although you
       cannot say [with] any [certainty] when actually the injury occurred but she
       is certainly holding her right arm in a more protected position, using her left
       arm to perform all tasks[,] and she is not swinging that right arm. . . .
       [C]ertainly the tape does show that potentially she could have injured it
       outside work since she does look like she is protecting the arm at the time
       that she checks into work that day. . . . At this point, certainly that does
       raise questions about the causality of her injury.

In his letter, Dr. Holloway reiterated that Employee “does absolutely have a tear in her
rotator cuff” and “[i]t looks like it is probably secondary to an injury or a fall.” He then
indicated his intent to address these issues with Employee.

                                             2
        As a result of Dr. Holloway’s November 4 letter, Employer’s insurer issued a
letter to Dr. Holloway’s office on November 20, 2015, declining to authorize any further
medical treatment for Employee. Nevertheless, Employee underwent surgery to repair
her right rotator cuff on December 22, 2015.

       In a March 11, 2016 report, Dr. Holloway noted that Employee had done
“remarkably well” following the surgery, had no complaints of pain, and wanted to return
to work. Dr. Holloway recommended a strengthening program and released Employee to
return to work with restrictions for two weeks. He placed her at maximum medical
improvement as of that date.

        In response to a letter from Employee’s attorney dated August 31, 2016, Dr.
Holloway indicated that, in his opinion, Employee’s rotator cuff tear was “more likely
than not” the result of her alleged July 30, 2015 work accident. On July 5, 2017, Dr.
Holloway completed a Standard Form Medical Report (Form C-32), on which he
identified Employee’s “fall unjamming conveyor belt” as the “specific incident . . . that
brought about the injury.” He further indicated that this incident caused the need for
medical treatment and that her employment activity was “more likely than not primarily
responsible for the injury or primarily responsible for the need for treatment.” He
assigned a permanent medical impairment rating of 7% to the body as a whole.

       Employer took Dr. Holloway’s deposition to clarify the perceived inconsistencies
regarding his various causation statements. In response to questioning regarding his
causation opinion in light of the additional videos he reviewed during the deposition, Dr.
Holloway responded as follows:

      [W]ell, all I have to go by is the history, you know, and then, of course, the
      tapes throw some doubt in there. But then that’s why this is one of the
      more difficult cases where you have a history, everything fits the history,
      everything the patient says fits her injury and her care, but then you have
      some doubt because . . . that one tape shows some doubt because she’s
      using her other arm in that one instance. So that’s why there is doubt. But
      I guess all I can do as a physician is do the best I can and I think it’s, at
      least within a reasonable degree of medical certainty, it seemed like it
      happened with this fall at work. (Emphasis added.)

On cross-examination, the following colloquy occurred:

      Q.      And as we sit here today, at no time has [Employee] or the
              insurance company for [Employer] or [Employer] ever provided
              you with any history of any other acute injury or cause for this right
              shoulder other than the work-related injury she reported to you, is
              that right?

                                            3
      A.     Yeah. I don’t have any, any other known injury, no.

      Q.     And when you assess the cause of a patient [sic], you say you rely
             upon their history?

      A.     Uh-huh.

      Q.     Did [Employee] ever give you any indication that she was anything
             other than an honest patient?

      A.     I mean, that’s why I confronted her with the tape, you know, because
             the tape . . . does raise some questions . . . . So that’s why I
             confronted her directly and she told me directly that she, that she
             didn’t have any other injury. But, of course, I’m relying on her to
             tell me that, so . . . [.]

Thereafter, Dr. Holloway was asked to confirm information reflected on the Form C-32
regarding the cause of Employee’s shoulder injury:

      Q.     And looking over on the second page, under the [c]ausation section,
             you reviewed that section and completed it, is that right?

      A.     Yes.

      Q.     And it asked you in this context, “more likely than not” and
             “primarily” both carry the meaning of greater than 50 percent, is that
             right?

      A.     That’s correct.

      Q.     And the question was what was the injury and tell us what your
             answer is.

      A.     I thought it was trying to unjam the conveyor belt and it gave way
             and she fell.

      ....

      Q.     Okay. Doctor, even though you have doubt, there’s some doubt that
             you mentioned about this, you don’t, you can’t say . . . with any
             reasonable degree of medical certainty, that [Employee] had a
             shoulder injury prior to this fall, can you?


                                           4
      A.     I can’t . . . for sure.

       During the compensation hearing, Employee was shown the videos and questioned
extensively about them. She denied there was any particular reason for using her right
arm to perform certain tasks on July 29 but using her left arm to perform similar tasks the
morning of July 30. She denied she was “guarding” or “protecting” her right arm the
morning of July 30. She denied any injury to her right shoulder prior to the alleged work
accident. She testified she worked for over five hours the morning of July 30 prior to the
accident and had no difficulty performing her work duties. Other than inferences drawn
from the videos, Employer offered no evidence to contradict this testimony.

        Following trial, the court issued a compensation order finding that Employee was
credible in her testimony, that she suffered a compensable injury, and that she was
entitled to both disability and medical benefits. Employer 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) (2017). 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 (2017).

                                            Analysis

       Employer raises four issues on appeal, three of which can be combined to
challenge the trial court’s determination that Employee satisfied her burden of proving by
a preponderance of the evidence her alleged work injury was the primary cause of her
injury. The other issue concerns whether the trial court erred in not granting Employer’s
“motion for directed verdict” at the close of Employee’s case-in-chief.



                                               5
                                      Motion for Directed Verdict

       Employer argues that the trial court erred in denying its “motion for directed
verdict” following the close of Employee’s case-in-chief. Specifically, it asserts the trial
court based its decision to deny the motion, in part, “on the grounds that the scheduling
order entered by the Court overruled Rule 50 of the Tennessee Rules of Civil Procedure.”

       Following the close of Employee’s case-in-chief, Employer moved the trial court
for a “directed verdict under Rule 50.” After hearing Employer’s initial argument,
Employee’s response, and Employer’s rebuttal, the trial court responded, “[a]t this time
I’m ruling on the motion. . . . [T]he court has to look at the thing as a whole to determine
whether causation has been proven to the satisfaction of the court. So at this time I’m
denying the motion.”

        The trial court then added:

        Also, . . . our initial hearing order or scheduling order, . . . it kind of bucks
        at normal rules like a request for a directed verdict because you typically
        have to wait until the proof has been put on before you ask for something
        like that, but also our scheduling order, though, says motions end at a
        certain date, okay? And we’re past that . . . . So I’m taking that into
        consideration too.

Employer responded by noting that a motion for directed verdict cannot be made until the
close of a case-in-chief pursuant to Rule 50 of the Tennessee Rules of Civil Procedure,
but the trial court reiterated it was denying the motion.

       The applicability of Rule 50 and motions for directed verdict in a non-jury setting
has been the subject of some confusion. The Tennessee Supreme Court addressed this
issue in Building Materials Corp. v. Britt, 211 S.W.3d 706 (Tenn. 2007), where it
explained that, in a non-jury setting, such a motion is not to be treated as a motion for
directed verdict pursuant to Rule 50, but is instead to be considered a motion for
involuntary dismissal under Rule 41.02.1 In that case, the employer moved for a directed
verdict at the close of the employee’s proof. Id. at 710. The trial court treated the motion
as one for involuntary dismissal and granted the motion. Id. The Special Workers’
Compensation Appeals Panel reversed the trial court on a substantive issue and remanded
the case, and the Supreme Court granted review. Id.

1
  Tenn. R. Civ. P. 41.02(2) states, “After the plaintiff in an action tried by the court without a jury has
completed the presentation of plaintiff’s evidence, the defendant, without waiving the right to offer
evidence in the event the motion is not granted, may move for dismissal on the ground that upon the facts
and the law the plaintiff has shown no right to relief. . . . The court as trier of the facts may then determine
them and render judgment against the plaintiff or may decline to render any judgment until the close of all
the evidence.”

                                                       6
      In affirming the decision of the Special Workers’ Compensation Appeals Panel,
the Supreme Court discussed the standard to be applied in these circumstances:

        When a motion to dismiss is made at the close of a plaintiff’s proof in a
        non-jury case, the trial court must impartially weigh the evidence as though
        it were making findings of fact and conclusions of law after all the evidence
        has been presented. If a plaintiff’s case has not been established by a
        preponderance of the evidence, then the case should be dismissed if the
        plaintiff has shown no right to relief on the facts found and the applicable
        law. The standard of review of a trial court’s decision to grant a Rule 41.02
        involuntary dismissal is governed by Rule 13(d) of the Tennessee Rules of
        Appellate Procedure.

Id. at 711 (citations omitted).2

       In the present case, we agree that Employer’s motion, properly characterized as a
motion for involuntary dismissal under Rule 41.02 rather than a motion for directed
verdict under Rule 50, does not fall within the scope of a trial court’s scheduling order.
Such a motion, by definition, cannot be filed until the close of an employee’s case-in-
chief and, therefore, making such a motion during a trial cannot violate a trial court’s
deadlines for the filing of pre-trial motions.

       However, upon close review of the transcript of the compensation hearing, we
conclude the trial court properly ruled on the merits of Employer’s motion for dismissal
before commenting on the potential lateness of the motion. Thus, to the extent the trial
court erred in considering the lateness of the motion as a basis for denying it, such error
was harmless.

                                          Medical Causation

      It is well-settled that the employee in a workers’ compensation claim has the
burden of proof on all essential elements of the claim. Tindall v. Waring Park Ass’n, 725
S.W.2d 935, 937 (Tenn. 1987); 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.

2
  Rule 13(d) of the Tennessee Rules of Appellate Procedure states, “Unless otherwise required by statute,
review of findings of fact by the trial court in civil actions shall be de novo upon the record of the trial
court, accompanied by a presumption of the correctness of the finding, unless the preponderance of the
evidence is otherwise.” Although we are not governed by the Rules of Appellate Procedure, see
Yarbrough v. Protective Services Co., Inc., No. 2015-08-0574, 2016 TN Wrk. Comp. App. Bd. LEXIS 3,
at *12 (Tenn. Workers’ Comp. App. Bd. Jan. 25, 2016), this standard is consistent with the standard we
apply, as mandated by statute. See Tenn. Code Ann. § 50-6-239(c)(7) (“There shall be a presumption that
the findings and conclusions of the workers’ compensation judge are correct, unless the preponderance of
the evidence is otherwise.”).

                                                     7
18, 2015). At trial, the employee must prove eligibility for workers’ compensation
benefits by a preponderance of the evidence. Tenn. Code Ann. § 50-6-239(c)(6). To
satisfy this burden, the worker must prove, more likely than not, that the employment
contributed more than 50% in causing the disablement or need for medical treatment,
considering all causes. Tenn. Code Ann. § 50-6-102(14)(C)-(D) (2017).

       Employer argues that because the authorized physician expressed some doubt as to
the cause of Employee’s injuries, Employee failed to meet her burden of proof at trial.
Employer also characterizes the video footage it offered into evidence as showing
Employee’s “guarded, protective behavior” with respect to her right upper extremity prior
to the alleged work accident. Finally, Employer claims that, once Dr. Holloway had
reviewed all of the video evidence during his deposition, he only opined that the work
accident could have been the cause of her injury, which is insufficient to meet
Employee’s burden of proof on the issue of medical causation.

       Employee disputed Employer’s characterization of the video footage and testified
that she was not “guarding” her right upper extremity prior to the work accident. She
further stated, without contradiction, that she was able to complete her job tasks without
difficulty on the date of the accident for approximately five hours prior to the fall.

       Significantly, even after reviewing the initial video footage and expressing some
doubt as to causation, Dr. Holloway completed a Standard Form Medical Report (Form
C-32) attributing Employee’s injury to the work accident. In his deposition, Dr.
Holloway reiterated these opinions. He acknowledged having some doubt as to
causation, but after reviewing additional video excerpts, he opined that the cause of the
injury was “trying to unjam the conveyor belt.” When asked about Employee’s prior
work activities on the day of the accident, the following colloquy occurred:

      Q.     [Employer is] taking the position that she hurt herself before this
             injury where she claimed. Do you have any evidence or has the
             employer provided you with any evidence that she wasn’t able to do
             the work up to this . . . fall?

      A.     They didn’t.

      Q.     Okay. Doctor, that would be very compelling evidence that she had
             a prior injury, wouldn’t it?

      A.     And I was hoping – when I told them that, I was hoping that they
             would have some information on that.

      Q.     Okay.


                                            8
      A.     If she had been at work all day . . . you would have thought
             somebody would have noticed that she wasn’t using one arm or the
             other.

      Q.     And you haven’t been –

      A.     And I haven’t been, not that I know of, been provided with anything
             that says she was or her supervisor or anyone around her. You
             would think that she would have had trouble if she had been there.

      ....

      Q.     Okay. And so the only competent producing cause that you’re
             aware of as we sit here today for this right rotator cuff tear would be
             the fall at work that she reported?

      A.     That’s what I’ve been going on from the beginning, yes.

        The fallacy in Employer’s argument is that it asks us to reverse the trial court’s
determination based on Employer’s medical interpretation of the video footage. It urges
us to conclude, independent of any expert medical testimony, that Employee’s actions as
depicted in the video footage show that her shoulder was already injured when she
arrived at work on July 30, 2015. Employer offers no evidence of a prior injury.
Moreover, it offers no independent medical proof to contradict Dr. Holloway’s opinions,
but relies instead on Dr. Holloway’s admission that he had “some doubts” as to causation
after reviewing the video footage. We have previously noted that judges are not well-
suited to make independent medical determinations without expert medical testimony
supporting such a determination. See Scott, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at
*8. Likewise, parties and their lawyers cannot rely solely on their own medical
interpretations of the evidence to successfully support their arguments.

       Moreover, as reflected in section 50-6-102(14), a medical expert’s opinion that the
work accident was “more likely than not” at least 50% of the cause of the injury is
sufficient to satisfy an employee’s burden of proof. The law does not require absolute
certainty on the part of the medical expert and allows for the existence of some doubt, as
was reflected in this case. Although Employer showed Dr. Holloway videos that it
contends contradict Employee’s account of how she was injured, Dr. Holloway continued
to reiterate his opinion that, based on the information he had been provided and his
conversations with Employee about the contents of the videos, the injury was primarily
caused by the employment. Employer presented no countervailing medical proof and,
thus, we conclude Employer has not rebutted the presumption of correctness to which Dr.
Holloway’s opinions are entitled.


                                            9
       Finally, the law is clear that “[w]hen the trial court has heard in-court testimony,
considerable deference must be afforded in reviewing the trial court’s findings of
credibility and assessment of the weight to be given to that testimony.” Tryon v. Saturn
Corp., 254 S.W.3d 321, 327 (Tenn. 2008); see also Love v. Delta Faucet Co., No. 2015-
07-0195, 2016 TN Wrk. Comp. App. Bd. LEXIS 45, at *17 (Tenn. Workers’ Comp. App.
Bd. Sept. 19, 2016). The trial court found Employee to be credible, and the evidence
does not preponderate otherwise.

       In short, although Employer presented evidence to cast some doubt on Employee’s
claim, Dr. Holloway’s testimony ultimately satisfied Employee’s burden of proof on the
causation issue. Thus, we conclude the preponderance of the evidence supports the trial
court’s determination on this issue.

                                       Conclusion

     We affirm the determination of the trial court in all respects and certify the
compensation order as final.




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

Sally A. Lurz                                              )   Docket No. 2015-02-0462
                                                           )
v.                                                         )   State File No. 62185-2015
                                                           )
International Paper Company, et al.                        )


                                     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 February, 2018.
 Name                    Certified   First   Class   Via   Fax      Via     Email Address
                         Mail        Mail            Fax   Number   Email

 Jeffrey C. Taylor                                                     X    jeff@taylorlawfirmtn.com
 J. Matt Drake                                                         X    matt.drake@leitnerfirm.com
 Brian K. Addington,                                                   X    Via Electronic Mail
 Judge
 Kenneth M. Switzer,                                                   X    Via Electronic Mail
 Chief Judge
 Penny Shrum, Clerk,                                                   X    Penny.Patterson-Shrum@tn.gov
 Court of Workers’
 Compensation Claims




Jeanette Baird
Deputy Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-0064
Electronic Mail: WCAppeals.Clerk@tn.gov
