Worrell, Albert v. Obion County School District ( 2023 )

FILED
Jun 29, 2023
01:12 PM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Albert Randall Worrell ) Docket No. 2021-07-0284
)
v. ) State File No. 105094-2019
)
Obion County School District, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Amber E. Luttrell, Judge )
Affirmed and Certified as Final
This appeal arises from a post-judgment request for medical treatment. The employee
settled his claim for a left shoulder injury in June 2021, and his settlement provided for
“authorized future medical expenses that are directly related to the work injury.”
Thereafter, a physician recommended a total shoulder replacement, which the employer
denied following a utilization review. The Medical Director of the Bureau of Workers’
Compensation disagreed with the “non-certification” recommended by the utilization
review physician and ordered that the treatment be approved. The employer then filed a
petition for benefit determination, arguing that the need for a total shoulder replacement
did not arise primarily from the work accident. Following a hearing, the trial court
concluded the employee had not shown by a preponderance of the evidence that the need
for a total shoulder replacement arose primarily from the work accident, and the
employee appealed. Upon careful consideration of the medical evidence and the record
as a whole, we affirm the trial court’s order and certify it as final.
Presiding Judge Timothy W. Conner delivered the opinion of the Appeals Board in which
Judge Pele I. Godkin and Judge Meredith B. Weaver joined.
Charles L. Holliday, Jackson, Tennessee, for the employee-appellant, Albert Randall
Worrell
Heather H. Douglas, Nashville, Tennessee, for the employer-appellee, Obion County
School District
1
Factual and Procedural Background
Albert Randall Worrell (“Employee”) worked in maintenance for Obion County
School District (“Employer”). On October 24, 2019, Employee suffered a left shoulder
injury while moving bleachers. His claim was accepted as compensable, and both
disability and medical benefits were provided. Employee received authorized treatment
from an orthopedic surgeon, Dr. David Pearce, who diagnosed rotator cuff, labral, and
biceps tears in the left upper extremity. Employee underwent surgery in December 2019
and was eventually placed at maximum medical improvement in October 2020. On June
28, 2021, Employee and Employer entered into a settlement agreement that resolved
Employee’s claim for disability benefits and left open Employee’s right to “reasonable
and necessary, authorized future medical expenses that are directly related to the work
injury.” The agreement also identified Dr. Pearce as Employee’s “authorized treating
physician for future care.” The trial court approved the settlement and entered judgment
based on the terms of the settlement agreement.
In June 2022, Employee underwent an MRI of the left shoulder that was
compared to a July 2020 study. The report noted evidence of a prior rotator cuff repair as
well as “[m]arked glenohumeral degenerative joint disease.” There was no evidence of a
recurrent tear. In July 2022, Dr. Pearce noted continued pain in Employee’s left shoulder
and recommended a referral to his colleague, Dr. Adam Smith, “for discussion [of] a
shoulder replacement.” In his July 18, 2022 report, Dr. Pearce included a diagnosis of
degenerative joint disease.
Dr. Smith first saw Employee on July 25, 2022. He noted that Employee
“recently” began experiencing substantial pain while working. Dr. Smith reviewed the
June MRI and noted that Employee’s rotator cuff was “extremely thin” and that he
suffered from “end-stage arthritis with loose bodies.” X-rays taken on the date of this
visit revealed “proximal humeral migration with end-stage arthropathy.” Consequently,
Dr. Smith recommended left shoulder surgery, including “reverse total shoulder
arthroplasty with open subpectoral tenodesis.”
On August 2, 2022, Dr. Steven Arsht issued a Utilization Review (“UR”) report in
which he recommended that the prescribed surgery not be certified. Dr. Arsht
commented that “imaging results did not show a rotator cuff tear and there is insufficient
documentation of objective findings.” Employer then declined to authorize the
recommended surgery. Pursuant to Tenn. Comp. R. and Regs. 0800-02-06-.07,
Employee appealed the UR non-certification to the Bureau of Workers’ Compensation’s
Medical Director, who disagreed with the UR decision and concluded, “it is appropriate
to require the requested medical benefits,” including “left reverse total shoulder
arthroplasty and biceps tenodesis.” Employer then filed its petition for benefit
determination.
2
The parties took Dr. Pearce’s deposition in October 2022, during which he
testified that the objective findings prior to the first surgery in 2019 included “a
component of underlying preexisting rotator cuff tear . . . and arthritis.” He further
acknowledged that he had “diagnosed some things that preexisted the injury” as well as
“some things that were because of the injury.”
With respect to the need for the total shoulder replacement and tenodesis surgery,
Dr. Pearce acknowledged that he had described “the patient’s [degenerative joint disease]
and progression of arthritis” as “a direct result of his previous rotator cuff repair” in his
July 18, 2022 report. During his deposition, however, Dr. Pearce clarified that
Employee’s degenerative joint disease and arthritis were not a new condition but were
exacerbated by the previous surgical repair. Further, although Dr. Pearce testified that
Employee had experienced an anatomic change in his shoulder condition since the first
surgery, he described it as “[w]orsening of the glenohumeral DJD.” When asked to
address the primary cause of the need for additional surgery, Dr. Pearce responded as
follows:
That’s a difficult one to say and I don’t know that I know the absolute
answer on that . . . . [Employee] had severe underlying problems with his
shoulder. He was doing okay. After the injury and the surgery he was
not[,] so whatever did push him over the threshold of what he had [sic]. As
to say 50 percent, I can’t say. Honestly[,] I wish I could, but that’s such a
difficult one because it’s obviously a massive amount. You know, could
you say right up to 50 percent is preexisting, could you say 75, that’s a
possibility . . . . There’s . . . massive amounts of underlying conditions, but
to assign that, I’m sorry, it’s a difficult one.
Dr. Pearce then described Employee’s case as one with “massive amounts of preexisting
condition with an injury on top of it . . . a functioning person before, not a functioning
person after.”
On cross-examination, Dr. Pearce agreed with Employee’s counsel that “there is
no medically accepted way to quantify [a patient’s] preexisting condition into a
percentage.” However, Dr. Pearce maintained that there were cases where it is “clear”
that the preexisting condition is more than fifty percent the cause of the need for
treatment following a work-related injury. In the present case, Dr. Pearce explained that
Employee did not have end-stage glenohumeral degenerative joint disease when Dr.
Pearce first saw him. However, Dr. Pearce commented that if Dr. Smith had advised him
that “the majority of this is preexisting . . . , I would say I have no problem with that.”
Following a hearing, the trial court concluded that Employee had not come
forward with sufficient evidence that the need for the recommended surgery arose
primarily from the work injury. Consequently, the court denied Employee’s request for
3
an order compelling Employer to authorize the requested surgery. Employee has
appealed.
Standard of Review
The standard we apply in reviewing a trial court’s decision presumes that the
court’s factual findings are correct unless the preponderance of the evidence is otherwise.
See Tenn. Code Ann. § 50-6-239(c)(7) (2022). When the trial judge has had the
opportunity to observe a witness’s demeanor and to hear in-court testimony, we give
considerable deference to factual findings made by the trial court. Madden v. Holland
Grp. of Tenn., Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar
deference need be afforded the trial court’s findings based upon documentary evidence.”
Goodman v. Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at
*6 (Tenn. Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and
application of statutes and regulations are questions of law that are reviewed de novo with
no presumption of correctness afforded the trial court’s conclusions. See Mansell v.
Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are
also mindful of our obligation to construe the workers’ compensation statutes “fairly,
impartially, and in accordance with basic principles of statutory construction” and in a
way that does not favor either the employee or the employer. Tenn. Code Ann. § 50-6-
116 (2022).
Analysis
As a result of the General Assembly’s passage of the 2013 Workers’
Compensation Reform Act (“Reform Act”), for accidents occurring on or after July 1,
2014, an injured employee has the burden of proving that the work-related accident or
injury “contributed more than fifty percent (50%) in causing . . . the need for medical
treatment.” Tenn. Code Ann. § 50-6-102(12)(C). Moreover, such evidence must be “to a
reasonable degree of medical certainty,” meaning that “in the opinion of the physician, it
is more likely than not considering all causes, as opposed to speculation or possibility.”
Tenn. Code Ann. § 50-6-102(12)(D).
In circumstances where an employee alleges that the work accident caused a
compensable aggravation of a preexisting condition, the employee must prove “to a
reasonable degree of medical certainty that the aggravation arose primarily out of and in
the course and scope of employment.” This burden requires proof that “the employment
contributed more than fifty percent (50%) in causing the injury, considering all causes.”
Tenn. Code Ann. § 50-6-102(12)(A) & (B).
In the present case, two issues arose after Dr. Smith recommended a second
surgery. First, the issue of medical necessity was addressed in Dr. Arsht’s UR report and
in the Medical Director’s letter overturning the non-certification recommendation.
4
However, as explained in Tenn. Comp. R. and Regs. 0800-02-06-.01(24), utilization
review is used to evaluate the “necessity, appropriateness, efficiency and quality of
medical services.” Utilization review “does not include the evaluation or determination
of causation or the compensability of a claim.” Id. Thus, although the Bureau’s Medical
Director overturned the UR physician’s non-certification recommendation, that decision
only addressed the medical necessity of the procedure; it was not intended to address
whether the recommended surgery arose primarily out of the work-related accident. That
determination rests with the Court of Workers’ Compensation Claims.
As to the issue of causation, the only evidence submitted for the trial court’s
consideration was Dr. Pearce’s deposition testimony and stipulated medical records,
which contained no statements of causation with respect to the recommended surgery.
Moreover, Dr. Pearce’s testimony established that he could not state whether the work
accident was more than fifty percent the cause of the need for a total shoulder
replacement and tenodesis. Further, Dr. Pearce did not state that the need for the
recommended surgery “more likely than not” arose from the work-related accident
considering all causes. To the contrary, Dr. Pearce described Employee’s preexisting
degenerative condition as “severe” and “massive.” Thus, we conclude the preponderance
of the evidence supports the trial court’s determination that Employee did not meet his
burden of proof with respect to the need for the recommended surgery.
In his brief on appeal, Employee argues that, in circumstances where a preexisting
condition is asymptomatic, and the work accident triggers the symptoms and resulting
disability, it is unfair and – in essence – discriminatory to require an older employee to
prove that his or her work accident was the primary cause of the need for treatment.
Specifically, Employee argues that “his work injury aggravated a previously
asymptomatic condition and brought it into a disabling reality that resulted in a loss of
function.” Employee further argues that it is unrealistic and unfair to expect a physician
to assess a percentage of causation to a previously asymptomatic preexisting condition.
In support of these arguments, Employee points to prior cases in which appellate
courts emphasized that employers take employees as they are and must bear the risk in
circumstances where a work-related accident advances or aggravates a preexisting
condition. Employee also cited cases discussing Tennessee’s direct and natural
consequence rule, which provides that “all the medical consequences and sequelae that
flow from a primary injury are compensable.” See, e.g., Ogden v. McMinnville Tool and
Die, Inc., No. 2016-05-1093, 2018 TN Wrk. Comp. App. Bd. LEXIS 14, at *11 (Tenn.
Workers’ Comp. App. Bd. May 7, 2018). 1
1
Employee did not assert application of the direct and natural consequence rule before the trial court and,
even if this argument had been presented, there is no expert medical evidence supporting a finding that
the need for a total shoulder replacement flowed directly from the work accident.
5
In reviewing the cases Employee cited, however, we note that precedent from the
Tennessee Supreme Court on which Employee relies predates the Reform Act. Although
we agree, in general, that employers take employees as they are at the time of hire, see
e.g., Gautreaux v. Hermitage Hall, No. 2018-06-0366, 2019 TN Wrk. Comp. App. Bd.
LEXIS 12, at *18 (Tenn. Workers’ Comp. App. Bd. Mar. 12, 2019), there are statutory
burdens of proof adopted in the Reform Act that cannot be ignored. Here, Dr. Pearce did
not testify that the work accident was the primary cause of the need for the recommended
surgery. He did not testify that the employment contributed more than fifty percent in
causing the need for the recommended surgery. He did not testify that an aggravation of
Employee’s preexisting condition arose primarily from the work accident. He did not
testify that Employee’s current condition necessitating the recommended surgery was a
“natural consequence” of or “flowed directly from” the work-related injury. In short,
Employee has not met his burden of proof as expressly stated in Tennessee Code
Annotated section 50-6-102(12). Finally, we note that Employee’s argument regarding
the purported discriminatory impact of statutory requirements concerning preexisting
conditions on older employees is more properly directed to Tennessee’s General
Assembly or, if appropriate, in a properly filed constitutional challenge. 2
Conclusion
For the foregoing reasons, we affirm the trial court’s order and certify it as final.
Costs on appeal are taxed to Employee.
2
As we have noted previously and as Employee acknowledged in his brief, neither we nor the Court of
Workers’ Compensation Claims has the authority to address a facial challenge to the constitutionality of
any provision of the Tennessee Workers’ Compensation Law. Johnston v. Siskin Steel & Supply Co.,
Nos. 2015-01-0023, 2018-01-0003, 2018-01-0008, 2020 TN Wrk. Comp. App. Bd. LEXIS 23, at *18-19
(Tenn. Workers’ Comp. App. Bd. Mar. 24, 2020).
6
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Albert Randall Worrell ) Docket No. 2021-07-0284
)
v. ) State File No. 105094-2019
)
Obion County School District, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Amber E. Luttrell, Judge )
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced
case was sent to the following recipients by the following methods of service on this the 29th day
of June, 2023.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Charles L. Holliday X chuckh@garretylaw.com
athomas@garretylaw.com
Heather H. Douglas X hdouglas@manierherod.com
lohman@manierherod.com
Amber E. Luttrell, Judge X Via Electronic Mail
Kenneth M. Switzer, Chief Judge X Via Electronic Mail
Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov
Workers’ Compensation Claims
Olivia Yearwood
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov