Tipton, Betty v. Dynametal Technologies

FILED

Feb 15, 2019

09:33 AM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT JACKSON

BETTY TIPTON, ) Docket No. 2018-07-0202

Employee, )

v. )

DYNAMETAL TECHNOLOGIES, )

Employer, ) State File No. 86668-2016

And, )

)

ACCIDENT FUND INS. COMPANY, )

Carrier. ) Judge Joshua Davis Baker

COMPENSATION HEARING ORDER

The Court convened a compensation hearing on January 29, 2019. The parties

disputed whether Ms. Tipton suffered a work-related injury and the extent of her

permanent impairment. The Court holds Ms. Tipton suffered a compensable back injury

that resulted in fifteen percent permanent partial disability to the body as a whole.

History of Claim

Ms. Tipton is a fifty-three-year-old resident of Haywood County with a twelfth

grade education. She worked for Dynametal assembling and packing parts. After

packing them, she lifted the boxes weighing between thirty and thirty-five pounds and

placed them onto a skid.

While putting a box on a skid on November 7, 2016, Ms. Tipton felt a pop and

immediate pain in her back. Dynametal provided urgent care from a clinic Ms. Tipton

chose from a panel. The clinic provided conservative treatment for a lumbar strain for

about eight months. She was released to return to work but continued having back pain

radiating into her legs.

Ms. Tipton felt the clinic was unresponsive, so she saw her primary care

physician, who recommended an MRI in March 2017. The exam revealed a bulging disc

at L4-L5 “with left paracentral disc extrusion impinging the left lateral recess” and a

bulging disc at L5-S1 “with left paracentral disc protrusion impinging the left lateral

recess.”

Consequently, Dynametal provided Ms. Tipton with a panel of specialists from

which she chose Dr. John Brophy, a neurosurgeon. Dr. Brophy concluded after one visit

that she had a work-related lumbar strain and that her bulging discs were not work-

related. Interpreting the MRI, he thought “a lot of it was arthritic” but identified a “disc

abnormality on the left at L4-5” that was a “potential source of leg pain.” However, his

“impression was chronic back pain associated with lumbar spondylosis without definite

clinical evidence of radiculopathy or radiographic evidence of nerve root compression.”

He recommended and steroid injection and released her to full-duty work at maximum

medical improvement (MMI) on August 23, 2017. Dr. Brophy noted she had no

permanent impairment.

Although Dr. Brophy testified the bulging discs could “potentially” have occurred

at work, he explained that the cause is not easy to identify:

[T]he problem [with identifying the cause of a ruptured disc] is people

think it’s related to some strenuous activity but if that were true, we’d see it

in every NFL football game. We wouldn’t see it in doctors and lawyers,

which we do. . . . [W]e never know exactly when it occurred.

He expressed that it was “interesting” that Ms. Tipton’s pain began as she stood up from

placing the box on the skid, rather than as she lifted the box.

Dr. Samuel J. Chung, a physiatrist and employee’s independent medical examiner,

testified that Dr. Brophy’s contention that Ms. Tipton did not have radiculopathy was

incongruent with the treatment he had recommended, an epidural steroid injection. Dr.

Chung testified, “You don’t do [a] lumbar epidural steroid injection unless [the] patient

has clinical symptoms of radiculopathy.”

Dr. Chung concluded “the primary cause” of Ms. Tipton’s injury was the work

event she had described, explained she had fifteen percent permanent impairment, and

said her complaints matched her MRI results. He testified about her left leg radicular

complaints, “It is a correct side that she is complaining of . . . and the MRI correlates to

that specific level and the side that was ruptured, extruded, if you will, at the L4 and L5

level.”

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Ms. Tipton testified she has not worked since her injury. After Dr. Brophy

released her, she continued treating with her primary care physician and sought assistance

from coworkers to perform her job for roughly eight more months, until her primary care

physician took her off work. Her work history included house-cleaning and factory

assembly work. She had no prior back treatment or complaints before this work injury.

Findings of Fact and Conclusions of Law

Ms. Tipton seeks permanent total disability benefits and has the burden of proof

on all essential elements of her claim. Scott v. Integrity Staffing Solutions, 2015 TN Wrk.

Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). “[A]t 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 or she is, in fact, entitled to the requested benefits.”

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

also Tenn. Code Ann. § 50-6-239(c)(6) (2018) (“[T]he employee shall bear the burden of

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

To recover benefits, Ms. Tipton must establish by a preponderance of the evidence

that her injury arose primarily out of and in the course and scope of employment. Tenn.

Code Ann. § 50-6-102(14). She must show to a reasonable degree of medical certainty

that “the employment contributed more than fifty percent (50%) in causing the injury,

considering all causes.” Id. at § 50-6-102(14)(B). The physician selected from a panel is

presumed correct on causation, but that presumption can be rebutted by a preponderance

of the evidence standard. Tenn. Code Ann. § 50-6-102(14)(E).

Here, the Court finds Ms. Tipton’s bulging discs were primarily caused by her

employment. Dr. Brophy determined they were not and, although his causation opinion

is presumed correct, Dr. Chung’s causation opinion rebuts it by a preponderance of the

evidence. When faced with conflicting medical testimony, the Court must use its

discretion in accepting one expert opinion over another and, in so doing, may consider

which opinion contains the more probable explanation. Sanker v. Nacarato Trucks, Inc.,

2016 TN Wrk. Comp. App. Bd. LEXIS 27, at *12 (July 6, 2016).

Ms. Tipton identified a specific work event that resulted in immediate pain. She

said she had not suffered a back injury, or received treatment for, or complained of back

pain, before this event. Dr. Chung bolstered her credibility by explaining how the MRI

test results corresponded with her pain complaints and testified convincingly that this

work accident was the primary cause of Ms. Tipton’s bulging discs. Unlike Dr. Brophy,

Dr. Chung considered all information available to him, including that she had no prior

back injuries and that her pain began with this work accident. Dr. Brophy’s opinion

seemed both dismissive of Ms. Tipton’s account and also contradictory. He dismissed

“strenuous activity” as a primary cause for a bulging disc but then implied it was

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noteworthy that Ms. Tipton attributed her onset of pain to simply straightening from a

bended position rather than from lifting a heavy box. See Thomas v. Aetna Life and Cas.

Co., 812 S.W.2d 278, 283 (Tenn. 1991) (Medical proof “must be considered in

conjunction with the lay testimony of the employee as to how the injury occurred and the

employee’s subsequent condition.”).

The Court also accepts Dr. Chung’s opinion on permanent impairment over that of

Dr. Brophy’s and finds that his opinion outweighs Dr. Brophy’s by a preponderance of

the evidence. Dr. Chung provided a detailed explanation for his opinion on permanent

impairment from the AMA Guides while Dr. Brophy did not. Dr. Chung cast doubt on

Dr. Brophy’s opinion, pointing out that Dr. Brophy said Ms. Tipton did not have

radiculopathy, yet he recommended treatment for it. The Court therefore finds Dr. Chung

offered the more accurate opinion and holds that Ms. Tipton suffered fifteen-percent

impairment from her workplace accident.

When an employee has a compensable work injury, reaches maximum medical

improvement, and has permanent impairment, she is entitled to receive permanent

disability benefits. Tenn. Code Ann. § 50-6-207(3)(A). The injured worker’s award is

calculated by multiplying the impairment rating by 450, then multiplying the result by her

compensation rate. This “original award” is owed after the injured worker reaches

maximum medical improvement regardless of whether she returned to work. Id. Here,

Ms. Tipton’s impairment rating of fifteen percent entitles her to permanent partial

disability benefits of $ 16, 528.73 (450 weeks x 15% x $244.87, her stipulated

compensation rate).

If at the end of the period of the original award, the employee has not returned to

work at an equal or greater rate of pay as before the injury, the employee may receive

increased benefits. Specifically, she may receive 1.35 times the original award for not

returning to work and other multipliers for her age, lack of a high school education or

equivalent, and when the unemployment rate in the county of injury meets certain

criteria. Id. at § 50-6-207(3)(B).

The Court holds Ms. Tipton is entitled to additional benefits under Tennessee

Code Annotated section 50-6-207(3)(B), as she did not return to work for any employer

and was more than forty years old at the end of the initial compensation period. The

increased permanent partial disability is equal to 1.35 times the original award because

Ms. Tipton did not return to work and 1.2 times the original award because she is over

the age of forty, or an additional $10,247.81, for a total award of $26,776.54.

($16,528.73 x 1.2 x 1.35).

Finally, The Court holds Ms. Tipton is not permanently and totally disabled. In

assessing her job skills and training, education, age, local job opportunities, and her

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capacity to work in her disabled condition, the Court finds that Ms. Tipton failed to prove

that her injury “totally incapacitates [her] from working at an occupation that brings

[her]. . . an income[.]” See Tenn. Code Ann. § 50-6-207(4)(B); Roberson v. Loretto

Casket Co., 722 S.W.2d 380, 384 (Tenn. 1986). Ms. Tipton has a high school education,

is fifty-three years old, and has past work experience in manufacturing and house

cleaning. While she likely cannot return to those types of work without accomodation,

the Court finds she failed to prove she cannot perform any work that brings her an

income. In fact, she continued work with assistance from her coworkers for over eight

months after her injury.

IT IS, THEREFORE, ORDERED as follows:

1. Ms. Tipton suffered fifteen percent permanent partial disability to the body as a

whole as a result of her workplace accident. Pursuant to Tennessee Code

Annotated section 50-6-207(3), this equates to 67.5 weeks at her stipulated

compensation rate of $244.87, or $16,528.73 in permanent partial disability

benefits.

2. The Court also finds Ms. Tipton is entitled to increased benefits totaling an

additional $10,247.81, which represents the applicability of the 1.35 and 1.2

multipliers, since Ms. Tipton did not return to work after her initial period of

compensation ended and is over age forty.

3. Ms. Tipton is entitled to reasonable and necessary future medical treatment for her

back with Dr. Brophy.

4. The Court further finds Ms. Tipton’s counsel, David Hardee, provided good and

valuable services to Ms. Tipton and is entitled to recover a fee of twenty percent,

of her total permanent partial disability award, or $5,355.31 pursuant to Tennessee

Code Annotated section 50-6-226.

5. Absent an appeal, this order will become final thirty days after entry.

6. The Court assesses the $150.00 filing fee to Dynametal for which execution shall

issue as necessary, to be paid within five days of the order becoming final.

7. Dynametal file a completed SD-2 form within five days of the order becoming

final.

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ENTERED ON FEBRUARY 15, 2019.

____________________________________

Judge Joshua Davis Baker

Court of Workers’ Compensation Claims

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APPENDIX

Exhibits:

1. Dr. John Brophy’s Deposition Transcript with Exhibits

2. Dr. Samuel Chung’s Deposition Transcript with Exhibits

3. Dr. Emanuel Obi’s Deposition Transcript with Exhibits

4. Payroll Records

5. Short Term Disability Application

6. FMLA Application

Technical record:

1. Petition for Benefit Determination

2. Dispute Certification Notice

3. Post-Discovery Dispute Certification Notice

4. Tipton Pretrial Brief

5. Tipton Witness and Exhibit List

6. Dynametal Pretrial Brief

7. Dynametal Witness List

8. Dynametal Exhibit List

9. Joint Prehearing Statement

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CERTIFICATE OF SERVICE

I certify that a true and correct copy of this Order was sent to these recipients by

the following methods of service on February 15, 2019.

Name Certified First Via Service sent to:

Mail Class Email

Mail

David Hardee, X kperry@hmdlaw1.com

Employee’s Attorney

Gordon Aulgur, X gordon.aulgur@accidentfund.com

Employer’s Attorney

_____________________________________

Penny Shrum, Clerk

Court of Workers' Compensation Claims

WC.CourtClerk@tn.gov

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II

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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).

2. 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 ofthe 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 lndigency will

result in dismissal of your appeal.

3~ 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.

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. The appealing

party has fifteen 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.

II I.

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Tennessee Bureau of Workers' Compensation

220 French Landing Drive, 1-B

Nashville, TN 37243-1002

800-332-2667

AFFIDAVIT OF INDIGENCY

I, , having been duly sworn according to law, make oath that

because of my poverty, I 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. I 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. I receive or expect to receive money from the following sources:

AFDC $ per month beginning

SSI $ per month beginning

Retirement $ per month beginning

Disability $ per month beginning

Unemployment $ per month beginning

Worker's Camp.$ per month beginning

Other $ per month beginning

LB-1108 (REV 11/15) RDA 11082

9. My expenses are: ! ~ li

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Rent/House Payment $ per month Med icai/Dental $ _ _ ___ per month

Groceries $ 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

I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete

and that I am financially unable to pay the costs of this appeal.

APPELLANT

Sworn and subscribed before me, a notary public, this

____ dayof _____________________ , 20_ __

NOTARY PUBLIC

My Commission Expires:_ _ _ _ _ _ __

LB-1108 (REV 11/15) RDA 11082