Braden, Tawan v. Mohawk Industries, Inc.

FILED
Mar 01, 2022
02:18 PM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Tawan Braden ) Docket No. 2019-08-0544
)
v. ) State File No. 89807-2016
)
Mohawk Industries, Inc., et al. )
)
)
Appeal from the Court of Workers’ ) Heard February 7, 2022
Compensation Claims ) via Microsoft Teams
Deana C. Seymour, Judge )
Affirmed and Certified as Final
The employee, a truck driver, reported suffering a right ankle injury when he tripped and
fell while unloading a roll of carpet. After returning to work, the employee reported
another incident resulting in a “pop” in his ankle and a significant increase in his symptoms
while walking. Following a compensation hearing, the trial court determined the second
reported incident was a direct and natural consequence of the compensable work injury,
and it found the employee to be permanently and totally disabled. It also denied the
employee’s claim for additional temporary disability benefits and denied the employer’s
claim based on an alleged overpayment of such benefits. The employer has appealed,
arguing the second incident was an independent, intervening event not causally related to
the employee’s compensable work accident. Upon careful consideration of the record, we
affirm the trial court’s order and certify it as final.
Presiding Judge Timothy W. Conner delivered the opinion of the Appeals Board in which
Judge David F. Hensley and Judge Pele I. Godkin joined.
Carolina Martin and Karl Braun, Nashville, Tennessee, for the employer-appellant,
Mohawk Industries, Inc.
Monica Rejaei, Memphis, Tennessee, for the employee-appellee, Tawan Braden
Factual and Procedural Background
Tawan Braden (“Employee”), a Mississippi resident, worked for Mohawk
Industries, Inc. (“Employer”), located in Memphis, as a truck driver. On November 15,
2016, Employee reported a work-related injury to his right ankle when he tripped and fell
1
while unloading a strapped roll of carpet. Employer accepted the accident as compensable
and initiated benefits. Employee was seen in an emergency room and referred to an
orthopedic surgeon, Dr. David Richardson, who performed an open reduction and internal
fixation to repair a lateral malleolus fracture in the right ankle. Thereafter, Employee was
released to return to work in a sedentary capacity. Several months later, Employee
underwent a procedure to remove a surgical screw and was again released to return to
sedentary work. The following month, Employee was released to return to work without
restrictions.
In July 2017, Employee returned to his treating physician with complaints of
increased pain and other symptoms. He reported having suffered an incident at work where
he felt a “pop” in his ankle and increased pain while walking. Later that month, Employee
underwent a third surgical procedure recommended by Dr. Richardson to remove
additional hardware inserted during the initial surgery. In October 2017, he was again
released to return to work without restrictions.
Following Employee’s report of continuing symptoms, Dr. Richardson ordered an
MRI that revealed a peroneal tendon tear in the right ankle adjacent to the site of the
malleolus fracture. Dr. Richardson recommended additional surgery, which was
performed in April 2018. Thereafter, Dr. Richardson ordered additional therapy and
assigned work restrictions. A functional capacity evaluation indicated Employee could
return to work in the “light” physical demand category. In November 2018, Dr. Richardson
recommended the use of a cane and referred Employee for chronic pain management with
Dr. Ryan McGaughey. In September 2019, Dr. Richardson opined that Employee cannot
stand for more than fifteen minutes at a time and cannot walk more than fifty yards at a
time. He recommended lifting restrictions of no more than fifteen pounds repetitively, with
no repetitive stair climbing or squatting. In May 2020, Dr. Richardson prescribed
Employee a brace and ordered orthotics.
In preparation for trial, Employee was evaluated by David Strauser, Ph.D., a
vocational expert. Dr. Strauser subsequently testified that Employee had sustained a
“complete loss of earning capacity” as a result of his right lower extremity injuries. Dr.
Strauser noted Employee reads at a kindergarten level, had limited transferable job skills,
was undergoing continued pain management treatment, and required a cane for ambulation.
He concluded Employee “would be unable to obtain or maintain work as is typically
performed in the labor market.”
At trial, Employer asserted that although Employee’s original injury was a
compensable event, the subsequent incident he reported as occurring in July 2017 was not
a direct and natural consequence of the original injury but was instead an independent,
intervening event unrelated to the 2016 work injury and not arising primarily out of the
employment. Employee took the position that there was no subsequent injury-producing
accident; instead, Employee asserted the increased symptoms he reported in July 2017 and
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the tendon tear diagnosed several months later were a natural progression of his
compensable right ankle condition.
Following trial, the court determined Employee had proven by a preponderance of
the evidence that his right ankle condition, including the peroneal tendon tear that occurred
in July 2017, was causally related to the compensable work accident. The court considered
precedent from the Tennessee Supreme Court, specifically Anderson v. Westfield Group,
259 S.W.3d 690 (Tenn. 2008), and concluded the peroneal tendon tear was a direct and
natural consequence of the work injury and not caused by any negligent act of Employee.
Finally, the court determined that Employee’s work-related injuries had rendered him
permanently and totally disabled, but it denied the claims of both parties regarding an
alleged underpayment or overpayment of temporary disability benefits. Employer has
appealed.
Standard of Review
The standard we apply in reviewing the trial court’s decision presumes that the
court’s factual findings are correct unless the preponderance of the evidence is otherwise.
See Tenn. Code Ann. § 50-6-239(c)(7) (2021). When the trial judge has had the
opportunity to observe a witness’s demeanor and to hear in-court testimony, we give
considerable deference to factual findings and credibility determinations made by the trial
court. Madden v. Holland Grp. of Tenn., Inc., 277 S.W.3d 896, 898 (Tenn. 2009).
However, “[n]o similar deference need be afforded the trial court’s findings based upon
documentary evidence.” Goodman v. Schwarz Paper Co., No. W2016-02594-SC-R3-WC,
2018 Tenn. LEXIS 8, at *6 (Tenn. Workers’ Comp. Panel Jan. 18, 2018). Similarly, the
interpretation and application of statutes and regulations are questions of law that are
reviewed de novo. See Mansell v. Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d
393, 399 (Tenn. 2013). We are also mindful of our obligation to construe the workers’
compensation statutes “fairly, impartially, and in accordance with basic principles of
statutory construction” and in a way that does not favor either the employee or the
employer. Tenn. Code Ann. § 50-6-116 (2021).
Analysis
On appeal, Employer presents a number of issues that we have combined and
restated as follows: (1) whether the trial court erred in determining that the July 2017
incident, the additional medical care, and Employee’s permanent disability were direct and
natural consequences of the original work injury; (2) whether the trial court erred in
admitting into evidence the testimony of Employee’s vocational expert because it was not
based on sufficient facts/data, was not “in keeping with the medical records,” and was
admitted despite the expert’s acknowledgement that he had destroyed his handwritten
notes; (3) whether the trial court erred in declining to determine Employer had overpaid
3
temporary disability benefits; and (4) whether the trial court erred in determining Employee
was “unable to return to any job in the open labor market.”
Direct and Natural Consequence Rule
The employee in a workers’ compensation claim has the burden of proving all
essential elements of his or her claim for benefits. Scott v. Integrity Staffing Solutions, No.
2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn. Workers’ Comp.
App. Bd. Aug. 18, 2015). The critical issue in this case hinges on the parameters of an
employee’s burden of proof in circumstances where the employee alleges an injury that
follows and allegedly flows from the primary compensable injury. The “direct and natural
consequences rule” has evolved from such scenarios, and the Tennessee Supreme Court
has evaluated the rule in a number of opinions. For example, in Rogers v. Shaw, 813
S.W.2d 397 (Tenn. 1991), an employee was diagnosed with lung cancer caused in part by
his occupational exposure to asbestos. Id. at 398. In preparation for lung surgery, the
employee was diagnosed with a coronary artery blockage that required treatment prior to
the lung surgery. Id. During coronary bypass surgery, the employee suffered a stroke and
died. Id. The employee’s widow sought workers’ compensation death benefits on the
theory that that the employee’s stroke was caused by treatment necessitated by his work-
related lung condition. Id. In reversing the trial court’s denial of death benefits, the
Tennessee Supreme Court explained the general rule that “every natural consequence that
flows from the [work-related condition] arises out of the employment, unless it is the result
of an independent intervening cause attributable to the employee’s intentional conduct.”
Id. at 399. The Court then cited with approval Professor Larson’s explanation of the rule:
The basic rule is that a subsequent injury, whether an aggravation of the
original injury or a new and distinct injury, is compensable if it is the direct
and natural result of a compensable primary injury. The simplest application
of this principle is the rule that all the medical consequences and sequelae
that flow from the primary injury are compensable.
Id. at 399-400. However, if the employee’s own negligent conduct caused the subsequent
injury or condition, the employer is not responsible. See, e.g., Bennett v. Magna Seating
Sys., No. W2004-01177-WC-R3-CV, 2005 Tenn. LEXIS 380 (Tenn. Workers’ Comp.
Panel May 4, 2005) (“But if the subsequent injury is attributable to claimant’s own
negligence or fault, the chain of causation is broken, even if the primary injury may have
contributed in part to the occurrence of the subsequent injury.”).
In Williams v. UPS, 328 S.W.3d 497 (Tenn. Workers’ Comp. Panel 2010), the
Supreme Court’s Special Workers’ Compensation Appeals Panel affirmed a trial court’s
award of benefits for a subsequent injury. In that case, the employee had suffered a
compensable left knee injury then subsequently developed a worsening of his pre-existing
right knee condition that he attributed to “over-reliance on his right leg.” Id. at 498. The
4
employee presented testimony of an orthopedic surgeon who concluded the employee’s
“right knee deterioration was advanced and progressed by the . . . work injury to his left
knee.” Id. at 500. The treating physician had not commented on or treated the right knee
condition and did not assign any permanent medical impairment to that condition. Id.After reviewing the trial court’s weighing of the medical evidence, the Appeals Panel
concluded, “the trial court could have reasonably ruled in favor of either party on this issue”
and “we are unable to conclude the evidence preponderates against the trial court’s ruling.”
Id. at 504-05.
In United Parcel Service, Inc. v. Brown, No. M2014-01332-SC-R3-WC, 2015 Tenn.
LEXIS 628 (Tenn. Workers’ Comp. Panel Aug. 11, 2015), an employee suffered a
compensable injury to her right knee. Id. at *1. During her period of recovery, about one
month after surgery, she bent over in her backyard to pick up an object and lost her balance.
Id. at *3. She grabbed a fence to prevent her from falling, but she “felt an immediate twinge
in the knee.” Id. Her physician diagnosed a “possible failure” of the ACL repair and
recommended additional surgery. Id. at *4. At trial, the employer argued that the
subsequent event in the employee’s backyard was an independent, intervening accident
that broke the chain of causation. Id. at *5. The trial court disagreed and concluded the
second injury was a direct and natural consequence of the original injury. Id. In rejecting
the employer’s arguments on appeal, the Appeals Panel noted that the physician opined her
post-surgery activities, including the incident in her backyard, were not “inappropriate”
and were not “out of the ordinary.” Id. at *10-11. The Panel affirmed the trial court’s
finding that the subsequent injury was a direct and natural consequence of the primary
compensable injury, and the employee’s actions did not constitute negligence and did not
break the chain of causation. Id. at *11.
In discussing the scope of the direct and natural consequence rule, the Supreme
Court in Anderson v. Westfield Group explained that the limit of the rule “hinges on
whether the subsequent injury is the result of independent intervening causes, such as the
employee’s own conduct.” Anderson, 259 S.W.3d at 697. The Court further explained:
The rule’s limitation has been expressed in general terms as “[w]hen the
primary injury is shown to have arisen out of and in the course of
employment, every natural consequence that flows from the injury likewise
arises out of the employment, unless it is the result of an independent
intervening cause attributable to the claimant’s own intentional conduct.”
“More specifically, the progressive worsening or complication of a work-
connected injury remains compensable so long as the worsening is not shown
to have been produced by an intervening nonindustrial cause.”
Id. (quoting 1 Larson’s Workers’ Compensation Law §10 (2004)) (emphases added). The
Court then rejected the employee’s argument that an employee’s conduct must rise to the
level of reckless or intentional to be considered an independent, intervening cause. Id. at
5
698-99. Instead, the Court concluded, “negligence is the appropriate standard for
determining whether an independent intervening cause relieves an employer of liability for
a subsequent injury purportedly flowing from a prior work-related injury.” Id. at 699.
Finally, in Kirby v. Memphis Jewish Nursing Home, No. W2010-02261-WC-R3-
WC, 2011 Tenn. LEXIS 1135 (Tenn. Workers’ Comp. Panel Dec. 1, 2011), an employee
suffered a work-related shoulder injury that necessitated surgical repair of labral and biceps
tendon tears. Id. at *2. Several month later, as the employee was outside with his
unleashed dog, he grabbed the dog by the collar, and it attempted to run away, jerking his
arm. Id. at *3. The employee returned to his physician with complaints of increased
symptoms, and the physician determined the prior shoulder surgery had failed,
necessitating an additional surgery. Id. Thereafter, a functional capacity evaluation
revealed Employee could not meet the lifting requirements of his previous job. Id. at *4.
At trial, the court concluded that Employee had not acted negligently while grabbing his
dog by the collar and that the risk of the initial surgery failing was a “natural consequence”
of the original work injury. Id. at *7. In affirming that determination, the Supreme Court’s
Special Workers’ Compensation Appeals Panel noted that failure of the original surgery
was “simply one of the risks of the procedure.” Id. at *10. It then concluded, “the evidence
does not preponderate against the trial court’s conclusion that Employee did not act
negligently and that the [subsequent injury] was a direct and natural consequence of the
earlier work injury.” Id.Impact of 2013 Workers’ Compensation Reform Act
A corollary issue that arises in the context of this case is whether the general
assembly’s passage of the 2013 Workers’ Compensation Reform Act abrogated the direct
and natural consequences rule or limited its scope. In Hudgins v. Global Personnel
Solutions, Inc., No. 2017-01-0690, 2020 TN Wrk. Comp. App. Bd. LEXIS 19 (Tenn.
Workers’ Comp. App. Bd. Apr. 17, 2020), we addressed the applicability of the direct and
natural consequence rule in the context of a post-2013 Workers’ Compensation Reform
Act case. In that case, the employee alleged that her altered gait caused by a work-related
knee injury resulted in hip and lumbar spine injuries. Id. at *4. In affirming the trial court’s
interlocutory order for medical benefits for the employee’s hip and lumbar spine
conditions, we explained:
“[w]hen the primary injury is shown to have arisen out of and in the course
of employment, every natural consequence that flows from the injury
likewise arises out of the employment.” Therefore, “all the medical
consequences and sequelae that flow from the primary injury are
compensable.”
Id. at *5-6 (quoting Rogers, 813 S.W.2d at 400). We then concluded the employee was
not required to prove her hip and lumbar spine conditions arose primarily from a specific
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incident or set of incidents at work as long as the record established that those conditions
were the direct and natural consequence of a compensable work injury. Id. at *6.
In the present case, the compensability of the original work accident is not in
dispute, but the medical evidence supports a finding that the peroneal tendon tear did not
occur at the time of the original work accident. When asked during his deposition whether
“the injury that he sustained at work in November of 2016 [was] the primary cause of this
injury and his complications,” Dr. Richardson replied, in part, “it would be difficult from
what I know to attribute his injury and his continued pain on his right ankle to anything but
what happened at work.” When asked if the “issues that [Employee is] suffering from
related to the right ankle are primarily related to the work injury,” he responded “[t]hat
would be my opinion.”
During cross-examination, Dr. Richardson acknowledged that he originally released
Employee to return to work without restrictions in April 2017. He further admitted that
Employee’s malleolus fracture and deltoid ligament injury had healed by April 2017. In
fact, he was asked whether the April 2017 injury had “healed . . . with no impairment, no
restriction,” and he replied that was “correct.”
However, Dr. Richardson also explained that “the peroneal tendons go – they are
intimately . . . right next to the lateral malleolus fracture so they go . . . beside it.
And . . . they rub . . . . The way those tendons move up and down is back and forth on the
lateral malleolus . . . which had a fracture.” He then explained that “peroneal tendonitis
following a lateral malleolus fracture is fairly common.” He testified that Employee
“certainly ha[d] an increased risk of having that peroneal tendonitis with his previous
injury.” With respect to the subsequent peroneal tendon tear, Dr. Richardson explained, “I
think he would have an increased risk of it happening, because he had previous surgery,
because he had had hardware . . . that’s right by the tendon. He had scar tissue. It’s . . . if
you’re going to do surgery – so that is also going to increase his risk of . . . getting a
peroneal tendon tear.”
With respect to the second incident in July 2017, Employee testified he “was
walking to the bathroom, and [he] felt a sharp pain going through [his] leg and – and it kept
on hurting and hurting.” The following colloquy then occurred:
Q. Did you, like, slip and fall?
A. No.
Q. All right. You go up a stair, down a stair?
A. No.
Q. Okay. Were you carrying anything and, like, twisted it?
A. No.
Q. Okay. So just walking.
A. Just walking.
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In sum, an employee seeking to prove that a subsequent injury was a direct and
natural consequence of the original compensable injury must come forward with evidence
supporting a finding that the subsequent injury “flowed from” or was a “natural
consequence” of the original injury. In such circumstances, one way an employer can
respond is by showing that the actions of the employee leading to the subsequent injury
constituted negligence, recklessness, or intentional conduct that broke the chain of
causation. Further, we conclude that nothing in the 2013 Workers’ Compensation Reform
Act expressly abrogated or limited the scope of the direct and natural consequences rule.
If this common law rule is to be re-interpreted in light of the Reform Act to require a higher
degree of proof from the employee to show a causal link between the original injury and
the subsequent injury, it is for our Supreme Court, not us, to address.
Here, although Dr. Richardson’s testimony was confusing and muddled at times, we
conclude he offered sufficient evidence that the peroneal tendon tear flowed from and was
a natural consequence of the original malleolus fracture and the surgery to repair that
fracture. Dr. Richardson testified without contradiction that Employee’s original work
injury increased his risk of and made him more susceptible to experiencing a peroneal
tendon tear. He further explained that the rubbing of the peroneal tendon across the site of
the malleolus fracture likely weakened that tendon. Moreover, the record is devoid of any
evidence that Employee’s actions on the date of the second incident in July 2017 were
negligent, reckless, or intentional. Thus, we conclude there is no evidence that Employee’s
actions in July 2017 constituted an independent, intervening event sufficient to break the
chain of causation. In consideration of the record as a whole, we cannot conclude the trial
court erred in determining the peroneal tendon tear, additional medical treatment resulting
from the tear, and resulting permanent vocational disability were direct and natural
consequences of the original work injury.
Temporary Disability Benefits
Employer next asserts the trial court erred in failing to give it a credit for temporary
total disability payments it made after Employee was originally placed at maximum
medical improvement on April 19, 2017. Although the trial court identified the “date of
maximum medical improvement” as an issue for trial, neither party presented any
testimony regarding that issue during the course of the trial. Employee did, however,
introduce into evidence the deposition of Dr. Richardson without objection. Dr.
Richardson testified that he originally placed Employee at maximum medical improvement
on April 19, 2017, but that Employee returned to him in July 2017 with complaints that led
to the peroneal tendon tear diagnosis. This, in turn, led to additional surgery, and Dr.
Richardson testified he placed Employee at maximum medical improvement again on
November 8, 2018.
Employer asserted during closing arguments that ten weeks of temporary disability
benefits Employer paid between April 23, 2018 and July 4, 2018, which it calculated to
8
equal $7,359.96, should have been deemed an overpayment and backed out of his
permanent disability award. However, the issue of the alleged overpayment of temporary
disability benefits hinges on our resolution of the issue concerning the direct and natural
consequence rule. If the July 2017 peroneal tendon tear was a direct and natural
consequence of the original work injury, and Dr. Richardson did not place Employee at
maximum medical improvement for the peroneal tendon tear until November 8, 2018, then
the temporary disability payments made between April and July 2018 would not be
considered an overpayment of temporary disability benefits because they would not have
been paid after Employee reached maximum medical improvement. Thus, given our
conclusion that the trial court did not err in its determination that the peroneal tendon tear
was a direct and natural consequence of the original work injury, it was not error for the
trial court to decline to find an overpayment of temporary disability benefits. 1
Admissibility of Vocational Expert’s Testimony
Next, Employer asserts that Dr. Strauser’s testimony should have been excluded
because his opinions were not “based on sufficient data,” were not “in keeping with the
medical records,” and he admitted to having destroyed his handwritten notes prior to his
testimony. Employer bases its legal arguments on Rule 705 of the Tennessee Rules of
Evidence and Rules 34A.02 and 37 of the Tennessee Rule of Civil Procedure.
With respect to Employer’s argument that Dr. Strauser’s opinions were not “based
on sufficient facts/data” and were “not in keeping with the medical records,” we recently
addressed similar issues in Lawson v. Amazon.com Services, LLC, No. 2021-01-0213, 2021
TN Wrk. Comp. App. Bd. LEXIS 47 (Tenn. Workers’ Comp. App. Bd. Dec. 27, 2021). In
that case, the employer argued that medical records and an affidavit of the employee’s
physician were “fundamentally untrustworthy” because the employee had failed to inform
various medical providers of the extent and nature of his pre-existing condition. Id. at *5.
In rejecting the employer’s argument that the trial court erred in not excluding the
physician’s records and affidavit, we explained as follows:
It is well settled that the admissibility of evidence is within the discretion of
the trial judge. A trial court abuses its discretion when it causes an injustice
to the party challenging the decision by (1) applying an incorrect legal
standard, (2) reaching an illogical or unreasonable decision, or (3) basing its
decision on a clearly erroneous assessment of the evidence.
Id. at *5-6 (citations omitted). We then concluded that any discrepancies in the medical
histories provided by the employee to his medical providers impacted the weight but not
the admissibility of the expert’s testimony. Id. at *7. We reach similar conclusions here.
It was within the trial court’s discretion to admit into evidence Dr. Strauser’s testimony. It
1
Employee did not raise as an issue on appeal whether he was owed additional temporary disability benefits.
9
was the trial court’s role to weigh that testimony against any countervailing evidence.
Here, Employer chose to offer no testimony from a vocational expert but relied on its cross-
examination of Employee’s vocational expert. We conclude Employer has not shown that
the trial court abused its discretion in admitting Dr. Strauser’s testimony into evidence or
erred in its assessment of the expert proof.
Rule 705 of the Tennessee Rules of Evidence provides that an expert “may . . . be
required to disclose the underlying facts or data on cross-examination.” 2 In circumstances
where “a party or an agent of a party . . . discards, destroys, mutilates, alters, or conceals
evidence,” the court can impose Rule 37 sanctions. Tenn. R. Civ. P. 34A.02. In Foley v.
St. Thomas Hosp., 906 S.W.2d 448, 454 (Tenn. App. 1995), the Tennessee Court of
Appeals addressed a motion for exclusion of an expert’s testimony based on the alleged
spoliation of evidence. In that case, a medical examiner performing an autopsy followed
what he described as standard medical practice to destroy bodily organs after they are
removed and sampled during an autopsy. Id. at 451. The defendant argued that the medical
examiner had made it impossible to examine facts or data underlying his expert opinions
due to the destruction of the bodily organs, and the trial court agreed. Id. at 452.
On appeal, the Court of Appeals reversed this determination, concluding there was
no spoliation of evidence:
This record is devoid of any facts or evidence that [the physician’s]
incineration of the deceased’s organs was done negligently or intentionally
to suppress the truth. There is no evidence that other experts in pathology
would be prejudiced by not having the organs themselves . . . . Nowhere did
defendants establish by competent medical proof that another pathologist
could not reasonably review [the medical examiner’s] work . . . . Defendants
have failed to establish any intent to spoliate or destroy evidence.
Id. at 454. We reach similar conclusions here. At trial, Dr. Strauser acknowledged that he
took handwritten notes during his interview of Employee and that he discarded those notes
after preparing his written report. He explained that “the relevant portions of those notes
are included in my report and in the documentation that I have.” Employer asked the court
to reach an inference that the destroyed notes “could have been positive for the employer.”
In response, Employee argued it was standard practice for a vocational expert to take notes
during an interview but not retain those handwritten notes after the expert’s written report
was prepared. The trial court declined to infer anything from the destroyed notes but
allowed Employer to cross-examine Dr. Strauser regarding his evaluation of Employee and
the contents of his written report.
2
In full, Rule 705 states: “The expert may testify in terms of opinion or inference and give reasons without
prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any
event be required to disclose the underlying facts or data on cross-examination.” Tenn. R. Evid. 705
(emphasis added).
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On appeal, Employer now asks that Dr. Strauser’s entire testimony “be stricken.”
Yet, at trial, Employer asked the court to infer the presence of evidence favorable to
Employer’s position in the destroyed handwritten notes. Employer has come forward with
no evidence that Dr. Strauser intentionally destroyed his notes in contravention of standard
practice for vocational experts. There is no evidence that Dr. Strauser destroyed his notes
intentionally in an effort to hide evidence or that another vocational expert would have
been precluded from or hindered in reviewing Dr. Strauser’s report and opinions due to the
destroyed notes. In short, Employer has not established sufficient evidence of an
intentional spoliation of evidence to support any relief on appeal.
Permanent Total Disability
When an employee’s disability arising primarily out of a work-related injury is
adjudged to be permanent, the employee is entitled to permanent disability benefits based
on the degree of vocational disability caused by the injury. Brown v. State, No. 01S01-
9502-BC-00020, 1995 Tenn. LEXIS 712, at *4-5 (Tenn. Workers’ Comp. Panel Nov. 22,
1995). Such benefits begin to accrue as of the date the employee reaches maximum
medical improvement. Smith v. United States Pipe & Foundry Co., 14 S.W.3d 739, 740
(Tenn. 2000). Moreover, an employee may be found permanently and totally disabled
“[w]hen an injury not otherwise specifically provided for in this chapter totally
incapacitates the employee from working at an occupation that brings the employee an
income.” Tenn. Code Ann. § 50-6-207(4)(B) (2021). In assessing an employee’s
permanent vocational disability caused by a work injury, the court can consider a number
of factors, including the employee’s medical impairment, job skills, education, age,
training, “job opportunities in the immediate and surrounding communities, and the
availability of work suited for an individual with that particular disability.” Hubble v. Dyer
Nursing Home, 188 S.W.3d 525, 535-36 (Tenn. 2006). An employee’s own assessment of
his or her overall physical condition, including the ability or inability to return to gainful
employment, “is competent testimony that should be considered.” Cleek v. Wal-Mart
Stores, Inc., 19 S.W.3d 770, 774 (Tenn. 2000). The extent of an employee’s vocational
disability is a question of fact to be determined from both lay testimony and medical
evidence. Id. at 773.
Here, Dr. Richardson testified Employee would be unable to stand for more than 15
minutes at a time, would be unable to walk for more than fifty yards without stopping, and
would be unable to lift fifteen pounds or more repetitively. Employee testified he continues
to seek pain management treatment and regularly uses a cane for ambulation. Dr. Strauser
testified that Employee reads at a kindergarten level. He concluded Employee would be
“unable to maintain work as [it] is typically performed in the labor market.” He also opined
Employee had a “100% vocational loss.” Employer offered no vocational expert testimony
to rebut Dr. Strauser’s opinions. Based on the record as a whole, we cannot conclude the
trial court erred in its assessment that Employee is permanently and totally disabled.
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Conclusion
For the foregoing reasons, we affirm the trial court’s order and certify it as final.
Costs on appeal are taxed to Employer.
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TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Tawan Braden ) Docket No. 2019-08-0544
)
v. ) State File No. 89807-2016
)
Mohawk Industries, Inc., et al. )
)
)
Appeal from the Court of Workers’ ) Heard February 7, 2022
Compensation Claims ) via Microsoft Teams
Deana C. Seymour, Judge )
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced
case was sent to the following recipients by the following methods of service on this the 1st day
of March, 2022.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Carolina Martin X carolinamartin@hallboothsmith.com
kbraun@hallboothsmith.com
Monica Rejaei X mrejaei@nstlaw.com
jkarpovich@nstlaw.com
Deana C. Seymour, Judge X Via Electronic Mail
Kenneth M. Switzer, Chief Judge X Via Electronic Mail
Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov
Workers’ Compensation Claims
Olivia Yearwood
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov