           TENNESSEE BUREAU OF WORKERS’ COMPENSATION
          IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                         AT MURFREESBORO

SHERRY DECKER                               )   Docket No: 2016-05-0900
         Employee,                          )
                                            )
v.                                          )   State File Numbers: 5883-2015
                                            )
MTEK INC.                                   )
             Employer,                      )   Judge Dale Tipps
And                                         )
                                            )
SOMPO JAPAN INS. CO. OF AM.                 )
         Insurance Carrier.                 )
                                            )

      EXPEDITED HEARING ORDER DENYING REQUESTED BENEFITS


       This matter came before the undersigned workers’ compensation judge on
February 1, 2017, on the Request for Expedited Hearing filed by Sherry Decker. The
present focus of this case is whether Ms. Decker is entitled to medical benefits,
specifically, shoulder surgery recommended by her authorized treating physician (ATP),
Dr. Chad Price. The central legal issue is whether Ms. Decker is likely to establish at a
hearing on the merits that her current need for surgery arises primarily out of and in the
course and scope of her employment. For the reasons set forth below, the Court holds
Ms. Decker is not entitled to the requested medical benefits at this time.

                                    History of Claim

       The following facts were established at the hearing. After working as a mold
operator for several years, Ms. Decker suffered a work accident when she tripped and fell
at MTEK on January 21, 2015. She reported injuries to her left knee and right shoulder,
and MTEK accepted the claim as compensable. After treating briefly at a clinic, Ms.
Decker selected orthopedic surgeon, Dr. William Jekot, from a panel provided by MTEK.

      Dr. Jekot first saw Ms. Decker on January 29, 2015. She reported “sharp and

                                            1
throbbing right shoulder pain,” as well as left knee pain. She denied any previous
problems with her shoulder or knee. Dr. Jekot noted a patellar fracture but felt the
shoulder injury did not appear to be serious. He ordered x-rays and physical therapy and
assigned temporary light duty restrictions.

       When Ms. Decker returned to Dr. Jekot in March, she reported “sharp right
shoulder pain for two months with moderate intensity.” Dr. Jekot noted “slight anterior
tenderness” with full range of motion and normal strength. At Ms. Decker’s request, he
returned her to full duty, but instructed her to return in one month. He noted, “If the
patient continues to have right shoulder pain we will consider an MR arthrogram of the
right shoulder.”

       On Ms. Decker’s last visit in April, he noted, “She is much improved with very
minor right shoulder pain.” His examination of the shoulder showed, “no tenderness, no
effusion, no increased warmth, full range of motion, strength, and stability.” He placed
her at maximum medical improvement (MMI) and noted she had no permanent
impairment.

       Dr. Jekot testified in his deposition that, if Ms. Decker had a labrum tear
associated with her January 2015 fall, her symptoms would be “pretty constant” from her
date of injury until she saw Dr. Price. Further, he stated that her shoulder examination at
her last visit was “entirely normal” with no sign of labral pathology. Therefore, he did
not feel Ms. Decker had a labral tear at the time he treated her. He therefore agreed with
Dr. Vissers’ opinion that the tear was unrelated to Ms. Decker’s work accident.

        Ms. Decker testified during the hearing that she told Dr. Jekot her shoulder hurt all
the time, including during her last visit with him. Her understanding from Dr. Jekot was
that she had a sprained shoulder and it was simply going to take a long time to improve.
As a result, even though she had constant pain while she worked, she did her job without
complaining to her supervisors or requesting additional treatment. When asked to
describe her physical problems at work, she said she had pain when she lifted her arm
overhead during morning exercises, when she lifted buckets of resin, and when she did
any reaching to stack or check parts. On cross-examination, she characterized her pain as
“horrible” pain that kept her from sleeping at night and that began as soon as she returned
to full duty.

       Josh Steverson, Ms. Decker’s supervisor, testified that he performed a production
review with Ms. Decker at least three times between her return to full duty and her
retirement. This included observing her performing her job and going through a
questionnaire with her. He confirmed she never mentioned any problems or pain doing
her work, and he never observed her having any problems. MTEK’s occupational health
nurse, Cindy Ferrell, echoed this testimony.


                                             2
       Ms. Decker last worked at MTEK on June 25, 2015, the day before a scheduled
plant shutdown. She decided not to return to her job because she did not feel she could
continue to deal with the shoulder pain it caused. Instead, she took her retirement from
MTEK and began working a part-time job as a housekeeping supervisor at Hampton Inn
on June 27. Ms. Decker testified she never suffered any injury or accident while working
at Hampton Inn, but she acknowledged she worked nearly full-time hours for several
weeks while training. She also admitted that her duties during this training period
included standard housekeeping duties such as cleaning, making beds, and laundry.

       Because of continuing pain, Ms. Decker requested an MRI of her shoulder at the
Veterans Administration in August 2015. After receiving the MRI results, she requested
additional treatment from MTEK, which provided a new physician panel because Dr.
Jekot had retired from practice. Ms. Decker selected Dr. Chad Price and saw him on
January 13, 2016. She reported having right shoulder pain since her fall in January 2015
and told Dr. Price her symptoms were worsening. After examining Ms. Decker and
reviewing the MRI films, Dr. Price felt she had a torn labrum. He also noted, “I do
believe that it is more likely than not that the injury occurred from the patient’s injury on
1/21/15.”

       Dr. Price’s May 18 progress note states:

       Her initial imaging appeared to show a small nondisplaced superior labrum
       tear but it was not able to be confirmed due to the lack of contrast in the
       joint. After further reviewing the records it looks like she received some
       relief from conservative treatment and had a period of being asymptomatic.
       She has subsequently quit her job at MTEK and has started working
       Hampton Inn and Suites. Her shoulder has started bothering her again and
       we have obtained an MRI arthrogram for further evaluation.

He later noted:

       Ms. Decker has a confirmed tear of the anterior/superior horn. These
       findings are consistent with her reported mechanism of injury during the
       work injury on 1/21/15. Interestingly, there is also evidence of a full
       thickness supraspinatus tear. On exam she has weakness with rotator cuff
       strength and pain with labral testing. Due to the fact that there was no
       evidence of rotator cuff tear on previous imaging immediately following
       the injury, I cannot relate the rotator cuff tear to her injury. However, I do
       believe the labrum tear is a direct result of her initial work injury on
       1/21/15. At this point I have recommended arthroscopic biceps tenodesis,
       subacromial decompression, and rotator cuff repair.

       In response to a questionnaire from Ms. Decker’s attorney, Dr. Price indicated he

                                             3
believed the right shoulder labrum tear arose primarily out of Ms. Decker’s January 2015
work accident and that she would need surgical repair even if there were no rotator cuff
tear. In his deposition, Dr. Price confirmed that opinion. The primary basis for this
conclusion was Ms. Decker’s statement that she had no shoulder pain prior to the work
injury and the fact that the first MRI showed a labral tear. He disagreed with Dr. Vissers’
conclusions and testified that, whether or not Ms. Decker’s symptoms increased and
decreased during the course of her treatment, his opinion would not change, as “on-and-
off” symptoms are not unusual with labrum injuries.

       In addition to the medical records, the parties submitted reports from Dr. Christian
Vissers and Dr. Chad Calendine.

        Dr. Vissers performed a second-opinion evaluation on February 17, 2016. He
noted that Ms. Decker initially treated with Dr. Jekot, but “her symptoms resolved and
she was placed at maximum medical improvement on 3/22/15.” His history also includes
the following: “The patient states that she has been experiencing pain since sometime in
the fall of 2015.” He assessed a labral tear but stated, “the patient’s superior labral tear is
not related to her work injury of 1/21/15. The patient was completely asymptomatic for a
period of several months; additionally, I do not feel that the patient’s stated mechanism of
injury is consistent with her labral pathology.”

    Dr. Calendine is a radiologist who performed a records review at the request of
MTEK. He noted:

       On the initial MRI which was done approximately 7 months after the
       injury, there are chronic findings of supraspinatus tendinopathy with a very
       small partial thickness undersurface tear at its attachment, infraspinatus
       tendinopathy, AC joint hypertrophy, and a minimally displaced SLAP tear
       of the labrum. All of these findings appear chronic (i.e. not acute), and all
       of these findings are typical of degenerative changes involving the
       shoulder. On the subsequent MRI of the shoulder, the patient developed a
       full-thickness supraspinatus tendon tear which is the expected progression
       of chronic tendinopathy and findings of chronic impingement syndrome.
       The SLAP tear of the labrum is unchanged on the subsequent MRI. This
       SLAP tear appears chronic.

       At the hearing, Ms. Decker asserted she is entitled to additional medical treatment,
including the labral repair surgery recommended by Dr. Price. She further argued her
surgery should include rotator cuff repair, even though the rotator cuff tear is not causally
related to her January 2015 work accident. She denied aggravating or further injuring her
shoulder while working at Hampton Inn or anywhere else since leaving MTEK.

       MTEK countered that Ms. Decker’s need for labrum repair surgery is not causally

                                              4
related to her workplace fall. It argued that the preponderance of the medical proof fails
to support a finding that her need for this treatment arises primarily out of her work
injury. It also noted that Ms. Decker’s torn rotator cuff did not arise from her work injury
and contended there is no authority for the Court to order surgical repair of a non-
compensable condition.

                       Findings of Fact and Conclusions of Law

       The following legal principles govern this case. Because this case is in a posture
of an Expedited Hearing, Ms. Decker need not prove every element of her claim by a
preponderance of the evidence in order to obtain relief. McCord v. Advantage Human
Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Instead, she must come forward with sufficient evidence from which this Court might
determine she is likely to prevail at a hearing on the merits. Id.; Tenn. Code Ann. § 50-6-
239(d)(1)(2016).

       In order to prevail at a hearing on the merits, Ms. Decker must prove the
compensability of the condition for which she seeks surgical treatment. To do so, she
must show that her labral tear arose primarily out of and in the course and scope of her
employment. Id. at § 50-6-102(14). This means she must show the tear was caused by
an incident, or specific set of incidents, identifiable by time and place of occurrence. Id.
at § 50-6-102(14)(A). Further, she must show, “to a reasonable degree of medical
certainty that it contributed more than fifty percent (50%) in causing the . . . disablement
or need for medical treatment, considering all causes.” Id. at § 50-6-102(14)(C). “Shown
to a reasonable degree of medical certainty” means that, in the opinion of the treating
physician, it is more likely than not considering all causes as opposed to speculation or
possibility. Id. at § 50-6-102(14)(D).

       The Court first notes there is no dispute that Ms. Decker established a specific
incident, identifiable by time and place. The question to be resolved, therefore, is
whether she appears likely to prove she tore her labrum during that incident. This is a
close question, but applying the foregoing principles to the facts of this case, the Court
cannot find, at this time, that Ms. Decker is likely to meet this burden.

       As noted above, the parties submitted conflicting medical opinions. Two of those
opinions, Dr. Price’s and Dr. Jekot’s, are entitled to particular consideration because Ms.
Decker selected these doctors from a panel offered by MTEK. Tennessee Code
Annotated section 50-6-102(14)(E) establishes a rebuttable presumption of correctness
for a causation opinion given by an authorized physician. Unfortunately, this provision is
not determinative in this case because the two doctors entitled to the presumption have
given conflicting opinions. In the absence of a single presumption, the Court must
determine whether Ms. Decker is likely to prevail in proving causation by a
preponderance of the medical evidence.

                                             5
       Dr. Jekot’s opinion that the labral tear was not related to Ms. Decker’s work
accident was based primarily on two factors. First, he felt that a torn labrum would cause
“pretty constant” symptoms the date of injury until Ms. Decker first saw Dr. Price. This
was not the case with Ms. Decker because he noted her symptoms were “much improved
with very minor right shoulder pain” the last time he saw her. Second, her shoulder
examination – in particular her O’Brian’s test – at her last visit was “entirely normal”
with no sign of labral pathology.

       Dr. Vissers’ report supports Dr. Jekot’s conclusion. In addition to noting the
symptom resolution in Dr. Jekot’s treatment notes, Dr. Vissers’ history includes the
notation that Ms. Decker “has been experiencing pain since sometime in the fall of
2015.” Based on this statement, he concluded the labral tear was not related to the
January 21, 2015 work accident injury.

       Similarly, the radiologist, Dr. Calendine, did not feel the tear was work-related.
Although he noted the initial MRI showed a number of findings, he believed all of them,
including the labrum tear, were chronic changes and not acute injuries.

       The only conflicting causation opinion was that of Dr. Price, who concluded the
work injury caused the tear because Ms. Decker had no prior shoulder pain. The
resolution (or near-resolution) of her symptoms while treating with Dr. Jekot did not
affect Dr. Price’s opinion because he felt this was consistent with a labrum injury.

       After weighing the medical opinions presented, the Court cannot find at this time
that Ms. Decker appears likely to prove by a preponderance of the medical evidence that
her torn labrum occurred during her January 2015 workplace accident. It is unrebutted
that Ms. Decker’s last examination with Dr. Jekot was entirely normal with no sign of
labral pathology. Further, Dr. Price’s opinion differs from that of Dr. Jekot and Dr.
Vissers primarily because he did not feel it would be unusual for Ms. Decker’s symptoms
to increase and decrease during the course of her treatment. Dr. Jekot disagreed, saying
that in his personal and professional experience, a labral tear would result in “pretty
constant” symptoms. As neither doctor provided any scientific foundation or explanation
for these statements, the Court has no basis upon which to credit one over the other. In
the absence of a remedial construction of the law,1 such an impasse cannot be resolved in
favor of Ms. Decker, as she bears the burden of proof. Therefore, Dr. Price’s opinion,
without more, does not constitute a preponderance of medical evidence that Ms. Decker’s
work accident was the primary cause of her labral tear.

      The Court recognizes that Ms. Decker disputes that her symptoms ever resolved or
even waned significantly. She testified during the hearing that she suffered constant,

1
    See Tennessee Code Annotated section 50-6-116 (2016).
                                                   6
significant pain every day after her return to work and that the pain kept her from
sleeping or being able to roll over in bed. This testimony, however, is irreconcilable with
Dr. Jekot’s observations and the history recorded by Dr. Vissers. It is also inconsistent
with the testimony of Mr. Steverson, who both observed Ms. Decker doing her job and
discussed her work without any mention of pain or ongoing problems. Similarly, even
though Ms. Decker had conversations with Ms. Ferrell about medical mileage requests
and her intent to retire, she never mentioned any continuing problem with her shoulder or
request additional treatment. Further, even though Ms. Decker testified that she retired
from MTEK because of her shoulder problems, she did not tell Ms. Ferrell that was the
reason for her decision to retire.

       Ms. Decker countered these inconsistencies by explaining that Dr. Jekot told her
she had a sprain that would take time to heal and she was patiently waiting for her
shoulder to improve. In her words, “I don’t complain, I cope.” The Court has no reason
to doubt Ms. Decker’s claim that she is not a complainer, but it is difficult to understand
why, if she were suffering from severe, unremitting pain, she failed to report it to Dr.
Jekot, declined the diagnostic tests he offered, and requested a release to full duty.

        Based on the foregoing, as a matter of law, Ms. Decker has not come forward with
sufficient evidence from which the Court can conclude she is likely to prevail at a hearing
on the merits. Her request for the surgical treatment recommended by Dr. Price is denied
at this time.

IT IS, THEREFORE, ORDERED as follows:

   1. Ms. Decker’s claim against MTEK and its workers’ compensation carrier for the
      requested medical benefits is denied.

   2. This matter is set for a Scheduling Hearing on April 5, 2017, at 9:00 a.m. You
      must call 615-741-2112 or toll free at 855-874-0473 to participate. Failure to call
      in may result in a determination of the issues without your further
      participation. All conferences are set using Central Time (CT).



       ENTERED this the 13th day of February, 2017.


                                   _____________________________________
                                   Judge Dale Tipps
                                   Court of Workers’ Compensation Claims



                                            7
                                     APPENDIX

Exhibits:
   1. Employer’s indexed medical records
   2. Employee’s indexed medical records
   3. First Report of Injury
   4. C-42 Physician Panel
   5. Housekeeping Supervisor job description
   6. Deposition Transcript of Dr. William Jekot
   7. Deposition Transcript of Dr. Chad Price
   8. Mileage request
   9. Sworn statement of Cindy Ferrell

Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing




                                           8
                         CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the Expedited Hearing Order
Denying Requested Benefits was sent to the following recipients by the following
methods of service on this the 13th day of February, 2017.


Name                     Certified   Via        Via    Service sent to:
                          Mail       Fax       Email
Julie Reasonover                                 X     Julie@jstillman.com
Brett Burrow                                     X     bburrow@burrowlee.com




                                     _____________________________________
                                     Penny Shrum, Clerk of Court
                                     Court of Workers’ Compensation Claims
                                     WC.CourtClerk@tn.gov




                                           9
