            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD


Stephen Partilla                            )   Docket No. 2016-03-0502
                                            )
v.                                          )
                                            )   State File No. 16161-2016
Velocity Ventures, Inc., et al.             )                  21649-2016
                                            )
                                            )
Appeal from the Court of Workers’           )
Compensation Claims                         )
Pamela B. Johnson, Judge                    )


                   Affirmed and Remanded – Filed October 31, 2016

In this interlocutory appeal, the employer contests the trial court’s award of medical and
temporary disability benefits following the employee’s alleged work-related lumbar
injuries. The employee had a pre-existing lumbar condition for which he underwent two
surgeries and for which he continued to take medication. The employee contends he
subsequently suffered two work-related injuries in the course and scope of his work with
the employer. He was examined by a physician he selected from a panel, who
recommended and subsequently performed a lumbar fusion. Based on the report of an
independent medical evaluation, the employer denied compensability of both injuries.
Following an expedited hearing, the trial court determined the employee would likely
prevail at a trial on the merits and awarded medical and temporary disability benefits.
The employer has appealed. We affirm the trial court’s determination and remand the
case.

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

Todd I. Heird, Knoxville, Tennessee, for the employer-appellant, Velocity Ventures, Inc.

Jonathan Doolan, Knoxville, Tennessee, for the employee-appellee, Stephen Partilla




                                            1
                         Factual and Procedural Background

       Stephen Partilla (“Employee”), a forty-four-year-old resident of Knox County,
Tennessee, alleges an injury to his low back arising out of and in the course and scope of
his employment with Velocity Ventures, Inc. (“Employer”). Specifically, he alleges that
on February 24, 2016, he removed a truck tire from a tire balancer and felt a “pop” in his
low back, which immediately caused pain and “aggravated” symptoms in his right leg.
He did not report his injury immediately, as his supervisor was absent. The next day, due
to increasingly intense pain, he sought treatment with his primary care physician, Dr.
Jonathan Dee, who had treated Employee for chronic back pain over the course of several
years. Dr. Dee obtained x-rays and ordered an MRI, but the record of the February 25,
2016 visit does not mention any recent work-related incident. Employee reported the
injury to Employer the following week, but Employer did not provide a panel of
physicians at that time.

       Employee continued working with daily symptoms until March 10, 2016, when he
felt another “pop” in his low back while removing a wheel from a pickup truck. His leg
went numb, he suffered a loss of bladder control, and he dropped to the ground where he
remained for about 20 minutes. According to Employee, his supervisor, Terry Williams,
the assistant manager, “Charles,” and another coworker, Wayne Carlisle, observed him
on the ground and provided assistance. Employee described the incident to the assistant
manager and requested a panel of physicians. Employer offered him a panel of
physicians from which he selected Dr. James K. Maguire as his authorized treating
physician, and Employer initiated temporary disability benefits.

       Dr. Maguire first examined Employee on April 5, 2016, at which time he reviewed
the MRI obtained following Employee’s February 25, 2016 visit with Dr. Dees. He
noted a small recurrent disc herniation on the right at the L5-S1 level and diagnosed
intervertebral disc disorders with myelopathy and radiculopathy in the lumbar region. He
ordered a new MRI due to the March 10, 2016 injury and took Employee out of work.

       Employee returned to Dr. Maguire on April 12, 2016. Dr. Maguire noted the
repeat MRI showed evidence of recurrent disc herniation at the L5-S1 level on the right
“in addition to his chronic postoperative changes.” In his April 12, 2016 report, Dr.
Maguire stated:

      I suspect that his symptoms involving his right lower extremity are
      secondary to a combination of foraminal stenosis and now with a new
      recurrent disk herniation on the right side at [L]5-[S]1. . . . There is
      apparently some issue as to whether or not this is work related or not. I
      have reviewed his studies and reviewed his case and I think that one could
      make a justification that his problem at the [L]5-[S]1 level and the recurrent
      disk herniation on the right side is acute and is what has produced his

                                            2
      current symptoms. He had this on his MRI of 03/08 and so I would
      attribute this actually to his on-the-job injury that occurred 02/24. . . . I
      think that surgery would be a reasonable option under the
      circumstances. . . . As to causation, I do think it is reasonable to attribute
      this to the accident that occurred on 02/24 being greater than 51% of why
      he has the significant pain that he has now.

The April 12, 2016 report also noted that Dr. Maguire discussed operative versus non-
operative treatment, and that Employee opted to proceed with surgery. In the interim, Dr.
Maguire assigned temporary restrictions of no lifting greater than fifteen pounds and no
repetitive stooping or bending.

        Employer continued to provide medical treatment and temporary disability
benefits pending an independent evaluation it arranged with Dr. Edward Kahn to examine
Employee on May 4, 2016. Following the examination and a review of the medical
records, Dr. Kahn diagnosed “acute on chronic back and right leg pain.” Addressing
causation, Dr. Kahn stated:

      [I]t is hard for me to ascribe his current complaints to his work injuries of
      February 24, 2016 and March 10, 2016. At most he suffered an acute
      exacerbation of a pre-existing problem. It is my opinion his current
      complaints do not cross the 50% threshold for an acute injury. While he
      may benefit from surgical intervention, I do not believe his current
      employer is responsible for the chronic condition that he suffers from.

Upon Employer’s receipt of Dr. Kahn’s report, Employer denied further benefits.

        Dr. Maguire performed a decompression and instrumented lumbar fusion at L5-S1
on June 6, 2016, and he took Employee out of work following the surgery. Post-
operatively, Employee reported improvement in his symptoms with elimination of his leg
pain. On July 19, 2016, Employee reported to Dr. Maguire that he was doing well. The
report of that visit reflects that Dr. Maguire told Employee he should “remain out of work
in the interim” and follow up in two months. At the expedited hearing, Employee
testified Employer failed to accommodate his restrictions and subsequently terminated his
employment. He stated in an affidavit that he last worked for Employer on April 5, 2016.

        Employee acknowledged he sustained a previous injury to his low back in 2004
while working as an auto mechanic and had undergone an L5-S1 hemilaminectomy in
August of that year. Post-operatively, his treating physician assigned work restrictions
proscribing heavy lifting. Employee continued to experience significant lumbar and leg
complaints following the 2004 surgery, and in August 2008 he underwent a second L5-S1
discectomy and decompression. Following the second surgery, Employee continued to
treat for lumbar and right leg pain, and he received periodic steroid injections. He was

                                            3
prescribed narcotic pain medication from the date of his 2004 surgery and was continuing
to take the medications at the time of the February and March 2016 work incidents.

        While acknowledging his pre-existing lumbar condition, Employee testified his
prior low back complaints and pain did not prevent him from performing his job duties or
daily activities, stating that, with pain medication, he remained extremely active at work
and at home. He testified that following the February 24, 2016 and March 10, 2016
incidents, his back and right leg pain were “greatly amplified,” and that he experienced
difficulty bending over, sitting or standing for long time periods, and putting on or
removing his shoes.

       Following the expedited hearing, the trial court determined that Employee
established he sustained an injury to his low back and right leg “caused by a specific
incident, or set of incidents” that were “identifiable by time and place of occurrence.”
After considering the medical records, the trial court found “Dr. Maguire’s opinion more
persuasive and conclude[ed] Dr. Kahn’s opinion failed to rebut the presumption of
correctness afforded Dr. Maguire’s opinion.” Based on these determinations, the trial
court determined that Employee “demonstrated he is likely to prevail at a hearing on the
merits of whether he sustained an injury on February 24, 2016, and/or March 10, 2016,
arising primarily out of and in the course and scope of his employment.” The trial court
also found Employee was likely to prevail at trial on the issue of temporary disability
benefits and ordered Employer to pay those benefits from May 23, 2016 through
September 19, 2016, and thereafter in accordance with Tennessee Code Annotated
section 50-6-207 (2015). 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).

                                            4
                                               Analysis

       Employer identifies five issues on appeal, all of which, essentially, question
whether the evidence was sufficient for the trial court to award medical and temporary
disability benefits, and whether Dr. Kahn’s report was sufficient to rebut the statutory
presumption of correctness applicable to Dr. Maguire’s causation opinion.

       Employer contends that “[a]s a starting point,” Dr. Maguire’s statement that “[he]
think[s] that one could make a justification that [Employee’s] problem . . . is acute and is
what has produced his current symptoms,” does not meet the standard of causation set out
in Tennessee Code Annotated section 50-6-102(14) (2015).1 (Emphasis in original).
Employer asserts that the evidence is insufficient to require it to pay for Employee’s
surgery “where there is no medical record stating [Employee’s] injury contributed more
than 50% in causing the need for surgery as required by [section 50-6-102(14)(C)].”
Employer also argues that the trial court erred in ordering it to pay for Employee’s
medical care “where Employee failed to present an opinion from a physician that had
‘considered all causes’ as required by [section 50-6-102(14)(C)].” Additionally,
regarding the trial court’s ordering Employer to pay for Employee’s medical care,
Employer contends the trial court erred “in ruling that the presumption of correctness
[applicable to Dr. Maguire’s causation opinion] was not rebutted where Dr. Maguire did
not review Employee’s past medical records and also did not consider ‘all causes.’”
Finally, Employer asserts the trial court erred in ordering it to pay temporary disability
benefits “where employee did not satisfy the causation requirements [of section 50-6-
102(14)].”

        As we have often stated, at an expedited hearing an employee need not prove
every element of his or her claim by a preponderance of the evidence, but must come
forward with sufficient evidence from which the trial court can determine that the
employee is likely to prevail at a hearing on the merits, consistent with Tennessee Code
Annotated section 50-6-239(d)(1) (2015). McCord v. Advantage Human Resourcing, No.
2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Tenn. Workers’ Comp.
App. Bd. Mar. 27, 2015). This lesser evidentiary standard “does not relieve an employee
of the burden of producing evidence of an injury by accident that arose primarily out of
and in the course and scope of employment at an expedited hearing, but allows some
relief to be granted if that evidence does not rise to the level of a ‘preponderance of the
evidence.’” Buchanan v. Carlex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp.
App. Bd. LEXIS 39, at *6 (Tenn. Workers’ Comp. App. Bd. Sept. 29, 2015).


1
  Employer refers to Tennessee Code Annotated section 50-6-102(13) (2015) throughout its position
statement on appeal when discussing the definition of injury and the statutory requirements for
establishing causation. However, section 50-6-102(13) defines “Employer.” We presume Employer
intended to cite section 50-6-102(14) (2015), and for that reason we do not reference section 50-6-102(13)
in our opinion.
                                                    5
        Standing alone, the statement in Dr. Maguire’s April 12, 2016 report that he
“think[s] that one could make a justification that [Employee’s] problem at the [L]5-[S]-1
level and the recurrent disk herniation on the right side is acute and is what has produced
his current symptoms,” may be insufficient to establish entitlement to benefits prior to
trial. However, Dr. Maguire did not limit his causation opinion to this statement. He also
stated that the recurrent disc herniation at the right L5-S1 level was noted on the March 8,
2016 MRI “and so [he] would attribute this actually to his on-the-job injury that occurred
on [February 24, 2016].” Indeed, Dr. Maguire specifically addressed causation in the
April 12, 2016 report, stating “I do think it is reasonable to attribute this to the accident
that occurred on 02/24 being greater than 51% of why he has the significant pain that he
has now.” Although Dr. Maguire referenced the February 24, 2016 incident as “being
greater than 51% of the [cause of the] significant pain” Employee was experiencing
rather than 51% of the cause of the injury, the record aptly supports the trial court’s
determination that Employee presented sufficient evidence that he would likely prevail at
trial in establishing that the injury and his need for medical care and surgery arose
primarily out of and in the course and scope of the employment.

       Employer also takes issue with the trial court’s determination that Dr. Kahn’s
independent medical evaluation was insufficient to rebut the presumption of correctness
afforded to Dr. Maguire’s causation opinion pursuant to Tennessee Code Annotated
section 50-6-102(14)(E) (2015). As observed by the trial court, it is generally within the
judge’s discretion to determine which medical expert’s opinion to accept when faced with
conflicting opinions. See Payne v. UPS, No. M2013-02363-SC-R3-WC, 2014 Tenn.
LEXIS 1112, at *18 (Tenn. Workers’ Comp. Panel Dec. 30, 2014). A trial judge “has the
discretion to conclude that the opinion of one expert should be accepted over that of
another expert,” Reagan v. Tennplasco, No. M2005-02020-WC-R3-CV, 2006 Tenn.
LEXIS 1209, at *10 (Tenn. Workers’ Comp. Panel Dec. 27, 2006) and, “[w]hen faced . . .
with conflicting medical testimony . . ., it is within the discretion of the trial judge to
conclude that the opinion of certain experts should be accepted over that of other experts
and that it contains the more probable explanation.” Thomas v. Aetna Life and Cas. Co.,
812 S.W.2d 278, 283 (Tenn. 1991) (internal quotation marks omitted).

        Thus, with respect to the issue of competing expert medical opinions, we review
the trial court’s determination under an abuse of discretion standard. This standard
“contemplates that before reversal the record must show that a judge ‘applied an incorrect
legal standard, or reached a decision which is against logic or reasoning that caused
injustice to the party complaining.’” Hubbard v. Sherman-Dixie Concrete, Indus., No.
E2010-02219-WC-R3-WC, 2011 Tenn. LEXIS 965, at *11 (Tenn. Workers’ Comp.
Panel Oct. 18, 2011) (quoting State v. Farrell, 277 S.W.3d 372, 378 (Tenn. 2009)).

       In determining that Dr. Kahn’s opinion did not rebut the statutory presumption of
correctness afforded to Dr. Maguire’s opinion, the trial court observed that Dr. Maguire
reviewed the same MRI studies considered by Dr. Kahn, was aware of Employee’s prior

                                             6
low back injury and surgeries, and still concluded that Employee’s current problems are
due to a work-related injury. There is nothing in the record to establish that the trial court
applied an incorrect legal standard or reached a decision contrary to logic or reasoning.
Thus, the trial court did not abuse its discretion by accepting Dr. Maguire’s opinion over
that of Dr. Kahn.

       While Employer disputes the trial court’s award of temporary disability benefits, it
does so only in the context of whether such benefits were appropriate in light of its
argument that Employee had not presented sufficient evidence to establish his injury is
causally related to his employment. Employer does not take issue with the duration or
calculation of temporary disability benefits. Having concluded that Employee presented
sufficient evidence to establish he is likely to prevail at a hearing on the merits of his
claim with respect to causation, we accordingly find no merit in Employer’s argument
contesting the award of temporary disability benefits.

                                        Conclusion

        For the foregoing reasons, we hold that the evidence does not preponderate against
the trial court’s decision at this interlocutory stage of the case. Nor does the trial court’s
decision 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 and the case is remanded for
any further proceedings that may be necessary.




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

Stephen Partilla                                            )   Docket No.   2016-03-0502
                                                            )
v.                                                          )   State File No. 16161-2016
                                                            )                  21649-2016
Velocity Ventures, 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 31st day of October, 2016.
 Name                       Certified   First Class   Via   Fax      Via     Email Address
                            Mail        Mail          Fax   Number   Email

 Jonathan Doolan                                                        X    jonathan@collinsdoolan.com
 Todd I. Heird                                                          X    tiheird@mijs.com
 Pamela B. Johnson, 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
