The opinion
FILED
Sep 09, 2025
09:33 AM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Kimberly Reed Docket No. 2024-40-5803
v. State File No. 44947-2024
Critical Nurse Staffing, LLC, et al.
and
Troy Haley, as Administrator of the
Bureau of Workers’ Compensation
Subsequent Injury and Vocational
Recovery Fund
Appeal from the Court of Workers’
Compensation Claims
Robert V. Durham, Judge
Affirmed in Part, Reversed in Part, and Remanded
In this interlocutory appeal, the employer argues the trial court erred in ordering it to
provide the employee a panel of otolaryngologists and in ordering it to authorize a second
opinion examination. The employee originally reported a work-related accident in which
she apparently stumbled while at a patient’s home and grabbed a doorframe or railing to
steady herself, which caused her to twist her left arm/shoulder. She later reported that she
hit the right side of her face and head on a wall during the incident. The authorized
orthopedic physician concluded the employee was not a good candidate for shoulder
surgery, and the employee requested a second opinion. In addition, the employee sought
treatment on her own for “swelling” and “oozing” in her right ear, then requested a panel
of otolaryngologists for treatment of her apparent temporomandibular joint disorder she
believes was caused by the accident. Following an expedited hearing, the trial court
ordered the employer to provide both a second opinion examination related to her left
shoulder condition and a panel of otolaryngologists to evaluate her temporomandibular
joint condition. The employer has appealed. Having carefully reviewed the record, we
affirm the trial court’s order in part, reverse it in part, and remand the case.
Presiding Judge Timothy W. Conner delivered the opinion of the Appeals Board in which
Judge Pele I. Godkin and Judge Meredith B. Weaver joined.
1
Nicholas A. Lastra, Brentwood, Tennessee, for the employer-appellant, Critical Nurse
Staffing, LLC
Lane Moore and Jenna Johnson, Cookeville, Tennessee, for the employee-appellee,
Kimberly Reed
Patrick Ruth, Nashville, Tennessee, for the appellee, Subsequent Injury and Vocational
Recovery Fund
Factual and Procedural Background
Kimberly Reed (“Employee”) worked as a home healthcare nurse for Critical Nurse
Staffing, LLC (“Employer”). On or about June 17, 2024, as Employee was preparing to
leave a patient’s home, she apparently slid, slipped, or tripped on a rug. As she was doing
so, she grabbed a doorframe or railing with her left hand and twisted, causing pain and
symptoms in her left arm and shoulder. At some point thereafter, Employee alleged she
also suffered injuries to her head and face that she believes resulted from striking the right
side of her head on a wall during the incident. 1
The following day, Employee contacted a company called “AmCares” to report the
incident. 2 According to a written report generated as a result of that call, Employee
described “taking trash from patient’s room outside/stumbled down steps/held door trim.”
She reported twisting her left arm and stated that her left hand, forearm, left wrist, upper
arm, left shoulder, neck, and left cheek were swollen. There was no indication on the
AmCares report suggesting that Employee described striking the right side of her head or
face on a wall. She was referred to AFC Urgent Care (“AFC”).
The June 18 report of Employee’s first visit to AFC contained in the record is a
single page and includes no description of the work accident. Employee was evaluated and
advised she could return to work but not to use her left arm. The provider also marked that
she could engage in “sedentary work” only. She was referred to an orthopedic specialist.
1
Neither the petition for benefit determination nor Employee’s Rule 72 Declaration filed in support of her
petition described the alleged accident in detail. For example, Employee’s petition merely says, “Employee
tripped and fell.” Her Rule 72 Declaration merely states, “I sustained an injury at work.” Meanwhile,
numerous medical records submitted by the parties do not indicate she fell but instead suggest she twisted
while preventing herself from falling. The first medical record from the day after the accident appears to
be incomplete and contains no description of the accident. Moreover, because the trial court’s order was
issued following an on-the-record determination, there was no witness testimony to consider. Thus, we
have gleaned a description of the alleged accident from various medical records.
2
The record is unclear as to whether reporting a work-related accident to AmCares is the proper protocol
for this employer. However, Employer does not challenge the timeliness of Employee’s notice of a
workplace accident.
2
On June 27, Employee went to her primary care physician, Dr. Allison Simms,
complaining of right ear pain, swelling, and oozing from the ear “for about a week and a
half now.” Dr. Simms’s report specifically says, “[n]o injuries to the area.” Employee also
reported being “on workers[’] comp for a shoulder injury.” There is no indication in this
report that Employee described striking her right ear, face, or head during the work-related
accident. She was diagnosed with an acute ear infection and prescribed an antibiotic.
Employer provided a panel of orthopedic specialists, and Employee selected Dr.
Kyle Achors, who first saw Employee on July 11. During that visit, Employee complained
of left shoulder pain that began after the June 17 work accident, which he described as a
“fall injury.” During his physical examination, Dr. Achors found Employee to have “full
range of motion of the cervical spine without pain.” The left shoulder examination revealed
no bruising or skin discoloration, but there were limitations in her range of motion. X-rays
of the left shoulder showed no fractures or dislocation. Dr. Achors concluded Employee
likely suffered a traumatic tear of the left rotator cuff, and he ordered an MRI. That test
revealed a labral tear, a small, full-thickness tear of the supraspinatus tendon, and a
complete rupture of the biceps tendon.
By July 30, Employee reported to Dr. Achors that her pain had decreased to a 2/10
but that her symptoms were aggravated by daily activities. After reviewing the MRI
results, Dr. Achors advised Employee that her rotator cuff tear could be treated surgically
but that the biceps tendon injury had a “high chance of doing well without surgery.” Dr.
Achors recommended that Employee work to reduce her body-mass index and, in the
meantime, he recommended conservative treatment, including injections and physical
therapy.
When Employee returned to Dr. Achors in late August, her left shoulder pain had
increased to a 7/10. She apparently had not begun physical therapy due to lack of
authorization from Employer’s insurer. Dr. Achors commented that physical therapy is
“integral for nonoperative management of these injuries,” and he advised Employee he
would order it again.
Employee then returned to AFC on August 28 with complaints of left arm pain, left
shoulder pain, and neck pain, which she described as “constant” and “sharp.” The provider
noted no tenderness or swelling in the shoulder or cervical spine but decreased range of
motion in the left shoulder. The provider also noted “abnormalities” in the biceps tendon
and/or rotator cuff. Employee informed the provider that she had seen an orthopedic
physician for her shoulder complaints but had not been evaluated for her neck complaints.
In addition to her shoulder-related diagnoses, the provider diagnosed a muscle strain in her
neck and recommended an orthopedic evaluation for her cervical spine.
On October 15, Employee returned to Dr. Achors for further evaluation of her left
shoulder. She also advised Dr. Achors that she was seeking an evaluation of her neck pain.
3
During his physical examination, Dr. Achors found evidence of “tenderness about the
cervical spine” and “reproducible pain about the trapezial region with neck . . . motion.”
He also “recommend[ed] she be evaluated by a spine specialist.” In November, Dr. Achors
advised Employee to continue with her physical therapy for her shoulder. In addition, he
stated, “Patient will continue to work toward weight loss that she may achieve a BMI that
is [an] acceptable risk for surgery.”
Employee returned to her primary care physician in November with complaints of
“crusting of the right ear and a lot of drainage coming from the ear.” In the margin of that
report, someone wrote “clear drainage from ear, eye, nose . . . fell and hurt her neck on
right side and [symptoms] have been ever since.” The nurse practitioner who saw
Employee that day commented that the patient was concerned her ear symptoms could be
related to “some cervical neck trauma,” which she said occurred “right before these
symptoms started.” As a result, the provider recommended that she be seen by an “ENT
for further evaluation.”
As a result of the recommendation from her primary care provider, Employee sought
an evaluation with Dr. William Horton, an otolaryngologist. In December 2024, Employee
was seen by a physician’s assistant in Dr. Horton’s office, Lauren Clear. According to the
December 2 report, Employee told Ms. Clear that, on June 16, she “was leaving her house
and fell and had a pain that went from her neck to her arm.” She complained of drainage
from her ear, eye, and nose since the time of the accident. Ms. Clear ordered a “thin cut
CT” and recommended that she follow up with Dr. Horton.
In February 2025, Employee returned to Dr. Achors, reporting her left shoulder
condition was essentially the same. Dr. Achors noted that patient had made “no progress
towards losing weight [to] become an acceptable candidate for surgery.” He then referred
Employee for a functional capacity evaluation with a goal of placing her at maximum
medical improvement with respect to her shoulder condition. Significantly, Dr. Achors
included the following in his report:
Patient did voice her wish to obtain a [second opinion] which I think . . . is
reasonable[;] however[,] I do suspect that a [second opinion] . . . will yield a
similar treatment plan to [mine].
Eventually, Employee received authorization to be evaluated by Dr. Patrick Bolt,
an orthopedic specialist, for her neck complaints. On February 28, 2025, Employee was
seen by a nurse practitioner in Dr. Bolt’s office, Ashley N. Self. Ms. Self noted that an
MRI of the cervical spine dated February 14 showed evidence of “multilevel degenerative
changes with degenerative edema about the C7-T1 facet joint on the right likely a source
of pain.” There was also evidence of “[m]ultilevel mild stenosis accentuated by congenital
spinal canal narrowing” and “[m]ultilevel foraminal stenosis mild to moderate in nature
severe on the right at C5-6.”
4
In addition to the findings related to Employee’s neck, Ms. Self also noted
“[n]onorthopedic complaints including ringing in the ears, facial and ear pain, tremors,
[and] dizziness,” as well as “[e]ar drainage,” which was “being worked up by primary
care.” Ms. Self concluded that Employee had suffered a “cervical strain/sprain” and
recommended physical therapy. Ms. Self’s report was signed by Dr. Bolt as her
“supervising physician.”
Employee saw the ENT specialist, Dr. Horton, in March 2025. Dr. Horton’s March
25 report indicates Employee was last seen on December 26, 2024; however, the December
26 report is not contained in this record. The March report indicated Dr. Horton had
previously diagnosed a temporomandibular joint (“TMJ”) disorder and had recommended
a course of medications. In the “Historical Summary” section of his March report, Dr.
Horton noted that the patient reported she “[w]as coming out [of] a house on the front door
and foot got caught, she fell and tore rotator cuff.” He ordered an “MRI of the TMJs.”
Thereafter, in response to a letter from Employee’s counsel, Dr. Horton agreed in April
2025 that Employee’s “trip and fall work accident on June 17, 2024 contributed more than
50% in causing her [TMJ] disorder for which [he had] ordered an MRI . . . considering all
causes.”
In May 2025, Employee filed a request for an on-the-record determination as to
whether she was entitled to a second opinion examination with respect to the issue of
surgery for the left shoulder, as well as a panel of otolaryngologists for evaluation of her
ear and TMJ complaints. 3 In a June 18, 2025 expedited hearing order, the trial court
determined that Employee was entitled to a second opinion with a shoulder specialist to
evaluate the viability of surgical treatment and a panel of otolaryngologists to evaluate her
TMJ condition. With respect to the panel of otolaryngologists, the court specifically found
that Employee “is not likely to prove that her current ear and face symptoms are causally
related to her work injury.” Nevertheless, the court determined that because she timely
reported the work injury and expressed a need for medical care for her ear/face condition,
“she is entitled to a panel of otolaryngologists to evaluate and treat any work-related injury
to her head and face.” Employer has appealed.
Standard of Review
The standard we apply in reviewing a trial court’s decision presumes that the court’s
factual findings are correct unless the preponderance of the evidence is otherwise. See
Tenn. Code Ann. § 50-6-239(c)(7) (2024). When the trial judge has had the opportunity
to observe a witness’s demeanor and to hear in-court testimony, we give considerable
deference to factual findings made by the trial court. Madden v. Holland Grp. of Tenn.,
Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar deference need be
3
Employer objected to an on-the-record determination and requested an in-person evidentiary hearing.
However, the trial court denied that request in a subsequent docketing notice.
5
afforded the trial court’s findings based upon documentary evidence.” Goodman v.
Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at *6 (Tenn.
Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and application of
statutes and regulations are questions of law that are reviewed de novo with no presumption
of correctness afforded the trial court’s conclusions. See Mansell v. Bridgestone Firestone
N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are also mindful of our
obligation to construe the workers’ compensation statutes “fairly, impartially, and in
accordance with basic principles of statutory construction” and in a way that does not favor
either the employee or the employer. Tenn. Code Ann. § 50-6-116 (2024).
Analysis
On appeal, Employer asserts the trial court erred in ordering it to provide a panel of
otolaryngologists to evaluate Employee’s ear/face/TMJ complaints and in ordering it to
provide a second opinion as to whether left shoulder surgery is reasonable and necessary
as a result of her rotator cuff injury.
Before we address the merits of this appeal, however, we note that Employer filed
its notice of appeal on June 26, 2025. Thereafter, Employee filed a motion to supplement
the technical record, which the trial court denied on July 28, 2025. Given this procedural
posture, Employer’s brief was due no later than August 11, 2025. See Tenn. Comp. R. &
Regs. 0800-02-22-.05(2) (2023). Yet, Employer did not file its brief until August 22.
Employee’s brief was due no later than August 25, 2025, but she did not file a brief until
September 5, 2025. Moreover, neither party filed a motion for an extension of time or a
motion to allow a late-filed brief. See Tenn. Comp. R. & Regs. 0800-02-22-.04. As we
have observed on numerous other occasions, “[i]t is not the role of the courts, trial or
appellate, to research or construct a litigant’s case or arguments for him or her.” Sneed v.
Bd. of Prof’l Responsibility of the Sup. Ct. of Tenn., 301 S.W.3d 603, 615 (Tenn. 2010).
When parties fail to offer substantive and timely arguments on appeal, an appellate court’s
ability to conduct meaningful appellate review is significantly hampered. See, e.g., Holmes
v. Ellis Watkins d/b/a Watkins Lawn Care, No. 2017-08-0504, 2018 TN Wrk. Comp. App.
Bd. LEXIS 7, at *3-4 (Tenn. Workers’ Comp. App. Bd. Feb. 13, 2018). In short, we have
no timely-filed brief from either party, and we decline to consider either late-filed brief. 4
Yet, despite the lack of a timely-filed brief from either party, Employer did identify
two issues in its notice of appeal and offered some semblance of an argument in support of
its position on the issues it raised. First, Employer asserted that the trial court erred in
ordering a panel of otolaryngologists because Employee “is not likely to prove that her
current ear and face symptoms are causally related to her work injury.” Second, it asserted
the trial court erred in ordering a second opinion evaluation of the left shoulder “when
4
Employee filed a motion to exclude Employer’s late-filed brief. Given our exclusion of both late-filed
briefs, this motion is denied as moot.
6
surgery was not recommended by her authorized treating physician because of risks
associated with employee’s body weight.” Thus, we will address each issue in turn.
Panel of Otolaryngologists
It is well established that, when an employee reports a work-related accident and
expresses a need for medical care, an employer generally is obligated to provide a panel of
physicians for authorized medical treatment. See, e.g., Rhodes v. Amazon.com, No. 2018-
01-0349, 2019 TN Wrk. Comp. App. Bd. LEXIS 24, at *13 (Tenn. Workers’ Comp. App.
Bd. June 11, 2019) (“[I]n any case when the employee has suffered an injury and expressed
a need for medical care, the employer shall designate a group of three (3) or more
independent reputable physicians.”). Moreover, we have previously concluded that an
employee need not appreciate the extent or nature of every injury that arose primarily from
a work accident to qualify for benefits for such an injury. See, e.g., Sullivan v. Petree Arbor
Lawn & Landscape, Inc., No. 2023-03-8156, 2024 TN Wrk. Comp. App. Bd. LEXIS 43,
at *11 (Tenn. Workers’ Comp. App. Bd. Nov. 13, 2024) (holding an employee was entitled
to an evaluation of her left shoulder after reporting an accident in which she struck the front
of her upper body against a truck and complained of pain on both the right and left sides
of her upper body but did not specifically report a left shoulder injury).
However, there are certain exceptions to this general rule. For example, if an
employer disputes the occurrence of the alleged accident or asserts an affirmative defense
to the compensability of the claim, it may decline to provide a panel of physicians and, as
a result, accepts the risks of such a decision. As we explained in McCord v. Advantage
Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6 (Tenn.
Workers’ Comp. App. Bd. Mar. 27, 2015):
If an employer chooses to deny the claim following its initial investigation,
the employee must come forward with sufficient evidence from which the
trial court can determine that the employee likely will prove a compensable
“injury by accident” at a hearing on the merits in accordance with section 50-
6-239(d)(l).
Id. at *14.
In the present case, Employer denied that Employee’s facial complaints are
compensable, and the trial court determined, based on the evidence presented to date, that
Employee “is not likely to prove that her current ear and face symptoms are causally related
to her work injury.” We conclude this finding is supported by the record. In such
circumstances, therefore, Employee had the burden to “come forward with sufficient
evidence of an injury by accident from which the court can conclude that . . . she is likely
to prevail at a hearing on the merits.” Buchanan v. Carlex Glass Co., No. 2015-01-0012,
2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *5 (Tenn. Workers’ Comp. App. Bd. Sept.
7
29, 2015). Here, there is no credible evidence in the record to support a finding that the
work accident included Employee striking the right side of her head/face. We have no
sworn testimony from Employee regarding the details of the alleged accident. As noted
above, neither her petition for benefit determination nor her Rule 72 Declaration included
any description of the alleged accident. Moreover, because this was a determination on the
record, there was no hearing with sworn testimony. Thus, we are limited to reviewing the
descriptions of the accident contained in various medical records, and those descriptions
vary significantly. In some medical records, the provider recorded a description of
Employee sliding or tripping over a rug and reaching out to grab a doorframe or railing to
steady herself, resulting in a twisting injury to her left upper extremity. In other reports,
however, she described a trip and fall that caused her rotator cuff tear. Most medical
records contain no reference to her striking the right side of her face or head in the incident.
Moreover, Dr. Horton based his causation opinion, in part, on his belief that Employee
suffered a fall, which is not supported by the record. In short, this record contains no
consistent description of the alleged work accident, and we have no sworn testimony to
consider.
We conclude the preponderance of the evidence presented to date supports the trial
court’s finding that Employee is not likely to prove she suffered a head or face injury during
the work-related accident. The burden of proof was on Employee to establish “sufficient
evidence of an injury by accident.” Given the inconsistent descriptions of the work
accident contained in the medical records and the absence of any sworn testimony from
Employee, we further conclude, at this interlocutory stage of the case, that there is
insufficient evidence to support the trial court’s order for a panel of otolaryngologists to
evaluate her TMJ condition in the context of her work-related accident. That aspect of the
trial court’s order, therefore, is reversed.
Second Opinion Examination
Employer also contends the trial court erred in ordering it to provide a panel of
specialists for a second opinion examination regarding Employee’s need for shoulder
surgery. Tennessee Code Annotated section 50-6-204(a)(3)(C) describes circumstances in
which an injured worker is entitled to a second opinion examination. We previously
considered that statutory language in Petty v. Convention Production Rigging, No. 2016-
06-0841, 2016 TN Wrk. Comp. App. Bd. LEXIS 95 (Tenn. Workers’ Comp. App. Bd. Dec.
29, 2016), and explained as follows:
The complete sentence from which [the employee] asserts he has the right to
a second opinion . . . is as follows:
When the treating physician or chiropractor refers the injured
employee, the employee shall be entitled to have a second
opinion on the issue of surgery and diagnosis from a physician
8
or chiropractor from a panel of two (2) physicians practicing
in the same specialty as the physician who recommended the
surgery.
Tenn. Code Ann. § 50-6-204(a)(3)(C) (2015) (emphasis added). We find the
final phrase of this sentence to be of particular significance in the context of
this case. The phrase “as the physician who recommended the surgery”
necessarily requires there to be an opinion of a specialist recommending
surgery before an injured worker is entitled to a second opinion on the issue
of surgery and diagnosis.
Id. at *20-21. In the present case, therefore, the critical issue is whether Dr. Achors made
a recommendation for shoulder surgery that would trigger Employee’s entitlement to a
second opinion examination. We conclude the record supports a finding that he did.
First, in his July 11, 2024 report, Dr. Achors stated, “Given the improved repair
rates with timely diagnosis and operative repair of traumatic rotator cuff tears, I
recommended we obtain an MRI of the shoulder.” (Emphasis added.) After reviewing the
MRI results in July 2024, Dr. Achors stated in his July 30 report that he “discussed surgical
treatment to perform a rotator cuff repair.” Before proceeding with such treatment,
however, he advised Employee to “work on losing weight to get her BMI [under] 50.” A
reasonable interpretation of these reports is that Dr. Achors believed surgery was a good
treatment option but that certain conditions needed to be met before he would perform such
a procedure. Second, in his February 2025 report, Dr. Achors agreed that a second opinion
examination to consider the issue of shoulder surgery was reasonable. Finally, in a brief
filed with the trial court prior to the expedited hearing, Employer suggested it had already
secured a “second opinion” from Dr. Hovis, who apparently reviewed medical records
Employer sent him and declined to see Employee in person. Even if there was a colorable
argument that a medical records review alone could constitute a second opinion
examination, Employer has failed to make that argument on appeal and, thus, the argument
is waived. Consequently, we agree with the trial court that Employee is entitled to a second
opinion examination on the reasonableness and necessity of shoulder surgery under the
circumstances presented in this case.
Conclusion
For the foregoing reasons, we affirm the trial court’s order for a second opinion
examination on the issue of left shoulder surgery, we reverse the trial court’s order for a
panel of otolaryngologists at this stage of the case, and we remand the case. Costs on
appeal are taxed to Employer.
9
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Kimberly Reed Docket No. 2024-40-5803
v. State File No. 44947-2024
Critical Nurse Staffing, LLC, et al.,
and
Troy Haley, Administrator of the Bureau
of Workers’ Compensation Subsequent
Injury and Vocational Recovery Fund
Appeal from the Court of Workers’
Compensation Claims
Robert V. Durham, Judge
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 9th day of
September, 2025.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Gregory H. Fuller X ghfuller@mijs.com
Nicholas A. Lastra nalastra@mijs.com
Lane Moore X lane@moorerader.com
Jenna Johnson jenna@moorerader.com
Patrick Ruth X patrick.ruth@tn.gov
Robert V. Durham, Judge X Via Electronic Mail
Kenneth M. Switzer, Chief Judge X Via Electronic Mail
Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov
Workers’ Compensation Claims
Olivia Yearwood
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov