                                                                                               FILED
                                                                                             Dec 09, 2019
                                                                                            02:27 PM(CT)
                                                                                         TENNESSEE COURT OF
                                                                                        WORKERS' COMPENSATION
                                                                                               CLAIMS




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

WILLIAM BARNES,                                    ) Docket No. 2018-05-1127
         Employee,                                 )
v.                                                 )
JACK COOPER TRANSPORT CO.,                         ) State File No. 53470-2018
         Employer,                                 )
And                                                )
CONTINENTAL INDEM. CO./                            ) Judge Dale Tipps
APPLIED UNDERWRITERS, INC.,                        )
And                                                )
NATIONAL INTERSTATE INS. CO.,                      )
         Carriers.                                 )


               EXPEDITED HEARING ORDER GRANTING BENEFITS


        This case came before the Court on November 26, 2019, for an Expedited Hearing
on whether Mr. Barnes is entitled to additional medical and temporary disability benefits.
To receive these benefits, Mr. Barnes must show that his current need for a knee
replacement arose primarily out of and in the course and scope of his employment. For
the reasons below, the Court holds Mr. Barnes is likely to meet this burden and is entitled
to the requested medical benefits. However, he is not entitled to the requested temporary
disability benefits.

                                          History of Claim

        Mr. Barnes has a history of left-knee problems, including a work injury in 2013.1

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  Mr. Barnes worked for Jack Cooper in 2013, which Continental Indemnity insured at the time.
Continental provided workers’ compensation benefits for the 2013 work injury, and the case settled with
open medical benefits. Because Mr. Barnes felt his current need for treatment might be related to the old
injury, he named Continental in his Petition for Benefit Determination. None of the parties properly
moved to dismiss Continental from this action before the Expedited Hearing, but the Court will not
address that part of Mr. Barnes’s claim because it has no jurisdiction over the 2013 injury.


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Records from Seven Springs Sports Medicine showed he had surgery to repair a meniscal
tear. An MRI from that time also showed degenerative osteoarthritis, which was not
work-related.

       Mr. Barnes testified that he recovered from his 2013 surgery and never had any
pain in his left knee or problems working until July 10, 2018. On that day, he reinjured
his knee while climbing a ladder at work. Mr. Barnes reported the injury, and Jack
Cooper began providing medical treatment.

       Mr. Barnes’s initial providers at Concentra prescribed physical therapy and
assigned light-duty restrictions but soon referred him to an orthopedist. Jack Cooper
provided a panel, and Mr. Barnes selected Dr. David Moore, who declined to treat him.
Mr. Barnes requested a replacement for Dr. Moore on the panel, but Jack Cooper refused.
He therefore chose Dr. Blake Garside from the two physicians remaining on the panel.

       After examining Mr. Barnes on September 5, Dr. Garside assessed exacerbation of
pre-existing osteoarthritis. He injected the knee, assigned restrictions, and told Mr.
Barnes to return in one month. At that next visit, Dr. Garside reiterated his belief that the
current symptoms “represent exacerbation of his pre-existing osteoarthritis.” He
recommended viscosupplementation and continued the work restrictions. According to
Mr. Barnes, Dr. Garside told him he would need a total knee replacement, but he said it
would need to be paid under the open medical benefits from his earlier claim.

       Soon after, Jack Cooper denied Mr. Barnes’s claim, so he sought treatment at
Seven Springs Sports Medicine, the practice that treated him in 2013. He saw physician
assistant Brian Masterson, who assessed degenerative joint disease and chondromalacia.
He also noted the July MRI suggested a recent ACL sprain.

       The parties sent causation letters to both of Mr. Barnes’s doctors. Dr. Garside’s
April 1, 2019 response states, “There was no obvious aggravation or anatomic change
associated with the July 2018 incident at work.” He concluded:

       [T]he last incident of July 10, 2018, did not contribute more than 50% in
       causing the need for Mr. Barnes to undergo a total knee arthroscopy and . . .
       did not contribute more than 50% in causing his current left knee issues,
       which are related to preexisting left knee osteoarthritis.

       Dr. Jason Jones, of Seven Springs, wrote a letter2 on November 4, 2019, stating:

2
 Jack Cooper questioned whether this letter was written by Dr. Jones or one of the physician assistants.
However, the letter bears what purports to be the signature of Dr. Jones, and Jack Cooper introduced no
evidence to the contrary. Consequently, the letter is admissible at this interlocutory stage under
Tennessee Compilation Rules and Regulations 0800-02-21-.15(2) (2019).
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      It is my opinion the second injury is the cause of his ongoing pain despite
      having underlying osteoarthritis since the first injury which was remedied
      surgically. He ultimately needs total knee arthroplasty and I would agree
      with Dr. [Garside] on this treatment plan. He clearly is in need of surgical
      intervention and will likely not get sustained relief from conservative
      measures. At this point, I believe his second injury is the cause for his
      ongoing pain, which was an exacerbation of osteoarthritis.

Dr. Jones added that Mr. Barnes could not return to work “at a high level of activity”
until he had the knee replacement.

       Dr. Garside gave his deposition and provided a detailed explanation of the extent
and nature of Mr. Barnes’s pre-existing osteoarthritis. Questioned at length about his
causation opinion, Dr. Garside steadfastly maintained that Mr. Barnes’s 2018 work
incident did not contribute more than fifty percent in the need for knee replacement.

       At the hearing, Mr. Barnes requested medical benefits, including knee replacement
surgery, and temporary disability benefits. He contended that because he worked five
years without problems after his 2013 surgery, it was obvious that his current problems
were the result of his 2018 injury. He also pointed out that an employer takes an
employee as it finds him, which would include his preexisting osteoarthritis.

       Jack Cooper contended that Mr. Barnes is not entitled to additional benefits. It
provided several arguments as to why Mr. Barnes failed to prove he is likely to establish
that he suffered an injury that arose primarily out of and in the course and scope of his
employment. First, Jack Cooper contended Dr. Garside was a panel physician, whose
opinion was entitled to a presumption of correctness. Next, even if Dr. Garside’s opinion
were not presumed correct, Dr. Jones’s opinion failed to address whether the work injury
contributed more than fifty percent in causing the disablement or need for treatment.
Jack Cooper also argued that Dr. Garside’s opinion was more reliable because the Court
had no information as to which medical records or facts Dr. Jones relied upon in
formulating his opinion.

                          Findings of Fact and Conclusions of Law

      Mr. Barnes must provide sufficient evidence from which this Court might
determine he is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-
239(d)(1) (2019); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App.
Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

                                       Causation

      To prove a compensable injury, Mr. Barnes must show that his alleged injuries

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arose primarily out of and in the course and scope of his employment. This includes the
requirement that he must show, “to a reasonable degree of medical certainty that [the
incident] contributed more than fifty percent (50%) in causing the . . . disablement or
need for medical treatment, considering all causes.” “Shown to a reasonable degree of
medical certainty” means that, in the opinion of the treating physician, it is more likely
than not considering all causes as opposed to speculation or possibility. See Tenn. Code
Ann. § 50-6-102(14).

        The Court first addresses Jack Cooper’s contention that Dr. Garside’s opinion is
presumed correct. Tennessee Code Annotated section 50-6-102(14)(E) establishes a
presumption of correctness for some causation opinions. However this presumption only
applies to opinions of a treating physician “selected by the employee from the employer’s
designated panel of physicians pursuant to § 50-6-204(a)(3).” Gilbert v. United Parcel
Serv., Inc., 2019 TN Wrk. Comp. App. Bd. LEXIS 20, at *13 (June 7, 2019). While it is
true that Mr. Barnes selected Dr. Garside from a list provided by Jack Cooper, the first
doctor on the list had already refused to see him. Thus, in reality the panel only
contained two physicians, which does not meet the statutory requirement of “a group of
three or more independent reputable physicians.” Therefore, the Court finds that Mr.
Barnes did not select his treating doctor from a “designated panel of physicians pursuant
to § 50-6-204(a)(3).” As a result, Dr. Garside’s opinion is not presumed correct.

       Absent a presumption of correctness, the Court must compare the opinions of the
physicians. The Appeals Board explained:

      When the medical testimony differs, the trial judge must obviously choose
      which view to believe. In doing so, he is allowed, among other things, to
      consider the qualifications of the experts, the circumstances of their
      examination, the information available to them, and the evaluation of the
      importance of that information by other experts.

Bass v. The Home Depot U.S.A., Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 36, at *9
(May 26, 2017).

       Applying the first of these factors, the Court notes that the physicians are both
orthopedic surgeons. Dr. Garside’s CV was admitted as an exhibit to his deposition, and
he is clearly a qualified expert. Although the Court does not have Dr. Jones’s CV, none
of the parties questioned the relative qualifications of the doctors. In the absence of any
additional information, the Court cannot find any determinative differences between the
doctors’ respective qualifications.

       As to the other factors, Dr. Garside saw Mr. Barnes twice. It is not clear how
many times Dr. Jones saw him, but Mr. Barnes only went to the Seven Springs clinic
twice for this injury. Mr. Barnes said Dr. Garside did not even examine him before

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concluding his problems stemmed from his old injury. As noted above, Jack Cooper
suggested Dr. Jones might not have authored his causation letter. In short, both doctors
had similar opportunities to examine Mr. Barnes.

       More importantly, while the circumstances of the respective examinations might
be different, they are not determinative because they both yielded essentially the same
diagnosis: exacerbation of pre-existing osteoarthritis. Likewise, the relevant information
– history of osteoarthritis, MRI, and history of work injury – available to both doctors
appears to be similar, if not identical. The only difference is the conclusion the doctors
reached upon consideration of this information. Thus, on the surface, the doctors’
opinions appear to be equally weighted.

        However, live testimony by a lay witness may influence the trier of fact in the
consideration of expert medical proof. Caskey v. Powers Pizza, LLC, 2015 TN Wrk.
Comp. App. Bd. LEXIS 37, at *9 (Oct. 7, 2015). Mr. Barnes testified persuasively and
credibly that he suffered none of his current symptoms until he reinjured his knee on July
10, 2018. Until that time, he had no pain and performed his job and other activities
without problem or limitation. The Supreme Court has consistently held that an
employee’s assessment as to his or her own physical condition is competent testimony
that is not to be disregarded. Limberakis v. Pro-Tech Sec, Inc., 2017 TN Wrk. Comp.
App. Bd. LEXIS 53, at *5-6 (Sept. 12, 2017).

       In light of this unrebutted testimony, the Court finds Dr. Jones’s opinion more
persuasive. Mr. Barnes’s work accident was the genesis of the symptoms that now make
his knee replacement necessary. Even though the underlying condition is not work-
related, the work injury converted a dormant, symptomless condition into a debilitating,
painful one. Therefore, Mr. Barnes appears likely to prevail at trial in establishing a
compensable aggravation of a pre-existing condition3 that resulted in the need for the
recommended medical treatment. See Vercek v. YRC, Inc., 2017 TN Wrk. Comp. App.
Bd. LEXIS 39, at *5-6 (June 6, 2017) (aggravation of a previously asymptomatic
condition led directly to surgical recommendation).

        Jack Cooper contended that Dr. Jones’s opinion should be disregarded because it
does not address the applicable legal standard of contributing “more than fifty percent
(50%) in causing the . . . disablement or need for medical treatment.” The Court
disagrees. “[A] physician may render an opinion that meets the legal standard espoused
in section 50-6-102(14) without couching the opinion in a rigid recitation of the statutory
definition.” Panzarella v. Amazon.com, Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 30,
at *14-15 (May 15, 2017). Dr. Jones stated that the work injury was “the cause” of Mr.
Barnes’s ongoing pain. He did not say the pain was partly caused or even mostly caused
by the work incident. Instead, a straightforward reading of this statement indicates that

3
    Both doctors diagnosed exacerbation of pre-existing osteoarthritis.
                                                       5
the work injury was the sole cause of Mr. Barnes’ current symptoms, which satisfies the
greater than fifty-percent requirement. This constitutes “sufficient proof from which the
trial court can conclude that the statutory requirements of an injury as defined in section
50-6-102(14) are satisfied.” Id.

       Jack Cooper also argued that Gamble v. Miller Indus., Inc., 2017 TN Wrk. Comp.
App. Bd. LEXIS 16 (Feb. 9, 2017), precludes an award of benefits to Mr. Barnes. In that
case, the Board determined that benefits were not appropriate, even though the
employee’s pre-existing hip condition was asymptomatic before his accident. However,
Gamble is distinguishable because the only medical proof was an opinion that the pre-
existing condition was the primary cause for the recommended hip replacement. As
noted above, Mr. Barnes’s case is different because it involves two conflicting medical
opinions, one of which supports Mr. Barnes’s claim.

       Finally, Jack Cooper suggested that because the knee replacement surgery at issue
is a substantial cost to the employer, the Court should require more than a modicum of
evidence before ordering benefits. It provided no legal authority for this argument, and
the Court finds it unpersuasive. First, Mr. Barnes must prove by a preponderance of
evidence that he is “likely to prevail at a hearing on the merits.” This standard already
requires more than just a modicum of proof. Next, to the extent Jack Cooper is proposing
the Court should apply a more rigorous standard than “likely to prevail,” it is not the
place of this Court to ignore or supplant the statutory standard confirmed by the Appeals
Board. Further, adopting the suggested approach might infer that lower-value claims do
not merit careful judicial analysis or the Court’s best efforts.

                              Temporary Disability Benefits

       To receive temporary total disability benefits, Mr. Barnes must establish that (1)
he became disabled from working due to a compensable injury; (2) a causal connection
between his injury and his inability to work; and (3) his period of disability. Jones v.
Crencor Leasing and Sales, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11,
2015). Mr. Barnes presented no evidence regarding the dates he received disability
benefits or his compensation rate. As a result, the Court cannot determine his period of
disability or the amount of any benefits due. Without this evidence, Mr. Barnes has not
proven he is likely to succeed on a claim for temporary total disability benefits.

IT IS, THEREFORE, ORDERED as follows:

   1. Jack Cooper Transport shall provide Mr. Barnes with medical treatment made
      reasonably necessary by his July 10, 2018 injury, including any recommended
      surgery. Dr. Garside shall continue as the authorized treating physician.

   2. Mr. Barnes’s request for temporary disability benefits is denied at this time.

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   3. This case is set for a Scheduling Hearing on February 27, 2020, at 9:00 a.m. You
      must call toll-free at 855-874-0473 to participate. Failure to call might result in a
      determination of the issues without your further participation. All conferences are
      set using Central Time.

   4. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
      with this Order must occur no later than seven business days from the date of entry
      of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3).
      The Insurer or Self-Insured Employer must submit confirmation of compliance
      with this Order to the Bureau by email to WCCompliance.Program@tn.gov no
      later than the seventh business day after entry of this Order. Failure to submit the
      necessary confirmation within the period of compliance might result in a penalty
      assessment for non-compliance. For questions regarding compliance, please
      contact the Workers’ Compensation Compliance Unit via email at
      WCCompliance.Program@tn.gov.

      ENTERED DECEMBER 9, 2019.



                                  _____________________________________
                                  Judge Dale Tipps
                                  Court of Workers’ Compensation Claims



                                      APPENDIX

Exhibits:
   1. Affidavit of William Barnes
   2. Joint Amended Medical Records
   3. Transcript of deposition of Dr. Blake Garside
   4. Settlement documents from 2013 injury

Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing
   4. Continental Indemnity’s Pre-hearing Brief
   5. Employer’s Pre-hearing Statement
   6. Memo in Support of Employee’s Claim


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                         CERTIFICATE OF SERVICE

     I certify that a copy of the Expedited Hearing Order was sent as indicated on
December 9, 2019.

 Name                    Certified   Email    Service Sent To
                          Mail
 Richard Dugger,                       X      Rldugger65@hotmail.com
 Employee’s Attorney
 Allen Grant,                          X      AGrant@eraclides.com
 Employer’s Attorney
 Sara Barnett,                         X      saraebarnett@spraginslaw.com
 Attorney for
 Continental Indemnity
 Co.




                                     _____________________________________
                                     Penny Shrum, Clerk of Court
                                     Court of Workers’ Compensation Claims
                                     WC.CourtClerk@tn.gov




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