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TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

James Yarbrough ) Docket No. 2015-08-0574

 )

v. ) State File No. 48061-2015

 )

Protective Services Company, Inc., et al. )

 )

 )

Appeal from the Court of Workers’ )

Compensation Claims )

Jim Umsted, Judge )

Affirmed in Part, Vacated in Part, and Remanded - Filed May 27, 2016

In this second interlocutory appeal of this case, the employee alleges suffering an injury 

to his shoulder after striking his shoulder on a cabinet. The parties dispute whether the 

employee provided timely notice of the injury and whether surgery recommended by an 

authorized treating physician is causally related to the work incident. Following an 

expedited hearing, the trial court found that the employee’s injury was compensable and 

ordered medical benefits, including the recommended surgery, and temporary disability 

benefits. The employer has appealed. We affirm the trial court’s decision to the extent it 

orders medical and temporary disability benefits, but vacate the trial court’s finding 

regarding compensability of the claim. We also deny the employee’s request that this

appeal be deemed frivolous and that he be awarded sanctions in the form of attorneys’ 

fees. 

Judge Marshall L. Davidson, III, delivered the opinion of the Appeals Board, in which 

Judge David F. Hensley and Judge Timothy W. Conner joined.

Catherine Dugan, Mt. Juliet, Tennessee, for the employer-appellant, Protective Services 

Company, Inc.

Andrew Clarke, Memphis, Tennessee, for the employee-appellee, James Yarbrough
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Factual and Procedural Background

 

James Yarbrough (“Employee”) was employed as a flooring installer by Protective 

Services Company, Inc. (“Employer”). On April 16, 2015, Employee was moving a 

stove into place after installing flooring when he stood up and struck his right shoulder on 

the bottom of a cabinet. Although he was able to finish his work for the day, he alleges 

the blow resulted in an injury to his shoulder and caused immediate pain. He maintains 

that he reported the incident to his supervisor, Parker Moore, on April 17, 2015, and that 

Mr. Moore assigned him less strenuous work. Employee sought treatment on his own on 

May 1, 2015. According to Employee, he reported the injury to Mr. Moore again on May 

2, 2015, but was not offered a panel of physicians. 

Employee testified that he worked fairly regularly from the date of the injury 

through mid-July 2015, although he asserts there were days shoulder pain prevented him 

from working. On those days, Employee testified that he contacted Mr. Moore to let him 

know he was unable to work due to his injury. He denied having any problem with his 

shoulder before striking the cabinet at work on April 16, 2015.

Mr. Moore disputed having been told about Employee’s shoulder injury prior to

late May or June 2015. According to Mr. Moore, Employee, on June 19, 2015, gave him 

medical bills associated with the May 1, 2015 treatment. At that time, Mr. Moore 

instructed Employee to report his injury to Leslie Hays, Employer’s office manager. 

Upon being informed of the injury, Ms. Hays completed a first report of injury and 

provided Employee with a panel of physicians from which he chose Dr. Riley Jones, an 

orthopedic surgeon.

Employee first saw Dr. Jones on June 26, 2015, with complaints of shoulder pain 

as a result of hitting his shoulder on the cabinet. Dr. Jones diagnosed Employee with 

tendinitis and obtained x-rays, which revealed mild acromioclavicular changes. He 

administered a steroid injection and returned Employee to work with no restrictions. 

Employee returned to Dr. Jones with complaints consistent with those reported at his 

initial visit. Dr. Jones administered another steroid injection in Employee’s shoulder and 

returned him to work. 

Over the ensuing weeks, Employee continued to complain of pain in his shoulder

and, on September 4, 2015, Dr. Jones ordered an MRI and took him off work. The MRI 

showed no evidence of a rotator cuff tear, but did reveal “narrowing of the subacromial 

space with impression [in] the supraspinatus musculotendinous junction by degenerative 

changes of the acromioclavicular joint.” Dr. Jones recommended surgery and continued 

Employee’s restriction from work. Employer declined to authorize the surgery based 

upon its belief that it was not causally related to the incident on April 16, 2015.
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Employee returned to Dr. Jones on October 19, 2015, and Dr. Jones continued to 

keep him off work. Dr. Jones opined that the “injury arose primarily out of and in the 

course and scope of employment. The diagnosis is consistent with the mechanism of 

injury. The employment contributed more than 50.1% in causing the injury considering 

all causes.” He went on to clarify that Employee “probably did have some pre-existing 

problems,” but “when he injured the shoulder he primarily injured the acromioclavicular 

joint and also caused an impingement causing pain in the biceps tendon. If he had not 

had this injury, then he would not have had any problems. Based on my best medical 

judgment this is greater than 50.1% related to his on-the-job injury.” In response to an 

inquiry from Employer, Dr. Jones indicated the injury arose primarily out of the 

employment and was the result of “[d]irect trauma to [r]ight AC joint—[c]ontinued pain 

[and] popping.”

Thereafter, Dr. Jones was deposed and articulated medical opinions regarding 

causation consistent with those in his records. Specifically, he testified as follows:

A: Well, what it is is he’s got some degenerative changes in his 

acromioclavicular joint and when he hit this thing it aggravated it 

and started a process of swelling in that area and, as it says, there’s 

an indention on the rotator cuff. He didn’t tear the rotator cuff, but 

there’s an indentation, so that is what gives you this impingement 

that you’re talking about and it continues to give him his pain, plus it 

irritated the joint itself, which was arthritic. I’m sure there was some 

pre-existing arthritis in there, but he hadn’t had any problems with 

that, and the direct blow, that’s how you separate shoulders. . . . He 

didn’t have any real tears, but that’s where the irritation started.

Q: And there was some type of indentation that was caused by the 

trauma?

A: That was secondary to the swelling of the acromioclavicular joint.

Q: But these are actual–

A: These are objective findings.

Q: Objective findings of a change in his shoulder as a result from a 

blow, correct?

A: That’s correct.

Employer obtained a causation opinion from Dr. Claiborne Christian, also an 

orthopedic surgeon. Dr. Christian did not examine Employee but reviewed the medical 
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records associated with Employee’s treatment, including the deposition of Dr. Jones. He 

acknowledged Dr. Jones’ opinion that Employee would not have needed surgery if he had 

not sustained the blow to his shoulder. However, he opined that the employment was not 

the primary cause of the need for surgery, observing that patients with degenerative 

shoulder conditions often need surgery without having suffered trauma and that the preexisting bone spurs in Employee’s shoulder were the primary cause of the need for 

surgery. He acknowledged Employee’s work-related condition was a contusion to the 

shoulder that “probably resulted in some irritation to his rotator cuff.” He also 

acknowledged that suffering trauma to a joint can accelerate the need for surgery in a 

patient with a degenerative condition. 

Employee filed a petition for benefit determination and a request for an expedited 

hearing asking the trial court to render a decision based upon a review of the record. 

Employer responded by filing a motion for an evidentiary hearing, which the trial court

granted. Employee appealed that ruling and, on January 25, 2016, we affirmed the trial 

court’s decision to hold a hearing. Following the hearing, the trial court determined 

Employee had provided timely notice of his injury and that his shoulder injury was 

compensable. Accordingly, the court ordered Employer to provide the recommended 

surgery and to pay temporary disability benefits beginning September 4, 2015. Employer 

has appealed.

Standard of Review

The standard of review to be applied by this Board in reviewing a trial court’s 

decision is statutorily mandated and limited in scope. Specifically, “[t]here shall be a 

presumption that the findings 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) (2015). The trial court’s decision must be upheld unless the rights of a party 

“have been prejudiced because findings, 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;

(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). Like other courts applying the standards

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.
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Analysis

Employer argues the evidence does not support the trial court’s finding that notice 

was timely provided, and that evidence of causation is insufficient to support the award 

of medical benefits. The trial court’s award of temporary disability benefits has not been 

challenged. 

Employee responds that the trial court’s decision is supported by the evidence and 

requests that the appeal be deemed frivolous, that bad faith penalties be assessed for 

Employer’s failure to timely provide benefits, and that Employer be estopped from 

relying on notice as a defense due to its failure to include that defense in its Notice of 

Controversy. Employee also requests bad faith penalties in the amount of 25% of unpaid 

temporary disability benefits, discretionary costs, and attorneys’ fees based upon an 

hourly rate as contained in an affidavit he filed in the trial court.

 

Notice

The Workers’ Compensation Law mandates that “[e]very injured employee . . . 

shall, immediately upon the occurrence of an injury, or as soon thereafter as is reasonable 

and practicable, give or cause to be given to the employer who has no actual notice, 

written notice of the injury.” Tenn. Code Ann. § 50-6-201(a)(1) (2015). The statute 

additionally provides that “[n]o compensation shall be payable . . . unless the written 

notice is given to the employer within thirty (30) days after the occurrence of the 

accident, unless reasonable excuse for failure to give the notice is made to the satisfaction 

of the tribunal to which the claim for compensation may be presented.” Id. The notice 

requirement contained in section 50-6-201 “exists so that the employer will have the

opportunity to make a timely investigation of the facts while still readily accessible, and 

to enable the employer to provide timely and proper treatment for an injured employee.” 

Jones v. Sterling Last Corp., 962 S.W.2d 469, 471 (Tenn. 1998). Consequently, “the 

giving of statutory notice to the employer is an absolute prerequisite to the right of an 

employee to recover compensation under the workers’ compensation law.” Bogus v. 

Manpower Temp. Serv., 823 S.W.2d 544, 546 (Tenn. 1992). 

Here, Employee testified that he told his supervisor, Mr. Moore, about his injury 

the day after it occurred and that Employer provided less strenuous work when his 

shoulder was giving him difficulty. Mr. Moore, on the other hand, disputed being told of 

the injury prior to late May or June 2015. The trial court believed Employee, noting that 

he was a “reasonable, honest and credible witness.” The law is clear that “[w]hen the 

trial court has heard in-court testimony, considerable deference must be afforded in 

reviewing the trial court’s findings of credibility and assessment of the weight to be given 

to that testimony.” Tryon v. Saturn Corp., 254 S.W.3d 321, 327 (Tenn. 2008). While the 
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evidence on the point is conflicting, there is insufficient proof to disturb the trial court’s 

finding that notice was timely provided to Employer.

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Causation

An injured worker may be granted medical or temporary disability benefits prior 

to trial when he or she presents sufficient evidence to enable the trial court to conclude 

that the worker would likely prevail at a trial on the merits. Tenn. Code Ann. § 50-6-

239(d)(1) (2015). Unlike an expedited hearing, at a compensation hearing where the 

parties have arrived at a trial on the merits, the employee must establish by a 

preponderance of the evidence that he or she is, in fact, entitled to the requested benefits. 

Tenn. Code Ann. § 50-6-239(c)(6) (2015) (“[T]he employee shall bear the burden of

proving each and every element of the claim by a preponderance of the evidence.”). 

In this case, rather than finding that the evidence was sufficient to commence benefits 

pending a trial, the trial court concluded that Employee’s injury was compensable, a 

finding that presumes Employee proved each element of his case by a preponderance of 

the evidence. To the extent the trial court found Employee’s claim compensable, that 

finding is premature and, as such, is vacated.

Nevertheless, we find that the record supports the trial court’s determination that 

Employee is entitled to medical benefits at this point in the case, not because he has 

proven the injury is compensable by a preponderance of the evidence, but because he 

presented sufficient evidence to enable the trial court to conclude he would likely prevail 

at trial. See Tenn. Code Ann. § 50-6-239(d)(1). Dr. Jones, the authorized treating 

physician, opined that when Employee struck his shoulder on the cabinet, he began a 

process of inflammation and aggravation that requires surgical intervention and is 

primarily caused by the employment. Dr. Jones testified that the history given to him 

was “consistent with this type of injury and this type of problem.” After reviewing his 

previously expressed opinion that the need for surgery was primarily caused by the 

employment, Dr. Jones stated:

Q: And that’s been your opinion throughout and expressed to the 

insurance company, correct?

A: As clearly as I can make it.

Q: Is there any doubt in your mind that this is the surgery that you think 

is required that’s related to the work related injury that was 

described to you?

 

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In light of our finding that notice was timely provided, we need not resolve Employee’s contention that 

Employer should be estopped from raising notice as a defense because it was not referenced in the Notice 

of Controversy. We do note, however, that Employee cites no authority to suggest that an employer must 

list every known or suspected defense in such a document.
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A: Greater than 50.1 percent.

Dr. Jones acknowledged on cross-examination that patients could present with the 

same MRI findings and complaints as Employee, and he would recommend the same 

course of treatment, even in the absence of trauma. However, on re-direct examination, 

Dr. Jones reiterated his opinion that, based on Employee’s history, his course of 

treatment, and the objective findings in the shoulder, the recommended surgery was 

necessitated primarily by the work-related injury and not the pre-existing degenerative 

condition. 

As the trial court observed, the opinion expressed by Dr. Jones is entitled to a 

presumption of correctness. See Tenn. Code Ann. § 50-6-102(13)(E) (2015). The trial 

court ruled that while Dr. Christian, who never treated or examined Employee, offered a 

contrary view, his opinion was insufficient to rebut the statutory presumption of 

correctness. Based upon our review of the record, it cannot be said that the evidence 

preponderates against this finding. Accordingly, the trial court’s award of medical 

benefits is affirmed.

Frivolous Appeal, Penalties, and Attorneys’ Fees

Employee requests that he be awarded bad faith penalties for Employer’s failure to 

timely provide benefits, discretionary costs, and attorneys’ fees. Although these issues 

were raised in the trial court before, during, and after the expedited hearing, the trial court

did not address them in its decision but, instead, set a hearing to consider them. With 

limited exceptions not applicable here, our review is limited to issues adjudicated by the 

trial court. See Grant v. Commer. Appeal, No. W2015-00208-COA-R3-CV, 2015 Tenn. 

App. LEXIS 750, at *24 (Tenn. Ct. App. Sept. 18, 2015). Thus, although Employee has 

asked that we address these issues, we decline to do so until the trial court has resolved 

them. 

Employee also asks that we find Employer’s appeal to be frivolous and that 

sanctions be awarded in the form of attorneys’ fees. As we noted in the prior appeal of 

this case, a frivolous appeal is one that is devoid of merit or brought solely for delay. 

Yarbrough v. Protective Servs. Co., Inc., No. 2015-08-0574, 2016 TN Wrk. Comp. App. 

Bd. LEXIS 3, at *11 (Tenn. Workers’ Comp. App. Bd. Jan. 25, 2016). “[P]arties should 

not be required to endure the hassle and expense of baseless litigation. Nor should 

appellate courts be required to waste time and resources on appeals that have no realistic 

chance of success.” Id. at *10-11 (citation omitted); see also Tenn. Code Ann. § 27-1-

122 (“When it appears to any reviewing court that the appeal . . . was frivolous or taken 

solely for delay, the court may, either upon motion of a party or of its own motion, award 

just damages against the appellant, which may include, but need not be limited to, costs, 

interest on the judgment, and expenses incurred by the appellee as a result of the 
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appeal.”); Tenn. Code Ann. § 50-6-225(d)-(e) (“When a reviewing court determines . . . 

that the appeal . . . is frivolous, a penalty may be assessed by the court, without remand, 

against the appellant for a liquidated amount.”); Tenn. Comp. R. & Regs. 0800-02-22-

.04(6) (2015) (“When it appears to the appeals board that an appeal was frivolous or 

taken solely for delay, the appeals board may, either upon motion of a party or of its own 

motion, award expenses, including reasonable attorney’s fees, incurred by the appellee as 

a result of the appeal.”).

While Employer did not succeed in this appeal, the appeal is not devoid of merit,

and there is no evidence that it was brought solely for delay. As discussed above, the 

evidence was conflicting on several key points, presenting legitimate issues for our 

review. Indeed, the appeal resulted in one of the trial court’s findings being vacated. 

Thus, we decline to find the appeal frivolous. 

 Conclusion

The trial court’s decision directing Employer to provide medical and temporary 

disability benefits is affirmed. The trial court’s determination that Employee’s claim is

compensable is vacated as premature. The case is remanded for any further proceedings 

that may be necessary.
 TENNESSEE BUREAU OF WORKERS’ COMPENSATION

 WORKERS’ COMPENSATION APPEALS BOARD 

James Yarbrough ) Docket No. 2015-08-0574

) 

v. ) 

) State File No. 48061-2015

Protective Services Co., Inc., et al. ) 

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 27th day of May, 2016. 

Name Certified 

Mail

First Class 

Mail

Via 

Fax

Fax 

Number

Via 

Email

Email Address

Andrew C. Clark X aclarke@accfirm.com

Catherine C. Dugan X catherine.dugan@petersonwhite.com

Jim Umsted, 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

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