                                                                                                               FILED
                                                                                                          November 4·. 201·6

                                                                                                          1NCOURTOF
                                                                                                      WORKERS' cm,JPE.NS.IDON
                                                                                                            •CLAIMS

                                                                                                               Time 1::21 PM


               TENNESSEE BUREAU OF WORKERS' COMPENSATION
              IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                             AT CHATTANOOGA

Lamar Ringer,                                              )   Docket No.: 2015-01-0149
           Employee,                                       )
v.                                                         )   State File Number: 94491-2014
Welding Ceramics, Inc.                                     )
           Employer,                                       )   Judge Thomas Wyatt
v.                                                         )
Technology Assigned Risk/                                  )
Am trust North America,                                    )
            Insurance Carrier.                             )
                                                           )



     COMPENSATION HEARING ORDER AWARDING PERMANENT PARTIAL
                       DISABILITY BENEFITS


        This case came before the undersigned Workers' Compensation Judge on October
19, 2016, for a Compensation Hearing pursuant to Tennessee Code Annotated section 50-
6-239 (2015). The central issues raised by the parties were: (1) the extent of permanent
partial disability benefits to which the employee, Lamar Ringer, is entitled; 1 (2) whether
Mr. Ringer is entitled to additional temporary disability benefits; and (3) whether Mr.
Ringer is entitled to a panel from which to select a new authorized treating physician.
For the reasons set forth below, the Court holds Mr. Ringer established entitlement to
permanent partial disability benefits, but did not establish his entitlement to the requested
temporary disability benefits and new paneP




1
 Pertinent to the decision of this issue is a determination of(l) whether Mr. Ringer introduced sufficient evidence to
rebut the statutory presumption of correctness afforded the impairment rating of the authorized treating physician
and (2) whether Mr. Ringer acted reasonably in failing to return to work following his injury.
2
The Court attached a complete list of the technical record and exhibits admitted into evidence at the Compensation
Hearing as an appendix to this Order.


                                                          1
                                                     History of Claim

       Mr. Ringer is a fifty-two-year-old resident of Chattanooga, Hamilton County,
Tennessee who, on the date of injury, had worked approximately three years as a press
operator for Welding Ceramics, Inc. (WCI). (Ex. 1 at 1, 2.) During the year before his
injury, Mr. Ringer earned wages sufficient to establish an average weekly wage of
$390.29. 3 {T.R. 3 at 2; Ex. 6.)

       Mr. Ringer testified his job required him to regularly pour a sand-like solution
from a garbage can into a hopper on his press that was located above his head. On
November 19, 2014, he lifted a can of solution to pour it into his press and, as he did so,
he struck a moving part of the press with the can. This impact knocked the can from Mr.
Ringer's grasp and suddenly jerked his body backward. Mr. Ringer immediately
experienced pain in his neck with a throbbing sensation into his left shoulder and arm.
He reported his injury the day it occurred, and WCI accepted the claim as compensable.
(Ex. 7; T.R. 3 at 2.)

       Mr. Ringer testified he received authorized physical therapy for his injury at Nova
Medical and, later, underwent an MRI of his cervical spine. He ultimately received a
panel for specialty care and selected orthopedic surgeon Dr. Jay E. Jolley, II as his
authorized treating physician. (Ex. 3.)

        Dr. Jolley performed a clinical examination at the initial visit on March 2, 2015,
and testified by deposition that he verified mild weakness and decreased tendon reflex in
Mr. Ringer's left biceps. (Ex. 5 at 9-10.) Dr. Jolley reviewed Mr. Ringer's MRI,
diagnosed a large C5/C6 disc herniation that compressed the spinal cord, and
recommended immediate surgery to "hopefully cut off any neurologic ... compromise or
catastrophe down the road." Id. at 7-8, 10. He .restricted Mr. Ringer's activities to no
lifting greater than eight pounds, no sweeping or packing, and performance of duties
allowing him to frequently change positions. Id. at 13.

        Mr. Ringer declined the recommended surgery because he feared the potential
complications associated with it. (Ex. 5 at 15, 20-21.) He testified he was frightened that
the recommended surgery required an incision through the throat and the surgeon had to
"split your face" and move the voice box to perform the surgery.

        Except for two short periods during which WCI paid him temporary disability
benefits {T.R. 3 at 2), Mr. Ringer worked light duty at WCI while under Dr. Jolley's
restrictions. ld. at 12-13. Mr. Ringer testified that even the diminished lifting he
performed while on light duty hurt his neck, left shoulder, and left arm.

3
    Mr. Ringer's compensation rate is, thus, $260.16 per week.


                                                           2
        After several follow-up office visits, Dr. Jolley referred Mr. Ringer for a
Functional Capacity Evaluation (FCE), which Mr. Ringer underwent on August 27. (Ex.
5 at ex. 5, p. 1.) The FCE examiner recommended against the placement of permanent
restrictions on Mr. Ringer's activities. !d. at ex. 5, p. 1.4 On September 14, Dr. Jolley
placed Mr. Ringer at maximum medical improvement, rated his impairment at six percent
to the whole body, and released him to return to regular duty. !d. at 18-20, 23-24. Dr.
Jolley testified he did not place restrictions on Mr. Ringer's activities because "looking at
the conclusion that the [FCE] examiner came up with there was---no restrictions were
recommended. So ultimately, he was deemed to be capable of his regular duty." !d. at
18.

       WCI reassigned Mr. Ringer to his regular job upon receiving Dr. Jolley's release.
Mr. Ringer twice attempted to work, but on both occasions developed sufficiently severe
neck, left shoulder, and left arm pain that he stopped work after a few hours and sought
emergency care. After the second occasion, he left work in pain. His supervisor, Richard
Durham, told Mr. Ringer he could not work him so long as he continued to leave during
his shift. WCI's human resources department recommended Mr. Ringer take time off
under the Family and Medical Leave Act (FMLA). Mr. Ringer applied for FMLA leave
and received it.

        On September 18, Mr. Ringer saw a Physician's Assistant in Dr. Jolley's office
and reported that he experienced pain requiring emergency care when he attempted to
return to his regular job at WCI. (Ex. 5 at ex. 4, p. 3.) The Physician's Assistant noted
Mr. Ringer voiced frustration about Dr. Jolley returning him to work without restrictions
and explained that Dr. Jolley did not assign restrictions because of the FCE findings. Id.
She also noted that Mr. Ringer stated he would sue Dr. Jolley if he hurt himself at work.
!d.

       Mr. Ringer testified he did not attempt to return to work at WCI at the end of his
twelve weeks of FMLA leave because he knew the continuing pain from his work injury
would disable him from performing his press operator job. He stated he presently suffers
pain daily and has not attempted to return to work anywhere because of this pain. He
lives with his mother and receives food stamps.

      Mr. Ringer has not returned to Dr. Jolley's office since September 2015, but has
used private insurance to pay for pain management, including prescribed narcotic
medication, for his work injury. Dr. Jolley testified he remains willing to provide Mr.
Ringer's future treatment, but stated the only options he will consider are the

4
 During his deposition, Dr. Jolley testified that the FCE examiner found that Mr. RIDger gave submaximal effort
during the FCE and recommended against permanently restricting Mr. RIDger's activities because the FCE findings
were "unreliable." (Ex. 5 at 18.)


                                                      3
recommended surgery or watching Mr. Ringer's injury to see if more severe neurological
deficits develop. /d. at 20, 25. Dr. Jolley testified he would not recommend pain
management for Mr. Ringer because the prescription of narcotic medication is "a horrible
way" to treat chronic pain. /d. at 19, 22. During the Compensation Hearing, Mr. Ringer
requested authorization to see another panel physician for consideration of alternative
treatment modalities for his injury, including surgical options that do not involve surgical
entry through his throat. 5

       Dr. Jerry L. Smith, a physical medicine and rehabilitation physician, saw Mr.
Ringer on a single occasion and rated his impairment at ten percent to the whole body.
(Ex. 2 at 3, 12.) Both Drs. Jolley and Smith rated Mr. Ringer's impairment under the
Sixth Edition of the American Medical Association Guidelines to the Evaluation of
Impairment (AMA Guides). (Ex. 2 at 3; Ex. 5 at 4.) Dr. Smith permanently restricted Mr.
Ringer from lifting greater than fifteen pounds and from sweeping. (Ex. 2 at 10.) He
also permanently restricted Mr. Ringer to jobs that allow him to frequently change
positions. /d.

                            Findings of Fact and Conclusions of Law

                                      Applicable Legal Principles

        Mr. Ringer bears the burden of proving all essential elements of his claim. See
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 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). The Court will not construe the law remedially or
liberally in Mr. Ringer's favor in assessing his right to benefits, but will construe the law
fairly, impartially, and in accordance with basic principles of statutory construction
favoring neither party to the claim. See Tenn. Code Ann.§ 50-6-116 (2015).

                                    Permanent Partial Disability Benefits

                             Initial-Tier Permanent Partial Disability Benefits

       Tennessee law has historically provided monetary benefits to compensate an
injured employee for "disability partial in character, but adjudged to be permanent." See
Key v. Briar Hill Collieries, 68 S.W.2d 115, 116 (Tenn. 1933); Tenn. Code Ann. § 50-6-
5
  WCI authorized Mr. Ringer to see Dr. Richard Kern, a neurosurgeon, for a second opinion on surgery. According
to the report of Dr. Jerry Smith, Dr. Kern recommended the same surgery as did Dr. Jolley. (Ex. 2 at 9.)


                                                      4
207(3)(A) (2012). However, the 2013 reforms to the Tennessee Workers' Compensation
Law changed the formula for calculating an employee's permanent partial disability
benefits award, enacting a two-tier compensatory system. Tennessee Code Annotated
section 50-6-207(3)(A) (2015) provides the following formula for calculating the initial
tier of permanent partial disability benefits: "at the time the injured employee reaches
maximum medical improvement the injured employee shall be paid sixty-six and two-
thirds percent (66 2/3%) of the employee's average weekly wages for the period of
compensation, which shall be determined by multiplying the employee's impairment
rating by four hundred fifty (450) weeks." The injured employee receives the above-
described disability benefit whether he or she "has returned to work or not." ld.

       WCI does not dispute Mr. Ringer's entitlement to initial-tier permanent partial
disability benefits, but argues the Court should base these benefits on Dr. Jolley's
impairment rating of six percent to the whole body. (Ex. 5 at 24; Ex. 4 at p. 1.) Mr.
Ringer seeks benefits based on Dr. Smith's ten percent whole body rating. (Ex. 2 at 9-
10). Because Dr. Jolley is the authorized treating physician, the Workers' Compensation
Act presumes the accuracy of his impairment rating subject to rebuttal by a
preponderance of the evidence. Tenn. Code Ann.§ 50-6-204(k)(7) (2015).

       In Mansell v. Bridgestone Firestone N Am. Tire, 417 S.W.3d 393, 410-412 (Tenn.
2013), the Supreme Court discussed the type of evidence a trial court may consider in
determining whether a party had rebutted the presumption of accuracy afforded the
impairment rating of a physician selected under the Bureau's Medical Impairment Rating
Registry. 6 While the Court in Mansell did not provide formulaic requirements describing
the quality or quantity of evidence necessary to rebut a statutory presumption of
accuracy, it did establish that the following factors may be relevant to a judicial
determination of the rebuttal issue:

         (1) a comparison of the specialties of the physicians providing the ratings;
         (2) whether a disagreement between the physicians as to the diagnosis of the
             employee's condition exists; and
         (3) whether a physician employed an incorrect methodology under the AMA
             Guides in formulating his or her impairment rating.

       The Court fmds that the first two criteria listed above provide no basis for
concluding that Mr. Ringer has overcome the statutory presumption of accuracy afforded
Dr. Jolley's impairment rating. Both Drs. Jolley and Smith possess sufficient
professional credentials to provide admissible impairment ratings. Also, Drs. Jolley and

6
  Because the Supreme Court in Mansell considered a different presumption than that before the Court in this claim,
the Court does not consider that the Mansell opinion binds its decision here. However, the Court fmds instructive
the Supreme Court's discussion in Mansell regarding the type of evidence it may consider to rebut a statutory
presumption.


                                                        5
Smith reached similar diagnoses of Mr. Ringer's condition. (Ex. 2 at 9; Ex. 5 at 8.)

        However, the methodologies the doctors employed in formulating their
impairment ratings under the AMA Guides do provide a probative factor upon which to
assess their competing ratings. When asked during his deposition how he arrived at his
impairment rating, Dr. Jolley responded, "[u]sing the [AMA Guides], it looks like Page
564, Table 17.2." Dr. Smith also used Table 17-2 ofthe Guides as his beginning point in
assessing Mr. Ringer's impairment. (Ex. 2 at 9.) Accordingly, the Court will likewise
refer to Table 17-2 in its assessment of the methodologies utilized by Drs. Jolley and
Smith in formulating their impairment ratings.

       The Court focuses on the "Motion Segment Lesions" section of Table 17-2, on
page 564, because that section applies to an intervertebral disk herniation, the diagnosis
given Mr. Ringer by both Drs. Jolley and Smith. According to Table 17-2, the first step a
physician takes in formulating an impairment rating thereunder is the placement of the
patient's impairment in a designated classification.

       The separating factor between a Class 1 and a Class 2 impairment under the
"Motion Segment Lesions" section of Table 17-2 is the presence or absence of radicular
symptoms at the time the physician assesses the impairment. If, at the time of the
impairment evaluation, the physician finds the patient has "documented resolved
radiculopathy or nonverifiable radicular complaints at clinically appropriate level[s]"
(emphasis original), associated with his or her herniated disk, the correct classification is
impairment Class 1. If, however, the physician examines the patient and finds
"documented residual radiculopathy at the clinically appropriate lever' (emphasis
original), associated with the herniated disk, the correct classification is impairment Class
2. See AMA Guides, at pp. 564-565. The decision on which impairment classification
applies is critical to the physician's impairment rating because Table 17-2 mandates that
a physician set a patient's impairment rating between 1% to 8% to the body for a Class 1
impairment, while a Class 2 impairment results in an impairment rating of between 9% to
14% to the body. !d. at 564.

        The Court questions how Dr. Jolley could place Mr. Ringer's impairment in Class
1 when his own records and deposition testimony establish Mr. Ringer had verifiable
radicular findings in his left upper extremity at all times from the date of injury until Dr.
Jolley formulated his impairment rating on September 22, 2015. (Ex. 5 at ex. 4, p. 1.) At
the initial treatment visit, Dr. Jolley determined that Mr. Ringer had a positive Spurling's
test, decreased left C6 sensation to light touch/pinwheel testing, and decreased left deep
tendon reflexes. (Ex. 5, ex. 4, p. 17.) Based on these findings, Dr. Jolley recommended
cervical spinal surgery to treat Mr. Ringer's work injury "[g]iven the large HNP and
severe cord and nerve root compression." ld. at ex. 4, p. 17.

       While Dr. Jolley did not repeat clinical examinations on Mr. Ringer during follow-

                                             6
up visits, 7 he signed off on a July 27, 2015 examination performed by a nurse practitioner
in his office, who found decreased sensation in the C6 distribution in Mr. Ringer's left
upper extremity, as well as decreased deep tendon reflexes bilaterally. !d. at ex. 4, pp. 9,
 11, 13. The same nurse practitioner saw Mr. Ringer on August 26 and again performed a
clinical examination. (Ex. 5, at ex. 4, p. 5.) On this exam, she found Mr. Ringer had
absent biceps and brachioradialis reflexes, as well as diminished light touch sensation in
the C6 distribution, in his left upper extremity. !d. at ex. 4, p. 6. On September 18, Mr.
Ringer saw a physician's assistant in Dr. Jolley's office who assessed him to have
diminished strength and diminished "neurological exams" in the left biceps and
diagnosed him with "upper extremity radiculits"8 and C5-6 HNP with cord compression."
!d. at ex. 4, pp. 2-3.

        Dr. Jolley saw Mr. Ringer on September 14, eight days before he issued his
impairment rating report, but did not perform a physical examination. (Ex. 5 at ex. 4, p.
4.). However, he had access in his notes to the findings made by the medical staff in his
office that verified Mr. Ringer had left-upper-extremity radicular symptoms during
examinations performed within a month of the date Dr. Jolley issued his rating. Also,
during his deposition, WCI's attorney asked Dr. Jolley if Mr. Ringer had radiculopathy in
his left upper extremity on July 27, 2016, to which Dr. Jolley answered "Yes." (Ex. 5 at
16l

       Despite the above-described multiple documentations of verifiable radicular
symptoms associated with Mr. Ringer's neck injury, Dr. Jolley assessed Mr. Ringer with
a Class 1 impairment. !d. at ex. 4, p. 1. In view of the above, the Court finds no factual
support for Dr. Jolley's assessment of a Class 1 impairment, which, according to the
AMA Guides, requires that the assessing physician find the patient has "resolved
radiculopathy or nonverifiable radicular complaints at the clinical appropriate level[ s] at
the time of examination."

      A review of Dr. Smith's report indicates he verified radicular symptoms in Mr.
Ringer's left upper extremity at the time he examined him on March 21, 2016. (Ex. 2 at
9.) He noted that Mr. Ringer experienced increased neck pain radiating down his right
arm when passively flexed; had decreased sensation to light touch in his left thumb the

7
 The Court is concerned that Dr. Jolley rated Mr. Ringer's impairment without personally performing a physical
examination at or near the time he assessed the impairment. The AMA Guides implies a contemporaneous physical
examination as part of the impairment evaluation process when, at page 572, it provides: "When performing a
physical examination, the clinician needs to determine the significance of the physical findings as they relate to the
impairment being evaluated " (Emphasis added.)
8
 The glossary of the AMA Guides, at page 613, defines "radiculitis" as an "[i]nflammation of a nerve root." The
glossary goes on to state that, "[a]s commonly used, radiculitis implies symptoms such as pain, numbness, tingling,
and/or weakness in the distribution of a nerve root; but without physical fmdings of radiculopathy."
9
  Dr. Jolley described those radicular symptoms as mild weakness and sensory changes consistent with the
aggravation ofthe C6 nerve root. (Ex. 5 at 16.)

                                                          7
distal radial side of his left forearm; and had absent biceps and brachioradialis reflexes in
his left ann. Id. at 9. Based on the above-described radicular fmdings, Dr. Smith placed
Mr. Ringer's impairment in Class 2.

       Based on the protocol of the AMA Guides in the evaluation of impairment for a
herniated disk in a patient's cervical spine, the Court concludes that Dr. Jolley applied an
incorrect methodology by placing Mr. Ringer's impairment in Class 1. Dr. Jolley's own
records and deposition testimony establish the presence of verifiable radicular findings in
Mr. Ringer's left upper extremity within a month of the date Dr. Jolley issued his rating.
Accordingly, the Court gives little weight to Dr. Jolley's impairment rating.

       The Court also finds that, upon verifying through clinical testing that Mr. Ringer
had left-upper-extremity radicular symptoms at the time he performed his impairment
examination, Dr. Smith correctly applied the methodology of the AMA Guides by placing
Mr. Ringer's impairment in Class 2. For this reason, the Court finds that the
preponderance of the evidence rebuts the statutory presumption of correctness afforded
Dr. Jolley's rating and the Court thus accepts Dr. Smith's rating of ten percent to the
whole body as the rating upon which to assess Mr. Ringer's entitlement to initial-tier
permanent partial disability benefits. Based on the above fmding, the Court holds Mr.
Ringer is entitled to forty-five weeks of initial-tier permanent partial disability benefits at
his compensation rate of$260.16. 10 See Tenn. Code Ann.§ 50-6-207(3)(A) (2015).

                           Increased Permanent Partial Disability Benefits

        The Court's inquiry now turns to whether Mr. Ringer is entitled to increased
permanent partial disability benefits. Tennessee Code Annotated section 50-6-207(3)(B)
(20 15) provides additional permanent partial disability benefits to an employee who, at
the end of the designated compensation period, has "not returned to work with any
employer or has returned to work and is receiving less than one hundred percent ( 100%)
of the wages or salary the employee received from his pre-injury employer on the date of
injury." Section 50-6-207(D)(i) (2015) provides, however, that an employee is not
entitled to increased permanent partial disability benefits for loss of employment that "is
due to the employee's voluntary resignation or retirement provided, however, that the
resignation does not result from the work-related disability."

        During the Compensation Hearing, Mr. Ringer testified he has not worked at WCI
since September 2015 when he twice unsuccessfully attempted to return because his work
activities increased the pain from his work injury. Mr. Ringer further stated that he did
not attempt to return to WCI, or for any employer, because the pain from his work injury

10
  Because more than forty-five weeks have transpired since the date of maximum medical improvement, Mr.
Ringer's initial-tier permanent partial disability benefits have accrued. He is thus entitled to a lump-sum payment of
$11,707.20 in compensation for this portion of his award.


                                                          8
precludes him from working.u WCI argued that Mr. Ringer's failure to return to work
after the expiration of his FMLA leave constituted a voluntary resignation of his job.
Accordingly, it contends section 50-6-207(3)(D)(i) (2015) prohibits him from receiving
an increase of his initial-tier permanent partial disability benefits.

       In Dennis v. Polymer Components, No. 2015-01-0184, TN Wrk. Comp. App. Bd.
LEXIS 47 at *9 {Tenn. Workers' Comp. App. Bd. Sept. 27, 2016), 12 the Workers
Compensation Appeals Board cited the opinion of a Special Workers' Compensation
Appeals Panel in Newton v. Scott Health Care Ctr., 914 S.W.2d 884, 886 (Tenn.
Workers' Comp. Panel 1995), in observing that the issue of whether an employee made a
return to work for workers' compensation purposes ''will be leavened by an assessment
of the reasonableness of the employer in attempting to return the employee to work and
the reasonableness of the employee in failing to return to work."

       The Court finds that the preponderance of the evidence in this claim established
that Mr. Ringer failed to return to work at WCI, or for another employer, due to the
residual pain from his injury, as opposed to personal, non-injury related reasons. In
support of this finding, the Court notes that the Wage Statement filed by WCI (Ex. 6)
indicates Mr. Ringer worked regularly at WCI during the year preceding the date of
injury. Additionally, Mr. Ringer's supervisor at WCI testified Mr. Ringer was a reliable
employee before the date of injury and agreed on cross-examination that he had said of
Mr. Ringer, "I wish I had ten like him." 13

        In further support of the Court's fmding that Mr. Ringer failed to return to work at
WCI due to residual pain from his work injury, the medical evidence also shows that Mr.
Ringer suffers from a clearly-documented large herniated cervical disk which causes
verified radicular symptoms in his left upper extremity. The Court finds that this
diagnosis lends credibility to Mr. Ringer's testimony that he has endured increased pain
from his work injury when performing his regular job at WCI and activities such as
sweeping and raking leaves. Finally, the Court fmds the fact Dr. Smith placed permanent
restrictions on Mr. Ringer's activities further corroborates Mr. Ringer's testimony on this
issue. (Ex. 2 at 10.)

11
  The Court notes that Dr. Smith recorded a work history from Mr. Ringer indicating that on and before he injured
his neck at WCI, Mr. Ringer had a second job working as a mental health technician. Dr. Smith's note indicates that
Mr. Ringer reported he discontinued this job in July 2015 because sitting during the requisite twelve-hour shift
increased his neck pain. (Ex. 2 at 8.)
12
  The Court is aware that the Dennis opinion considered temporary disability benefits. However, the Appeals Board
noted in Dennis the concept of a meaningful return to work "is more fully developed in the context of disputes
concerning awards of permanent disability benefits, but courts use a similar analytical framework to determine
whether an employee is entitled to temporary partial disability benefits in the face of an offer of light duty work."
Dennis, at * 11. Accordingly, the Court properly relies here on the principles discussed in Dennis.
13
  The supervisor also testified Mr. Ringer's mental attitude changed before the date of injury, but confirmed his job
performance did not suffer despite the change in attitude.

                                                         9
        The fact Dr. Jolley released Mr. Ringer to return to work without restrictions in
September 2015 does not convince the Court Mr. Ringer would not experience pain when
he attempted activities that aggravated the herniated disk in his cervical spine. A review
of Dr. Jolley's testimony and notes indicates he lifted Mr. Ringer's restrictions because
the FCE examiner failed to assess permanent restrictions due to an allegation of Mr.
Ringer's submaximal effort in performing the physical activity undertaken during the
testing protocol. The Court fmds the fact the examiner deemed Mr. Ringer's FCE
unreliable does not, in and of itself, indicate Mr. Ringer is fit to perform the physical
activity of a full-time job without restriction.

        The Court further fmds that Dr. Jolley accepted the FCE determination without
personally examining or even talking to Mr. Ringer about the results. While the FCE
examiner note unreliable results, a review of the FCE report indicates Mr. Ringer
reported increased neck and left upper extremity pain while performing the physical
activity required of him to participate in the FCE. (Ex. 5 at ex. 5, pp. 2-3.) Because Dr.
Jolley simply returned Mr. Ringer to work without restrictions, despite knowing that Mr.
Ringer still had a large herniated cervical disk for which Dr. Jolley himself continued to
recommend surgery, the Court gives little weight to Dr. Jolley's assessment that Mr.
Ringer was able to return to work without restrictions in September 2015.

       Having found that Mr. Ringer failed to return to work at WCI or another employer
because of pain from his compensable injury, the Court finds he is entitled to increased
permanent partial disability benefits pursuant to section 50-6-207(3)(B) (2015). The
Court also awards Mr. Ringer increased benefits because he was over the age of forty on
the date the initial compensation period expired.' 4 /d. After application of the statutory
multipliers designated for the pertinent factors, the Court awards Mr. Ringer $18,965.66
in permanent partial disability benefits.

                              Additional Temporary Disability Benefits

        Mr. Ringer contended the Court should award him additional temporary disability
benefits for periods he did not work after September 14, 2015, when Dr. Jolley
wrongfully returned him to work without restrictions.            WCI argued that the
preponderance of evidence indicates Mr. Ringer attained maximum medical improvement
from his injury on September 14, thus, by law, obviating his entitlement to any further
temporary disability benefits. The Court agrees with WCI' s position on this point.

      In Jones v. Crencor Sales and Leasing, No. 2015-06-0332, 2015 TN Wrk. Comp.
App. Bd. 48, at *7 (Tenn. Workers' Comp. App. Bd. Dec. 11, 2015), the Appeals Board
14
  The Court will not award Mr. Ringer increased benefits for lacking a high school diploma or general equivalency
diploma because he falsely stated he had a high school diploma on the resume he submitted to WCI when he sought
employment there.

                                                       10
held that "temporary disability benefits terminate either by the ability to return to work or
attainment of maximum medical recovery." Such a finding is implicit in the requirement
found in sections 50-6-207(l)(D) and 207(2)(C) (2015) that an employer receives a credit
against an employee's permanent disability award for temporary disability benefits paid
after the date of maximum medical improvement.

       A review of Dr. Smith's report indicates he neither set a date of the maximum
medical improvement of Mr. Ringer's injury nor disputed Dr. Jolley's opinion that Mr.
Ringer attained maximum medical improvement on September 14, 2015. Accordingly,
the Court finds the preponderance of the evidence supports a finding that Mr. Ringer
attained maximum medical improvement on September 14, 2015, and, as such, holds that
Mr. Ringer is not entitled to the additional temporary disability benefits he requested.

                                      Change of Treating Physician

       In McCord v. Advantage Human Resourcing, 2014-06-0063, 2015 TN Wrk.
Comp. App. Bd. 6, at *13 (Tenn. Workers' Comp. App. Bd. March 27, 2015), the
Appeals Court approvingly referenced the Supreme Court's decision in Lindsey v. Strohs
Companies, 830 S.W.2d 899 (Tenn. 1992), that the employer and the employee bear
concomitant duties with respect to authorized medical treatment. The employer has a
duty to furnish medical and surgical treatment reasonably necessary to treat a work-
related injury, while the injured employee has a corresponding duty to accept the medical
benefits provided by the employer.

       Mr. Ringer asked the Court to order WCI to provide him another panel from
which to select a physician to replace Dr. Jolley as his authorized treating physician. He
requested a physician who will consider treatment options other than the surgery Dr.
Jolley recommends. He also cited a lack of confidence in Dr. Jolley and asks why he
should have confidence in a physician who refused to give his deposition in the same
room occupied by his own patient. Is

       Mr. Ringer cited to no authority, nor does the Court know of any such authority,
supporting his position the Court should order a new panel because the he has lost
confidence in Dr. Jolley. Additionally, Mr. Ringer produced no medical evidence
challenging the medical sufficiency of Dr. Jolley's treatment decisions. Accordingly, the
Court denies Mr. Ringer's request for a new panel.

          IT IS, THEREFORE, ORDERED as follows:

    1. Mr. Ringer is awarded $18,965.66 in permanent partial disability benefits;


Is According to Mr. Ringer's counsel, Dr. Jolley's initial refusal to give his deposition testimony in a room also
occupied by Mr. Ringer consumed a sizeable portion of the hour Dr. Jolley allotted for his deposition.

                                                       11
   2. Mr. Ringer's requests for additional temporary disability benefits and for a new
      panel are denied;

   3. Costs of this cause of $150.00 are assessed against WCI pursuant to Tennessee
      Compilation Rules and Regulations 0800-02-21-.07 (2015), to be paid within five
      days of this order becoming fmal; and,

   4. WCI shall prepare and file a statistical data form within ten business days of the
      date of this order, pursuant to Tennessee Code Annotated section 50-6-244 (2015).

      ENTERED this the 4th day of November, 2016.



                                         ii~
                                         Workers' Compensation Judge


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 lndigency, 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

                                            12
      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
      docketed and assigned to an Appeals Board Judge for review. At that time, a
      docketing notice shall be sent to the parties. Thereafter, the parties have fifteen
      calendar days to submit briefs to the Appeals Board for consideration. See Tenn.
      Comp. R. & Regs. 0800-02-22-.02(3) (2015).

      To appeal your case directly to the Tennessee Supreme Court, the
Compensation Order must be final and you must comply with the Tennessee Rules
of Appellate Procedure. If neither party timely files an appeal with the Appeals
Board, this Order will become final by operation of law thirty calendar days after
entry pursuant to Tennessee Code Annotated section 50-6-239(c)(7).




                                            13
                                        APPENDIX

Technical record:

         The Court considered the following items filed with the Clerk in considering this
claim:

   1.    Petition for Benefit Determination, filed February 16, 2016;
   2.    Initial Dispute Certification Notice, filed May 10, 20 16;
   3.    Joint Pre-Compensation Hearing Statement, filed October 5, 2016; and
   4.    Post-Discovery Dispute Certification Notice, filed October 17, 2016.

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.

Exhibits:

         The Court admitted into evidence the following exhibits:

   1.    Personnel File maintained by WCI;
   2.    Report of Dr. Jerry Smith;
   3.    Agreement Between Employee/Employer Choice of Physician (C-42);
   4.    Transcript of Deposition of Lamar Ringer;
   5.    Transcript ofDeposition of Dr. Jay E. Jolley, II;
   6.    Wage Statement (C-41); and
   7.    First Report of Work Injury.




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                           CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of the Compensation Hearing Order
was sent to the following recipients by the following methods of service on this the 4th
day ofNovember, 2016.

Name                      Certified   Via         Via    Service sent to:
                           Mail       Fax        Email
Russell King, Esq.,                               X      russell(@,rtkin !!.com
Employee's Attorney

Fred Baker, Esq.,                                 X      Fbaker@wimberly_lawson.com
Employer's Attorney




                                                         HRUM, COURT CLERK
                                                  ~·   .courtclerk




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