TENNESSEEBUREAUOFWORKERS'COMPENSATIONWORKERS'COMPENSATIONAPPEALSBOARDRobertPoellnitzv.ResoluteForestProducts,etal.AppealfromtheCourtofWorkers'CompensationClaimsAudreyA.Headrick,Judge)DocketNo.2016-01-0135))StateFileNo.64362-2014)))))))AffirmedandRemanded-FiledAugust16,2016Inthisinterlocutoryappeal,theemployeesufferedawork-relatedleftkneeinjurythatwasacceptedbytheemployerascompensableandforwhichtheemployerprovidedbenefits.Theemployeeallegedthat,whileundergoingafunctionalcapacityevaluationrelatedtotheleftkneeinjury,hesufferedaninjurytohiscervicalspine.Theemployerdeniedthecervicalinjuryclaim,assertingtheemployeefailedtogivetimelynoticeofthecervicalinjuryandfailed toestablishcausation.Attheemployee'srequest,thetrialcourtenteredaninterlocutoryorderbasedonareviewofthefilewithoutahearing,findingthattheemployeewasunlikelytoprevailatahearingonthemeritsanddenyinghisrequestformedicalandtemporarydisabilitybenefitsrelatedtohisallegedcervicalinjury.Theemployeehasappealed.Weaffirmthetrialcourt'sdecisionandremandthecaseforfurtherproceedingsasmaybenecessary.JudgeDavidF.HensleydeliveredtheopinionoftheAppealsBoard,inwhichJudgeMarshallL.Davidson,III,andJudgeTimothyW.Connerjoined.G.BrentBurks,Chattanooga,Tennessee,fortheemployee-appellant,RobertPoellnitzBridgetWillhite,Athens, Tennessee,fortheemployer-appellee,ResoluteForestProductsFactualandProceduralBackgroundRobertPoellnitz("Employee")isafifty-two-year-oldresidentofMuscleShoals,Alabama.HewasemployedbyResoluteForestProducts("Employer")onAugust15,12014,

when

he suffered

an injury

to his

left knee arising primarily

out

of and occurring

in the course

and scope

of his employment.

Employer

accepted

the claim

as compensable and provided

medical

care

with

Dr. Chad Smalley

as the authorized

physician,

including surgery performed

on September

30, 2014.

1 At

the time Employee

came

under

his care for

the

left knee injury,

Dr. Smalley

was already providing

medical

care

for

a left shoulder

condition

unrelated

to Employee's

work

and

for which Employee

underwent surgery

on December

12, 2014. Although

Employee

treated simultaneously

for

the

two 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. 2indicatingEmployeehadgivenareliableeffortandwasabletoworkintheheavyphysicaldemandcategory.TheFCEreportassignednopermanentphysicalrestrictions,anditmadenomentionofEmployee'scomplainingofincreasedneckpainorpainandnumbnessinhisleftarm,hand,orfingers.FollowingtheFCE,EmployeereturnedtohischiropractoronAugust28,2015.ThereportofthatvisitdoesnotmentiontheFCEoranynewinjury,butstated"sincehislastofficevisit,heisdoingworse."ItnotedthatEmployee'slowback"hasbeenhurtingacoupleofweeks,"that"[w]henherollsoverinbedhehassharrp[sic]paininlowback,"andthathis"leftshoulderispainfulandhandisweak."The"assessment"stated"[t]heprognosisforthispatientatthistimeisgoodbecausethepatientisexperiencinganexacerbationandhasrespondedwelltoconservativechiropractictherapyinthepast."Employeesoughttreatmentwithhisprimarycarephysician,Dr.TimothyAshley,onAugust31,2015,complainingofupperbackpain,mostprominentinthemid-thoracicspine,withconstantandsharppainradiatingtotheleftupperarm.Thereportstated"[t]hisisachronic,butintermittentproblemwithanacuteexacerbation."ItnotedthatEmployee"statesthatthecurrentepisodeofpainstarted7daysago.Associatedsymptomsincludenumbnessinthelefthand...DIDFUNCTIONALSTUDYLASTWEEK8/25/15-THEN3DAYSLATERNOTEDNUMBNESSINLEFTARMCHIROPRACTOR-ADJUSTEDWITHNONRELIEF[sic]-NOTSLEEPINGIN3DAYS."Dr.AshleyadministeredatriggerpointinjectionandorderedacervicalMRI.EmployeereturnedtoDr.SmalleyonSeptember9,2015.Contrarytohisapparentpreviouspractice,Dr.Smalleyaddressedboththeleftshoulderconditionandtheleftkneeconditioninthesamereport.Withrespecttotheleftshouldercondition,Dr.SmalleynotedthatEmployeecomplainedof"persistentnumbnessfromthelefthandtoelbow,"thatEmployee"isscheduledforanEMGtoday,"andthathe"recentlyunderwentacervicalspineMRIperhisPCP."Additionally,thereportstatedthatDr.Smalley"recommend[s]thathefollowupwithacervicalspinespecialistaftertheEMGforevaluationofhiscervicalspine,"andnotedthatEmployeeis"toseeJasonC.Eck,DO...onoraround09/16/2015."Addressingtheleftknee,Dr.Smalley'sSeptember9,2015reportnotedthatEmployeereachedmaximummedicalimprovementforthekneeinjuryandwasreleasedtoreturntowork.ThereportdoesnotmentiontheAugust25,2015FCEorarecentcervicalinjury.ThepartiesdisputewhenEmployerlearnedoftheallegedAugust25,2015workrelatedcervicalinjury.AfterreceivingthereportofEmployee'sSeptember9,2015visitwithDr.SmalleynotingthatEmployeewastoseeDr.Eck,Employerdidnotprovideapanelofcervicalspinespecialists,nordidEmployerauthorizeDr.Ecktoprovidetreatment.OnSeptember22,2015,EmployeesoughttreatmentwithDr.ScottHodges3a3Intwoinstances,thetrialcourt'sorderrefersto"Dr.Jolley."Thereisnoevidenceintherecordthat3physicianinpracticewithDr.SmalleyandDr.Eck.ThereportoftheinitialvisitwithDr.HodgesnotedthatEmployeecomplainedofneckandbilateralarmpainandstated"alltheleftshoulderpainandweaknessbeganwhiledoingthe[FCE]for[ aleftknee]repair."Thereportstatedthat"[t]hepatientdeniesanypriorhistory,"andnotedthatEmployeereported"numbness/tinglingoftheleftarmandweaknessofthelefthand."Additionally,thereportstated"[t]hepatientdeniessymptomsareaccidentrelatedorrelatedtoaworkers'compensationinjury."However,italsoincludedcontradictoryinformation,stating"[t]hisappearstobeworkers'compensationrelatedinjury(liftingwithFCE)."Dr.Hodgesnoted"evidenceofacutenerveinjury totwomusclesoftheC8myotome,consistentwithacuteradiculopathy,"andheorderedanothercervicalMRIduetothepoorqualityoftheearlierMRI,whichheindicatedwas"notusablefordiagnosis."Dr.Hodgesalsonoted"findingsconsistentwithmoderateseverityleftcarpaltunnelsyndrome,"addingthat Employee"hashadprevioustreatmentforrightcarpaltunnelsyndrome."ItappearsEmployeereturnedtoDr.HodgesonSeptember29,2015,althoughthenotefromthatofficevisitisnotincludedintherecord.OnOctober14,2015,Dr.HodgesperformedananteriorcervicaldiscectomywithforaminotomyatC6-Tl,notinginthesurgicalrecordthatthepatienthashad"awork-relatedinjury."Employeehascontinuedtoseekfollow-upcaresincehissurgery.Employerstatesinbothitsposition statementsubmittedtothetrialcourtandinitsbriefonappealthatEmployeereportedhisallegedcervicalinjuryonSeptember25,2015,notingthatEmployeegavethenoticetoEmployer'son-sitenurseintheprocessofseekingclearancefromthenursetoreturntoworkfromthekneeinjury.Despitethisnotice,EmployerdidnotprovideapanelofphysiciansfortheallegedcervicalinjuryuntilapproximatelyNovember20,2015,whenitpresentedapanelofthreephysiciansthatitdescribedinitspositionstatementwas"forthepurposeofhavingaphysicianopineastowhether[Employee's]neckinjurywascausallyconnectedtohisemployment."EmployeeselectedDr.TimothyStraitfromthepanelandattendedanappointmentwithhimonJanuary4,2016.Dr.Strait'sreportstatedthatEmployeewasseen"primarilyforanIndependentMedicalEvaluation."ItstatedthatintheprocessofperformingtheFCEfollowinghiskneeinjury,Employee"experiencedpainradiatingdownhisleftarminaradicularfashion."Significantly,thereportstatedthat"[h]ehadneverexperiencedthistypeofpainbefore,althoughhedidreportneckpaininthepastwhichfrequentlyledtochiropracticvisits."Dr.Straitcommentedinthereportthathe"[found]itinterestingthat[Employee]underwentatwoleveldecompressioninvolvingC6-7andC7-T1ontheleftforwhatisclearlyasingularC8leftnerverootcompressionEmployeetreatedwithDr.Jolley,andwepresumethetrialcourt'sreferencestoDr.JolleywereintendedtobereferencestoDr.Hodges.4syndrome,"butheconcluded"[n]evertheless,theonsetofthisnerverootcompressionsyndromeoriginatedfromtheeventsduringtheperformanceofthe[FCE]."Therefore,accordingtoDr.Strait,''thiswouldcomeundertheauspicesof[workers']compensation."However,incorrespondencefromDr.Straitdated January19,2016,hereversedhisopinionafterreviewingadditionalrecords,stating"Iwillrescindmypreviousopinionsinceitwasbasedentirelyonthepatient'sinput,"andopinedinsteadthat"itisclearthat[Employee's]leftarmpaindidnotresultfromaninjuryoccurringduringhisperformanceofthe[FCE]."OnJanuary25,2016,Employerdeniedthecervicalinjuryclaim,statinginthedenialnoticethatthecervicalinjuries"arenotcompensableunderthisclaimperopinionofauthorizedtreatingphysician."FollowingthefilingofEmployee'spetitionforbenefitdeterminationandadisputecertificationnotice,Employeefiledarequestforexpeditedhearingaskingthatadecisionberenderedontherecordwithoutahearing.EmployeesubmittedanaffidavitofDr.Hodgeswithhisrequest,whereinDr.HodgesstatedthathehadreviewedthemedicalrecordsofDr.Smalley,Dr.Ashley,Dr.Thompson,andDr.Straitand,consideringallcauses,itwashisopinionthattheFCEwastheprimarycauseofthecervicalinjuryandthe needfortheresultingtreatment.AfterconcludingthatadditionalinformationwasnotneededtodeterminewhetherEmployeewouldlikelyprevailatahearingonthemeritsoftheclaim,thetrialcourtissuedanorderdenyingbenefitsforEmployee'sallegedcervicalinjury,findingEmployeehadfailedtopresentsufficientevidencetoestablishtheoccurrenceofacompensableinjuryoraggravation.Employeehasappealed.StandardofReviewThestandardweapplyinreviewingatrialcourt'sdecisionisstatutorilymandatedandlimitedinscope.Specifically,"[t]hereshallbeapresumptionthatthefindingsandconclusionsoftheworkers'compensationjudgearecorrect,unlessthepreponderanceoftheevidenceisotherwise."Tenn.CodeAnn.§50-6-239(c)(7)(2015).Thetrialcourt'sdecisionmustbeupheldunlesstherightsofaparty"havebeenprejudicedbecausefindings,inferences,conclusions,ordecisionsofaworkers'compensationjudge:(A)Violateconstitutionalorstatutoryprovisions;(B)Exceedthestatutoryauthorityoftheworkers'compensationjudge;(C)Donotcomplywithlawfulprocedure;(D)Arearbitrary,capricious,characterizedbyabuseofdiscretion,orclearlyanunwarrantedexerciseofdiscretion;or(E)Arenotsupportedbyevidencethatisbothsubstantialandmaterialinthelightoftheentirerecord."Tenn.CodeAnn.§50-6-217(a)(3)(2015).Likeothercourtsapplyingthestandardsembodiedinsection50-6-217(a)(3),wewillnotdisturbthedecisionofthetrialcourtabsentthelimitedcircumstancesidentifiedinthestatute.5AnalysisEmployeeraisestwoissues:whetherDr.HodgesisanauthorizedphysicianbaseduponTennesseeCodeAnnotatedsection50-6-204(a)(3)(A)(ii),andwhetherthetrialcourterredinfailingtogivegreaterweighttoDr.Hodges'causationopinion.WhetherDr.HodgesisanAuthorizedTreatingPhysicianTennesseeCodeAnnotatedsection50-6-204(a)(3)(A)(ii)(2015)providesthat"[w]hennecessary,thetreatingphysicianselectedinaccordancewithsubdivision(a)(3)(A)shallmakereferralstoaspecialistphysician,surgeon,orchiropractorandimmediatelynotifytheemployer."Here,onSeptember9,2015,theauthorizedtreatingphysician,Dr.Smalley,"recommend[ed]that[Employee]followupwithacervicalspinespecialistaftertheEMG,"notinginthereportthatEmployeewas''toseeJasonC.Eck,DO...onoraround09/16/2015."TherecordonappealissilentastowhetherDr.Smalley'immediatelynotiflied]theemployer'ofhisreferral.4Subdivision50-6-204(a)(3)(A)(ii)furtherprovidesthat"[t]heemployershallbedeemedtohaveacceptedthereferral,unlesstheemployer,withinthree(3)businessdays,providestheemployeeapanelofthree(3)ormoreindependentreputablephysicians,surgeons,chiropractorsorspecialtypracticegroups."Employeearguesthat,becauseEmployerdidnotprovideapanelofphysiciansinresponsetoDr.Smalley'sreferraltoDr.Eckwithinthreedays,EmployeebecameentitledtotreatwithDr.Hodges,whothenbecametheauthorizedphysician.Thetrialcourtdisagreed.Forthereasonsthatfollow,wealsodisagree.ThereferraltoDr.EckwasincludedinthereportofEmployee'sSeptember9,2015visitwithDr.Smalley.Inthatreport,Dr.Smalleyaddressedboththework-relatedkneeinjuryandthenonwork-relatedshoulderinjuryforwhichDr.SmalleyperformedsurgeryinDecember2014.Dr.SmalleyplacedEmployeeatmaximummedicalimprovementforthekneeinjuryattheSeptember9,2015officevisit.ThereportnotedthatEmployeehadpersistentcomplaintsofpainandnumbnessintheleftarmfollowingtheleftshouldersurgeryand"recommend[ed]thathefollowupwithacervicalspinespecialistaftertheEMGforevaluationofhiscervicalspine."ThereportstatedthatEmployeewas''toseeJasonC.Eck,DO...onoraround09/16/2015."ThereisnosuggestioninthereportthatEmployee'sleftarmorcervicalcomplaintswererelatedtotheAugust25,2015FCEorotherwiseconnectedtoEmployee'scompensableleftkneeinjury.Moreover,thereportofEmployee'sprecedingvisitwithDr.SmalleyonJuly29,2015statedthatEmployee"ishereforfollowuponhisleftshoulderexaminationunderanesthesia,leftshoulderarthroscopy,massivefull-thicknesssupraspinatusand4Dr.Smalley'sreportdoesnotusetheterm"referral,"butinstead"recommends"thatEmployeefollowupwithacervicalspinespecialist.NoissuehasbeenraisedquestioningDr.Smalley'suseoftheterm"recommends,"orwhethertherecommendationconstituteda"referral"asthetermisusedinsection50-6-204(a)(3)(A).Employer'sbriefonappealacknowledgesa"referral"tothespecialist,andforpurposesofthisappeal,wetreatthetermsasiftheyaresynonymous.6infraspinatus

rotator

cuff repair."

At

the

July

29, 2015

visit, Employee

reported

neck pain

and "some numbness/tingling

down

into

the hand

along

the median

nerve distribution,"

for which

Dr. Smalley

noted

that

"[i]f

this persists/worsens

we will need

to order

an EMG

to evaluate

further."

The EMG

was scheduled

for September

9, 2015, following Employee's

appointment

with

Dr. Smalley

the same

day. The

trial court concluded

that, while section 50-6-204(a)(3){A){ii)

allows

a referral 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).

7Here,

the trial judge determined

that

Dr. Strait's opinion,

although

not entitled

to

a presumption

of correctness

on

the causation

issue,

was entitled

to greater

weight

than

Dr. Hodges'

opinion.

The

trial

court "[found]

it troubling

that

on August

13, 2015, [Employee]

reported

to Dr. Thompson,

his chiropractor,

that

he sustained

an injury

on 'July

22, 2015

when

his

left shoulder

blade,

neck,

left hand

and

little finger

and

ring finger

began hurting

and became

weak

after performing

FCE

at work.'" (Emphasis

in original).

Noting

that Employee

"did

not undergo

the FCE

for

his work-related

knee 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.

8accountinformationthetrialcourthadbeforeitatthetimethetrialcourtdecidedtheissues,asopposedtoconsideringinformationthepartiesmayseektopresentonappealfollowinganadversedecision."MacDonaldv.GreeneCnty.Sheriff'sDept.,No.2015-02-0077,2015TNWrk.Comp.App.Bd.LEXIS33,at*13-14(Tenn.Workers'Comp.App.Bd.Sept.4,2015).Here,thereisnoevidenceintherecordsuggestingthereisatypographicalerrorinDr.Thompson'sreport,andthereisnoevidenceintherecordsuggestingamisunderstandingincommunicationassuggestedbyEmployee.Moreover,wenoteEmployeerequestedthetrialcourttoenteraninterlocutoryorderbasedonareviewofthefileratherthantosetthematterforahearingandprovidehimtheopportunitytotestifyorofferotherevidenceforthecourt'sconsideration.SeeTenn.Comp.R.&Regs.0800-02-21-.14(1)(c)(2015).Furthermore,asnotedbythetrialcourt,whenEmployeewasevaluatedbyDr.Strait,hetoldDr.Strait"[h]ehadneverexperiencedthistypeofpainbefore,"referringtopainradiatingdownhisleftarminaradicularfashionaftertheFCE.AfterreviewingthechronologyofEmployee'ssymptomsfollowingtheJanuary4,2016reportoftheindependentmedicalevaluation,Dr.Straitrescindedtheopinionexpressedinthereport,stating"itisclearthat[Employee's]leftarmpaindidnotresultfromaninjuryoccurringduringhisperformanceofthe[FCE],"andthat"themedicalrecordsclearlyindicatethathisleftarmpainwasnottheresultofhimparticipatinginthe[FCE]whichoccurredonAugust25,2015."Similarly,thehistoryEmployeegavetoDr.HodgesconflictswiththeprevioushistoryEmployeeprovidedtoDr.Smalley.ThereportoftheSeptember22,2015initialvisitwithDr.HodgesnotedthatEmployee"statesalltheleftshoulderpainandweaknessbeganwhiledoingthe[FCE]"(emphasisadded),whichcontradictstheinformationinthereportofEmployee'sJuly29,2015visitwithDr.SmalleywhereinEmployeereported"someneckpainandnumbness/tinglingdownintothehand."TherecordclearlydemonstratesthatEmployeewassufferingfromleftshouldercomplaintspriortoparticipatingintheFCE.Thus,wefindthatthetrialcourt'sdeterminationsontheseissuesweresupportedbysubstantialandmaterialevidence.Finally,thereisapresumptionthatthefindingsandconclusionsofthetrialcourtarecorrect,unlessthepreponderanceoftheevidenceisotherwise.Tenn.CodeAnn.§50-6-239(c)(7)(2015).Afteracarefulreviewoftherecord,wefindthereisnobasisintherecordfromwhichwecanconcludethattheevidencepreponderatesagainstthetrialcourt'sfindingsandconclusions.ConclusionFortheforegoingreasons,weholdthattheevidencedoesnotpreponderateagainstthetrialcourt'sdecision.Nordoesthetrialcourt'sdecisionviolateanyofthestandardssetforthinTennesseeCodeAnnotatedsection50-6-217(a)(3).Accordingly,thetrial9court'sdecisionisaffirmedandthecaseisremandedforanyfurtherproceedingsthatmaybenecessary.DavidF.Hensley,JudeWorkers'CompensationAppealsBoard10

# TENNESSEE BUREAU OF W ORKERS’ COMPENSATION

WORKERS’ COMPEN SATION 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 c opy of t he Appeals Board’s decision in the

referenced case was sent to th e following recipients by the following methods of service

on this the 16th day of August, 2016.

Na me Certified

Mail First Class

Mail Via

F ax 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