                                                                               FILED
                                                                             May 26, 2020
                                                                            10:33 AM(CT)
                                                                          TENNESSEE COURT OF
                                                                         WORKERS' COMPENSATION
                                                                                CLAIMS




           TENNESSEE BUREAU OF WORKERS’ COMPENSATION
             COURT OF WORKERS’ COMPENSATION CLAIMS
                          AT MEMPHIS

KENNETH THOMAS,                            )   Docket No.: 2017-08-1057
         Employee,                         )
v.                                         )
THOMPSON INDUSTRIAL SERVS.,                )   State File No.: 15343-2017
         Employer,                         )
And                                        )
ZURICH AMERICAL INS. CO.,                  )   Judge: Deana Seymour
         Carrier.                          )


                         EXPEDITED HEARING ORDER


       Kenneth Thomas sustained a compensable left-shoulder injury and underwent
surgery. His authorized treating physician recommended additional surgery, but
Thompson Industrial Services refused to authorize it, arguing the need for the second
surgery was not related to the initial work injury. The Court held an Expedited Hearing
on May 6, 2020, to determine whether Mr. Thomas is likely to prove at trial that
Thompson must authorize the surgery and pay ongoing temporary disability benefits. The
Court concludes that Thompson must authorize a portion of the surgery but does not have
to pay ongoing temporary disability benefits.

                                  History of Claim

       Mr. Thomas works for Thompson as a machine operator. On February 28, 2017,
he injured his left shoulder at work when a heavy hose fell on him.

       Mr. Thomas received authorized treatment from Dr. Jay Saenz, who diagnosed a
rotator cuff tear and performed surgery in June 2017. Dr. Saenz placed Mr. Thomas at
maximum medical improvement on January 23, 2018.

      Mr. Thomas returned to Dr. Saenz on February 6, 2019, with continued left-
shoulder pain. Dr. Saenz ordered an MRI, which showed tendinosis in the biceps tendon




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and AC joint arthritis. He recommended another surgery and took Mr. Thomas off work
for an undetermined period before returning him to light duty. 1

       In light of Dr. Saenz recommendations, Thompson sent him a letter asking if Mr.
Thomas’s employment contributed more than fifty percent to his need for the second
surgery. In response, Dr. Saenz referred to his deposition testimony, in which he
recommended surgery to address Mr. Thomas’s degenerative biceps tendon and that his
rotator cuff needed no further treatment. Based on this statement, Thompson refused to
authorize surgery because the degenerative changes did not flow from the original injury.

       In response to the refusal, Mr. Thomas sent Dr. Saenz a letter asking him to
elaborate on his causation opinion. Dr. Saenz responded, “I believe that it is more likely
than not, considering all causes, that while the acromioclavicular joint arthritis and biceps
tendon pathology were a pre-existing condition, they were objectively worsened and
aggravated by the injury he sustained at work.” The parties then decided to depose Dr.
Saenz a second time.

       During his second deposition, Dr. Saenz testified that the tendinosis in Mr.
Thomas’s biceps tendon did not flow from his original injury. He based his opinion on
his observations during the June 2017 surgery. 2 According to Dr. Saenz, the biceps
tendon appeared normal at that time. He also noted that tendinosis was usually caused by
age-related degenerative changes.

       Regarding Mr. Thomas’s AC joint arthritis, Dr. Saenz initially testified that the
recommended revision surgery did not flow from the original injury because the distal
clavicle excision performed in 2017 was incidental to the rotator cuff repair. However, on
cross examination, he testified that the work injury more likely than not exacerbated the
AC joint arthritis and that workers’ compensation should pay for the revision.

       He went on to state that he did not consider either the tendinosis procedure or the
revision procedure to be greater than the other in creating the need for surgery. Instead,
he testified that the two procedures were “equal” in necessitating surgery and stated, “in
the absence of – there are two issues and in the absence of either one I would still – if his
biceps tendon was normal, I would still think about going in and looking at his AC joint
and vice versa.”

        Dr. Saenz acknowledged taking Mr. Thomas off work on February 6, 2019, but he
testified that there was no way to know if Mr. Thomas’s MMI date would change with


1
  In his August 13, 2019 note, Dr. Saenz stated, “[Mr. Thomas] will remain on light duty work. I
recommend no commercial driving and a 10-pound lifting restriction with no above the shoulder work.”
The record does not contain evidence as to when he first returned Mr. Thomas to light duty work.
2
    Notably, Dr. Saenz mentioned an April 2017 MRI that showed biceps tendinosis.

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surgery. On cross, however, he confirmed that his October 16, 2019 office note
mentioned that Mr. Thomas was not at MMI because he needed additional surgery.

                       Findings of Fact and Conclusions of Law

       At an Expedited Hearing, Mr. Thomas must provide sufficient evidence from
which the Court can determine he is likely to prevail at a hearing on the merits. McCord
v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Mar. 27, 2015).

       To prevail on his request for medical treatment, Mr. Thomas must prove that his
condition “arose primarily out of and in the course and scope of employment.” Tenn.
Code Ann. § 50-6-102(14)(A) (2019). An injury “arises primarily out of and in the course
and scope of employment” only if it has been shown that “the employment contributed
more than fifty percent (50%) in causing the injury, considering all causes.” Tenn. Code
Ann. § 50-6-102(14)(B). Further, an aggravation of a pre-existing condition shall not be
considered an injury unless “it can be shown to a reasonable degree of medical certainty
that the aggravation arose primarily out of and in the course and scope of employment.”
Tenn. Code Ann. § 50-6-102(14)(A). Medical evidence is generally required to establish
a causal relationship. Berdnik v. Fairfield Glade Cmty. Club, 2017 TN Wrk. Comp. App.
Bd. LEXIS 32, at *10-12 (May 18, 2017).

      Dr. Saenz provided the only medical testimony. During his deposition, Dr. Saenz
concluded Mr. Thomas’s biceps tendinosis did not flow from his original injury,
considering the tendon’s normal appearance at the time of his June 2017 surgery.
Therefore, Thompson is not required to authorize the biceps tendon surgery.

       Rather, Dr. Saenz testified that Mr. Thomas’s work injury more likely than not
exacerbated the AC joint arthritis. He further testified that the revision was “equal” to the
biceps tendon procedure in necessitating the second surgery. Based on Dr. Saenz’s
testimony, the Court holds that Mr. Thomas would likely prevail at a hearing on the
merits regarding entitlement to the distal clavicle revision.

        Turning to Mr. Thomas’s request for temporary disability benefits, he must show
(1) he became disabled from working due to a compensable injury; (2) there is a causal
connection between the injury and the inability to work; and (3) the duration of the period
of disability. Jones v. Crencor Leasing and Sales, 2015 TN Wrk. Comp. App. Bd. LEXIS
48, at *7 (Dec. 11, 2015).

       Temporary total disability benefits are owed until the employee returns to work at
regular duty or attains maximum recovery. Id. While Mr. Thomas proved that Dr. Saenz
took him off work on February 6, 2019, the medical records suggest Dr. Saenz returned
him to light-duty work at some point before his August 13, 2019 visit. Without
documentation showing when the change in work status occurred, the Court cannot
determine the duration of his period of total disability.
                                             3
        Temporary partial disability benefits are due when the treating physician has
released the injured worker to return to work with restrictions before maximum medical
improvement, and the employer either (1) cannot return the employee to work within the
restrictions or (2) cannot provide restricted work for a sufficient number of hours and/or
at a rate of pay equal to or greater than the employee’s average weekly wage on the date
of injury. Id. at *7-8. Mr. Thomas presented no proof regarding these elements of
temporary partial disability benefits.

        Accordingly, the Court holds that Mr. Thomas would not likely prevail at a
hearing on the merits regarding entitlement to either type of temporary disability benefits
at this time.

       IT IS, THEREFORE, ORDERED as follows:

       1.     Thompson shall authorize the distal clavicle revision surgery recommended
by Dr. Saenz.

      2.       Mr. Thomas’s request for past and future temporary disability benefits is
denied at this time.

      3.     This case is set for a telephonic Status Hearing on July 6, 2020, at 9:30
a.m. Central Time. You must call toll-free at 866-943-0014 to participate in the hearing.

ENTERED May 26, 2020.



                                   ____________________________________
                                   Judge Deana C. Seymour
                                   Court of Workers’ Compensation Claims

                                       APPENDIX

Technical record:

TR1. Petition for Benefit Determination
TR2. Dispute Certification Notice, along with Employer’s additional disputed issues
TR3. Request for Initial Hearing
TR4. Scheduling Hearing Order
TR5. Employee’s Motion for Continuance
TR6. Order on Motion for Continuance
TR7. Employee’s Motion and Supporting Memorandum to Compel Surgery Ordered by
Authorized Treating Physician and Payment of Outstanding TTD Benefits Which are
Due and Owing and for Oral Arguments in Court on Said Motion
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TR8. Notice of Filing Deposition of Dr. Jay Saenz
TR9. Employer’s Response to Employee’s Motion to Compel Surgery Ordered by
Authorized Treating Physician and Payment of Outstanding TTD Benefits
TR10. Notice of Filing the July 25, 2019 Deposition of Dr. Jay Saenz
TR11. Request for Expedited Hearing
TR12. Affidavit of Employee – Kenneth Thomas
TR13. Employer’s Response to Employee’s Request for Expedited Hearing
TR14. Employer’s Motion to Continue
TR15. Order on Motion to Continue
TR16. Order Resetting Expedited Hearing
TR17. Amended Order Resetting Expedited Hearing

Exhibits:

1.    Dr. Saenz’s July 25, 2019 deposition
2.    Dr. Saenz’s January 23, 2020 deposition
3.    Mr. Thomas’s affidavit

                           CERTIFICATE OF SERVICE

      I certify that a copy of this Order was sent as indicated on May 26, 2020.

 Name                       Certified   U.S.    Email Service sent to:
                             Mail       Mail
 Steve Taylor,                                    X     staylor@tcmfirm.com
 Employee’s Attorney
 Marianna Jablonski,                              X     mjablonski@wimberlylawson.com
 Employer’s Attorney




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




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