                                                                                FILED
                                                                              Feb 15, 2019
                                                                              09:33 AM(CT)
                                                                            TENNESSEE COURT OF
                                                                           WORKERS' COMPENSATION
                                                                                  CLAIMS




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

BETTY TIPTON,                              )   Docket No. 2018-07-0202
         Employee,                         )
v.                                         )
DYNAMETAL TECHNOLOGIES,                    )
         Employer,                         )   State File No. 86668-2016
And,                                       )
                                           )
ACCIDENT FUND INS. COMPANY,                )
         Carrier.                          )   Judge Joshua Davis Baker


                      COMPENSATION HEARING ORDER


        The Court convened a compensation hearing on January 29, 2019. The parties
disputed whether Ms. Tipton suffered a work-related injury and the extent of her
permanent impairment. The Court holds Ms. Tipton suffered a compensable back injury
that resulted in fifteen percent permanent partial disability to the body as a whole.

                                  History of Claim

       Ms. Tipton is a fifty-three-year-old resident of Haywood County with a twelfth
grade education. She worked for Dynametal assembling and packing parts. After
packing them, she lifted the boxes weighing between thirty and thirty-five pounds and
placed them onto a skid.

       While putting a box on a skid on November 7, 2016, Ms. Tipton felt a pop and
immediate pain in her back. Dynametal provided urgent care from a clinic Ms. Tipton
chose from a panel. The clinic provided conservative treatment for a lumbar strain for
about eight months. She was released to return to work but continued having back pain
radiating into her legs.
       Ms. Tipton felt the clinic was unresponsive, so she saw her primary care
physician, who recommended an MRI in March 2017. The exam revealed a bulging disc
at L4-L5 “with left paracentral disc extrusion impinging the left lateral recess” and a
bulging disc at L5-S1 “with left paracentral disc protrusion impinging the left lateral
recess.”

       Consequently, Dynametal provided Ms. Tipton with a panel of specialists from
which she chose Dr. John Brophy, a neurosurgeon. Dr. Brophy concluded after one visit
that she had a work-related lumbar strain and that her bulging discs were not work-
related. Interpreting the MRI, he thought “a lot of it was arthritic” but identified a “disc
abnormality on the left at L4-5” that was a “potential source of leg pain.” However, his
“impression was chronic back pain associated with lumbar spondylosis without definite
clinical evidence of radiculopathy or radiographic evidence of nerve root compression.”
He recommended and steroid injection and released her to full-duty work at maximum
medical improvement (MMI) on August 23, 2017. Dr. Brophy noted she had no
permanent impairment.

      Although Dr. Brophy testified the bulging discs could “potentially” have occurred
at work, he explained that the cause is not easy to identify:

       [T]he problem [with identifying the cause of a ruptured disc] is people
       think it’s related to some strenuous activity but if that were true, we’d see it
       in every NFL football game. We wouldn’t see it in doctors and lawyers,
       which we do. . . . [W]e never know exactly when it occurred.

He expressed that it was “interesting” that Ms. Tipton’s pain began as she stood up from
placing the box on the skid, rather than as she lifted the box.

        Dr. Samuel J. Chung, a physiatrist and employee’s independent medical examiner,
testified that Dr. Brophy’s contention that Ms. Tipton did not have radiculopathy was
incongruent with the treatment he had recommended, an epidural steroid injection. Dr.
Chung testified, “You don’t do [a] lumbar epidural steroid injection unless [the] patient
has clinical symptoms of radiculopathy.”

        Dr. Chung concluded “the primary cause” of Ms. Tipton’s injury was the work
event she had described, explained she had fifteen percent permanent impairment, and
said her complaints matched her MRI results. He testified about her left leg radicular
complaints, “It is a correct side that she is complaining of . . . and the MRI correlates to
that specific level and the side that was ruptured, extruded, if you will, at the L4 and L5
level.”


                                              2
       Ms. Tipton testified she has not worked since her injury. After Dr. Brophy
released her, she continued treating with her primary care physician and sought assistance
from coworkers to perform her job for roughly eight more months, until her primary care
physician took her off work. Her work history included house-cleaning and factory
assembly work. She had no prior back treatment or complaints before this work injury.

                        Findings of Fact and Conclusions of Law

        Ms. Tipton seeks permanent total disability benefits and has the burden of proof
on all essential elements of her claim. Scott v. Integrity Staffing Solutions, 2015 TN Wrk.
Comp. App. Bd. LEXIS 24, at *6 (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, 2015 TN Wrk. Comp. App. Bd. LEXIS 42, at *18 (Nov. 9, 2015); see
also Tenn. Code Ann. § 50-6-239(c)(6) (2018) (“[T]he employee shall bear the burden of
proving each and every element of the claim by a preponderance of the evidence.”).

       To recover benefits, Ms. Tipton must establish by a preponderance of the evidence
that her injury arose primarily out of and in the course and scope of employment. Tenn.
Code Ann. § 50-6-102(14). She must show to a reasonable degree of medical certainty
that “the employment contributed more than fifty percent (50%) in causing the injury,
considering all causes.” Id. at § 50-6-102(14)(B). The physician selected from a panel is
presumed correct on causation, but that presumption can be rebutted by a preponderance
of the evidence standard. Tenn. Code Ann. § 50-6-102(14)(E).

       Here, the Court finds Ms. Tipton’s bulging discs were primarily caused by her
employment. Dr. Brophy determined they were not and, although his causation opinion
is presumed correct, Dr. Chung’s causation opinion rebuts it by a preponderance of the
evidence. When faced with conflicting medical testimony, the Court must use its
discretion in accepting one expert opinion over another and, in so doing, may consider
which opinion contains the more probable explanation. Sanker v. Nacarato Trucks, Inc.,
2016 TN Wrk. Comp. App. Bd. LEXIS 27, at *12 (July 6, 2016).

        Ms. Tipton identified a specific work event that resulted in immediate pain. She
said she had not suffered a back injury, or received treatment for, or complained of back
pain, before this event. Dr. Chung bolstered her credibility by explaining how the MRI
test results corresponded with her pain complaints and testified convincingly that this
work accident was the primary cause of Ms. Tipton’s bulging discs. Unlike Dr. Brophy,
Dr. Chung considered all information available to him, including that she had no prior
back injuries and that her pain began with this work accident. Dr. Brophy’s opinion
seemed both dismissive of Ms. Tipton’s account and also contradictory. He dismissed
“strenuous activity” as a primary cause for a bulging disc but then implied it was
                                              3
noteworthy that Ms. Tipton attributed her onset of pain to simply straightening from a
bended position rather than from lifting a heavy box. See Thomas v. Aetna Life and Cas.
Co., 812 S.W.2d 278, 283 (Tenn. 1991) (Medical proof “must be considered in
conjunction with the lay testimony of the employee as to how the injury occurred and the
employee’s subsequent condition.”).

       The Court also accepts Dr. Chung’s opinion on permanent impairment over that of
Dr. Brophy’s and finds that his opinion outweighs Dr. Brophy’s by a preponderance of
the evidence. Dr. Chung provided a detailed explanation for his opinion on permanent
impairment from the AMA Guides while Dr. Brophy did not. Dr. Chung cast doubt on
Dr. Brophy’s opinion, pointing out that Dr. Brophy said Ms. Tipton did not have
radiculopathy, yet he recommended treatment for it. The Court therefore finds Dr. Chung
offered the more accurate opinion and holds that Ms. Tipton suffered fifteen-percent
impairment from her workplace accident.

       When an employee has a compensable work injury, reaches maximum medical
improvement, and has permanent impairment, she is entitled to receive permanent
disability benefits. Tenn. Code Ann. § 50-6-207(3)(A). The injured worker’s award is
calculated by multiplying the impairment rating by 450, then multiplying the result by her
compensation rate. This “original award” is owed after the injured worker reaches
maximum medical improvement regardless of whether she returned to work. Id. Here,
Ms. Tipton’s impairment rating of fifteen percent entitles her to permanent partial
disability benefits of $ 16, 528.73 (450 weeks x 15% x $244.87, her stipulated
compensation rate).

        If at the end of the period of the original award, the employee has not returned to
work at an equal or greater rate of pay as before the injury, the employee may receive
increased benefits. Specifically, she may receive 1.35 times the original award for not
returning to work and other multipliers for her age, lack of a high school education or
equivalent, and when the unemployment rate in the county of injury meets certain
criteria. Id. at § 50-6-207(3)(B).

       The Court holds Ms. Tipton is entitled to additional benefits under Tennessee
Code Annotated section 50-6-207(3)(B), as she did not return to work for any employer
and was more than forty years old at the end of the initial compensation period. The
increased permanent partial disability is equal to 1.35 times the original award because
Ms. Tipton did not return to work and 1.2 times the original award because she is over
the age of forty, or an additional $10,247.81, for a total award of $26,776.54.
($16,528.73 x 1.2 x 1.35).

       Finally, The Court holds Ms. Tipton is not permanently and totally disabled. In
assessing her job skills and training, education, age, local job opportunities, and her
                                            4
capacity to work in her disabled condition, the Court finds that Ms. Tipton failed to prove
that her injury “totally incapacitates [her] from working at an occupation that brings
[her]. . . an income[.]” See Tenn. Code Ann. § 50-6-207(4)(B); Roberson v. Loretto
Casket Co., 722 S.W.2d 380, 384 (Tenn. 1986). Ms. Tipton has a high school education,
is fifty-three years old, and has past work experience in manufacturing and house
cleaning. While she likely cannot return to those types of work without accomodation,
the Court finds she failed to prove she cannot perform any work that brings her an
income. In fact, she continued work with assistance from her coworkers for over eight
months after her injury.

IT IS, THEREFORE, ORDERED as follows:

   1. Ms. Tipton suffered fifteen percent permanent partial disability to the body as a
      whole as a result of her workplace accident. Pursuant to Tennessee Code
      Annotated section 50-6-207(3), this equates to 67.5 weeks at her stipulated
      compensation rate of $244.87, or $16,528.73 in permanent partial disability
      benefits.

   2. The Court also finds Ms. Tipton is entitled to increased benefits totaling an
      additional $10,247.81, which represents the applicability of the 1.35 and 1.2
      multipliers, since Ms. Tipton did not return to work after her initial period of
      compensation ended and is over age forty.

   3. Ms. Tipton is entitled to reasonable and necessary future medical treatment for her
      back with Dr. Brophy.

   4. The Court further finds Ms. Tipton’s counsel, David Hardee, provided good and
      valuable services to Ms. Tipton and is entitled to recover a fee of twenty percent,
      of her total permanent partial disability award, or $5,355.31 pursuant to Tennessee
      Code Annotated section 50-6-226.

   5. Absent an appeal, this order will become final thirty days after entry.

   6. The Court assesses the $150.00 filing fee to Dynametal for which execution shall
      issue as necessary, to be paid within five days of the order becoming final.

   7. Dynametal file a completed SD-2 form within five days of the order becoming
      final.




                                            5
ENTERED ON FEBRUARY 15, 2019.



                        ____________________________________
                        Judge Joshua Davis Baker
                        Court of Workers’ Compensation Claims




                                6
                                      APPENDIX

Exhibits:

   1.   Dr. John Brophy’s Deposition Transcript with Exhibits
   2.   Dr. Samuel Chung’s Deposition Transcript with Exhibits
   3.   Dr. Emanuel Obi’s Deposition Transcript with Exhibits
   4.   Payroll Records
   5.   Short Term Disability Application
   6.   FMLA Application

Technical record:

   1.   Petition for Benefit Determination
   2.   Dispute Certification Notice
   3.   Post-Discovery Dispute Certification Notice
   4.   Tipton Pretrial Brief
   5.   Tipton Witness and Exhibit List
   6.   Dynametal Pretrial Brief
   7.   Dynametal Witness List
   8.   Dynametal Exhibit List
   9.   Joint Prehearing Statement




                                            7
                             CERTIFICATE OF SERVICE

        I certify that a true and correct copy of this Order was sent to these recipients by
the following methods of service on February 15, 2019.


 Name                      Certified   First        Via Service sent to:
                            Mail       Class       Email
                                       Mail
 David Hardee,                                      X     kperry@hmdlaw1.com
 Employee’s Attorney
 Gordon Aulgur,                                     X     gordon.aulgur@accidentfund.com
 Employer’s Attorney


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




                                               8
                                 II
                                  I                                                       'I



                          Compensation Hearing Order Right to Appeal:

     If you disagree with this Compensation Hearing Order, you may appeal to the Workers'
Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers'
Compensation Appeals Board, you must:

    1. Complete the enclosed form entitled: "Compensation Hearing Notice of Appeal," and file
       the form with the Clerk of the Court of Workers' Compensation Claims within thirty
       calendar days of the date the compensation hearing order was filed. When filing the
       Notice of Appeal, you must serve a copy upon the opposing party (or attorney, if
       represented).

   2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
      calendar days after filing of the Notice of Appeal. Payments can be made in-person at
      any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
      alternative, you may file an Affidavit of Indigency (form available on the Bureau's
      website or any Bureau office) seeking a waiver ofthe filing fee. You must file the fully-
      completed Affidavit of Indigency within ten calendar days of filing the Notice of
      Appeal. Failure to timely pay the filing fee or file the Affidavit of lndigency will
      result in dismissal of your appeal.

   3~   You bear the responsibility of ensuring a complete record on appeal. You may request
        from the court clerk the audio recording of the hearing for a $25.00 fee. A licensed court
        reporter must prepare a transcript and file it with the court clerk within fifteen calendar
        days of the filing the Notice of Appeal. Alternatively, you may file a statement of the
        evidence prepared jointly by both parties within fifteen calendar days of the filing of the
        Notice of Appeal. The statement of the evidence must convey a complete and accurate
        account of the hearing. The Workers' Compensation Judge must approve the statement
        of the evidence before -the record is submitted to the Appeals Board. If the Appeals
        Board is called upon to review testimony or other proof concerning factual matters, the
        absence of a transcript or statement of the evidence can be a significant obstacle to
        meaningful appellate review.

   4. After the Workers' Compensation Judge approves the record and the court clerk transmits
      it to the Appeals Board, a docketing notice will be sent to the parties. The appealing
      party has fifteen calendar days after the date of that notice to submit a brief to the
      Appeals Board. See the Practices and Procedures of the Workers' Compensation
      Appeals Board.

To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing
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, the trial court's
Order will become final by operation of law thirty calendar days after entry. See Tenn.
Code Ann.§ 50-6-239(c)(7).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
II                                                                                                                      I.
 '                                                                                                                       I




                                    Tennessee Bureau of Workers' Compensation
                                           220 French Landing Drive, 1-B
                                             Nashville, TN 37243-1002
                                                      800-332-2667

                                               AFFIDAVIT OF INDIGENCY


     I,                                                , having been duly sworn according to law, make oath that
     because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
     waived. The following facts support my poverty.

     1. Full Name:_ _ _ _ __ _ _ _ _ __                       2. Address: - - - - - - - -- - - --

     3. Telephone Number: - - - - - - - - -                   4. Date of Birth: - - - - -- - - -- -

     5. Names and Ages of All Dependents:

             - - - - - - - - - - - - - - -- - Relationship: - - - - - - -- - - -- -

             - - - - - - - - - - - - - -- --                  Relationship: - - - - - -- - - -- - -

             - - - - - - - - - - -- - -- - - Relationship: - - - -- - -- - - - - -

             - - - - - - - - - - - - - - -- -                 Relationship: - - - - - - -- - - -- -

     6. I am employed by: - - - - - - - - - - -- - - -- - - - - - -- - - -- - -

             My employer's address is: - - - - -- - - - -- - - - - - -- - -- - - - -

             My employer's phone number is: - - - -- - - - -- - - - - - -- - - -- - -

     7. My present monthly household income, after federal income and social security taxes are deducted, is:

     $ _ _ _ _ _ __

     8. I receive or expect to receive money from the following sources:

             AFDC            $            per month           beginning
             SSI             $            per month           beginning
             Retirement      $            per month           beginning
             Disability      $            per month           beginning
             Unemployment $               per month           beginning
             Worker's Camp.$              per month           beginning
             Other           $            per month           beginning



     LB-1108 (REV 11/15)                                                                               RDA 11082
9. My expenses are:     ! ~                                                      li
                                                                                  I
                          '

        Rent/House Payment $              per month     Med icai/Dental $ _ _ ___ per month

        Groceries       $           per month           Telephone       $ _ __ _ _ per month
        Electricity     $           per month           School Supplies $ _ _ _ _ _ per month
        Water           $           per month           Clothing        $ _ _ _ _ _ per month
        Gas             $           per month           Child Care      $ _ _ _ _ _ per month
        Transportation $            per month           Child Support   $ _ _ _ _ _ per month
        Car             $            per month
        Other           $           per month (describe:


10. Assets:

        Automobile              $ _ _ _ __
                                                        (FMV) - - - - - - - - - -
        Checking/Savings Acct. $ _ _ _ __
        House                   $ _ _ __
                                                        (FMV) - - - - - - - - - -
        Other                   $ _ _ _ __              Describe:_ _ _ _ __ _ __ __


11. My debts are:

        Amount Owed                     To Whom




I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.




APPELLANT



Sworn and subscribed before me, a notary public, this

____ dayof _____________________ , 20_ __




NOTARY PUBLIC

My Commission Expires:_ _ _ _ _ _ __




LB-1108 (REV 11/15)                                                                          RDA 11082
