             TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                WORKERS’ COMPENSATION APPEALS BOARD

Eugene Vercek                                      ) Docket No. 2017-06-0219
                                                   )
v.                                                 ) State File No. 29251-2016
                                                   )
YRC, Inc., et al.                                  )
                                                   )
                                                   )
Appeal from the Court of Workers’                  )
Compensation Claims                                )
Kenneth M. Switzer, Chief Judge                    )


                        Affirmed and Remanded - Filed June 6, 2017


The employer has appealed the trial court’s interlocutory order for medical benefits,
asserting the medical proof was insufficient for the court to find that the employee will
likely prevail at trial in establishing a compensable aggravation of his pre-existing
degenerative shoulder condition. Having carefully reviewed the record, we affirm the
trial court’s decision and remand the case for further proceedings as may be necessary.

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

Stephen K. Heard, Nashville, Tennessee, for the employer-appellant, YRC, Inc.

Michael P. Fisher, Nashville, Tennessee, for the employee-appellee, Eugene Vercek

                                     Memorandum Opinion 1

       Eugene Vercek (“Employee”) alleges he suffered an injury to his right shoulder
that arose primarily out of and occurred in the course and scope of his employment with
YRC, Inc. (“Employer”). He alleges he was cranking a trailer dolly to lower the wheels
on April 16, 2016, when he felt a pop and immediate pain in his right shoulder. He
1
 “The Appeals Board may, in an effort to secure a just and speedy determination of matters on appeal and
with the concurrence of all judges, decide an appeal by an abbreviated order or by memorandum opinion,
whichever the Appeals Board deems appropriate, in cases that are not legally and/or factually novel or
complex.” Appeals Bd. Prac. & Proc. § 1.3.
                                                   1
reported the incident immediately, and his supervisor instructed him to go to the
emergency room. The attending medical care provider ordered x-rays of Employee’s
shoulder, prescribed medications, and instructed him to follow up with his primary care
physician.

        Employer initially accepted the claim as compensable and provided medical
treatment with Concentra Medical Centers. The medical providers at Concentra ordered
a right shoulder MRI and, after receiving the results, referred Employee to an orthopedist.
Employer authorized additional medical treatment with Dr. Ronald E. Glenn, an
orthopedist whom Employee selected from a panel and who first saw Employee on May
11, 2016. At that visit, Dr. Glenn reviewed the MRI films and examined Employee’s
right shoulder. He described the injury as “[a]n exacerbation of a pre-existing condition
which was clinically silent before the work-related injury.” Dr. Glenn recommended
conservative care and instructed Employee to return in two weeks. His May 11, 2016
report included the following statement addressing causation:

       I cannot reliably say that the work-related injury caused the findings found
       on [Employee’s] MRI. I can state within a reasonable degree of medical
       certainty that the current constellation of symptoms are [sic] the result of
       the work-related injury and exacerbated the pathology seen on the MRI
       which was previously clinically silent and asymptomatic.

        Employee attended physical therapy as ordered by Dr. Glenn, and he also received
injections into his shoulder administered by Dr. Glenn’s colleagues. When conservative
care did not resolve Employee’s complaints, Dr. Glenn recommended a total right
shoulder replacement.

       Thereafter, Employer sent a letter to Employee denying the claim and stating that
it had “received information from Dr. Edward Glenn that the recommended course of
treatment at this point (total shoulder) is needed to repair glenohumeral osteoarthritis that
he believes is a longstanding, preexisting condition.” The letter stated that “[a]ccording
to Dr. Glenn’s opinion . . . the injury at work is not the primary cause of your shoulder
disease and need for shoulder replacement,” and it further stated that “[s]ince the
osteoarthritis is not primarily caused by injury according to Dr. Glenn, the claim for
additional benefits is being denied at this point.”

       Employee’s attorney sent a letter to Dr. Glenn on January 20, 2017, seeking
answers to four questions “[t]o help us better understand [Employee’s] claim.” Dr. Glenn
responded to each question and indicated it was his opinion “that [Employee’s] right
shoulder injury of 4/16/2016 resulted in an aggravation of [a] pre-existing or degenerative
right shoulder condition.” When asked whether Employee’s “right shoulder injury arose
primarily out of and in the course and scope of the employment,” Dr. Glenn marked out
“injury” and handwrote “symptoms” and checked “yes” to indicate an affirmative

                                             2
response. He further indicated it was his opinion that “the treatment [he had]
recommended [was] both reasonable and medically necessary in order to treat
[Employee’s] symptoms arising out of the work injury.”

       The parties subsequently deposed Dr. Glenn, and he testified that he believed
“[Employee’s] imaging findings would suggest pathology that has been present for a long
time,” and that “the work-related injury exacerbated the pathology . . . which previously,
before, [sic] the work injury was clinically silent and asymptomatic.” Dr. Glenn agreed
that the need for the total shoulder replacement was due to “the longstanding arthritic
problems.” On cross-examination, Dr. Glenn testified it was his opinion “that the
aggravation of [the pre-existing condition] arose primarily out of that incident that
[Employee] described.” He further stated that, if he had detected Employee’s arthritic
condition, but Employee had been symptom-free, he would not have recommended the
total shoulder replacement, noting that “[i]f the patient doesn’t have symptoms, I don’t
recommend any treatment.”

        At Employee’s request and over the objection of Employer, the trial court
rendered a decision on the record without holding an evidentiary hearing.2 After
reviewing the deposition testimony of Dr. Glenn and relevant exhibits to the deposition,
the trial court concluded that, when considered as a whole, the medical proof supported
Employee’s position that he suffered a compensable aggravation of a pre-existing
condition and was entitled to medical benefits. The trial court noted that Dr. Glenn
consistently referred to Employee’s injury as an exacerbation of his pre-existing
condition and that the medical proof supported the conclusion that the work injury
activated a previously asymptomatic condition and resulted in the need for medical care.
Concluding that Employee had satisfied his burden of showing that he would likely
prevail at trial, the trial court ordered Employer to provide medical treatment for
Employee’s right shoulder, including the surgery recommended by Dr. Glenn. Employer
has appealed.

       Citing Tennessee Code Annotated sections 50-6-102(14)(A) and (B), Employer
asserts that “[Employee’s] ‘injury’ did not arise primarily out of and in the course and
scope of his employment because the preponderance of the evidence does not show that
the employment contributed to [sic] more than fifty percent (50%) in causing the injury
considering all the causes.” Employer argues that the condition the recommended
surgery is intended to correct, the underlying degenerative condition, was not primarily
caused by the work injury, thereby precluding a finding that Employee would likely

2
  Tenn. Comp. R. & Regs. 0800-02-21-.14(1)(f) (2015) provides that “[a]ny party may request that the
court issue a decision on the record, in lieu of convening an evidentiary hearing, for any request for
expedited hearing.” It further provides the procedure in the event a party opposes such a request and
states that the trial judge “shall have discretion to either set the matter for an evidentiary hearing or enter a
decision on the record.” Id. Employer has not raised an issue on appeal concerning the trial court’s
making a determination on the record.
                                                       3
prevail at trial in establishing a compensable claim. We disagree. Dr. Glenn’s testimony,
taken as a whole, supports the trial court’s conclusions that Employee would likely
prevail at trial in establishing he suffered a compensable aggravation of his pre-existing
condition and that this aggravation caused the need for the medical treatment, including
the recommended surgery.

       In the Workers’ Compensation Reform Act of 2013, the General Assembly
provided that the definition of “injury” and “personal injury” does 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(14)(A) (2016)
(emphasis added). Furthermore, the Reform Act provides that on the issue of causation,
“[t]he opinion of the treating physician . . . shall be presumed correct . . . but this
presumption shall be rebuttable by a preponderance of the evidence.” Tenn. Code Ann. §
50-6-102(14)(E) (2016).

        Here, although the authorized physician testified consistently that Employee’s
underlying degenerative condition is not causally related to his employment, Dr. Glenn
testified that Employee’s underlying degenerative condition was asymptomatic prior to
the incident at work and that the aggravation of Employee’s underlying degenerative
condition was primarily caused by the work-related incident. Thus, the medical proof
established an “aggravation of a preexisting disease, condition, or ailment” that
constitutes an “injury” as defined in Tennessee Code Annotated section 50-6-102(14)(A).

        Dr. Glenn also testified that the aggravation was responsible for the symptoms that
Employee reported and that, in the absence of the aggravation of the underlying
degenerative condition, no medical treatment would be recommended. Furthermore, he
testified that Employee’s symptoms had not returned to baseline or the level they were
prior to the injury as of the last date the doctor saw him, and that his recommended
surgery was both reasonable and medically necessary in order to treat the symptoms
arising from the work injury. A reasonable inference from Dr. Glenn’s testimony, when
considered as a whole, is that the compensable aggravation of Employee’s previously
asymptomatic condition led directly to the recommendation for surgery. Accordingly, we
find that, at this stage of the proceedings, the preponderance of the evidence supports the
trial court’s conclusion that Employee demonstrated he is likely to prevail at trial in
establishing a compensable aggravation of a pre-existing condition that resulted in the
need for the recommended medical treatment.

       Finally, Employee concludes his brief on appeal with a request for “an award of
reasonable attorney’s fees with respect to this appeal.” However, Employee failed to
present any argument, offer any explanation, or cite any authority in support of his
request. Therefore, the request for attorney’s fees is denied. The decision of the trial
court is affirmed, and the case is remanded for further proceedings that may be necessary.

                                            4
                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD


Eugene Vercek                                            )   Docket No.   2017-06-0219
                                                         )
v.                                                       )   State File No. 29251-2016
                                                         )
YRC, Inc., et al.                                        )


                                     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 6th day of June, 2017.
 Name                    Certified   First Class   Via   Fax      Via     Email Address
                         Mail        Mail          Fax   Number   Email

 Michael P. Fisher                                                  X     mfisher@ddzlaw.com
 Stephen K. Heard                                                   X     skheard@cclawtn.com
 Kenneth M. Switzer,                                                X     Via Electronic Mail
 Chief Judge
 Penny Shrum, Clerk,                                                X     Penny.Patterson-Shrum@tn.gov
 Court of Workers’
 Compensation Claims




JJeanette
  eanette B
          Baird
            aiirdd
 Deputy Clerk,
         Clerk Workers’ Compens
                        Compensation Appeals Board
 220 French Landing Dr., Ste. 1-B
 Nashville, TN 37243
 Telephone: 615-253-0064
 Electronic Mail: WCAppeals.Clerk@tn.gov
