Grissom, Benjamin v. AT&T Services, Inc.

FILED
Aug 25, 2022
01:15 PM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Benjamin Grissom ) Docket No. 2021-05-0400
)
v. ) State File No. 58242-2020
)
AT&T Services, Inc., et al. )
)
)
Appeal from the Court of Workers’ ) Heard August 10, 2022
Compensation Claims ) via Microsoft Teams
Dale A. Tipps, Judge )
Affirmed and Remanded
The employee was injured at work when a ladder fell onto his outstretched arm. After a
period of authorized medical treatment, including surgery to repair a rotator cuff tear, the
treating physician recommended additional testing of the cervical spine but informed the
employee that he had authority only to treat the shoulder. After seeking authorization for
additional medical treatment from the employer without effect, the employee sought
treatment on his own. The employee’s chosen physician diagnosed a nerve entrapment
condition in the injured shoulder and later offered an opinion that the medical treatment he
provided for that condition was reasonable, necessary, and causally related to the work
accident. Following an expedited hearing, the trial court accepted the opinion of the
employee’s chosen physician and ordered additional medical benefits to be provided by
that physician. It also ordered the employer to reimburse certain medical costs incurred by
the employee. The employer has appealed. Upon careful consideration of the record and
arguments of counsel, we affirm the trial court’s order and remand the case.
Presiding Judge Timothy W. Conner delivered the opinion of the Appeals Board in which
Judge Pele I. Godkin and Judge Meredith B. Weaver joined.
Charles E. Pierce, Knoxville, Tennessee, for the employer-appellant, AT&T Services, Inc.
Stephan D. Karr, Nashville, Tennessee, for the employee-appellee, Benjamin Grissom
Factual and Procedural Background
Benjamin Grissom (“Employee”) worked for AT&T Services, Inc. (“Employer”),
as a lineman. On August 26, 2020, Employee was maneuvering a ladder to secure it onto
1
his truck when the ladder fell and struck his outstretched right arm. According to
Employee’s testimony, “the full weight of the ladder fell onto that arm while it was
extended.” Following the accident, Employee reported experiencing “a sharp pain
radiating down the arm.” Employee later testified that “[i]t started at the base of the
neck . . . on the right side . . . and it would radiate down to my hand.” Employee attempted
to continue working but had increasing symptoms, including pain and intermittent tingling
in his right upper extremity.
Approximately ten days after the accident, Employee was seen by Dr. Glenn Davis
at a clinic in Manchester, Tennessee. According to Dr. Davis’s September 9, 2020 report,
Employee complained to Dr. Davis that he “continues to have a lot of pain, intermittent
tingling in his fingers.” X-rays of the right shoulder revealed possible acromiohumeral
impingement. Employee was taken off work pending further testing, and Dr. Davis ordered
an MRI of the right shoulder, which revealed “type III acromion with impingement” and a
“focal partial tear” of the right rotator cuff. Dr. Davis released Employee to return to work
with restrictions as of September 14, 2020, and he recommended a referral to an orthopedic
specialist. Employee selected Dr. James Rungee, an orthopedic surgeon, from Employer’s
panel for further evaluation and treatment.
According to Dr. Rungee’s September 23, 2020 report, he interpreted Employee’s
MRI as showing a “20% tear of his rotator cuff and a type III acromion predisposing him
to impingement.” He recommended a course of physical therapy followed by an
arthroscopic decompression of the right shoulder. Pending that treatment, he prescribed
continued work restrictions.
Dr. Rungee performed surgery on Employee’s right shoulder in November 2020.
Dr. Rungee’s November 16, 2020 report indicated that, during surgery, he discovered a
“surprise finding of a labral tear that extended from a SLAP into a superior Bankart tear.” 1
Following surgery, Dr. Rungee prescribed a course of physical therapy and recommended
the use of a sling. He again released Employee to return to work with restrictions. 2
In February 2021, Dr. Rungee noted significant improvement in Employee’s range
of motion and advised Employee that he anticipated releasing him to return to work without
restrictions soon thereafter. However, according to Dr. Rungee’s March 1, 2021 report,
Employee “started developing some tingling and burning that radiates to the right side of
his neck all the way into his long and ring fingers” and complained of weakness in his right
1
A “Bankart tear” is “a torn labrum in the anterior shoulder joint” that can cause instability and recurrent
dislocations. See “Bankart Tear,” Center for Musculoskeletal Disorders, https://www.nynjcmd.com/
shoulders/bankart-tear/ (last visited August 25, 2022).
2
During the expedited hearing, Employee testified Employer gave him ninety days to find a new job within
the company that complied with medical restrictions. He stated he “took a lesser paying job . . . so I could
stay with them.”
2
hand. X-rays of the cervical spine showed “a slight loss of cervical lordosis” but no other
abnormal findings. Dr. Rungee noted this was a “new complaint” and told Employee that
“this generally would be originating from his neck and not from his shoulder.” 3 He
recommended an EMG of the right arm but stated, “[i]t is unclear whether this would fall
into the purview of his Workers’ Comp claim or separate.” Employee returned to Dr.
Rungee’s office on March 22 after having completed the EMG. Dr. Rungee reported that
this test “showed evidence of possible borderline cubital tunnel syndrome, but no other
radiculopathy or neuropathy.” Dr. Rungee then advised Employee that “the next medical
step would be to get an MRI of the cervical spine, but that does not appear to be part of this
current claim for his right shoulder labral repair.” Dr. Rungee ordered a functional capacity
evaluation (“FCE”) “to determine what he can and cannot do safely.”
In his April 16, 2021 report, Dr. Rungee reviewed the results of the FCE, which
showed that Employee could perform work in the “medium” physical demand category but
that his physical status “does not quite reach the level of his prior job[,] and it requires
some permanent restrictions.” With respect to the neck and radiating pain complaints, Dr.
Rungee told Employee he would be “happy to see him whether it is under Workers’
Compensation or not” but that “unfortunately we cannot address that until it has been
approved as a separate claim by Workers’ Compensation.” Dr. Rungee also stressed to
Employee that “it is no less important that he [be] evaluated, diagnosed and treated” for
that condition. He then released Employee to return on a “p.r.n. basis.”
According to Employee’s testimony, after Dr. Rungee recommended the FCE in
March 2021, he contacted Employer’s HR department and its workers’ compensation
claims representative to discuss his work status and request for an additional medical
evaluation. Employee further testified that the claims representative responded, “we’ll see
after the FCE test.” According to Employee, he never received a call back from the claims
representative and never received authorization to return to Dr. Rungee for the
recommended cervical spine testing or to see another physician.
Thereafter, Employee contacted a service provided by Employer that helps
employees find medical specialists. Through that service, he was referred to Donald
Hakes, a physician’s assistant at a neurology clinic in Chattanooga. Employee first saw
Mr. Hakes in September 2021. Following an initial evaluation, Mr. Hakes diagnosed
cervical radiculopathy and recommended an MRI, which revealed a disc protrusion at the
C5-6 level without cord compression or cervical stenosis. Significantly, in his October 12,
2021 report, Mr. Hakes added a diagnosis of suprascapular neuropathy and ordered another
3
During the expedited hearing, Employee disputed Dr. Rungee’s characterization of these symptoms as
“new,” testifying that he had previously informed Dr. Rungee and/or his staff of pain radiating down his
right arm. Moreover, Dr. Rungee’s report did not reflect that Employee had complained of “intermittent
tingling in his fingers” within two weeks of the work accident as documented in Dr. Davis’s September 9,
2020 report.
3
EMG. Once the results of that test were received, Mr. Hakes referred Employee to Dr.
John Dorizas, a physician specializing in orthopedics and sports medicine.
In his December 6, 2021 report, Dr. Dorizas noted that Employee’s EMG showed a
compressed nerve in the right shoulder. Dr. Dorizas agreed with the diagnosis of
suprascapular neuropathy and impingement syndrome of the right shoulder, and he ordered
another MRI of that shoulder. 4 On December 29, 2021, Dr. Dorizas completed a right
shoulder suprascapular nerve block. In January 2022, Employee reported to Dr. Dorizas
that the nerve block had helped relieve symptoms for approximately one week, but his
symptoms had returned. Consequently, Dr. Dorizas recommended surgical intervention,
including a suprascapular nerve release with debridement. This surgery was performed on
March 1, 2022.
With respect to the issue of medical causation, Dr. Dorizas responded to a medical
questionnaire from Employee’s counsel on or about February 26, 2022. In his responses,
Dr. Dorizas indicated that although the testing of Employee’s cervical spine was not
necessitated by the work injury, the EMG and subsequent treatment for suprascapular
neuropathy were “causally related to [Employee’s] work injury . . . by greater than 50%
considering all causes.” He further explained his evaluation of Employee’s case as follows:
It is likely . . . based on my review of his case, that irritation of [Employee’s]
[suprascapular nerve] may have been the primary cause of symptoms from
beginning. However, I do not have all of the initial records. We performed
a diagnostic [suprascapular nerve] block which alleviated temp[orarily] 75%
of symptoms.
Dr. Dorizas then stated that the treatment he had provided was reasonable and medically
necessary. On April 27, 2022, Dr. Dorizas signed a subsequent questionnaire in which he
reviewed various medical charges for treatment he had provided or ordered and stated that
“all charges are necessary and reasonable.”
Employee filed a request for an expedited hearing and asked the trial court to compel
Employer to authorize treatment as provided by Dr. Dorizas and to order the
reimbursement of medical costs incurred by Employee as a result of Dr. Dorizas’s
treatment. In response, Employer argued that: (1) Dr. Rungee’s opinion as to medical
causation was entitled to a presumption of correctness; (2) Dr. Rungee had indicated that
the symptoms Employee reported after his initial surgery stemmed from a non-work-
related condition; (3) Dr. Dorizas’s causation opinion was flawed because he did not have
a complete set of Employee’s medical records to review; and (4) Dr. Dorizas’s causation
opinion did not overcome the presumption of correctness in favor of Dr. Rungee’s opinion.
4
Although Dr. Dorizas’s December 6, 2021 report noted suprascapular neuropathy on the “left side,”
subsequent reports indicated the suprascapular neuropathy was on the right side.
4
Following the hearing, the trial court determined that Dr. Rungee had not offered a
relevant causation opinion with respect to Employee’s suprascapular neuropathy. The
court accepted the causation opinion offered by Dr. Dorizas and determined Employee had
come forward with sufficient evidence to indicate a likelihood of prevailing on this issue
at trial. As a result, it ordered Employer to authorize treatment with Dr. Dorizas and to
reimburse medical costs incurred by Employee as a result of Dr. Dorizas’s treatment.
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 made by the trial court. Madden v. Holland Grp.
of Tenn., Inc., 277 S.W.3d 896, 898 (Tenn. 2009). Moreover, a trial court has the discretion
to determine which testimony to accept when presented with conflicting expert opinions,
and we review such determinations using an abuse-of-discretion standard. Johnston v.
Siskin Steel & Supply Co., No. E2020-00799-SC-R3-WC, 2021 Tenn. LEXIS 241, at *30-
31 (Tenn. Workers’ Comp. Panel Feb. 10, 2021). 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). 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
When a trial court is faced with conflicting expert opinions, it 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., No. 2016-06-1038, 2017 TN Wrk.
Comp. App. Bd. LEXIS 36, at *9 (Tenn. Workers’ Comp. App. Bd. May 26, 2017). As
noted above, the trial court has the discretion to determine which expert’s testimony to
accept when faced with conflicting expert opinions, and we review such determinations
under an abuse-of-discretion standard. 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. State v. Ostein, 293 S.W.3d 519, 526 (Tenn. 2009).
Initially, we note Employer’s argument that when evidence upon which the trial
court relied is documentary in nature, such evidence “can be subjected to a de novo review”
5
on appeal. We previously addressed the appropriate standard of review for expert medical
evidence in Moore v. Beacon Transport, LLC, No. 2018-06-1503, 2021 TN Wrk. Comp.
App. Bd. LEXIS 39 (Tenn. Workers’ Comp. App. Bd. Oct. 29, 2021). 5 In response to our
concurring colleague’s argument that documentary expert evidence is necessarily reviewed
de novo on appeal, we explained:
[T]his approach ignores a substantial body of case law directing us to
acknowledge the trial court’s role as factfinder and accord the trial court the
discretion to choose which expert offered the more probable explanation
based on the totality of the evidence. This framework was discussed by the
Supreme Court’s Special Workers’ Compensation Appeals Panel as recently
as June 2021 in Jumper v. Kellogg Co., No. W2020-01274-SC-R3-WC, 2021
Tenn. LEXIS 175 (Tenn. Workers’ Comp. Panel June 23, 2021), a case in
which the expert medical proof was by deposition: “When presented with
conflicting expert opinions, a trial court has discretion to determine which
testimony to accept . . . . A trial court abuses its discretion when it applies an
incorrect legal standard, reaches an illogical result, or bases its decision on a
clearly erroneous assessment of the evidence.” Id. at *17-18 (internal
citations omitted). The Tennessee Supreme Court adopted the Appeals
Panel’s opinion in Jumper as its own. See Jumper v. Kellogg Co., No.
W2020-01274-SC-R3-WC, 2021 Tenn. LEXIS 174 (Tenn. June 23, 2021).
Id. at *7 n.1; see also Lavender v. Saturn Corp., No. M2002-00759-SC-R3-CV, 2003 Tenn.
LEXIS 348, at *4 (Tenn. Workers’ Comp. Panel May 5, 2003) (“We may make an
independent assessment of the medical proof which is submitted by depositions, reports or
records. We do not, however, disagree with the discretion exercised by the trial judge in
this regard unless the record clearly shows an abuse of this discretion.”).
Hence, we conclude a reviewing court can conduct a de novo review of documentary
evidence, including expert depositions, in assessing where the preponderance of the
evidence lies. With respect to the trial court’s ultimate determination, however, the
reviewing court is to acknowledge the trial court’s discretion to evaluate which expert’s
opinion offered the more probable explanation based on the totality of the evidence
presented to the court and is to review such a determination under an abuse-of-discretion
standard.
Expert Medical Opinions
In its notice of appeal, Employer presented the disputed issues as whether the trial
court erred “in finding that benefits were owed for the alleged neck injury” and whether
“the presumption of correctness of the authorized treating physician had been overcome.”
5
Our decision in Moore v. Beacon Transport, LLC is currently on appeal to the Tennessee Supreme Court’s
Special Workers’ Compensation Appeals Panel.
6
In its brief, Employer restated the first issue as whether the trial court erred in finding that
“Dr. Dorizas presented the only relevant opinion as to causation of the neck and finger
complaints.” (Emphasis added.) This re-stating of the issue is relevant to our analysis as
it highlights the lack of a diagnosis as of the date of Dr. Rungee’s final report. While we
agree with Employer that Dr. Rungee was a panel-selected authorized treating physician
whose causation opinion is entitled to a presumption of correctness, we also agree with the
trial court that Dr. Rungee offered no such opinion with respect to Employee’s diagnosed
condition of suprascapular neuropathy. A close reading of Dr. Rungee’s March 1, 2021
report supports this conclusion. Dr. Rungee recorded what he described as “new”
complaints, and he speculated that those complaints likely stemmed from a cervical spine
condition. However, he offered no diagnosis and did not address the cause or causes of
any such diagnosed condition. He recommended additional testing to assist in diagnosing
the condition but stated he was unsure whether such testing would be covered under
Employee’s workers’ compensation claim.
Moreover, in his March 22, 2021 report, Dr. Rungee noted Employee’s continued
complaints of radiating pain and tingling in his right upper extremity but stated “this does
not appear to be part of his current claim.” (Emphasis added.) He then advised that, in his
opinion, if Employee had suffered a neck injury during the work accident, “I would suspect
he would have symptoms [long] before just a month ago.” (Emphasis added.) These
statements, which form the basis of Employer’s arguments regarding causation, are
speculative and do not address the cause of Employee’s suprascapular neuropathy. Simply
put, as of March 22, 2021, when Dr. Rungee made those statements, Employee’s radiating
pain symptoms and tingling in the right upper extremity had not been evaluated. No
additional diagnostic testing had been performed to assess these complaints and no
diagnosis had been made. In fact, none of Dr. Rungee’s reports mention suprascapular
neuropathy as a potential diagnosis. It is incongruous for Employer to argue that Dr.
Rungee offered a causation opinion for a condition that had not yet been diagnosed.
In preparation for the expedited hearing, neither party chose to depose a medical
expert. Instead, the parties agreed to submit medical records in support of their respective
positions as evidence. Consequently, there is nothing in the record to indicate Dr. Rungee
was given the opportunity to review additional diagnostic testing, Dr. Dorizas’s medical
records, or the surgery report. Dr. Rungee was not given the opportunity to address whether
he agreed with the diagnosis of suprascapular neuropathy, and he was not asked to address
the cause or causes of that condition. In short, there is nothing in the record to contravene
Dr. Dorizas’s causation opinion regarding Employee’s suprascapular neuropathy.
Our conclusion regarding Dr. Rungee’s statements, however, does not end the
inquiry. Even without consideration of Dr. Rungee’s records, Employee had the burden of
coming forward with sufficient evidence of causation to support the trial court’s
determination that he was likely to prevail on this issue at trial. Thus, we must assess
whether the trial court erred in concluding that Dr. Dorizas’s causation statements satisfied
7
Employee’s burden. In this regard, Employer takes issue with Dr. Dorizas’s responses to
a medical questionnaire submitted by Employee’s counsel. Although Dr. Dorizas indicated
in his responses that Employee’s suprascapular neuropathy was causally related to the work
accident “by greater than 50% considering all causes,” he also indicated in his handwritten
explanation that he did not have “all of the initial records.” Yet, as noted above, the initial
records from Dr. Davis corroborate Employee’s testimony that he complained of tingling
down his right arm and into his fingers within two weeks of the work accident. Nothing in
the record refutes Dr. Dorizas’s diagnosis of a nerve entrapment in his right shoulder, and
nothing refutes Employee’s testimony that the suprascapular nerve decompression
performed by Dr. Dorizas improved Employee’s symptoms significantly. Thus, the record
in this case supports a conclusion that Dr. Dorizas diagnosed a nerve entrapment in the
right shoulder that he believed was primarily caused by the work accident and that his
treatment for that condition led to significant improvement in Employee’s condition.
Under the circumstances, we agree with the trial court’s determination that Employee came
forward with sufficient evidence to indicate a likelihood of prevailing on this issue at trial.
Frivolous Appeal
Finally, Employee asserts Employer’s appeal is frivolous for several reasons:
(1) Employer took no expert medical depositions; (2) Employer did not offer any responses
from Dr. Rungee to a medical questionnaire to counter the opinions offered by Dr. Dorizas;
(3) Employer conducted very little cross-examination of Employee during the expedited
hearing; and (4) Employer offered no exhibits in addition to the ones submitted by
Employee prior to or during the expedited hearing. In Employee’s view, Employer’s
appeal had no reasonable chance of succeeding for the reasons noted above and should
therefore be deemed frivolous.
With respect to Employee’s argument on this issue, we note that a party and/or its
counsel is entitled to make strategic decisions regarding the nature and extent of evidence
it chooses to present at any given hearing. In circumstances where that party does not bear
the burden of proof, there may be various reasons not to submit additional evidence or
cross-examine opposing witnesses, and, absent extraordinary circumstances, it is not our
role to second guess such strategic decisions.
A frivolous appeal is one that is devoid of merit, Combustion Eng’g, Inc. v.
Kennedy, 562 S.W.2d 202, 205 (Tenn. 1978), one that has no reasonable chance of
succeeding, Davis v. Gulf Ins. Grp., 546 S.W.2d 583, 586 (Tenn. 1977), or one that is
brought solely for delay, Yarbrough v. Protective Servs, Inc., No. 2015-08-0574, 2016 TN
Wrk. Comp. App. Bd. LEXIS 25, at *14-15 (Tenn. Workers’ Comp. App. Bd. May 27,
2016). See also Tenn. Comp. R. & Regs. 0800-02-22-.09(4) (2020). As the Tennessee
Supreme Court noted in Davis, a frivolous appeal is “recognizable on its face as devoid of
merit” if the appeal “presents no justiciable questions.” Davis, 546 S.W.2d at 586. We
conclude this case does not rise to that level. There is a colorable argument that Dr.
8
Rungee’s statements calling into question whether Employee’s radiating pain and tingling
in the right arm and hand were related to the work accident contradicted the opinions
offered by Dr. Dorizas. Moreover, Employer had a colorable argument that Dr. Dorizas’s
lack of access to a complete set of Employee’s medical records weakened his causation
opinion. This appeal required us to assess whether the trial court erred in its consideration
of the expert proof at an interlocutory stage of the case. Thus, we conclude this appeal is
not frivolous.
Conclusion
For the reasons set out above, we affirm the trial court’s order in all respects and
remand the case. We further conclude that this appeal is not frivolous. Costs on appeal
are taxed to Employer.
9
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Benjamin Grissom ) Docket No. 2021-05-0400
)
v. ) State File No. 58242-2020
)
AT&T Services, Inc., et al. )
)
)
Appeal from the Court of Workers’ ) Heard August 10, 2022
Compensation Claims ) via Microsoft Teams
Dale A. Tipps, 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 25th day
of August, 2022.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Charles E. Pierce X cepierce@mijs.com
jdhaynes@mijs.com
Stephan D. Karr X steve@flexerlaw.com
cindy@flexerlaw.com
Dale A. Tipps, 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