1

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT NASHVILLE

Paul Hensley, ) Docket No. 2021-06-0183 

Employee, )

v. )

Amazon.com Services, LLC, ) State File No. 102262-2020

 Employer, )

And )

American Zurich, Inc., ) Judge Kenneth M. Switzer

 Carrier. )

EXPEDITED HEARING ORDER DENYING REQUESTED RELIEF

Paul Hensley seeks an order that Amazon.com Services, LLC authorize shoulder 

surgery performed by Dr. Kyle Joyner. Amazon opposed the request, relying on a 

noncertification from a utilization review physician upheld by the Bureau’s Medical 

Director, as well as updated records from Dr. Joyner. The Court held a hearing on June 

17, 2021. Because the medical proof does not convey Dr. Joyner’s current opinion on the 

need for surgery, the Court denies Mr. Hensley’s request at this time.

History of Claim

Mr. Hensley alleged that on November 3, 2020, he injured his left shoulder while 

working for Amazon.

1

 He received authorized treatment at an occupational clinic. The 

provider referred Mr. Hensley to orthopedist Dr. Kyle Joyner, ordered an MRI and physical 

therapy, and placed him on restrictions.

Mr. Hensley first saw a nurse practitioner at Dr. Joyner’s office in late November. 

She retained the work restrictions, and Mr. Hensley underwent an injection. He returned 

to Dr. Joyner’s office in December, reporting that the injection did not bring significant 

improvement and physical therapy had not been very effective. Dr. Joyner diagnosed a 

1 Mr. Hensley testified that he injured his neck as well, and that treatment for it has been denied. However, 

that issue was not raised at this hearing. 

FILED

Jun 21, 2021

10:36 AM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS
2

tear of the left glenoid labrum and tendinitis of the rotator cuff and agreed with the 

restrictions. At the next visit in early February, Mr. Hensley’s shoulder was still painful. 

Dr. Joyner diagnosed a presumptive labral tear and recommended a left-shoulder 

arthroscopy.

Amazon submitted the recommendation to utilization review. An orthopedic 

surgeon reviewed the MRI and Dr. Joyner’s office notes. In his report, the reviewer wrote 

that the left-shoulder arthroscopy/arthrotomy was not medically necessary because “the 

claimant’s conservative treatment to date has been minimal.” He attached the ODG 

Guidelines 2021, “Surgery for SLAP Lesions, Shoulder Conditions,” which states that 

surgery is recommended “for persistent symptoms following 6 months of conservative 

treatment.” The Bureau’s Medical Director agreed with the noncertification.

Dr. Joyner wrote a letter on March 5, 2021, stating in relevant part that the surgery 

recommendation “was made given failure of conservative care.”

However, at an April 28 visit ̶the last time that Mr. Hensley saw the doctor ̶Dr. 

Joyner noted that Mr. Hensley reported improvement in his symptoms. He wrote that Mr. 

Hensley had changed jobs to one that requires “significantly reduced physical demand.” 

Dr. Joyner noted, “[O]ccasional catching, but overall pain is decreased and he is able to 

use the arm fairly normally with his daily activity.” On exam, he observed improved range 

of motion, although he saw some discomfort with “compression rotation, but no frank 

instability.” Mr. Hensley felt “catching” with repeated circumduction of his shoulder. Dr. 

Joyner recorded good strength in the deltoid and improved strength in the rotator cuff. The 

doctor removed the work restrictions and set an appointment two months out. The note

did not mention surgery.

For his part, Mr. Hensley testified that he participated in physical therapy on the 

recommendations of the authorized providers but recently switched to an at-home regimen. 

Mr. Hensley has difficulty sleeping due to shoulder pain. He also cannot lift his grandchild 

or participate in hobbies that require physical activity.

As for the most recent visit with Dr. Joyner, Mr. Hensley testified that the doctor 

“recommended that we put off the surgery and see if there’s any more improvement.” Mr. 

Hensley believes that surgery is still “on the table” and will be discussed again at the next 

appointment. On cross-exam, he said that he was released to full-duty “for the current 

job;” Mr. Hensley has changed employers and is no longer required to perform any physical 

duties. He would undergo surgery if it were possible.

Findings of Fact and Conclusions of Law

Under the Workers’ Compensation Law, the employer shall provide medical and 

surgical treatment “made reasonably necessary by accident[.]” Tenn. Code Ann. § 50-6-
3

204(a)(1)(A) (2020). Mr. Hensley bears the burden of proving that the proposed surgery

is reasonable and necessary. Further, since this an expedited hearing, he must present 

sufficient evidence from which this Court might determine he is likely to prevail at a 

hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1); McCord v. Advantage

Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). 

Tennessee Code Annotated section 50-6-204(a)(3)(H) provides that any treatment 

recommended by a referral physician “shall be presumed to be medically necessary for 

treatment of the injured employee.” Here, Dr. Joyner’s recommendations are presumed 

medically necessary.

Dr. Joyner’s written recommendation in February was for surgery. However, at the 

most recent visit in April, Dr. Joyner noted that Mr. Hensley reported significant 

improvement, and he removed the work restrictions. Importantly, the note is silent 

regarding surgery.

The Tennessee Supreme Court has held that “[t]he employee’s own assessment of 

[his] physical condition and resulting disability is competent testimony that should be 

considered[.]” McIlvain v. Russell Stover Candies, Inc., 996 S.W.2d 179, 183 (Tenn. 

1999). Mr. Hensley credibly testified that his shoulder remains painful and has affected 

his activities of daily living. He believes that surgery is still “on the table.” But the April 

note simply does not support that contention. “Parties and their lawyers cannot rely solely 

on their own medical interpretations of the evidence to successfully support their 

arguments. Lurz v. Int’l Paper Co., 2018 TN Wrk. Comp. App. Bd. LEXIS 8, at *16 (Feb. 

14, 2018).

The Court finds no current recommendation for surgery from Dr. Joyner. Therefore, 

on this record, Mr. Hensley is not likely to succeed at a hearing on the merits regarding the 

reasonable necessity of surgery. His request is denied at this time.

This case is set for a status hearing on July 19, 2021, at 9:45 a.m. Central. You 

must call 615-532-9552 or toll-free at 866-943-0025 to participate. Failure to call might

result in a determination of the issues without your participation.

ENTERED June 22, 2021.

_____________________________________

JUDGE KENNETH M. SWITZER

Court of Workers’ Compensation Claims
4

APPENDIX 

Exhibits:

1. Affidavit of Paul Hensley

2. Employee’s Exhibits for Expedited Hearing

A. First Report of Injury

B. Dr. Joyner causation letter

C. Concentra records

D. MRI

E. Dr. Joyner records

F. Physical therapy records

3. Utilization review

4. Dr. Joyner records, April 28, 2021

Technical record:

1. Petition for Benefit Determination

2. Dispute Certification Notice and Employer’s Position Statement

3. Request for Expedited Hearing

4. Pretrial Hearing Order

CERTIFICATE OF SERVICE

I certify that a copy of the Expedited Hearing Order was sent as indicated on June 

22, 2021.

Name Certified 

Mail

Regular 

Mail

Email Sent to:

Stephan Karr, 

employee’s attorney

X steve@flexerlaw.com

nancy@flexerlaw.com

Troy Hart, Matthew 

Morris, employer’s 

attorneys

X wth@mijs.com

mbmorris@mijs.com

_____________________________________

Penny Shrum, Clerk of Court

WC.CourtClerk@tn.gov
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]