# TENNESSEE BUREAU OF WORKERS’ COMPENSATION WORKERS’ COMPENSATION APPEALS BOARD



# Shelton Marzette ) Docket No. 

# 2014-08-0058 )



# v. ) ) State File No. 

# 61901-2014 Pat Salmon and Sons, Inc. )



# CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of th e Appeals Board’s decision in the referenced case was sent to the following recipient s by the following methods of service on this the 18th day of September, 2015.

Name Certified Mail First Class

Mail Via

Fax Fax Number Via

Email Email Address

Shelton Marzette X 

# ssmarzette63@gmail.com Frank B. Thacher, III X 

# fthacher@bpjlaw.com Jim Umsted, 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: Jeanette.Baird@tn.govTENNESSEEBUREAUOFWORKERS'COMPENSATIONWORKERS'COMPENSATIONAPPEALSBOARDSheltonMarzettev.PatSalmonandSons,Inc.AppealfromtheCourtofWorkers'CompensationClaimsJimUmsted,Judge)DocketNo.2014-08-0058)))StateFileNo.61901-2014))))))AffirmedandRemanded-FiledSeptember18,2015FILEDSeptember18,2015TENNESSEEWORKERS'COMPENSATIONAPPEALSBOARDTime:8:00AMInthisinterlocutoryappealtheemployeeallegeshesustainedwork-relatedhearinglossandvertigowhenhisleftearpoppedandheexperienceddizziness,alossofbalance,andnauseawhiledrivingatruckatahighaltitude.,Theemployeesoughtmedicalcareonhisownbeforetheemployerprovidedapanelofmedicalprovidersthatincludedachiropractor,twoorthopedicsandamedicalcenter.Theemployeewasexaminedbyadoctorwiththemedicalcenterthattheemployeeselectedfromthepanelwhoopinedthattheemployee'sconditionwasnotcausedbyhiswork.Theemployerthereafterdeniedtheclaim.Followinganexpeditedhearing,thetrialcourtdeterminedthattoresolvethecompensabilityissuetheemployeeisentitledtoadditionalmedicalbenefitslimitedtotheemployer'sprovidingapanelofphysicianswhospecializeinhearinglossinjuriesfromwhichtheemployeecanselectaphysiciantoprovideacausationopinion.Thetrialcourtdeterminedthatthepanelofferedbytheemployerdidnotmeetthestatutoryrequirementsandthatthecausationopinionofthephysicianfromthemedicalcenterwasnotentitledtothestatutorypresumptionofcorrectness.Theemployerhasappealed.Havingcarefullyreviewedtherecord,weaffirmthetrialcourt'sdecisiontoawardtheadditionalmedicalbenefitsandremandthecaseforsuchadditionalproceedingsasmaybenecessary.JudgeDavidF.HensleydeliveredtheopinionoftheAppealsBoard,inwhichJudgeMarshallL.Davidson,III,andJudgeTimothyW.Connerjoined.1Frank

B. Thacher,

III, Memphis, Tennessee,

for the employer-appellant,

Pat Salmon
and Sons, Inc. Shelton Marzette, Memphis, Tennessee, employee-appellee,

prose Factual
and Procedural Background Shelton Marzette ("Employee")

is

a fifty-one-year-old
resident

of Memphis, Tennessee employed

as

a truck driver

by Pat Solomon

& Sons, Inc. ("Employer").

He was performing

his usual duties

on July 31, 2014, and while driving
into Denver, Colorado
with

a co-driver

his left ear popped
and he experienced immediate
pain, hearing loss, and vertigo.

He called
his supervisor

and reported

the incident. After describing

the event

to his supervisor, Employee's co-worker drove him back

to Memphis.
Upon reaching Employer's premises, Employee

told his supervisor

that he still could not hear anything.

He got
in his car and drove himself

to the emergency
room

at the Veterans' Administration Medical Center ("VA Medical Center")

in Memphis. Records

of Employee's

visits

to the VA Medical Center were admitted

into evidence. These records indicate

the following:

(1) Employee

was seen
on August

1, 2014 for vertigo

at which time head and chest x-rays and aCT
of Employee's

head were obtained

and interpreted

as normal;

(2) Employee

was seen on August

3, 2014 for vertigo and kept off work for two days; and (3) on August

26, 2014

an MRI
of Employee's

head and brain was obtained

due

to "sudden sensorineural hearing

loss (Left)
and dizziness/imbalance."

The MRI report indicated

"no acute infarction, hemorrhage,
mass, abnormal enhancement

or abnormal susceptibility

in the brain." On August

8, 2014, Employer provided Employee

a panel

of four medical providers

that included Concentra Medical Center ("Concentra"),

two orthopedics

(Drs. Mark Harriman

and James Varner),

and

a chiropractor.

The document indicates

that Employee selected Concentra
from the panel

on August

8, 2014, and records from Concentra indicate
that Employee

was seen on that date by Dr. James

D. Rucker. The Concentra records

are limited

to four pages that include

a two-page report

of Employee's August

8, 2014 visit with Dr. Rucker,

a note dictated

by Dr. Rucker

the same date stating
the diagnosis

to be "Conductive Hearing Loss, Inner Ear," and

a separate "Physician
Work Activity Status Report" ("Status Report") describing Employee's "Patient Status"

as "Modified Activity- Transferred Care." The Status Report restricted Employee's activity until the next medical appointment stating, "[u]nable

to drive

or operate machinery,"

"no climbing,"

and "may not function

in

a safety sensitive position." A section

for remarks

in the Status Report states: "No DOT driving.

No work

on machines. Follow

up with ENT [at] VA [Medical Center]." Dr. Rucker's report states that Employee's
chief complaint concerns

his head 2"which
was injured

on 7/3112014."

It also includes Employee

' s statement

that

"I was driving

in to Denver
and became dizzy and now suffer hearing loss." The "History

of Present Illness" includes more details concerning

the alleged July 31, 2014 incident

and Employee's subsequent medical
care

at the VA Medical Center.
The report details
Dr. Rucker's examination

and states that Employee "should continue receiving testing
and treatment

by ENT whose care
he
is already under

. " Of particular significance

in the report
are Dr. Rucker's medical opinions regarding causation: It is my opinion
that this

is not

a work caused condition.

This problem could begin

at any elevation

and could begin

at work

or off duty.

It is [] my opinion
that this reported condition

is unlikely work-related.

The above medical statements
have been made within

a reasonable degree

of medical probability. On August

25, 2014, Employer submitted

a Notice

of Denial

of Claim

for Compensation,
stating

as the basis
for its denial that Employee's "[i]njury

did not arise out of his employment."

A letter from Dr. Julia Archer

at the VA Medical Center dated June 21, 2014, was admitted

into evidence, which states "[Employee] requested

I write

a letter telling you that

a change

in barometric pressure

can cause vertigo. That

is true." Employee
filed two Petitions

for Benefit Determinations,

both
of which requested that temporary disability

and medical benefits

be awarded. Following

an unsuccessful mediation,

a Dispute Certification Notice ("DCN")
was filed
on July 21, 2015, indicating the "Disputed Issues"

to include medical benefits, temporary disability benefits

and compensability.

A "Dispute Certification Checklist" included

as page two of the threepage DCN identifies
four of the 35 listed issues

as being disputed: Whether Employee sustained

an injury that arose primarily

out of and
in the course and scope

of employment

with Employer. Whether Employer

is obligated

to pay for any past medical expenses and/or mileage expense. Whether Employee

is entitled

to additional medical
care

as recommended by

a physician. Whether Employee

is entitled

to any past

or future temporary

total disability benefits,

and if so, in what amount. On the same date the DCN was filed, Employee

filed

a Request

for Expedited Hearing supported

by his affidavit.

The request indicates

that Employee wanted

an evidentiary hearing

and asserts that "[a]ccording

to worker[s'] compensation

law my rights

to medical care

as an employee

was [sic] violated, [plus] my rights

to the panel

of 3physicians.Theemployeemayselectthetreatingphysician."Employee'ssupportingaffidavit,whichwasadmittedintoevidencebyagreement,states,amongotherassertions,that"mycompanyneversentmeto[an]ENT."EmployeewastheonlypersontotestifYattheexpeditedhearing.ThetranscriptofthehearingincludesstatementsbyEmployeethatthetrialcourtstatedwouldbeconsidered"as[Employee's]openingstatement."ThosestatementsquestionedthepanelofphysiciansthatEmployerprovidedandassertedthatEmployeewasgiven"twoorthopedicdoctorstochoosefromandachiropractor."Inhistestimony,Employeereiteratedthatthepanelincludedtwoorthopedicphysiciansand"onechiropractor."Employeetestifiedthatthepanelalsoincludedamedicalcenterbutnotthenameofanydoctorwiththemedicalcenter.Hetestifiedwithoutobjectionthat"IknewIcouldn'tchooseanorthopedicsurgeon,"and"IknewIcouldn'tchooseachiropractorbecauseIhad-myinjurywashearinglossandmyear.. . ."EmployeealsotestifiedwithoutobjectionthatwhenhewenttoConcentra"I'mthinkingI'mseeinganENTdoctor.ButthepersonIseen[sic]...wasDr.Rucker.Andhe'snotanENTspecialist.Hedoesn'thaveanywaytodiagnosehearinglossoranyvertigo."ThetrialcourtconcludedthatEmployee"isentitledtoadditionalmedicalbenefits,"andfoundthatthepanelofphysiciansofferedbyEmployer''wasdefective"andeffectivelyprovidedonlyonephysicianforEmployeetoselect,Dr.RuckeratConcentra.NotingthatDr.RuckeropinedthatEmployee"shouldfollow-upwithtestingandtreatmentwithENTspecialist,"thetrialcourtwaspersuadedthat,"inordertoresolvetheissueofcompensability,itisnecessaryfor[Employer]toprovideapanelofphysicianswhospecializeintreatinghearinginjuries."ConsistentwithDr.Rucker'srecommendation,thetrialcourt,onAugust19,2015,entereditsordergrantingmedicalbenefitsandrequiringEmployertoprovideEmployeeapanelofphysicianswhospecializeintreatinghearinginjuriesfromwhichtheselectedphysician"shallprovideanopiniononcausationand,ifnecessary,anopinionontheperiodofdisabilityfromk."wormg....Employertimelyfiledanoticeofappealandassertstwoissuesstatedasfollows:(1)whetherthecourterredbyorderinganewpanelofphysicianswhenthatissuewasnotlistedintheDCN,and(2)whetherthecourterredbyfindingthepanelofphysiciansprovidedtoEmployeewasimproper.TherecordwassubmittedtotheClerkoftheAppealsBoardonAugust9,2015.StandardofReviewThestandardofreviewtobeappliedbytheAppealsBoardinreviewingatrialcourt'sdecisionisstatutorilymandatedandlimitedinscope.Specifically,"[t]hereshallbeapresumptionthatthefindingsandconclusionsoftheworkers'compensationjudgearecorrect,unlessthepreponderanceoftheevidenceisotherwise."Tenn.CodeAnn.§450-6-239(c)(7)
(2014).
The limited circumstances warranting reversal

or modification

of a trial court's decision

are specified

in the statute: The workers' compensation appeals board may reverse

or modifY and remand

the decision

of the workers' compensation
judge

if the rights

of any 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;

or (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 standard 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. Analysis We are compelled, initially,

to address what may
be considered

an inconsistency in the trial court's Expedited Hearing Order Granting Medical Benefits.

The trial court recognized

in its order that "to date, there

is no medical opinion establishing

that [Employee's]
injury arose primarily

out of his employment,"

and that "(i]n the absence

of medical proof that the injury arose primarily

out of the employment, [Employee] cannot establish

... entitlement

to additional medical benefits under
the statute." However,

the trial court "concludes

that [Employee]

is entitled

to additional medical benefits,"

and the trial court limited

the award

of additional medical benefits

to requiring Employer

to provide

a panel

of physicians

who specialize

in treating hearing injuries from which Employee

can select

a physician

to provide

a causation opinion. Employer contests

the trial court's order, asserting

the trial court erred

in ordering

a new panel

of physicians "when that issue was not listed

in the [DCN]." Tennessee
Code Annotated section 50-6-239(b)(l)
(2015) states that "only issues that have been certified

by

a workers' compensation mediator within

a dispute certification
notice may

be presented

to the workers' compensation

judge

for adjudication,"

unless permission

has been granted

by the assigned workers' compensation
judge
for parties

to present additional issues. Tennessee
Code Annotated section 50-6-239(b

)(2) addresses what

is necessary

for

a workers' compensation
judge

to grant permission

for parties

to present issues that have not been certified

in the DCN.

To determine
what issues were certified

by the mediator

in the DCN

as contemplated

in 5section 50-6-239(b)(1),

it is necessary

to consider

the document

as

a whole without reading

the Dispute Certification Checklist

on page two

in

a vacuum. Here, "Medical Benefits"

is checked

as one of the "Disputed Issues"

on page one of the DCN. Moreover, in the Dispute Certification Checklist

on page two,

"[ w ]hether Employee

is entitled

to additional medical
care

as recommended

by

a physician"

is also checked. Employer contends

that because other items

in the checklist, specifically

"[ w ]hether

the panel

of physicians provided

by Employer

was

in compliance

with the law," and "[w]hether Employee

is entitled

to another panel

of physicians

in compliance

with the law," were not checked,

the trial court was not authorized

to consider

the panel

of physicians

that Employer provided

or to order that another panel

be provided.

Our review

of the DCN

as a whole, when considered

in the context

of the entire record, convinces

us that the provision

of medical care for Employee's alleged hearing
loss injury was certified

by the mediator

as contemplated

in Tennessee Code Annotated section 50-6-239(b)(l). Tennessee
Code Annotated section 50-6-204(a) (2014) addresses

the medical benefits
that an employer

is required

to provide

to an injured employee.

It requires

an injured employee

to accept those medical benefits

in any case when the employee

has suffered

an injury and expressed

a need for medical care, "provided

that ... the employer shall designate

a group

of three
(3) or more independent reputable physicians,

surgeons chiropractors

or specialty practice groups

if available

in the injured employee's community

... from which
the injured employee
shall select one (1) to be the treating physician."
Tenn. Code Ann.

§ 50-6-204(a)(3)(A)(i)

(2014) (emphasis added).

In the case before

us, and
as noted above,
the DCN clearly identifies "Medical Benefits"

as one of the "Disputed Issues"

on page one along with "Temporary Disability Benefits"

and "Compensability." Additionally,

the checklist comprising
page two of the DCN includes a check

by the issue

"[ w ]hether Employee

is entitled

to additional medical
care

as recommended

by

a physician." Furthermore,

the transcript

of the trial court proceedings discloses

that the parties represented

to the trial court that the court's recitation

of the issues, including whether Employee

"is entitled

to additional medical
care

as recommended

by

a physician," correctly stated
the disputed issues.
The trial court was persuaded

by the opinion

of the Concentra doctor,

Dr. Rucker,
that Employee should follow-up
with testing
and treatment ''with ENT specialists."

This, the court stated, "persuades

the Court that,

in order

to resolve

the issue
of compensability,

it is necessary for [Employer]

to provide

a panel

of physicians

who specialize

in treating hearing injuries." Tennessee
Code Annotated section 50-6-239(d)(1)
(2014) authorizes

a trial judge, at the judge's discretion,

to "hear disputes over issues provided

in the dispute certification notice concerning

the provision

of temporary disability

or medical benefits

on an expedited basis ....

" Here, not only was "Medical Benefits" checked

on the initial page of the DCN and additionally identified

in the checklist

as an issue, but the parties presented proof

on the issue

at the expedited hearing.
The trial court noted Employee's initial remarks

at the hearing concerning

the lack of Employer-provided

medical care and 6thephysiciansincludedintheEmployer-providedpanel,statingthatthecourtwouldconsidertheremarksasEmployee's"openingstatement."Employeetestified,withoutobjection,aboutEmployer'sfailuretoprovideappropriatemedicalcareandaboutEmployerprovidingtwoorthopedicsandachiropractoronthepanelofphysicians.Moreover,althoughcross-examinationontheissuewasverylimited,EmployercrossexaminedEmployeeaboutthepanelofphysicians.OurindependentreviewoftherecordleavesnoseriousquestionconcerningwhethertheissuesofEmployee'sentitlementtoadditionalmedicalbenefitsandtoadditionalmedicalcarerecommendedbyaphysicianwereidentifiedintheDCN.Notonlyweretheseissuesidentifiedinthenotice,butbothissueswereacknowledgedbythetrialcourtandtheparties.WeareconvincedbasedontherecordasawholethatEmployerwasfairlyputonnoticethatEmployeedisputedwhetherhereceivedpropermedicalbenefitsforhisallegedhearinglossinjuryasmandatedbytheTennesseeWorkers'CompensationAct.Accordingly,theissueofEmployee'sentitlementtoadditionalmedicalbenefitswasproperlyconsideredbythetrialcourt.EmployerreliesonDorseyv.Amazon.com,Inc.,No.2015-001-0017,2015Tenn.LEXIS13(TNWrk.Comp.App.Bd.May14,2015),tosupportitspositionthatthetrialcourterredbyorderinganewpanel.Dorseyiseasilydistinguishablefromthecasebeforeus.InDorseytheissuewaswhethertheemployeesustainedaninjurythatprimarilyaroseoutofandinthecourseandscopeofheremployment.PageoneoftheDCNinDorseydidnotidentifYmedicalbenefitsasadisputedissueinthecase,andthechecklistofissuesonpagetwooftheDCNdidnotindicatethatmedicalbenefitsorthepanelofphysicianswasdisputed.Furthermore,thepartiesinDorseystipulatedthatthephysicianpanelprovidedtotheemployeewas"proper"and"legallycompliant."Nonetheless,thetrialcourtorderedthattheemployerprovideanewpanelofphysicians.Wevacatedthetrialcourt'sorderforthenewphysicianpanelbecause(1)therewasnoindicationthattheissuehadbeencertifiedbythemediatorontheDCN,and(2)thepartiesstipulatedthatalegallycomplaintpanelhadbeenprovided.TennesseeCodeAnnotatedsection50-6-239(c)(7)(2014)providesapresumptionthatthefindingsandconclusionsoftheworkers'compensationjudgearecorrect,unlessthepreponderanceoftheevidenceisotherwise.Weconcludefromourreviewoftherecordthattheevidencedoesnotpreponderateagainstthetrialcourt'sdecisiontoorderEmployertoprovideadditionalmedicalbenefitstoEmployee.ConclusionFortheforegoingreasons,weholdthattheevidencedoesnotpreponderateagainstthetrialcourt'sfindingsanddecisionsatthisinterlocutorystageoftheproceedings.Further,wefindthatthetrialcourt'sdecisiondoesnotviolateanyofthestandardssetforthinTennesseeCodeAnnotatedsection50-6-217(a)(3).Accordingly,thetrialcourt's7decisionisaffrrmedandthecaseisremandedforanyfurtherproceedingsasmaybenecessary.Workers'CompensationAppealsBoard8