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

JULIE DEMOTTE,                                       )
         Employee,                                   )   Docket No. 2017-06-1778
v.                                                   )
UPS,                                                 )
         Employer,                                   )   State File No. 89793-2016
                                                     )
and                                                  )
LIBERTY INSURANCE CO.,                               )   Judge Joshua Davis Baker
          Carrier.                                   )

     COMPENSATION HEARING ORDER AWARDING FUTURE MEDICAL
    BENEFITS AND DENYING TEMPORARY AND PERMANENT DISABILITY
                            BENEFITS

      The parties appeared for a compensation hearing on March 14, 2018, to determine
Ms. Demotte’s entitlement to permanent disability, temporary disability, and future
medical benefits for her workplace injury. The Court holds UPS must provide Ms.
Demotte with lifetime medical benefits for her workplace injury but denies her claim for
temporary and permanent disability benefits.

                                          History of Claim

       With the exception of Ms. Demotte’s impairment rating, the parties stipulated to
almost all the material facts in this case. On November 11, 2016, Ms. Demotte fell and
broke her hip and leg while retrieving packages from a clogged package-transport
conveyor at a UPS-distribution facility.1 UPS accepted the claim, and Ms. Demotte
chose Dr. Jason Evans as the authorized treating physician. She also, however, received
treatment from Dr. Philip Kregor, Dr. Evans’ partner.




1
  Only Ms. Demotte testified at trial, and the Court summarized this history from the stipulations and her
testimony.


                                                    1
       On March 9, 2017, Ms. Demotte saw Dr. Evans and requested he release her to
return to work. However, for reasons unclear, Dr. Kregor, instead of Dr. Evans, signed
her release.

       Before her release, UPS paid Ms. Demotte temporary disability benefits at two
different rates. For the first twelve weeks, UPS paid Ms. Demotte at a rate of $186.67
per week. Because of an overpayment, UPS lowered the rate to $134.18 per week on
February 8 and continued payments at that rate until her release.2

       Ms. Demotte worked for a few days and then left UPS on March 21. She testified
she left because she could not physically perform the job. On April 10, Dr. Evans placed
Ms. Demotte at maximum medical improvement (MMI). He issued a form C-30A Final
Medical Report assigning Ms. Demotte a three-percent whole-person impairment rating
and releasing her to return to work at full duty.

       UPS stipulated to Ms. Demotte’s entitlement to future medical benefits but
objected to admission of the form C-30A to establish Ms. Demotte’s permanent
impairment rating. UPS argued that the medical report was inadmissible to prove
impairment because Ms. Demotte failed to give proper notice of her intent to use it,
which deprived UPS of the opportunity to depose Dr. Evans. Ms. Demotte opposed the
objection, arguing that UPS presented no medical proof rebutting Dr. Evans’ opinion.
She further argued that the Court should admit the form C-30A as a medical record, and
that requiring her to submit a form C-32 contravenes a central goal of the reform by
fomenting unnecessary litigation. The Court admitted the form but sustained UPS’
objection concerning its use to prove Ms. Demotte’s permanent impairment rating.

        After the trial, the Court reviewed the scheduling order and noticed it contained no
deadlines regarding expert witnesses. The Court then reviewed the recording from the
hearing to determine why the order omitted these deadlines. At the scheduling hearing,
the following exchange occurred between the Court and defense counsel, David Hooper:

          Court: It almost seems to me like ADR might be a good thing for you all?

          Hooper: Well, I don’t have any, um, unrealistic expectation about that.
          Based on things up to this point, I doubt that that’s helpful in this case. I’ll
          go through it if the Court wishes it because I realize that it’s, at least on,
          under the rules, it’s mandatory but I don’t know that there’s a reasonable
          expectation this will work. Honestly, the issues here, however they’ve
          been, and I think they’ve been skewed a bit by Zach [Wiley], but I think the
          issue here is what she’s entitled to receive in terms of permanency.


2
    The parties stipulated to a compensation rate of $141.96 per week.

                                                      2
       Court: So there is a dispute over that? There’s a three-percent and a one—
       is there an agreement on the rating?

       Hooper: There is.

       Court: Okay, okay, so then the issue is whether there’s additional benefits
       that she’s entitled to?

       Hooper: Right, well there’s a, well it actually is skewed a bit because of
       the, of um, of the overpayment of temporary disability benefits.

       Court: Okay, okay. I’ve gotcha, I’ve gotcha.

       Hooper: But there is no dispute about the three-percent rating.

Later in the hearing, the Court questioned the parties about discovery needed before the
compensation hearing:3

       Court: Do we need to take any expert witness depositions?

       Mr. Goodman: No your honor.

       Court: Mr. Hooper?

       Mr. Hooper: I don’t think so.

The scheduling order identified permanent disability benefits and temporary disability
benefits as disputed issues for trial. Additionally, the pretrial statement contained no
stipulation as to the impairment rating.

                               Legal Principles and Analysis

       At a compensation hearing, Ms. Demotte must establish by a preponderance of the
evidence that she is entitled to workers’ compensation 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) (2017). She 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).



3
 Attorney David Goodman appeared at the scheduling hearing in place of counsel of record, Zachary
Wiley.

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        At the outset of the hearing, the parties stipulated to most of the essential elements
of the claim. They agreed Ms. Demotte suffered a compensable injury, and UPS paid for
all treatment to date. They also agreed Ms. Demotte is entitled to continuing medical
benefits with Dr. Evans. In the end, the only disputed issues concerned Ms. Demotte’s
entitlement to permanent disability benefits and additional temporary disability benefits.

       The dispute concerning permanent disability benefits centered on the admissibility
of form C-30A as proof of Ms. Demotte’s impairment rating. UPS objected to
admissibility of the rating, and the Court sustained the objection. The Court provides the
following analysis to address the admissibility of medical reports at a compensation
hearing. To that end, the analysis focuses on three legal pronouncements: statutory law,
regulatory law, and evidentiary rules.

                     Admissibility of Medical Reports Under Statute

       Tennessee Code Annotated section 50-6-235(c)(1) allows for introduction of
direct testimony “through a written medical report on a form established by the
administrator.” The administrator adopted form C-32 for this purpose. See Tenn. Comp.
R. & Regs. 0800-02-01-.16(2). When completed by a physician, form C-32 satisfies the
requirements for a signed medical report contained in section 50-6-235(c)(1). A party
may introduce a form C-32, in lieu of deposition testimony, at any stage of litigation
upon giving the opposing party at least twenty days’ notice of its intent to rely on it. The
opposing party may object to the report’s introduction but must depose the physician
within a “reasonable period of time,” or the objection is waived. Tenn. Code Ann. § 50-
6-235(c)(2).

       Ms. Demotte attempted to introduce form C-30A instead of form C-32. While
both are technically medical reports, the difference in the amount of information
contained in form C-32 as opposed to form C-30A is overwhelming. Form C-32 is
several pages in length and contains more detailed information concerning an employee’s
physical condition. It also includes a causation opinion and physician certification. Form
C-30A, on the other hand, provides limited information and does not require certification.
The Court finds that it is for this reason that the administrator provided form C-32 for
admissibility in lieu of deposition testimony. Additionally, filing a C-32 signals an
intention to rely on the report in lieu of deposition testimony, which triggers the opposing
party’s right to demand a deposition. Because Ms. Demotte failed to file form C-32,
UPS’ right to demand a deposition never arose.

       While UPS had the right to object to the admissibility of form C-30A to prove Ms.
Demotte’s impairment rating, the Court found the objection puzzling. UPS voiced no
objection to the three-percent impairment rating at the scheduling hearing. In fact, when
the Court asked whether there was an agreement to the impairment rating, Mr. Hooper
responded, “There is.” Additionally, when the Court asked the parties whether they

                                              4
needed to take expert witness depositions, Mr. Goodman said no, and Mr. Hooper said, “I
don’t think so.”

       At the compensation hearing, the parties stipulated to all material aspects of the
case including compensability of the injury. With these stipulations and Mr. Hooper’s
previous statement of agreement to the impairment rating, the Court fails to see what
would be accomplished if UPS chose to take Dr. Evans’ deposition. Ms. Demotte,
however, had the burden to prove her permanent impairment and needed to provide either
expert witness testimony via a deposition transcript or through form C-32. Ms. Demotte
attempted to rely on form C-30A instead, which is not admissible to prove permanent
medical impairment under Tennessee Code Annotated section 50-6-235(c)(1). In short,
Ms. Demotte had the duty to present her case through admissible evidence and failed to
do so

                        Medical Reports Under Regulatory Law

       Ms. Demotte argued that despite the statutory law concerning admissibility of
medical reports, the Court’s rules and regulations allow for admissibility of the
completed form C-30A as a medical record. She cited Tennessee Compilation Rules and
Regulations 0800-02-21-.16(6)(B) in support of this argument. The rule provides in
pertinent part: “All medical records signed by a physician, including via electronic
signature, or accompanied by a certification that the records are true and accurate which
has been signed by the medical provider shall be admissible.” The Court disagrees with
Ms. Demotte’s position.

       The Court sees a distinction between a medical record and a medical report for
two reasons. First, the Bureau’s rules and regulations identify forms C-30 and C-32 as
medical reports. Second, physicians complete medical reports to support litigation in a
workers’ compensation claim, while physicians dictate or prepare medical records to
track the course of treatment and determine appropriate next steps for care. In this
Court’s view, the distinction between a report prepared for litigation and medical records
used to document and support treatment make the records more reliable. The Court,
therefore, holds that a medical record as provided in Rule 0800-02-21-.16(6)(B) does not
include form C-30A.

                     Medical Reports Under the Rules of Evidence

       UPS objected to admission of the impairment rating in form C-30A because it
constitutes hearsay. The Tennessee Rules of Evidence define hearsay as “a statement,
other than one made by the declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” Tenn. R. Evid. 801(c). “Hearsay is
not admissible except as provided for these rules or otherwise by law.” Id. at 802.


                                            5
        The Court agrees that the impairment rating Dr. Evans provided on form C-30A
constitutes hearsay. Dr. Evans completed the form outside of Court, so it qualifies as an
out-of-court statement. Additionally, Ms. Demotte attempted to introduce the form to
prove the three-percent rating contained within it. Accordingly, the form C-30A
constitutes hearsay. Further, it does not fall within any of the exceptions to hearsay. See
id. at 803. Thus the impairment rating in form C-30A is not admissible under the Rules
of Evidence.

                       Ms. Demotte Failed to Prove Entitlement to
                       Additional Temporary Disability Payments

       Ms. Demotte also seeks additional temporary total disability benefits. The Court
denies her request.

        UPS paid Ms. Demotte temporary disability benefits from the date of her injury
until March 9, 2017. On March 9, Ms. Demotte saw Dr. Evans and asked him to release
her to return to full-duty work. Dr. Evans agreed. For an unexplained reason, Dr. Kregor
issued the release. Ms. Demotte then returned to work, and UPS terminated her
temporary disability benefits.

       Ms. Demotte worked for a few days and then left employment with UPS on March
21. She testified she could not physically perform her job. On April 10, Dr. Evans
released her to return to work at full duty and noted that Ms. Demotte’s work disability
began on the date of injury and ended on April 10.

       For the first twelve weeks she missed work, UPS overpaid temporary disability
benefits to Ms. Demotte by $44.71 per week, or a total of $536.52 (($186.67 - $141.96) x
12 weeks). UPS then lowered the rate to $134.18 per week on February 8 and continued
payments at that rate until her release to return to work—four weeks and two days later.
This allowed UPS to recoup $33.34 (($141.96 - $134.18) x 4 weeks) + (($7.78/7) x 2
days)) of the overpayment, and left the overpayment balance at $503.18.

       After Ms. Demotte left work on March 21, two weeks and six days passed before
Dr. Evans placed her at maximum medical improvement and set her last date of disability
at April 10. For that period, Ms. Demotte would have been due $405.60. Because this
amount is less than the outstanding overpayment balance, Ms. Demotte cannot recover
any additional temporary disability benefits.

IT IS, THERFORE, ORDERED AS FOLLOWS:

   1. UPS shall continue to provide Ms. Demotte with ongoing future medical benefits,
      with Dr. Evans acting as the authorized treating physician.


                                            6
  2. Ms. Demotte’s claim for permanent disability benefits and additional temporary
     disability benefits is denied.

  3. Absent an appeal to the Appeals Board, this order shall become final in thirty
     days.

  4. The Court taxes the $150.00 filing fee to UPS under Tennessee Compilation Rules
     and Regulations 0800-02-21-.07, for which execution may issue as necessary.
     UPS shall pay this fee within five business days of this ordering becoming final.

  5. UPS shall file form SD-1 within ten business days of this order becoming final.



ENTERED ON APRIL 11, 2018.



                                       _____________________________________
                                       Joshua Davis Baker
                                       Workers’ Compensation Judge




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                                       APPENDIX

Exhibits:

   1. Medical Records
   2. Choice of Physician Form

Technical Record:

   1.   Petition for Benefit Determination
   2.   Dispute Certification Notice
   3.   UPS Compensation Hearing Brief
   4.   UPS Prehearing Statement
   5.   UPS Motion in Limine
   6.   UPS Exhibit List
   7.   Demotte Prehearing Statement
   8.   Demotte Witness and Exhibit List
   9.   Scheduling Order




                                             8
                           CERTIFICATE OF SERVICE

       I certify that a true and correct copy of the foregoing was sent to the following
recipients by the following methods of service on April__2018.
                                                        11,

 Name                     Certified   First        Via Service sent to:
                           Mail       Class       Email
                                      Mail
 Zachary Wiley                                     X     zwiley@forthepeople.com
 David Goodman                                           dgoodman@forthepeople.com
 David Hooper                                      X     dhooper@hooperzinn.com



                                        ______________________________________
                                          PENNY SHRUM, COURT CLERK
                                                wc.courtclerk@tn.gov




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