                                                                               FILED
                                                                             Nov 09, 2018
                                                                             01:17 PM(CT)
                                                                          TENNESSEE COURT OF
                                                                         WORKERS' COMPENSATION
                                                                                CLAIMS




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

Olivia Clay,                                )   Docket No. 2018-06-0938
               Employee,                    )
v.                                          )
Trinity Services Group,                     )   State File No. 2983 -2016
             Employer,                      )
And                                         )
Zurich American Ins. Co.,                   )   Judge Kenneth M. Switzer
             Carrier.                       )


                       COMPENSATION HEARING ORDER


       The Court held a compensation hearing on November 8, 2018. The only issue was
the extent of Ms. Clay's impairment from a shoulder injury she suffered while working
for Trinity Services Group. For the reasons below, the Court holds she sustained a
permanent partial disability of seven percent to the body as whole.

                                   History of Claim

      Ms. Clay works as a kitchen supervisor for Trinity, the food service provider at
Trousdale Turner Correctional Center in Hartsville. On December 28, 2015, a metal door
weighing approximately fifty pounds fell on her left arm, shoulder and neck. Trinity
accepted the claim, and Ms. Clay received authorized treatment from Dr. S. Matthew
Rose for eighteen months following the accident. Ultimately, Dr. Rose assigned a two-
percent impairment rating following surgery. Ms. Clay obtained another rating of seven
percent from Dr. Robert Landsberg. The issue is their differing ratings.

         Trinity relied on the treatment notes and Final Medical Report, Form C-30A, from
Dr. Rose. He first saw Ms. Clay in February 2016, diagnosing a cervical strain with
possible cervical radiculopathy and a left-shoulder rotator cuff tear with non adhesive
capsulitis. Dr. Rose ordered MRis and placed her on restrictions. He reviewed the MRI
results at the next visit and treated her conservatively. By May, when Ms. Clay made
little progress, he recommended surgery. Approximately one month later, she underwent

                                            1
arthroscopic rotator cuff repair, subacromial decompression and acromioplasty, and
biceps tenotomy with labral debridement. Afterward Ms. Clay reported worsening pain,
which persisted for several months. Dr. Rose ordered another MRI. Based on its results,
he performed a manipulation of the shoulder under anesthesia to relieve the adhesive
capsulitis.

       Dr. Rose placed her at maximum medical improvement on February 15, 2017,
with permanent restrictions of no lifting above height and no outstretched gripping-
"basically nothing heavier than a couple of pounds." He noted she had forward elevation
"to about 140 or 150 degrees, abduction still around 130 degrees," but he did not record
how many times he measured these two planes of motion or which instrument he used to
obtain the measurements. He also did not record measurements for the four other planes
of motion contained within the Sixth Edition of the American Medical Association's
Guides to the Evaluation of Permanent Impairment.

        As for Ms. Clay's impairment, Dr. Rose rated her using the Guides. He used a
diagnosis-based method, specifically, Table 15-5 (p. 403), which lists upper extremity
impairments. The median rating for a Class 1 rotator cuff full-thickness tear is three
percent to the left shoulder. Dr. Rose then consulted Table 15-11 (p. 420), which
converted that rating to a two-percent whole-body impairment. Table 15-5 (p. 405)
states, "If motion loss is present, this impairment may alternatively be assessed using
Section 15.7, Range of Motion Impairment." However, although Dr. Rose measured her
forward elevation and abduction, he did not use the alternative range-of-motion method.

      Ms. Clay testified that she disagreed with this rating, so she consulted Dr.
Landsberg for an independent medical evaluation. She saw him once, on May 23, 2018.
Dr. Landsberg reviewed the notes from each of Ms. Clay's fourteen visits to Dr. Rose.
He also read and considered records from physical therapy, diagnostic testing and
emergency room visits.

        On examination, Dr. Landsberg tested Ms. Clay's range of motion three times
using a goniometer, noting "definite secure endpoints." Dr. Landsberg likewise used the
sixth edition of the Guides and initially used a diagnosis-based method to rate her
impairment. He consulted Table 15-5 but noted a default of five-percent upper extremity
"with a range of 3-7 percent in Class 1 for a residual loss of function ... [h]owever, this
is for normal motion." Dr. Landsberg then turned to Table 15-7 (p. 406) and placed her
within the Grade Modifier 2 due to her ongoing stiffness, limitations and difficulty with
grooming. Dr. Landsberg again placed her in Grade Modifier 2 using Table 15-8 (p. 408)
for physical examination adjustments. Considering clinical studies, Table 15-9 (p. 410),
he then advanced her to Grade Modifier 4. This elevated Ms. Clay to a Grade E, seven-
percent upper extremity rating or a four-percent whole person rating. See Table 15-5 (p.
420).


                                            2
       Dr. Landsberg performed the alternative assessment method for motion loss using
Section 15.7. He noted that when the Guides provide more than one method to rate a
particular condition, "the method producing the higher rating must be used." He wrote:

       [U]sing the range of motion section, Table 15-34, on page 475, there is a 3
       percent upper extremity impairment rating for decreased flexion, 1 percent
       for decreased extension, 3 percent for decreased abduction, 1 percent for
       decreased abduction, 2 percent for decreased internal rotation and 2 percent
       for decreased external rotation. Therefore, the impairment rating for loss of
       motion is 12 percent upper extremity. This is higher than the 7 percent
       from Table 15-5. Therefore, her true impairment rating is a 12 percent
       upper extremity or 7 percent whole person.

      Ms. Clay argued that Dr. Landsberg rebutted the statutory presumption of
accuracy to the rating assigned by the treating physician.

       Trinity countered that Dr. Rose, as the treating physician who saw Ms. Clay over
eighteen months, is more familiar with her progress through treatment. Both doctors'
range-of-motion measurements were subjective. Further, the Guides state that, "If
motion loss is present, this impairment may alternatively be assessed using section 15.7."
The permissive "may" indicates that the Guides do not require the alternative method.
Moreover, Dr. Landsberg did not comment on why Dr. Rose's methods or conclusion is
incorrect. Therefore, according to Trinity, Ms. Clay failed to rebut the presumption.

       The parties agreed to Ms. Clay's weekly compensation rate of$313.33.

                       Findings of Fact and Conclusions of Law

       Ms. Clay must prove all elements of her case by a preponderance of the evidence,
including the amount of her permanent partial disability. Tenn. Code Ann. § 50-6-
239(c)(6) (2018). To determine this amount, the Court must decide which expert opinion
to accept. Sanker v. Nacarato Trucks, Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS 27, at
* 11-12 (July 6, 20 16). The Court may consider the qualifications of the experts, the
circumstances of their evaluation, the information available to them, and the evaluation of
the importance of that information by other experts. The Court also may accept the
opinion of one expert over another if it contains the more probable explanation. Ledford
v. Mid-Georgia Courier, 2018 TN Wrk. Comp. App. Bd. LEXIS 28, at *7-8 (June 4,
20 18). If one expert is an authorized physician, then his impairment rating is afforded a
presumption of correctness subject to rebuttal by a preponderance of the evidence. Tenn.
Code Ann.§ 50-6-204(k)(7).




                                            3
       Regarding the experts' qualifications, the parties did not introduce evidence of
their expertise or experience. Therefore, the Court assumes the physicians are equally
qualified to provide accurate ratings.

       As for the circumstances of the evaluations, this factor favors Dr. Rose. As the
treating physician, he had more contact with Ms. Clay. "It is reasonable to conclude that
the physician having greater contact with an injured worker has an advantage in
providing a more in-depth, if not more accurate opinion." Bass v. Home Depot USA.,
Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 36, at *14 (May 26, 2017). Trinity argued
that this pronouncement from the appellate courts favors Dr. Rose. However, the
Appeals Board in Bass quoted the above principle in the context of a dispute between
experts on medical causation. Further, this principle is not absolute; if it were, the
statutory presumption could never be overcome.

       Rather, the case turns on the information available to the physicians and the
importance of that information in the context of their ratings. Both physicians used a
diagnosis-based method, but Dr. Rose did not apply or mention use of the grade
modifiers. In contrast, Dr. Landsberg applied the grade modifiers to the diagnosis-based
impairment as required by the Guides. Doing so, he arrived at a different diagnosed-
based impairment. He explained his use of the functional history, physical examination
and clinical study grade modifiers in reaching that conclusion.

       Dr. Landsberg went further and used the range-of-motion model as an alternative
to the diagnosed-based impairment rating as instructed by the Guides at the end of Table
15-5 (p. 405). He measured each aspect of her decreased range of motion three times as
the Guides direct (p. 464) to confirm his measurements. He explained in detail each of
the six decreased planes of motion and the ratings for each, and he correctly added them
to reach the impairment rating. The Court disagrees with Trinity that these measurements
are "subjective." Dr. Landsberg mentioned use of a goniometer, while Dr. Rose did not
note whether he used one. Dr. Rose also did not mention if he measured Ms. Clay's
range of motion more than once.

       Dr. Landsberg correctly observed that the Guides state in Table 2-1, 12 (p. 20) that
when more than one method may be used to rate a particular condition, the method
producing the higher rating must be used. Dr. Landsberg followed the Guides' protocol
to assess the extent of Ms. Clay's impairment. Dr. Rose failed to do so and offered no
explanation as to why. Thus, the Court finds that the range-of-motion method, which
produced the higher, seven-percent rating, was the appropriate method under these facts.

      In sum, the Court holds Dr. Landsberg offered the more probable explanation of
Ms. Clay's impairment, and his opinion rebuts Dr. Rose's by a preponderance of the
evidence. Therefore, she is entitled to permanent partial disability benefits of 31.5
weeks, or $9,869.90. This is calculated by multiplying the seven-percent rating by 450

                                             4
weeks and multiplying that result by the stipulated weekly compensation rate of $313.33.
See Tenn. Code Ann. § 50-6-207(3)(A).

IT IS, THEREFORE, ORDERED as follows:

1.    Trinity shall pay permanent partial disability benefits of $9,869.90. Ms. Clay's
      attorney is entitled to a twenty-percent fee of the total award under Tennessee
      Code Annotated section 50-6-226(a)(1) equaling $1,973.98. He may submit a
      motion for discretionary costs, unless the parties reach an agreement on this issue.

2.    Trinity shall provide future medical benefits under Tennessee Code Annotated
      section 50-6-204(a)(l)(A). Dr. Rose remains the treating physician.

3.    Trinity shall pay $150.00 costs to the Court Clerk within five business days under
      Tennessee Compilation Rules and Regulations 0800-02-21-.07.

4.    Trinity shall prepare and submit a Statistical Data Form (SD2) within ten business
      days of this order becoming final.

5.    Absent an appeal, this order shall become final thirty days after issuance.

                                         ENTERED NOVEMBER 9, 2018.




                                         Court of Workers' Compensati


                                       Appendix

Evidence
   1. Composite medical records
   2. IME report

Technical Record
   1. Petition for Benefit Determination
   2. Post-discovery Dispute Certification Notice
   3. Employee's Witness and Exhibit List
   4. Pre-Compensation Hearing Statement (Joint)
   5. Employee's Pre-Trial Brief
   6. Employer's Pre-Trial Brief

                                            5
                           CERTIFICATE OF SERVICE

      I certify that a copy of this Order was sent to these recipients by the following
methods of service on November 9, 2018.

Name                       Certified Fax       Email    Service sent to:
                           Mail
 Charles Niewold,                                 X     cniewold@bellsouth.net
 em_Q_loyer' s attorney
 David Weatherman,                                X     David.weatherman@zurichna.com
 employer's attorney



                                           ' /)        )JuUft-- /
                                        i>~RUM, COURT CLERK
                                        wc.courtc'erk@tn.gov




                                           6
                                 II
                                  I                                                       'I



                          Compensation Hearing Order Right to Appeal:

     If you disagree with this Compensation Hearing Order, you may appeal to the Workers'
Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers'
Compensation Appeals Board, you must:

    1. Complete the enclosed form entitled: "Compensation Hearing Notice of Appeal," and file
       the form with the Clerk of the Court of Workers' Compensation Claims within thirty
       calendar days of the date the compensation hearing order was filed. When filing the
       Notice of Appeal, you must serve a copy upon the opposing party (or attorney, if
       represented).

   2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
      calendar days after filing of the Notice of Appeal. Payments can be made in-person at
      any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
      alternative, you may file an Affidavit of Indigency (form available on the Bureau's
      website or any Bureau office) seeking a waiver ofthe filing fee. You must file the fully-
      completed Affidavit of Indigency within ten calendar days of filing the Notice of
      Appeal. Failure to timely pay the filing fee or file the Affidavit of lndigency will
      result in dismissal of your appeal.

   3~   You bear the responsibility of ensuring a complete record on appeal. You may request
        from the court clerk the audio recording of the hearing for a $25.00 fee. A licensed court
        reporter must prepare a transcript and file it with the court clerk within fifteen calendar
        days of the filing the Notice of Appeal. Alternatively, you may file a statement of the
        evidence prepared jointly by both parties within fifteen calendar days of the filing of the
        Notice of Appeal. The statement of the evidence must convey a complete and accurate
        account of the hearing. The Workers' Compensation Judge must approve the statement
        of the evidence before -the record is submitted to the Appeals Board. If the Appeals
        Board is called upon to review testimony or other proof concerning factual matters, the
        absence of a transcript or statement of the evidence can be a significant obstacle to
        meaningful appellate review.

   4. After the Workers' Compensation Judge approves the record and the court clerk transmits
      it to the Appeals Board, a docketing notice will be sent to the parties. The appealing
      party has fifteen calendar days after the date of that notice to submit a brief to the
      Appeals Board. See the Practices and Procedures of the Workers' Compensation
      Appeals Board.

To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing
Order must be final and you must comply with the Tennessee Rules of Appellate
Procedure. If neither party timely files an appeal with the Appeals Board, the trial court's
Order will become final by operation of law thirty calendar days after entry. See Tenn.
Code Ann.§ 50-6-239(c)(7).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
II                                                                                                                      I.
 '                                                                                                                       I




                                    Tennessee Bureau of Workers' Compensation
                                           220 French Landing Drive, 1-B
                                             Nashville, TN 37243-1002
                                                      800-332-2667

                                               AFFIDAVIT OF INDIGENCY


     I,                                                , having been duly sworn according to law, make oath that
     because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
     waived. The following facts support my poverty.

     1. Full Name:_ _ _ _ __ _ _ _ _ __                       2. Address: - - - - - - - -- - - --

     3. Telephone Number: - - - - - - - - -                   4. Date of Birth: - - - - -- - - -- -

     5. Names and Ages of All Dependents:

             - - - - - - - - - - - - - - -- - Relationship: - - - - - - -- - - -- -

             - - - - - - - - - - - - - -- --                  Relationship: - - - - - -- - - -- - -

             - - - - - - - - - - -- - -- - - Relationship: - - - -- - -- - - - - -

             - - - - - - - - - - - - - - -- -                 Relationship: - - - - - - -- - - -- -

     6. I am employed by: - - - - - - - - - - -- - - -- - - - - - -- - - -- - -

             My employer's address is: - - - - -- - - - -- - - - - - -- - -- - - - -

             My employer's phone number is: - - - -- - - - -- - - - - - -- - - -- - -

     7. My present monthly household income, after federal income and social security taxes are deducted, is:

     $ _ _ _ _ _ __

     8. I receive or expect to receive money from the following sources:

             AFDC            $            per month           beginning
             SSI             $            per month           beginning
             Retirement      $            per month           beginning
             Disability      $            per month           beginning
             Unemployment $               per month           beginning
             Worker's Camp.$              per month           beginning
             Other           $            per month           beginning



     LB-1108 (REV 11/15)                                                                               RDA 11082
9. My expenses are:     ! ~                                                      li
                                                                                  I
                          '

        Rent/House Payment $              per month     Med icai/Dental $ _ _ ___ per month

        Groceries       $           per month           Telephone       $ _ __ _ _ per month
        Electricity     $           per month           School Supplies $ _ _ _ _ _ per month
        Water           $           per month           Clothing        $ _ _ _ _ _ per month
        Gas             $           per month           Child Care      $ _ _ _ _ _ per month
        Transportation $            per month           Child Support   $ _ _ _ _ _ per month
        Car             $            per month
        Other           $           per month (describe:


10. Assets:

        Automobile              $ _ _ _ __
                                                        (FMV) - - - - - - - - - -
        Checking/Savings Acct. $ _ _ _ __
        House                   $ _ _ __
                                                        (FMV) - - - - - - - - - -
        Other                   $ _ _ _ __              Describe:_ _ _ _ __ _ __ __


11. My debts are:

        Amount Owed                     To Whom




I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.




APPELLANT



Sworn and subscribed before me, a notary public, this

____ dayof _____________________ , 20_ __




NOTARY PUBLIC

My Commission Expires:_ _ _ _ _ _ __




LB-1108 (REV 11/15)                                                                          RDA 11082
