# TENNESSEE BUREAU **OF WORKERS'**  **COMPENSATION WORKERS'**  **COMPENSATION APPEALS BOARD** 


# Patrick **Riley**

**V.** 

# Group **Electric, et**  **al.**

**Appeal from**  **the Court**  **of Workers'**  **Compensation Claims**  **Kenneth M.**  **Switzer, Chief**  **Judge )**  **Docket No.**  **2015-06-0886 )**  **) State**  **File No.**  **48657-2015 )**  **) )**  **)** 

# ) **) )** 

**Affirmed and**  **Remanded - Filed**  **July 5, 2016** 



# In **this interlocutory**  **appeal, the**  **employer disputes**  **whether it**  **should be**  **required to**  **provide medical**  **benefits for**  **the employee's**  **alleged work-related**  **injury. The**  **employee reported**  **suffering an**  **injury to**  **his left**  **wrist and**  **hand arising**  **primarily out**  **of and**  **occurring in**  **the course**  **of his**  **employment as**  **a journeyman**  **electrician. The**  **employer denied**  **the claim,**  **asserting there**  **is no**  **evidence that**  **a work**  **injury actually**  **occurred. Following**  **an expedited**  **hearing, the**  **trial court**  **ordered the**  **employer to**  **provide a**  **panel of**  **orthopedic physicians to**  **treat the**  **employee's injury,**  **reserved ruling**  **on the**  **employee's request**  **for temporary**  **disability benefits,**  **and denied**  **the employee's**  **request for**  **reimbursement of**  **past medical**  **and mileage**  **expenses. The**  **employer has**  **appealed. Having**  **carefully reviewed**  **the record,**  **we affirm**  **the trial**  **court's decision**  **and remand**  **the**
**case for**  **further proceedings**  **as may**  **be necessary.**  **Judge David**  **F. Hensley**  **delivered the**  **opinion of**  **the Appeals**  **Board, in**  **which Judge**  **Marshall L.**  **Davidson, III,**  **and Judge**  **Timothy W.**  **Conner joined.** 

**T. Ryan**  **Malone, Nashville,**  **Tennessee, for**  **the employer-appellant,**  **Group Electric** 
**Michael Fisher,**  **Nashville, Tennessee,**  **for the**  **employee-appellee, Patrick Riley** 

**Factual and**  **Procedural Background**


# Patrick **Riley ("Employee"**  **) alleges**  **he injured**  **his left**  **hand and**  **wrist on**  **June 8,**  **2015, while**  **working for**  **Group Electric**  **("Employer" )**  **as a**  **journeyman electrician.**  **He**

**1**testified

at the expedited hearing that he was installing new wiring

in
a school building and, while stripping wires

to connect them

in the main disconnect
box, his left hand slipped, causing him to strike his left wrist against the disconnect
box. Employer offered no witness testimony

to contradict Employee's description

of the accident. Employee also testified

he completed

the job that day, but noticed swelling

in his hand that evening and in his fingers

by the following morning.

He testified

he reported
the injury

to his superintendent

the next morning
and advised
the superintendent

that he had to "go to the hospital"

at nine o'clock that morning. Employee sought care
at Summit Medical Center Emergency Room for left wrist pain on June

9, 2015. Medical records from that date reflect that he "denies injury," that he complained

of ''wrist injury (pain w/o injury)," that the mechanism

of injury was "unknown,"

and that Employee
had experienced
pain and swelling

in his left wrist for three days. The emergency room record also indicates
the injury was not work-related. When confronted
with this information

at the expedited hearing, Employee testified

he had told the attending medical care providers

at the emergency room that his left elbow had been sore for about three days, but he denied telling them his hand and wrist had been injured three days prior
to his visit. He further testified that he informed all the providers

at the emergency room that he had injured
his wrist

at work. He was released from the emergency room with

a diagnosis

of arthritis and bursitis with possible gout of the left wrist.

In addition

to being referred
for an orthopedic consult,
the record indicates

a follow-up ''with Dr. Dube has been arranged
and [patient]

is in agreement." Employee testified that the emergency room provider "recommended

that [he] go to Dr. Dube

to have fluid drawn off [his] wrist," and that because ''they wanted either $300 cash up front
or insurance"

he was not able to get the recommended treatment. Employer filed

a Notice
of Controversy

on June 25, 2015, which stated there were "[n]o medical records received

to support compensability." Employee testified, however, that the project manager came
to the worksite "several weeks" after the alleged injury and instructed
him to seek treatment

at Concentra Medical Center. The first of Employee's visits

to Concentra occurred

on June 30, 2015,

at which time the treating nurse practitioner noted Employee
had

a left wrist injury

as
a result
of blunt trauma sustained while installing wiring. The record from that visit reflects the injury was ''the result of
a direct blow. Occurred while

at work." Despite

its June 25, 2015 Notice
of Controversy, Employer provided

a panel of physicians from which Employee chose Dr. Rosa Stone
on July

1, 2015. Employee returned

to Concentra

on July

3, 2015, and was seen by Dr. Joseph Speake, who, although agreeing with the assessment from the previous visit, observed that Employee became defensive when questioned about his injury. The medical record states that the "[ s ]tory of injury and exam don't seem
to correlate very well." Employee acknowledged

in his testimony

at the expedited hearing that he became defensive with 2Dr.Speake,butexplainedthathefeltDr.Speakewasattemptingtodiscredithisversionofeventsinsteadofprovidingmeaningfultreatment.EmployeesawDr.SarithaReddyathisthirdandfinalvisittoConcentraonJuly10,2015.Dr.ReddyorderedanMRI.Employeeultimatelysawthepanelphysician,Dr.Stone,ononeoccasiononJuly23,2015,atwhichtimeshenotedEmployeehadinjuredhisleftwristwhenhehititonapieceofmachineryonJune8,2015.Therecordofthevisitdidnotaddresscausation.AlthoughEmployeehadanMRIonJune29,2015,heneverdiscussedtheresultsofthattestwithDr.Stonebecauseshedeclinedtocontinuetreatinghim.EmployerfiledaNoticeofDenialofClaimforCompensationonAugust19,2015,stating"[n]ocompensableaccident.Doesnotmeetstatutorydefinitionofaccident."EmployeehasnotreceivedmedicalcareforhisinjurysincetheAugust19,2015denialoftheclaim.In August2015,Employee'scounselsentalettertoDr.Speakeaskinghimwhether,"assumingthepatient'shistoryisaccurate,"Employee'slefthandandwristinjury"aroseprimarilyoutofandinthecourseandscopeofemploymentonoraboutJune8,2015."Dr.Speakerepliedtothequestionbychecking"yes"anddrewanarrowtoandcircledthephrase"assumingthepatient'shistoryisaccurate."OnOctober23,2015,Dr.Reddysignedanaffidavitthatexpressed,amongotherthings,heropinion"toareasonabledegreeofmedicalcertaintythatthenecessityforthetreatmentreflectedintheConcentramedicalrecordsto[Employee's]lefthandandwristiscausallyrelatedtoandresultsfromhiswork-relatedinjuryofJune8,2015."FollowingEmployee'sfilingofapetitionforbenefitdeterminationandtheparties'unsuccessfulmediation,Employeerequestedanexpeditedhearing,whichwasheldonApril26,2016.ThetrialcourtsubsequentlyissuedanorderrequiringEmployertoprovideEmployeeapaneloforthopedicspecialists.ThetrialcourtreservedrulingonEmployee'srequestfortemporarydisabilitybenefitsanddeniedEmployee'srequestforreimbursementofmedicalandmileageexpenses,findingEmployeehadpresentedinsufficientevidencetoestablishhisentitlementtothosebenefits.1Employerhasappealedthetrialcourt'sorder.StandardofReviewThestandardweapplyinreviewingatrialcourt'sdecisionisstatutorilymandatedandlimitedinscope.Specifically,"[t]hereshallbeapresumptionthatthefindingsandconclusionsoftheworkers'compensationjudgearecorrect,unlessthepreponderanceoftheevidenceisotherwise."Tenn.CodeAnn.§50-6-239(c)(7)(2015).Thetrialcourt's1Employeehasnotappealedthetrialcourt'srulingreservingtheissueoftemporarydisabilitybenefitsoritsdenialofEmployee'srequestforreimbursementofmedicalandmileageexpenses.Thus,weneednotaddresstheseissuesatthistime.3decision 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. Analysis Employer identified several issues

in its notice
of appeal; however,

in its brief on appeal, Employer limited the disputed issues

to whether Employee "carried
his burden
of e s tablishing causation,"

and to whether
the trial court erred
in admitting

Dr

. Speake's "opinion letter

' and Dr. Reddy

' s a f fidavit into evidence.

2 With res p e ct to the latt
e r issue, in its order granting medical benefits,
the trial court addressed

in detail Employer's objections

to Dr. Speake's "opinion letter" and its objections

to Dr. Reddy's affidavit. Although

it admitted both documents
into evidence,

the trial court agreed with Employer that Dr. Speake's "opinion letter" was "of little
or no probative value" and placed "no weight upon it." Similarly,

the trial court admitted
Dr. Reddy's affidavit into evidence, but "place[d]

no weight upon

it due to its inaccuracies." Based

on the trial court's d e termination

to place no weight

on either exhibit, the error,

if any,
in admitting those e x hibit

s was harmles

s . 3 With respect

to the first stated issue, Employer asserts two separate arguments concerning whether Employee "carried
his burden

of establishing causation."
First, Employer argues the trial court erred
in determining

that Employee carried
his burden

of 2 In addition

to the issues specified
and argued

in its brief on appeal, Employer asserted

in its notice
of appeal that the trial court erred

in "refusing

to permit the Employer

to obtain

an [independent medical examination]"

and in "finding that the Employer failed

to introduce evidence rebutting

the claimant's version

of how the injury occurred." These issues are not discussed

or mentioned

in Employer's brief and, therefore,

we assume Employer

has abandoned them. See Appeals Board Prac.

& Proc.

§ 5.1 ("All briefs pertaining

to the appeal
of an interlocutory order "shall include

. . . a statement

of the issue(

s) presented

for review

on appeal" and "an argument, citing appropriate statutes, case law, or other authority."). 3 We do not intend

to suggest that the trial court erred

in admitting either document. Rather,
we simply decline

to address the merits
of these issues

as they are unnecessary

for

a resolution

of the appeal. 4proof "despite reaching
the contrary holding that [Employee's]

only causation opinions carried
'no weight."' Second, Employer asserts error

in the trial court's "finding [Employee] carried
his burden

of establishing causation despite
the medical records undercutting

his claim." As an initial matter,
we note that the burden

of proof

at an expedited hearing

is different than the burden

of proof

at
a compensation hearing. 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). Specifically,

we have determined
that, at an expedited hearing,

an employee need not prove each and every element

of his or her claim by
a preponderance

of the evidence

in order
to obtain temporary disability benefits or medical benefits.

Id. Instead,

we have emphasized
that,

at the expedited hearing stage,
an employee
has the burden

to 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)(l).

Id. Thus, while

an injured worker retains
the burden

of proof

at all stages
of

a workers' compensation claim,

a trial court can grant relief

at an expedited hearing

if the court

is satisfied that an employee

has met the burden

of showing that he or she
is likely

to prevail

at a hearing

on the merits. Tenn. Code Ann.§ 50-6-239(d)(l) (2014). However, "[t]his 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

v. Carl ex Glass Co., No. 2015-01-0012,

2015 TN Wrk. Comp. App. Bd. LEXIS
39, at *6 (Tenn. Workers' Comp. App. Bd. Sept. 29, 2015).

It is our responsibility

to conduct

an in-depth examination

of the trial court's factual findings and conclusions,

see Wilhelm

v. Krogers,
235 S.W.3d 122, 126 (Tenn. 2007), within the mandate

set out in Tennessee Code Annotated sections 50-6-217(a)(3),

as referenced above, and 50-6-239(c)(7) (2015). Section 50-6-239(c)(7) provides

a presumption
"that the findings and conclusions

of the workers' compensation judge are correct, unless the preponderance

of the evidence

is otherwise." Furthermore, when the trial court has seen and heard the witnesses, considerable deference must be afforded
the trial court's factual findings. Tryon

v. Saturn Corp., 254 S.W.3d 321, 327 (Tenn. 2008). Thus,

in the instant case, the issue before the trial court was not whether Employee established medical causation

by

a preponderance

of the evidence

or whether

he presented competent medical proof establishing

that he suffered

a workplace injury. Rather, the issue for the trial court was whether Employee presented sufficient evidence to show that he would likely prevail

at
a hearing

on the merits

in establishing

the occurrence

of
a compensable injury

as prescribed

in Tennessee Code Annotated section 50-6-239(

d)(

1 ). On appeal,
we must assess whether
the evidence presented

in the trial 5courtpreponderatesagainstthetrialcourt'sdeterminationthatEmployeewouldlikelyprevailatahearingonthemerits.SeeTenn.CodeAnn.§50-6-239(c)(7).Thetrialcourtwaspresentedwith,amongotherdocuments,medicalrecordsdetailingEmployee'streatmentforhislefthandandwristinjury,aswellasEmployee'stestimonyregardinghowtheinjuryoccurred.Employeetestifiedastothemechanismofinjury,statingthathislefthandslippedwhilestrippingwires,causinghimtostrikehisleftwristagainsttheelectricaldisconnectbox,andthatheinformedhissupervisoronthemorningaftertheinjurythathehadhurthimself.EmployerpresentednotestimonyfromEmployer'ssupervisororanyotherwitnessthattheinjurydidnotoccuratworkorthatitoccurredinsomemannerotherthanasEmployeetestified.Rather,EmployerreliedonthemedicalrecordsfromEmployee'svisittotheemergencyroomtosupportitsassertionthatEmployeewasnotinjuredatwork.Employeetestifiedregardingtheinformationinthosemedicalrecords,andthetrialcourtacceptedhistestimony,findinghimtobecredible.WhiletherearediscrepanciesbetweentheaccountoftheinjuryintheemergencyroomrecordsandEmployee'sdescriptionofhowtheinjuryoccurred,thetrialcourtwasawareofthosediscrepanciesandchosetoaccreditEmployee'stestimonyconcerningtheincident.ThetrialcourtconsideredthedocumentaryevidenceinconjunctionwithEmployee'stestimonyanddeterminedEmployeewasacrediblewitnessandhadmetthe"lesserevidentiarystandard"requiredatanexpeditedhearing.Accordingly,havingindependentlyassessedwherethepreponderanceoftheevidencelies,wefindnoerrorinthetrialcourt'sorder.ConclusionFortheforegoingreasons,weholdthattheevidencedoesnotpreponderateagainstthetrialcourt'sdecisionatthisinterlocutorystageofthecase.Nordoesthe trialcourt'sdecisionviolateanyofthestandardssetforthinTennesseeCodeAnnotatedsection50-6-217(a)(3).Thetrialcourt'sdecisionisaffirmedandthecaseisremandedforanyfurtherproceedingsthatmaybenecessary.6DavidF.Hensley,Judge1'Workers'CompensationAppealsBoard

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

# Patrick Riley ) Docket No. 

# 2015-06-0886 )


# v. ) ) State File No. 

# 48657-2015 Group Electric )



# CERTIFICATE OF SERVICE I hereby certify that a true and correct c opy of the Appeals Board’s decision in the referenced case was sent to th e following recipients by the following methods of service on this the 5thdate day of July, 2016.

Name Certified Mail First Class Mail Via Fax Fax Number Via Email Email Address

Michael Fisher X 

# mfisher@ddzlaw.com Nicholas J. Peterson X 

# nicholas.peterson@petersonwhite.com 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.gov