Opinion

Bass, Clarence v. The Home Depot U.S.A., Inc.

  • 2017 TN WC 5
Court
Tennessee Court of Workers' Compensation Claims
Filed
Jan 25, 2017
Status
Published
On the bench
Kenneth M. Switzer
Cited by
0 cases
Authority
More cited than 12.5%

The opinion

TENNESSEE BUREAU OF WORKERS' COMPENSATION

IN THE COURT OF WORKERS' COMPENSATION CLAIMS

AT NASHVILLE

Clarence Bass, ) Docket No. 2016-06-1038

Employee, )

v. ) State File No. 59924-2014

The Home Depot U.S.A., Inc., )

Employer, ) Judge Kenneth M. Switzer

And )

New Hampshire Insurance Co., )

Carrier. )

COMPENSATION HEARING ORDER

This matter came before the undersigned Workers' Compensation Judge on

January 10, 2017, for a Compensation Hearing. The central legal issue is the

compensability of Mr. Bass' claim and specifically whether the requisite causal link

exists between an alleged injury at work and Mr. Bass' resulting need for two surgical

procedures. The authorized treating physician and an independent medical examiner

reached different conclusions on these and other issues. For the reasons set forth below,

the Court holds the independent medical examiner's opinion failed to overcome the

statutory presumption of correctness regarding causation afforded to the authorized

treating physician's opinion. Thus, the Court denies Mr. Bass' petition for benefits.

History of Claim

Mr. Bass worked at The Home Depot in Nashville as a lot associate. He sustained

an injury at work on August 1, 2014, while moving shopping carts. The "flap" beneath a

cart handle flipped over and struck him on the right hand and wrist. Mr. Bass clarified

the part that hit him was metal and not the plastic flap where small children ride in the

cart. He had no problems with his hand or wrist before the work incident.

Mr. Bass selected Dr. Philip Coogan as the authorized treating physician and saw

him ten times from February through December 2015. Dr. Coogan is board-certified in

hand surgery as well as orthopedic and plastic surgery. He testified Mr. Bass became

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injured "ten months previously, he had been moving some shopping carts and the plastic

flap that apparently covers the area children put their legs through the cart flipped over

and hit him on the dorsum of the wrist." (Emphasis added). Dr. Coogan further testified

the date of injury was April2014 but later corrected himself, noting he first saw Mr. Bass

"seven months, something like that, after the events that - on-the-job events." After

diagnosis and treatment, Dr. Coogan recommended a carpal tunnel release and a proximal

row carpectomy, which he performed on July 24. The Home Depot denied the claim

before the surgery based on communication with Dr. Coogan indicating that his treatment

no longer related to the work injury. Before undergoing surgery, Mr. Bass informed his

supervisor at The Home Depot regarding the denial. Dr. Coogan determined Mr. Bass

reached maximum medical improvement on November 25 and assessed an eight-percent

impairment rating to the body as a whole.

As for causation, Dr. Coogan concluded the injury and treatment were unrelated to

the work incident. He described the mechanism of injury as "fairly low-energy." Dr.

Coogan agreed in a causation letter to the adjuster and in his deposition testimony that,

within a reasonable degree of medical certainty, Mr. Bass did not sustain an injury by

accident that necessitated the carpal tunnel surgery. He further stated the proximal row

carpectomy was unrelated to the work injury. According to Dr. Coogan, Mr. Bass "had

the same diagnosis before the injury as he had after the injury. It was posttraumatic

instability and arthritis in his wrist." He explained he generally considers three factors

when determining causation: the "degree of violence of the event, the time duration of the

event and the degree of anatomic abnormality." However, his testimony focused almost

entirely on the first factor only. Dr. Coogan said it is "very common for people who have

posttraumatic arthritis to have events that sort of bring their symptoms to their attention."

He also testified regarding causation as follows:

Q: And if he [Mr. Bass] -let's say he did incorrectly give you a history

and it had actually been some kind of metal portion of the shopping cart, ..

. would that affect your opinion?

A: Not significantly.

Q: So what I think I'm hearing is just that the carpal tunnel is not

related to the work injury; is that correct?

A: That's correct.

Q: And that the posttraumatic instability and arthritis ts either not

related or modestly related to the work injury?

A: That's right.

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Q: Would that be less than 50 percent?

A: Yes.

Q: Okay. And have all of your answers today been provided within a

reasonable degree of medical certainty?

A: Yes.

(Ex. 2 at 30)(Emphasis added). On cross-examination, Dr. Coogan acknowledged Mr.

Bass' different version of how he became injured but did not alter his causation opinion

even if that version proved to be correct.

Turning now to the independent medical examiner, Dr. Landsberg is a board-

certified orthopedic surgeon who examined Mr. Bass once. In his report, Dr. Landsberg

summarized Mr. Bass' medical history and treatment and reviewed the diagnostic reports.

He testified that Mr. Bass told him the metal part underneath the cart, and not the plastic

flap, hit his hand, which is heavier and made out of a more rigid material. Dr. Landsberg

generally agreed with Dr. Coogan's diagnosis and treatment. As for causation, he

testified the "primary cause" of Mr. Bass' surgery was "pain and swelling and stiffness"

from the work injury. He also stated, "based on that history, with the symptoms starting

right after the injury, with that swelling, that the carpal tunnel syndrome was secondary to

the work injury and leading to the surgery." (Ex. 3 at 27.) As for the primary cause for

the proximal row carpectomy, Dr. Landsberg stated Mr. Bass "took a blow to the wrist ..

. He developed pain and more stiffness and swelling - or stiffness and swelling. And

had it not been for that, he probably wouldn't have had the surgery." Id. at 27-28. Dr.

Landsberg's report reads, "Based on this history, his problem was at least aggravated and

advanced by the work injury. This is within a reasonable degree of medical certainty.

All his symptoms came on after the work injury." Dr. Landsberg also assigned an

impairment rating of eleven percent to the body as a whole.

Post-surgery Return to Work

Mr. Bass returned to work on September 6. He testified The Home Depot initially

assigned him to light-duty in the garden center but later returned him to full-duty lot

attendant until his termination in May 2016. The Home Depot hired him part-time at

$8.50 per hour. Per the wage statement, he worked reduced hours during his orientation

period.

Michael Brown, the store manager, testified regarding the incidents precipitating

Mr. Bass' termination. Specifically, he wrote Mr. Bass disciplinary infractions three

times. The first notice documented three absences and one late arrival by ten minutes;

the second notice stated Mr. Bass disregarded customers' "loading needs" on two

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separate occasions; and the third notice indicated Mr. Bass left the store with "product"

and placed it in his vehicle. On cross-examination, Mr. Brown nonetheless agreed Mr.

Bass was a "good" employee. The Home Depot's disciplinary policy is "progressive."

Per Mr. Brown, Mr. Bass underwent approximately two weeks' orientation about

company policies, including one day of instructor-led training followed by computer-

based instruction.

To explain the write-ups, Mr. Bass testified he called in sick on the days he was

absent and it was not unusual to be late once over the course of two years' time. He

acknowledged disregarding a customer whom he stated was "talking out of line," but

asked his supervisor to find another worker to help the customer. As for removing

"product," Mr. Bass explained a vendor in the garden center told him he could have a few

tomato plants, which were non-saleable. His efforts to find another job since the

termination were unsuccessful.

Requested Relief

Mr. Bass argued he sustained a compensable injury. He seeks medical benefits

and in particular reimbursement of unpaid medical bills. He presented copies of these

bills to Dr. Landsberg, who testified they were reasonable and necessary. He also seeks

temporary total disability benefits from the date of surgery until his return to work, July

24 through September 6, totaling six weeks and three days. He additionally asks for

permanent partial disability benefits in accordance with Dr. Landsberg's eleven-percent

rating. As for the correct compensation rate, Mr. Bass argued the Court should exclude

his reduced wages for the time he was in orientation. Finally, he asks for an increase of

his award under Tennessee Code Annotated section 50-6-207(3)(b)(i)-(ii) (2016) and

contends The Home Depot fired him without cause.

In response, The Home Depot argued Mr. Bass' injury is not compensable, but in

the event the Court finds otherwise, it should adopt Dr. Coogan's eight-percent rating and

calculate the award including all sums on the wage statement. The Home Depot

additionally argued it terminated Mr. Bass for cause, so that the statutory multipliers are

inapplicable under Tennessee Code Annotated section 50-6-207(3)(D)(ii).

Findings of Fact and Conclusions of Law

Mr. Bass, as the employee in a workers' compensation claim, has the burden of

proof on all essential elements of the claim. Scott v. Integrity Staffing Solutions, 2015 TN

Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). At a compensation hearing, Mr.

Bass must establish by a preponderance of the evidence that he is entitled to the requested

benefits. Willis v. All Staff, TN Wrk. Comp. App. Bd. LEXIS 42, at *18 (Nov. 9, 2015);

see also Tenn. Code Ann. § 50-6-239(c)(6) ("[T]he employee shall bear the burden of

proving each and every element of the claim by a preponderance of the evidence."). In

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addition, the opinion of the authorized treating physician "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(14)(E).

Causation

Mr. Bass' claim involves an incident that he alleged caused injuries and the

resulting need for two surgical procedures performed concurrently: carpal tunnel release

and proximal row carpectomy. The definitions of"injury" are determinative.

Under the Workers' Compensation Law, an injury means "an injury by accident ..

. arising primarily out of and in the course and scope of employment, that causes ... the

need for medical treatment[.]" Tenn. Code Ann. § 50-6-102(14). For an injury to be

accidental, it must be "caused by a specific incident, or set of incidents, arising primarily

out of and in the course and scope of employment, and is identifiable by time and place

of occurrence, and shall not include the aggravation of a preexisting disease, condition or

ailment unless it can be shown to a reasonable degree of medical certainty that the

aggravatioq arose primarily out of and in the course and scope of employment." Tenn.

Code Ann. § 50-6-102(14)(A). As for alleged aggravations, "The pertinent statute makes

clear that an aggravation of a pre-existing condition is a compensable injury when '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 employment."' Miller v. Lowe's Home Centers,

Inc., 2015 TN Wrk. Comp. App. Bd. LEXIS 40, at *12 (Oct. 21, 2015), citing Tenn.

Code Ann. § 50-6-102(14)(A) (2015). Mr. Bass can satisfy the burden of proving a

compensable aggravation if: 1) there is expert medical proof that the work accident

"contributed more than fifty percent (50%)" in causing the aggravation, and 2) the work

accident was the cause of the aggravation "more likely than not considering all causes."

Miller, at* 15, citing Tenn. Code Ann. § 50-6-102(14)(B)-(C).

The Court observed Mr. Bass' demeanor during the hearing and finds him

credible. Thus, the Court finds he injured his hand and wrist when the metal part of a

shopping cart struck him on August 1, 2014. The more difficult question is whether that

incident caused his carpal tunnel syndrome and aggravated his preexisting arthritis,

resulting in the need for treatment and surgery.

The medical experts differ. In these situations, the Appeals Board affirmed

longstanding Tennessee law when it held, "A trial court generally has the discretion to

choose which expert to accredit when there is a conflict of expert opinions." Brees v.

Escape Day Spa & Salon, 2015 TN Wrk. Comp. App. Bd. LEXIS 5, at *14 (Mar. 12,

2015) (internal citations omitted). In evaluating conflicting expert testimony, this 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 through other experts." ld.

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Applying these factors, the Court initially finds both experts bear similar

qualifications, so that this factor favors neither expert. With regard to the circumstances

of their evaluation, Dr. Coogan saw Mr. Bass multiple times over several months, while

Dr. Landsberg examined him once in anticipation of litigation. "It seems reasonable that

the physicians having greater contact with the Plaintiff would have the advantage and

opportunity to provide a more in-depth opinion, if not a more accurate one." Orman v.

Williams Sonoma, Inc., 803 S.W.2d 672, 677 (Tenn. 1991). Thus, this factor favors Dr.

Coogan. It appears both physicians relied upon the same diagnostic testing to reach their

conclusions, but they ascribed differing mechanisms of injury.

For his part, Dr. Coogan identified three considerations- the violence of the event,

the time duration of the event and the degree of anatomic abnormality. Dr. Coogan

clearly based his initial conclusion on the incorrect belief that the event in question was

the impact of a plastic flap on Mr. Bass' hand and wrist, a "fairly low-energy" event.

Importantly, however, he testified that even if the event were more severe than he

thought, it would "not significantly" alter his opinion. Dr. Coogan did not address

whether the event aggravated the pre-existing injury; although there is lengthy discussion

concerning the effect of an injury on his pre-existing arthritis, the Court cannot find a

direct question on aggravation in Dr. Coogan's testimony. He nonetheless firmly stated

he cannot conclude within a "reasonable degree of medical certainty" that the work

accident was the primary cause of the need for Mr. Bass' carpal tunnel release or

proximal row carpectomy.

Dr. Landsberg reached a different causation conclusion, basing his opinion largely

on a history of a more violent event than Dr. Coogan noted. Specifically, Dr. Landsberg

stated the "primary cause" of Mr. Bass' surgery was "pain and swelling and stiffness"

from the work injury. He wrote in his report, "based on his history, his problem was at

least aggravated and advanced by the work injury." However, nowhere did Dr.

Landsberg find the incident contributed more than fifty percent in causing the

disablement, considering all causes, as the statute requires. Moreover, Dr. Landsberg's

report concluded in relevant part, "[B]ased on his history, his problem was at least

aggravated and advanced by the work injury. This is within a reasonable degree of

medical certainty. All his symptoms came on after the work injury." (Emphasis added.)

Simply because Mr. Bass started having problems with his hand and wrist after the

incident does not necessarily mean the work incident caused the carpal tunnel syndrome

and the aggravation of the pre-existing arthritis.

Thus, the Court holds Dr. Landsberg's opinion is insufficient to overcome the

presumption of correctness afforded to Dr. Coogan's opinion by a preponderance of the

evidence. Mr. Bass failed to establish by a preponderance of the evidence that he

sustained an injury by accident arising primarily out of and in the course and scope of

employment or an aggravation of a pre-existing condition arising primarily out of and in

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the course and scope of employment. His claim for workers' compensation benefits is

denied.

Alternative Findings

Solely in the event that an appellate body finds error in the compensability

holding, the Court makes the following alternative findings for the sake of judicial

economy. See Cunningham v. Shelton Sec. Serv., 46 S.W.3d 131, 137-138 (Tenn. 2001).

("The trial court should . . . hear the entire case and make appropriate findings of fact,

and alternative findings when necessary, for appellate review.")

The Court holds in the alternative that the correct impairment rating is eight

percent to the body as a whole, per Dr. Coogan's conclusion. His rating is presumed

correct; see Tenn. Code Ann. § 50-6-204(k)(7). Nothing within Dr. Landsberg's

testimony or report indicates that Dr. Coogan's rating is incorrect in method or in

application of the American Medical Association Guides. The two experts merely

reached different conclusions. Thus, the presumption of correctness must stand. Further,

in accordance with the opinions of both experts, the surgical procedures were medically

necessary. The medical bills relative to the procedures were reasonable and necessary.

Additionally, Mr. Bass' compensation rate is $282.63, excluding the period when he

earned less while training. Finally, The Home Depot terminated Mr. Bass for cause, so

that his award of permanent partial disability benefits is not subject to application of the

enhancement factors. See Tenn. Code Ann. § 50-6-207(3)(D)(ii).

IT IS, THEREFORE, ORDERED as follows:

1. Mr. Bass' claim is denied on the ground of compensability.

2. The Home Depot shall pay the $150.00 filing fee under Tennessee Compilation

Rules and Regulations 0800-02-21-.07 (2016).

3. The Home Depot shall file an SD-1 within ten days of entry of this Judgment.

ENTERED this the 25th day of January, 2017.

udge Kenneth M. Switzer

Court of Workers' Com pen

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APPENDIX

EVIDENCE

1. Affidavit

2. Deposition of Dr. Landsberg

3. Deposition of Dr. Coogan

4. Wage statement

5. Photograph

6. Associate statement

7. Notice ofDenial

8. Progressive Disciplinary Notices

9. Performance and D~ve1opment Summaries

TECHNICAL RECORD

1. Petition for Benefit Determination

2. Employee's Pre-Mediation Position Statement

3. Dispute Certification Notice

4. Petition for Benefit Determination

5. Employer's Pre-Mediation Position Statement

6. Employee's Pre-Hearing Brief

7. Witness and Exhibit List (Employee)

8. Witness and Exhibit List (Employer)

9. Dispute Certification Notice

10. Defendant's Trial Brief

The Court did not consider attachments to Technical Record filings unless

admitted into evidence during the Compensation Hearing. The Court considered factual

statements in these filings or any attachments to them as allegations unless established by

the evidence.

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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 25th

day of January, 2017.

Name Certified Fax Email Service sent to:

Mail

Jill Draughon, X IDraughon@hughesandcoleman.com

Em loyee's Attorney

Kenny Veit, X Kenny.veit@leitnerfirm.com

Em lo er' s Attome

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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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