           TENNESSEE BUREAU OF WORKERS’ COMPENSATION
          IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                           AT NASHVILLE

 LOUIS GARASSINO,                            )   Docket No. 2014-07-0013
          Employee,                          )
                                             )   State File No. 79380-2015
 v.                                          )
                                             )   Judge Joshua Davis Baker
 WESTERN EXPRESS,                            )
         Employer.                           )

                       COMPENSATION HEARING ORDER

       This matter came before the Court for a Compensation Hearing on May 19, 2016.
The employee, Louis Garassino, and the employer, Western Express, stipulated to the
majority of the dispositive legal issues, so the only remaining disputed issue concerned
Mr. Garassino’s degree of permanent impairment. The parties presented competing
impairment ratings from the authorized treating physician and Mr. Garassino’s evaluating
physician. In comparing these two, the rating provided by the authorized treating
physician enjoys a presumption of correctness. The Court, however, finds Mr. Garassino
presented sufficient evidence to overcome the presumption and adopts the rating
provided by the evaluating physician.

                                    History of Claim

       Mr. Garassino is a fifty-nine-year-old resident of Stewart County, Tennessee, who
worked as an over-the-road truck driver for Western Express. On July 3, 2014, he injured
his back while using a crank to raise the height of a semi-trailer to attach to his truck.
Western Express accepted the claim, provided medical care and temporary disability
benefits. His compensation rate at the time of the injury was $223.43 per week. (T.R. 4
at ¶12.)

        Mr. Garassino treated with Dr. Robert Weiss, who performed back surgery. On
January 19, 2015, Dr. Weiss assigned Mr. Garassino an impairment rating of six percent
to the body as a whole. (T.R. 4 at ¶7.) Dr. Weiss’ medical note of the same date states
the following concerning calculation of the rating:
       The lumbar regional grid, table 17-4 is utilized and this patient falls into the
       classification of motion segment lesions, 1 to 9 percent, class 1. This is an
       intervertebral disc herniation at a single level with medically documented
       findings, with or without surgery.           The patient had documented
       radiculopathy at the clinically appropriate level, present at the time of the
       initial examination, and now has resolved symptoms.

(Ex. 1 at 18.)

       Dr. Weiss testified via deposition. Concerning the rating, he adamantly
maintained Mr. Garassino rated as a class 1 on the lumbar regional grid because his
radicular symptoms had resolved. (Ex. 3.)

       Several months after receiving Dr. Weiss’ impairment rating, Dr. David West
evaluated Mr. Garassino and opined he retained thirteen percent impairment to the body
as a whole from his back injury. (T.R. 4 at ¶8.) Dr. West testified Mr. Garassino should
be rated as a class 2 on the lumbar spine regional grid per the American Medical
Association Guides to the Evaluation of Disability and Permanent Impairment (AMA
Guides) due to his radicular symptoms. (Ex. 2 at 15.) He stated the following:

       We know he falls into a motion segment lesion because he had an
       intervertebral disc herniation, so that either puts him into a class 1 or a class
       2. And again, what we just stated was the fact, if you look at class 2, he has
       an intervertebral disc herniation at a single level with medically-
       documented findings with or without surgery and with documented residual
       radiculopathy at the clinically appropriate level. That basically summarizes
       his current examination when I examined him with the exception of a
       modifier that I added to the 12% which is the fall and it was 13%.

Id. at 14. He further explained that a patient will “generally” receive a rating grade of
“C” in a particular rating class as the C is in the middle of rating spectrum. Id. at 15-17.
Thereafter, the rating would be adjusted based on results from other impairment rating
criteria. Based on the results from clinical studies, functional impairments, and physical
impairments, Dr. West increased Mr. Garassino’s impairment rating by one percent from
twelve to thirteen percent. Id. at 18.

       Additionally, Dr. West agreed the only difference of opinion concerning his rating
and that of Dr. Weiss concerned whether to place Mr. Garassino in a class 1 or class 2.
He further agreed if Mr. Garassino’s radiculopathy resolved, placement in class 1 would
be appropriate. Id. at 32-33. However, even if the radiculopathy resolved and Mr.
Garassino suffered a class 1 injury, he disagreed with Dr. Weiss’ rating. He stated Dr.
Weiss’ rating should have been an eight percent rather than a six percent under class 1.
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Id. at 42-44. He explained that seven percent corresponds to a rating grade of C, the
starting point for rating a class I injury for Mr. Garassino’s injury before applying
modifiers. Id. at 24-26. He opined Dr. Weiss incorrectly utilized the guides in rating Mr.
Garassino’s injury by starting his analysis with a five percent rating. Id. at 26.

        At the hearing, Mr. Garassino testified that he had several surgeries on his left hip
prior to the accident and still experienced substantial pain in that area of his body as well
as his groin. He stated his right hip had been pain-free prior to the accident but
acknowledged having right-hip replacement surgery prior to the accident. Following the
accident, Mr. Garassino testified he experienced some pain, but the pain was more in his
legs than in his hip. He stated: “I didn’t have this problem before I hurt my back.”

       After the surgery, Mr. Garassino continued to experience pain in his right leg. He
explained the following about his pain after the surgery:

       It wasn’t as bad . . . he fixed what he had to fix. I mean I still have pains
       now down my . . . right leg—sporadic; well not sporadic but I mean it’s the
       weather. If it’s lousy out, I know I’ve had surgery. I’d be lying if I said it
       was everyday but more than once a week.

        Mr. Garassino denied he told Dr. Weiss the pain in his right leg had resolved. He
further stated he told Dr. Weiss during the exam in February 2016 that he still had back
pain and pain “shooting down” his legs. Concerning the February exam, Mr. Garassino
testified it was limited to Dr. Weiss inspecting his surgical scar and conducting a reflex
test. He denied that Dr. Weiss laid him on the table and pulled his legs straight up. He
stated the exam lasted only a few minutes.

       In contrast, Mr. Garassino stated Dr. West’s exam lasted about an hour. He
described how Dr. West laid him down on a hard table and lifted his legs up, sat him
upright, and “grabbed both his legs” and performed a reflex test.

       On cross-examination, Mr. Garassino admitted that the back surgery helped ease
his back pain and also his leg pain “to some degree.” He further agreed he saw Dr. West
only once, while he saw Dr. Weiss multiple times. Additionally, he stated Dr. Weiss
treated him well.

      Mr. Garassino argued he rebutted the presumption of correctness attached to Dr.
Weiss’ impairment rating opinion. He argued Dr. Weiss erred when calculating the
impairment under the AMA Guides. Specifically, Mr. Garassino argued Dr. Weiss used
the wrong table and inappropriately calculated the modifiers. He claimed the table Dr.
Weiss utilized was an example table and should not have been used to calculate
impairment. Mr. Garasino also claimed Dr. Weiss erred in assigning a clinical study
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modifier of zero because his MRI correlated with the diagnosis of a displaced S5-L1
nerve root that was compressed. Regarding the functional capacity modifier, Mr.
Garassino argued Dr. Weiss also erred in assigning a zero. Because Mr. Garassino
continued to suffer back and right-leg pain, his pain had not resolved and a functional
capacity modifier of zero was inappropriate.

       Mr. Garassino also argued that Dr. Weiss erred in concluding his radiculopathy
resolved. He pointed to his own testimony that he never told Dr. Weiss his radiculopathy
resolved and to the fact he continued to have right leg pain. Additionally, he argued the
tests Dr. Weiss performed on him during the February 2016 exam were not designed to
check for radicular symptoms. According to Mr. Garassino, the only evidence his
radicular symptoms resolved is Dr. Weiss’ testimony that Mr. Garassino told him they
had resolved. Mr. Garassino, however, denied ever telling Dr. Weiss his symptoms
resolved.

       Mr. Garassino argued the impairment rating from Dr. West should be accepted
over that of Dr. Weiss. Specifically, Mr. Garassino pointed to the numerous errors in Dr.
Weiss’ impairment rating. Additionally, he stated only Dr. West appropriately
considered his radicular symptoms and placed in him in the correct injury class. For all
these reasons, Mr. Garassino asked that the Court rule he incurred thirteen percent
impairment from the workplace injury and award him benefits.

       Western Express argued Mr. Garassino failed to overcome the presumption of
accuracy afforded Dr. Weiss’ opinion. Western Express maintained Dr. Weiss
appropriately diagnosed that Mr. Garassino’s radiculopathy resolved. It pointed to Dr.
West’s testimony that he had no reason to disagree with Dr. Weiss’ examination of Mr.
Garassino. It advocated for the Court’s adoption of the six percent impairment rating.
Western Express claimed Mr. Garassino’s radiculopathy was resolved because it was not
constant. Western Express essentially maintained intermittent radicular symptoms that
arise only through changes in the weather did not meet the standard for a class 2 rating.

        Western Express further argued Dr. West’s opinion should be discounted because
it is biased. It pointed out that Mr. Garassino paid Dr. West to perform the medical
examination and provide a rating.

                      Findings of Fact and Conclusions of Law

      The following general principles govern adjudication of this proceeding. Mr.
Garassino has the burden of proof on all essential elements of a workers’ compensation
claim. 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). “[A]t a
compensation hearing where the injured employee has arrived at a trial on the merits, the
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employee must establish by a preponderance of the evidence that he or she is, in fact,
entitled to the requested benefits.” Willis v. All Staff, No. 2014-05-0005, 2015 TN Wrk.
Comp. App. Bd. LEXIS 42, at *18 (Tenn. Workers’ Comp. App. Bd. Nov. 9, 2015); see
also Tenn. Code Ann. § 50-6-239(c)(6) (2015) (“[T]he employee shall bear the burden of
proving each and every element of the claim by a preponderance of the evidence.”).

       The Workers’ Compensation Law provides that the impairment rating issued by
the treating physician is presumed accurate but the presumption may be overcome
through contrary evidence that satisfies a preponderance standard. Tenn. Code Ann. §
50-6-204(k)(7) (2015). One of the way to overcome the presumption of accuracy is
through presentation of affirmative evidence that the treating physician used an
inappropriate method or interpretation of the AMA Guides.               See Mansell v.
Bridgestone/Firestone N. Am. Tire, 417 S.W.3d 393, 411 (Tenn. 2013). Mr. Garrison
challenged the accuracy of the rating and asked that the Court adopt Dr. West’s rating
instead. As explained below, the Court finds Mr. Garrison overcame the presumption of
accuracy attached to Dr. Weiss’ rating and adopts the rating provided by Dr. West.

       Dr. Weiss and Dr. West both used the same table from the AMA Guides, table 17-
4, and the same class, Motion Segment Lesions, when rendering their respective
impairment ratings. See Ex. 1 at 18; Ex. 2 at 14. Dr. Weiss, however, believed Mr.
Garrison should be rated as a class 1, while Dr. West opined class 2 was more
appropriate. Both classes apply whenever the employee has an intervertebral disc
herniation at a single level with medically documented findings with or without surgery.
Am. Med. Ass’n, Guides to the Evaluation of Permanent Impairment 570 (Rondinelli,
Robert D., et al., eds. 6th ed. 2008). The difference concerns the presence of
radiculopathy. A class 1 impairment rating applies when the employee has “documented
resolved radiculopathy at clinically appropriate level or nonverifiable radicular
complaints . . . present at the time of the examination.” Id. A class 2 rating applies when
the employee has “documented radiculopathy at the clinically appropriate level present at
the time of examination.” Id.

        According to Dr. Weiss, Mr. Garrison merited a class 1 rating because he “had
documented radiculopathy at the clinically appropriate level, present at the time of the
initial examination, and now has resolved symptoms.” (Ex. 1 at 18.) He maintained this
position at his deposition. Additionally, Dr. Weiss examined Mr. Garrison again,
approximately one year after he issued the initial rating and felt his condition still did not
warrant a class 2 impairment rating per table 17-4. (Ex. 3.)

       According to Mr. Garassino’s testimony, however, Dr. Weiss performed only a
short examination each time and only performed a reflex test in reaching his conclusion.
Conversely, Mr. Garassino testified that Dr. West performed a more lengthy examination
and additional tests to determine radiculopathy continued post-surgery. Based on the
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examination, Dr. West rated his injury as a class 2 under table 17-4 of the AMA Guides.

       In his deposition, Dr. West stated the class 1 rating proffered by Dr. Weiss rating
should have been an eight percent rather than a six percent. (Ex. 2 at 42-44.) The Court
agrees and finds his testimony concerning the fallacy of Dr. Weiss’ rating sufficient to
overcome the presumption of accuracy afforded it by statute.

       In his office notes, Dr. Weiss stated the method he used to calculate the
impairment rating: “The lumbar regional grid, table 17-4 is utilized and this patient falls
into the classification of motion segment lesions, 1 to 9 percent, class 1.” (Ex. 1 at 18.)
In reviewing the class 1 rating for Motion Segment Lesions from table 17-4, the Court
notes the range of ratings for class 1 runs from five to nine, not from one to nine. Am.
Med. Ass’n, Guides to the Evaluation of Permanent Impairment at 570. Because Dr.
Weiss specifically stated impairment should be evaluated under the “Motion Segment
Lesions” class, a rating of six percent is incorrect. As Dr. West explained, Dr. Weiss
should have begun at the midpoint rating for a class 1 injury, or seven percent, and the
one percent added results in a rating of eight percent to the body as a whole. (Ex. 2 at 40-
43.)

       The Court agrees with Dr. West’s opinion that Dr. Weiss incorrectly calculated
Mr. Garassino’s rating under the guides. Furthermore, because Dr. Weiss incorrectly
applied the AMA Guides when rating Mr. Thomas, the Court also doubts his opinion
concerning the resolution of Mr. Garassino’s radiculopathy. 1 Dr. Weiss’ incorrect rating,
coupled with the Court’s doubt concerning his opinion on radiculopathy and Mr.
Garassino’s testimony concerning the brevity of his exam when compared to Dr. West’s,
provide sufficient proof to overcome the presumption of accuracy attached to Dr. Weiss’
impairment rating.

       Additionally, the Court does not find Western Express’ argument that Mr.
Garassino’s payment to Dr. West created a bias that undermined his impairment rating.
Dr. Weiss rated Mr. Garassino incorrectly under the guides and Mr. Garassino’s payment
to Dr. West has no effect on the inaccuracy of Dr. Weiss’ rating.

      The Court adopts the rating provided by Dr. West. He performed a more thorough
examination and applied to AMA Guides correctly to determine Mr. Garassino’s
impairment rating. The Court therefore finds Mr. Garassino suffered thirteen percent
impairment to the body from his compensable work-related accident. The Court orders



1
 The Court reviewed the briefs each party provided prior to the compensation hearing and notes the chart Mr.
Garassino’s counsel provided comparing the two doctors’ ratings was particularly helpful.
                                                     6
Western Express to provide permanent partial disability benefits in accordance with this
order.

IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Garassino suffered thirteen percent impairment as a result of his workplace
      accident.

   2. Pursuant to Tennessee Code Annotated section 50-6-207(3) (2015), Mr. Garassino
      is entitled to 450 weeks times his impairment rating of thirteen percent, which
      equates to 58.5 weeks at his compensation rate of $223.43, or $13,070.66 in
      permanent partial disability benefits.

   3. The Court further finds Mr. Garassino is entitled to reasonable and necessary
      future medical treatment for his back injury. Dr. Weiss shall be the authorized
      treating physician, and Western Express shall pay for all reasonable and necessary
      care. Dr. Weiss or Mr. Garassino shall provide the bills for any treatment to
      Western Express.

   4. The Court further finds Mr. Garassino’s counsel, Julie Reasonover, provided good
      and valuable services to Mr. Garassino in pursuit of his claim and is therefore
      entitled to recover a fee of twenty percent of his permanent partial disability award
      pursuant to Tennessee Code Annotated section 50-6-226 (2015).

   5. The Court further exercises its discretion pursuant to Tennessee Code Annotated
      section 50-6-239(c)(8) (2015) to award any and all costs related to Dr. West’s
      examination of Mr. Thomas and the costs incurred in securing his testimony via
      deposition.

   6. The Court assesses the $150.00 filing fee to Western Express for which execution
      shall issue as necessary.

   7. This is a final order.


ENTERED ON THIS THE ____
                     3rd DAY OF JUNE, 2016.

                                  _____________________________________
                                  Judge Joshua Davis Baker
                                  Court of Workers’ Compensation Claims


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Right to Appeal:

      Tennessee Law allows any party who disagrees with this Compensation Hearing
Order to appeal the decision to the Workers’ Compensation Appeals Board or the
Tennessee Supreme Court. To appeal your case to the Workers’ Compensation Appeals
Board, you must:

   1. Complete the enclosed form entitled: “Compensation Hearing Notice of Appeal.”

   2. File the completed form with the Court Clerk within thirty calendar days of the
      date the Workers’ Compensation Judge entered the Compensation Hearing Order.

   3. Serve a copy of the Compensation Hearing Notice of Appeal upon the opposing
      party.

   4. The appealing party is responsible for payment of a filing fee in the amount of
      $75.00. Within ten calendar days after the filing of a notice of appeal, payment
      must be received by check, money order, or credit card payment. Payments can be
      made in person at any Bureau office or by United States mail, hand-delivery, or
      other delivery service. In the alternative, the appealing party may file an Affidavit
      of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
      fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
      of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
      will consider the Affidavit of Indigency and issue an Order granting or denying
      the request for a waiver of the filing fee as soon thereafter as is
      practicable. Failure to timely pay the filing fee or file the Affidavit of lndigency in
      accordance with this section shall result in dismissal of the appeal.

   5. The party filing the notice of appeal, having the responsibility of ensuring a
      complete record on appeal, may request, from the Court Clerk, the audio recording
      of the hearing for the purpose of having a transcript prepared by a licensed court
      reporter and filing it with the Court Clerk within fifteen calendar days of the filing
      of the Compensation Hearing Notice of Appeal. Alternatively, the party filing the
      appeal may file a joint statement of the evidence within fifteen calendar days
      of the filing of the Compensation Hearing Notice of Appeal. The statement of the
      evidence must convey a complete and accurate account of what transpired in the
      Court of Workers’ Compensation Claims and must be approved by the Workers’
      Compensation Judge before the record is submitted to the Clerk of the Appeals
      Board. See Tenn. Comp. R. & Regs. 0800-02-22-.03 (2015).

   6. After the Workers’ Compensation Judge approves the record and the Court Clerk
      transmits it to the Workers’ Compensation Appeals Board, the appeal will be
                                             8
      docketed and assigned to an Appeals Board Judge for review. At that time, a
      docketing notice shall be sent to the parties. Thereafter, the party who filed the
      notice of appeal shall have fifteen calendar days after the issuance of the docketing
      notice to submit a brief to the Appeals Board for consideration. Any opposing
      party shall have fifteen calendar days after the filing of the appellant’s brief to file
      a brief in response. No reply briefs shall be filed. Briefs shall comply with the
      Practice and Procedure Guidelines of the Workers’ Compensation Appeals
      Board. See Tenn. Comp. R. & Regs. 0800-02-22-.03(6) (2015).

      To appeal your case directly to the Tennessee Supreme Court, the Compensation
Order must be “final” (see Tennessee Code Annotated section 50-6-239(c)(7) (2015)) and
you must comply with the Tennessee Rules of Appellate Procedure.




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                                      APPENDIX

Technical record:

   1.   Petition for Benefit Determination
   2.   Dispute Certification Notice
   3.   Initial Hearing Order
   4.   Amended Stipulations of the Parties

The Court did not consider attachments to Technical Record filings unless admitted into
evidence during the Compensation Hearing. The Court considered factual statements in
these filings or any attachments to them as allegations unless established by the evidence.

Stipulated Findings of Facts of the Parties:
     The alleged date of injury is July 3, 2014.
     The workers’ compensation rate is $$223.43 per week.
    

Stipulated Conclusions of Law of the Parties:
     This claim is governed by the Workers’ Compensation Law for the state of
       Tennessee.
     Mr. Garassino filed the Petition for Benefit Determination within the applicable
       statute of limitations.

Exhibits:
    EXHIBIT 1: Medical Records – Collective
    EXHIBIT 2: Deposition of Dr. David West
    EXHIBIT 3: Deposition of Dr. Robert Weiss




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                           CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the foregoing was sent to the
following recipients by the following methods of service on this the ___rd
                                                                     3     day of June,
2016.



 Name                 Certified   Via       Via     Service sent to:
                       Mail       Fax      Email
 Julie Reasonover                            X      julie@jstillman.com
 Andrew Saulters                             X      dsaulters@ortalekelley.com

                                  _____________________________________
                                  Penny Shrum, Clerk
                                  Court of Workers' Compensation Claims
                                  WC.CourtClerk@tn.gov




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