            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD

Clarence Bass                                 )   Docket No. 2016-06-1038
                                              )
v.                                            )   State File No. 59924-2014
                                              )
The Home Depot U.S.A., Inc., et al.           )
                                              )
                                              )
Appeal from the Court of Workers’             )
Compensation Claims,                          )
Kenneth M. Switzer, Chief Judge               )


                 Affirmed and Certified as Final - Filed May 26, 2017


The employee, a parking lot associate, injured his wrist collecting shopping carts in his
employer’s parking lot. An authorized treating physician opined that the employee
needed surgery, but that the surgery was related to a pre-existing arthritic condition rather
than the event at work. Following a trial, the trial court found the employee had
presented insufficient proof to rebut the presumption of correctness afforded the
authorized physician’s opinion and denied the claim. The employee has appealed,
challenging the trial court’s finding that he failed to establish that his need for surgery
and resulting disability were causally related to his work. We affirm the trial court’s
decision, dismiss the case, and certify the trial court’s order as final.

Presiding Judge Marshall L. Davidson, III, delivered the opinion of the Appeals Board in
which Judge David F. Hensley and Judge Timothy W. Conner joined.

Carolina V. Martin, Nashville, Tennessee, for the employee-appellant, Clarence Bass

Kenneth D. Veit, Nashville, Tennessee, for the employer-appellee, The Home Depot
U.S.A., Inc.

                          Factual and Procedural Background

      Clarence Bass (“Employee”) alleged suffering an injury to his right wrist on
August 1, 2014, while employed by The Home Depot U.S.A., Inc. (“Employer”). He
claimed that while working as a parking lot attendant responsible for loading items for


                                             1
customers and collecting shopping carts, the metal portion of a cart designed to hold a
child flipped up and struck the back of his wrist and hand. He experienced pain and
swelling and reported the incident on the day it happened. The parties do not dispute that
the incident occurred or that Employee had pre-existing arthritis in his wrist.

       Although Employee initially declined medical care, he ultimately requested and
received a panel of physicians from which he chose Dr. Philip Coogan, an orthopedic
surgeon, to be his authorized treating physician. Dr. Coogan provided conservative
treatment, including injections into Employee’s wrist, before recommending surgery for
carpal tunnel syndrome and a “proximal row carpectomy” which, as explained by Dr.
Coogan, “means surgical removal of several small bones in the wrist that makes the wrist
more stable and less painful.” The treatment Employee received prior to the surgical
recommendation was paid for by Employer.

       Subsequently, in an April 9, 2015 office note containing the referral for surgery,
Dr. Coogan stated that while Employee did need the surgery, the procedure should be
performed “outside of the Workers’ Compensation system.” In response to this note,
Employer sent correspondence to Dr. Coogan seeking his opinion regarding whether
Employee’s need for surgery was causally related to his employment. When asked, “[d]o
you still believe that the need for the current request for surgery and ongoing care is not
work related and should be pursued outside of [workers’ compensation],” Dr. Coogan
answered “yes.” He also indicated that he believed Employee was at maximum medical
improvement for his August 1, 2014 work injury. Thereafter, Employer denied the claim
“based on the panel physician’s opinion that further care is no longer related” to the
incident at work.

       Dr. Coogan performed the surgery on July 24, 2015 and provided follow-up care,
ultimately releasing Employee to return to work without permanent restrictions and
assigning an eight percent permanent anatomical impairment rating to the body as a
whole. Approximately a year and a half after the injury and eight months after the
surgery, Employee was examined by another orthopedic surgeon, Dr. Robert Landsberg,
who assigned an eleven percent permanent anatomical impairment to the body as a whole
and opined that the need for medical treatment was causally related to the work injury.1

        Employee returned to work after his injury and continued to work at the same job
until he had surgery, though he required help performing certain tasks. After a period of
being off work while recovering from surgery, he returned to work for Employer and was
initially assigned to the garden area but ultimately returned to his position as a lot
associate. He was terminated by Employer after multiple disciplinary actions, including

1
  Although Dr. Landsberg assigned a thirteen percent permanent anatomical impairment to the body as a
whole in his report, he acknowledged in his deposition that he had miscalculated the impairment and
testified the correct rating was eleven percent.


                                                 2
violation of Employer’s attendance policy, failure to appropriately attend to customers’
needs, and theft of tomato plants. Regarding the theft, Employee testified a vendor in the
garden department told him he could take the plants home. The store manager, Michael
Brown, testified that he reviewed security footage of the area where the plants were taken
and that he could not identify a person matching the description of the vendor offered by
Employee. Mr. Brown testified that he asked other vendors and they denied giving
anyone permission to take the plants without paying for them.2

       At trial, Employee sought payment of medical expenses associated with the
surgery and follow-up care performed by Dr. Coogan, temporary disability benefits, and
permanent partial disability benefits. The trial court found Employee had not established
by a preponderance of the evidence that his need for medical treatment arose primarily
out of his employment and denied his request for benefits. The trial court made
alternative findings in the event its determination regarding the compensability of the
claim was reversed on appeal. Specifically, the trial court accepted Dr. Coogan’s
impairment rating and determined Employee had been terminated for cause. Employee
has appealed.

                                       Standard of Review

       The standard we apply in reviewing a trial court’s decision is statutorily mandated
and limited in scope. Specifically, “[t]here shall be a presumption that the findings and
conclusions of the workers’ compensation judge are correct, unless the preponderance of
the evidence is otherwise.” Tenn. Code Ann. § 50-6-239(c)(7) (2016). The trial court’s
decision may be reversed or modified if the rights of a party “have been prejudiced
because findings, inferences, conclusions, or decisions of a workers’ compensation judge:

       (A)     Violate constitutional or statutory provisions;
       (B)     Exceed the statutory authority of the workers’ compensation judge;
       (C)     Do not comply with lawful procedure;
       (D)     Are arbitrary, capricious, characterized by abuse of discretion, or
               clearly an unwarranted exercise of discretion; or
       (E)     Are not supported by evidence that is both substantial and material
               in the light of the entire record.”

Tenn. Code Ann. § 50-6-217(a)(3) (2016).




2
  The manager also testified that Employee was under investigation at the time of his termination for
returning items to the store without a receipt. Employee testified he had purchased these items from a
“guy on the street” who happened to come by his house with Employer’s merchandise and that he
returned the items to the store so he could make “a few dollars.”


                                                  3
       In addition, for injuries occurring on or after July 1, 2014, as in this case, courts
may not apply a liberal or remedial interpretation of the workers’ compensation statutes,
but must apply the law “fairly, impartially, and in accordance with basic principles of
statutory construction.” Tenn. Code Ann. § 50-6-116 (2016). Consistent with that
mandate, the legislature has made clear that the workers’ compensation statutes “shall not
be construed in a manner favoring either the employee or the employer.” Id.

                                         Analysis

       Employee argues that the trial court erred in accepting Dr. Coogan’s causation and
impairment opinions over those of Dr. Lansberg’s. Employee contends that, while the
work incident involving the shopping cart may not have caused his underlying arthritic
condition, it did cause the condition to become symptomatic and resulted in the need for
medical care. Employee further argues that Dr. Landsberg demonstrated a better
understanding of his injuries and, therefore, his opinion should be given more weight. In
addition, Employee asserts that the trial court erred in concluding he was terminated for
cause and thus not entitled to additional benefits under Tennessee Code Annotated
section 50-6-207(3)(D)(ii) (2016). Employer responds that the trial court did not err in
accepting Dr. Coogan’s causation opinion and, alternatively, did not err in accepting his
impairment rating and concluding Employee was terminated for cause.

        At a compensation hearing where the parties have arrived at a trial on the merits,
the employee must establish by a preponderance of the evidence that he or she is entitled
to the requested benefits. See Tenn. Code Ann. § 50-6-239(c)(6) (“[T]he employee shall
bear the burden of proving each and every element of the claim by a preponderance of the
evidence.”). As a part of this burden of proof, the employee must establish that the injury
for which benefits are sought is a compensable injury as contemplated by the statute. To
be compensable, an injury must arise primarily out of and occur in the course and scope
of the employment. Tenn. Code Ann. § 50-6-102(14) (2016). In order to establish that
an injury arises out of the employment, the employee must show “by a preponderance of
the evidence that the employment contributed more than fifty percent (50%) in causing
the injury, considering all causes.” Tenn. Code Ann. § 50-6-102(14)(B). Further, “[a]n
injury causes death, disablement or the need for medical treatment only if it has been
shown to a reasonable degree of medical certainty that it contributed more than fifty
percent (50%) in causing the death, disablement or need for medical treatment,
considering all causes.” Tenn. Code Ann. § 50-6-102(14)(C). ‘“Shown to a reasonable
degree of medical certainty’ means that, in the opinion of the physician, it is more likely
than not considering all causes, as opposed to speculation or possibility.” Tenn. Code
Ann. § 50-6-102(14)(D).

       Also, it is well-established that a “trial judge has the discretion to determine which
testimony to accept when presented with conflicting expert opinions.” Payne v. UPS,
No. M2013-02363-SC-R3-WC, 2014 Tenn. LEXIS 1112, at *18 (Tenn. Workers’ Comp.


                                             4
Panel Dec. 30, 2014). Thus, when medical opinions conflict, as in this case, “the trial
judge must obviously choose which view to believe. In doing so, [the trial judge] is
allowed, among other things, to consider the qualifications of the experts, the
circumstances of their examination, the information available to them, and the evaluation
of the importance of that information by other experts.” Orman v. Williams Sonoma,
Inc., 803 S.W.2d 672, 676 (Tenn. 1991). When one of those experts is an authorized
treating physician, that expert’s opinion is afforded a presumption of correctness on the
issue of causation. Tenn. Code Ann. § 50-6-102(14)(E).

       Here, the trial court considered the testimony of the authorized treating physician,
Dr. Coogan, and Employee’s own physician, Dr. Landsberg, and found Employee had
presented insufficient medical proof to rebut the presumption of correctness afforded to
the authorized physician’s opinion with respect to causation. The trial court observed
that Dr. Coogan “firmly stated he cannot conclude within a ‘reasonable degree of medical
certainty’ that the work accident was the primary cause of the need for [Employee’s
surgery].”

        Based upon our review of the record, we agree with the trial court that the
evidence is insufficient to rebut the presumption of correctness afforded Dr. Coogan’s
causation opinion. Dr. Coogan testified he “thought that the injury and occupational
activities probably did not constitute more than 50 percent of the cause of his carpal
tunnel” and that the relationship between the incident at work and Employee’s condition
was “somewhere between unrelated and modest.” In an affidavit, Dr. Coogan testified it
was his “opinion within a reasonable degree of medical certainty that [Employee] did not
sustain an injury by accident that necessitated the need for carpal tunnel surgery on the
right upper extremity.” He confirmed that opinion in his deposition, and he agreed that,
“within a reasonable degree of medical certainty that an injury by accident resulting in
the need for carpal tunnel surgery did not arise primarily out of, nor in the course and
scope of [Employee’s] employment with [Employer].” When asked whether the
proximal row carpectomy was related to the incident at work, Dr. Coogan replied, “I
can’t state with a reasonable degree of medical certainty that it was.” He reiterated his
belief that “the need for the surgery and ongoing care is not related [to the work injury]
and should be pursued outside of the Workers’ Compensation system.”

       In addition, Dr. Coogan testified that Employee had “severe arthritis in the wrist”
and that it was “completely clear that the abnormalities in his wrist could not possibly be
accumulated [since the work injury].” He went on to state:

       So he – there’s no doubt that he had a significantly abnormal wrist, you
       know, for years really, that the radiographic abnormalities in his wrist take
       years to develop. And they are a consequence of an initiating injury, you
       know, long ago, several years ago that is – that produces some ligamentous
       instability in the wrist. . . .


                                            5
       . . . So if I have an arthritic wrist and I get it whacked or banged and that’s
       going to hurt a lot for longer than if I have a normal wrist, but it’s not the
       cause of my problem.

     By contrast, Dr. Landsberg testified that the incident at work aggravated
Employee’s pre-existing arthritis, stating that

       by hitting on the wrist, if it were just a direct blow, it can cause swelling in
       the soft tissues all around, it can cause swelling into the carpal bones, it can
       cause inflammation into the arthritic area, it can cause inflammation and
       swelling into the carpal tunnel, causing pressure on the median nerve. So
       that can all happen just from a direct blow.

       If the wrist moved suddenly one way or the other, that could cause
       increased movement between the already probably arthritic carpal bones,
       causing more possibility of increased instability in the wrist, more collapse,
       and more inflammation in the joints, just from the flare-up of the arthritis.

       When asked whether Employee would have needed surgery had he not continued
to experience pain, Dr. Landsberg testified that, absent pain, he would not have
recommended surgical intervention. He testified further that the primary cause of
Employee’s surgery was “pain and swelling and stiffness . . . from the work injury.” It
was his opinion that “based on that history, with the symptoms starting right after the
injury, with that swelling, that the carpal tunnel syndrome was secondary to the work
injury and leading to the surgery.” Despite expressing his view that the need for surgery
arose from the work accident, Dr. Landsberg did not question Dr. Coogan’s methodology
or otherwise explain how his opinion was flawed.

       Employee acknowledges that he had an underlying arthritic condition unrelated to
his work, but argues that he is not seeking benefits related to that condition. Rather, he
asserts that he suffered a compensable aggravation of that condition arising primarily out
of his employment that resulted in the need for surgery.3 However, Dr. Coogan
specifically addressed whether the need for medical treatment arose out of the work
accident:

       Q: In your medical opinion, was the need for surgery primarily caused by
          or related to the August 1, 2014, work accident?
3
  Employee cites Trosper v. Armstrong Wood Products, Inc., 273 S.W.3d 598 (Tenn. 2008), as providing
a framework for analyzing the aggravation of a pre-existing condition. However, in light of significant
changes to the law since Trosper was decided, reliance on that case is misplaced. See Arriaga v.
Amazon.com, Inc., No. 2014-01-0012, 2016 TN Wrk. Comp. App. Bd. LEXIS 12 (Tenn. Workers’ Comp.
App. Bd. Mar. 9, 2016); Miller v. Lowe’s Home Centers, Inc., No. 2015-05-0158, 2015 TN Wrk. Comp.
App. Bd. LEXIS 40 (Tenn. Workers’ Comp. App. Bd. Oct. 21, 2015).


                                                  6
       A: I think probably not.

He reiterated that “the need for the surgery and ongoing care is not related [to the work
incident] and should be pursued outside of the Workers’ Compensation system.”

       Not only did Dr. Coogan believe the need for surgery was not primarily caused by
the incident at work and that it was “completely clear that the abnormalities in his wrist
could not possibly be accumulated” since the event at work, he also made clear that
Employee “had the same diagnosis before the injury as he had after the injury.” And,
while Employee argues that Dr. Coogan’s opinion should be discounted because he
thought Employee was struck by the plastic flap covering the cart’s seat rather than the
metal backing of the seat, Dr. Coogan testified that even if the metal part of the seat
struck Employee, it would not significantly alter his opinion.

      Finally, we note that Dr. Coogan treated Employee multiple times over several
months, while Dr. Landsberg saw him only once in anticipation of litigation. “It seems
reasonable that the physicians having greater contact with the Plaintiff would have the
advantage and opportunity to provide a more in-depth opinion, if not a more accurate
one.” Orman, 803 S.W.2d at 677.

       In short, Dr. Coogan’s causation opinion is entitled to a presumption of
correctness that has not been overcome. The trial court thoroughly discussed the
evidence, correctly applied the controlling legal principles, and reached a result supported
by the record. Applying the law “fairly, impartially, and in accordance with basic
principles of statutory construction” and avoiding a liberal or remedial interpretation, as
we must under section 50-6-116, we affirm the trial court’s decision and dismiss the case.

                                       Conclusion

        For the foregoing reasons, we hold that the evidence does not preponderate against
the trial court’s decision or violate any of the standards set forth in Tennessee Code
Annotated section 50-6-217(a)(3). Accordingly, the trial court’s decision is affirmed, the
case is dismissed, and the trial court’s order is certified as final.




                                             7
                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD

Clarence Bass                                            )   Docket No. 2016-06-1038
                                                         )
v.                                                       )   State File No. 59924-2014
                                                         )
The Home Depot U.S.A., Inc., et al.                      )


                                     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 26th day of May, 2017.
 Name                    Certified   First Class   Via   Fax      Via     Email Address
                         Mail        Mail          Fax   Number   Email

 Carolina V. Martin                                                 X     cvmartin@hughesandcoleman.com
 Thomas R. Lewis                                                    X     tlewis@hughesandcoleman.com
 Kenneth D. Veit                                                    X     kenny.veit@leitnerfirm.com
 Kenneth M. Switzer,                                                X     Via Electronic Mail
 Chief Judge
 Penny Shrum, Clerk,                                                X     Penny.Patterson-Shrum@tn.gov
 Court of Workers’
 Compensation Claims




Matthew Salyer
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov
