The opinion
FILED
Oct 04, 2023
07:06 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT KNOXVILLE
CLAYTON RASH, ) Docket No. 2022-03-0580
Employer )
v. )
FINE LINE TRANSPORTATION, )
LLC, ) State File No. 16843-2022
Employer, )
And )
STARTSTONE NATIONAL )
INSURANCE COMPANY, ) Judge Pamela B. Johnson
Carrier. )
______________________________________________________________________
EXPEDITED HEARING ORDER GRANTING BENEFITS
Clayton Rash broke his wrist at work. Fine Line Transportation paid temporary
disability benefits and authorized medical treatment, including physical therapy. During
physical therapy, Mr. Rash allegedly injured his shoulder. He sought benefits under the
direct and natural consequences rule, but Fine Line denied his request. For the reasons
below, the Court holds Mr. Rash is likely to prevail at a hearing on the merits and is entitled
to medical and temporary disability benefits for his shoulder injury.
History of the Claim
Mr. Rash worked as a truck driver for Fine Line. On March 7, 2022, Mr. Rash fell
and broke his left wrist. He received authorized treatment and underwent surgical repair of
the fractured wrist and left carpal tunnel release. 1 After surgery, his treating physician, Dr.
Keith Douglas, referred Mr. Rash to physical therapy.
The physical therapist, Eric Harmon, wrote that the treatment plan included, in part,
active and passive range of motion exercises, deep friction and scar massage, deep tissue
1
Dr. David Hovis performed the surgeries, until care transferred to Dr. Douglas after Mr. Rash moved to
Cookeville, Tennessee.
1
and joint mobilization, taping, and stretching. In late October, Mr. Harmon noted “still
guarded with internal rotation posture of the extremity,” and he planned to “[continue] to
push upper quadrant mobility/strength and forced use.”
Two days later, Mr. Rash told Mr. Harmon that he “tried to play catch with the kids;
painful trying to close glove.” Mr. Harmon “educated [Mr. Rash] that all [activity] at this
time will be perceived as painful; however, he is not harming anything and I STRONGLY
encourage trying to do more with left arm.” (Emphasis in original).
During the November 2 physical therapy session, Mr. Rash felt a pop in his left
shoulder, causing immediate pain. The parties disputed when and how the shoulder injury
occurred.
Mr. Rash described the incident in his affidavits: “while working my left shoulder
and arm in accordance with the instruction of my physical therapist Eric Harmon, I felt a
pop in my left shoulder causing me immediate pain.” At the hearing, he explained that Mr.
Harmon instructed him to lie on the floor and perform “snow angels.” When Mr. Rash was
unable to move his arms above his head, Mr. Harmon placed his hands on Mr. Rash’s left
elbow and wrist and pushed his arm above his head. At that point, Mr. Rash reported that
he felt a pop and immediate pain, and Mr. Harmon responded that Mr. Rash’s muscles
were waking. Mr. Rash denied similar pain before the physical therapy incident and said
he still has shoulder pain.
Mr. Harmon reviewed his treatment notes and confirmed in his sworn statement that
Mr. Rash was instructed to lie down and perform snow angels. He stated, “nowhere in my
note did I do any manual therapy.” Mr. Harmon denied any recollection of “manipulating
[Mr. Rash’s] arm or his shoulder.” In the physical therapy report for that day, without
referencing any shoulder incident, Mr. Harmon noted “[s]uspect increased neurogenic pain
from increased stretching and [activity]. Anticipate this to resolve with [continued] use and
mobility[.] [E]ducated to [continue] to work on posture and [pectoral] stretches.” Follow-
up physical therapy sessions in November mentioned left shoulder pain.
At his November 10 appointment, Mr. Rash informed Dr. Douglas that he felt a pop
in his shoulder with pain. Dr. Douglas noted, “[h]e was working on shoulder motion with
our therapist and then he stopped doing therapy.” Dr. Douglas referred Mr. Rash to a
shoulder surgeon.
When Fine Line denied his referral to a shoulder surgeon, Mr. Rash filed his first
hearing request for expedited hearing, seeking a panel. Before the hearing, Fine Line
provided a panel of orthopedic surgeons to treat the left shoulder and authorized treatment
with Dr. Kenneth Grinspun.
In January 2023, Dr. Grinspun noted, “[Mr. Rash] was in therapy for the [wrist
2
fracture] when he was doing some basically snow angel type ROM exercises. He felt a pop
in his left shoulder and he’s had difficulty raising his arm up since[.]” Dr. Grinspun ordered
an MRI, which showed a left rotator cuff tear, and he recommended surgery. Dr. Grinspun
answered a causation questionnaire, responding that, after considering all possible causes,
the rotator cuff tear primarily resulted from the “snow angel” exercises. On February 13,
2023, Dr. Grinspun assigned work restrictions of no use of left arm until surgery, which
Fine line did not accommodate.
Fine Line denied the surgery and obtained an employer’s examination with Dr. Sean
Kaminsky. After reviewing the medical records, Dr. Kaminsky noted that Mr. Rash
reported left wrist, forearm, humerus, and shoulder pain from the work accident. 2Mr. Rash
told Dr. Kaminsky that his shoulder pain started when the physical therapist pushed his
arm further while he was doing “snow angels.” Mr. Rash felt a pop in his shoulder and
pain. He denied any prior history of injury or pain in his left shoulder and continues to have
constant, sharp pain.
Dr. Kaminsky reviewed a letter from the physical therapist, who stated, “[Mr. Rash]
felt a pop in his shoulder while doing range of motion exercises as well as pain in the joints
of the left arm. He was supine on the floor, performing a ‘snow angel’ range of motion of
the shoulder. He was instructed to perform a comfortable range of exercises.” 3
Dr. Kaminsky confirmed the left rotator cuff tear. He noted, “[Mr. Rash] does
demonstrate a history . . . consistent with the acute onset of a left shoulder injury, and an
acute traumatic rotator cuff tear cannot be ruled out either, either from the initial fall or
physical therapy incident.” Dr. Kaminsky further wrote, “The cortisone injection may have
also resulted in temporary relief of [Mr. Rash’s] shoulder pain following an initial rotator
cuff injury until the time of the physical therapy encounter.” Dr. Kaminsky agreed that
surgery was appropriate and medically necessary. However, he added, “It is unusual that a
supine active physical therapy exercise event, where the exercise occurs without resistance
and neutralizes the force of gravity, would result in a rotator cuff tear.”
The parties agreed that both Drs. Douglas and Grinspun were panel-selected
physicians. They further agreed that Mr. Rash qualifies for the maximum weekly
compensation rate of $1,166.00, and Fine Line paid temporary disability benefits through
March 13, 2023.
Mr. Rash requested treatment with Dr. Grinspun for his left shoulder, including the
recommended surgery. He also sought temporary disability benefits from March 14, 2023,
and ongoing, or twenty-seven weeks, for a total of $31,482.00. He has not worked since
his original injury.
2
The parties did not introduce the emergency room records or initial treatment records with Dr. Hovis.
3
The parties did not offer the letter from Mr. Harmon.
3
Fine Line disputed that the shoulder injury occurred during physical therapy,
because Dr. Kaminsky wrote that “snow angels” are unlikely to cause torn rotator cuff
tears, and Mr. Harmon denied manipulating Mr. Rash’s left arm.
Findings of Fact and Conclusions of Law
Mr. Rash must prove a likelihood of prevailing at a hearing on the merits to receive
medical and temporary disability benefits. Tenn. Code Ann. § 50-6-239(d)(1) (2022).
Medical causation
Under the Workers’ Compensation Law, an “injury” arises primarily out of
employment if it is shown to a reasonable degree of medical certainty that the injury
contributed more than fifty percent in causing the need for treatment. Tenn. Code Ann. §
50-6-102(12)(C). “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. Id. at -
102(12)(D).
A later injury, whether in the form of an aggravation of the original injury or a new
and distinct injury, is compensable if it is the “direct and natural result” of a compensable
injury. Braden v. Mohawk Indus., Inc., 2022 TN Wrk. Comp. App. Bd. LEXIS 11, at *8
(Mar. 1, 2022). Every natural consequence that flows from the work injury arises out of
the employment, unless it is the result of an independent intervening cause attributable to
the employee's intentional conduct. Id. The Appeals Board addressed the parameters of an
employee’s burden of proof under this rule and concluded:
[A]n employee seeking to prove that a subsequent injury was a direct and
natural consequence of the original compensable injury must come forward
with evidence supporting a finding that the subsequent injury “flowed from”
or was a “natural consequence” of the original injury. In such circumstances,
one way an employer can respond is by showing that the actions of the
employee leading to the subsequent injury constituted negligence,
recklessness, or intentional conduct that broke the chain of causation.
Id. at *13-14.
Here, Mr. Rash credibly testified that he suffered a left shoulder injury during
physical therapy. By affidavit, he reported he felt a pop in his shoulder while performing
exercises. At the hearing, Mr. Rash explained that when he was unable to move his arms
above his head, Mr. Harmon placed his hands on his left elbow and wrist and pushed his
arm above his head. Mr. Rash denied similar pain before the physical therapy incident.
4
Mr. Harmon denied manipulating Mr. Rash’s left arm at any time during physical
therapy. However, his records note that the treatment plan included, in part, range of
motion exercises, massage, joint mobilization, taping, and stretching. In late October, Mr.
Harmon planned to “[continue] to push upper quadrant mobility/strength and forced use.”
Two days later, the date of the alleged incident, Mr. Harmon noted that he “educated [Mr.
Rash] that all [activity] at this time will be perceived as painful; however, he is not harming
anything and I STRONGLY encourage trying to do more with left arm.” (Emphasis in
original).
The Court does not find Mr. Harmon’s sworn statement, not subject to cross-
examination, persuasive. His statements of no manipulation are inconsistent with his
treatment plan. His letter advising that he instructed Mr. Harmon to perform the exercises
comfortably directly conflicts with his treatment note, where he “educated” Mr. Harmon
that all activity will be painful but will not harm anything, and he “strongly” encouraged
Mr. Rash to do more.
Moreover, Dr. Grinspun, a panel-selected physician, determined that the left rotator
cuff tear primarily occurred because of the physical therapy exercise. He recommended
surgical repair. As a panel-selected physician, his causation opinion is rebuttably presumed
correct. Tenn. Code Ann. § 50-6-102(12)(E). Likewise, his treatment recommendations as
a panel-selected physician are presumed medically necessary. Tenn. Code Ann. § 50-6-
204(a)(3)(H).
Dr. Kaminsky noted that a supine active physical therapy exercise event, performed
without resistance and neutralizing the force of gravity, would not usually result in a rotator
cuff tear. The Court does not find that Dr. Kaminsky’s opinion overcomes the presumption
the correctness afforded Dr. Grinspun. Even Dr. Kaminsky stated, “[Mr. Rash] does
demonstrate a history . . . consistent with the acute onset of a left shoulder injury, and an
acute traumatic rotator cuff tear cannot be ruled out either, either from the initial fall or
physical therapy incident.” Dr. Kaminsky further noted, “The cortisone injection may have
also resulted in temporary relief of [Mr. Rash’s] shoulder pain following an initial rotator
cuff injury until the time of the physical therapy encounter.” Dr. Kaminsky also agreed that
the recommended surgery was appropriate and medically necessary.
For these reasons, the Court holds Mr. Rash proved he is likely to prevail at trial
that his shoulder injury is a direct and natural consequence of his compensable left wrist
injury. He is entitled to medical treatment with Dr. Grinspun as the authorized treating
physician, including the recommended surgery.
Temporary disability benefits
For temporary partial disability benefits, Mr. Rash must show that his treating
physician returned him to work with restrictions due to the compensable work injury that
5
Fine Line did not accommodate. Heard v. Carrier Corp., 2018 TN Wrk. Comp. App. Bd.
LEXIS 16, at *5 (Apr. 20, 2018).
Mr. Rash proved that his left shoulder injury is the direct and natural consequence
of his compensable wrist injury. His treating physician, Dr. Grinspun, assigned permanent
restrictions of no use of his left arm until surgery. Fine Line has not accommodated his
restrictions.
The Court holds Mr. Rash proved he is likely to prevail at trial that he is entitled to
temporary partial disability benefits from March 14, 2023, and forward.
IT IS, THEREFORE, ORDERED as follows:
1. Fine Line shall provide Mr. Rash with medical treatment for his left shoulder under
Tennessee Code Annotated section 50-6-204 with Dr. Grinspun.
2. Fine Line shall pay Mr. Rash temporary partial disability benefits from March 14,
2023, and ongoing in the weekly amount of $1,166.00. Twenty-seven weeks, or
$31,482.00, have accrued and shall be paid in a lump sum.
3. The parties shall appear for a Status Conference on December 7, 2023, at 2:00 p.m.
Eastern Time. The parties must call 855-543-5041 toll-free to participate.
4. Unless interlocutory appeal of this expedited hearing order is filed, compliance with
this order must occur by seven business days 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 by email to
wccompliance.program@tn.gov by the compliance deadline. Failure to do so may
result in a penalty assessment for non-compliance.
5. For compliance questions, please contact the Workers’ Compensation Compliance
Program by email at wccompliance.program@tn.gov.
ENTERED October 4, 2023.
_____________________________________
JUDGE PAMELA B. JOHNSON
Court of Workers’ Compensation Claims
6
APPENDIX
Technical Record:
1. Petition for Benefit Determination
2. Employer’s Position Statement
3. Dispute Certification Notice, October 31, 2022
4. Hearing Request for Expedited Hearing, December 20, 2022
5. Notice of Filing Panel of Physicians
6. Agreed Order Resolving Expedited Hearing
7. Hearing Request for Expedited Hearing, March 29, 2023
8. Employer’s Request for In-Person Hearing
9. Employee’s Reply to Request for an In-Person Hearing
10. Order Holding Hearing Request in Abeyance and Referral to Mediation
11. Agreed Order Granting Motion to Continue
12. Dispute Certification Notice, July 20, 2023
13. Order Setting Expedited Hearing
14. Employer’s Witness and Exhibit List
15. Employer’s Brief
Exhibits:
1. Rule 72 Declaration of Clayton Rash, December 14, 2022
2. Rule 72 Declaration of Clayton Rash, March 27, 2023
3. Sworn Statement of Eric Harmon
4. Return to Work Note of Dr. Kenneth Grinspun
5. Medical Records with Table of Contents:
CERTIFICATE OF SERVICE
I certify that a copy of the order was sent as shown on October 4, 2023.
Name Mail Email Service sent to:
Christopher D. Markel, X cmarkel@markelfirm.com
Employee’s Attorney
Allen Callison, X allen.callison@mgclaw.com
Employer’s Attorney
____________________________________
PENNY SHRUM, COURT CLERK
WC.CourtClerk@tn.gov
7
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