Baker, Tamatha v. ViacomCBS, Inc. ( 2023 )

FILED
Aug 11, 2023
02:00 PM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Tamatha Baker ) Docket No. 2022-07-0502
)
v. ) State File No. 33449-2022
)
ViacomCBS, Inc., et. al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Allen Phillips, Judge )
Affirmed and Remanded
In this interlocutory appeal, the employer appeals the trial court’s order for medical
benefits, including a total knee replacement, in light of evidence indicating the employee
had a pre-existing knee condition. The employee suffered a fall at work, resulting in
complaints of pain in the left knee. Following conservative treatment, the employee’s
authorized physician recommended a total knee replacement. The employer declined to
authorize the procedure based on questionnaire responses from the treating physician.
After the denial, the employer received medical records from two providers indicating the
employee had a history of left knee complaints within months of the work accident, as well
as a prior surgery to the left knee in 2012. At the expedited hearing, the employee presented
testimony from the authorized physician stating her work injury was the primary cause of
her need for surgery. The trial court found the employee was likely to prevail at a hearing
on the merits and ordered the employer to provide medical treatment, including the
recommended surgery, and temporary total disability benefits. The employer has appealed.
Upon careful consideration of the record, we affirm the trial court’s order and remand the
case.
Judge Meredith B. Weaver delivered the opinion of the Appeals Board in which Presiding
Judge Timothy W. Conner and Judge Pele I. Godkin joined.
J. Allen Callison, Brentwood, Tennessee, for the employer-appellant, ViacomCBS, Inc.
Rhoberta R. Orsland, Memphis, Tennessee, for the appellee, Tamatha Baker
1
Factual and Procedural Background
Tamatha Baker (“Employee”) was working for ViacomCBS, Inc. (“Employer”), on
May 2, 2022, when a co-worker’s forklift maneuver caused her left leg to be snagged and
pulled her down to the floor. Employee was initially seen at Physician’s Quality Care,
where she was diagnosed with a sprain of the left knee. Ultimately, that provider referred
her to an orthopedic specialist, and Employer provided a panel. Employee selected Dr.
Cameron Knight, whom she saw on May 27, 2022. At the initial appointment with Dr.
Knight, Employee completed intake forms indicating a prior surgery on her right knee. She
did not disclose any prior medical history related to her left knee, which she indicated was
in constant pain. Dr. Knight diagnosed Employee with “severe arthritis,” stating the injury
“stressed her left knee.” He performed a cortisone injection at the appointment, prescribed
physical therapy, and assigned light duty restrictions, which Employer was able to
accommodate.
Employee returned to Dr. Knight the following month and reported that the injection
only helped for a short period of time and that her pain was still constant. Dr. Knight
changed her prescribed medication, recommended continued physical therapy, and
discussed the possibility of an arthroscopy. At the following appointment in July 2022,
Employee asserted she was approved for treatment of both the right and left knee due to
frequent falls on the right knee from instability in her left knee. At that point, based on Dr.
Knight’s opinion that she had “failed conservative care,” he recommended a left total knee
arthroplasty.
Employer sent Dr. Knight a questionnaire dated September 12, 2022, regarding the
referral for surgery. 1 Dr. Knight responded in the affirmative to the following questions
on September 16, 2022:
Do you agree that the primary diagnosis that supports the need for the total
knee replacement is end-stage osteoarthritis?
Do you agree that the end-stage osteoarthritis was not primarily caused by
the at-work accident on [May 2, 2022]?
Dr. Knight added, “[t]he patient had a preexisting osteoarthritic knee that had previously
not been a source of functionally limiting pain until her work injury.” Meanwhile,
Employee returned to Dr. Knight on September 21, 2022, with complaints of continuing
pain. She had been working for Employer with restrictions, and Dr. Knight discussed
taking her out of work to alleviate her pain due to the delay in getting the surgery approved.
1
The copy of the questionnaire contained in the record as part of Collective Exhibit 2 is illegible.
Employer’s attorney read the responses into the record at the expedited hearing, stating, “our copy of the
questionnaire . . . is not ideal.” Employee did not object to the admissibility of the questionnaire or the
reading of Dr. Knight’s responses into the record.
2
In October 2022, Employer denied the recommended knee replacement. Thereafter,
Employee’s counsel sent a questionnaire to Dr. Knight that asked whether the need for the
total knee replacement was hastened by the work accident and whether the pre-existing
condition was exacerbated by the work accident. Finally, the questionnaire asked if the
need for the left knee replacement arose primarily from the work accident. Employee also
filed a petition for benefit determination. Dr. Knight responded to the questionnaire in
December 2022 and answered all three inquiries in the affirmative. Employer then
scheduled an employer’s medical examination with Dr. Jeffrey Dlabach in January 2023.
Dr. Dlabach agreed with Dr. Knight that Employee had end-stage osteoarthritis and
needed a total knee replacement. However, he opined that the need for the knee
replacement was primarily due to the pre-existing arthritic condition, although the work
injury “led to the aggravation of some of the symptomology.” At the time of his
examination, Dr. Dlabach had copies of Employee’s medical records, including records
from a left knee medial meniscectomy and synovectomy performed by Dr. Barry
Hennessey in 2012. There is no indication in the medical records Employee ever discussed
this prior treatment with Dr. Knight.
The parties deposed Dr. Knight prior to the expedited hearing. Although he
admitted there was no indication in his records that Employee informed him of a prior left
knee surgery, it does appear he became aware of the prior surgery at some point during the
course of his treatment based on the following exchange that occurred between Employer’s
counsel and Dr. Knight:
Counsel: Doctor, were you surprised to learn that [Employee] had
undergone arthroscopic surgery in 2012 for her left knee?
Dr. Knight: Surprised?
Counsel: Yes.
Dr. Knight: Not surprised, no.
When asked, Dr. Knight stated that Employee’s prior knee surgery, age, and her
body mass index were “predictive” that she was “likely . . . on the path to [a knee
replacement].” He went on to state that he “would have expected her to be symptomatic
in some form or fashion leading up to an injury” despite Employee’s denial of any
subjective complaints prior to the work injury. On cross examination by Employee’s
counsel, Dr. Knight stated that he still believed, to a reasonable degree of medical certainty,
that the need for the recommended surgery was hastened and primarily caused by the work
injury, and that the recommended treatment was reasonable and necessary. On redirect,
Dr. Knight explained further:
3
This injury was the index for causing a pain level or dysfunction level that
has led to the need to proceed with a knee replacement, irrespective of not
being able to show that objectively on an x-ray.
When Employer’s counsel asked Dr. Knight to describe circumstances where the
work accident would not be the primary cause of the need for a total knee replacement, he
responded, “[i]f there is a known history of dysfunction of the knee and pain and
dysfunction leading up prior to that [work accident].” When asked to clarify the definition
of “dysfunction of the knee,” Dr. Knight stated, “I mean pain, activity, limitations, motion
restrictions attributable to their underlying knee arthritis.” Dr. Knight further stated that
the prior surgery was “evidence of the disease process.” He then explained:
But when someone’s telling me . . . they were not having problems with the
knee from a functional standpoint enough to cause an inability to perform
their job or [activities of daily living] or just day-to-day living until . . . this
injury and the failure to have the pain get better despite conservative care to
address such pain, then to me that injury exacerbated the underlying process
enough to fail conservative care, after which the only other decision is to
proceed with knee replacement.
At the May 18, 2023 expedited hearing, Employee sought an order compelling the
recommended surgery, ongoing temporary total disability beginning September 21, 2022,
a walker prescribed by Dr. Knight, and reimbursement for an unauthorized prescription. 2
By the time of the expedited hearing, Employer had obtained other medical records from
Dr. Misty Allen at Family Care Walk In Clinic (“Family Care”). The Family Care record
of a December 2021 visit, which was about six weeks before she started working for
Employer’s facility, states in “History of Present Illness” that Employee has “bil[ateral]
knee swelling” and “pain h/o trauma in both knees has had [surgery] in the past.” Dr. Allen
prescribed Celebrex for “unspecified knee pain.” Employee returned on January 5, 2022,
with complaints of insomnia. At that visit, she informed the provider that the medication
she was given at the last visit had not helped her knee pain, and Dr. Allen changed her
medication to diclofenac. When Employee returned on February 8, 2022, she complained
that her knee pain started after she had “[been] up on her feet for two hours [at work].” Dr.
Allen made a referral to the West Tennessee Bone and Joint Clinic at that appointment.
Employer contended that it discovered these records after reviewing pharmacy records and
that Employee failed to disclose this treatment in either her discovery responses or her
deposition. 3 Employer asserted that this omission of relevant medical history from her
2
Of note, Dr. Knight’s medical records state that he considered taking Employee off work on September
21, 2022; however, in his deposition, he stated that she was not taken completely out of work until February
2, 2023. Neither party raised the date Employee was taken out of work as an issue at the hearing or on
appeal.
3
Neither the written discovery nor any portion of Employee’s deposition is part of the technical record.
4
recorded statement, discovery responses, and deposition, as well as her failure to inform
her treating physician, are indicia of a lack of credibility. Employer further argued
Employee’s failure to disclose any issues with her knees on her initial pre-employment
medical questionnaire calls into question her honesty. 4
In response to Employer’s argument, Employee testified her initial appointment
with Dr. Allen was because she believed she had COVID-19. She further testified she did
not provide the name of the clinic in her interrogatory responses because she believed the
facility was part of The Jackson Clinic, a group she had identified in those same responses.
She testified that she did not recall a referral to West Tennessee Bone and Joint and that
she did not schedule an appointment with them. Regarding her private life, Employee
testified that, prior to the work injury, she was able to work without any problems, as well
as walk her dog, spend time with her grandchildren, and go hiking, whereas, after the work
injury, she needs assistance with activities of daily living, including going to the bathroom
and getting in and out of the shower.
In assessing the expert medical proof, the trial court found that Dr. Knight’s opinion
regarding causation was entitled to a presumption of correctness pursuant to Tennessee
Code Annotated section 50-6-102(12)(E) because he was the authorized treating physician
chosen from a panel pursuant to Tennessee Code Annotated section 50-6-204(a)(3). Based
on its review of that evidence, the court determined that the need for surgery was primarily
related to the work injury. The trial court further found Employee to be credible, stating
that “[h]er omission of a decade old meniscectomy and visits to a general practitioner do
not detract from the fact that she was not disabled until the accident” and that “no
connection exists between the preexisting conditions and the need for surgery.”
Accordingly, the court awarded the requested medical benefits and ongoing temporary
disability benefits beginning September 21, 2022, until Employee reaches maximum
medical improvement or is able to return to work. Employer has appealed. 5
Standard of Review
The standard we apply in reviewing a trial court’s decision presumes 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.,
4
Employee had been working directly for Employer for about a month after being placed there through a
temporary staffing agency in February 2022. Employer’s counsel stated at the hearing it was not currently
pursuing a willful misrepresentation defense but was instead using the form for impeachment purposes.
5
After filing the notice of appeal, Employer filed a “Motion for Remand” based on its purported discovery
of additional evidence. We denied that motion as the order from the trial court is interlocutory in nature
and, as such, is subject to amendment, revision, or reversal at any time. See Tenn. R. Civ. P. 54.02.
5
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
The appellant raises one issue on appeal, which we restate as follows: whether
Employee met her burden of proof regarding the primary cause of her need for a total knee
replacement given the evidence indicating symptomology prior to her employment not
considered by the authorized treating physician. Employer argues that because Employee
failed to disclose any of her prior medical treatment to the left knee to her authorized
physician, his causation opinion has been called into question and is not a sufficient basis
to award benefits. Specifically, Employer argues the trial court is “to consider the evidence
and make an informed decision on what it anticipates the evidence will be at a full
compensation hearing.” For the reasons explained below, we are unpersuaded.
“[A]n employee need not prove each and every element of his or her claim by a
preponderance of the evidence at an expedited hearing to be entitled to [benefits] but must
instead present evidence sufficient for the trial court to conclude that the employee would
likely prevail at a hearing on the merits.” McCord v. Advantage Human Resourcing, No.
2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Tenn. Workers’ Comp.
App. Bd. Mar. 27, 2015). At this stage in the litigation, Employee has presented both
questionnaire responses and deposition testimony from the authorized treating physician
stating that, although Employee does have pre-existing end-stage arthritis, her current need
for a total knee replacement is due primarily to the work injury. This opinion carries a
presumption of correctness that can be rebutted by the preponderance of the evidence. See
Tenn. Code. Ann. § 50-6-102(12)(E).
In rebuttal, Employer points to Dr. Knight’s statements that “a known history of
dysfunction in the knee” would indicate the work injury may not be the primary cause of
the need for the knee replacement; however, Dr. Knight clarified that his definition of the
term “dysfunction of the knee” is an “inability to perform their job or [activities of daily
living] or just day-to-day living.” Here, the unrefuted testimony at the expedited hearing
was that Employee was able to work without restrictions and perform activities of daily
living prior to the work accident. After the work accident, she required work restrictions
and testified to the difficulties she experienced performing activities of daily living.
6
Employer relies on the 2012 records of a meniscectomy, Dr. Dlabach’s written
report, and primary care records evidencing complaints of bilateral knee pain from
December 2021 to February 2022 in support of its argument that Employee’s pre-existing
condition was proof of prior dysfunction of the knee. In Employer’s view, this evidence
supports a finding that Employee is not likely to prove at trial that the work accident was
the primary cause of her need for a left knee replacement. However, neither Dr. Knight
nor Dr. Dlabach commented on whether the complaints of bilateral knee pain noted at three
visits to a primary care physician would constitute “dysfunction in the knee.” Moreover,
Dr. Dlabach agreed that the work accident aggravated Employee’s pre-existing knee
condition. Without evidence of dysfunction to the knee prior to the work accident and
medical proof supporting that the dysfunction is the primary cause for the need for surgery,
Employer has offered insufficient evidence rebutting Dr. Knight’s causation opinion. As
we have previously stated, “parties and their lawyers cannot rely solely on their own
medical interpretations of the evidence to successfully support their arguments.” Lurz v.
International Paper Co., No. 2015-02-0462, 2018 TN Wrk. Comp. App. Bd. LEXIS 8, at
*17 (Tenn. Workers’ Comp. App. Bd. Feb. 14, 2018). Moreover, “[i]t is the responsibility
of each party to secure whatever expert opinions such party may deem appropriate in
support of its case.” Edwards v. The Job Shoppe U.S.A., No. 2016-05-0727, 2017 TN Wrk.
Comp. App. Bd. LEXIS 26, at *13 (Tenn. Workers’ Comp. App. Bd. Apr. 20, 2017).
At this preliminary stage of the case, we look at whether the preponderance of the
evidence presented supports the trial court’s finding that Employee is likely to prevail at a
hearing on the merits. Mace v. Express Services, No. 2015-06-0059, 2015 TN Wrk. Comp.
App. Bd. LEXIS 19, at *12 (Tenn. Workers’ Comp. App. Bd. June 19, 2015). Employee
testified that prior to the work accident, she worked without restrictions forty hours a week
and overtime as allowed. She further testified that she received bonuses every month that
were partially based on attendance. This testimony was unrefuted by Employer. The trial
court, observing her closely, determined Employee to be a credible witness regarding
current complaints and physical restrictions. There was no proof presented that Employee
was unable to perform her work or had difficulty in her personal life performing activities
of daily living prior to the work accident. When a trial court has seen and heard the
witnesses, considerable deference must be afforded its credibility findings. Tryon v. Saturn
Corp., 254 S.W.3d 321, 372 (Tenn. 2008). Although we respectfully disagree with the trial
court’s conclusion that “no connection” exists between Employee’s pre-existing arthritis
and her need for the total knee replacement, her lay testimony combined with the opinion
of her treating physician are sufficient to support the trial court’s award of benefits at this
interlocutory stage. In short, Dr. Knight’s opinion that the work accident was the primary
cause of the need for the total knee replacement was not sufficiently rebutted. As such, we
do not find the evidence preponderates against the trial court’s determination that
Employee is likely to prevail at a hearing on the merits.
7
Conclusion
For the reasons stated above, we affirm the trial court’s award of medical and
temporary disability benefits and remand the case. Costs on appeal are taxed to Employer.
8
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Tamatha Baker ) Docket No. 2022-07-0502
)
v. ) State File No. 33449-2022
)
ViacomCBS, Inc., et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Allen Phillips, 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 11th day
of August, 2023.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
J. Allen Callison X allen.callison@mgclaw.com
cynthia.yeager@mgclaw.com
Rhoberta R. Orsland X rorsland@forthepeople.com
lwaite@forthepeople.com
Allen Phillips, 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
Matthew Keene
Acting Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-532-1564
Electronic Mail: WCAppeals.Clerk@tn.gov