              TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                 WORKERS’ COMPENSATION APPEALS BOARD
                    (HEARD MAY 31, 2019 AT KNOXVILLE)

Sheila Owens                                )   Docket No. 2017-01-0401
                                            )
v.                                          )   State File No. 44323-2015
                                            )
Sitters, Etc., et al.                       )
                                            )
                                            )
Appeal from the Court of Workers’           )
Compensation Claims                         )
Audrey A. Headrick, Judge                   )

                               Affirmed and Remanded

This is the second interlocutory appeal in this case. The employee, a home health aide,
sustained work-related injuries when she caught a patient who was falling. She alleged
the incident resulted in shoulder and low back injuries and aggravated a pre-existing
cervical condition. The employer accepted the shoulder and low back injuries as
compensable but denied that any aggravation of the employee’s pre-existing cervical
condition arose primarily out of the work incident. In a decision on the record, the trial
court determined the employee presented sufficient proof of an aggravation of her pre-
existing condition to establish she would likely prevail at trial and ordered the employer
to provide medical benefits for the employee’s cervical condition. The employer
appealed, and we reversed the trial court’s order, concluding the expert medical proof
preponderated against the court’s finding that the employee established a compensable
aggravation of her pre-existing condition. Following the employee’s second request for
an expedited hearing, the trial court conducted an evidentiary hearing in which the
employee and four additional lay witnesses testified. The parties submitted the same
depositions and medical records as were considered by the trial court in its decision on
the record, but with the correction of a court reporter’s error in one of the medical
depositions. Following the hearing, the trial court again granted the employee’s request
for treatment for her cervical condition, determining she would likely prevail at trial in
establishing an aggravation of her pre-existing condition. The employer has appealed.
We affirm the trial court’s order and remand the case.

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.


                                            1
Alex B. Morrison, Knoxville, Tennessee, for the employer-appellant, Sitters, Etc.

Ronald J. Berke, Chattanooga, Tennessee, for the employee-appellee, Sheila D. Owens

                         Factual and Procedural Background

       This is the second interlocutory appeal in this case. We set out the following
factual and procedural background in our earlier opinion:

              Sheila Owens (“Employee”), a fifty-four year-old nursing assistant
      employed by Sitters, Etc. (“Employer”), alleges she injured her shoulder,
      back, and neck while performing her work duties on June 9, 2015. She was
      assisting an elderly patient stand up from a seated position when the patient
      slipped, and she caught the patient and “put her in her [wheel]chair.” The
      following day, Employee reported to her supervisor that she had injured her
      back and shoulder. She was instructed to seek care at a walk-in medical
      clinic. The medical provider ordered an MRI, and when Employee returned
      to the clinic she was referred to another medical provider based upon the
      results of the MRI.

              Thereafter, Employee came under the care of two authorized
      orthopedic surgeons. Dr. Rickey Hutcheson was authorized to treat
      Employee’s back, and Dr. Robert D. Mastey was authorized to treat
      Employee’s shoulder. Employee told to [sic] Dr. Hutcheson on her initial
      visit that she was injured at work on June 9, 2015, and had been off work
      since.

             He diagnosed Employee with a lumbar strain and prescribed
      medication and physical therapy. He treated Employee until January 2016,
      at which time he thought she had reached maximum medical recovery for
      her lumbar strain. Although he testified that Employee’s pre-existing
      degenerative disc disease contributed to her symptoms, he stated “most of
      her symptoms [were] associated with the lumbar strain, which was greater
      than 51% causally related to work.”

             Dr. Mastey began treating Employee’s shoulder in August 2015.
      His August 19, 2015 report reflects that Employee complained of “pain in
      her right shoulder with radiation down into her arm . . . [and] numbness and
      tingling of the arm,” as well as “neck pain both on the right and left sides,
      which has worsened since the injury.” The report also noted that he had
      treated Employee several years before her June 9, 2015 work injury “for
      severe neck pain and bilateral hand numbness.” Dr. Mastey testified
      Employee’s “shoulder problem is more than 51 percent related to the

                                            2
[work] injury.” He testified he discussed Employee’s “neck problem” with
her and her “carpal tunnel problems,” noting she had a lengthy history of
neck problems. However, he declined to offer an opinion regarding
causation with respect to Employee’s neck condition because he “wasn’t
treating her for her neck.” Asked specifically whether he thought the neck
complaints were related to the June 2015 work incident, he testified they
“could very well be, but, I mean, this neck is such a bad problem it doesn’t
take much to trigger it off. I would have to defer that to Dr. Pearce.”

       During his deposition, Dr. Mastey was questioned repeatedly
concerning Employee’s pre-existing neck condition and whether he
observed anything he would say was advanced by the work injury. He
consistently responded that he was not following her for that condition and
did not have an opinion. He placed Employee at maximum medical
improvement for her shoulder condition in December 2017, but
acknowledged the date could change in the event she underwent shoulder
surgery. He testified he understood Employee had agreed to undergo
another cervical surgery and that he could not determine whether shoulder
surgery would be necessary until she recovered from her cervical surgery.

       On March 1, 2016, Employee was seen by Dr. Alexander Roberts, a
physical medicine and rehabilitation physician. The report of that visit
states she was referred by her primary care physician for “complaints of
cervical spine and [bilateral upper extremity] pain with [numbness and
tingling] today.” The report detailed Employee’s prior medical care for her
cervical spine, which began in 2000 and included surgeries in 2002, 2004,
and 2008, physical therapy in 2012, and a CT scan in 2013. Dr. Roberts
recorded Employee’s report of a June 9, 2015 work injury, followed by
conservative treatment and a referral to him for additional evaluation. Dr.
Roberts ordered cervical CT and MRI studies and bilateral upper extremity
EMG nerve conduction studies.

       Employee returned to Dr. Roberts following completion of the
recommended diagnostic studies.       The cervical CT scan indicated
degenerative disc disease at C3-4 and C5-6, anterior cervical fusion from
C5-7 without vertebral screws in the C6 vertebrae, evidence of a fragment
of the screw in the C6 vertebrae, and evidence of a fusion at C4-5 with a
solid arthrodesis. The MRI revealed degenerative disc disease at C3-4 and
C5-6, a disc bulge with an overlapping central disc protrusion at C3-4, and
right and left stenosis at C3-4, C5-6, and C7-T1. The EMG nerve
conduction study revealed “electrodiagnostic evidence of a right C5 and C6
radiculopathy with active denervation.” Based upon these findings, Dr.
Roberts referred Employee to Dr. Richard Pearce for a surgical evaluation.

                                     3
       Dr. Pearce first examined Employee on July 14, 2016, at which time
he reviewed the diagnostic studies ordered by Dr. Roberts and
recommended surgery. He noted in his initial report that he discussed
treatment options, including surgery, and that Employee elected to proceed
with surgery. Approximately one year later at Employee’s next visit with
Dr. Pearce, he noted she was “still trying to get [workers’ compensation’s]
approval for surgery but having increased [numbness and tingling].” He
recommended another MRI to assess whether she was developing
myelomalacia, noting that Employee had some “increased radicular
symptoms in the left upper extremity.” He reported “she would like to
avoid surgery so we will again try to see if there is anything more
conservative we can do for her.” Employee’s attorney sent a letter to Dr.
Pearce asking whether the need for the cervical surgery he had
recommended in July 2016 was (1) “[c]aused by the new injury,” (2)
“[c]aused by the old condition being aggravated by the new injury,” or (3)
“[c]aused by the old injury.” Dr. Pearce marked “yes” to the second
question, but did not indicate a response to the first or third questions.

       In his deposition, Dr. Pearce testified he was able to compare 2013
and 2016 CT scans, and stated the 2016 CT scan showed that the condition
of Employee’s spine at C3-4 was worse than it had been in 2013. Asked if
he had an opinion whether the “condition at C3-4 was caused by her work-
related injury in June 2015,” he said he would “relate it” to that particular
event. He was also asked whether Employee’s June 2015 injury made her
anatomical findings worse and answered, “[b]ased on the CTs, the area of
C3-4 appeared to be worse.”

       On cross-examination, Dr. Pearce agreed that diagnostic studies
prior to the June 2015 work incident evidenced anatomic changes in
Employee’s cervical spine. He said the only pre-injury diagnostic report he
had was the CT scan performed in 2013. He was then shown and
questioned about an MRI report from 2003, two MRI reports from 2007,
two MRI reports from 2008, and an MRI report from 2013. He agreed the
reports of the 2003 MRI and a March 2007 MRI did not show significant
abnormalities, and that a report of an August 2007 MRI indicated a small
disc protrusion at C3-4 without spinal cord deformity, which represented an
anatomic change from the earlier MRI reports. He reviewed and was asked
about the reports of two 2008 MRIs and stated the differences in the reports
may only represent differing interpretations of the radiologists who
prepared the reports. However, he agreed that a 2012 MRI report described
a disc herniation at C3-4 that was “touching” the spinal cord. When asked
whether, having considered the diagnostic reports that pre-dated the June
2015 incident, it was still his opinion that Employee’s C3-4 problems were

                                     4
“related” to the June 2015 injury as opposed to a progression of the
condition at C3-4 since 2007, Dr. Pearce responded:

      Based on the reports that you have, there was obviously some
      early anatomic changes, some maybe degenerative changes,
      some bulging of the discs. Based on the MRI that I reviewed
      in 2016, the amount of cord compression and the size of that
      disc herniation was [sic] obviously much worse. And at what
      point that occurred between the last MRI of 2012 versus 2016
      I cannot say except, based on her history, that she started
      having symptoms, and now we have a new MRI which shows
      a definite anatomic change.

Dr. Pearce agreed, however, that Employee’s disc at C3-4 could have
continued to “worsen without pain symptoms.” He testified he could not
say that the “worsening” occurred on or after the June 2015 incident, but
“based on [Employee’s] history when the symptoms got worse . . . I have to
assume that’s when that occurred.”

       On re-direct, Dr. Pearce testified that spondylolisthesis revealed by
the 2016 MRI, which he described as a sign of instability in the spine, was
not indicated in the 2012 MRI report. The 2016 MRI also revealed stenosis
and a broad-based disc bulge at C3-4 that were not identified in the 2012
MRI report. He was again asked about causation and whether Employee’s
condition at C3-4 was “proximally” caused by the work injury:

      Q.     And if you consider the history given to you, your
      examinations, the various testing that I’ve asked you about
      that you’ve discussed and defense counsel has asked you
      about, along with her entire records and her entire course of
      treatment, is it still your opinion to a reasonable degree of
      medical certainty that her condition at C3-C4 was proximally
      caused by her work-related injury in June 2015?

      A.     Yes, sir, based on her history.

      Q.    And also with the same hypothetical, to a reasonable
      degree of medical certainty, it is still your opinion that the
      work-related injury in June 2015 caused a worsening of her
      anatomical condition at C3-4?

      A.     Again, comparing the pre- and post-injury MRIs,
      there’s definitely been an anatomic change. There’s no way

                                     5
       for me to say that that change occurred on that specific day,
       but based on her history, there has been worsening.

       Q.     If you include her history in the hypothetical –

       A.     Then I assume it was made worse on that date.

      In December 2016, Employer sought an independent medical
evaluation with Dr. Jay E. Jolley, an orthopedic surgeon. Dr. Jolley noted
Employee had undergone three cervical spine surgeries. He attributed the
condition of Employee’s cervical spine to degeneration that he thought did
not result from the work injury.

       [Employee] does have significant degeneration at C3-C4.
       This has led to some spinal stenosis, which appears to be non-
       traumatic and simply acquired. I believe this is causing some
       radiating arm pain into the right shoulder region. However,
       this clearly is not traumatic and not from the lifting incident
       that occurred in June 2015, which does appear to be more
       related to the history of lumbar sprain and the shoulder strain
       and possible cuff tear that Dr. Mastey is treating. . . . Again, I
       do not believe this is from the work injury in June 2015 but
       rather a degenerative and acquired condition adjacent to the
       previous fusion at C4-C5.

        Dr. Jolley testified that the surgery Dr. Pearce recommended was a
reasonable option for Employee, but stated, “I don’t see how that would be
related directly to the incident of 2015.” He testified his assessment was
that Employee’s “pains in her right arm were due to the stenosis at C3-
C4 . . . which would typically be from bone spurs and essentially arthritis.”
When asked about his diagnoses and whether those conditions were caused
by the June 9, 2015 incident, he testified “the lumbar sprain would be
related to the 2015 incident,” but as to the right partial rotator cuff tear, he
stated he “would probably defer” to other experts as he does not consider
himself a “shoulder expert.” He added that “the cervical issues appear to be
chronic and pre-existing.”

       Dr. Jolley admitted that Employee could have “tweaked her spinal
condition” in the June 2015 incident, making it somewhat worse. He was
asked on cross-examination about the letter Employee’s attorney sent to Dr.
Pearce and whether he agreed with Dr. Pearce’s response to the second
question concerning whether the recommended surgery was “caused by the
old condition being aggravated by the new injury.” He responded:

                                       6
              It sounds like she had an uptick in pain following [the June
              2015] incident. Again, ‘uptick’ meaning she had complaints
              clearly, and rightly so, with her neck prior to the incident. So
              did that incident that day aggravate her neck and cause her
              some increased pain? It appears so, yes. . . . But again, at the
              same time . . . can I sit there and say, you know, the incident
              is more responsible for her need of surgery? No, I cannot. I
              would say that her overwhelming degeneration and arthritis at
              that level is causing her significant pain and is more
              responsible than the incident.

       Dr. Jolley was pressed about the second question on the letter sent to Dr.
       Pearce and was asked, “[y]es or no, do you agree with Dr. Pearce’s
       statement where he checked it on [number] 2.” Dr. Jolley responded,
       “[y]es.”

Owens v. Sitters, Etc., No. 2017-01-0401, 2018 TN Wrk. Comp. App. Bd. LEXIS 26, at
*1-12 (Tenn. Workers’ Comp. App. Bd. May 29, 2018) (footnote omitted).

        In lieu of convening an evidentiary hearing, the trial court issued a decision on the
record in which it concluded Dr. Jolley and Dr. Pearce agreed that Employee’s neck
complaints resulted from her work injury. The court ordered Employer to provide a
panel of orthopedic surgeons for treatment of Employee’s cervical injury. Employer
appealed, and we reversed the trial court and remanded the case. Specifically, we found
Dr. Pearce’s medical opinions were insufficient to establish a compensable aggravation
of a pre-existing condition, noting he had been asked whether Employee’s cervical
condition was proximally caused by her work accident. Additionally, we disagreed with
the trial court’s characterization of Dr. Jolley’s opinion as “agree[ing] with Dr. Pearce’s
opinion.”

        Employee subsequently sought clarification from the court reporter regarding the
use of the word “proximally” as appearing in Dr. Pearce’s deposition. The court reporter
submitted an affidavit attesting to the fact that there was a transcription error and that the
transcript should have reflected that the question asked of Dr. Pearce was whether the
work accident was the proximate cause of Employee’s cervical complaints. Following
Employee’s second request for an expedited hearing, the court convened an evidentiary
hearing at which Employee and four lay witnesses testified. In particular, Employee
testified as to the effect that her injuries had on her activities and abilities. The trial court
found Employee to be a credible witness, found that Dr. Pearce offered the more
convincing testimony concerning causation, and concluded that, when considering the
expert medical proof combined with the lay testimony, Employee had presented
sufficient evidence to establish she would likely prevail at trial on the issue of causation.
Employer has appealed.

                                               7
                                  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
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

        Employer asserts a single issue on appeal: whether the trial court “erred in
ignoring the prior Order of [the Appeals Board] and once again ordering the Employer to
pay for the Employee’s alleged neck injury.” We conclude the trial court did not err in
ordering Employer to provide a panel of physicians for treatment of Employee’s cervical
injury.

       Although Employer frames the issue as suggesting the trial court ignored our prior
decision, the trial court conducted an evidentiary hearing following our remand of the
case in which it considered additional lay testimony as well as the court reporter’s
affidavit correcting the question presented to Dr. Pearce in his deposition. The first
appeal was from an interlocutory order of the trial court, as is this appeal. As we have
previously observed, decisions made by a trial court in interlocutory proceedings may be
changed at any time prior to the entry of a final judgment. See Tenn. Code Ann. § 50-6-
239(d)(3) (“Unless modified by the workers’ compensation appeals board following an
appeal or unless a subsequent order to modify an interlocutory order for temporary or
medical benefits is issued by the workers’ compensation judge presiding over the claim,
the interlocutory order shall remain in effect pending conclusion of the matter by hearing
according to the procedure provided in subsection (c).” (emphasis added)). Our prior
opinion, in which we concluded Employee had not presented sufficient evidence to
establish she would likely prevail at a hearing on the merits, did not foreclose the
opportunity for Employee to present additional evidence in a subsequent expedited


                                            8
hearing or for the trial court to determine from the evidence “that the injured employee
would likely prevail at a hearing on the merits.” Tenn. Code Ann. § 50-6-239(d)(1).

       Accordingly, we turn to whether Employee met her burden of establishing she
would likely prevail at trial on the issue of causation concerning her cervical condition.
As previously noted, there is a presumption that the trial court’s factual findings are
correct, unless the preponderance of the evidence is otherwise.” Tenn. Code Ann. § 50-
6-239(c)(7). Unlike the first appeal, this appeal follows an evidentiary hearing at which
Employee and other lay witnesses testified in person. The trial court found Employee’s
testimony to be credible, and that finding is entitled to deference on appeal. See Tryon v.
Saturn Corp., 254 S.W.3d 321, 327 (Tenn. 2008).

       Following the evidentiary hearing, the trial court weighed the medical evidence
and the opinions of the physicians addressing causation for Employee’s cervical injury.
The trial court noted that Dr. Pearce had seen Employee on several occasions while Dr.
Jolley performed a one-time evaluation. The trial court additionally noted that Dr. Pearce
reviewed more of Employee’s diagnostic tests during his deposition and contrasted that to
Dr. Jolley’s having reviewed a limited number of tests and testifying he anticipated
additional tests would show progressive, degenerative changes. Also, the trial court
noted that Dr. Pearce based his opinions on diagnostic tests that demonstrated anatomic
changes “along with the history given by [Employee].” Moreover, Dr. Pearce responded
to a question in his deposition that was incorrectly transcribed as whether Employee’s
work was the “proximal” cause of her neck complaints. In our earlier opinion, we
observed that the term “proximal” described a temporal relationship rather than a causal
one, and we concluded that Dr. Pearce’s testimony was insufficient to meet the
requirements of the definition of injury set out in Tennessee Code Annotated section 50-
6-102(14).

       However, we conclude the opinion expressed by Dr. Pearce in light of the
typographical correction, when considered within the context of his entire deposition
testimony and in conjunction with Employee’s testimony, is sufficient evidence from
which the trial court could properly determine that Employee would likely prevail at trial
in establishing causation for her cervical complaints. 1


1
  Generally, proximate cause is a concept applicable to tort cases and is not a part of the framework of
workers’ compensation’s no-fault determination of compensability. Our conclusion that the use of the
term “proximately,” in conjunction with other medical and lay proof, is sufficient to find Employee met
her burden of establishing she will likely prevail at trial should not be interpreted as indicating a
physician’s opinion regarding the “proximate cause” of an injury will be sufficient to carry the day at
trial. To prevail at trial, an employee must satisfy the requirements of a compensable injury as set out in
Tennessee Code Annotated section 50-6-102(14). See Panzarella v. Amazon.com, Inc., No. 2015-01-
0383, 2017 TN Wrk. Comp. App. Bd. LEXIS 30, at *14 (Tenn. Workers’ Comp. App. Bd. May 15,
2017).
                                                    9
       Finally, Employer asserts the trial court “misread or mischaracterized” Dr.
Mastey’s testimony in concluding he did not offer an opinion regarding the cause of
Employee’s cervical complaints. Employer asserts Dr. Mastey provided an opinion that
the cervical injury is not causally related to the employment and that, as the authorized
physician, his opinion is entitled to a presumption of correctness. A review of the
entirety of Dr. Mastey’s testimony reveals that he did not offer an opinion regarding the
cause of Employee’s cervical complaints.

       When asked whether he had “an opinion at that time as to causation of the neck
complaints,” he responded “[n]o. I wasn’t treating her for her neck.” When asked
whether Employee’s neck complaints were related to the work accident, he stated they
“could very well be, but, I mean, this neck is such a bad problem it doesn’t take much to
trigger it off. I would have to defer that to Dr. Pearce . . . . I wasn’t treating her neck.”
When asked whether the work incident advanced her pre-existing problems in her neck,
he responded that he “wasn’t following her for her neck. I don’t – I don’t have an
opinion on that.” And, finally, when asked whether he agreed with Dr. Pearce that the
work accident aggravated Employee’s pre-existing cervical condition, he stated “I don’t
have an opinion. I would have to defer to Dr. Pearce.” Dr. Mastey repeatedly and
unequivocally stated that he was not treating Employee for her neck complaints, that he
did not have an opinion with respect to causation, and that he would defer to Dr. Pearce.

        In short, the entirety of Dr. Pearce’s testimony, considered in conjunction with
Employee’s testimony concerning her history and the effect of her injuries on her
activities and abilities, supports the trial court’s conclusion that Employee is likely to
prevail at trial in establishing the compensability of her cervical injury.

                                        Conclusion

      For the foregoing reasons, we affirm the trial court’s decision and remand the
case. Costs on appeal are taxed to Employer.




                                             10
                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD

Sheila Owens                                            )     Docket No. 2017-01-0401
                                                        )
v.                                                      )     State File No. 44323-2015
                                                        )
Sitters, Etc., et al.                                   )
                                                        )
                                                        )
Appeal from the Court of Workers’                       )
Compensation Claims                                     )
Audrey A. Headrick, 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 28th day of June, 2019.

 Name                              Certified   First   Via   Fax      Via     Sent to:
                                   Mail        Class   Fax   Number   Email
                                               Mail
 Ronald J. Berke                                                        X     ronnie@berkeattys.com
                                                                              margo@berkeattys.com
 Alex B. Morrison                                                       X     abmorrison@mijs.com
 Audrey A. Headrick, 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




JJeanette
  eanette 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
