The opinion
FILED
May 21, 2024
07:39 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT GRAY
BRADLEY PAINTER, ) Docket Number: 2024-20-1769
Employee, )
v. )
AMERICAN MECHANICAL )
CONTRACTORS INCORPORATED, ) State File Number: 68810-2023
Employer, )
And )
BUILDERS MUTUAL INSURANCE )
COMPANY, ) Judge Brian K. Addington
Carrier. )
EXPEDITED HEARING ORDER
The Court held an expedited hearing on May 16, 2024, to determine whether Mr.
Painter is likely to prevail at trial that he is entitled to medical benefits for his left-shoulder
injury. Based on the evidence presented, the Court holds that Mr. Painter is not likely to
prevail at trial and his request for benefits is denied.
Claim History
Mr. Painter is a machinist at American Mechanical. On August 15, 2023, he and a
co-worker attempted to lift a heavy fifth wheel hitch elevator onto a set of sawhorses. His
co-worker did not lift the elevator as Mr. Painter intended, and this caused him to shift his
arm into a different position.1 He testified that he felt a “rip” in his left shoulder as he lifted
the elevator.
Stanley Arnold, Safety Director for American Mechanical, testified that Mr. Painter
reported a burning feeling in his left shoulder that day. He further stated that Mr. Painter
1
Mr. Painter was working with lifting restrictions due to a right-shoulder work injury that occurred one
month earlier.
1
told him his left shoulder began hurting after doing yard work several days before the
alleged injury. He sent Mr. Painter to a clinic for his injury.
The clinic referred Mr. Painter to an orthopedist, and he chose Dr. Jeffrey France
from a panel. Dr France ordered an MRI that showed a full-thickness rotator cuff tear, so
he ordered surgery.
American Mechanical did not approve the surgery, contending that the medical
proof did not show that his alleged injury was the primary cause of his left-shoulder
condition or need for surgery. It further argued that Mr. Painter’s left-shoulder problem
was preexisting because medical records dated shortly before the alleged injury noted that
both shoulders are “wrecked,” and that he reported left-shoulder pain at least eight days
before the date of injury.2
Mr. Painter agreed on cross-examination that the medical records showed he
complained of pain in his left shoulder at the clinic, but he disagreed that he told the clinic
staff that both shoulders were wrecked. He testified that his left arm continues to hurt, and
he is limited in how far he can move it and the work he can do.
The parties deposed Dr. France, who testified that when considering whether an
injury is new, he looks to the MRI to see the amount of blood or fluid collected around the
tear. He compared the images of Mr. Painter’s right and left shoulders. He stated, “Even
when I looked at it, there was a little more fluid around the right one. So, it’s harder to
swear the left one might not be a more chronic condition.”
He added that retraction can also suggest an acute injury. He noted that, “[w]ith that
much retraction, there may have been some element of tear before. [W]ith a 3.9-centimeter
tear, that somehow . . . has been there before unless you just see all this blood and fluid. . .
. I did not see that in the left shoulder.”
The parties also asked whether Mr. Painter could have aggravated a preexisting
condition. The last question to Dr. France did not use the statutory “more likely than not”
language. Instead, counsel asked, “That’s as likely not what happened as any other cause.
Is that correct?”3 Dr. France’s answer was “Yes. I guess[.]”
Findings of Fact and Conclusions of Law
Mr. Painter must prove he is likely to prevail at a final hearing on his requested
benefits. Tenn. Code Ann. § 50-6-239(d)(1) (2023); McCord v. Advantage Human
Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
2
These medical records were from a compensable right shoulder workers’ compensation injury.
3
The Court is unsure of the exact meaning of this question because it was posed as a negative.
2
This case comes down to whether Dr. France, the authorized treating physician,
primarily related Mr. Painter’s current left-shoulder condition and the need for surgery to
the work incident. His causation opinion is rebuttably presumed correct. Tenn. Code. Ann.
§ 50-6-102(12)(E). Both acute injuries and aggravations of preexisting injuries may be
compensable. Id.at -102(12)(A).
Dr. France repeatedly stated that Mr. Painter’s shoulder injury appeared to be old
because it had retracted. He stated an acute injury could also retract, but the MRI image
would show more blood and fluid in the shoulder than he saw in Mr. Painter’s imaging.
Further complicating matters for Dr. France was Mr. Painter’s minor complaints of
left-shoulder pain before the injury. Although he did mention pain, and the notes stated his
shoulders were “wrecked” before the injury, no comprehensive medical records were
presented that predate the injuries Mr. Painter suffered at work. Thus, the Court cannot
determine whether Mr. Painter injured his shoulder in the past and the extent of the injury,
if any, or whether he simply experienced everyday pain in his left shoulder.
To answer the question, the parties asked Dr. France if Mr. Painter could have
aggravated a preexisting condition in his left shoulder. Dr. France was equivocal
throughout. His answer to the last question, “Yes. I guess,” is similarly noncommital.
The medical evidence, at this time, suggests that Dr. France did not affirmatively
state that Mr. Painter suffered an acute injury or aggravation of a preexisting condition
primarily arising out of his work. Thus, the Court holds Mr. Painter is not likely to prevail
at trial about his left-shoulder injury and the need for surgery.
IT IS, THEREFORE, ORDERED:
1. Mr. Painter’s claim against American Mechanical for the requested benefits is
denied at this time.
2. The parties shall appear for a Status Hearing on June 26, 2024, at 2:00 p.m.
Eastern. You must call 855-543-5044. Failure to call in may result in a
determination of the issues without your further participation.
Entered May 21, 2024.
______________________________________
BRIAN K. ADDINGTON, JUDGE
Court of Workers’ Compensation Claims
3
APPENDIX
Exhibits:
1. Affidavit of Bradley Painter
2. Declaration of Stanley Arnold
3. Causation opinion questionnaire by Dr. France
4. Occupational Medicine Clinic Visit
5. Watauga Orthopaedics
6. Deposition of Dr. Jeffrey France
7. Photo (elevator)
8. Photo (scales)
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent on May 21, 2024.
Name Certified Fax Email Service sent to:
Daniel Minor, X dan@danielbminor.com
Employee’s Attorney maria@danielbminor.com
Jeffery Foster, X jfoster@morganakins.com
Employer’s Attorney jtallent@morganakins.com
______________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
4
Right to Appeal:
If you disagree with the Court’s Order, you may appeal to the Workers’ Compensation
Appeals Board. To do so, you must:
1. Complete the enclosed form entitled “Notice of Appeal” and file it with the Clerk of the
Court of Workers’ Compensation Claims before the expiration of the deadline.
If the order being appealed is “expedited” (also called “interlocutory”), or if the
order does not dispose of the case in its entirety, the notice of appeal must be filed
within seven (7) business days of the date the order was filed.
If the order being appealed is a “Compensation Order,” or if it resolves all issues
in the case, the notice of appeal must be filed within thirty (30) calendar days of
the date the Compensation Order was filed.
When filing the Notice of Appeal, you must serve a copy on 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 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 are responsible for ensuring a complete record is presented on appeal. If no court
reporter was present at the hearing, you may request from the Court Clerk the audio
recording of the hearing for a $25.00 fee. If you choose to submit a transcript as part of your
appeal, which the Appeals Board has emphasized is important for a meaningful review of
the case, a licensed court reporter must prepare the transcript, and you must file it with the
Court Clerk. The Court Clerk will prepare the record for submission to the Appeals Board,
and you will receive notice once it has been submitted. For deadlines related to the filing of
transcripts, statements of the evidence, and briefs on appeal, see the applicable rules on the
Bureau’s website at https://www.tn.gov/wcappealsboard. (Click the “Read Rules” button.)
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.
If neither party timely files an appeal with the Appeals Board, the Court Order
becomes enforceable. See Tenn. Code Ann. § 50-6-239(d)(3) (expedited/interlocutory
orders) and Tenn. Code Ann. § 50-6-239(c)(7) (compensation orders).
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 *
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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