v. 

Resolute Forest Products, et al. 

Appeal from the Court of Workers' 

Compensation Claims 

Audrey A. Headrick, Judge 

) State File No. 64362-2014 ) ) ) 

) ) ) ) 

Affirmed and Remanded-Filed August 16, 2016 

In this interlocutory appeal, the employee suffered a work-related left knee injury that 

was accepted by the employer as compensable and for which the employer provided 

benefits. The employee alleged that, while undergoing a functional capacity evaluation 

related to the left knee injury, he suffered an injury to his cervical spine. The employer 

denied the cervical injury claim, asserting the employee failed to give timely notice of the 

cervical injury and failed to establish causation. At the employee's request, the trial court 

entered an interlocutory order based on a review of the file without a hearing, finding that 

the employee was unlikely to prevail at a hearing on the merits and denying his request 

for medical and temporary disability benefits related to his alleged cervical injury. The 

employee has appealed. 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 Judge 

Marshall L. Davidson, III, and Judge Timothy W. Conner joined. 

G. Brent Burks, Chattanooga, Tennessee, for the employee-appellant, Robert Poellnitz 

Bridget Willhite, Athens, Tennessee, for the employer-appellee, Resolute Forest Products 

Factual and Procedural Background 

Robert Poellnitz ("Employee") is a fifty-two-year-old resident of Muscle Shoals, 

Alabama. He was employed by Resolute Forest Products ("Employer") on August 15, 

1 
conditions, Dr. Smalley's office notes generally reflect different dates of treatment and 

follow-up appointments for each condition. However, as noted below, on July 29, 2015, 

reports were prepared for two office visits, one concerning Employee's work-related left 

knee condition and the other concerning Employee's left shoulder condition that was not 

work-related. 

Following a course of medical treatment for the left knee injury that included postoperative follow-up visits every four to six weeks after Employee's September 30, 2014 

surgery, Employee returned to Dr. Smalley on July 29, 2015, at which time Dr. Smalley 

ordered a functional capacity evaluation ("FCE") to assess Employee's ability to return to 

his employment and what, if any, restrictions should be placed upon his activities as a 

result of the left knee injury. In a separate report also dated July 29, 2015, addressing 

Employee's left shoulder condition, Dr. Smalley stated that Employee "reports some 

neck pain and numbness/tingling down into the hand." 

Employee acknowledges a history of back and neck complaints for which he 

sought chiropractic treatment with Dr. Bruce Thompson. The record on appeal includes 

voluminous treatment notes with Dr. Thompson dating back to 2005 in which Employee 

complained of low back and neck pain as well as occasional left shoulder pain. However, 

the chiropractic records do not include complaints of pain extending to Employee's left 

hand and fingers until August 13, 2015, which was approximately two weeks before his 

alleged cervical injury and approximately two weeks after Dr. Smalley documented 

"numbness/tingling down into the hand." According to the report of Employee's August 

13, 2015 visit with the chiropractor, Employee reported "he was doing better until 

Wednesday, July 22, 2015 when his left shoulder blade, neck, left hand and little finger 

and ring finger began hurting and became weak after preforming [sic] FCE at work." 

Employee did not participate in an FCE until two weeks later on August 25, 2015.2 

The physical therapist conducting the evaluation issued a report the following day 

1 This appeal does not present issues concerning benefits requested or provided relative to the left knee 

injury. Except to the extent necessary to address Employee's alleged August 25, 2015 cervical injury, we 

forego a discussion of the circumstances surrounding Employee's left knee injury and the medical 

treatment he received for that injury. 

2 The record on appeal contains no information regarding why or how the August 13, 2015 medical record 

could document an injury during an FCE that had not yet occurred. 

2 
last office visit, he is doing worse." It noted that Employee's low back "has been hurting 

a couple of weeks," that "[w]hen he rolls over in bed he has sharrp [sic] pain in low 

back," and that his "left shoulder is painful and hand is weak." The "assessment" stated 

"[ t ]he prognosis for this patient at this time is good because the patient is experiencing an 

exacerbation and has responded well to conservative chiropractic therapy in the past." 

Employee sought treatment with his primary care physician, Dr. Timothy Ashley, 

on August 31, 2015, complaining of upper back pain, most prominent in the mid-thoracic 

spine, with constant and sharp pain radiating to the left upper arm. The report stated 

"[t]his is a chronic, but intermittent problem with an acute exacerbation." It noted that 

Employee "states that the current episode of pain started 7 days ago. Associated 

symptoms include numbness in the left hand ... DID FUNCTIONAL STUDY LAST 

WEEK 8/25/15-THEN 3 DAYS LATER NOTED NUMBNESS IN LEFT ARMCHIROPRACTOR-ADJUSTED WITH NO NRELIEF [ sic ]-NOT SLEEPING IN 3 

DAYS." Dr. Ashley administered a trigger point injection and ordered a cervical MRI. 

Employee returned to Dr. Smalley on September 9, 2015. Contrary to his apparent 

previous practice, Dr. Smalley addressed both the left shoulder condition and the left 

knee condition in the same report. With respect to the left shoulder condition, Dr. 

Smalley noted that Employee complained of "persistent numbness from the left hand to 

elbow," that Employee "is scheduled for an EMG today," and that he "recently 

underwent a cervical spine MRI per his PCP." Additionally, the report stated that Dr. 

Smalley "recommend[ s] that he follow up with a cervical spine specialist after the EMG 

for evaluation of his cervical spine," and noted that Employee is "to see Jason C. Eck, 

DO ... on or around 09/16/2015." Addressing the left knee, Dr. Smalley's September 9, 

2015 report noted that Employee reached maximum medical improvement for the knee 

injury and was released to return to work. The report does not mention the August 25, 

2015 FCE or a recent cervical injury. 

The parties dispute when Employer learned of the alleged August 25, 2015 workrelated cervical injury. After receiving the report of Employee's September 9, 2015 visit 

with Dr. Smalley noting that Employee was to see Dr. Eck, Employer did not provide a 

panel of cervical spine specialists, nor did Employer authorize Dr. Eck to provide 

treatment. On September 22, 2015, Employee sought treatment with Dr. Scott Hodges 3 a 

3 In two instances, the trial court's order refers to "Dr. Jolley." There is no evidence in the record that 

3 
information, stating "[t]his appears to be workers' compensation related injury (lifting 

with FCE)." Dr. Hodges noted "evidence of acute nerve injury to two muscles of the C8 

myotome, consistent with acute radiculopathy," and he ordered another cervical MRI due 

to the poor quality of the earlier MRI, which he indicated was "not usable for diagnosis." 

Dr. Hodges also noted "findings consistent with moderate severity left carpal tunnel 

syndrome," adding that Employee "has had previous treatment for right carpal tunnel 

syndrome." 

It appears Employee returned to Dr. Hodges on September 29, 2015, although the 

note from that office visit is not included in the record. On October 14, 2015, Dr. Hodges 

performed an anterior cervical discectomy with foraminotomy at C6-Tl, noting in the 

surgical record that the patient has had "a work-related injury." Employee has continued 

to seek follow-up care since his surgery. 

Employer states in both its position statement submitted to the trial court and in its 

brief on appeal that Employee reported his alleged cervical injury on September 25, 

2015, noting that Employee gave the notice to Employer's on-site nurse in the process of 

seeking clearance from the nurse to return to work from the knee injury. Despite this 

notice, Employer did not provide a panel of physicians for the alleged cervical injury 

until approximately November 20, 2015, when it presented a panel of three physicians 

that it described in its position statement was "for the purpose of having a physician 

opine as to whether [Employee's] neck injury was causally connected to his 

employment." 

Employee selected Dr. Timothy Strait from the panel and attended an appointment 

with him on January 4, 2016. Dr. Strait's report stated that Employee was seen 

"primarily for an Independent Medical Evaluation." It stated that in the process of 

performing the FCE following his knee injury, Employee "experienced pain radiating 

down his left arm in a radicular fashion." Significantly, the report stated that "[h]e had 

never experienced this type of pain before, although he did report neck pain in the past 

which frequently led to chiropractic visits." Dr. Strait commented in the report that he 

"[found] it interesting that [Employee] underwent a two level decompression involving 

C6-7 and C7-T 1 on the left for what is clearly a singular C8 left nerve root compression 

Employee treated with Dr. Jolley, and we presume the trial court's references to Dr. Jolley were intended 

to be references to Dr. Hodges. 

4 
during his performance of the [FCE]." On January 25, 2016, Employer denied the 

cervical injury claim, stating in the denial notice that the cervical injuries "are not 

compensable under this claim per opinion of authorized treating physician." 

Following the filing of Employee's petition for benefit determination and a dispute 

certification notice, Employee filed a request for expedited hearing asking that a decision 

be rendered on the record without a hearing. Employee submitted an affidavit of Dr. 

Hodges with his request, wherein Dr. Hodges stated that he had reviewed the medical 

records of Dr. Smalley, Dr. Ashley, Dr. Thompson, and Dr. Strait and, considering all 

causes, it was his opinion that the FCE was the primary cause of the cervical injury and 

the need for the resulting treatment. After concluding that additional information was not 

needed to determine whether Employee would likely prevail at a hearing on the merits of 

the claim, the trial court issued an order denying benefits for Employee's alleged cervical 

injury, finding Employee had failed to present sufficient evidence to establish the 

occurrence of a compensable injury or aggravation. Employee has appealed. 

Standard of Review 

The standard we apply 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) (2015). The trial court's 

decision must be upheld unless the rights of a 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). Like other courts applying the standards 

embodied in section 50-6-217(a)(3), we will not disturb the decision of the trial court 

absent the limited circumstances identified in the statute. 

5 
Tennessee Code Annotated section 50-6-204(a)(3)(A)(ii) (2015) provides that 

"[w]hen necessary, the treating physician selected in accordance with subdivision 

(a)(3)(A) shall make referrals to a specialist physician, surgeon, or chiropractor and 

immediately notify the employer." Here, on September 9, 2015, the authorized treating 

physician, Dr. Smalley, "recommend[ed] that [Employee] follow up with a cervical spine 

specialist after the EMG," noting in the report that Employee was ''to see Jason C. Eck, 

DO ... on or around 09/16/2015." The record on appeal is silent as to whether Dr. 

Smalley 'immediately notiflied] the employer' of his referral.4 Subdivision 50-6-

204( a)(3)(A)(ii) further provides that "[t]he employer shall be deemed to have accepted 

the referral, unless the employer, within three (3) business days, provides the employee a 

panel of three (3) or more independent reputable physicians, surgeons, chiropractors or 

specialty practice groups." Employee argues that, because Employer did not provide a 

panel of physicians in response to Dr. Smalley's referral to Dr. Eck within three days, 

Employee became entitled to treat with Dr. Hodges, who then became the authorized 

physician. The trial court disagreed. For the reasons that follow, we also disagree. 

The referral to Dr. Eck was included in the report of Employee's September 9, 

2015 visit with Dr. Smalley. In that report, Dr. Smalley addressed both the work-related 

knee injury and the nonwork-related shoulder injury for which Dr. Smalley performed 

surgery in December 2014. Dr. Smalley placed Employee at maximum medical 

improvement for the knee injury at the September 9, 2015 office visit. The report noted 

that Employee had persistent complaints of pain and numbness in the left arm following 

the left shoulder surgery and "recommend[ ed] that he follow up with a cervical spine 

specialist after the EMG for evaluation of his cervical spine." The report stated that 

Employee was ''to see Jason C. Eck, DO ... on or around 09/16/2015." There is no 

suggestion in the report that Employee's left arm or cervical complaints were related to 

the August 25, 2015 FCE or otherwise connected to Employee's compensable left knee 

injury. Moreover, the report of Employee's preceding visit with Dr. Smalley on July 29, 

2015 stated that Employee "is here for follow up on his left shoulder examination under 

anesthesia, left shoulder arthroscopy, massive full-thickness supraspinatus and 

4 Dr. Smalley's report does not use the term "referral," but instead "recommends" that Employee follow 

up with a cervical spine specialist. No issue has been raised questioning Dr. Smalley's use of the term 

"recommends," or whether the recommendation constituted a "referral" as the term is used in section 50-

6-204(a)(3)(A). Employer's brief on appeal acknowledges a "referral" to the specialist, and for purposes 

of this appeal, we treat the terms as if they are synonymous. 

6 
physician to become the authorized physician if an employer fails to act on a referral, the 

statutory provision did not apply under the particular circumstances of the case. The 

record is clear that Dr. Smalley was an "authorized treating physician" in accordance 

with the Tennessee Workers' Compensation Law only with respect to Employee's 

compensable left knee injury. Coincidentally, he was also Employee's personal medical 

specialist for treatment of an unrelated left shoulder condition. Thus, although the 

authorized treating physician made the referral to Dr. Eck, the office note gives no 

indication of a referral for a condition Dr. Smalley believed was related to the left knee 

injury, the FCE, or to any other work-related incident. Moreover, the record on appeal 

gives no indication that Employee gave notice of his alleged cervical injury until he 

presented to the on-site nurse for clearance to return to work from his knee injury on 

September 25, 2015, more than two weeks after the referral was made. Thus, even if the 

referral had been to Dr. Hodges, the circumstances were not such that Employer was 

deemed to have accepted the referral as contemplated in the statute. Accordingly, we 

find no merit in Employee's first issue. 

Whether Dr. Hodges' Opinion is Entitled to Greater Weight than Dr. Strait's Opinion 

Employee contends that Dr. Hodges' causation opinion is entitled to greater 

weight than Dr. Strait's opinion. Employee emphasizes that Dr. Hodges treated 

Employee for a substantial period of time, that he performed the surgical fusion of 

employee's cervical spine, that he reviewed all of the records of the physicians addressed 

in the trial court's Expedited Hearing Order and "[p]resumably, he has considered the 

same discrepancies noted in the Expedited Hearing Order." Employee concludes, 

''therefore, [the opinion] of the medical expert who examined and reviewed the facts 

relevant to [Employee] on substantially more occasions than Dr. Strait, should control." 

It is well established that a ''trial judge has the discretion to determine which 

testimony to accept when presented with conflicting expert opinions." Payne v. UPS, 

No. M2013-02363-SC-R3-WC, 2014 Tenn. LEXIS 1112, at* 18 {Tenn. Workers' Comp. 

Panel Dec. 30, 2014). When there are conflicting medical opinions "the trial judge must 

obviously choose which view to believe. In doing so, [the trial judge] is allowed, among 

other things, to consider the qualifications of the experts, the circumstances of their 

examination, the information available to them, and the evaluation of the importance of 

that information by other experts." Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 

676 {Tenn. 1991). 

7 
injury until August 25, 2015," and that ''the record is silent as to why [Employee] 

reported sustaining a neck injury during a FCE twelve days before it actually occurred," 

the trial court denied Employee's request for medical benefits related to his cervical 

condition, stating that its decision rendered the issue concerning temporary disability 

benefits moot. 

Employee asserts the trial court's opinion is not supported by substantial and 

material evidence. Identifying what Employee terms the "substantial and material 

evidence" supporting his claim, he asserts the trial court "ignore[ d] all of this evidence in 

favor of Dr. Strait based on the singular record of Dr. Ashley,"5 contending "[t]his 

reasoning is faulty for two reasons." First, Employee asserts in his brief that "Dr. Strait is 

not a reputable medical expert in the Workers' Compensation community," and that "[h]e 

is known primarily as an advocate for the insurance companies and employers of 

Chattanooga." The record on appeal is devoid of any evidence to support Employee's 

accusations. Furthermore, we note that Employee selected Dr. Strait from a panel of 

three physicians for the evaluation. 

The second reason Employee presents to support his assertion that the trial court's 

reasoning is faulty is the court's statement that it found "troubling" the August 13, 2015 

report of the chiropractor containing a reference to an FCE that was not performed until 

August 25, 2015. Employee argues "[i]t is absurd to assume that someone intended (or 

actually did) complain of an injury caused by an event that had not yet occurred." Stating 

that "[a] much more rational explanation of this is that some typographical error or 

misunderstanding in communication took place," Employee asserts that "Dr. Thompson's 

office confirmed that some type of error in the record is most likely the case and will 

confirm that in writing during the proceedings of this claim." As we have previously 

stated, "[o]ur role in evaluating a trial court's decision on appeal entails taking into 

5 The record on appeal includes reports of two office visits with Dr. Ashley, one of which occurred on 

March 30, 2015, and involved complaints unrelated to a knee, left shoulder, or neck injury, and the 

second, dated August 31, 2015, which noted Employee's complaints of upper back pain with radiation 

and numbness into the left arm three days after performing the August 25, 2015 FCE. It is unclear 

whether the statement in Employee's brief that ''the trial court ignore[d] all of this evidence ... based on 

the singular record of Dr. Ashley" was intended to refer to Dr. Thompson and the August 13, 2015 report 

that documented additional complaints "after preforming [sic] FCE at work." Irrespective of which 

record Employee intended to reference, the evidence identified by Employee has not been ignored as 

Employee asserts. 

8 
Dr. Thompson's report, and there is no evidence in the record suggesting a 

misunderstanding in communication as suggested by Employee. Moreover, we note 

Employee requested the trial court to enter an interlocutory order based on a review of 

the file rather than to set the matter for a hearing and provide him the opportunity to testify or offer other evidence for the court's consideration. See Tenn. Comp. R. & Regs. 

0800-02-21-.14(1)(c) (2015). Furthermore, as noted by the trial court, when Employee 

was evaluated by Dr. Strait, he told Dr. Strait "[h ]e had never experienced this type of 

pain before," referring to pain radiating down his left arm in a radicular fashion after the 

FCE. After reviewing the chronology of Employee's symptoms following the January 4, 

2016 report of the independent medical evaluation, Dr. Strait rescinded the opinion 

expressed in the report, stating "it is clear that [Employee's] left arm pain did not result 

from an injury occurring during his performance of the [FCE]," and that "the medical 

records clearly indicate that his left arm pain was not the result of him participating in the 

[FCE] which occurred on August 25, 2015." Similarly, the history Employee gave to Dr. 

Hodges conflicts with the previous history Employee provided to Dr. Smalley. The 

report of the September 22, 2015 initial visit with Dr. Hodges noted that Employee 

"states all the left shoulder pain and weakness began while doing the [FCE]" ( emphasis 

added), which contradicts the information in the report of Employee's July 29, 2015 visit 

with Dr. Smalley wherein Employee reported "some neck pain and numbness/tingling 

down into the hand." The record clearly demonstrates that Employee was suffering from 

left shoulder complaints prior to participating in the FCE. Thus, we find that the trial 

court's determinations on these issues were supported by substantial and material 

evidence. 

Finally, there is a presumption that the findings and conclusions of the trial court 

are correct, unless the preponderance of the evidence is otherwise. Tenn. Code Ann. § 

50-6-239(c)(7) (2015). After a careful review of the record, we find there is no basis in 

the record from which we can conclude that the evidence preponderates against the trial 

court's findings and conclusions. 

Conclusion 

For the foregoing reasons, we hold that the evidence does not preponderate against 

the trial court's decision. Nor does the trial court's decision violate any of the standards 

set forth in Tennessee Code Annotated section 50-6-217(a)(3). Accordingly, the trial 

9 
10 
 TENNESSEE BUREAU OF WORKERS’ COMPENSATION 

 WORKERS’ COMPENSATION APPEALS BOARD 

Robert Poellnitz ) Docket No. 2016-01-0135

)

v. )

) State File No. 64362-2014

Resolute Forest Products, 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 16th day of August, 2016. 

Name Certified 

Mail 

First Class 

Mail 

Via 

Fax 

Fax 

Number 

Via 

Email 

Email Address 

G. Brent Burks X brentburks@mcmahanlawfirm.com 

tim@mcmahanlawfirm.com 

Bridget J. Willhite X bridget@harrodlawfirm.com 

melissa@harrodlawfirm.com 

Audrey A. Headrick X Via Electronic Mail

Kenneth M. Switzer, 

Chief Judge

X Via Electronic Mail

Penny Shrum, Clerk, 

Court of Workers’ 

Compensation Claims

X Penny.Patterson-Shrum@tn.gov

Jeanette Baird

Deputy Clerk, Workers’ Compensation Appeals Board

220 French Landing Dr., Ste. 1-B 

Nashville, TN 37243 

Telephone: 615-253-0064 

Electronic Mail: Jeanette.Baird@tn.gov