### INTHE COURT OFWORKERS' COMPENSATIONCLAIMS ATCHATTANOOGA
SISOUPHAHNTHYSA VATHDY, Employee, 

### v. BRIDGESTONEAMERICASTIRE OPERATIONS, Employer, And OLDREPUBLIC INS. CO./ SEDGWICKCMS InsuranceCarrier/TP A. ) DocketNo.: 2015186647 ) 

### ) StateFile Number: 87347 2014 ) 

### ) JudgeAudreyA. Headrick ) ) ) ) ) )


### EXPEDITEDHEARING ORDERDENYINGREQUESTEDBENEFITS (RECORDREVIEWONLY)

This claim came before the Court upon a Request for Expedited Hearing filed by the employee, Sisouphahn Thysavathdy. This request is for an on-the-record determination ofMr. 

### Thysavathdy's claim for medical and temporary disability benefits. The central legal issue is whether the evidence is sufficient for the Court to determine that Mr. 

### Thysavathdy is likely to prevail at a hearing on the merits. Based on the evidence before it at this time, the Court finds Mr. 

### Thysavathdy is unlikely to succeed in proving causation at a Compensation Hearing and denies his request for temporary disability andmedicalbenefits.1 

### HistoryoftheClaim
Mr. 

### Thysavathdy is a fifty-four-year-old resident of La Vergne, Rutherford County, Tennessee. (T.R. 1.) 

### He seeks medical and temporary disability benefits for a bilateral shoulder injury that allegedly occurred on July 15, 2014, while pulling tires as a factory worker atBridgestone. /d.


### On September 11, 2014, Mr. 

### Thysavathdy sought treatment at Walgreens walk-in clinicregarding a cough. However, he also reported he "[w]orks atBridgestone andpulls ties all day. Reports pain in the arm left [illegible] during a cough and right arm due to

1 A complete listing ofthe technical record and exhibits is attachedtothis Order as an appendix. 1overuse." (Ex. 1 at 2.) On September 24, 2014, Mr. Thysavathdy complained of shoulder pain to his cardiologist, Dr. Steven Humphrey. He told Dr. Humphrey that "[s]ince [Mr. Thysavathdy] returned to work he has had severe left upper extremity and axillarypain adjacenttothe side oflCD implant." (Ex. 1at4.) Dr. Humphrey orderedxrays for Mr. Thysavathdy's chest and left upper extremity and instructed him to return to see him in a week. !d. The left shoulder x-ray taken on September 24, 2014, indicated "mild degenerative change."
Mr. Thysavathdy subsequently gave notice to Bridgestone of an alleged leftshoulder injury. 2 On November 19, 2014, he selected Dr. Vincent Novak with Premier Orthopaedics from the panel ofphysicians provided by Bridgestone. On December 29, 2014, Mr. Thysavathdy saw Dr. Vincent Novak for left shoulder pain with his son in attendance. (Ex. 2 at 002.) Dr. Novak noted, "[o]verall, the patient appears to verbally communicate effectively." !d. The case manager attending the appointment, Laila Dickerson, stated Mr. Thysavathdy did not report the injury to Bridgestone until November 2014. !d. Ms. Dickerson alsotold Dr. NovakthatBridgestoneterminated Mr. Thysavathdy in September2014 due to "attendance issues." !d. During the December 29, 2014 appointment, Mr. Thysavathdy attributed his left shoulder pain to hisjob at Bridgestone as a material handler. !d. He told Dr. Novak he pulledtires eightto twelvehours a day. !d. Dr. Novaknoted "[Mr. Thysavathdy] reports to me complaining of some slow progressive worsening of left shoulder/axillary pain over the last to [sic] 6 months with no known acute injury." !d

. Mr. Thysavathdy estimated the date ofonset as "July 15, 2014, though again he denies any specific acute injury (no specific mechanism, location, specific date/time)." !d. After reviewing Mr. Thysavathdy's past medical records, primarily Dr. Steven Johnson's records, and evaluating him, Dr. Novak diagnosedhim with "[p]ossiblebursitis, possible sprain/strain, possible internal derangement (such as rotator cuff/labraltear)

... [p]ossiblereferredpain from the left chest/implanted lCD prior." !d. at 003. He ordered physical therapy, prescribed medication, assigned restrictions, and discussed the possibility ofordering a left-shoulder CTarthrogram. !d.
In his December29, 2014 officenote, Dr. Novak addressed causation. He opined: "[r]egarding causation, I am unable to identify any specific work-related injury to the patient's left shoulder-specifically as [Mr. Thysavathdy] is unable to identify any specific date/time, location or a specific/acute injury/mechanism, which precipitated his pain/problems. I understand and appreciatethat activities (including work) makehis pain worse."
OnJanuary 20, 2015, Bridgestone filed aNotice ofControversy. (Ex. 3.)

2The parties did not submit a First Report for consideration, so the exact date Mr. Thysavathdy provided notice is unclear. 2On March 11, 2015, Mr. Thysavathdy saw Dr. Roderick Vaughan with Tennessee Orthopaedic Alliance for his left shoulder and told him he received a Notice of Controversy. (Ex. 1at 11.) Mr. Thysavathdy indicatedhis "symptoms began in mid July when he was pulling a tire at work." !d. Dr. Vaughan diagnosed him with "[l]eft shoulder pain; rotator cuff syndrome with radiographic evidence of moderate acromioclavicular and mild glenohumeral arthritis and clinical evidence of adhesive capsulitis." !d. Henotedhe discussed withMr

.Thysavathdy "thenatural history ofthese assessments and potential for other occult internal derangement including but not limited to rotator cufftearing." !d. at 12. Dr. Vaughan gave Mr. Thysavathdy a subacromial injection and discussedthe option ofreferring him for a CT arthrogram. !d.
On April 13, 2015, Mr. Thysavathdy returned to see Dr. Vaughan. !d. at 14. He reported only a 5% improvement in his left-shoulder pain. !d. Mr. Thysavathdy also reported that his cardiologist released him to return to work. !d. However, he told Dr. Vaughan Bridgestone terminated his position

. !d

. Due to Mr. Thysavathdy's continued symptoms, Dr. Vaughan ordered a left-shoulder CT arthrogram. !d.
On April 27, 2015, Mr. Thysavathdy followed up with Dr. Vaughan regarding his CT arthrogram results from April 16, 2015. !d. at 17. Dr. Vaughan stated the findings indicated "mild chronic thickening ofthe supraspinatus tendon," and the findings were otherwise "within normal [range]." !d. Mr. Thysavathdy told Dr. Vaughan "his injury occurred acutelywith a moment ofpulling atire." !d.
On April 28, 2015, Dr. Vaughan responded to a causation letter dated April 8, 2015, from counsel for Mr. Thysavathdy. !d. at 19. He opined that, "[a]lthough Mr. Thysavathdy'spacemakerplacement may possibly result in referredpainto the shoulder, I feel that he does have a problem specific to the shoulder." !d. Due to Mr. Thysavathdy's pacemaker, Dr. Vaughan stated it precluded an MRI scan. !d. Although the CT arthrogram did not show full-thickness rotator cufftear, Dr. Vaughan opined Mr. Thysavathdy had "evidence ofa rotator cuffsyndrome with associated degenerativejoint disease, evidence ofadhesive capsulitis, and potential for aneurologic etiology." !d.
In his April 28, 2015 response, Dr. Vaughan addressed causation of Mr. Thysavathdy's left-shouldercondition. He opined as follows:
In summary, I estimate thatMr. Thysavathdy's degenerativejointdisease is pre-existing; however, he has indicated the onset ofhis symptoms with a specificpulling event. As such, there is potential forpartial rotator cufftear as well as a reasonable probability that a strain event may contribute to adhesive capsulitis and/or a regional pain syndrome. I estimate it is probable that in correlation with Mr. Thysavathdy's provided history and findings thathis shoulder syndrome is work-related.
3ld. 

### at 19-20.
Mr. Thysavathdy asks the Courtto order medical benefits and temporary disability benefits. Bridgestone asks the Court to deny Mr. 

### Thysavathdy's claim based upon the lack of medical causation pursuant to Tennessee Code Annotated section 50-6- 102(13)(E) (2015). Mr. 

### Thysavathdy's undisputed average weekly wage was $675.52, which equates to aweekly compensationrate of$450.37.
On July 13, 2015, Mr. 

### Thysavathdy filed a Petition for Benefit Determination seeking medical and temporary disability benefits. (T.R. 1.) The parties did not resolve the disputed issues through mediation, and the Mediating Specialist filed a Dispute Certification Notice on August 3, 2015. (T.R. 2.) Mr. 

### Thysavathdy filed a Request for Expedited Hearing based upon the record on September 11, 2015. (T.R. 3.) On September 25, 2015, the ChiefJudge transferred this case to the undersigned Workers' Compensation Judge. (T.R. 4.) On October 16, 2015, Bridgestone filed a Motion for Evidentiary Hearing and a Motion to Strike Medical Records. (T

.R. 5 and 6.) On October 20, 2015, this Court entered an Order Denying Bridgestone's Motion for Evidentiary Hearing and Motion to StrikeMedical Records. (T.R. 7.) Findings ofFact and Conclusions ofLaw


### The Workers' Compensation Law shall not be remedially or liberally construed in favor of either party but shall be construed fairly, impartially and in accordance with basic principles of statutory construction favoring neither the employee nor employer. Tenn. Code Ann. § 50-6-116 (2014). The employee in a workers' compensation claim has the burden ofproofon all essential elements ofa claim. Tindall v. Waring ParkAss'n, 725 S.W.2d 935, 937 (Tenn. 1987);3 

### Scott v. Integrity Staffing Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn. Workers' Comp. App. Bd. Aug. 18, 2015). An employee need not prove every element ofhis or her claim by a preponderance ofthe evidence in order to obtain relief at an expedited hearing. McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015). At an expedited hearing, an employee has the burden to come forward with sufficientevidencefrom whichthe trial court can determine that the employee is likely to prevail at ahearing on the merits. ld.

3The Tennessee Workers' Compensation Appeals Board allows reliance on precedent from the Tennessee Supreme Court "unless it is evident that the Supreme Court's decision or rationale relied on a remedial interpretation ofpreJuly 1, 2014 statutes, that itrelied on specific statutory language no longercontained in the Workers' Compensation Law, and/or that it relied on an analysis that has since been addressed by the general assembly through statutory amendments." McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *13 n.4 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015). 4

### Mr. Thysavathdy Failedto DemonstrateaLikelihoodof Success on theMerits at Trial
In order for an injury to be compensable, it must be accidental. Under the Tennessee Workers' Compensation Law, an injury is accidental "only ifthe injury is causedby a specific incident, or set ofincidents, arisingprimarily out ofand inthe course and scope ofemployment, and is identifiable by time and place ofoccurrence." Tenn. Code Ann. § 50-6-102(13)(A) (2014). "An injury 'arises primarily out of and in the course and scope ofemployment' only ifit has been shown by a preponderance ofthe evidence that the employment contributed more than fifty percent (50%) in causing the injury, considering all causes[.]"Tenn. CodeAnn.§ 50-6-102(13)(B) (2014). Likewise, an aggravation ofa pre-existing condition is compensable on if"it can be shown to a reasonable degree ofmedical certainty thatthe aggravation arose primarily out ofand in the course and scope ofemployment." Tenn. CodeAnn.§ 50-6-102(13)(A) (2014). The legislature defined "[s]hown to a reasonable degree ofmedical certainty" to mean the physician must opine "it is more likely than not considering all causes, as opposed to speculation or possibility." Tenn. Code Ann. § 50-6-102(13)(D) (2014). Further, thepanelphysician's opinion regarding causation "shall bepresumed correct but this presumption shall be rebuttable by a preponderance ofthe evidence." Tenn. Code Ann. §50-6-102(13)(E) (2014).
The records submitted document that Dr. Vincent Novak is a panel-selected physician. Dr. Roderick Vaughan began treating Mr. Thysavathdy after he received the Notice of Controversy filed by Bridgestone. Pursuant to Tenn. Code Ann. § 50-6- 102(13)(E) (2014), Dr. Novak's opinion is entitled to the presumption ofcorrectness on the issue ofcausation. Regardingthe date ofhis alleged injury, Mr. Thysavathdy estimated for Dr. Novak the date ofonset as "July 15, 2014, though again he denies any specific acute injury (no specific mechanism, location, specific date/time)." (Ex. 1 at 002.) Dr. Novak diagnosed Mr. Thysavathdy with "[p]ossible bursitis, possible sprain/strain, possible internal derangement (such as rotator cuff/labral tear)

... [p]ossible referred pain from the left chest/implanted lCDprior." ld. at 003. Further, Dr. Novak addressed causation opining: "I am unable to identify any specific work-related injury to the patient's left shoulderspecifically as he is unable to identify any specific date/time, location or a specific/acute injury/mechanism, which precipitated his pain/problems. I understand and appreciate that activities (includingwork) makehis painworse." 

### !d. at 004.
When Mr. Thysavathdy saw Dr. Vaughn, he told him his "symptoms began in mid-July when he was pulling a tire at work." (Ex. 1 at 11) The left-shoulder CT arthrogram did not show full-thickness rotator cuff tear. ld. Regarding medical causation, Dr. Vaughan opined:

5Mr. Thysavathdy's degenerativejoint disease is pre-existing; however, he has indicated the onset ofhis symptoms with a specific pulling event. As such, there is potential for partial rotator cufftear as well as a reasonable probability that a strain eventmay contributeto adhesive capsulitis and/or a regional pain syndrome. I estimate it is probable that in correlation with

. Mr. Thysavathdy's provided history and findings that his shoulder syndrome is work-related.
!d. at 19-20. Regardless ofwhetherthe Courtrelies upon Dr. Novak's opinionthathe could not identify any specific work-related injury or Dr. Vaughan's opinion that Mr. Thysavathdy's left-shoulder syndrome is work-related, neither opinion satisfies the requirement of Tennessee Code Annotated section 50-6-102(13) (2014). Dr. Novak opined he was unable to identify any specific work-related injury to Mr. Thysavathdy's left shoulder. Although Dr. Vaughan stated that Mr. Thysavathdy's left-shoulder condition is work-related, he prefaced his opinion with such terminology as "potential;" "reasonableprobability;" "maycontribute;" and, "I estimate it is probable." Essentially, the same statutory

.standard applies whether an injury is an acute, specific injury or an aggravation of a pre-existing injury. Either way, the injury must have arisen "primarily out of and in the course and scope of employment." !d. Additionally, an injury causes the need for medical treatment within a reasonable degree of medical certainty if 

### "in the opinion ofthe physician, it is more likely than not considering all causes, as opposed to speculation or possibility." Tenn. Code Ann. § 50- 6-102(13)(D) (2014) (emphasis added). In Mr. Thysavathdy's case, the Court finds Dr. Vaughan's opinion falls within the realm of "speculation or possibility" and is insufficient at this time to rebut the presumption ofcorrectness ofDr. Novak's opinion. !d. Therefore, Mr. Thysavathdy has not demonstrated that he is likely to prevail at a hearing onthe merits.
1. This matter is set for an Initial (Scheduling) Hearing on January 20, 2016, at 10:00 a.m. Eastern Time.


### 2. Unless interlocutory appeal or 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) (2014). The Insurer or Self-Insured Employer must submit confirmation of compliance with this Order to the Bureau of

. Workers' Compensation by email to WCCompliance.Program@tn.govno laterthan theseventh business dayafter entry ofthis Order. Failure to submit the necessary confirmation within the period ofcompliance mayresultin a penaltyassessmentfor non-compliance.
63. For questions regarding compliance, please contact the Workers' Compensation Compliance Unit via email to WCCompliance.Program@tn.gov or by calling (615) 253-1471 or (615) 532-1309.
ITIS SO ORDERED.


### ENTEREDthis the 18thdayofNovember, 2015.

Initial (Scheduling) Hearing:
A Scheduling Hearing has been set on January 20, 2016, at 10:00 a.m. Eastern Time, with 

### Judge Audrey A. Headrick, Court ofWorkers' Compensation Claims. You must call 423-634-0164 or toll free at 855-383-0001 to participate in the Initial Hearing.
Please Note: You must call in on the scheduled date/time to participate. Failure to call in may result in a determination of the issues without yourfurtherparticipation.
Rightto Appeal:
Tennessee Law allows anyparty who disagrees with this Expedited Hearing Order to appeal the decision to the Workers' CompensationAppeals Board. To file aNotice of Appeal, you must:
I. Completethe enclosed form entitled: "ExpeditedHearingNotice ofAppeal."
2. File the completed form with the Court Clerk 

### within seven business days ofthe date the Workers' CompensationJudge enteredthe ExpeditedHearing Order.
3. Serve a copy oftheExpeditedHearingNotice ofAppeal uponthe opposingparty.
4. The appealing party is responsible for payment ofa 

### filing fee in the amount of $75.00. Within ten calendar days after the filing ofa notice ofappeal, payment mustbereceived by check, money order, orcreditcardpayment. Payments canbe made in person at any Bureau office or by United States mail, hand-delivery, or
7

### other delivery service. In the alternative, the appealingparty may file an Affidavit ofIndigency, on a form prescribed by the Bureau, seeking a waiver ofthe filing fee. The Affidavit ofIndigency may be filed contemporaneously with the Notice ofAppeal ormust be filed within ten calendar days thereafter. The Appeals Board will consider the Affidavit ofIndigency and issue an Order granting or denying the request for a waiver of the filing fee as soon thereafter as is practicable. Failure to timely pay the filing fee or file the Affidavit of Indigency in accordance with this section shall result in dismissal of the appeal.


### 5. The parties, having the responsibility of ensuring a complete record on appeal, may request, from the Court Clerk, the audio recording of the hearing for the purpose ofhaving a transcript prepared by a licensed court reporter and filing it with the Court Clerk within ten calendar days of the filing of the Expedited Hearing Notice ofAppeal. Alternatively, the parties may file ajoint statement of the evidence within ten calendar days of the filing of the Expedited Hearing Notice of Appeal. The statement of the evidence must convey a complete and accurate account of what transpired in the Court of Workers' Compensation Claims and must be approved by the workers' compensation judge before the record is submittedto the Clerk oftheAppeals Board.
6. Ifthe appellant elects to file a position statement in support ofthe interlocutory appeal, the appellant shall file such position statementwith the Court Clerk within three business days ofthe expiration ofthe time to file atranscript or statement of the evidence, specifYing the issues presented for review and including any argument in support thereof. A party opposing the appeal shall file a response, if any, with the Court Clerkwithinthree business days ofthe filing ofthe appellant's position statement. All position statements pertaining to an appeal of an interlocutory order should include: (1) a statement summarizing the facts ofthe case from the evidence admitted during the expedited hearing; (2) a statement summarizing the disposition ofthe case as a result ofthe expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an argument, citing appropriate statutes, case law, or other authority.

8APPENDIX
Exhibits: 1. Table ofContents ofMedicalRecords filed by Mr. Thysavathdy 2. Chronological Table ofContents filed byBridgestone 3. Notice ofDenial ofControversy 4. Wage Statement 5. Panel
Technicalrecord: 1. Petition for BenefitDetermination, filed July 13, 2015 2. Dispute CertificationNotice, filed August 3, 2015 3. Request for Expedited Hearing, filed September 11, 2015 4. Transfer Order, filed September25, 2015 5. Motion for Evidentiary Hearing, filed October 16, 2015 6

. Motionto StrikeMedical Records, filed October 16, 2015 7. Order Denying Bridgestone's Motion for Evidentiary Hearing and Motion to StrikeMedicalRecords, filed October20, 2015

9CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Order Denying Requested Benefits was sentto the following recipients by the following methods ofservice on this the 18thday ofNovember, 2015.

Name Certified First Via Mail Class Fax Mail Steve C. Norris

Leslie F. Bishop Fax Via Email Address Number Email

X steve(a),stevecnorris.com

X**lbi sho** **@. ewisthomason.com** 

Penny Shrum,ClerkofCourt CourtofWorkers' CompensationClaims WC.CourtClerk@tn.gov

10