                  TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                     WORKERS’ COMPENSATION APPEALS BOARD


Employee: Rosemary Boyd                                )   Docket No. 2015-06-0257
                                                       )
Employer: Hewlett Packard Co.                          )   State File No. 72453-2014



                                   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 24th day of July, 2015.
 Name                  Certified   First Class   Via   Fax      Via     Email Address
                       Mail        Mail          Fax   Number   Email

 Michael Fisher                                                    X    mfisher@ddzlaw.com
 W. Troy Hart                                                      X    wth@mijs.com
 Dale Tipps, Judge                                                 X    Via Electronic Mail
 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
                                                                                      FILED
                                                                                    July 24, 2015
                                                                                      TEN:'IESSEE
                                                                                WORK EllS' COMPENSATION
                                                                                   APPEALS BOARI)

                                                                                     Time: 9:28AM


             TENNESSEE BUREAU OF WORKERS' COMPENSATION
                WORKERS' COMPENSATION APPEALS BOARD


Employee: Rosemary Boyd                     ) Docket No. 2015-06-0257
                                            )
Employer: Hewlett Packard Co.               )   State File No. 72453-2014
                                            )
                                            )
Appeal from the Court of Workers'           )
Compensation Claims                         )
Dale Tipps, Judge                           )




                    Affirmed and Remanded- Filed July 24,2015


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

In this interlocutory appeal, the employee alleges that she sustained a new injury or
aggravation of a pre-existing right shoulder condition while typing on a computer
keyboard at work. Following the employer's denial of the claim, the employee filed a
Request for Expedited Hearing and sought a decision from the workers' compensation
judge based on affidavits and documentary evidence without an evidentiary hearing. The
trial judge entered an expedited hearing order denying the employee's claim for benefits.
The employee has appealed, alleging that the trial judge did not give adequate weight to
the opinion expressed by the physician who previously treated the employee's shoulder
condition. Having carefully reviewed the record, we affirm the decision of the trial judge
and remand the case for further proceedings as 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.

Michael Fisher, Nashville, Tennessee, for the employee-appellant, Rosemary Boyd

W. Troy Hart, Knoxville, Tennessee, for the employer-appellee, Hewlett Packard Co.
                                 Factual and Procedural Background

       The employee, Rosemary Boyd ("Employee"), is a 61-year-old resident of
Davidson County, Tennessee, who alleges that she suffered a work injury on August 18,
2014. She was employed by Hewlett Packard Company ("Employer") as a clerk. Prior
to the date of the alleged work injury, Employee sought treatment from an orthopedic
physician, Dr. Brandon Downs, who performed surgery on her right shoulder in
December 2013 and again in June 2014 due to complaints unrelated to her .e.mployment.
The surgical procedures included right rotator cuff repair, distal clavicle excision and
                                           1
limited debridement of the right shoulder.

        On August 25, 2014, during a physical therapy appointment, Employee reported
that she had swelling in the top of her shoulder, that she experienced difficulty reaching,
and that she believed she may need an MRJ. The following day, August 26, 2014, she
returned to Dr. Downs, complaining that she "has persistent pain since the incident of
burning pain in the posterior shoulder on 8/11/2014." She also reported that her pain
was worse "in the morning, in the middle of the day, in the afternoon, at night, after
activity, and after physical therapy." There was no specific description of a work
incident involving a computer keyboard in either the August 25 physical therapy report or
the August 26 report from Dr. Downs.

        An MRl completed August 27, 2014, revealed a recurrent full thickness tear in the
right rotator cuff. On August 28, 2014, Dr. Downs discussed with Employee the need for
a third surgical repair. According to Dr. Downs' report dated September 2, 2014, "[t]he
patient reports that she had spoken with her office to file a claim with workers'
compensation on 8/29/2014. She was told that she needed documentation by a
practitioner of the work-related injury." Dr. Downs noted that her right shoulder pain
"developed as a result of a work-related injury on 8/11/2014 which occurred while she
was typing at her desk. She had stated that she went to key the F9 key and immediately
felt a 'pop' in her posterior shoulder [which] resulted in burning pain."

        Upon receiving Employee's report of an alleged work inJury, Employer apparently
authorized her to be evaluated at Concentra Medical Centers. On a document entitled
"Concentra Patient Information," which appears to be completed and signed by
Employee, she listed the date of injury as "8-18-20 14," contradicting Dr. Downs' records,
and wrote, "I was keying claims and reached for the F-6 button and felt something like a
split in my right shoulder with burning and pain that followed." In a report dated
1
  No evidentiary hearing occurred in this case. We have gleaned the facts from the trial court's interlocutory order,
the technical record, and the exhibits offered into evidence.
2
  It is unclear from the Concentra records whether Employee selected that practice from a panel of physicians
offered by Employer. On the Petition for Benefit Determination, Employee indicated that she had received a panel
of physicians and that she had selected Dr. Downs from that panel. However, other information in the record on
appeal suggests that the Concentra physicians were authorized pursuant to the Tennessee Workers' Compensation
Law, but that Dr. Downs was not.

                                                         2
September 12, 2014, the Concentra physician, Dr. Reddy, noted that "Patient denies any
lifting, pushing, pulling or overhead reaching with the shoulder." Dr. Reddy then
concluded, "[i]t is my opinion that this reported condition is unlikely work related."
Thereafter, in a report dated September 25, 2014, another Con centra physician, Dr. Syed,
stated, "[ m]echanism of injury does not support rotator cuff tear. Patient has preexisting
condition in the same shoulder and has history of previous recurrent rotator cuff injury
and tear."

       On November 9, 2014, Employer filed a Form C-23, Notice of Denial of Claim for
Compensation, indicating that Employer did not believe that the alleged injury arose out
of or in the course of employment. On January 16, 2015, counsel for Employee
forwarded a letter to Dr. Downs asking whether, in his opinion, Employee's right
shoulder injury "arose primarily out of [and in] the scope and course of her employment."
Dr. Downs, or someone on his behalf, checked the "Yes" response and signed the letter.
Thereafter, Employee submitted a written statement from Dr. Downs, who opined
"within a reasonable degree of medical certainty that [Employee] was involved in a work
                                                                                             3
incident on August 18, 2014 that primarily resulted in a[ n] injury to her right shoulder. "
He further stated that he "opine[ d] within a reasonable degree of medical certainty that
[Employee]'s August 18, 2014 work injury resulted in an anatomical change, progression
and advancement of any pre-existing right shoulder symptoms."

       On March 23, 2015, Employee filed a Petition for Benefit Determination ("PBD"),
seeking temporary disability benefits and medical benefits for the current injury.
Following mediation efforts, the Dispute Certification Notice was issued on May 5, 2015,
and the Request for Expedited Hearing was filed on June 10, 2015, seeking a ruling based
on a review of the file without an evidentiary hearing. The trial court issued its expedited
hearing order on July 6, 2015, and Employee timely filed a Notice of Appeal on July 7,
2015. The record was submitted to the Appeals Board on July 20, 2015.

                                              Standard of Review

         The standard of review applicable 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)
(20 14 ). Moreover, the statute details limited circumstances warranting reversal or
modification of a trial court's decision:

               The workers' compensation appeals board may reverse or modify
         and remand the decision of the workers' compensation judge if the rights of
3
 The written statement in the record is titled "Affidavit," but is not notarized under oath and, therefore, does not
constitute sworn testimony. However, Employer did not respond to the Request for Expedited Hearing and, thus,
offered no objection to the written statement of Dr. Downs.

                                                           3
         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) (2015), we will not disturb the
decision of the trial court absent the limited circumstances identified in the statute.

                                                     Analysis

        The issuance of an expedited hearing order is governed by Tennessee Code
Annotated section 50-6-239(d) (2014). Subparagraph (2) expressly states that "[a]
workers' compensation judge is not required to hold a full evidentiary hearing before
issuing an interlocutory order for temporary disability or medical benefits." Tenn. Code
Ann. § 50-6-239(d)(2) (2014). The rules governing Mediation and Hearing Procedures
further provide that "[ u]pon receipt of the file, the judge shall have the discretion to either
set the matter for a hearing or enter an interlocutory order based on a review of the file
upon determining that no additional information is needed to determine whether the
employee is likely to prevail at a hearing on the merits of the claim." Tenn. Comp. R. &
Regs. 0800-02-21-.14(1 )(c) (20 15) (emphasis added). In its expedited hearing order, the
trial court did not expressly determine that no additional information was needed, but
noted that Employer did not object to Employee's request for a ruling without an
evidentiary hearing. Since Employer did not appeal the order, this issue need not be
addressed. 4


4
  We note that Rule 0800-02-21-.14( I)(c), which requires the trial cou1t to determine that no additional information
is needed to issue an interlocutory order without an evidentiary hearing, is separate and distinct from a determination
that a trial court can issue a '~decision on the record." A "decision on the record" applies to compensation hearings

                                                          4
        The critical question to be resolved in this appeal is whether Employee came
forward with sufficient information from which the trial court could determine that she is
likely to prevail at a hearing on the merits. To resolve this issue, it is also necessary to
address whether the causation opinions expressed by the Concentra physicians are
entitled to a rebuttable presumption of correctness pursuant to Tennessee Code Annotated
section 50-6-1 02(13)(E) and, if so, whether Employee effectively rebutted that
presumption by a preponderance of the evidence.

      Tennessee Code Annotated section 50-6-102(13), which defines an "injury" in the
workers' compensation context, provides as follows:

         The opinion of the treating physician, selected by the employee from the
         employer's designated panel of physicians pursuant to § 50-6-204(a)(3),
         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) (2015). In the present case, the record is somewhat
muddled regarding this issue. On the PBD, page 2, the petitioner is asked, "Has the
Employee Been Provided a Panel of Physicians?" Employee marked "Yes." The form
additionally states, "If yes, Name Physician Selected." Employee indicated that Dr.
Downs had been selected. The form then states, "Name all doctors seen for this injury."
Employee noted "Concentra, Dr. Downs."

        The trial court concluded that the Concentra physicians were "panel selections"
entitled to a presumption of correctness on the issue of medical causation. In the written
statement offered by Employee's counsel, accepted by the trial court as Exhibit 1, 5
counsel stated that Employee "originally treated at Concentra before she was denied
further workers' compensation benefits." While this does not expressly state that
Concentra was chosen from a panel, it implies that Concentra was the authorized provider
pursuant to Tennessee Code Annotated section 50-6-204. This is corroborated by the
Concentra report dated September 12, 2014, which indicated that Employee "is here
through workers' compensation." Given that Employee admitted receiving a panel on the
PBD, a reasonable interpretation of the technical record and documentary evidence is that
Concentra was the authorized provider selected in accordance with Tennessee Code
Annotated section 50-6-204(a)(3) (2014) and is, therefore, entitled to the presumption of
correctness on the issue of causation.


and requires a finding that there is "no material fact ... in dispute." See Tenn. Comp. R. & Regs. 0800-02-21-.02(9)
& 0800-02-21-. 14(2) (20 15).
5
  Although Exhibit I is identified as an "Affidavit" of Employee's counsel of record, the trial court indicated that it
considered the written statement of counsel "to be allegations." For purposes of this appeal, it is being treated as
argument of counsel.

                                                          5
        The trial court also concluded that the identification of Dr. Downs as a physician
selected from Employer's panel on the PBD "appears to be an error." In his written
statement, Employee's counsel noted that "Concentra referred [Employee] to an
orthopedic physician but this was denied. [Employee] then went to Dr. Brandon Downs
for treatment." In considering Employee's prior medical history with Dr. Downs, as well
as the written argument of Employee's counsel, it was reasonable for the trial court to
conclude that Dr. Downs was not an authorized treating physician for purposes of this
claim, despite the indication on the PBD.

       Consequently, the issue is whether the medical records and unsworn affidavit of
an unauthorized physician are sufficient to rebut the presumption of correctness afforded
the causation opinions of the authorized physicians. Dr. Reddy expressed the opinion
that "this condition is unlikely work related." Dr. Syed stated that the "mechanism of
injury does not support rotator cuff tear." Conversely, in his written statement, Dr.
Downs does not address the mechanism of injury and does not offer an opinion as to how
typing on a computer keyboard could cause a recurrent rotator cuff tear. Moreover, Dr.
Downs failed to explain the discrepancy between the alleged date of injury noted in his
records (8/1112014) and the date of injury reflected in his written statement (8/18/2014).
In short, the evidence presented to date does not preponderate against the trial court's
conclusion that the opinions offered by Dr. Downs do not rebut the causation opinions
offered by the Concentra physicians.

                                       Conclusion

        For the foregoing reasons, we conclude that the evidence does not preponderate
against the trial court's denial of benefits based on the record as it currently stands.
Additionally, we 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, we
affirm the trial court's decision and remand the case for any further proceedings as may
be necessary.




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