The opinion
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
BETHANY SHELTON, ) Docket No. 2017-06-2203
Employee, )
V. )
HOBBS ENTERPRISES, LLC, ) State File No. 72450-2017
Employer, )
And )
NORGUARD INSURANCE ) Judge Joshua Davis Baker
COMPANY, )
Carrier. )
COMPENSATION HEARING ORDER
The Court held a compensation hearing on June 2, 2020, to determine if Ms.
Shelton is entitled to workers’ compensation benefits for a shoulder injury she allegedly
suffered while emptying a trash can at work. For the reasons below, the Court concludes
she is not entitled to benefits, denies her request for relief, and dismisses her claim with
prejudice.
Claim History
This case concerned a claim for a shoulder injury. Ms. Shelton worked for Hobbs,
a company owning several gas stations, as a cashier and assistant-manager trainee at the
company’s station on McGavock Pike near the Opryland Hotel. Her duties as a cashier
and trainee included assisting customers, keeping the store clean, stocking the cooler and
emptying trash. It was this last duty that resulted in this claim.
On August 26, 2017, while emptying an outdoor trash can near the gas pumps, Ms.
Shelton said she “felt something, a sharp pain,” in her right shoulder while removing the
trash from the can. She told her coworker, another assistant-manager trainee, about the
incident, and also told the district manager that she “pulled something.” She did not ask
for treatment at that time.
About a month before the work accident, Ms. Shelton suffered a car accident that
caused her some pain, and she began seeing Dr. Trung Nguyen. Dr. Nguyen noted a little
over a week before the work accident that Ms. Shelton complained of “right shoulder
pain starting about a month ago.” When asked about this complaint, Ms. Shelton testified
she was having muscle spasms in her shoulder and denied it was related to her workplace
accident.
Less than a week after the alleged injury, Ms. Shelton returned to Dr. Nguyen, still
complaining about her shoulder. She had an MRI, and after reading the results,
Dr. Nguyen suggested Ms. Shelton see a specialist, Dr. Sean Kaminsky.
Ms. Shelton took the MRI report and recommendation to Mary Leedy, her direct
supervisor. Ms. Leedy completed paperwork to report the claim to Hobbs’s management.
She also agreed to alter Ms. Shelton’s schedule and reduce the amount of heavy lifting
she had to do on the job.
After Hobbs received notice of the claim, Deanna Nelson, Hobbs’s office
manager, reported the claim to the insurance company, and Ms. Shelton received a panel
of physicians. Ms. Shelton said she tried to see one of the panel doctors three times but
was declined treatment. About a month after Ms. Shelton received the physician panel,
Hobbs fired her.
After her termination, Ms. Shelton went to see Dr. Kaminsky, who diagnosed her
with several conditions: osteoarthritis, complete rotator-cuff tear, degenerative labrum
tear, and “bicipital tendinitis.” Dr. Kaminsky surgically repaired her shoulder and
released her with a five-percent impairment rating to the body as a whole.
Dr. Kaminsky gave the only expert testimony on causation, and both parties relied
on his opinion to support their positions. On direct examination, Dr. Kaminsky stated
that Ms. Shelton’s lifting incident “may have exacerbated some underlying shoulder
abnormalities” and further agreed that the history of her injury was “consistent” with his
diagnosis.
On cross-examination, defense counsel presented Dr. Kaminsky with medical
records showing Ms. Shelton complained of shoulder pain that began one month before
the alleged injury. When asked how this information impacted his opinion on what
caused Ms. Shelton to need shoulder surgery, Dr. Kaminsky said:
She-in her notes she told me she had an injury on August 26th that initiated
her pain. I do see some information to the contrary, that she was having
some shoulder pain that preceded that. It may be contributions from both
pre-existing and/or those findings. It’s a little bit difficult to say. She
definitely had some chronicity to both the arthroscopic and imaging
findings of her shoulder.
Redirect examination failed to clarify the issue, as Dr. Kaminsky said only that “it’s
possible” when asked whether lifting a bag of trash exacerbated an underlying shoulder
condition so that it required surgery.
Findings of Fact and Conclusions of Law
Ms. Shelton requested temporary and permanent-partial disability benefits as well
as continuing medical care for her shoulder. While both parties provided proof
conceming the claim’s history and circumstances of Ms. Shelton’s termination, the
threshold requirement is that she must prove by a preponderance of the evidence that her
shoulder injury arose primarily out of and in the course and scope of her employment to
receive any benefits. See Tenn. Code Ann. § 50-6-239(c)(6) (2019); Panzarella v.
Amazon.com, Inc., 2018 Tenn. LEXIS 244, at *8 (Tenn. Workers’ Comp. Panel, May 16,
2018). She failed to carry this burden.
An injury arises primarily out of and in the course and scope of employment only
if the employee shows by a preponderance of the evidence that the employment
contributed more than fifty percent in causing the injury, considering all causes. To
prove this, Ms. Shelton must show by “a reasonable degree of medical certainty that the
employment contributed more than fifty percent” to the cause of her injury. “Shown to a
reasonable degree of medical certainty means that, in the opinion of the physician, it is
more likely than not considering all causes, as opposed to speculation or possibility.”
Tenn. Code Ann. § 50-6-102(14)(B)-(D). The “speculation or possibility” portion of the
statute is key in this claim.
Dr. Kaminsky provided the only cauation opinion, and his opinion was far from
concrete. On examination from Ms. Shelton’s counsel, Dr. Kaminsky said that the
history Ms. Shelton described was consistent with his diagnosis. However, he went on to
say only that the workplace accident “may have exacerbated some underlying shoulder
abnormalities.” On redirect, he stayed the course by stating “it’s possible” that lifting the
bag of trash exacerbated an underlying shoulder problem. And on cross-examination,
when presented the medical records from Dr. Nguyen showing prior shoulder complaints,
he stated “it’s a little bit difficult to say” whether the degenerative, preexisting condition
or the work accident caused the need for surgery.
The Tennessee Supreme Court Special Workers’ Compensation Panel has
considered several cases with similar medical testimony and denied relief, deeming the
testimony speculative or uncertain. Most similar to Ms. Shelton’s case, in Willis v. All
Staff, 2017 Tenn. LEXIS 455, at *14 (Tenn. Workers’ Comp. Panel May 22, 2017), the
Panel held that the doctor’s testimony stating that work acitivies “could have,”
3
“possibly,” or “in theory” caused the employee’s knee injury was “insufficient” to satisfy
the preoponderance-of-the-evidence standard.
As the Panel ruled in Willis, the Court will also rule here. The Court finds that Dr.
Kaminsky’s testimony is insufficient to satisfy the perponderance standard. Because Ms.
Shelton bore the burden of proof and failed to satisfy it, the Court denies her request for
relief and dismisses her claim with prejudice to its refiling.
IT IS ORDERED as follows:
1. The Court denies Ms. Shelton’s request for relief and dismisses her claim with
prejudice to its refiling.
2. This order shall become final thirty days after entry absent an appeal.
3. Hobbs shall file a completed SD-2 with the Court Clerk within ten days after the
order becoming final.
4. Hobbs shall pay the $150 filing fee to the Court Clerk within ten days of the order
becoming final.
ENTERED JUNE 5, 2020.
C*\__
J osha Davis Baker, Judge
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
Deposition of Dr. Sean Kaminsky, including attached exhibits
Discovery Responses of Bethany Shelton
Medical Records
Light Duty Agreement dated 10/5/17
Workers’ Compensation Questionnaire completed by Bethany Shelton
First Report of Injury
Text Messages with Mary Leedy
Write-ups for Bethany Shelton dated 7/8/17, 8/8/17, and 8/21/17
CAINAMEYWNS
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated June 5, 2020.
Name Certified | Email | Service sent to:
Joseph Dalton x joedaltonlaw @comcast.net
Allen Callison xX allen.callison@mgclaw.com
Aaj
Penny Shrum, Court Clerk
Court of Workers’ Compensation Claims
We.courtclerk @ tn. gov
Compensation Hearing Order Right to Appeal:
If you disagree with this Compensation Hearing Order, you may appeal to the Workers’
Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers’
Compensation Appeals Board, you must:
1. Complete the enclosed form entitled: “Notice of Appeal,” and file the form with the
Clerk of the Court of Workers’ Compensation Claims within thirty calendar days of the
date the compensation hearing order was filed. When filing the Notice of Appeal, you
must serve a copy upon 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 of 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
altemative, 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 bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. A licensed court
reporter must prepare a transcript and file it with the court clerk within fifteen calendar
days of the filing the Notice of Appeal. Alternatively, you may file a statement of the
evidence prepared jointly by both parties within fifieen calendar days of the filing of the
Notice of Appeal. The statement of the evidence must convey a complete and accurate
account of the hearing. The Workers’ Compensation Judge must approve the statement
of the evidence before the record is submitted to the Appeals Board. If the Appeals
Board is called upon to review testimony or other proof concerning factual matters, the
absence of a transcript or statement of the evidence can be a significant obstacle to
meaningful appellate review.
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. The appealing
party has fifteen calendar days after the date of that notice to submit a brief to the
Appeals Board. See the Practices and Procedures of the Workers’ Compensation
Appeals Board.
To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing
Order must be final and you must comply with the Tennessee Rules of Appellate
Procedure. If neither party timely files an appeal with the Appeals Board, the trial court’s
Order will become final by operation of law thirty calendar days after entry. See Tenn.
Code Ann. § 50-6-239(c)(7).
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
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 file-
stamped on the first page of the order(s) being appealed):
CZ Expedited Hearing Order filed on CD Motion Order filed on
C1 Compensation Order filed on Oi 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): [o Employerl | Employee
Address: Phone:
Email:
Attorney’s Name: BPR#:
Attorney’s Email: Phone:
Attorney’s Address:
* Attach an additional sheet for each additional Appellant *
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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 | 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]
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