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

PAULA DUGGER,                                ) Docket No. 2015-05-0341
         Employee,                           )
v.                                           )
                                             )
HOME HEALTH CARE OF                          ) State File No. 69225-2015
MIDDLE TN, LLC,                              )
         Employer,                           )
And                                          )
                                             )
UNITED HEARTLAND,                            ) Judge Dale Tipps
         Carrier.                            )


                        COMPENSATION HEARING ORDER


        This matter came before the undersigned Workers’ Compensation Judge on
September 28, 2017, for a Compensation Hearing under Tennessee Code Annotated
section 50-6-239 (2016). The central legal issues are: (1) the extent of Paula Dugger’s
permanent disability; and (2) whether Ms. Dugger is entitled to receive personal payment
of medical expenses that her uninsured motorist insurance carrier paid. For the reasons
set forth below, the Court holds that Ms. Dugger established by a preponderance of the
evidence that she sustained a compensable mental injury resulting in permanent and total
disability. Accordingly, the Court concludes that Ms. Dugger is entitled to medical
benefits and permanent total disability benefits but she is not entitled to receive personal
payment for medical expenses paid by the uninsured motorist carrier.

                                    History of Claim

                                       Stipulations

       The parties stipulated to the following: Ms. Dugger suffered compensable injuries
in the course and scope of her employment as a Licensed Practical Nurse for Home
Health Care of Middle TN, LLC (HHC) in a traffic accident on February 21, 2015. HHC
paid temporary total disability benefits of $35,681.05 for the period of February 21, 2015,

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through June 2, 2016, the date of maximum medical improvement (MMI). HHC also
paid a sixty-day advance of permanent disability benefits of $4,047.00 from the MMI
date through August 4, 2016. Ms. Dugger’s compensation rate is $472.15.

                              Ms. Dugger’s Trial Testimony

        Ms. Dugger received her LPN license in 2003, and she has worked solely in
nursing since then. In her current condition, she does not believe she can work as a nurse
or in any other job. Ms. Dugger has constant back pain that extends into her left leg. She
cannot stand for more than a few minutes at a time and is unable to walk very far. Sitting
is also painful and causes spasms in her leg. She has a prescription for this problem, but
it makes her very sleepy.

       Ms. Dugger described difficulty with mental focus. She used to enjoy reading but
no longer is able to finish a book. Ms. Dugger also suffers from severe migraines that
can last two or three days. Although she had some prior problems with depression, she
was always able to function and do her job, and her current symptoms are much more
severe.

       At the time of her accident, Ms. Dugger had an automobile policy with State Farm
that included uninsured/underinsured motorist coverage with $250,000/$500,000 limits.
The driver who caused the accident also had coverage with State Farm. Ms. Dugger, the
other driver, and State Farm entered a mediated settlement agreement that provided State
Farm would pay Ms. Dugger the other driver’s policy limits of $50,000.00, as well as
$125,000.00 under Ms. Dugger’s own uninsured/underinsured motorist (UM) policy.
The settlement agreement provided that State Farm would “waive any right of
subrogation, reimbursement or offset for any payments made under its policy of
insurance with [Ms. Dugger].”

        Ms. Dugger paid out-of-pocket medical expenses totaling $3,891.61. She said, “as
far as I know,” State Farm paid other medical expenses under the medical pay provisions
of her policy.

                       Medical Records and Deposition Testimony

       Ms. Dugger received medical treatment from Dr. Louise Ledbetter, a neurologist,
for “chronic persistent severe neck and back pain, and migraine headaches.” Based on
her examination and treatment of Ms. Dugger, as well as a neuropsychological evaluation
by John Alden, Ph.D., Dr. Ledbetter assigned permanent impairment for traumatic brain
injury because of alteration in mental status, cognition, and highest integrative function.
Dr. Ledbetter said this alteration interfered with the ability to perform activities of daily
living. She assigned additional permanent impairment for aphasia, migraines, depression,
lumbar radiculopathy, and pain. Dr. Ledbetter indicated the total impairment for these

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conditions is 47% to the whole person, and she testified that Ms. Dugger’s injuries would
prevent her from returning to her former employment.

                               Vocational Expert Testimony

       Ms. Dugger’s vocational expert, Patsy Bramlett, testified by deposition that she
performed a vocational assessment of Ms. Dugger on March 7, 2017. She evaluated Ms.
Dugger’s educational and vocational history and concluded her relevant work history was
made of up of skilled jobs in the “medium” physical demand category. Ms. Bramlett
stated that Ms. Dugger is totally incapacitated from working at any job because of her
injuries.

                       Findings of Fact and Conclusions of Law

       The following legal principles govern this case. Ms. Dugger 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) (“[T]he employee shall bear
the burden of proving each and every element of the claim by a preponderance of the
evidence.”).

                                     Medical Benefits

        Under the Workers’ Compensation Law, “the employer or the employer’s agent
shall furnish, free of charge to the employee, such medical and surgical treatment . . .
made reasonably necessary by accident[.]” Tenn. Code Ann. § 50-6-204(a)(1)(A).
Employers are also required to offer a panel of physicians “from which the injured
employee shall select one (1) to be the treating physician.” Tenn. Code Ann. § 50-6-
204(a)(3)(A)(i).

       Because HHC denied her claim, Ms. Dugger never received a panel of physicians.
Her decision to seek treatment with her own doctors after the denial was reasonable.
Further, she has treated for some time with Dr. Ledbetter and continues to do so,
apparently with HHC authorizing payment for that treatment for the last several months.
Therefore, the Court designates Dr. Ledbetter as Ms. Dugger’s authorized treating
physician for future treatment.

      Ms. Dugger testified that she personally paid $3,891.61 in medical expenses
because of her accident. HHC acknowledged during the hearing that it is obligated to
reimburse Ms. Dugger for these out-of-pocket payments. The larger issue regarding

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medical benefits arises from Ms. Dugger’s request for payment of medical expenses
previously paid by State Farm.

       Ms. Dugger contended she is entitled to recover an additional $29,867.93,
claiming State Farm paid medical bills in this amount pursuant to the “med-pay”
provisions of her UM policy. In support of this claim, she offered copies of medical bills,
billing summaries, health insurance claim forms, and explanation of review documents.
HHC objected to the admissibility of these documents, and the Court took the objection
under advisement.

       Ms. Dugger relied on an unreported decision, Carwile v. Compass Grp., No.
W2001-03163-WC-R3-CV, 2003 Tenn. LEXIS 113 (Tenn. Workers’ Comp. Panel Feb.
13, 2003), to argue that the expenses are admissible because HHC failed to provide the
statutorily-required medical benefits. A close reading of Carwile does not support this
argument. Instead, the Appeals Panel held that the presumption of reasonableness and
necessity applies to medical bills incurred when an employer denies treatment. That is, it
addressed the admissibility of the expenses themselves, not the manner in which the
documentation of those expenses was introduced into evidence.

       In this case, the documents in question are written statements, made by parties
other than Ms. Dugger, offered to prove the truth of the matter asserted; namely, that she
incurred medical bills totaling $29,867.93. Neither a records custodian nor a physician
authenticated the documents. Further, Ms. Dugger did not identify any applicable
hearsay exception,1 and the Court is not aware of one. After careful consideration, the
Court sustains the objection on the grounds that the proffered documents are inadmissible
hearsay.2 Similarly, the Court sustains HHC’s hearsay objection to the medical expense
“Payment Log,” an unauthenticated document clearly prepared by someone other than
Ms. Dugger.3 As a result, Ms. Dugger failed to prove the amount of medical expenses
paid by State Farm.

       Even if Ms. Dugger had established the amount of her medical expenses and
proven that State Farm paid them, she would not be entitled to receive direct payment for
the claimed medical expenses. “An employee is not entitled to personally receive
payment for medical expenses unless he or she personally paid the medical expenses and

1
  Counsel for Ms. Dugger admitted the bills are technically hearsay but said they support her testimony
that she “incurred” these amounts.
2
  HHC also objected that Ms. Dugger failed to establish that the bills were reasonable and necessary.
Because the Court is sustaining the hearsay objection, it need not address this question.
3
  HHC also objected to the Declarations Page and State Farm Car Policy. It contended that these
documents were also hearsay, in part because the policy was not a certified copy. The Court overrules
this objection but notes the documents are of very little significance because the Declarations Page is for a
policy period other than the date of Ms. Dugger’s accident and it does not indicate the applicable time
period for the Policy.
                                                     4
is due reimbursement. Instead, employers must pay the providers of medical care
directly for incurred medical expense.” Staggs v Nat’l Health Corp., 924 S.W.2d 79, 81
(Tenn. 1996); see also State Auto. Mut. Ins. Co. v. Hurley, 31 S.W.3d 562, 565 (Tenn.
Workers’ Comp. App. Panel 2000) (Tennessee Code Annotated section 50-6-204(a)(1)
does not require the employer to pay the cost of medical treatment to the employee,
unless the employee has personally incurred medical expenses).

       Ms. Dugger contended Staggs does not apply in this case. Instead, she argued that
State Farm’s waiver of its right of reimbursement against Ms. Dugger operates as an
equitable assignment of State Farm’s recovery rights to her under the UM policy. In
other words, she “steps into the shoes of State Farm and is entitled to recover the medical
expenses from [HHC].”

        The Court finds this argument unpersuasive. The settlement agreement in the tort
claim made no mention of any assignment of rights. Rather, it merely provided that State
Farm waived its right of subrogation, reimbursement or offset for any payments made
under its policy. That is, State Farm agreed not to seek reimbursement for its medical
payments from Ms. Dugger. It did not agree to waive its right to repayment from Ms.
Dugger’s medical providers in the event a court orders HHC’s workers’ compensation
carrier to pay those providers for past treatment.

       Ms. Dugger suggested that refusing her request would allow HHC to benefit from
its denial of her claim because it would avoid payment of medical benefits it was
obligated to provide. She argued HHC should not receive a windfall arising out of “its
wrongful denial of compensability.” This argument overlooks the fact that, just because
HHC does not have to pay Ms. Dugger directly, it still must pay her medical providers for
incurred expenses. HHC receives no windfall.

        Because Ms. Dugger failed to establish the exact amount of past medical expenses,
the Court cannot order HHC to pay a specific amount or award an attorney fee for
recovery of unpaid medical benefits. However, under Osborne v. Beacon Transp., LLC,
2016 TN Wrk. Comp. App. Bd. LEXIS 49, at *10 (Sept. 27, 2016), HHC must still
“fulfill its statutory obligations for the provision of medical benefits set forth in
Tennessee Code Annotated, section 50-6-204” and pay Ms. Dugger’s medical providers
for any treatment causally related to her work accident.

                              Permanent Disability Benefits

       Ms. Dugger seeks permanent total disability (PTD) benefits. Tennessee Code
Annotated section 50-6-207(4)(B) provides: “When an injury not otherwise specifically
provided for in this chapter totally incapacitates the employee from working at an
occupation that brings the employee an income, the employee shall be considered totally
disabled[.]” The assessment of permanent total disability is based upon numerous

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factors, including the employee’s skills and training, education, age, local job
opportunities, and the capacity to work at the kinds of employment available in the
employee’s disabled condition. Roberson v. Loretto Casket Co., 722 S.W.2d 380, 384
(Tenn. 1986). Although a rating of anatomical disability by a medical expert is a relevant
factor, “the vocational disability is not restricted to the precise estimate of anatomical
disability made by a medical witness.” Henson v. City of Lawrenceburg, 851 S.W.2d
809, 812 (Tenn. 1993). In addition, the employee’s “own assessment of [his] physical
condition and resulting disability is competent testimony that should be considered[.]”
McIlvain v. Russell Stover Candies, Inc., 996 S.W.2d 179, 183 (Tenn. 1999).

       Regarding this last factor, the Court notes that Ms. Dugger’s testimony supports a
conclusion that she is unable to work at any occupation. The Court observed Ms.
Dugger’s tearful, unfocused manner, as well as her apparent physical discomfort, and
believes these to be genuine representations of her condition.

       The Court also notes the unrebutted expert testimony of Dr. Ledbetter and Ms.
Bramlett. Dr. Ledbetter testified that Ms. Dugger is unable to work because of her
injuries, and Ms. Bramlett concluded that Ms. Dugger has a 100% loss of labor market
access and earning capacity. Thus, the totality of the evidence supports a finding that Ms.
Dugger is totally disabled.

        HHC argued that PTD is inappropriate in this case because Ms. Bramlett found
that Ms. Dugger’s brain injury did not affect her cognitive abilities of reading, spelling,
and math computation. Further, Ms. Bramlett agreed it was largely Ms. Dugger’s lack of
focus that prevented her from performing a sedentary job. Therefore, HHC contended
Ms. Dugger would be able to do sedentary work if her focus issue were to resolve. The
flaw with this argument is that HHC presented no evidence that Ms. Dugger’s focus
problem is not permanent. In the absence of any proof, this argument is mere speculation
and an invitation for the Court to substitute its medical judgment for that of Dr.
Ledbetter. The Court also notes that, in the event Ms. Dugger’s condition improves, the
statute provides an opportunity for HHC to revisit the issue of total disability. See Tenn.
Code Ann. § 50-6-207(4)(C). The mere possibility of medical improvement is not a valid
basis to deny PTD benefits.

        Therefore, the Court holds the preponderance of the evidence, including all of the
medical and expert vocational opinions, supports a finding that Ms. Dugger is
permanently and totally disabled under the Workers’ Compensation Law. She is
therefore entitled to weekly benefits from June 3, 2016, the day after MMI,4 “until [she]
is, by age, eligible for full benefits in the Old Age Insurance Benefit Program under the

4
  “Permanent disability benefits, whether total or partial, begin accruing on the date that the employee
attains maximum medical improvement.” Smith v. U.S. Pipe & Foundry Co., 14 S.W.3d 739, 745 (Tenn.
2000).
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Social Security Act.” See Tenn. Code Ann. § 50-6-207(4)(A)(i). HHC paid a sixty-day
advance of permanent disability benefits of $4,047.00 from the date of MMI through
August 4, 2016, and is entitled to set off this amount from PTD payments.

      Finally, Ms. Dugger’s counsel requested a twenty-percent attorney fee of the
award. Before the Court can award an attorney fee in excess of $10,000.00, Tennessee
Code Annotated section 50-6-226(a)(2)(C) requires specific findings of the factors set out
in Tennessee Supreme Court Rule 8, Rule of Professional Conduct 1.5, which include:

              (1) the time and labor required, the novelty and difficulty of the
      questions involved, and the skill requisite to perform the legal service
      properly;
              (2) the likelihood, if apparent to the client, that the acceptance of the
      particular employment will preclude other employment by the lawyer;
              (3) the fee customarily charged in the locality for similar legal
      services;
              (4) the amount involved and the results obtained;
              (5) the time limitations imposed by the client or by the
      circumstances;
              (6) the nature and length of the professional relationship with the
      client;
              (7) the experience, reputation, and ability of the lawyer or lawyers
      performing the services;
              (8) whether the fee is fixed or contingent;
              (9) prior advertisements or statements by the lawyer with respect to
      the fees the lawyer charges; and
              (10) whether the fee agreement is in writing.

       The Court finds this case required significant time and expertise on the part of Ms.
Dugger’s counsel. A fee of twenty percent is both statutorily authorized and customary
in cases brought before this Court. Further, the amount is appropriate for successfully
shepherding a complicated case through two years of litigation, including multiple
appeals. All the applicable factors, including the experience and ability of Ms. Dugger’s
attorneys, militate in favor of the requested fee. Therefore, pursuant to Tennessee Code
Annotated section 50-6-207(4)(A)(ii)(a) and section 50-6-207(4)(A)(iii), the Court
commutes twenty percent of the first 450 weeks of permanent total disability benefits for
Ms. Dugger’s attorney for a fee of $42,493.50

      Additionally, Tennessee Code Annotated section 50-6-207(4)(A)(ii)(c) provides:

      After the total amount of the commuted lump sum is determined, the
      amount of the weekly disability benefit shall be recalculated to distribute
      the total remaining permanent total benefits in equal weekly installments

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       beginning with the date of entry of the order and terminating on the date the
       employee’s disability benefits terminate pursuant to subdivision (4)(A)(i).

       Ms. Dugger will be eligible for full benefits in the Old Age Insurance Benefit
Program on June 21, 2033. HHC paid a sixty-day advance of PTD for the period of June
2, 2016, (MMI date) through August 5, 2016. The period of August 5, 2016, to June 21,
2033, totals 880.71 weeks, which at the agreed compensation rate would total PTD
benefits of $414,827.23. Reducing that amount by the attorney fee of $42,493.50 yields
an adjusted total benefit of $372,333.73, which divided by 880.71 weeks equals an
adjusted weekly compensation rate of $422.77. HHC shall pay Ms. Dugger’s PTD
disability benefits at this rate. It shall also pay accrued benefits for the period of August
5, 2016, through the date of this Order in a lump sum.

 IT IS, THEREFORE, ORDERED as follows:

   1. HHC shall fulfill its statutory obligations for the provision of medical benefits set
      forth in Tennessee Code Annotated section 50-6-204. This includes payment of
      any past medical expenses that are causally related to the February 21, 2015
      injury. Ms. Dugger or the medical providers shall furnish medical bills to HHC or
      its workers’ compensation carrier.

   2. HHC shall pay Ms. Dugger $3,891.61 for reimbursement of her out-of-pocket
      medical expenses.

   3. HHC shall continue to provide Ms. Dugger with medical treatment made
      reasonably necessary by the February 21, 2015 injury and in accordance with
      Tennessee Code Annotated section 50-6-204 (2016). Dr. Ledbetter shall be
      designated the authorized treating physician for any future care.

   4. HHC shall pay Ms. Dugger permanent total disability benefits at the rate of
      $422.77 per week until she is eligible for full benefits under the Social Security
      Old Age Insurance Benefit Program. It shall pay accrued benefits for the period of
      August 5, 2016, through the date of this Order in a lump sum.

   5. HHC shall pay Ms. Dugger an additional lump sum of $42,493.50, which her
      attorney is entitled to recover as a fee of twenty percent of her first 450 weeks of
      permanent total disability.

   6. Costs of $150.00 are assessed against HHC pursuant to Tennessee Compilation
      Rules and Regulations 0800-02-21-.07, to be paid within five days of this Order
      becoming final.

   7. HHC shall prepare and file a statistical data form within ten business days of the

                                             8
        date of this Order, pursuant to Tennessee Code Annotated section 50-6-244.

ENTERED THE 6TH OF OCTOBER, 2017



                                  _____________________________________
                                  Judge Dale Tipps
                                  Court of Workers’ Compensation Claims


                                      APPENDIX

Exhibits:

   1. Transcript of Dr. Louise Ledbetter’s deposition
   2. Transcript of Patsy Bramlett’s deposition
   3. Wage Statement
   4. Stipulation of the Parties
   5. Collective medical expenses (identification only)
   6. Medical Payment Itemization (identification only)
   7. State Farm declarations page and policy
   8. Mediation Settlement Agreement
   9. Itemization of Ms. Dugger’s medical expense payments
   10. Pharmacy expense records

Technical Record:

   1.   Petition for Benefit Determination
   2.   Post-Discovery Dispute Certification Notice
   3.   Parties’ Exhibit and Witness Lists
   4.   Parties’ Pre-Compensation Hearing Statements
   5.   Parties’ Pretrial and Supplemental Briefs




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                             CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the Order was sent to the following
    recipients by the following methods of service on this the 6th day of October, 2017.

     Name            Certified     Via Email                  Email Address
                      Mail
Richard Matthews                        X         Rmatthews95@aol.com
Gordon Aulgur                           X         Gordon.aulgur@accidentfund.com



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




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