The opinion
FILED
Oct 01, 2020
10:07 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,
Employer,
State File No. 894-2018
)
)
)
)
)
And )
ACE AMERICAN INS. CO., ) Judge Robert Durham
Carrier, )
And )
ABIGAIL HUDGENS, Administrator )
of the Bureau of Workers’ )
Compensation, and the Subsequent )
Injury Fund. )
ORDER AMENDING EXPEDITED HEARING ORDER
This case came before the Court on September 25, 2020, on Trustpoint’s Motion to
Alter or Amend the August 28, 2020 Expedited Hearing Order (EHO). After considering
the parties’ positions, the Court grants the motion in part by allowing certain medical
records into evidence and amending the award of temporary partial disability benefits.
Procedural History
The Court previously issued an EHO granting medical and temporary disability
benefits. Except to the extent that it is specifically revised through this Order, the findings
and conclusions in the EHO remain unchanged and are incorporated by reference. The
Court will address the requested amendments in turn.
Admission of Pre-2012 Medical Records
In a conference call before the Expedited Hearing, the Court noted that the submitted
medical records contained well over 1,000 pages. The Court requested the parties to submit
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a joint compilation of records relevant to the proceeding. The parties did so and filed a
Joint Submission of Evidence and Table of Contents. The Table of Contents listed relevant
records including, and in addition, the previously filed depositions of Dr. Petty and Dr.
Joyner and their attached exhibits. Copies of the depositions and exhibits were not included
in the Joint Submission.
At the hearing, Trustpoint’s counsel attempted to cross-examine Ms. Smith using
records of her visits to various providers for left-shoulder pain before her 2012 shoulder
surgery.' Ms. Smith’s counsel objected on the grounds that they had not been previously
filed as exhibits. Trustpoint’s attorneys agreed that they were not included in the “Joint
Submission” but stated they only wished to use them for impeachment purposes. With this
caveat, the Court allowed counsel to cross-examine Ms. Smith about the documents but
did not allow them into evidence. Additionally, the documents were unsigned and
uncertified, and thus constituted inadmissible hearsay under the Rules of Evidence and the
Court Rules.
With this motion, Trustpoint asserted that it mistakenly informed the Court at the
hearing that the records in question were not admitted as exhibits. While they were not in
the compilation, they were attached to the medical depositions that had been previously
provided and which were identified as exhibits in the Joint Submission of Evidence.
Therefore, Trustpoint argued that the records should be considered as evidence.
Given that the records in question, although not specifically identified, were part of
the Joint Submission of Evidence, and due to the interlocutory nature of the Expedited
Hearing Order, the Court amends it to include consideration of Exhibits 1-3 of Trustpoint’s
Motion as evidence.
Upon considering the records in question, they do not sway the Court’s opinion that
Ms. Smith is likely to prove she is entitled to additional surgery and temporary partial
disability benefits. As stated in a footnote to the EHO, the treatment at issue occurred
several years before her left-shoulder surgery in 2012. In addition, the records are of stand-
alone events that, in at least two of the cases, involved significant complaints to other body
parts as well. The Court finds that Ms. Smith’s failure to mention these events after her
December 2017 incident is of little consequence.
2014 Left Shoulder Complaint
In the EHO, the Court observed that no evidence showed that Ms. Smith suffered
from left-shoulder complaints or limitations after recovery from her 2012 surgery until the
December 2017 incident. This statement is in error. Ms. Smith testified that she did see a
doctor in 2014 for left-shoulder pain while working as a CNA for the Veteran’s Hospital.
' The records in question are attached as Exhibits One, Two and Three to Trustpoint’s Rule 59 Motion.
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Thus, the Court amends the EHO to reflect this testimony.
However, as with the pre-2012 medical records, this amendment does not change
the Court’s opinion as to Ms. Smith’s credibility or her entitlement to additional benefits.
The treatment occurred more than three years before Ms. Smith’s December 2017 incident.
She testified that she fully recovered after the initial visit and did not suffer from any further
problems with her shoulder until she hurt it in 2017. Trustpoint did not provide any
evidence to the contrary. Therefore, the Court finds the 2014 episode does not change the
likelihood that Ms. Smith will prevail on the issue of causation at trial.
At the hearing, Ms. Smith testified as to the 2014 doctor’s visit, but Trustpoint did
not attempt to enter any medical records regarding this treatment. However, it has since
offered a record and requested it be made part of the record. Ms. Smith’s counsel objected
to the record being made an exhibit, since it was not offered at the hearing. The Court
sustains Ms. Smith’s objection and excludes the document from the record.
Compensation Rate and Temporary Partial Disability Benefits
Before the expedited hearing, the parties agreed to a compensation rate of $417.40.
They further stipulated that Trustpoint paid temporary total disability benefits until her
authorized physician stated she was at MMI on April 2, 2019. Ms. Smith testified that she
has not made any money since except for income received from selling various products
online. In the EHO, the Court held that Ms. Smith is not at maximum medical
improvement, and is thus entitled to temporary disability benefits from April 2, 2019, until
she reaches MMI or is able to return to work. Based on the parties’ stipulations as to
compensation rate, and Trustpoint’s failure to argue for a credit based on Ms. Smith’s sales,
the Court ordered Trustpoint to pay temporary disability benefits without regard to the
online sales.
Trustpoint argued in its motion that the EHO should be amended to calculate Ms.
Smith’s compensation rate as two-thirds of the difference between her average weekly
wage and the wages she is able to earn while temporarily partially disabled under
Tennessee Code Annotated section 50-6-207(2). This would include consideration of the
income she received from her sales.
Ms. Smith conceded to a reduction in her temporary partial disability benefits by
two-thirds of the amount she made through her sales after April 2, 2019. She calculated
the difference would mean a credit of $1,547.96 in temporary partial disability benefits
‘from April 2, 2019, until August 18, 2020, the date of the EHO. She further conceded an
ongoing credit of $26.97 per week, which reduces her compensation rate to $389.80.
Trustpoint did not object to these calculations or provide any contrary figures, and the
Court finds them reasonable. Therefore, the EHO is amended to reflect that Trustpoint
shall pay Ms. Smith temporary partial disability benefits as calculated above.
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Trustpoint further argued that Ms. Smith could have earned more than she did with
her sales, but instead she chose to only work approximately five hours per week at the job.
Thus, it argued that the income she could have earned in her partially disabled state should
be calculated at least to forty hours per week at minimum wage. The Court holds this
argument is without merit, as Trustpoint offered no proof that Ms. Smith could have made
more money selling products online if she had chosen to do so.
Reconsideration of Causation and Need for Surgery
Trustpoint’s remaining issues concerned the interpretation of the testimony and the
weight that should be accorded to opinions regarding causation and the reasonableness and
need for additional surgery. The Court already addressed those issues in the EHO and sees
no reason to change its holdings regarding them. Trustpoint shall comply with the Court’s
order in the EHO except for the recalculation of temporary partial disability benefits as
outlined above.
IT IS ORDERED.
ENTERED on October 1, 2020.
ROBERT DURHAM, JUDGE—
Court of Workers’ Compensation Claims
CERTIFICATE OF SERVICE
I certify that a copy of the Order was sent as indicated on October 1, 2020.
Name Certified Via Via _ | Service sent to:
Mail Fax Email
R. Steven Waldron xX arlenesmith@wfptnlaw.com
Marcia McShane Xx mmcshane@constangy.com
Ron McNutt XxX Ronald.mcnutt@tn.gov
Form, Adon
PENNY SI#/RUM, 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
conceming 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 UO) Motion Order filed on
O 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): ['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 !nj.:
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