                         TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                           WORKERS’ COMPENSATION APPEALS BOARD

Michael Boyd                                               )   Docket No. 2015-07-0053
                                                           )
v.                                                         )
                                                           )    State File No. 96497-2014
Revel Logging, LLC                                         )


                                       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 22nd day of September, 2015.
 Name                      Certified   First Class   Via   Fax       Via     Email Address
                           Mail        Mail          Fax   Number    Email

 Charles L. Hicks                                                       X    larry_hickslaw@bellsouth.net
 Jeffery G. Foster                                                      X    jfoster@morganakins.com
 Allen Phillips, Judge                                                  X    Via Electronic Mail
 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: Matthew.Salyer@tn.gov
            TENNESSEE BUREAU OF WORKERS' COMPENSATION
               WORKERS' COMPENSATION APPEALS BOARD
                                                                                  FILED
                                                                           September 22, 2015
Michael Boyd                              )   Docket No. 2015-07-0053            T ENNESSEE
                                                                            WORKERS' COMPENSATION
                                          )                                    APPEALS BOARD

v.                                        )                                     Time: 1 :38 P.M.

                                          )   State File No. 96497-2014
Revel Logging, LLC                        )
                                          )
                                          )
Appeal from the Court of Workers'         )
Compensation Claims                       )
Allen Phillips, Judge                     )




                        Affirmed in Part, Reversed in Part,
                     and Remanded- Filed September 22, 2015


This interlocutory appeal involves an employee who alleges suffering a work-related
back injury and a vascular leg injury from a fall at work. Although the employee
received authorized treatment for his back injury, he sought treatment for the vascular
condition on his own. Thereafter, he sought continuing treatment for both conditions as
well as payment of medical bills associated with the unauthorized treatment of the
vascular condition. The trial court determined that both injuries were compensable and
ordered continuing treatment for the vascular condition and payment of the unauthorized
medical bills. The trial court denied the employee's request for a second panel of
physicians to treat his back injury. The employer has appealed, arguing that the trial
court erred in determining that the vascular injury was compensable. After a careful
review of the record, we affirm the trial court's decision to deny additional medical
benefits for the employee's back injury and reverse the trial court's findings that the
vascular injury was compensable and that the employer should pay the medical expenses
associated with that condition. The case is remanded for such additional proceedings as
may be necessary.

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


                                          1
Jeffery G. Foster, Jackson, Tennessee, for the employer-appellant, Revel Logging, LLC

Charles L. Hicks, Camden, Tennessee, for the employee-appellee, Michael Boyd

                             Factual and Procedural Background

        Michael Boyd ("Employee"), a forty-eight-year-old resident of Henry County,
Tennessee, was working for Revel Logging, LLC ("Employer"), when he allegedly
suffered an injury to his low back and a vascular injury in his left leg on December 2,
2014. He described climbing onto a machine that he operated to perform his duties and
slipping, twisting his back and striking his leg. He testified that his left leg immediately
felt "frozen" and that he experienced pain in his left leg and low back. He reported the
incident that day and was transported by his supervisor to a clinic for evaluation. The
attending physician diagnosed him with a lumbar strain and sciatica and prescribed
medication.

       The following day, Dr. Stephen Waggoner was chosen from a panel of physicians.
Dr. Waggoner first saw Employee on December 5, 2014, and provided treatment for his
back injury consisting of testing, physical therapy, and medication. Employee returned to
Dr. Waggoner on December 11 to discuss his MRI results and began physical therapy on
December 16. Employee complained of pain in his low back as well as left leg pain,
numbness, and tingling at these visits. On December 22, 2014, Dr. Waggoner saw
Employee again for his back injury, and Employee reiterated his left leg complaints.
Upon examination, Dr. Waggoner noted that Employee's leg was cool to the touch and
that he could not feel a pulse in that leg. He referred Employee to Methodist Hospital for
immediate evaluation of a potential vascular condition.

        Employee presented to Methodist Hospital but testified that, due to a case
manager's 1 statement that Employer would not pay for treatment or testing for a vascular
condition and his perception that the hospital was unsanitary, he decided to forego testing
at that time. He subsequently learned that Employer would provide the recommended
vascular testing, which was scheduled for December 26, 2014.

        On December 25, 2014, Employee awoke in severe pain and went to the
emergency room at Henry County Medical Center where testing revealed a blocked
femoral artery in his left leg. The attending physician examined Employee and noted,
"our working theory is that the patient likely mechanically ruptured an intra-arterial
plaque at the time of his accident." The following day, the attending physician observed
that "the patient is having an occlusion because of a trauma event which is ahead of the

1
 A case manager is employed to provide "medical case management or the ongoing coordination of
medical care services provided to an injured or disabled employee." Tenn. Code Ann. § 50-6-1 02(6)
(2015).

                                                   2
normal progression of atherosclerotic disease for this individual." Following additional
testing, Employee underwent surgery performed by Dr. Andrew Lundberg for "acute
thrombosis ofthe left common femoral system" on December 28, 2014.

       Following his surgery, Employee returned to Dr. Waggoner, noting that his left leg
was better but that he still had back pain. Dr. Waggoner prescribed a second round of
physical therapy, which Employee requested be discontinued because he was feeling
better and wanted to return to work. Dr. Waggoner allowed him to stop the physical
therapy and return to work without restrictions or impairment. Employee testified that he
continued to suffer from back pain and attempted to return to Dr. Waggoner for
additional treatment. However; he was informed that Dr. Waggoner believed that he did
not need additional treatment and had refused to see him.

       On March 6, 2015, the case manager wrote to Dr. Waggoner and requested his
opinion regarding the cause of Employee's vascular condition. Dr. Waggoner responded
that the back strain suffered during the work incident was not the cause of Employee's
vascular condition. However, he stated that, with respect to whether the work incident
caused the vascular injury, he would defer to a vascular surgeon. A few days later on
March 11, 2015, Employer wrote Dr. Waggoner seeking his opinion regarding the cause
of the vascular condition and provided Dr. Lundberg's records. Dr. Waggoner checked
"no" in response to the following question:

      In your expert medical opinion, taking into account this patient's health
      conditions as demonstrated in the above testing results and the surgical
      findings by Dr[.] Lundberg, the work injury in question, and your
      evaluation and treatment of the patient, along with any and all other
      information you feel to be germane, did the incident on December 2, 20 14
      contribute more than 50% in causing the patient's current vascular
      symptoms and need for surgery?

      Dr. Lundberg likewise provided an opinion regarding the cause of Employee's
vascular condition, stating:

      [w]hether or not this was specifically associated with a traumatic fall and
      acute dissection at the time, I am not sure anybody could answer unless we
      had seen him just directly after the fall but given the temporal relationship
      between the fall and the symptoms, my suspect [sic] is that this would be
      associated with his injury during his duties at work.

        Following an expedited hearing, the trial court determined that Employee was not
entitled to a second panel of physicians for his back injury because the medical evidence



                                            3
established that additional treatment was unnecessary .2 The trial court also determined
that Employee suffered a compensable vascular injury to his left leg, deemed Dr.
Lundberg the authorized treating physician, and ordered Employer to pay the medical
bills associated with the vascular condition. Employer timely appealed, and the Appeals
Board received the record on September 4, 2015.

                                          Standard of Review

       The standard of review to be applied by this Board 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) (2014). The trial court's decision must be upheld unless 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 ofthe 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) (2015). Like other courts applying the standards
embodied in section 50-6-217(a)(3), we will not disturb the decision of the trial court
absent the limited circumstances identified in the statute.

                                                Analysis

        To be compensable under the workers' compensation statutes, an injury must arise
primarily out of and occur in the course and scope of the employment. Tenn. Code Ann.
§ 50-6-1 02( 13) (20 14 ). The term "injury" is defined as "an injury by accident ... arising
primarily out of and in the course and scope of employment, that causes death,
disablement or the need for medical treatment of the employee." !d. For an injury to be
accidental, it must be "caused by a specific incident, or set of incidents, arising primarily
out of and in the course and scope of employment, and is identifiable by time and place
of occurrence." Tenn. Code Ann. § 50-6-102(13)(A) (2014). Moreover, "[t]he opinion
of the treating physician, selected by the employee from the employer's designated panel
of physicians ... shall be presumed correct on the issue of causation but this presumption

2
  Employee has not appealed the trial court's denial of additional medical benefits for his back injury and,
therefore, we need not address that issue.

                                                     4
shall be rebuttable by a preponderance of the evidence." Tenn. Code Ann. § 50-6-
102(13)(E) (2014).

       Here, the evidence contained in the record does not support the trial court's
finding that Employee's vascular condition was caused by the work incident of December
2, 2014. Dr. Waggoner, while initially indicating that he would defer to the vascular
surgeon on the issue of causation, ultimately opined that the work accident was not the
primary cause of the vascular injury. For his part, Dr. Lundberg opined that "[w]hether
or not this was specifically associated with a traumatic fall and acute dissection at that
time, I am not sure anybody could answer unless we had seen him just directly after the
fall." He goes on to say that, due to the temporal relationship between the work accident
and Employee's complaints, he "suspect[s]" that the vascular injury is associated with the
work incident. Thus, Dr. Lundberg was unsure whether anyone could opine on the issue
of causation, and he only suspected the vascular condition was associated with the
employment. Such an opinion is conjectural, does not establish that the injury is
primarily work-related, and is insufficient to rebut the presumption 'of correctness
attached to Dr. Waggoner's opinion under section 50-6-102(13)(E).

       Accordingly, we conclude that, based upon the record as it currently exists, there
is insufficient evidence from which the trial court could determine that Employee is
likely to prevail at a hearing on the merits concerning whether his vascular condition
arose primarily out of and in the course and scope of his employment. It follows that the
trial court erred in requiring Employer to pay the medical bills associated with that
condition. Employer's remaining issues are pretermitted.

                                       Conclusion

       For the foregoing reasons, the trial court's findings that Employee's vascular
condition is compensable and that Employer should pay the medical expenses associated
with that condition are reversed. As no issue has been raised regarding the trial court's
denial of additional medical benefits for Employee's back injury at this time, that portion
of the court's decision is affirmed. The case is remanded for any further proceedings that
may be necessary.



                                                 Marshall L. Davidson, III,
                                                 Presiding Judge
                                                 Workers' Compensation Appeals Board




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