             TENNESSEE BUREAU OF WORKERS' COMPENSATION
                WORKERS' COMPENSATION APPEALS BOARD


Nohemi Arciga                                ) Docket No. 2015-02-0217
                                             )
v.                                           )
                                             )   State File No. 6668-2015
At Work Personnel Services                   )
                                             )
                                             )
Appeal from the Court of Workers'            )
Compensation Claims                          )
Brian K. Addington, Judge                    )


                     Affirmed and Remanded - February 2, 2016


In this interlocutory appeal, the employee alleges that she injured her right shoulder while
performing work activities. She received some authorized medical treatment, but the
employer subsequently denied that the need for medical treatment was causally-related to
the alleged shoulder injury and discontinued medical benefits. Following an expedited
hearing, the trial court ordered the employer to reinstate medical benefits, but denied her
claim for temporary disability benefits. The employee appealed, arguing that her
unrefuted lay testimony was sufficient to support a finding of medical causation. We
affirm the determination of the trial court and remand the case for any further
proceedings that may be necessary.

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

Russell Veldman, Chuckey, Tennessee, for the employee-appellant, Nohemi Arciga

Mary Elizabeth Maddox, Knoxville, Tennessee, for the employer-appellee, AtWork
Personnel Services
                               Factual and Procedural Background

        Nohemi Arciga ("Employee") is a forty-six-year-old resident of Hamblen County,
Tennessee. She was employed by AtWork Personnel Services ("Employer"), a
temporary employment agency, and was assigned to work at a manufacturing facility in
Hamblen County. 1 On January 19, 2015, she experienced pain and symptoms in her
upper back and right shoulder while performing assembly work. She reported these
symptoms to her employer and was referred to a chiropractor for evaluation and
treatment. 2 She saw the chiropractor on three occasions between January 21, 2015 and
January 26, 2015. On the latter date, he released her to return as needed and also released
her to return to work. Employee was terminated on February 23, 2015 for "violating
safety requirements. " 3

       Following her termination, Employee sought treatment from her primary care
physician and also demanded medical treatment from Employer. A panel of physicians
was provided from which she selected Healthstar Physicians on or about August 10,
2015. However, Employee did not attend an appointment with the Healthstar physician
until November 2, 2015. On that date, an unidentified Healthstar physician diagnosed
muscle spasms in her shoulder and prescribed medication and physical therapy.

        Employee filed a Petition for _Benefit Determination on July 8, 2015, seeking
additional medical benefits and temporary disability benefits: Following the issuance of
a Dispute Certification Notice, Employee filed a Request for Expedited Hearing
("REH"). Although the REH sought a ruling without an evidentiary hearing, the trial
court chose to conduct an evidentiary hearing in accordance with Tenn. Comp. R. &.
Regs. 0800-02-21-.14(l)(c). Following the December 16, 2015 hearing, the trial court
entered an order compelling Employer to provide additional medical benefits, but
denying Employee's claim for temporary disability benefits. Employee timely appealed,
asserting the trial court erred in failing to find that her shoulder injury was work-related.

                                         Standard of Review

       The standard of review to be applied by this Board in reviewing a trial court's
decision is statutorily mandated and limited in scope. Specifically, "[t]here shall be a
1
 No transcript of the proceedings in the trial court or statement of the evidence has been provided in this
appeal. Accordingly, we have gleaned the facts from the technical record, the trial court's expedited
hearing order, and the exhibits introduced during the expedited hearing.
2
 The record is silent regarding whether Employee selected the chiropractor from a panel of physicians
provided by Employer.
3
 Employee alleged a second work-related injury occurring on or about February 18, 2015, but the trial
court declined to consider evidence related to that claim and neither party raised this decision as an issue
on appeal.
                                                     2
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) (2014). The trial court's 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

       It is well-settled that an injured worker has the burden of proof on every essential
element of his or her claim. Tenn. Code Ann. § 50-6-239(c)(6) (2015); see also
Buchanan v. Car/ex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd.
LEXIS 39, at *5 (Tenn. Workers' Comp. App. Bd. Sept. 29, 2015). However, at an
expedited hearing at which pre-trial benefits are at issue, an employee need not prove
every element of his or her claim by a preponderance of the evidence but must 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) (2014). 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). This 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, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6.

      Moreover, the appealing party has the burden to ensure that an adequate record is
prepared on appeal. As explained in Vulcan Materials Co. v. Watson, No. M2003-00975-
WC-R3-CV, 2004 Tenn. LEXIS 451 (Tenn. Workers' Comp. Panel May 19, 2004):

      The appellant has the duty of preparing a record that conveys a fair,
      accurate and complete account of the proceedings in the trial court with
      respect to the issues on appeal. We are provided with only the trial court's

                                            3
       findings of fact and conclusions of law rendered from the bench and the
       exhibits introduced at the trial of this cause . . . . We do not have a record
       of the lay testimony presented to the trial court. In the absence of an
       adequate record on appeal, this Court must presume the trial court's
       rulings were supported by sufficient evidence.

Id. at *6-7 (emphasis added) (citations omitted). Furthermore, there is a statutory
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). In accordance with these established principles, without a transcript
or statement of the evidence, we presume that the trial court's rulings were supported by
sufficient evidence.

       Employee asserts that the trial court "erred when it found insufficient proof that
the injury was work-related." With respect to the element of medical causation, an
employee has the burden of proving, to a reasonable degree of medical certainty, that the
work accident "contributed more than fifty percent (50%) in causing ... the need for
medical treatment, considering all causes." Tenn. Code Ann. § 50-6-102(14)(C) (2015).
In addition, the phrase "shown to a reasonable degree of medical certainty" is defined to
require an "opinion of the physician" that it is "more likely than not, considering all
causes." Tenn. Code Ann.§ 50-6-102(14)(D) (2015).

       In the present case, Employee has offered no expert medical evidence to support a
finding of causation. Her lay testimony, while probative to the issue of causation, is
insufficient in and of itself to satisfy her burden of proof by a preponderance of the
evidence. Additionally, we have no record of Employee's testimony at the expedited
hearing and have no means to consider her testimony beyond what was cited by the trial
court in its order. Therefore, we find it was not error for the trial court to conclude that it
"cannot make a determination on the causation of Ms. Arciga's injury." Nevertheless, an
employee need not meet the ultimate burden of proof at an expedited hearing, but must
come forward with sufficient proof that he or she is likely to prevail at a hearing on the
merits. The trial court determined that Employee met that lesser burden and ordered
additional medical benefits.

       Finally, we note that the trial court found "the reasonable course at this time is to
return [Employee] to Healthstar for a causation opinion of [Employee's] spasms."
Although an injured worker may have a statutory right to medical benefits, assuming the
applicable proof requirements are met, there is no right to a "causation opinion" as such.
See generally Tenn. Code Ann. §§ 50-6-204, 239(d)(l); Tenn. Comp. R. & Regs. 0800-
02-17-.15 (2014). If a court determines that medical benefits are appropriate, the court
can order the initiation of such benefits, and the physician may be asked to address
causation in the course of treatment. However, it is each party's responsibility to secure
expert opinions or other evidence necessary to meet any applicable burden of proof.

                                              4
                                     Conclusion

        We conclude it was not error for the trial court to find that it was unable to
determine the medical cause of Employee's shoulder condition. We therefore affirm the
trial court's order and remand the case for further proceedings as necessary.



                                                        W. Conner, Judge
                                                       ' Compensation Appeals Board




                                          5
                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD

Nohemi Arciga                                            )   Docket No. 2015-02-0217
                                                         )
v.                                                       )
                                                         )    State File No. 6668-2015
AtWork Personnel Services                                )


                                     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 2nd day of February, 2016.
 Name                    Certified   First Class   Via   Fax       Via     Email Address
                         Mail        Mail          Fax   Number    Email

 Russell Veldman                                                      X    rveldman1@aol.com
 Mary Beth Maddox                                                     X    mmaddox@fmsllp.com
 Brian K. Addington,                                                  X    Via Electronic Mail
 Judge
 Kenneth M. Switzer,                                                  X    Via Electronic Mail
 Chief Judge
 Penny Shrum, Clerk,                                                  X     Penny.Patterson-Shrum@tn.gov
 Court of Workers’
 Compensation Claims




Matthew Salyer
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: Matthew.Salyer@tn.gov
