The opinion
FILED
Jun 18, 2026
07:00 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT JACKSON
COLTON VESTAL, Docket No. 2024-70-6741
Employee,
v. State File No. 16621-2023
TBDN TENNESSEE CO.,
Employer, Judge Robert Durham
And
GREAT AMER. ALLIANCE INS.
CO.,
Insurer.
COMPENSATION HEARING ORDER GRANTING BENEFITS
The Court held a Compensation Hearing on May 28, 2026, to determine Mr.
Vestal’s anatomic impairment from his work-related asthma. The Court finds that
his impairment is 60% and awards benefits accordingly.
History of Claim
In this accepted claim, Mr. Vestal was burning plastic at work when the fumes
caused uncontrollable coughing so severe that his right lung collapsed. Over the
next several weeks, he suffered multiple collapsed-lung episodes from uncontrolled
coughing and ultimately had surgery to prevent further episodes. He also injured his
shoulder during these coughing spells, resulting in a 1% impairment from his
treating orthopedist, Dr. Kenneth Nord.
Mr. Vestal received authorized treatment for occupational asthma from Dr.
Carla Burke initially and then pulmonologist Linda Sevin.
He testified about how the condition affects and limits him. He uses a steroid
inhaler every morning, as well as an Albuterol rescue inhaler for flare-ups, which he
uses two to four times a day. He never goes a day without using Albuterol at least
once.
After walking about 100 feet, he is out of breath and must take a break. He is
always tired and lacks stamina. His hands tingle from low oxygen levels. He is very
careful about his environment and potential irritants that might trigger a flare-up.
Dust, humidity, fragrances, candles, and cleaning supplies are some of the common
irritants that can start a coughing spell. He stays at home most of the time.
Mr. Vestal tried to go back to work at TBDN but was constantly exposed to
fumes. He also had an asthma attack when he tried to work for TBDN’s sister
company, TBTN. Although he has applied for some jobs, he has not attempted work
since.
As for his asthma impairment, the pulmonology experts disagreed
dramatically about his rating. After Dr. Sevin assigned a 60% rating, TBDN sent
Mr. Vestal’s records to pulmonologist Clair McGroder, who assigned 6%.
While both experts are pulmonologists, Dr. Sevin treated Mr. Vestal for over
two years, administered testing to determine his lung function, and diagnosed his
occupational asthma. She is a “pulmonary and critical care specialist” at Vanderbilt
with a focus on occupational lung diseases, including asthma. She said Mr. Vestal’s
pulmonary function tests revealed a normal FEV1/FVC ratio. His “diffusing
capacity,” or how well oxygen was getting from his lungs to his blood stream, was
also in the normal range. Dr. Sevin diagnosed Mr. Vestal with occupational asthma,
with complications from his recurrent pneumothoraxes.
By contrast, Dr. McGroder, although board-certified in pulmonary and critical
care, only reviewed Mr. Vestal’s records and has limited experience using the AMA
Guides. She specializes in patients with interstitial lung disease and is head of the
interstitial lung disease program at Columbia University, where she also teaches.
She routinely treats general pulmonary patients but has no formal training in using
the AMA Guides, 6th edition and estimated she has only used the AMA Guides in
rating impairment 10 to 12 times before.
The significant difference in the pulmonologists’ ratings centered around
which table from the AMA Guides to use and the import of results from two
methacholine challenge tests, one administered by Dr. Sevin while Mr. Vestal was
off of medication and one administered by Dr. Burke while medication was still in
his system.
In calculating impairment, Dr. Sevin testified by deposition that she
considered various circumstances, including that Mr. Vestal required surgery when
most patients do not, his lasting chest pain with decreased mobility, and his youth.
She said his age could make his lung function look “normal” given his age and
height, since the parameters set by the Guides are based on a small population that
do not include a “lot of, you know, young, active 29-year-olds.”
But she relied mostly on results from a methacholine challenge test she
administered after Mr. Vestal was off medication for several weeks. She said it was
“pretty common” for patients to have significant, uncontrolled asthma in their
workplace that is not reproduced outside that environment. Thus, she needed “more
specific measurements of airway hyperresponsiveness,” like the methacholine
challenge test, to make her assessment. The test revealed moderate airway
hyperreactivity, showing a positive reaction on his second increased dose.
For her part, Dr. McGroder testified by deposition that she focused on Dr.
Burke’s November 2023 evaluation of Mr. Vestal, pulmonary function tests that
were within normal limits, and Dr. Burke’s methacholine challenge test that was
negative. Notably, Mr. Vestal had been using an inhaled steroid only five days before
the test. When used to diagnose asthma, test protocol requires the patient to be off
steroids for two weeks.
However, Dr. McGroder explained that because she used Dr. Burke’s result
to determine impairment, not causation, the fact that Mr. Vestal was still under the
influence of steroids at the time of the methacholine test was relevant to her
determination that since he had normal lung function tests while receiving treatment,
she could not use Table 5-5 to assess impairment.
As for the appropriate table to use, Dr. Sevin said that under Table 5-5, Mr.
Vestal’s impairment was “pretty straightforward,” based on the “key factor” of his
methacholine challenge test and because treatment did not control his symptoms.
She gave him a “Class 4 impairment, which would be 60 percent whole person.”
Conversely, Dr. McGroder discounted Table 5-5 based on her interpretation
of section 5.6(b) of the Guides. Specifically, that passage tells the rater to “[n]ote
that in the absence of airflow limitation with asthma treatment, Table 5-5 may not
be used to determine impairment for airway hyperresponsiveness (specific or non-
specific) alone.” It then says that “the individual with airway hyperresponsiveness
may have no measurable impairment (solely determined on the basis of lung function
test values) but may still have disability for specific jobs.”
Dr. McGroder interpreted this to mean that if there is no “overt obstructive
ventilatory defect as in a decreased FEV1 over FVC ratio, you cannot use a test for
bronchial hyperreactivity, like the methacholine challenge test when the patient is
not receiving treatment, to determine impairment. It should be used for diagnosis
only.” Thus, she did not use Table 5-5 to assess Mr. Vestal’s impairment because
his objective tests, including Dr. McGroder’s methacholine challenge test showed
normal lung function with treatment.
She observed that the pulmonary system chapter of the AMA Guides has two
tables: Table 5-5, which is specifically for asthma, and Table 5-4, which covers
“pulmonary dysfunction.” She said that in both tables, “pulmonary disfunction or
dyspnea” is the “key factor” used as the “objective measure” of lung function.
Using Table 5-4, Dr. McGroder found that Mr. Vestal’s lack of objective
airflow limitations placed him in Class 0 in the objective tests section. Further, she
placed him in Class 0 in the physical findings section because records did not
describe a wheeze or any airflow symptoms during doctor’s visits. However, he
qualified for Class 3 in the history section. Considered together, Dr. McGroder felt
that the most accurate impairment for Mr. Vestal was 6%, as described in Class 1.
Dr. Sevin disagreed with Dr. McGroder’s opinion that Table 5-5 would not
apply, although she admitted the language Dr. McGroder relied upon should have
been more detailed. She interpreted the statement “in the absence of airflow
limitation with asthma treatment, Table 5-5 may not be used to determine
impairment for airway hyperresponsiveness alone” to mean that “if, you know, you
just take someone off the street and they have no symptoms and they have an
abnormal methacholine challenge, you cannot use that to suggest an impairment.”
She explained that Mr. Vestal had a known occupational exposure with severe
adverse outcomes, so this statement did not apply to him.
She agreed that before conducting her methacholine challenge, she told Mr.
Vestal that he needed to be off his inhaled steroid for three to four weeks. Otherwise,
it could have produced a false-negative test, and he would appear to have no airway
hyperresponsiveness, even if he did. Dr. Sevin said that this appears to have
happened with Dr. Burke’s test, since Mr. Vestal had only been off his medicine for
a few days. Although the small-airways volume dropped, it only dropped to 18%,
not 20%, and did not meet the challenge threshold “by a hair.”
Dr. Sevin cited multiple factors that could have led to the negative test, such
as the presence of steroids. Or perhaps his baseline was less than it should have been
because he was still experiencing chest pain.
Despite vigorous cross-examination, Dr. Sevin would not concede that the
language in the AMA Guides prevented her from using Table 5-5 to assess Mr.
Vestal’s impairment. Rather, she utilized it because Mr. Vestal has asthma, and that
is the table the AMA Guides designated for rating asthma. She concluded, “[I]f
we're not going to use this table for this patient, I don't know who we're going to use
this table for.”
Law and Analysis
Mr. Vestal has the burden of proving the essential elements of his workers’
compensation claim by a preponderance of the evidence. Scott v. Integrity Staffing
Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). Here,
the only disputed issue is his anatomic impairment.
Tennessee Code Annotated section 50-6-204(k) states that a treating physician
must assign an anatomic impairment rating using the applicable edition of the AMA
Guides. This impairment shall be presumed correct but may be rebutted by a
preponderance of the evidence. As the treating physician, Dr. Sevin assessed a 60%
impairment, which is presumed correct. Dr. McGroder determined the correct
impairment was only 6%, a dramatically different opinion.
When confronted with conflicting opinions, the Court has discretion to
determine which opinion to accept. Patterson v. Huff & Puff Trucking, 2018 TN
Wrk. Comp. App. Bd. LEXIS 33, at *9 (July 6, 2018). The Court may 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 by other experts.” Orman v. Williams Sonoma, Inc., 803 S.W.2d
672, 676 (Tenn. 1991).
This case presents an unusual situation in that the doctors agree on all the
underlying facts and diagnoses. They both diagnosed Mr. Vestal with work-related
asthma that is inadequately controlled through medication. They also agreed that
Mr. Vestal’s pulmonary function tests were all within normal limits. Finally, they
agreed that Mr. Vestal’s methacholine challenge test was negative while still under
the influence of steroids but positive when he was not.
The issue lies in how they interpret section 5.6(b) of the AMA Guides, and
whether Table 5.5 can be used to assess impairment despite normal pulmonary
function tests. The section reads:
Note that in the absence of airflow limitation with asthma treatment,
Table 5-5 may not be used to determine impairment for airway
hyperresponsiveness (specific or nonspecific) alone. The individual
with airway hyperresponsiveness may have no measurable impairment
(solely determined on the basis of lung function values) but may still
have disability for specific jobs.
Dr. McGroder interpreted this section to mean that since Mr. Vestal’s
pulmonary function tests were all normal and his first methacholine challenge test,
which was performed while he was receiving “asthma treatment,” was negative, the
AMA Guides did not permit her to use Table 5.5 in assessing impairment. She
maintained this interpretation even though Mr. Vestal continued to suffer from
asthmatic attacks due to environmental irritants and even though the second
methacholine challenge test, performed after Mr. Vestal had stopped using the
steroid for several weeks, was positive. Nevertheless, she believed Mr. Vestal was
impaired by his asthma, so she used Table 5.4, titled “Pulmonary Disfunction” to
determine a 6% impairment.
Dr. Sevin, on the other hand, emphasized the word “alone” in section 5.6(b).
She believed that Mr. Vestal’s recurrent asthmatic reactions, along with the positive
result from the second methacholine challenge test, were enough to justify using
Table 5.5 despite the normal pulmonary function tests and Dr. Burke’s negative
methacholine test. In essence, she believes that since Mr. Vestal suffers from
asthma, Table 5.5 must be used to assess impairment. Given Mr. Vestal’s
methacholine reaction and his continued symptoms despite treatment, she believes
that a 60% impairment is warranted.
In determining which interpretation is correct, the Court considers Table 5-7,
which instructs the evaluator to “[s]ee Table 5-5 for asthma, see Table 5-4 for other
diseases.” Both doctors agree that Mr. Vestal suffers from asthma and not another
“obstructive disorder.” Thus, Dr. McGroder’s use of Table 5-4 to assess impairment
was inappropriate.
Given that Table 5-5 is the only means of assessing impairment for asthma,
Dr. Sevin’s approach is more reasonable than Dr. McGroder’s. The parties do not
dispute that Mr. Vestal suffers from recurrent and severe bouts of asthma triggered
by a variety of irritants and poorly controlled through medication. Thus, the positive
methacholine challenge test “alone” is not the only indication of asthma, and Dr.
Sevin was correct in using Table 5-5 to assess Mr. Vestal’s impairment.
Under the circumstances, the Court finds that TBDN failed to rebut the
presumption of correctness afforded Dr. Sevin’s impairment rating of 60%. When
combined with the undisputed 1% impairment for Mr. Vestal’s shoulder injury,
TBDN must pay 274.5 weeks of permanent partial disability benefits, which equals
$243,198.77 at the agreed compensation rate of $885.97.
IT IS ORDERED:
1. TBDN shall pay Mr. Vestal a lump sum of $243,198.77 in permanent partial
disability benefits. The parties agreed that Mr. Vestal has received an advance
of $5,397.94. The parties further agreed that TBDN will pay $12,692.40 in
underpaid temporary disability benefits. Thus, the total amount TBDN shall
pay in lump sum to Mr. Vestal is $250,493.23.
2. Mr. Vestal’s counsel is entitled to a 20% attorney fee, subject to court
approval on the submission of an affidavit, which equals $50,098.65.
3. Mr. Vestal may file a motion to recover his discretionary costs.
4. Dr. Burke, Dr. Sevin, and Dr. Nord remain Mr. Vestal’s treating physicians
for his work-related injury. TBDN shall pay for reasonable, necessary, and
related medical treatment for this injury.
5. TBDN shall pay costs of $150.00 to the Court Clerk within five business days
of this order becoming final.
6. TBDN shall file with the Court Clerk a Statistical Data Form within ten
business days of this order becoming final.
7. This Compensation Order is a final adjudication upon the merits of Mr.
Vestal’s claim for benefits. Unless appealed, it shall become final in 30 days.
ENTERED June 18, 2026.
____________________________________
JUDGE ROBERT DURHAM
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Joint Pre-Hearing Statement
2. Dr. Sevin’s deposition with attachments
3. Dr. McGroder’s deposition with attachments
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent on June 18, 2026.
Name Email Service sent to:
Spencer Barnes X spence@morrisonbarnes.com
Conner Sestak X csestak@morganakins.com
____________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
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
ප Expedited Hearing Order filed on _______________ ප Motion Order filed on ___________________
ප Compensation Order filed on__________________ ප 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