Cain, Sherry v. Volkswagen of America, Inc.

FILED
Mar 31, 2023
08:14 AM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT CHATTANOOGA
Sherry Cain, ) Docket No. 2022-01-0150
Employee, )
v. )
Volkswagen of America, Inc. ) State File No. 21842-2021
Employer, )
And )
XL Insurance America, Inc., ) Judge Audrey Headrick
Carrier. )
COMPENSATION ORDER
Ms. Cain asked the Court to award permanent partial disability benefits based upon
the impairment rating assigned by the Medical Impairment Rating Registry physician.1
Relying on its independent medical evaluation, Volkswagen argued it rebutted the
presumption of accuracy afforded to the Registry physician’s impairment rating by clear
and convincing evidence. The Court finds it did not rebut the presumption of correctness
attached to the Registry physician’s impairment rating. For the reasons below, the Court
holds Ms. Cain is entitled to permanent partial disability benefits based on the Registry
physician’s impairment rating.
History of Claim
The underlying facts are not disputed. On February 12, 2021, Ms. Cain worked in
quality assurance at Volkswagen where she repetitively lifted twenty-eight-pound hoods
to inspect the engine. She experienced pain and swelling in her left upper back, arm,
underarm, and chest. Ms. Cain sought emergency care, and the doctor diagnosed her with
deep vein thrombosis and thoracic outlet syndrome. After removing a blood clot from her
vein and placing her on a blood thinner, the doctor determined Ms. Cain’s work activities
caused the clot.
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At the hearing, Ms. Cain withdrew her claim for attorney fees and expenses for wrongful denial of benefits
under Tennessee Code Annotated section 50-6-226(d)(1)(B) (2022).
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Ms. Cain then selected Dr. Neelima Katraguta, a vascular surgeon, from a panel.
Dr. Katraguta surgically removed Ms. Cain’s left first rib. After the surgery, an ultrasound
showed a chronic-appearing non-occlusive thrombosis in her left subclavian vein. Dr.
Katraguta placed Ms. Cain at maximum medical improvement on December 8, 2021, and
assigned a fifteen percent impairment.
After receiving Dr. Katraguta’s rating, Volkswagen hired Dr. Jeffrey Hazlewood,
board-certified in physical medicine rehabilitation and pain management, for a second
opinion.2 Dr. Hazlewood testified that Ms. Cain denied pain down her left arm and reported
resolution of prominent veins on the left side of her chest. However, she complained of
periodic swelling, numbness and tingling, fatigue with overuse, and occasional left-elbow
pain and said she still had difficulty with some activities of daily living.
Dr. Hazlewood testified that he observed no swelling and no prominent veins. Dr.
Hazlewood believed the pain and tingling in her left chest and arm was caused by soft
tissue myofascial pain in the shoulder area and not from the blood clot. He determined she
did not have “claudication or upper extremity symptoms from the blockage of the blood
flow from the clot.” Dr. Hazlewood diagnosed her with venous thoracic outlet syndrome
from the venous thrombosis.
Dr. Hazlewood stated “a DVT is not easily rated in the Sixth Edition.” He testified
that there are two tables a doctor can use for DVT: Table 9-12 for thrombotic disorders or
Table 4-13 for upper extremity peripheral vascular disease. Dr. Hazlewood agreed that a
physician can consider Table 4-13 for DVT “[i]f one has a lot of pain and residual edema,”
but he chose to use Table 9-12 because it “was definitely the better of the two charts or
tables to use.” He explained he reached that conclusion based on courses he attended and
talking with the Guide’s authors.
After deciding which table to use, Dr. Hazlewood considered several factors in his
assessment. He noted Ms. Cain had no claudication, no swelling, no prominent veins, and
a resolved clot. She also had only one DVT episode and did not have a genetic clotting
disorder. Using these factors, he assigned a two-percent impairment rating.
Due to the conflicting ratings, Ms. Cain requested a rating from the Medical
Impairment Rating Registry. Ms. Cain and Volkswagen agreed upon Dr. Jerry Smith,
board-certified in physical medicine and rehabilitation. During his examination, Ms. Cain
complained of daily, intermittent pain in the left upper chest, upper trapezius area, and
upper arm. She also had constant swelling in the left upper trapezius and collarbone area
and tingling in the left upper chest and upper arm. She reported difficulty with several
activities of daily living.
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Ms. Cain testified she requested mileage reimbursement for traveling to Nashville for the examination,
which Volkswagen did not pay.
2
On examination, Dr. Smith observed that the veins in Ms. Cain’s left upper chest
area appeared more prominent than the right. She had mild swelling in the left clavicle
area and upper trapezius area and was tender in her upper chest and along a left underarm
scar. During testing, Ms. Cain experienced claudication, which is a tingling pain that
resolves when activity stops, in her left upper chest and upper arm. Based on Ms. Cain’s
history and exam, Dr. Cain diagnosed left venous thoracic outlet syndrome and venous
thrombosis.
Dr. Smith testified that DVT is hard to rate under the AMA Guides. He looked at
Table 9-12 but “thought it was not the most appropriate for her particular problems and
injury” because it is more for thrombotic disorders that cause people to have “clots over
and over.” Dr. Smith said, “[Ms. Cain] doesn’t fit in this whole section of this book.”
Instead, Dr. Smith identified Table 4-13 as the most appropriate because objective test
results are the “key factor,” and a venous Doppler study provided objective evidence that
Ms. Cain suffers from venous peripheral vascular disease.
Using Table 4-13, Dr. Smith stated Class 2 applied because of Ms. Cain’s history
of intermittent claudication and mild swelling, and her description of symptoms fell within
the middle of Grade C. Thus, he assigned a ten-percent impairment.
On cross-examination, Dr. Smith admitted that the “physical findings” for Class 2
of Table 4-13 describe “[v]ascular damage evidenced by a healed amputation of two or
more digits of one extremity with evidence of persistent vascular disease or superficial
ulceration.” He further agreed that these findings do not apply to Ms. Cain. When asked
what the Guides instruct if the physical findings are inapplicable, Dr. Smith stated, “I’m
not sure. What I do is just take an overall. Like for this, there’s physical findings [in the
table that are] described more in the history. Like edema they put [in the history section]
instead of in the physical findings.” Dr. Smith clarified, “I’m sure you’re supposed to do
the best you can with information provided in the tables.”
Dr. Hazlewood testified he disagreed with Dr. Smith’s rating because Ms. Cain had
neither claudication nor any swelling in the upper extremity. Likewise, Dr. Hazlewood
believed the venous Doppler ultrasound was normal, although he acknowledged “[t]he
scarring is going to be there.” Dr. Hazlewood clarified “that’s just old, dried blood,
basically, or a dried scar and clot [sic] but it was not an active clot.” He concluded that
‘[a]t most, [Ms. Cain] would be class 1” if using Table 4-13.
Both Drs. Hazlewood and Smith disagreed with Dr. Katraguta’s fifteen-percent
impairment rating, which provided no information regarding her use of the AMA Guides.
At the hearing, Ms. Cain testified that when Dr. Hazlewood examined her, she had
very noticeable veins and pointed out her shoulder and arm swelling. She said she
complained of fatigue and reported pain in both her left shoulder and arm, not just her
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shoulder.
Ms. Cain also testified regarding how her injury impacts activities of daily living.
She described difficulty with the following activities: taking a blouse on or off, washing
her hair, carrying groceries, sleeping on her left side, picking up her grandbaby, swimming,
and gripping a steering wheel while driving.
Ms. Cain and Volkswagen agreed she is only entitled to an original award of
permanent partial disability benefits. She returned to work at Volkswagen making greater
pay than she made on the date of injury. Further, the end of the initial compensation period
expired regardless of the rating relied upon by the Court.
Findings of Fact and Conclusions of Law
At a Compensation Hearing, Ms. Cain must prove by a preponderance of the
evidence that she is entitled to benefits. Tenn. Code Ann. § 50-6-239(c)(6) (2022).
Under Tennessee Code Annotated section 50-6-204(d)(4), Dr. Smith’s impairment
rating as the Registry physician is presumed to be accurate but may be rebutted by clear
and convincing evidence. In Mansell v. Bridgestone Firestone N. Am. Tire, 417 S.W.3d
393, 411 (Tenn. 2013), the Tennessee Supreme Court considered this statute and defined
the clear and convincing standard as follows: “if no evidence has been admitted which
raises a ‘serious and substantial doubt’ about the evaluation’s correctness, the MIRR
evaluation is the accurate impairment rating.”
The Court in Mansell also addressed relevant factors to consider when deciding
whether a party rebutted the Registry physician’s statutory presumption of accuracy. Those
factors include: (1) a comparison of the specialties of the physicians providing the ratings;
(2) whether a disagreement exists between the physicians regarding the employee’s
diagnosis; and (3) whether a Registry physician “used an incorrect method or an
inappropriate interpretation” of the AMA Guides. Id. at 410-411. Further, “the focus is
on the evidence offered to rebut [the Registry] physician’s rating.” Id. at 411.
Applying those factors here, the Court first finds Drs. Smith and Hazlewood are
equally qualified to assess a rating. Both are board-certified in physical medicine and
rehabilitation. Both are also Registry physicians.
Second, the Court finds that no disagreement exists between the doctors regarding
Ms. Cain’s diagnoses.
Third, the Court finds Dr. Hazlewood’s deposition testimony did not prove that Dr.
Smith “used an incorrect method or an inappropriate interpretation” of the AMA Guides.
Instead, Dr. Hazlewood stated that doctors can use either Table 9-12 or Table 4-13 for
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DVT. He stated a physician can consider using Table 4-13 “[i]f one has a lot of pain and
residual edema.” Although he felt Table 9-12 was the best option, Dr. Hazlewood’s
testimony reflects that using either table to rate a DVT is appropriate.
Finally, the Court considers Dr. Hazlewood’s testimony that ‘[a]t most, [Ms. Cain]
would be class 1” if using Table 4-13. He interpreted the venous Doppler study as normal
while Dr. Smith believed it showed the existence of thrombosis. Dr. Hazlewood stated he
did not observe swelling or prominent veins. He attributed Ms. Cain’s pain to soft tissue
myofascial pain instead of a blood clot and concluded she did not have claudication.
However, Dr. Smith, who placed Ms. Cain in Class 2, did observe those symptoms.
Therefore, the Court finds Dr. Hazlewood’s testimony did not prove Dr. Smith incorrectly
classified Ms. Cain using Table 4-13.
Turning to the lay testimony, the Court is guided by longstanding authority that the
employee’s own assessment of her physical condition and resulting disability is competent
testimony not to be disregarded. Orrick v. Bestway Trucking, Inc., 184 S.W.3d 211, 217
(Tenn. 2006). Here, Ms. Cain’s testimony is particularly important regarding the
symptoms that existed during her examinations with Drs. Hazlewood and Smith.
Specifically, Ms. Cain’s testimony about her symptoms mirrored those described by
Dr. Smith: swelling in her shoulder and arm, fatigue, pain in her shoulder and arm, and
very visible veins. She also testified she had these same symptoms when Dr. Hazlewood
examined her.
The Court finds Ms. Cain credible. Her testimony was calm, self-assured, confident,
forthcoming, reasonable, and honest. See Kelly v. Kelly, 445 S.W.3d 685, 694-695 (Tenn.
2014) (discussing indicia of witness credibility). She neither exaggerated nor embellished
her symptoms. Instead, the Court was convinced she provided an honest assessment of the
symptoms that existed during her examinations with Drs. Hazlewood and Smith.
Therefore, the Court finds Volkswagen did not rebut the presumption of correctness
attached to Dr. Smith’s rating. Thus, the Court awards Ms. Cain ten-percent permanent
partial disability benefits under Tennessee Code Annotated section 50-6-207(3)(A),
calculated as ten percent times 450 weeks times the stipulated compensation rate of
$746.51, or $33,592.95.
IT IS, THEREFORE, ORDERED as follows:
1. Volkswagen shall furnish medical care for Ms. Cain’s injury as required by
Tennessee Code Annotated section 50-6-204.
2. Volkswagen shall pay Ms. Cain permanent partial disability benefits totaling
$33,592.95.
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3. Ms. Cain’s attorney is entitled to a twenty-percent attorney’s fee to be paid from
her award. Tenn. Code Ann. § 50-6-226(a)(1).
4. Volkswagen shall pay Ms. Cain mileage reimbursement for her travel to Dr.
Hazlewood’s office in Lebanon, Tennessee. Tenn. Code Ann. § 50-6-
204(a)(4)(A).
5. Volkswagen shall pay the $150.00 filing fee to the Clerk within five business
days after this order becomes final under Tennessee Compilation Rules and
Regulations 0800-02-21-.06 (February, 2022).
6. Volkswagen shall file form SD-2 with the Clerk within ten business days of this
order becoming final.
7. Unless appealed, this order shall become final in thirty days.
ENTERED March 31, 2023.
_____________________________________
Judge Audrey A. Headrick
Court of Workers’ Compensation Claims
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APPENDIX
Exhibits:
1. Deposition of Dr. Smith
2. Deposition of Dr. Hazlewood
3. Pages from the AMA Guides, Sixth Edition
4. Pre-Compensation Hearing Statement
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Hearing
4. Notice of Appearance
5. Motion to Withdraw as Counsel for Employer
6. Order Granting Motion to Withdraw as Counsel for Employer
7. Scheduling Order
8. Ms. Cain’s Witness and Exhibit List
9. Dispute Certification Notice
10. Employee’s Pre-Hearing Brief
11. Pre-Compensation Hearing Brief
12. Volkswagen’s Witness and Exhibit List
13. Employer’s Pre-Hearing Brief
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CERTIFICATE OF SERVICE
I certify that a copy of this Compensation Order was sent as indicated on March 31, 2023.
Name Certified Email Service sent to:
Mail
Jeff Rufolo, X jrufolo@summersfirm.com
Employee’s Attorney
Jeff Powell, X jpowell@hennessyroach.com
Employer’s Attorney
/s/Penny Shrum w/permission JD
______________________________________
Penny Shrum, Court Clerk
WC.CourtClerk@tn.gov
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For notices of appeal filed on or after July 1, 2022.
Compensation Order Right to Appeal:
If you disagree with this Compensation Order, you may appeal to the Workers’
Compensation Appeals Board. To do so, you must:
1. Complete the enclosed form entitled “Notice of Appeal” and file it with the Clerk
of the Court of Workers’ Compensation Claims within thirty calendar days of the
date the Compensation 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
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file the fully-completed 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
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Appeals Board, and you will receive notice once it has been submitted. If no court
reporter was present at the hearing, 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 you must file it with the Court Clerk within fifteen calendar days of
filing the Notice of Appeal. Alternatively, you may file a statement of the evidence
prepared jointly by both parties within fifteen calendar days of filing the Notice of
Appeal. The statement of the evidence must convey a complete and accurate
account of the testimony presented at 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 must 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. You
have fifteen calendar days after the date of that notice to file a brief to the Appeals
Board. See the Rules governing the Workers’ Compensation Appeals Board on the
Bureau’s website
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
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. Tenn. Code
Ann. § 50-6-239(c)(7).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.