                                                                                     FILED
                                                                                   Mar 02, 2020
                                                                                   02:17 PM(CT)
                                                                               TENNESSEE COURT OF
                                                                              WORKERS' COMPENSATION
                                                                                     CLAIMS




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

MICHAEL HAYES,                                 )       Docket No. 2019-07-0251
         Employee,                             )
v.                                             )
JACKSON GOLF & COUNTRY                         )
CLUB,                                          )       State File No. 51271-2017
         Employer,                             )
And,                                           )
TECHNOLOGY INS. CO.,                           )
         Carrier.                              )       Judge Allen Phillips


        COMPENSATION ORDER FOR PERMANENT PARTIAL DISABILITY
                          BENEFITS


       The issue in this case is the amount of permanent partial disability benefits for Mr.
Hayes, a tennis professional. He claimed it was six percent, and the Club claimed it was
three. After considering the evidence, the Court holds Mr. Hayes sustained a six-percent
permanent partial disability to the body as a whole.

                                     History of Claim

       Mr. Hayes began playing tennis at age five and turned professional at eighteen. He
was once the number-six ranked player in his native England and competed for his
country in international events. Over the years, he played against top-ranked
professionals.

       Mr. Hayes played collegiately at the University of Memphis. While there, he
learned of an opening for a tennis professional at the Club and applied. Mr. Hayes was
hired by Jay Veazey, the Club's head professional.

       On May 11, 2017, Mr. Hayes felt a "tweak" in his right shoulder while serving a
ball. The incident so affected his play that he reported it to Mr. Veazey, who
recommended that Mr. Hayes see Dr. Kelly Pucek, an orthopedic surgeon who had

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previously treated him for a shoulder injury. Mr. Hayes took Mr. Veazey's advice, and
the Club later accepted Dr. Pucek as the authorized treating physician.

       Testifying by deposition, Dr. Pucek said Mr. Hayes reported the "sudden onset of
pain" while serving and that he sensed a loss of "some velocity" on his serves. Dr. Pucek
diagnosed impingement syndrome and a possible labral tear, later confirmed by an MRI.
Dr. Pucek surgically repaired the tear and performed a sub-acromial decompression for
the impingement. He testified that shoulder surgery on a tennis professional is "more
concerning" than on an attorney, for example, because of the overhead activity required
to play tennis.

       Two months after the surgery, Dr. Pucek found Mr. Hayes's motion was not
improving, but he added that labral repair patients are "always a little slower" in
recovering motion. However, after two more months, he found Mr. Hayes lacked only
some external rotation of his shoulder, while all other planes of motion were "in pretty
good shape." So, he released Mr. Hayes to regular duty. Mr. Hayes returned to work, but
for the next two years voiced complaints about his shoulder, which Dr. Pucek described
as "concerning," and possibly "long term."

        Regarding his impairment rating, Dr. Pucek testified that the AMA Guidelines to
the Evaluation ofPermanent Impairment, 61h Edition, allow for a "rating based on motion
or the surgical procedure." He thought that a rating based on the surgical procedure was
more appropriate because Mr. Hayes lacked only some external rotation. Thus, under the
diagnosis-based method, Dr. Pucek assigned Mr. Hayes two-percent permanent
impairment to his upper extremity for the labral repair and one-percent impairment for
the impingement. These combined for a rating of three percent to the upper extremity,
which converted to two-percent impairment to body as a whole. However, after his
deposition, Dr. Pucek corresponded with Mr. Hayes's counsel stating that had he been
asked, he would have increased the rating to three percent to the body because of Mr.
Hayes's ongoing complaints. He based his increased rating on "modifiers" found in Table
15-5 of the Guides, a table addressing several diagnoses including labral tears, but did not
elaborate on what modifiers he used. Nevertheless, the parties agreed to the change in
rating.

       Mr. Hayes saw Dr. Samuel Chung for an independent medical evaluation (IME).
Dr. Chung testified that Mr. Hayes was thirty-two years old and had taught tennis at the
Club for seven years. He said Mr. Hayes reported "acute" pain when serving a ball and
then noted "very little force behind" his serve. He noted Mr. Hayes complained of
continued difficulty with his serve after surgery, describing that he could not fully serve
overhead but rather used a more "sideways" motion. At the time of the IME, Dr. Chung
said Mr. Hayes thought his motion was "if anything ... getting worse."



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       Dr. Chung confirmed the veracity of those complaints when he examined Mr.
Hayes, finding "a mild degree of motion loss in almost all planes of his right shoulder."
Dr. Chung specifically documented the actual degrees of Mr. Hayes's motion in
extension, flexion, adduction, abduction, and internal rotation and, because of the losses
in those planes, thought "range of motion [was] the biggest factor" of impairment. Thus,
Dr. Chung used Table 15-34 of the Guides, titled "Shoulder Range of Motion," to assess
six-percent impairment to the body as a whole. He explained that "the main rationale for
me using the range of motion is really directed by the Guide's [sic] direction because if
there is an injury and recovery of a certain diagnosis, unless it's completely normal
motion, we ... are, you know asked to use the range of motion. And that's what I did."

       Mr. Hayes was the only witness at the hearing. He explained his injury continues
to affect his service velocity, describing a decrease from 115 to 80 miles per hour.
Because of that, he obtained a machine that simulates service. Further, he said he hoped
he might play in more tournaments in the future, but now he cannot. Finally, he testified
that he reduced his on-court instruction time from approximately forty hours per week
down to roughly thirty. Because of Mr. Hayes's lay testimony, his counsel argued that
Dr. Chung's rating was more in line with the true effects of the injury.

        For its part, the Club objected to the relevance of Mr. Hayes's testimony regarding
the ill effects of his injury, asserting instead that the Court should focus on the ratings.
The Court overruled those objections.

       As to the ratings themselves, the Club argued Dr. Pucek, as the authorized treating
physician, is presumed correct, and that Mr. Hayes did not rebut that presumption by a
preponderance of the evidence. See Tenn. Code Ann. § 50-6-204(k)(7) (2019). In
support, it pointed to a section of the Guides, Chapter 15, page 461, which provides the
diagnosis-based method is the "method of choice for calculating impairment," and that
"range of motion is used principally as a factor in the Adjustment Grid." Finally, the Club
argued that the Guides make no distinctions between occupations, whether a professional
tennis player or an attorney, the comparative dichotomy used by Dr. Pucek.

                       Findings of Fact and Conclusions of Law

       Mr. Hayes must establish the extent of his permanent disability by a
preponderance of the evidence. Tenn. Code Ann. § 50-6-239(c)(6). The extent of his
disability is a question of fact, determined by a consideration of all of the evidence,
including both expert and lay testimony. Duignan v. Stowers Mach. Corp., No. E2018-
01120-SC-R3-WC, 2019 Tenn. LEXIS 224, at *22 (Tenn. Workers' Comp. Panel June
19, 2019).




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       When considering the expert proof, the Court considers 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 Home Depot
USA, Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 36, at *9 (May 26, 2017).

        Applying those factors here, the Court first finds both doctors qualified to assess a
rating; Dr. Pucek is a board-certified orthopedic surgeon, and Dr. Chung is a specialist in
physical medicine and rehabilitation, as well a certified independent medical examiner.
They are on equal footing.

        Second, as to the circumstances of their evaluation, the Court finds Dr. Pucek had
the most contact with Mr. Hayes, seeing him on many occasions over two years as
opposed to Dr. Chung's one-time evaluation. It seems reasonable the physician having
greater contact with the employee would have the advantage to provide a more accurate
opinion. Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 677 (Tenn. 1991). However,
Dr. Chung specifically detailed Mr. Hayes's loss of motion using a methodology he said
is dictated by the Guides. Conversely, though Dr. Pucek agreed the Guides allow a range-
of-motion loss rating, he did not document any measurements of Mr. Hayes's shoulder
motion. The Court takes judicial notice that the Guides provide that if more than one
method of rating exists, then the evaluator should use the method producing the higher
rating. Guides, page 2, Table 2-1 n.12. The Court takes further notice that Table 15-5, the
table used by Dr. Pucek for his diagnosed-based rating, provides that range of motion
may be used as an alternative to the diagnosis-based rating. Guides, page 405, Table 15-
5, footnote.

       Third, the information available to the experts in assessing impairment supports
Dr. Chung. As noted, he documented his specific measurements in all planes of motion.
Contrast this with Dr. Pucek's testimony that most planes of motion were "in pretty good
shape."

      Finally, the factor of which information was important to other experts again
supports Dr. Chung. Dr. Pucek expressed his concern with Mr. Hayes's ongoing
complaints and surmised they might become long-term. Even more compelling was Dr.
Chung's explanation of how lost motion affects a professional tennis player.

       In support of its position that Dr. Pucek was correct, the Club cited Marshall v.
Pinnacle, No. W2015-00382-SC-R3-WC, 2016 Tenn. LEXIS 751 (Tenn. Workers'
Comp. Panel Oct. 27, 2016). There, a Workers' Compensation Panel contrasted the
impairment rating of a Medical Impairment Rating Registry (MIRR) physician, whose
rating also carries a presumption of correctness, with that of an IME physician like Dr.
Chung. The Panel found the trial court erred in finding the IME rating rebutted the MIRR
physician by clear and convincing evidence. Specifically, that IME physician testified he


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did not follow the directives of the Guides to assess the rating because he disagreed with
the Guides's recommended methodology.

       Marshall is distinguishable. Unlike the IME physician there, Dr. Chung testified
he did follow the Guides's directives when assessing his rating. Moreover, Dr. Pucek,
whose rating is entitled to a presumption of correctness, agreed the Guides allow use of
range-of-motion. Thus, the only expert proof here is that the Guides allow a range-of-
motion impairment, and the only material difference is that Dr. Chung actually measured
and documented the lost motion. Moreover, the standard to rebut Dr. Pucek is lower than
the applicable standard in Marshall, a preponderance as opposed to clear and convincing
evidence.

       Turning to the lay testimony, the Court is guided by longstanding authority that
the employee's own assessment of his physical condition and resulting disability is
competent testimony not to be disregarded. Orrick v. Bestway Trucking, Inc., 184 S.W.3d
211, 217 (Tenn. 2006). Thus, the Court respectfully disagrees with the Club's assertion
that the Court's focus remain primarily on the ratings. Here, Mr. Hayes's testimony is
particularly important when he described the detrimental effects of his injury.

        Namely, Mr. Hayes said he began playing tennis at age five, twenty-seven years
ago, and became a professional by age eighteen, playing at an international level. His
level of experience provides him keen insight into how his injury affects his play. He
described his loss of service velocity, approximately thirty-five miles per hour slower
post-injury, and he doubted he could play in tournaments. Importantly, his injury caused
him to lighten his work schedule by ten hours per week, a loss of earning capacity
directly reflective of the extent of disability. This lay testimony supports Dr. Chung's
rationale for the higher rating.

        Finally, the Court finds Mr. Hayes credible. His testimony was calm, self-assured,
confident, forthcoming, reasonable, and honest. See Kelly v. Kelly, 445 S.W.3d 685, 694-
695 (Tenn. 2014) (discussing indicia of witness credibility). He was consistent in his
history and resolute in his complaints, and he neither exaggerated nor embellished his
symptoms. Instead, the Court was convinced he provided an honest assessment of the
effects of his injury.

       In totality, the Court holds Mr. Hayes rebutted the presumption of correctness
attached to Dr. Pucek's rating and that Dr. Chung's rating is the more accurate. It follows
that Mr. Hayes is entitled to an award of six-percent permanent partial disability to the
body as a whole under Tennessee Code Annotated section 50-6-207(3), calculated as six
percent times 450 weeks times the stipulated compensation rate of$888.00, or $23,976.

       IT IS, THEREFORE, ORDERED as follows:


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  1. Jackson Country Club shall pay Mr. Hayes permanent partial disability benefits of
     $23,976 under Tennessee Code Annotated section 207(3)(A) based on Dr.
     Chung's six-percent permanent partial impairment rating to the body as a whole.

  2. Jackson Country Club will continue to pay for reasonable and necessary future
     medical benefits related to the injury under Tennessee Code Annotated section 50-
     6-204(a)(l)(a). Dr. Pucek remains the authorized treating physician.
  3. The Court assesses the $150.00 filing fee to Jackson Country Club to be paid to
     the Court Clerk under Tennessee Compilation Rules and Regulations 0800-02-21-
     .06 (August, 20 19) within five business days of this order becoming final, and for
     which execution may issue if necessary.
  4. Jackson Country Club shall file a Statistical Data Form (SD-2) with the Court
     Clerk within five business days of the date this order becomes final.
  5. Absent an appeal, this order shall become final thirty days after issuance.


ENTERED March 2, 2020.




                                                                   pensation Claims


                                     APPENDIX

  Exhibits:
  1. First Report of Work Injury
  2. Deposition of Dr. Kelly Pucek
  3. Deposition ofDr. Samuel Chung
  4. Collective Medical Records

  Technical record:
  1. Petition for Benefit Determination
  2. Dispute Certification Notice (DCN)
  3. Request for Scheduling Hearing
  4. Scheduling Order
  5. Post-Discovery DCN
  6. Pre-Compensation Hearing Statement


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       7. Employer's Compensation Hearing Brief
       8. Employee's Witness and Exhibit List



                             CERTIFICATE OF SERVICE

      I certify that a copy of this Compensation Hearing Order was sent as indicated on
March 2, 2020.

Name                          Certified   First     Via     Service Sent To:
                               Mail       Class    Email
                                          Mail
Charles M. Purcell and                                X    chuck@gsclegal.com
Katherine C. Wallace,                                      katie@Qsclegal.com
Attorneys for Employee
Rosalia Fiorello,                                    X     rfiorello@wimberlylawson.com
Attorney for Employer




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