Johnson, Carlos M. v. Corecivic, Inc. ( 2023 )

FILED
Aug 14, 2023
01:07 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT JACKSON
CARLOS M. JOHNSON, ) Docket No. 2022-07-0577
Employee, )
v. )
)
CORECIVIC, INC. ) State File No. 50191-2021
Employer, )
And )
)
NEW HAMPSHIRE INS. CO., ) Judge Robert Durham
Insurer. )
COMPENSATION ORDER GRANTING BENEFITS
The Court held a Compensation Hearing on August 3, 2023, to determine Mr.
Johnson’s permanent impairment for a left meniscus tear. Mr. Johnson argued the
authorized physician’s rating is too low because it does not account for arthritis that was
caused or aggravated by the injury and resulting surgery. 1 The Court disagrees and adopts
Dr. Ferguson’s one-percent impairment rating.
History of Claim
On June 29, 2021, Mr. Johnson, age forty-two, injured his left knee when he slipped
on a kitchen floor at work. When conservative measures failed, an MRI revealed a lateral
meniscus tear and chronic cartilage changes. CoreCivic authorized treatment with
orthopedist Christopher Ferguson.
Dr. Ferguson saw Mr. Johnson on November 2, noting that he weighed over 300
pounds. He reviewed the MRI and agreed Mr. Johnson sustained a lateral medial meniscus
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The parties stipulated that Mr. Johnson suffered a compensable injury, his compensation rate is $622.69,
he has returned to work for CoreCivic at his pre-injury wage, and the compensation period has expired.
They also agreed that CoreCivic is entitled to a $967.86 credit for overpayment of temporary disability
benefits.
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tear caused by his fall. He also diagnosed “chronic” patellofemoral arthritic changes that
he believed preexisted the fall.
Dr. Ferguson surgically repaired the tear. During the procedure, he saw that Mr.
Johnson suffered from grade three and grade four chondromalacia in the patellofemoral
compartment, so in some places he had no cartilage and the bone was fully exposed. Dr.
Ferguson repaired the arthritic changes through a chondroplasty that smoothed out the
remaining frayed cartilage.
Once Mr. Johnson reached maximum medical improvement, Dr. Ferguson assessed
a one-percent diagnosis-based anatomic impairment for the partial lateral meniscus tear
using Table 16-3 of the American Medical Association Guides to the Assessment of
Permanent Impairment, 6th edition. He felt the tear was the only work-related injury and
he did not assign an impairment for arthritis.
In his deposition, Dr. Ferguson addressed the causal connection between Mr.
Johnson’s fall and his knee arthritis. He said that “the arthritic changes in the
patellofemoral compartment are clearly, in my medical opinion, chronic and pre-existing
to his work event.” He also said that Mr. Johnson’s weight would make him more likely
to develop degenerative arthritis in his knee.
On cross-examination, Dr. Ferguson agreed that the only reason that he performed
the chondroplasty was because he was already in the knee to repair the meniscus. However,
he said that his job as a doctor is to “make the knee as good as [he] could make it,” and it
would not “make sense to fix part of the problem and leave the rest.” He disagreed that
the lateral meniscectomy would aggravate the arthritis.
After receiving Dr. Ferguson’s rating, Mr. Johnson’s counsel sent him to Dr. Samuel
Chung, D.O. for an independent medical evaluation. Dr. Chung agreed that Mr. Johnson
suffered a work-related lateral meniscus tear and that Dr. Ferguson appropriately
performed surgery to repair it and smooth out the chondral defects.
After his exam, Dr. Chung also calculated an anatomical impairment under Table
16-3 of the AMA Guides, but he based it on arthritis rather than the meniscus tear. Dr.
Chung believed a five-percent rating was correct because “the particular injury as well as
the surgical intervention, and subsequent led to the ̶ the overall arthritic condition of the
knee which has left him with a functional dysfunction at this time.”
On cross-examination, Dr. Chung agreed that someone weighing as much as Mr.
Johnson would be prone to joint damage. However, he “highly doubt[ed]” Mr. Johnson
suffered from preexisting joint problems and arthritis, given that he was only “twenty-two
years old,” which was “awful young.” (Emphasis added). He did not feel arthritis would
“set in that fast.” He also found it significant that Mr. Johnson said he did not suffer from
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arthritic knee pain before his fall.
CoreCivic’s counsel followed up by asking if Dr. Chung would be surprised to learn
that Mr. Johnson suffered from preexisting arthritis. Dr. Chung said, “Once again, I—
somebody who’s 22 years old would not—I would not normally see them with
osteoarthritis.” However, he agreed it would be “less abnormal” to find that type of arthritis
in someone older who weighed as much as Mr. Johnson. He said that Mr. Johnson’s
weight, as well as the surgery, significantly impacted the acceleration of osteoarthritis.
Dr. Chung conceded that Dr. Ferguson correctly used the impairment recommended
by the AMA Guides for a meniscal tear. But he believed the impairment should be for
arthritis instead because the surgery to smooth out the rough cartilage actually lessened the
amount of cartilage in the joint, thus serving to create the arthritic condition. He disagreed
with Dr. Ferguson’s statement that Mr. Johnson suffered from preexisting arthritis; he said
that Mr. Johnson suffered from chondromalacia, and the injury, in conjunction with the
surgery, caused the patellofemoral arthritis, which now afflicts him. Still, he agreed that
since Dr. Ferguson performed surgery, he would have been in the best place to see any
preexisting arthritis.
Mr. Johnson’s counsel asked on redirect if it would make any difference to Dr.
Chung’s opinion if Mr. Johnson was forty-two instead of twenty-two. Dr. Chung said it
would not.
Mr. Johnson also testified as to his physical condition before and after his accident.
He said that he did not have any problems with his knee beforehand. Now, he suffers
significant limitations that affect his ability to climb stairs or stand for long periods of time.
During cross-examination, Mr. Johnson said that he has weighed between 240 and
300 pounds since high school. He admitted to taking arthritis medicine for several years
before his surgery but said it was for his shoulder. Although he could not remember saying
it, he did not dispute his personal doctor’s notes that said he has suffered from pain in
multiple joints for some years.
Findings of Fact and Conclusions of Law
Mr. Johnson has the burden of proving the essential elements of his workers’
compensation claim by a preponderance of the evidence. Scott v. Integrity Staffing
Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). However,
most of the issues in this case are not disputed. Here, the critical question is the degree of
permanent impairment, which depends on whether the meniscus tear and resulting surgery
primarily caused or aggravated the arthritis, thus making it compensable.
To prove causation, Mr. Johnson must show to a reasonable degree of medical
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certainty that the injury or aggravation arose primarily out of his employment and
“contributed more than fifty percent” in causing his disablement and need for treatment.
Tenn. Code Ann. § 50-6-102(12)(A), (C) (2022). “Reasonable degree of medical
certainty” means “it is more likely than not considering all causes, as opposed to
speculation or possibility.” Id. at -102(12)(D). Proving all this requires expert medical
opinion. Id.Here, two experts gave opinions on the cause for Mr. Johnson’s disabling arthritis.
When weighing expert opinions, the 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 by other
experts.” Bass v. The Home Depot U.S.A, Inc., 2017 TN Wrk Comp. App. Bd. LEXIS 36,
at *9 (May 26, 2017). Also, since Dr. Ferguson is the authorized treating physician, his
causation opinion is presumed correct, but it can be rebutted by a preponderance of the
evidence. Tenn. Code Ann. § 50-6-102(12)(E).
In his deposition, Dr. Ferguson stated unequivocally that Mr. Johnson’s
patellofemoral compartment arthritis was chronic and pre-existed his meniscal tear. He
said that his examination of the knee during surgery confirmed grade three and four
arthritic changes, so it was bone-on-bone in many places. He confirmed that Mr. Johnson’s
weight was a significant factor in causing the degenerative changes. He also denied that
the meniscectomy would have aggravated the arthritis.
Dr. Ferguson further said that the only reason he did the chondroplasty was because
he was already in the knee to do the meniscal repair. He felt his duty was to “make the
knee as good as [he] can make it,” and it made little sense to leave the knee in that condition
when he was already doing surgery on it. He confirmed that the one percent rating for the
meniscal tear was the most accurate rating for the “work-related” component of Mr.
Johnson’s condition.
As for Dr. Chung, he did not believe the arthritis preexisted the meniscal tear.
However, his testimony justifying this opinion was in large part based on the mistaken
belief that Mr. Johnson was only twenty-two, and not his actual age of forty-two, at the
time of his injury.
This was more than a “small typographical error,” as Mr. Johnson’s counsel
attempted to characterize it. Dr. Chung repeatedly asserted that a significant factor he
relied on in his decision was that it was unlikely that a twenty-two-year-old would have
the level of arthritic changes found in Mr. Johnson’s knee without some sort of inciting
event, such as the accident and later surgery. This faulty premise undermines the
credibility of Dr. Chung’s opinion.
Mr. Johnson’s counsel made some attempt at rehabilitation when he asked Dr.
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Chung if the fact that Mr. Johnson was forty-two instead of twenty-two would change his
opinion about causation, and Dr. Chung said it would not. However, this generic response
is unpersuasive, given without explanation after Dr. Chung clearly said it was a factor
during his earlier testimony.
Dr. Chung also justified his impairment for arthritis on the premise that the
chondroplasty itself, which requires shaving the rough and frayed edges of the cartilage,
thinned the cartilage level to less than two millimeters. Thus, he reasoned, the surgical
procedure actually created the arthritis, making it compensable. Mr. Johnson argued this
is an example of the “direct and natural consequences” rule, which says that “all the
medical consequences and sequelae that flow from the primary injury are compensable.”
Hudgins v. Global Personnel Solutions, Inc., 2023 TN Wrk. Comp. App. Bd. LEXIS 22,
at *14, 15 (Apr. 26, 2023), appeal docketed, No. E2023-00792-SC-R3-WC (Tenn.
Workers’ Comp. Panel May 25, 2023). This position is undermined on two points.
First, Dr. Ferguson testified that when he scoped Mr. Johnson’s knee, he saw
firsthand that the cartilage in the patellofemoral compartment was nonexistent in many
places and severely lessened in others. Thus, the cartilage levels were significantly
decreased before the chondroplasty even occurred and were not due to the surgery.
Second, even if the chondroplasty did reduce the cartilage level to less than two
millimeters, the procedure was to correct a condition that Dr. Ferguson did not believe was
work-related, and which he said he only performed because he did not believe it was right
to leave the knee in the condition it was in. If Dr. Ferguson’s causation opinion is credited,
the Court finds that the chondroplasty was not a direct and natural consequence of the
work-related injury. Thus, any consequence from the surgery is not compensable.
Finally, Dr. Chung testified that the fact that Mr. Johnson did not suffer from any
arthritic pain before his surgery showed the arthritis was caused or aggravated by the injury
and surgery. Some question exists as to whether Mr. Johnson had arthritic knee pain before
his injury. However, even assuming he did not, the Court holds that this factor alone is
insufficient to rebut the presumption afforded to Dr. Ferguson’s opinion that the arthritis
preexisted the work injury.
On this record, the Court holds that Mr. Johnson did not offer sufficient evidence to
overcome Dr. Ferguson’s opinion that his arthritis preexisted his meniscal tear and was not
caused or aggravated by his work injury or surgery. Thus, Mr. Johnson’s impairment rating
is limited to one percent based on the meniscal injury.
IT IS, THEREFORE, ORDERED:
1. CoreCivic shall pay Mr. Johnson an award of permanent partial disability benefits
based on a one-percent impairment, which equates to $2,802.11 less an
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overpayment of $967.86 in temporary disability benefits, for a lump sum award of
$1,834.25.
2. Mr. Johnson’s counsel shall receive an attorney’s fee of twenty percent of the award,
which equates to $560.42.
3. Dr. Christopher Ferguson shall remain Mr. Johnson’s treating physician for his
work-related lateral meniscus tear. CoreCivic shall pay for reasonable, necessary,
and related medical treatment for this injury.
4. CoreCivic shall pay costs of $150.00 to the Court Clerk within five business days
of this order.
5. CoreCivic shall prepare and file with the Court Clerk a Statistical Data Form within
ten business days of this order becoming final.
6. Unless appealed, this order becomes final in thirty days.
ENTERED August 14, 2023.
_____________________________________
ROBERT DURHAM, JUDGE
Court of Workers’ Compensation Claims
APPENDIX
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Mr. Johnson’s Pre-Compensation Hearing Statement
4. Mr. Johnson’s Pre-Trial Brief
5. CoreCivic’s Witness and Exhibit List
6. CoreCivic’s Pre-Trial Brief
7. CoreCivic’s Pre-Compensation Hearing Statement
Exhibits:
1. Dr. Ferguson’s deposition with attached exhibits
2. Dr. Chung’s deposition with attached exhibits
3. Mr. Johnson’s Notice of Filing Medical Records
4. CoreCivic’s Notice of Filing Medical Records
5. Mr. Johnson’s deposition
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CERTIFICATE OF SERVICE
I certify that a copy of the Order was sent as indicated on August 14, 2023.
Name Certified Via Via Service sent to:
Mail Fax Email
Jeffrey P. Boyd X jboyd@borenandboyd.com
scallison@borenandboyd.com
Vickie Moffett Cruzen X vmoffettcruzen@swlawpllc.com
_____________________________________
PENNY SHRUM, Court Clerk
WC.CourtClerk@tn.gov
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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