                  TENNESSEE DIVISION OF WORKERS’ COMPENSATION
                     WORKERS’ COMPENSATION APPEALS BOARD


Employee: Aaron Stanley                            )       Docket No. 2015-05-0025
                                                   )
Employer: Walmart, Inc.                            )       State File No. 96698-2014



                                   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 26th day of June, 2015.
 Name                  Certified   First Class   Via   Fax      Via     Email Address
                       Mail        Mail          Fax   Number   Email

 Jonathan West                                                    X     jon@westlawpllc.com
 Jay Johnson                                                      X     jay@cmwatsonlaw.com
 Joshua Davis Baker,                                              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
           TENNESSEE DIVISION OF WORKERS' COMPENSATION
              WORKERS' COMPENSATION APPEALS BOARD


Employee: Aaron Stanley                    ) Docket No. 2015-05-0025
                                           )
Employer: Walmart, Inc.                    )   State File No. 96698-2014
                                           )
                                           )
Appeal from the Court of Workers'          )
Compensation Claims                        )
Joshua Davis Baker, Judge                  )




                    Affirmed and Remanded- Filed June 26, 2015


  OPINION AFFIRMING AND REMANDING INTERLOCUTORY ORDER OF
           COURT OF WORKERS' COMPENSATION CLAIMS

This interlocutory appeal focuses on whether the employee presented sufficient evidence
for the trial court to award additional medical benefits. The employee claims to have
injured his low back while engaged in lifting heavy items at work. Following the
employee's initial visit with a physician selected from an employer-provided panel, the
employer terminated medical benefits, asserting the alleged work injury did not primarily
arise' out of or occur in the course and scope of the employment. The employee requested
and was provided an expedited hearing, but no one testified at the hearing. The trial court
denied the employee's request for additional medical care based on a finding that the
employee did not present sufficient evidence for the trial court to determine that the
employee would likely prevail at a hearing on the merits. The employee has appealed.
Having carefully reviewed the record, we affirm the trial court and remand the case for
further proceedings as may be necessary.

Judge David F. Hensley delivered the opinion of the Appeals Board, in which Judge
Marshall L. Davidson, III, and Judge Timothy W. Conner, joined.
Jonathan West, White House, Tennessee, for the employee-appellant, Aaron Stanley

Jay Johnson, Henderson, Tennessee, for the employer-appellee, Walmart, Inc.

                                Factual and Procedural Background

        Aaron Stanley ("Employee") is a 42 year-old Rutherford County, Tennessee
resident employed by Walmart, Inc. ("Employer") at its store on Old Fort Parkway in
Murfreesboro. On the morning of December 9, 2014, Employee went to Employer's
office and advised an Assistant Manager, Robert Handley, that his back was hurt and that
he wanted to be seen by a doctor. According to the Assistant Manager, Employee did not
know exactly when he hurt his back or what he was doing when he hurt his back and said
his back "had been worsening over the last 2 or 3 weeks." Employee completed an
Associate Incident Report that described what he was doing ')ust before the incident" as
"lifting heavy items in back room." Employee's description of "how the injury actually
occurred" stated "just lifting." The "Date/Time of Incident" was stated to be "starting
around week of [November 17, 2014]." Both the Assistant Manager and a co-employee,
Marvin Jones, completed "Witness Statements" dated December 9, 2014, which indicated
that Employee said he had been hurting for two or three weeks. A Declaration Made
Under Penalty of Perjury 1 by the co-worker was admitted into evidence, which stated "I
asked Mr. Stanley if he knew of how he had hurt his back, and he could not tell me of any
specific incident or set of incidents that caused his back pain or injury." A similar
declaration by the Assistant Manager stated that "I asked Mr. Stanley if he know [sic] of
how he had hurt his back, and he could not tell me of any specific incident or set of
incidents that caused his back pain or injury." Employer completed a "First Report of
Work Injury or Illness" on December 9, 2014, identifying the mechanism of injury to be
"material handling-lifting." The report stated that Employee "injured back over a period
of time."

        Employer provided Employee a panel of physicians on December 9, 2014, and
Employee selected Dr. Frank Thomas of Concentra Medical Centers as his authorized
treating physician. Employee was initially seen by Dr. Thomas the following day. At the
initial visit, Employee completed an intake form and in response to the question, "[h]ow
did the injury happen," Employee wrote "possably [sic] lifting." The report of the
December 10, 2014 visit with Dr. Thomas included the following:

                 Patient states: "I INJURED MY LOWER BACK WHILE
                 LIFTING." He constantly lifts at work and lift[s] products
                 frequently weighing 40-60 lbs. He has [sic] no one event but
1
 Rule 72, Tennessee Rules of Civil Procedure, provides that "[w]henever these rules require or permit an affidavit
or sworn declaration, an unsworn declaration made under penalty of perjury may be filed in lieu of an affidavit or
sworn declaration."

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             has had soreness for about two weeks as his work load has
             increased. [The] pain and discomfort in his lower back has
             increased in intensity over the past day or two.

Dr. Thomas' assessment in the initial report was "lumbar strain." Employee was released
to return to modified duty work with restrictions. Dr. Thomas recommended that
Employee begin physical therapy.

       The administrator for Employer's workers' compensation insurer sent Employee a
letter dated December 15, 2014, wherein it advised that it had "conducted an
investigation to determine whether or not your alleged work injury arose out of and was
in the course and scope of your employment." The letter denied Employee's claim,
stating that "[a]s a result of that investigation, we have determined that your injury did
not meet this requirement."

        Employee returned to Dr. Thomas for a follow-up visit on December 30, 2014.
The report states that Employee told Dr. Thomas that his back pain had improved, but he
had started to experience "abdominal soreness" and "discomfort in the left testicle." Dr.
Thomas added "[a]bdominal wall strain" to the assessment in the December 30, 2014
report, and he included additional work restrictions to prohibit Employee from bending.

      On March 25, 2015, Employee's attorney wrote Dr. Thomas seeking an opinion
on medical causation. The letter included the following history:

       Please be advised that I represent Mr. Aaron Stanley in a workers'
       compensation claim resulting from a lower back injury that occurred on or
       about December 8, 2014 ....

      As you are aware, you first evaluated Mr. Stanley on December 10, 2014,
      wherein Mr. Stanley reported that he injured his lower back while lifting.
      Moreover, Mr. Stanley reported that he constantly lifted at work which
      encompassed constant lifting of products frequently weighing between
      forty and sixty pounds.

Four specific questions were presented in the March 25, 2015 letter, with space for the
doctor to indicate a "Yes" or "No" response to each question. Dr. Thomas marked "Yes"
in response to questions asking if it was his opinion that Employee's lower back strain
"as reported on November 17, 2014 and documented on December 8, 2014," and his
abdominal strain "as documented on December 30, 2014," were the "direct result of
[Employee's] work related lifting activities." Dr. Thomas also marked "Yes" in response
to questions asking if it was his opinion that Employee's lower back strain and abdominal
strain were "primarily caused by [Employee's] work related lifting activities." The
questions stated that "primarily is defined by the Tennessee Department of Labor as

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causation above 51% considering all other contributing factors."

       Employee filed a Petition for Benefit Determination on February 4, 2015.
Following the filing of a Dispute Certification Notice on March 4, 2015, Employee filed
a Request for Expedited Hearing on March 30, 2015. On May 20, 2015, the trial court
issued its expedited hearing order concluding that Employee "is not entitled to the
requested medical benefits." Employee timely filed a notice of appeal on May 28, 2015.

                                  Standard of Review

        The standard of review applied by this Board in reviewing a trial court's decision
is statutorily mandated and limited in scope. Specifically, "[t]here shall be a 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 limited circumstances warranting reversal or modification of a trial court's
decision are specified in the statute:

                The workers' compensation appeals board may reverse or modify
       and remand the decision of the workers' compensation judge if the rights of
       any 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; or
             (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).

       In applying the standard set forth in subparagraph (E) above, courts have
construed "substantial and material" evidence to mean "such relevant evidence as a
reasonable mind might accept to support a rational conclusion and such as to furnish a
reasonably sound basis for the action under consideration." Clay Cnty. Manor, Inc. v.
State, Dep't of Health & Env't, 849 S.W.2d 755,759 (Tenn. 1993) (quoting Southern Ry.
Co. v. State Bd. of Equalization, 682 S.W.2d 196, 199 (Tenn. 1984)). Like other courts
applying the standard 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.



                                            4
                                                   Analysis

        Tennessee Code Annotated sectiori 50-6-239(d)(l) (2014) establishes a different
standard of proof for the issuance of interlocutory orders at expedited hearings than the
standard of proof required at compensation hearings. 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, 2015). 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.

       To be compensable under the workers' compensation statutes, an injury must arise
"primarily out of and in the course and scope of employment." Tenn. Code Ann. § 50-6-
 102(13) (2014). "Injury" is defined as "an injury by accident ... arising primarily out of
and in the course and scope of employment, that causes death, disablement or the need
for medical treatment of the employee." !d. For an injury to be accidental, it must be
"caused by a specific incident, or set of incidents, arising primarily out of and in the
course and scope of employment, and is identifiable by time and place of occurrence, and
shall not include the aggravation of a preexisting disease, condition or ailment 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(13)(A) (2014). "An injury 'arises primarily out of and in the course and scope of
employment' only if it has been shown by a preponderance of the evidence that the
employment contributed more than fifty percent (50%) in causing the injury, considering
all causes." Tenn. Code Ann. § 50-6-102(13)(B) (2014). "An injury causes death,
disablement or the need for medical treatment only if it has been shown to a reasonable
degree of medical certainty that it contributed more than fifty percent (50%) in causing
the death, disablement or need for medical treatment, considering all causes." Tenn.
Code Ann. § 50-6-102(13)(C) (2014). "The opinion of the treating physician, selected by
the employee from the employer's designated panel of physicians ... shall be presumed
correct on the issue of causation but this presumption shall be rebuttable by a
preponderance ofthe evidence." Tenn. Code Ann.§ 50-6-102(13)(E) (2014).

       In this case, the entirety of the evidence available to the trial court was limited to
twenty-four exhibits admitted into evidence. The exhibits included the medical records
of Dr. Thomas and Con centra Medical Centers, the Associate Incident Report completed
by Employee, and the declarations and witness statements of Employer's Assistant
Manager and a co-employee. Employee did not present an affidavit addressing how he
was injured, 2 and neither he nor any other witnesses testified. As noted by the trial court,
2
  Tenn. Comp. R. & Regs. 0800-02-21-.14(1 )(a) provides that all motions for expedited hearing must be
accompanied by affidavits and any other information demonstrating that the employee is entitled to temporary
disability or medical benefits. No objection was made to the expedited hearing being conducted without affidavits

                                                       5
the only evidence in the record of Employee's own statements are those included in the
Associate Incident Report completed on December 9, 2014, and the patient intake form
Employee completed at Concentra Medical Centers on December 10, 2014.

        The trial court found the evidence concerning whether Employee sustained an
injury by accident to be equivocal. Contrasting Employee's written statements in the
Associate Incident Report that he was "lifting heavy items in back room" just before the
incident, and ''just lifting" at the time of the incident, with the less certain statement in the
Concentra Medical Centers' intake form describing how the injury occurred as "possably
[sic] lifting," the trial court found "these differing statements indicate [uncertainty] on
[Employee's] part in defining the mechanism of injury." The trial court emphasized the
"curiously unequivocal" patient history in the record of Employee's first visit with Dr.
Thomas and the two declarations Employer submitted from its Assistant Manager and a
co-worker stating Employee "told both men that he was not sure how his injury
occurred." Noting Employer "presented sworn statements 3 that cast doubt on the
compensability of [Employee's] claim," the trial court determined that Employee's
statements "do not present sufficient detail to present a prima facie case for an injury by
accident." Furthermore, as stated by the trial court, "the only statements providing detail
on how [Employee] allegedly suffered his injuries--the patient history from the December
10, 2014 office visit and the causation letter--were neither written, nor expressly adopted,
by him."

       The trial court correctly notes that Employee "does not have to prove his entire
claim by a preponderance of the evidence at an Expedited Hearing." See Tenn. Code
Ann.§ 50-6-239(d)(l); McCord, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9. Stating
that Employee "must present proof showing that he is likely to prevail at a hearing on the
merits," the trial court denied Employee's requested benefits, concluding that "[a]t this
point, [Employee] has not carried this burden." As noted above, 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) (2014). Having carefully considered the twenty-four exhibits admitted into
evidence, we cannot say that the evidence preponderates against the findings and
conclusions of the trial court.

                                                 Conclusion

        For the foregoing reasons, we hold that the evidence does not preponderate against
the trial court's conclusion that Employee did not present sufficient evidence from which
the trial court could determine that he would likely prevail at a hearing on the merits.

and other information as required by this regulation, and the issue has not been raised on appeal. Accordingly, the
issue has been waived and we decline to address it.
3
  Employer presented unsworn Declarations Made Under Penalty of Perjury of two individuals made pursuant to
Rule 72, Tennessee Rules of Civil Procedure, and not sworn statements.

                                                        6
Thus, the trial court did not err in denying the requested medical benefits. We
additionally find that the trial court's decision does not violate any of the standards
identified in Tennessee Code Annotated section 50-6-217(a)(3) (2015). Accordingly, the
trial court's decision is affirmed and the case is remanded for any further proceedings that
may be necessary.




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