            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD


William Baumgardner                         ) Docket No. 2015-05-0619
                                            )
v.                                          ) State File No. 89624-2014
                                            )
United Parcel Service, Inc., et al.         )
                                            )
                                            )
Appeal from the Court of Workers’           )
Compensation Claims                         )
Dale Tipps, Judge                           )


               Affirmed and Certified as Final – Filed October 18, 2017

The employee sustained a compensable injury to his left knee arising primarily out of and
in the course and scope of his employment. The treating physician assigned permanent
restrictions to the employee but determined that the employee’s work injury merited no
permanent medical impairment rating. The employee’s medical expert assigned a
permanent medical impairment rating but testified only that he presumed the permanent
impairment was attributable to the work injury. Following the compensation hearing, the
trial court concluded the opinion of the treating physician outweighed that of the
employee’s expert and declined to award permanent disability benefits. The employee
has appealed. We affirm the determination of the trial court and certify the compensation
hearing order as final.

Judge Timothy W. Conner delivered the opinion of the Appeals Board in which Presiding
Judge Marshall L. Davidson, III, and Judge David F. Hensley joined.

Jason Denton, Lebanon, Tennessee, for the employee-appellant, William Baumgardner

David Hooper, Brentwood, Tennessee, for the employer-appellee, United Parcel Service,
Inc.




                                           1
                         Factual and Procedural Background

       William Baumgardner (“Employee”), a sixty-year-old resident of Rutherford
County, Tennessee, worked as a delivery driver for United Parcel Service, Inc.
(“Employer”). On November 11, 2014, he was delivering a package to a customer when
he became aware of a dog approaching him aggressively. In his efforts to avoid the dog,
he twisted his left knee, which resulted in immediate pain. He reported the incident
timely, and Employer accepted his workers’ compensation claim as compensable.

       Following an initial course of treatment with Dr. Martin Glynn, Employee was
referred for an orthopedic evaluation. Employer provided a panel that included Dr.
James Rungee and two other physicians. Employee testified that he selected Dr. Rungee
because of the proximity of the doctor’s office to his residence and because the other two
physicians listed on the panel were more than fifty miles away.

       In his deposition, Dr. Rungee testified he first evaluated Employee on December
8, 2014. At that time, Employee complained of left knee pain on the outside, or lateral
part, of his knee, but he had no pain along the inside, or medial part, of his knee. Dr.
Rungee noted no instability of the knee, no evidence of swelling, and no fluid on the
knee. X-rays revealed no bony abnormalities. An MRI showed some edema on the
outside of the knee consistent with a stress injury. The MRI also revealed a medial
meniscal tear, but Dr. Rungee testified that Employee reported no symptoms on the
medial side of the knee. Based on his findings, Dr. Rungee diagnosed a left knee injury
with lateral collateral strain and a lateral femoral condylar contusion. He also diagnosed
a medial meniscal tear he deemed to be degenerative and chronic. He opined the
meniscal tear pre-existed the work injury.

       After Employee completed a course of conservative treatment, Dr. Rungee ordered
a functional capacity evaluation (“FCE”), the results of which indicated Employee was
capable of returning to work in the medium physical demand category. Based on the
FCE findings, Dr. Rungee assigned restrictions of limited squatting and only occasional
climbing. Because Dr. Rungee concluded that Employee’s meniscal tear pre-existed the
work accident, he did not consider that diagnosis in evaluating whether Employee
retained any permanent medical impairment as a result of the compensable work injury.
Instead, he concluded that Employee’s work injury did not qualify for an impairment
rating in accordance with the AMA Guides to the Evaluation of Permanent Medical
Impairment (“AMA Guides”).

       Employee was also evaluated by Dr. Stephen Neely, an orthopedic surgeon. Dr.
Neely reviewed Employee’s medical records and completed a physical examination that
included range of motion testing. In his deposition, Dr. Neely described the results of his
range of motion testing as compared to Dr. Rungee’s test results as well as those reflected
in the FCE. He concluded his test results were consistent with the FCE, both of which

                                            2
indicated more limited range of motion in the knee than found by Dr. Rungee. Dr. Neely
opined that, based on his range of motion test results, Employee would be physically
incapable of performing any squatting motion whatsoever.

       Addressing medical causation and impairment, Dr. Neely concluded, “I think this
gentleman did sustain injuries to his left knee in this accident involving his trying to
evade the dog.” He then stated that, if the “diagnosis-based impairment” method is used
to calculate impairment, Employee would qualify for an impairment rating of one percent
to the body as a whole for the meniscal tear. Moreover, based on his conclusion that
Employee’s range of motion was abnormal, Dr. Neely testified he would assign an
alternative rating of three percent to the body as a whole for loss of range of motion.1 On
cross-examination, however, Dr. Neely acknowledged that he “assum[ed] the MRI . . .
findings were secondary to the injury” and stated, “[t]hat’s the way I rated him.” He also
admitted that if the meniscal injury pre-existed the work accident, “it wouldn’t have been
secondary to this injury.” Finally, he admitted he had no reason to question Dr. Rungee’s
finding that the meniscal injury pre-dated the work accident.

       Testimony at trial was unrefuted that Employer could not accommodate
Employee’s permanent work restrictions and that Employee retired soon thereafter.
Employee stated he had intended to work for ten more years; however, he felt he had no
choice but to retire in light of Employer’s inability to accommodate his restrictions. He
also admitted he has not attempted to work anywhere else and has not tried to find a job
within his work restrictions.

       In its compensation hearing order, the trial court noted the parties’ stipulations
regarding the compensability of Employee’s work accident and Employer’s inability to
accommodate the permanent work restrictions. As to the meniscal tear, the trial court
determined that Employee did not sustain his burden of proving that the tear was
causally-related to the work accident. In so holding, the trial court concluded that
Employer’s orthopedic panel was defective because two of the three physicians listed on
the panel were outside Employee’s community, in contravention of Tennessee Code
Annotated section 50-6-204(a)(3)(A)(i) (2016). As a result, the trial court declined to
afford Dr. Rungee’s causation opinion a presumption of correctness as described in
Tennessee Code Annotated section 50-6-102(14)(E) (2016).2 Nevertheless, even without

1
  Dr. Neely acknowledged on cross examination that a “strict” interpretation of the AMA Guides would
lead to no rating for decreased range of motion, but he chose to extrapolate a range-of-motion impairment
rating based on a mathematical calculation. Because Dr. Neely’s method of calculating a range-of-motion
impairment rating is not raised on appeal, we need not address whether this impairment rating satisfies
statutory requirements for use of the AMA Guides by rating physicians.
2
  The trial court’s determination that Dr. Rungee’s causation opinion was not entitled to a presumption of
correctness has not been raised as an issue by either party on appeal and, therefore, we need not address it
further.

                                                     3
affording Dr. Rungee’s opinion a presumption of correctness, the trial court found that
his opinion as to causation and permanent impairment outweighed that offered by Dr.
Neely. As a result, the trial court declined to award permanent disability benefits. In
light of its earlier finding that Employer’s orthopedic panel was defective, the trial court
ordered Employer to provide a new panel of orthopedic specialists for any additional
treatment made reasonably necessary by the work accident. Employee has appealed the
trial court’s denial of permanent disability benefits.

                                   Standard of Review

       The standard we apply in reviewing a 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) (2016) (“There shall be a presumption that the
findings and conclusions of the workers’ compensation judge are correct, unless the
preponderance of the evidence is otherwise.”). However, we review questions of law de
novo with no presumption of correctness. See Am. Mining Ins. Co. v. Campbell, No.
M2015-01478-SC-R3-WC, 2016 Tenn. LEXIS 907, at *18 (Tenn. Workers’ Comp. Panel
Dec. 9, 2016) (“A trial court’s conclusions of law are reviewed de novo upon the record
with no presumption of correctness.”). Moreover, the interpretation and application of
statutes and regulations concerns issues of law, which we review de novo with no
presumption of correctness afforded to the trial court’s findings. See Seiber v. Reeves
Logging, 284 S.W.3d 294, 298 (Tenn. 2009); Hadzic v. Averitt Express, No. 2014-02-
0064, 2015 TN Wrk. Comp. App Bd. LEXIS 14, at *9 (Tenn. Workers’ Comp. App. Bd.
May 18, 2015).

                                         Analysis

       It is well-established that an employee bears the burden of proving all essential
elements of his or her claim for workers’ compensation benefits by a preponderance of
the evidence. See Tenn. Code Ann. § 50-6-239(c)(6) (2016); 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). This includes the burden of proving that the
disabling condition alleged by the employee arose primarily out of the work accident.
See Tenn. Code Ann. § 50-6-102(14)(A); Panzarella v. Amazon.com, Inc., No. 2015-01-
0383, 2017 TN Wrk. Comp. App. Bd. LEXIS 30, at *9-11 (Tenn. Workers’ Comp. App.
Bd. May 15, 2017).

       In the present case, the testimony of the two medical experts was markedly
different on the issues of medical causation and impairment. On the one hand, the
treating physician, Dr. Rungee, concluded that although Employee sustained a stress
injury to the outer aspect of his knee, his subjective complaints were not consistent with
an acute injury to the medial meniscus. Moreover, Dr. Rungee opined that the presence
of a cyst at the site of the medial meniscal tear indicated to him the condition was likely

                                             4
chronic and degenerative. As a result, he opined the medial meniscal tear was
longstanding and pre-existed the work accident. This led him to conclude there was no
basis on which to assess a permanent medical impairment rating for the work injury.

       On the other hand, Dr. Neely declined to offer any opinion as to any diagnoses
causally-related to the work accident. He testified that he assumed the MRI findings
were related to the accident. He admitted he could not disagree with Dr. Rungee’s
conclusion regarding the chronic nature of the meniscal tear. He also admitted that his
method of calculating a range-of-motion impairment rating was not in accordance with
the AMA Guides.

        When faced with competing expert medical opinions, “a trial court has the
discretion to determine which testimony to accept.” 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). Even without affording the testimony of the
treating physician a presumption of correctness, the trial court in this case weighed the
testimony of each expert and concluded Dr. Rungee’s testimony was more persuasive.
The evidence does not preponderate against this determination. Thus, we conclude the
trial court was correct in determining that Employee failed to meet his burden of proof as
to any entitlement to permanent disability benefits.

        We also note Employee’s argument that a permanent medical impairment rating is
not an essential element of an award of permanent disability benefits. We agree that,
prior to the enactment of the 2013 Workers’ Compensation Reform Act (“Reform Act”),
a trial court could award permanent disability benefits under certain circumstances even
in the absence of a permanent medical impairment rating. However, after the enactment
of the Reform Act, the method of calculating permanent partial disability as set forth in
Tennessee Code Annotated section 50-6-207 (2016) is dependent on the existence of a
permanent medical impairment rating. Thus, absent a permanent medical impairment
rating, there is no statutory mechanism by which a trial court can award permanent partial
disability benefits.

                                       Conclusion

        Based on the foregoing, we conclude the trial court did not err in declining to
award permanent disability benefits in this case. We therefore affirm the decision of the
trial court and certify the compensation hearing order as final.




                                            5
                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD

William Baumgardner                                      )   Docket No. 2015-05-0619
                                                         )
v.                                                       )   State File No. 89624-2014
                                                         )
United Parcel Service, Inc., et al.                      )


                                     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 18th day of October, 2017.
 Name                    Certified   First Class   Via   Fax      Via     Email Address
                         Mail        Mail          Fax   Number   Email

 Jason Denton                                                        X    jdenton@rma-law.com
 David Hooper                                                        X    dhooper@hooperzinn.com
 Dale Tipps, Judge                                                   X    Via Electronic Mail
 Kenneth M. Switzer,                                                 X    Via Electronic Mail
 Chief Judge
 Penny Shrum, Clerk,                                                 X    Penny.Patterson-Shrum@tn.gov
 Court of Workers’
 Compensation Claims




Jeanette Baird
Deputy Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-0064
Electronic Mail: WCAppeals.Clerk@tn.gov
