The opinion
FILED
Aug 29, 2018
11:32 AM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
COURT OF WORKERS’ COMPENSATION CLAIMS
AT CHATTANOOGA
José Fleming, ) Docket No. 2015-01-0377
Employee, )
Vv. )
Newly Weds Foods, Inc., ) State File No. 85737-2015
Employer. )
And )
Sentry Casualty Company, ) Judge Thomas Wyatt
Insurer. )
COMPENSATION HEARING ORDER FOR PERMANENT PARTIAL
DISABILITY BENEFITS
This claim came before the Court on August 23, 2018, for a Compensation
Hearing. The primary issue was the extent of permanent partial disability (PPD) benefits.
José Fleming sought original and resulting awards based on an impairment rating from a
non-authorized provider. Newly Weds Foods, Inc. (Newly Weds) argued that the Court
should limit Mr. Fleming’s original award to benefits based on the treating physician’s
impairment rating. It also contended that Mr. Fleming should not receive a resulting
award because (1) he worked for Newly Weds on the date the original compensation
period expired at a higher pay rate than he earned pre-injury, and (2) because it
terminated him for cause. For the reasons below, the Court awards Mr. Fleming an
original award of PPD benefits based on the treating physician’s impairment rating.
History of Claim
Mr. Fleming is a sixty-two-year-old native of the Dominican Republic. He
worked as a dumper at Newly Weds’ industrial bakery. He has a sixth-grade education
and worked as a construction worker for twenty years before immigrating in 2013.
Mr. Fleming’s job at Newly Weds included lifting, carrying and pouring heavy
sacks of baking products into large mixers. He also dissembled the mixers, requiring him
to manipulate parts weighing up to 150 pounds. He earned an average weekly wage of
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$819.37 during the fifty-two weeks before the date of injury. Thus, the weekly
compensation rate is $546.27.
Mr. Fleming experienced low-back pain at work on July 13, 2015, while bending
over a mixer to rotate a 150-pound part for cleaning. He timely notified Newly Weds of
his injury.
Mr. Fleming initially selected Physician’s Care, a walk-in clinic, from a panel. A
physician’s assistant directly referred him to orthopedist Dr. Rickey Hutcheson. Mr.
Fleming first saw him on October 30, 2015, reporting low-back pain and right- and left-
leg numbness and pain. Dr. Hutcheson ordered an x-ray and diagnosed lumbar strain and
“lumbar spondylosis and degenerative disk disease that is pre-existing.” An MRI
revealed a bulging L5-S1 disk that mildly displaced the nerve root, mild to moderate
narrowing of the right L5-S1 neural foramen, L4-L5 stenosis, and degenerative disk
disease at multiple levels. Dr. Hutcheson concluded that Mr. Fleming suffered a lumbar
muscle strain at Newly Weds that did not permanently aggravate or worsen the pre-
existing degenerative changes in his spine.
Dr. Hutcheson provided conservative treatment and ordered a functional capacity
evaluation. Mr. Fleming was assessed as giving less than maximal effort. Dr. Hutcheson
then released him without restrictions, and on February 22, 2016, assigned a two-percent
whole-body impairment.
Dissatisfied with Dr. Hutcheson’s rating, Mr. Fleming sought an impairment
evaluation from Chiropractor Victor Poletajev. Chiropractor Poletajev assigned a rating
of eleven percent to the body based on several factors, including pain with activities of
daily living, right-leg radiculopathy indicated by straight-leg-raise testing, and diagnoses
of L5-S1 herniated disk, spondylosis, and degenerative conditions.
The crux of the dispute at trial concerned the extent of PPD benefits to which Mr.
Fleming is entitled. Mr. Fleming relied on the deposition testimony of Chiropractor
Poletajev; Newly Weds relied on the Dr. Hutcheson’s deposition testimony.
Chiropractor Poletajev testified that he saw Mr. Fleming once for an impairment
evaluation. He received and reviewed a medical file compiled by Mr. Fleming’s attorney
and evaluated his impairment at eleven-percent whole-body impairment under the Sixth
Edition of the AMA Guides to the Evaluation of Impairment (the “Guides”). He based
his rating on the disc abnormalities and stenosis in Mr. Fleming’s spine and radicular
findings in his legs.
' At his $11.85 per hour pre-injury pay rate, Mr. Fleming averaged approximately eighteen hours of
overtime during the year preceding his injury.
Chiropractor Poletajev testified about his extensive training in assessing
impairments under several editions of the Guides. On cross-examination, he stated that
patients hired him to assess impairment approximately 6,100 times and estimated about
ninety percent of the examinations were for plaintiffs. Poletajev Dep. 34. He testified
that Dr. Hutcheson’s impairment rating was “null and void” because he did not consider
the impact of Mr. Fleming’s injury on his activities of daily living, and he criticized Dr.
Hutcheson’s report because of its brevity. Jd. at 21, 30. Chiropractor Poletajev also
asserted that he was more qualified than Dr. Hutcheson to assess Mr. Fleming’s
impairment because the Guides require a non-treating physician to assess impairment.
Chiropractor Poletajev offered little testimony about the work-relatedness of Mr.
Fleming’s injury. When asked if Mr. Fleming’s injury was consistent with the history of
how he was hurt and the fact he performed a job that required heavy lifting, Chiropractor
Poletajev testified, “Very much so, yes. The probability factor I would say is complete[.]
It seemed very consistent with this type of injury.”” Jd. at 25-26.
On the other hand, Dr. Hutcheson testified that he rated Mr. Fleming’s impairment
under the Guides at two-percent whole-body impairment rating based on a lumbar strain.
Hutcheson Dep. 28. He reiterated his opinion that Mr. Fleming has several lumbar
diagnoses that pre-existed his injury at Newly Weds and were not permanently
aggravated or advanced by the injury at Newly Weds. Id.
Dr. Hutcheson used the standard of whether Mr. Fleming’s work injury
“contribute[d] more than 50 percent in causing his degenerative disk disease considering
all causes” in his causation opinions. Jd. at 19. He stated on cross-examination that the
percentage-based assessment of causation under the Workers’ Compensation Law
represented an “educated guess.” Jd. at 34. Dr. Hutcheson rated Mr. Fleming for
impairment on February 22, 2016. Jd. at Ex. 7.
Turning to issues regarding termination, Mr. Fleming testified he returned to
restricted-duty work following his injury and worked continuously until May 2016. He
stated that Newly Weds provided light duty while he was under restrictions. Newly
Weds returned Mr. Fleming to his regular job after Dr. Hutcheson released him without
restrictions following the invalid functional capacity evaluation.
Mr. Fleming testified that performing his regular work caused great pain. He
reported his pain to Newly Weds’ HR manager, Dan Merriman, several times. The
specifics of those conversations are disputed. Mr. Fleming testified that on the last day
* Chiropractor Poletajev was not asked whether Mr. Fleming’s injury, or any spinal diagnosis he received,
arose primarily out of and in the course and scope of employment. Further, he was not asked whether Mr.
Fleming’s injury at Newly Weds accounted for more than fifty percent of the causation of his injury,
considering all causes. Chiropractor Poletajev testified that he was not asked to “do any kind of medical-
legal issues” in his evaluation. Poletajev Dep. 15.
he worked—approximately May 5, 2016—Mr. Merriman told him to go home and not
return. Mr. Merriman denied this, but stated he likely told Mr. Fleming he could go
home because of his pain, but he would need to comply with Newly Weds’ attendance
policy.’ Mr. Merriman testified he asked Mr. Fleming approximately a week later about
the plan for his return to work. Mr. Fleming did not identify a plan, and when he did not
return to work or report absent over the next month, Mr. Merriman terminated him for
violation of the attendance policy.
Mr. Fleming urged the Court to award PPD benefits because he worked hard for
Newly Weds before his injury without physical limitation or lost time. He stated that the
injury he suffered at Newly Weds prevents him from being able to work.
Newly Weds urged the Court to limit Mr. Fleming to an original award based on
Dr. Hutcheson’s two-percent rating. It contended Chiropractor Poletajev’s rating is
incorrect for several reasons, including the fact he based his rating on diagnoses that did
not arise primarily out of and in the course and scope of employment. For these reasons,
Newly Weds asserted that the chiropractor’s rating did not rebut the presumption of
correctness afforded Dr. Hutcheson’s rating.
Newly Weds also contended that Mr. Fleming is not entitled to a resulting award
because he was employed at Newly Weds on April 25, 2016—the date the original
compensation period expired under Dr. Hutcheson’s rating—at a higher rate of pay than
the pre-injury pay rate.“ Should the Court adopt Chiropractor Poletajev’s rating, Newly
Weds argued that Mr. Fleming is not entitled to a resulting award because he abandoned
his employment. Mr. Fleming countered that he did not come to work because Newly
Weds fired him.
Findings of Fact and Conclusions of Law
General Legal Principles
At a compensation hearing where the injured employee has arrived at a trial on the
merits, the employee must establish by a preponderance of the evidence that he is entitled
to the requested benefits. Panzarella v. Amazon.com, Inc., 2017 TN Wrk. Comp. App.
Bd. LEXIS 30, at *10-11 (May 15, 2017); see also Tenn. Code Ann. § 50-6-239(c)(6)
* The attendance policy states that an employee is subject to termination if he is “absent for three or more
consecutive work days without reporting absent.”
* Dr. Hutcheson’s two-percent whole-body impairment would entitle Mr. Fleming to nine weeks of
benefits. With a date of maximum medical improvement of February 22, 2016, the original compensation
period under Dr. Hutcheson’s rating expired on April 25, 2016. Newly Weds contended Mr. Fleming
made a successful return to work because he worked 39.98 hours at an hourly pay rate of $14.27 during
the week of April 22-28, 2016.
(2017). On the issue of work-relatedness, the employee must establish by a
preponderance of the evidence that his injury or condition “arose primarily out of and in
the course and scope of employment.” Tenn. Code Ann. § 50-6-102(14)(A).
The employee’s burden to prove the work-relatedness of his injury requires a
showing that the employment contributed more than fifty percent in causing the injury,
considering all causes. The employee must establish this to a reasonable degree of
medical certainty. The opinion of the treating physician, selected by the employee from
the employer’s designated panel of physicians, shall be presumed correct on the issue of
causation, “but this presumption shall be rebuttable by a preponderance of the evidence.”
See generally Tenn. Code Ann. § 50-6-102(14).
Additionally, an employee who establishes a partial disability from a compensable
permanent injury is entitled to payment of PPD benefits for the number of weeks
calculated by multiplying the applicable impairment rating by 450 weeks. Tenn. Code
Ann. § 50-6-207(3)(A). These benefits are paid at the weekly compensation rate whether
or not the employee returns to work. Jd. The Workers’ Compensation Law refers to this
as the original award of PPD benefits.
Further, “[i]f at the time the [original compensation period] ends the employee has
not returned to work for any employer or has returned to work and is receiving wages or
a salary that is less than one hundred percent (100%) of the wages or salary received from
the employee’s pre-injury employer,” the employee may be entitled to additional PPD
benefits. This is called a resulting award.’ Tenn. Code Ann. § 50-6-207(3)(B). These
benefits are calculated by applying the multipliers in the statute.
Original Award
The issue regarding Mr. Fleming’s original award is whether the Court should
calculate it based on Dr. Hutcheson’s or Chiropractor Poletajev’s impairment rating. Dr.
Hutcheson based his rating solely on a lumbar strain because he concluded the other
conditions in Mr. Fleming’s lumbar spine pre-existed the work injury and thus did not
arise primarily out of and in the course and scope of employment. On the other hand,
Chiropractor Poletajev based his rating on all lumbar diagnoses Mr. Fleming received.
After careful consideration, the Court holds that Mr. Fleming did not rebut the
presumption of correctness afforded Dr. Hutcheson’s causation opinion. In making this
decision, the Court finds credible Mr. Fleming’s testimony that he successfully
performed physically strenuous work at Newly Weds for two years. He worked an
average of almost sixty hours per week until he injured his back. However, Mr. Fleming
° The original compensation period ends when the number of weeks of the original award of PPD expires
after beginning on the date of maximum medical improvement.
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cannot meet his burden of proving the work-relatedness of his injury by his testimony
alone; he must satisfy his burden by the preponderance of the expert medical evidence.
He did not do this.
Dr. Hutcheson testified directly and clearly that all lumbar diagnoses except Mr.
Fleming’s lumbar strain pre-dated his injury and were not permanently aggravated or
advanced by his work injury. He used the definitions in the Workers’ Compensation Law
in giving his opinion. To the contrary, Chiropractor Poletajev testified that he was not
asked to perform a “medical-legal” assessment but was asked only to assign an
impairment rating. The only causation opinion he gave was in response to a vaguely-
worded question about whether Mr. Fleming’s injury was “consistent” with his history of
injury and working a job requiring a great deal of lifting. Counsel did not ask
Chiropractor Poletajev about the causation of the individual diagnoses in Mr. Fleming’s
lumbar spine, and he did not consider the causation issue under the definitions in the
statute. See Panzarella, supra.
For these reasons, the Court holds that Mr. Fleming is entitled to an original award
of PPD benefits based on Dr. Hutcheson’s two-percent whole-body impairment rating.
This entitles him to nine weeks of PPD benefits based on his compensation rate of
$546.27, for a total of $4,916.43.
Resulting Award
An additional issue is whether Mr. Fleming returned to work on the date of the
expiration of the original compensation period at a wage in the same amount or higher
than the pre-injury wage. If he did, he is not entitled to a resulting award.
The Court holds that the original compensation period based on Dr. Hutcheson’s
impairment rating began February 22, 2016, the date he assigned the rating. It ended nine
weeks, or sixty-three days, later on April 25, when Mr. Fleming was employed by Newly
Weds at an hourly rate almost three dollars per hour more than the pre-injury award. See
Marshall v. Mueller Co., 2016 TN Wrk. Comp. App. Bd. LEXIS 74, at *12-13 (July 11,
2016) (the employee’s wage for purposes of the application of Tennessee Code
Annotated section 50-6-207(3)(B) is the employee’s hourly wage). Thus, he is not
entitled to a resulting award.
IT IS, THEREFORE, ORDERED:
1. Newly Weds shall pay Mr. Fleming an original award of PPD benefits in
the amount of $4,916.43, based on Dr. Hutcheson’s two-percent whole-
body impairment.
2. Mr. Fleming’s claim for a resulting award of PPD benefits is denied.
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3. Mr. Fleming is entitled to future medical care of his compensable injury
under the authorized care of Dr. Hutcheson.
4. The Court taxes the $150.00 filing fee to Newly Weds under Tennessee
Compilation Rules and Regulations 0800-02-21-.07 (2017), to be paid
within five business days from the date this order becomes final.
5. Newly Weds shall file a Statistical Data Form within ten days from the date
this order becomes final.
6. Absent an appeal, this order becomes final thirty days after entry.
ENTERED August 29, 2018.
Lhov bee ox
JUDGE THOMAS WYATT
Court of Workers’ Compensation Claims
APPENDIX
Technical record: The Court marked the following documents and considered them in
deciding this claim:
SS ee
9.
Petition for Benefit Determination
Initial Dispute Certification Notice
Affidavit of Indigency
Scheduling Hearing Order
Mr. Fleming’s Pre-Compensation Hearing Statement
Newly Weds’ Pre-Compensation Hearing Statement
Newly Weds’ Witness/Exhibit List
Newly Weds’ Intent to Rely on Excerpts from the Deposition of Jose Fleming at
Trial
Post-Mediation Dispute Certification Notice
10. Newly Weds’ brief
11.Mr. Fleming’s brief.
Exhibits: The Court admitted the following documents into evidence and considered
them in deciding this claim unless marked for identification only:
1. Transcript of the Deposition of Chiropractor Victor Poletajev, plus attached
exhibits
Transcript of the Deposition of Dr. Rickey Hutcheson, plus attached exhibits
Affidavit of Jose Fleming
Form C-42 Employee Choice of Physician
Mr. Fleming’s paychecks from Newly Weds from July 24, 2014-July 16, 2015,
and from January 7, 2016-May 5, 2016
Wage Statement
Clinical Reference Laboratory record
Scheduling information from ATI Physical Therapy
Information printed from healthline.com (for identification only because the Court
sustained Newly Weds’ hearsay objection)
10. Connexus Pharmacy System record/prescription signed by Dr. Hutcheson
11. Wal-Mart pharmacy record (for identification only because the Court sustained
Newly Weds’ hearsay objection)
12. Letter from Newly Weds to Mr. Fleming dated November 9, 2015
13. Newly Weds’ Personnel Policy Manual
14. Results Physical Therapy records
15. Paychecks form Express Employment Professionals;
16. Employment application
17. Acknowledgement of Employer Handbook form
18. Acknowledgement of Employee Attendance Policy form
19. Separation Notice
20. Newly Weds New Employee Progress Report
21.Employee’s Answers to Employer’s and Insurance Carrier’s First Interrogatories
22.Tennessee Valley Bone and Joint Patient Information form.
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Agreed Facts: The parties agreed to the following facts:
1. Mr. Fleming suffered an injury at Newly Weds on July 13, 2015.
2. Mr. Fleming gave Newly Weds notice of his injury on July 13, 2015.
3. Mr. Fleming is sixty-two years old and resides in Bradley County, Tennessee.
4, Mr. Fleming received authorized medical treatment from Larry Kirk, P.A., at
Physician’s Care; Dr. Rickey Hutcheson (on direct referral from Physician’s
Care)°, and from Dr. Jay Jolley (second opinion).
5. Mr. Fleming earned average weekly wages of $819.37 during the fifty-two weeks
preceding the date of injury, entitling him to a weekly compensation rate of
$546.27.
° Mr. Fleming confirmed this fact by testimony.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this Compensation Hearing Order
was sent to the following recipients by the following methods of service on August 29,
2018.
Name Certified Via Service sent to:
Mail Email
José Fleming, Self- xX HIdsolano42@gmail.com
Represented Employee 176 Lang Street
Cleveland, TN 37312
Lee Anne Murray x leeamuray(@feeneymurray.com
Employer Attorney
Danae ( Ww whe Waray WO
Penny Shrum, Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
Compensation Hearing Order Right to Appeal:
If you disagree with this Compensation Hearing Order, you may appeal to the Workers’
Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers’
Compensation Appeals Board, you must:
1.
Complete the enclosed form entitled: “Compensation Hearing Notice of Appeal,” and file
the form with the Clerk of the Court of Workers’ Compensation Claims within thirty
calendar days of the date the compensation hearing order was filed. When filing the
Notice of Appeal, you must serve a copy upon the opposing party (or attorney, if
represented).
You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of 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.
You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. A licensed court
reporter must prepare a transcript and file it with the court clerk within fifteen calendar
days of the filing the Notice of Appeal. Alternatively, you may file a statement of the
evidence prepared jointly by both parties within fifteen calendar days of the filing of the
Notice of Appeal. The statement of the evidence must convey a complete and accurate
account of the hearing. The Workers’ Compensation Judge must approve the statement
of the evidence before the record is submitted to the Appeals Board. If the Appeals
Board is called upon to review testimony or other proof concerning factual matters, the
absence of a transcript or statement of the evidence can be a significant obstacle to
meaningful appellate review.
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. The appealing
party has fifleen calendar days after the date of that notice to submit a brief to the
Appeals Board. See the Practices and Procedures of the Workers’ Compensation
Appeals Board.
To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing
Order must be final and you must comply with the Tennessee Rules of Appellate
Procedure. If neither party timely files an appeal with the Appeals Board, the trial court’s
Order will become final by operation of law thirty calendar days after entry. See Tenn.
Code Ann. § 50-6-239(c)(7).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, |-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
1, , having been duly sworn according to law, make oath that
because of my poverty, | am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name: 2. Address:
3. Telephone Number: 4. Date of Birth:
5. Names and Ages of All Dependents:
Relationship:
Relationship:
Relationship:
Relationship:
6. |am employed by:
My employer's address is:
My employer’s phone number is:
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$
8. | receive or expect to receive money from the following sources:
AFDC $ per month beginning
SSI $ per month beginning
Retirement $ per month beginning
Disability 5 per month beginning
Unemployment $ per month beginning
Worker's Comp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are:
Rent/House Payment $ permonth Medical/Dental $ per month
Groceries 3 per month Telephone $ _.. per month
Electricity $ per month School Supplies $ per month
Water $ per month Clothing $ per month
Gas $ per month Child Care $ per month
Transportation $ per month Child Support $_ per month
Car $ per month
Other $ per month (describe: }
10. Assets:
Automobile $ (FMV)
Checking/Savings Acct. $ __.
House $ (FMV)
Other $ Describe:
11. My debts are:
Amount Owed To Whom
| hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that | am financially unable to pay the costs of this appeal.
Sworn and subscribed before me, a notary public, this
day of , 20
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV 11/15) RDA 11082