TENNESSEE BUREAU OF WORKERS’ COMPENSATION 

WORKERS’ COMPENSATION APPEALS BOARD 

Employee: Sherry Hale ) Docket No. 2015-06-0150 

) 

Employer: Prime Package & Label, LLC ) State File No. 22815-2015 

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 16th day of July, 2015. 

Name Certified 

Mail 

First Class 

Mail 

Via 

Fax 

Fax 

Number 

Via 

Email 

Email Address 

Sherry Hale X X shale1865@gmail.com 

 804 Virginia Ave. 

 Nashville, TN 37216 

Robyn Owens X robyn.owens@libertymutual.com 

Kenneth M. Switzer, 

Chief Judge

 X Via Electronic Mail

Penny Shrum, Clerk, 

Court of Workers’ 

Compensation Claims

 X Penny.Patterson-Shrum@tn.gov

 

Matthew Salyer

Clerk, Workers’ Compensation Appeals Board

220 French Landing Dr., Ste. 1-B 

Nashville, TN 37243 

Telephone: 615-253-1606 

Electronic Mail: Matthew.Salyer@tn.gov 
Employee: Sherry Hale 

Employer: Prime Package & Label, LLC 

Appeal from the Court of Workers' 

Compensation Claims 

Kenneth M. Switzer, Chief Judge 

) Docket No. 2015-06-0150 

) 

) State File No. 22815-2015 

) 

) 

) 

) 

) 

Mfirmed and Remanded -Filed July 16, 2015 

OPINION AFFIRMING AND REMANDING INTERLOCUTORY ORDER OF 

COURT OF WORKERS' COMPENSATION CLAIMS 

This interlocutory appeal involves an employee with a preexisting shoulder condition 

who alleges to have reinjured her shoulder at work. The employee sought medical care 

through private insurance and continued treating with her selected physician after giving 

notice of her alleged work injury. Following surgical repair ofthe employee's shoulder, 

the employer denied the claim contending the employee did not meet her burden of 

proving that the employment caused her injury. The trial court determined that the 

employee established sufficient proof of an injury, but did not produce sufficient proof of 

causation to establish the injury to be compensable. Stating that the employee has a right 

to a causation opinion, the trial court ordered the employer to authorize an evaluation so 

the treating physician could provide an opinion on causation. The trial court denied the 

employee's request for additional medical and temporary disability benefits. The 

employee has appealed. Having carefully reviewed the record, we affirm the denial of 

additional medical and temporary benefits and remand the case for further proceedings as 

may be necessary. 

1 
Label, LLC 

Factual and Procedural Background 

Sherry Hale ("Employee") is a fifty-year-old resident of Davidson County, 

Tennessee. She was hired by Prime Package & Label, LLC ("Employer") in October 

2013, as a rewinder. Her work duties required that she lift and remove rolls of product, 

which she stated required her to lean her shoulder against equipment when she pulls rolls 

of product from the equipment. Several months before she began working with 

Employer, Employee experienced symptoms in her right shoulder and sought and 

received medical care in January 2013 from Dr. Malcolm Baxter. He identified two 

conditions in his assessment including "Rotator Cuff Tear, Non-Trauma," and 

"Impingement Syndrome." His "Plan" included a steroid injection in Employee's 

shoulder and an MRI study. A January 28, 2013 MRI study indicated "rotator cuff 

tendinosis without tendon tear," and "[p]robable small tear of the posterosuperior 

labrum." Upon Employee's return to Dr. Baxter on February 1, 2013, the doctor noted 

that "rhler MRI demonstrates tendinitis with no rotator cuff tear." Dr. Baxter 

administered a second steroid injection and additionally prescribed an oral steroid and 

physical therapy. Employee concedes that when she began working with Employer on 

October 23, 2013, she suffered from tendinitis in her right shoulder. However, according 

to the trial court's order, she testified "she was 'fully functioning' with her shoulder, and 

could not have performed her job duties otherwise."1 

In April 2014 Employee experienced increased pain in her right shoulder that 

prompted her to seek additional medical care. She testified she received a steroid 

injection; however, no medical records addressing the care Employee received in April 

2014, or an April 2014 steroid injection, were admitted into evidence at the June 2015 

expedited hearing. Employee testified that in October 20 14 she began experiencing what 

she described as a "totally different" pain in her right shoulder, prompting her to see her 

primary care physician. In a March 19, 2015 Petition for Benefit Determination, 

Employee alleges that in October 2014, "I noticed a big difference in pain from 

tendonitis[.] I ask[ed] my primary physician to please direct me to [an] orthopedic to see 

1 No transcript of the proceedings in the trial court or statement of the evidence was submitted by the pro se 

appellant. We have gleaned the facts from the trial court's expedited hearing order and the exhibits introduced at the 

June 15, 2015 expedited hearing. 

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consists of immobilization, PT, injections and medication .... 

49 year old healthy active right hand dominant Sherry Hale is 

here with a several year history of progressive pain in the 

right shoulder. In the past she has had three steroid 

injections. She had one that provided her with significant 

relief. The other two did not help. She has had exercises and 

medication. She has a physically demanding job and she is 

having a hard time performing there because of the shoulder 

pam. 

Dr. Kaelin recommended an MRI study, which was completed on November 7, 

2014. The MRI study revealed "tendinosis" and "non-distracted tear of the posterior 

labrum." Employee testified that on November 10, 2014, she informed her immediate 

supervisor, Barry Nichols, and two other individuals at Employer that her MRI indicated she had a labral tear in her right shoulder. Employer does not contest Employee's 

statement that she provided notice of the labral tear to her immediate supervisor. 

Employer did not provide Employee a panel of physicians or otherwise arrange for 

Employee to receive medical care for her alleged shoulder injury. Employee testified she 

filed a claim under her private health insurance for medical care for her shoulder. 

Employee testified that she continued working and that she had difficulty "lifting 

rolls" due to her pain. The trial court's order includes the following testimony by 

Employee: 

[T]he rolls with the UV coating off of it - I would have to lean my shoulder 

up against the machine just to be able to pull it off. I mean, it was terrible .. 

. . Even slicing the rolls, I would have to hold it right there [pointing to her 

right shoulder]. 

Employee testified that during the fourth week after she reported the injury, her employer 

gave her "the heaviest rolls to do .... They call them 'five ups.' It doesn't-- You can't get no more wide [sic] across them [sic] steel spools. . . . I did bad quality work that 

week because I was in so much pain lifting them [sic] rolls." Employee did not return to 

work after December 3, 2014. 

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Certificate" signed by Dr. Kaelin on March 26, 2015. The certificate indicates the 

document is a form provided by the Tennessee Department of Labor and Workforce 

Development, Unemployment Insurance Division, for the purpose of filing for 

unemployment insurance benefits. The form includes the question, "[w]as the injury or 

condition caused by the individual's last period of employment?" Dr. Kaelin circled "Y" 

indicating an affirmative response to the question. 

Employee filed a request for an expedited hearing on April29, 2015. The hearing 

was held on June 15, 2015. Employee testified that her injury happened "somehow," but 

she stated that she does not know how it occurred. She testified, without objection, that 

Dr. Kaelin indicated she currently needs additional treatment. Employee testified that 

when she saw Dr. Baxter on February 1, 2013, Dr. Baxter did not discuss a "probable 

labral tear" with her and only told her about tendinitis in her shoulder. 

On cross-examination, Employee testified she hurt her right shoulder before she 

began working with Employer when she fell while sleepwalking in late 2012. She 

conceded that when she first saw Dr. Kaelin she told him her shoulder pain lasted for 

"years," but she testified that was incorrect. She explained, "[w]hen you have a pain, it's 

hard to say how long you've had a pain," and "I'm not one to remember dates." 

Employee agreed there were no witnesses to her alleged work injury. 

Employee additionally conceded on cross-examination that she does not know 

when she became injured. She testified the pain from her tendinitis was in a different 

area of her shoulder than the pain from her alleged work injury. She testified, "[a ]ll I 

know is the pain is completely different from tendinitis. Completely." She testified the 

pain changed in October 2014, while she was "either at home or at work." In an effort to 

clarify this testimony, Employee further testified, "I was working third shift. I was either 

trying to go to sleep or work," and, "I was either sleeping or pulling on paper. Trying to 

sleep. It ... was very hard to do either one." 

On June 25, 2015, the trial court issued its order requiring Employer to authorize 

Dr. Kaelin to perform an evaluation of Employee's right shoulder "so that he may opine 

whether it is his belief, to a reasonable degree of medical certainty, that [Employee's] 

work ... contributed more than fifty percent (50%) in causing her need for medical 

treatment, considering all causes." The order further provided that "[i]n the event 

medical causation is established, [Employer] shall provide continuing reasonable and 

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disability benefits. Employer has not appealed. The record was provided to the Appeals 

Board on July 13, 2015. 

Standard of Review 

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

court's decision is statutorily mandated and limited in scope. Specifically, "[t]here shall 

be a presumption that the fmdings and conclusions of the workers' compensation judge 

are correct, unless the preponderance of the evidence is otherwise." Tenn. Code Ann. § 

50-6-239(c)(7) (2014). The limited circumstances warranting reversal or modification of 

a trial court's decision are specified in the statute: 

The workers' compensation appeals board may reverse or modify 

and remand the decision of the workers' compensation judge if the rights of 

any party have been prejudiced because fmdings, inferences, conclusions, 

or decisions of a workers' compensation judge: 

(A) Violate constitutional or statutory provisions; 

(B) Exceed the statutory authority of the workers' compensation 

judge; 

(C) Do not comply with lawful procedure; 

(D) Are arbitrary, capricious, characterized by abuse of discretion, or 

clearly an unwarranted exercise of discretion; or 

(E) Are not supported by evidence that is both substantial and 

material in the light of the entire record. 

Tenn. Code Ann. § 50-6-217(a)(3) (2015). In applying the standard set forth in 

subparagraph (E) above, courts have construed "substantial and material" evidence to 

mean "such relevant evidence as a reasonable mind might accept to support a rational 

conclusion and such as to furnish a reasonably sound basis for the action under 

consideration." Clay Cnty. Manor, Inc. v. State, Dep't of Health & Env't, 849 S.W.2d 

755, 759 (Tenn. 1993) (quoting Southern Ry. Co. v. State Bd. of Equalization, 682 

S.W.2d 196, 199 (Tenn. 1984)). Like other courts applying the standard embodied in 

section 50-6-217(a)(3), we will not disturb the decision of the trial court absent the 

limited circumstances identified in the statute. 

5 
Co. v. Watson, No. M2003-00975-WC-R3-CV, 2004 Tenn. LEXIS 451, at *6-7 (Tenn. 

Workers' Comp. Panel May 19, 2004) (citing Manufacturers Consolidation Serv., Inc., 

42 S.W.3d at 865): 

The appellant has the duty of preparing a record that conveys a fair, 

accurate and complete account of the proceedings in the trial court with 

respect to the issues on appeal. Tenn. R. App. P. 24(b ). We are provided 

with only the trial court's findings of facts and conclusions of law rendered 

from the bench and the exhibits introduced at the trial of this cause, which 

include three doctor's depositions. We do not have a record of the lay 

testimony presented to the trial court. In the absence of an adequate record 

on appeal, this Court must presume the trial court's rulings were supported 

by sufficient evidence. 

Without a transcript or a statement of the evidence, the Appeals Board cannot 

know what evidence was presented to the trial court beyond the exhibits that were 

admitted into evidence and the testimony as stated in the trial court's order. See Britt v. 

Chambers, No. W2006-00061-COA-R3-CV, 2007 Tenn. App. LEXIS 38, at *8 (Tenn. 

Ct. App. Jan. 25, 2007). When the review of a trial court's decision is accompanied by a 

presumption that the findings are correct, "it is essential that the appellate court be 

provided with a transcript of the trial proceedings or a statement of the evidence . . . . " 

!d. at *7. See also Estate of Cockrill, No. M2010-00663-COA-R3-CV, 2010 Tenn. App. 

LEXIS 754, at * 11-12 (Tenn. Ct. App. Dec. 2, 2010) ("In cases where no transcript or 

statement of the evidence is filed, the appellate court is required to presume that the 

record, had it been properly preserved, would have supported the action of the trial 

court."); Leek v. Powell, 884 S.W.2d 118, 121 (Tenn. Ct. App. 1994) ("In the absence of 

a transcript or a statement of the evidence, we must conclusively presume that every fact 

admissible under the pleadings was found or should have been found favorably to the 

appellee."). As noted by the Tennessee Court of Appeals, "[a]n incomplete appellate 

record is fatal to an appeal on the facts," Piper v. Piper, No. M2005-02541-COA-R3-CV, 

2007 Tenn. App. LEXIS 70, at * 11 (Tenn. Ct. App. Feb. 1, 2007), and a reviewing court 

"must conclusively presume that the evidence presented supported the facts as found by 

the trial court." Whitesell v. Moore, No. M2011-02745-COA-R3-CV, 2012 Tenn. App. 

LEXIS 894, at *10 (Tenn. Ct. App. Dec. 21, 2012). 

6 
right shoulder in October 2014," and that the November 7, 2014 MRI "revealed 

'tendinosis' and 'non-distracted tear of the posterior labrum."' The trial court notes that 

Employee credibly testified that when she started working for Employer she was "fully 

functioning" with her right shoulder, but began to experience a "totally different" degree 

of pain in October 2014, "and that the pain originated from a different location in her 

right shoulder." Furthermore, the trial court observed that "Dr. Kaelin unambiguously 

concluded that [Employee's] injury or condition was caused by her last period of 

employment." Based on Employee's testimony and the medical records, the trial court 

determined that Employee "has proven that she sustained an injury," and that she 

satisfied her burden of producing "sufficient evidence [of an injury] from which the trial 

judge could conclude that the employee is likely to prevail at a hearing on the merits." 

Thus, Employer was directed to authorize an evaluation so that Dr. Kaelin could provide 

an opinion on causation. Employer has not challenged this determination, and we need 

not address it. 

Although the trial court denied Employee's requests for additional medical and 

temporary disability benefits, which Employee challenges, we have been provided with 

no record of any testimony taken during the expedited hearing beyond what is included in 

the June 25, 2015 expedited hearing order. Nor have we been provided with a statement 

of the evidence. Under these circumstances, we must presume that the trial court's 

rulings were supported by sufficient evidence. 

Conclusion 

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

against the trial court's denial of additional medical and temporary disability benefits. 

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

identified in Tennessee Code Annotated section 50-6-217(a)(3) (2015). Accordingly, the 

trial court's decision is affirmed and the case is remanded for any further proceedings that 

may be necessary. 

David F. Hensley, Judg 

Workers' Compensation ppeals Board 

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