                                                                                FILED
                                                                             Mar 05, 2019
                                                                             01:35 PM(CT)
                                                                               TENNESSEE
                                                                          WORKERS' COMPENSATION
                                                                             APPEALS BOARD

            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD

Bessie Foster                              ) Docket No. 2018-08-0237
                                           )
v.                                         ) State File No. 1227-2017
                                           )
Andy Frain Services, Inc., et al.          )
                                           )
                                           )
Appeal from the Court of Workers’          )
Compensation Claims                        )
Allen Phillips, Judge                      )

                    Affirmed and Remanded – Filed March 5, 2019

In this interlocutory appeal, the employee alleged she injured her knee at work,
necessitating revision surgery to her pre-existing knee replacement. The employer denied
that the need for revision surgery arose primarily from the work accident. Following a
hearing, the trial court determined the employee presented sufficient proof that she is
likely to succeed at trial and ordered the employer to authorize the revision surgery.
Thereafter, the employer attempted to re-open the proof and supplement the record with
additional medical evidence not submitted at the expedited hearing. The trial court
denied the motion to re-open the proof. The employer has appealed the trial court’s
expedited hearing order but did not appeal the order denying its motion to re-open the
proof. Upon careful consideration of the record, we affirm and remand the case.

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.

Sara E. Barnett, Jackson, Tennessee, for the employer-appellant, Andy Frain Services,
Inc.

Christopher L. Taylor, Memphis, Tennessee, for the employee-appellee, Bessie Foster

                          Factual and Procedural Background

       Bessie Foster (“Employee”), a seventy-five-year-old resident of Shelby County,
Tennessee, worked as a security guard for Andy Frain Services, Inc. (“Employer”), at a
sports facility in Memphis. On December 30, 2016, Employee was struck by a cart,
which ran over her right foot. Employer accepted the compensability of the accident and

                                           1
provided certain medical benefits under the direction of Dr. Apurva Dalal. In addition to
complaints regarding her right leg and hip, Employee also reported symptoms involving
her right arm. Later, she also reported symptoms in her right knee. Approximately one
year after the work accident, Dr. Dalal determined Employee needed surgery to repair a
pre-existing knee replacement. Dr. Dalal opined that the work accident was the primary
cause of the need for the revision surgery.

       Employer declined to authorize this treatment, asserting that the need for revision
surgery did not arise primarily from the work accident. In support of its position,
Employer noted that Employee reported no symptoms associated with her right knee until
ten months after the work accident. Moreover, Employee apparently suffered a
subsequent accident on or about March 21, 2017, in which she fell while getting out of
bed, resulting in injuries to her right ankle and foot. Employer also relied on the expert
medical opinion of Dr. Riley Jones, who concluded “I cannot relate this patient’s
continued complaints to her injury in December 2016.” Employer argued that Dr.
Jones’s opinion overcame the presumption of correctness attributable to the causation
opinion of Dr. Dalal, the authorized treating physician.

       At an expedited hearing, Employee elected not to testify and instead relied on the
medical records and deposition testimony of Dr. Dalal. Employer also offered no live
witness testimony, but relied on the medical records and the opinions expressed by Dr.
Jones. Following the expedited hearing, but before the trial court issued its expedited
hearing order, Employer apparently discovered additional medical records from Dr.
David Lavelle, the physician who performed the original knee replacement surgery.
However, the trial court was unaware of this information when it issued its November 20,
2018 expedited hearing order compelling Employer to provide the recommended
treatment.

       Employer filed its notice of appeal on November 26, 2018. Thereafter, Employer
filed a “Motion to Re-Open Proof and/or Consideration of Additional Previously
Unknown Medical Report” on December 14, 2018. On December 19, 2018, we
remanded the case to the trial court for the purpose of resolving the pending motion. On
January 25, 2019, the trial court issued an order denying Employer’s motion to re-open
the proof. Employer did not appeal that order.

                                  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) (2018). 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). However, “[n]o similar

                                            2
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 with
no presumption of correctness afforded the trial court’s conclusions. 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 (2018).

                                               Analysis

       The trial court issued two orders implicated in this appeal: its expedited hearing
order granting medical benefits and its order denying Employer’s motion to re-open the
proof. However, Employer appealed only the expedited hearing order and asserted in its
notice of appeal that “[g]iven the medical proof as well as Employee’s failure to disclose
prior medical history related to her knee condition, [the Appeals Board] should find that
her knee condition is not causally related.”

        In its brief on appeal, Employer presents two issues: whether the trial court erred
in relying on Dr. Dalal’s opinions and whether the trial court erred in failing to consider
additional medical evidence. In presenting its arguments, Employer relies extensively on
the opinions of Dr. Lavelle, whose records were not submitted during the expedited
hearing and were excluded from consideration as a result of the trial court’s order
denying Employer’s motion to re-open the proof. Thus, the trial court did not have or
consider this information when it issued its expedited hearing order. As we have noted
previously, we generally do not consider evidence on appeal that was not considered by
the trial court. See Hadzic v. Averitt Express, No. 2014-02-0064, 2015 TN Wrk. Comp.
App. Bd. LEXIS 14, at *13 n.4 (Tenn. Workers’ Comp. App. Bd. May 18, 2015). Here,
we decline to consider any records or argument pertaining to the treatment or opinions of
Dr. Lavelle. 1

       It is well-settled that a trial court generally has the discretion to choose which
expert to accredit when there is a conflict of expert opinions. Johnson v. Midwesco, Inc.,
801 S.W.2d 804, 806 (Tenn. 1990); Payne v. UPS, No. M2013-02363-SC-R3-WC, 2014
Tenn. LEXIS 1112, at *18 (Tenn. Workers’ Comp. Panel Dec. 30, 2014); Bass v. The
Home Depot U.S.A., Inc., No. 2016-06-1038, 2017 TN Wrk. Comp. App. Bd. LEXIS 36,

1
  In its order denying Employer’s motion to re-open the proof, the trial court cited Tennessee Rule of
Civil Procedure 59 in support of its conclusion that there was no basis to review additional evidence and
reconsider, revise, or amend its interlocutory order compelling Employer to provide additional medical
benefits. Because Employer did not appeal this order, we need not address the applicability of Rule 59 to
an interlocutory order or the basis for the trial court’s decision to deny Employer’s post-hearing motion.
                                                    3
at *9 (Tenn. Workers’ Comp. App. Bd. May 26, 2017). Moreover, the causation
opinions expressed by an authorized treating physician are presumed correct, and the
burden is on the opposing party to overcome this presumption by a preponderance of the
evidence. Tenn. Code Ann. § 50-6-102(14)(E) (2018).

       In the present case, the trial court relied on the causation opinion of Dr. Dalal, the
authorized treating physician, in support of its determination that Employee was likely to
prevail in proving the need for the revision surgery arose primarily from the work
accident. The trial court found that Dr. Dalal “offered the more probable explanation for
[Employee’s] need for surgery.” Although Employer presented a conflicting expert
opinion from Dr. Jones, the trial court chose to accept Dr. Dalal’s opinion over that of Dr.
Jones, and there is no basis in this record to determine that the trial court erred in
accepting the causation opinion of the authorized treating physician over that of
Employer’s medical expert.          Accordingly, we conclude the evidence does not
preponderate against the trial court’s determination at this time.

                                        Conclusion

        For the foregoing reasons, the determination of the trial court is affirmed and the
case is remanded.




                                             4
                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD

Bessie Foster                                           )     Docket No. 2018-08-0237
                                                        )
v.                                                      )     State File No. 1227-2017
                                                        )
Andy Frain Services, Inc., et al.                       )
                                                        )
                                                        )
Appeal from the Court of Workers’                       )
Compensation Claims                                     )
Allen Phillips, 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 5th day of March, 2019.

 Name                              Certified   First   Via   Fax      Via     Sent to:
                                   Mail        Class   Fax   Number   Email
                                               Mail
 Christopher L. Taylor                                                  X     ctaylor@taylortoon.com
 Sara E. Barnett                                                        X     sarabarnett@spraginslaw.com
 Heather J. Gavrock                                                     X     hjg@spraginslaw.com
 Allen Phillips, 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




Matthew Salyer
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
