              IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                               AT KNOXVILLE

JOHN TIDMORE                                               )    Docket No.: 2015-03-0265
         Employee,                                         )
                                                           )
v.                                                         )    State File Number: 24517-2015
                                                           )
TENNESSEESTEELCENTER                                       )
        Employer,                                          )    Judge Lisa A. Knott
And                                                        )
                                                           )
MITSUI SUMITOMO INSURANCE                                  )
COMPANY                                                    )
         Insurance Carrier.                                )


         EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS


        This matter came before the undersigned workers' compensation judge on the
Request for Expedited Hearing filed by the Employee, John Tidmore, pursuant to
Tennessee Code Annotated section 50-6-239 (2014). The present focus of this case is
Mr. Tidmore's right shoulder condition. The central legal issues are whether Mr.
Tidmore gave proper notice of his claim and whether his injury arose primarily in the
course and scope of his employment. For the reasons set forth below, the Court finds that
Mr. Tidmore provided proper notice of his gradually occurring injury to his Employer,
Tennessee Steel (TN Steel). The Court further finds that based on the evidence presented
at this time, Mr. Tidmore is likely to succeed at a hearing on the merits of establishing
that his right shoulder condition arose primarily in the course and scope of his
              1
employment.

                                               History of Claim

         Mr. Tidmore is a 60-year-old resident of Knox County, Tennessee.

1
  A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.
                TN Steel employed Mr. Tidmore to operate a six-hundred-ton press. Mr. Tidmore
         alleged he received a right shoulder rotator cuff tear from repetitive movements of
         pulling or pushing a two-foot wrench to loosen and tighten large bolts.

                Mr. Tidmore underwent his yearly physical with Dr. Christopher Cox on June 17,
         2014. He complained about pain, for about a year, in both shoulders, right greater than
         left. At his September 17, 2014 visit, Mr. Tidmore informed Dr. Cox he was still
         experiencing shoulder pain and referenced that he is physically active at work. On March
         17,2015, an MRI of Mr. Tidmore's right shoulder demonstrated a partial thickness tear
         of two tendons in the shoulder and a labral tear. Dr. Cox referred Mr. Tidmore for an
         orthopedic evaluation. (Ex. 3.)

                The First Report of Injury reflects that Mr. Tidmore provided notice of his injury
         to TN Steel on March 17, 2015. (Ex. 15.) TN Steel provided Mr. Tidmore a panel of
         physicians, from which he selected Dr. Paul Brady. (Ex. 5.) Dr. Brady's May 18, 2015
         note contains the following:

               He reports the [right] shoulder has been giving him problems for years. It
               hurts on and off. He denies any specific incident or event on his shoulder.
               He has seen another physician who ordered an MRI.                 That MRI
               demonstrated a high-grade partial to small full-thickness rotator cuff tear.
               The patient then felt like this was likely attributable to some of his work
               activities, which require significant force to push and pull hard bolts when
               tightening and loosening those bolts.

               I told him that without an event or an accident, I cannot within a reasonable
               degree of medical certainty attribute his rotator cuff tear back to a work-
               related event and therefore I did not think this is something, which qualifies
               under current Workmen's Compensation laws as being a work comp injury.
               I told him I am happy to take care of his shoulder outside of the work comp
               system if he so desires. Follow up with me as needed. No restrictions from
               my standpoint.

         In addition, Dr. Brady handwrote on the May 18, 2015 WORKlink sheet, "Can not [sic]
         attribute problem to a work injury."

               Mr. Tidmore returned to Dr. Brady on July 27, 2015, and brought a video of a co-
         worker changing bolts for him to watch. Dr. Brady noted:

               I told him that after reviewing this video I do believe doing this repetitively
               over a long period of time is likely to have contributed/Colles[ sic] his
               rotator cuff tearing. I believe this within a reasonable degree of medical
               certainty [to be] the case. I told him to work with his mediator in regards to




------------------------------------------------------------------------
         this causation and whether this should be filed as a Workmen's
         Compensation injury or under private insurance. (Emphasis added.)

      Dr. Brady also made the following addendum to his note: "I believe that Mr.
Tidmore's right shoulder rotator cuff tear shows a preponderance of the evidence that his
employment contributed more than 50% in causing the injury considering all causes."
(Emphasis added). (Ex. 2.)

      Mr. Tidmore filed a Petition for Benefit Determination seeking medical benefits.
The parties did not resolve the disputed issues through mediation, and the Mediating
Specialist filed a Dispute Certification Notice. Mr. Tidmore filed a Request for
Expedited Hearing, and this Court heard the matter on October 6, 2015.

       At the Expedited Hearing, Mr. Tidmore asserted he provided proper notice of his
injury because he reported it after realizing his shoulder pain was due to a tear rather than
general work aches and pains. He further asserted that Dr. Brady's July 27, 2015 opinion
established his injury arose primarily out of and in the course and scope of his
employment. TN Steel countered that Mr. Tidmore did not give proper notice of his
injury because he knew when he saw Dr. Cox in June 2014, that he thought his shoulder
pain was work-related, yet he did not provide notice of his injury to TN Steel until March
17, 2015. TN Steel further countered that Dr. Brady's conflicting causation opinions
cancel each other out and should not be given weight because Mr. Tidmore did not
provide an accurate history of the time he spent removing the bolts and did not tell Dr.
Brady about his gardening activities.

                              Findings of Fact and Conclusions of Law

       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). The employee in a workers'
compensation claim has the burden of proof on all essential elements of a claim. Tindall
v. Waring Park Ass 'n, 725 S.W.2d 935, 937 (Tenn. 1987); 2 Scott v. Integrity Staffing
Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn.
Workers' Comp. App. Bd. Aug. 18, 2015). 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

2
 The Tennessee Workers' Compensation Appeals Board allows reliance on precedent from the Tennessee Supreme
Court "unless it is evident that the Supreme Court's decision or rationale relied on a remedial interpretation of pre-
July I, 2014 statutes, that it relied on specific statutory language no longer contained in the Workers' Compensation
Law, and/or that it relied on an analysis that has since been addressed by the general assembly through statutory
amendments." McCord v. Advantage Human Resourcing, No . 2014-06-0063, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, *13 n.4 (Tenn. Workers' Comp. App. Bd. Mar. 27, 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 court can determine that the employee is likely to
prevail at a hearing on the merits. !d.

                                          Notice

       Tennessee Code Annotated section 56-6-201(b) (2014) provides the following:

       In those cases where the injuries occur as the result of gradual or
       cumulative events or trauma, then the injured employee ... shall provide
       notice of the injury to the employer within thirty days after the employee:
       ( 1) Knows or reasonably should know that the employee has suffered a
            work-related injury that has resulted in permanent physical impairment;
            or
       (2) Is rendered unable to continue to perform the employee's normal work
            activities as the result of the work-related injury and the employee
            knows or reasonably should know that the injury was caused by work-
            related activities.

        Mr. Tidmore testified he always had general aches and pains from performing his
physically demanding job. He initially had pain in both shoulders, but ultimately the left
shoulder pain resolved. He stated he thought that the right shoulder pain would resolve
as well. The Court finds that Mr. Tidmore did not know his work activities resulted in
permanent physical impairment until the MRI revealed a tear, and he was referred to an
orth pedic physician. Human Resources Manager Vickie Mooney testified that Mr.
Tidmor · contacted her around March l t 11 or 18th to advise he was having problems with
his right shoulder that he related to a prior 2013 work-related elbow injury. She further
noted Mr. Tidmore sent her a text message on March 28, 2015, stating that the date of
injury should be the MRI date. (Ex. 13.) Ms. Mooney also testified that Dr. Cox
assigned Mr. Tidmore restrictions on March 31, 2015. The Court finds Mr. Tidmore
underwent the MRI on March 17, 2015, and provided notice of a work-related injury to
TN Steel on either March 17, 2015, or, at the latest, March 28, 2015. (Exs. 13, 15.)
Therefore, Mr. Tidmore provided notice within thirty days of knowing his work-related
injury resulted in permanent impairment and of being assigned restrictions that prevented
him from performing his normal work activities.

                                       Causation

        An injury causes death, disablement or the need for medical treatment only if it
has been shown by a reasonable degree of medical certainty that it contributed more than
fifty percent (50%) in causing the death, disablement or the need for medical treatment,
considering all causes." Tenn. Code Ann. § 50-6-102(13)(C) (2014). Tennessee Code
    Annotated section 50-6-102(13)(D) (2014) provides, "'shown to a reasonable degree of
    medical certainty' means that, in the opinion of the physician, it is more likely than not
    considering all causes, as opposed to speculation or possibility." "The opinion of the
    treating physician, selected by the employee from the employer's designated panel ...
    shall be presumed correct on the issue of causation but this presumption shall be
    rebuttable by a preponderance of the evidence." Tenn. Code Ann. § 50-6-102(13)(E)
    (2014).

        During the Expedited Hearing, Mr. Tidmore stated any time he had to remove the
bolts, it took about one to two minutes to remove all ten of them. He also testified he did
not change the bolts all day long. He said some days he does not change the bolts at all,
and he may go two to three days without changing the bolts. Plant Manager Ronnie King
provided monthly reports that reflect the frequency the bolts were changed. The Court
admitted those reports into evidence as Collective Exhibit 9, and they reflect the
following:

                  In September 2014, the bolts were changed 11 up to 16 times. 3
                  In October 2014, the bolts were changed 13 up to 21 times.
                  In November 2014, the bolts were changed 9 up to 11 times.
                  In December 2014, the bolts were changed 7 up to 10 times.
                  In January 2015, the bolts were changed 9 up to 13 times.
                  In February 2015, the bolts were changed 7 up to 9 times.

       The nurse case manager, Sue Millhouse, testified that, on one occasion, Mr.
Tidmore related to her that he associated his shoulder problems being related to his
gardening and life activities. Mr. Tidmore admitted during cross-examination that he has
two gardens at home, one four feet by ten feet, and the other twelve feet by twelve feet.
He stated he tilled the gardens with a shovel and acknowledged he did not tell Dr. Brady
about his gardening activities.

       The Court finds Dr. Brady initially opined, in his May 18, 2015 office note and
WORKlink sheet, that Mr. Tidmore's shoulder injury was not work-related. Then after
watching the video of changing bolts, he said, "doing this repetitively over a long period
of time is likely to have contributed/Colles[sic] his rotator cuff tearing." Dr. Brady's
second opinion does not meet Mr. Tidmore' s burden of establishing that his shoulder
injury arose primarily out of and in the course and scope of his employment. Finally, Dr.
Brady's third opinion, provided in the addendum, was "I believe that Mr. Tidmore's right
shoulder rotator cuff tear shows a preponderance of the evidence that his employment
contributed more than 50% in causing the injury considering all causes." Dr. Brady's
third causation opinion meets Mr. Tidmore's burden, and is presumed correct since he is
the authorized treating physician selected from a panel.
3
  The potential additional number is due to a shift change. In this example, the bolts were changed at least eleven
times and could have been changed an additional five times due to the shift change.
            The premises for Dr. Brady's opinion are that Mr. Tidmore performed the activity
    depicted on the video "repetitively" and he considered all potential causes of Mr.
    Tidmore's right shoulder injury. As TN Steel argued, Dr. Brady's notes do not provide
    his definition of "repetitive" and do not indicate he ever discussed or questioned Mr.
    Tidmore about any other potential causes for his shoulder injury. It does not appear that
    Mr. Tidmore provided Dr. Brady with specific information about how many times per
    month he changed the bolts. Furthermore, the evidence provided at the Expedited
    Hearing and contained in Exhibit 9 could potentially affect Dr. Brady's opinion about
    whether Mr. Tidmore performed the bolt-removing activity on a repetitive basis. In
    addition, Dr. Brady was not provided information about Mr. Tidmore's gardening
    activities. However, TN Steel did not provide any of this information to Dr. Brady.
    Therefore, this Court would be engaging in speculation if it were to presume Dr. Brady's
    opinion would change upon being presented with said information.

           Therefore, as a matter of law, Mr. Tidmore has come forward with sufficient
    evidence from which this Court concludes that he is likely to prevail at a hearing on the
    merits. His request for medical benefits is granted at this time.

    IT IS, THEREFORE, ORDERED as follows:

       1. Medical care for Mr. Tidmore's injuries shall be paid and Tennessee Steel Center
          or its workers' compensation carrier shall provide Mr. Tidmore with medical
          treatment from Dr. Brady for his right shoulder injury as required by Tennessee
          Code Annotated section 50-6-204 (2014).

       2. This matter is set for an Initial (Scheduling) Hearing on January 5, 2016, at 9a.m.
          Eastern.

       3. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
          with this Order must occur no later than seven 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
          W ompliance.Program@tn .gov no later than the seventh 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 WC ompliance.Pr gram@tn.gov or by calling (615)
          253-1471 or (615) 532-1309.




------
       ENTERED this the 5th day of~b~ 2~



                                  Judge Lisa A. Knott
                                  Court of Workers' Compensation Claims

lnitial (ScbeduJin g) Hearing:

      An Initial (Scheduling) Hearing has been set with Judge Lisa A. Knott, Court of
Workers' Compensation Claims. You must call 865-594-0109 or toll-free at 855-
383-0003 to participate in the Initial Hearing.

       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 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 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 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
      lndigency 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 calendar days of the filing of the Expedited
   Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
   the evidence within ten calendar days of the filing of the Expedited Hearing
   Notice of Appeal. The statement of the evidence must convey a complete and
   accurate account of what transpired in the Court of Workers' Compensation
   Claims and must be approved by the workers' compensation judge before the
   record is submitted to the Clerk of the Appeals Board.

6. If the appellant elects to file a position statement in support of the interlocutory
   appeal, the appellant shall file such position statement with the Court Clerk within
   three business days of the expiration of the time to file a transcript or statement of
   the evidence, specifying the issues presented for review and including any
   argument in support thereof. A party opposing the appeal shall file a response, if
   any, with the Court Clerk within three business days of the filing ofthe appellant's
   position statement. All position statements pertaining to an appeal of an
   interlocutory order should include: (1) a statement summarizing the facts of the
   case from the evidence admitted during the expedited hearing; (2) a statement
   summarizing the disposition of the case as a result of the expedited hearing; (3) a
   statement of the issue(s) presented for review; and (4) an argument, citing
   appropriate statutes, case law, or other authority.
                                               APPENDIX

Exhibits:

    •   EXHIBIT 1: Affidavit of John Tidmore;
    •   EXHIBIT 2: Medical Records of Dr. Paul C. Brady, Tennessee Orthopedic Clinic;
    •   EXHIBIT 3: Medical Records of Fountain City Family Practice;
    •   EXHIBIT 4: Notice of Denial of Claim for Compensation, Form C-23;
    •   EXHIBIT 5: Agreement Between Employer/Employee Choice of Physicians, form
        C-42;
    •   EXHIBIT 6: MSIG Acknowledgement and Assignment;
    •   EXHIBIT 7: Photographs and Drawings of tools and workstation;
    •   EXHIBIT 8: Claimant's handwritten Timeline of Events

Technical record: 4
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing
   4. Notice of Appearance of Attorney McLaughlin
   5. Notice ofFiling of Wage Statement
   6. Amended Request for Expedited Hearing
   7. Notice of Discovery Filing




4
  The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as
allegations unless established by the evidence.
                            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 4th day of
November, 2015.


Name                        Certified Via       Via      Service sent to:
                            Mail      Fax       Email
TimothyM.                                         X      trnclaughlin@nmknoxlaw.com
McLaughlin,
Employee's Counsel
Jeffrey C. Taylor,                                 X     jeff@taylorlawfirmtn.com
Employer's Counsel




                                         Penny Shrum, Clerk of Court
                                         Court of Workers' Compensation Claims
                                         W C. Cou rtClerk@tn .gov
