Edwards, Jo Carol v. Peoplease

FILED

Dec 22, 2021

02:05 PM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT JACKSON

JO CAROL EDWARDS, ) Docket No. 2021-07-0056

Employee, )

v. )

PEOPLEASE, )

Employer, )

and ) State File No. 800069-2021

VANLINER INS. CO, )

Carrier, )

and, )

ABIGAIL HUDGENS, )

ADMINISTRATOR of the BUREAU OF ) Judge Allen Phillips

WORKERS’ COMPENSATION, )

SUBSEQUENT INJURY FUND. )

EXPEDITED HEARING ORDER

FOR MEDICAL AND TEMPORARY DISABILTY BENEFITS

Ms. Edwards requested medical and temporary disability benefits for injuries

sustained in a truck accident. Peoplease disputed a causal relation of some of the injuries

and the need for evaluation of others. After hearing the issues at an Expedited Hearing on

December 14, 2021, the Court holds Ms. Edwards is entitled to some of the requested

benefits.

History of Claim

On August 14, 2020, Ms. Edwards sustained injuries when the right front tire of the

truck she was driving blew out, causing the truck to strike a bridge and leave the road. She

said both of her knees repeatedly struck the dashboard during the crash, and her chest hit

the steering wheel. She explained that she sat close to the steering wheel because of her

height, and that position also caused her knees to hit the dashboard as it was pushed into

the cab.

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Peoplease paid for Ms. Edward’s initial treatment at an emergency room and

primary care clinic. It then provided a panel of orthopedic surgeons that included Dr. Jason

Hutchison and Dr. Timothy Sweo. Ms. Edwards chose Dr. Hutchison.

On September 14, Dr. Hutchison recorded Ms. Edwards’s history and noted she

complained of pain and loss of motion in both knees. He took x-rays that revealed severe

arthritis in both knees, noting the “ultimate treatment is going to be a total knee

replacement.” He said that the type of arthritis in Ms. Edwards’s knees usually produces

pain, loss of motion, and trouble standing and walking.

Dr. Hutchison testified the arthritis was pre-existing, but the accident caused an

“exacerbation of symptoms.” However, “according to [his] understanding of the law” an

exacerbation of symptoms is not “compensable or something that should be considered for

treatment under workers’ compensation.” Thus, he believed Ms. Edwards’s need for

treatment was not “greater than 50%” related to the accident and that it caused no anatomic

change in her knees.

Dr. Hutchison testified he could not, “to a reasonable degree of medical certainty”

say what caused Ms. Edwards’s symptoms but did not rule out that they were caused by

the accident. Because he did not record Ms. Edwards’s pre-accident history, Dr. Hutchison

did not “know for certain that she did or did not have symptoms” before. But he did say

that Ms. Edwards’s pain complaints were consistent with someone who “has an accident

which causes an exacerbation of underlying symptoms” of arthritis.

Dr. Hutchison injected Ms. Edwards’s knees and offered to treat her under private

insurance. Ms. Edwards declined his offer but instead went to Dr. Timothy Sweo on her

own.

On September 24, Dr. Sweo noted the same complaints as Dr. Hutchison and wrote

that Ms. Edwards reported she had experienced them for a “few months.” He did not record

a history of the accident. Dr. Sweo made the same diagnosis as Dr. Hutchison and believed

Ms. Edwards would require bilateral knee replacements. He recommended she undergo the

surgery, but Ms. Edwards deferred.

Ms. Edwards returned to Dr. Sweo on November 17, and he said she was “adamant”

that she had no problems with her knees until the accident. She wanted an MRI of her left

knee, and Dr. Sweo agreed. The MRI showed, in addition to the arthritis, a fracture in the

posterior portion of the knee. Dr. Sweo said the fracture “fits with her history” of the

accident and, although Ms. Edwards ultimately would have needed a knee replacement

anyway, the fracture was “the reason she had to have it done at that point” because it

“destabilized” the knee. As to a specific relation, Dr. Sweo attributed “more than 51% of

the cause” of the problems in both knees and need for surgery to the accident.

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Peoplease asked Dr. Hutchison to see Ms. Edwards again after Dr. Sweo provided

his opinions. Specifically, on January 4, 2021, Dr. Hutchison noted Dr. Sweo had

scheduled the left knee replacement under Ms. Edwards’s personal insurance but that she

was pursuing workers’ compensation benefits. He agreed the fracture likely occurred in the

accident but called Dr. Sweo’s opinion that the fracture destabilized her knee

“nonsensical.” However, he said that if Ms. Edwards now suffers from swelling, pain, and

disability, then one might say the accident made her knee unstable, adding it was “a very

common situation where someone has an accident, and their knee arthritis hurts worse.”

As to the right knee, Dr. Hutchison said the diagnosis was “not markedly different.”

Dr. Hutchison also addressed Ms. Edwards’s chest injury for the first time. He said

he did not treat chest injuries but added it was “not a very big problem at this point.” He

did not think referral to a chest surgeon, his usual course, was warranted. He added most

chest injuries are treated conservatively. He did mention the foot injury.

Dr. Sweo similarly addressed the alleged chest and foot injuries, noting that “no

treatment [was] currently required for those.”

Dr. Sweo ultimately performed the left knee replacement in February under Ms.

Edwards’s personal insurance, and he has not released Ms. Edwards from his care. The

parties agreed that she has been off work since Dr. Sweo began his care in September 2020,

and they agreed to a weekly compensation rate of $772.31.

Ms. Edwards was the only witness at the hearing. She said she had driven a truck

for twenty years with no problems with her knees until the accident. But, after the accident,

she had pain, swelling and trouble walking. The Court observed her limping and using a

cane. She said she did not know why Dr. Sweo did not record the accident at her first visit

with him, stating that she absolutely told him about it.

Ms. Edwards requested the following benefits:

1) Payment of medical bills related to the left knee replacement to the extent that

her personal health insurance did not pay;

2) Payment by Peoplease for a right knee replacement as recommended by Dr.

Sweo;

3) Evaluation of her chest and right foot injuries;

4) Payment of temporary total disability from September 24, 2020, and ongoing;

5) Payment for an underpayment of temporary disability because Peoplease

initially paid her at the wrong rate; and

6) Mileage reimbursement.

Ms. Edwards said the requested medical bills were those that her private insurance

did not pay. She is also ready to undergo the right knee replacement by Dr. Sweo. Ms.

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Edwards contended Peoplease paid her temporary total disability from the date of the

accident until Dr. Hutchison gave his causation opinion on September 14, but it paid her at

a lower weekly rate than that stipulated by the parties. As to her mileage reimbursement

request, Ms. Edwards admitted some of the trips were near her home and some were not to

medical appointments.

For its part, Peoplease focused on the alleged knee injuries. It argued Ms. Edwards

could not recover benefits because the accident aggravated Ms. Edwards’s pre-existing

condition only by increasing her pain without any anatomic change. Relying on Trosper v.

Armstrong Wood Prod., Inc., 273 S.W.3d 598, 607 (Tenn. 2008), Peoplease argued that a

work injury must advance the severity of a pre-existing condition to be compensable. Here,

Peoplease contended both Dr. Hutchison and Dr. Sweo attributed Ms. Edwards’s need for

knee replacements to arthritis, which was not “advanced” by the accident.

Peoplease did not contest the reasonableness and necessity of the medical bills

related directly to Dr. Sweo’s surgery but did contest the relation of other billing. Peoplease

also contested the amount of the mileage reimbursement on grounds that some of the

requested reimbursement amounts were not greater than fifteen miles from Ms. Edwards’s

home or were for trips not related to medical treatment.

The Fund agreed with Peoplease’s position regarding the knee injuries.

Findings of Fact and Conclusions of Law

At an Expedited Hearing, Ms. Edwards must show she would likely prevail at a

hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(1) (2021).

Knee injuries

Tennessee law has long held that the employee’s own assessment of her 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). Here, Ms. Edwards testified

that she had no problems with her knees before the accident, and the Court believes her.

Further, her complaints align with those Dr. Hutchison said he would expect from someone

whose arthritis is made symptomatic. Ms. Edwards was honest, forthcoming, and succinct,

and the Court finds her credible. See Kelly v. Kelly, 445 S.W.3d 685, 694-695 (Tenn. 2014)

(discussing indicia of witness credibility).

As to the medical proof, Dr. Hutchison’s causation opinions, as the panel-selected

physician, are presumed correct subject to rebuttal by a preponderance of the evidence.

Tenn. Code Ann. § 50-6-204(k)(7). However, the Court finds resolution of this issue does

not turn solely on whether Ms. Edwards rebutted Dr. Hutchison’s opinion.

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Instead, the Court looks to Dr. Hutchison’s incorrect assumption as to what

constitutes a compensable injury. Specifically, Dr. Hutchison expressed his opinion that an

exacerbation of a pre-existing condition is not compensable. However, an aggravation of a

pre-existing condition is compensable if it arises primarily out of the employment, meaning

the employment contributed more than 50% in causing the aggravation. Shown to a

reasonable degree of medical certainty means that the employment more likely than not

caused the aggravation when considering all causes. Tenn. Code Ann. § 50-6-102(A)-(D).

Dr. Hutchison testified the accident caused only an “exacerbation” of Ms.

Edwards’s knee symptoms but no anatomic change. However, he did not record Ms.

Edwards’s pre-accident history and did not “know for certain that she did or did not have

symptoms” before. He did say Ms. Edward’s pain complaints were consistent with

someone who “has an accident which causes an exacerbation of underlying symptoms.”

Without contrary proof, the Court finds the only cause of Ms. Edwards’s symptoms was

the accident.

Moreover, Dr. Sweo said Ms. Edwards’s knee injuries and need for treatment were

more than 51% related to the accident. Importantly, he related the problems in both knees

to the accident, notwithstanding what he said about the fracture in the left knee. In the

context of Ms. Edwards’s credible testimony regarding her symptoms, Dr. Sweo’s opinion

is more compelling.

The Court finds these facts fit within Blevins v. S. Champion Tray, LP, 2019 TN

Wrk. Comp. App. Bd. LEXIS 29 (July 11, 2019), where the Workers’ Compensation

Appeals Board stated that the “relevant questions [were] whether the incident at work

caused an aggravation of Employee’s pre-existing condition and whether that aggravation

arose primarily out of her employment.” In Blevins, the treating physician testified the

employee suffered no anatomical change as a result of an accident. However, there was

“no indication in the record that he compared post-accident diagnostic tests with any pre-

accident tests.” Id. at *14. Moreover, the Appeals Board found that “a pre-existing

condition that is made symptomatic by a work injury may be found to be compensable even

in the absence of medical proof of an anatomical change if there is a progression or

aggravation of the condition that causes disabling pain.” Id. That was true even though the

treating physician stated that “greater than 51% of the causation” was related to the pre-

existing condition. Instead, the Board found the physician’s “opinion [was] inconsistent

with undisputed facts and [did] not take into account that an aggravation of a pre-existing

condition can be compensable under certain circumstances.” Id.

The same is true here, Dr. Hutchison incorrectly asserted that an exacerbation of a

pre-existing condition is never compensable and should not be treated under workers’

compensation. But, as in Blevins, his opinion is inconsistent with the facts, and he did not

consider that Ms. Edwards’s arthritis was not disabling until the accident.

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Further, another physician in Blevins “linked Employee’s symptoms to the work

incident and provided an opinion that the employment ‘more likely than not’ caused her

need for medical treatment.” Id. at *14-15. The Appeals Board noted that while that opinion

might have been “insufficient to establish causation by a preponderance of the evidence at

trial,” it was, when “considered with Employee’s lay testimony . . . sufficient evidence to

rebut the presumption of correctness accorded the authorized physician’s causation

opinion” and allowed a finding that the employee would likely prevail at a hearing on the

merits. Id. at *15. The Court finds the same is true here and holds Ms. Edwards is entitled

to benefits for her knee injuries.

As to reimbursement of medical expenses for the left knee replacement, an employer

who elects to deny a claim runs the risk that it will be held responsible for medical benefits

obtained from a provider of the employee’s choice. Young v. Young Elec. Co., 2016 TN

Wrk. Comp. App. Bd. LEXIS 24, at *16 (May 25, 2016). Here, Ms. Edwards sought

treatment from Dr. Sweo after Peoplease denied her claim. The Court holds Peoplease shall

pay Ms. Edwards’s medical bills related to the left knee replacement as set forth in

paragraph 1 below and payment for the right knee replacement recommended by Dr. Sweo.

Chest and foot injuries

Both Drs. Hutchison and Sweo testified that Ms. Edwards did not need treatment

for the chest injury. Dr. Sweo said the same regarding the foot injury. Thus, the Court finds

no basis to order payment for further evaluation and/or treatment of those injuries at this

time.

Temporary total disability

To recover temporary total disability benefits, Ms. Edwards must establish (1) that

she became disabled from working due to a compensable injury; (2) a causal connection

between the injury and her inability to work; and (3) the duration of the period of disability.

Hibbitts v. Kim Royal d/b/a Royal Guttering, 2021 TN Wrk. Comp. App. Bd. LEXIS 10,

at *6 (Mar. 23, 2021).

Dr. Sweo related Ms. Edwards’s disability to the injury and restricted her from work

as of September 24, 2020. Though it contested the work relation, Peoplease did not contest

the period of Ms. Edwards’s disability. Thus, the Court finds Ms. Edwards is entitled to

temporary total disability from September 24, 2020, to the present, and until she is released

to return to work or placed at maximum medical improvement.

Further, Ms. Edwards contended, without contravention, that Peoplease paid her at

the incorrect rate of $486.87 from August 22, 2020, to September 15, 2020, a period of

three weeks and three days. The Court finds Ms. Edwards is entitled to payment of a

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shortfall in temporary total disability in the amount of $978.65 for that period. (Stipulated

rate of $772.31 per week less $486.87 rate paid for 3.42 weeks).

Mileage reimbursement

Ms. Edwards submitted a mileage log to and from various appointments. Many of

these trips were fewer than fifteen miles from her home and not recoverable under

Tennessee Code Annotated section 50-6-204(a)(6)(A). Further, some trips were to and

from locations other than medical providers, including her return home from the accident

scene and to the Bureau’s office in Jackson. The Court excluded those trips, as itemized by

Ms. Edwards in Exhibit 3, and sets forth the recoverable mileage in paragraph 5 below.

IT IS, THEREFORE, ORDERED as follows:

1. Peoplease shall reimburse Ms. Edwards for the following medical bills incurred for

the left knee replacement:

• Jackson Radiology Assoc. $60.97

• Northstar Anesthesia PA $3,556.80

• JMCGH $6,549.68

• JMCGH $40,334.60

• Sports Orthopedics & Spine $1,465.09

• Fast-Pace Camden $50.00

2. Peoplease shall authorize and pay for a right knee replacement as recommended by

Dr. Sweo.

3. Peoplease shall pay Ms. Edwards temporary total disability for the period of

September 24, 2020, through the present, a period of sixty-three weeks and six days,

at the stipulated rate of $772.31 per week, or $49,311.99. Payments shall continue

until she is released to return to work or placed at maximum medical improvement.

4. Peoplease shall pay a shortfall in temporary total disability for the period of August

22, 2020, to September 14, 2020, in the amount of $978.65.

5. Peoplease shall reimburse Ms. Edwards for mileage expenses incurred in the

following trips to and from medical providers at the applicable statutory rate of $.47

per mile:

• September 14, 2020-Dr. Hutchison-120 miles

• September 24, 2020-Dr. Sweo-120 miles

• November 17, 2020-Dr. Sweo-120 miles

• November 20, 2020-Dr. Sweo-120 miles

• December 2, 2020-Dr. Sweo-120 miles

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• December 31, 2020-Dr. Sweo-120 miles

6. The Court sets a Status Hearing on Monday, March 28, 2022, at 9:30 a.m. Central

time. The parties must call 731-422-5263 or toll-free 855-543-5038 to participate

in the hearing.

7. Unless an 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 may result in a penalty assessment for

non-compliance. For questions regarding compliance, please contact the Workers’

Compensation Compliance Unit by email at WCCompliance.Program@tn.gov.

ENTERED December 22, 2021.

______________________________________

Judge Allen Phillips

Court of Workers’ Compensation Claims

APPENDIX

Exhibits:

1. Deposition of Dr. Jason Hutchison

2. Deposition of Dr. Timothy Sweo

3. Collective Medical Records

4. Itemization of total medical billing

5. Itemization of unpaid medical bills and mileage

6. Mileage log

7. Photographs of accident

8. E-mails from employer

9. Request by Ms. Edwards for a notice of denial form

Technical Record:

1. Petition for Benefit Determination

2. Dispute Certification Notice

3. Request for Expedited Hearing with Ms. Edwards’s affidavit

4. Transfer Order

5. Motion to Add Subsequent Injury Fund

6. Response of Subsequent Injury Fund

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7. Order Adding Subsequent Injury Fund and Remanding Case to Mediation

8. Order Continuing Expedited Hearing and Second Referral to Mediation

9. Second Dispute Certification Notice

10. Employer’s Witness List

11. Employer’s Brief

12. Employee’s Witness and Exhibit List

13. Subsequent Injury Fund’s Brief

14. Employee’s Brief

CERTIFICATE OF SERVICE

I certify that a copy of this Order was sent as indicated on December 22, 2021.

Name Email Service Sent To:

Charles L. Hicks, Employee’s Attorney X office@hickslawfirm.net

assistant@hickslawfirm.net

Stephen Morton, Employer’s Attorney X stephen.morton@mgclaw.com

Amber.dennis@mgclaw.com

Art D. Wells, SIF Attorney X art.wells@tn.gov

______________________________________

Penny Shrum, Court Clerk

wc.courtclerk@tn.gov

9

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/

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

Docket No.: ________________________

State File No.: ______________________

Date of Injury: _____________________

___________________________________________________________________________

Employee

v.

___________________________________________________________________________

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):

□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________

□ Compensation Order filed on__________________ □ 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 *

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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 I 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