The opinion
FILED
Jan 21, 2025
11:34 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
KIHRIESHA IRBY, ) Docket No. 2024-80-4694
Employee, )
v. )
CLAIBORNE MANAGEMENT LLC, ) State File No. 42226-2024
Employer, )
And )
TECHNOLOGY INS. CO., ) Judge Shaterra R. Marion
Carrier. )
)
____________________________________________________________________________
EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS
The Court held an expedited hearing on January 13, 2025. Ms. Irby requested
orthopedic treatment for a May 10, 2024 right shoulder and back injury. Claiborne argued
that it rightfully denied her referral due to a pre-existing condition. The Court holds that
Ms. Irby is entitled to the benefits recommended by her authorized treating physician.
History of Claim
In 2021, while working in Mississippi, Ms. Irby suffered a right shoulder injury. An
MRI and x-ray showed evidence of rotator cuff impingement and a possible SLAP tear.
She received injections and underwent physical therapy before reaching maximum medical
improvement with a 0% impairment rating in May 2022. After settling her claim, she
returned to the doctor sometime in 2022 or 2023 with right shoulder pain, but she did not
receive further treatment.
In April 2024, Ms. Irby was in a motor vehicle accident. She testified that the doctor
diagnosed her with a back strain, but not a shoulder injury. 1 She said her doctor returned
her to work on May 9, one day before her work injury.
1
The parties did not submit medical records related to her motor vehicle accident.
Ms. Irby testified that on May 10, as she helped a patient get out of bed, the patient
slipped and fell. The patient jerked Ms. Irby, and she felt a sharp pain go from her right
shoulder down to her back. She said the sensation was similar to what she felt during her
Mississippi work injury in 2021.
Ms. Irby began treatment with Care Now, after selecting them from a panel. The
medical records note that she had a similar problem in the past, but a lifting incident at
work caused this current onset. Care Now diagnosed her with a muscle strain, referred her
to physical therapy, and ordered an MRI. The MRI did not show a rotator cuff or labral
tear but noted the assessment was limited due to a lack of contrast.
Care Now discussed the importance of an orthopedic follow-up for Ms. Irby,
referred her to Elite Orthopedics, and ordered an MRI with contrast. Claiborne denied the
MRI and the direct orthopedic referral. Care Now put Ms. Irby on light duty, and Claiborne
complied with those restrictions.
Claiborne’s administrator, who testified, said she did not witness the injury but did
not dispute it occurred. She said Ms. Irby could not do her initial light-duty assignment of
feeding the residents because she could not lift her arm from shoulder pain.
Findings of Fact and Conclusions of Law
Evidentiary Ruling
Claiborne sought to introduce the first report of injury into evidence. Ms. Irby
objected, stating the statute makes it inadmissible.
Tennessee Code Annotated section 50-3-702(a)(5) states that the first report shall
not be used in any judicial proceeding.
Therefore, the first report of injury is not introduced as evidence. It is marked for
identification purposes only as exhibit four.
Analysis and Decision
Tennessee Code Annotated section 50-6-102(13) states that an aggravation of a
preexisting condition is a compensable injury when "it can be shown to a reasonable degree
of medical certainty that the aggravation arose primarily out of and in the course and scope
of employment." However, Ms. Irby need not prove each and every element of her claim
by a preponderance of the evidence at an expedited hearing to receive medical benefits, but
must present sufficient evidence from which the court can conclude that she is likely to
prevail at a hearing on the merits. § 50-6-239(d)(1) (2024); McCord v. Advantage Human
Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Ms. Irby testified that she did not injure her shoulder in the April car accident.
Further, she said she had no shoulder pain and no difficulties performing her job duties
before the 2024 work accident. Claiborne offered no evidence to dispute any of this
testimony. Additionally, Claiborne’s administrator testified that she does not dispute that
the incident occurred.
Treatment recommended by an authorized treating physician “shall be presumed to
be medically necessary for treatment of the injured employee.” Tenn. Code Ann. § 50-6-
204(a)(3)(H). Here, the authorized treating physician was aware of her earlier shoulder
injury but noted the recent work injury caused her current onset. Further, they
recommended an MRI with contrast and made a direct orthopedic referral.
Claiborne argued that the MRI taken after her injury showed no anatomical change
since her 2021 injury. However, no medical testimony supports their assertion.
“Judges are not well-suited to make independent medical determinations without
expert medical testimony supporting such a determination.” Lurz v. Int’l Paper Co., 2018
TN Wrk. Comp. App. Bd. LEXIS 8, at *17 (Feb. 14, 2018). “Likewise, parties and their
lawyers cannot rely solely on their own medical interpretations of the evidence to
successfully support their arguments.” Id.
Therefore, the Court holds that Ms. Irby is likely to prevail at a hearing on the merits,
and she is entitled to reasonable and necessary medical treatment as recommended by the
authorized treating physician.
Attorney’s Fees
Ms. Irby requested attorney’s fees for Claiborne’s alleged wrongful denial.
Claiborne pointed out that the dispute certification notice did not list attorney’s fees as an
issue.
Tennessee Code Annotated Section 50-6-203 requires a mediator to certify an issue
before it can be heard before a workers’ compensation judge.
Ms. Irby acknowledged the dispute certification notice did not contain attorney’s
fees as an issue, and that she did not file a motion to amend the dispute certification notice.
The Court therefore denies the request for attorney’s fees at this time.
IT IS THEREFORE ORDERED as follows:
1. Ms. Irby’s request for reasonable and necessary medical treatment authorized by the
authorized treating physician is granted.
2. Ms. Irby’s request for attorney’s fees is denied at this time.
3. The court sets a status conference for March 31, 2025, 10:30 a.m. Central Time.
The parties must call (866) 943-0014 to participate. Failure to call might result in a
determination of the issues without the party’s participation.
4. Unless an 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
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 confirmation within seven business days
may result in a penalty assessment for non-compliance. For questions as to
compliance, contact the Workers’ Compensation Compliance Unit by email at
WCCompliance.Program@tn.gov.
ENTERED January 21, 2025.
________________________________________
Judge Shaterra R. Marion
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Work Status Reports for Ms. Irby
2. Medical Records
3. Email with Carrier’s Acknowledgement of Notice
4. [For Identification Only] First Report of Injury
5. Ms. Irby’s Choice of Physician Form
6. [For Identification Only] Transcript of Ms. Irby’s Deposition
7. Worker’s Compensation Packet for Ms. Irby’s Mississippi Injury
CERTIFICATE OF SERVICE
I certify that a copy of the foregoing was sent as indicated on January 21, 2025.
Name Email Service sent to:
Adam Brock-Dagnan, X adam.brockdagnan@forthepeople.com
Employee’s Attorney
Lauren Poole, X lmpoole@mijs.com
Employer’s Attorney
_____________________________________
Penny Shrum, Court Clerk
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
Right to Appeal:
If you disagree with the Court’s Order, you may appeal to the Workers’ Compensation
Appeals Board. To do so, you must:
1. Complete the enclosed form entitled “Notice of Appeal” and file it with the Clerk of the
Court of Workers’ Compensation Claims before the expiration of the deadline.
¾ If the order being appealed is “expedited” (also called “interlocutory”), or if the
order does not dispose of the case in its entirety, the notice of appeal must be filed
within seven (7) business days of the date the order was filed.
¾ If the order being appealed is a “Compensation Order,” or if it resolves all issues
in the case, the notice of appeal must be filed within thirty (30) calendar days of
the date the Compensation Order was filed.
When filing the Notice of Appeal, you must serve a copy on the opposing party (or attorney,
if represented).
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten calendar
days after filing 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 filing fee. You must file the fully-completed 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 your appeal.
3. You are responsible for ensuring a complete record is presented on appeal. If no court
reporter was present at the hearing, you may request from the Court Clerk the audio
recording of the hearing for a $25.00 fee. If you choose to submit a transcript as part of your
appeal, which the Appeals Board has emphasized is important for a meaningful review of
the case, a licensed court reporter must prepare the transcript, and you must file it with the
Court Clerk. The Court Clerk will prepare the record for submission to the Appeals Board,
and you will receive notice once it has been submitted. For deadlines related to the filing of
transcripts, statements of the evidence, and briefs on appeal, see the applicable rules on the
Bureau’s website at https://www.tn.gov/wcappealsboard. (Click the “Read Rules” button.)
4. After the Workers’ Compensation Judge approves the record and the Court Clerk transmits
it to the Appeals Board, a docketing notice will be sent to the parties.
If neither party timely files an appeal with the Appeals Board, the Court Order
becomes enforceable. See Tenn. Code Ann. § 50-6-239(d)(3) (expedited/interlocutory
orders) and Tenn. Code Ann. § 50-6-239(c)(7) (compensation orders).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
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;ĐŚĞĐŬŽŶĞŽƌŵŽƌĞĂƉƉůŝĐĂďůĞďŽdžĞƐĂŶĚŝŶĐůƵĚĞƚŚĞĚĂƚĞĨŝůĞͲ
ƐƚĂŵƉĞĚŽŶƚŚĞĨŝƌƐƚƉĂŐĞŽĨƚŚĞŽƌĚĞƌ;ƐͿďĞŝŶŐĂƉƉĞĂůĞĚͿ͗
□ 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 1 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]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082