                                                                                              FILED
                                                                                            Aug 07, 2018
                                                                                            03:10 PM(CT)
                                                                                            TENNESSEE
                                                                                       WORKERS' COMPENSATION
                                                                                          APPEALS BOARD

             TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                WORKERS’ COMPENSATION APPEALS BOARD

Paul White                                         ) Docket No. 2017-03-1291
                                                   )
v.                                                 ) State File No. 63359-2016
                                                   )
G&R Trucking, Inc., et al.                         )
                                                   )
                                                   )
Appeal from the Court of Workers’                  )
Compensation Claims                                )
Lisa A. Lowe, Judge                                )

                      Affirmed and Remanded – Filed August 7, 2018

In this interlocutory appeal, the employee reported lower back pain while installing an
axle on a vehicle and was treated for an injury at the L3-4 level of his lumbar spine.
Thereafter, while undergoing physical therapy, the employee reported additional
symptoms that his treating physician associated with the L5-S1 level. The employee
sought medical benefits for treatment of the L5-S1 condition, but the employer’s current
insurer declined to provide such benefits, asserting the condition was unrelated to the
most recent work accident. Upon a review of the record, the trial court ordered the
employer’s current insurer to provide the additional benefits, and the insurer appealed.
We affirm the determination of the trial court and remand the case.

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

Nicholas S. Akins, Nashville, Tennessee, for the employer-appellant, G&R Trucking,
Inc.

Joshua J. Bond, Knoxville, Tennessee, for the employee-appellee, Paul White

                             Factual and Procedural Background

     Paul White (“Employee”) worked for G&R Trucking, Inc. (“Employer”), as a
mechanic. 1 On August 17, 2016, while attempting to install an axle on a vehicle at work,

1
 Because the trial court’s decision was based on a review of the record, with no evidentiary hearing, we
have gleaned the facts from the technical record and the trial court’s expedited hearing order.
                                                   1
Employee felt sudden pain in his right groin and lower back. He received authorized
medical care with Dr. James Maguire, who treated him for an injury at the L3-4 level of
his lumbar spine. He underwent surgery for that condition in January 2017.

        Previously, in 2005, Employee had suffered a work-related low back injury that
resulted in surgery at the L4-5 level. His prior injury occurred with the same employer
that, at the time, was insured by a different workers’ compensation insurer. Dr. Maguire
also treated him for his 2005 injury. A settlement of that claim included a provision
leaving open future medical benefits causally related to the 2005 injury.

        As part of his post-surgical treatment for the August 17, 2016 accident, Employee
participated in physical therapy. During one such therapy visit in April 2017, he
developed new symptoms that Dr. Maguire associated with the L5-S1 level of the lumbar
spine. In his June 19, 2017 report addressing the new symptoms at L5-S1, Dr. Maguire
commented that he “do[es] consider this part of his work-related injury.” He then
explained, “I do not know whether it arose in physical therapy or whether [it] predated
that, but in any event, I still attribute this to part of his work-related problem.”

        Dr. Maguire reiterated this opinion in his July 31, 2017 report, in which he stated,
“I do attribute this to a work related injury.” However, he also explained that the L5-S1
condition is a “transitional syndrome” and “his previous fusion has predisposed him to
this.” After Dr. Maguire’s request for authorization for surgery was denied by the current
workers’ compensation insurer, Riverport Insurance Company (“Riverport”), he again
addressed the issue of causation. In his September 26, 2017 report, Dr. Maguire opined
as follows:

       It is still my opinion that his problem at the [L]5-[S]1 level is related to the
       surgery at [L]4-5. His more recent surgery at [L]3-4 I do not think has
       anything to do with this. He has now become symptomatic with increased
       stenosis at the [L]5-[S]1 level, and he has been at risk of doing this for
       years now actually since his [L]4-5 level was fused. He has now developed
       those symptoms, and I do think that this is clearly a case of adjacent
       segment disease related to his fusion at the [L]4-5 level.

(Emphasis added.) Riverport declined to approve the surgery based on Dr. Maguire’s
opinion that the need for surgery at the L5-S1 level was related to Employee’s prior
injury at L4-5 and the subsequent development of adjacent segment disease. According
to Riverport, the surgery should be authorized pursuant to the open medicals provision of
his prior settlement agreement and covered by the prior insurer.

       Employer’s prior insurer also declined to approve the surgery, arguing in an
amicus curiae brief that Employee’s symptoms at L5-S1 did not develop until the
incident during physical therapy, which was directly related to the treatment of his L3-4

                                              2
injury. 2 Moreover, it argued that the development of symptoms at the L5-S1 level was a
“direct and natural consequence” of his more recent injury. Thus, pursuant to the
Tennessee Supreme Court’s opinion in Anderson v. Westfield Group, 259 S.W.3d 690,
696 (Tenn. 2008), the need for surgery is related to the treatment of his most recent injury
and should be the responsibility of the current insurer.

         Employee presented an expert medical opinion from Dr. William Kennedy, a
retired orthopedic surgeon. Dr. Kennedy opined the incident that occurred during
physical therapy “permanently aggravated and worsened the degenerative changes at
L5 . . . for which Dr. Maguire has recommended surgery.” He then concluded “with
reasonable medical certainty that all of the testing and treatment following the incident of
8/[17]/16 has been both appropriate and necessary attributable to that incident including
the surgery of January 2017 and the surgery at L5 more recently recommended by Dr.
Maguire.”

       Following a review of the documents submitted by the parties, the trial court
issued its decision “on the record,” determining Employee would likely prevail at trial in
establishing that his need for medical treatment at L5-S1 is causally related to his August
17, 2016 injury. The court ordered Riverport to provide the reasonable and necessary
medical treatment recommended by Dr. Maguire for the L5-S1 condition, including the
additional surgery. Employer and Riverport appealed.

                                       Standard of Review

       The standard we apply in reviewing a trial court’s decision presumes that the
court’s factual findings are correct unless the preponderance of the evidence is otherwise.
See Tenn. Code Ann. § 50-6-239(c)(7) (2017). When the trial judge has had the
opportunity to observe a witness’s demeanor and to hear in-court testimony, we give
considerable deference to factual findings made by the trial court. Madden v. Holland
Grp. of Tenn., Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar
deference need be afforded the trial court’s findings based upon documentary evidence.”
Goodman v. Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at
*6 (Tenn. Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and
application of statutes and regulations are questions of law that are reviewed de novo with
no presumption of correctness afforded the trial court’s conclusions. See Mansell v.
Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are
also mindful of our obligation to construe the workers’ compensation statutes “fairly,
impartially, and in accordance with basic principles of statutory construction” and in a


2
   Because Employee’s previous injury occurred prior to the effective date of the 2013 Workers’
Compensation Reform Act, Employer’s prior insurer is not a party to this action, but was allowed by the
trial court to present an argument in support of Employee’s position through an amicus curiae brief.
                                                  3
way that does not favor either the employee or the employer. Tenn. Code Ann. § 50-6-
116 (2017).

                                             Analysis

       When an employee suffers a work-related injury, the employer is required to
provide, “free of charge to the employee, such medical and surgical treatment . . . made
reasonably necessary by accident as defined in this chapter.” Tenn. Code Ann. § 50-6-
204(a)(1)(A) (2017). To constitute a compensable injury, the accident must “aris[e]
primarily out of and in the course and scope of employment.” Tenn. Code Ann. § 50-6-
102(14)(A) (2017). Moreover, an employer is responsible for providing medical benefits
“only if it has been shown to a reasonable degree of medical certainty” that the work
accident “contributed more than fifty percent (50%) in causing the . . . disablement or
need for medical treatment, considering all causes.” Tenn. Code Ann. § 50-6-
102(14)(C).

       However, we have previously noted that an expert need not couch his or her
causation opinions using any specific phraseology. In Panzarella v. Amazon.com, No.
2015-01-0383, 2017 TN Wrk. Comp. App. Bd. LEXIS 30, at *14 (Tenn. Workers’
Comp. App. Bd. May 15, 2017), we explained as follows:

       We do not conclude that a physician must use particular words or phrases
       included in the statutory definition of “injury” to establish the requisite
       medical proof to succeed at trial. Thus, 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. What
       is necessary, however, is 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.

       When evaluating expert medical proof, a trial court “has the discretion to
determine which testimony to accept when presented with conflicting expert opinions.”
Bass v. The Home Depot U.S.A., Inc., No. 2016-06-1038, 2017 TN Wrk. Comp. App. Bd.
LEXIS 36, at *9 (Tenn. Workers’ Comp. App. Bd. May 26, 2017). Also, in
circumstances where the treating physician is selected from a panel pursuant to section
50-6-204(a)(3), that physician’s opinion as to causation “shall be presumed correct,” but
such a presumption “shall be rebuttable by a preponderance of the evidence.” Tenn.
Code Ann. § 50-6-102(14)(E). 3


3
 The record is silent as to whether Dr. Maguire was “selected by the employee from the employer’s
designated panel of physicians” as required by section 102(14)(E). Thus, the trial court was unable to
determine whether Dr. Maguire’s opinion as to causation was entitled to a presumption of correctness.
                                                  4
       Finally, at an expedited hearing, an employee need not establish the necessary
elements of his or her claim by a preponderance of the evidence, but must instead come
forward with sufficient proof from which the trial court can conclude he or she is likely to
prevail on the merits of the claim at trial. See 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).

       Here, the issue is not whether Employee is entitled to medical care, but which
insurer is responsible. Both experts opined that the current need for surgery was caused
by a work-related condition, but the experts disagree as to whether the most recent work
injury or the prior work injury primarily caused the need for treatment. Riverport argues
that: (1) the trial court misconstrued Dr. Maguire’s causation opinion; and (2) Dr.
Maguire’s opinion was more persuasive than that of Dr. Kennedy. We disagree and
conclude the preponderance of the evidence supports the trial court’s determination.

        With respect to Riverport’s contention that the trial court erred in concluding Dr.
Maguire “contradicts himself,” we note that in his June 19, 2017 report, Dr. Maguire
stated, “I do not know whether [his L5-S1 condition] arose in physical therapy or whether
[it] predated that.” Yet, in his September 26, 2017 report, he stated, “[i]t is still my
opinion that his problem at the [L]5-[S]1 level is related to the surgery at [L]4-5.” Within
a three month period, Dr. Maguire offered differing opinions regarding the cause of
Employee’s L5-S1 symptoms. Given this evidence, we cannot conclude the trial court
erred in not relying on Dr. Maguire’s causation opinion.

        As to Riverport’s argument that Dr. Maguire’s opinion was entitled to greater
weight, we agree that Dr. Maguire had a more extensive history with Employee and,
unlike Dr. Kennedy, saw him numerous times as a patient. Yet this factor, standing
alone, does not compel the result Riverport seeks. The trial court weighed these factors,
considered each expert opinion, analyzed the objective radiographic test results,
evaluated Employee’s lay testimony as to the occurrence during physical therapy, and
concluded Dr. Kennedy’s opinion was the more likely explanation. We must presume
the trial court’s factual findings are correct, unless the preponderance of the evidence is
otherwise. See Tenn. Code Ann. § 50-6-239(c)(7). Consequently, we conclude the
evidence does not preponderate against the trial court’s determination that Employee is
likely to prevail at trial with respect to the issue of causation as to the L5-S1 condition.

                                       Conclusion

      For the foregoing reasons, the decision of the trial court is affirmed and the case is
remanded.




                                             5
                      TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                        WORKERS’ COMPENSATION APPEALS BOARD

Paul White                                                    )     Docket No. 2017-03-1291
                                                              )
v.                                                            )     State File No. 63359-2016
                                                              )
G&R Trucking, Inc., et al.                                    )
                                                              )
                                                              )
Appeal from the Court of Workers’                             )
Compensation Claims                                           )
Lisa A. Lowe, Judge                                           )

                                       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 7th day of August, 2018.

 Name                              Certified   First Class   Via   Fax      Via     Sent to:
                                   Mail        Mail          Fax   Number   Email

 Joshua J. Bond                                                              X      jbond@hdclaw.com
 Nicholas S. Akins                                                           X      nakins@morganakins.com
 David E. Goudie                                                             X      dgoudie@morganakins.com
 Lisa A. Lowe, Judge                                                         X      Via Electronic Mail
 Kenneth M. Switzer, Chief Judge                                             X      Via Electronic Mail
 Penny Shrum, Clerk, Court of                                                X      Penny.Patterson-Shrum@tn.gov
 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
