                                                                                        FILED
                                                                                       July 31, 2015

                                                                                     ~COURT OF
                                                                                 WORKERS' CO~iPE='iSATIO='i
                                                                                        CLAD'IS

                                                                                       Time : 7:15 A_"VI




               COURT OF WORKERS' COMPENSATION CLAIMS
                          AT CHATTANOOGA

Michael Callahan,                           )     Docket No.: 2015-01-0068

              Employee,                     )
v.                                          )     State File No.: 27263 I 2014
                                            )
Amazon.com, Inc.,                           )     Date of Injury: July 8, 2015

              Employer,                     )
And                                         )     Judge: Thomas Wyatt
                                            )
Sedgwick CMS                                )

             Insurance Carrier/TPA.         )
                                            )

          EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS


       THIS CAUSE came to be heard for an in-person hearing before the undersigned
Workers' Compensation Judge on July 2, 2015, upon the Request for Expedited Hearing
that the employee, Michael Callahan, filed May 6, 2015, pursuant to Tennessee Code
Annotated section 50-6-239 (2014). Mr. Callahan sought to determine whether the
employer, Amazon.com, Inc. (Amazon), is obligated to provide medical benefits for a
left-shoulder injury that he allegedly sustained on July 8, 2015, while performing duties
arising out of and in the course and scope of his employment at Amazon. Considering
the positions of the parties, the applicable law, and all of the evidence submitted, the
Court concludes that Mr. Callahan is entitled to the requested medical benefits.

                                      ANALYSIS

                                         Issues

      The parties presented the following issues for determination at the Expedited
Hearing:


                                            1
           1. Whether Mr. Callahan sustained a left-shoulder injury that arose primarily
              out of and in the course and scope of his employment with Amazon.

          2. Whether Mr. Callahan is entitled to medical benefits.

The Mediation Specialist marked numerous issues on the Dispute Certification Notice
(DCN) issued in this claim. The Court did not decide issues marked on the DCN unless
presented for determination at the Expedited Hearing.

                                   Evidence Submitted

       The Court admitted into evidence the exhibits identified below:

           1. Affidavit of H. Franklin Chancey, attorney for Mr. Callahan, with the
              following exhibits attached thereto:
                  • an Order Denying Workers' Compensation Benefits in Michael
                     Callahan v. Integrity Staffing Solutions, State File No. 79685-20 14;
                  • Benefit Review Report issued in Michael Callahan v. Integrity
                     Staffing Solutions, State File Number 79685-2014; and
                  • email of May 19, 2015, from Cheryl Ploeger to Jeannie Pittman.

          2. Affidavit of Michael Schock
          3. Mr. Callahan's responses to Defendant's First Requests for Admission;
          4. Mr. Callahan's responses to Interrogatories;
          5. Medical records from Amcare;
          6. Affidavit of Michael Callahan;
          7. Benefit Review Report in Michael Callahan v. Amazon, State File Number
             77773-20 14;
          8. Associate First Report of Injury form dated June 2, 2014; and
          9. First Report of Injury listing Amazon as the employer and the date of injury
             as July 8, 2014.

       The Court designated the following as the technical record:

          •    Petition for Benefit Determination (PBD), filed April 10, 2015;
          •    DCN, filed May 11, 2015; and
          •    Request for Expedited Hearing, filed May 19, 2015.

      The Court did not consider attachments to the above filings unless admitted into
evidence during the Expedited Hearing. The Court considered factual statements in the
above filings or any attachments thereto as allegations unless established by the evidence.



                                             2
       Mr. Callahan provided the only in-person testimony at the Expedited Hearing.

                                    History of Claim

                                    Procedural History

       Mr. Callahan first worked at Amazon's Charleston, Tennessee facility as an
employee of Integrity Staffmg Solutions (Integrity), a temporary employment agency
(Ex. 2, p. 1). He converted from an Integrity employee to an Amazon employee on June
29, 2014 (Ex. 2, p. 2). Mr. Callahan first reported left-shoulder pain on June 2, 2014,
while an Integrity employee (Ex. 5, p. 2).

       Mr. Callahan initially sought benefits for his left-shoulder injury through the
Benefit Review process. He withdrew an RF A naming Amazon as employer because
Amazon claimed he was not an Amazon employee on the date of injury and that he did
not report a left-shoulder injury after Amazon hired him (Ex. 1). Mr. Callahan then filed
an RF A naming Integrity as employee (Ex. 1).

       On January 21, 2015, a Specialist for the Bureau of Workers' Compensation found
that Mr. Callahan was not entitled to additional benefits for his June 2, 2014 left-shoulder
injury because that injury fully resolved (Ex. 1, pp. 3-7). Undeterred, on AprillO, 2015,
Mr. Callahan filed a PBD in this Court seeking benefits against Amazon for the July 8,
2014 left-shoulder injury.

                                     Factual History

               On June 2, 2014, Mr. Callahan reported left-shoulder pain while working
for Integrity. On that date, he completed and signed an Associate First Report of Injury
in which he described the mechanism of his injury as follows: "pushing boxes down line
and shoulder popped" (Ex. 8).

       Amcare is an on-site first aid center available to both Integrity and Amazon
employees. Mr. Callahan received treatment at Amcare immediately after the June 2,
2014 injury (Ex. 5, p. 5). The attending emergency medical technician (EMT) applied ice
and returned Mr. Callahan to work (Ex. 5, p. 5). Mr. Callahan returned to Amcare on
June 3 and 6 (Ex. 5, pp. 6-7). He reported on June 7, that he was no longer experiencing
left-shoulder pain (Ex. 5, p. 7).

       On July 8, 2014, Mr. Callahan reported another incident of pain in his left
shoulder while working at Amazon (Ex. 5, p. 8). On this date, he was an Amazon
employee (Ex. 2, p. 2). Amazon management sent Mr. Callahan to Amcare, where the
EMT noted "that it is a re-aggravation from his injury on 06/02" (Ex. 5, p. 8). The EMT
treated Mr. Callahan's left shoulder with ice and released him to return to work (Ex. 5, p.

                                             3
8). Mr. Callahan returned to Amcare on July 11, at which time he reported no left-
shoulder pain (Ex. 5, p. 9).

       Mr. Callahan continued working for Amazon for several weeks following the July
8 incident. He testified that the job he performed immediately following the July 8,
incident did not require him to use his left shoulder and, as such, the performance of that
job did not cause left-shoulder pain. Mr. Callahan testified, however, that his left-
shoulder pain increased over time as he continued to work at Amazon (Ex. 6, p. 2), but
that he did not mention this fact to Amazon's management because Amazon tended to
dismiss employees if they were hurt. Amazon eventually terminated Mr. Callahan (Ex. 4,
p. 2). Mr. Callahan claims that Amazon terminated him because he "could not hold rate
due to my shoulder (Ex. 4, p. 2).

       Mr. Callahan testified that, after Amazon terminated him, he performed lawn care
and pressure washing for private individuals and worked for other employers through
another temporary employment agency. Mr. Callahan claimed that his subsequent
employment did not require him to use his arm in an overhead fashion and that he did not
further injure his left shoulder.

       Mr. Callahan testified that, due to left-shoulder pain, he is currently unable to lift
his left arm over his head and cannot chop wood. He testified he has turned down
employment requiring overhead work with the left arm. He fmally testified that, due to
lack of funds and insurance coverage, he has not obtained treatment or evaluation of his
left-shoulder symptoms since terminated by Amazon.

                               Mr. Callahan's Contentions

              Mr. Callahan claims that he gave Amazon timely notice of his July 8, 2014
left shoulder injury. He contends that he contends that only a physician can address
whether the injury he sustained while working for Integrity, or the injury he sustained
while working for Amazon, entitles him to workers' compensation benefits. Mr.
Callahan argues Amazon's claim that he did not report an injury while employed by
Amazon is false and delayed his access to medical benefits, Accordingly, he claims that
Amazon should bear the cost of the treatment and evaluation of his injury.

                                  Amazon's Contentions

       Amazon claims Mr. Callahan has the burden of proving by expert medical opinion
that his left-shoulder injury arose primarily out of and in the course and scope of
employment. It claims that the only medical records introduced at the Expedited Hearing
contain no expert medical opinion on the causation issue. Accordingly, Amazon
contends that Mr. Callahan failed to meet his burden of proof and is not entitled to an
award of medical benefits.

                                              4
       Amazon also contends that, because Mr. Callahan told Amcare on July 11, 2014,
that he was not experiencing pain from his July 8, 2014 incident of left-shoulder pain,
any injury he sustained at Amazon was a temporary re-aggravation of the earlier injury he
reported while working for Integrity. Therefore, Amazon contends that it fully
discharged its workers' compensation obligations by affording Mr. Callahan treatment at
Amcare.

                       Findings of Fact and Conclusions of Law

                                  Standard Applied

        The Workers' Compensation Law shall not be remedially or liberally construed in
favor of either party but shall be construed fairly, impartially, and in accordance with
basic principles of statutory construction favoring neither the employee nor
employer. Tenn. Code Ann. § 50-6-116 (2014). 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. 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, 20 15). At an expedited hearing, an employee has the burden to come forward
with sufficient evidence from which the trial c~urt can determine that the employee is
likely to prevail at a hearing on the merits. Id.

                                        Factual Findings

        Upon consideration of the testimony in open court, the exhibits introduced by the
parties, the argument of counsel for the parties, and the record in this claim, the Court
makes the following factual findings in the Expedited Hearing conducted July 2, 2015:

          •   On June 2, 2014, Mr. Callahan reported pain in his left shoulder while
              performing duties in the course and scope of his employment by Integrity at
              Amazon's Charleston, Tennessee facility;
          •   Integrity sent Mr. Callahan to Amcare for treatment of his June 2, 2014
              left-shoulder pain;
          •   On June 6, 2014, Mr. Callahan reported to Amcare that he no longer
              experienced left shoulder pain;
          •   On June 24, 2014, Amazon hired Mr. Callahan as a permanent Amazon
              employee;
          •   On July 8, 2014, Mr. Callahan reported that he re-aggravated his left
              shoulder-pain while performing duties assigned him by Amazon;
          •   Amazon sent Mr. Callahan to Amcare for treatment of his July 8, 2014 left-
              shoulder pain;

                                            5
          •   On July 11, 2014, Mr. Callahan reported that he no longer experienced left
              shoulder pain;
          •   On an uncertain date between July 11, 2014, and October 6, 2014, Amazon
              terminated Mr. Callahan;
          •   On October 6, 2014, Mr. Callahan filed an RFA, naming Amazon as his
              employer and seeking benefits for a left-shoulder injury;
          •   On October 7, 2014, Cheryl Ploeger, a Mediation Specialist, reported to
              Mr. Callahan's counsel that an Amazon representative told her Amazon did
              not have documentation that Mr. Callahan sustained an injury after he
              converted from an Integrity employee to an Amazon employee;
          •   Mr. Callahan withdrew the RF A naming Amazon as employer shortly after
              Ms. Ploeger's report;
          •   On November 24, 2014, Mr. Callahan filed an RFA, naming Integrity as
              employer and seeking benefits for a left-shoulder injury;
          •   On January 21, 2015, a Specialist found that Mr. Callahan was not entitled
              to workers' compensation benefits for his June 2, 2014 left-shoulder injury
              because the injury fully resolved before Mr. Callahan converted from an
              Integrity employee to an Amazon employee.

                                  Application ofLaw to Facts

      The issues raised in this Expedited Hearing require the balancing of an injured
employee's right to receive medical benefits for a reported work-related injury with an
employer's right to require that the employee prove his claim. The Workers'
Compensation Appeals Board considered a similar issue in McCord v. Advantage Human
Resourcing, supra.

        The appeals board in McCord rejected the employee's argument that her report of
a work injury, standing alone, triggered the employer's duty to provide medical benefits.
McCord, at *7. In reliance on the fact that Tenn. Comp. R. & Regs. 0800-02-14-.04
(2013) provides an employer fifteen days after its receipt of notice of a claimed work
injury to investigate compensability, the appeals board held that an employer may deny a
claim without first providing medical benefits. !d. at *7. The appeals board further held
that, to succeed in an Expedited Hearing where the employer denies compensability, "the
employee must come forward with sufficient evidence from which the trial court can
determine that the employee likely will prove a compensable 'injury by accident."' !d.

       In McCord, the employee asserted that the employer's denial of her claim without
sending her to a doctor prevented her from establishing her claim by expert medical
opinion. In fact, the employee limited her request for relief at the Expedited Hearing to
the provision of a panel from which she could select a physician to address causation. !d.
at *8. Despite the absence of expert medical opinion on the issue of causation, the

                                            6
appeals board found that the employee was entitled to a panel. In support of its position,
the appeals board noted that the employee testified without contradiction that she felt
pain while lifting boxes on the job, reported her symptoms promptly, and, in the days
following her report of injury, obtained treatment on her own for her alleged work injury.
!d. at *8.

       The Court notes similarity between the facts here and those in McCord. Amazon
introduced neither testimony nor evidence that rebutted Mr. Callahan's testimony that he
injured his left shoulder while working for Amazon. Amazon accepted the credibility of
Mr. Callahan's report of injury to the extent that it sent him to Amcare, where he received
treatment. As in McCord, Mr. Callahan seeks a panel so he can select a physician to
address the causation issues that his claim presents. In view of the principles outlined in
McCord, the Court finds that Amazon must provide Mr. Callahan a panel from which he
can select a physician for treatment and evaluation of his left-shoulder symptoms.

        In finding that Amazon must provide Mr. Callahan a panel, the Court also takes
into consideration the "last injurious injury rule." The Tennessee Supreme Court adopted
this rule in the case of Baxter v. Smith, 364 S.W.2d 936 (Tenn. 1962), wherein it held,
''the most recent injury causally related to the employment renders the employer at that
time liable for full compensation." The rule has stood the test of time. In Crew v. First
Source Furniture Group, 259 S.W. 3d 656, 667 (Tenn. 2008), the Supreme Court cited
Baxter approvingly, holding, "in determining which of two successive insurers is liable in
a workers' compensation case, the insurer at the time of the employee's last injurious
exposure is liable for the injury." !d.

       In view of the above authority, the Court finds that, despite the fact Mr. Callahan
experienced pain in his left shoulder while working at Amazon's facility as an Integrity
employee, it is appropriate for Amazon to provide medical benefits since Mr. Callahan's
most recent incident of work-related left-shoulder pain occurred while he was an Amazon
employee.

      The Court finds unpersuasive Amazon's position that it is not responsible for Mr.
Callahan's treatment because, on July 11, 2014, he reported to Amcare that his left
shoulder was not hurting. The Court first notes that all treatment Mr. Callahan received
at Amcare was provided by EMTs. With a few exceptions that do not include treatment
by an EMT, the medical benefits provision of the Tennessee Workers' Compensation
Law requires that an employer provide an injured employee treatment by a physician.
See generally Tenn. Code Ann. § 50-6-204 (2014). Accordingly, the Court finds that
Amazon did not satisfy its statutory obligation to provide medical treatment of a reported
work injury by sending Mr. Callahan for treatment by an EMT.

       Additionally, the Court fmds that Mr. Callahan's report that he was pain-free on a
single date is not conclusive proof that the July 8, 2014 injury had resolved. Amazon did

                                            7
not introduce testimony or evidence that rebutted Mr. Callahan's testimony that his left-
shoulder pain worsened as he continued to work for Amazon and that he currently
experiences pain for which he seeks treatment. The Court finds that Amazon can
adequately address its concern that Mr. Callahan does not currently require treatment for
a left-shoulder injury at Amazon by asking a panel physician to consider these issues.

IT IS, THEREFORE, ORDERED as follows:

    1. Amazon or its workers' compensation carrier shall provide medical care for Mr.
       Callahan's injuries as required by Tennessee Code Annotated section 50-6-204
       (20 14 ), to be initiated by Amazon or its workers' compensation carrier promptly
       providing Mr. Callahan a panel.

   2. This matter is set for Initial Hearing on November 6, 2015, at 3:00p.m., Eastern
      Time.

   3. Unless interlocutory appeal of the Expedited Hearing Order is filed,
      compliance with this Order must occur no later than seven (7) business days
      from the date of entry of this Order as required by Tennessee Code
      Annotated section 50-6-239(d)(3) (2014).       The Insurer or Self-Insured
      Employer must submit confirmation of compliance with this Order to the
      Bureau by email to WCCompliance.Program@tn.gov no later than the
      seventh (7th) business day after entry of this Order. Failure to submit the
      necessary confirmation within the period of compliance may result in a
      penalty assessment for non-compliance.

   4. For questions regarding compliance, please contact the Workers' Compensation
      Compliance Unit via email WCCompliance.Program@tn.gov or by calling (615)
      253-1471 or (615) 532-1309.

       ENTERED this the 31st day of July, 2015.



                                  Ju&.:=!w1r1/
                                  Court of Workers' Compensation Claims

Initial Hearing:

      An Initial Hearing has been set with Judge Thomas Wyatt, Court of Workers'
Compensation Claims, on November 6, 2015, at 3:00 p.m. Eastern Time. You must
call615-741-3061 or toll free at 855-747-1721 to participate in the Initial Hearing.


                                           8
       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.


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 (7) 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.

   4. The appealing party is responsible for payment of a filing fee in the amount of
      $75.00. Within ten ( 10) 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
      ( 10) 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 ( 10) calendar days of the filing of the Expedited
      Hearing Notice of Appeal. Alternatively, the parties may file a statement of the
      evidence within ten (1 0) calendar days of the filing of the Expedited Hearing
      Notice of Appeal. The Judge must approve the statement of the evidence before
      the Court Clerk may submit the record to the Clerk of the Appeals Board.

   6. If the appellant elects to file a position statement in support of the interlocutory
      appeal, the appealing party shall file such position statement with the Court Clerk

                                            9
        within three (3) business days of the filing of the Expedited Hearing Notice of
        Appeal, specifying the issues presented for review and including any argument in
        support thereof. If the appellee elects to file a response in opposition to the
        interlocutory appeal, appellee shall do so within three (3) business days of the
        filing of the appellant's position statement.

                              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 31st day of
July, 2015.


 Name                        Certified   Via         Via    Service sent to:
                              Mail       Fax        Email
 Franklin        Chancey,                            X      franklin@cklplaw.com
 Attorney
 Marianna        Jablonski                           X      mljablonski@mijs.com
 Attorney


                                               ./) foUAA--- /
                                          ~urn, Clerk of Court
                                          Court of Workers' Compensation Claims
                                          WC.CourtClerk@tn.gov




                                               10
