1 TENNESSEE BUREAU OF WOR KERS’ COMPENSATION

WORKERS’ COMPENSAT ION APPEALS BOARD

) Docket No. 2015-02-0462 ) ) ) State File No . 62185-2015 ) ) ) ) ) Sally A. Lurz

v.

International Paper Company, et al.

Appeal from the Court o f Workers’ Comp ensation Claims

Br ia n K. Ad dington, Judge )

Affirmed and Certified as Fin al – Filed February 14, 2018

The employee, a machine operator, reported a fall while working on a production line, resulting in pain and other symptoms in her right shoulder and right knee. The employer initially provided a panel of physicians, but later denied the claim, relying on video evidence from security cameras i nside the facility suggesting t hat the employee was “guarding” her right upper extremity prior to the alleged work accident and, therefore, must have injured her shoulder outside of work. Following a re view of the video evidence, the authorized treating physician acknowledged that i t “raised questions about the causality of her injury,” but , despite these misgivings, he opined that the work accident was, more likely than not, primarily responsible for t he shoulder injury and the

need for medical treat ment. Following a compensation hearing, the trial court determined the employee’s claim was compensable and awarded temporary disa bility benefits, permanent disability benefits, a nd medical benefits. The emplo yer has appealed. We

affirm the decision of the trial court and certify the order as final.

Judge Timothy W. Conner delivere d the opinion of the Appeals Bo ard in which Presiding Judge Marshall L. Davidson, III, a nd Judge David F. Hensley joi ned.

Mary C. DeCamp, Chattanooga, Tennessee, and J. Matt Drake, Knoxville, Tennessee, for the employer-appellant, Inte rnational Paper Company

Jeffrey C. Taylor, Morristown, T ennessee, for the employee-appe llee, Sally A. Lurz2 Factual and Procedural Background

Sally A. Lurz (“Employee”) worked for International Paper Comp any (“Employer”) at its manufacturin g facility in Hamblen County, T ennessee. On July 30, 2015, Employee was working on a machine called a Jumbo Folder G luer, which forms cardboard boxes. As she was attempting to free a unit that had become stuck on the conveyor line, she fell forward into the box, reportedly striki ng her right shoulder on the box and her right knee on the rollers. The incident was unwitn essed. Employee continued working for another th irty minutes until a scheduled break. At that time, she informed a co-worker what had happened. She then reported the incident to a supervisor, Joey Bolinger, and a manager, David Weiss.

After Employee reported the incident, Employer provided a pane l of physicians, from which Employee selected Dr. Shannon Hancock. Dr. Hancock examined Employee, ordered x-rays, and referred her to an orthopedic spe cialist. Thereafter, Employee selected Dr. Brian Hollo way from a panel of orthopedic physicians. Upon review of an MRI, Dr. Holloway d iagnosed a full thickness tear in the right rotator cuff and recommended surgery. In a September 9, 2015 report, Dr. Ho lloway opined that “there is a greater than 50% chan ce this was related to that in jury with that fall. Certainly it fits her diagnosis, fits her findings on the MRI[,] and fits her clinical and diagnostic

exam.”

Thereafter, Employer provided Dr. Holloway with excerpts from security camera footage taken near the time clock on the day prior to, as well as the morning of, the alleged accident. Dr. Holloway no ted that the footage taken on July 29 showed Employee using both arms, swinging her right arm, using her rig ht arm to open the door, and using her right arm at the time clock. However, on the mor ning of July 30, prior to the alleged accident, the video suggested she was protecting he r right arm and not using it as she had the previous day. In a November 4, 2015 letter, Dr. Holloway commented as

follows:

[I]t looks like she may have had an injury to that right arm al though you cannot say [with] any [certainty ] when actually the injury occu rred but she is certainly holding h er right arm in a mo re protected position , using her left arm to perform all tasks[,] and she is not swinging that right arm. . . . [C]ertainly the tape does show that potentially she could have injured it outside work since she does look like she is protecting the arm at the time

that she checks into work that d ay. . . . At this point, certai nly that does raise questions about the causality of her injury.

In his letter, Dr. Holloway reite rated that Employee “does abso lutely have a tear in her rotator cuff” and “[i] t looks like it is pr obably secondary to an injury or a fall.” He then

indicated his intent to address these issues with Employee.3 As a result of Dr. Holloway’s November 4 letter, Employer’s in surer issued a letter to Dr. Holloway’s office on November 20, 2015, declining to authorize any further medical treatment for Employee. Nevertheless, Employee underwe nt surgery to repair her right rotator cuff on December 22, 2015.

In a March 11, 2016 report, Dr. Holloway noted that Employee h ad done “remarkably well” following the s urgery, had no complaints of p ain, and wanted to return to work. Dr. Holloway recommended a strengthening program and released Employee to return to work with restrictions for two weeks. He placed her at maximum medical improvement as of that date.

In response to a letter from Em ployee’s attorney dated August 31, 2016, Dr. Holloway indicated that, in his opinion, Employee’s rotator cuf f tear was “more likely than not” the result of her alleged July 30, 2015 work accident . On July 5, 2017, Dr. Holloway completed a Standard Form Medical Report (Form C-32), on which he identified Employee’s “fall unjamming conveyor belt” as the “sp ecific incident . . . that brought about the injury.” He fu rther indicated that this inci dent caused the need for medical treatment and that her employment activity was “more li kely than not primarily responsible for the injury or pri marily responsible for the nee d for treatment.” He assigned a permanent medical im pairment rating of 7% to the bod y as a whole.

Employer took Dr. Holloway’s deposition to clarify the perceiv ed inconsistencies regarding his various causation st atements. In response to que stioning regarding his causation opinion in light of th e additional videos he reviewed during the deposition, Dr. Holloway responded as follows:

[W]ell, all I have to go by is the history, you know, and then, of course, the tapes throw some doubt in there. But then that’s why this is o ne of the more difficult cases where you have a history, everything fits the history, everything the patient says fits her injury and her care, but t hen you have some doubt because . . . that one tape shows some doubt because she’s using her other arm in that one instance. So that’s why there is doubt. But I guess all I can do as a physician is do the best I can and I think it’s, at least within a reasonable degree of medical certainty, it seemed like it happened with th is fall at work . (Emphasis added.)

On cross-examination, the fo llowing colloquy occurred:

Q. And as we sit here today, at no time has [Employee] or the insurance company fo r [Employer] or [Emp loyer] ever provided you with any history of any other acute injury or cause for thi s right

shoulder other than the work-rela ted injury she reported to you , is that right?4 A. Yeah. I don’t have an y, any other kno wn injury, no.

Q. And when you assess the cause of a patient [sic], you say you r ely upon their history?

A. Uh-huh.

Q. Did [Employee] ever give you any indication that she was anythi ng other than an honest patient?

A. I mean, that’s why I confronted he r with the tape, you know, be cause the tape . . . does raise some questions . . . . So that’s why I confronted her directly and she told me directly that she, that she didn’t have any other injury. But, of course, I’m relying on h er to tell me that, so . . . [.]

Thereafter, Dr. Holloway was asked to confirm information refle cted on the Form C-32 regarding the cause of Em ployee’s shoulder injury:

Q. And looking over on the second pa ge, under the [c]ausation sect ion, you reviewed that section an d completed it, is that right?

A. Yes.

Q. And it asked you in this context, “more likely than not” and “primarily” both carry the meaning of greater than 50 percent, is that right?

A. That’s correct.

Q. And the question was what was the injury and tell us what your

answer is.

A. I thought it was trying to unjam the conveyor belt and it gave way and she fell.

. . . .

Q. Okay. Doctor, even though you have doubt, there’s some doubt t hat you mentioned about this, you don’t, you can’t say . . . with a ny reasonable degree of medical certainty, that [Employee] had a shoulder injury prior t o this fall, can you?5 A. I can’t . . . for sure.

During the compensation hearing, Employee was shown the videos and questioned extensively about them. She denied there was any particular re ason for using her right arm to perform certain tasks on July 29 but using her left arm to perform similar tasks the morning of July 30. She denied she was “guarding” or “protecti ng” her right arm the morning of July 30. She denied any injury to her right shoulde r prior to the alleged work

accident. She testified she worked for over five hours the mor ning of July 30 prior to the accident and had no difficulty pe rforming her work duties. Oth er than inferences drawn from the videos, Employer offere d no evidence to contradict thi s testimony.

Following trial, the court issued a compensation order finding that Employee was credible in her testimony, that she suffered a compensable inju ry, and that she was entitled to both disability and medical benefits. Employer has appealed.

Standard of Review

The standard we apply in reviewing a trial court’s decision pr esumes that the court’s factual findings are correct unless the preponderance o f the evidence is otherwise.

See Tenn. Code Ann. § 50-6-239(c)(7) (2017). When the trial judge has had the opportunity to observe a witness’s demeanor and to hear in-cour t testimony, we give

considerable deference to factual findings made by the trial co urt. 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 upo n documentary evidence.” Goodman v. Schwarz Paper Co. , No. W2016-02594-SC-R3-WC , 2018 Tenn. LEXIS 8, at *6 (Tenn. Workers’ Comp. Panel Ja n. 18, 2018). Similarly, the interpretation and application of statutes and regu lations are questions of law th at are reviewed de novo with no presumption of correctness a fforded the trial court’s conclu sions. 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’ compens ation statutes “fairly, impartially, and in accordance wi th basic principles of statuto ry construction” and in a way that does not favor either the employee or the employer. T enn. Code Ann. § 50-6- 116 (2017).

Analysis

Employer raises four issues on appeal, three of which can be c ombined to challenge the trial court’s dete rmination that Employee satisfi ed her burden of proving by a preponderance of the evidence her alleged work injury was the primary cause of her injury. The other issue concerns whether the trial court erred in not granting Employer’s

“motion for directed verdict” at the close of Employee’s case-i n-chief.6 Motion for Directed Verdict

Employer argues that the trial court erred in denying its “mot ion for directed verdict” following the close of Employee’s case-in-chief. Spec ifically, it asserts the trial court based its decision to deny the motion, in part, “on the g rounds that the scheduling order entered by the Court overru led Rule 50 of the Tennessee R ules of Civil Procedure.”

Following the close of Employee’s case-in-chief, Employer move d the trial court for a “directed verdict under Rule 50.” After hearing Employer ’s initial argument, Employee’s response, and Employer’s rebuttal, the trial court r esponded, “[a]t this time I’m ruling on the motion. . . . [T]he court has to look at the thing as a whole to determine whether causation has been prove n to the satisfaction of the co urt. So at this time I’m denying the motion.”

The trial court then added:

Also, . . . our initial hearing order or scheduling order, . . . it kind of bucks at normal rules like a request for a directed verdict because y ou typically have to wait until the proof has been put on before you ask for something like that, but also our scheduling order, though, says motions end at a certain date, okay? And we’re past that . . . . So I’m taking that into

consideration too.

Employer responded by noting that a motion for directed verdict cannot be made until the close of a case-in-chief pursuant to Rule 50 of the Tennessee R ules of Civil Procedure,

but the trial court reiterated it was denying the motion.

The applicability of Rule 50 and motions for directed verdict in a non-jury setting has been the subject of some confusion. The Tennessee Supreme Court addressed this

issue in Building Materials Corp. v. Britt , 211 S.W.3d 706 (Tenn. 2007), where it explained that, in a non-jury setting, such a motion is not to be treated as a motion for directed verdict pursuant to Rule 50, but is instead to be cons idered a motion for involuntary dismissal under Rule 41.02. 1 In that case, the employer moved for a directed

verdict at the close of the employee’s proof. Id. at 710. The trial cour t treated the motion as one for involuntary dismissal and granted the motion. Id. The Special Workers’ Compensation Appeals Panel reversed the trial court on a substa ntive issue and remanded the case, and the Supreme Court granted review. Id.

1 Tenn. R. Civ. P. 41.02(2) states, “After the plaintiff in an ac tion tried by the court without a jury has completed the presentation of plaintiff’s evidence, the defenda nt, without waiving the right to offer evidence in the event the motion is not granted, may move for d ismissal on the ground that upon the facts and the law the plaintiff has shown no right to relief. . . . T he court as trier of the facts may then determine them and render judgment against the plaintiff or may decline t o render any judgment until the close of all

the evidence.”7 In affirming the decision of the Special Workers’ Compensation Appeals Panel, the Supreme Court discussed the standard to be applied in these circumstances:

When a motion to dismiss is made at the close of a plaintiff’s proof in a non-jury case, the trial court must impartially weigh the evide nce as though it were making findings of fact and conclusions of law after al l the evidence has been presented. If a plaintiff’s case has not been establi shed by a preponderance of the evidence, t hen the case should be dismisse d if the plaintiff has shown no right to relief on the facts found and t he applicable law. The standard of review of a trial court’s decision to gra nt a Rule 41.02 involuntary dismissal is governed by Rule 13(d) of the Tennesse e Rules of Appellate Procedure.

Id. at 711 (citations omitted). 2

In the present case, we agree that Employer’s motion, properly characterized as a motion for involuntary dismissal under Rule 41.02 rather than a motion for directed verdict under Rule 50, does not fall within the scope of a tria l court’s scheduling order. Such a motion, by definition, cannot be filed until the close o f an employee’s case-inchief and, therefore, making such a motion during a trial canno t violate a trial court’s deadlines for the filing of pre-trial motions.

However, upon close review of the transcript of the compensati on hearing, we conclude the trial court properly ruled on the merits of Employ er’s motion for dismissal before commenting on the potential lateness of the motion. Thus, to the extent the trial court erred in considering the lateness of the motion as a basi s for denying it, such error

was harmless.

Medical Causation

It is well-settled that the employee in a workers’ compensation claim has the burden of proof on all essential elements of the claim. Tindall v. Waring Park Ass’n , 725 S.W.2d 935, 937 (Tenn. 1987); Scott v. Integrity Staffing Solutions , No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn. Workers’ Com p. App. Bd. Aug.

2 Rule 13(d) of the Tennessee Rules of Appellate Procedure states , “Unless otherwise required by statute, review of findings of fact by the trial court in civil actions shall be de novo upon the record of the trial court, accompanied by a presumption of the correctness of the f inding, unless the preponderance of the evidence is otherwise.” Although we are not governed by the Ru les of Appellate Procedure, see Yarbrough v. Protective Services Co., Inc ., No. 2015-08-0574, 2016 TN Wrk. Comp. App. Bd. LEXIS 3, at *12 (Tenn. Workers’ Comp. App. Bd. Jan. 25, 2016), this stan dard is consistent with the standard we apply, as mandated by statute. See Tenn. Code Ann. § 50- 6-239(c)(7) (“There shall be a presumptio n that the findings and conclusions of the workers’ compensation judge are correct, unless the preponderance of the evidence is otherwise.”).8 18, 2015). At trial, the employee must prove eligibility for w orkers’ compensation benefits by a preponderance of t he evidence. Tenn. Code Ann. § 50-6-239(c)(6). To satisfy this burden, the worker m ust prove, more likely than no t, that the employment contributed more than 50% in causing the disablement or need fo r medical treatment, considering all causes. Tenn. C ode Ann. § 50-6-102(14)(C)-(D) (2017).

Employer argues that because the authorized physician expresse d some doubt as to the cause of Employee’s injuries, Employee failed to meet her b urden of proof at trial. Employer also characterizes the v ideo footage it offered into e vidence as showing Employee’s “guarded, protective behavior” with respect to her r ight upper extremity prior to the alleged work accident. F inally, Employer claims that, o nce Dr. Holloway had reviewed all of the video evidence during his deposition, he on ly opined that the work

accident could have been the cause of her injury, wh ich is insufficient to meet Employee’s burden of proof on th e issue of medical causation.

Employee disputed Employer’s characterization of the video foo tage and testified that she was not “guarding” her right upper extremity prior to the work accident. She further stated, without contradiction, that she was able to com plete her job tasks without difficulty on the date of the accident for approximately five h ours prior to the fall.

Significantly, even after revie wing the initial video footage and expressing some doubt as to causation, Dr. Holloway completed a Standard Form M edical Report (Form C-32) attributing Employee’s inj ury to the work accident. In h is deposition, Dr. Holloway reiterated these opinions . He acknowledged having som e doubt as to causation, but after reviewing additional video excerpts, he op ined that the cause of the injury was “trying to unjam the conveyor belt.” When asked abo ut Employee’s prior work activities on the day of t he accident, the following collo quy occurred:

Q . [Employer is] taking the position that she hurt herself befor e this injury where she claimed. Do you have any evidence or has the employer provided you with any evidence that she wasn’t able to do the work up to this . . . fall?

A . They didn’t.

Q . Okay. Doctor, that would be very compelling evidence that sh e had a prior injury, wouldn’t it?

A . And I was hoping – when I told them that, I was hoping that t hey

would have some information on that.

Q . Okay.9 A . If she had been at work all day . . . you would have thought somebody would have noticed that she wasn’t using one arm or th e other.

Q . And you haven’t been –

A . And I haven’t been, not that I know of, been provided with an ything that says she was or her supervisor or anyone around her. You

would think that she would have had trouble if she had been the re.

. . . .

Q . Okay. And so the only compete nt producing cause that you’re aware of as we sit here today for this right rotator cuff tear would be the fall at work that she reported?

A . That’s what I’ve been goi ng on from the beginning, yes.

The fallacy in Employer’s argument is that it asks us to rever se the trial court’s

determination based on Employer’s medical interpretation of the video footage. It urges us to conclude, independent of any expert medical testimony, th at Employee’s actions as depicted in the video footage sh ow that her shoulder was alread y injured when she arrived at work on July 30, 2015. Employer offers no evidence of a prior injury. Moreover, it offers no independen t medical proof to contradict Dr. Holloway’s opinions, but relies instead on Dr. Holloway’s admission that he had “som e doubts” as to causation after reviewing the video footage. We have previously noted th at judges are not wellsuited to make independent medica l determinations without exper t medical testimony supporting such a determination. See Scott , 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *8. Likewise, parties and their lawyers cannot rely solely on their own medical interpretations of the evidence to successfully support their a rguments.

Moreover, as reflected in sec tion 50-6-102(14), a medical expe rt’s opinion that the work accident was “more likely th an not” at least 50% of the ca use of the injury is sufficient to satisfy an employee’s burden of proof. The law d oes not require absolute certainty on the part of the medical expert and allows for the existence of some doubt, as

was reflected in this case. Alt hough Employer showed Dr. Hollo way videos that it contends contradict Employee’s ac count of how she was injured, Dr. Holloway continued to reiterate his opinion that, b ased on the information he had been provided and his conversations with Employee about the contents of the videos, t he injury was primarily caused by the employment. Emplo yer presented no countervailing medical proof and, thus, we conclude Employer has not rebutted the presumption of correctness to which Dr. Holloway’s opinions are entitled.10 Finally, the law is clear that “[w]hen the trial court has hea rd in-court testimony,

considerable deference must be a fforded in reviewing the trial court’s findings of credibility and assessment of the w eight to be given to that te stimony.” Tryon v. Saturn Corp. , 254 S.W.3d 321, 327 (Tenn. 2008); see also Love v. Delta Faucet Co. , No. 2015- 07-0195, 2016 TN Wrk. Comp. App. Bd. LEXIS 45, at *17 (Tenn. Wo rkers’ Comp. App. Bd. Sept. 19, 2016). The trial court found Employee to be cred ible, and the evidence does not preponderate otherwise.

In short, although Employer presented evidence to cast some do ubt on Employee’s claim, Dr. Holloway’s testimony u ltimately satisfied Employee’s burden of proof on the causation issue. Thus, we conclu de the preponderance of the ev idence supports the trial

court’s determination on this issue.

Conclusion

We affirm the determination of the trial court in all respects and certify the compensation order as final.TENNESSEE BUREAU OF WOR KERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Sally A. Lurz ) Docket No. 2015-02-0462
)

v. ) State File No. 62185-2015
) International Paper Company, et al. )

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Bo ard’s decision in the referenced case was sent to the following recipients by the following methods of service on this the 14th day of February, 2018.

Na me Certified

Mail First Class

Mail Via

Fax Fax

Number Via

Email Email Address

Jeffrey C. Taylor X jeff@taylorlawfirmtn.com

J. Matt Drake X matt.drake@lei tn erfirm.com

Brian K. Addington, 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

Jeanette Baird Deputy Clerk, Workers’ Compensation Appeals Board 220 French Landing Dr., Ste. 1-B Nashville, TN 37243 Telephone: 615-253-0064

Electronic Mail: WCAppeals.Clerk@tn.gov