SCOTT, THEODIS v. HOLLYWOOD FEED, LLC , 2021 TN WC 217 ( 2021 )

FILED
Aug 19, 2021
03:54 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
THEODIS SCOTT, ) Docket No. 2020-08-0564
Employee, )
v. )
HOLLYWOOD FEED, LLC, ) State File No. 35536-2019
Employer, )
And )
NORGUARD NATIONAL INS. CO., ) Judge Amber E. Luttrell
Carrier. )
COMPENSATION ORDER GRANTING BENEFITS
Mr. Scott seeks workers’ compensation benefits for a back injury. Hollywood Feed,
LLC provided authorized treatment for his injury but later denied the claim based on Mr.
Scott’s alleged misrepresentation of his preexisting condition at a physical. The issues
include: 1) whether Mr. Scott’s claim is barred based on misrepresentation; 2) if not,
whether he suffered a permanent aggravation of his preexisting back condition, and 3)
whether he is entitled to permanent total or permanent partial disability with additional
benefits under Tennessee Code Annotated section 50-6-242, or increased benefits under
section 50-6-207.
The Court holds Mr. Scott’s claim is not barred by Hollywood’s misrepresentation
defense, and he sustained a permanent aggravation of his preexisting condition, which
entitles him to permanent total disability benefits.
Claim History
Mr. Scott, age sixty-three, is a high school graduate who worked as a truck driver
for Hollywood Feed. On May 15, 2019, Mr. Scott felt a sharp pain in his low back while
attempting to raise the landing gear on his truck. Hollywood Feed provided authorized
treatment. By referral, Mr. Scott saw Dr. Douglas Cannon, a physical medicine and
rehabilitation specialist.
One year earlier, Mr. Scott sought treatment for gradual low-back pain, which he
attributed to driving his truck at work. Mr. Scott underwent an MRI in April 2018 and was
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referred to Dr. Chiu Yuen To. Dr. To recommended a lumbar epidural steroid injection,
which provided Mr. Scott relief. Mr. Scott testified Dr. To never recommended surgery,
he missed no work and had no further back or leg pain between the May 2018 injection
and his May 2019 injury. Mr. Scott stated he “felt great” until his work injury.
Between Mr. Scott’s 2018 back treatment and his 2019 work injury, he saw Dr.
Kallol Saha in July 2018 for a regular DOT physical. Dr. Saha noted no abnormal findings
and certified Mr. Scott to continue driving.
Treatment and Expert Proof
After his 2019 work injury, Mr. Scott saw Dr. Cannon. He found decreased motion
with pain down Mr. Scott’s back and left leg, weakness on neurological exam, and reduced
sensation in his leg. Mr. Scott also had a mildly positive seated straight leg raise test. Dr.
Cannon wrote the findings suggested nerve root involvement. Dr. Cannon also reviewed
an MRI performed in June 2019. He diagnosed an L5-S1 disc protrusion or herniation,
stenosis with an L5 and S1 radiculopathy, and possible L4 radiculopathy. He recommended
options including referral to a surgeon.
Mr. Scott declined the surgical referral based on his age, so Dr. Cannon treated him
with epidural blocks and medication for nerve pain, and he placed work restrictions. After
five months of treatment and continued symptoms, Mr. Scott still declined to see a surgeon;
therefore, Dr. Cannon ordered a Functional Capacity Evaluation (FCE).
On February 7, 2020, Dr. Cannon reviewed the FCE results, which reported Mr.
Scott provided a “full and consistent effort.” Dr. Cannon used the FCE findings to place
permanent restrictions of light to medium work with no lifting to shoulder height over
twenty-one pounds, no overhead work over sixteen pounds, and no carrying with both arms
over thirty-six pounds. He additionally completed a Physician’s Certification Form stating
Mr. Scott could not return to his pre-injury position as a truck driver because of his
restrictions. Dr. Cannon also testified that Mr. Scott’s past (non-truck driving) jobs were
“physical jobs” and would be “very difficult for him.” He explained it would not be
medically advisable for Mr. Scott to return to his previous jobs because the prolonged
standing, lifting, and positioning would be difficult for him.
Dr. Cannon placed Mr. Scott at maximum medical improvement on February 7 and
noted he would need future medical treatment including medications, therapy, imaging,
possible spine injections and/or surgery. He assigned a fifteen-percent permanent
impairment rating.
Several months later, Mr. Scott returned to Dr. Cannon. On exam, he still had
reduced motion, reduced sensation to light touch in the left L4 to S1 dermatomes, absent
Achilles reflexes, and positive left seated straight leg raise test. Dr. Cannon stated the
findings suggested he still had irritation of the nerve root consistent with L5-S1. Mr. Scott
remained fearful of surgery, so Dr. Cannon refilled his nerve pain medication.
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In his June 2021 deposition, Dr. Cannon testified that Mr. Scott had returned to see
him “recently” with similar symptoms. He recalled that Mr. Scott said he now agreed it
was time for a surgical opinion.
Dr. Cannon reviewed the 2018 medical records and MRI and testified that Mr. Scott
sustained an aggravation of his preexisting back condition that arose primarily out of and
in the course and scope of his employment. He further testified that Mr. Scott’s
“employment contributed more than fifty percent in causing his injury, considering all
causes and that his injury contributed more than fifty percent in causing the . . . disablement,
or need for medical treatment, considering all causes.”
Dr. Cannon compared the pre- and post-injury MRIs and said he did not see a
“significant difference.” He explained that Mr. Scott’s preexisting stenosis and “disc
herniation that can touch his nerves” were aggravated by the work injury. Dr. Cannon
stated, “[Mr. Scott] has underlying pathology. And so biomechanically, that makes him
more at risk of an injury than someone with a healthy back.” He said it would be speculative
to say whether Mr. Scott would have needed or sought any further medical treatment for
his lower back had the work injury not occurred.
Regarding Mr. Scott’s nerve complaints, Dr. Cannon testified that nerve pain does
not happen in a vacuum but is usually triggered by something. Mr. Scott’s trigger was his
work incident that “stressed that area of his spine that was biomechanically abnormal and
predisposed him to have a problem with the nerve.” When asked how, anatomically, the
nerve becomes stressed, Dr. Cannon responded, “[Y]ou could get compression of the disc,
which makes the disc herniation move a little bit and get the nerve. You can compress it.
You can then get inflammation. You can get impedance of the local circulation. There’s
just different things like that that happen.” He further testified that “[Mr. Scott’s] had the
nerve problem pretty much the whole time. That’s been his complaint.”
To challenge Dr. Cannon’s impairment opinion, Hollywood sought a records review
evaluation from Dr. David West. Hollywood introduced a C-32 Standard Form Medical
Report where Dr. West assigned a five-percent permanent impairment. Based on the
conflicting ratings, the parties requested an impairment evaluation through the Medical
Impairment Rating Registry program. Mr. Scott saw Dr. John Lochemes for the evaluation.
Dr. Lochemes testified that he found verifiable radicular pathology based on his
symptomatology, and motor and sensory exams. Dr. Lochemes diagnosed “lumbar spine
intervertebral disc herniations at multiple levels with documented residual radiculopathy.”
Although he agreed with Dr. Cannon that Mr. Scott’s MRI findings did not change, Dr.
Lochemes explained that Mr. Scott’s “nerves simply got worse” after his work injury. He
assigned a twelve-percent permanent impairment.
Dr. David Strauser, Mr. Scott’s vocational expert, testified at trial. He is a professor,
who also works as a vocational consultant and career vocational counselor. Dr. Strauser
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performed a diagnostic vocational interview of Mr. Scott, a review of his medical records,
and a transferrable skills analysis.
Dr. Strauser considered Dr. Cannon’s restrictions from the FCE, his testimony that
prolonged standing, lifting, and positioning would not be medically advisable, and Mr.
Scott’s reported difficulties with prolonged sitting or standing. He testified that Mr. Scott’s
work history included commercial driving or manual labor jobs, which he stated were
classified as low-skill or semi-skilled positions. Based on his work history over the last
fifteen years, Dr. Strauser determined Mr. Scott’s transferrable skills related to truck
driving, but he is precluded from those jobs based on his permanent restrictions. He stated
Mr. Scott is limited to light work but has no transferrable skills to perform a lighter job,
such as a management position or desk work with computers. He further stated his age
makes it harder to acquire new skills. Based on these factors, Dr. Strauser concluded Mr.
Scott has no transferrable skills in the open labor market and is 100 percent vocationally
impaired.
Hollywood objected to the admissibility of Dr. Strauser’s opinion. Counsel argued
that Dr. Strauser did not use a Wide Range Achievement Test, cite to the Dictionary of
Occupational Titles, or use the Oasys job match software in his transferable skills analysis.
The Court took the objection under advisement.
In response to Hollywood’s objection, Dr. Strauser testified he followed the
methodology of Michael Shahnasarian, PhD in his treatise on wage loss and disability
analysis. He stated this book is the “gold standard” in performing vocational evaluations.
Applying that method, he determined Mr. Scott’s pre-injury earning capacity based on his
age, education, and work experience. He stated the next step is to perform educational
testing when necessary. He did not perform a wide range achievement test because it was
unnecessary, since Mr. Scott had a “great work history” and is a high school graduate, so
he assumed Mr. Scott is reading at a high school level. Dr. Strauser then considered Mr.
Scott’s developed skills from his education and work experience and considered his
transferrable skills based on his residual functional capacity from his work restrictions and
self-reported limitations.
Dr. Strauser explained why some of the traditional measures in his profession were
not helpful. He said that Oasys is a software program that is merely a tool an evaluator can
use, but it is outdated because it uses labor market data from 1992. Regarding the
Dictionary of Occupational Titles, he stated it is likewise dated; therefore, he changed
platforms and regularly uses an electronic format called Occupational Network Online (O-
Net) to consider labor market information. He said he indirectly used it here. Dr. Strauser
acknowledged he should have cited to Department of Labor market data in his report, but
he stated it would not have changed his opinion because he uses it regularly to review the
Memphis labor market.
Lay Proof
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Mr. Scott testified he began working for Hollywood in February 2014 loading and
unloading trucks and was later promoted to a full-time driver. Before Hollywood, he drove
a concrete truck for twelve years. Besides commercial driving, he has worked as a machine
operator in metal fabrication and operated a banding machine. He also was a utility worker
assisting a crane operator. In his production position, Mr. Scott was promoted to supervisor
and oversaw daily operations, but he still ran machines and equipment. He described his
past positions as physical and sometimes heavy jobs that required a great deal of standing.
He has never worked in an office or held a job working on a computer.
Hollywood could not accommodate Mr. Scott’s restrictions, and the parties agreed
he was constructively terminated in August 2019. He has not worked since. Mr. Scott
testified he cannot work anymore and “wishes he could.” He stated he has always worked
until this injury and has now applied for Social Security Disability. He has considered
surgery but is hesitant because of his age and the uncertainty that it will improve his
condition.
After Mr. Scott’s work injury and treatment, his left leg pain has never gone away.
He is never pain free. He described pain extending down his buttock, thigh, and to the top
of his left foot. It throbs constantly. He stated he cannot stand or sit for long periods of
time. He sleeps with a pillow under his back, stopped doing activities, and rarely leaves the
house. He takes medication daily to “make the pain bearable.”
Mr. Scott explained the circumstances of his DOT physical to counter Hollywood’s
misrepresentation defense. Mr. Scott stated that when he filled out the intake form at Dr.
Saha’s office, he did not check that he had back problems because that was true at the time;
he had not missed work and had no problems undergoing the physical exam. He also did
not recall Dr. Saha asking him he if he had “any issues.” He believed he accurately
responded to Dr. Saha’s questions. Mr. Scott maintained he never misrepresented any
health issue when Hollywood hired him in 2014.
Emily Facello, Hollywood’s Human Resources Director, testified to support
Hollywood’s misrepresentation defense. She said its drivers must maintain their CDLs, and
she believed they were required to undergo DOT physicals every two years. On cross-
examination, Ms. Facello agreed that Mr. Scott already had his CDL when he was hired in
2014; therefore, he was not required to undergo a physical at that time. Hollywood had no
questions concerning any misrepresentation at the time Mr. Scott was hired.
Findings of Fact and Conclusions of Law
At a compensation hearing, Mr. Scott must prove by a preponderance of the
evidence that he is entitled to the requested benefits. Tenn. Code Ann. § 50-6-239(c)(6)
(2020).
Misrepresentation Defense
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The Court first considers Hollywood’s threshold argument that Mr. Scott’s claim is
barred based on his alleged willful misrepresentation of his 2018 back pain during his DOT
physical. It cited Federal Copper and Aluminum Company v. Dickey, 493 S.W.2d 463, 464
(Tenn. 1973), where the Tennessee Supreme Court adopted the following test for willful
misrepresentation:
(1) The employee must have knowingly and willfully made a false
representation as to his physical condition; (2) the employer must have relied
upon the false representation and this reliance must have been a substantial
factor in the hiring; and (3) there must have been a causal connection
between the false representation and the injury.
Id. at 465 (Emphasis added).
Here, Hollywood acknowledged that Mr. Scott was already employed at the time of
the alleged misrepresentation in 2018 and had worked for Hollywood since 2014.
However, it argued the defense should nevertheless extend to this case, since passing a
DOT physical was a requirement for Mr. Scott to maintain his CDL to continue driving for
Hollywood. Mr. Scott countered that, as a matter of law, Hollywood’s defense must fail
because any alleged misrepresentation did not occur at the time of his hiring in 2014.
The Tennessee Supreme Court’s adoption and application of the willful
misrepresentation defense in Dickey was limited to the hiring context. Hollywood cited no
Tennessee authority extending the defense to an alleged misrepresentation during a
physical exam years after the hiring, and this Court declines to extend the application.
Further, regarding the first Dickey factor, the Court finds Mr. Scott did not knowingly and
willfully misrepresent his physical condition to Dr. Saha when he completed the
questionnaire. Mr. Scott’s uncontroverted testimony was that his back symptoms
completely resolved after his injection, and he was having no back problems whatsoever
at the time of his DOT physical. The Court accepts this testimony and finds his explanation
credible that he believed he accurately represented his condition to Dr. Saha.
Permanency
Hollywood next argued that Mr. Scott did not prove he sustained a permanent
aggravation entitling him to permanent disability benefits. Hollywood cited Milligan v.
Ten-State, Inc., No. 02 S01-9612-CV-00110, 1998 Tenn. LEXIS 69, at *5 (Tenn. Workers’
Comp. Panel Feb. 20, 1998), where the Panel addressed whether an employee who alleged
an aggravation of a preexisting condition was entitled to permanent disability benefits. The
Panel held, “While an aggravation of a preexisting condition is compensable, in order to
recover benefits for permanent disability based upon such aggravation, the aggravation
must be permanent, and not the mere normal or expected progress of the preexisting
condition.” Id. at *4-5.
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Under Milligan and other pre-Reform Act cases, Hollywood argued that Dr. Cannon
did not testify to a permanent anatomic change, advancement, or aggravation of Mr. Scott’s
preexisting condition. It asserted the only time Dr. Cannon used the term “permanent” was
regarding restrictions. Hollywood also pointed to Dr. Cannon’s testimony that he did not
see a “significant change” in Mr. Scott’s pre- and post-injury MRIs.
Mr. Scott countered that a combination of the lay proof and Dr. Cannon’s testimony,
taken as a whole, proved that his work injury permanently aggravated his previously
asymptomatic low-back condition and advanced the severity of his condition to the point
that Dr. Cannon recommended a surgical referral on multiple visits.
The Court carefully analyzed the medical proof. Dr. Cannon stated he could not find
a “significant change” between Mr. Scott’s pre-injury and post-injury MRIs, which implies
no anatomic change on the diagnostic studies. Also, Dr. Cannon did not use the term
“permanent” when he testified regarding Mr. Scott’s aggravation of his preexisting
condition. Likewise, Dr. Cannon never testified that Mr. Scott sustained a temporary
aggravation of his preexisting condition, nor did he testify that Mr. Scott ever returned to
his pre-injury baseline after treatment for the work injury.
Mr. Scott’s uncontroverted testimony was that he felt “great” the morning of May
15, 2019, with no symptoms in his back or leg. However, after the injury and multiple
injections, he has never been pain- or symptom-free in his left leg, which was supported
by Dr. Cannon’s testimony. Throughout treatment, Dr. Cannon consistently noted an
abnormal clinical exam suggesting irritation of a nerve root, and he recommended a
surgical evaluation at multiple visits. At a return appointment after maximum medical
improvement, Dr. Cannon again noted abnormal exam findings suggesting he still had
irritation of the nerve root.
Dr. Cannon testified Mr. Scott’s condition went from asymptomatic to symptomatic
due to his work injury. He stated his nerve symptoms would be triggered anatomically by
a compressed nerve. Dr. Cannon said, “[H]e’s had the nerve problem pretty much the whole
time. That’s been his complaint.” Because of his injury, Dr. Cannon also assigned
permanent restrictions that precluded him from working as a truck driver and resulted in
his termination. Moreover, Dr. Cannon, Dr. West, and Dr. Lochemes all assigned a
permanent impairment rating for Mr. Scott’s work injury. Even after being asked to
apportion Mr. Scott’s impairment rating between his preexisting condition and the work
injury, each physician still testified that Mr. Scott suffered permanent impairment from the
work injury.
Dr. Lochemes also testified that he found verifiable radicular pathology based on
Mr. Scott’s symptomatology, motor exam and sensory exam. Although he stated Mr.
Scott’s MRI findings did not change, Dr. Lochemes explained that his “nerves simply got
worse” after his work injury.
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In summary, no medical proof whatsoever suggested Mr. Scott’s condition was “the
mere normal or expected progress of the preexisting condition” under Milligan to support
Hollywood’s contention that he did not suffer a permanent aggravation. Thus, the Court
holds the preponderance of the evidence showed Mr. Scott suffered a permanent
aggravation of his preexisting back condition, and he is entitled to permanent disability
benefits.
Extent of Permanent Disability
The extent of Mr. Scott’s disability is a question of fact determined by consideration
of all the evidence, both expert proof and lay testimony. Duignan v. Stowers Mach. Corp.,
No. E2018-01120-SC-R3-WC, 2019 Tenn. LEXIS 224, at *22 (Tenn. Workers’ Comp.
Panel June 19, 2019). The relevant factors are Mr. Scott’s skills, training, education, age,
local job opportunities, and ability to work at available jobs in his post-injury condition.
Id. He is entitled to an award of permanent total disability benefits if his injury “totally
incapacitates [him] from working at an occupation that brings [him] an income.”
Before analyzing the expert proof, the Court must rule on Hollywood’s objection to
the admissibility of Dr. Strauser’s opinion under Tennessee Rules of Evidence 702, which
provides:
If scientific, technical, or other specialized knowledge will substantially
assist the trier of fact to understand the evidence or to determine a fact in
issue, a witness qualified as an expert by knowledge, skill, experience,
training, or education may testify in the form of an opinion or otherwise.
Among other requirements, Rule 703 requires a trial court to disallow
testimony in the form of opinion or inference if the underlying facts or data
indicate lack of trustworthiness.
Ailshie v. TN Farm Bureau Fed’n, 2019 TN Wrk. Comp. App. Bd. LEXIS 55, at *5-6 (Oct.
16, 2019). Hollywood further contended his opinion should be excluded under McDaniel
v. CSX Transp., Inc., 955 S.W.2d 257, 265 (Tenn. 1997), where the Tennessee Supreme
Court stated that an “expert’s opinions are [to be] based on relevant scientific methods,
processes, and data.” Id. The Court finds no merit in this argument.
Here, Dr. Strauser is well-qualified, and the underlying facts and data do not indicate
a lack of trustworthiness. He explained he used the methodology from a highly regarded
treatise on wage loss and disability analysis. Dr. Strauser detailed the specific steps he took
in reaching his opinion, which included considering Mr. Scott’s age, education, and work
experience to establish his pre-injury earning capacity. He then explained why educational
testing was unnecessary in this case, analyzed Mr. Scott’s developed skills from his work
history, evaluated his residual functional capacity based on his restrictions, and looked at
his pre- and post-injury profiles to analyze his transferable skills in the labor market. Dr.
Strauser also addressed the specific Oasys program and Dictionary of Occupational Titles
he declined to use because they were outdated. The Court finds this satisfies Rule 702 and
McDaniel and overrules the objection.
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Considering the expert proof as a whole, Dr. Cannon restricted Mr. Scott to light to
medium work with no lifting to shoulder height over twenty-one pounds, no overhead work
over sixteen pounds, and no carrying with both arms over thirty-six pounds. He also
completed a Physician’s Certification Form stating Mr. Scott could not return to his pre-
injury occupation as a truck driver ̶ his occupation for over fifteen years ̶ because of his
restrictions.
As for his past production jobs, Dr. Cannon said those were “physical jobs” that
would be “very difficult for him.” He agreed it was not medically advisable for Mr. Scott
to return to those jobs because of difficulty with prolonged standing, lifting and positioning.
For his part, Dr. Strauser considered the restrictions and testimony of Dr. Cannon,
combined with Mr. Scott’s reported difficulty with prolonged standing or sitting, his age,
education, work history and transferrable skills. Dr. Strauser concluded he had no
transferable job skills that he could physically perform and that he is 100 percent
vocationally impaired. While Hollywood challenged Dr. Strauser’s reliance on Mr. Scott’s
reported standing/sitting difficulty since they were not included in the FCE, the Court finds
his reports were supported by Dr. Cannon. Further, Hollywood offered no competing
vocational proof to challenge Dr. Strauser’s opinions.
As to the lay evidence, Mr. Scott is sixty-three years old with a high school degree.
He has worked the last fifteen years or more as a truck driver. Mr. Scott has “always
worked” but cannot work anymore because of his injury. He has not worked anywhere
since his termination and has applied for Social Security Disability.
Mr. Scott’s uncontroverted testimony was that he has persistent nerve pain down
his buttock, left leg, to his left foot that has never gone away since his injury. His leg throbs
constantly, interferes with his sleep, and prevents him from standing or sitting for long
periods of time. The Court observed Mr. Scott appeared uncomfortable sitting during the
trial. He confirmed he was in pain, and the Court recessed more than once to allow Mr.
Scott to stand or move around the courtroom.
Mr. Scott further testified he stopped doing activities and rarely leaves the house.
He continues to rely on nerve pain medication daily and expressed his concern regarding
surgery given his age and whether it would benefit him. The Supreme Court has
consistently held that an employee’s assessment as to his 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 *5-6 (Sept. 12, 2017). The Court finds Mr. Scott
credible. His testimony regarding his symptoms was supported by the medical proof. No
physician noted any evidence of malingering, and the FCE suggested he gave a full and
reliable effort. At trial, he was calm, forthcoming, self-assured, reasonable, and honest. See
Kelly v. Kelly, 445 S.W.3d 685, 694-695 (Tenn. 2014) (discussing indicia of witness
credibility.)
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Therefore, the Court holds that Mr. Scott is permanently and totally disabled from
gainful employment under Tennessee Code Annotated section 50-6-207(4)(B).
Alternatively, if Mr. Scott were not permanently totally disabled, the above findings
would equally support an additional award of 260 weeks under Tennessee Code Annotated
section 50-6-242(a) because this is an extraordinary case. The Court finds that, by clear
and convincing evidence, it would be inequitable to limit Mr. Scott’s recovery to only the
benefits under section 50-6-207(3)(B). Further, the Court finds that as of the date of the
award: (1) Mr. Scott has an impairment rating of at least ten percent to the body as a whole
from Dr. Cannon, the authorized treating physician; (2) the authorized treating physician
certified on a Bureau form that he no longer has the ability to perform his pre-injury
occupation due to permanent restrictions from the work injury; and (3) he is earning less
than seventy percent of the pre-injury average weekly wage or salary. See generally Tenn.
Code Ann. § 50-6-242(a).
Hollywood argued that Dr. Cannon testified that up to nine percent of his fifteen
percent rating could be apportioned to Mr. Scott’s preexisting condition, which would
result in a six-percent rating that would not meet the first requirement for additional
benefits under 242(a). While Dr. Cannon gave conflicting testimony to each party’s
questioning regarding his rating, the Court finds he ultimately concluded that Mr. Scott
would have a zero-percent impairment for his preexisting condition based on his lack of
any symptoms before his work injury. Thus, the Court holds Dr. Cannon’s rating of fifteen
percent meets the requirement for an additional award.
Calculation of Benefits
Under section 207(4)(B), Mr. Scott is entitled to permanent total disability benefits.
The parties agreed that because his injury occurred fewer than five years before the date
when he is eligible for Old Age Social Security benefits, Mr. Scott’s benefits are payable
for a period of 260 weeks. See Tennessee Code Annotated section 50-6-207(4)(A)(i). At
the stipulated weekly rate of $895.07, the benefits payable for the entire period of disability
equal $232,718.20. The date Hollywood last paid temporary disability, February 7, 2020,
is the starting date of Mr. Scott’s permanent disability. The accrued benefits from February
7, 2020, through August 19, 2021, a period of 80 weeks, shall be paid to Mr. Scott in a
lump sum of $71,605.60. However, Hollywood is entitled to a credit for a permanent
disability advance of $7,544.16, which reduces the accrued benefits owed to $61,061.44.
The Court finds it appropriate to commute 100 weeks of the award to pay Mr. Scott’s
attorney’s fees and litigation expenses. Tennessee Code Annotated section 50-6-
207(4)(A)(ii)(a)-(b) allows 100 weeks of benefits to be commuted to a lump sum to pay
fees and expenses. Section 50-6-229(a) allows commutation of attorney’s fees if “approved
and ordered by the trial judge.” It is in Mr. Scott’s best interest to prevent delay. Thus, the
Court commutes 100 weeks of the award and orders Hollywood to pay it in a lump sum of
$89,507 (100 weeks times $895.07).
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As to the amount of the attorney’s fee, Tennessee Code Annotated section 50-6-
207(4)(a)(iii) provides that fees in PTD cases “shall be calculated upon the first four
hundred and fifty (450) weeks of disability only.” Further, an attorney’s fee shall not
exceed twenty percent of the award. In compliance with section 50-6-226(a)(2)(c), Mr.
Scott’s attorney filed a motion seeking a fee award and a declaration supporting it under
Supreme Court Rule 8, RPC 1.5. Counsel has practiced law for twenty-two years, he
expended extensive time and expense prosecuting this case, and he had a written contract
for fees and expenses.
The Court finds these assertions support a twenty-percent fee. Specifically, the
Court considers the factors in Tennessee Supreme Court Rule 8, RPC 1.5 The relevant
factors here are the results obtained, the amount of work required, the customary fee set
forth in a written agreement, and counsel’s experience and reputation. Thus, of the 100-
week commutation, counsel may take an attorney fee of $46,543.64 (260 weeks times
twenty percent times $895.07). The balance of the 100-week commutation might be used
for payment of counsel’s expenses.
Hollywood’s attorney’s fees also exceeded $10,000. Counsel likewise submitted a
motion and declaration, citing his approximately twelve years’ practicing, his reputation
and ability, and the substantial time expended. For the same reasons as employee’s
attorney, the Court finds employer’s counsel’s fees were appropriate and approves them.
Recalculation of Payments
Section 207(4)(ii)(c) requires that after the commuted lump sum is determined, the
amount of the weekly permanent total disability payments shall be recalculated to distribute
them in equal installments over the entire period of disability. Here, the remaining benefits
after commutation equal $71,605.60 ($232,718.20 less the accrued benefits of $71,605.60
and the 100-week commutation of $89,507). Thus, the balance of $71,605.60 shall be
payable from the date of the entry of the order, August 19, 2021, until Mr. Scott reaches
eligibility for Old Age Social Security benefits, February 26, 2024, a total of 131 weeks
and five days at the modified weekly rate of $543.66.
IT IS THEREFORE ORDERED as follows:
1. Hollywood Feed shall pay Mr. Scott permanent total disability benefits totaling
$232,718.20 as follows: It shall pay accrued benefits in a lump sum of $71,605.60
less the permanent disability advance of $7,544.16, which reduces the accrued
benefits owed to $61,061.44. Hollywood shall further pay 100 weeks of commuted
benefits in a lump sum of $89,507 to pay for attorney’s fees and expenses. The
balance of $71,605.60 shall be paid periodically at the modified rate of $543.66 per
week.
2. Hollywood Feed shall pay all reasonable and necessary future medical benefits
under Tennessee Code Annotated section 50-6-204.
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3. The Court approves the fees of both attorneys.
4. The Court taxes the $150.00 filing fee to Hollywood Feed, to be paid to the Court
Clerk under Tennessee Compilation Rules and Regulations 0800-02-21-.06
(August, 2019) within five business days of this order becoming final, and for which
execution might issue if necessary. Hollywood Feed shall file a Statistical Data
Form (SD-2) with the Court Clerk within five business days of this order becoming
final.
5. Unless appealed, this order shall become final thirty days after entry.
ENTERED August 19, 2021.
___________________________________
JUDGE AMBER E. LUTTRELL
Court of Workers’ Compensation Claims
Appendix
Technical Record
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Scheduling Hearing
4. Scheduling Order
5. Order Denying Summary Judgment
6. Joint Pre-Compensation Hearing Statement
7. Employee’s Pre-Hearing Brief
8. Employer’s Pre-Hearing Brief
9. Pre-Trial Order
10. Post-Discovery Dispute Certification Notice
11. Employer’s Memorandum in Support of Summary Judgment
12. Employee’s Memorandum in Opposition to Summary Judgment
13. Employee’s Motion to Approve Attorney’s Fees
14.Employer’s Motion to Approve Attorney’s Fees
Exhibits
1. Dr. Cannon’s Deposition (with 5 exhibits)
2. Dr. David West’s C-32
3. Dr. Kallol Saha’s C-32
4. Dr. John Lochemes’s Deposition
5. Hollywood Feed’s Truck Driver Job Description
6. Mr. Scott’s resume
7. Dr. David Strauser’s Vocational Assessment Report
8. Dr. Strauser’s CV
12
9. Dr. Strauser’s report from another case (patient “Lorenzo”)
10. Dr. Strauser’s report from another case (patient “Benjamin”)
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on August 19, 2021.
Name Email Service sent to:
Billy Ryan, Employee’s Attorney X billy@donatilaw.com
rebecca@donatilaw.com
Allen Callison, Employer’s Attorney X Allen.callison@mgclaw.com
_____________________________________
Penny Shrum, Court Clerk
Court of Workers’ Compensation Claims
13
Compensation Hearing Order Right to Appeal:
If you disagree with this Compensation Hearing Order, you may appeal to the Workers’
Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers’
Compensation Appeals Board, 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 thirty calendar days of the date the
compensation hearing order was filed. When filing the Notice of Appeal, you must serve
a copy upon the opposing party (or attorney, if represented).
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 filing fee. You must file the fullycompleted
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
your 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. A licensed court
reporter must prepare a transcript and file it with the court clerk within fifteen calendar
days of the filing the Notice of Appeal. Alternatively, you may file a statement of the
evidence prepared jointly by both parties within fifteen calendar 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 of
the evidence 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. After the Workers’ Compensation Judge approves the record and the court clerk transmits
it to the Appeals Board, a docketing notice will be sent to the parties. The appealing party
has fifteen calendar days after the date of that notice to submit a brief to the Appeals Board.
See the Practices and Procedures of the Workers’ Compensation Appeals Board.
To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing
Order must be final and you must comply with the Tennessee Rules of Appellate Procedure.
If neither party timely files an appeal with the Appeals Board, the trial court’s Order will
become final by operation of law thirty calendar days after entry. See Tenn. Code Ann. §
50-6-239(c)(7).
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 filestamped 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