                                                                                   FILED

                                                                                 TN COlJRI OF
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                                                                                  Time·ll :IOPM

            TENNESSEE BUREAU OF WORKERS' COMPENSATION
           IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                            AT KNOXVILLE

MAURO SAITI,                                   )   Docket No.: 2016-03-0661
        Employee,                              )
v.                                             )
ADVENT ELECTRIC, INC.,                         )   State File No.: 67377-2014
         Employer,                             )
And                                            )
ACADIA INSURANCE,                              )   Judge Lisa Lowe
         Carrier,                              )
And                                            )
TRAVELERS,                                     )
          Carrier.                             )


                            EXPEDITED HEARING ORDER
                                DENYING BENEFITS


       This matter came before the undersigned Workers' Compensation Judge for an
Expedited Hearing on March 28, 2017. The central legal issue is whether Mr. Saiti came
forward with sufficient evidence demonstrating he is likely to prevail at a hearing on the
merits that his injury and need for left shoulder surgery arose primarily out of and in the
course and scope of his employment on August 19, 2014. Acadia Insurance Company
provided workers' compensation coverage for Advent in 2014.

       It has been alleged that Mr. Saiti's injury and need for medical treatment may have
been caused by a late September work-related incident. Travelers provided workers'
compensation coverage for Advent in 2015. While Mr. Saiti filed an amended Petition for
Benefit Determination to include Travelers, he noted August 19, 2014, as the date of
injury rather than a 2015 date of injury. Therefore, the Court limits its focus on Mr.
Saiti's August 19, 2014 injury. For the reasons set forth below, the Court concludes Mr.
Saiti did not come forward with sufficient evidence demonstrating that he is likely to
prevail at a hearing on the merits. Therefore, he is not entitled to the requested benefits at
this time.
                                     History of Claim

       Mr. Saiti is a sixty-four-year-old resident of Sevier County, Tennessee who
worked for Advent Electric, Inc. (Advent) as an electrician. While working at a Bojangles
restaurant in Maryville, Tennessee on August 19, 2014, Mr. Saiti fell off an eight-foot
ladder and landed on his left shoulder. He reported the injury and received treatment at
Park Med Urgent Care Center. The provider diagnosed a left shoulder sprain and elbow
contusion and restricted Mr. Saiti from performing overhead work. Mr. Saiti returned to
work at full duty as an electrician, but noted worsening problems after working with
heavy objects and/or performing overhead work. Despite continued pain, Mr. Saiti did
not miss any time from work.

        Mr. Saiti did not make a request for or receive additional medical care until
October 28,2015, approximately fourteen months after the August 19,2014 work injury.
While working at a Best Buy in late September 2015, Mr. Saiti attempted to move a
ladder when it shifted and fell back toward his left shoulder. He immediately felt a sharp,
stabbing pain. Mr. Saiti did not report this incident as a specific, new injury because he
attributed it to his initial shoulder injury. However, he asked his wife to contact Acadia to
request additional medical care. Acadia provided Mr. Saiti a panel of physicians, from
which he selected Dr. Edwin Spencer at Knoxville Orthopedic Clinic.

        Dr. Spencer evaluated Mr. Saiti and suspected a rotator cuff tear. He assigned
restrictions of no overhead work, prescribed conservative treatment, and recommended
an MRI. After the MRI, Dr. Spencer diagnosed Mr. Saiti with a left rotator cuff tear,
bursitis, and biceps tendonitis. Dr. Spencer mentioned surgery as a possible treatment
option, but wanted Mr. Saiti to attempt normal work duties before performing surgery.
After a one-month attempt, Mr. Saiti returned to Dr. Spencer with continued pain
complaints, especially with overhead activities. Thus, Dr. Spencer indicated surgery was
necessary. Acadia denied the surgery request.

      On or about March 21, 2016, Dr. Spencer received a causation letter from Nurse
Case Manager (NCM) Susan Schwabe seeking his causation opinion. Dr. Spencer noted,

      I do feel that more likely than not that the injury that occurred is related to
      the work related incident a year prior. He had what appears to be some
      medial subluxation of the biceps and a high grade partial thickness rotator
      cuff tear. I think that those are related back to the work related injury.

NCM Schwabe asked Dr. Spencer if Mr. Saiti could have continued to work with his
injuries. Dr. Spencer responded by stating the following:

      Yes. Many people do work with partial thickness rotator cuff tears. Once
      they become more symptomatic, either through continued overhead use

                                             2
        such as his mechanism or with gradual increase in size in the tear that can
        cause an increase in symptoms and subsequent evaluation. Again, many
        people are able to work with partial thickness rotator cuff tears causing
        intermittent pain.

(Ex. 14.) Dr. Spencer also wrote an August 24, 2016 letter to NCM Schwabe, in which he
noted, "I feel that the work-related shoulder injury is related back to his fall, which was
about a year prior. I think that his rotator cuff tear and shoulder injury is primarily related
to his work accident when he fell from the ladder." Jd.

        Mr. Saiti was deposed on two different occasions. In his first deposition, Mr. Saiti
said after a month and a half to two months following the initial incident, his shoulder
was back to normal and he went back to performing overhead work. (Ex. 1 at 23-24.) He
stated when he started to do his regular job again, the pain in his shoulder started to come
back and he thought it was from the 2014 fall injury. Jd.at 27-28, 47. Mr. Saiti testified
his shoulder got significantly worse by continuing to perform his job. Jd. at 38. With
regard to the 2015 incident, Mr. Saiti explained his pain significantly worsened when he
was lifting/standing up a twelve-foot ladder that started to "go back." Jd. at 109-111. Mr.
Saiti stated the pain after the 2015 ladder incident was like a knife sticking in his
shoulder. Jd. at 119-121.

       In comparing the pain after the 2014 fall and the 2015 ladder incident, Mr. Saiti
explained in his second deposition the pain was different after the 2015 ladder incident.
(Ex. 2 at 15.) Mr. Saiti testified that after the 2014 fall the pain was getting progressively
worse; then the 2015 ladder incident was the final straw. He did not feel the 2015 ladder
incident was a separate injury. Id. at 20.

       As relevant here, Dr. Spencer testified by deposition as follows:

       Q: Can you state to a reasonable degree of medical certainty that the tear
       that was ultimately shown on the MRI is exactly the same tear that occurred
       on August 19, 2014, if in fact that's when it occurred, and that it had not
       increased in size since that time?

       A: Yeah. I can't say that either.

(Ex. 3 at 32.)

       Q: Would you-do you have an opinion as to whether those symptoms
       described, i.e., hard pain, sharp pain, as-if-you-were-getting-stabbed pain,
       would be consistent with a partially [sic] rotator cuff tear, or a worsening of
       that shoulder condition that was ultimately found on the MRI?


                                              3
        A: Yeah, could be.

!d. at 36.

        Q: [C]an you state to a reasonable degree of medical certainty, when
        considering all causes, that the original fall from the ladder in August 19,
        2014, was the primary cause, or the 51 percent cause of his current shoulder
        condition, or the need for the medical care currently suggested?

        A: Guys, I don't know that I can.

        Q: Is your opinion then, Dr. Spencer, that within a reasonable degree of
        medical certainty, the need for surgery was caused by the incident that Mr.
        Burrow explained happened in October carrying the ladder?

        A: It was certainly the reason why he came in for treatment in November.
        Yeah. And I don't know if that was the origin of the rotator cuff tear, or
        not.

        Q: The truth of the matter is, there's no way to tell, is there? I mean-

       A: Not from my standpoint. You have got a radiologist saymg its
       indeterminate too. The only thing I would use to determine it was the
       history.

       Q: [C]an you say within [a] reasonable degree of medical certainty that this
       need for surgery was caused by trauma that happened on any particular
       day? Can you do that?

       A: In this case, no, I can't.

       Q: You don't know whether Mr. Saiti tore his rotator cuff back in August
       2014, and you don't know whether he tore it with this ladder incident in
       October 20 15? Is that-

       A: That's correct[.]

!d. at 40-41.

       Q: Dr. Spencer, given what you've learned today about this additional
       history, is it more likely than not that the October 15 incident when Mr.
       Saiti was handling the ladder was an exacerbation of what had originally
       occurred back in August of 2014?

                                              4
       A: It can be termed an exacerbation of it, sure. I mean, if he said that it
       was-the location of the pain was similar, it was just more of a very sharp
       hard stabbing pain, then yeah, you can term it as an exacerbation. I don't
       know if that helps, or muddies the water.

       Q: Would you characterize that as more likely than not?

       A: I would say it's probably more likely than not, since the location of the
       pain was similar.

!d. at 45.

                                    Mr. Saiti 's Position

       At the hearing, Mr. Saiti testified that he did not consider the 2015 ladder incident
to be an accident or a new injury, but it did cause the worse pain in his shoulder. Mr. Saiti
argued in response to the two causation letters that Dr. Spencer stated the shoulder injury
arose primarily out of and in the course and scope of his employment on August 19,
2014. Mr. Saiti argued he was injured while working and the Court should order the
surgery; a determination as to which carrier is responsible for payment of the surgery can
be made later.

                                     Acadia's Position

       Acadia argued Dr. Spencer did not have a full history from Mr. Saiti at the time he
answered the causation letters. Dr. Spencer's opinion changed when provided with a
history of the 2015 ladder incident during his deposition. Acadia avers Dr. Spencer could
not state Mr. Saiti's injury arose primarily from the August 19, 2014 work injury and his
opinion is presumed correct. Further, Mr. Saiti's testimony, coupled with that of Dr.
Spencer, establish the 2015 ladder incident caused the need for medical treatment and the
recommended surgery.

                                    Travelers' Position

        Travelers argued Mr. Saiti did not report the 2015 ladder incident because he did
not consider it a new work injury. Because Mr. Saiti had a prior workers' compensation
claim, he was aware of how to report workers' compensation injuries. Mr. Saiti never
mentioned the 2015 ladder incident to Dr. Spencer during office visits, and Dr. Spencer
testified he could not say that either the 2014 or the 2015 incident caused Mr. Saiti' s
rotator cuff tear. In addition, because Mr. Saiti did not file his amended Petition for
Benefit Determination until November 3, 20 16, more than a year after the 2015 incident,
his claim is barred by the statute of limitations.

                                             5
                       Findings of Fact and Conclusions of Law

                                     Standard Applied

       The following legal principles govern this case. Because it is in a posture of an
Expedited Hearing, Mr. Saiti need not prove every element of his claim by a
preponderance of the evidence in order to obtain relief. McCord v. Advantage Human
Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (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. !d.; Tenn. Code Ann. § 50-6-
239( d)(l) (20 16).

                                   Applicable Authority

         The Workers' Compensation Law requires employers to provide injured
employees with reasonable and necessary medical care related to a work injury. A work-
related injury causes a need for medical treatment if, within a reasonable degree of
medical certainty, it contributed more than fifty percent to the need for treatment. To
meet the "reasonable degree of medical certainty" standard requires a physician opinion
that it is more likely than not, considering all possible causes, as opposed to speculation.
See Tenn. Code Ann. §§ 50-6-204(a)(l)(A), 50-6-102(14)(C), and 50-6-102(14)(D)
(2016).

        Furthermore, the panel-selected physician's causation opinion is presumed correct,
as is the treatment he recommends. However, that opinion might be rebutted by a
preponderance of the evidence. See Tenn. Code Ann. §§ 50-6-102(14)(E) and 50-6-
204(a)(3)(H) (2016); see also Morgan v. Macy's, 2016 TN Wrk. Comp. App. Bd. LEXIS
39, at *17 (Aug. 31, 2016).

                                         Analysis

       When applying the above principles to this case, the Court first notes there is no
dispute that Mr. Saiti sustained and reported a work-related injury on August 19, 2014.
The issue is whether that injury or the 2015 ladder incident contributed more than fifty
percent to the need for Mr. Saiti's shoulder surgery.

       The Court finds Mr. Saiti to be credible. He explained his actions at work on
August 19, 2014, and his actions at work in late September 2015. This Court has no
doubt that the work incidents and ensuing pain occurred exactly as Mr. Saiti described.
However, the question of whether Mr. Saiti's need for surgery to repair his torn rotator
cuff is related to either the 2014 injury or the 20 15 ladder incident requires an expert
medical opinion.

                                             6
        In that regard, because Mr. Saiti selected Dr. Spencer from a panel of physicians,
 his causation opinion is presumed correct. Dr. Spencer's causation letters, written without
 the benefit of a description of the 2015 ladder incident, related Mr. Saiti' s rotator cuff
 tear and need for surgery to his August 19,2014 work injury. It appears that the first time
 Dr. Spencer became aware of the 20 15 ladder incident was during his deposition.
 Unfortunately for Mr. Saiti, once faced with that additional history, Dr. Spencer could not
 state within a reasonable degree of medical certainty that Mr. Saiti's need for surgery was
 caused by the trauma of either August 19, 2014 or late September 2015. Since Mr. Saiti
 did not provide any countervailing medical causation opinion, the Court is left with only
 Dr. Spencer's testimony.

         Therefore, as a matter of law, this Court must hold, at this time, Mr. Saiti did not
· come forward with sufficient evidence from which this Court can conclude he is likely to
  prevail at a hearing on the merits that his injury and need for left shoulder surgery arose
  primarily out of and in the course and scope of his employment on August 19,
  2014. Accordingly, the Court denies Mr. Saiti's request for benefits at this time.

IT IS, THEREFORE, ORDERED as follows:

    1. Mr. Saiti's claim against Advent Electric, Inc. and both its workers' compensation
       carriers for the requested medical and temporary disability benefits is denied at
       this time.

    2. This matter is set for a Scheduling Hearing on June 26, 2017, at 9:30a.m. Eastern
       Time. The parties must call 865-594-0109 or 855-383-0003 toll free to participate
       in the Scheduling Hearing. Failure to appear by telephone may result in a
       determination of the issues without your further participation.

       ENTERED this the 13th day of April, 2017.



                                            HON. LISA A. LOWE
                                          Workers' Compensation Judge




                                              7
                                    APPENDIX

Exhibits:
       1) Deposition of Mauro Saiti, October 26, 20 16
       2) Deposition of Mauro Saiti, January 27, 2017
       3) Deposition of Dr. Edwin E. Spencer, Jr.
      4) Affidavit of Mary Jacobs
       5) Affidavit of Stephen Boertman
       6) Affidavit of Terri Roberts
       7) First Report of Work Injury, Form C-20
       8) Wage Statement, Form C-41
      9) Panel of Physicians, Form C-42
       10)Workers' Compensation & Employer's Liability Insurance Policy
       11)Medical Records ofPark Med Medical Center
       12)Medical Records of Pro Therapy Services
       13)Medical Records of Dr. Edwin Spencer, Knoxville Orthopedic Clinic
       14)Causation Letters ofDr. Edwin Spencer

Technical Record:

         1) Petition for Benefit Determination
         2) Dispute Certification Notice
         3) Motion to Stay Proceedings pending Taking the Deposition of Dr. Spencer
         4) Employee's Reply to Motion to Stay Proceedings Pending Taking
            Deposition of Dr. Spencer and Employee's Motion to Amend Petition for
            Benefit Determination
         5) Order Finding Employer's Motion to Stay Proceedings Pending Taking the
            Deposition of Dr. Spencer Premature
         6) Amended Petition for Benefit Determination
         7) Dispute Certification Notice
         8) Petition for Benefit Determination
         9) Request for Expedited Hearing
         10)0rder of Voluntary Dismissal only as to Accident Fund Insurance Co. of
            America
         11)Notice of Filing Declaration of Mary Jacobs
         12)Notice of Filing Deposition of Edwin E. Spencer, M.D.
         13)Employer's (During Such Time as Insured by Acadia Ins. Co.) Witness and
            Exhibit List for Expedited Hearing
         14)Employer's (During Such Time as Insured by Acadia Ins. Co.) Record
            Designated as Evidence for Expedited Hearing
         15)Pre-Expedited Hearing Brief of Employer During Such Time as Insured by
            Acadia Ins. Co.
         16)Notice ofFiling of Affidavit of Stephen Boertman

                                         8
          17)Notice ofFiling of Affidavit of Terri Roberts
          18)Notice of Filing of Charter Oak Fire Ins. Co. Response to Employee's,
             Mauro Saiti, Request for Expedited Hearing
          19)Employee's Reply to Employer/Insurers' Responses to Employee's
             Request for Expedited Hearing




                            CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 13th day
of April, 2017.


Name                       Certified Via       Via     Service sent to:
                           Mail      Fax       Email
Ben W. Hooper III,                             X       Bwh3rd@yahoo.com
Employee's Attorney
D. Brett Burrow,                               X       bburrow@burrowlee.com
Advent Electric's
Attorney
Jennifer C. Schmidt,                           X       JCSCMID@travelers.com
Charter Fire Ins. Co.'s
Attorney




                                                    NY SHRUM, Court Clerk
                                                   WC.CourtClerk@tn.gov




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