Opinion

Said, Medhat v. Communications Test Design, Inc

  • 2020 TN WC 134
Court
Tennessee Court of Workers' Compensation Claims
Filed
Dec 22, 2020
Status
Published
On the bench
Kenneth M. Switzer
Cited by
0 cases
Authority
More cited than 14.6%

The opinion

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT NASHVILLE

Medhat Said, ) Docket No. 2018-06-0433

Employee, )

Vv. )

Communications Test Design, Inc., ) State File No. 60229-2019

Employer, )

And )

Zurich American Insurance Company, ) Judge Kenneth M. Switzer

Carrier. )

COMPENSATION ORDER

The threshold issue in this case is the compensability of Medhat Said’s claim

regarding a gradual injury he suffered while working for Communications Test Design,

Inc. Two well-qualified experts, both of whom treated Mr. Said, have reached vastly

different opinions on this complex question of medical causation. After a December 16,

2020, compensation hearing, the Court accepts the opinion of Mr. Said’s unauthorized

physician and holds that he suffered a compensable injury.

As to his requested relief, it flows from that conclusion that Mr. Said is entitled to

future medical benefits. The Court awards permanent partial disability benefits but denies

increased benefits. Also, Mr. Said is entitled to past temporary disability benefits and

reimbursement from CTDI for some of the medical bills relative to the work injury. But

the Court denies his request for attorney’s fees from an alleged wrongful denial of the claim

and declines to refer the case for consideration of a penalty.

Claim History

Employee Testimony and Treatment

Mr. Said worked for CTDI as a materials handler, scanning boxes. He testified that

the work was fast-paced and high-volume. On August 7, 2017, he reported pain in his left

shoulder from working. CTDI authorized treatment, and he later chose Dr. Malcolm

Baxter from a panel.

At the first visit in early October, Dr. Baxter wrote that Mr. Said’s pain “started after

scanning a lot of boxes,” and “sharp pain with repetitive motions involved with his job.”

Dr. Baxter concluded, “This does appear to be work related more than 50% based on his

history.” He provided conservative treatment.

At the next visit on October 31, Dr. Baxter placed restrictions and ordered a shoulder

MRI. The MRI report found “[nJo threshold evidence for rotator cuff or glenoid labral

tear.” At the next visit on December 11, Dr. Baxter noted, “MRI really does not show any

evidence of rotator cuff tearing or significant tendinitis.” He removed the restrictions,

released Mr. Said from treatment, and assigned a zero-percent impairment rating. CTDI

could not accommodate the restrictions, and it did not pay temporary disability benefits

from October 31 through the date of maximum medical improvement designated by Dr.

Baxter.

Mr. Said returned to Dr. Baxter in February 2018, stating that his shoulder still hurt.

At that time, Dr. Baxter wrote that the work incident “really wasn’t an injury, more just

using the arm,” and he altered his causation opinion by noting, “I don’t see any evidence

of a work related injury.” After receiving the revised causation opinion, CTDI denied

further treatment.

Mr. Said then sought treatment on his own from Dr. Jason Jones. In March, Dr.

Jones performed surgery. The operative report states that he found “fraying and tearing”

on the anterior labrum and a “fairly large tear” to the subscapularis, and he performed an

open biceps tenodesis. Mr. Said continued to treat with Dr. Jones afterward and

participated in physical therapy.

Dr. Jones took him off work while he rehabilitated from surgery. However, in June,

Mr. Said opened a restaurant and began working there as the manager. He did not offer

evidence about how much he earned in the new position but simply said he needed to

support his family.

On October 9, 2018, Dr. Jones placed Mr. Said at maximum medical improvement

and restricted him from performing any repetitive motion with the left arm. Afterward,

CTDI terminated him.

Mr. Said’s personal insurance covered treatment with Dr. Jones. However, he

testified that he paid Dr. Jones $210.00 and $910.00 for physical therapy out-of-pocket.

He also paid $271.71 to the surgery center, which is documented in bills attached to an

affidavit signed by Dr. Jones. Dr. Jones wrote that Mr. Said’s bills for treatment, the

surgery center and physical therapy were reasonable and necessary, and CTDI stipulated

to this at a previous hearing.’

' Several bills are attached to Dr. Jones’s affidavit. The affidavit does not show how much Mr. Said paid

him. However, Mr. Said’s testimony was undisputed on this point. The affidavit contains an explanation

of benefits for anesthesia but not a bill. The affidavit also has a bill from Southern Hills, which Dr. Jones

2

Dr. Jones’s Testimony

Dr. Jones testified that he is an orthopedic surgeon who specializes in shoulders and

received training abroad from a world-renowned expert.” Ex. 7 at 6-7. He reviewed the

records from Dr. Baxter’s December 2017 encounter with Mr. Said. /d. at 44. Dr. Jones

based his initial diagnosis on the “presenting complaint” of shoulder pain with repetitive

motion and his clinical examination. /d. at 11. Specifically, he performed an O’Brien test

suggesting either biceps pain or labral tearing; Mr. Said exhibited signs on the test and also

had “very specific anterior shoulder pain.” /d. at 12-13.

Dr. Jones explained his surgery recommendation as follows:

He had very point-specific physical examination findings. He had this rather

profound complaint of inability to work and anterior shoulder pain and this

was affecting his life in multiple ways. He tried conservative treatment. And

everything lined up fairly well with biceps and labral complex tearing. So

that’s where the decision came to discuss surgery, because nothing else was

working. This was affecting his life. And he certainly had signs and

symptoms compatible with that.

Td. at 14.

Dr. Jones performed both arthroscopic and open surgery. /d. at 17. During surgery,

Dr. Jones discovered a superior border subscapularis tear and a biceps tendon tear. /d. at

16-17. He repaired the biceps tendon tear but did not repair the subscapularis tear because

“the tissue quality in this case [was]n’t good enough to repair.” Jd. at 17. Instead, he

debrided the subscapularis, which is “a very standard way to treat subscapularis, you know,

small tears.” Jd. at 18. Dr. Jones said, “[H]e had significant pathology on his arthroscopic

exam, which is certainly the most sensitive and specific way to look at any kind of injury.”

Id. at 18 (Emphasis added).

Before the procedure, Dr. Jones excused Mr. Said from work beginning February

23, 2018, and he released him to return to work with restrictions on October 9, 2018. Jd.

at 24. On that date, Dr. Jones assigned maximum medical improvement. /d. at 25. He

placed a three-percent upper extremity impairment and one-percent whole body permanent

impairment. /d. at 39-40. Dr. Jones found a class one injury and used a grade one modifier.

Id. at 38. According to the causation letter mentioned below, he used the diagnosis-based

impairment chart on page 402 of the AMA Guides. During the deposition, he clarified that

the upper-extremity impairment rating should be three percent. /d. at 40.

did not mention in the affidavit. Mr. Said testified regarding these sums, but the Court did not admit the

bills into evidence and denies the request that CTDI pay them.

? Dr. Jones’s resume was not made an exhibit to his deposition testimony.

3

At the deposition, Dr. Jones additionally reviewed a causation letter that he signed

from Mr. Said’s attorney, stating that he stood by his responses. /d. at 31. In that letter,

Mr. Said’s attorney asked Dr. Jones whether he could state within a reasonable degree of

medical certainty that Mr. Said’s employment contributed more than fifty percent in

causing his injury, considering all causes, and whether repetitive movement is a common

cause of tendonitis. Dr. Jones circled “yes” to both questions. He also wrote that the

surgery was reasonable and necessary. See generally Ex. 8 to Dr. Jones’s deposition, Ex.

7.

On cross-examination, Dr. Jones acknowledged that he saw only the MRI report and

not the actual images. /d. at 44. He said he did not see a difference between “fraying” and

a tear, in reference to his post-surgery diagnoses of subscapularis and biceps tendon tears.

Id. at 44-45. He added that Mr. Said’s subscapularis was “pretty significantly torn at the

superior border, and it was obviously chronic just from the pattern. It was more of these

loose fibers, like I described earlier, like almost looking like a mop handle, which generally

suggests this has occurred over time.” Id. (Emphasis added).

Cross-exam also focused on Dr. Jones’s impairment rating. Dr. Jones

acknowledged that “subjective complaints of pain” as well as “actual pathologies, actual

anatomical injury” accounted for the rating. /d. at 49-50.

Dr. Baxter’s Testimony

CTDI countered Dr. Jones’s testimony with Dr. Baxter’s. He is also an orthopedic

surgeon who specializes in shoulders, and he is board-certified. Ex. 8 at 5-6.

Dr. Baxter explained that he examined Mr. Said and performed an impingement

test, which resulted in “positive signs” of shoulder pain, which is suggestive of tendinitis,

inflammation or a tear. Jd. at 8, 36.

Much of Dr. Baxter’s opinion revolved around the MRI. Dr. Baxter said the MRI

report and images were “normal” and showed no pathology to the subscapularis. Jd. at 14.

Dr. Baxter testified-repeatedly—that the MRI did not show a torn labrum, and he reasoned

that if Dr. Jones had seen this type of tear, he would have fixed it not merely debrided it.

Dr. Baxter explained, “[H]e said he debrided it, which is usually indicative that it was not

substantial enough, and it was probably a degenerative-type labral tear, which most of us

get if we’ve worked hard in our lives.” /d. at 16-17. He likewise said the MRI did not

show a biceps tendon tear. /d. at 17. He said the operative images of the bicep looked

“pretty good,” and while they showed fraying, he did not see a tear of significance to merit

its repair. /d. at 18, 72.

Dr. Baxter acknowledged that his causation opinion changed over time. He clarified

that, when he wrote that the injury “appear[s] to be work related” after the first visit, he

meant that Mr. Said’s “pain” was work-related. /d. at 12. Dr. Baxter also reviewed his

notes from the final, February 2018 visit, and testified:

[ W Jhat we started out with was a work-related injury, work-related pain, after

further evaluation, it ended up, in my opinion, that there was no work injury

there; there was no injury, period. There was no injury there. So I’m not

saying he didn’t have pain; I’m just saying, based on the best test we have,

which was the MRI, there was no evidence of any injury there.

Id. at 24. He gave a similar answer when asked whether Mr. Said sustained an injury to

his left shoulder that primarily arose out of his employment. Dr. Baxter concluded, “T did

not see an objective injury that I could relate . . . to his employment.” Jd. at 87.

On cross-examination, Dr. Baxter confirmed that he understood that Mr. Said

performed “fast-paced, high-volume, scanning.” Jd. at 33. He agreed that this work could

cause a shoulder injury. /d. Dr. Baxter acknowledged that it 1s “possible” that an MRI

might not show every tear. /d. at 36. However, he estimated they are “96-or-plus percent”

accurate. /d. at 49. Dr. Baxter further conceded that he has had a case where an MRI did

not show “something,” but while performing surgery he found “something.” Jd. at 65. On

re-direct, he said that it is “very unlikely” that an MRI would miss both a biceps tendon

and subscapularis tear. /d. at 83.

Dr. Baxter maintained his causation opinion on cross. He said that shoulder fraying

takes “years” to develop, not “months.” Jd. at 46-47. He explained that a labral tear is

typically due to “trauma” rather than overuse, while overuse injuries are normally tendinitis

and associated with rotator cuff tears. /d. at47. Dr. Baxter later clarified that “[d]islocation

and traumatic type injuries were the main cause of labral tears.” Jd. at 64-65.

Findings of Fact and Conclusions of Law

The employee in a workers’ compensation claim has the burden of proof on all

essential elements of the claim. Scott v. Integrity Staffing Solutions, 2015 TN Wrk. Comp.

App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). At this compensation hearing, Mr. Said must

prove entitlement to the requested benefits by a preponderance of the evidence. Tenn.

Code Ann. § 50-6-239(c)(6) (2020).

Medical Causation

The threshold issue is whether Mr. Said’s claim satisfies the definition of “injury”

in the Workers’ Compensation Law. Tennessee Code Annotated section 50-6-102(14)

defines an “[iJnjury” in relevant part as “an injury by accident .. . or cumulative trauma

conditions including . . . repetitive motion conditions, arising primarily out of and in the

course and scope of employment, that causes .. . the need for medical treatment[.]” Mr.

Said must show, by a preponderance of the evidence and to a reasonable degree of medical

certainty, that the employment contributed more than fifty percent in causing the injury,

5

considering all causes. Tenn. Code Ann. § 50-6-102(14)(B)-(C). “The opinion of the

treating physician, selected by the employee from the employer’s designated panel of

physicians .. . shall be presumed correct on the issue of causation but this presumption

shall be rebuttable by a preponderance of the evidence.” Tenn. Code Ann. § 50-6-

102(14)(E).

Applying these principles, Dr. Jones testified on cross-examination during his

deposition that when he observed the condition of the subscapularis during surgery, it was

“pretty significantly torn,” “obviously chronic,” and it was generally suggestive that “this

has occurred over time.” In contrast, Dr. Baxter, whose opinion is presumed correct,

testified that the MRI did not show a torn labrum or biceps tendon, and his opinion was

based on “objective” findings. He praised MRIs for their accuracy and said that “fraying”

is degenerative and occurs over years not months.

These physicians gave opposite opinions on causation, responding to questions

couched in terms of the statutory definition of “injury.” CTDI argued that merely standing

by previous answers to a causation letter is insufficient. But the fact that Dr. Jones did not

restate his opinion that the injury arose primarily out of employment at his deposition is

not fatal to Mr. Said’s claim. Eliciting that testimony would have been helpful, but Dr.

Jones did identify the letter, review it, and testify that he stood by those responses. Also,

CTDI chose not to cross-examine Dr. Jones about the opinion and simply objected to the

admissibility of the letter as an exhibit, even though Dr. Jones identified it and confirmed

his stated position remained the same.

This case requires that the Court make a close call on this issue. 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.” Brees v. Escape

Day Spa & Salon, 2015 TN Wrk. Comp. App. Bd. LEXIS 5, at *14 (Mar. 12, 2015).

The Court finds both experts are highly qualified, so this factor favors neither. As to

the circumstances of their examinations, both physicians saw Mr. Said for treatment about the

same number of times and performed physical examinations at each visit. Contrary to

counsel’s assertions, O’Brien’s Signs versus an Impingement Test does not sway the Court

either way, nor is 1t determinative whether Mr. Said moved during the MRI, a point argued by

Mr. Said.

Considering the information available to them and the importance of that information

through other experts, Dr. Baxter read all other providers’ records; Dr. Jones read only Dr.

Baxter’s. This difference is minor, however, because the other providers treated him

sporadically and were not orthopedic specialists. The critical records for Dr. Jones to consider

were Dr. Baxter’s when he determined the injury was not work-related. Dr. Baxter relied

heavily on the MRI, which images and report he reviewed, while Dr. Jones did not see the

images. This difference, too, is not of great significance.

What sets these experts apart significantly is that Dr. Jones performed surgery—

arthroscopically and by opening the patient—to directly observe the inner condition of Mr.

Said’s shoulder. He saw “significant pathology on his arthroscopic exam, which is certainly

the most sensitive and specific way to look at any kind of injury.” The subscapularis was

“pretty significantly torn at the superior border, and it was obviously chronic just from the

pattern. It was more of these loose fibers, like I described earlier, like almost looking like

a mop handle, which generally suggests this has occurred over time.” Dr. Jones actually

saw this, and his explanation that the condition developed gradually is reasonable. In

contrast, Dr. Baxter viewed small intraoperative images, which he said portrayed the biceps

tendon looking “pretty good,” but then he agreed the images showed fraying, albeit small.

Dr. Baxter’s characterization is contradictory and less convincing.

Dr. Baxter relied heavily on the MRI. Dr. Jones conceded that the MRI showed no

pathology. However, Dr. Jones plausibly explained that other “signs and symptoms” were

suggestive of labral tearing and the need for surgery, and that he had found “very specific

anterior shoulder pain.” Dr. Baxter said MRIs are ninety-six percent accurate, but he

acknowledged that in other cases he had performed surgery and reached different

conclusions than what an MRI had suggested. In sum, while MRIs are generally quite

reliable, they are diagnostic tests and do not offer the same level of accuracy as actually

performing surgery and observing the shoulder. And while it is unusual that the MRI

apparently missed two of the tears that Dr. Jones discovered, it is not impossible.

In sum, Dr. Jones’s opinion is consistent, based on better information, and more reliable

than Dr. Baxter’s, and the Court holds that Mr. Said rebutted the presumption of correctness

afforded to Dr. Baxter’s causation opinion.

Requested Relief

Since Mr. Said’s injury 1s compensable, the Court considers his entitlement to five

general categories of requested benefits.

First, as to medical benefits, the Workers’ Compensation Law requires an employer to

provide reasonable, necessary treatment at no cost to the injured worker. Tenn. Code Ann. §

50-6-204. Looking ahead, this means CTDI shall provide future medical benefits with Dr.

Jones for Mr. Said’s left shoulder relative to the work injury.

Looking backward, it means that CTDI is responsible for Dr. Jones’s past treatment.

The Tennessee Supreme Court explained the particulars of this responsibility in Moore v. Town

of Collierville, 124 S.W.3d 93, 98 (Tenn. 2004), as follows:

When an employee receives medical care for a work-related injury that has

not been authorized by the employer, the employee must establish the

necessity and reasonableness of the charges before the employer is

responsible. Where an employer is liable for such medical expenses, the

employer must pay the medical providers directly for the costs of such care,

rather than the employee personally. Where the employee has personally

paid for the disputed medical treatment, however, the employer shall

reimburse the employee personally.

(Internal citations omitted). CTDI agreed to the reasonable necessity of the charges for Mr.

Said’s treatment with Dr. Jones. Therefore, CTDI shall repay the health insurer in accordance

with the fee schedule for payments to Dr. Jones, the surgery center and physical therapy. It

shall also rermburse Mr. Said for his out-of-pocket payments to those providers.

Mr. Said additionally requested reimbursement for mileage to his medical

appointments. However, he testified that he did not know how far away he lives from Dr.

Jones’s office, and the Court declined during the hearing to take judicial notice of a printed

Google Maps mileage calculation. Therefore, Mr. Said did not prove entitlement to mileage.

Second, Mr. Said requested temporary disability benefits. The Court finds him eligible

for these benefits for two periods.

An injured worker is eligible for temporary total disability benefits if: (1) the worker

became disabled from working due to a compensable injury; (2) there is a causal

connection between the injury and the inability to work; and (3) the worker established the

duration of the period of disability. Simpson v. Satterfield, 564 S.W.2d 953, 955 (Tenn.

1978). Temporary total disability benefits are terminated either by the ability to return to

work or attainment of maximum recovery. /d.

Here, Dr. Jones took Mr. Said off work from February 23, 2018, until maximum

medical improvement in October. However, by his own admission, Mr. Said began

working in his restaurant on or about June 1. The Court finds he is entitled to temporary

total disability from February 23 through May 31. The stipulated compensation rate of

$370.23 per week, or $52.89 per day, times ninety-seven days totals $5,130.33.

Temporary partial disability benefits are available when the temporary disability is

not total. See Tenn. Code Ann. § 50-6-207(1)-(2). Specifically, “[t]emporary partial

disability refers to the time, if any, during which the injured employee is able to resume

some gainful employment but has not reached maximum recovery.” Williams v. Saturn

Corp., No. M2004-01215-WC-R3-CV, 2005 Tenn. LEXIS 1032, at *6 (Tenn. Workers’

Comp. Panel Nov. 15, 2005). In circumstances where the treating physician has released

the injured worker to return to work with restrictions prior to maximum medical

improvement and the employer cannot return the employee to work within the restrictions,

the injured worker may be eligible for temporary partial disability. Jones v. Crencor

Leasing and Sales, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *8 (Dec. 11, 2015).

Applying these standards, the Court finds that Dr. Baxter gave work restrictions on

October 31 until placing him at maximum medical improvement on December 11. By Mr.

Said’s unrefuted testimony, CTDI did not accommodate the restrictions during that time.

It also did not pay temporary disability benefits. The Court finds he is entitled to temporary

partial disability benefits for that period, totaling $2,168.49 (forty-one days times $52.89).

Third, Mr. Said requested permanent disability benefits. When a worker suffers a

compensable work injury, reaches maximum medical improvement, and is assigned a

permanent medical impairment rating, he is entitled to receive permanent disability

benefits. See Tenn. Code Ann. § 50-6-207(3)(A).

Here, Dr. Jones clearly testified that his rating is three percent to the upper

extremity, which he then stated equals one percent to the body as a whole. Impairment

ratings are assessed using the AMA Guides, 6" edition. See generally Tenn. Code Ann. §

204(k)(2). Mr. Said’s counsel correctly pointed out that Table 15-11 on page 420 of the

Guides converts upper-extremity impairments to whole-person impairments. The Court

takes judicial notice of Table 15-11 and concludes that the correct whole-person

impairment for a three-percent upper extremity rating is two-percent whole person, so this

award is $3,332.07 (.02 times 450 weeks times $370.23).

CTDI argued that Dr. Jones improperly assigned a rating based on Mr. Said’s pain

complaints. Tennessee Code Annotated section 50-6-204(k)(3) says a physician “shall not

consider complaints of pain in calculating the degree of impairment, notwithstanding

allowances for pain provided by the applicable edition of the AMA guides[.]” In this case,

Dr. Jones acknowledged that he considered “subjective complaints of pain,” but he also

weighed the “actual pathologies, actual anatomical injury.” He used a diagnosis-based

approach to reach his rating. Pain was only a part of Dr. Jones’s reasoning. The Court

rejects this argument.

Fourth, Mr. Said seeks increased permanent partial disability benefits under

Tennessee Code Annotated section 50-6-207(3)(B). This provision states that if, at the end

of the initial period of compensation, the employee has not returned to work for any

employer at an equal or greater rate of pay as before the injury, then the employee qualifies

for an increased benefit. CTDI argued that Mr. Said did not prove these requirements, and

the Court agrees. Mr. Said’s initial period of compensation ended on December 11, 2018,

nine weeks after Dr. Jones placed him at maximum medical improvement on October 9,

2018. See Tenn. Code Ann. § 50-6-207(3)(A). Mr. Said testified that he began operating

and managing a restaurant in June 2018, before the initial period ended, and he offered no

proof as to whether he was earning less than his pre-injury earnings on December 11, 2018.

This request is denied.

Fifth and finally, Mr. Said seeks an order that CTDI pay attorney’s fees for a

wrongful denial. A judge may award reasonable attorney’s fees when the employer

3 Mr. Said argued entitlement to temporary disability benefits for other periods where other providers

restricted him from work or took him off work. However, at a compensation hearing, periods of disability

must be shown through expert opinion in the form of either a C-32 or deposition testimony. See Tenn.

Code Ann. § 50-6-235(c)(1). Therefore, the Court only considers work restrictions from Drs. Baxter and

Jones.

“[w]rongfully denies a claim or wrongfully fails to timely initiate any of the benefits to

which the employee or dependent is entitled under this chapter[.].. . ‘[W]rongfully’ means

erroneous, incorrect, or otherwise inconsistent with the law or facts.” Tenn. Code Ann. §

50-6-226(d)(1)(B). “[I]t is within a trial court’s discretion to consider an employer’s

decision to deny a claim in light of evidence or other information reasonably available to

the employer at the time the claim was denied. Moreover, such a determination is fact-

dependent.” Andrews v. Yates Servs., LLC, 2018 TN Wrk. Comp. App. Bd. LEXIS 22, at

*12 (May 8, 2018).

Here, CTDI authorized treatment with Dr. Baxter until he placed Mr. Said at

maximum medical improvement, and then it allowed a return visit in February 2018. At

that visit, Dr. Baxter repeated that he did not believe the injury was work-related. Only

then did CTDI deny the claim. Mr. Said argued that because he needed further treatment

with Dr. Jones, this denial was wrongful. The Court disagrees. Andrews dictates that this

Court consider the information available to the employer at the time of the denial. At that

time, the only opinion on the work-relatedness of Mr. Said’s claim was from the authorized

treating physician, who believed the injury was not work-related, and whose opinion is

presumed correct. CTDI reasonably relied on this opinion at the time. To award fees now,

relying on Dr. Jones’s opinion, is hindsight, which the Court declines to use.

The Court similarly finds no basis to refer the case to the Compliance Program for

consideration of penalties.

IT IS, THEREFORE, ORDERED AS FOLLOWS:

1. CTDI shall provide reasonable and necessary future medical benefits with Dr. Jones

for Mr. Said’s left shoulder work injury.

2. CTDI shall repay the health insurer under the fee schedule for payments to Dr.

Jones, the surgery center and physical therapy.

3. CTDI shall reimburse Mr. Said for his out-of-pocket payments: $210.00 to Dr.

Jones; $910.00 for physical therapy; and $271.71 to the surgery center.

4. CTDI shall pay Mr. Said temporary total disability benefits of $5,130.33 and

temporary partial disability benefits of $2,168.49. CTDI shall pay Mr. Said

permanent partial disability benefits of $3,332.07.

5. His attorney is entitled to a twenty-percent fee from these awards under

Tennessee Code Annotated section 50-6-226(a)(1), or $2,126.18. Mr. Said’s

attorney may file a motion for discretionary costs and an affidavit under Rule 54

‘Mr. Said testified that CTDI denied the claim previously in August 2017 but did not introduce evidence

of this denial. Regardless, CTDI provided authorized treatment afterward with Concentra and Dr. Baxter,

nullifying any alleged previous denial.

10

of the Tennessee Rules of Civil Procedure.

6. The Court taxes the $150.00 filing fee to CTDI, 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 might issue if necessary.

7. CTDI shall file a Statistical Data Form (SD-2) with the Court Clerk within five

business days of the date this order becomes final.

8. Unless appealed, this order shall become final thirty days after entry.

ENTERED December 22, 2020.

Judge Kenneth M. Switzer

Court of Workers’ Compensation Claims

APPENDIX

Technical Record

1) Petition for Benefit Determination with attached Exhibit A (August 7, 2020)

2) Dispute Certification Notice and Employee’s list of issues

3) Scheduling Order

4) Pre-Compensation Hearing Brief of CTDI

5) Pre-Compensation Hearing Statement of CTDI

6) Employee’s Pretrial Statement

7) Employee’s Pretrial Brief

8) Employee’s Pretrial Witness List & Exhibits

Evidence

1) First Report of Injury

2) Wage statement

3) Employer letter to Mr. Said denying further treatment, 2/13/18

4) Mr. Said’s Affidavit

5) CTDI New Hire Form

6) CTDI job description

7) Dr. Jones’s deposition transcript and exhibits

8) Dr. Baxter’s deposition transcript and exhibits

9) Medical records from miscellaneous providers

9a) Vanderbilt Belle Meade, 1/12/17

9b) Concentra, Dr. Carver, 8/31/17

11

9c) Dr. Wandass restrictions, 2/22/2018

9d) Dr. Jones restrictions, 4/20/18

9e) Concentra, Dr. Carver, 9/20/17

10) Dr. Jones Affidavit and attachments

11) Petition for Benefit Determination (March 2018) and Dispute Resolution

Statement (July 2018): Identification Only

CERTIFICATE OF SERVICE

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

22, 2020.

Name Certified | Via Via Service sent to:

Mail Fax Email

Linda Sue Nicklos, xX lindasuenicklos@gmail.com

Employee’s attorney

Michael Haynie, X | mhaynie@manierherod.com

Employer’s Attorney

| iA ,

LIA » ots

Penny Shrym, Court Clerk

Court of Workers’ Compensation Claims

12

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 conceming 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 fifieen 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/

wce,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):

CO Expedited Hearing Order filed on 0 Motion Order filed on

2 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): [ 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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

A word about cookies

We need a few to keep you signed in and the library working. The rest help us see which pages people use and where they get stuck. They stay off unless you say yes.