The opinion
FILED
Aug 28, 2020
02:28 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
ANGEL SMITH, ) Docket No 2018-05-1098
Employee, )
v. )
TRUSTPOINT HOSPITAL, LLC, ) State File No. 894-2018
Employer, )
And )
ACE AMERICAN INS. CO., )
)
)
)
)
)
Carrier
Judge Robert Durham
And
ABIGAIL HUDGENS,
ADMINITRATOR, TENNESSEE
SUBSEQUENT INJURY FUND
EXPEDITED HEARING ORDER
GRANTING BENEFITS
This case came before the Court on August 19, 2020, for an Expedited Hearing. Ms.
Smith seeks additional surgery to her left shoulder as recommended by her authorized
physician as well as additional temporary disability benefits.! The Court holds that Ms.
Smith provided enough evidence to establish she is likely to prove the causal relation of
the surgery to her work injury as well as its reasonableness. Thus, the Court orders the
requested benefits.
History of Claim
Ms. Smith began her employment as a certified nursing assistant for Trustpoint
Hospital in 2015. She testified that on December 31, 2017, she felt a “pop” and intense
pain in her left shoulder while lifting a catatonic patient’s leg. Ms. Smith immediately
reported the incident, noting on Trustpoint’s “Occurrence Report” that she underwent
'Ms. Smith deferred the issue of attorney’s fees.
surgery in 2010 for her left rotator cuff.? She went to the emergency room, and the doctor
recommended an orthopedic referral for a possible rotator cuff tear.
Trustpoint provided a panel of doctors, and Ms. Smith saw Dr. Frank Thomas on
January 2, 2018. Her history remained consistent. In addition, she told him that she did
not suffer from any problems with her shoulder before the incident. Dr. Thomas prescribed
steroids and ordered physical therapy. Ms. Smith asserted the therapy aggravated her
symptoms. Dr. Thomas then ordered an MRI. The report noted “rotator cuff
tendinosis/tendinopathy with minimal partial-thickness articular and bursal surface tears.”
After reviewing the MRI and seeing Ms. Smith’s lack of progress, Dr. Thomas referred her
to a shoulder specialist.
Trustpoint provided another panel, and Ms. Smith chose orthopedist Kyle Joyner,
whom she first saw in February 2018.> Her history indicated that she underwent left
shoulder surgery some years earlier.4 After examining Ms. Smith and reviewing her MRI,
Dr. Joyner felt she had some arthritic changes at the acromioclavicular (AC) joint and a
significant rotator cuff injury. He diagnosed an aggravation of her AC joint and underlying
impingement. He injected her shoulder, placed significant work restrictions, and
recommended additional therapy for a month.°
On her return, Ms. Smith claimed conservative treatment had not improved her pain.
Based on her history and the MRI, Dr. Joyner diagnosed impingement, AC joint arthritis
and a partial-thickness rotator cuff tear and recommended arthroscopic surgery. After
receiving authorization, he arthroscopically relieved the impingement syndrome and
debrided superficial tears in the cuff. Dr. Joyner testified that the surgery confirmed his
pre-operative diagnoses. The operative report specifically mentioned finding a “low-grade
partial thickness tear” in the rotator cuff.
After surgery, Ms. Smith underwent physical therapy, a home exercise program,
and an injection of pain medicine, but she continued to complain of significant pain,
especially with motion. Dr. Joyner prescribed anti-inflammatories and muscle relaxants
and ordered another MRI that revealed inflammatory changes around the AC joint. He
treated with injections of anti-inflammatories and steroids and a continuation of her home
exercise program. However, despite conservative treatment, Ms. Smith’s pain remained
unchanged. Dr. Joyner recommended an “open decompression of the AC joint with a
? The surgery was actually in 2012.
’ The Court gleaned the history from Dr. Joyner’s deposition.
“Ms. Smith testified that she could not recall any treatment for her left shoulder before 2012; however,
Trustpoint submitted medical records to impeach this statement. Given that this apparent treatment
occurred several years ago and occurred before her first surgery, the Court gives the records little weight
when assessing Ms. Smith’s credibility.
*Ms. Smith did not complete the scheduled therapy due to pain complaints but instead engaged in a home
exercise program.
possible interposition,” which he described as the “definitive treatment” if arthroscopic
debridement and excision does not provide relief.
Trustpoint sent the recommendation through Utilization Review. The reviewer
noted severe AC arthritis with inflammation as well as bursitis and indications of clinical
impingement. Nevertheless, he refused to approve the surgery based on “limited objective
findings” and a failure to “exhaust all indicated conservative care.”
Following the refusal, Dr. Joyner injected Lidocaine into Ms. Smith’s shoulder as
an additional diagnostic tool. Based on the result, he appealed the UR decision. The
Bureau’s Assistant Medical Director, Dr. James Talmage, agreed with the denial, but he
suggested that Dr. Joyner send the recommendation back to UR with documentation of any
active rheumatologic disease, a re-examination after local anesthetic injection, and
documentation of psychiatric care.
Dr. Joyner did not resubmit the request to UR. Instead, he sent Ms. Smith for a
Functional Capacity Evaluation to ascertain physical restrictions, since he felt she was at
maximum medical improvement if she did not undergo surgery. According to the FCE,
Ms. Smith gave good, consistent effort, and the evaluator recommended substantial
physical restrictions, which Dr. Joyner adopted.
Ms. Smith stated without contradiction that she could not return to work at
Trustpoint, given her physical restrictions and limitations. She testified to intense pain in
her left shoulder, particularly when attempting to lift, carry or reach out or behind with her
left arm. She demonstrated that she cannot lift her left arm to ninety degrees. She further
testified that she has not worked anywhere since Dr. Joyner stated she was at MMI,
although she has sold various products online.
The parties also submitted evidence about Ms. Smith’s previous problems with her
left shoulder. Records from Dr. Mitchell Willoughby note that in 2012, he saw Ms. Smith
for pain and limited motion in her left shoulder. An MRI revealed a significant rotator cuff
tear as well as AC impingement of the rotator cuff. That same year, Dr. Wayne Mosley
performed arthroscopic surgery and noted that he saw fraying on the labrum and both sides
of the cuff but not a full-thickness rotator cuff tear. He debrided the labrum fraying and
decompressed the AC joint.
Ms. Smith stated that after the 2012 surgery, she returned to work as a CNA without
limitations and she did not suffer from any pain or restrictions until the December 2017
incident. Trustpoint offered no evidence in rebuttal.
Ms. Smith also introduced Dr. Joyner’s deposition. He gave his opinion that on
December 31, 2017, Ms. Smith suffered a new work injury that was primarily related to
her employment. Dr. Joyner testified that, based on Ms. Smith’s history, complaints,
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examinations and tests, the primary cause of her need for additional surgery was this work
incident, in that it caused an exacerbation of her pre-existing AC arthritis as well as a low-
grade rotator cuff tear. On cross-examination, he reiterated that Ms. Smith likely
experienced an anatomic change in her left shoulder, given her symptoms and the
intraoperative findings of a low-grade, partial-thickness rotator cuff tear. He also believed
the increased inflammation noted on the post-surgical MRI suggested an exacerbation of
her pre-existing arthritis.
Dr. Joyner further testified that he and Ms. Smith complied with the
recommendations made by the UR evaluator and Dr. Talmage after they denied surgery.
Ms. Smith had multiple courses of physical therapy; her physical findings were positive;
she was treated with anti-inflammatories and steroids; she underwent a Lidocaine test; and
her MRI confirmed residual pathological changes at the AC joint. The only
recommendation not followed was a psychological evaluation, which he did not believe
was warranted. He maintained that an open decompression of the AC joint was still
reasonable and necessary and stood by that opinion on cross-examination.
He also felt that the restrictions he adopted from the FCE were reasonable and
related to her work injury. Further, he only placed Ms. Smith at MMI because she could
not have surgery. If he were allowed to do surgery, she would not be at MMI until she
recovered.
To counter Dr. Joyner’s opinions, Trustpoint offered the deposition of Dr. Damon
Petty, an orthopedist who performed an independent medical evaluation. Dr. Petty testified
that he and Dr. Joyner have similar expertise and experience in treating shoulders.
Regarding the reasonableness and necessity of Dr. Joyner’s proposed surgery, he
concluded: “I think that’s a great plan. I think it is what she appears to need. I think he’s
taking her situation and assessing it with a reasonable and appropriate treatment plan.”
As to causation, Dr. Petty believed that, while Ms. Smith suffered a work-related
injury in 2017, it only caused an aggravation of her pre-existing AC arthritis because the
operation did not reveal a rotator cuff tear that required repair. Based on the operative
report, he disagreed that Ms. Smith suffered a “low-grade rotator cuff tear.” He also felt
that Ms. Smith’s current symptoms and need for surgery stem from her pre-existing, non-
work-related AC arthritis. The only exception he cited was if her pain and limitations are
due to adhesive capsulitis that arose after surgery; however, given her inconsistent results
and what he felt was symptom magnification when testing motion, he did not believe that
to be the case. Finally, he agreed that adopting the FCE restrictions was an acceptable way
for Dr. Joyner to assign physical restrictions.
On the issue of temporary disability benefits, the parties agreed to a compensation
rate of $417.40, and Trustpoint overpaid Ms. Smith $8,592.32 in temporary disability
benefits. Trustpoint stopped paying temporary disability benefits on April 2, 2019.
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Findings of Fact and Conclusions of Law
At this Expedited Hearing, Ms. Smith must come forward with sufficient evidence
from which this Court can determine that she is likely to prevail at trial in establishing that
she sustained a left shoulder injury in 2017 that arose primarily out of and in the course
and scope of her employment. She must also establish the likelihood that an additional
surgery is reasonable and necessary to treat this injury. McCord v. Advantage Human
Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Mar. 27, 2015).
Ms. Smith must first prove that her left shoulder injury arose primarily out of and
in the course and scope of her employment. Tenn. Code Ann. § 50-6-102(14)(A). Ms.
Smith’s uncontroverted testimony was that, while she had arthroscopic surgery on her left
shoulder in 2012, she was asymptomatic and without limitations until the 2017 incident.
Dr. Joyner, as the authorized physician, gave his opinion that Ms. Smith’s injury arose
primarily from the 2017 incident, and his opinion on causation is presumed correct. Tenn.
Code Ann. § 50-6-102(14)(E). Finally, while he disputed the nature of the injury, Dr. Petty
also testified that he believed Ms. Smith suffered a work-related injury to her left shoulder.
Thus, the Court holds that Ms. Smith is likely to prove she suffered a compensable, left-
shoulder injury on December 31, 2017.
The Court now moves on to the more contested issue of whether Trustpoint must
authorize additional surgery for Ms. Smith. Trustpoint argues against it, based on both
causation and reasonable necessity, which the Court shall address in turn.
Dr. Joyner unequivocally testified that Ms. Smith requires an open decompression
of the AC joint, and that this need is primarily related to her work injury. He stated that
while she unquestionably had pre-existing AC arthritis, her injury and later surgery caused
an exacerbation of this condition. As evidence, he noted the fraying of the rotator cuff,
which he described as a “low-grade tear” in his operative report and his deposition. He
also noted the significant inflammation surrounding the AC joint. Given Ms. Smith’s
asymptomatic history since 2012, as well as her clinical findings, he concluded the
December 2017 incident caused Ms. Smith’s current debilitating condition. Again, this
opinion is presumed correct.
Dr. Petty’s opinion differs from Dr. Joyner. He believed Ms. Smith’s current
complaints stem from her pre-existing arthritis and are not causally related to her work
injury, with the possible exception of adhesive capsulitis due to surgery. His disagreement
centered on whether Ms. Smith suffered a rotator cuff tear. He believed she did not, based
on the operative report, even though Dr. Joyner specifically described it in the report. The
Court finds that the disagreement lies in how Dr. Petty and Dr. Joyner define the rotator
cuffs condition. Dr. Joyner felt that the fraying constituted a “low-grade tear,” and
therefore constituted evidence of an acute injury. Dr. Petty did not consider the fraying to
5
be a tear or evidence of an acute injury to the rotator cuff.
When confronted with conflicting opinions, the Court has discretion to determine
which opinion to accept. Patterson v. Huff & Puff Trucking, 2018 TN. Wrk. Comp. Bd.
LEXIS 33, at *9 (July 6, 2018). When doing so, the 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 by
other experts.” Bass v. The Home Depot U.S.A, Inc., 2017 TN Wrk. Comp. App. Bd.
LEXIS 36, at *9 (May 26, 2017).
Here, the doctors are equals in expertise and experience; however, Dr. Joyner
examined Ms. Smith on multiple occasions for over a year. The fact that there is no
evidence that Ms. Smith was symptomatic before the incident also gives weight to Dr.
Joyner’s opinion that the incident exacerbated her condition. In addition, he had an
opportunity to visually inspect Ms. Smith’s AC joint and rotator cuff, while Dr. Petty did
not. Finally, Dr. Joyner is entitled to a presumption of correctness as the treating physician.
Given these factors, the Court holds that Ms. Smith has established the likelihood of
proving that her need for surgery is causally related to her work injury.
As for the reasonableness and necessity of surgery, Dr. Joyner and Dr. Petty agreed
that surgery is a reasonable and appropriate course of treatment. The only contrary
evidence is the non-certification from Utilization Review and Dr. Talmage’s report
affirming the denial. However, as Dr. Joyner pointed out, he complied with their
suggestions except for a psychiatric consult, which he did not believe appropriate. Under
the circumstances, the Court has little trouble holding that the proof establishes that the
recommended surgery is reasonable and necessary.
Finally, Ms. Smith is entitled to temporary disability benefits if she was temporarily
disabled from employment due to a work-related injury. See Shepherd v. Haren Const.
Co., Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS 15, at *13 (Mar. 30, 2016). Here, the
undisputed testimony is that Dr. Joyner placed Ms. Smith under restrictions that prevented
her from working at Trustpoint. He also testified that he only placed her at maximum
medical improvement because he could not treat her further through surgery, and she would
not be at MMI if the Court orders surgery. Under the circumstances, the Court finds that
Ms. Smith is likely to prove that she is not yet at MMI and that she cannot return to work
for Trustpoint. Thus, Trustpoint shall pay temporary disability benefits, less credit for
previous overpayment, from April 2, 2019, through the date she reaches MMI from her
surgery.
IT IS, THEREFORE, ORDERED THAT:
1. Trustpoint shall authorize Dr. Joyner to provide additional treatment to Ms.
Smith for her left shoulder injury including, but not limited to, an open
6
decompression of the AC joint.
2. Trustpoint shall pay Ms. Smith temporary disability benefits at a compensation
rate of $417.40 from April 2, 2019, through August 26, 2020, less a credit of
$8,592.32 in overpayment of previous benefits for a total of $21,997.14.
Trustpoint shall continue paying temporary disability benefits until Ms. Smith
reaches maximum medical improvement or is able to return to work.
3. This case is set for a Scheduling Hearing on Wednesday, October 14, 2020, at
10:00 a.m. Central Time. The parties must call 615-253-0010 to participate.
Failure to appear might result in a determination of the issues without the party’s
participation.
4. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
with this Order must occur no later than seven business days from the date of
entry of this Order as required by Tennessee Code Annotated section 50-6-
239(d)(3). The Insurer or Self-Insured Employer must submit confirmation of
compliance with this Order to the Bureau. by’ email to
WCCompliance.Program@tn.gov no later than the seventh business day after
entry of this Order. Failure to submit the necessary confirmation within the
period of compliance might result in a penalty assessment for non-compliance.
For questions regarding compliance, please contact the Workers’ Compensation
Compliance Unit via email at WCCompliance.Program@tn.gov.
ENTERED on August 28, 2020.
dp 4
ROBERT DURHAM, JUDGE
Court of Workers’ Compensation Claims
APPENDIX
Technical Record:
Petition for Benefit Determination
Dispute Certification Notice
Request for Expedited Hearing
Trustpoint’s Witness and Exhibit List
Ms. Smith’s Witness and Exhibit List
Trustpoint’s Pre-Hearing Brief
Ms. Smith’s Pre-Hearing Brief
AA eS See
7
Exhibits:
=
Subsequent Injury Fund’s Pre-Hearing Brief
Agreed Compilation of Exhibits
Dr. Petty’s deposition with exhibits
Dr. Naylor’s deposition with exhibits
Medical records offered for impeachment
CERTIFICATE OF SERVICE
I certify that a copy of the Order was sent as indicated on August 28, 2020.
Name Certified Via Via _ | Service sent to:
Mail Fax Email
R. Steven Waldron X arlenesmith@wfptnlaw.com
Marcia McShane X mmeshane@constangy.com
Ron MeNutt X Ronald.mcnutt@tn.gov
Lanes ' dum
PENNY aan Court Clerk
WC.CourtClerk@tn.gov
Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, 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 seven business days of the
date the expedited hearing order was filed. When filing the Notice of Appeal, you must
serve a copy upon all parties.
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 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 the 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. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business 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 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. If you wish to file a position statement, you must file it with the court clerk within ten
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements should include: (1) a
statement summarizing the facts of the case from the evidence admitted during the
expedited hearing; (2) a statement summarizing the disposition of the case as a result of
the expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an
argument, citing appropriate statutes, case law, or other authority.
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
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):
D Expedited Hearing Order filed on O Motion Order filed on
O Compensation Order filed on O 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): [lEmployer!” 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 lof 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
I, , 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