The opinion
FIT___ED
M ay 17,2016
1N COURf Of
"ORKERS ' COMPE NSATIO N
CLAIMS
Time: 9:52 Al\1
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT MEMPHIS
Bryant C. Perry, Docket No.: 2015-08-0169
Employee,
v. State File No.: 57998-2014
Memphis Light, Gas & Water
Employer. Judge: Jim Umsted
COMPENSATION HEARING ORDER
This matter came before the undersigned Workers' Compensation Judge on May
4, 2016, for a Compensation Hearing pursuant to Tennessee Code Annotated section 50-
6-239 (2015). The central legal issues are: (1) whether the employee, Bryant Perry, is
entitled to permanent partial disability benefits, and if so, in what amount; and (2)
whether the employer, Memphis Light, Gas & Water is responsible for paying the
discretionary costs of Mr. Peny's attorney. 1 For the reasons set forth below, the Court
finds that Mr. Perry established by a preponderance of the evidence that he is entitled to
permanent disability benefits and discretionary costs.
History of Claim
Mr. Pell)' is a thirty-two-year-old resident of Shelby County, Tennessee, who has
worked for MLGW as a utility worker for approximately three years. Mr. Pell)' testified
he sustained an injury to his groin and right hip at work on July 15, 2014, while lifting a
large water valve. Mr. Pell)' provided adequate notice of his injury to MLGW and
ultimately received a panel of physicians from which he selected Dr. Jeffrey Dlabach as
his treating physician.
Mr. Perry presented to Dr. Dlabach for the first time on July 25, 2014. Dr.
Dlabach diagnosed Mr. Perry with a possible inguinal hernia and right hip strain, and
referred him to a general surgeon for an evaluation of the possible hernia with
1
A complete listing of the technical record, stipulations, and exhibits admitted at the Compensation Hearing is
attached to this Order as an appendix.
instructions to follow up after this evaluation.
Mr. Perry began treating with a general surgeon, Dr. Janice Wood, on August 1,
2014. Dr. Wood diagnosed Mr. Perry with a right inguinal hernia and performed surgery
on August 6, 2014. Mr. Perry returned to see Dr. Wood on August 19, 2014, and
complained of soreness after prolonged standing. However, Dr. Wood noted an
improvement in his pain as well as a well-healed incision with no sign of infection or
problems. On September 5, 2014, Dr. Wood released Mr. Perry from care and indicated
he could return to regular work duties as of September 8, 20 14.
Following his release by Dr. Wood, Mr. Perry followed up with Dr. Dlabach on
September 12, 2014. Dr. Dlabach ordered physical therapy and work hardening to help
with Mr. Perry's strength and tone due to the physical demands of his job. He also
ordered a functional capacity examination and placed Mr. Perry on light duty restrictions.
On October 16, 2014, Dr. Dlabach returned Mr. Perry to regular duty. Thereafter, on
October 30, 2014, Dr. Dlabach placed Mr. Perry at maximum medical improvement,
opined he retained no permanent impairment, and released him from care.
Immediately prior to the Compensation Hearing, the Court heard Mr. Perry's
Motion to Strike or Preclude Dr. Janice Wood's C-32 and MLGW's Motion to Strike
Inappropriate and Inadmissible Evidence. Mr. Perry's motion asked the Court to strike
the C-32 of Dr. Wood as MLGW filed it outside of the discovery deadlines imposed by
the parties' Initial Hearing Order. MLGW argued the Initial Hearing Order did not
address the filing of a C-32 and pointed the Court to Tennessee Code Annotated section
50-6-235(c)(2) (2015), which states a party must provide a notice of intent to use a C-32
"not less than twenty (20) days before the date of intended use." MLGW asserted Mr.
Perry could object to the C-32 and then take Dr. Wood's deposition but argued Mr. Perry
provided no authority for his request to strike or preclude the C-32. The Court ruled that
the Initial Hearing Order could not contravene the statute and gave Mr. Perry the
opportunity to continue the hearing and take the deposition of Dr. Wood. Mr. Perry
declined, and the Court admitted the C-32 into evidence.
MLGW's motion asked the Court to strike evidence relating to prior disciplinary
actions taken against occupational therapist David Brick. MLGW argued that Mr. Perry
was using the past bad acts of Mr. Brick to impeach Dr. Dlabach's opinion regarding
impairment. Mr. Perry maintained the evidence was admissible under Rule 607 of the
Tennessee Rules of Evidence since Dr. Dlabach relied on Mr. Brick's assessment
regarding range of motion and did not know Mr. Brick had previously been disciplined
for these past bad acts. The Court allowed the evidence to come in, but stated its use
would be limited to evaluating the weight of the evidence regarding impairment.
During the Compensation Hearing, Mr. Perry testified he continued to have
occasional pain at the surgery site of his hernia repair. He indicated there was a hole in
2
his abdomen where the hernia was, and he occasionally had to stop working when he felt
a protrusion in the area. According to Mr. Perry, he is able to push the protrusion back in
and has learned to perform his job a little differently to keep from using his right side as
much. He testified that he asks for assistance when needed and is careful when it comes
to lifting.
Mr. Perry relied on the deposition testimony of Dr. Apurva Dalal, who performed
a one-time independent medical examination of Mr. Perry's injuries. Dr. Dalal testified
that Mr. Perry retained a permanent impairment of four percent to the body for his hip
injury. (Ex. 3 at 12, 14.) He came to this opinion by measuring the range of motion in
Mr. Perry's hip and finding limited flexion and abduction. (Ex. 3 at 11.) He further
determined that Mr. Perry retained five percent permanent impairment to the body for the
hernia. (Ex. 3 at 12-13.) He testified that he examined Mr. Perry and found "a palpable
defect" and a "protrusion" at the site of the hernia surgery. (Ex. 3 at 10-11.)
MLG W did not call any witnesses to testify at the Compensation Hearing.
However, it relied on Dr. Dlabach's deposition testimony of January 6, 2016. During his
deposition, Dr. Dlabach testified that Mr. Perry retained no permanent impairment due to
the hip injury. (Ex. 4 at 11.) He stated Mr. Perry had "good strength, good range of
motion, [and was] ambulating well" prior to his release on October 30, 2014. (Ex. 4 at
9.) .
MLGW further relied on Dr. Wood's Form C-32 Standard Form Medical Report,
dated April 5, 2016, at the Compensation Hearing. This report indicated that Mr. Perry
reached maximum medical improvement on September 5, 2014, and retained no
permanent impairment based on the American Medical Association Guide to Evaluation
of Permanent Impairment, 61h Edition.
The parties stipulated that Mr. Perry's injuries were compensable and his average
weekly wage was $942.12, resulting in a compensation rate of$628.08.
Findings of Fact and Conclusions of Law
General Legal Principles
This Court must interpret the Workers' Compensation Law fairly, impartially, and
without favor for either the employee or employer. Tenn. Code Ann. § 50-6-116
(20 15). The employee in a workers' compensation claim must prove all essential
elements of his claim. Tindall v. Waring Park Ass 'n, 725 S.W.2d 935, 937 (Tenn.
1987); 2 Scott v. Integrity Staffing Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp.
2
The Tennessee Workers' Compensation Appeals Board allows reliance on precedent from the Tennessee Supreme
Court "unless it is evident that the Supreme Court's decision or rationale relied on a remedial interpretation of pre-
July I, 2014 statutes, that it relied on specific statutory language no longer contained in the Workers' Compensation
3
App. Bd. LEXIS 24, at *6 (Tenn. Workers' Comp. App. Bd. Aug. 18, 2015). At a
compensation hearing, the employee "must establish by a preponderance of the evidence
that he or she is, in fact, entitled to the requested benefits." Willis v. All Staff, No. 2014-
05-0005,2015 TN Wrk. Comp. App. Bd. LEXIS 42, at *18 (Tenn. Workers' Comp. App.
Bd. Nov. 9, 2015).
Compensability and Medical Benefits
The parties agree this is a compensable claim where Mr. Perry sustained a right
inguinal hernia and an injury to his right hip. The only issues the Court must address
are the extent of permanent partial disability, if any, and entitlement of Mr. Perry's
attorney to discretionary costs. Pursuant to Tennessee Code Annotated section 50-6-
204(a)(1)(A) (2015), "the employer or the employer's agent shall furnish, free of charge
to the employee, such medical and surgical treatment ... made reasonably necessary by
accident as defined in this chapter." As this is an agreed compensable claim, Mr. Perry
is entitled to reasonably necessary future medical treatment as recommended by his
authorized treating physicians, Drs. Dlabach and Wood, and as required by Tennessee
Code Annotated section 50-6-204 (2015).
Permanent Impairment Ratings
The opinion of the treating physician on the employee's permanent impairment
rating is presumed accurate. Tenn. Code Ann. § 50-6-204(k)(7) (2015). This
presumption, however, is rebuttable by a preponderance of the evidence. !d. The Court
finds both Dr. Dlabach and Dr. Wood are treating physicians, and their opinions
regarding permanent impairment ratings carry a statutory presumption of accuracy.
For his right hip injury, Mr. Perry selected Dr. Dlabach from MLGW's panel of
physicians. Dr. Dlabach treated Mr. Perry's hip strain on multiple occasions and
referred him to physical therapy and work hardening. Dr. Dlabach assigned a
permanent impairment rating of zero percent to the body for the hip injury. However,
on one occasion, Mr. Perry also saw his own physician, Dr. Dalal, who assigned a
permanent impairment rating of four percent to the body for the hip injury. Both
physicians are orthopedic specialists and both are qualified to rate permanent
impairment for hip injuries. Dr. Dlabach examined and treated Mr. Perry on multiple
occasions, as opposed to Dr. Dalal who examined Mr. Perry on one occasion. The
Court reviewed the depositions of Dr. Dlabach and Dr. Dalal, and the primary difference
in their opinions involved their accuracy in measuring loss of range of motion. After
Law, and/or that it relied on an analysis that has since been addressed by the general assembly through statutory
amendments." McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, at *13 n.4 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).
4
reviewing the testimony of the physicians, the Court finds Dr. Dlabach's statutory
presumption of accuracy was not rebutted by a preponderance of the evidence.
Therefore, the Court finds Mr. Perry sustained no permanent impairment related to his
hip injury.
Regarding the right inguinal hernia injury, Dr. Dlabach referred Mr. Perry to a
general surgeon for treatment. Mr. Perry went to Dr. Wood, a general surgeon, for
examination. She confirmed Mr. Perry sustained a right inguinal hernia and performed
surgery. Approximately one month after surgery, she released Mr. Perry and opined he
sustained no permanent impairment for his hernia injury. The opinion of Dr. Wood was
presented to the Court through a Form C-32, pursuant to Tennessee Code Annotated
section 50-6-235(c)(2) (2015). This form contained no explanation how she evaluated
Mr. Perry or arrived at her impairment opinion. On the other hand, Dr. Dalal testified
through his deposition that he examined Mr. Perry and found "a palpable defect" and a
"protrusion" at the site of the hernia surgery. According to the AMA Guides, he
determined Mr. Perry sustained five percent permanent impairment to the body for the
hernia. Regarding the hernia, the Court finds the evidence rebuts Dr. Wood's statutory
presumption of accuracy by a preponderance of the evidence. Therefore, the Court finds
Mr. Perry sustained five percent permanent impairment to the body as a result of his
hernia injury.
Permanent Partial Disability
For post-July 1, 2014 injuries, permanent partial disability is paid at sixty-six
and two-thirds percent of the injured employee's average weekly wage for the period
of compensation as determined by multiplying the employee's impairment rating by
450 weeks. Tenn. Code Ann. § 506-207(3)(A) (2015). In this case, Mr. Perry's total
impairment rating is five percent to the body due to his hernia injury. He has returned to
work. His period of compensation is 22.5 weeks, and his agreed weekly compensation
rate is $628.08. Therefore, the Court finds Mr. Perry is entitled to permanent partial
disability benefits in the amount of$14,131.80.
Discretionary Costs
Mr. Perry requested certain discretionary costs. The statute allows the Court
to award discretionary costs for such expenses as reasonable expert deposition fees.
Tenn. Code Ann. § 50-6-239(c)(8) (2015). Otherwise, the statute is silent as to what
costs might be recoverable. However, Tennessee Rule of Civil Procedure 54.04(2)
also provides for the recovery of certain discretionary costs.
Mr. Perry is awarded reasonable and necessary discretionary costs associated
with preparing this case for trial, in the total amount of$1,446.85, itemized as follows:
5
1. Court Reporter fee for deposition of Bryant Perry $154.00
2. Court Reporter fee for deposition of Dr. Dlabach $109.90
3. Deposition fee for Dr. Dalal $1,000.00
4. Court Reporter fee for deposition of Dr. Dalal $182.95
Attorney Fee
Pursuant to Tennessee Code Annotated section 50-6-226(a)(1), an attorney's fee
shall be deemed reasonable if it does not exceed twenty percent of the award to the
injured worker. Accordingly, Mr. Perry's attorney is awarded an attorney's fee of
twenty percent of$14,131.80, or $2,826.36, to be paid from Mr. Perry's award.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Perry shall receive lifetime future reasonable, necessary, and related
medical benefits as required by Tennessee Code Annotated section 50-6-204
(2015).
2. Mr. Perry shall recover permanent partial disability benefits in the amount of
$14,131.80, representing a five percent permanent impairment to the body, or
22.5 weeks of compensation. These benefits, having accrued, are payable in
a lump sum.
3. Mr. Perry is awarded total amount of $1,446.85 for discretionary costs, to be
paid by MLGW.
4. Mr. Perry's attorney is awarded an attorney's fee of twenty percent of
$14,131.80, or $2,826.36, to be paid from Mr. Perry's award.
5. Costs of this cause of $150.00 are assessed against MLGW pursuant to Rule
0800-02-21-.07 of the Tennessee Compilation Rules and Regulations, to be
paid within five days of this order becoming final.
ENTERED this the 17th day of ~ /$---
Judge Jim Umsted
Workers' Compensation Judge
6
Right to Appeal:
Tennessee Law allows any party who disagrees with this Compensation Hearing
Order to appeal the decision to the Workers' Compensation Appeals Board. To file a
Notice of Appeal, you must:
1. Complete the enclosed form entitled: "Compensation Hearing Notice of Appeal."
2. File the completed form with the Court Clerk within thirty calendar days of the
date the Workers' Compensation Judge entered the Compensation Hearing Order.
3. Serve a copy of the Compensation Hearing Notice of Appeal upon the opposing
party.
4. The appealing party is responsible for payment of a filing fee in the amount of
$75.00. Within ten calendar days after the filing of a notice of appeal, payment
must be received by check, money order, or credit card payment. Payments can be
made in person at any Bureau office or by United States mail, hand-delivery, or
other delivery service. In the alternative, the appealing party may file an Affidavit
of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
will consider the Affidavit of Indigency and issue an Order granting or denying
the request for a waiver of the filing fee as soon thereafter as is practicable.
Failure to timely pay the filing fee or file the Affidavit of lndigency in accordance
with this section shall result in dismissal of the appeal.
5. The party filing the notice of appeal, having the responsibility of ensuring a
complete record on appeal, may request, from the Court Clerk, the audio recording
of the hearing for the purpose of having a transcript prepared by a licensed court
reporter and filing it with the Court Clerk within fifteen calendar days of the filing
of the Expedited Hearing Notice of Appeal. Alternatively, the party filing the
appeal may file a joint statement of the evidence within fifteen calendar days of
the filing of the Compensation Hearing Notice of Appeal. The statement of the
evidence must convey a complete and accurate account of what transpired in the
Court of Workers' Compensation Claims and must be approved by the workers'
compensation judge before the record is submitted to the Clerk of the Appeals
Board. See Tenn. Comp. R. & Regs. 0800-02-22-.03 (2015).
6. After the Workers' Compensation Judge approves the record and the Court Clerk
transmits it to the Workers' Compensation Appeals Board, the appeal will be
docketed and assigned to an Appeals Board Judge for review. At that time, a
docketing notice shall be sent to the parties. Thereafter, the party who filed the
7
notice of appeal shall have fifteen calendar days after the issuance of the docketing
notice to submit a brief to the Appeals Board for consideration. Any opposing
party shall have fifteen calendar days after the filing of the appellant's brief to file
a brief in response. No reply briefs shall be filed. Briefs shall comply with the
Practice and Procedure Guidelines of the Workers' Compensation Appeals Board.
See Tenn. Comp. R. & Regs. 0800-02-22-.03(6) (2015).
8
APPENDIX
Technical record:
1. Petition for Benefit Determination;
2. Dispute Certification Notice, filed July 14, 2015;
3. Dispute Certification Notice, filed April18, 2016;
4. Initial Hearing Order;
5. Mr. Perry's Pre-Trial Disclosures;
6. Mr. Perry's Notice of Filing Deposition of Apurva Dalal;
7. MLGW's Notice of Filing Deposition;
8. MLGW's Witness & Exhibit List;
9. MLGW's Statement Concerning Proposed Exhibits and List of Unresolved
Evidentiary Disputes;
10. MLGW's Amended Witness & Exhibits List;
11. MLGW's Notice to Rely on Form C-32;
12. Mr. Perry's Objection to the C-32 of Dr. Janice Wood and Motion to Strike or
Preclude C-32 of Dr. Janice Wood;
13. MLGW's Response to Employee's Motion to Strike or Preclude C-32 of Dr.
Janice Wood;
14. MLGW's Trial Brief and Motion in Limine;
15. Mr. Perry's Pre-Trial Brief;
16. MLGW's Motion in Limine and Motion to Strike Inappropriate and Inadmissible
Evidence; and
17. Mr. Perry's Response to Motion in Limine Regarding Disciplinary Actions
Against Mr. David Brick.
The Court did not consider attachments to Technical Record filings unless admitted into
evidence during the Expedited Hearing. The Court considered factual statements in these
filings or any attachments to them as allegations unless established by the evidence.
Stipulated Findings of Facts of the Parties:
1. Mr. Perry is thirty-two years old and presently lives in Shelby County, Tennessee.
2. Mr. Perry was working as a utility worker for MLGW on July 15, 2014.
3. On July 15, 2014, Mr. Perry was moving a large water valve when he felt a pull in
his groin.
4. Mr. }>erry selected Dr. Jeffrey Dlabach from a panel of physicians.
5. Dr. Dlabach referred Mr. Perry to a general surgeon for evaluation of a probable
right inguinal hernia.
6. Mr. Perry received authorized treatment with Dr. Janice Wood for the inguinal
hernia but did not select Dr. Wood from a panel of physicians.
7. Dr. Wood placed Mr. Perry at maximum medical improvement for his work-
related right inguinal hernia on September 5, 2014.
8. Dr. Dlabach placed Mr. Perry at maximum medical improvement for his work-
9
related right hip injury on October 30, 2014.
9. Mr. Perry's average weekly wage was $942.12, which resulted in a compensation
rate of $628.08.
Stipulated Conclusions ofLaw of the Parties:
1. This claim is governed by the Workers' Compensation Law for the State of
Tennessee.
2. Mr. Perry filed his Petition for Benefit Determination within the applicable statute
of limitations.
Exhibits:
Exhibit 1: Mr. Perry's Medical Record Designation;
Exhibit 2: MLGW's Additional Medical Record Designation;
Exhibit 3: Deposition Transcript of Dr. Apurva Dalal;
Exhibit 4: Deposition Transcript of Dr. Jeffrey Dlabach; and
Exhibit 5: Form C-32 of Dr. Janice Wood.
10
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Compensation Hearing Order
was sent to the following recipients by the following methods of service on this the 17th
day ofMay, 2016.
Name Certified Via Via Service sent to:
Mail Fax Email
Andrew C. Clarke, Esq., X aclark:e@accfirm .com
Employee's Attorney
Sean Hunt, Esq., X sean@thehuntfirm.com
Employer's Attorney
P4!m~::;
Court of orkers' Compensation Claims
WC.CourtClerk@tn.gov
11