1

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Dustin Morton ) Docket No. 2021-06-0129

)

v. ) State File No. 5478-2020

)

Morsey Constructors d/b/a Harper )

Industries, et al. )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Thomas L. Wyatt, Judge )

Reversed and Remanded

The employee, an ironworker, was injured when a metal panel fell from a roof, hit the 

ground, and struck him on the head and left shoulder, causing him to twist and fall on his 

right knee. The employee received authorized medical treatment for the knee injury and 

was eventually placed at maximum medical improvement and returned to work with no 

restrictions by his authorized physician. Upon returning to work, the employee reported

experiencing pain in his neck and shoulder blades with numbness in his arms. The 

employee did not request medical treatment for his neck, upper back, and arm symptoms 

until more than one year after the work accident. The employer denied medical treatment 

for those conditions, citing a lack of medical proof establishing causation. Following an 

expedited hearing, the trial court determined that the employee was entitled to medical 

benefits for his alleged neck, upper back, and arm injuries without coming forward with 

any evidence of medical causation. The employer has appealed. Upon careful 

consideration of the record, we reverse the trial court’s order and remand the case.

Judge Pele I. Godkin delivered the opinion of the Appeals Board in which Presiding Judge 

Timothy W. Conner and Judge David F. Hensley joined.

J. Allen Callison, Nashville, Tennessee, for the employer-appellant, Morsey Constructors

d/b/a Harper Industries

Jeffrey P. Boyd, Jackson, Tennessee, for the employee-appellee, Dustin Morton

FILED

Oct 04, 2021

10:45 AM(CT)

TENNESSEE

WORKERS' COMPENSATION

APPEALS BOARD
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Factual and Procedural Background

On January 17, 2020, Dustin Morton (“Employee”), an ironworker employed by 

Morsey Constructors d/b/a Harper Industries (“Employer”), was injured in the course and 

scope of his employment when a large metal panel fell from a roof, hit the ground, and

struck his left shoulder and head, causing his right knee to twist and him to fall. Employee 

was transported to Fast Pace Urgent Care Clinic where he complained of “pain in the right 

knee,” reporting that something “fe[ll] off of a building and hit him in the left shoulder and 

his head and somehow he twisted his foot or leg and hurt his knee.” Employee denied 

“back pain, muscle pain.” He was provided with a knee brace and instructed to return in a 

week for a follow-up appointment if there was no resolution of his pain.

On January 24, 2020, Employee returned to Fast Pace Urgent Care Clinic with 

continued complaints of knee pain and was referred for an MRI, which revealed a tear of 

his anterior cruciate ligament (“ACL”). Employee was referred to an orthopaedic surgeon, 

and Employer provided a panel of physicians from which Employee selected Dr. David 

Moore. Dr. Moore first examined Employee on February 20, 2020, and diagnosed 

Employee with acute right knee pain, “[b]ucket-handle tear of the medial meniscus of [the] 

right knee,” and “[r]upture of anterior cruciate ligament of [the] right knee.” Dr. Moore 

assigned work restrictions and, on February 24, 2020, performed surgery on his knee.

At Employee’s March 6, 2020 postoperative visit, Dr. Moore documented that 

Employee “denie[d] any unusual complaints or new injury” and was undergoing physical 

therapy. Employee continued physical therapy and remained on work restrictions for 

several months afterward. On August 27, 2020, during a visit with Dr. Moore, Employee 

complained of new lateral sided knee pain but “denied any [new] injury.” Dr. Moore 

ordered a new MRI, which revealed an intact ACL graft and no new recurrent meniscal 

tears. On November 10, 2020, approximately ten months after the accident, Dr. Moore 

placed Employee at maximum medical improvement and allowed him to return to work 

without restrictions.

Following his medical release, Employee returned to work with Employer for a brief 

period of time before he was laid off. Employee found subsequent employment and 

worked in a fabrication shop for “four or five weeks” until that job was concluded. 

Employee stated he felt “more pain and that his arms would go numb” when he was “doing 

stuff or in an awkward position welding or fabricating.” As a result, on February 2, 2021, 

Employee submitted a request for medical care to Employer through his attorney. On

February 5, 2021, Employer sent a questionnaire to Dr. Moore, requesting further 

clarification regarding Employee’s request for medical treatment, asking:

1. At any time, has [Employee] requested treatment for or otherwise 

indicated that he sustained an injury to his neck or shoulder as a result 

of the at-work accident that occurred on January 17, 2020?
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2. At any point have you deemed it necessary to recommend any treatment 

or evaluation for [Employee’s] neck or shoulder as it relates to the atwork injury on January 17, 2020?

Dr. Moore replied “no” to both questions. As a result, Employer denied Employee’s 

request for further medical treatment. On February 9, 2021, Employee filed a petition for 

benefits requesting, in part, a panel of physicians to treat his neck and shoulders. Following 

an unsuccessful mediation, a dispute certification notice was issued identifying medical 

benefits as a disputed issue. In the dispute certification notice, Employer asserted that

Employee “never voiced any complaints until approximately [one] year after the accident” 

and disputed “whether Employee’s neck and shoulder complaints are related to his work 

injury.” Employee was later deposed and testified he did not personally request medical 

care for his neck or shoulder from the workers’ compensation carrier, although he 

“casually” mentioned soreness in his neck and shoulders to the nurse case manager and his 

work supervisor. Employee agreed that any request for medical treatment “would have 

gone through [his] attorney.”

In a July 12, 2021 expedited hearing, Employee testified that he had received no 

medical treatment for his neck, shoulder, or arms since the date of the work incident. On 

cross-examination, he testified as follows regarding whether he reported his neck and 

shoulder complaints:

Q: And you never told your supervisor during that time that you needed to 

go see a doctor about your neck or shoulder; is that correct?

A: Not to the point of, like, we need to go have a scan done on this thing, 

I’m in that much discomfort. But we talked about it being sore and stuff 

once I got moving.

Q: You had the adjuster’s e-mail and phone number, correct?

A: Yes.

Q: You never sent her an e-mail or gave her a phone call saying, Hey, 

Jeanie, I need to see the doctor about my neck, did you?

A: No, sir.

Q: After you got discharged by Dr. Moore in November of 2020, you 

exchanged e-mails with Ms. Moxley, is that correct?

A: Yes, sir.
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Q: During none of those e-mails did you ever say, Hey, Jeanie, I know 

we’re talking about my knee here, but don’t forget about my neck? You

didn’t do that, did you?

A: No, sir.

Employee also testified that, while he had the ability to contact his nurse case manager and 

adjuster, he did not request care through the workers’ compensation insurer for his neck 

and shoulders until after he contacted an attorney.

The trial court determined Employee had presented sufficient evidence from which 

it could conclude he was likely to prevail at trial regarding his request for additional 

medical benefits and awarded medical benefits for Employee’s neck and shoulders, stating

that proof of medical causation is not required at an expedited hearing to obligate an 

employer to provide treatment. Employer has appealed.

Standard of Review

The standard we apply in reviewing a trial court’s decision presumes that the court’s 

factual findings are correct unless the preponderance of the evidence is otherwise. See

Tenn. Code Ann. § 50-6-239(c)(7) (2020). When the trial judge has had the opportunity 

to observe a witness’s demeanor and to hear in-court testimony, we give considerable 

deference to factual findings made by the trial court. Madden v. Holland Grp. of Tenn., 

Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar deference need be 

afforded the trial court’s findings based upon documentary evidence.” Goodman v. 

Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at *6 (Tenn. 

Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and application of 

statutes and regulations are questions of law that are reviewed de novo with no presumption 

of correctness afforded the trial court’s conclusions. See Mansell v. Bridgestone Firestone 

N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are also mindful of our 

obligation to construe the workers’ compensation statutes “fairly, impartially, and in 

accordance with basic principles of statutory construction” and in a way that does not favor 

either the employee or the employer. Tenn. Code Ann. § 50-6-116 (2020).

Analysis

Employer asserts Employee failed to “[come] forward with sufficient evidence of a 

compensable injury to his neck or shoulder based on his failure to report any injury to his 

neck/shoulder to any medical provider or otherwise request medical care for those body 

parts for over one year.” In support of its contention, Employer emphasizes that Employee 

acknowledged that he did not experience any pain in his neck until he became more active 

after surgery, and that he “did not report any pain in his neck to any of his medical 

providers . . . [and] never even testified that he believes that his neck problems are related 
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to this fall.” Employer maintains that Employee’s proof is insufficient for him to carry his 

burden of proof “even under the more relaxed McCord [v. Advantage Human Resourcing,

No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6 (Tenn. Workers’ Comp. App. 

Bd. Mar. 17, 2015)] standard.” Based upon our review of the record, we agree that 

Employee failed to provide sufficient evidence at the expedited hearing to indicate he is 

likely to prevail at trial in establishing entitlement to medical benefits for his alleged neck 

and shoulder conditions.

Generally, to be compensable, an injury must arise primarily out of and in the course 

and scope of employment and must cause disablement, death, and/or the need for medical 

treatment of the employee. Tenn. Code Ann. § 50-6-102(14) (2020). An injury “arises 

primarily out of and in the course and scope of employment” only if it has been shown by 

a preponderance of the evidence that the employment contributed more than fifty percent 

(50%) in causing the injury, considering all causes. Tenn. Code Ann. § 50-6-102(14)(B). 

Here, there is no dispute regarding the compensability of Employee’s knee injury, and 

Employer provided workers’ compensation benefits associated with treatment for that 

injury. However, Employer disputed the compensability of Employee’s alleged neck and 

shoulder injuries based on the significant delay from the occurrence of the accident to the 

request for medical treatment.

As we have previously stated, an employee need not prove each and every element 

of his or her claim by a preponderance of the evidence in order to obtain temporary 

disability benefits or medical benefits at an interlocutory stage of a case. McCord, 2015 

TN Wrk. Comp. App. Bd. LEXIS 6, at *9. However, an employee does bear the burden 

of coming forward with sufficient evidence from which the trial court can determine that 

the employee is likely to prevail at a hearing on the merits consistent with Tennessee Code 

Annotated section 50-6-239(d)(l). Id. Thus, an injured worker retains the burden of proof 

at all stages of a workers’ compensation claim, and a trial court can grant relief at an 

expedited hearing if the court is satisfied that an employee has met the burden of showing 

that he or she is likely to prevail at a hearing on the merits. Tenn. Code Ann.§ 50-6-

239(d)(l). Nevertheless, “[t]his lesser evidentiary standard, . . . does not relieve an 

employee of the burden of producing evidence of an injury by accident that arose primarily 

out of and in the course and scope of employment at an expedited hearing, but allows some 

relief to be granted if that evidence does not rise to the level of a ‘preponderance of the

evidence.’” Buchanan v. Carlex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. 

Bd. LEXIS 39, at *6 (Tenn. Workers’ Comp. App. Bd. Sept. 29, 2015).

Here, it is undisputed that a large, heavy panel fell from a roof and, after hitting the 

ground, struck Employee’s head and shoulder while he was in the course and scope of his 

employment. Thus, we discern no error with the trial court’s determination that Employee 

came forward with sufficient evidence to prove a work-related incident identifiable by time 

and place of occurrence. However, that finding does not end the inquiry.
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In its order, the trial court emphasized that the hearing was “about a request for 

additional medical treatment [and] proof of medical causation is not required to obligate 

an employer to provide treatment.” In addressing whether Employee’s injury arose 

primarily out of and in the course and scope of his employment, the trial court relied, in 

part, on Employee’s testimony that “he told [his] providers and in particular Dr. Moore that 

a heavy roofing panel hit his head and left shoulder.” The trial court noted that Employee’s 

testimony was “not necessarily incompatible” with that of Dr. Moore and stated that,

although Employee did not request medical treatment for his neck and shoulders, “the 

possibility remains that he could have injured his neck and shoulders from the accident” 

and “[t]hat will be for a doctor to decide.” (Emphasis added.) The court also “place[d] 

little weight” on medical records that solely focused on Employee’s knee, finding they 

“[did] not prove that his alleged injuries did not arise primarily from the work accident.”1

In reaching this result, the court relied on our decision in McCord. However, the 

facts of this case are distinguishable from those in McCord. In McCord, the employee 

testified without contradiction that she felt symptoms in her lower back while lifting boxes 

at work. McCord, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *15-16. The employee’s 

job included lifting boxes, and she visited the emergency room twice over the following 

two days with complaints of low back and right shoulder symptoms. Id. at *17. The

employee reported the work injury to her employer four days after the work incident and

attempted to give her on-site work supervisor “medical paperwork” that same day. Id. at 

*18. Based upon the totality of the evidence and the particular circumstances of that case, 

including that the request for medical treatment that occurred within a few days of the work 

incident, we concluded that the employee had come forward with sufficient evidence 

entitling her to a panel of physicians. Id.

The trial court also relied on our decision in Lewis v. Molly Maid, No. 2015-06-

0456, 2016 TN Wrk. Comp. App. Bd. LEXIS 19, at *8-9 (Tenn. Workers’ Comp. App. Bd. 

Apr. 20, 2016) for the proposition that medical proof is not required at an interlocutory 

stage of the case. In Lewis, the employee provided unrefuted testimony that she 

experienced back pain after operating a vacuum during her initial three days of training. 

The employee informed her trainer of her back pain, and the employer acknowledged being 

told of the employee’s complaints. Id. at *7. Further, the employer was aware that the 

employee intended to go to an emergency room to obtain medical treatment for her back. 

1 In its brief on appeal, Employer also contends the trial court’s “failure to make a finding of fact and 

conclusion of law that the at-work injury was more likely than not the primary cause of the need for medical 

care amounts to an order for a causation opinion ‘for a doctor to decide.’” We previously addressed this 

issue in Pool v. Jarmon D&Q Transport, No. 2015-06-0510, 2016 TN Wrk. Comp. App. Bd. LEXIS 1 

(Tenn. Workers’ Comp. App. Bd. Jan. 4, 2016), when we stated: “While an injured worker who meets the 

applicable statutory requirements is entitled to medical benefits, there is no ‘right to a causation opinion’ 

as such. If a trial court determines that medical benefits are appropriate, the court can order the initiation 

of such benefits. However, it is the parties’ responsibility to secure expert opinions or other evidence 

necessary to address any applicable burden of proof.” Id. at *9-10 (citations omitted).
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Id. The medical evidence supported the employee’s allegation that she began suffering 

severe back pain that she attributed to using the vacuum cleaner. Id. at *8. Again, as in 

McCord, the request for medical treatment was close in time to the occurrence of the work 

incident. Thus, under the circumstances presented in that case, we agreed the employee 

had come forward with sufficient evidence to support the trial court’s order compelling the 

employer to provide a panel of physicians. Id. at *9.

Here, unlike the employees in McCord and Lewis, Employee did not request

medical treatment for his alleged neck or shoulder injuries until 54 weeks after the work 

incident, despite having access to an authorized physician, a nurse case manager, and an 

adjuster for over a year. In addition, Employee acknowledged that he did not ask Employer 

to provide medical treatment for his neck or shoulders during that 54-week period of time. 

Moreover, Employee provided no testimony that he believed his neck and shoulder 

problems were related to the work incident, and there is no medical proof in the record that 

Employee’s neck and shoulder problems were causally related to the work incident. While 

Employee need not prove each and every element of his claim by a preponderance of the 

evidence to obtain medical benefits at an interlocutory stage of the case, given such a 

significant delay before his request for medical treatment, we conclude he must come 

forward with more than a mere allegation of alleged work-related injuries to support his 

claim for authorized medical treatment. In short, the length of time between a work 

accident and the request for medical treatment, while not dispositive, is a relevant factor to 

consider in the court’s analysis of whether an employee is entitled to medical care at an 

interlocutory stage of the case.

It is undisputed that a heavy panel hit Employee’s head and shoulder. However, it 

is also undisputed that over one year elapsed prior to his request for medical treatment for 

his neck, shoulders, and arms, during which time Employee could have discussed such 

issues with his authorized treating physician, the adjuster, the nurse case manager, and/or 

Employer. We are not persuaded that Employee’s vague descriptions of “discomfort” 

months after the incident occurred is sufficient evidence at this stage of the proceedings to 

support a conclusion that he is likely to prevail at trial in establishing an entitlement to

medical treatment for his neck and shoulders.

Conclusion

Based on the record before us, we conclude the evidence preponderates against the 

trial court’s interlocutory award of medical benefits for Employee’s neck and shoulders. 

We reverse the trial court’s expedited hearing order and remand the case. Costs on appeal 

are taxed to Employee.
 

 

 

 TENNESSEE BUREAU OF WORKERS’ COMPENSATION 

 WORKERS’ COMPENSATION APPEALS BOARD 

Dustin Morton ) Docket No. 2021-06-0129 

) 

v. ) State File No. 5478-2020 

)

Morsey Constructors d/b/a Harper ) 

Industries, et al. ) 

) 

) 

Appeal from the Court of Workers’ ) 

Compensation Claims ) 

Thomas L. Wyatt, Judge ) 

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 4th day 

of October, 2021. 

Name Certified 

Mail

First Class 

Mail

Via 

Fax

Via 

Email

Sent to: 

Allen Callison X allen.callison@mgclaw.com

Jeff Boyd X jboyd@borenandboyd.com

Thomas L. Wyatt, Judge 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

 

Olivia Yearwood

Clerk, Workers’ Compensation Appeals Board

220 French Landing Dr., Ste. 1-B 

Nashville, TN 37243 

Telephone: 615-253-1606 

Electronic Mail: WCAppeals.Clerk@tn.gov