             IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                            AT MURFREESBORO

TERRY ROHRENBACH                                           )   Docket No.: 2015-05-0600
         Employee,                                         )
v.                                                         )   State File Number: 74548-2015
YATES SERVICES                                             )
         Employer,                                         )   Judge Dale Tipps
And                                                        )
TRAVELERS INS.                                             )
         Insurance Carrier.                                )
                                                           )

    EXPEDITED HEARING ORDER DENYING REQUESTED MEDICAL AND
                TEMPORARY DISABILITY BENEFITS


        This matter came before the undersigned workers’ compensation judge on
February 25, 2016, on the Request for Expedited Hearing filed by the employee, Terry
Rohrenbach, pursuant to Tennessee Code Annotated section 50-6-239 (2015). The
present focus of this case is the compensability of Mr. Rohrenbach’s left shoulder injury
and his entitlement to medical and temporary disability benefits. The central legal issue
is whether the evidence is sufficient for the Court to determine that Mr. Rohrenbach is
likely to establish at a hearing on the merits he suffered an injury arising primarily out of
and in the course and scope of his employment. For the reasons set forth below, the
Court finds Mr. Rohrenbach is not entitled to the requested medical benefits at this time.1

                                               History of Claim

        Mr. Rohrenbach is a fifty-four-year-old resident of Rutherford County, Tennessee,
who has worked at the Nissan plant in Smyrna for several years. He testified he was
working on the assembly line on September 13, 2015, in the “Right-Hand Front
Members” station. He reached up to take a hood ledge off the top of a stack of parts and
felt a sharp pain in his left shoulder. He was unable to lift his arm above chest level. He
gave notice to his supervisor, who took him to the medical department.

1
 A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.

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       Mr. Rohrenbach selected Premise Health, an onsite provider at Nissan, from a
physician panel on September 14, 2015. (Ex. 6.) He saw Robert Dickinson, an advanced
practice nurse, on that date for complaints of left shoulder pain. Mr. Rohrenbach
reported, “I was loading hood ledge and reached for a part and couldn’t raise my arm.”
APN Dickinson also noted, “EE denies any slip, trip or fall but did state that he spread
decorative gravel in his yard for three hours and he did take frequent breaks.” He
examined Mr. Rohrenbach, assessed a shoulder sprain and prescribed Advil and Tylenol.
(Ex. 2.)

       Mr. Rohrenbach returned to the clinic and saw Dr. Woodall on September 17,
2015. He reported a rapid onset of left shoulder weakness and pain while reaching for a
part. Mr. Rohrenbach testified Dr. Woodall did no testing, other than to move Mr.
Rohrenbach’s arm in one direction, before concluding he suffered from a degenerative
condition. Dr. Woodall’s assessment was, “Idiopathic degenerative shoulder – believe is
impingement (hypertrophy and spur) with probable supraspinatus tear – not primarily
related to work activities.” He prescribed ibuprofen and restricted movement of the left
arm. Id.

         After seeing Mr. Rohrenbach one more time, Dr. Woodall responded to a letter
from Ashley Hayes-Beaty, a claim representative for Yates’ workers’ compensation
carrier. The letter asked whether Dr. Woodall could “state with a reasonable degree of
medical certainty that Mr. Rohrenbach has sustained a work related injury that arose
primarily out of and in the course of employment at Yates.” Dr. Woodall circled the
“No” response. When asked to list all conditions that were pre-existing or not related to
the alleged work injury, Dr. Woodall wrote: “Idiopathic degenerative shoulder with
impingement & possible tear.” Id.

       Mr. Rohrenbach testified Dr. Woodall prescribed physical therapy, but Yates
never approved it. He also said he repeatedly asked Dr. Woodall for something to help
with his shoulder pain, which was severe and kept him from sleeping. However, Dr.
Woodall only recommended using a bigger pillow.

       Mr. Rohrenbach subsequently sought treatment at a walk-in clinic, which referred
him to Dr. James Rungee. Mr. Rohrenbach saw Dr. Rungee on October 26, 2015. He
described his problem to Dr. Rungee and told him his employer had denied his workers’
compensation claim because he had degenerative changes. Dr. Rungee ordered an MRI,
which took place on October 30, 2015. The MRI showed a full-thickness tear of the
rotator cuff. Although Dr. Rungee characterized the tear as “traumatic,” he did not
address the specific cause of the condition. (Ex. 3.)

       Mr. Rohrenbach testified Yates provided light duty until October 23, 2015. After
that date, Yates determined Mr. Rohrenbach was unable to perform his job duties, so he
took short-term disability for his shoulder condition. He returned to his regular job three

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days before the Expedited Hearing.

      Mr. Rohrenbach filed a Petition for Benefit Determination seeking medical and
temporary disability benefits. The parties did not resolve the disputed issues through
mediation, and the Mediating Specialist filed a Dispute Certification Notice. Mr.
Rohrenbach filed a Request for Expedited Hearing, and this Court heard the matter on
February 25, 2016.

       At the Expedited Hearing, Mr. Rohrenbach asserted he is entitled to workers’
compensation benefits for a rotator cuff tear arising primarily out of and in the course and
scope of his employment. He acknowledged he selected Dr. Woodall from a panel
offered by Yates, but he disputes Dr. Woodall’s conclusion. He testified Dr. Woodall’s
examination was cursory, with no x-ray, MRI, or other diagnostic testing. He argued, in
effect, that Dr. Woodall’s opinion is medically and legally insufficient to merit
consideration. Instead, he contended he has a proven injury, caused by reaching for the
hood ledge while working at Nissan.

       Yates countered that Mr. Rohrenbach is not entitled to workers’ compensation
benefits because he failed to present evidence his injury arose primarily out of and in the
course and scope of his employment. Yates argues that Mr. Rohrenbach was not lifting
anything, but merely raised his arm to reach for a part. Because there was no external
force acting on Mr. Rohrenbach, this event does not meet the statutory requirement of an
injury by accident. Further, Yates contends Dr. Woodall is the authorized treating
physician, and his opinion is entitled to a presumption of correctness that is unrebutted.

                       Findings of Fact and Conclusions of Law

        Because this case is in a posture of an Expedited Hearing, Mr. Rohrenbach need
not prove every element of his claim by a preponderance of the evidence in order to
obtain relief. McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN
Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers’ Comp. App. Bd. Mar. 27,
2015). 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. Id.; Tenn. Code Ann. §
50-6-239(d)(1)(2015). In analyzing whether he has met her burden, the Court cannot
construe the law remedially or liberally in his favor, but instead shall construe the law
fairly, impartially, and in accordance with basic principles of statutory construction
favoring neither Mr. Rohrenbach nor Yates. See Tenn. Code Ann. § 50-6-116 (2015).

       To prove a compensable injury, Mr. Rohrenbach must show that his alleged injury
arose primarily out of and in the course and scope of his employment. Tenn. Code Ann.
§ 50-6-102(14) (2015). To do so, he must show his injury was caused by an incident, or
specific set of incidents, identifiable by time and place of occurrence. Tenn. Code Ann. §
50-6-102(14)(A) (2015). Further, he must show, “to a reasonable degree of medical

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certainty that it contributed more than fifty percent (50%) in causing the . . . disablement
or need for medical treatment, considering all causes.” Tenn. Code Ann. § 50-6-
102(14)(C) (2015). “Shown to a reasonable degree of medical certainty” means that, in
the opinion of the treating physician, it is more likely than not considering all causes as
opposed to speculation or possibility. Tenn. Code Ann. § 50-6-102(14)(D) (2015).

       The Court is not persuaded by Yates’ argument that Mr. Rohrenbach did not
sustain an injury by accident. The mere fact that reaching is something “we all do all the
time” does not mean that all injuries incurred while reaching are non-compensable.
Many activities that occur regularly in daily life, such as bending or squatting, may result
in compensable injuries so long as they occur in the course and scope of employment.

       Yates’ focus on whether the injury met the definition of “traumatic” or resulted
from an outside force is not determinative of compensability under Tennessee law. Yates
provided no authority in support of the theory that reaching for an object in the course
and scope of work cannot result in a compensable injury. In fact, a number of Tennessee
courts have found this type of injury to be compensable. See, e.g., Coker v. County of
Obion, 2008 Tenn. LEXIS 554 (Tenn. July 22, 2008); McGhee v. Holland Group of
Tenn., Inc., 2010 Tenn. LEXIS 672, 2010 WL 3258613 (Tenn. Aug. 18, 2010).

      Yates is correct, however, that Mr. Rohrenbach selected Dr. Woodall from a panel
of physicians provided by Yates. Therefore, Tennessee Code Annotated section 50-6-
102(14)(E) (2015) establishes a rebuttable presumption of correctness for Dr. Woodall’s
opinion that Mr. Rohrenbach’s condition did not arise primarily out of his employment.

       Mr. Rohrenbach objected to Dr. Woodall’s opinion, arguing the doctor’s opinion
is untrustworthy because he failed to perform any objective testing. Mr. Rohrenbach,
however, submitted no medical evidence to support this argument. 2 Mr. Rohrenbach’s
allegations regarding the quality of Dr. Woodall’s evaluation constitute nothing more
than a lay opinion. Although it appears Dr. Woodall formed his opinion before anyone
knew the full extent of Mr. Rohrenbach’s full-thickness rotator cuff tear, the Workers’
Compensation Law does not allow the Court to substitute its medical opinion, or that of
Mr. Rohrenbach, for the professional opinion of Dr. Woodall. Absent a contrary medical
opinion, Mr. Rohrenbach cannot rebut the presumption of correctness afforded Dr.
Woodall’s opinion by the statute. Scott v. Integrity Staffing Solutions, No. 2015-01-0055,
2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *8 (Tenn. Workers’ Comp. App. Bd. Aug.
8, 2015).

2
  Mr. Rohrenbach explained during the hearing Dr. Rungee refused to give a causation letter to him because he is
not an attorney. While the Court is cognizant of the difficulties faced by self-represented litigants, they must
comply with the same standards to which lawyers must adhere. Watson v. City of Jackson, No. W2014-00100-
COA-T10B-CV, 2014 Tenn. App. LEXIS 72, at *17 (Tenn. Ct. App. Feb. 13, 2014). The Court also notes that self-
represented parties have alternatives to causation letters, such as deposing the doctor or filing a C-32 Medical
Report.

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       Therefore, as a matter of law, Mr. Rohrenbach has not come forward with
sufficient evidence from which this Court may conclude he is likely to prevail at a
hearing on the merits. The Court, at this time, must deny his request for medical benefits.

IT IS, THEREFORE, ORDERED as follows:

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

   2. This matter is set for an Initial (Scheduling) Hearing on April 5, 2016, at 9:00 a.m.

      ENTERED this the 4th day of March, 2016.


                                   _____________________________________
                                   Judge Dale Tipps
                                   Court of Workers’ Compensation Claims

Initial (Scheduling) Hearing:

      An Initial (Scheduling) Hearing has been set with Judge Dale Tipps, Court of
Workers’ Compensation Claims. You must call 615-741-2112 or toll free at 855-
874-0473 to participate.

       Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation. All conferences are set using Central Time (CT).


Right to Appeal:

       Tennessee Law allows any party who disagrees with this Expedited Hearing Order
to appeal the decision to the Workers’ Compensation Appeals Board. To file a Notice of
Appeal, you must:

   1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal.”

   2. File the completed form with the Court Clerk within seven business days of the
      date the Workers’ Compensation Judge entered the Expedited Hearing Order.

   3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.


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4. The appealing party is responsible for payment of a filing fee in the amount of
   $75.00. Within ten calendar days after the filing of a notice of appeal, payment
   must be received by check, money order, or credit card payment. Payments can be
   made in person at any Bureau office or by United States mail, hand-delivery, or
   other delivery service. In the alternative, the appealing party may file an Affidavit
   of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
   fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
   of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
   will consider the Affidavit of Indigency and issue an Order granting or denying
   the request for a waiver of the filing fee as soon thereafter as is
   practicable. Failure to timely pay the filing fee or file the Affidavit of
   Indigency in accordance with this section shall result in dismissal of the
   appeal.

5. The parties, having the responsibility of ensuring a complete record on appeal,
   may request, from the Court Clerk, the audio recording of the hearing for the
   purpose of having a transcript prepared by a licensed court reporter and filing it
   with the Court Clerk within ten calendar days of the filing of the Expedited
   Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
   the evidence within ten calendar days of the filing of the Expedited Hearing
   Notice of Appeal. The statement of the evidence must convey a complete and
   accurate account of what transpired in the Court of Workers’ Compensation
   Claims and must be approved by the workers’ compensation judge before the
   record is submitted to the Clerk of the Appeals Board.

6. If the appellant elects to file a position statement in support of the interlocutory
   appeal, the appellant shall file such position statement with the Court Clerk within
   five business days of the expiration of the time to file a transcript or statement of
   the evidence, specifying the issues presented for review and including any
   argument in support thereof. A party opposing the appeal shall file a response, if
   any, with the Court Clerk within five business days of the filing of the appellant’s
   position statement. All position statements pertaining to an appeal of an
   interlocutory order should include: (1) a statement summarizing the facts of the
   case from the evidence admitted during the expedited hearing; (2) a statement
   summarizing the disposition of the case as a result of the expedited hearing; (3) a
   statement of the issue(s) presented for review; and (4) an argument, citing
   appropriate statutes, case law, or other authority.




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                                               APPENDIX

Exhibits:
   1. Affidavit of Terry Rohrenbach
   2. Medical Records of Dr. Gilbert Woodall
   3. Medical Records of Dr. James Rungee
   4. C-20 First Report of Injury
   5. C-41 Wage Statement
   6. C-42 Physician Panel
   7. C-23 Notice of Denial
   8. Employee/Manager Medical Statement
   9. Dr. Woodall’s Curriculum Vitae

Technical record:3
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing




3
   The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as
allegations unless established by the evidence.



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                           CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Expedited Hearing Order
Denying Medical and Temporary Disability Benefits was sent to the following recipients
by the following methods of service on this the 4th day of March, 2016.


Name                     Certified    Via        Via    Service sent to:
                          Mail        Fax       Email
Terry Rohrenbach            X                    X      Tjbach223@yahoo.com

John R. Rucker, Jr.                              X      jkropog@ruckerlaw.com




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




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