            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD

Samuel Panzarella                              ) Docket No. 2015-01-0383
                                               )
v.                                             ) State File No. 79681-2015
                                               )
Amazon.com, Inc., et al.                       )
                                               )
                                               )
Appeal from the Court of Workers’              )
Compensation Claims                            )
Audrey A. Headrick, Judge                      )


                    Vacated and Remanded - Filed January 18, 2017


In this appeal, the employer challenges the trial court’s decision to treat the proceeding
before it as an expedited hearing rather than a trial on the merits. It also disputes the trial
court’s determination that the employee would likely prevail at a hearing on the merits in
establishing that his injury arose primarily from a hazard incident to his employment, and
it disputes the court’s award of medical and temporary disability benefits. The employer
denied the claim, contending the employee’s injury was idiopathic. Following a trial on
the merits, the court determined that, because the employee was not at maximum medical
improvement, the trial would be treated as an expedited hearing pursuant to Tennessee
Code Annotated section 50-6-239(d). The court found the employee was likely to prevail
at a hearing on the merits and awarded medical and temporary disability benefits. The
employer has appealed. We vacate the trial court’s decision and remand the case for the
trial court’s determination of the benefits, if any, to which the employee is entitled based
upon the proof presented at the trial on the merits.

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

W. Troy Hart, Knoxville, Tennessee, for the employer-appellant, Amazon.com, Inc.

Robert A. Wharton, Jr., Chattanooga, Tennessee, for the employee-appellee, Samuel
Panzarella



                                              1
                          Factual and Procedural Background

       Samuel Panzarella (“Employee”) alleged that he suffered an injury to his left knee
arising primarily out of and occurring in the course of his employment with
Amazon.com, Inc. (“Employer”). He alleged that while he was working third shift on the
night of August 20-21, 2015, he bent down to pick up a piece of paper from the floor and
twisted his knee, causing him to fall to his knees with his left knee hitting the floor before
his right knee. He reported the injury immediately and sought first aid at AmCare,
Employer’s on-site clinic. In a Non-Occupational Complaint Report Employee
completed at AmCare, he stated the reason for his visit was “muscle spasms in calf that
radiate to behind the knee, caused loss of balance two times.”

        The following morning, Employee sought treatment from his primary care
provider, a physician’s assistant at Fast Access Healthcare. He complained of left leg and
knee pain that began at work. He reported that he had chronic pain in his right ankle and
that “compensating on [his left] leg [] caused a fall onto [his left] knee.” After four visits
with the physician’s assistant, an MRI was obtained that indicated a possible meniscal
injury, and on September 22, 2015, the physician’s assistant referred Employee for an
orthopedic evaluation. Although the record is unclear as to Employee’s selection of a
panel physician, it appears that Employee chose Dr. Barry Vaughn from a panel given to
him verbally while on a conference call with his attorney and Employer’s insurance
carrier.

       Employee saw Dr. Vaughn on November 24, 2015.                The report of the visit
includes the following:

       Patient reports leaning forward to pick up a piece of paper at work. When
       he twisted his left knee, he felt a tearing sensation in the posteromedial
       aspect. His knee then gave way and he fell onto the knee applying a valgus
       stress to the knee. He has had left knee pain with swelling, popping and
       giving way since the injury. He was seen by his primary care physician . . .
       [and] also had MRI. Exam is auspicious for medial meniscus tear as well
       as MCL sprain.

Dr. Vaughn recommended surgery, but Employer authorized no additional medical care.
On January 22, 2016, Employer denied the claim, asserting that Employee’s injury was
idiopathic.

        Employee filed a petition for benefit determination on November 6, 2015. At an
initial hearing on February 1, 2016, the parties advised the court that Employee was
seeking medical and temporary disability benefits and that the case was, therefore, not



                                              2
ready for setting deadlines typically included in initial hearing orders.1 Nonetheless, in
an order entered on February 4, 2016, the parties agreed to specific scheduling dates,
including a February 5, 2016 date for Employee to “file a Request for Expedited Hearing
form contemporaneously with a signed affidavit.” The order stated that “[c]ontingent
upon [Employee] timely filing a Request for Expedited Hearing, the parties agreed to
schedule an Expedited Hearing in this matter.” It set the expedited hearing for April 27,
2016, and included specific discovery deadlines in anticipation of that hearing.

       On April 5, 2016, Employer requested a status conference, as Employee had not
filed a request for an expedited hearing and had not responded to discovery within the
timeframes as previously ordered. On April 6, 2016, the court issued an order scheduling
an initial hearing on April 27, 2016, the date that the expedited hearing had previously
been set, noting that Employee’s counsel did not “want an expedited hearing” and that
Employee “violated the Agreed Order entered . . . on February 4, 2016” by failing to file
a request for expedited hearing. The court’s April 6, 2016 order additionally noted
Employee’s “readiness to proceed with a ‘real trial.’” On May 2, 2016, an initial hearing
order was issued scheduling the case for a trial on the merits on July 28, 2016. The order
additionally established dates by which the parties were to complete discovery and
various procedural matters.

        On July 5, 2016, the trial court amended the initial hearing order, observing that
Employee’s attorney had requested the July 28, 2016 trial be postponed due to family
circumstances. The order rescheduled the trial for September 20, 2016, and noted the
parties’ agreement to depose Dr. Vaughn on July 13, 2016 and to participate in mediation
by August 19, 2016. In addition, the order provided that pre-hearing statements would be
filed on or before September 6, 2016. On September 19, 2016, the trial court issued an
order cancelling the September 20, 2016 trial due to Employee’s failure to file the
documents required by the court’s previous orders that were necessary to proceed with a
trial. Ultimately, a trial was held on October 28, 2016. On November 23, 2016, the trial
court issued an expedited hearing order finding that “the disputed issue of permanent
partial disability is not ripe for decision and, therefore, [the court] cannot enter a final
order resolving all disputed issues.” The court determined that “[b]ecause the evidence
submitted at the hearing did not address the permanency of [Employee’s] injury, the
Court cannot consider the October 28 hearing to be a Compensation Hearing.” The court

1
  At the time of the February 1, 2016 initial hearing, the Bureau’s regulations addressing Mediation and
Hearing Procedures defined initial hearing as follows: “With the exception of a hearing of temporary
disability or medical benefit issues conducted on an expedited basis, an initial hearing shall be the first
hearing before a workers’ compensation judge where the judge will consider issues related to the efficient
processing of the case.” Tenn. Comp. R. & Regs. 0800-02-21-.02(15) (2015). November 2016 revisions
to the regulations no longer defined “initial hearing,” but instead defined “scheduling hearing” as follows:
“With the exception of an expedited hearing, a scheduling hearing shall be the first hearing before a
workers’ compensation judge where the judge will consider issues related to the efficient processing of
the case.” Tenn. Comp. R. & Regs. 0800-02-21-.02(20) (2016).

                                                     3
also determined that Employee was likely to prevail at a hearing on the merits in
establishing he suffered a compensable injury and awarded temporary disability and
medical benefits.

        Employer has appealed, arguing the trial court erred in treating the October 28 trial
as an expedited hearing and in awarding benefits. For the reasons that follow, we vacate
the trial court’s November 23, 2016 expedited hearing order and remand the case for the
trial court’s determination of the benefits due Employee, if any, based on the proof
presented at the October 28 trial on the merits. Our resolution of this issue pretermits all
other issues raised in the appeal.

                                   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) (2015). The trial court’s
decision may be reversed or modified if 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; or
       (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).

                                         Analysis

        Tennessee Code Annotated section 50-6-239 provides the mechanism by which
workers’ compensation judges conduct hearings and issue orders awarding or denying
benefits. Section 50-6-239(c)(6) specifies that “the employee shall bear the burden of
proving each and every element of the claim by a preponderance of the evidence.” By
contrast, at expedited hearings addressing “disputes over issues provided in the dispute
certification notice concerning the provision of temporary disability or medical benefits,”
a judge may award such benefits “upon determining that the injured employee would
likely prevail at a hearing on the merits.” Tenn. Code Ann. § 50-6-239(d)(1) (2015).

     We first addressed these differing burdens of proof in McCord v. Advantage
Human Resourcing, where we stated,

                                             4
       Thus, subsection 239(d)(1) establishes a different standard of proof for the
       issuance of interlocutory orders at expedited hearings than the standard of
       proof required at compensation hearings. Contrary to Employer’s position,
       an employee need not prove every element of his or her claim by a
       preponderance of the evidence in order to obtain relief at an expedited
       hearing. Instead, as reflected in the plain language of subsection 239(d)(1),
       the judge may issue an interlocutory order upon determining that the
       employee would likely prevail at a hearing on the merits.

McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Work. Comp.
App. Bd. LEXIS 6, at *7-8 (Tenn. Workers’ Comp. App. Bd. Mar. 27, 2015). We held in
McCord that “an employee need not prove each and every element of his or her claim by
a preponderance of the evidence at an expedited hearing to be entitled to temporary
disability or medical benefits, but must instead present evidence sufficient for the trial
court to conclude that the employee would likely prevail at a hearing on the merits.” Id.
at *9. We subsequently described the burden of proof on an employee in an expedited
hearing as a “lesser evidentiary standard.” 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).

       Here, following a full evidentiary hearing on the merits, the trial court concluded
that “[b]ecause the evidence submitted at the hearing did not address the permanency of
[Employee’s] injury, the Court cannot consider the October 28 hearing to be a
Compensation Hearing.”2 However, at the outset of the trial the judge read aloud the
parties’ stipulations, including the stipulation that “[t]he employee has not reached the
maximum level of medical improvement.” The trial judge asked the parties, “[d]oes that
sound accurate to everyone,” and both parties responded affirmatively. By determining
after the trial had concluded that it would “treat the hearing as an expedited, or
interlocutory, hearing pursuant to Tennessee Code Annotated section 50-6-239,” the
court effectively lessened Employee’s burden of proof. Thus, Employee was able to
avoid the mandate of section 50-6-239(c)(6) that “at a hearing the employee shall bear the
burden of proving each and every element of the claim by a preponderance of the
evidence.” It is clear from the record that the parties requested a trial on the merits and
participated in the October 28, 2016 hearing believing it to be a trial on the merits at
which Employee would be required to prove the essential elements of his claim by a
preponderance of the evidence. When the case was tried, the parties were unaware that
Employee would not be required to prove his case by a preponderance of the evidence.
Employer asserts that its strategy at trial differed from the strategy it would have

2
  “Compensation Order” is defined as “an order by a workers’ compensation judge following conclusion
of a full evidentiary hearing or a decision on the record . . . .” Tenn. Comp. R. & Regs. 0800-02-21-
.02(7) (2016).

                                                 5
employed at an expedited hearing. Employer’s legitimate belief that it was participating
in a trial on the merits could reasonably have been a factor in its decision not to present
witnesses or affidavits that it might have presented at an expedited hearing.

        We agree with Employer that the trial court did not have the discretion following a
trial on the merits to treat the proceeding as an expedited hearing, and that Employer was
prejudiced by the trial court’s decision to do so after the fact. Due to its post-trial
decision to treat the proceeding as an expedited hearing and not a trial on the merits, the
trial court did not address whether Employee met his burden of proving by a
preponderance of the evidence “each and every element of the claim.” It is not for us, in
the first instance, to determine the benefits due Employee, if any, based upon the
evidence presented at the trial. See Fritts v. Anderson Cty. Election Comm’n., No.
E2003-00015-COA-R3-CV & No. E2002-03118-COA-R3-CV, 2003 Tenn. App. LEXIS
564, at *8 (Tenn. Ct. App. Aug. 11, 2003) (“It is inappropriate for this Court to assume
the role of original fact finder, even if the factual record appeared complete.”).
Accordingly, we must vacate the trial court’s order and remand the matter for the trial
court to determine the benefits due Employee, if any, based upon the evidence presented
at the October 28, 2016 trial.3

                                             Conclusion

       For the foregoing reasons, we vacate the trial court’s order and remand the case
for the determination of the benefits due Employee, if any, based upon the evidence
presented at the October 28, 2016 trial.




3
  On January 10, 2017, Employer filed a motion requesting that the record on appeal be supplemented
with several pages of the trial transcript that were inadvertently omitted. The motion is granted, and the
record has been supplemented with the missing pages.

                                                    6
                      TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                        WORKERS’ COMPENSATION APPEALS BOARD

Samuel Panzarella                                         )   Docket No.   2015-01-0383
                                                          )
v.                                                        )   State File No. 79681-2015
                                                          )
Amazon.com, Inc., 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 18th day of January, 2017.
 Name                     Certified   First Class   Via   Fax      Via     Email Address
                          Mail        Mail          Fax   Number   Email

 Robert A. Wharton, Jr.                                              X     wharton@hjwlawfirm.com
 W. Troy Hart                                                        X     wth@mijs.com
 Audrey A. Headrick,                                                 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




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