1 COURT OF WORKERS’ COMPENSATION CLAIMS

DIVISION OF WORKERS' COMPENSATION

Carlton Moseley, ) DOCKET #: 2014-06-0097 ) STATE FILE #: 84846-2014 Employee, ) DATE OF INJURY: October 9, 2014 ) Judge Joshua Davis Baker v. ) ) Vanderbilt Medical Center and ) Vanderbilt University, ) ) Employer (Self-insured). )

EXPEDITED HEARING ORDER

THIS CAUSE came before the undersigne d Workers' Compensation Judge on April 15, 2015, upon the Request for Expedited Hearing f iled by Carlton Moseley, the employee, on April 1, 2015, pursuant to Tennessee Code Annot ated section 50-6-239 to determine if the employer, Vanderbilt Medical Center and Vanderbi lt University (Vanderbi lt) is obligated to provide medical benefits. Consider ing the positions of the parties, the applicable law, and all of the evidence submitted, the Court concludes that Mr. Moseley is entitled to the requested relief.

ANALYSIS

Issue

Whether Mr. Moseley sustained an injury that arose primarily out of and in the course and scope of employme nt with Vanderbilt.

Evidence Submitted

The Court admitted into evidence the exhibits below:

A. Medical Records of Carlton Moseley, Va nderbilt University Medical Center (13 pages)

B. Form C-42, Choice of Physician, October 17, 2014

C. Wage Statement

D. Form C-23, Notice of Denial, October 30, 2014.

Mr. Moseley was the only witness who provided in-person testimony.2 The Court designated the followi ng as the technical record:

 Petition for Benefit Determination, December 19, 2014

 Vanderbilt’s position statement, January 9, 2015

 Dispute Certification Notice, March 17, 2015

 Request for Expedited Hearing, April 1, 2015.

The Court did not consider attachments to th e above filings unless ad mitted into evidence during the Expedited Hearing. The Court considered factual statements in the above filings or any attachments to them as allegations unless established by the evidence.

History of Claim

Mr. Moseley is a fifty-nine (59) year-old resident of Davidson County, Tennessee, who

works for Vanderbilt as an electrician.

He testified that in Oc tober of 2014, he was hanging fifty- five inch (55”) monitors in the operating room at Vanderbilt University Medical Center. 1 Mr. Moseley had been taking hanging monitors for several workdays and testified that hanging the monitors re quired him to lift them over his head. Mr. Moseley testified that when he arrived home after work, “I noticed that I had no strength in my right arm—I m ean I couldn’t lift my right arm.” Mr. Moseley testified that he had suffered a rotator cuff injury befo re and recognized the symptoms.

Vanderbilt offered a panel (Exhibit B), fr om which Mr. Moseley chose Vanderbilt Occupational Health Clinic. He saw Nurse Practitioner Nakiesha Micheaux on October 17, 2014, and told her that he believed he had injured hi s shoulder while lifting monitors. He said “I think my rotator cuff is hurt.” Nurse Mi cheaux noted the following, in relevant part:

Date of Injury: 10/9/2014... EE arrive d to clinic c/o right shoulder pain. EE states he had been ta king off panel covers and hanging monitors frequently since October 9 th . ... EE states that since the

9 th he has been having pain that has been coming and going but has

now become constant. ... EE states that he has been performing job duties for a little over 10 yr. ... He denies any trauma.

NP Micheaux diagnosed osteoarthritis to the right shoulder, advised him to follow up with his primary care physician, and assigned no work restri ctions. X-rays performed on that same visit concluded, “1. Significant rotator cuff deficiency as evidenced by the high RIGHT humeral head. 2. Mild glenohumeral and acromioclav icular joint osteoarthritis.”

Mr. Moseley returned for authorized car e on October 21, 2014. He saw Dr. Norman

1 When he testified at the hearing, Mr. Moseley coul d not recall the exact date he hung the monitors. The medical records, however, identify October 9, 2014, as the date of injury. Additionally, the Dispute Certification Notice identifies October 9, 2014, as the date of injury.3 Quesada, who wrote, “[H]e report (sic.) recently installing multiple TV monitors in the OR. He has a remote history of right rotator cuff tear with surgery ~ 12 years ago.” Dr. Quesada’s impression was, “Significant rotator cuff defici ency as evidenced by the high right humeral head,” and, “Mild glenohumeral and acromioclavic ular joint osteoarthritis.” He referred Mr. Moseley to physical therapy and restricted hi m from overhead motion with his right hand and arm, and occasional pushing, pullin g and lifting up to fifteen (15) pounds. The phy sical therapy referral form listed the diagnosis as “rot ator cuff syndrome of the shoulder.”

Vanderbilt denied Mr. Moseley’s claim on October 27, 2014, asserting that the injury “[d]oes not appear to have arisen out of the course a nd scope of employment” (Exhibit D). It has

not authorized the physical therapy.

When he could no longer rece ive care from Vanderbilt, Mr. Moseley sought care on his own and had an MRI on November 17, 2014. The MRI report concluded:

1. Chronic full-thickness, full -width supraspinatus and infraspinatus tendon tears with moderate musculotendinous retraction and muscle atrophy. 2. Moderate subscapulararis and lo ng head of biceps tendinopathy. 3. Circumferential labral degeneration. 4. Full-thickness cartilage loss invol ving the superomedial humeral

head. 5. Capacious posterior capsule is indicative of prior capsular stripping.

Dr. Harley Odom, who review ed the MRI results, emailed Mr. Mosely on November 19, 2014, stating:

Just wanted to let you know that your MRI show s a chronic tear of your rotator cuff, as well as degenerative changes of your

shoulder/labrum. Given these fi ndings and your symptoms, you should definitely keep the appoint ment for consultation with the orthopedic physician as we discus sed to review possible treatment options.

Mr. Moseley did not have a consultati on with an orthopedic specialist.

Mr. Mosely’s Contentions

Mr. Mosely asserts he sustained a right rotato r cuff injury in the course of employment with Vanderbilt. He requests that the Court or der Vanderbilt to provide further care and pay his

medical bills.4 Vanderbilt’s Contentions

Vanderbilt asserts that it properly denied the claim on compensability grounds. It argues that Mr. Moseley failed to carry his burden of proving that his inju ry arose primarily out of and in the course and scope of employment with Va nderbilt. It argues that the panel physician diagnosed arthritis and the MRI shows a “chronic” situa tion that is not indi cative of specific

trauma.

Findings of Fact and Conclusions of Law

Standard Applied

The Workers’ Compensation Law shall not be re medially or liberally construed in favor of either party but shall be construed fairly, im partially, and in accordance with basic principles of statutory construction favoring neither the employee nor employer.” Tenn. Code Ann. § 50-6- 116 (2014). Tennessee Code Annotated section 50- 6-239(c)(6) provides that, “[u]nless the statute provides for a different st andard of proof, at a hearing th e employee shall bear the burden of proving each and every element of the claim by a preponderance of the evidence.” Tenn. Code Ann. § 50-6-239(c) (2014). A different sta ndard of proof exists for the issuance of interlocutory orders at expedite d hearings than the standard of proof required at compensation hearings.” McCord v. Advantage Human Resourcing , No. 2014-06-0063 (Tenn. Work. Comp. App. Bd., March 27, 2015). A workers’ compensation judge may enter an interlocutory order for medical or temporary benefits upon a determin ation that the injure d employee would likely prevail at a hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(1) (2014); cf. McCall v. Nat’l Health Care Corp

., 100 S.W.3d 209, 214 (Tenn. 2003).

Factual Findings

The Court finds that Mr. Moseley began experiencing weakness in his shoulder on October 9, 2014, after he arrived home from work. The Court finds that Mr. Moseley’s work at Vanderbilt over the weeks prior to October 9, 2014, required him to lift fifty-five inch (55”)

monitors over his head to install them in hos pital operating rooms. The Court finds that Dr. Quesada, the authorized treating physician, reco gnized that Mr. Moseley had an issue involving his right rotator cuff. The Court finds that Mr. Moseley made a reasonable choice to seek

unauthorized treatment from Dr. Odom after Vanderb ilt denied his claim. The Court finds that Dr. Odom recommended evaluation by an orthope dic specialist. The Court finds that Mr. Moseley has a right-rotator cuff te ar and an arthritic-shoulder condi tion. The Court finds that no physician has opined on whether hi s work at Vanderbilt caused hi s right rotator cuff tear or aggravated his arthriti c-shoulder condition.

Application of Law to Facts

In order for an injury to be compensable, it must have been accidental. Under the Tennessee Workers’ Compensation Law, an injury is accidental “...only if the injury is caused by a specific incident, or set of in cidents, arising primar ily out of and in the course and scope of employment, and is identifiable by time and place of occurrence...” Tenn. Code Ann. § 50-6-5 102(13)(A) (2014). “An injury “ar ises primarily out of and in the course and scope of employment” only if it has been shown by a pre ponderance of the evidence that the employment contributed more than fifty percent (50%) in cau sing the injury, consider ing all causes[.]” Tenn. Code Ann. § 50-6-102(13)(B) (2014).

Mr. Moseley testified th at he hung several fifty-five inch (55”) monitors in the operating room at Vanderbilt over a period of several weeks. He testified that after he went home from work one day he “...noticed that I had no strength in my right arm—I mean I couldn’t lift my right arm.” The Court finds th at Mr. Moseley carried his burde n of proving a specific set of

circumstances that may have caused the rotator cuff tear.

Vanderbilt correctly asserts that Mr. Mosele y has not carried his burden of proving that his injury arose primarily out of his employme nt. However, the missing element is medical

causation. The Court holds that it is not necessa ry for Mr. Moseley to prove medical causation in order to receive temporary me dical benefits. Enforcing such a high burden early in his claim would yield the unreasonable result of prohibiting Mr. Moseley from receiving medical care for the rotator cuff tear without first securing an expert opinion on medical causation.

The Court further finds Dr. Quesada’s diagnosis of “mild glenohumeral and acromioclavicular joint osteoarthritis” insufficien t for Vanderbilt to deny benefits on the ground of compensability. Vanderbilt decision to deny further benefits is insufficient because the subsequent MRI revealed “chronic...tendon tears.” The physical therapy referral form listed the diagnosis as “rotator cuff syndrome of the shoulder. ” While it is likely true that Mr. Moseley’s arthritic condition did not result from his work at Vanderbilt, Dr. Quesada has not provided an opinion on the cause of the rotato r cuff tear. Further, Dr. Quesad a has not provided an opinion on whether the work installing monitors aggravated Mr. Mosely’s pre-existi ng, arthritic-shoulder

condition.

Tennessee law requires an employer to provid e “...free of charge to the employee such medical and surgical treatment...made reasonably necessary by accident as defined in this chapter[.]” Tenn. Code Ann. § 50- 6-204(a)(1)(A) (2014). Mr. Moseley has an injury. At this point, however, it is unclear from a medical sta ndpoint, whether the work caused the injury or aggravated Mr. Mosely’s pre-existing arthritic-shoulder condition. Mr. Moseley, therefore, has a right to a causation opinion to determine whether his injury: is an acute work-related injury; an aggravation of his pre-existing ar thritic-shoulder conditi on; or, is not work-re lated at all. The Court, therefore, finds that Vanderbilt must provide Mr. Moseley an additional evaluation with Dr. Quesada so that he may provide an opinion on medical causation as related to the rotator cuff tear or refer him to an orthopedic specialist for an opinion on causation. If medical causation is established, Vanderbilt shall provide continuing, reasonable and necessary care, with an appropriate physician.

IT IS, THEREFORE, ORDERED as follows:

1. Vanderbilt shall schedule and pay for an addi tional evaluation with Dr. Quesada so that he may provide an opinion on the medical cau sation of Mr. Moseley’s right rotator cuff6 injury or refer Mr. Mo seley to an orthopedic speciali st for an opinion. In the event medical causation is established, Vanderbi lt shall provide continuing, reasonable and necessary care with an a ppropriate physician.

2. This is not a final order.

3. This matter is set for Initial Hearing on Ju ly 16, 2015, at 10:30 a.m. The hearing will be

convened via teleconference. Information on ho w to participate in the hearing is included

below.

4. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance

with this Order must occur no later than seven (7) business days from the date of entry of this Order as required by Tenne ssee Code Annotated section 50-6-239(d)(3) (2014). The Insurer or Self-Insured Employer must submit confirmation of compliance with this Order to the Division by email to WCCompliance.Program@tn.gov no later than the seventh (7th) business day after entry of this Order. Failure to submit the necessary confirmation within the period of compliance may result in a pena lty assessment for non-compliance.

5. For questions regarding compliance, please contact the Workers’ Compensation Compliance Unit via email WCCompliance.Program@tn.gov or by calling (615) 253- 1471 or (615) 532-1309.

ISSUED AND FILED WITH THE CLERK ON THIS THE 14th DAY OF MAY, 2015.

_____________________________________ Joshua Davis Baker Workers' Compensation Judge

Initial Hearing:

An Initial Hearing has been set with J udge Joshua Davis, Court of Workers’ Compensation Claims. You must call (615) 741-2113 or toll free at (855) 874-0474 to participate in the Initial Hearing. Please Note: Y ou must call in on the scheduled date/time to participate. Failure to call in may result in a determination of the issues wit hout your further participation. All conferences are set using Central Time (CT).

Right to Appeal:

Tennessee Law allows any part y who disagrees with this Expedited Hearing Order to7 appeal the decision to the Workers’ Compensati on Appeals Board. To file a Notice of Appeal,

you must:

1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal.”

2. File the completed form with the Court Clerk within seven (7) business days of the date the Workers’ Compensation Judge ente red the Expedited Hearing Order.

3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.

4. The parties, having the res ponsibility of ensuring a comp lete record on appeal, may request from the Court Clerk the audio record ing of the hearing for the purpose of having a transcript prepared by a licen sed court reporter and filing it with the Court Clerk within ten (10) calendar days of the filing of the Expedited Hearing Notice of Appeal. Alternatively, the part ies may file a statement of the evidence within ten (10) calendar days of the f iling of the Expedited Hearing Noti ce of Appeal. The Judge must approve the statement of the evidence before the Clerk of Court shall submit the record to the Clerk of the Appeals Board.

5. If the appellant elects to file a position st atement in support of the interlocutory appeal, the appealing party shall file such position statement with th e Court Clerk within three (3) business days of the filing of the Expedite d Hearing Notice of A ppeal, specifying the issues presented for review and including any argument in support thereof. If the appellee elects to file a response in opposition to the interlocutory appeal, appellee shall do so within three (3) business days of the filing of the a ppellant’s position statement.8 CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Expedited Hearing Order was sent to the following recipients by the following methods of service on this the 14th day of May, 2015.

Name Certified

Mail First

Class

Mail Via

Fax Fax

Number Via

Email Email Address

Carlton Moseley Cmos1956@gmail.com Raymond Leathers rsleathers@howardtatelaw.com

_____________________________________ Penny Shrum, Clerk of Court Court of Workers’ Compensation Claims