The opinion
FILED
Apr 11, 2025
02:46 PM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Jason Bednar ) Docket No. 2018-01-0218
)
v. ) State File No. 9290-2018
)
Memorial Healthcare System d/b/a )
Memorial Hospital, et al., )
)
and )
)
Troy Haley, Administrator of the )
Bureau of Workers’ Compensation )
Subsequent Injury and Vocational )
Recovery Fund )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Audrey A. Headrick, Judge )
Affirmed in Part, Reversed in Part, and Remanded
In this appeal, the employee claims he is permanently and totally disabled due to a work
incident that caused physical and mental injuries. The employer initially authorized
medical treatment but later disputed compensability based primarily on the employee’s
preexisting physical and mental conditions. Following the trial, the court concluded that
the employee had not met his burden of proof in establishing a compensable physical or
mental injury. Specifically, the court determined that because the employee failed to meet
his burden of proving a compensable physical injury, he also could not prove that he
sustained a compensable mental injury pursuant to Tennessee Code Annotated section 50-
6-102(15). The employee has appealed. Upon careful consideration, we conclude the
preponderance of the evidence supports a finding that the employee suffered a
compensable temporary aggravation of a preexisting condition, and we therefore reverse
the trial court’s finding that the employee did not prove a compensable physical injury.
We remand the case for the trial court to address whether, in light of our holding with
respect to the employee’s physical injuries, he suffered a compensable mental injury and
if so, the extent of the employee’s psychiatric impairment and resulting permanent
disability, if any.
1
Judge Pele I. Godkin delivered the opinion of the Appeals Board in which Presiding Judge
Timothy W. Conner and Judge Meredith B. Weaver joined.
Carmen Y. Ware, Chattanooga, Tennessee, for the employee-appellant, Jason Bednar
C. Douglas Dooley and Mickala J. Lewis, Chattanooga, Tennessee, for the employer-
appellee, Memorial Healthcare System d/b/a Memorial Hospital
Patrick Ruth, Nashville, Tennessee, for the appellee, Tennessee Subsequent Injury and
Vocational Recovery Fund
Factual and Procedural Background
Jason Bednar (“Employee”) began working as a registered nurse for Memorial
Healthcare System d/b/a Memorial Hospital (“Employer”) in 2015. On January 30, 2018,
Employee was assisting with the transfer of a patient when he allegedly felt a sharp pain in
his back and legs. Employee reported the incident to Employer and was eventually
authorized to see Dr. Richard Pearce, an orthopedic surgeon. After Employee received
certain medical treatment, Employer elected to deny the claim and asserted that
Employee’s complaints did not arise primarily out of the employment due to Employee’s
preexisting physical and mental conditions.
Previous Relevant Medical Treatment
Employee has a lengthy history of receiving treatment for low back complaints.
Following a car accident at the age of nineteen, Employee received chiropractic treatment
for low back complaints. Several years later, in 2005, Employee reported low back pain
while repositioning a patient at work. He received physical therapy and medication, and
he reported his symptoms resolved in two to three weeks. Not long after, Employee was
lifting stones at home when he injured his back again. Employee recalled minimal pain
with no lower extremity issues and stated that his symptoms resolved quickly.
More significantly, in July 2006, while working for a previous employer, Employee
was transferring a patient from a wheelchair to the bed when the patient fell, causing
Employee to catch the patient under his arms and experience pain in his low back and legs.
He reported the incident to his employer and submitted a workers’ compensation claim,
which was accepted as compensable. He treated with Dr. David Lowry, who diagnosed
him with degenerative disc disease at L4-5, a disc protrusion at L4-5, low back pain, spina
bifida occulta at L5, and radiculitis in his right leg. Dr. Lowery placed Employee at
maximum medical improvement in October 2006 and assigned a 5% impairment rating to
the body as a whole. Employee settled his claim in 2007, retaining his entitlement to future
medical benefits for the 2006 work injury.
2
In October 2008, Employee began seeing Dr. Stephen Musick on an ongoing basis
for pain management for low back pain radiating into his left leg and foot. He described
two prior back injuries: the motor vehicle accident when he was a teenager and the incident
when he was moving stones. Throughout the course of his treatment, Dr. Musick
prescribed medication, including gabapentin, oxycodone, fentanyl patches, and epidural
steroid injections. In 2016, during a visit with Dr. Musick, Employee complained of severe
pain that was only relieved by lying on his back and taking medication. During this visit,
Employee’s wife requested a referral for a mental health care provider.
Thereafter, Employee was seen at Vanderbilt University Hospital’s emergency
department with complaints of anxiety, depression, and “feeling out of control.” Employee
reported an inability to focus or concentrate and constant sweating. The psychiatrist noted
Employee reported “severe depression” that impacted his sleep and activities of daily living
and diagnosed him with acute anxiety, acute-on-chronic depression, and musculoskeletal
chest pain. Employee declined in-patient treatment. During his next visit with Dr. Musick,
Employee discussed his treatment at Vanderbilt and requested amitriptyline for depression
and anxiety. He also informed Dr. Musick that he had gone to Vanderbilt the previous day
to have a skin cancer removed, which was more significant and painful than expected. Dr.
Musick documented Employee’s increased stress due to his medical issues and adjusted
his current narcotics prescriptions.
Shortly thereafter, Employee began therapy with a licensed social worker at Helen
Ross McNabb Center with complaints of ongoing depression due to chronic back pain.
The social worker initially diagnosed Employee with major recurrent moderate depression.
However, during Employee’s next visit, the treating psychiatrist removed that social
worker’s diagnosis, replacing it with a new diagnosis of generalized anxiety disorder
(“GAD”). In subsequent visits, Employee described continuing depression and noted that
Ativan, first prescribed by his primary care physician in 2009, was the only medicine that
helped him.
Also in 2016, Dr. Musick referred Employee to Dr. Richard Pearce, an orthopedist,
for treatment of his ongoing low back pain and right leg complaints from the 2006 work
injury. During the evaluation, Employee complained to Dr. Pearce of worsening pain,
anxiety, and depression. Dr. Pearce discussed various treatment options, including the
possibility of a fusion at L4-5 and L5-S1, but Employee elected to continue with
conservative treatment at that time.
In 2017, Dr. Musick referred employee to Dr. Gregory Ball for the assumption of
pain management treatment. Employee first saw Dr. Ball in April 2017. Employee’s
intake form revealed ongoing mental health complaints, and Dr. Ball noted that, although
Employee continued to work full time as a nurse, he was unable to enjoy most outdoor
activities. Employee described pain in his right low back, buttock, leg, and foot. Dr. Ball
diagnosed Employee with, among other things, lumbosacral radiculopathy, chronic low
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back pain, lumbar disc disease, lumbar spinal stenosis, inflammation of the right sacroiliac
joint, and long-term prescription drug therapy, including opiates. Dr. Ball increased
Employee’s medication dosage.
In August 2017, Dr. Pearce performed a surgical fusion at L4-5 and L5-S1, after
which Employee reported brief improvement of his symptoms. Employee saw Dr. Pearce
again on August 22 for follow-up and complained of lumbar pain and weakness, burning
in both legs, and right buttock pain. However, by December, Employee reported being
able to walk five miles per day with no anxiousness or depression. As a result, Dr. Pearce
released him to return to work with no restrictions on January 7, 2018.
On January 18, 2018, Employee returned to Dr. Ball with complaints of low back
pain, bilateral leg pain, right leg numbness, and persistent right buttock pain. Dr. Ball
performed an injection into his piriformis muscle, and the medical record reflects that
Employee was reluctant to decrease his narcotics due to ongoing pain after his return to
work. Approximately two weeks later, on January 30, 2018, Employee suffered the alleged
work injuries at issue in this appeal.
Post-Injury Medical Treatment
Following the January 30 work incident, Employer authorized Employee to see Dr.
Pearce in February 2018. At that visit, Employee reported complaints of low back pain on
the right side with right lateral lower leg numbness and tingling in the feet. X-rays revealed
that the hardware associated with the spinal fusion had not failed. Dr. Pearce diagnosed
Employee with an acute back strain, ordered a lumbar MRI, and referred Employee back
to Dr. Ball for continued pain management.
Employee saw Dr. Ball again in March, who provided most of the same diagnoses
as in April 2017, including, among other things, lumbosacral radiculopathy, sciatica on the
right side, lumbar disc disease, spinal stenosis of the lumbar region, inflammation of the
right sacroiliac joint, low back pain, and chronic and ongoing long term therapeutic opiate
usage.
In April 2018, Employee returned to Dr. Pearce, who noted Employee had fallen
repeatedly over the past three months. However, Employee reported that his low back pain
was better and indicated he had no left leg pain. Dr. Pearce reviewed Employee’s MRIs
and noted no significant change from the pre-accident MRI taken on October 16, 2017.
When Employee returned to Dr. Ball later that month, Dr. Ball addressed the new
work injury, which he said resulted in right sacroiliac (“SI”) joint pain and an increase in
his pain levels due to the cessation of fentanyl usage. Dr. Ball causally related Employee’s
need for an SI injection to his most recent work injury. Dr. Ball also stated that Employee’s
current pain was a separate issue from his previous 2006 injury and was “above the baseline
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of pain he was experiencing when he had the new injury.” Employee continued to receive
SI injections, and Dr. Ball continued to wean Employee’s narcotic dosage. 1 In September
2018, a right knee EMG and nerve conduction study (“NCS”) revealed some sciatic nerve
neuropathy, but there was no evidence of lumbar radiculopathy.
On January 22, 2019, Dr. Ball made a direct referral to a psychiatrist, Dr. Aslam
Sandvi, for Employee to be evaluated for depression. Employee gave a history of severe
depression and anxiety since he was injured “due to chronic pain and inability to work.”
He reported mood swings, suicidal ideations, and chronic pain. Dr. Sandvi diagnosed
Employee with recurrent severe major depression with vague suicidal ideation, GAD, and
Post-Traumatic Stress Disorder (“PTSD”). He related Employee’s current psychiatric
problems “directly” to his “job-related injuries.” Employee next returned to Dr. Pearce,
who confirmed there was no change in his MRI from the previous diagnostic study. At
this time, he advised Employee that he had nothing further to offer in terms of orthopedic
treatment for his symptoms.
On March 25, 2019, Employer authorized Employee to see Dr. Chad Smalley for
right knee pain. Following an MRI, Dr. Smalley determined Employee was not a surgical
candidate. Employee obtained a second opinion, and that physician agreed with Dr.
Smalley. A third physician, Dr. Michael Tew, described Employee’s knee pain and
weakness as nerve-related rather than mechanical. In 2020, Dr. Ball ordered another
EMG/NCS on Employee’s right knee, and the results were normal. Later that year,
Employee returned to Dr. Tew, who agreed to perform knee surgery after Employee’s
spinal cord stimulator was removed. Although Dr. Tew performed surgery based on his
reading of a medial meniscal tear on the MRI, he found no such tear during surgery. He
did locate and repair a medial chondral defect. Although Dr. Tew found no evidence of an
acute tear, he opined that Employee’s “knee condition was caused by his work injury a few
years ago.” Dr. Tew later released Employee to return to work with restrictions and advised
him to stop using the cane prescribed by Dr. Ball. In March 2021, after Employee reported
pain levels of nine out of ten, Dr. Tew recommended pain management for complex
regional pain syndrome (“CRPS”).
After his knee surgery, Employee returned to Dr. Ball with complaints of worsening
pain, stiffness in his knee, color and temperature changes in his lower leg, and sensitivity
in his lower leg. Dr. Ball diagnosed a “new onset of CRPS symptoms” in Employee’s right
lower extremity. Employee later began to complain of increased pain and swelling in both
knees.
In 2022, Employee had an intrathecal narcotic pump implanted to allow higher
doses of narcotic pain medication. Employee continued to see Dr. Sandvi for ongoing
psychiatric care and continued to report symptoms of severe depression. Employee also
1
Employee later received a spinal cord stimulator in 2019.
5
continued to receive pain management from Dr. Ball and received transcranial magnetic
stimulation (“TMS”) therapy for his major depressive disorder.
Dr. Ball placed Employee at maximum medical improvement on February 21, 2023,
and assigned a 16% permanent anatomical impairment rating. He assigned 8% for CRPS,
8% for the sciatic nerve injury, 2% for induced testosterone deficiency (which he described
as a side effect of the narcotics Employee was prescribed), and 1% for a medial meniscus
tear. 2
In June 2024, at Employer’s request, Dr. Jeffrey Hazlewood performed a
comprehensive review of Employee’s medical records and a physical examination of
Employee. He opined that the correct diagnosis attributable to the 2018 work injury would
be a soft tissue injury, such as a lumbar strain, that should have resolved within four to
eight weeks after the work incident. In addition to a physical examination of Employee,
Dr. Hazlewood reviewed two different EMG tests and an MRI scan of the sciatic nerve and
found no evidence of sciatic neuropathy or sciatic nerve injury. 3 Dr. Hazlewood disagreed
that Employee had right-sided neuropathy and noted that the second EMG, performed in
January 2020, was normal. He also noted that the November 18 MRI of the pelvis showed
no abnormalities of the sciatic nerve. Dr. Hazlewood opined that Employee does not have
sacroiliac joint dysfunction; a conclusion he believes is supported by the failure of the SI
injections to provide relief. Moreover, Dr. Hazlewood disagreed that Employee has CRPS.
He noted that in order to provide a reliable diagnosis of CRPS, certain criteria, known as
the Budapest criteria, must be satisfied. One of those criteria is the presence of certain
objective physical findings. During his physical examination of Employee, Dr. Hazlewood
reported observing two out of nine of those objective findings: (1) hyperemia (redness in
the feet and legs) and (2) edema (swelling) in both legs. Because the findings were present
in both legs, not just the symptomatic one, Dr. Hazelwood ruled out CRPS. He also
suggested that there were other, more likely causes of Employee’s symptoms, such as
disuse.
With regard to Employee’s right knee, Dr. Hazlewood opined that these complaints
were more than 50% caused by an arthritic process, especially given Employee’s age and
weight and the fact that surgical intervention was not helpful. Based on his review of
Employee’s medical records, including imaging studies, and his physical examination of
Employee, Dr. Hazlewood opined that Employee did not suffer a permanent physical injury
as a result of the 2018 work incident and qualified for no permanent anatomical impairment
rating caused by that accident.
2
Dr. Ball later removed the rating for the meniscal tear from his calculations after he learned that Dr. Tew’s
surgery revealed Employee did not have a meniscal tear.
3
According to the evidence in the record, Dr. Hazlewood regularly orders and interprets EMG tests as part
of his clinical practice.
6
With regard to Employee’s mental conditions, Dr. Sandvi assigned a twenty percent
impairment rating for Employee’s recurrent severe major depression with vague suicidal
ideation, GAD, and PTSD. At Employer’s request, Dr. Stephen Montgomery, a forensic
psychiatrist, also performed a psychiatric evaluation of Employee. He diagnosed
Employee with, among other things, GAD, major depressive disorder, benzodiazepine and
opioid dependence, and chronic pain. Dr. Montgomery assigned an impairment rating of
5% for the psychiatric conditions he determined had been aggravated by the most recent
work accident, namely Employee’s major depressive disorder and GAD. He testified that
he disagreed with Dr. Sandvi’s rating, in part, because “he did not assign any
apportionment or consider any preexisting condition as part of his calculus.”
At trial, which lasted three days, Employee, Dr. Hazlewood, and the parties’
respective vocational experts testified live. 4 The testimony of Drs. Ball, Sandvi, and
Montgomery were introduced by deposition. On October 10, 2024, the trial court issued
an order denying Employee’s request for benefits and dismissing his petition. In doing so,
it considered the expert opinions of Dr. Ball and Dr. Hazlewood. The court first noted that
neither party had presented proof that Dr. Ball had been selected from a panel and that,
therefore, his opinion was not entitled to a presumption of correctness pursuant to
Tennessee Code Annotated section 50-6-102(12)(E). The court next considered whether
Employee presented sufficient evidence to show his injuries and need for medical treatment
arose primarily from the January 30, 2018 work accident. In considering the conflicting
opinions of Drs. Ball and Hazlewood, the court noted that it is to 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, No. 2014-06-0072, 2015 TN
Wrk. Comp. App. Bd. LEXIS 5, at *14 (Tenn. Workers’ Comp. App. Bd. Mar. 12, 2015).
Within this framework, the court observed that both doctors were equally qualified to offer
expert medical opinions in this case. It then noted that Dr. Ball treated Employee both
before and after the 2018 injury, whereas Dr. Hazlewood examined him only once. As
such, the court found that factor favored Dr. Ball. However, the court stated that the critical
factors, which it found weighed in Dr. Hazlewood’s favor, were the information available
to the doctors when they provided their opinions and the importance of that information.
First, the court observed that Dr. Ball acknowledged the 2018 work accident did not
cause any anatomical change to Employee’s lumbar spine and related structures. Second,
the court concluded that Dr. Ball had diagnosed Employee with CRPS in the right leg
despite the lack of objective criteria supporting the diagnosis. For example, the normal
electrodiagnostic test results and the appearance of symptoms bilaterally weighed against
the diagnosis of right lower extremity CRPS. Finally, the court addressed Dr. Ball’s
opinion that Employee’s testosterone deficiency due to long-term opioid use was causally
4
Because of our holding on the issue of causation and remand of the case, it is unnecessary for us, in the
first instance, to address the vocational testimony contained in the record within the scope of this appeal.
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related to the work injury. In support of his opinion, Dr. Ball stated that he “might have”
weaned Employee off narcotic medications had the 2018 work accident not occurred. He
also concluded Employee’s morbid obesity was causally related to the 2018 work injury
because Employee’s increased pain caused by the work injury resulted in inactivity, which
contributed to weight gain. The trial court determined these opinions were speculative and
afforded them no weight.
In contrast, the court found that Dr. Hazlewood based his opinions on objective test
results, a comprehensive review of Employee’s medical records, and his physical
examination. These supported Dr. Hazlewood’s opinion that Employee does not qualify
for a diagnosis of right lower extremity CRPS. Dr. Hazlewood based this conclusion on
the facts that CRPS is extremely rare and that Employee’s symptoms appeared bilaterally
despite only Employee’s right leg’s being symptomatic, suggesting his symptoms were
more likely related to disuse. Dr. Hazlewood also noted that Employee’s SI joint testing
was negative, and he opined that Employee’s right-knee complaints were related to a
degenerative arthritic process, obesity, and age. Finally, Dr. Hazlewood noted that
Employee’s testosterone deficiency predated his most recent work injury and that his
obesity was related to his preexisting depression, medications, and diet.
In considering both physicians’ opinions, the court acknowledged that an
aggravation of a preexisting condition can result in permanent disability if it causes
disabling pain. The court observed, however, that Employee rated his pain at six out of ten
shortly before the work incident and that his pain levels remained relatively the same after.
The court accepted as persuasive Dr. Hazlewood’s opinion that Employee’s increased pain
without evidence of an anatomical change “is not a true medical aggravation, and no
objective, anatomical changes occurred based on objective testing.” As a result, the court
concluded Employee did not sustain any permanent physical injuries from the January 30,
2018 work accident. The court then found that Employee cannot maintain a claim for a
mental injury in the absence of a compensable permanent physical injury pursuant to
Tennessee Code Annotated section 50-6-102(15). Employee has appealed.
Standard of Review
The standard we apply in reviewing a trial court’s decision presumes that the court’s
factual findings are correct unless the preponderance of the evidence is otherwise. See
Tenn. Code Ann. § 50-6-239(c)(7) (2024). When the trial judge has had the opportunity
to observe a witness’s demeanor and to hear in-court testimony, we give considerable
deference to factual findings made by the trial court. Madden v. Holland Grp. of Tenn.,
Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar deference need be
afforded the trial court’s findings based upon documentary evidence.” Goodman v.
Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at *6 (Tenn.
Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and application of
statutes and regulations are questions of law that are reviewed de novo with no presumption
8
of correctness afforded the trial court’s conclusions. See Mansell v. Bridgestone Firestone
N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are also mindful of our
obligation to construe the workers’ compensation statutes “fairly, impartially, and in
accordance with basic principles of statutory construction” and in a way that does not favor
either the employee or the employer. Tenn. Code Ann. § 50-6-116 (2024).
Analysis
Employee raises two issues in his notice of appeal: (1) whether the trial court erred
in accepting Dr. Hazlewood’s opinion over that of other providers in its determination that
Employee did not sustain any permanent physical injury arising primarily from the work
accident; and (2) “[o]ther secondary issues [to] include whether the trial court erred in
failing to consider Employee’s Motion to Exclude certain Expert Testimony of Dr. Jeffrey
Hazlewood and/or Continue the Trial to allow Employee to take the deposition of Dr.
Kadrie; failing to consider Employee’s Motion to Continue Trial and Evidentiary Filings
and Request for an Expedited Status Conference; and failing to consider Employee’s
Supplement to the same; and failing to consider Employee’s Motion; and failing to consider
or grant Employee’s Motion to allow Affidavit/Rule 72 Declaration of Dr. Tareck Kadrie.”
For its part, Employer responds that the trial court’s decision should be affirmed
because the preponderance of the evidence supports the trial court’s findings. Employer
also contends that Employee waived the “secondary issues” identified in his brief by failing
to provide any legal argument in support of the issues raised.
Expert Medical Opinions
It is well-established that, when faced with competing expert medical opinions,
“trial courts are granted broad discretion in choosing which opinion to accept, and we will
not disturb that decision absent an abuse of discretion.” Jimenez v. Xclusive Staffing of
Tenn., LLC, No. 2016-06-2377, 2017 TN Wrk. Comp. App. Bd. LEXIS 45, at *6 (Tenn.
Workers’ Comp. App. Bd. Aug. 7, 2017). A trial court abuses its discretion when it causes
an injustice to the party challenging the decision by (1) applying an incorrect legal standard,
(2) reaching an illogical or unreasonable decision, or (3) basing its decision on a clearly
erroneous assessment of the evidence. Konvalinka v. Chattanooga-Hamilton Cnty. Hosp.
Auth., 249 S.W.3d 348, 358 (Tenn. 2008).
As we have previously stated,
[W]hen medical opinions conflict, . . . the trial judge must obviously choose
which view to believe. In doing so, [the trial judge] is allowed, among other
things, to consider the qualifications of the experts, the circumstances of their
examination, the information available to them, and the evaluation of the
importance of that information by other experts.
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Bass v. The Home Depot U.S.A., Inc., No. 2016-06-1038, 2017 TN Wrk. Comp. App. Bd.
LEXIS 36, at *9 (Tenn. Workers’ Comp. App. Bd. May 26, 2017) (internal quotation marks
and citations omitted). Furthermore, we have observed that
a reviewing court can review documentary evidence, including expert
depositions, de novo in order to determine where the preponderance of the
evidence lies. However, with respect to the trial court’s ultimate
determination, a reviewing court should acknowledge the trial court’s
discretion to evaluate which expert’s opinion is entitled to greater weight
based on the totality of the evidence presented to the court and is to review
such a determination under an abuse-of-discretion standard.
Johnson v. Inspire Brands d/b/a Blazin Wings, Inc., No. 2020-08-0731, 2022 TN Wrk.
Comp. App. Bd. LEXIS 35, at *18 (Tenn. Workers’ Comp. App. Bd. Sept. 7, 2022). We
must also consider that certain expert medical testimony in the present case was presented
by deposition, while other expert medical testimony was presented live during trial. Thus,
we are to give “considerable deference” to any of the trial court’s factual determinations
based, in whole or in part, on that live testimony. Madden, 277 S.W.3d at 898.
In determining where the preponderance of the medical evidence lays, the trial court
analyzed the experts’ opinions within the proper precedential framework by reviewing the
experts’ qualifications, the circumstances of their examinations, and the information
available to them. It noted that Dr. Hazlewood based his opinions on the results of
objective testing, while it deemed certain of Dr. Balls’s opinions speculative.
Moreover, our de novo review of the deposition testimony and documentary
evidence leads us to conclude, like the trial court, that Dr. Hazlewood’s opinion on the
issue of medical causation was more persuasive. Simply put, the preponderance of the
evidence does not support a conclusion that the trial court abused its discretion in accepting
Dr. Hazlewood’s opinion over that of Dr. Ball with respect to whether Employee suffered
any permanent physical injury that arose primarily out of the 2018 work accident.
However, we conclude that the preponderance of the evidence does establish that
Employee suffered a compensable temporary aggravation of one or more of his preexisting
conditions. An aggravation of a preexisting condition is compensable if “it can be shown
to a reasonable degree of medical certainty that the aggravation arose primarily out of and
in the course and scope of the employment,” meaning the “employment contributed more
than fifty percent (50%)” in causing the aggravation. Tenn. Code Ann. § 50-6-102(12)(A)–
(B). “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, as opposed to speculation
or possibility.” Tenn. Code Ann. § 50-6-102(12)(D) (2024). Thus, although we agree that
Employee did not meet his burden of proving any permanent impairment caused primarily
10
by the work accident, the preponderance of the evidence supports a finding that Employee
did sustain a compensable physical injury, albeit temporary in nature.
Mental Injury
Having determined that Employee suffered a compensable physical injury
temporary in nature, we must address whether it was error for the trial court to summarily
conclude Employee is unable to establish a compensable mental injury based on the
language in Tennessee Code Annotated section 50-6-102(15). We conclude that it was. In
Nickerson v. Knox County, No. E2020-01286-SC-R3-WC, 2021 Tenn. LEXIS 124 (Tenn.
Workers’ Comp. Panel June 8, 2021), the Supreme Court’s Special Workers’
Compensation Appeals Panel affirmed and adopted as its own our opinion addressing the
statutory definition of “mental injury” in the context of a workers’ compensation case. As
the Appeals Panel noted, Tennessee Code Annotated section 50-6-102(15) defines the term
“mental injury” as
a loss of mental faculties or a mental or behavioral disorder, arising primarily
out of a compensable physical injury or an identifiable work[-]related event
resulting in a sudden or unusual stimulus, and shall not include a
psychological or psychiatric response due to the loss of employment or
employment opportunities.
Id. at *11. As also noted in Nickerson, “since at least 2002, the legislature has recognized
two types of mental injuries: those arising primarily out of a compensable physical injury
and those arising primarily out of an identifiable work-related event resulting in a sudden
or unusual stimulus.” Id. Here, Employee has not alleged that the work-related accident
itself caused a “sudden or unusual” mental stimulus. Thus, only the first category of mental
injury claims is pertinent to this appeal. Consequently, as a matter of first impression, we
must consider whether a compensable event that causes a temporary physical injury can
support a claim for a mental injury.
Our primary consideration in this analysis is the plain and ordinary meaning of the
phrase “compensable physical injury” as used in Tennessee Code Annotated section 50-6-
102(15). That subsection does not include the word “permanent” when describing
“compensable physical injury.” As noted above, Tennessee Code Annotated section 50-6-
102(12) makes clear that an aggravation of a preexisting condition can be compensable if
it arose primarily out of a work-related accident. We have previously held that an
aggravation or exacerbation of a preexisting condition need not be permanent for an injured
worker to qualify for medical treatment reasonably necessitated by the aggravation. Miller
v. Lowe’s Home Centers, Inc., No. 2015-05-0158, 2015 TN Wrk. Comp. App. Bd. LEXIS
40, at *18 (Tenn. Workers’ Comp. App. Bd. Oct. 21, 2015). Furthermore, an injury that
does not result in a permanent physical impairment can still be the primary cause of the
need for future medical treatment. Lee v. Federal Express Corp., No. 2020-08-0214, 2022
11
TN Wrk. Comp. App. Bd. LEXIS 29, at *8 (Tenn. Workers’ Comp. App. Bd. July 5, 2022).
Thus, we conclude that the phrase “compensable physical injury,” as used in Tennessee
Code Annotated section 50-6-102(15), refers to any compensable physical injury, whether
temporary or permanent in nature. Consequently, a work-related accident that results in a
physical injury that causes the need for medical care and/or temporary disability, even if
there is no subsequent finding of permanent medical impairment, constitutes a
“compensable physical injury” that can form the basis of a mental injury claim under
section 102(15).
Here, Employer did not refute the occurrence of the work-related accident in
January 2018. Employee presented undisputed proof of increased symptoms in his back
and leg following this incident, which he reported immediately and for which he received
medical treatment. Even Employer’s medical expert, Dr. Hazlewood, acknowledged that
the January 2018 work accident caused a soft tissue injury that exacerbated Employee’s
preexisting low back condition. Moreover, both testifying psychiatrists agreed Employee
suffered a psychological injury as a result of the physical injury, and both rendered
impairment ratings primarily related to that mental injury, although they disagreed as to
the appropriate psychological diagnoses and extent of mental impairment.
Thus, we conclude the trial court erred in summarily dismissing Employee’s claim
for a mental injury based on its finding that Employee’s physical injury did not result in
any degree of permanent medical impairment or permanent physical disability. On
remand, therefore, the trial court must consider whether, given our finding that Employee
sustained a compensable physical injury, albeit temporary in nature, Employee met his
burden of proving a compensable mental injury or a compensable permanent aggravation
of any preexisting mental condition and, if so, the degree of permanent disability caused
by that mental injury or aggravation, if any.
Secondary Issues
Last, we turn to what Employee described as his “secondary issues.” As noted
above, Employer argued in its brief that Employee waived the “secondary issues” by failing
to offer any legal argument in support of them. In his reply brief, Employee argued that
Employer’s pointing out the legal deficiencies in Employee’s brief “opened the door” for
Employee to reply. In support of his position, he cites Tenn. Comp. R. and Regs. 0800-
02-22-.06(3) (2023), which provides in relevant part:
The appellee shall have fifteen (15) calendar days after the filing of the
appellant’s brief or the expiration of the time for the filing of the appellant’s
brief, whichever is earlier, to file a brief with the clerk of the appeals board.
No reply brief shall be filed unless the appellee raises an issue or issues on
appeal not previously addressed in the appellant’s brief. Under such
12
circumstances, the appellant may file a reply brief within five (5) business
days addressing only the issues or issues not previously addressed.
Here, Employee argues that Employer’s mere act of addressing Employee’s failure
to provide legal support for his arguments in its responsive brief somehow “opens the door”
for him to provide supplemental argument. We disagree. Employer’s brief pointed out
that Employee provided no argument regarding these “secondary issues” in his brief on
appeal. Employer did not raise any new issues as contemplated in the rule cited above to
which Employee should be afforded a response.
As stated by the Tennessee Supreme Court, “[i]t is not the role of the courts, trial or
appellate, to research or construct a litigant’s case or arguments for him or her.” Sneed v.
Bd. of Prof’l Responsibility of the Sup. Ct. of Tenn., 301 S.W.3d 603, 615 (Tenn. 2010).
When an appellant fails to offer substantive arguments on appeal, an appellate court’s
ability to conduct meaningful appellate review is significantly hampered. Holmes v. Ellis
Watkins d/b/a Watkins Lawn Care, No. 2017-08-0504, 2018 TN Wrk. Comp. App. Bd.
LEXIS 7, at *3-4 (Tenn. Workers’ Comp. App. Bd. Feb. 13, 2018). Moreover, “where a
party fails to develop an argument in support of his or her contention or merely constructs
a skeletal argument, the issue is waived.” Sneed v. Bd. of Prof’l Responsibility of the Sup.
Ct. of Tenn., 301 S.W.3d 603, 615 (Tenn. 2010). Accordingly, we conclude the “secondary
issues” raised by Employee were waived.
Conclusion
For the foregoing reasons, we reverse the trial court’s finding that Employee did not
suffer a compensable physical injury. Instead, we conclude the preponderance of the
evidence supports a finding that he suffered a compensable temporary aggravation or
exacerbation of one or more of his preexisting physical conditions. We further conclude
that a compensable physical injury need not result in permanent disability to support a
claim for a mental injury as defined in Tennessee Code Annotated section 50-6-102(15).
In light of this holding, we remand the case for the trial court to make additional findings
based on the evidence presented during trial as to whether Employee suffered a
compensable mental injury or permanent aggravation of a preexisting mental condition
and, if so, the extent of his mental impairment and permanent vocational disability related
to that injury, if any. We further conclude Employee waived the issues identified as
“secondary issues.” All other aspects of the trial court’s order are affirmed. Costs on
appeal are taxed to Employer.
13
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Jason Bednar ) Docket No. 2018-01-0218
)
v. ) State File No. 9290-2018
)
Memorial Healthcare System d/b/a )
Memorial Hospital, et al., )
)
and )
)
Troy Haley, Administrator of the )
Bureau of Workers’ Compensation )
Subsequent Injury and Vocational )
Recovery Fund )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Audrey A. Headrick, Judge )
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced
case was sent to the following recipients by the following methods of service on this the 11th day
of April, 2025.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Carmen Y. Ware X cyware@thewarelawfirm.com
C. Douglas Dooley X doug.dooley@leitnerfirm.com
Mickala Lewis mickala.lewis@leitnerfirm.com
Patrick Ruth X patrick.ruth@tn.gov
Audrey A. Headrick, Judge X Via Electronic Mail
Kenneth M. Switzer, Chief Judge X Via Electronic Mail
Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov
Workers’ Compensation Claims
Matthew Keene
Acting Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-532-1564
Electronic Mail: WCAppeals.Clerk@tn.gov