The opinion
FILED
Mar 07, 2025
08:58 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT JACKSON
CARLTON LUCIA, JR., ) Docket No. 2020-07-0349
Employee, )
v. ) State File No. 53823-2021
DSV SOLUTIONS, INC., )
Employer, ) Judge Robert Durham
And )
VAN LINER INS. CO., )
Insurer. )
COMPENSATION ORDER FOR BENEFITS
This Court held a Compensation Hearing on February 27, 2025. The only issues
were the date of maximum medical improvement and Mr. Lucia’s permanent impairment
rating. 1 For the reasons below, the Court accepts the maximum medical improvement date
assigned by the authorized physician but the evaluating physician’s impairment rating.
History of Claim
On June 10, 2021, Mr. Lucia injured his right wrist while banging on a trailer door.
His early diagnosis was a sprain, but when his symptoms failed to improve, his authorized
physician, orthopedist Dr. Michael Dolan, determined that he had suffered a wrist fracture
that caused one of his carpal bones to die. Dr. Dolan then performed a carpectomy,
removing several of the bones in Mr. Lucia’s wrist.
The carpectomy led to severe swelling and resulted in Mr. Lucia suffering from
carpal tunnel syndrome. Dr. Dolan then performed a carpal tunnel release.
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DSV originally contested causation, since the authorized physician, Dr. Michael Dolan, ultimately
determined that he could not say that Mr. Lucia’s wrist fracture was primarily caused by the work incident.
However, at trial, DSV agreed to causation, given Dr. Weisman’s unequivocal testimony finding causation
and Dr. Dolan’s concession that if the incident did not cause the fracture but permanently worsened it.
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Mr. Lucia testified he continues to experience significant problems with his right
wrist and hand. Mr. Lucia showed the obvious indentation where the wrist bones had been
removed. He demonstrated severe motion limitation, in that he could not extend his hand
backwards at all and could only flex it forwards about 40 degrees. He was also only able
to slightly bend his wrist from side to side. Mr. Lucia’s hand was trembling as he fully
exerted himself to show the loss of motion. He also demonstrated how his wrist would
occasionally “lock up,” making it totally immobile and requiring him to use his other hand
to manipulate the wrist back in place.
Mr. Lucia testified that he has less than half the grip strength in his right hand that
he had before the injury. He still experiences occasional pain and has lost the ability to
manipulate small items with his fingers. Despite his injuries, Mr. Lucia never missed
enough time from work to qualify for temporary disability benefits, and he testified that he
is now making more money than before his injury. However, while he can still do his job,
he must often use his left hand to compensate for his right, even though he is right-handed.
The parties introduced two doctor depositions on Mr. Lucia’s permanent
impairment under the AMA Guides to the Evaluation of Permanent Impairment, 6th edition.
First was Dr. James Weisman, a board-certified orthopedist who saw Mr. Lucia for
an independent medical evaluation at his attorney’s request. Dr. Weisman said that he first
calculated the impairment from the carpectomy using both the diagnosis-based guidelines
and the range of motion guidelines. Since the AMA Guides require using the higher
impairment, he chose the range-of-motion method. Thus, he assigned a 10% impairment
for the carpectomy.
Dr. Weisman next considered the carpal tunnel syndrome. He believed the AMA
Guides provided a 3% impairment for the nerve entrapment, intermittent symptoms, motor
conduction block, and decreased sensation. When he combined this impairment with the
10% from the carpectomy, the resulting impairment was 13%. Finally, he said Mr. Lucia
reached maximum medical improvement on June 4, 2024, because that was the day he
evaluated him.
The parties next introduced Dr. Dolan’s deposition. Dr. Dolan acknowledged that
Mr. Lucia suffered significant loss of motion after surgery and the AMA Guides
recommended using active range-of-motion deficits if the calculated impairment were
greater than that provided by the diagnosis-based evaluation. However, since he ultimately
did not assess causation for Mr. Lucia’s wrist injury, he did not calculate impairment.
When asked what the impairment would have been if he had determined the injury
were compensable, Dr. Dolan said an impairment of 15% based on loss of motion would
be “a good one to kind of look at,” referring to page 473, Table 15-32, “all the way over in
the corner.” When pressed on cross-examination about his estimate of 15%, he said that,
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based on Mr. Lucia’s flexion and extension loss, it would be “roughly . . . somewhere close
to that.”
Dr. Dolan later agreed that Dr. Weisman’s 10% impairment was “very reasonable”
based on the range-of-motion method. He did not think it was “at all out of line.” As for
the carpal tunnel syndrome, Dr. Dolan maintained Mr. Lucia sustained a 0% impairment;
however, he said “you can argue over it.”
Finally, Dr. Dolan placed Mr. Lucia at maximum medical improvement on March
5, 2024, the date he last saw him.
Findings of Fact and Conclusions of Law
Mr. Lucia has the burden of proving the essential elements of his workers’
compensation claim by a preponderance of the evidence. Tenn. Code Ann. § 50-6-
239(c)(6) (2024). In this case, the parties agreed on all issues but two—Mr. Lucia’s
anatomic impairment from his work-related injury and the date he reached maximum
medical improvement.
The Court first considers the correct impairment for Mr. Lucia’s carpectomy. This
case is unusual, in that DSV advocates that the Court use the opinion of Mr. Lucia’s expert,
Dr. Weisman, while Mr. Lucia insists that Dr. Dolan’s impairment is correct. After
carefully reviewing the testimony, the Court gives more weight to Dr. Weisman’s opinion
and finds that it overcomes the presumption afforded to Dr. Dolan’s opinion under section
50-6-204(k)(7).
Mr. Lucia retained Dr. Weisman for an exam to not only address causation but also
calculate his impairment rating. In his report and deposition, Dr. Weisman detailed his
findings and the manner he used those findings to assess impairment. Dr. Weisman
carefully calculated impairment for the carpectomy under both the diagnosis-based and
range-of-motion models and then justified his decision to use range-of-motion to assess a
10% rating.
Dr. Dolan, on the other hand, had not given an impairment for the carpectomy before
his deposition and so had not accurately measured loss of motion. He was also equivocal
about the 15% impairment he quoted when pressed, saying that it would be “kind of good
to look at” and it was “roughly somewhere close to that.” He also agreed that Dr.
Weisman’s 10% impairment was “very reasonable” and “not at all out of line.”
Finally, the part of Table 15-32 Dr. Dolan used when he speculated about a 15%
impairment is about ankylosis, or complete loss of motion. According to page 469 of the
AMA Guides, the listed angles used to calculate impairment in that section do not refer to
loss of motion but to the angle of ankylosis. Thus, it would not apply to Mr. Lucia.
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Given these factors, the Court finds that Dr. Weisman’s opinion is more credible as
to Mr. Lucia’s anatomic impairment from the carpectomy and finds his impairment from
that condition is 10%.
The question now becomes whether Mr. Lucia retains additional impairment from
the carpal tunnel syndrome that resulted from the carpectomy. Mr. Lucia testified that in
addition to his lost motion, he suffers from significant loss of grip strength, some numbness
in his fingers, and difficulty manipulating small items. The Court finds Mr. Lucia was
honest, candid, and forthright in his testimony, which was credible in all respects. When
demonstrating his loss of motion, Mr. Lucia clearly gave maximum effort. The Supreme
Court has consistently held that an employee’s assessment about his own physical
condition is competent testimony that is not to be disregarded. Limberakis v. Pro-Tech
Sec., Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 53, at *5-6 (Sept. 12, 2017).
Dr. Weisman specifically examined Mr. Lucia to calculate impairment, and he
justified 3% in his report and deposition based on Mr. Lucia’s continuing symptoms. The
Court finds that Mr. Lucia’s testimony is consistent with Dr. Weisman’s impairment
assessment for carpal tunnel syndrome.
In contrast, Dr. Dolan characterized the 3% impairment as “ridiculous,” but gave
little reason why Dr. Weisman was wrong or why the impairment was in fact 0%. In the
end, he conceded that “you could argue” over the impairment.
Given the evidence, the Court finds that Dr. Weisman’s impairment opinion,
together with Mr. Lucia’s testimony, is enough to overcome the presumption given to Dr.
Dolan’s. The Court finds that Mr. Lucia sustained a 3% impairment for his carpal tunnel
syndrome. When combined with the 10% impairment for the carpectomy, the total
impairment for Mr. Lucia’s work injury is 13%.
As for the date of maximum medical improvement, it appears that Dr. Weisman
assigned June 4, 2024, simply because that was the day he saw him. Dr. Dolan treated Mr.
Lucia and was better acquainted with his progress. Thus, the Court gives more weight to
Dr. Dolan’s opinion and assigns a maximum medical improvement date of March 5, 2024.
Finally, Mr. Lucia filed a motion for discretionary costs for Dr. Weisman’s
deposition fee and court reporter expenses totaling $1,614.40. DSV did not object to the
costs. Thus, the Court also awards Mr. Lucia $1,614.40 in discretionary costs.
IT IS, THEREFORE, ORDERED:
1. DSV shall pay Mr. Lucia an award of permanent partial disability benefits based on
a 13% permanent medical impairment at the compensation rate of $685.56, or
4
$40,105.26. DSV shall also pay Mr. Lucia $1,614.40 in discretionary costs for a
total of $41,719.66.
2. Mr. Lucia’s counsel shall receive an attorney’s fee of 20% of the award, or
$8,021.05.
3. Mr. Lucia reached maximum medical improvement on March 5, 2024. His
compensation period ends on April 19, 2025.
4. DSV shall pay for reasonable, necessary, and related medical treatment for Mr.
Lucia’s work-related injury of June 10, 2021, with Dr. Michael Dolan remaining his
authorized physician.
5. DSV shall pay court costs of $150.00 to the Court Clerk within five business days
of this order becoming final.
6. DSV shall prepare and file with the Court Clerk a Statistical Data Form within 10
business days of the date this order becomes final.
7. This Compensation Order is an adjudication on the merits. Unless appealed, this
order becomes final in 30 days.
ENTERED March 7, 2025.
_____________________________________
ROBERT DURHAM, JUDGE
Court of Workers’ Compensation Claims
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APPENDIX
Exhibits:
1. Dr. Weisman’s deposition with attached records
2. Dr. Dolan’s deposition with attached records
3. Mr. Hicks’s affidavit
CERTIFICATE OF SERVICE
I certify that a copy of the Order was sent as indicated on March 7, 2025.
Name Certified Email Service sent to:
Charles Hicks X Office@hickslawfirm.net
Kristen Stevenson X kcstevenson@mijs.com
_____________________________________
PENNY SHRUM, Court Clerk
WC.CourtClerk@tn.gov
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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.
¾ 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.
¾ 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;ĐŚĞĐŬŽŶĞŽƌŵŽƌĞĂƉƉůŝĐĂďůĞďŽdžĞƐĂŶĚŝŶĐůƵĚĞƚŚĞĚĂƚĞĨŝůĞͲ
ƐƚĂŵƉĞĚŽŶƚŚĞĨŝƌƐƚƉĂŐĞŽĨƚŚĞŽƌĚĞƌ;ƐͿďĞŝŶŐĂƉƉĞĂůĞĚͿ͗
□ 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