            TENNESSEE BUREAU OF WORKERS' COMPENSATION
               WORKERS' COMPENSATION APPEALS BOARD

Patrick Riley                                ) Docket No. 2015-06-0886
                                             )
V.                                           ) State File No. 48657-2015
                                             )
Group Electric, et al.                       )
                                             )
                                             )
Appeal from the Court of Workers'            )
Compensation Claims                          )
Kenneth M. Switzer, Chief Judge              )


                         Affirmed and Remanded - Filed July 5, 2016


In this interlocutory appeal, the employer disputes whether it should be required to
provide medical benefits for the employee's alleged work-related injury. The employee
reported suffering an injury to his left wrist and hand arising primarily out of and
occurring in the course of his employment as a journeyman electrician. The employer
denied the claim, asserting there is no evidence that a work injury actually occurred.
Following an expedited hearing, the trial court ordered the employer to provide a panel of
orthopedic physicians to treat the employee's injury, reserved ruling on the employee's
request for temporary disability benefits, and denied the employee's request for
reimbursement of past medical and mileage expenses. The employer has appealed.
Having carefully reviewed the record, we affirm the trial court's decision and remand the
case for further proceedings as may be necessary.

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

T. Ryan Malone, Nashville, Tennessee, for the employer-appellant, Group Electric

Michael Fisher, Nashville, Tennessee, for the employee-appellee, Patrick Riley

                            Factual and Procedural Background

      Patrick Riley ("Employee") alleges he injured his left hand and wrist on June 8,
2015, while working for Group Electric ("Employer") as a journeyman electrician. He

                                             1
testified at the expedited hearing that he was installing new wiring in a school building
and, while stripping wires to connect them in the main disconnect box, his left hand
slipped, causing him to strike his left wrist against the disconnect box. Employer offered
no witness testimony to contradict Employee's description of the accident. Employee
also testified he completed the job that day, but noticed swelling in his hand that evening
and in his fingers by the following morning. He testified he reported the injury to his
superintendent the next morning and advised the superintendent that he had to "go to the
hospital" at nine o'clock that morning.

       Employee sought care at Summit Medical Center Emergency Room for left wrist
pain on June 9, 2015. Medical records from that date reflect that he "denies injury," that
he complained of ''wrist injury (pain w/o injury)," that the mechanism of injury was
"unknown," and that Employee had experienced pain and swelling in his left wrist for
three days. The emergency room record also indicates the injury was not work-related.

        When confronted with this information at the expedited hearing, Employee
testified he had told the attending medical care providers at the emergency room that his
left elbow had been sore for about three days, but he denied telling them his hand and
wrist had been injured three days prior to his visit. He further testified that he informed
all the providers at the emergency room that he had injured his wrist at work. He was
released from the emergency room with a diagnosis of arthritis and bursitis with possible
gout of the left wrist. In addition to being referred for an orthopedic consult, the record
indicates a follow-up ''with Dr. Dube has been arranged and [patient] is in agreement."
Employee testified that the emergency room provider "recommended that [he] go to Dr.
Dube to have fluid drawn off [his] wrist," and that because ''they wanted either $300 cash
up front or insurance" he was not able to get the recommended treatment.

        Employer filed a Notice of Controversy on June 25, 2015, which stated there were
"[n]o medical records received to support compensability." Employee testified, however,
that the project manager came to the worksite "several weeks" after the alleged injury and
instructed him to seek treatment at Concentra Medical Center. The first of Employee's
visits to Concentra occurred on June 30, 2015, at which time the treating nurse
practitioner noted Employee had a left wrist injury as a result of blunt trauma sustained
while installing wiring. The record from that visit reflects the injury was ''the result of a
direct blow. Occurred while at work." Despite its June 25, 2015 Notice of Controversy,
Employer provided a panel of physicians from which Employee chose Dr. Rosa Stone on
July 1, 2015.

        Employee returned to Concentra on July 3, 2015, and was seen by Dr. Joseph
Speake, who, although agreeing with the assessment from the previous visit, observed
that Employee became defensive when questioned about his injury. The medical record
states that the "[s]tory of injury and exam don't seem to correlate very well." Employee
acknowledged in his testimony at the expedited hearing that he became defensive with

                                             2
Dr. Speake, but explained that he felt Dr. Speake was attempting to discredit his version
of events instead of providing meaningful treatment. Employee saw Dr. Saritha Reddy at
his third and final visit to Concentra on July 10, 2015. Dr. Reddy ordered an MRI.

       Employee ultimately saw the panel physician, Dr. Stone, on one occasion on July
23, 2015, at which time she noted Employee had injured his left wrist when he hit it on a
piece of machinery on June 8, 2015. The record of the visit did not address causation.
Although Employee had an MRI on June 29, 2015, he never discussed the results of that
test with Dr. Stone because she declined to continue treating him. Employer filed a
Notice of Denial of Claim for Compensation on August 19, 2015, stating "[n]o
compensable accident. Does not meet statutory definition of accident." Employee has
not received medical care for his injury since the August 19, 2015 denial of the claim.

        In August 2015, Employee's counsel sent a letter to Dr. Speake asking him
whether, "assuming the patient's history is accurate," Employee's left hand and wrist
injury "arose primarily out of and in the course and scope of employment on or about
June 8, 2015." Dr. Speake replied to the question by checking "yes" and drew an arrow
to and circled the phrase "assuming the patient's history is accurate." On October 23,
2015, Dr. Reddy signed an affidavit that expressed, among other things, her opinion "to a
reasonable degree of medical certainty that the necessity for the treatment reflected in the
Concentra medical records to [Employee's] left hand and wrist is causally related to and
results from his work-related injury of June 8, 2015."

       Following Employee's filing of a petition for benefit determination and the
parties' unsuccessful mediation, Employee requested an expedited hearing, which was
held on April 26, 2016. The trial court subsequently issued an order requiring Employer
to provide Employee a panel of orthopedic specialists. The trial court reserved ruling on
Employee's request for temporary disability benefits and denied Employee's request for
reimbursement of medical and mileage expenses, finding Employee had presented
insufficient evidence to establish his entitlement to those benefits. 1 Employer has
appealed the trial court's order.

                                         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


1
  Employee has not appealed the trial court's ruling reserving the issue of temporary disability benefits or
its denial of Employee's request for reimbursement of medical and mileage expenses. Thus, we need not
address these issues at this time.

                                                     3
    decision must be upheld unless 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;
          (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). Like other courts applying the standards
embodied in section 50-6-217(a)(3), we will not disturb the decision of the trial court
absent the limited circumstances identified in the statute.

                                                Analysis

       Employer identified several issues in its notice of appeal; however, in its brief on
appeal, Employer limited the disputed issues to whether Employee "carried his burden of
establishing causation," and to whether the trial court erred in admitting Dr. Speake's
"opinion letter' and Dr. Reddy's affidavit into evidence. 2 With respect to the latter issue,
in its order granting medical benefits, the trial court addressed in detail Employer's
objections to Dr. Speake's "opinion letter" and its objections to Dr. Reddy's affidavit.
Although it admitted both documents into evidence, the trial court agreed with Employer
that Dr. Speake's "opinion letter" was "of little or no probative value" and placed "no
weight upon it." Similarly, the trial court admitted Dr. Reddy's affidavit into evidence,
but "place[d] no weight upon it due to its inaccuracies." Based on the trial court's
determination to place no weight on either exhibit, the error, if any, in admitting those
exhibits was harmless.3

      With respect to the first stated issue, Employer asserts two separate arguments
concerning whether Employee "carried his burden of establishing causation." First,
Employer argues the trial court erred in determining that Employee carried his burden of
2
 In addition to the issues specified and argued in its brief on appeal, Employer asserted in its notice of
appeal that the trial court erred in "refusing to permit the Employer to obtain an [independent medical
examination]" and in "finding that the Employer failed to introduce evidence rebutting the claimant's
version of how the injury occurred." These issues are not discussed or mentioned in Employer's brief
and, therefore, we assume Employer has abandoned them. See Appeals Board Prac. & Proc. § 5.1 ("All
briefs pertaining to the appeal of an interlocutory order "shall include . . . a statement of the issue( s)
presented for review on appeal" and "an argument, citing appropriate statutes, case law, or other
authority.").
3
 We do not intend to suggest that the trial court erred in admitting either document. Rather, we simply
decline to address the merits of these issues as they are unnecessary for a resolution of the appeal.

                                                    4
proof "despite reaching the contrary holding that [Employee's] only causation opinions
carried 'no weight."' Second, Employer asserts error in the trial court's "finding
[Employee] carried his burden of establishing causation despite the medical records
undercutting his claim."

        As an initial matter, we note that the burden of proof at an expedited hearing is
different than the burden of proof at a compensation hearing. 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). Specifically, we have determined that,
at an expedited hearing, an employee need not prove each and every element of his or her
claim by a preponderance of the evidence in order to obtain temporary disability benefits
or medical benefits. Id. Instead, we have emphasized that, at the expedited hearing
stage, an employee has the burden to come forward with sufficient evidence from which
the trial court can determine that the employee is likely to prevail at a hearing on the
merits consistent with Tennessee Code Annotated section 50-6-239(d)(l). Id. Thus,
while an injured worker retains the burden of proof at all stages of a workers'
compensation claim, a trial court can grant relief at an expedited hearing if the court is
satisfied that an employee has met the burden of showing that he or she is likely to
prevail at a hearing on the merits. Tenn. Code Ann.§ 50-6-239(d)(l) (2014).

       However, "[t]his 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
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). It is our
responsibility to conduct an in-depth examination of the trial court's factual findings and
conclusions, see Wilhelm v. Krogers, 235 S.W.3d 122, 126 (Tenn. 2007), within the
mandate set out in Tennessee Code Annotated sections 50-6-217(a)(3), as referenced
above, and 50-6-239(c)(7) (2015). Section 50-6-239(c)(7) provides a presumption "that
the findings and conclusions of the workers' compensation judge are correct, unless the
preponderance of the evidence is otherwise." Furthermore, when the trial court has seen
and heard the witnesses, considerable deference must be afforded the trial court's factual
findings. Tryon v. Saturn Corp., 254 S.W.3d 321, 327 (Tenn. 2008).

       Thus, in the instant case, the issue before the trial court was not whether Employee
established medical causation by a preponderance of the evidence or whether he
presented competent medical proof establishing that he suffered a workplace injury.
Rather, the issue for the trial court was whether Employee presented sufficient evidence
to show that he would likely prevail at a hearing on the merits in establishing the
occurrence of a compensable injury as prescribed in Tennessee Code Annotated section
50-6-239(d)( 1). On appeal, we must assess whether the evidence presented in the trial


                                            5
court preponderates against the trial court's determination that Employee would likely
prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-239(c)(7).

        The trial court was presented with, among other documents, medical records
detailing Employee's treatment for his left hand and wrist injury, as well as Employee's
testimony regarding how the injury occurred. Employee testified as to the mechanism of
injury, stating that his left hand slipped while stripping wires, causing him to strike his
left wrist against the electrical disconnect box, and that he informed his supervisor on the
morning after the injury that he had hurt himself. Employer presented no testimony from
Employer's supervisor or any other witness that the injury did not occur at work or that it
occurred in some manner other than as Employee testified. Rather, Employer relied on
the medical records from Employee's visit to the emergency room to support its assertion
that Employee was not injured at work. Employee testified regarding the information in
those medical records, and the trial court accepted his testimony, finding him to be
credible. While there are discrepancies between the account of the injury in the
emergency room records and Employee's description of how the injury occurred, the trial
court was aware of those discrepancies and chose to accredit Employee's testimony
concerning the incident. The trial court considered the documentary evidence in
conjunction with Employee's testimony and determined Employee was a credible witness
and had met the "lesser evidentiary standard" required at an expedited hearing.
Accordingly, having independently assessed where the preponderance of the evidence
lies, we find no error in the trial court's order.

                                           Conclusion

        For the foregoing reasons, we hold that the evidence does not preponderate against
the trial court's decision at this interlocutory stage of the case. Nor does the trial court's
decision violate any of the standards set forth in Tennessee Code Annotated section 50-6-
217(a)(3). The trial court's decision is affirmed and the case is remanded for any further
proceedings that may be necessary.


                                                  (2r4~/
                                                  David F. Hensley, Judge 1'
                                                  Workers' Compensation Appeals Board




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

Patrick Riley                                             )   Docket No. 2015-06-0886
                                                          )
v.                                                        )
                                                          )    State File No. 48657-2015
Group Electric                                            )


                                      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 5thdate day of July, 2016.
 Name                     Certified   First Class   Via   Fax       Via     Email Address
                          Mail        Mail          Fax   Number    Email

 Michael Fisher                                                        X    mfisher@ddzlaw.com
 Nicholas J. Peterson                                                  X    nicholas.peterson@petersonwhite.com
 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: Jeanette.Baird@tn.gov
