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TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Elsa Arriaga ) Docket No. 2014-01-0012

 )

v. ) State File No. 55942-2014

)

Amazon.com, Inc., et al. )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Thomas Wyatt, Judge )

Affirmed and Remanded - Filed March 9, 2016

In this interlocutory appeal, the employee alleges injuries to her neck, back, and feet 

stemming from her job duties in a warehouse. After first being advised by the employer 

to seek medical care on her own, the employee was later provided a panel of physicians. 

The employer denied the claim after unknown personnel at a panel-chosen facility 

checked a box on a form indicating the employee’s injuries were not work-related. The 

trial court ruled that the employee was likely to succeed on the merits of her claim and 

ordered medical benefits. The trial court declined to award temporary disability benefits. 

The employer has appealed. Having carefully reviewed the record, we affirm the trial 

court’s decision and remand the case for any further proceedings that may be necessary.

Judge Marshall L. Davidson, III, delivered the opinion of the Appeals Board, in which 

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

Charles E. Pierce, Knoxville, Tennessee, for the employer-appellant, Amazon.com, Inc.

Elsa Arriaga, Chattanooga, Tennessee, employee-appellee, pro se
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Factual and Procedural Background

 

Elsa Arriaga (“Employee”), a forty-eight-year-old resident of Hamilton County, 

Tennessee, was employed by Amazon.com, Inc. (“Employer”), at its warehouse in 

Chattanooga. Employee alleges that on July 3, 2014, she felt pain in her back, right 

shoulder, and feet while performing her job duties as a “picker.”1 Her pain was such that 

she was unable to complete her shift. She attempted to report her complaints at 

Employer’s nursing facility but there was no nurse on duty. She filled out the required 

papers and slid them under the nurse’s door.

Employee was next scheduled to work on July 11, 2014 and, prior to her shift, she 

reported her July 3, 2014 injury to the nurse at Employer’s on-site facility. She 

completed a report in which she complained of pain in her feet, right shoulder, back, and 

neck. The nurse instructed Employee to report to the human resources department where 

Employee spoke with personnel about obtaining medical benefits for her injury. Despite 

requesting a panel of physicians, she was instructed to see her own physician.

On July 14, 2014, Employee saw her primary care provider for complaints of 

bilateral heel/foot pain, shoulder pain, and back pain. The nurse practitioner who treated 

Employee referred her to Dr. Ira Krause, a podiatrist, and Dr. Jason Eck, an orthopedic 

surgeon. Dr. Krause diagnosed Employee with “retrocalcaneal tendonitis/calcaneal spur”

and restricted her from walking, pushing, carrying, or climbing for extended periods of 

time. 

After seeing her primary care provider and Dr. Krause, Employee returned to 

Employer with their reports. She was required to complete another accident report and 

Employer provided a panel of physicians from which Employee selected Occupational 

Health Services. On July 23, 2014, Employee was seen by an unidentified individual at 

Occupational Health Services where she complained of symptoms consistent with her 

prior reports and explained that she believed her symptoms were caused by her job 

duties. Someone from Occupational Health Services completed a form indicating 

Employee did not have a work-related injury and that she could return to work without 

restrictions.2

 

1 A “picker” retrieves items in Employer’s warehouse and packs them into boxes for shipping. It is 

undisputed that Employee was required to maintain a fast pace and walk considerable distances in order 

to fulfill her quota of selecting 1000 items per shift, some of which were large and/or heavy.

2 The records from Occupational Health Services consist of two pages on which certain boxes are 

checked. While Employer has indicated that Employee was seen by Dr. David Schultz at Occupational 

Health Services, the records provided from that visit are unclear in that regard and Employee did not 

know the name of the person who examined her. Employer offered no evidence confirming the identity 

of this individual at the expedited hearing.
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Employee saw Dr. Eck in July and August 2014 and reported pain in her neck, 

back, and right arm, which she attributed to her work for Employer. MRIs ordered by Dr. 

Eck revealed “multilevel mild to moderate cervical spondylosis, most severe at the C5-6 

level with right paracentral disc protrusion, right lateral recess encroachment, and severe 

right foraminal stenosis,” along with a disk bulge in her thoracic spine. Dr. Eck 

recommended a “C5-6 anterior cervical discectomy fusion (Workers Compensation).” 

He believed that “her current symptoms are directly relate[d] to this work injury.”

Following an expedited hearing, the trial court ruled Employee had presented 

sufficient evidence to establish she was likely to succeed at a hearing on the merits and 

ordered Employer to pay Employee’s past medical expenses and provide ongoing 

medical care with Doctors Krause and Eck. The trial court denied Employee’s request 

for temporary disability benefits.3 Employer has appealed the trial court’s award of 

medical benefits.

Standard of Review

The standard of review to be applied by this Board 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) (2014). 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;

(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.

 

3 Employee has not appealed the denial of her request for temporary disability benefits. Thus, we need 

not address that issue.
4

Analysis

Employer challenges the trial court’s decision on three grounds: (1) the trial court 

erred in admitting as evidence Employee’s medical records, (2) the trial court erred in 

finding that the presumption of correctness afforded the opinion of an authorized treating 

physician under Tennessee Code Annotated section 50-6-102(14)(E) had been rebutted, 

and (3) the trial court erred in awarding medical benefits because Employee failed to 

present evidence of anything more than pain. We will address each issue in turn.

Admissibility of Medical Records

Employer argues, for the first time on appeal, that the trial court erred in admitting 

Employee’s medical records pursuant to “Tenn. Comp. R. & Regs. 0800-02-

210.16(6)(b)” because the records do not meet the criteria for admissibility under 

Tennessee Code Annotated section 50-6-235(c) and Tennessee Rule of Evidence 803(6).4 

Employer maintains that the regulation permitting electronically signed medical records 

to be admitted as evidence, Rule 0800-02-21-.16(6)(b), is contrary to Tennessee Code 

Annotated section 50-6-235(c)5and Tennessee Rule of Evidence 803(6).6 As such, Rule 

0800-02-21-.16(6)(b) is “nullified” and Employee’s medical records should be 

disregarded. 

With limited exceptions not applicable here, issues not presented to and decided 

by the trial court will not be decided by the appellate courts. Simpson v. Frontier Cmty. 

Credit Union, 810 S.W.2d 147, 153 (Tenn. 1991). As explained by one court, 

considering an issue “raised for the first time on appeal would be unfair to the trial court”

because “the trial court [should be] given the opportunity to rule upon the merits of the 

issue.” Gilliam v. State, No. 03-C-01-9411-CR-00406, 1995 Tenn. Crim. App. LEXIS 

351, at *7 (Tenn. Crim. App. Apr. 25, 1995). In addition, considering an issue for the 

first time on appeal essentially “results in ‘ambushing’ the other party.” Id. at *8. To 

avoid this untenable situation, “[i]t has long been the general rule that questions not 

raised in the trial court will not be entertained on appeal.” Lawrence v. Stanford, 655 

S.W.2d 927, 929 (Tenn. 1983). Indeed, in most instances, an issue raised for the first 

time on appeal will be deemed waived. See, e.g., Norton v. McCaskill, 12 S.W.3d 789, 

795 (Tenn. 2000); see also Appeals Board Prac. & Proc. § 5.5 (“Issues or arguments not 

 

4 We assume Employer meant to rely upon Rule 0800-02-21-.16(6)(b) because the regulation cited by 

Employer, Rule 0800-02-210.16(6)(b), does not exist. Rule 0800-02-21-.16(6)(b) provides that “[a]ll 

medical records signed by a physician or accompanied by a certification that the records are true and 

accurate which has been signed by the medical provider or custodian of records shall be admissible.”

5 Tennessee Code Annotated section 50-6-235(c) provides a method of introducing into evidence a 

physician’s report in lieu of a deposition.

6 Tennessee Rule of Evidence 803(6) is the business records exception to the hearsay rule.
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raised in the Court of Workers’ Compensation Claims will be deemed waived on 

appeal.”).

Such is the case here. Although Employer did object to the admissibility of 

handwritten notations on some of the medical records, no objection or argument was 

made regarding the admissibility of any medical record based on Rule 0800-02-21-

.16(6)(b). The failure to raise the issue in the trial court constitutes a waiver of that issue 

on appeal and, consistent with established law, we decline to address it. 

Presumption of Correctness of Authorized Physician’s Opinion

The trial court found that Employer did not present sufficient evidence of an 

opinion from an authorized treating physician or, in the alternative, that Employee’s 

evidence was sufficient to rebut the presumption of correctness afforded to the opinion of 

an authorized physician. See Tenn. Code Ann. § 50-6-102(14)(E) (“The opinion of the 

treating physician, selected by the employee from the employer’s designated panel of 

physicians . . . shall be presumed correct on the issue of causation but this presumption 

shall be rebuttable by a preponderance of the evidence.”). Specifically, the trial court 

found insufficient evidence to establish Employee was actually seen by a physician at 

Occupational Health Services, as the signature on the form provided by Occupational 

Health Services is illegible, no office notes were provided, and Employee did not 

remember the name of the person she saw. The trial court concluded that while 

Employer suggested Dr. David Schultz was Employee’s authorized physician at 

Occupational Health Services, it had not presented evidence to establish Employee was 

actually seen by him. Thus, the trial court determined that the presumption of correctness 

afforded to an authorized physician’s opinion did not attach. 

Because we agree with the alternative finding made by the trial court that 

Employee presented sufficient evidence to overcome the presumption of correctness, we 

need not decide whether Employer established an opinion entitled to a presumption of 

correctness. The trial court credited Employee’s testimony describing the onset of her 

symptoms and the strenuous nature of her job. The trial court also observed that there 

was no indication what, if any, testing or examination of Employee the purported 

authorized treating physician may have performed. On the other hand, Dr. Eck obtained 

two MRIs and considered those tests in rendering his opinion that Employee’s cervical 

injury was directly related to her employment. We find no error in the trial court’s 

resolution of this issue.

Medical Benefits

It is well-settled that an injured worker has the burden of proof on every essential 

element of his or her claim. Tenn. Code Ann. § 50-6-239(c)(6) (2015); see also 

Buchanan v. Carlex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd. 
6

LEXIS 39, at *5 (Tenn. Workers’ Comp. App. Bd. Sept. 29, 2015). However, at an 

expedited hearing at which pre-trial benefits are at issue, an employee need not prove 

every element of his or her claim by a preponderance of the evidence but must come 

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)(1) (2014). McCord v. Advantage Human Resourcing, No. 

2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Tenn. Workers’ Comp. 

App. Bd. Mar. 27, 2015). This 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, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6. 

Employer contends that the trial court erred in awarding medical benefits because 

“there has been no evidence shown in any of the medical records that there has been 

anything other than an increase in pain.” According to Employer, “no anatomical change 

has been documented” stemming from a pre-existing condition.7 However, Employee 

denied experiencing problems with her back or neck before July 3, 2014, and Employer

provided no evidence to the contrary. Nor did the trial court make any findings regarding 

any such problems. What does appear in the record is evidence in the form of Dr. Eck’s 

office notes that Employee has a herniated disc for which she needs surgery and that this 

condition is related to her employment. Under these circumstances, the trial court did not 

err in ordering medical benefits.

Conclusion

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

the trial court’s decision at this interlocutory stage of the case. 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 court’s decision is affirmed. The case is remanded for 

any further proceedings that may be necessary.

 

 

7 Employer cites Trosper v. Armstrong Wood Products, Inc., 273 S.W.3d 598 (Tenn. 2008) as providing a 

framework for analyzing the aggravation of a pre-existing condition. However, in light of significant 

changes to the law since Trosper was decided, reliance on that case is misplaced. See Miller v. Lowe’s 

Home Centers, Inc., No. 2015-05-0158, 2015 TN Wrk. Comp. App. Bd. LEXIS 40 (Tenn. Workers’

Comp. App. Bd. Oct. 21, 2015). 
 

 TENNESSEE BUREAU OF WORKERS’ COMPENSATION

 WORKERS’ COMPENSATION APPEALS BOARD

Elsa Arriaga ) Docket No. 2014-01-0012

)

v. )

) State File No. 55942-2014

Amazon.Com, Inc., 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 9th day of March, 2016.

Name Certified 

Mail

First Class 

Mail

Via 

Fax

Fax 

Number

Via 

Email

Email Address

Elsa Arriaga X littleyankee713@gmail.com

W. Troy Hart X wth@mijs.com 

Thomas 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

 

Matthew Salyer

Clerk, Workers’ Compensation Appeals Board

220 French Landing Dr., Ste. 1-B

Nashville, TN 37243

Telephone: 615-253-1606

Electronic Mail: Matthew.Salyer@tn.gov