Cain, Sherry v. Volkswagen of America, Inc.

FILED

Mar 31, 2023

08:14 AM(ET)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT CHATTANOOGA

Sherry Cain, ) Docket No. 2022-01-0150

Employee, )

v. )

Volkswagen of America, Inc. ) State File No. 21842-2021

Employer, )

And )

XL Insurance America, Inc., ) Judge Audrey Headrick

Carrier. )

COMPENSATION ORDER

Ms. Cain asked the Court to award permanent partial disability benefits based upon

the impairment rating assigned by the Medical Impairment Rating Registry physician.1

Relying on its independent medical evaluation, Volkswagen argued it rebutted the

presumption of accuracy afforded to the Registry physician’s impairment rating by clear

and convincing evidence. The Court finds it did not rebut the presumption of correctness

attached to the Registry physician’s impairment rating. For the reasons below, the Court

holds Ms. Cain is entitled to permanent partial disability benefits based on the Registry

physician’s impairment rating.

History of Claim

The underlying facts are not disputed. On February 12, 2021, Ms. Cain worked in

quality assurance at Volkswagen where she repetitively lifted twenty-eight-pound hoods

to inspect the engine. She experienced pain and swelling in her left upper back, arm,

underarm, and chest. Ms. Cain sought emergency care, and the doctor diagnosed her with

deep vein thrombosis and thoracic outlet syndrome. After removing a blood clot from her

vein and placing her on a blood thinner, the doctor determined Ms. Cain’s work activities

caused the clot.

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At the hearing, Ms. Cain withdrew her claim for attorney fees and expenses for wrongful denial of benefits

under Tennessee Code Annotated section 50-6-226(d)(1)(B) (2022).

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Ms. Cain then selected Dr. Neelima Katraguta, a vascular surgeon, from a panel.

Dr. Katraguta surgically removed Ms. Cain’s left first rib. After the surgery, an ultrasound

showed a chronic-appearing non-occlusive thrombosis in her left subclavian vein. Dr.

Katraguta placed Ms. Cain at maximum medical improvement on December 8, 2021, and

assigned a fifteen percent impairment.

After receiving Dr. Katraguta’s rating, Volkswagen hired Dr. Jeffrey Hazlewood,

board-certified in physical medicine rehabilitation and pain management, for a second

opinion.2 Dr. Hazlewood testified that Ms. Cain denied pain down her left arm and reported

resolution of prominent veins on the left side of her chest. However, she complained of

periodic swelling, numbness and tingling, fatigue with overuse, and occasional left-elbow

pain and said she still had difficulty with some activities of daily living.

Dr. Hazlewood testified that he observed no swelling and no prominent veins. Dr.

Hazlewood believed the pain and tingling in her left chest and arm was caused by soft

tissue myofascial pain in the shoulder area and not from the blood clot. He determined she

did not have “claudication or upper extremity symptoms from the blockage of the blood

flow from the clot.” Dr. Hazlewood diagnosed her with venous thoracic outlet syndrome

from the venous thrombosis.

Dr. Hazlewood stated “a DVT is not easily rated in the Sixth Edition.” He testified

that there are two tables a doctor can use for DVT: Table 9-12 for thrombotic disorders or

Table 4-13 for upper extremity peripheral vascular disease. Dr. Hazlewood agreed that a

physician can consider Table 4-13 for DVT “[i]f one has a lot of pain and residual edema,”

but he chose to use Table 9-12 because it “was definitely the better of the two charts or

tables to use.” He explained he reached that conclusion based on courses he attended and

talking with the Guide’s authors.

After deciding which table to use, Dr. Hazlewood considered several factors in his

assessment. He noted Ms. Cain had no claudication, no swelling, no prominent veins, and

a resolved clot. She also had only one DVT episode and did not have a genetic clotting

disorder. Using these factors, he assigned a two-percent impairment rating.

Due to the conflicting ratings, Ms. Cain requested a rating from the Medical

Impairment Rating Registry. Ms. Cain and Volkswagen agreed upon Dr. Jerry Smith,

board-certified in physical medicine and rehabilitation. During his examination, Ms. Cain

complained of daily, intermittent pain in the left upper chest, upper trapezius area, and

upper arm. She also had constant swelling in the left upper trapezius and collarbone area

and tingling in the left upper chest and upper arm. She reported difficulty with several

activities of daily living.

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Ms. Cain testified she requested mileage reimbursement for traveling to Nashville for the examination,

which Volkswagen did not pay.

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On examination, Dr. Smith observed that the veins in Ms. Cain’s left upper chest

area appeared more prominent than the right. She had mild swelling in the left clavicle

area and upper trapezius area and was tender in her upper chest and along a left underarm

scar. During testing, Ms. Cain experienced claudication, which is a tingling pain that

resolves when activity stops, in her left upper chest and upper arm. Based on Ms. Cain’s

history and exam, Dr. Cain diagnosed left venous thoracic outlet syndrome and venous

thrombosis.

Dr. Smith testified that DVT is hard to rate under the AMA Guides. He looked at

Table 9-12 but “thought it was not the most appropriate for her particular problems and

injury” because it is more for thrombotic disorders that cause people to have “clots over

and over.” Dr. Smith said, “[Ms. Cain] doesn’t fit in this whole section of this book.”

Instead, Dr. Smith identified Table 4-13 as the most appropriate because objective test

results are the “key factor,” and a venous Doppler study provided objective evidence that

Ms. Cain suffers from venous peripheral vascular disease.

Using Table 4-13, Dr. Smith stated Class 2 applied because of Ms. Cain’s history

of intermittent claudication and mild swelling, and her description of symptoms fell within

the middle of Grade C. Thus, he assigned a ten-percent impairment.

On cross-examination, Dr. Smith admitted that the “physical findings” for Class 2

of Table 4-13 describe “[v]ascular damage evidenced by a healed amputation of two or

more digits of one extremity with evidence of persistent vascular disease or superficial

ulceration.” He further agreed that these findings do not apply to Ms. Cain. When asked

what the Guides instruct if the physical findings are inapplicable, Dr. Smith stated, “I’m

not sure. What I do is just take an overall. Like for this, there’s physical findings [in the

table that are] described more in the history. Like edema they put [in the history section]

instead of in the physical findings.” Dr. Smith clarified, “I’m sure you’re supposed to do

the best you can with information provided in the tables.”

Dr. Hazlewood testified he disagreed with Dr. Smith’s rating because Ms. Cain had

neither claudication nor any swelling in the upper extremity. Likewise, Dr. Hazlewood

believed the venous Doppler ultrasound was normal, although he acknowledged “[t]he

scarring is going to be there.” Dr. Hazlewood clarified “that’s just old, dried blood,

basically, or a dried scar and clot [sic] but it was not an active clot.” He concluded that

‘[a]t most, [Ms. Cain] would be class 1” if using Table 4-13.

Both Drs. Hazlewood and Smith disagreed with Dr. Katraguta’s fifteen-percent

impairment rating, which provided no information regarding her use of the AMA Guides.

At the hearing, Ms. Cain testified that when Dr. Hazlewood examined her, she had

very noticeable veins and pointed out her shoulder and arm swelling. She said she

complained of fatigue and reported pain in both her left shoulder and arm, not just her

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shoulder.

Ms. Cain also testified regarding how her injury impacts activities of daily living.

She described difficulty with the following activities: taking a blouse on or off, washing

her hair, carrying groceries, sleeping on her left side, picking up her grandbaby, swimming,

and gripping a steering wheel while driving.

Ms. Cain and Volkswagen agreed she is only entitled to an original award of

permanent partial disability benefits. She returned to work at Volkswagen making greater

pay than she made on the date of injury. Further, the end of the initial compensation period

expired regardless of the rating relied upon by the Court.

Findings of Fact and Conclusions of Law

At a Compensation Hearing, Ms. Cain must prove by a preponderance of the

evidence that she is entitled to benefits. Tenn. Code Ann. § 50-6-239(c)(6) (2022).

Under Tennessee Code Annotated section 50-6-204(d)(4), Dr. Smith’s impairment

rating as the Registry physician is presumed to be accurate but may be rebutted by clear

and convincing evidence. In Mansell v. Bridgestone Firestone N. Am. Tire, 417 S.W.3d

393, 411 (Tenn. 2013), the Tennessee Supreme Court considered this statute and defined

the clear and convincing standard as follows: “if no evidence has been admitted which

raises a ‘serious and substantial doubt’ about the evaluation’s correctness, the MIRR

evaluation is the accurate impairment rating.”

The Court in Mansell also addressed relevant factors to consider when deciding

whether a party rebutted the Registry physician’s statutory presumption of accuracy. Those

factors include: (1) a comparison of the specialties of the physicians providing the ratings;

(2) whether a disagreement exists between the physicians regarding the employee’s

diagnosis; and (3) whether a Registry physician “used an incorrect method or an

inappropriate interpretation” of the AMA Guides. Id. at 410-411. Further, “the focus is

on the evidence offered to rebut [the Registry] physician’s rating.” Id. at 411.

Applying those factors here, the Court first finds Drs. Smith and Hazlewood are

equally qualified to assess a rating. Both are board-certified in physical medicine and

rehabilitation. Both are also Registry physicians.

Second, the Court finds that no disagreement exists between the doctors regarding

Ms. Cain’s diagnoses.

Third, the Court finds Dr. Hazlewood’s deposition testimony did not prove that Dr.

Smith “used an incorrect method or an inappropriate interpretation” of the AMA Guides.

Instead, Dr. Hazlewood stated that doctors can use either Table 9-12 or Table 4-13 for

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DVT. He stated a physician can consider using Table 4-13 “[i]f one has a lot of pain and

residual edema.” Although he felt Table 9-12 was the best option, Dr. Hazlewood’s

testimony reflects that using either table to rate a DVT is appropriate.

Finally, the Court considers Dr. Hazlewood’s testimony that ‘[a]t most, [Ms. Cain]

would be class 1” if using Table 4-13. He interpreted the venous Doppler study as normal

while Dr. Smith believed it showed the existence of thrombosis. Dr. Hazlewood stated he

did not observe swelling or prominent veins. He attributed Ms. Cain’s pain to soft tissue

myofascial pain instead of a blood clot and concluded she did not have claudication.

However, Dr. Smith, who placed Ms. Cain in Class 2, did observe those symptoms.

Therefore, the Court finds Dr. Hazlewood’s testimony did not prove Dr. Smith incorrectly

classified Ms. Cain using Table 4-13.

Turning to the lay testimony, the Court is guided by longstanding authority 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. Cain’s testimony is particularly important regarding the

symptoms that existed during her examinations with Drs. Hazlewood and Smith.

Specifically, Ms. Cain’s testimony about her symptoms mirrored those described by

Dr. Smith: swelling in her shoulder and arm, fatigue, pain in her shoulder and arm, and

very visible veins. She also testified she had these same symptoms when Dr. Hazlewood

examined her.

The Court finds Ms. Cain credible. Her testimony was calm, self-assured, confident,

forthcoming, reasonable, and honest. See Kelly v. Kelly, 445 S.W.3d 685, 694-695 (Tenn.

2014) (discussing indicia of witness credibility). She neither exaggerated nor embellished

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

symptoms that existed during her examinations with Drs. Hazlewood and Smith.

Therefore, the Court finds Volkswagen did not rebut the presumption of correctness

attached to Dr. Smith’s rating. Thus, the Court awards Ms. Cain ten-percent permanent

partial disability benefits under Tennessee Code Annotated section 50-6-207(3)(A),

calculated as ten percent times 450 weeks times the stipulated compensation rate of

$746.51, or $33,592.95.

IT IS, THEREFORE, ORDERED as follows:

1. Volkswagen shall furnish medical care for Ms. Cain’s injury as required by

Tennessee Code Annotated section 50-6-204.

2. Volkswagen shall pay Ms. Cain permanent partial disability benefits totaling

$33,592.95.

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3. Ms. Cain’s attorney is entitled to a twenty-percent attorney’s fee to be paid from

her award. Tenn. Code Ann. § 50-6-226(a)(1).

4. Volkswagen shall pay Ms. Cain mileage reimbursement for her travel to Dr.

Hazlewood’s office in Lebanon, Tennessee. Tenn. Code Ann. § 50-6-

204(a)(4)(A).

5. Volkswagen shall pay the $150.00 filing fee to the Clerk within five business

days after this order becomes final under Tennessee Compilation Rules and

Regulations 0800-02-21-.06 (February, 2022).

6. Volkswagen shall file form SD-2 with the Clerk within ten business days of this

order becoming final.

7. Unless appealed, this order shall become final in thirty days.

ENTERED March 31, 2023.

_____________________________________

Judge Audrey A. Headrick

Court of Workers’ Compensation Claims

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APPENDIX

Exhibits:

1. Deposition of Dr. Smith

2. Deposition of Dr. Hazlewood

3. Pages from the AMA Guides, Sixth Edition

4. Pre-Compensation Hearing Statement

Technical Record:

1. Petition for Benefit Determination

2. Dispute Certification Notice

3. Request for Hearing

4. Notice of Appearance

5. Motion to Withdraw as Counsel for Employer

6. Order Granting Motion to Withdraw as Counsel for Employer

7. Scheduling Order

8. Ms. Cain’s Witness and Exhibit List

9. Dispute Certification Notice

10. Employee’s Pre-Hearing Brief

11. Pre-Compensation Hearing Brief

12. Volkswagen’s Witness and Exhibit List

13. Employer’s Pre-Hearing Brief

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CERTIFICATE OF SERVICE

I certify that a copy of this Compensation Order was sent as indicated on March 31, 2023.

Name Certified Email Service sent to:

Mail

Jeff Rufolo, X jrufolo@summersfirm.com

Employee’s Attorney

Jeff Powell, X jpowell@hennessyroach.com

Employer’s Attorney

/s/Penny Shrum w/permission JD

______________________________________

Penny Shrum, Court Clerk

WC.CourtClerk@tn.gov

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For notices of appeal filed on or after July 1, 2022.

Compensation Order Right to Appeal:

If you disagree with this Compensation Order, you may appeal to the Workers’

Compensation Appeals Board. To do so, you must:

1. Complete the enclosed form entitled “Notice of Appeal” and file it with the Clerk

of the Court of Workers’ Compensation Claims within thirty calendar days of the

date the Compensation 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 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 are responsible for ensuring a complete record is presented on appeal. The

Court Clerk will prepare the technical record and exhibits for submission to the

Appeals Board, and you will receive notice once it has been submitted. If no court

reporter was present at the hearing, 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 you must file it with the Court Clerk within fifteen calendar days of

filing the Notice of Appeal. Alternatively, you may file a statement of the evidence

prepared jointly by both parties within fifteen calendar days of filing the Notice of

Appeal. The statement of the evidence must convey a complete and accurate

account of the testimony presented at 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 must review testimony or other proof

concerning factual matters, the absence of a transcript or statement of the evidence

can be a significant obstacle to meaningful appellate review.

4. After the Workers’ Compensation Judge approves the record and the Court Clerk

transmits it to the Appeals Board, a docketing notice will be sent to the parties. You

have fifteen calendar days after the date of that notice to file a brief to the Appeals

Board. See the Rules governing the Workers’ Compensation Appeals Board on the

Bureau’s website

For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.

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. Tenn. Code

Ann. § 50-6-239(c)(7).

For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.