# Patrece Edwards-Bradford v. Kellogg Company > Tennessee Supreme Court ยท September 5, 2023 URL: https://www.frixlaw.com/law-library/cases/11240497 ## Case - **Court:** Tennessee Supreme Court - **Decided:** September 5, 2023 - **Precedential status:** Published - **Opinion:** Opinion of the court by Senior Judge Thomas J. Wright - **Judges:** Senior Judge Thomas J. Wright - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11240497 ## Opinion text IN TFIE SUPREME COURT OF TENNESSEE SPECIAL WORKERS' COMPENSATION APPEALS PANEL AT JACKSON Assigned on Briefs May 26,2023 PATITECE EDWARDS.BRADFORD V. KELLOGG COMPANY' ET AL. Appcal from the Court of Workers' Compensation Claims No. 2021-08-0418 Deana C. Seymour, Judge FILED sEP 0 5 2023 No. W2022-01097-SC-R3-WC - Maited August 3,2023 Clerk of Rec'd By Ernployee Patrccc Edwards-Bradford flled a petition for benefit determination seeking pcrmanent clisability benefits for an alleged baok injury, The Court of Workers' 'Co,op.nrution Clairns denied Ernployee's claim, finding that she had not rebutted the presurnption of oorreotness affordecl to the causation and impairtnent opinions of her authorized treating physicians, and was therelore not entitled to permanent disability benefits. Ernployee hasappealed, and the appeal has been rcferred to the Special Workers' Cornpensation Appeals Fanel lbr consideration and a report of findings of faot and conciusions of law pursuant to Tennessee Supreme Court Rule 51. We alfirm. Tenn. Code Ann. $ 50-6-217(a)(1) Appeal as of Right; .Iudgment of thc Court of Workers' Compettsation Claims Affirmed THovns J. WnrcHr, SR. J,, delivered the opinion of the court, in which JEp'rnuv S. BtvtNs, J., and ltov B. MoRcAN, SR, J,,.ioined. Christopher L. 'l-aylor, Memphis, Tcnnessee, lor the appellant, Patreoe Edwards-Bradfbrd. Thomas J. Srnith, Nashville, Tennessee, {br ths appellees, Kellogg Company and Old Republic Insurance CornpanY, OPINION FncrU,II AND PROCEDURAL BICXCNOUNO Patrece Edwards-Bradfbrd ("Ernployee") filed a petition for benefit determination in the Court of Workers'Cornpensation Clairns on April 23,2021, related to an alleged injury incurred during her employment with Kellogg Company ("Employer").r The case proceeded to a hearing on June 8, 2022, where the parties agreed that only the right to permanent disability benefits was at issue. Employee was fifty years old at the time of the hearing. She testified that she began work for Employer in 2001. Employee testified that prior to the incident at issue in this case, she had not complained of any work injuries and had not suffered any injuries to her back. o.was getting the stacks out of the Employee testified that, on June 5, 2019, she stacker" when a coworker appeared and took a stack out of her hand and threw it in the trash. Apparently, there was a dispute about who was supposed to be working at the particular position on this day and shift. Employee testified that she grabbed a second stack, and the coworker also took that stack out of her hands and threw it in the trash as well. Employee stated that the coworker then began to elbow her aggressively, so Employee grabbed a crank at the stacker and her feet became tangled in a mat. Employee testified that the coworker then began beating her hand to make her let go of the crank and also started elbowing her in the back. Employee stated that the dispute "lasted for a while" until another employee appeared and told them to stop.2 Employee testified she resumed working after the incident and did not have any pain or complaints at that time. However, she started to experience pain about four days later and saw a chiropractor on Jvne 12,2019. She filed an incident report with Employer on June 14, 2019. On June 17 , 2Q19, Employee was provided a panel of physicians and selected Dr. Fereidoon Parsioon as her authorized treating physician. Dr. Parsioon first saw Employee on July 25, 2019'. He obtained x-rays of her lumbar spine which showed degenerative changes. His examination of Employee was unremarkable except for a limited range of motion in her back and some decreased sensation in her toes. There was a mistake about whether Employee had also been in a car accident that I Employer also is referred to at various points in the record as Kellogg USA LLC and Kelloggs USA Inc. On appeal, counsel for Employer refers to it as Kellogg Company. 2 A witness for Employer testified that an investigation was conducted and Employer determined there was no evidence of a physical altercation on the day of the incident. However, the trial court found Employee's testimony regarding the incident more believable, and whether there was a physical alteration is not at issue on appeal. 2 caused her to experience back pain. In addition, the nature of the work altercation was in dispute. Both of these allegations were communicated to Dr. Parsioon by the insurance company, which caused him to release her without restrictions from his care as a workers' compensation designated physician. However, Employee later provided evidence there had not been a car accident. Dr. Parsioon saw Employee two additional times, in August and September 2019. An MRI was obtained on July 31,2019, which confirmed degenerative changes in the low back. Dr. Parsioon concluded that there was no acute injury and that the findings were old, degenerative, and chronic. He sent her to physical therapy for three weeks. Dr. Parsioon saw her again September 16,2019, and noted that she had no anatomical changes as a result of the minor injury at work. He found she was at maximum medical improvement and assigned a perrnanent impairment rating of zero. At thatpoint in time, Employee testified she was experiencing numbness in her right leg, tinglin g,pain, severe pain in her back, spasms, difficulty walking, standing, and sitting, with all of the pain on her right side. She testified that she had not experienced any of those issues in the past, although she had seen a chiropractor in the past for soreness in her upper back. Having terminated treatment with Dr. Parsioon, Employee next selected Dr. Sam Murrell as her authorized treating physician. Dr. Murrell first saw Employee on October 21, 2019, and noted that the MRI showed no discrete injury. He gave Employee a steroid pack and an epidural steroid injection and referred her to physical therapy. Employee testified that she discussed the possibility of surgery with Dr. Munell during a subsequent visit on January 31,2020,but she was not interested in surgery atthat time. Dr. Murrell found Employee at maximum medical improvement on May 6, 2020,with no permanent impairment, and returned her to work without restriction. Employee returned to Dr. Munell over a year later, on July 26,2021, with some recurrent symptoms. She requested a new referral to her chiropractor. Dr. Munell noted that Employee was working full-time without restriction and wanted to continue to do so. Employee stated that, at the time of the hearing, June 8, 2022, she was still experiencing pressure, pain, spasms, tingling, and numbness that affects her ability to do things such as wash her daughter's hair, mop, and vacuum. She testified she cannot ride in a ear for long periods of time or walk for too long, and her sleep and ability to lift things also has been affected. She stated she did not have those issues before the incident. a J On cross-examination, Employee testified that she continues to work without restriction twelve to sixteen hours a day, seven days a week, and that her work includes lifting. Employee stated that she began seeing a chiropractor in January 2018 for soreness all over her neck and back, and she informed Dr. Parsioon that she had been seeing a chiropractor for that reason. Employee testified that prior to the incident at issue, she had never seen a doctor for back "pain," although she had seen a chiropractor for back "soreness." Employee also agreed she had been released from care by Dr. Murrell with no work restrictions. Dr. Apurva Dalal saw Employee for an independent medical evaluation on September 9,2020, at the request of Employee's attorney. Dr. Dalal testified by deposition at the hearing. Dr. Dalal is a board-certified orthopedic surgeon and is also board-certif,red in independent rnedical evaluations. He testified that his physical examination of Employee showed moderate tenderness in the lower lumbar spine, paraspinal muscle spasms, occasional bursitis in the right hip, and that the straight leg test was positive at thirty degrees and sixty degrees on the right side. The examination further showed altered sensation in the L5 and L5-S1 distribution on the right leg. Dr. Dalal also performed a radiograph that he testified showed multilevel degenerative disc disease. Dr. Dalal testified that Employee had an aggravation of preexisting degenerative arthritis due to her work- related injury and assigned an impairment rating of seven percent to the body as a whole. At his deposition on cross-examination, Dr. Dalal testified that he spent less than an hour with Employee. He testified that he believed he had reviewed the medical records of Dr. Parsioon and Dr. Murrell, although he was unsure whether those records were still in his file. Dr. Dalal testified that Employee told him she had never seen a doctor previously for back pain, and that she did not have any issues with her back prior to the incident. He testified that if Employee had been seen previously by a chiropractor for soreness in her neck and back, that would be different from what Employee told him. The deposition testimony of Dr. Murrell also was introduced at the hearing. Dr. Murrell testified that he is an orthopedic surgeon who treated Employee. He is board- certified in orthopedic surgery and specializes in spinal surgery. His education includes degrees from Harvard and Vanderbilt. He completed his residency in orthopedics at Emory University followed by a fellowship in Spine Surgery at the Rothman Institute, Thomas Jefferson University in Philadelphia. He testified he believed Employee was experiencing low back pain following her work injury, but an MRI scan did not show a discrete injury attributable to the incident, only degenerative changes. His diagnosis was that Employee had degenerative disc disease of the lumbar spine with an element of stenosis atL3-4 and L4-5. He testified that on May 6,2020, he determined Employee had reached maximum 4 meclical improvement with no permanent impairment, and he released her with no work restrictions Dr. Parsioon was not deposed, but the medical records introduced at the hearing indicate he last saw Employee on September 16,2019. The notes from that visit indicate Employee's range of motion of the back was limited in flexion to sixty degrees, a straight leg raising test was negative bilaterally, and her examination was otherwise within normal limits. The notes indicate that Dr. Parsioon told Employee "that she does not have any anatomical changes as a result of this minor injury that she had at work." Dr. Parsioon released Employee from his care, stating she could work for two weeks with eight-hour shifts without limitations, and then return to the number of hours per shift she previously worked. The notes further state he placed her at maximum medical improvement with no perman.ent impairment. On June 29,2022,the trial court entered a compensation order denying Employee's claim. The trial court found Employee did not rebut the presumption of correctness afforded to the causation and impairment opinions of the authorized treating physicians. Therefore, she was not entitled to permanent disability benefits. On appeal, Employee argues that the trial court erred in determining that her injury was not work related and in finding Dr. Dalal's opinion regarding impairment failed to overcome the presumption of correctness afforded the authorizedtreating physicians. SuNnann OF REVIEW Review of factual issues is de novo upon the record of the trial court, accompanied by a presumption of correctness of the trial court's factual findings, unless the preponderance of the evidence is otherwis e. See Tenn. Code Ann. $ 50-6-225(a)(2) (2022). When the trial court has seen and heard the witnesses, considerable deference must be afforded the trial court's factual findings. Tryon v. Saturn Corp.,254 S.W.3d 321,327 (Tenn. 2008). No similar deference need be afforded the trial court's findings based upon documentary evidence such as depositions. G/issonv. Mohon Int'1, Inc./Campbell Ray,I85 S.W.3d 348, 353 (Tenn. 2006). Similarly, reviewing courts afford no presumption of correctness to a trial court's conclusions of law.Seiber v. Reeves Logging,284 S.W.3d 294,298 (Tenn.2009). ANar.vsrs "'Except in the most obvious, simple and routine cases,' a claimant must establish 5 by expert medical evidence the causal relationship between the claimed injury and the employment activity." Cloyd v. Hartco Flooring Co., 274 S.W.3d 638, 643 (Tenn. 2008) (quoting Orman v. Williams Sonoma, lnc,803 S.W.2d 672, 676 (Tenn. 1991)). A claimant has the burden of proving causation by a preponderance of the evidence. Tenn. Code. Ann. $ 50-6-239(c)(6) (2022). An authorized treating physician's opinion "shall be presumed correct on the issue of causation but this presumption shall be rebuttable by a preponderance of the evidence[.]" Tenn. Code Ann. $ 50-6-102(14XE) (2022). In the present case, Dr. Murrell testified that while he believed Employee experienced pain following the incident at work, she did not experience an injury related to the work incident. Instead, Dr. Murrell testified that Employee had only degenerative disc disease of the lumbar spine with an element of stenosis and that Employee reached maximum medical improvement with no permanent impairment. The medical records from Employee's treatment with Dr. Parsioon are consistent with those of Dr. Murrell, finding Employee had reached maximum medical improvement with no permanent impairment. The opinions of these authorized treating physicians are presumed to be correct unless rebutted by a preponderance ofthe evidence. Employee testified that she had increased pain after the work incident and Dr. Dalal testified that the work incident made Employee's preexisting degenerative condition symptomatic. However, an injury is "not compensable if it results only in increased pain or other symptoms caused by the underlying condition." Sweat v. Superior Indus., 1nc.,966 S.W.2d 31,32 (Tenn. 1998); Boling v. Raytheon Co.,448 S.W.2d 405, 408 (Tenn. 1969). The Supreme Court reaffirmed this point of law in Trosper v. Armstrong Wood Prods., lnc.,273 S.W.3d 598,607 (Tenn. 2008), stating: We reiterate that the employee does not suffer a compensable injury where the work activity aggravates the pre-existing condition merely by increasing the pain. However, if the work injury advances the severity of the pre- existing condition, or if, as a result of the pre-existing condition, the employee suffers a new, distinct injury other than increased pain, then the work injury is compensable. As a result, o'if an injury does not cause an actual progression or aggravation of the underlying, pre-existing condition, the claim is not compensable." Memphis Light Gas & Water Div. v. Pearson, No. W2018-01511-SC-WCM-WC, 2020WL 1062871, at*9 (Tenn. Workers' Comp. Panel Feb.26,2020). "Specifically, ifthe injury results only in an increase in pain with no coffesponding permanent anatomical change, then there is no new compensable injury." Id. 6 Here, the trial oourt explained that while Dr. Dalal testificd that the work incident made Employee's prccxisting condition syrnptomatic, he did not discuss how the work injury aclvancsd the preexisting condition or caused a new, distinct injury. As a result, the trial court fbund thai Ernployee had not rebutted the presumption of correctness afforded the opinions of the authorizecl treating physicians that Employee did not suffer any permanent impairrnent as a result of the work incident. Enrployee's attorney argues that the finclings by Dr, Dalal during the indepcndcnt rnedical cvaluation correlate to the complaints of the Employcc and some of the findings by hcr trcating physicians. However, ncither Dr. Parsioon nor Dr. Murrell ever found Bmployee to have a positive straight leg raise test or any muscle weakness in her legs. Dr. Murrcll aotually saw her again in.luly and Augusl2A2l, when she had some recurrent syrnptoms and wantecl to return to the ohiropraotor for additional decompression therapy' Even then, the straight leg raise was negative bilaterally and a follow-up MRI did not show any significant change. l)r, Murrell testifie