discussing indicia of witness credibility.
How later courts described this case
- discussing indicia of witness credibility.
Written by the judges who cited it.
The opinion
FILED
Jan 21, 2022
09:05 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT JACKSON
MICHAEL THEUS, ) Docket No. 2020-07-0431
Employee, )
v. )
TOYOTA BOSHOKU AMERICA, INC., )
Employer, ) State File No. 59042-2019
And )
MITSUI MARINE AND FIRE INS. CO. )
OF AMERICA, )
Carrier. ) JUDGE AMBER E. LUTTRELL
COMPENSATION ORDER
The Court held a Compensation Hearing on Mr. Theus’s right-shoulder claim. The
issues are whether his injury is compensable, and if so, his entitlement to permanent partial
disability benefits. For the reasons below, the Court holds that Mr. Theus’s shoulder injury
is compensable, and he is entitled to permanent partial disability benefits, including an
increased award, totaling $49,269.98.
History of Claim
Mr. Theus worked as a machine loader for Toyota. On August 5 and 6, 2019, he
performed a different job inspecting parts, which required him to repetitively lift totes of
parts weighing twenty-five to thirty pounds. On August 6, he lifted a tote and felt sharp
pain in his back around his right shoulder blade. He reported the injury to his supervisor,
Robert Yarbro, was examined by a plant nurse, and was instructed to return to work to
visually inspect parts. Mr. Theus testified he experienced pain in the right side of his back
and right arm the remainder of the shift.
Mr. Theus testified to a prior right-shoulder injury in 2008 from exercising. He had
a rotator cuff repair surgery, and after recovery, his doctor released him with no restrictions.
Mr. Theus testified he worked consistently after that injury without any right-shoulder pain
until his 2019 work injury.1
1
Mr. Theus also testified to one prior work injury to his left shoulder at Toyota.
1
After his work injury, Mr. Theus completed two “Affected Team Member
Statements.” He completed the first statement the day of the injury, describing the incident
and marking the location of his pain on a diagram as the middle right side of his back. (Ex.
5.) Mr. Yarbro also prepared a statement and a Toyota accident report, which recounted
Mr. Theus’s report of lifting totes of parts and a sharp pain in the right side of his mid-
back. (Ex. 6 and 7.) Mr. Theus said his initial pain was more in his back, but after a couple
of days, he reported to Toyota that the pain was more in his right shoulder and arm. A
human resources representative asked him to complete a second statement, where he
marked his right shoulder on the diagram as the source of his pain. Mr. Theus testified that
Toyota did not produce a copy of the second statement, but Toyota did not dispute Mr.
Theus’s testimony regarding the statement.
Treatment and Evaluation
Based on Mr. Theus’s symptoms, Toyota provided a panel of physicians, from
which he selected Dr. Peter Gardner. Mr. Theus saw Dr. Gardner and reported “sharp
shooting pain from [his]shoulder blade to middle of [his] back” resulting from his work
injury. Dr. Gardner gave a steroid injection, ordered physical therapy, and placed him on
light duty. After two more visits, Dr. Gardner referred him to an orthopedic specialist, and
Mr. Theus selected Dr. Jason Hutchison from a panel.
Mr. Theus saw Dr. Hutchison and completed an intake sheet, where he stated the
reason for his visit was his right “shoulder/back” resulting from a work-related lifting
injury on August 6. Mr. Theus told Dr. Hutchison about his right-shoulder injury from
2008 and stated that after recovering from surgery, he had no problems until this work
injury.
Dr. Hutchison took a history of Mr. Theus stacking thirty-pound tubs for two days
in a row when, on the second day, he “started having burning in his shoulder and back that
worsened.” On exam, Dr. Hutchison testified Mr. Theus had “horrible shoulder motion”
and “very limited ability to move his arm.” He stated Mr. Theus was “physically resisting
me moving his shoulder.” He believed Mr. Theus was magnifying his symptoms but was
not malingering. Dr. Hutchison explained that symptom magnification is different than
malingering. Unlike malingering, he testified that symptom magnification,
does not mean that someone is making up or feigning illness. In situations of
work comp, sometimes symptom magnification is just the patient’s way of
trying to make sure that you listen to them, or their fear that they’re going to
be overlooked or pushed out the door or not taken seriously, and so they go
over the top with their symptoms.
Dr. Hutchison ordered an MRI to determine if Mr. Theus was “just carrying on,” or if he
had true pathology in the shoulder. After the MRI revealed a near full-thickness rotator
cuff tear, Dr. Hutchison stated that Mr. Theus “ha[d] a reason to be hurting” and ordered
2
surgery. He further testified that “when you have pathology that can . . .and should generate
pain, symptom magnification becomes less concerning to me.”
At the next and final visit on May 4, 2019, Dr. Hutchison learned that Toyota denied
the surgery. He testified, “it appeared that based upon the previous records and history on
his shoulder . . . his shoulder surgery was denied as not caused by the alleged work
incident.” Dr. Hutchison stated he had nothing to do with Toyota’s denial at that time.
Based on the denial, Dr. Hutchison released Mr. Theus at maximum medical improvement.
He continued previously-assigned restrictions of no lifting or pushing over five pounds,
and no over-the-shoulder work with the right arm. Dr. Hutchison testified that those
restrictions would continue, “assuming he has not had surgery or resolution of his
symptoms.”
After Dr. Hutchison released him, Mr. Theus saw Dr. Samuel Chung for an
independent medical evaluation. Mr. Theus reported persistent shoulder pain, and he was
unable to maintain functional movement in his shoulder. Dr. Chung reviewed Mr. Theus’s
treatment records and took a history of him repetitively stocking thirty-pound tubs on
August 6, 2019, when he developed pain in his right shoulder. He stated that Mr. Theus
did not describe an acute injury but that the lifting of the tubs caused the onset of his pain.
Mr. Theus also told Dr. Chung about his prior injury in 2008 and that he regained full
function in his shoulder after surgery and therapy.
Dr. Chung performed a physical exam and stated his exam findings were consistent
with the MRI findings of a near full-thickness tear. Dr. Chung used a goniometer to
measure Mr. Theus’s active range of motion and found a moderate degree of motion loss
in his flexion and abduction, and a mild degree of motion loss in extension, adduction, and
internal and external rotation. Based on his range of motion loss, Dr. Chung assigned a
permanent impairment rating of thirteen percent using the Sixth Edition of the AMA
Guides. Dr. Chung did not know if Mr. Theus would still benefit from surgery, given the
time that passed. He said he would defer that opinion to Dr. Hutchison.
Physicians’ Causation Testimony
Dr. Hutchison gave two depositions. In his first deposition, he testified that Mr.
Theus’s employment was not “the primary cause greater than fifty-one percent.” He stated
that after reviewing the records from Mr. Theus’s shoulder injury in 2008, and based on
his symptom magnification, he could not say within a reasonable degree of medical
certainty that his work injury was the primary cause of the rotator cuff tear.
At his second deposition, Dr. Hutchison revised his testimony by stating he could
not say Mr. Theus’s employment contributed “greater than fifty-percent in causing the
injury.” This time, he cited symptom magnification as the primary basis for his causation
opinion. He said, “this guy’s just ̶ he’s way over the top in his presentation.” He further
testified, “I cannot say to a reasonable degree of medical certainty that work did cause this.
3
I’m not saying that it didn’t. It may have. But I can’t say . . . that it did because this guy’s
too over the top. He’s not believable to me.”
On cross examination, Dr. Hutchison agreed that Mr. Theus’s reported mechanism
of injury ̶ lifting and stacking thirty-pound tubs for two days ̶ could cause a rotator cuff
tear. He also testified that he had no records or other evidence to suggest Mr. Theus did not
have “a complete recovery—a complete healing of the rotator cuff tear” from his surgery
for his 2008 injury. In conclusion, Dr. Hutchison could not state “to any degree of medical
certainty one way or the other” that Mr. Theus’s shoulder injury did or did not occur at
work.
Dr. Chung also gave two depositions and testified that Mr. Theus’s reported work
activities were the primary cause of his rotator cuff injury. Dr. Chung stated that Mr.
Theus’s repetitive work activities, including stocking the thirty-pound tubs over time,
eroded the rotator cuff tendon and ultimately may have caused the tendon to snap on
August 6, 2019. In his second deposition, Dr. Chung testified that Mr. Theus’s work on
August 6, 2019, contributed greater than fifty percent in causing his right shoulder full-
thickness rotator cuff tear. Dr. Chung was also aware of Mr. Theus’s prior right-shoulder
injury and stated that he recovered fully after rehab, regained full function in his shoulder,
and worked full duty until his work injury.
Dr. Chung further testified that Mr. Theus was honest with him throughout his
evaluation, gave a full and consistent effort on exam, offered “straightforward” answers to
his questions, and was consistent in his story regarding his work injury.
Additional Lay Witness Testimony
Mr. Theus has not had any treatment for his shoulder since Dr. Hutchison released
him. He is still in pain and has limited use of his shoulder. He said his shoulder gives him
problems with “lifting and maneuvering,” and he still wants surgery.
Mr. Theus has not worked for Toyota since March 20, 2020, when the facility shut
down due to the pandemic. He stated that the facility reopened “a couple of months later,”
but Toyota never called him back to work. He has spoken to Toyota representatives
regarding his employment status and was told that they were waiting on a physician’s note
regarding his restrictions. Because Mr. Theus has been unable to have surgery, he remains
under Dr. Hutchison’s restrictions of no lifting or pushing greater than five pounds and no
over-the-shoulder work. He stated he would like to return to work at Toyota.2
Findings of Fact and Conclusions of Law
2
Mr. Theus’s supervisor, Robert Yarbro, also testified. He confirmed that Mr. Theus reported an incident
to him on August 8 from lifting a tote. He stated Mr. Theus only mentioned his back at that time.
4
At a Compensation Hearing, Mr. Theus must prove by a preponderance of the
evidence that he is entitled to the requested benefits. Willis v. All Staff, 2015 TN Wrk.
Comp. App. Bd. LEXIS 42, at *18 (Nov. 9, 2015); see also Tenn. Code Ann. § 50-6-
239(c)(6) (2021).
Compensability
To prove a compensable injury, Mr. Theus must show that his injury arose primarily
out of and in the course and scope of employment. To do so, he must prove a work-related
incident or set of incidents identifiable by time and place of occurrence. Tenn. Code Ann.
§ 50-6-102(14)(A).
Here, Mr. Theus was lifting totes of parts weighing twenty-five to thirty pounds for
two days when on August 6, 2019, he lifted a tote and felt pain in the right side of his back
around his shoulder blade.
The Court finds Mr. Theus credible. At trial, he was calm, forthcoming, self-
assured, reasonable, and honest. See Kelly v. Kelly, 445 S.W.3d 685, 694-695 (Tenn. 2014)
(discussing indicia of witness credibility.) Further, his testimony was supported by his
affected team member statement, his supervisor’s statement, the accident report, First
Report, Dr. Hutchison’s intake sheet and records. After a couple of days, he noticed more
pain in his right shoulder and arm and gave uncontroverted testimony that he completed a
second statement specifically referencing his shoulder, although Toyota never produced
the statement. Based on this evidence, the Court holds he proved a specific incident or set
of incidents, identifiable by time and place of occurrence.
Further, Mr. Theus must show, to a reasonable degree of medical certainty, that the
incident or incidents contributed more than fifty percent in causing the disablement or need
for medical treatment, considering all causes. A “reasonable degree of medical certainty”
means that, in the physician’s opinion, it is more likely than not considering all causes as
opposed to speculation or possibility. Tenn. Code Ann. § 50-6-102(14)(D). Thus, causation
must be proven by expert medical testimony. The Court considered the competing medical
opinions of Drs. Hutchison and Chung.
In denying compensability for Mr. Theus’s rotator cuff tear, Toyota relied on Dr.
Hutchison’s opinion that Mr. Theus’s employment did not contribute more than fifty
percent in causing the injury because of the prior shoulder injury and perceived symptom
magnification. As the panel physician, Dr. Hutchison’s causation opinion is afforded a
rebuttable statutory presumption of correctness. Tenn. Code Ann. § 50-6-102(14)(E). The
issue is whether Mr. Theus successfully rebutted the presumption afforded Dr. Hutchison’s
opinion by a preponderance of the evidence. The Court finds he did.
First, the Court finds Dr. Hutchison’s causation opinion based on symptom
magnification unconvincing. Dr. Hutchison believed Mr. Theus was magnifying his
symptoms from the first visit. Yet, he explained that it was different from malingering, did
not mean Mr. Theus was feigning an injury, and he ordered an MRI. After finding a near
full-thickness tear on the MRI, he stated that Mr. Theus had “a reason to be hurting” and
5
ordered surgery under worker’s compensation. It was not until (or after) the final visit in
May, when Dr. Hutchison learned that Toyota had denied the surgery, that the symptom
magnification findings concerned him enough to conclude that Mr. Theus was too “over
the top” in his presentation for him to say that his work contributed greater than fifty
percent in causing his rotator cuff tear.
The Court likewise finds unconvincing his opinion that he could not find causation
based on Mr. Theus’s prior shoulder injury. Mr. Theus’s uncontroverted testimony was
that he had a full recovery and was able to work without problems in his right shoulder for
years until his 2019 work injury. Toyota offered no evidence to show Mr. Theus required
any further treatment for his prior shoulder injury or had any problems in the years leading
up to the work injury. Moreover, Dr. Hutchison admitted he had no record or any evidence
to suggest Mr. Theus had anything but a full recovery from his prior injury.
In contrast, Dr. Chung concluded within a reasonable degree of medical certainty
that Mr. Theus’s work or employment on August 6 contributed greater than fifty-percent
in causing his rotator cuff tear. Dr. Chung believed the repetitive nature of Mr. Theus’s
work activities caused the rotator cuff tear versus one acute event, but he specifically
associated the tear with Mr. Theus’s lifting of the tubs on August 6 in his second deposition,
which was consistent with Mr. Theus’s testimony. Even Dr. Hutchison said the mechanism
of Mr. Theus’s injury could cause a rotator cuff tear. Dr. Chung was aware of Mr. Theus’s
shoulder injury from 2008 but credited Mr. Theus’s history that he recovered fully from
that injury, regained full function, and worked full duty until this work injury. He found
Mr. Theus was honest, gave a full and consistent effort on exam, offered “straightforward”
answers to his questions, and was consistent in his story regarding his work injury. Like
Dr. Hutchison, no evidence was presented to Dr. Chung to suggest Mr. Theus had anything
but a full recovery from his prior injury.
When faced with conflicting medical testimony, the Court must accept one expert
opinion over another and, in so doing, may consider which opinion contains the more
probable explanation. Sanker v. Nacarato Trucks, Inc., 2016 TN Wrk. Comp. App. Bd.
LEXIS 27, at *12 (July 6, 2016). Further, Tennessee law has long held that medical proof
is not to be “read and evaluated in a vacuum” but, instead “must be considered in
conjunction with the lay testimony of the employee as to how the injury occurred and the
employee’s subsequent condition.” Thomas v. Aetna Life and Cas. Co., 812 S.W.2d 278,
283 (Tenn. 1991).
Here, the Court finds Dr. Chung’s testimony sufficient to prove Mr. Theus’s rotator
cuff injury arose primarily out of his employment, considering all causes. Upon
consideration of the totality of the medical proof and Mr. Theus’s credible testimony, the
Court holds Mr. Theus overcame the presumption of correctness afforded Dr. Hutchison’s
causation opinion, and he sustained a compensable right-shoulder rotator cuff injury.
Permanent Partial Disability
6
As for impairment, the Court finds Dr. Chung offered the only testimony on this
point; therefore, the Court holds Mr. Theus sustained a thirteen-percent impairment.
Because the Court holds Mr. Theus sustained a compensable shoulder injury, the
Court turns to his entitlement to permanent partial disability benefits. The assessment of
these benefits occurs at two different times.
The first assessment takes place once the treating physician places the injured
employee at maximum medical improvement and assigns an impairment rating. Based on
the above findings regarding Mr. Theus’s permanent impairment, the Court finds he has an
anatomic rating of thirteen percent, which entitles him to 58.5 weeks of benefits. At his
stipulated compensation rate of $519.89, Mr. Theus’s original award is $30,413.57. See
Tenn. Code Ann. § 50-6-207(3)(A).
The second assessment occurs at the expiration of the initial compensation period.
Based on the thirteen percent impairment and Mr. Theus’s maximum medical improvement
date of May 4, 2020, Mr. Theus’s initial compensation period expired on June 17, 2021.
At that time, the parties did not dispute that he had work restrictions from Dr. Hutchison
and had not returned to work for any employer; therefore, he qualifies for a resulting award
and increased benefits. See Tenn. Code Ann. § 50-6-207(3)(B). Mr. Theus contended,
without contradiction, that the multipliers of 1.35 and 1.2 apply. Applying those
multipliers, Mr. Theus’s increased benefits total $18,856.41.
IT IS THEREFORE ORDERED as follows:
1. Toyota Boshoku America or its carrier shall pay permanent partial disability benefits
to Mr. Theus in the total amount of $49,269.98 ($30,413.57 original award plus
$18,856.41 increased benefits).
2. Toyota Boshoku America shall pay all reasonable and necessary future medical
benefits for Mr. Theus’s right shoulder injury under Tennessee Code Annotated
section 50-6-204, including surgery, if reasonable and necessary for the injury.
3. Mr. Theus’s counsel is entitled to a twenty-percent attorney’s fee to be paid from
his award. See Tenn. Code Ann. § 50-6-226(a)(1).
4. Costs of $150.00 are assessed against Toyota Boshoku America under Tennessee
Compilation Rules and Regulations 0800-02-21-.06 (August, 2019), to be paid
within five days of this order becoming final. Toyota Boshoku America shall file a
statistical data form (SD2) within ten business days of the date of this order under
Tennessee Code Annotated section 50-6-244.
5. Unless appealed, this order shall become final thirty-days after issuance.
7
ENTERED January 21, 2022.
___________________________
JUDGE AMBER LUTTRELL
Court of Workers’ Compensation Claims
Appendix
Exhibits
1. Dr. Hutchison’s deposition
1.a Dr. Hutchison’s supplemental deposition
2. Dr. Chung’s deposition
2.a Dr. Chung’s supplemental deposition
3. Physicians Quality Care records
4. Dr. Hutchison’s intake sheet
5. Affected Team Member Statement
6. Accident Report
7. Robert Yarbro’s Witness Statement
8. Panel of Physicians
9. First Report of Injury
10. Excerpt of Mr. Theus’s deposition
11. Job description
Technical Record
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Scheduling Hearing
4. Notice of Substitution of Attorney for Employee
5. Order Resetting Scheduling Hearing
6. Scheduling Order
7. Dispute Certification Notice (post-discovery)
8. Pre-Compensation Hearing Statement
9. Employer’s Notice of Filing
10. Initial Joint Stipulations of the Parties
11. Employee’s List of Witnesses and Exhibits
12. Order (November 5, 2021)
13. Status Hearing Order (November 15, 2021)
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on January 21, 2022.
Name Email Service sent to:
Edward Martindale, Employee’s Attorney X edwardlmartindale@gmail.com
rachalgmorris@gmail.com
8
Jeffrey C. Taylor, Employer’s Attorney X jeff@taylorlawfirmtn.com
kathy@taylorlawfirmtn.com
______________________________________
Penny Shrum, Court Clerk
Court of Workers’ Compensation Claims
9
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
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 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 fifteen 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
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