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TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT NASHVILLE 

Melanie Burns-Herrera, ) Docket No. 2021-06-0175

Employee, )

v. )

State Industries, LLC, ) State File No. 107705-2019

Employer, )

And )

Sentry Ins., a Mutual Company, ) Judge Kenneth M. Switzer

 Carrier. )

EXPEDITED HEARING ORDER

In the words of one physician in this case, medicine is both an art and a science, and 

the answers are not always clear. As an example, in this case, two well-qualified orthopedic 

surgeons have reached opposite conclusions regarding whether surgery is appropriate to 

treat Melanie Burns-Herrera. 

Ms. Burns-Herrera seeks an order compelling State Industries to authorize surgery 

with Dr. Matthew Willis, a physician of her choosing. State Industries counters that the 

procedure is not advisable, based on the opinion of the treating physician, Dr. Jason 

Haslam. 

After an expedited hearing on June 15, 2022, the Court holds that Ms. Burns-Herrera 

is entitled to undergo the recommended surgery. If Dr. Haslam is unwilling to perform it, 

State Industries must provide a panel of orthopedists willing to treat Ms. Burns-Herrera.

Claim History

Ms. Burns-Herrera suffered a work injury to her right shoulder on October 15, 2019. 

State Industries authorized treatment, and she chose Dr. Haslam from a panel of physicians.

Dr. Haslam saw her approximately monthly beginning in January 2020. He 

diagnosed impingement syndrome, recommended physical therapy, injected the shoulder, 

FILED

Jun 21, 2022

02:58 PM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS
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and prescribed medication. These measures provided no relief, so Dr. Haslam performed 

surgery, specifically, a right-shoulder arthroscopy with subacromial decompression, on 

March 24. 

Dr. Haslam saw nothing unusual post-operatively at the next three visits, but Ms. 

Burns-Herrera continued to experience pain and reduced range of motion. In June, he 

injected the shoulder and placed her on modified duty.

At a July visit, Dr. Haslam first saw evidence of adhesive capsulitis, otherwise 

known as a “frozen shoulder.” His notes characterize the condition as “an unfortunate side 

effect from surgical intervention.” Dr. Haslam explained at his deposition that this means 

the covering of her shoulder joint became inflamed, causing pain and limited range of 

motion.

In August and September, he injected the shoulder. At the latter visit, Dr. Haslam 

also placed Ms. Burns-Herrera at maximum medical improvement and assigned a sevenpercent impairment rating. Notes from that visit do not mention surgery as a treatment 

option. Ms. Burns-Herrera returned in October and received another injection. Dr. Haslam 

wrote, “I have no further treatment for the patient[.] . . . I believe she should get a second 

opinion regarding possible further treatment options.”

Ms. Burns-Herrera then sought treatment on her own with Dr. Matthew Willis. Her 

first visit in December was with physician assistant, Dana Duff, who sent her for an MRI. 

When she returned later that month, Ms. Burns-Herrera saw physician assistant Austin

Bragdon, who reviewed the MRI results and recommended surgery. 

After the recommendation, Ms. Burns-Herrera returned to Dr. Haslam in January 

2021, and they discussed surgery. He testified that he did not recommend it at that time: 

“Because the prognosis for frozen shoulder is good. If you don’t do surgery, it’s good. If 

you do surgery, it’s relatively good. So I tell my family members and my patients, if you 

have a good outcome and it’s a good prognosis, avoid doing surgery.” He also said that 

additional surgery would be painful and that he did not want her to go through that again.

This was Ms. Burns-Herrera’s final visit with Dr. Haslam, at which time he wrote that he 

would see her back as needed.

On cross-examination, Dr. Haslam agreed that he did not order a post-operative 

MRI and that he had not seen the MRI report that Dr. Willis’s staff ordered. Dr. Haslam 

acknowledged that his notes do not mention surgery as an option until January 2021, but 

he said it came up before then and added, “Remember I’m a surgeon. I like to operate.” 

He further testified that surgery is an option to treat adhesive capsulitis, and it can provide 

relief to patients. In fact, Dr. Haslam has performed it “many times,” and ninety-five 

percent of patients will recover without any long-term deficits to their shoulders, he said. 
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Dr. Haslam conceded that physically, Ms. Burns-Herrera would probably tolerate another 

surgery well. He agreed that practicing medicine is an art and science. 

Dr. Haslam testified that he told Ms. Burns-Herrera the following:

Everybody gets better from frozen shoulder. We can do surgery on it and 

you may get your range of motion faster, but you may have a lot of pain for 

a very long time. That time frame of pain may not actually get better. It may 

take another year and a half for your pain to get better. Will you get better 

motion? Probably, because we’re going to cut up the capsule so, yeah, you 

might get better motion. But I promise you, it’s a painful operation.

As for Dr. Willis, he testified that he first saw Ms. Burns-Herrera in June 2021. He 

examined her and recorded her reduced range of motion. He said that he reviewed all of 

Dr. Haslam’s records, so he was aware that she received many injections—more than he 

would have recommended—and attempted physical therapy many times with little relief. 

Dr. Willis said that her post-surgery pain and stiffness should have resolved by then. He 

explained the surgery recommendation as follows at his deposition:

She’s motivated, she’s in a lot of pain. She has an objectively stiff shoulder 

after surgery. The overwhelming of those do well after a release. She has a 

clear anatomic problem that would benefit from additional surgery and has 

failed very extensive conservative measures since her surgery. So she really 

checks all the boxes.

Dr. Willis testified that the capsulitis resulted directly from Ms. Burns-Herrera’s 

surgery and that she did not have motion deficits before it. Dr. Willis said that the risks of 

the proposed surgery were low, with only a five-percent risk that her shoulder stiffness 

would worsen. Dr. Willis acknowledged the doctors’ professional difference of opinion 

by agreeing that “two skilled and knowledgeable physicians can differ on the treatment 

plan that they recommend.” Ms. Burns-Herrera returned to Dr. Willis in January 2022, 

and Dr. Willis repeated the surgery recommendation.

For her part, Ms. Burns Herrera, who is right-handed, testified that her work injury

has affected her daily living. She can no longer reach items from the top shelf in her 

refrigerator. She needs assistance to hook her bra or get in and out of the bathtub. She 

cannot participate in past hobbies: riding motorcycles and “work[ing] on cars.” Ms. BurnsHerrera said she underwent injections six times under Dr. Haslam’s care, but she declined 

the last one he offered because they were not helping. Ms. Burns-Herrera testified that she 

“was fine” with Dr. Haslam’s treatment at first but no longer trusts him and would not feel 

comfortable with further treatment from him.
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Findings of Fact and Conclusions of Law

At an expedited hearing, Ms. Burns-Herrera must show she would likely prevail at 

a hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(1) (2021). 

Tennessee Code Annotated section 50-6-204(a)(1)(A) states that an employer shall 

furnish, free of charge to the employee, “medical and surgical treatment . . . made 

reasonably necessary” by the work accident. Here, the experts agree that the adhesive 

capsulitis resulted from the previous surgery but disagree on the next step. Dr. Haslam 

believes the capsular release is not reasonably necessary; Dr. Willis believes it is.

As an initial issue, the parties disagreed in their briefs whether any presumption is 

afforded to Dr. Haslam. The Workers’ Compensation Law reads, “Any treatment 

recommended by a physician . . . selected pursuant to [section 50-6-204(a)(3)] or by 

referral, if applicable, shall be presumed to be medically necessary for treatment of the 

injured employee.” Ms. Burns-Herrera asserted that this does not apply, and the Court 

agrees. Dr. Haslam, the authorized treating physician, has made no active treatment 

recommendation. By his own words, he has “no further treatment.” Stated another way, 

when last consulted in January 2021, he recommended nothing but time.

Moreover, in Endsley v. Benchmark Contractors, LLC, an authorized treating 

physician recommended no treatment and disagreed with another physician who provided 

a second opinion recommending surgery. The employer had authorized the second-opinion 

physician. The Appeals Board concluded that the initial authorized physician “did not 

recommend treatment but offered an opinion that surgery recommended by another 

physician was not necessary.” 2017 TN Wrk. Comp App. Bd. LEXIS 47, at *7 (Aug. 11, 

2017) (emphasis in original). The Board explained: 

The statute provides that treatment recommended by an authorized doctor is 

presumed to be medically necessary, but makes no mention of whether an 

authorized physician’s opinion about the medical necessity of treatment 

recommended by another doctor is entitled to that same presumption. Thus, 

by the express terms of this subsection, an opinion of one physician 

concerning treatment by another physician does not qualify for the 

presumption described in subsection 204(a)(3)(H).

Id. at *7-8 (emphasis in original).

The Court agrees with State Industries that the facts of this case and Endsley are not 

identical. But the salient facts correlate—specifically, an authorized physician 

recommended taking no action and commented on another physician’s surgery 

recommendation. Whether the other physician was compensated by the employer or 

employee is immaterial. The question of whether Dr. Haslam has “relinquished care,” 

which he has not, is also irrelevant.
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Instead, the Court must weigh the competing expert opinions with no presumption. 

In determining which to accept, the Court can consider, among other things, the 

qualifications of the experts, the circumstances of their examination, the information 

available to them, and an evaluation of the importance attached to the information by other 

experts. Bass v. The Home Depot U.S.A., Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 36, 

at *9 (May 26, 2017). 

Looking at the first factor, the Court finds both experts are well-qualified. This 

consideration favors neither physician.

As to the circumstances of their examination, State Industries contended that this 

factor favors Dr. Haslam because he saw and examined Ms. Burns-Herrera more often, 

while Dr. Willis saw and examined her twice, after his physician assistants first saw her. 

In State Industries’ view, not only did Dr. Haslam see her more often, but also, the 

physician assistants made the surgery recommendation.

The Court disagrees. It is true that Dr. Haslam saw Ms. Burns-Herrera twelve times, 

while Dr. Willis saw her twice. Dr. Willis explained the work dynamics of his office in his 

testimony, namely that he and the physician assistants work together and confer often. 

More important though, Dr. Willis actually examined Ms. Burns-Herrera and recorded

objective test results in June 2021, to confirm the previous surgery recommendation, which 

he reaffirmed most recently in January 2022. In his testimony, Dr. Willis maintained that

ultimately the recommendation was his. This factor ̶the circumstances of the examination ̶

likewise favors neither physician. 

As to the information available to them, Dr. Haslam testified that he did not see the 

results of the MRI ordered by Mr. Duff. This factor favors Dr. Willis because he saw the 

more complete picture. 

Regarding the importance of that information attached by other experts, both 

doctors essentially agreed that two skilled physicians can reach differing conclusions. This 

factor favors neither.

In addition to considering the Bass factors, live testimony by a lay witness may 

influence the trier of fact in the consideration of expert medical proof. Caskey v. Powers

Pizza, LLC, 2015 TN Wrk. Comp. App. Bd. LEXIS 37, at *9 (Oct. 7, 2015). Ms. BurnsHerrera credibly testified that she has difficulty with daily activities such as reaching for 

items and dressing herself without assistance. She also cannot enjoy her previous hobbies. 

The Supreme Court has consistently held that an employee’s assessment as to his or her 

own physical condition is competent testimony that is not to be disregarded. Limberakis

v. Pro-Tech Sec., Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 53, at *5-6 (Sept. 12, 2017).
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Here, Ms. Burns-Herrera complied with all of Dr. Haslam’s conservative treatment 

recommendations. When he finally had nothing else to offer, on his advice, she reasonably 

consulted another physician, who recommended a capsular release. 

Dr. Haslam first diagnosed the adhesive capsulitis in July 2020. He wrote that he 

had no further treatment starting in September 2020. He testified that time would remedy 

her symptoms. But, as Ms. Burns-Herrera argued, it has been “two years, two months, and 

twenty-four days” since the initial surgery, and her symptoms remain. To date, Dr. 

Haslam’s prediction simply has not come to fruition, and it is well past his suggested time 

frame for improvement. As Dr. Willis stated, she is motivated to undergo surgery, and all 

other options have been exhausted.

Moreover, while State Industries is concerned that the surgery will be unsuccessful, 

both doctors placed the risk very low, just five percent. The Court is likewise unpersuaded 

by the contention that Ms. Burns-Herrera’s private insurance is willing to cover the 

procedure, since the physicians in this case have agreed that the surgery performed to treat 

the work injury caused her adhesive capsulitis.

Although a close call, Dr. Willis’s opinion, considered with Ms. Burns-Herrera’s 

testimony, tips the scales in her favor. The Court holds that State Industries must authorize 

surgery as recommended by Dr. Willis.

The question then becomes, who shall perform the procedure? Dr. Haslam testified 

that as a surgeon, he “like[s] to operate,” and he is willing to continue treating Ms. BurnsHerrera. Moreover, as State Industries’ attorney acknowledged, Dr. Haslam’s “timeline is 

not completed yet,” and he did not say he would “never” do surgery, but “now” he does 

not recommend it. Ms. Burns-Herrera has not seen Dr. Haslam since January 2021. Since 

then, his opinion might have changed.

At the interlocutory stage of a case, where the authorized physician remains willing 

to treat an injured worker, the employee is not entitled to a new authorized treating 

physician. Baker v. Electrolux, 2017 TN Wrk. Comp. App. Bd. LEXIS 65, at *8-9 (Oct. 

20, 2017). Ms. Burnes-Herrera offered no legal authority to justify her proposed 

designation of Dr. Willis as the authorized physician; she merely expressed dissatisfaction 

with Dr. Haslam. This is an insufficient reason under the law, and Dr. Haslam remains her 

authorized treating physician.

IT IS, THEREFORE, ordered as follows:

1. State Industries shall authorize Ms. Burns-Herrera to return to Dr. Haslam. It shall 

further authorize Dr. Haslam to perform the recommended surgery. If, however, he 

is unwilling to do so, State Industries shall offer a panel of orthopedic surgeons

willing to treat Ms. Burns-Herrera.
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2. A status hearing is set for August 29, 2022, at 9:45 a.m. Central Time. The parties

must dial (615) 532-9552 or (866) 943-0025 to participate.

3. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance 

with this Order must occur no later than seven business days from the date of entry 

of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3). The 

Insurer or Self-Insured Employer must submit confirmation of compliance with this 

Order to the Bureau by email to WCCompliance.Program@tn.gov no later than the 

seventh business day after entry of this Order. Failure to submit the necessary 

confirmation within the period of compliance might result in a penalty assessment 

for non-compliance. For questions regarding compliance, please contact the 

Workers’ Compensation Compliance Unit via email at 

WCCompliance.Program@tn.gov.

ENTERED June 21, 2022.

________________________________________

JUDGE KENNETH M. SWITZER

Court of Workers’ Compensation Claims

APPENDIX

Technical Record:

1. Petition for Benefit Determination

2. Dispute Certification Notice

3. Hearing Request

4. Notice of Amended Witness List for Expedited Hearing

5. Pretrial Order

6. Employee’s Pretrial Brief

7. Employer’s Trial Brief

8. Employer’s Witness and Exhibit List

9. Employer’s Reply Brief

Evidence:

1. Affidavit

2. Joint Exhibit List-Medical Proof

3. Joint Stipulation, February 9, 2022

4. Notice of Stipulations, May 11, 2022

5. Petition for Benefit Determination
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CERTIFICATE OF SERVICE

I certify that a copy of this Order was sent as indicated on June 21, 2022.

Name Certified 

Mail

Regular 

mail

Email Sent to

Stephan Karr, Cindy 

Harris, Employee’s 

attorneys

X Steve@flexerlaw.com

Cindy@flexerlaw.com

Lee Anne Murray, 

Taylor Pruitt, 

Employer’s 

attorneys

X leeamurray@feeneymurray.com

trp@feeneymurray.com

jessica@feeneymurray.com

Madeline@feeneymurray.com

_______________________________________

PENNY SHRUM, CLERK

Court of Workers’ Compensation Claims

WC.CourtClerk@tn.gov
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.

Expedited Hearing Order Right to Appeal:

If you disagree with this Expedited Hearing Order, you may appeal to the Workers’ 

Compensation Appeals Board. To appeal an expedited hearing order, you must:

1. Complete the enclosed form entitled: “Notice of Appeal,” and file the form with the 

Clerk of the Court of Workers’ Compensation Claims within seven business days of the 

date the expedited hearing order was filed. When filing the Notice of Appeal, you must 

serve a copy upon all parties. 

2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten 

calendar days after filing of the Notice of Appeal. Payments can be made in-person at 

any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the 

alternative, you may file an Affidavit of Indigency (form available on the Bureau’s 

website or any Bureau office) seeking a waiver of the fee. You must file the fullycompleted Affidavit of Indigency within ten calendar days of filing the Notice of 

Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will 

result in dismissal of the appeal.

3. You bear the responsibility of ensuring a complete record on appeal. You may request 

from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of 

the proceedings is to be filed, a licensed court reporter must prepare the transcript and file 

it with the court clerk within ten business days of the filing the Notice of 

Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both 

parties within ten business days of the filing of the Notice of Appeal. The statement of 

the evidence must convey a complete and accurate account of the hearing. The Workers’ 

Compensation Judge must approve the statement before the record is submitted to the 

Appeals Board. If the Appeals Board is called upon to review testimony or other proof 

concerning factual matters, the absence of a transcript or statement of the evidence can be 

a significant obstacle to meaningful appellate review.

4. If you wish to file a position statement, you must file it with the court clerk within ten

business days after the deadline to file a transcript or statement of the evidence. The 

party opposing the appeal may file a response with the court clerk within ten business 

days after you file your position statement. All position statements should include: (1) a 

statement summarizing the facts of the case from the evidence admitted during the 

expedited hearing; (2) a statement summarizing the disposition of the case as a result of 

the expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an 

argument, citing appropriate statutes, case law, or other authority.
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082 

NOTICE OF APPEAL 

Tennessee Bureau of Workers’ Compensation

www.tn.gov/workforce/injuries-at-work/ 

wc.courtclerk@tn.gov | 1-800-332-2667 

Docket No.: ________________________

State File No.: ______________________ 

Date of Injury: _____________________ 

___________________________________________________________________________ 

Employee

v.

___________________________________________________________________________ 

Employer

Notice is given that ____________________________________________________________________ 

[List name(s) of all appealing party(ies). Use separate sheet if necessary.]

appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the 

Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date filestamped on the first page of the order(s) being appealed):

□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________

□ Compensation Order filed on__________________ □ Other Order filed on_____________________

issued by Judge _________________________________________________________________________. 

Statement of the Issues on Appeal 

Provide a short and plain statement of the issues on appeal or basis for relief on appeal: 

________________________________________________________________________________________

________________________________________________________________________________________

________________________________________________________________________________________

________________________________________________________________________________________

Parties

Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee 

Address: ________________________________________________________ Phone: ___________________ 

Email: __________________________________________________________ 

Attorney’s Name: ______________________________________________ BPR#: _______________________ 

Attorney’s Email: ______________________________________________ Phone: _______________________ 

Attorney’s Address: _________________________________________________________________________ 

* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082 

Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________ 

Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee 

Appellee’s Address: ______________________________________________ Phone: ____________________ 

Email: _________________________________________________________ 

Attorney’s Name: _____________________________________________ BPR#: ________________________ 

Attorney’s Email: _____________________________________________ Phone: _______________________ 

Attorney’s Address: _________________________________________________________________________ 

* Attach an additional sheet for each additional Appellee *

CERTIFICATE OF SERVICE 

I, _____________________________________________________________, certify that I have forwarded a 

true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described 

in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this 

case on this the __________ day of ___________________________________, 20 ____. 

 ______________________________________________ 

[Signature of appellant or attorney for appellant]