Bass, Clarence v. The Home Depot U.S.A., Inc. , 2017 TN WC 5 ( 2017 )


Menu:
  •            TENNESSEE BUREAU OF WORKERS' COMPENSATION
    IN THE COURT OF WORKERS' COMPENSATION CLAIMS
    AT NASHVILLE
    Clarence Bass,                           )       Docket No. 2016-06-1038
    Employee,                          )
    v.                                       )       State File No. 59924-2014
    The Home Depot U.S.A., Inc.,             )
    Employer,                           )       Judge Kenneth M. Switzer
    And                                      )
    New Hampshire Insurance Co.,             )
    Carrier.                            )
    COMPENSATION HEARING ORDER
    This matter came before the undersigned Workers' Compensation Judge on
    January 10, 2017, for a Compensation Hearing. The central legal issue is the
    compensability of Mr. Bass' claim and specifically whether the requisite causal link
    exists between an alleged injury at work and Mr. Bass' resulting need for two surgical
    procedures. The authorized treating physician and an independent medical examiner
    reached different conclusions on these and other issues. For the reasons set forth below,
    the Court holds the independent medical examiner's opinion failed to overcome the
    statutory presumption of correctness regarding causation afforded to the authorized
    treating physician's opinion. Thus, the Court denies Mr. Bass' petition for benefits.
    History of Claim
    Mr. Bass worked at The Home Depot in Nashville as a lot associate. He sustained
    an injury at work on August 1, 2014, while moving shopping carts. The "flap" beneath a
    cart handle flipped over and struck him on the right hand and wrist. Mr. Bass clarified
    the part that hit him was metal and not the plastic flap where small children ride in the
    cart. He had no problems with his hand or wrist before the work incident.
    Mr. Bass selected Dr. Philip Coogan as the authorized treating physician and saw
    him ten times from February through December 2015. Dr. Coogan is board-certified in
    hand surgery as well as orthopedic and plastic surgery. He testified Mr. Bass became
    1
    injured "ten months previously, he had been moving some shopping carts and the plastic
    flap that apparently covers the area children put their legs through the cart flipped over
    and hit him on the dorsum of the wrist." (Emphasis added). Dr. Coogan further testified
    the date of injury was April2014 but later corrected himself, noting he first saw Mr. Bass
    "seven months, something like that, after the events that - on-the-job events." After
    diagnosis and treatment, Dr. Coogan recommended a carpal tunnel release and a proximal
    row carpectomy, which he performed on July 24. The Home Depot denied the claim
    before the surgery based on communication with Dr. Coogan indicating that his treatment
    no longer related to the work injury. Before undergoing surgery, Mr. Bass informed his
    supervisor at The Home Depot regarding the denial. Dr. Coogan determined Mr. Bass
    reached maximum medical improvement on November 25 and assessed an eight-percent
    impairment rating to the body as a whole.
    As for causation, Dr. Coogan concluded the injury and treatment were unrelated to
    the work incident. He described the mechanism of injury as "fairly low-energy." Dr.
    Coogan agreed in a causation letter to the adjuster and in his deposition testimony that,
    within a reasonable degree of medical certainty, Mr. Bass did not sustain an injury by
    accident that necessitated the carpal tunnel surgery. He further stated the proximal row
    carpectomy was unrelated to the work injury. According to Dr. Coogan, Mr. Bass "had
    the same diagnosis before the injury as he had after the injury. It was posttraumatic
    instability and arthritis in his wrist." He explained he generally considers three factors
    when determining causation: the "degree of violence of the event, the time duration of the
    event and the degree of anatomic abnormality." However, his testimony focused almost
    entirely on the first factor only. Dr. Coogan said it is "very common for people who have
    posttraumatic arthritis to have events that sort of bring their symptoms to their attention."
    He also testified regarding causation as follows:
    Q:     And if he [Mr. Bass] -let's say he did incorrectly give you a history
    and it had actually been some kind of metal portion of the shopping cart, ..
    . would that affect your opinion?
    A:      Not significantly.
    Q:     So what I think I'm hearing is just that the carpal tunnel is not
    related to the work injury; is that correct?
    A:      That's correct.
    Q:     And that the posttraumatic instability and arthritis ts either not
    related or modestly related to the work injury?
    A:      That's right.
    2
    Q:     Would that be less than 50 percent?
    A:     Yes.
    Q:    Okay. And have all of your answers today been provided within a
    reasonable degree of medical certainty?
    A:     Yes.
    (Ex. 2 at 30)(Emphasis added). On cross-examination, Dr. Coogan acknowledged Mr.
    Bass' different version of how he became injured but did not alter his causation opinion
    even if that version proved to be correct.
    Turning now to the independent medical examiner, Dr. Landsberg is a board-
    certified orthopedic surgeon who examined Mr. Bass once. In his report, Dr. Landsberg
    summarized Mr. Bass' medical history and treatment and reviewed the diagnostic reports.
    He testified that Mr. Bass told him the metal part underneath the cart, and not the plastic
    flap, hit his hand, which is heavier and made out of a more rigid material. Dr. Landsberg
    generally agreed with Dr. Coogan's diagnosis and treatment. As for causation, he
    testified the "primary cause" of Mr. Bass' surgery was "pain and swelling and stiffness"
    from the work injury. He also stated, "based on that history, with the symptoms starting
    right after the injury, with that swelling, that the carpal tunnel syndrome was secondary to
    the work injury and leading to the surgery." (Ex. 3 at 27.) As for the primary cause for
    the proximal row carpectomy, Dr. Landsberg stated Mr. Bass "took a blow to the wrist ..
    . He developed pain and more stiffness and swelling - or stiffness and swelling. And
    had it not been for that, he probably wouldn't have had the surgery."
    Id. at 27-28.
    Dr.
    Landsberg's report reads, "Based on this history, his problem was at least aggravated and
    advanced by the work injury. This is within a reasonable degree of medical certainty.
    All his symptoms came on after the work injury." Dr. Landsberg also assigned an
    impairment rating of eleven percent to the body as a whole.
    Post-surgery Return to Work
    Mr. Bass returned to work on September 6. He testified The Home Depot initially
    assigned him to light-duty in the garden center but later returned him to full-duty lot
    attendant until his termination in May 2016. The Home Depot hired him part-time at
    $8.50 per hour. Per the wage statement, he worked reduced hours during his orientation
    period.
    Michael Brown, the store manager, testified regarding the incidents precipitating
    Mr. Bass' termination. Specifically, he wrote Mr. Bass disciplinary infractions three
    times. The first notice documented three absences and one late arrival by ten minutes;
    the second notice stated Mr. Bass disregarded customers' "loading needs" on two
    3
    separate occasions; and the third notice indicated Mr. Bass left the store with "product"
    and placed it in his vehicle. On cross-examination, Mr. Brown nonetheless agreed Mr.
    Bass was a "good" employee. The Home Depot's disciplinary policy is "progressive."
    Per Mr. Brown, Mr. Bass underwent approximately two weeks' orientation about
    company policies, including one day of instructor-led training followed by computer-
    based instruction.
    To explain the write-ups, Mr. Bass testified he called in sick on the days he was
    absent and it was not unusual to be late once over the course of two years' time. He
    acknowledged disregarding a customer whom he stated was "talking out of line," but
    asked his supervisor to find another worker to help the customer. As for removing
    "product," Mr. Bass explained a vendor in the garden center told him he could have a few
    tomato plants, which were non-saleable. His efforts to find another job since the
    termination were unsuccessful.
    Requested Relief
    Mr. Bass argued he sustained a compensable injury. He seeks medical benefits
    and in particular reimbursement of unpaid medical bills. He presented copies of these
    bills to Dr. Landsberg, who testified they were reasonable and necessary. He also seeks
    temporary total disability benefits from the date of surgery until his return to work, July
    24 through September 6, totaling six weeks and three days. He additionally asks for
    permanent partial disability benefits in accordance with Dr. Landsberg's eleven-percent
    rating. As for the correct compensation rate, Mr. Bass argued the Court should exclude
    his reduced wages for the time he was in orientation. Finally, he asks for an increase of
    his award under Tennessee Code Annotated section 50-6-207(3)(b)(i)-(ii) (2016) and
    contends The Home Depot fired him without cause.
    In response, The Home Depot argued Mr. Bass' injury is not compensable, but in
    the event the Court finds otherwise, it should adopt Dr. Coogan's eight-percent rating and
    calculate the award including all sums on the wage statement. The Home Depot
    additionally argued it terminated Mr. Bass for cause, so that the statutory multipliers are
    inapplicable under Tennessee Code Annotated section 50-6-207(3)(D)(ii).
    Findings of Fact and Conclusions of Law
    Mr. Bass, as the employee in a workers' compensation claim, has the burden of
    proof on all essential elements of the claim. Scott v. Integrity Staffing Solutions, 2015 TN
    Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). At a compensation hearing, Mr.
    Bass must establish by a preponderance of the evidence that he is entitled to the requested
    benefits. Willis v. All Staff, TN Wrk. Comp. App. Bd. LEXIS 42, at *18 (Nov. 9, 2015);
    see also Tenn. Code Ann. § 50-6-239(c)(6) ("[T]he employee shall bear the burden of
    proving each and every element of the claim by a preponderance of the evidence."). In
    4
    addition, the opinion of the authorized treating physician "shall be presumed correct on
    the issue of causation but this presumption shall be rebuttable by a preponderance of the
    evidence." Tenn. Code Ann. § 50-6-102(14)(E).
    Causation
    Mr. Bass' claim involves an incident that he alleged caused injuries and the
    resulting need for two surgical procedures performed concurrently: carpal tunnel release
    and proximal row carpectomy. The definitions of"injury" are determinative.
    Under the Workers' Compensation Law, an injury means "an injury by accident ..
    . arising primarily out of and in the course and scope of employment, that causes ... the
    need for medical treatment[.]" Tenn. Code Ann. § 50-6-102(14). For an injury to be
    accidental, it must be "caused by a specific incident, or set of incidents, arising primarily
    out of and in the course and scope of employment, and is identifiable by time and place
    of occurrence, and shall not include the aggravation of a preexisting disease, condition or
    ailment unless it can be shown to a reasonable degree of medical certainty that the
    aggravatioq arose primarily out of and in the course and scope of employment." Tenn.
    Code Ann. § 50-6-102(14)(A). As for alleged aggravations, "The pertinent statute makes
    clear that an aggravation of a pre-existing condition is a compensable injury when 'it can
    be shown to a reasonable degree of medical certainty that the aggravation arose primarily
    out of and in the course and scope of employment."' Miller v. Lowe's Home Centers,
    Inc., 2015 TN Wrk. Comp. App. Bd. LEXIS 40, at *12 (Oct. 21, 2015), citing Tenn.
    Code Ann. § 50-6-102(14)(A) (2015). Mr. Bass can satisfy the burden of proving a
    compensable aggravation if: 1) there is expert medical proof that the work accident
    "contributed more than fifty percent (50%)" in causing the aggravation, and 2) the work
    accident was the cause of the aggravation "more likely than not considering all causes."
    Miller, at* 15, citing Tenn. Code Ann. § 50-6-102(14)(B)-(C).
    The Court observed Mr. Bass' demeanor during the hearing and finds him
    credible. Thus, the Court finds he injured his hand and wrist when the metal part of a
    shopping cart struck him on August 1, 2014. The more difficult question is whether that
    incident caused his carpal tunnel syndrome and aggravated his preexisting arthritis,
    resulting in the need for treatment and surgery.
    The medical experts differ. In these situations, the Appeals Board affirmed
    longstanding Tennessee law when it held, "A trial court generally has the discretion to
    choose which expert to accredit when there is a conflict of expert opinions." Brees v.
    Escape Day Spa & Salon, 2015 TN Wrk. Comp. App. Bd. LEXIS 5, at *14 (Mar. 12,
    2015) (internal citations omitted). In evaluating conflicting expert testimony, this Court
    may consider, among other things, "the qualifications of the experts, the circumstances of
    their examination, the information available to them, and the evaluation of the importance
    of that information through other experts." ld.
    5
    Applying these factors, the Court initially finds both experts bear similar
    qualifications, so that this factor favors neither expert. With regard to the circumstances
    of their evaluation, Dr. Coogan saw Mr. Bass multiple times over several months, while
    Dr. Landsberg examined him once in anticipation of litigation. "It seems reasonable that
    the physicians having greater contact with the Plaintiff would have the advantage and
    opportunity to provide a more in-depth opinion, if not a more accurate one." Orman v.
    Williams Sonoma, Inc., 
    803 S.W.2d 672
    , 677 (Tenn. 1991). Thus, this factor favors Dr.
    Coogan. It appears both physicians relied upon the same diagnostic testing to reach their
    conclusions, but they ascribed differing mechanisms of injury.
    For his part, Dr. Coogan identified three considerations- the violence of the event,
    the time duration of the event and the degree of anatomic abnormality. Dr. Coogan
    clearly based his initial conclusion on the incorrect belief that the event in question was
    the impact of a plastic flap on Mr. Bass' hand and wrist, a "fairly low-energy" event.
    Importantly, however, he testified that even if the event were more severe than he
    thought, it would "not significantly" alter his opinion. Dr. Coogan did not address
    whether the event aggravated the pre-existing injury; although there is lengthy discussion
    concerning the effect of an injury on his pre-existing arthritis, the Court cannot find a
    direct question on aggravation in Dr. Coogan's testimony. He nonetheless firmly stated
    he cannot conclude within a "reasonable degree of medical certainty" that the work
    accident was the primary cause of the need for Mr. Bass' carpal tunnel release or
    proximal row carpectomy.
    Dr. Landsberg reached a different causation conclusion, basing his opinion largely
    on a history of a more violent event than Dr. Coogan noted. Specifically, Dr. Landsberg
    stated the "primary cause" of Mr. Bass' surgery was "pain and swelling and stiffness"
    from the work injury. He wrote in his report, "based on his history, his problem was at
    least aggravated and advanced by the work injury." However, nowhere did Dr.
    Landsberg find the incident contributed more than fifty percent in causing the
    disablement, considering all causes, as the statute requires. Moreover, Dr. Landsberg's
    report concluded in relevant part, "[B]ased on his history, his problem was at least
    aggravated and advanced by the work injury. This is within a reasonable degree of
    medical certainty. All his symptoms came on after the work injury." (Emphasis added.)
    Simply because Mr. Bass started having problems with his hand and wrist after the
    incident does not necessarily mean the work incident caused the carpal tunnel syndrome
    and the aggravation of the pre-existing arthritis.
    Thus, the Court holds Dr. Landsberg's opinion is insufficient to overcome the
    presumption of correctness afforded to Dr. Coogan's opinion by a preponderance of the
    evidence. Mr. Bass failed to establish by a preponderance of the evidence that he
    sustained an injury by accident arising primarily out of and in the course and scope of
    employment or an aggravation of a pre-existing condition arising primarily out of and in
    6
    the course and scope of employment. His claim for workers' compensation benefits is
    denied.
    Alternative Findings
    Solely in the event that an appellate body finds error in the compensability
    holding, the Court makes the following alternative findings for the sake of judicial
    economy. See Cunningham v. Shelton Sec. Serv., 
    46 S.W.3d 131
    , 137-138 (Tenn. 2001).
    ("The trial court should . . . hear the entire case and make appropriate findings of fact,
    and alternative findings when necessary, for appellate review.")
    The Court holds in the alternative that the correct impairment rating is eight
    percent to the body as a whole, per Dr. Coogan's conclusion. His rating is presumed
    correct; see Tenn. Code Ann. § 50-6-204(k)(7). Nothing within Dr. Landsberg's
    testimony or report indicates that Dr. Coogan's rating is incorrect in method or in
    application of the American Medical Association Guides. The two experts merely
    reached different conclusions. Thus, the presumption of correctness must stand. Further,
    in accordance with the opinions of both experts, the surgical procedures were medically
    necessary. The medical bills relative to the procedures were reasonable and necessary.
    Additionally, Mr. Bass' compensation rate is $282.63, excluding the period when he
    earned less while training. Finally, The Home Depot terminated Mr. Bass for cause, so
    that his award of permanent partial disability benefits is not subject to application of the
    enhancement factors. See Tenn. Code Ann. § 50-6-207(3)(D)(ii).
    IT IS, THEREFORE, ORDERED as follows:
    1. Mr. Bass' claim is denied on the ground of compensability.
    2. The Home Depot shall pay the $150.00 filing fee under Tennessee Compilation
    Rules and Regulations 0800-02-21-.07 (2016).
    3. The Home Depot shall file an SD-1 within ten days of entry of this Judgment.
    ENTERED this the 25th day of January, 2017.
    udge Kenneth M. Switzer
    Court of Workers' Com pen
    7
    APPENDIX
    EVIDENCE
    1. Affidavit
    2. Deposition of Dr. Landsberg
    3. Deposition of Dr. Coogan
    4. Wage statement
    5. Photograph
    6. Associate statement
    7. Notice ofDenial
    8. Progressive Disciplinary Notices
    9. Performance and D~ve1opment Summaries
    TECHNICAL RECORD
    1. Petition for Benefit Determination
    2. Employee's Pre-Mediation Position Statement
    3. Dispute Certification Notice
    4. Petition for Benefit Determination
    5. Employer's Pre-Mediation Position Statement
    6. Employee's Pre-Hearing Brief
    7. Witness and Exhibit List (Employee)
    8. Witness and Exhibit List (Employer)
    9. Dispute Certification Notice
    10. Defendant's Trial Brief
    The Court did not consider attachments to Technical Record filings unless
    admitted into evidence during the Compensation Hearing. The Court considered factual
    statements in these filings or any attachments to them as allegations unless established by
    the evidence.
    8
    CERTIFICATE OF SERVICE
    I hereby certify that a true and correct copy of the Compensation Hearing Order
    was sent to the following recipients by the following methods of service on this the 25th
    day of January, 2017.
    Name           Certified Fax Email       Service sent to:
    Mail
    Jill Draughon,                        X          IDraughon@hughesandcoleman.com
    Em loyee's Attorney
    Kenny Veit,                                X     Kenny.veit@leitnerfirm.com
    Em lo er' s Attome
    9
    

Document Info

Docket Number: 2016-06-1038

Citation Numbers: 2017 TN WC 5

Judges: Kenneth M. Switzer

Filed Date: 1/25/2017

Precedential Status: Precedential

Modified Date: 1/10/2021