The opinion
FILED
Jan 31, 2022
11:46 AM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT CHATTANOOGA
Raphaela Hodge, ) Docket No. 2019-01-0499
Employee, )
v. )
Amazon.com, ) State File No. 25060-2019
Employer, )
And )
American Zurich Insurance Co., ) Judge Audrey A. Headrick
Carrier. )
COMPENSATION ORDER
The Court held a Compensation Hearing to determine whether Ms. Hodge is entitled
to benefits for her left-shoulder injury. Resolution of this issue rests on credibility. For
the reasons below, the Court holds she is not entitled to benefits.
History of Claim
The crux of this case is whether Ms. Hodge became injured when she tripped and
fell over a dog kennel at home and sought emergency treatment for her left shoulder, or
whether the injury resulted from lifting a box at work for Amazon.
At the hearing, Ms. Hodge testified about the emergency treatment from the March
13, 2019 fall at home. She denied complaining about left-shoulder pain, claiming she
reported neck stiffness. However, the intake form noted “left shoulder and left knee pain .
. . [with] increasing shoulder pain and decreased ROM.” Likewise, Ms. Hodge admitted
in her Admission responses that she “complained of pain in . . . left shoulder.” The record
was silent about any neck complaints. The provider diagnosed left-shoulder and knee
contusions/strains, prescribed an anti-inflammatory medication, and recommended follow
up with an orthopedist as needed.
Regarding the work incident, which took place three days after she fell at home, Ms.
Hodge stated she heard a pop in her left shoulder while lifting a heavy box. She went to
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the onsite medical clinic, reported the injury, and received authorized treatment from Dr.
Natasha Ballard. Dr. Ballard’s record reflects Ms. Hodge “denie[d] previous shoulder
injury,” reporting left-shoulder pain and reduced range of motion.
Amazon offered Ms. Hodge a panel, and she selected Dr. Benjamin Miller, an
orthopedic surgeon. She reported lifting a box at work and hearing a pop but did not
disclose the emergency treatment. Dr. Miller diagnosed a rotator cuff tear and
recommended surgery. At that point, Amazon did not approve the surgery and denied the
claim “due to her having been seen 3 days prior at Erlanger for shoulder pain.”
Ms. Hodge testified Amazon learned of her fall at home and emergency treatment
from her co-worker/friend, Ms. Murphy. She acknowledged she told Ms. Murphy that she
fell at home, but she denied telling Ms. Murphy that she went to the emergency room or
which body part she injured in the fall. However, in her response to admissions, Ms. Hodge
admitted she told “a co-worker that [she] fell at home and hurt [her] shoulder.” When
confronted with her admission at trial, Ms. Hodge responded it was wrong.
For her part, Ms. Murphy testified Ms. Hodge stated she fell at home over a dog
kennel, landing on her face and arm. Ms. Murphy stated Ms. Hodge admitted she was
“claiming a work injury from that fall.” Ms. Murphy provided a handwritten statement to
Amazon in May but acknowledged she mistakenly wrote the conversation occurred two
months before instead of two weeks. She explained she delayed reporting the conversation
to Amazon due to their friendship and to avoid work drama.1
Despite learning about Ms. Hodge’s fall at home, Dr. Miller determined causation
based on her reported history of hearing a pop when lifting at work. At his first deposition,
Dr. Miller repeatedly identified “the pop” as the basis for concluding the lifting incident
caused her rotator cuff tear. He agreed he based his causation opinion on what she told
him.
At his second deposition, Dr. Miller’s causation opinion remained consistent. He
stated the alleged lifting incident “[was] likely the main contributing cause greater than 51
percent of her left shoulder injury (torn rotator cuff) and need for surgical intervention.”
Dr. Miller ultimately performed two left-shoulder surgeries.2
Dr. Miller also testified about his reliance on Ms. Hodge’s credibility. He reiterated
he based his causation opinion on what she told him. As to calculating Ms. Hodge’s
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Drama did ensue. In an Amazon Facebook group chat, Ms. Hodge called Ms. Murphy a “snitch” and
“[expletive],” telling her she would “be sorry later.”
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During his deposition, Dr. Miller also addressed Ms. Hodge’s 2021 right-shoulder rotator cuff tear. He
stated she did not report an injury or pop and agreed it “can be” consistent with an overuse type injury.
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impairment, he stated he used a Grade Two modifier because she was tender to touch.
However, Dr. Miller noted it is “fairly unnormal” for a patient to remain tender around the
rotator cuff a year after surgery. He acknowledged his impairment assessment was
somewhat dependent on Ms. Hodge’s complaints. Further, Dr. Miller found it “a little
odd” that Ms. Hodge did not disclose her emergency treatment during her first visit.
Dr. Miller placed Ms. Hodge at maximum medical improvement on April 21, 2021,
and assigned an impairment rating of four percent and permanent restrictions. However,
the functional capacity evaluation therapist concluded Ms. Hodge provided an unreliable
effort and recommended no restrictions. Dr. Miller considered his restrictions appropriate
based on “just examining the patient.”
Dr. Robert Mastey, a board-certified orthopedic surgeon who practices in the same
group as Dr. Miller, performed an employer’s examination for Amazon, which included a
record review and an in-person evaluation.
During his exam, Dr. Mastey found Ms. Hodge’s responses troublesome. He asked
her three different times if she could recall ever having a problem with her shoulder before
the work incident, and Ms. Hodge responded “no” each time. Her responses to self-care
activities suggested she would not be able to perform basic self-care. By contrast, her
responses to another questionnaire stated the only task she was unable to do was comb her
hair.
Likewise, Dr. Mastey found irregularities during his physical examination. He
noted Ms. Hodge exhibited “a very pronounced and exaggerated pain response with left
shoulder motion.” With Dr. Miller, Ms. Hodge demonstrated 150 degrees of forward
flexion but only 90 degrees with Dr. Mastey. Further, Dr. Mastey was unable to perform
strength testing, an O’Brien’s test, and a Speed test due to Ms. Hodge’s pain response,
which he described as “[a]lmost in the exaggerative level.”
Dr. Mastey also found a contradiction in Ms. Hodge’s functional capacity
evaluation. He noted on page twenty-two of the report, “it shows her [in a photograph]
raise her arm, her left arm 135 degrees.” However, Dr. Mastey explained the same page
also shows “she’s only able to move her arm 82 degrees on the testing.”
Dr. Mastey disagreed with Dr. Miller regarding causation and impairment. In his
office note, Dr. Mastey wrote that, based on the many inconsistencies, it was “very unlikely
(<51%) that the LEFT rotator cuff tear [was] due to the purported on-the-job injury
3/16/2021.” During his deposition, he reiterated he was unable to find that the work
incident caused Ms. Hodge’s rotator cuff tear due to the discrepancies. Likewise, when
calculating her impairment rating, Dr. Mastey assigned a two-percent impairment by using
the Grade C default due to the conflicting information.
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Findings of Fact and Conclusions of Law
Ms. Hodge, as the employee in a workers’ compensation claim, has the burden of
proof on all essential elements of her claim. Scott v. Integrity Staffing Solutions, 2015 TN
Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). At a Compensation Hearing, Ms.
Hodge must prove by a preponderance of the evidence that she is entitled to benefits. Tenn.
Code Ann. § 50-6-239(c)(6) (2021).
Under Workers’ Compensation Law, Ms. Hodge must prove she suffered an injury
caused by a specific incident or set of incidents arising “primarily out of and in the course
and scope of employment,” which means the employment contributed more than fifty
percent in causing the injury, considering all causes. Tenn. Code Ann. § 50-6-102(14)(A)-
(B).
Amazon relied on Dr. Mastey’s opinion to support its denial. However, since Ms.
Hodge chose Dr. Miller from a panel, his opinion is presumed correct subject to rebuttal
by a preponderance of the evidence. Tenn. Code Ann. § 50-6-102(14)(E). The Court must
determine if Amazon rebutted the presumption of correctness attached to Dr. Miller’s
opinion. After reviewing the evidence, the Court holds it did.
In evaluating conflicting expert testimony, 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
through other experts.” Brees v. Escape Day Spa & Salon, 2015 TN Wrk. Comp. App. Bd.
LEXIS 5, at *14 (Mar. 12, 2015).
Drs. Miller and Mastey offered opposing causation opinions. Both physicians are
qualified, but Dr. Mastey is board-certified. This factor favors Dr. Mastey. As to the
circumstances of their examination, Dr. Mastey saw Ms. Hodge once, while Dr. Miller saw
her for ongoing treatment. This factor favors Dr. Miller. What sets these two experts apart
is that Dr. Mastey did not turn a blind eye to the many inconsistencies, while Dr. Miller
did.
The list of discrepancies is long. Ms. Hodge never disclosed her emergency
treatment or fall at home to Dr. Mastey and delayed reporting it to Dr. Miller. She only
reached 90 degrees forward flexion during Dr. Mastey’s examination but reached 150
degrees during Dr. Miller’s. A photograph from the functional capacity evaluation of Ms.
Hodge showed her reaching at 135 degrees but testing at only 82 degrees. The therapist
concluded Ms. Hodge provided an unreliable effort. Dr. Miller acknowledged it is “fairly
unnormal” for a patient to remain tender around the rotator cuff a year after surgery.
Considering the information available to them and the importance of that information to
other experts, this factor favors Dr. Mastey.
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For these reasons, the Court finds that Dr. Mastey’s opinion overcame the
presumption of correctness afforded to Dr. Miller’s opinion.
Additionally, Ms. Hodge’s credibility is tied to her claim that she injured her
shoulder while lifting at work. Amazon impeached her testimony, and Ms. Hodge failed
to offer any plausible explanation for the many discrepancies. Ms. Hodge stated she never
told Ms. Murphy which body part she injured in the fall. In her response to admissions,
she admitted telling “a co-worker that [she] fell at home and hurt [her] shoulder.” The
Court is not reassured by Ms. Hodge’s response that her admission response was wrong.
Similarly, Ms. Hodge insisted she did not complain about left-shoulder pain when
receiving emergency treatment. However, the medical record and her admission response
state that she “complained of pain in . . . left shoulder.” The discrepancies in Ms. Hodge’s
own testimony bolstered Ms. Murphy’s version of events: that Ms. Hodge was “claiming
a work injury from that fall.” Given the witness testimony, the medical records, and the
expert opinions, the Court does not find Ms. Hodge credible.
Therefore, the Court holds Ms. Hodge did not prove by a preponderance of the
evidence that she is entitled to the requested benefits.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. Hodge’s claim is denied.
2. Amazon shall pay the $150.00 filing fee to the Clerk within five business days after
this order becomes final.
3. Amazon shall file an SD-2 with the Clerk within ten business days of this order
becoming final.
4. Unless appealed, this order shall become final in thirty days.
IT IS ORDERED.
ENTERED January 31, 2022.
________________________________________
Judge Audrey A. Headrick
Court of Workers’ Compensation Claims
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APPENDIX
Exhibits:
1. Deposition of Dr. Miller, June 22, 2020
2. Deposition of Dr. Miller, December 17, 2021
3. Erlanger Hospital records
4. AFC Urgent Care records
5. Employee’s Responses to Employer’s Requests for Admission
6. Transcript of Expedited Hearing, pages 83-84
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice, October 3, 2019
3. Notice of Appearance
4. Request for Expedited Hearing
5. Expedited Hearing Order
6. Agreed Order of Substitution
7. Motion to Revise Scheduling Order
8. Amended Scheduling Order
9. Dispute Certification Notice, December 22, 2021
10. Pre-Compensation Hearing Statement
11. Employer’s Witness and Exhibit List
12. Employer’s Brief
13. Agreed Order for Attendance of Harley Charles and Braynemost Escalona by Video
14. Notice of Amended Filing of Employee’s Pre-Trial Memorandum
15. Amended Employee’s Pre-Trial Memorandum
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CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on January 31, 2022.
Name Certified Email Service sent to:
Brent Burks, X brentburks@mcmahanlawfirm.com
Lew Belvin, X lew.belvin@mcmahanlawfirm.com
Katie Reed, X katiereed@mcmahanlawfirm.com
Employee’s Attorneys
W. Troy Hart, X wth@mijs.com
Tiffany B. Sherrill, X tbsherrill@mijs.com
Employer’s Attorneys
/s/Penny Shrum w/permission JD
______________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
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