            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD

Patrice Berdnik                              )   Docket No. 2016-04-0328
                                             )
v.                                           )   State File No. 78710-2016
                                             )
Fairfield Glade Community Club, et al.       )
                                             )
                                             )
Appeal from the Court of Workers’            )
Compensation Claims                          )
Robert V. Durham, Judge                      )


                          Affirmed in Part, Reversed in Part,
                          and Remanded - Filed May 18, 2017


This interlocutory appeal involves an employee who claims to have suffered a back
injury retrieving ice from her employer’s ice machine. The employer denied the claim
without providing a panel of physicians or other benefits and, after the employee
requested an expedited hearing, had the employee examined by a physician of its
choosing. That physician opined the employment did not contribute more than fifty
percent in causing the employee’s current condition. Following an expedited hearing, the
trial court concluded that the employee had not established she was likely to prevail in
proving a compensable injury and declined to award medical expenses and temporary
disability benefits. Nonetheless, the trial court ordered medical benefits in the form of a
panel of physicians “for evaluation, and if necessary, treatment.” The employer has
appealed, arguing that the award of medical benefits was error. We agree and reverse that
part of the trial court’s decision. The decision is affirmed in all other respects. We also
refer the employer to the Penalty Unit of the Bureau of Workers’ Compensation for
investigation and assessment of any penalties that may be appropriate stemming from the
employer’s failure to provide a panel of physicians in accordance with Tennessee Code
Annotated section 50-6-204 and Tenn. Comp. R. & Regs. 0800-02-01-.25.

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.

Mary Dee Allen, Cookeville, Tennessee, for the employer-appellant, Fairfield Glade
Community Club

                                            1
Patrice Berdnik, Crossville, Tennessee, employee-appellee, pro se

                          Factual and Procedural Background

        Patrice Berdnik (“Employee”) was employed by Fairfield Glade Community Club
(“Employer”) to work in one of its restaurants. She also worked in a snack bar located
next to one of Employer’s golf courses near the restaurant. Employee’s duties included
retrieving ice for the snack bar from the restaurant, which necessitated filling five gallon
buckets from an ice machine, placing them in a golf cart and, once at the snack bar,
pouring the ice into coolers.

        Employee testified that she hurt her back bending to reach into the ice machine on
September 4, 2016. She described feeling “something” in her back, stating “I don’t know
if it was a pinch, I don’t know if it was a spasm, but something happened.” According to
Employee, she “pulled [herself] out from the machine and kind of just caught [her]
breath.” She worked the next two days and thought she would recover because she was
scheduled to be off several days thereafter. Her supervisor contacted her on September 8,
2016, and asked her to fill in for employees who were going on vacation. Employee told
her supervisor she was unable to work those shifts because she had “hurt [her] back
getting ice, and [her] sciatic and lower back [were] bothering [her].”

       Employer did not provide Employee a panel of physicians or any medical
treatment, and she sought treatment on her own. An MRI on October 18, 2016, revealed
degenerative disc disease, central canal stenosis at L3 and L4, and evidence of a prior
surgery. Employee does not dispute she had a history of back problems, including a
lumbar fusion pre-dating the incident giving rise to this claim.

       Employee testified that Employer’s “safety officer” interviewed her on October 5,
2016 and took her statement. Six days later, on October 11, 2016, Employer denied the
claim, stating that, “[b]ased on the prior medical records, the claimant has chronic back
issues not work related. There is no specific event that occurred that caused a
compensable work injury. Does not meet the definition of a work related injury or
accident.” The notice of denial also reflects Employee had not treated with an authorized
physician.

       At the request of Employer, Employee was examined by an orthopedic surgeon,
Dr. Patrick Bolt, on March 1, 2017, nearly two months after Employee sought an
expedited hearing. Dr. Bolt recorded a history consistent with Employee’s testimony and
observed that she had a significant history of back problems “occurring in a persistent
pattern for 4 years,” including a fusion surgery prior to the incident involving the ice
machine at work. According to Dr. Bolt, X-rays and the MRI performed after this
incident did not reveal an acute injury and Employee’s complaints were likely an
aggravation or exacerbation of her pre-existing condition, not the result of a new injury.

                                             2
He stated that, “[g]iven the lack of objective findings and the fact that this
exacerbation/aggravation occurred while performing a normal work duty that she had
been performing multiple times over the course of her employment, [it] does not appear
to meet the Tennessee Department of Labor’s guideline to physicians [sic] definition of
injury.”1 According to Dr. Bolt, “[i]n all likelihood, this represents pain from
[Employee’s] pre-existing spondylosis or failed hardware.”

        Dr. Bolt also answered questions posed to him by Employer. He agreed that the
employment did not “cause a greater than 50% aggravation of [Employee’s] underlying
condition,” stating that, “[b]ased on her subjective reports and history, it appears that she
experienced a significant and considerable exacerbation/aggravation of her chronic low
back pain and sciatica.” Ultimately, however, he concluded that “based on the patient’s
history, physical examination, review of imaging studies, and review of the medical
record, and based on a reasonable degree of medical certainty, I do not feel that bending
for ice into the ice machine contributed greater than 50% of her current condition.”

       Following an expedited hearing, the trial court concluded that Employee had not
established she would likely prevail in proving a compensable injury and declined to
award medical expenses and temporary disability benefits. Nonetheless, the trial court
ordered medical benefits in the form of a panel of physicians “for evaluation, and if
necessary, treatment” of Employee’s back condition. Employer 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) (2015). 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) (2015).

1
 To the extent this comment reflects Dr. Bolt’s assessment of whether Employee’s injury met the legal
definition of a compensable injury, such an opinion is, for our purposes, irrelevant.
                                                 3
                                        Analysis

      Employer argues that the trial court erred in finding Employee was entitled to
medical benefits in light of the court’s conclusion that she was unlikely to prove a
compensable injury at trial. Employer urges us to reverse the trial court given that the
only expert medical evidence in the record is that Employee’s condition did not arise
primarily out of her employment. Employee has filed no response.

       Our analysis in this case is driven by the definition of a compensable injury
established by the legislature, which has declared that 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 primarily 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).

       These same principles apply when an employee seeks to establish a compensable
aggravation of a pre-existing condition. Specifically, a compensable injury does not
include an aggravation “unless it can be shown to a reasonable degree of medical
certainty that the aggravation arose primarily out of and in the course and scope of
employment.” Tenn. Code Ann. § 50-6-102(14)(A). Moreover, Tennessee courts have
long held that an increase in pain alone is not a compensable aggravation. See, e.g., Fly
v. Travelers Ins., No. W2011-01215-SC-WCM-WC, 2012 Tenn. LEXIS 642, at *10
(Tenn. Workers’ Comp. Panel Sept. 20, 2012) (“A mere increase in pain due to a pre-
existing condition is not compensable.”).

                             A. Not likely to prevail at trial

       Guided by these principles, we first address the trial court’s finding that Employee
was not likely to prove a compensable injury at trial. The initial question is whether
Employee came forward with sufficient evidence of a “specific incident” that was
“identifiable by time and place of occurrence” that caused her alleged injury. See Tenn.
Code Ann. § 50-6-102(14)(A) (an injury is “accidental” when it is “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”). The record reveals
that Employee claimed a specific incident on a specific day that occurred while she was
performing a specific action associated with her employment. She testified that on

                                            4
September 4, 2016, while retrieving ice from an ice maker, she had to bend over and
place her upper body inside the machine to reach the ice at the bottom of the bin and that,
when she did so, she felt pain in her back. Accordingly, Employee satisfied the “specific
incident” requirement in Tennessee Code Annotated section 50-6-102(14)(A).

        However, Employee failed to establish she was likely to prevail at trial in proving
that her employment contributed more than fifty percent in causing a compensable
aggravation of her pre-existing condition or the need for medical treatment, considering
all causes, as section 50-6-102(14)(B) requires. The trial court found that “[Employee]
failed to provide sufficient evidence from which the Court can determine she is likely to
prevail at a hearing on the merits regarding causation,” a finding Employee does not
contest. The only medical opinion in the record is that of Dr. Bolt, who opined that the
employment did not contribute more than fifty percent in causing her condition. While
we acknowledge that this opinion was rendered by Employer’s physician rather than an
authorized physician chosen from a panel, it is, nonetheless, the only medical opinion
upon which we can rely in reviewing the trial court’s decision.

        In cases such as this one where an employer has presented expert medical proof
that the employee’s condition is not work-related, the employee must present expert
medical proof that the alleged injury is causally related to the employment when the case
is not “obvious, simple [or] routine.” Willis v. All Staff, No. 2014-05-0005, 2015 TN
Wrk. Comp. App. Bd. LEXIS 42, at *27 (Tenn. Workers’ Comp. App. Bd. Nov. 9,
2015).2 While lay testimony may be probative on the issue of causation, it is insufficient
to meet an employee’s burden of proof in the absence of medical evidence. Argica v.
AtWork Pers. Servs., No. 2015-02-0217, 2016 TN Wrk. Comp. App. Bd. LEXIS 6, at *7
(Tenn. Workers’ Comp. App. Bd. Feb. 2, 2016). See also Scott v. Integrity Staffing
Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *12 (Tenn.
Workers’ Comp. App. Bd. Aug. 18, 2015) (“Employee’s lay testimony in this case,
without corroborative expert testimony, did not constitute adequate evidence of medical
causation” and could not overcome the only medical opinion provided.). Here, not only
is there no medical proof supporting Employee’s claim for benefits, but there is unrefuted
expert medical proof contrary to her position. Furthermore, as noted previously,
evidence of a mere increase in pain caused by a work accident, which is the most that can
be said of Employee’s proof, is insufficient to establish the compensability of an alleged
aggravation. Fly, 2012 Tenn. LEXIS 642, at *10.

       Consequently, the trial court correctly declined to award medical expenses and
temporary disability benefits based on a finding that Employee was unlikely to prevail in
establishing a compensable aggravation or injury at trial, even under the less stringent
burden of proof applicable to interlocutory determinations. See Tenn. Code Ann. § 50-6-


2
    Willis is currently pending review in the Tennessee Supreme Court.
                                                     5
239(d)(1) (Benefits may be awarded prior to trial “upon determining that the injured
employee would likely prevail at a hearing on the merits.”).

                              B. Award of medical benefits

        The more difficult aspect of this case concerns the trial court’s award of medical
benefits. Even though the trial court determined Employee was unlikely to establish at
trial that her condition arose primarily out of her employment, the court awarded medical
benefits in the form of a panel of physicians “for evaluation, and if necessary, treatment.”
This was error in light of the undisputed expert medical evidence and the court’s finding
that Employee was unlikely to prevail at trial which, again, is a finding Employee does
not challenge.

       Tennessee Code Annotated section 50-6-204(a)(1)(A) (2016) requires an employer
to “furnish, free of charge to the employee, such medical and surgical treatment . . . made
reasonably necessary by accident as defined in this chapter.” This obligation requires an
employer to “designate a group of three (3) or more . . . physicians . . . from which the
injured employee shall select one to be the treating physician.” Tenn. Code Ann. § 50-6-
204(a)(3)(A)(i). The regulation specifying the time within which such medical care is to
be offered states:

       [u]pon notice of any workplace injury, other than a minor injury for which
       no person could reasonably believe requires treatment from a physician, the
       employer shall immediately provide the injured employee a panel of
       physicians that meets the statutory requirements for treatment of the injury.
       In any case where the employer fails to provide a panel of physicians to the
       employee within a reasonable amount of time, but in no instance longer
       than five (5) business days from the date the employer has notice of an
       injury that would qualify for medical benefits . . . the employer may be
       assessed a civil penalty . . . .

Tenn. Comp. R. & Regs. 0800-02-01-.25(1) (2015).

       In awarding medical benefits in this case, the trial court relied upon McCord v.
Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6 (Tenn. Workers’ Comp. App. Bd. Mar. 27, 2015). There is, however, a key
distinction between the facts and circumstances of this case and those in McCord. In that
case, there was no medical proof either establishing or refuting causation. The employer
in that case had provided a panel of physicians but had refused to schedule an
appointment with the physician the employee chose. Id. at *5. Here, however, there is a
medical opinion addressing causation, and that opinion is uncontradicted at this stage of



                                             6
the case. To order medical benefits under these circumstances is to ignore the only expert
medical proof in the record, which we cannot do.3

        Instead, the circumstances in this case are similar to those in Shannon v. UPS, No.
2015-06-0052, 2015 TN Wrk. Comp. App. Bd. LEXIS 47 (Tenn. Workers’ Comp. App.
Bd. Dec. 3, 2015). In that case, the employee reported an injury but did not receive
authorized medical care. Rather, he sought treatment on his own and, after undergoing
surgery and receiving an opinion from his physician that the injury was not work-related,
he sought benefits. Id. at *2-5. At the time of the expedited hearing, the only medical
opinion in the record addressing causation was that of the employee’s physician, who had
opined the injury was not work-related. Id. at *4-5. As in the present case, the trial court
in Shannon concluded the employee had not presented sufficient evidence to establish he
would likely prevail at trial. Id. at *5. We agreed and affirmed the court’s decision not
to order a panel of physicians, observing that the employee “had the burden to come
forward with sufficient evidence from which the trial court could conclude that [he] is
likely to prove his medical condition . . . arose primarily from the work accident . . . .
The expert medical opinion included in the record is contrary to [the employee’s]
position on this issue.” Id. at *9.

       The same is true here. The only medical opinion addressing causation contained
in the record is contrary to Employee’s position. Absent countervailing medical proof,
this opinion must carry the day, as there is no authority to award benefits in the face of
undisputed medical evidence that an injury did not arise primarily out of the
employment.4 To hold otherwise would ignore the parameters for awarding benefits set
by the legislature and would effectively broaden workers’ compensation coverage to
general health insurance. Of course, we can do neither. See Jose v. Equifax, Inc., 556
S.W.2d 82, 84 (Tenn. 1977) (“Workmen’s compensation coverage is not as broad as
general, comprehensive health and accident insurance.”). Consequently, the trial court’s
award of medical benefits is reversed.


3
  Our decision in Lamm v. E. Miller Construction, Inc., No. 2015-01-0429, 2016 TN Wrk. Comp. App.
Bd. LEXIS 83 (Tenn. Workers’ Comp. App. Bd. Nov. 8, 2016), is likewise distinguishable. In that case,
although the evidence was equivocal, it appeared that the employee had not actually been seen by a
physician and that the opinion regarding the cause of the employee’s injuries had been rendered by a
nurse practitioner rather than a physician. Id. at *2-4. Moreover, unlike in this case, the trial court in
Lamm found the employee was likely to prevail in proving his entitlement to benefits at trial. Id. at *13.
As we observed in upholding the trial court’s decision to order a panel of physicians, “the trial court must
consider the evidence before it and decide whether the employee is likely to be able to satisfy that burden
of proof at a compensation hearing.” Id. In the present case, the trial court concluded, and we agree, that
Employee is not likely to prevail at trial in establishing a compensable injury, particularly in light of the
fact that the only causation opinion provided in this case was rendered by a physician and was undisputed.
4
 Because of the interlocutory nature of this proceeding, Employee is not foreclosed from obtaining such
an opinion and presenting it at another expedited hearing, if any, or at trial.
                                                     7
       We hasten to add that our resolution of this issue should not be viewed by
employers or their insurers as license to skirt their obligations under section 50-6-204 or
Tenn. Comp. R & Regs. 0800-02-01-.25, for to do so exposes them to distinct, and
significant, risks. The first risk is to lose control of the course of an employee’s medical
treatment and the imposition of medical expenses the employer would not otherwise have
to pay.5 The second risk is exposure to a penalty imposed pursuant to Tennessee Code
Annotated section 50-6-118(a)(11)-(12) (2016). That said, it is not the courts’ role to
devise an avenue of redress different from that provided by the legislature and award
benefits under circumstances where an employee did not satisfy the statutory
requirements for such an award. Instead, “courts are obliged to interpret statutes as they
find them and to faithfully apply them according to their plain meaning.” Patterson v.
Prime Package & Label Co., LLC, No. M2013-01527-WC-R3-WC, 2014 Tenn. LEXIS
1037, at *15 (Tenn. Workers’ Comp. Panel Dec. 22, 2014). In other words, we must
“enforce the law impartially as written.” Id.

                                    C. Referral to Penalty Unit

        While we cannot affirm the trial court’s order for medical benefits because
Employee failed to satisfy her burden of proof under the standard applicable to expedited
proceedings, there are questions about whether Employer met the obligations imposed
upon it by section 50-6-204. Specifically, rather than providing Employee a panel of
physicians, Employer denied the claim shortly after it was reported, concluding that,
“[b]ased on the prior medical records, the claimant has chronic back issues not work
related. There is no specific event that occurred that caused a compensable work injury.
Does not meet the definition of a work related injury or accident.” However, as far as
this record shows, Employee described a particular event at work on a particular day
resulting in particular symptoms, and Employer did not obtain a medical opinion
regarding whether Employee’s complaints were causally related to the incident at work
until over five months after learning of the accident. The notice of denial reflects that
Employee was not seen by an authorized physician, even though she told her supervisor
she hurt her back retrieving ice and could not work for vacationing co-workers as the
supervisor had requested. She also told Employer’s safety officer what happened when
he interviewed her on October 5, 2016, yet no panel of physicians was forthcoming.


5
  See Lambert v. Famous Hospitality, 947 S.W.2d 852, 854 (Tenn. 1997) (“Having largely lost control of
the employee’s medical care by failing to provide the list of physicians as required by [statute], the
employer may not now seek to regain control by its belated attempt at compliance.”); CNA Ins. Co. v.
Transou, 614 S.W.2d 335, 337-38 (Tenn. 1981) (“An employer who denies all liability for an accident
and injury claimed by an employee is in no position to insist upon the statutory provisions respecting the
choosing of physicians.”); Hackney v. Integrity Staffing Solutions, Inc., No. 2016-01-0091, 2016 TN Wrk.
Comp. App. Bd. LEXIS 29, at *8 (Tenn. Workers’ Comp. App. Bd. July 22, 2016) (“An employer may
risk being required to pay for unauthorized treatment if it does not provide the treatment made reasonably
necessary by the work injury as required by Tennessee Code Annotated section 50-6-204(a)(1)(A).”).
                                                    8
        While the law is no longer given a remedial construction, see Tennessee Code
Annotated section 50-6-116, it still sets forth obligations borne by employers. Providing
a panel of physicians to employees who come forward with evidence of having sustained
a work-related injury is one such obligation. Accordingly, we refer Employer to the
Penalty Unit of the Bureau of Workers’ Compensation for appropriate action, if any,
based on Employer’s failure to provide a panel of physicians in accordance with section
50-6-204 and Tenn. Comp. R. & Regs 0800-02-01-.25. See Tenn. Comp. R. & Regs.
0800-02-24-.03 (2015) (“In addition to referrals made by a workers’ compensation judge,
any [Bureau] employee may refer any person or entity to the penalty program for the
assessment of a civil penalty whenever the referring employee believes that there may
have been a violation of the [Bureau’s] rules or the Tennessee Workers’ Compensation
Act.”).

                                         Conclusion

         For the foregoing reasons, the trial court’s decision is affirmed in part, reversed in
part, and the case is remanded for any further proceedings that may be necessary. Upon
its filing, a copy of this opinion will be provided to the Penalty Unit of the Bureau of
Workers’ Compensation in accordance with Tenn. Comp. R. & Regs. 0800-02-24-.03
(2015) for consideration of whether a penalty assessment against Employer is warranted.




                                              9
                     TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                       WORKERS’ COMPENSATION APPEALS BOARD


Patrice Berdnik                                            )   Docket No.   2016-04-0328
                                                           )
v.                                                         )   State File No. 78710-2016
                                                           )
Fairfield Glade Community Club, 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 18th day of May, 2017.
 Name                      Certified   First Class   Via   Fax      Via     Email Address
                           Mail        Mail          Fax   Number   Email

 Patrice Berdnik                                                      X     Plkkwkan58@gmail.com
 Mary Dee Allen                                                       X     mallen@wimberlylawson.com
 Robert V. Durham, 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: WCAppeals.Clerk@tn.gov
