The opinion
FILED
Dec 07, 2018
02:52 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT JACKSON
JAMIE COTNER, ) Docket No. 2018-07-0087
Employee, )
v. ) State File No. 57006 2015
DOLLAR GENERAL CORP., )
Employer. ) Judge Amber E. Luttrell
EXPEDITED HEARING ORDER
The Court held an Expedited Hearing on November 9, 2018, on Mr. Cotner’s
request for additional medical benefits for knee replacement surgery. The legal issue is
whether he is likely to establish at a hearing on the merits that his need for surgery arose
primarily out of his work injury. For the following reasons, the Court holds he did not
present sufficient evidence at this interlocutory stage and denies the requested relief.
History of Claim
Mr. Cotner worked as a store manager for Dollar General. On July 28, 2017, he
rolled a rack down a ramp when the wheel rolled off and the rack flipped off the ramp.
Mr. Cotner testified his upper body went off the ramp but his right leg jerked backwards.
He experienced pain in the back of his leg but finished his shift. The next day, Mr. Cotner
did not work due to leg pain and reported his injury to Dollar General. He sought
emergency treatment, and the provider referred him to Dr. Barry Hennessey, an
orthopedic specialist.
Mr. Cotner saw Dr. Hennessey twice for knee pain, instability, swelling, and
difficulty bearing weight and walking following his injury. Dr. Hennessey diagnosed
acute internal derangement of the knee and ordered an MRI. After reviewing the MRI, he
diagnosed a torn medial meniscus and recommended arthroscopic surgery. He did not
discuss causation in his record. Mr. Cotner did not return to Dr. Hennessey after the
surgical recommendation. Instead, he began authorized treatment with Dr. David
Johnson.
The parties disputed the circumstances leading to Mr. Cotner’s treatment with Dr.
Johnson. Mr. Cotner testified that after Dr. Hennessey ordered surgery, he requested
another opinion on surgery. He asserted that Dollar General never provided a panel.
Instead, nurse case manager Nancy Fowler recommended Dr. Johnson and notified Mr.
Cotner by email of his appointment. Mr. Cotner denied that Becky Joslin, his claims
adjuster, offered him a choice of physicians.
In contrast, Dollar General introduced the affidavits of Ms. Joslin and Rhonda
Brode, a nurse case manager, regarding the panel issue. Ms. Joslin stated that Dr.
Hennessey originally was not an approved physician; however, Dollar General decided to
authorize treatment with him. Ms. Joslin stated after Dr. Hennessey recommended
surgery, Mr. Cotner requested permission to treat with another physician. She provided a
panel of physicians through Ms. Brode, and he selected Dr. Johnson. Ms. Joslin denied
telling Mr. Cotner that he must choose him.
Ms. Brode stated she was the case manager for Mr. Cotner’s knee and an unrelated
shoulder claim. She also stated that he “was provided with a panel of physicians,” and he
verbally relayed his panel choice to her on or about September 12, 2017. She denied
telling him he must choose Dr. Johnson. Dollar General did not introduce any written
panel of physicians offered to Mr. Cotner. For his part, Mr. Cotner denied he spoke to
Ms. Brode about his knee.
Mr. Cotner treated with Dr. Johnson and later sought an independent medical
evaluation from Dr. Samuel Chung. The parties took the depositions of Drs. Johnson and
Chung and introduced the following medical proof.
Dr. Johnson
Dr. Johnson testified he first saw Mr. Cotner in September 2017 and that he
provided a history of his right knee injury. Dr. Johnson testified he also reported a prior
knee injury in high school. In his deposition, he did not independently recall Mr. Cotner
telling him about a prior injury but stated he documented it in his record and would not
have done so had Mr. Cotner not relayed that history. During his testimony and in later
visits with Dr. Johnson, Mr. Cotner denied any prior injury or playing sports in high
school.
Dr. Johnson found advanced tricompartmental arthritis on x-rays, which he stated
pre-existed the work injury. He reviewed Mr. Cotner’s MRI, which indicated severe
disease of the medial compartment. He testified the MRI showed structural issues with
the knee but only associated joint effusion with an acute injury. He stated the remaining
findings were degenerative and/or related to his arthritis. Regarding a macerated
meniscus tear, he concluded that it was chronic, and he could not say with any certainty
whether it worsened from the work injury.
Dr. Johnson diagnosed degenerative arthritis with a history of superimposed knee
strain. He stated the following regarding the degenerative changes found on the MRI and
x-rays,
[The degenerative changes] don’t show up in a matter of weeks or months.
It does take literally years. ... when an injury occurred, | certainly can’t
say. But normally, if there is no injury and it’s just normal wear and tear,
both joints will wear down equally. And when one joint looks perfectly
normal and one looks severely arthritic, it’s kind of the equivalent of
having a tire knocked out of balance[.] ... Something got knocked out of
balance at some point in time, whether it was high school or some
subsequent.
He aspirated fluid from Mr. Cotner’s knee and gave him a cortisone injection. He
concluded the knee condition was too advanced for arthroscopic surgery and
recommended a knee replacement.
Dr. Johnson exhausted conservative treatment options in follow-up visits. Later,
he again recommended knee replacement surgery after Mr. Cotner’s symptoms failed to
improve, stating it would be a “definitive fix.”
After Dr. Johnson recommended surgery, Ms. Joslin sent a causation letter. In
response, Dr. Johnson stated the total knee replacement “was not more than fifty-percent
related to Mr. Cotner’s knee injury.” He further responded that no further treatment was
needed for Mr. Cotner’s right knee strain/sprain and he was at maximum medical
improvement (MMI) for that condition. Dr. Johnson explained his decision to place Mr.
Cotner at MMI, stating, “I felt like the ongoing symptoms were predominantly related to
the arthritis. And again, that the treatment that I was offering was to treat the arthritis.”
When asked about the disputed high school injury, Dr. Johnson testified that his
causation opinion would not change in the absence of a high school injury.
Additionally, Dr. Johnson testified the fluid in Mr. Cotner’s knee could have
aggravated the underlying arthritis; however, he could not say whether the macerated tear
“had been made any worse.” As to other findings, Dr. Johnson testified it was unlikely
that the anterior cruciate ligament and macerated medial meniscus would have resulted
from the work injury. He stated his symptoms of joint effusion, tenderness, and decreased
range of motion are consistent with a knee sprain/strain. Thus, Dr. Johnson concluded
Mr. Cotner suffered no significant anatomical change that was primarily related to his
work injury.
On cross examination, when asked if the fall at work aggravated Mr. Cotner’s
condition and caused it to be symptomatic, Dr. Johnson responded, “He reported the
symptoms as a result of that injury.” However, he stated that Mr. Cotner’s need for a
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knee replacement was inevitable and concluded within a reasonable degree of medical
certainty that his MRI findings were not greater than fifty percent related to his work
injury.
Dr. Chung
Dr. Chung performed an independent medical evaluation. Mr. Cotner reported a
consistent history of his knee injury and complained of pain in his calf, quadriceps, and
knee pain with weight-bearing. Mr. Cotner denied knee injuries or pain before the work
injury, specifically denying any sports injuries in high school.
Dr. Chung reviewed his medical records and MRI report. He believed the
meniscus tear found on the MRI was consistent with Mr. Cotner’s mechanism of injury.
On exam, Dr. Chung noted his right knee was larger than his left knee and found fluid
around the patella and joint line pain. He diagnosed “residual from right knee injury with
ongoing symptomatology.” He did not mention a knee replacement in his record, but
testified he agreed with Dr. Johnson that a total knee replacement instead of arthroscopy
would fix the knee.
Regarding causation, Dr. Chung stated Mr. Cotner’s injury occurred as reported in
his history and arose primarily out of and in the course and scope of his employment. He
testified as follows:
The cause [of Mr. Cotner’s injury] is that . . . his condition . . . mainly the
arthritic findings in his MRI as well as other findings other than the
meniscus injury itself, those arthritis arose from the aggravation of the work
effects from his workplace and that . . . condition itself. . . primarily arose
of the course and scope of his employment at Dollar General Store. But. . .
the specific macerated meniscus injury was caused by the specific incident
back in 7/28/17 when he had the hyperflex and extension injury.
On cross examination, when asked if Mr. Cotner’s macerated meniscus tear was a
degenerative finding, Dr. Chung responded that a physician can only know for certain if a
tear is degenerative or acute by performing arthroscopic surgery. However, he stated that
Mr. Cotner’s tear was acute based on his mechanism of injury and his clinical findings.
He further concluded that his preexisting arthritis was aggravated by both his overall
work duties at Dollar General and the work event. He stated, “[T]he arthritis was there
before, premorbidly, but the work that he does and the event that brought on, aggravated
that arthritic condition to the clinical findings.” Finally, Dr. Chung testified that the need
for knee replacement surgery was the arthritis, “as well as really the knee findings I found
on the patient when I examined him[.]”
Hearing Testimony
Mr. Cotner testified he worked up to eighty-hours per week, which caused
soreness in his whole body. However, he had no specific problems in his knee or leg or
treatment for his knee before this injury. He stated his knee has not improved, and he has
not received any further treatment for it since Dr. Johnson. He acknowledged he liked Dr.
Johnson and did not complain that he was his only choice during treatment. Mr. Cotner
stated he is unable to work in a standing position. He requested the Court order Dollar
General to provide total knee replacement surgery.
Findings of Fact and Conclusions of Law
At an Expedited Hearing, Mr. Cotner must present sufficient evidence that he is
likely to prevail at a hearing on the merits. McCord v. Advantage Human Resourcing,
2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Analysis
Mr. Cotner must establish that the injury arose primarily out of and in the course
and scope of employment. He must show “to a reasonable degree of medical certainty
that [the injury] contributed more than fifty percent (50%) in causing the... need for
medical treatment, considering all causes.” An accidental injury generally does not
include an aggravation of a pre-existing condition “unless 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.” The term “reasonable degree of medical certainty” means
that “in the opinion of the physician, it is more likely than not considering all causes, as
opposed to speculation or possibility.” See generally Tenn. Code Ann. § 50-6-102(14)
(2018). Thus, causation must be established by expert medical testimony.
Mr. Cotner credibly testified about the details of his injury on July 28, 2017, and
Dollar General offered no contrary evidence. Thus, he established a specific incident
identifiable by time and place. Dollar General authorized treatment for Mr. Cotner with
Drs. Hennessey and Johnson and paid temporary disability benefits. The sole issue in
dispute is whether he appears likely to prove at a hearing on the merits that the work
incident is the primary cause of his need for a total knee replacement. To resolve this
dispute, the Court must consider the competing expert opinions.
But first, the Court must address the issue of whether Dr. Johnson’s opinion is
entitled to a statutory presumption of correctness. See Tenn. Code Ann. § 50-6-
102(14)(E). Mr. Cotner testified Dollar General never provided him a panel of
physicians. He insisted that his nurse case manager recommended Dr. Johnson and
scheduled an appointment for him. Ms. Joslin and Ms. Brode stated he was provided a
panel, and he selected Dr. Johnson on the phone. However, Dollar General did not
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introduce a written panel. See Tenn. Code Ann. §50-6-204(a)(3)(A)(i) and (3)(D)@).
The Court finds Mr. Cotner credibly testified that Dollar General directed him to
Dr. Johnson, and he was not provided a panel. Dollar General’s failure to introduce a
panel confirming his alleged choice supports Mr. Cotner’s testimony. Thus, the Court
holds Dr. Johnson’s testimony is not entitled to the presumption of correctness.’
A trial court has the discretion to choose which expert to accredit when there is a
conflict of expert opinions and no statutory presumption exists. Brees v. Escape Day Spa
& Salon, 2015 TN Wrk. Comp. App. Bd. LEXIS 5, at *14 (Mar. 12, 2015). In evaluating
conflicting expert testimony, a trial 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.” Jd.
Applying the first of these factors, the Court notes that both are experienced
physicians. Dr. Johnson is a board-certified orthopedic surgeon; Dr. Chung is a board-
certified physiatrist with board certification in independent medical evaluations. While
Dr. Chung is not a surgeon, he treated patients with knee injuries in rehabilitation therapy
in his practice. The Court finds that both doctors are well qualified, and the differences in
their qualifications are not determinative.
The Court turns to the doctors’ reasoning and their explanation of their
conclusions. Dr. Johnson consistently stated that, with the exception of joint effusion, the
remaining MRI findings and x-rays were degenerative and/or related to Mr. Cotner’s
advanced tricompartmental arthritis. Dr. Johnson pointed to the multiple structural
deficiencies, which he stated accompany arthritis. He explained that these findings do not
show up in a matter of weeks or months but take “literally years.” He only associated the
joint effusion with an acute event and stated it was consistent with his diagnosis of a knee
strain/sprain. Dr. Johnson concluded there was no significant anatomical change on the
MRI primarily related to Mr. Cotner’s work injury. (Emphasis added.) He testified Mr.
Cotner’s ongoing symptoms were predominantly related to his arthritis; the treatment he
offered was to treat the arthritis.
Regarding surgery, Dr. Johnson stated within a reasonable degree of medical
certainty that the total knee replacement was not more than fifty percent related to Mr.
Cotner’s knee injury. He believed it to be inevitable. In contrast, Dr. Chung concluded
that the macerated meniscus tear was an acute finding caused by the work injury. Further,
Mr. Cotner’s injury, combined with his overall duties at Dollar General, aggravated his
' He further argued that, even if it had provided him a panel with Drs. Johnson, Shirley and Haltom, as
alleged by Ms. Brode, the panel would be invalid because Drs. Johnson and Haltom work in the same
practice. The Court agrees.
pre-existing arthritic condition and caused the need for surgery.
The Court notes two troubling aspects of Dr. Chung’s opinion. First, he appeared
to contradict himself regarding the meniscus tear. In response to questioning as to
whether a macerated tear is chronic, he testified there is no way for a physician to know
for certain unless he/she performs arthroscopic surgery. Yet, he stated his opinion that the
macerated tear was acute based on Mr. Cotner’s mechanism of injury and clinical
findings. Second, Dr. Chung’s testimony that Mr. Cotner’s injury and overall work
aggravated his pre-existing arthritis, leading to the need for the knee replacement, does
not address the current legal standard for causation. The fact that Mr. Cotner’s need for
surgery is related to the work injury to some unspecified degree is insufficient for the
Court to find his work injury contributed more than fifty percent of his need for knee
replacement surgery.
Therefore, upon thorough consideration of the medical proof and even without
affording Dr. Johnson a presumption of correctness, the Court finds Dr. Johnson’s
testimony more persuasive. Based on the foregoing, the Court holds Mr. Cotner did not
come forward with sufficient proof at this interlocutory stage to show he is likely to
succeed at trial in establishing his need for a knee replacement arose primarily out of his
work injury. Thus, his request for surgery is denied.
However, the Court notes Dr. Johnson diagnosed an acute knee sprain/strain
resulting from the work injury for which Dollar General provided authorized treatment.
Therefore, the Court holds Mr. Cotner is likely to prevail in showing he is entitled to
causally-related medical treatment for the knee sprain/strain. Because Mr. Cotner
established a relationship with Dr. Johnson over the course of treatment and did not
request a new panel, the Court holds Dr. Johnson shall continue to be his treating
physician for any causally-related medical treatment.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Cotner’s request for knee replacement surgery is denied.
2. Dollar General shall continue to provide medical treatment made reasonably
necessary by the July 28, 2017 knee sprain/strain under Tennessee Code
Annotated section 50-6-204.
3. This matter is set for a telephonic Status Hearing on Tuesday, January 22, 2019,
at 11:00 a.m. Central Time. The parties must call toll-free 855-543-5039 to
participate in the hearing.
ENTERED December 7, 2018. pf
Judge Amber E. Luttrell
Court of Workers’ Compensation Claims
APPENDIX”
Exhibits:
Wage Statement
First Report of Work Injury
Rhonda Brode’s Affidavit
Becky Joslin’s Affidavit
Dr. Johnson’s deposition and attached medical records
Professional Rehab Associates records
Dr. Chung’s deposition
SS Yi ge Se bo
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this Order was sent to the following
recipients by the following methods of service on this the 7" day of December, 2018.
Name Via_ | Service sent to:
Edward L. Martindale, Jr., X | edwardlmartindale@gmail.com
Employee’s Attorney rachalmwallace@gmail.com
Connor Sestak, Employer’s Attorney X | csestak@morganakins.com
plunny@morganakins.com
Penny Shrum, Court Clerk
we.courtclerk@tn. gov
* The Technical Record for the Expedited Hearing consisted of thirteen documents and is filed in the Clerk’s record.
For brevity, those documents are not listed.