The opinion
FILED
Oct 04, 2021
10:45 AM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Dustin Morton ) Docket No. 2021-06-0129
)
v. ) State File No. 5478-2020
)
Morsey Constructors d/b/a Harper )
Industries, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Thomas L. Wyatt, Judge )
Reversed and Remanded
The employee, an ironworker, was injured when a metal panel fell from a roof, hit the
ground, and struck him on the head and left shoulder, causing him to twist and fall on his
right knee. The employee received authorized medical treatment for the knee injury and
was eventually placed at maximum medical improvement and returned to work with no
restrictions by his authorized physician. Upon returning to work, the employee reported
experiencing pain in his neck and shoulder blades with numbness in his arms. The
employee did not request medical treatment for his neck, upper back, and arm symptoms
until more than one year after the work accident. The employer denied medical treatment
for those conditions, citing a lack of medical proof establishing causation. Following an
expedited hearing, the trial court determined that the employee was entitled to medical
benefits for his alleged neck, upper back, and arm injuries without coming forward with
any evidence of medical causation. The employer has appealed. Upon careful
consideration of the record, we reverse the trial court’s order and remand the case.
Judge Pele I. Godkin delivered the opinion of the Appeals Board in which Presiding Judge
Timothy W. Conner and Judge David F. Hensley joined.
J. Allen Callison, Nashville, Tennessee, for the employer-appellant, Morsey Constructors
d/b/a Harper Industries
Jeffrey P. Boyd, Jackson, Tennessee, for the employee-appellee, Dustin Morton
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Factual and Procedural Background
On January 17, 2020, Dustin Morton (“Employee”), an ironworker employed by
Morsey Constructors d/b/a Harper Industries (“Employer”), was injured in the course and
scope of his employment when a large metal panel fell from a roof, hit the ground, and
struck his left shoulder and head, causing his right knee to twist and him to fall. Employee
was transported to Fast Pace Urgent Care Clinic where he complained of “pain in the right
knee,” reporting that something “fe[ll] off of a building and hit him in the left shoulder and
his head and somehow he twisted his foot or leg and hurt his knee.” Employee denied
“back pain, muscle pain.” He was provided with a knee brace and instructed to return in a
week for a follow-up appointment if there was no resolution of his pain.
On January 24, 2020, Employee returned to Fast Pace Urgent Care Clinic with
continued complaints of knee pain and was referred for an MRI, which revealed a tear of
his anterior cruciate ligament (“ACL”). Employee was referred to an orthopaedic surgeon,
and Employer provided a panel of physicians from which Employee selected Dr. David
Moore. Dr. Moore first examined Employee on February 20, 2020, and diagnosed
Employee with acute right knee pain, “[b]ucket-handle tear of the medial meniscus of [the]
right knee,” and “[r]upture of anterior cruciate ligament of [the] right knee.” Dr. Moore
assigned work restrictions and, on February 24, 2020, performed surgery on his knee.
At Employee’s March 6, 2020 postoperative visit, Dr. Moore documented that
Employee “denie[d] any unusual complaints or new injury” and was undergoing physical
therapy. Employee continued physical therapy and remained on work restrictions for
several months afterward. On August 27, 2020, during a visit with Dr. Moore, Employee
complained of new lateral sided knee pain but “denied any [new] injury.” Dr. Moore
ordered a new MRI, which revealed an intact ACL graft and no new recurrent meniscal
tears. On November 10, 2020, approximately ten months after the accident, Dr. Moore
placed Employee at maximum medical improvement and allowed him to return to work
without restrictions.
Following his medical release, Employee returned to work with Employer for a brief
period of time before he was laid off. Employee found subsequent employment and
worked in a fabrication shop for “four or five weeks” until that job was concluded.
Employee stated he felt “more pain and that his arms would go numb” when he was “doing
stuff or in an awkward position welding or fabricating.” As a result, on February 2, 2021,
Employee submitted a request for medical care to Employer through his attorney. On
February 5, 2021, Employer sent a questionnaire to Dr. Moore, requesting further
clarification regarding Employee’s request for medical treatment, asking:
1. At any time, has [Employee] requested treatment for or otherwise
indicated that he sustained an injury to his neck or shoulder as a result
of the at-work accident that occurred on January 17, 2020?
2
2. At any point have you deemed it necessary to recommend any treatment
or evaluation for [Employee’s] neck or shoulder as it relates to the at-
work injury on January 17, 2020?
Dr. Moore replied “no” to both questions. As a result, Employer denied Employee’s
request for further medical treatment. On February 9, 2021, Employee filed a petition for
benefits requesting, in part, a panel of physicians to treat his neck and shoulders. Following
an unsuccessful mediation, a dispute certification notice was issued identifying medical
benefits as a disputed issue. In the dispute certification notice, Employer asserted that
Employee “never voiced any complaints until approximately [one] year after the accident”
and disputed “whether Employee’s neck and shoulder complaints are related to his work
injury.” Employee was later deposed and testified he did not personally request medical
care for his neck or shoulder from the workers’ compensation carrier, although he
“casually” mentioned soreness in his neck and shoulders to the nurse case manager and his
work supervisor. Employee agreed that any request for medical treatment “would have
gone through [his] attorney.”
In a July 12, 2021 expedited hearing, Employee testified that he had received no
medical treatment for his neck, shoulder, or arms since the date of the work incident. On
cross-examination, he testified as follows regarding whether he reported his neck and
shoulder complaints:
Q: And you never told your supervisor during that time that you needed to
go see a doctor about your neck or shoulder; is that correct?
A: Not to the point of, like, we need to go have a scan done on this thing,
I’m in that much discomfort. But we talked about it being sore and stuff
once I got moving.
Q: You had the adjuster’s e-mail and phone number, correct?
A: Yes.
Q: You never sent her an e-mail or gave her a phone call saying, Hey,
Jeanie, I need to see the doctor about my neck, did you?
A: No, sir.
Q: After you got discharged by Dr. Moore in November of 2020, you
exchanged e-mails with Ms. Moxley, is that correct?
A: Yes, sir.
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Q: During none of those e-mails did you ever say, Hey, Jeanie, I know
we’re talking about my knee here, but don’t forget about my neck? You
didn’t do that, did you?
A: No, sir.
Employee also testified that, while he had the ability to contact his nurse case manager and
adjuster, he did not request care through the workers’ compensation insurer for his neck
and shoulders until after he contacted an attorney.
The trial court determined Employee had presented sufficient evidence from which
it could conclude he was likely to prevail at trial regarding his request for additional
medical benefits and awarded medical benefits for Employee’s neck and shoulders, stating
that proof of medical causation is not required at an expedited hearing to obligate an
employer to provide treatment. 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) (2020). 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
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 (2020).
Analysis
Employer asserts Employee failed to “[come] forward with sufficient evidence of a
compensable injury to his neck or shoulder based on his failure to report any injury to his
neck/shoulder to any medical provider or otherwise request medical care for those body
parts for over one year.” In support of its contention, Employer emphasizes that Employee
acknowledged that he did not experience any pain in his neck until he became more active
after surgery, and that he “did not report any pain in his neck to any of his medical
providers . . . [and] never even testified that he believes that his neck problems are related
4
to this fall.” Employer maintains that Employee’s proof is insufficient for him to carry his
burden of proof “even under the more relaxed McCord [v. Advantage Human Resourcing,
No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6 (Tenn. Workers’ Comp. App.
Bd. Mar. 17, 2015)] standard.” Based upon our review of the record, we agree that
Employee failed to provide sufficient evidence at the expedited hearing to indicate he is
likely to prevail at trial in establishing entitlement to medical benefits for his alleged neck
and shoulder conditions.
Generally, to be compensable, an injury must arise primarily out of and in the course
and scope of employment and must cause disablement, death, and/or the need for medical
treatment of the employee. Tenn. Code Ann. § 50-6-102(14) (2020). An injury “arises
primarily out of and in the course and scope of employment” only if it has been shown by
a preponderance of the evidence that the employment contributed more than fifty percent
(50%) in causing the injury, considering all causes. Tenn. Code Ann. § 50-6-102(14)(B).
Here, there is no dispute regarding the compensability of Employee’s knee injury, and
Employer provided workers’ compensation benefits associated with treatment for that
injury. However, Employer disputed the compensability of Employee’s alleged neck and
shoulder injuries based on the significant delay from the occurrence of the accident to the
request for medical treatment.
As we have previously stated, an employee need not prove each and every element
of his or her claim by a preponderance of the evidence in order to obtain temporary
disability benefits or medical benefits at an interlocutory stage of a case. McCord, 2015
TN Wrk. Comp. App. Bd. LEXIS 6, at *9. However, an employee does bear the burden
of coming forward with sufficient evidence from which the trial court can determine that
the employee is likely to prevail at a hearing on the merits consistent with Tennessee Code
Annotated section 50-6-239(d)(l). Id. Thus, an injured worker retains the burden of proof
at all stages of a workers’ compensation claim, and a trial court can grant relief at an
expedited hearing if the court is satisfied that an employee has met the burden of showing
that he or she is likely to prevail at a hearing on the merits. Tenn. Code Ann.§ 50-6-
239(d)(l). Nevertheless, “[t]his lesser evidentiary standard, . . . does not relieve an
employee of the burden of producing evidence of an injury by accident that arose primarily
out of and in the course and scope of employment at an expedited hearing, but allows some
relief to be granted if that evidence does not rise to the level of a ‘preponderance of the
evidence.’” Buchanan v. Carlex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App.
Bd. LEXIS 39, at *6 (Tenn. Workers’ Comp. App. Bd. Sept. 29, 2015).
Here, it is undisputed that a large, heavy panel fell from a roof and, after hitting the
ground, struck Employee’s head and shoulder while he was in the course and scope of his
employment. Thus, we discern no error with the trial court’s determination that Employee
came forward with sufficient evidence to prove a work-related incident identifiable by time
and place of occurrence. However, that finding does not end the inquiry.
5
In its order, the trial court emphasized that the hearing was “about a request for
additional medical treatment [and] proof of medical causation is not required to obligate
an employer to provide treatment.” In addressing whether Employee’s injury arose
primarily out of and in the course and scope of his employment, the trial court relied, in
part, on Employee’s testimony that “he told [his] providers and in particular Dr. Moore that
a heavy roofing panel hit his head and left shoulder.” The trial court noted that Employee’s
testimony was “not necessarily incompatible” with that of Dr. Moore and stated that,
although Employee did not request medical treatment for his neck and shoulders, “the
possibility remains that he could have injured his neck and shoulders from the accident”
and “[t]hat will be for a doctor to decide.” (Emphasis added.) The court also “place[d]
little weight” on medical records that solely focused on Employee’s knee, finding they
“[did] not prove that his alleged injuries did not arise primarily from the work accident.” 1
In reaching this result, the court relied on our decision in McCord. However, the
facts of this case are distinguishable from those in McCord. In McCord, the employee
testified without contradiction that she felt symptoms in her lower back while lifting boxes
at work. McCord, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *15-16. The employee’s
job included lifting boxes, and she visited the emergency room twice over the following
two days with complaints of low back and right shoulder symptoms. Id. at *17. The
employee reported the work injury to her employer four days after the work incident and
attempted to give her on-site work supervisor “medical paperwork” that same day. Id. at
*18. Based upon the totality of the evidence and the particular circumstances of that case,
including that the request for medical treatment that occurred within a few days of the work
incident, we concluded that the employee had come forward with sufficient evidence
entitling her to a panel of physicians. Id.
The trial court also relied on our decision in Lewis v. Molly Maid, No. 2015-06-
0456, 2016 TN Wrk. Comp. App. Bd. LEXIS 19, at *8-9 (Tenn. Workers’ Comp. App. Bd.
Apr. 20, 2016) for the proposition that medical proof is not required at an interlocutory
stage of the case. In Lewis, the employee provided unrefuted testimony that she
experienced back pain after operating a vacuum during her initial three days of training.
The employee informed her trainer of her back pain, and the employer acknowledged being
told of the employee’s complaints. Id. at *7. Further, the employer was aware that the
employee intended to go to an emergency room to obtain medical treatment for her back.
1
In its brief on appeal, Employer also contends the trial court’s “failure to make a finding of fact and
conclusion of law that the at-work injury was more likely than not the primary cause of the need for medical
care amounts to an order for a causation opinion ‘for a doctor to decide.’” We previously addressed this
issue in Pool v. Jarmon D&Q Transport, No. 2015-06-0510, 2016 TN Wrk. Comp. App. Bd. LEXIS 1
(Tenn. Workers’ Comp. App. Bd. Jan. 4, 2016), when we stated: “While an injured worker who meets the
applicable statutory requirements is entitled to medical benefits, there is no ‘right to a causation opinion’
as such. If a trial court determines that medical benefits are appropriate, the court can order the initiation
of such benefits. However, it is the parties’ responsibility to secure expert opinions or other evidence
necessary to address any applicable burden of proof.” Id. at *9-10 (citations omitted).
6
Id. The medical evidence supported the employee’s allegation that she began suffering
severe back pain that she attributed to using the vacuum cleaner. Id. at *8. Again, as in
McCord, the request for medical treatment was close in time to the occurrence of the work
incident. Thus, under the circumstances presented in that case, we agreed the employee
had come forward with sufficient evidence to support the trial court’s order compelling the
employer to provide a panel of physicians. Id. at *9.
Here, unlike the employees in McCord and Lewis, Employee did not request
medical treatment for his alleged neck or shoulder injuries until 54 weeks after the work
incident, despite having access to an authorized physician, a nurse case manager, and an
adjuster for over a year. In addition, Employee acknowledged that he did not ask Employer
to provide medical treatment for his neck or shoulders during that 54-week period of time.
Moreover, Employee provided no testimony that he believed his neck and shoulder
problems were related to the work incident, and there is no medical proof in the record that
Employee’s neck and shoulder problems were causally related to the work incident. While
Employee need not prove each and every element of his claim by a preponderance of the
evidence to obtain medical benefits at an interlocutory stage of the case, given such a
significant delay before his request for medical treatment, we conclude he must come
forward with more than a mere allegation of alleged work-related injuries to support his
claim for authorized medical treatment. In short, the length of time between a work
accident and the request for medical treatment, while not dispositive, is a relevant factor to
consider in the court’s analysis of whether an employee is entitled to medical care at an
interlocutory stage of the case.
It is undisputed that a heavy panel hit Employee’s head and shoulder. However, it
is also undisputed that over one year elapsed prior to his request for medical treatment for
his neck, shoulders, and arms, during which time Employee could have discussed such
issues with his authorized treating physician, the adjuster, the nurse case manager, and/or
Employer. We are not persuaded that Employee’s vague descriptions of “discomfort”
months after the incident occurred is sufficient evidence at this stage of the proceedings to
support a conclusion that he is likely to prevail at trial in establishing an entitlement to
medical treatment for his neck and shoulders.
Conclusion
Based on the record before us, we conclude the evidence preponderates against the
trial court’s interlocutory award of medical benefits for Employee’s neck and shoulders.
We reverse the trial court’s expedited hearing order and remand the case. Costs on appeal
are taxed to Employee.
7
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Dustin Morton ) Docket No. 2021-06-0129
)
v. ) State File No. 5478-2020
)
Morsey Constructors d/b/a Harper )
Industries, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Thomas L. Wyatt, 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 4th day
of October, 2021.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Allen Callison X allen.callison@mgclaw.com
Jeff Boyd X jboyd@borenandboyd.com
Thomas L. Wyatt, 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