The opinion
FILED
Nov 19, 2021
07:43 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT COOKEVILLE
KIMBERLY HAGAN, )
Employee, ) Docket No. 2019-04-0105
v. )
POTOMAC CORP., ) Case No. 26575-2021
Employer, )
And )
THIRD COAST INS. CO., ) Judge Robert Durham
Insurer. )
________________________________________________________________________
EXPEDITED HEARING ORDER GRANTING BENEFITS
The Court addressed Ms. Hagan’s request for an expedited hearing with an on-the-
record determination on November 8, 2021. Ms. Hagan sought medical and temporary
disability benefits for a left shoulder injury, which she asserted primarily arose out of and
in the course and scope of her employment with Potomac. The unauthorized doctor who
performed surgery corroborated her assertion. Potomac argued that the authorized
physician, to whom a presumption of correctness is afforded, believed Ms. Hagan’s
injury is not work-related. After considering the evidence and testimony, the Court holds
that Ms. Hagan demonstrated a likelihood of prevailing at trial in establishing causation
and grants her request for medical and temporary partial disability benefits.
History of Claim
Potomac, also known as Nielsen-Bainbridge, is a factory that makes picture
frames. Ms. Hagan worked on the assembly line making an average weekly wage of
$440.94. 1 On March 24, 2021, her job involved lifting a “ten-foot pallet” onto a roller,
loading the pallet with pieces of wood, and pushing and pulling it onto a table. From
1
This number is derived from the wage statement; however, the record is ambiguous as to Ms. Hagan’s actual term
of employment with Potomac. While the wage statement indicates she started in April 2020, the first report of
injury lists March 2021 as her date of hire. Additionally, two medical records stated she began work in October
2020.
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there, she shimmied the pallet back and forth to scoot it across the table to the other end.
Ms. Hagan described this activity as very repetitive.
Ms. Hagan testified that this repetitive activity caused pain in her left shoulder that
gradually worsened as the day progressed. She could not point to a single, acute incident
that caused the pain. After a few hours of work, her pain worsened, so she notified her
supervisor and requested medical treatment.
Shelly Modrall, in Human Resources, stated she provided Ms. Hagan with a panel
of doctors, and Ms. Hagan chose Dr. Toney Hudson. However, due to Ms. Hagen’s pain,
she left before actually signing the panel.
Ms. Hagan saw Nurse Practitioner Chris Archer at Dr. Hudson’s office, although
Dr. Hudson signed off on each note. Ms. Hagan could not remember a specific incident
of injury but reported a gradual progression of pain from the top of her left shoulder to
her elbow as she performed her job. She rated her pain level as seven or eight out of ten.
N.P. Archer diagnosed Ms. Hagan with inflammation and a left rotator cuff tear. He
prescribed steroids and modified duty.
At Ms. Hagan’s next appointment, she signed the previously provided panel. N.P.
Archer ordered an MRI, which revealed moderate acromioclavicular osteoarthritis and a
rotator cuff tear. N.P. Archer informed Ms. Hagan that she “appeared to have a complete
through and through tear” of her rotator cuff. However, since she had “no injury
whatsoever” at work, and her shoulder just became more painful throughout the day, it
was not a work-related injury. He advised her to seek orthopedic care on her own, and
Potomac denied her claim.
Ms. Hagan then sought treatment with orthopedist Dr. James McGehee on April 9.
According to his records, she initially felt some soreness in her shoulder but then felt
“sudden pain while lifting and pushing a pallet.” She denied any history of left shoulder
problems and explained she was on a leave of absence because she could not do her job. 2
Following an exam and MRI review, Dr. McGehee diagnosed a “left shoulder
strain with high grade partial-thickness rotator cuff tear,” bursitis, tendinitis, a SLAP tear,
and acromioclavicular arthritis. He prescribed physical therapy, continued her restriction
against using her left arm, and scheduled a six-week follow-up appointment. As to
causation, Dr. McGehee said that Ms. Hagan described a “reasonable mechanism” for a
shoulder strain which can cause a partial tear. He believed that the injury was “greater
than 50% work-related.”
2
Potomac also admitted in its pre-hearing statement that it could not accommodate Ms. Hagan’s
restrictions.
2
In August, Dr. McGehee prepared a signed note addressing causation:
Kimberly Hagan is currently under my medical care. In my opinion, there
were no features on her diagnostic imaging or at the time of surgery that
would clearly indicate that this was a chronic tear in her left shoulder.
Therefore, in the setting of an appropriate mechanism, I would conclude
that her injury is greater than 50% work related. She also reported to me no
prior shoulder problems. We expect up to six months to return to full
activities.
Ms. Hagan also provided a “worklink” physicians’ report from Dr. McGehee,
dated October 27, that said Ms. Hagan could return to work with a ten-pound lifting
restriction.
To rebut Dr. McGehee’s opinion, Potomac offered statements from Dr. Hudson. In
a signed letter to Potomac’s counsel, Dr. Hudson acknowledged that he supervised N.P.
Archer and reviewed his treatment notes. He then offered his causation opinion:
Supraspinatus tears can be caused acutely by suddenly lifting something too
heavy, falling on your arm, or dislocating your shoulder. Ms. Hagan did
not experience either [sic] of those events. Other cases are the result of the
tendon wearing down over time, resulting in a degenerative tear. Ms.
Hagan’s MRI also revealed degenerative changes, more likely than not, her
tear is the result of degenerative changes.
Dr. Hudson also provided a Rule 72 Declaration that established his qualifications as a
board-certified internal medicine specialist. He gave his opinion within a reasonable
degree of medical certainty that Ms. Hagan’s left upper extremity complaints were not
caused or aggravated by her alleged March 24 work incident.
Finally, Ms. Hagan admitted that she fell on her left side while working at a
nursing home in 2018; however, she stated she did not receive any medical attention for
her left shoulder and that she had no residual pain from the fall afterwards.
Findings of Fact and Conclusions of Law
The record is clear that Ms. Hagan suffered from a partial left rotator cuff tear.
The dispute is whether the tear arose primarily out of and in the course and scope of her
employment. To prevail, Ms. Hagan must present evidence showing she is likely to
prevail at a trial on the merits. See McCord v. Advantage Human Resourcing, 2015 TN
Wrk. Comp. App. Bd. LEXIS 6, at *9 (Mar. 27, 2015).
In deciding the issue, the Court first notes that it finds Ms. Hagan’s account of her
3
activities and pain progression on March 24 to be credible. She candidly admitted she
could not identify an acute incident, even after Potomac denied her claim. This frankness
permits the Court to find her statements that she never suffered shoulder pain before
March 24 to be credible as well, particularly since Potomac offered little to dispute this
assertion. However, credibility is not enough, as Ms. Hagan must also prove that her
account is consistent with a compensable injury under Tennessee workers’ compensation
law.
For Ms. Hagan’s injury to be compensable, it must be “caused by a specific
incident, or set of incidents, arising primarily out of and in the course and scope of
employment, and [be] identifiable by time and place of occurrence. …” Tenn. Code Ann.
§ 50-6-102(14)(A) (2021). “Set of incidents” includes repetitive trauma sustained in the
regular course of work activities over time. Ibarra v. Amazon Fulfillment Serv., Inc.,
2020 TN Wrk. Comp. App. Bd. LEXIS 13, at *5 (Apr. 1, 2020). Proof of a “single,
sudden event” is not necessary so long as the employee can prove a “compensable set of
incidents over an identifiable period of time.” Id. In this case, the Court holds that Ms.
Hagan’s work activities on March 24 meet the statutory definition of a “set of incidents”
that could give rise to a compensable injury.
To prove causation, however, Ms. Hagan’s testimony must be supported by
medical proof. See Tenn. Code Ann. § 50-6-102(14). She must show to a reasonable
degree of medical certainty that her work activities contributed more than fifty percent in
causing her rotator cuff tear, considering all causes. Reasonable degree of medical
certainty means “it is more likely than not considering all causes, as opposed to
speculation or uncertainty.” Id.
Here, the Court must first weigh differing medical opinions. When confronted
with conflicting expert opinions, the Court has discretion to determine which opinion to
accept. Bass v. The Home Depot U.S.A, Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 36,
at *9 (May 26, 2017). The Court may consider, among other things, “the qualifications
of the experts, the circumstances of their examination, the information available to them,
and the evaluation of the importance of that information by other experts.” Id.
The Court first notes that Dr. Hudson was Ms. Hagan’s authorized physician,
entitling his causation opinion to a presumption of correctness. See Tenn. Code Ann. §
50-6-102(14)(E). However, his opinion may be overcome by a preponderance of the
evidence. Id.
As for the experts’ qualifications, Dr. McGehee is an orthopedic surgeon, while
Dr. Hudson is an internal medicine specialist. Dr. McGehee’s training and experience
with orthopedic conditions are advantageous here.
Regarding their examinations, the court credits Dr. McGehee because he
4
physically examined and treated Ms. Hagan while Dr. Hudson merely oversaw the nurse
practitioner’s treatment. Also, Dr. McGehee physically saw her rotator cuff during
surgery. Based on his observation, he found nothing to indicate a chronic tear. He
believed her work activities were an “appropriate mechanism” for causing the tear. Given
that she did not have a history of left shoulder problems, he concluded that her
employment was the primary cause of her rotator cuff tear.
Under the circumstances, the Court affords greater weight to Dr. McGehee’s
causation opinion, and his opinion, combined with Ms. Hagan’s testimony, rebuts Dr.
Hudson’s presumptive opinion. Thus, the Court holds that Ms. Hagan is likely to prove
she suffered a compensable injury on March 24, 2021, and is entitled to workers’
compensation benefits.
Regarding medical benefits, the Court finds that Potomac denied Ms. Hagan’s
claim, which compelled her to seek unauthorized treatment with Dr. McGehee. Whether
an employee is justified in seeking payment for unauthorized medical expenses from an
employer depends upon the circumstances of each case. Hackney v. Integrity Staffing
Solutions, 2016 TN Wrk. Comp. App. Bd. LEXIS 29, at *8-9 (July 22, 2016).
Here, the Court finds the circumstances justified Dr. McGehee’s unauthorized
care. The Appeals Board has stated, “An employer may risk being required to pay for
unauthorized treatment if it does not provide the treatment made reasonably necessary by
the work injury as required by Tennessee Code Annotated section 50-6-204(a)(1)(A).” Id.
at *8-9. Given that he has already performed surgery, the Court holds that Potomac shall
pay for the reasonable and necessary care provided or recommended by Dr. McGehee for
Ms. Hagan’s work-related injury and that he shall be the authorized doctor for any future
treatment.
Finally, the Court considers temporary disability benefits. For entitlement, Ms.
Hagan must prove: (1) disability from working as the result of a compensable injury; (2)
a causal connection between the injury and the inability to work; and (3) the duration of
the period of disability. See Shepherd v. Haren Const. Co., Inc., 2016 TN Wrk. Comp.
App. Bd. LEXIS 15, at *13 (Mar. 30, 2016). Where the disability is not total, the
employee may recover temporary partial disability benefits if the employee is able to
resume some gainful employment but has not reached maximum recovery. Id.
N.P. Archer, with Dr. Hudson’s approval, limited Ms. Hagan to no use of her left
arm. This restriction prevented Ms. Hagan from returning to work at Potomac and led to
her “leave of absence.” When Dr. McGehee saw her on April 9, he continued the
restriction against using her left arm until he saw her for a follow-up appointment six
weeks later. Unfortunately, the account of Dr. McGehee’s treatment ends until the
Worklink note in October, where he gave Ms. Hagan a ten-pound lifting restriction.
5
The Court finds sufficient evidence to show that Ms. Hagan is likely to prove
entitlement to temporary partial disability benefits from March 25 through May 21, 2021,
when she was scheduled to return to Dr. McGehee. Ms. Hagan may be entitled to
additional temporary disability benefits, but the Court is unable to make a finding as to
the extent and duration of her disability based on the current record.
The final issue concerns Ms. Hagan’s average weekly wage. The record is unclear
as to her date of hire. The wage statement begins on April 5, 2020, but two medical
records state she began work in October, and the first report of injury lists March 15,
2021 as her date of hire. Nevertheless, based on the wage statement Potomac provided,
the Court holds that Ms. Hagan is likely to prove an average weekly wage of at least
$440.94, which calculates to a compensation rate of $293.96. Thus, Potomac shall pay
Ms. Hagan $2,393.67 in temporary partial disability benefits for the period of March 25
through May 21, 2021.
IT IS, THEREFORE, ORDERED THAT:
1. Potomac shall pay for the reasonable and necessary past medical treatment
recommended or provided by Dr. James McGehee for Ms. Hagan’s work-
related left shoulder injury. Dr. McGehee is further designated as Ms. Hagan’s
authorized physician for any additional care she may require under Tennessee
Workers’ Compensation Law.
2. Potomac shall pay Ms. Hagan $2,393.67 in past temporary partial disability
benefits.
3. This case is set for a Scheduling Hearing on January 5, 2022, at 9:30 a.m.
Central Time. The parties must call 615-253-0010 to participate. Failure to
appear might result in a determination of the issues without the party’s
participation.
4. Unless 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 Insurer or Self-Insured 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 the necessary confirmation within the
period of compliance might result in a penalty assessment for non-compliance.
For questions regarding compliance, please contact the Workers’
Compensation Compliance Unit via email at
WCCompliance.Program@tn.gov.
6
ENTERED on November 19, 2021.
_____________________________________
ROBERT DURHAM, JUDGE
Court of Workers’ Compensation Claims
APPENDIX
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Order on Show Cause Hearing
4. Request for Expedited Hearing
4. Order Compelling Discovery
5. Docketing Notice
6. Potomac’s Pre-Hearing Brief
Exhibits:
1. Ms. Hagan’s affidavit
2. Choice of Physician forms
3. Wage Statement
4. Medical records of Dr. James McGehee
5. Causation statement from Dr. Toney Hudson
6. Affidavit from Dr. Hudson
7. Ms. Hagan’s deposition excerpts
8. First Report of Injury
9. Declaration of Shelly Modrall
10. Declaration of Elaine Donhoffner
11. Causation letter from Dr. McGehee
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CERTIFICATE OF SERVICE
I certify that a copy of the Order was sent as indicated on November 19
__, 2021.
Name Certified Via Email Address
Mail Email
Kimberly Hagan X Kimhagan17@gmail.com
Gregory Fuller X ghfuller@mijs.com
_____________________________________
PENNY SHRUM, Court Clerk
WC.CourtClerk@tn.gov
8
Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, 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 seven business days of the
date the expedited hearing order was filed. When filing the Notice of Appeal, you must
serve a copy upon all parties.
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
alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
website or any Bureau office) seeking a waiver of the 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 the 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. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business 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 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. If you wish to file a position statement, you must file it with the court clerk within ten
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements should include: (1) a
statement summarizing the facts of the case from the evidence admitted during the
expedited hearing; (2) a statement summarizing the disposition of the case as a result of
the expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an
argument, citing appropriate statutes, case law, or other authority.
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 (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
□ 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