### TENNESSEE BUREAU OFWORKERS' COMPENSATION INTHE COURT OFWORKERS' COMPENSATION CLAIMS ATMEMPHIS Thomas Lee,Employee, 

### v. FederalExpress Corporation, Employer. ) DocketNo.: 2015-08-0247 ) 

### ) StateFile No.: 77260-2014 ) 

### ) JudgeJim Umsted

COMPENSATIONHEARING ORDER 

### FILED August26,2016

1N COURT Of WORKERS' CO!\!PENSA TION CLA IMS Time 10:58A.\1



### This case came before the undersigned Workers' Compensation Judge for a Compensation Hearing under Tennessee Code Annotated section 50-6-239 (2015). The present focus ofthis case is whetherthe employee, Thomas Lee, sustained awork-related left-shoulder injury while working for employer, Federal Express Corporation. The central legal issues are: (1) whether Mr. Lee sustained a compensable left-shoulder injury, arising primarily out of and in the course and scope of his employment with Federal Express; (2) whether Mr. Lee is entitled to payment of unauthorized, past medical expenses; (3) whether Mr. Lee is entitled to continued medical treatment for his left shoulder; and (4) whether Mr. Lee is entitled to permanent disability benefits, and if so, in what amount. For the reasons set forth below, the Court holds Mr. Lee has not established by a preponderance ofthe evidence that he sustained a compensable injury arising primarily out of and in the course and scope of his employment such that he would be entitledto the requested medical and permanent disability benefits. HistoryofClaim The following facts were established at the Compensation Hearing held on August 15, 2016. Mr. Lee is a sixty-seven-year-old resident of Brandon, Mississippi who worked in Federal Express' audio-visual department for approximately twenty-three years. While the specific date ofhis injury is in question, Mr. Leetestified he sustained a work

-related injury to his left shoulder after moving aheavy case at work. 1 

### According to Mr

. Lee, he reported his injury to his direct supervisor, Glenn Davis, the day following his injury, buthe told Mr. Davis he did notwantto file a workers' compensation claim

.

1 Mr

. Lee initially reported an injury date ofAugust 6, 2014. However, at the Compensation Hearing, he testified the injury occurred on July 24, 2014, the date Target delivered stools to Federal Express for an event.

### After his injury, Mr. Lee sought medical treatment from various unauthorized medical providers.2 

### He initially presented to his primary care physician at Baptist Medical Group (BMG) with complaints ofleft shoulderpainthat beganthree weeks prior to his August 4, 2014 visit. He denied any falls ortrauma during thatvisit. Two days later, on August 6, 2014, Mr. Lee sought treatment at Campbell Clinic. He described a gradual onset ofleft-shoulder pain that he specifically indicated was not related to work. Physician's Assistant Tasha Sabino diagnosed him with biceps tendinitis and ordered physical therapy and a steroid injection. When his symptoms did not improve, P.A. Sabinoreferred him to Dr. PatrickToy for further evaluation. After evaluating Mr. Lee on September 15, 2014, Dr. Toy diagnosed him with left-shoulderrotator cufftendinopathy and ordered an MRI ofhis left shoulder. The MRI revealed severe tendinosis ofthe supraspinatus and subscapularis but showed a normal long biceps tendon. On September 29, 2014, Dr. Toy referred Mr. Lee to Dr. Santos Martinez to discuss possible PRP injections and instructed Mr. Lee to follow up as needed. The next day, Mr. Lee filed a claim with Federal Express for workers' compensationbenefits. When Mr. Lee saw Dr. Martinez for the first time on October 9, 2014, he described straining his left shoulder while moving a case (ofaudio equipment) at work. Dr. Martinez administered a steroid injection and ordered additional physical therapy but did not recommend the PRP injections at that time. Dr. Martinez last saw Mr. Lee on November 20, 2014. However, during a physical therapy appointment on December 9, 2014, Mr. Lee advised bothhis shoulders hurt afterworking on his new stove at home. Three months later, on March 9, 2015, Mr. Lee returned to Dr. Toy, complaining of significant pain in his left shoulder. Since Mr. Lee had exhausted all conservative treatment, Dr. Toy recommended surgery. Dr. Toy performed surgery on March 23, 2015, and during the surgery, he found free edge tearing ofthe labrum as well as a highgrade partial tear ofthe biceps anchor. Afterproviding post-operative treatment, Dr. Toy released Mr. Lee from care on June 15, 2015. The physicians who evaluated Mr. Lee provided conflicting medical testimony about the cause ofhis injuries. Dr. Toy testified in his deposition that he saw nothing in his notes suggesting the partial tear in Mr. Lee's biceps tendon was related to his work. (Ex. 2 at 42.) He also noted that Mr. Lee's September 2014 MRI showed no injury to the biceps tendon and suggested Mr. Lee could have sustained another injury between the date ofhis MRI and his surgery. (Ex. 2 at 31-32.) He further testified the labral tearing was "probably related to wear and tear over time." (Ex. 2 at 42-43.) Dr. Toy indicated

2 Prior to his alleged work injury, Mr. Lee mentioned a week-long history of left arm pain when he attended a follow-up appointment at Baptist Medical Group on July 9, 2014. His medical provider diagnosed him with biceps tendinitis. 2Mr. Lee had full range ofmotion in his shoulderupon examination on June 15, 2015, and wouldhave "aminimal impairmentrating" underthe AMA Guidelines. (Ex. 2 at 35, 42.) To the contrary, deposition testimony ofDr. Apurva Dalal suggested the biceps tendon injury was related to Mr. Lee's work. Dr. Dalal performed an independent medical evaluation (IME) of Mr. Lee on May 20, 2015, and opined "with more than ninety-percent certainty" that "when he tried to lift that audio equipment his biceps tendon ruptured." (Ex. 3 at 10, 15-16.) Dr. Dalal testified Mr. Lee retained a permanent disability rating ofseven percent to the body as a whole due to range ofmotion deficits he noted during the evaluation. (Ex. 3 at 18-19.) Mr. Lee testified he returned to work for Federal Express but recently retired for reasons unrelated to his alleged work injury. He further testified he continues to have left-shoulder pain and has trouble performing duties related to his personal photoscanning business. He asked the Court to order Federal Express to provide a panel of physicians for continued medical treatment for his shoulder. He also asked for payment ofpastmedical expenses andpermanentdisability benefits. Federal Express presented no competing testimony to oppose Mr. Lee's description ofhis left-shoulder injury, but it did point out that Mr. Lee originally reported his date ofinjury as August 6, 2014, and denied the injury was work related when he initially presented to Baptist Medical Group and Campbell Clinic. Furthermore, it suggested Mr. Lee might have sustained a new injury in December 2014, when he attempted to move his new stove at home. Federal Express argued that Dr. Toy's causation opinion should hold more weight since he actually treated Mr. Lee's shoulder, whereas Dr. Dalal only performed a one-time IME. Accordingly, based on the medical proofpresented, Federal Express maintained Mr. Lee had not met his burden ofproving his left-shoulder injury primarily arose out of and in the course and scope of his employment. Findings ofFact and Conclusions ofLaw 

### GeneralLegalPrinciples Mr. Lee has the burden ofproofon all essential elements ofhis claim. 

### 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). "[A]t a compensation hearing where the injured employee has arrived at a trial on the merits, the employee must establish by apreponderance ofthe evidencethathe or she is, in fact, entitled to the requested benefits." 

### Willis v. All Staff, No. 2014-05-0005, 2015 TN Wrk. Comp. App. Bd. LEXIS 42, at 

## *18 (Tenn. Workers' Comp. App. Bd. Nov. 9, 2015); 

### see also Tenn. Code Ann. § 50-6-239(c)(6) (2015) ("[T]he employee shall bear the burden ofproving each and every element ofthe claim by a preponderance ofthe evidence."). In this case, 3the Court must interpret the Workers' Compensation Law fairly, impartially, and without favor for eitherMr. Lee orFederal Express. Tenn. Code Ann. § 50-6-116 (2015). Compensability of Mr. Lee'sInjuries The Court must first address whether Mr. Lee satisfied the burden ofproving he sustained a compensable, work-related, left-shoulder injury. To be compensable under the Workers' Compensation Law, an injury must arise primarily out of and occur in the course and scope ofthe employment; be caused by an incident or specific set of incidents; and be identifiable by time and place ofoccurrence. Tenn. Code Ann. 

### § 50-6- 102(14) (2015). There is a conflict in opinion among the physicians who testified. Dr. Toy noted he saw nothing in his notes suggesting Mr. Lee's injury related to his work. However, Dr. Dalal testified Mr. Lee's injury occurred at work when he tried to lift audio equipment. The Court finds these conflicting medical opinions are the result ofMr. Lee providing a different history ofinjury to eachphysician. Atthe Compensation Hearing, Mr. Lee testified his left shoulder injury occurred at work on July 24, 2014. However, according to medical records, about two weeks before this alleged injury date, he sought medical treatment at BMG for left arm pain. He again sought treatment for left-shoulder pain at BMG on August 4, 2014, which he claimed began about three weeks earlier without falls or trauma. Two days later, on August 6, 2014, he sought treatment at Campbell Clinic for a gradual onset ofleft-shoulderpain he advised was not related to work. To the contrary, Dr. Dalal, who performed an IME on May 20, 2015, attherequest ofMr. Lee, relied on the historyprovidedby Mr. Leethathe sustainedhis injury at work. The Court finds Mr. Lee provided inconsistent statements when describing how his left-shoulder pain began, and it would be speculative for the Court to accept Mr. Lee's current explanation that it occurred at work. Therefore, based upon the evidence and the applicable legal principles, the Court holds Mr. Lee failed to satisfy the burden of proving his left-shoulder injury arose primarily out ofand in the course and scope ofhis employment. This decisive issue having been determined, the Courtneednotrule on any other issues. Accordingly, it is the Court's determination Mr. Lee is not entitled to the requested benefits. IT IS, THEREFORE, ORDERED that the claim of Mr. Lee against Federal Express for the requested medical andpermanentdisability benefits be denied. The filing fee of $150.00 for this cause is taxed to Federal Express under Rule 0800-02-21-.07 (2015) ofthe Tennessee Compilation Rules and Regulations. Federal Express additionally shall prepare and file a statistical data form within ten business days 4

### ofthe date ofthis order, pursuantto Tennessee CodeAnnotated section 50-6-244 (2015). ENTEREDthis the 26th dayofAugust, 2016.**~** 

# <2z Judge Jim Umsted CourtofWorkers' Compensation Claims



### Rightto Appeal: Tennessee Law allows any party who disagrees with this Compensation Hearing Order to appeal the decision to the Workers' Compensation Appeals Board or the Tennessee Supreme Court. To appeal your case to the Workers' Compensation Appeals Board, you must: 1. Complete the enclosed form entitled: "CompensationHearingNotice ofAppeal." 2. File the completed form with the Court Clerk within thirty calendar days ofthe date the Workers' CompensationJudge enteredthe CompensationHearing Order. 3. Serve a copy ofthe Compensation Hearing Notice ofAppeal 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 ofa notice ofappeal, payment mustbe received by check, money order, or credit cardpayment. Payments canbe 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 ofIndigency, on a form prescribed by the Bureau, seeking a waiver ofthe filing fee. The Affidavit ofIndigency may be filed contemporaneously with the Notice ofAppeal or mustbe filed within ten calendar days thereafter. TheAppeals Board will consider the Affidavit ofIndigency and issue an Order granting or denying the request for a waiver of the filing fee as soon thereafter as is practicable. Failureto timelypaythe filing fee orfile the Affidavit oflndigency in accordance with this section shall result in dismissal ofthe appeal. 5. The party filing the notice of appeal, having the responsibility of ensuring a complete record on appeal, may request, from the Court Clerk, the audio recording ofthe hearing for the purpose ofhaving a transcript prepared by a licensed court reporter and filing it with the Court Clerk within fifteen calendar days ofthe filing ofthe Compensation Hearing Notice ofAppeal. Alternatively, the party filing the 5

### appeal may file a joint statement of the evidence within fifteen calendar days of the filing ofthe Compensation HearingNotice ofAppeal. The statement ofthe evidence must convey a complete and accurate account ofwhat transpired in the Court ofWorkers' Compensation Claims and must be approved by the Workers' Compensation Judge before the record is submitted to the Clerk ofthe Appeals Board. See 

### Tenn. Comp. R. &

### Regs. 0800-02-22-.03 (2015). 6. After the Workers' Compensation Judge approves the record and the Court Clerk transmits it to the Workers' Compensation Appeals Board, the appeal will be docketed and assigned to an Appeals Board Judge for review. At that time, a docketing notice shall be sent to the parties. Thereafter, the party who filed the notice ofappeal shall have fifteen calendar days afterthe issuance ofthe docketing notice to submit a briefto the Appeals Board for consideration. Any opposing party shall have fifteen calendar days after the filing ofthe appellant's briefto file a briefin response. No reply briefs shall be filed. Briefs shall comply with the Practice and Procedure Guidelines of the Workers' Compensation Appeals Board. See 

### Tenn. Comp. R. & 

### Regs. 0800-02-22-.03(6) (2015). To appeal your case directly to the Tennessee Supreme Court, the Compensation Order must be final and you must comply with the Tennessee Rules of Appellate Procedure. If 

### neither party timely files an appeal with the Appeals Board, this Order will become final by operation of law thirty (30) calendar days afterentry,pursuantto Tennessee CodeAnnotated section 50-6-239(c)(7).

6APPENDIX Technical record: • Petition for BenefitDetermination, filed July 9, 2015; • Dispute CertificationNotice, filed July 31, 2015; • Request for Initial Hearing, filed September 10, 2015; • Initial Hearing Order, issued October 21, 2015; • Amended Initial Hearing Order, issued May 2, 2016; • FederalExpress' Statement Concerning Witnesses, filed July 19, 2016; • FederalExpress' Statement ConcerningExhibits, filed July 19, 2016; • FederalExpress' Pre-Hearing Statement, filed August 1, 2016; • Mr. Lee's Pre-Trial Brief, filed August 8, 2016; • Mr. Lee'sPre-Hearing Statement, filed August 9, 2016; and • Dispute CertificationNotice, filed August 11, 2016. The Court did not consider attachments to Technical Record filings unless admitted into evidence during the Compensation Hearing. The Court considered factual statements in these filings or any attachments to them as allegations unless established by the evidence. StipulatedFindings ofFacts ofthe Parties: • Mr. Lee is sixty-sevenyears ofage. • Mr. Leehas completed the 12th grade and has obtained ahigh school diploma. • Mr. Lee did notreceive any temporary disability benefits. • Mr. Lee has returned to work for Federal Express, earning the same or greater wages as he was earningpriorto the injury. • Mr. Lee's average weekly wage is $1,997.54, which entitles him to a weekly compensation rate of $932.80, subject to the state maximum rate for permanent disability benefits. • FederalExpress filed a Notice ofDenial on February 6, 2015. tipulated Conclusions ofLaw ofthePartie : • The claim is governed by the Workers' Compensation Laws for the state of Tennessee. • An employment relationship existed between the Mr. Lee and Federal Express at all relevanttimes. • Mr. Lee filed a Petition for Benefit Determination within the applicable statute of limitations. Exhibits: • EXHIBIT I: Depositiontranscript ofDr. Santos Martinez;

7• EXHIBIT 2: Depositiontranscript ofDr. Patrick Toy; • EXHIBIT 3: Depositiontranscript ofDr. ApurvaDalal; • EXHIBIT 4: Collective exhibit ofmedical records filed by Employer onJune 30, 2016; • EXHIBIT 5: Form C-20 Employer'sFirstReport ofWork Injury orIllness • EXHIBIT 6: Form C-41 Wage Statement; • EXHIBIT 7: Target ShippingConfirmation, datedJuly 24, 2014; • EXHIBIT 8: Email from GlennDavis, datedJanuary 8, 2015; • EXHIBIT 9: Employee's Workers' Compensation Questionnaire; • EXHIBIT 10: Campbell Clinic Intake Form, datedAugust 6, 2014; and • EXHIBIT 11: Campbell Clinic Intake Form, dated October 9, 2014.

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### CERTIFICATE OF SERVICE I hereby certify that a true and correct copy of the foregoing was sent to the following recipients by the following methods of service on this the day of August, 2016. 

### Name Certified Mail Steve Taylor, Employee'sAttorney JonathanL. May, Employer'sAttorney Via Via EmailAddress Fax Email X staylor@tcmfirm.com X jmay@J ewisthomason.com



### P nny rum, Clerk Court Workers' Compensation Claims WC.CourtClerk@tn.gov

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