### TENNESSEEBUREAU OFWORKERS' COMPENSATION IN THE COURTOFWORKERS' COMPENSATION CLAIMS AT CHATTANOOGA SamuelPanzarella, Employee,



### v. Amazon.com, Inc., Employer. ) DocketNo.: 2015-01-0383 ) 

### ) StateFile No.: 79681 2015 ) 

### ) Judge: AudreyA. Headrick ) ) ) 

### COMPENSATIONHEARING ORDER 

## FILED January 31.2017
1N COURT OF WORKERS'COl iPENS:\ TION CLAL\IS
T

ime 11 :47AM

This matter came before the undersigned Workers' Compensation Judge upon remand from the Tennessee Workers' CompensationAppeals Board. The Appeals Board issued an order on January 18, 2017, vacating and remanding this Court's November 23, 2016 order, which ordered medical artd temporary disability benefits and treated the October 28 trial as an expedited hearing instead of a compensation hearing. In its January 18 order, this Court concluded that the issue of whether Mr. Panzarella was entitled to permanent partial disability benefits was not ripe for a decision. The Appeals Board remanded the case to this Court to treat the

- proceeding as a trial on the merits and to determine the benefits, ifany, due to Mr. Panzarellabased upon the evidence presented at trial. 1 After doing so, this Court finds Mr. Panzarella did not establish by a preponderance ofthe evidencethathe sustained a compensable injury. 

### History ofClaim
This case involves an incident that occurred on August 21, 2015, while Mr. Panzarella performed a packingjob at Amazon. Mr. Panzarella testified he ran out of labels at his workstation and walked to another station to get more. As he was walking, he saw a piece ofpaper lying on the floor. Mr. Panzarella's undisputed testimony was

1 For expedited hearings, a judge may award medical and/or temporary disability benefits upon finding that the employee is likely to prevail at a hearing on the merits. Tenn. Code Ann

. § 50-6-239(d)(l) (2016)

. At a compensation hearing, a trial on the merits, the employee must prove each element ofhis claim by a preponderance oftheevidence. Tenn

.Code Ann

. § 50-6-239(d)(l)(2016).that Amazon requires its employees to pickup any paper lying onthe floor, and to do so by bending at his knees, holding the item to the center ofone's body, and standing back up. As Mr. Panzarella squatted to pick the paper up from the floor, his left knee "went out" and he hit the knee on the floor when he fell. When Mr. Panzarella stood up, he stated he felt intensepainbehindhis leftknee.
After his fall, Mr. Panzarella went to AmCare, Amazon's on-site medical clinic. Mr. Panzarella statedthat, while walkingto AmCare, his left knee "gaveway" and he fell again. The provider at AmCare provided him with a Non-Occupational Complaint Report to complete, which instructed him to describe the reason for his visit at AmCare. (Ex. 6.) Mr. Panzarella wrote, "muscle spasm in calf [illegible] radiate to behind knee caused loss ofbalance 2 times" with a date ofonset as "8-21-15." !d. He indicated on the form that this was a new complaint and testified he had no problems or treatment for his left knee prior to his fall on August 21. Mr. Panzarella stated the AmCare provider did notwantto completethe necessary documents to send himtothe emergencyroom, so he told the provider he would see his doctor after work. The typed form completed by the AmCare provider classified the injury as "non-work related" and noted that Mr. Panzarella "chose to see his PCP about it and will do so soon ifthe spasms persist." !d. Amazon did not offerMr. Panzarella apanel ofphysicians.
After his shift was over, Mr. Panzarella saw Jill Yeager, a physician's assistant (PA) at FastAccess Healthcare. (Ex. 2.) He gave a history ofhaving "chronic pain in R ankle, compensating on L leg & caused a fall onto L knee." !d. Mr. Panzarella testified he had chronic right ankle pain from standing ten hours per night. PA Yeager's office note indicated Mr. Panzarella's leg buckled, causinghimto fall tothe floor.
Mr. Panzarella returned to Amazon right after he saw PA Yeager. He stated Nic Elliott, Human Resource Assistant, presented him with a Request for Medical Infonnation Letter (RMI). (Ex. 7.) The RMI letter required him to have his healthcare provider complete the RMI form. Mr. Panzarella continued treatment with PA Yeager, who completed Amazon's RMI form and marked "undetermined" on the form regarding work-relatedness. !d. The following month, PA Yeager completed an Attending Physician's Statement ofWork Capacity and Impairment and checked "yes" when asked ifMr. Panzarella's left knee condition was "due to injury or illness arising out ofthe patient's employment." !d.
PA Yeager subsequently ordered a left-knee MRI and referred Mr. Panzarella to see an orthopedic surgeon. Amazon later offered Mr. Panzarella a panel ofphysicians from which he selected Dr. Barry Vaughn. On the one occasion when Mr. Panzarella sawDr. Vaughn, hereported the following history:
Patient reports leaning forward to pick up a piece ofpaper at work. When he twisted his left knee, he felt a tearing sensation in the posteromedialaspect. His knee then gave way and he fell ontothe knee applying a valgus stress to the knee. He has had left knee pain with swelling, popping and givingway sincethe injury. (Ex. 3.) Dr. VaughnreviewedMr. Panzarella'sMRI and x-rays andperformed aphysical examination. He diagnosed Mr. Panzarella with medial meniscus derangement, medial collateral ligament (MCL) sprain, and anterior cruciate ligament (ACL) sprain. Dr. Vaughnrecommended surgery for the meniscus tear followed byphysicaltherapy.
Dr. Vaughn testified regarding Mr. Panzarella's meniscus tear. He stated Mr. Panzarella did not indicate to him that his right ankle had anything to do with his left knee giving out. Dr. Vaughn explained that a meniscus tear is usually caused by a twisting-type injury. He confinned Mr. Panzarella reported to him that his left knee twisted before he fell onto it. Dr. Vaughn stated his diagnosis of a meniscus tear is consistentwith the type ofinjury reported by Mr. Panzarella. Once he fell onto his knee, Dr. Vaughn suspected it likely caused his ACL and MCL sprains. When asked ifthe injury occurred at work, Dr. Vaughn replied that Mr. Panzarella's description is that it occurred at work and PA Yeager's report documented he had a swollen knee when he reported his injury toher. During cross-examination, counsel questioned Dr. Vaughn regarding the cause of Mr. Panzarella's fall. The following dialogue occurred: Q: And again, accordingto the history he gaveyou, there was no hazard on the floor or in his work environment that caused him to have this muscle cramp and his knee orlegto give way, was there?
A: Otherthan pickingup thepiece ofpaper, no. Q: And his knee or leg could have given out and he could have developed this cramp whether he was at work or anywhere else doing this maneuver, couldn'the?
A: Correct. Q: AndMr. Panzarella is overweight; correct?
A: Correct. Q: Could that be a factor in him losing his balance and falling when bendingover?
A: Itcan be, yes.!d.
Counsel also questioned Dr. Vaughn regarding the act ofbending over in relation to Mr. Panzarella's knee or leg giving way. When asked whether Mr. Panzarella's knee would have gone out when it did if he had not bent over to pick up the paper, he responded, "no." !d. Under cross-examination, Dr. Vaughn explained, "[i]t kind of depends on the position that he put himselfin to retrieve the paper ... I mean, basically, itdepends on how the action was performed." !d. Counsel asked, "[s]o it would depend on the action as opposed to whether or not there was a piece ofpaper in the floor or he was bending down to tie his shoes; correct?" !d. Dr. Vaughn responded, "[c]ertainlythe action is what'sresponsible, correct." !d.
Dr. Vaughn confirmed that Mr. Panzarella is not yet at maximum medical improvement. Other than the one-time visit with Dr. Vaughn, Amazon has not authorized any other treatment. Jt argues that Mr. Panzarella is not entitled to any benefits under the Workers' Compensation Lawbecause he suffered an idiopathic injury and providedno medicalproofofahazard incidenttohis employment. Evidentiary Ruling During Dr. Vaughn's deposition, Mr. Panzarella's counsel made an evidentiary objection. Counsel for Amazonposedthe following 98-word questionto Dr. Vaughn:

!d. Q: I was going to say that if we were to assume that in order for Mr. Panzarella's injury to arise out ofhis employment, the maneuver ofbending down to pick up the piece of paper and the development of the muscle cramp, or whatever caused his leg or knee to give way, needs to have been caused by a hazard or a danger peculiar to his work environment or be caused by some kind ofrisk inherent in his employment, ifyou were to assume that, would you agree his injury doesn't arise out of his employment?
A: Ifyoumakethat assumption, I suppose so, yes.

Counsel for Mr. Panzarella objectedtwice as to form on the basis thatthe question required Dr. Vaughn to provide a legal opinion. The Court agrees. The question is lengthy, confusing, and appears to ask Dr. Vaughn to provide a legal opinion. Although it is undisputed that Dr. Vaughn is qualified as a medical expert, he is not qualified to provide a legal opinion. Accordingly, the Court sustains the objection.Findings ofFact and Conclusions ofLaw 

### The following legal principles govern this case. Mr. Panzarella has the burden of proofon all essential elements ofhis claim. Tenn. Code Ann. § 50-6-239(c)(6) (2015); 

### Scott v. Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (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 a preponderance ofthe evidence that he or she is, in fact, entitled to the requested benefits." 

### Willis v.AllStaff, 2015 TN Wrk. Comp. App. Bd. LEXIS *42, at*18 (Nov. 9, 2015); see also Tenn. CodeAnn. §50- 6-239(c)(6) (2016). Stated another way, preponderance ofthe evidence simply means more likely than not. Since Amazon contests the compensability ofMr. Panzarella's claim, the Court applies the following specific legal principles. For his injury to be compensable, Mr. Panzarella must show his injury arose "primarily" out ofand in the course and scope of his employment at Amazon. Tenn. Code Ann. § 50-6-102(14) (2016). The course of employment requirement refers to the time, place, and circumstances ofthe injury. 

### Hill v. EagleBendMfg., Inc., 942 S.W.2d 483, 487 (Tenn. 1997). However, the arising out of employment requirement refers to causation. 

### Reeser v. Yellow Freight Sys., Inc., 938 S.W.2d 690, 692 (Tenn. 1997). An injury arises out of employment when there is a causal connection between the conditions under which the work is required to be performed and the resulting injury. 

### Fritts v. Safety Nat'! Cas. Corp., 163 S.W.3d 673, 678 (Tenn. 2005). The legal analysis does not stop there. Mr. Panzarellamust show, "to areasonable degree ofmedical certainty that [the injury] contributed more than fifty percent (50%) in causing the

... disablement or need for medical treatment, considering all causes." The legislature defined "[s]hown to a reasonable degree ofmedical certainty" to mean the physician must opine "it is more likely than not considering all causes, as opposed to speculation or possibility." Further, as the panel physician, Dr. Vaughn's opinion regarding causation "shall be presumed correct but this presumption shall be rebuttable by apreponderance oftheevidence." Tenn. Code Ann.§ 50-6-102(14) (2016). Applying these principles to the facts ofthis case, the Court finds Mr. Panzarella has not methis burden and is not entitledto the requested benefits. As the Appeals Board has reiterated in 

### Dugger v. Home Health Care of Middle TN, LLC, et al., 2016 TN Wrk. Comp. App. Bd. LEXIS 13, at *9-10 (March 16, 2016): "The mere presence ofthe employee at the place ofinjury because ofthe employment is not enough, as the injury must result from a danger or hazard peculiar to the work or be caused by a risk inherent in the nature of the work." (Citation omitted). Accordingly, "an injury purely coincidental, or contemporaneous, or collateral, with the employment,

... will not cause

### the injury

...to be considered as arising out ofthe employment." (Citation omitted).
In this Court's November 23, 2016 order, which the Appeals Board vacated and remanded, the Court applied a different evidentiary standard because it considered the matter as onepresented to the Court in an Expedited Hearing. Specifically, the Court did not find Amazon's idiopathic injury defense persuasive and held that Mr. Panzarella was "likely to prevail at a hearing on the merits in establishing that his injury arose primarily from a hazard incident to his employment at Amazon." When applying this lesser evidentiary standard, the Court interpreted the proofdifferently than it

### would have had it applied the "preponderance of the evidence" standard the Court is required to apply during a Compensation Hearing. McCord v. Advantage Human Resourcing, 

### 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at 

## *16, 17 (Mar. 27, 2015). When interpreting and analyzing the proofunder the preponderance ofthe evidentiary standard, the Court finds Mr. Panzarellafailed to establishthe compensability ofhis claim. Under the preponderance of the evidence standard, the Court holds that Mr. 

### Panzarella failed to meet his burden ofestablishing that his right knee condition arose primarily out ofhis employment. Dr. Vaughn never opined that Mr. Panzarella's knee injury arose "primarily" out ofhis employment. Instead, he agreed that Mr. Panzarella's knee could have given out and developed a cramp whether he was at work or elsewhere. (Ex. 4.) Dr. Vaughn explained that the action of bending over was responsible for Mr. Panzarella's knee giving way. He also acknowledged that another factor that could cause Mr. Panzarella to lose his balance and fall when bending over is the fact that he is overweight. Id. 

### Yet another factor that could cause Mr. Panzarella to lose his balance and fall is the history he provided to PA Yeager immediately following his injury. Her records reflect that Mr. Panzarella complained ofhaving "chronicpain in Rankle, compensating on L leg & 

### caused a fall onto L knee." (Ex. 2.) Accordingly, after careful consideration of the evidence as a whole, this Court concludes Mr. Panzarella failed to establish, by a preponderance ofthe evidence, his left knee condition arose primarily out ofand in the course or scope ofhis employment with Amazon. In light ofthe Court's holding, Mr. Panzarella's request for medical benefits, temporary disability benefits, and permanent disabilitybenefits is denied.
Because Mr. Panzarella failed to present sufficient evidence to establish that his left knee condition aroseprimarily out ofand in the course and scope ofhis employment, the idiopathic defenseraisedbyAmazon is pretermitted. This Court taxes the court costs of $150.00 to Amazon pursuant to Tennessee Compilation Rules and Regulations Rule 0800-02-21-.07 (2016). Further, Amazon shall prepare and submit a Statistical DataForm for this matter within ten calendar days ofthe date of judgment.ITIS, THEREFORE, ORDEREDthatthe claim ofMr. Panzarella againstAmazon or its workers' compensation carrier is denied.
ITIS SO ORDERED.


### ENTEREDthis the31stday ofJanuary, 2017.

# kb_abcffl JudgeAudr A. Headrick CourtofWorkers' Compensation ClaimsAPPENDIX Technical record: 1. Petition for BenefitDetermination 2. Dispute CertificationNotice 3. Request for Initial Hearing 4. Agreed Order Setting Case for ExpeditedHearing 5. Notice ofFilingNotice ofDenial 6. Notice ofFiling ofMedical Records from Physicians Quality Care 7. Motion for Status Conference 8. Order SettingInitial Hearing 9. Initial Hearing Order 10.Motion for Conference 11. Statement ConcerningUp to Date Medical Records 12.Notice ofFilingMedical Reports from Parkridge EastHospital 13.Amended Petition for BenefitDetermination 14. OrderAmendingInitial Hearing Order 15.Dispute CertificationNotice 16.Amazon's Pre-Hearing Statement 17.OrderCancelling and Resetting CompensationHearing 18.Notice ofCompensation Hearing 19.Mr. Panzarella'sPre-CompensationHearing Statement 20.Amazon'sHearing Brief 2l.Mr. Panzarella's Trial Brief
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 establishedby the evidence. Exhibits: 1. MRI and x-rays from ChattanoogaImaging 2. Medical records ofFastAccess Healthcare 3. Medical records ofDr. BarryVaughn 4. Deposition ofDr. Vaughn 5. Medical records ofParkridgeEast Hospital 6. Non-Occupational Complaint Report 7. Request for medical information letter from AmazonCERTIFICATEOF SERVICE
Ihereby certifythat atrue and correct copy ofthis Compensation Hearing Orderwas sent to the following recipients by the following methods ofservice on this the 31st day ofJanuary, 2017.
Name Certified First Via Mail Class Fax Mail BobWharton
Kristen Stevenson Fax Via EmailAddress Number Email
X wharton@hjwlawfirm.com kcstevenson@mijs.com X

# ffi~ m, ClerkofCourt Courtof orkers' Compensation Claims WC.CourtClerk@tn.gov