Hayes, Michael v. Jackson Golf & Country Club

FILED

Mar 02, 2020

02:17 PM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT JACKSON

MICHAEL HAYES, ) Docket No. 2019-07-0251

Employee, )

Vv. )

JACKSON GOLF & COUNTRY )

CLUB, ) State File No. 51271-2017

Employer, )

And, )

TECHNOLOGY INS. CO., )

Carrier. ) Judge Allen Phillips

COMPENSATION ORDER FOR PERMANENT PARTIAL DISABILITY

BENEFITS

The issue in this case is the amount of permanent partial disability benefits for Mr.

Hayes, a tennis professional. He claimed it was six percent, and the Club claimed it was

three. After considering the evidence, the Court holds Mr. Hayes sustained a six-percent

permanent partial disability to the body as a whole.

History of Claim

Mr. Hayes began playing tennis at age five and turned professional at eighteen. He

was once the number-six ranked player in his native England and competed for his

country in international events. Over the years, he played against top-ranked

professionals.

Mr. Hayes played collegiately at the University of Memphis. While there, he

learned of an opening for a tennis professional at the Club and applied. Mr. Hayes was

hired by Jay Veazey, the Club’s head professional.

On May 11, 2017, Mr. Hayes felt a “tweak” in his right shoulder while serving a

ball. The incident so affected his play that he reported it to Mr. Veazey, who

recommended that Mr. Hayes see Dr. Kelly Pucek, an orthopedic surgeon who had

1

previously treated him for a shoulder injury. Mr. Hayes took Mr. Veazey’s advice, and

the Club later accepted Dr. Pucek as the authorized treating physician.

Testifying by deposition, Dr. Pucek said Mr. Hayes reported the “sudden onset of

pain” while serving and that he sensed a loss of “some velocity” on his serves. Dr. Pucek

diagnosed impingement syndrome and a possible labral tear, later confirmed by an MRI.

Dr. Pucek surgically repaired the tear and performed a sub-acromial decompression for

the impingement. He testified that shoulder surgery on a tennis professional is “more

concerning” than on an attorney, for example, because of the overhead activity required

to play tennis.

Two months after the surgery, Dr. Pucek found Mr. Hayes’s motion was not

improving, but he added that labral repair patients are “always a little slower” in

recovering motion. However, after two more months, he found Mr. Hayes lacked only

some external rotation of his shoulder, while all other planes of motion were “in pretty

good shape.” So, he released Mr. Hayes to regular duty. Mr. Hayes returned to work, but

for the next two years voiced complaints about his shoulder, which Dr. Pucek described

as “concerning,” and possibly “long term.”

Regarding his impairment rating, Dr. Pucek testified that the AMA Guidelines to

the Evaluation of Permanent Impairment, 6" Edition, allow for a “rating based on motion

or the surgical procedure.” He thought that a rating based on the surgical procedure was

more appropriate because Mr. Hayes lacked only some external rotation. Thus, under the

diagnosis-based method, Dr. Pucek assigned Mr. Hayes two-percent permanent

impairment to his upper extremity for the labral repair and one-percent impairment for

the impingement. These combined for a rating of three percent to the upper extremity,

which converted to two-percent impairment to body as a whole. However, after his

deposition, Dr. Pucek corresponded with Mr. Hayes’s counsel stating that had he been

asked, he would have increased the rating to three percent to the body because of Mr.

Hayes’s ongoing complaints. He based his increased rating on “modifiers” found in Table

15-5 of the Guides, a table addressing several diagnoses including labral tears, but did not

elaborate on what modifiers he used. Nevertheless, the parties agreed to the change in

rating.

Mr. Hayes saw Dr. Samuel Chung for an independent medical evaluation (IME).

Dr. Chung testified that Mr. Hayes was thirty-two years old and had taught tennis at the

Club for seven years. He said Mr. Hayes reported “acute” pain when serving a ball and

then noted “very little force behind” his serve. He noted Mr. Hayes complained of

continued difficulty with his serve after surgery, describing that he could not fully serve

overhead but rather used a more “sideways” motion. At the time of the IME, Dr. Chung

said Mr. Hayes thought his motion was “if anything . . . getting worse.”

Dr. Chung confirmed the veracity of those complaints when he examined Mr.

Hayes, finding “a mild degree of motion loss in almost all planes of his right shoulder.”

Dr. Chung specifically documented the actual degrees of Mr. Hayes’s motion in

extension, flexion, adduction, abduction, and internal rotation and, because of the losses

in those planes, thought “range of motion [was] the biggest factor” of impairment. Thus,

Dr. Chung used Table 15-34 of the Guides, titled “Shoulder Range of Motion,” to assess

six-percent impairment to the body as a whole. He explained that “the main rationale for

me using the range of motion is really directed by the Guide’s [sic] direction because if

there is an injury and recovery of a certain diagnosis, unless it’s completely normal

motion, we . . . are, you know asked to use the range of motion. And that’s what I did.”

Mr. Hayes was the only witness at the hearing. He explained his injury continues

to affect his service velocity, describing a decrease from 115 to 80 miles per hour.

Because of that, he obtained a machine that simulates service. Further, he said he hoped

he might play in more tournaments in the future, but now he cannot. Finally, he testified

that he reduced his on-court instruction time from approximately forty hours per week

down to roughly thirty. Because of Mr. Hayes’s lay testimony, his counsel argued that

Dr. Chung’s rating was more in line with the true effects of the injury.

For its part, the Club objected to the relevance of Mr. Hayes’s testimony regarding

the ill effects of his injury, asserting instead that the Court should focus on the ratings.

The Court overruled those objections.

As to the ratings themselves, the Club argued Dr. Pucek, as the authorized treating

physician, is presumed correct, and that Mr. Hayes did not rebut that presumption by a

preponderance of the evidence. See Tenn. Code Ann. § 50-6-204(k)(7) (2019). In

support, it pointed to a section of the Guides, Chapter 15, page 461, which provides the

diagnosis-based method is the “method of choice for calculating impairment,” and that

“range of motion is used principally as a factor in the Adjustment Grid.” Finally, the Club

argued that the Guides make no distinctions between occupations, whether a professional

tennis player or an attorney, the comparative dichotomy used by Dr. Pucek.

Findings of Fact and Conclusions of Law

Mr. Hayes must establish the extent of his permanent disability by a

preponderance of the evidence. Tenn. Code Ann. § 50-6-239(c)(6). The extent of his

disability is a question of fact, determined by a consideration of all of the evidence,

including both expert and lay testimony. Duignan v. Stowers Mach. Corp., No. E2018-

01120-SC-R3-WC, 2019 Tenn. LEXIS 224, at *22 (Tenn. Workers’ Comp. Panel June

19, 2019).

When considering the expert proof, the Court considers the qualifications of the

experts, the circumstances of their examination, the information available to them, and

the evaluation of the importance of that information by other experts. Bass v Home Depot

USA, Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 36, at *9 (May 26, 2017).

Applying those factors here, the Court first finds both doctors qualified to assess a

rating; Dr. Pucek is a board-certified orthopedic surgeon, and Dr. Chung is a specialist in

physical medicine and rehabilitation, as well a certified independent medical examiner.

They are on equal footing.

Second, as to the circumstances of their evaluation, the Court finds Dr. Pucek had

the most contact with Mr. Hayes, seeing him on many occasions over two years as

opposed to Dr. Chung’s one-time evaluation. It seems reasonable the physician having

greater contact with the employee would have the advantage to provide a more accurate

opinion. Orman vy. Williams Sonoma, Inc., 803 S.W.2d 672, 677 (Tenn. 1991). However,

Dr. Chung specifically detailed Mr. Hayes’s loss of motion using a methodology he said

is dictated by the Guides. Conversely, though Dr. Pucek agreed the Guides allow a range-

of-motion loss rating, he did not document any measurements of Mr. Hayes’s shoulder

motion. The Court takes judicial notice that the Guides provide that if more than one

method of rating exists, then the evaluator should use the method producing the higher

rating. Guides, page 2, Table 2-1 n.12. The Court takes further notice that Table 15-5, the

table used by Dr. Pucek for his diagnosed-based rating, provides that range of motion

may be used as an alternative to the diagnosis-based rating. Guides, page 405, Table 15-

5, footnote.

Third, the information available to the experts in assessing impairment supports

Dr. Chung. As noted, he documented his specific measurements in all planes of motion.

Contrast this with Dr. Pucek’s testimony that most planes of motion were “in pretty good

shape.”

Finally, the factor of which information was important to other experts again

supports Dr. Chung. Dr. Pucek expressed his concern with Mr. Hayes’s ongoing

complaints and surmised they might become long-term. Even more compelling was Dr.

Chung’s explanation of how lost motion affects a professional tennis player.

In support of its position that Dr. Pucek was correct, the Club cited Marshall v.

Pinnacle, No. W2015-00382-SC-R3-WC, 2016 Tenn. LEXIS 751 (Tenn. Workers’

Comp. Panel Oct. 27, 2016). There, a Workers’ Compensation Panel contrasted the

impairment rating of a Medical Impairment Rating Registry (MIRR) physician, whose

rating also carries a presumption of correctness, with that of an IME physician like Dr.

Chung. The Panel found the trial court erred in finding the IME rating rebutted the MIRR

physician by clear and convincing evidence. Specifically, that IME physician testified he

did not follow the directives of the Guides to assess the rating because he disagreed with

the Guides ’s recommended methodology.

Marshall is distinguishable. Unlike the IME physician there, Dr. Chung testified

he did follow the Guides’s directives when assessing his rating. Moreover, Dr. Pucek,

whose rating is entitled to a presumption of correctness, agreed the Guides allow use of

range-of-motion. Thus, the only expert proof here is that the Guides allow a range-of-

motion impairment, and the only material difference is that Dr. Chung actually measured

and documented the lost motion. Moreover, the standard to rebut Dr. Pucek is lower than

the applicable standard in Marshall, a preponderance as opposed to clear and convincing

evidence.

Turning to the lay testimony, the Court is guided by longstanding authority that

the employee’s own assessment of his physical condition and resulting disability is

competent testimony not to be disregarded. Orrick v. Bestway Trucking, Inc., 184 S.W.3d

211, 217 (Tenn. 2006). Thus, the Court respectfully disagrees with the Club’s assertion

that the Court’s focus remain primarily on the ratings. Here, Mr. Hayes’s testimony is

particularly important when he described the detrimental effects of his injury.

Namely, Mr. Hayes said he began playing tennis at age five, twenty-seven years

ago, and became a professional by age eighteen, playing at an international level. His

level of experience provides him keen insight into how his injury affects his play. He

described his loss of service velocity, approximately thirty-five miles per hour slower

post-injury, and he doubted he could play in tournaments. Importantly, his injury caused

him to lighten his work schedule by ten hours per week, a loss of earning capacity

directly reflective of the extent of disability. This lay testimony supports Dr. Chung’s

rationale for the higher rating.

Finally, the Court finds Mr. Hayes credible. His testimony was calm, self-assured,

confident, forthcoming, reasonable, and honest. See Kelly v. Kelly, 445 S.W.3d 685, 694-

695 (Tenn. 2014) (discussing indicia of witness credibility). He was consistent in his

history and resolute in his complaints, and he neither exaggerated nor embellished his

symptoms. Instead, the Court was convinced he provided an honest assessment of the

effects of his injury.

In totality, the Court holds Mr. Hayes rebutted the presumption of correctness

attached to Dr. Pucek’s rating and that Dr. Chung’s rating is the more accurate. It follows

that Mr. Hayes is entitled to an award of six-percent permanent partial disability to the

body as a whole under Tennessee Code Annotated section 50-6-207(3), calculated as six

percent times 450 weeks times the stipulated compensation rate of $888.00, or $23,976.

IT IS, THEREFORE, ORDERED as follows:

. Jackson Country Club shall pay Mr. Hayes permanent partial disability benefits of

$23,976 under Tennessee Code Annotated section 207(3)(A) based on Dr.

Chung’s six-percent permanent partial impairment rating to the body as a whole.

Jackson Country Club will continue to pay for reasonable and necessary future

medical benefits related to the injury under Tennessee Code Annotated section 50-

6-204(a)(1)(a). Dr. Pucek remains the authorized treating physician.

The Court assesses the $150.00 filing fee to Jackson Country Club to be paid to

the Court Clerk under Tennessee Compilation Rules and Regulations 0800-02-21-

.06 (August, 2019) within five business days of this order becoming final, and for

which execution may issue if necessary.

Jackson Country Club shall file a Statistical Data Form (SD-2) with the Court

Clerk within five business days of the date this order becomes final.

5. Absent an appeal, this order shall become final thirty days after issuance.

ger \

ENTERED March 2, 2020. ( |

Judge Allen Phillips’ Va

Court of Workers’ Compensation Claims

APPENDIX

Exhibits:

Le

Lay

3.

4.

First Report of Work Injury

Deposition of Dr. Kelly Pucek

Deposition of Dr. Samuel Chung

Collective Medical Records

Technical record:

DARWN

Petition for Benefit Determination

Dispute Certification Notice (DCN)

Request for Scheduling Hearing

Scheduling Order

Post-Discovery DCN

Pre-Compensation Hearing Statement

7. Employer’s Compensation Hearing Brief

8. Employee’s Witness and Exhibit List

CERTIFICATE OF SERVICE

I certify that a copy of this Compensation Hearing Order was sent as indicated on

March 2, 2020.

Name Certified First Via Service Sent To:

Mail Class | Email

Mail

Charles M. Purcell and X | chuck@psclegal.com

Katherine C. Wallace, katie@psclegal.com

Attorneys for Employee

Rosalia Fiorello, X_ | rfiorello@wimberlylawson.com

Attorney for Employer

“ nt dha

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: “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 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.

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.

NOTICE OF APPEAL

Tennessee Bureau of Workers’ Compensation

www.tn.gov/workforce/injuries-at-work/

we.courtclerk@tn.gov | 1-800-332-2667

Docket No.:

State File No.:

Date of Injury:

Employee

Vv.

Employer

Notice is given that

[List name(s) of all appealing party{ies). Use separate sheet if necessary.]

appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the

Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-

stamped on the first page of the order(s) being appealed):

O Expedited Hearing Order filed on 0 Motion Order filed on

OC Compensation Order filed on 0 Other Order filed on

issued by Judge

Statement of the Issues on Appeal

Provide a short and plain statement of the issues on appeal or basis for relief on appeal:

Parties

Appellant(s) (Requesting Party): i Employer|_|Employee

Address: Phone:

Email:

Attorney’s Name: BPR#:

Attorney’s Email: Phone:

Attorney’s Address:

* Attach an additional sheet for each additional Appellant *

LB-1099 rev. 01/20 Page 1 of 2 RDA 11082

Employee Name: Docket No.: Date of Inj.:

Appellee(s) (Opposing Party): | ]Employer {Employee

Appellee’s Address: Phone:

Email:

Attorney’s Name: BPR#:

Attorney’s Email: Phone:

Attorney's Address:

* Attach an additional sheet for each additional Appellee *

CERTIFICATE OF SERVICE

L, , certify that | have forwarded a

true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described

in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this

case on this the day of , 20

[Signature of appellant or attorney for appellant]

LB-1099 rev. 01/20 Page 2 of 2 RDA 11082

Tennessee Bureau of Workers’ Compensation

220 French Landing Drive, I-B

Nashville, TN 37243-1002

800-332-2667

AFFIDAVIT OF INDIGENCY

, 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:

3. Telephone Number:

5. Names and Ages of All Dependents:

6. | am employed by:

2. Address:.

4. Date of Birth:

Relationship:

Relationship:

Relationship:

Relationship:

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 $

SSI $

Retirement $

Disability $

Unemployment $

Worker's Comp.$

Other $

LB-1108 (REV 11/15)

per month

per month

per month

per month

per month

per month

per month

beginning

beginning

beginning

beginning

beginning

beginning

beginning

RDA 11082

9, My expenses are:

Rent/House Payment $ permonth Medical/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

| 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.

APPELLANT

Sworn and subscribed before me, a notary public, this

day of

NOTARY PUBLIC

My Commission Expires:

LB-1108 (REV 11/15)

, 20

RDA 11082