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 the Appeals Board’s decision in the 

referenced case was sent to the following recipients 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.gov 
Shelton Marzette 

v. 

Pat Salmon and Sons, Inc. 

Appeal from the Court of Workers' 

Compensation Claims 

Jim Umsted, Judge 

) Docket No. 2014

08

0058 

) ) 

) State File No. 61901-2014 

) 

) ) ) ) ) 

Affirmed and Remanded - Filed September 18, 2015 

WORKERS' COMPENSATION 

APPEALS BOARD 

Time: 8:00 AM 

In this interlocutory appeal the employee alleges he sustained work-related hearing loss 

and vertigo when his left ear popped and he experienced dizziness, a loss of balance, and 

nausea while driving a truck at a high altitude. , The employee sought medical care on his 

own before the employer provided a panel of medical providers that included a 

chiropractor, two orthopedics and a medical center. The employee was examined by a 

doctor with the medical center that the employee selected from the panel who opined that 

the employee's condition was not caused by his work. The employer thereafter denied the claim. Following an expedited hearing, the trial court determined that to resolve the 

compensability issue the employee is entitled to additional medical benefits limited to the 

employer's providing a panel of physicians who specialize in hearing loss injuries from 

which the employee can select a physician to provide a causation opinion. The trial court 

determined that the panel offered by the employer did not meet the statutory requirements 

and that the causation opinion of the physician from the medical center was not entitled 

to the statutory presumption of correctness. The employer has appealed. Having 

carefully reviewed the record, we affirm the trial court's decision to award the additional 

medical benefits and remand the case for such additional 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. 

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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 

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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 

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of physicians that Employer provided and asserted that Employee was given "two 

orthopedic doctors to choose from and a chiropractor." In his testimony, Employee 

reiterated that the panel included two orthopedic physicians and "one chiropractor." 

Employee testified that the panel also included a medical center but not the name of any 

doctor with the medical center. He testified without objection that "I knew I couldn't 

choose an orthopedic surgeon," and "I knew I couldn't choose a chiropractor because I 

had - my injury was hearing loss and my ear . . . . " Employee also testified without 

objection that when he went to Concentra "I'm thinking I'm seeing anENT doctor. But 

the person I seen [sic] ... was Dr. Rucker. And he's not anENT specialist. He doesn't 

have any way to diagnose hearing loss or any vertigo." 

The trial court concluded that Employee "is entitled to additional medical 

benefits," and found that the panel of physicians offered by Employer ''was defective" 

and effectively provided only one physician for Employee to select, Dr. Rucker at Concentra. Noting that Dr. Rucker opined that Employee "should follow-up with testing 

and treatment with ENT specialist," the trial court was persuaded 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." Consistent with Dr. Rucker's 

recommendation, the trial court, on August 19, 2015, entered its order granting medical 

benefits and requiring Employer to provide Employee a panel of physicians who 

specialize in treating hearing injuries from which the selected physician "shall provide an 

opinion on causation and, if necessary, an opinion on the period of disability from 

k wor mg . " .... 

Employer timely filed a notice of appeal and asserts two issues stated as follows: 

(1) whether the court erred by ordering a new panel of physicians when that issue was not 

listed in the DCN, and (2) whether the court erred by finding the panel of physicians 

provided to Employee was improper. The record was submitted to the Clerk of the 

Appeals Board on August 9, 2015. 

Standard of Review 

The standard of review to be applied by the Appeals Board in reviewing a trial 

court's decision is statutorily mandated and limited in scope. Specifically, "[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. § 

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(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 

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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 

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additional medical benefits and to additional medical care recommended by a physician 

were identified in the DCN. Not only were these issues identified in the notice, but both 

issues were acknowledged by the trial court and the parties. We are convinced based on 

the record as a whole that Employer was fairly put on notice that Employee disputed whether he received proper medical benefits for his alleged hearing loss injury as 

mandated by the Tennessee Workers' Compensation Act. Accordingly, the issue of 

Employee's entitlement to additional medical benefits was properly considered by the 

trial court. 

Employer relies on Dorsey v. Amazon.com, Inc., No. 2015-001-0017, 2015 Tenn. 

LEXIS 13 (TN Wrk. Comp. App. Bd. May 14, 20 15), to support its position that the trial 

court erred by ordering a new panel. Dorsey is easily distinguishable from the case 

before us. In Dorsey the issue was whether the employee sustained an injury that 

primarily arose out of and in the course and scope of her employment. Page one of the 

DCN in Dorsey did not identifY medical benefits as a disputed issue in the case, and the 

checklist of issues on page two of the DCN did not indicate that medical benefits or the 

panel of physicians was disputed. Furthermore, the parties in Dorsey stipulated that the 

physician panel provided to the employee was "proper" and "legally compliant." 

Nonetheless, the trial court ordered that the employer provide a new panel of physicians. 

We vacated the trial court's order for the new physician panel because (1) there was no 

indication that the issue had been certified by the mediator on the DCN, and (2) the 

parties stipulated that a legally complaint panel had been provided. 

Tennessee Code Annotated section 50-6-239(c)(7) (2014) provides a presumption 

that the findings and conclusions of the workers' compensation judge are correct, unless 

the preponderance of the evidence is otherwise. We conclude from our review of the 

record that the evidence does not preponderate against the trial court's decision to order 

Employer to provide additional medical benefits to Employee. 

Conclusion 

For the foregoing reasons, we hold that the evidence does not preponderate against 

the trial court's findings and decisions at this interlocutory stage of the proceedings. 

Further, we find that the trial court's decision does not violate any of the standards set 

forth in Tennessee Code Annotated section 50-6-217(a)(3). Accordingly, the trial court's 

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