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TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Kristin Schubert ) Docket No. 2018-05-1213

)

v. ) State File No. 87914-2018

)

CuraHealth Boston, LLC, et al. )

)

)

Appeal from the Court of Workers’ )

Compensation Claims )

Robert V. Durham, Judge )

Reversed and Remanded

The employee, a nurse manager, alleged suffering a work-related injury when she adjusted 

a patient’s position in bed. The following day she advised her employer she was 

experiencing pain but stated she did not know how she had hurt herself. The employee

sought medical care and was referred to a neurosurgeon after an MRI disclosed a cervical 

disc protrusion. Following a discussion with the neurosurgeon, the employee concluded 

the work incident had caused her injury. The employee timely reported her injury as being 

work-related, and the employer provided a panel of physicians. Following the employee’s 

initial visit with the panel physician, the employer denied the claim based on its review of 

reports of the employee’s earlier medical visits in which she did not mention a work-related

injury. Following a trial, the court denied the employee’s claim, concluding she failed to 

prove that her injury arose primarily out of the alleged work-related incident. The 

employee has appealed. We reverse the trial court’s order denying the employee’s claim 

and remand the case for the trial court to enter judgment against the employer for the 

benefits the parties stipulated the employee would be owed in the event her claim was 

determined to be compensable, and to address the employee’s motion for attorneys’ fees.

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

Judge Timothy W. Conner and Judge Pele Godkin joined.

Steven C. Fifield, Hendersonville, Tennessee, for the employee-appellant, Kristin Schubert

Richard R. Clark, Jr., Nashville, Tennessee, for the employer-appellee, CuraHealth Boston, 

LLC

FILED

Oct 06, 2020

01:00 PM(CT)

TENNESSEE

WORKERS' COMPENSATION

APPEALS BOARD
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Factual and Procedural Background

Kristen Schubert (“Employee”) was employed as an interim nurse manager for 

CuraHealth Boston, LLC (“Employer”), at the time of her alleged injury. She described 

her duties to include helping with orders, lab draws, and patient care. Employee contends 

she suffered a work-related injury on August 28, 2018, when she attempted to adjust a 

patient’s position in bed. Employee testified she “pulled her up,” and that she “kind of felt 

a little muscle twinge in [her] shoulder, [but] didn’t think anything of it at the time, went 

back to work, went home that night, and woke up in excruciating severe pain.”

Employee described the pain she felt when she pulled the patient up in bed as being 

typical pain she often experienced in her work. She stated that “after working [twelve] 

hours on your feet all day, you feel little aches and pain all the time.” She said that when 

she pulled the patient up in bed, she did not have any reason to believe that she had been 

seriously injured. She described the remainder of her day as being “normal,” stating that 

she went home, ate dinner, watched television, went to bed, “and woke up around 1:00 a.m. 

in just severe, severe pain.” Employee testified the pain was in her right shoulder and neck

and described the pain as “[shooting] down through my right arm into my fingers. It felt 

like just a major like cramp.” She did not initially associate the pain she experienced during 

the night with repositioning the patient at work the previous day, stating “[t]he only thing 

I could think of was how do I make this pain stop.” She took Tylenol and massaged her 

shoulder, stating that she “finally got it to relax a little, so [she] went back to sleep.”

Employee reported to work later that day and told some co-workers about her pain 

but later testified, “it didn’t connect still that [the pain] was anything to do with work.” 

She told Employer’s Chief Clinical Officer, her immediate supervisor, and Employer’s 

Chief Executive Officer that she had hurt herself somehow, but “didn’t know how,” adding 

that “we didn’t connect [the pain] to anything.” She stated these individuals asked if she 

was okay, and she responded that she “was okay to work.” However, she noted that her 

pain “didn’t get any better that day and [she took] off the next day [to] go see if [she] could 

get a muscle relaxer or something to help ease the pain.” Employee stated that her 

supervisors did not ask if she needed to report a work injury, and “just asked if [she] was 

okay, if [she] was feeling okay.”

On August 30, 2018, Employee went to a chiropractor and to a walk-in medical

clinic. The record of the chiropractic visit indicated that Employee had chronic right-sided 

neck spasm “that flared up since couple of days” and was experiencing “numbness and 

tingling to [right] arm and hand.” The records of the walk-in medical clinic indicated the 

reason for Employee’s visit was “[b]ack [p]ain” and included diagnoses of dorsalgia, 

cervicalgia, and acute pain of right shoulder. Employee was prescribed medication for pain 

and muscle spasms and was given a note stating she could return to light duty with a 20-

pound lifting restriction through September 6, 2018. Employee testified she told both the 

chiropractor and the walk-in clinic provider that she had been experiencing pain for a 
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couple of days but she did not mention the work incident to either provider because she 

“thought it was a muscle pull, crick in the neck, just normal wear and tear of work.”

Over the next week, Employee reported that she did not get any relief from the 

muscle relaxers, so she went to Gateway Urgent Care (“Gateway”) on September 6, 2018,

and was seen by Joseph Weathersby, a physician’s assistant. The record of the September 

6 visit indicates Employee reported right arm and shoulder pain, numbness, and right upper 

back pain for one week, and that she “woke up from sleep and felt like she had a cramp in 

her neck.” Cervical and right arm X-rays were obtained, and Employee was referred for a 

cervical MRI. She was administered an injection of Toradol for pain and was prescribed 

Valium and Percocet.

An MRI was completed on September 7. Employee testified that following the 

MRI, Gateway called her and advised they were setting up an appointment with a 

neurosurgeon “to read the scans.” Employee testified she did not know what the results of 

the MRI were at that time. She returned to Gateway on September 8 and was seen by Caleb 

Kent, a nurse practitioner. The September 8 report stated in the “History of Present Illness” 

that the MRI “demonstrated cervical disc protrusion,” and that Employee “is scheduled to 

follow-up with neurosurgery on Tuesday. Presents today for continued pain medication. 

States her pain is not well controlled with current regimen.” The “Assessment” included 

in the September 8 report stated, “[c]ervical disc prolapse with radiculopathy.” A separate 

“Work/School Medical Excuse” document signed by the nurse practitioner stated that 

Employee was seen on September 6 and 8. It included “Restrictions/Limitations” of “[n]o 

lifting: light duty until cleared by neurosurgery for spinal disc protrusion.” Employee 

testified she delivered this document to Employer on September 10.

Employee saw Dr. George Lien, a neurosurgeon, on September 11. According to 

Employee, she and Dr. Lien “discussed things that could have led up to a herniated disc 

and just kind of discussing and going over things that had happened since [she] started 

having pain.” Further, she testified that “[i]t kind of dawned on [her] at that time that the 

only thing that led to the pain was the lifting of the patient. And [Dr. Lien] did . . . confirm 

that it was a pretty bad herniated disc, and that [she] would need surgery for it.” Employee 

explained that, before meeting with Dr. Lien, she did not realize her injury was a serious 

injury that would require surgery. When asked what made her so sure the August 28 

incident was the cause of her problems, she responded:

Well, with just speaking to [Dr. Lien] and he asked did I do anything, and 

the only thing I had been doing was working. The day that I did start feeling 

the pain, the only thing that I did was worked that day. And so that was the 

only thing that we could – you know, I kind of based it off of and talked to 

him about it.
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The following day, September 12, Employee went to Employer’s facility and 

reported her injury as being caused by the August 28 incident. She obtained paperwork

necessary to file a claim for workers’ compensation benefits, which she completed at home

and emailed to Employer. On September 21, 2018, Employee returned to Gateway and 

was seen for the second time by the physician’s assistant, Joseph Weathersby, reporting

“horrible pain in [her] neck.” The September 21 report stated: “[work comp] when lifting 

[a 100-pound patient] up in the bed. Couldn’t move [the] next morning. Saw Dr[.] Lien 

last [week] on 11th and said surgery asap but [work comp] dragging their feet.”

Employer provided a panel of physicians from which Employee selected Dr. Tarek 

Elalayli on September 26, 2018, who she first saw on October 29, 2018. Testifying by 

deposition, Dr. Elalayli stated that Employee reported she “was injured at work on August 

28, 2018 [when] she was pulling on a drawsheet to move a patient and felt immediate onset 

of right-sided neck pain.” Dr. Elalayli noted a large disc herniation at C6-7 on the MRI 

and recommended Employee undergo an anterior cervical discectomy and fusion.

Following Employee’s visit with Dr. Elalayli, and after reviewing the reports of 

Employee’s earlier chiropractic and medical visits in which Employee did not identify a 

work-related accident, Employer denied Employee’s claim. Employee continued treating 

with Dr. Elalayli and underwent surgery on January 15, 2019. She testified Employer 

terminated her on January 16, 2019. Dr. Elalayli kept Employee out of work from October 

29, 2018 until March 20, 2019. He placed her at maximum medical improvement on May 

2, 2019, and he testified that Employee retained a seven percent medical impairment to the 

body as a result of her injury and surgery. Employee returned to work with another 

employer on May 28, 2019.

Employee testified in person at trial as did her boyfriend, a licensed practical nurse 

who also worked for Employer at the time of Employee’s alleged work injury. In the trial 

court’s order, the court stated that the parties agreed the only disputed issue was “whether 

[Employee] met her burden in proving that she sustained a work-related injury to her 

cervical spine on August 28, 2018.” The trial court denied Employee’s claim, concluding 

that Employee did not satisfy her burden of proof. Noting that Employee was the only 

witness to the alleged incident, the trial court stated that Employee’s credibility “is the key 

factor in determining whether she proved causation.” The court stated that Employee 

“appeared nervous” during her testimony, that her voice “was often tremulous and without 

much volume,” and that she “frequently fluttered her eyelids and often looked away as she 

gave her testimony.” In addition, the court stated that Employee “seemed evasive when 

answering certain critical questions, such as those related to causation.” However, the 

court noted that Employee “was more confident in tone, volume, and body language when 

giving undisputed facts.” Based on the court’s observations, “the Court was not persuaded 

by [Employee’s] demeanor to find her credible as to causation.” The court stated that 

Employee’s testimony, “along with the medical records, confirmed the Court’s doubt as to 

her account of the alleged workplace incident.” Employee has appealed.
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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) (2019). 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). When the issues involve expert medical testimony 

in the record given by deposition, determination of the weight and credibility of the 

evidence necessarily must be drawn from the contents of the depositions, and we may draw 

our own conclusions as to those issues. See Foreman v. Automatic Sys., Inc., 272 S.W.3d 

560, 571 (Tenn. 2008). 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 (2019).

Analysis

Employee contends the trial court erred in concluding her testimony as to causation 

was not credible. Additionally, Employee contends that based on the lack of a medical 

causation opinion contrary to that of Dr. Elalayli and any “competing testimony or 

evidence” to Employee’s testimony, the trial court erred in concluding she did not satisfy 

her burden of proof.

In a joint pre-compensation hearing statement, the parties stipulated to certain facts, 

including that “Employee’s date of injury [was] August 28, 2018,” and that “Employee 

gave verbal notice of the injury to the Employer on September 12, 2018 and written notice 

of the injury on September 13, 2018.”1

 The statement included agreed conclusions of law, 

including that “Employee provided proper, statutory notice of the injury.” 

The trial court’s denial of Employee’s claim rests on its determination that

Employee “failed to meet her burden of proof regarding causation.” Dr. Elalayli testified 

that he first saw Employee on October 29, 2018, and that she gave a history of an injury 

 1 The parties also stipulated to Employee’s weekly compensation rate, the date of her maximum medical 

improvement, the number of weeks she was temporarily disabled, her medical impairment rating, the 

amount of her medical expenses, and that she had a meaningful return to work and was not eligible for 

permanent partial disability enhancement multipliers if her claim was determined to be compensable.
6

occurring on August 28, 2018, when she was “pulling on a drawsheet to move a patient 

and felt immediate onset of right-sided neck pain.” He testified he reviewed the September 

7, 2018 MRI that showed “a large, right-sided disc herniation at C6-7,” which he said was 

consistent with the symptoms Employee reported and consistent with the mechanism of 

injury Employee reported. When asked about causation, Dr. Elalayli’s responses included 

the following:

Q: Do I have it correct in summarizing your addendum and office note that 

it’s your opinion if [Employee] is telling the truth about her incident that your 

conclusion is that this is causally related to that incident, but if [Employee] 

is lying and instead she was injured in some other fashion and the incident 

with the patient didn’t occur then this would not be causally related?

A: Right. I mean, so when I think about causation I rely on the history that’s 

provided to me. So assuming the history provided to me is accurate I think I 

can pretty safely establish causation. But if a patient wasn’t being honest 

with me then that would call the causation into question.

Q: So if [Employee] was being truthful, then, given what you’ve already 

testified to today, and what’s contained in your record, is it your belief that 

that incident at work is more than 50 percent responsible for her herniation 

and the need for treatment?

A: Yes.

. . . . 

Q: Based on your personal interactions with [Employee] did you find her to 

be a credible patient?

A: I did.

. . . .

Q: So . . . is it your opinion today, to a reasonable degree of medical 

certainty, that if [Employee] is telling the truth that she felt immediate pain 

while performing her work tasks on August 28th, 2018 and then woke up 

with severe pain radiating down her right arm, that incident contributed more 

than 50 percent in causing her injury and the need for the treatment that you 

ordered and provided?

A: Yes.
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Q: If [Employee] is lying about that incident and it did not occur, that would 

change your opinion to one of no causal relation?

A: Correct.

Dr. Elalayli clearly expressed his opinion that if the August 28, 2018 incident

occurred as reported by Employee, it was more than 50% responsible for Employee’s 

injuries and her need for treatment. He also testified he believed Employee to be credible. 

However, if the August 28 incident did not occur as reported by Employee, then, according 

to Dr. Elalayli, “that would call the causation into question.”

Employee testified it was “typical” for employees to “twist our backs, pull 

muscles . . . [and] feel little aches and pains all the time.” She testified that when she 

repositioned the patient on August 28, she did not have any reason to believe she had been 

seriously injured, and that when she awoke in pain early the next morning she did not 

connect the pain she was experiencing with the work incident. She stated she was in such 

severe pain when she awoke that she “didn’t know what was going on at the 

moment . . . [and] remember[ed] thinking, do I need to go to the hospital.” Employee

testified that, later that day, she told “a couple of people at work, actually a few people,” 

about the pain she was experiencing “but it didn’t connect still that it was anything to do

with work.” She told her supervisors she “had hurt [herself] somehow, but didn’t know

how. We didn’t connect [the complaints] to anything.” The trial court characterized this 

testimony as Employee telling her supervisors “she had no idea how her injury happened.” 

Although Employee did not initially connect her complaints to a specific incident at work, 

she testified she believed her symptoms, at least initially, to be nothing more than the usual 

aches and pains common to people in her profession. In our opinion, the trial court’s 

characterization of Employee’s testimony as telling her supervisors “she had no idea how 

her injury happened” fails to take into consideration the entirety of her testimony.

In addressing the initial medical care Employee sought, the trial court noted that the 

record of Employee’s August 30, 2018 medical clinic visit “noted complaints of ‘back 

pain,’ but did not address causation.” That record also included diagnoses of dorsalgia, 

cervicalgia, and acute pain of the right shoulder, consistent with the pain employee was 

reporting in her neck and shoulder. Employee testified that neither the provider in the 

medical clinic nor the chiropractor she visited on August 30 asked her how she was injured, 

and she admitted that she did not mention the work incident to them. She testified that 

over the next week, she did not get any relief from the muscle relaxers she was prescribed 

at the medical clinic, “so [she] ended up going to Gateway” where she initially saw the 

physician’s assistant, Joseph Weathersby, and an MRI was ordered. Employee was still 

working at the time.

Addressing how she determined her injury resulted from the August 28 work

incident, Employee testified as follows:
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A: Dr. Lien and I discussed things that could have led up to a herniated disc 

and just kind of discussing and going over things that had happened since I 

started having pain. It kind of dawned on me at that time that the only thing

that led to the pain was the lifting of the patient. And he did, you know, 

confirm that it was a pretty bad herniated disc, and that I would need surgery 

for it.

Q: Before that visit with Dr. Lien, did you realize that this was a serious 

injury that was going to require surgery?

A: Not at all.

Q: After the visit, when you had talked about things with the doctor, what 

made you so sure that the lift from August 28th was the root cause of your 

problems and your issues?

A: Well, with just speaking to him and he asked did I do anything, and the 

only thing I had been doing was working. The day that I did start feeling the 

pain, the only thing I did was work[] that day. And so that was the only thing 

that we could – you know, I kind of based it off of and talked to him about 

it.

Employee denied engaging in any other strenuous activities before she started having the 

neck and shoulder pain. She testified she did lift a patient at work on August 28, 2018, and 

that she felt pain right after the lift. This testimony was unrefuted.

On cross examination, Employee acknowledged that the pain she experienced when 

she awoke in the early morning of August 29 was “abnormal” pain and more severe than 

the normal aches and pains she described as regularly experiencing at work. She testified 

she did not mention the work incident to her boyfriend when she woke him up, stating that 

her pain was so severe that she was concerned with how to stop the pain rather than “what 

did I do.” She acknowledged she did not tell Employer about the August 28 incident until 

September 11, stating that the pain she experienced at the time of the work incident “was 

normal” and she had not made the connection between the incident and her herniated disc 

until she spoke with Dr. Lien. She denied knowing the results of the September 7 MRI 

going into the appointment with Dr. Lien, and she stated that surgery was not discussed 

with Dr. Lien until after their discussion regarding what may have caused her herniated 

disc.

When asked to explain whether the pain she experienced over the two-week period 

from the date of the incident until she saw Dr. Lien was “just [the] normal kind of pain” 

she experienced in her work or whether she knew she had more serious pain, Employee

stated that “[d]uring that two weeks when I woke up in severe pain, I took Tylenol, 
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massaged it, put some heat on it and the severe pain went away.” She described the pain 

over the ensuing days as not being as severe as it was when she woke up during the night 

following the incident, stating on redirect examination that the pain “was still there. It was 

major burning, tightness. My arm actually ended up getting weaker over the next two 

weeks after that.”

In its order denying Employee’s claim, the trial court stated that Employee’s history 

“compelled her to walk a tightrope between remembering a specific injury and explaining 

why she didn’t tell anyone about it until after the surgery recommendation.” The trial court 

stated Employee attempted to do so “by stating that since her symptoms abated after that 

initial flare-up, she did not think it necessary to try and remember a traumatic event that 

could have caused such an injury.” The trial court concluded that the medical records did 

not support “this rationale.” The court noted that “[b]oth [Employee] and [Employee’s 

boyfriend] are trained nurses with substantial experience.” However, neither Employee 

nor her boyfriend testified as expert witnesses. There is no evidence in the record 

establishing that either Employee or her boyfriend should have been able to diagnose 

Employee’s symptoms or had particular, specialized knowledge that would or should have 

put them on notice that Employee had suffered an injury beyond what she described as the 

normal types of complaints one experiences in the nursing field. The court did not 

elaborate on how Employee and her boyfriend being nurses “with substantial experience”

impacted Employee’s credibility as a lay witness, other than to note that the medical 

records revealed Employee experienced increasing signs of radiculopathy with numbness 

and weakness following the August 28 incident, while Employee maintained she had no 

idea what the September 7 MRI revealed until she saw Dr. Lien. The trial court stated that 

Employee contended “it was not until [Dr. Lien] began questioning her that she finally 

made the connection between the lifting incident and her herniation.” The trial court found 

this testimony “to be less than credible [and] serves to damage her credibility regarding the 

alleged lifting incident as well.”

In addressing what the trial court characterized as Employee’s “rationale,” the court 

attributed to Employee an attempt to “walk a tightrope” between remembering a specific 

injury and explaining why she did not tell anyone about the incident until surgery was 

recommended. The court stated that, following the September 7 MRI, the physician’s 

assistant Weathersby “scheduled an immediate follow up with a neurosurgeon [and] 

[w]hen [Employee] returned a few days later, he diagnosed a cervical disc protrusion with 

radiculopathy and wrote her a work excuse stating that she should not be lifting until she 

saw a neurosurgeon for a ‘cervical disc protrusion.’” (Emphasis added.) However,

Employee was not seen by the physician’s assistant after her initial visit on September 6 

until September 21, ten days after Employee had met with Dr. Lien and discussed what 

could have caused her herniated disc. Employee testified that following the MRI, Gateway 

called her and said they “were going to be setting up an appointment with a neurosurgeon 

for him to read the scans. Of course, at the time, I didn’t know what the results was [sic].” 
10

She returned to Gateway the following day, September 8, and was seen by a nurse 

practitioner, Caleb Kent, for pain, and not by Joseph Weathersby, the physician’s assistant.

The record of Employee’s September 8 visit with the nurse practitioner noted that 

she had the MRI the previous day “which demonstrated cervical disc protrusion.” It stated 

that Employee “is scheduled to follow-up with neurosurgery on Tuesday,” and that she 

presented that day “for continued pain and needing pain medication,” adding that 

Employee reported “her pain is not well controlled with current regimen.” The assessment 

in the report noted “[c]ervical disc prolapse with radiculopathy,” and a separate 

“Work/School Medical Excuse,” signed by the nurse practitioner, included restrictions of 

“[n]o lifting: light duty until cleared by neurosurgery for spinal disc protrusion.” These 

records do not indicate the physician’s assistant, Weathersby, was involved with 

Employee’s September 8 visit to Gateway as indicated by the trial court. Moreover, these 

records do not indicate that any medical provider discussed the specific findings of 

Employee’s MRI with her at the September 8 visit. While Employee may have assumed 

her MRI had positive findings based on her referral to a neurosurgeon, the records do not 

indicate those findings were relayed to Employee in any detailed manner. According to 

Employee, at her September 8 visit to Gateway she had already been referred to a 

neurosurgeon and was there only to follow up for her ongoing pain complaints and 

medications. While the record from that visit references the MRI findings, there is no 

indication of any discussion with or instruction by the nurse practitioner regarding those 

findings.

We are required by statute to presume that the trial court’s factual findings are 

correct unless the preponderance of the evidence is otherwise. See Tenn. Code Ann. § 50-

6-239(c)(7). Here, although the parties stipulated that “Employee’s date of injury [was] 

August 28, 2018,” the trial court found that Employee did not prove by a preponderance of 

the evidence that her cervical disc herniation arose primarily out of a work-related incident 

on August 28, 2018. The trial court made that finding based upon its observations of 

Employee’s in-court testimony, stating the court “was not persuaded by [Employee’s] 

demeanor to find her credible as to causation.”

Except in the most obvious cases, the element of causation must be established by 

expert medical evidence. See Hedgecloth v. Cummins Engine Co., No. M2014-01274-SCR3-WC, 2015 Tenn. LEXIS 623, at *21 (Tenn. Workers’ Comp. Panel Aug. 7, 2015). 

Although an employee’s lay testimony may be relevant to the issue of causation to the 

extent such testimony concerns the occurrence of a work-related accident, it is expert 

medical proof that satisfies the element of causation, connecting the occurrence of a workrelated accident to the medical condition being treated. See Tenn. Code Ann. § 50-6-

102(14)(C), (E) (2019); Scott v. Integrity Staffing Solutions, No. 2015-01-0055, 2015 TN 

Wrk. Comp. App. Bd. LEXIS 24, at *12 (Tenn. Workers’ Comp. App. Bd. Aug. 18, 2015).
11

In the present case, we conclude the trial court erred in addressing whether 

Employee’s demeanor and lay testimony were “credible as to causation.” The question for 

determination regarding Employee’s testimony was not whether Employee’s testimony 

established causation but whether Employee satisfied her burden of proving by a 

preponderance of the evidence the occurrence of a work-related accident.

As previously noted, we give considerable deference to factual findings made by 

the trial court when the trial judge has had the opportunity to observe a witness’s demeanor 

and to hear in-court testimony. Madden, 277 S.W.3d at 898. Here, the court characterized 

Employee’s testimony as “often tremulous and without much volume.” The transcript of 

the hearing does not indicate the trial judge had difficulty hearing Employee. The 

witnesses did wear masks when testifying due to COVID-19 restrictions as required by the 

trial court, but the record does not indicate that the use of masks by witnesses prevented 

the trial court from hearing or understanding their testimony.2

The trial court noted that Employee “frequently fluttered her eyelids and often 

looked away as she gave her testimony.” We cannot discern from the record whether, at 

trial, witnesses faced the judge or the attorneys who questioned them, or whether the trial 

court was referring to Employee looking away from the lawyer questioning her or looking 

away from the judge. At the outset of Employee’s testimony, the court asked Employee to 

“come up to this chair in the middle,” adding that “I know that feels a little intimidating 

there, sitting there kind of exposed,” and the court stated that Employee would need to

speak up during her testimony, as she was soft-spoken. Employee stated she would try to 

do so, adding that it was difficult for her. The trial court did note, however, that

Employee’s testimony “was more confident in tone, volume, and body language when 

giving undisputed facts.”

Our review of the record does not support a rationale, as expressed by the trial court, 

that Employee’s “history compelled her to walk a tightrope between remembering a 

specific injury and explaining why she didn’t tell anyone about it until after the surgery 

recommendation.” It is significant that Employee testified that the recommendation for 

surgery came after her discussion with Dr. Lien about what could have caused her injury 

and after their conclusion that the lifting incident at work most likely caused her herniated 

disc. Employee’s testimony was consistent as to why she did not tell Employer about the 

lifting incident until after her visit with Dr. Lien. Her testimony was also consistent with 

the history as reflected in the medical records from the providers she saw on August 30 

and September 6, 7, and 8, none of which included or addressed a specific incident as being 

responsible for the symptoms Employee reported. Moreover, the record does not support 

the statement in the trial court’s order in which the court concluded Employee was seen 

 2 In her brief, Employee asserts that “on at least seven occasions, the judge asked [Employee] to speak up 

or repeat what she just said because he was unable to hear or understand her.” Our review of the record 

does not indicate the trial judge’s ability to hear or understand the testimony was materially affected by the 

masks worn by the witnesses.
12

after the MRI and prior to her visit with Dr. Lien by Joseph Weathersby, the physician’s 

assistant at Gateway. Instead, the records indicate that, at the September 8 visit to Gateway, 

Employee was seen by a nurse practitioner.

Although the trial court concluded Employee’s in-court demeanor called into 

question her credibility, her factual testimony as to how the work incident occurred was 

unrefuted. In our opinion, the preponderance of the evidence supports the conclusion that 

Employee suffered a work-related injury. There is no dispute that the activities Employee

performed the day before she woke with intense pain were within her job duties. There is 

no evidence suggesting that Employee was not working on the day of her alleged injury, 

that she was somewhere other than with a patient at the time she alleged to have lifted the 

patient, or that she was not assisting a patient at the time the injury occurred. Employee

provided a specific date and time range of when the incident occurred, and there is no 

material evidence in the record that her injury occurred in any manner other than as she 

testified. The medical records are consistent with the timeline of the injury as given by 

Employee, and the records of the providers Employee saw prior to her visit with Dr. Lien

do not indicate those providers made any inquiry as to the mechanism of Employee’s 

injury.

While Employee bears the burden of proof on all essential elements of her claim, it 

is significant to note that Employer offered no testimony or other evidence to contradict 

Employee’s account of how her injury occurred. Employer argued in the trial court that 

the evidence addressing whether the incident occurred does not support that it occurred, 

that “the timeline” indicates the incident did not occur, and that “the specific nature of the 

mechanism of the injury . . . corroborates that this incident did not occur.” Employer

essentially implies that, upon being advised that she needed surgery for her cervical 

herniation, Employee fabricated the account of her work injury to receive workers’ 

compensation benefits. We find no evidence in the record to support this theory, and we 

do not find Employer’s argument persuasive. While we must give considerable deference 

to the trial court’s credibility determinations, we conclude the preponderance of the 

evidence supports the conclusion that Employee sustained an injury by accident in the 

course and scope of her employment. Given Dr. Elalayli’s uncontradicted testimony 

regarding medical causation, we further conclude Employee proved the essential elements 

of her claim and is, therefore, entitled to workers’ compensation benefits in accordance 

with the parties’ stipulations.

Conclusion

The preponderance of the evidence does not support the trial court’s determination 

that Employee’s cervical disc herniation did not arise primarily out of the August 28, 2018 

work incident. Accordingly, we reverse the trial court’s order denying Employee’s claim 

and remand the case for the trial court to enter judgment against Employer for the benefits 

to which the parties stipulated Employee would be entitled in the event her claim was 
13

determined to be compensable and to address Employee’s motion for attorneys’ fees. Costs 

on appeal are taxed to Employer.
 

 

 

 TENNESSEE BUREAU OF WORKERS’ COMPENSATION 

 WORKERS’ COMPENSATION APPEALS BOARD 

Kristin Schubert ) Docket No. 2018-05-1213 

) 

v. ) State File No. 87914-2018 

)

CuraHealth Boston, LLC, et al. ) 

) 

) 

Appeal from the Court of Workers’ ) 

Compensation Claims ) 

Robert V. Durham, 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 6th day 

of October, 2020. 

Name Certified 

Mail

First Class 

Mail

Via 

Fax

Via 

Email

Sent to: 

Steven C. Fifield

Teresa Maurer

X steven@rockylawfirm.com

teresa@rockylawfirm.com

Richard R. Clark, Jr.

Lauren Ray Hall

X rclark@eraclides.com

lrayhall@eraclides.com

Robert V. Durham, 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