Edwards, Jo Carol v. Peoplease , 2021 TN WC 262 ( 2021 )

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.
5
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
6
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
7
• 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 *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
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