     FILED
    Oct 23, 2018
   04:17 PM(CT)
 TENNESSEE COURT OF
WORKERS' COMPENSATION
       CLAIMS
which means radiating pain down the arm due to nerve impingement in the neck." Dr.
Lovell said Ms. Slayton had the "classic presentation" of both C6 and C7 radiculopathy
and noted an MRI and EMG supported the diagnosis.

        To alleviate Ms. Slayton's symptoms, Dr. Lovell recommended pain blocks. These
met with limited success. So, on August 31, he discussed surgical options of a cervical
fusion versus implantation of artificial discs. He told Ms. Slayton to wait three months to
"see if her symptoms got better" and to consider surgery if they did not.

       In December 2016, Ms. Slayton returned with complaints of pain in her neck and
both shoulders and arms. She and Dr. Lovell agreed she had "reached the point" of
needing surgery. Thus, he performed a cervical decompression and inserted two artificial
discs on April 3, 2017. Afterwards, Ms. Slayton reported initial relief of her right arm
numbness and tingling but still had passing "twinges" in her shoulders.

       On June 22, Ms. Slayton reported some tingling in her hands. Dr. Lovell thought
the tingling might relate to her neck but also believed it could stem from an unrelated
ulnar or median nerve issue in her arm. He testified he "kind of blow[ s] ... off' tingling
complaints that do not "seem to be a real big problem to the patient." When asked if
tingling complaints are "uncommon," Dr. Lovell said some patients have tingling before
an operation and occasionally report a trace of it afterwards. In these cases, he attributes
the tingling "to their pre-operative problem ... but I wouldn't say it's something that
everybody gets after this operation."

        Dr. Lovell found a "normal" physical exam with full strength and "very good
motion." He thought Ms. Slayton was "doing well," so he placed her at maximum
medical improvement and said she could perform the full duties of her new job as a nurse
practitioner.

       Dr. Lovell assessed a six-percent permanent impairment to the body as whole, his
"customary" rating for the surgery. He based it on the "cervical spine section" of the
Sixth Edition of the American Medical Association's Guides to the Evaluation of
Pennai1ent Impairment ("Guides"), citing a table that provides a six-percent rating for
disc lesions at single or multiple levels with or without surgery and with resolution of
radiculopathy, or only "nonverifiable radicular complaints." He "picked" the middle
number of a Class I impairment under that table. He said he typically did not use the
grade modifiers in the Guides but believed they would "probably" lower the rating based
on his experience. In his practice he had "just decided ... to excuse [himself] from the
misery of having to go through [the modifiers] and ... just pick the center number."

        Dr. Lovell specifically disagreed with Ms. Slayton's IME physician that she met
the criteria of Class 3 impairment because that class requires residual radiculopathy. To


                                                2
Dr. Lovell, nonverifiable radicular complaints do not qualify as radiculopathy because
they are "subjective" complaints. A ratable radiculopathy must be something more than
"I get a tingle in my finger periodically." Instead, Dr. Lovell believed verifiable radicular
complaints are those documented by either an electrical study or clinical findings of
weakness. Given his position, he agreed with Ms. Slayton's counsel that the rating issue
"basically comes down to whether or not she had verifiable radiculopathy,'' and in his
opinion Ms. Slayton did not as of June 22.

                                   Dr. Chung's testimony

      Dr. Samuel Chung also testified by deposition. He is Board-certified in physical
medicine and rehabilitation and is a certified independent medical examiner. He has
performed hundreds of IMEs since 1997.

       Dr. Chung saw Ms. Slayton once, on December 7. He recounted her history and
performed a physical examination. In her history, he noted she complained of continued
numbness in her right thumb and index finger and similar symptoms on the left. These
symptoms were present after the surgery, and she continued to experience them with
rotation and extension of her neck to the right. On examination, Dr. Chung found a
positive right-sided Spurling's test, a maneuver performed by turning the neck to one side
and applying downward pressure. Dr. Chung testified the test elicited residual
radiculopathy in the C6 dermatome. Likewise, he found loss of sensation in the C6
dermatome and reflex changes on the right consistent with radiculopathy.

       Dr. Chung used the same table as Dr. Lovell, but he placed Ms. Slayton in Class 3
because of his finding of residual radiculopathy. He then looked to the "grade modifiers"
of the Guides and noted Ms. Slayton's "functional history" included her experiencing
pain when moving her neck to the right; her "physical examination" included the positive
Spurling's sign and decreased sensation and reflexes. He did not use the "clinical study"
modifier because the pre-surgery MRI and EMG were not to be considered under the
instructions of the Guides. When applying these modifiers to the Class 3 "default" rating
or "middle number" of the class, Dr. Chung arrived at a fifteen-percent rating.

        Dr. Chung acknowledged that an accurate history is necessary for an accurate
impairment rating. Further, he testified that Ms. Slayton's ability to perform physical
activities "doesn't mean that she doesn't have symptoms of radiculopathy or she's
clinically completely clear from any symptoms she is experiencing.

                                  Ms. Slayton 's testimony

        Ms. Slayton testified she suffered pain in her right shoulder blade and the first two
fingers of her right hand and experienced a loss of strength in her right arm after the
injury. She admitted her symptoms improved after surgery but some remained as of June

                                                 3
22 when Dr. Lovell released her. The numbness and tingling was "not as significant" or
as severe but was still present in her first two fingers. She said Dr. Lovell checked her
grip strength by having her squeeze his fingers on June 22 but he performed no other
testing. After they discussed her activities, he released her to full duty. Ms. Slayton said
Dr. Chung's IME lasted three hours, and he performed tests that replicated her radicular
symptoms.

       Ms. Slayton testified she returned to Dr. Lovell in October 2017 with what she
described as significant neck and shoulder blade pain and continued numbness in her
fingers. Dr. Lovell recommended she slow her activities given her age. She testified she
had already done so to avoid reinjuring herself and pointed specifically to avoidance of
heavy weightlifting at a boot camp program and quitting martial arts "sparring" in favor
of non-contact movements. Community Health directly confronted Ms. Slayton with a
video and several photographs depicting her engaging in non-violent martial arts
maneuvers on several occasions in May, June, and August 2018.

        Ms. Slayton continued her education during her recuperation and became a nurse
practitioner. She voluntarily left Community Health to enter private practice.

                                    Parties' Positions

       Ms. Slayton argued that Tennessee Code Annotated section 50-6-204(k)(2)(A)
(2018) requires the treating physician to use the applicable edition of the Guides when
assessing a rating. As the treating physician, Dr. Lovell's rating is presumed correct.
However, Ms. Slayton contended she rebutted it by a preponderance of the evidence. She
introduced pages from Guides titled "Principles of Assessment" of the spine, which
explain the proper rating procedure. These pages dictate a physician is to determine the
impairment class by determining the diagnosis and making findings of specific criteria.
Then, the physician is to adjust that number by grade modifiers. Here, Dr. Chung
followed that protocol; Dr. Lovell did not. Ms. Slayton confirmed the procedure followed
by Dr. Chung and contended he offered the better explanation.

       Community Health countered that "verifiable radicular complaints" mean
objective findings, and Ms. Slayton's complaints were wholly subjective. As the treating
physician, Dr. Lovell was in a "better place" to assess impairment, as "the Legislature
says." Dr. Lovell used the Guides but ''just did not do multipliers."

                         Findings of Fact and Conclusions of Law

       Ms. Slayton must prove all elements of her case by a preponderance of the
evidence, including the amount of her permanent partial disability. Tenn. Code Ann. §



                                                4
50-6-239(c)(6). For the following reasons, the Court holds she proved a permanent partial
disability of fifteen percent.

       In reaching this holding, the Court must determine which expert opinion to accept.
Sanker v. Nacarato Trucks, Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS 27, at *11-12
(July 6, 2016). To make that determination, the Court may consider the qualifications of
the experts, the circumstances of their evaluation, the information available to them, and
the evaluation of the importance of that information by other experts. The Court also
might accept the opinion of one expert over another if it contains the more probable
explanation. Ledfordv. Mid-Georgia Courier, 2018 TN Wrk. Comp. App. Bd. LEXIS 28,
at *7 (June 4, 2018). If one expert is an authorized physician, then his impairment rating
is afforded a presumption of correctness subject to rebuttal by a preponderance of the
evidence. Tenn. Code Ann. § 50-6-204(k)(7).

       Regarding the expert's qualifications, the Court notes Dr. Lovell is a neurosurgeon
with many years of experience. As to Dr. Chung, the Court considers his extensive
practice in rehabilitation and physical medicine and his certification as an independent
medical examiner. Given these considerations, the Court finds the physicians on equal
footing as to their qualifications to provide an accurate rating.

       Next, the Court considers the circumstances of the two evaluations. The Court
finds this factor militates in favor of Dr. Lovell. He was the treating physician and had
more extensive contact with Ms. Slayton. Tennessee law considers it reasonable to
conclude that the physician having greater contact with an injured worker has an
advantage in providing a more in-depth, if not more accurate opinion. Bass v. Home
Depot US.A., Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 36 at * 14 (May 26, 2017).
But, the issue here turns not on the circumstances of the physician's evaluations but
rather on the information available to them and the importance of that information in the
context of their ratings. When considering those factors, the Court holds Dr. Chung
offered the more probable explanation of Ms. Slayton's impairment.

       First, the Court holds the evidence preponderates in favor of Ms. Slayton's
position that she suffers residual radiculopathy, the first requirement of a fifteen-percent
rating. Dr. Chung diagnosed residual radiculopathy based on clinical findings of a
positive Spurling's test and diminished reflexes and sensation. The Court contrasts these
clinical findings with Dr. Lovell's unsupported statement that he found no true radicular
complaints. Likewise, Ms. Slayton detailed the more extensive evaluation by Dr. Chung.

       Further, the Court believes Ms. Slayton's testimony that she suffers residual
radicular problems in her right upper extremity. Based on its direct observation of her, the
Court finds Ms. Slayton was steady, forthcoming, and honest regarding her condition and
finds her credible. Kelly v. Kelly, 445 S.W.3d 685, 694-695 (Tenn. 2014). The Court


                                                 5
considers this testimony important because it should not read the medical proof "in a
vacuum." Thomas v. Aetna Life & Cas., 812 S.W.2d 278, 283 (Tenn. 1991). Further,
rather than yielding to injury, Ms. Slayton maintained an active lifestyle as evidenced by
her testimony and the video and photographs of her performing martial arts maneuvers.
However, these occurred well after her medical evaluations by both physicians and
revealed nothing more than non-contact activities.

       Second, Dr. Chung explained his rating methodology in detail. He pointed to the
Guides' definition of Class 3 impairment and explained his use of the functional history,
physical examination, and clinical study grade modifiers. Dr. Chung followed the
methodology dictated by the Guides. His detailed explanation of the process stands in
contrast to Dr. Lovell's avoidance of the "misery" of using the modifiers. The Court
holds Dr. Chung offered the more probable explanation of Ms. Slayton's true impairment
and holds that his opinion rebutted Dr. Lovell's rating by a preponderance of the
evidence.

        Having determined the correct impairment rating, the Court holds Ms. Slayton is
entitled to permanent partial disability benefits of 67.5 weeks, or $45,281.70. This is
calculated by multiplying the fifteen-percent rating by 450 weeks and multiplying that
result by the stipulated weekly compensation rate of $670.84. Tenn. Code Ann. § 50-6-
207(3)(A). Ms. Slayton is not entitled to any enhancement factors because she voluntarily
left her employment at Community Health. Tenn. Code Ann. § 50-6-207(3)(d)(i).

      IT IS, THEREFORE, ORDERED as follows:

      1. Community Health shall pay Ms. Slayton permanent partial disability benefits
          of $45,281. 70. Mr. Barnes is entitled to a twenty-percent attorney's fee of the
          total award under Tennessee Code Annotated section 50-6-226(a)(l) equaling
          $9,056.34. Mr. Barnes may submit a motion for discretionary costs.

      2. Community Health shall provide Ms. Slayton future medical benefits for her
         injury under Tennessee Code Annotated section 50-6-204(a)(l)(A). Dr. Lovell
         remains the treating physician.

      3. Community Health shall pay costs of $150.00 to the Court Clerk under
         Tennessee Compilation Rules and Regulations 0800-02-21-.07.

      4. Community Health shall prepare and submit a Statistical Data Form (SD2)
         within ten business days of this order becoming final.

      5. Absent an appeal, this order shall become final thirty days after issuance.



                                               6
ENTERED this the 23rd day of October, 0




                                   APPENDIX

Exhibits:
   1. Collective Medical Records
   2. Deposition of Dr. Laverne Lovell
   3. Deposition of Dr. Samuel Chung
   4. Pages from AMA Guides Sixth Edition regarding impairment assessment
   5. Video of Ms. Slayton performing martial arts
   6-9. Photographs of Ms. Slayton performing martial arts

Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Scheduling Hearing
   4. Scheduling Order
   5. Employee's Witness and Exhibit List
   6. Joint Pre-Compensation Hearing Statement
   7. Employer's Witness and Exhibit List
   8. Employee's Pre-Compensation Hearing Brief
   9. Post-discovery Dispute Certification Notice
   10. Employer's Pre-Compensation Hearing Brief




                                            7
                              CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of this Compensation Hearing Order was
sent to the following recipients by the following methods of service on this the 23rd day of
October, 2018.

Name                        Certified    First        Via     Service Sent To:
                             Mail     Class Mail     Email
Spencer R. Barnes, Esq.,                               x     spence@morrisonandbarnes.com
Attorney for Employee
Sara Barnett, Esq.,                                    x     sarabarnett@spraginslaw.com
Attorney for Employer




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