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TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT COOKEVILLE

JAKE PERRY, ) Docket No. 2022-04-0293

Employee, )

v. ) State File No. 107193-2019

UNITED PARCEL SERVICE, INC.,

 Employer,

And

LIBERTY MUTUAL INS. CO.,

)

)

)

)

Judge Robert Durham

Insurer. )

EXPEDITED HEARING ORDER GRANTING BENEFITS

The Court held an Expedited Hearing on April 16, 2024, to determine whether Mr. 

Perry is likely to prevail at trial that he is entitled to psychiatric care ordered by his treating 

physician. Because UPS did not rebut the presumption that this treatment is necessary for

the injury, the Court holds Mr. Perry is likely to prevail at trial in his request and orders 

UPS to provide a panel of psychiatrists. 

History of Claim

Mr. Perry suffered a left-shoulder rotator cuff tear on October 29, 2019, when he 

fell from his delivery truck. UPS did not contest the injury and authorized orthopedist 

Joseph Schaffer to treat it. Dr. Schaffer performed four left-shoulder surgeries over the 

next few years, culminating in a shoulder replacement in May 2022.1 In Mr. Perry’s

affidavit, he said that he also treated with his family doctor for depression during this time 

and is currently taking an anti-depressant.2

At the hearing, Mr. Perry testified that before his injury, he never suffered from 

depressive symptoms. He said that his constant pain and limitations from his left-shoulder 

1 During this time, Dr. Schaffer also surgically repaired a right-shoulder injury that happened due to a nonwork-related accident. 2The parties did not make the family physician’s records an exhibit at the hearing.

FILED

Apr 22, 2024

03:31 PM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS
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injury and his lack of progress during his treatment caused his depression. 

He said that, while his shoulder is better, he still has significant limitations that 

preclude many activities. He testified that he cannot lift his grandchildren, play physical 

games or sports with his family, or do any chores or tasks that require him to lift or extend 

his left arm for any length of time. These limitations force him to “remain on the sidelines.” 

He particularly misses playing the guitar, which used to relieve stress. He believes that 

psychiatric treatment would greatly benefit his mental state.

On cross-examination, Mr. Perry agreed that before his injury, he spent most of his 

adult life driving a truck. He was also the sole breadwinner for his family. He has not 

driven a truck since his injury, and with his restrictions, he will never be able to. Mr. Perry

has not sought work since his injury. He acknowledged that his inability to work has made 

him feel “less of a man.” He also testified that he missed the social interactions with coworkers and customers.

In November 2023, Dr. Schaffer discussed Mr. Perry’s depression in an affidavit. 

Dr. Schaffer concluded that he was not a psychiatrist and could not “definitively” 

determine the cause of Mr. Perry’s symptoms. However, he believed to a reasonable 

degree of medical certainty that a psychiatrist should evaluate Mr. Perry to determine 

causation and give appropriate treatment.

In response to the affidavit, UPS deposed Dr. Schaffer. He admitted that he was not 

giving an expert opinion that Mr. Perry suffered from depression secondary to his work 

injury. However, in his “professional medical opinion” he believed that a consultation with 

a psychiatrist was reasonable based on Mr. Perry’s report of symptoms and because it was 

outside his practice to evaluate those symptoms.

On cross-examination, Dr. Schaffer agreed that Mr. Perry had significant difficulty

recovering from his injury. He also agreed that patients will sometimes develop psychiatric 

symptoms after a physical injury, and that his “normal customary care” of those patients 

would include referring them to a psychiatrist for assessment and possible treatment. When 

asked, to a reasonable degree of medical certainty, if Mr. Perry would benefit from a 

psychiatric evaluation, Dr. Schaffer said yes, “if only to settle the matter” as to causation 

and possible treatment. Finally, he agreed that he had patients whom he referred to 

specialists outside orthopedics, and he expected them to address causation issues.

Findings of Fact and Conclusions of Law

To obtain the requested psychiatric treatment, Mr. Perry must show a likelihood of 

prevailing at a hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(1) (2023). Here, the

question is whether UPS must comply with Dr. Schaffer’s psychiatric referral for Mr. 

Perry’s depressive symptoms. The Court finds Mr. Perry is likely to prove entitlement to 
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this treatment and orders UPS to abide by Dr. Schaffer’s recommendation. 

UPS does not contest that Mr. Perry sustained a compensable left-shoulder injury

that required four surgeries. The undisputed facts also show that Dr. Schaffer referred Mr. 

Perry for psychiatric care to evaluate and, if necessary, treat any depressive symptoms 

caused by his work injury. 

In its argument, UPS emphasizes that a compensable mental injury does not include 

a “psychological or psychiatric response due to the loss of employment or employment 

opportunities.” Id. at -102(15) (2019). It contends that Mr. Perry has not established that 

his alleged depressive symptoms are due to any other factor. However, UPS misconstrues 

the current issue. 

Section 50-6-204(a)(3)(H) presumes that any treatment recommendation made by 

an authorized physician is “medically necessary” for treatment of the injured employee. In 

determining the statute’s applicability in this case, the Court looks to Beech v. G4S Secure 

Solutions (USA), Inc., 2020 TN Wrk. Comp. App. Bd. LEXIS 71, at *7, 8 (Dec. 16, 2020).

In Beech, the employee suffered a closed-head injury. The treating neurologist

referred him for a psychiatric evaluation for his “increased anxiety.” The employer refused 

to authorize treatment and instead wrote two letters to the treating doctor asking if he could 

say to a reasonable degree of medical certainty that the employee’s psychiatric issues were 

primarily caused by his work injury. The doctor replied “no” to both letters. 

The trial court, citing section 50-6-204(a)(3)(H), ordered the employer to submit a 

psychiatric panel. The Appeals Board affirmed, writing: 

Employer misconstrues the burden of proof and misstates the relevant issue. 

The issue is not whether Employee has come forward with sufficient 

evidence to convince the trial court that the referral was medically necessary 

or that his alleged psychological injury is causally related to the work 

incident. That was not Employee’s burden to prove at that stage of the case. 

Instead, the relevant issue is whether Employee came forward with sufficient 

proof from which the trial court could conclude a panel-selected treating 

physician made a referral to a specialist. 

Id. 

 The holding in Beech is on-point with the facts here. Mr. Perry proved that the 

authorized physician for his work-related injury made a referral for psychiatric care. As 

the authorized physician, Dr. Schaffer’s recommendation is presumed necessary for the 

injury. Whether psychiatric treatment is ultimately causally related under the statute is not 

the issue at this stage. Thus, UPS shall submit a panel of psychiatrists from which Mr. 
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Perry may choose an authorized physician to treat any mental injuries causally related to 

his work injury. 

Mr. Perry also asked that penalties and attorney’s fees be awarded. UPS filed a 

motion to exclude this request because he did not seek these remedies in his request for 

expedited hearing. The Court denies UPS’s motion and refers the case to the Bureau’s 

Compliance Program for a penalty determination under Tennessee Code Annotated section 

50-6-118(a)(8). 

As for attorney’s fees, the Workers’ Compensation Appeals Board has addressed 

the timing of this type of request and held the “better practice” is to resolve them after the 

litigation has concluded, “given the twists and turns inherent in litigation.” Andrews v. 

Yates Servs., Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 35, at *7-8 (May 23, 2017). 

IT IS, THEREFORE, ORDERED: 

1. UPS shall submit a panel of psychiatrists, from which Mr. Perry may choose an 

authorized physician to provide reasonable and necessary treatment for 

depressive symptoms causally related to his work injury. 

2. This case is referred to the Bureau’s Compliance Program to determine if, and 

to what extent, a penalty is warranted.

3. This case is set for a Scheduling Hearing on June 3, 2024, at 10:00 a.m. Central 

Time. The parties must call 615-253-0010. Failure to appear might result in a 

determination of the issues without the party’s participation. 

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

with this Order must occur no later than seven business days from the date of 

entry of this Order as required by Tennessee Code Annotated section 50-6-

239(d)(3). US Express must submit confirmation of compliance with this Order 

to the Bureau by email to WCCompliance.Program@tn.gov no later than the 

seventh business day after entry of this Order. Failure to submit the necessary 

confirmation within the period of compliance may result in a penalty assessment 

for non-compliance. For questions regarding compliance, please contact the 

Workers’ Compensation Compliance Unit via email at 

WCCompliance.Program@tn.gov. 

ENTERED April 22, 2024. 
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_____________________________________ 

 ROBERT DURHAM, JUDGE 

Court of Workers’ Compensation Claims 

APPENDIX 

Technical Record: 

1. Petition for Benefit Determination 

2. Dispute Certification Notice 

3. Request for Expedited Hearing 

4. Mr. Perry’s Pre-Trial Brief 

5. UPS’s Pre-Trial Brief 

6. UPS’s Motion to Exclude 

Exhibits: 

1. Dr. Schaffer’s medical records with causation letter 

2. Dr. Schaffer’s affidavit 

3. Dr. Schaffer’s deposition 

4. Dr. Schaffer’s April 29 letter 

CERTIFICATE OF SERVICE 

I certify that a copy of the Order was sent as indicated on April 22, 2024. 

Name Mail Email Service sent to:

Brian Dunigan X brian@poncelaw.com

David Hooper X dhooper@hooperzinn.com

Compliance 

Program

X WCCompliance.program@tn.gov

_____________________________________ 

 PENNY SHRUM, Court Clerk 

WC.CourtClerk@tn.gov 
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.

Right to Appeal:

If you disagree with the Court’s Order, you may appeal to the Workers’ Compensation 

Appeals Board. To do so, you must:

1. Complete the enclosed form entitled “Notice of Appeal” and file it with the Clerk of the 

Court of Workers’ Compensation Claims before the expiration of the deadline.

 If the order being appealed is “expedited” (also called “interlocutory”), or if the 

order does not dispose of the case in its entirety, the notice of appeal must be filed 

within seven (7) business days of the date the order was filed.

 If the order being appealed is a “Compensation Order,” or if it resolves all issues 

in the case, the notice of appeal must be filed within thirty (30) calendar days of 

the date the Compensation Order was filed.

When filing the Notice of Appeal, you must serve a copy on the opposing party (or attorney,

if represented). 

2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten calendar 

days after filing the Notice of Appeal. Payments can be made in-person at any Bureau office 

or by U.S. mail, hand-delivery, or other delivery service. In the alternative, you may file an 

Affidavit of Indigency (form available on the Bureau’s website or any Bureau office) 

seeking a waiver of the filing fee. You must file the fully-completed Affidavit of Indigency 

within ten calendar days of filing the Notice of Appeal. Failure to timely pay the filing 

fee or file the Affidavit of Indigency will result in dismissal of your appeal.

3. You are responsible for ensuring a complete record is presented on appeal. If no court 

reporter was present at the hearing, you may request from the Court Clerk the audio 

recording of the hearing for a $25.00 fee. If you choose to submit a transcript as part of your 

appeal, which the Appeals Board has emphasized is important for a meaningful review of 

the case, a licensed court reporter must prepare the transcript, and you must file it with the 

Court Clerk. The Court Clerk will prepare the record for submission to the Appeals Board, 

and you will receive notice once it has been submitted. For deadlines related to the filing of 

transcripts, statements of the evidence, and briefs on appeal, see the applicable rules on the 

Bureau’s website at https://www.tn.gov/wcappealsboard. (Click the “Read Rules” button.)

4. After the Workers’ Compensation Judge approves the record and the Court Clerk transmits 

it to the Appeals Board, a docketing notice will be sent to the parties.

If neither party timely files an appeal with the Appeals Board, the Court Order 

becomes enforceable. See Tenn. Code Ann. § 50-6-239(d)(3) (expedited/interlocutory 

orders) and Tenn. Code Ann. § 50-6-239(c)(7) (compensation orders).
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082 

NOTICE OF APPEAL 

Tennessee Bureau of Workers’ Compensation

www.tn.gov/workforce/injuries-at-work/ 

wc.courtclerk@tn.gov | 1-800-332-2667 

Docket No.: ________________________

State File No.: ______________________ 

Date of Injury: _____________________ 

___________________________________________________________________________ 

Employee

v.

___________________________________________________________________________ 

Employer

Notice is given that ____________________________________________________________________ 

[List name(s) of all appealing party(ies). Use separate sheet if necessary.]

appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the 

Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date filestamped on the first page of the order(s) being appealed):

□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________

□ Compensation Order filed on__________________ □ Other Order filed on_____________________

issued by Judge _________________________________________________________________________. 

Statement of the Issues on Appeal 

Provide a short and plain statement of the issues on appeal or basis for relief on appeal: 

________________________________________________________________________________________

________________________________________________________________________________________

________________________________________________________________________________________

________________________________________________________________________________________

Parties

Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee 

Address: ________________________________________________________ Phone: ___________________ 

Email: __________________________________________________________ 

Attorney’s Name: ______________________________________________ BPR#: _______________________ 

Attorney’s Email: ______________________________________________ Phone: _______________________ 

Attorney’s Address: _________________________________________________________________________ 

* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082 

Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________ 

Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee 

Appellee’s Address: ______________________________________________ Phone: ____________________ 

Email: _________________________________________________________ 

Attorney’s Name: _____________________________________________ BPR#: ________________________ 

Attorney’s Email: _____________________________________________ Phone: _______________________ 

Attorney’s Address: _________________________________________________________________________ 

* Attach an additional sheet for each additional Appellee *

CERTIFICATE OF SERVICE 

I, _____________________________________________________________, certify that I have forwarded a 

true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described 

in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this 

case on this the __________ day of ___________________________________, 20 ____. 

 ______________________________________________ 

[Signature of appellant or attorney for appellant]