            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD

Larry Thomas Schmidt                        ) Docket No. 2016-05-1255
                                            )
v.                                          ) State File No. 75063-2014
                                            )
City of Dickson, et al.                     )
                                            )
                                            )
Appeal from the Court of Workers’           )
Compensation Claims                         )
Thomas Wyatt, Judge                         )

                   Affirmed and Remanded - Filed October 31, 2017

The employer appeals the trial court’s award of medical benefits following an expedited
hearing. The employee suffered compensable injuries when the rear gate of a large dump
truck detached and struck the open door of the waste-control truck on which the
employee was standing while raising the truck’s bed. The truck door struck the employee
in the back, knocking him into the steering column in the cab of the truck. The employer
accepted the claim and initiated medical benefits, and the employee eventually underwent
surgery on his left shoulder. Although the employer paid for most of the expenses
associated with the surgery, it denied payment for a medical compression device used
during the surgery, contending it was not necessary for treatment of the employee’s
work-related injuries. The employer also denied payment for a second functional
capacity evaluation and refused to authorize diagnostic testing for the employee’s right
upper extremity complaints, both of which were recommended by the treating physician.
Six days before the expedited hearing was conducted, the employee filed the treating
physician’s response to correspondence, which provided the physician’s opinions
concerning the disputed items. The trial court admitted the document into evidence over
the employer’s objection to its late filing. We affirm the trial court’s decision and
remand the case for further proceedings as may be necessary.

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

Stephen W. Elliott, Nashville, Tennessee, for the employer-appellant, City of Dickson

J. Allen Brown, Nashville, Tennessee, for the employee-appellee, Larry Thomas Schmidt


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                          Factual and Procedural Background

        Larry Thomas Schmidt (“Employee”), a utility worker for the City of Dickson
(“Employer”), was injured on September 22, 2014, while in the process of emptying
waste from a truck at the city’s landfill. After backing the truck into place, he opened the
door and stood on the “stirrups,” which he described as a platform that allows access to
the levers used to operate the bed on the truck. He testified that in the process of
emptying waste from the truck, an “18-wheeler” had backed up so close to his truck that
its “back end was quartering the front of [his] truck.” He testified that while the bed of
the “18-wheeler” was being raised to dump its waste, the “whole steel door completely
fell off their truck, come [sic] disassembled from the body of their truck[,] [f]lew through
the air, hit my truck door, which caused the momentum to smash my truck door into my
spine, my upper spine, and the force . . . threw me through the air into my cab.” He
testified both of his hands were injured in the process when he grabbed the steering
column “because . . . [he] flew through the air, and as [he] made contact with that
steering column, that was just [his] reaction to stop [himself].”

        Employer authorized medical treatment following the incident, including
treatment for Employee’s spinal complaints with Dr. Tarek Elalayli and treatment for his
left wrist and shoulder with Dr. Thomas Dovan. Dr. Dovan performed a left wrist
arthroscopy and carpal tunnel release in November 2015, and on April 1, 2016, he
performed a left shoulder arthroscopic labral repair, left distal clavicle resection, and left
subacromial decompression.

       Dr. Dovan’s preoperative orders for the shoulder surgery included “[k]nee
[surgical compression devices] for all patients except local ONLY cases,” and noted that
the requested anesthesia included “Brachial Block and General [anesthesia].” On the day
of the surgery, a risk assessment form completed at Baptist Plaza Surgicare indicated
Employee to be “High Risk” based upon “[s]urgery scheduled 1 hour or longer,” his age
being “40 or older,” and having a “History of Smoking/Chewing Tobacco use.” The
“Risk Assessment Findings” on the form noted that surgical compression devices were
“advised” and to “notify surgeon.” (Emphasis in original.) Prior to the surgery, both Dr.
Dovan and Employee signed a document styled “Patient Direct Agreement DVT
Prevention System,” which identified “Items Provided to Patient by MedVantage,”
including “Intermittent Pneumatic Compression Device and All Accessories.” The
document noted the risk factors identified in the risk assessment form and described the
equipment being provided as “VENAFLOW ELITE FOAM CALF CUFF.” Employer’s
workers’ compensation insurer subsequently declined to pay for the medical equipment,
stating in a letter to the equipment provider “[t]his is not related to [Employee’s] work
injury.” Employee testified at the expedited hearing that Dr. Dovan ordered the
compression device and that he did not “have any say in the matter.” He agreed on cross-
examination that he signed the “Patient Direct Agreement,” but testified “[t]o my
knowledge, that was just for the anesthesia.”

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        In addition to the operative reports of Employee’s left wrist and left shoulder
surgeries, the record on appeal includes reports of only two office visits Employee had
with Dr. Dovan, both of which were subsequent to Employee’s shoulder surgery. In the
first postoperative report, Dr. Dovan noted that Employee “is in the office to follow up
for the [functional capacity evaluation] for his left shoulder,” which Dr. Dovan’s report
stated “came back as an invalid study.” Employee told Dr. Dovan that he “gave a full
effort.” Dr. Dovan was unable to recommend work restrictions at that time, stating that
“based on his diagnosis and MRIs, it is not enough information to actually be able to
recommend work restrictions.” Noting that the functional capacity evaluation (“FCE”)
was “not perfect, [but] it is our best study,” Dr. Dovan stated “[i]f [Employee] feels that it
is not an appropriate evaluation of his effort, then we can try to get another FCE.”
Finally, the report stated “[w]e are going to order another FCE and proceed from there.”

        Employee testified that after Dr. Dovan ordered the initial FCE, a company
contacted him by telephone and subsequently met him “in a very small van” in a Walmart
parking lot. He testified that “[a]s tall as I am, I could barely stand up in the van.” He
stated that, in his opinion, he “performed the best that [he] could on that test.” He
testified that when he returned to Dr. Dovan after completing the FCE, Dr. Dovan told
him that he could not use the FCE and “will have to order you another one.”

       The second postoperative report reflects that Employee returned “to discuss the
burning pain he has in his left posterior scapula” and that Employee “has had that pain all
along.” The report notes that Employee “thinks it is from his neck,” and documents that
Employee asked if Dr. Dovan could refer him back to Dr. Elalayli. Dr. Dovan noted in
the report that Employee’s shoulder pain “could possibly be his neck” and stated that he
“would like to have Dr. Elalayli look at that again.” The report indicated Dr. Dovan
believed Employee had reached his maximum medical improvement at that visit with
respect to the conditions Dr. Dovan treated.

       Employee testified that at his most recent visit with Dr. Dovan, an EMG nerve
conduction study was ordered due to Employee’s right wrist complaints, but the workers’
compensation insurer would not approve the study. The office note in which Dr. Dovan
ordered the EMG was not included in the record on appeal. However, the parties do not
dispute that Dr. Dovan ordered the testing. Employer declined to authorize the testing on
the basis Employee did not timely report a right arm injury resulting from the September
2014 work accident. By contrast, Employee testified he reported injuries to both hands
and arms on the date of the accident. The first report of injury completed by Employer
noted the body parts affected to be “multiple body parts.”

       The final point of dispute on appeal concerns Dr. Dovan’s response to
correspondence dated June 24, 2017, which was sent by Employee’s attorney. The
correspondence was filed with Employee’s “Notice of Filing Treating Physician’s
Medical Opinions” six days before the August 23, 2017 expedited hearing. Employer

                                              3
objected to the document because it was filed less than ten days before the scheduled
hearing. Employee’s attorney stated that he did not receive the responses until August
16, 2017, and then only after repeated contacts with Dr. Dovan’s office requesting the
doctor to reply to his letter. Noting that “[w]e do have a rule that says documents should
be filed within ten days [of a scheduled hearing],” the trial court concluded, “in light of
the fact that [Employee’s attorney] did submit this letter to Dr. Dovan two months ago …
and based on his statements that he tried to get Dr. Dovan to address this earlier and only
received it himself on August 16th, the Court will overrule the objection and admit it into
evidence . . . .”

       Dr. Dovan’s response to Employee’s letter provided his opinions concerning the
disputed items. Dr. Dovan opined that the compression device utilized in Employee’s
shoulder surgery was “reasonable, necessary, and related to the workers’ compensation
surgery.” He indicated he had intended Employee’s FCE to be performed by a Tennessee
licensed physical or occupational therapist, and that the order for the second FCE was
“reasonable, necessary, related to the injury, and made necessary because of the problems
with the first FCE.” Finally, Dr. Dovan opined that the EMG he ordered at Employee’s
last visit was “reasonable, necessary, and related to the work injury.” Following the
expedited hearing, the trial court ordered Employer to pay for the surgical compression
device, reimburse Employee the expense of the FCE, and pay for the additional EMG
study. Employer has appealed.

                                  Standard of Review

       The standard we apply in reviewing a trial court’s decision presumes 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

       Employer raises four issues on appeal: (1) whether the trial court erred in
admitting into evidence the correspondence that included Dr. Dovan’s medical opinions;

                                            4
(2) whether the trial court erred in requiring Employer to pay for the surgical
compression device; (3) whether the trial court erred in ordering Employer to reimburse
Employee the cost of the second FCE; and (4) whether the trial court erred in ordering
Employer to authorize and pay for the EMG study.

       The Rules of the Bureau address medical records to be presented as evidence at a
hearing:

       All medical records designated by the parties to be presented as evidence at
       a scheduled hearing shall be filed with the Bureau no later than ten (10)
       business days before the scheduled hearing date. Absent good cause as
       determined by the presiding workers’ compensation judge, failure to
       comply may result in the exclusion of any medical record that is not filed
       timely or the assessment of costs or sanctions against the party or the
       attorney of the party designating the medical record. Absent good cause as
       determined by a workers’ compensation judge, no other medical records
       should be filed with the Bureau.

Tenn. Comp. R. & Regs 0800-02-21-.16(6)(a) (2016).

       A trial court’s decision regarding the admission or exclusion of evidence is
entrusted to the court’s discretion and will not be disturbed on appeal unless the trial
court abused its discretion. State v. Banks, 271 S.W.3d 90, 116 (Tenn. 2008). As the
Tennessee Court of Appeals has stated:

       Generally in Tennessee, a trial court’s ruling on the admissibility of
       evidence is within the sound discretion of the trial judge. Further, trial
       courts are accorded a wide degree of latitude in their determination of
       whether to admit or exclude evidence, even if such evidence would be
       relevant. A trial court’s evidentiary ruling will only be overturned on
       appeal upon a showing of abuse of discretion.

Green v. Smith, No. M2006-01729-COA-R3-CV, 2008 Tenn. App. LEXIS 261, at * 10
(Tenn. Ct. App. Apr. 30, 2008).

        In the instant case, Employer alleges the trial court erred by failing to exclude as
evidence the correspondence in question. However, Employer does not address in what
way the trial court abused its discretion by admitting the document into evidence.
Employer contends, and we agree, that the correspondence “constituted important
substantive evidence” in the case, and Employer contends the late filing “deprived [it] of
a fair and reasonable opportunity to rebut this evidence.” It is significant, however, that
Employer did not request a continuance or request additional time to obtain evidence to
rebut Dr. Dovan’s medical opinions. Employer offered documents into evidence at the

                                             5
hearing, but none of the documents included medical opinions or contradicted Dr.
Dovan’s medical opinions.

      The Tennessee Supreme Court has provided guidance to appellate courts in
determining whether a trial court abused its discretion. In Lee Med. v. Beecher, 312
S.W.3d 515 (Tenn. 2010), the Court stated:

       Discretionary decisions must take the applicable law and the relevant facts
       into account. An abuse of discretion occurs when a court strays beyond the
       applicable legal standards or when it fails to properly consider the factors
       customarily used to guide the particular discretionary decision. A 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 524.

        Here, there is no dispute that the correspondence at issue was not filed within ten
business days of the scheduled hearing. However, the trial court heard Employee’s
explanation for the late filing and, at least implicitly, determined that the explanation
demonstrated good cause as contemplated by the Bureau’s regulation. Employer did not
deny having received the letter six days prior to the expedited hearing. Moreover, the
regulation does not provide that medical records filed less than ten days from the hearing
date cannot be considered; rather, it states that the untimely filing of medical records may
result in their exclusion. Thus, we conclude the trial court did not abuse its discretion in
admitting the correspondence into evidence.

       Having concluded Dr. Dovan’s medical opinions were properly admitted into
evidence, we find no merit in Employer’s remaining arguments. In the course of his pre-
surgical assessment, Dr. Dovan concluded Employee was at risk for deep vein thrombosis
and ordered the surgical compression device. He subsequently opined that the device
was “reasonable, necessary, and related to the workers’ compensation surgery.”
Employer offered no medical proof to the contrary. See Tenn. Code Ann. § 50-6-
204(a)(3)(H) (2016) (treatment recommended by the authorized treating physician “shall
be presumed to be medically necessary for treatment of the injured employee”).

       Similarly, there is no medical evidence other than Dr. Dovan’s opinion concerning
the reasonableness and necessity for the second FCE. Employee offered unrefuted
testimony as to the circumstances and conditions under which the initial FCE was
conducted and testified Dr. Dovan ordered the second FCE. In the correspondence
admitted into evidence over Employer’s objection, Dr. Dovan expressed the opinion that
“the second FCE order [was] reasonable, necessary, related to the injury, and made

                                             6
necessary because of the problems with the first FCE.” As we have previously observed,
when “[t]he only medical opinion addressing causation contained in the record is contrary
to [Appellant’s] position[,] [a]bsent countervailing medical proof, this opinion must carry
the day.” Berdnik v. Fairfield Glade Cmty. Club, No. 2016-04-0328, 2017 TN Wrk.
Comp. App. Bd. LEXIS 32, at *16 (Tenn. Workers’ Comp. App. Bd. May 18, 2017).
Employer did not come forward with contrary medical proof. Thus, we conclude the trial
court did not err in ordering Employer to reimburse Employee for the cost of the FCE.

       Finally, Employer asserts Employee did not establish that his right arm complaints
were causally related to his work injury. As with the preceding issues concerning the
surgical compression device and the second FCE, this assertion depends on the exclusion
of Dr. Dovan’s medical opinions. Having concluded the trial court did not err in
admitting Dr. Dovan’s opinions into evidence, we also conclude the trial court did not err
in relying on Dr. Dovan’s opinion that the EMG ordered to evaluate Employee’s right
upper extremity complaints was “reasonable, necessary, and related to the work injury.”

       Employee requests we find Employer’s appeal to be frivolous and award him
attorneys’ fees and expenses incurred on appeal. We do not find this appeal to be
frivolous and, therefore, we deny Employee’s request for attorneys’ fees and expenses.

                                       Conclusion

       We hold that the trial court did not abuse its discretion in admitting into evidence
the medical opinions of Dr. Dovan. We further hold that the evidence does not
preponderate against the trial court’s determinations to order Employer to pay for the
surgical compression device, to require Employer to reimburse Employee for the cost of
the second FCE, and to authorize the diagnostic testing recommended by Dr. Dovan.
Accordingly, the trial court’s decision is affirmed, and the case is remanded for any
further proceedings that may be necessary.




                                            7
                         TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                           WORKERS’ COMPENSATION APPEALS BOARD


Larry Thomas Schmidt                                              )   Docket No.    2016-05-1255
                                                                  )
v.                                                                )   State File No. 75063-2014
                                                                  )
City of Dickson, 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 31st day of October, 2017.
     Name                         Certified   First Class   Via   Fax       Via     Email Address
                                  Mail        Mail          Fax   Number    Email

     J. Allen Brown                                                           X     allen@jallenbrownpllc.com
     Stephen Elliott                                                          X     selliott@howell-fisher.com
     Fetlework S. Balite-Panelo                                               X     fsbalite-panelo@howell-fisher.com
     Thomas L. Wyatt, Judge                                                   X     Via Electronic Mail
     Kenneth M. Switzer, Chief                                                X     Via Electronic Mail
     Judge
     Penny Shrum, Clerk,                                                      X     Penny.Patterson-Shrum@tn.gov
     Court of 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
