Dyer, Destiny v. Petsmart, Inc.

FILED

Dec 04, 2023

09:17 AM(ET)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS

TENNESSE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT MURFREESBORO

DESTINY DYER, ) Docket No.: 2023-05-00917

Employee, )

v. )

PETSMART, INC., ) State File No.: 50156-2022

Employer, )

And )

IDEM. INS. CO. OF N. AM., ) Judge Thomas Wyatt

Insurance Carrier. )

)

EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS

In this expedited hearing, Destiny Dyer sought surgery for a herniated cervical disc

that PetSmart, Inc. denied. PetSmart argued Ms. Dyer did not give timely notice of a neck

injury, which Ms. Dyer denied. Further, the parties disputed the mechanism of the injury,

and the medical proof conflicted on the issue of causation of the herniated disc.

For the reasons below, the Court orders PetSmart to authorize the surgery.

History of Claim

Ms. Dyer has worked at PetSmart more than four years. She worked as a groomer

at the time of her injury but now is a cashier because of limitations due to her injury. There

is no evidence that, before her injury, she had experienced neck, left-shoulder, or left-arm

symptoms.

In June of 2022, as Ms. Dyer trimmed the nails of a large dog, it suddenly jerked

the paw she was trimming. She maintained her grip on the paw, and the dog yanked her

left arm backward while spinning her to the left. During the incident, she claimed to have

raised from her bent position and struck an overhead bar with her head.

She experienced left shoulder and arm pain after the accident and reported it to

PetSmart’s store leader, Bradley Deselle, that same day. She told him that she hit her head

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but declined medical attention because she was not dizzy and did not think she had a

concussion. Mr. Deselle waited to see how the injury progressed before completing an

incident report.

Ms. Dyer continued working in the days afterward but experienced persistent left-

shoulder and upper arm pain. She requested medical attention thirteen days later. Mr.

Deselle completed an incident report, writing that Ms. Dyer “was clipping nails when a

[large] dog kicked [its] leg and [she] heard a pop in her shoulder.” He added that Ms. Dyer

did not “think much” of the injury at first but decided to file a written report because “it

has not gotten any better.” He testified that he did not remember Ms. Dyer telling him

about hitting her head.

PetSmart accepted Ms. Dyer’s injury. Mr. Deselle referred her to a telehealth nurse,

who wrote that Ms. Dyer “was holding [a French mastiff’s] paw, and the dog yanked its

paw, causing her left shoulder to be yanked also.”

PetSmart next referred her to an urgent care clinic, where a physician noted that

“[the patient] was trimming a mastiff’s nails. The dog lunged and pulled [patient’s]

shoulder[.]” He wrote that Ms. Dyer described her shoulder pain as “aching and sharp”

and diagnosed a strain of the left shoulder, upper arm, and trapezius.

On a later visit to the urgent care, Ms. Dyer added a report of constant, aching, and

sharp pain in her neck.1 On her final visit, the treating physician added Ms. Dyer’s report

of left-shoulder numbness and tingling. He referred her for orthopedic care.

Ms. Dyer selected Dr. Roderick Vaughan from a panel and saw him on September

12. He noted that a mastiff yanked her left arm and pulled and twisted it backward. She

reported left-sided radiating pain from her shoulder to her forearm and tingling in her

fingers. An MRI of the left shoulder and nerve testing of the left upper extremity showed

normal findings. He recommended she see a pain management specialist, and PetSmart

offered her a panel of physicians.

Ms. Dyer selected Dr. Jeffrey Hazlewood. He is board certified in physical and

rehabilitation medicine and pain management and has practiced more than thirty years.

Ms. Dyer saw Dr. Hazlewood twice. At the first visit on October 24, she testified

that he spent more time with her in taking her history than did the physicians she saw

previously. Dr. Hazlewood reported that Ms. Dyer gave a reliable presentation of her

injury and history.

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In responses to requests for admission, Ms. Dyer stated that she did not report neck pain until she saw Dr.

Hazlewood, but this notation shows an earlier report of neck pain.

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He wrote that a “dog pulled down her arm on the left in a hyperextended position

and yanked it, pulling her forward.” He added that Ms. Dyer smacked her head against a

bar and suffered a whiplash of the head. On examination, he noted left-shoulder pain,

shooting pain into the left upper extremity, numbness, tingling, and vibrating sensations

throughout her left upper extremity, and left-upper-extremity weakness.

He ordered an MRI of the neck and another nerve test. The testing showed a large,

left-sided herniated disc at the C6-7 level with C7 radiculopathy. He concluded the

condition was work-related. He later referred Ms. Dyer to neurosurgeon Dr. George Lien,

and PetSmart authorized treatment with him.

Dr. Lien has practiced as a board certified neurosurgeon for thirty years. He saw

Ms. Dyer once, in December 2022, and noted her report of injury when knocked over by a

dog that she was grooming. The dog jerked her left arm, and she struck her back and

shoulder area. He recommended fusion surgery because conservative care over several

months was unsuccessful.

During treatment, PetSmart questioned the causation of Ms. Dyer’s neck injury. Dr.

Hazlewood reviewed Ms. Dyer’s records and changed his initial causation opinion because

none of the reports he reviewed included a history that she hit her head. He concluded that

Ms. Dyer may have lied when she told him she hit her head, noting that she had been

diagnosed with a borderline personality disorder, and persons with this diagnosis are

known to lie. Dr. Hazlewood reconsidered the mechanism of injury that Ms. Dyer

described. He concluded that if she did not hit her head, the trauma she described was

insufficient to cause a herniated cervical disc.

Based on Dr. Hazlewood’s revised causation opinion, PetSmart denied the surgery

recommended by Dr. Lien. The fact that Dr. Lien disagreed with Dr. Hazlewood’s

causation opinion did not change the denial.

PetSmart asserted it had no notice that Ms. Dyer hit her head until four months after

the date of injury. The adjuster testified that he would have reviewed video evidence of

Ms. Dyer’s injury at the beginning of the case had he known that she hit her head. In fact,

he asked for the video after receiving Dr. Hazlewood’s report, but it had been erased. 2

PetSmart claimed that its right to investigate this claim was irreparably prejudiced due to

these circumstances.

As to causation, PetSmart argued the failure of Mr. Deselle and several treatment

sources to note that Ms. Dyer hit her head meant that it did not happen. PetSmart relied on

Dr. Hazlewood’s revised causation opinion that the trauma of the dog jerking Ms. Dyer’s

arm was insufficient to have herniated her C6-7 disc unless she also hit her head.

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PetSmart did not introduce evidence as to when the video was erased.

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For her part, Ms. Dyer testified consistently that the dog she was grooming twisted

her arm, spun her around, and she hit her head on the overhead bar. She claimed she

reported that she hit her head each time she described her injury.

Ms. Dyer also testified that she was diagnosed with borderline personality disorder,

depression, and anxiety during her mid-teen years. She was hospitalized for a week for

these conditions. She discontinued medication and counseling after both worsened her

conditions. She continues to experience mental-related symptoms but manages them by

understanding her symptoms, keeping active, and surrounding herself with positive,

supportive people. She denied that her borderline personality disorder causes her to lie.

She patiently, calmly, and openly responded to vigorous cross-examination about her

mental health history.

On the issue of her credibility, Ms. Dyer presented the testimony of Mr. Deselle that

he considers her a good and honest employee. Ms. Dyer generally testified consistently

while on the stand, but PetSmart did establish that she drinks alcohol from time to time

despite denying that fact in her deposition.

Ms. Dyer relied on Dr. Lien’s deposition testimony on the issue of causation. He

concluded that the mechanism of the dog jerking her left arm, standing alone, provided

more than fifty percent of the causation of her herniated cervical disc and its need for

surgery. He added that the fact Ms. Dyer sought treatment shortly after the grooming

incident supported his causation conclusion.

He disagreed with Dr. Hazlewood’s opinion that the trauma of the grooming

incident was insufficient to herniate Ms. Dyer’s C6-7 disc unless she hit her head on the

metal bar. He explained that the head acts like a pendulum when sudden force is applied

to the neck. He often sees herniated cervical discs in vehicular collisions where the head

does not strike anything.

Dr. Lien also disagreed with Dr. Hazlewood’s testimony that upper extremity

weakness occurs within a month after a herniated disc. He explained that upper extremity

weakness is caused by a herniated cervical disc impinging a nerve over time. While pain

from the herniated disc occurs near in time to the causative trauma, weakness will develop

later. In addition, Dr. Lien testified the fact that Ms. Dyer’s first nerve test was negative

did not show the absence of a herniated disc when the test was performed. He often sees

clear MRI evidence of a herniated disc in cases where nerve testing is normal.

PetSmart relied on Dr. Hazlewood, who testified that several factors led him to

change his causation opinion. First, the reports predating his involvement did not note that

Ms. Dyer reported hitting her head at the time of injury. A second factor was her borderline

personality disorder, which could cause her to lie. Third, he stated that ninety percent of

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all diagnoses of herniated cervical discs are unaccompanied by a history of a causative

traumatic event.

In support of his causation opinion, Dr. Hazlewood testified that, without striking

her head on something, the mechanism of injury described by Ms. Dyer would not have

caused a herniated cervical disc. He also stated that, if she had suffered a herniated disc in

the described work incident, she should have developed upper extremity weakness within

three or four weeks. He noted that none of the examiners who saw her during that time

noted weakness on examination.

Findings of Fact and Conclusions of Law

In this expedited hearing, Ms. Dyer must show that she will likely prevail at trial in

proving her entitlement to the requested surgery. Tenn. Code Ann. § 50-6-239(d)(1)

(2023). Specifically, she must carry this evidentiary burden in establishing that she gave

PetSmart timely notice and that her injury arose primarily out of and in the course and

scope of employment.

Notice

The Workers’ Compensation Law requires that an employee give notice of a work

injury within fifteen days after its occurrence. This notice must state “the time, place,

nature, and cause of the accident resulting in injury[.]” Tenn. Code Ann. § 50-6-201(a)(1)-

(2). (Emphasis added.)

Here, PetSmart’s store leader, Mr. Deselle, confirmed that Ms. Dyer gave him

verbal notice of her work accident the day it occurred. Later, within fifteen days of the

date of injury, he completed an incident report documenting the date, time, place, and a

description of Ms. Dyer’s accident. Though the report described how the dog yanked and

pulled Ms. Dyer’s arm, it did not state that she hit her head during the accident. Ms. Dyer

testified she told Mr. Deselle that she hit her head. He testified that he did not recall her

giving him that detail.

PetSmart argued that Ms. Dyer’s notice was defective because, had it known she hit

her head, it would have reviewed video surveillance of the incident before it was erased.

Thus, it claimed, the delay in receiving notice that Ms. Dyer hit her head prejudiced its

right to investigate her claim.

The Court holds that Ms. Dyer will likely prevail at trial in showing she gave timely

notice of her accident and that she hit her head. The incident report shows that Ms. Dyer

gave PetSmart timely notice of the time, place, nature, and cause of the accident. As to

whether Ms. Dyer told the store leader that she hit her head, the Court finds credible her

testimony that she timely communicated that detail to the store leader.

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In support of the above finding, the Court observed Ms. Dyer’s testimony during

the expedited hearing. She testified calmly, patiently, openly, and confidently about the

details of her accident, including under thorough cross-examination. She further testified

candidly about the sensitive subject of her mental health history. See Kelley v. Kelley, 445

S.W.3d 685, 694-695 (Tenn. 2014) (discussing indicia of witness credibility.) In further

corroboration of her reputation for honesty, PetSmart’s store manager testified that she was

a good and honest employee. He showed his confidence in her honesty by assigning her

to work in a position handling money.

Causation

To receive benefits, an employee must show that a condition and need for treatment

arises primarily out of and in the course and scope of employment. Proving causation

requires expert medical testimony that the employment caused more than fifty percent of

the alleged condition and need for treatment, considering all causes. The causation opinion

of a treating physician selected from a panel is presumed correct but is rebuttable. Tenn.

Code Ann. § 50-6-102(12)(A)-(E).

Here, the issue is whether Dr. Lien’s favorable opinion or Dr. Hazlewood’s

unfavorable one better explains the causation of Ms. Dyer’s herniated cervical disc. To

decide, the Court reviews the qualifications of the physicians, the circumstances of their

examinations, and the information available to them in formulating their opinions weighed

against the presumption in favor of Dr. Hazlewood’s opinion. Lentz v. Coca-Cola Consol.,

Inc., 2023 TN Wrk. Comp. App. Bd. LEXIS 34, at *10 (July 19, 2023).

Nothing about Drs. Lien’s and Hazlewood’s qualifications places one over the other.

Both are qualified physicians with experience relative to the central issue. The fact that

Dr. Hazlewood saw Ms. Dyer twice, while Dr. Lien saw her once, is not an important

distinction. Both physicians had access to the same information in considering their

causation opinions.

The distinction between their opinions rests in the factors each felt important in

deciding causation. Dr. Lien gave two reasons for assigning more than fifty percent

causation of Ms. Dyer’s herniated cervical disc to her dog-grooming accident. He said,

first, that even without striking her head, the trauma of the dog jerking her arm was

sufficient to herniate her C6-7 disc; and secondly, she began seeking treatment for

symptoms for a cervical injury shortly after she sustained and reported being injured in the

dog-grooming accident.

Dr. Hazlewood initially concluded that Ms. Dyer’s work accident caused her neck

injury. He changed his opinion upon learning that only he recorded a history that she hit

her head when injured. Since the other physicians did not record that Ms. Dyer hit her

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head, Dr. Hazlewood assumed that Ms. Dyer lied to him about that detail. He then removed

the impact to the head from his causation analysis and concluded that the trauma of the dog

jerking her arm was insufficient to herniate a cervical disc.

The Court assigns little weight to Dr. Hazlewood’s opinion because essential

elements of his analysis—that Ms. Dyer did not hit her head at the time of her accident and

lied to him that she did—are speculative. Dr. Hazlewood’s comment that persons

diagnosed with borderline personality disorders lie is unpersuasive for several reasons.

First, he did not support his comment with medical evidence. Second, the fact that persons

with this condition “have been known to lie” does not, standing alone, mean that Ms. Dyer

lied. The person who testified who knew Ms. Dyer best, her store leader Mr. Deselle,

testified that Ms. Dyer is an honest employee. Third, Ms. Dyer had no reason to lie about

hitting her head because, when she gave that history, her case was accepted as

compensable. She could not have then known that Dr. Hazlewood would later diagnose a

disc injury and assign importance to the detail about hitting her head.

The Court must also consider Ms. Dyer’s testimony in the causation analysis. The

Supreme Court has consistently held that an employee’s assessment as to his or her own

physical condition “is competent testimony that is not to be disregarded.” Limberakis v.

Pro-Tech Sec., Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 53, at *6 (Sept. 12, 2017). The

Court finds credible Ms. Dyer’s testimony that she hit her head during the accident and

reported that detail when she described her injury. The Court bases this finding on the

credibility factors discussed above.

Further, other than not including that Ms. Dyer reported hitting her head, the

histories recorded by Mr. Deselle and the medical personnel support the credibility of Ms.

Dyer’s description of her accident. The omission from those reports that she hit her head

does not necessarily lead to the conclusion that she did not report that detail. The detail

about hitting her head may not have been recorded because Ms. Dyer’s primary complaints

were shoulder and arm pain. Dr. Hazlewood may have noted that Ms. Dyer hit her head

when the other historians did not because, as Ms. Dyer testified, he took far more time in

taking her history. A comparison of the histories clearly shows Dr. Hazlewood’s is far

more detailed than the others.

As to Dr. Hazlewood’s causation opinion, it is rebuttably presumed correct.

However, his change of opinion based on his personal, factual conclusion that Ms. Dyer

lied about hitting her head raises serious questions about the validity of his opinion. At

trial, the Court must weigh credibility, and as noted above Ms. Dyer has been found

credible. Also, there is no evidence that Ms. Dyer experienced neck, shoulder, or arm

symptoms before the accident at PetSmart. Therefore, based upon the logic and reasoning

of Dr. Lien’s opinion, the Court holds that his opinion that Ms. Dyer’s neck injury is work-

related, with her credible testimony, rebuts Dr. Hazlewood’s unfavorable causation opinion

by a preponderance of the evidence.

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For these reasons, the Court holds that Ms. Dyer will likely prevail at trial in proving

that her herniated cervical disc arose primarily out of and in the course and scope of

employment.

IT IS, THEREFORE, ORDERED as follows:

1. PetSmart shall authorize Dr. Lien to perform the prescribed surgery. It shall

promptly take the necessary steps to schedule the surgery.

2. This case is set for a Status Hearing at 9:00 a.m. Central Time/10:00a.m. Eastern

Time on March 27, 2024. You must call (615) 741-3061 or toll-free at (855) 747-

1721 to participate in the Status Hearing. You must call on the scheduled date/time

to participate. Failure to call in may result in a determination of the issues without

your further participation.

3. Unless interlocutory appeal of the Expedited Hearing Order is filed,

compliance with this Order must occur no later than seven business days from

the date of entry of this Order as required by Tennessee Code Annotated

section 50-6-239(d)(3). The Insurer or Self-Insured Employer must submit

confirmation of compliance with this Order to the Bureau by email to

WCCompliance.Program@tn.gov no later than the seventh business day after

entry of this Order. Failure to submit the necessary confirmation within the

period of compliance may result in a penalty assessment for non-compliance.

4. For questions regarding compliance, please contact the Workers’ Compensation

Compliance Unit via email WCCompliance.Program@tn.gov.

ENTERED December 4, 2023.

_____________________________________

Judge Thomas Wyatt

Court of Workers’ Compensation Claims

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APPENDIX

Exhibits:

1. Affidavit of Destiny Dyer

2. C-42 selecting Dr. Roderick Vaughan

3. C-42 selecting Dr. Jeffrey Hazlewood

4. PetSmart incident report

5. Telehealth Consultation Report

6. Responses to Employer’s First Requests for Admissions

7. Responses to Employer’s First Set of Interrogatories

8. Photographs (collective A-F)

9. Medical Records

 CareNow Urgent Care

 Dr. Roderick Vaughan

 Maury Regional Medical Center

 Dr. Jeffrey Hazlewood

 Results Physiotherapy

 Dr. George Lien

10. Transcript of the deposition of Dr. Hazlewood

11. Transcript of the deposition of Dr. Lien

12. Photograph (identification only-sustained relevance objection)

13. Wage Statement

14. Intake sheet

15. Page 13 of the deposition of Destiny Dyer

Technical record:

1. Petition for Benefit Determination

2. Dispute Certification Notice and statement of additional issues

3. Request for Expedited Hearing

4. Motion to Present Testimony by Videoconference

5. Order allowing testimony by videoconference

6. Employer’s Pre-Hearing Statement

7. Employer’s Witness and Exhibit List

8. Employee’s Pretrial Brief

9. Employee’s Witness List

10. Transfer Order

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CERTIFICATE OF SERVICE

I certify that a copy of the Order was sent as indicated on December 4, 2023.

Name Email Service sent to:

Cindy E. (Harris) Harlow X cindy@flexerlaw.com

Employee’s Attorney meredith@flexerlaw.com

Allen Grant X agrant@eraclides.com

Benjamin T. Norris bnorris@eraclides.com

Employer’s Attorneys

______________________________________

Penny Shrum, Court Clerk

Wc.courtclerk@tn.gov

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