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TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Aaron Delaney ) Docket No. 2016-02-0152

)

v. ) State File No. 94775-2015

)

TPI Corporation, et al. )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Brian K. Addington, Judge )

Affirmed and Remanded

In this interlocutory appeal, the employee alleged suffering a shoulder injury as a result 

of his efforts to adjust a machine at work. The incident was reported, and the employer 

initially provided medical care. After the treating physician recommended surgery to 

repair a torn rotator cuff, the employer denied the claim, asserting the injury was 

idiopathic. Following a decision on the record in which the trial court denied the 

employee’s requested medical benefits, the employee filed a second request for benefits 

and for an evidentiary hearing. The employer responded by filing a motion for summary 

judgment, which the trial court denied. Thereafter, the trial court conducted an 

evidentiary hearing to address the employee’s request for medical and temporary 

disability benefits. Concluding the employee’s work activities presented a hazard that led 

to his injury, the trial court determined the employee would likely prevail at trial in 

proving he suffered a work injury causing his need for medical treatment and awarded 

medical and temporary disability benefits. The employer has appealed. Having carefully 

reviewed the record, we affirm the trial court’s decision and remand the case. 

Judge David F. Hensley delivered the opinion of the Appeals Board in which Presiding 

Judge Marshall L. Davidson, III, and Judge Timothy W. Conner joined.

Cole B. Stinson, Lansing, Michigan, and T. Ryan Malone, Brentwood, Tennessee, for the 

employer-appellant, TPI Corporation

G. Todd East, Kingsport, Tennessee, for the employee-appellee, Aaron Delaney

FILED

Aug 05, 2019

09:36 AM(CT)

TENNESSEE

WORKERS' COMPENSATION

APPEALS BOARD
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Factual and Procedural Background

 

Aaron Delaney (“Employee”) is a fifty-one-year-old military veteran who had 

been employed by TPI Corporation (“Employer”) for approximately eight years when he 

suffered a shoulder injury at work. On November 24, 2015, he was adjusting a machine 

to run a different product, which required him to maneuver under a bar in a confined 

space and reach out to manually adjust a stop at the back of the machine. In the process, 

he experienced sharp pain in his shoulder as well as numbness in his arm, which he 

reported immediately before going to Employer’s first aid facility and speaking with a 

nurse. Following his discussion with the nurse, Employee returned to work but said he 

was “hindered” and “not the same man at that point.”

The following day, Employee told his supervisor he thought that something was 

wrong with his shoulder and that he was going to a doctor. The supervisor asked him to 

wait until the nurse arrived so she could take him to a doctor, and, in the meantime, had 

him complete an “Employee’s Report of Injury Form.” Employee wrote on the form that 

he was “reaching out to touch the mac line with right arm” and indicated he heard his arm 

pop and felt immediate pain in his shoulder. The nurse took Employee to Medworks 

Occupational Medicine where he was seen by Dr. E.C. Goulding, III. The initial medical 

report included a “Patient Description of Accident,” which stated Employee “jerked 

[right] arm away from machine.” The report also indicated Employee stated “he was just 

reaching for the machine and heard a ‘pop.’” X-rays did not reveal an abnormality, and 

Employee was diagnosed as having strained the “muscle(s) and tendon(s) of the rotator 

cuff” and the “muscle, fascia and tendon at neck level.” He was fitted with a shoulder 

sling and restricted from lifting with his right arm. The report stated “[t]he cause of this 

problem is related to work activities.”

The following week, Employee signed an “Accident Investigation” report 

describing the incident as follows:

Employee was making an adjustment on [a] machine. He attempted to 

reach approximately 30 inches with his right arm. When attempting to 

reach, he heard a pop in his right shoulder, felt immediate pain and his 

whole arm went numb.

The next record of Employee’s treatment with Dr. Goulding is dated January 5, 

2016, at which time Employee reported ongoing intermittent shoulder pain that he said 

was “made worse by certain movements.” The report noted that Dr. Goulding discussed 

the results of an MRI that had been performed and recommended an orthopedic 

evaluation. Employee was seen by Dr. Joseph Grant at Watauga Orthopedics on January 

19, 2016. The record of that visit noted Employee reported that “while at work and 

reaching for equipment he heard a pop and felt extreme pain.” Dr. Grant discussed the 
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results of Employee’s earlier MRI, which revealed a full thickness rotator cuff tear in 

Employee’s right shoulder, and recommended surgery.

On March 22, 2016, Employee filed a petition for medical benefits, stating he had 

“torn ligaments [and] rotator cuff” but had “no surgical attention.” On April 5, 2016, 

Employer filed a Notice of Denial of Employee’s claim, asserting Employee’s injury was 

idiopathic. Thereafter, Employee sought treatment for his shoulder through the 

Department of Veterans Affairs. Eventually, on April 24, 2017, he underwent 

arthroscopic surgery performed by Dr. Bert Tagert at the Veterans Administration 

Medical Center, which included a right biceps tenodesis, supraspinatus repair, and 

subacromial decompression.

In March 2016, Employee filed a request for an expedited hearing asking for a 

decision on the record in lieu of the court convening an evidentiary hearing. Thereafter, 

the parties were advised by the court what records it would review and consider, which 

included the parties’ “Joint Statement of Agreed Facts.” In September 2017, the court 

issued its decision denying Employee’s request for benefits based upon its determination 

that Employee “is not likely to prevail at a hearing on the merits in proving his injury 

arose primarily from his employment.” Specifically, the court determined that, while

Employee’s injury occurred in the course and scope of his employment, it did not arise 

out of the employment. Noting Employee “suffered a full thickness rotator cuff tear by 

merely lifting his arm towards his machine,” the court stated that it was “not convinced 

that simply lifting one’s arm at work constitutes a hazard of employment” and that 

Employee had failed to provide the necessary expert medical proof to support his claim.

Employee subsequently filed a second request for an expedited hearing, this time 

asking for an evidentiary hearing. The request asserted that additional medical evidence 

had been obtained indicating Employee’s injury resulted from the work incident. The 

request was supported by Employee’s affidavit in which he stated that, as he reached for 

the back stop on the machine he was adjusting, he “heard a pop [and] immediately saw an 

air hose that had separated from the coupler and was ‘flapping’ around.” The affidavit 

stated that when Employee saw the air hose “flapping” around, he “moved [his] right arm 

from an outstretched position to in front of [his] face to protect [his] face from the 

flapping hose when [he] felt a ‘stabbing’ pain in [his] right shoulder as [he] moved [his] 

arm to protect [his] face.”

In response to Employee’s request for an evidentiary hearing, Employer filed a 

motion for summary judgment. Employer asserted the only evidence not previously 

presented to the court was Employee’s own affidavit, which Employer contended 

included a version of the mechanism of Employee’s alleged injury that “contradicts the 

version he provided the Court during the first expedited hearing.” Employer contended 

Employee’s evidence was insufficient to establish that his injury arose primarily out of 

his employment, which is an essential element of Employee’s claim. Responding to 
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Employer’s motion, Employee submitted Dr. Tagert’s responses to a questionnaire in 

which he was asked whether Employee’s injury was “the result of a work injury or the 

result of an idiopathic injury which could have occurred anywhere.” Dr. Tagert 

responded that the injury was “most likely” a work injury, adding, “[f]rom the patient’s 

history, it is most likely from the injury mechanism that he describes.” Concluding there 

was a disputed factual issue concerning whether Employee’s injury arose primarily out of 

the employment, the trial court denied Employer’s summary judgment motion and 

scheduled an evidentiary hearing.

Employer subsequently took Dr. Tagert’s deposition, which was admitted in 

evidence at the evidentiary hearing. Employee provided the only in-person testimony at 

the hearing. The trial court concluded that Employee was entitled to ongoing medical 

benefits, that Employer was to schedule a functional capacity evaluation as recommended 

by Dr. Tagert to assist in determining Employee’s impairment, that Dr. Grant was to be 

the authorized physician because Dr. Tagert was an employee of the Veterans 

Administration, and that Employee was entitled to an award of past temporary total 

disability benefits. Specifically, the court concluded that both Dr. Grant and Dr. Tagert 

determined Employee suffered an injury at work that caused the need for medical 

treatment; that Employee’s work “caused a hazard that led to his injury”; and that 

Employee was “likely to succeed in proving he suffered a work injury that caused 

disablement and the need for medical 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) (2018). 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 (2018).
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Analysis

Employer identifies several issues on appeal, which we have consolidated and 

restated as follows: (1) whether the trial judge erred in finding Employee’s testimony to 

be credible; (2) whether the trial judge erred in concluding Employee’s injury was not an 

idiopathic injury; (3) whether the trial judge erred in awarding temporary disability 

benefits; and (4) whether the trial judge erred in ordering Employer to provide the 

functional capacity evaluation recommended by Dr. Tagert.

The Trial Judge’s Credibility Determination

Employer contends the trial court erred in finding the version of the incident to 

which Employee testified at the evidentiary hearing to be credible. It asserts that “[f]or 

roughly two years, [Employee] consistently told one version of events regarding how his 

injury occurred – that he was reaching out with his arm to touch his machine when he 

heard a pop in his shoulder and felt pain.” Employer emphasizes that Employee reported 

“this story” to Employer on the day following the injury, repeated it to Employer one 

week later, told three different medical providers the same story, and consented to a joint 

stipulation of agreed facts in the initial expedited hearing that described the event as 

“reaching out to touch the ‘mac-line’ machine with his right arm when he felt and heard a 

pop in his right shoulder.” Then, according to Employer, after being denied benefits

following the court’s decision on the record, Employee began telling a different story, 

contending the injury occurred “when he moved his arm defensively to protect his face 

from a hose that had become disconnected and was moving like a whip.”

Following the evidentiary hearing, the trial court found that Employee “provided 

credible testimony explaining the tight quarters in which he worked, the length he 

reached to adjust the machine, and jerking his arm to shield his face.” Noting that 

Employee did not mention the jerking motion in his injury report to Employer, the court 

stated Employee “provided a reasonable excuse, in that [Employer] only asked him 

which job duty he was performing at the time of injury.” Further, the court added that 

Employee “told the providers at MedWorks and Dr. Tagert that he jerked his arm.”

Indeed, the report of Employee’s examination by Dr. Goulding the day after the 

work incident included a “Patient Description of Accident” that stated Employee “jerked 

[right] arm away from machine,” which is consistent with the testimony given by

Employee at the evidentiary hearing. The report does, however, indicate Employee 

“[s]tates he was just reaching for the machine and heard a ‘pop.’” Moreover, the report 

of Employee’s June 16, 2016 examination at the Veterans Administration medical 

facility, which occurred more than a year before the initial expedited hearing, states 

Employee “jerked his arm from his machine in Nov[ember] and had a sharp pain.” Dr. 

Tagert was asked to read the description of the work incident that was in the transcript of 

Employee’s deposition in which Employee stated he “moved [his] right arm from the 
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outstretched position to in front of [his] face to protect [his] face from the flapping hose 

when [he] felt a stabbing pain in [his] right shoulder as [he] moved [his] arm to protect 

[his] face.” Dr. Tagert said he did not record the details of the description that Employee 

provided to him, but that the description in Employee’s deposition was consistent with 

what Employee had told him. He further testified:

[T]he cuff tear was something we found at surgery that was . . . a little bit 

of a surprise, because we were expecting this to be more biceps 

and . . . [w]hether [the rotator cuff tear] was involved as part of his injury or 

not would be a little bit debatable, but the mechanism of a sudden jerking 

motion of the arm is consistent with an injury to the labrum or cartilage.

As previously noted, 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). In addition, “[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). 

Having reviewed the evidence in light of the deference to be accorded the trial court’s 

credibility determinations accompanied by the medical proof, we discern no error in the 

court’s conclusion that Employee provided credible testimony explaining the work 

incident.

Idiopathic Injury

Employer asserts Employee is not entitled to workers’ compensation benefits 

because his injury was idiopathic in nature. “An idiopathic injury is one that has an 

unexplained origin or cause, and generally does not arise out of the employment unless 

‘some condition of the employment presents a peculiar or additional hazard.’” Veler v. 

Wackenhut Servs., No. E2010-00965-WC-R3-WC, 2011 Tenn. LEXIS 78, at *9 (Tenn. 

Workers’ Comp. Panel Jan. 28, 2011) (quoting Shearon v. Seaman, 198 S.W.3d 209, 215 

(Tenn. Ct. App. 2005)).

Employer’s assertion that Employee’s shoulder injury is idiopathic and, therefore, 

not compensable, is premised on what Employer identifies as Employee’s “original” 

description of the incident resulting in his injury. Employer refers to the parties’ Joint 

Statement of Agreed Facts that was submitted to the trial court for purposes of its 

decision on the record, which stated Employee “was reaching out to touch the ‘mac-line’ 

machine with his right arm when he felt and heard a ‘pop’ in his right shoulder.” As 

noted above, Employer emphasizes that Employee described the incident to Employer in 

this manner on the day following the injury, repeated a similar description to Employer 

one week later, and told his medical providers essentially this same version of the 

incident. Citing the trial court’s statement in its initial order that “the Court is not 
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convinced that simply lifting one’s arm at work constitutes a hazard of employment,” 

Employer contends that Employee’s injury is idiopathic. However, as also noted above, 

the trial court found Employee’s subsequent testimony at the evidentiary hearing 

“explaining the tight quarters in which he worked, the length he reached to adjust the 

machine, and jerking his arm to shield his face” to be credible testimony. Based upon 

that testimony, the trial court determined Employee’s work activities presented a hazard 

that led to his injury. As a result of our resolution of Employer’s first issue questioning 

the trial court’s credibility determination, we find no merit in Employer’s argument that 

the trial court erred in concluding the injury was not idiopathic.

Award of Temporary Disability Benefits

Employer next contends the trial court erred in awarding Employee temporary 

disability benefits. It argues Employee failed to establish the duration of his disability, 

one of the requirements for establishing entitlement to temporary disability benefits.1

 

Specifically, Employer asserts that Employee’s testimony was “internally inconsistent 

regarding the months he missed work” in that both he and his attorney “were confused 

regarding the year in which [Employee] missed work.” In essence, Employee testified he 

missed work from April 24, 2016 until September 11, 2016, although his surgery was not 

until April 24, 2017. In addition, Employer points to Employee’s testimony that he did 

not miss work as a result of his injury until August 24, 2016 as evidencing the 

inconsistency in Employee’s testimony.

The trial court awarded temporary total disability benefits from the date of 

Employee’s surgery, April 24, 2017, until September 11, 2017, stating that “Dr. Tagert 

took [Employee] off work from April 24 until September 11, 2017, because of his workrelated surgery.” The court expressly found that Employee was “totally disabled from 

work between those dates” and that Employee was “entitled to temporary total disability 

benefits” for that time period. Consistent with the medical records admitted in evidence, 

Dr. Tagert testified he performed shoulder surgery on April 24, 2017, and that he saw 

Employee on August 1, 2017, at which time he “gave [Employee] a release at that 

appointment estimating that on 9/11/2017 . . . he would be released without restrictions.” 

It is clear from the record that Employee was claiming entitlement to temporary disability 

benefits for the time period beginning with the date of his surgery and ending on the date 

Dr. Tagert released him to return to work. When asked “from the time [Dr. Tagert] 

performed surgery on you until you were released to return to work, did you work at all,” 

he responded “no.” Employee’s testimony that he did not miss any work before August

24, 2016 was unrefuted, except for his own testimony when he spoke to the wrong year. 

Considering the entire record, we have no difficulty concluding the trial court did not err 

 1 To demonstrate entitlement to temporary total disability benefits, an injured worker “must prove (1)

total disability to work by compensable injury; (2) a causal connection between the injury and the

inability to work; and (3) duration of the disability.” Foreman v. Automatic Sys., 272 S.W.3d 560 (Tenn. 

2008) (citing Simpson v. Satterfield, 564 S.W.2d 953, 955 (Tenn. 1978)).
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in determining Employee would likely prevail at trial in establishing entitlement to 

temporary total disability benefits for the time period between his surgery and the date 

Dr. Tagert released him to return to work.

Functional Capacity Evaluation

Employer’s final argument asserts the trial court erred in ordering Employer to pay 

for a functional capacity evaluation (“FCE”) recommended by Dr. Tagert. Noting the 

trial court’s reference to Dr. Tagert as “an unauthorized physician” and its determination 

that “Dr. Grant shall be the authorized physician for future treatment,” Employer asserts

“it is an abuse of discretion to also order [Employer] to pay for the FCE.”

As noted by the trial court, even though the authorized physician, Dr. Grant, 

indicated Employee needed shoulder surgery, Employer denied the claim, “which forced 

[Employee] to seek treatment on his own.” He chose to treat with Dr. Tagert, a boardcertified orthopedic surgeon who worked at the Mountain Home Veterans Administration 

Medical Center in Johnson City, Tennessee. Dr. Tagert testified he began treating 

Employee on June 27, 2016, and that he performed shoulder surgery on April 24, 2017. 

Stating that an employer “risks being required to pay for unauthorized treatment if it does 

not provide treatment made reasonably necessary by the work injury,” the trial court 

concluded “Dr. Tagert’s treatment [was] necessary and reasonable, as both doctors [Drs.

Grant and Tagert] recommended the surgery.” However, because Dr. Tagert is employed 

by the Veterans Administration, the court determined that Dr. Grant would be the

authorized physician for future treatment.2

Dr. Tagert testified he last saw Employee on December 8, 2017, and that 

Employee was not at maximum medical improvement at that time. He testified he 

“probably would have requested [an FCE] and . . . considered . . . a permanent rating 

shortly after that,” adding that “the FCE gives you more reliable information . . . and so 

most of the time in this situation I will request one.” In addition, when asked whether 

Employee would have restrictions, Dr. Tagert indicated he did not think so, stating “but 

again not having the support of an FCE and not seeing him after the estimated [maximum 

medical improvement] time, it would be hard for me to say.”

An abuse of discretion occurs when the trial court causes an injustice by applying 

an incorrect legal standard, reaches an illogical result, resolves the case on a clearly 

erroneous assessment of the evidence, or relies on reasoning that causes an injustice. 

Gonsewski v. Gonsewski, 350 S.W.3d 99, 105 (Tenn. 2011). It reflects awareness that the 

discretionary decision involved a choice among acceptable alternatives and does not 

 2 Employee has not raised an issue concerning the appointment of Dr. Grant rather than Dr. Tagert as the 

authorized treating physician for future treatment. Thus, we do not address the issue except as necessary 

to address Employer’s assertion that the trial court abused its discretion in ordering it to provide the FCE 

recommended by Dr. Tagert.
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permit reviewing courts to substitute their discretion. Lee Med., Inc. v. Beecher, 312 

S.W.3d 515, 524 (Tenn. 2010). Pursuant to this standard, “the appellate court should 

presume the decision is correct and should review the evidence in the light most 

favorable to the decision.” Gonsewski, 350 S.W.3d at 105-06.

Here, Employer fails to identify where the trial court allegedly strayed beyond the 

appropriate legal standard or how it failed to properly consider the factors customarily 

used to guide its discretionary decisions. See Lee Med., Inc., 312 S.W.3d at 524. 

Employer asserts it is “aware of no legal authority authorizing the trial court to 

simultaneously order that (1) Dr. Tagert will not be the one treating [Employee] going 

forward and yet (2) the evaluation Dr. Tagert requested to assist in his assessment of 

[Employee] must be performed.” It argues there is no reasonable basis for such order 

because “[t]he need for Dr. Tagert’s FCE was rendered moot when the court named Dr. 

Grant the authorized physician.” Although not phrasing its argument as such, we 

understand Employer is asserting the trial court reached an illogical result or relied on 

reasoning that causes an injustice. We disagree.

Upon Employer’s denial of the claim, Dr. Tagert became Employee’s treating 

physician. Dr. Tagert recommended the FCE to assist him in addressing Employee’s 

impairment and restrictions, as opposed to determining the course of future treatment. 

The workers’ compensation law contemplates that impairment ratings will be assigned by 

treating physicians. See Tenn. Code Ann. § 50-6-204(k). Simply because the trial court 

determined that Dr. Grant would be the authorized physician for future treatment, it does 

not follow that Dr. Tagert was not the treating physician for the period he actually treated 

Employee following Employer’s denial of the claim. His recommendation for an FCE 

was not expressed to be necessary for future treatment; rather, the purpose was to assist 

him in evaluation of Employee’s impairment and restrictions resulting from the injury for 

which he performed surgery. Reviewing the trial court’s decision in the light most 

favorable to the decision, we conclude the trial court did not abuse its discretion in 

ordering Employer to pay for the recommended FCE.

Conclusion

For the foregoing reasons, we affirm the trial court’s May 14, 2019 expedited 

hearing order and remand the case. Costs of this appeal are taxed to Employer.
 

 TENNESSEE BUREAU OF WORKERS’ COMPENSATION

 WORKERS’ COMPENSATION APPEALS BOARD

Aaron Delaney ) Docket No. 2016-02-0152

)

v. ) State File No. 94775-2015

)

TPI Corporation, et al. )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Brian K. Addington, 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 5th day of August, 2019.

Name Certified 

Mail

First 

Class 

Mail

Via 

Fax

Fax 

Number

Via 

Email

Sent to: 

George T. East X todd@toddeast.com

jennifer@toddeast.com

T. Ryan Malone X ryan@petersonwhite.com

Cole Stinson X cole.stinson@accidentfund.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

 

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