          IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                         AT MURFREESBORO

JOHN MILLER                                   )     Docket No.: 2015-05-0158
         Employee,                            )
v.                                            )     State File No.: 69295-2014
                                              )
LOWE’S HOME CENTERS, INC.                     )     Date of Injury: August 31, 2014
         Employer,                            )
And                                           )     Judge Dale Tipps
                                              )
SEDGWICK CMS                                  )
        Insurance Carrier.                    )


      EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS


        THIS CAUSE came to be heard before the undersigned Workers’ Compensation
Judge on September 8, 2015, upon the Request for Expedited Hearing filed by Jon Miller,
the Employee, on August 10, 2015, pursuant to Tennessee Code Annotated section 50-6-
239 (2014) to determine if the Employer, Lowe’s Home Centers, Inc. (Lowe’s), is
obligated to provide medical benefits. Considering the positions of the parties, the
applicable law, and all of the evidence submitted, the Court concludes Mr. Miller is
entitled to the requested medical treatment.

                                           Issues

       The Dispute Certification Notice (DCN) issued in this claim indicated a number of
issues. The Court did not decide issues marked on the DCN unless presented for
determination at the Expedited Hearing. The parties presented the following issues for
determination at the Expedited Hearing:

      Whether Mr. Miller’s left-hip condition arose primarily out of and in the course
and scope of his employment with Lowe’s; and,

       If so, whether Mr. Miller is entitled to additional medical treatment for his left-hip
condition.


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                                  Evidence Submitted

       The Court admitted into evidence the exhibits below:

          1. Transcript of Dr. Joseph Wade’s Deposition of August 25, 2015, including
             Exhibits.

       The Court designated the following as the technical record:

           Petition for Benefit Determination (PBD), May 20, 2015
           DCN, June 19, 2015
           Request for Expedited Hearing, August 10, 2015.

      The Court did not consider attachments to the above filings unless admitted into
evidence during the Expedited Hearing. The Court considered factual statements in the
above filings or any attachments thereto as allegations unless established by the evidence.

       Mr. Miller provided in-person testimony.

                                    History of Claim

       Mr. Miller is a sixty-two-year-old resident of Marshall County, Tennessee. (See
PBD). He testified he worked in the delivery department for Lowe’s for over two years
before his work accident. Mr. Miller’s duties included loading and unloading appliances
and other construction materials on and off delivery trucks. A large part of his work
involved moving and installing appliances at customers’ homes using a hand dolly. Mr.
Miller described work that involved a considerable amount of heavy lifting. He
repeatedly denied ever having problems or pain in his left hip before his workplace fall.

       Mr. Miller testified that, on August 31, 2014, he was moving a stove on a dolly
when he stepped back over a pallet jack and fell on his left side. He hit his head on a
metal beam and lost consciousness. Lowe’s provided medical benefits, including
treatment for his left hip with Dr. Wade. However, Lowe’s later denied his left-hip
claim.

     Mr. Miller stated his hip hurts every day. He has difficulty sitting and walking.
He now walks with a limp, and his pain causes him to have difficulty sleeping.

       Dr. Wade first saw Mr. Miller on November 5, 2014, for his lumbar spine. Mr.
Miller also complained of left shoulder pain and left-leg pain. On December 2, 2014, Dr.
Wade ordered an x-ray of Mr. Miller’s hip. He diagnosed severe osteoarthritis of the left
hip and recommended a hip replacement. Dr. Wade noted on April 14, 2015, Mr.
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Miller’s osteoarthritic hip “has been exacerbated by his work injury.” (Wade depo., Ex.
3.)

       Mr. Miller’s attorney sent Dr. Wade a letter on February 19, 2015, asking a
number of questions. Dr. Wade’s checkmark responses reflect his opinion that: Mr.
Miller’s workplace fall caused his condition to become symptomatic; he would not need
the recommended surgery if he had no pain or symptoms in his hip; and surgery was
needed because of the pain caused by the work injury, although he would have eventually
needed surgery without the injury. (Wade depo., Ex. 2.)

       On May 12, 2015, Lowe’s attorney sent Dr. Wade another letter requesting his
opinions on causation. Dr. Wade’s checkmark responses show he believed Mr. Miller’s
workplace accident temporarily exacerbated his preexisting condition but did not
permanently aggravate the condition or cause any permanent anatomical change. (Wade
depo., Ex. 4.)

        Dr. Wade gave his deposition in this matter on August 25, 2015. He confirmed
Mr. Miller had preexisting arthritis, which became “much more symptomatic” after his
fall. (Wade depo. at 11.) The mechanism of the increase in symptoms is not clear, but it
could be related to increased strain on the hip because of the back injury or to the
cartilage scraping or grating during the fall. Id. at 11-12. Dr. Wade also stated Mr.
Miller’s current pain was the reason for his surgery recommendation, although Mr. Miller
would likely have needed surgery at some time in the future even if the accident had not
occurred. Id.

        On cross-examination, Dr. Wade confirmed his responses to the May 12, 2015
letter from Lowe’s attorney. Id. at 14-15. On redirect, he stated that, because Mr.
Miller’s symptoms have persisted six to twelve months, he would now characterize Mr.
Miller’s condition as a chronic exacerbation. Id. at 17.

       Mr. Miller filed a PBD on May 20, 2015, seeking medical benefits. The parties
did not resolve the disputed issues through mediation, and the Mediation Specialist filed
the DCN on June 19, 2015.

                                Mr. Miller’s Contentions

       Mr. Miller contends he sustained a work-related injury to his left hip because of
his workplace fall on August 31, 2014. He argues that, although he had a preexisting
degenerative condition and would likely need surgery in the future, the pain resulting
from his accident is the only reason surgery is necessary at this time. Mr. Miller relies on
Trosper v. Armstrong Wood Products, Inc., 273 S.W.3d 598 (Tenn. 2008), in support of
his argument that this aggravation of his preexisting arthritis is compensable. He seeks


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an order requiring Lowe’s to authorize the hip-replacement surgery recommended by Dr.
Wade.

                       Lowe’s Home Centers, Inc.’s Contentions

       Lowe’s contends the aggravation of Mr. Miller’s preexisting condition is not
compensable. It argues he suffered merely a non-compensable increase in pain. Lowe’s
further contends Mr. Miller’s hip claim is not compensable because he has not proven
that any aggravation to the preexisting condition is permanent.

                       Findings of Fact and Conclusions of Law

                                        Standard Applied

        The Workers’ Compensation Law shall not be remedially or liberally construed in
favor of either party but shall be construed fairly, impartially and in accordance with
basic principles of statutory construction favoring neither the employee nor
employer. Tenn. Code Ann. § 50-6-116 (2014). An employee need not prove every
element of his or her claim by a preponderance of the evidence in order to obtain relief at
an expedited hearing. McCord v. Advantage Human Resourcing, No. 2014-06-0063,
2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers’ Comp. App. Bd.
Mar. 27, 2015). At an expedited hearing, an employee has the burden to 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. Id.

                                     Factual Findings

       Mr. Miller suffered a fall in the course and scope of his employment on August
31, 2014. At the time of his fall, he had preexisting osteoarthritis in his left hip but had
no significant left hip symptoms or problems. As a result of the accident, Mr. Miller now
suffers from pain that interferes with his daily activities.

                                   Application of Law to Facts

       Tennessee Code Annotated section 50-6-102(14)(A) (2014) provides:

       An injury is “accidental” only if the injury is caused by a specific incident,
       or set of incidents, arising primarily out of and in the course and scope of
       employment, and is identifiable by time and place of occurrence, and shall
       not include the aggravation of a preexisting disease, condition or ailment
       unless it can be shown to a reasonable degree of medical certainty that the
       aggravation arose primarily out of and in the course and scope of
       employment.

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         It is undisputed Mr. Miller had a preexisting degenerative condition in his left hip.
It is also clear from the medical proof that his workplace fall resulted in the onset of
symptoms in the hip. The question to be resolved is whether this constitutes the
statutorily-required “aggravation of a preexisting disease.”

        As noted by the Tennessee Supreme Court, “the precise contours of the rule [of
aggravation] have not always been articulated in a consistent manner.” Trosper, 273
S.W.3d at 605. This inconsistency is apparent in the cases cited by the parties, some of
which seem to require an “anatomical change” of the preexisting condition. The Court is
guided by the explicitly-stated intent of Trosper to provide a clear framework for the trial
courts:

         We reiterate that the employee does not suffer a compensable injury where
         the work activity aggravates the pre-existing condition merely by
         increasing the pain. However, if the work injury advances the severity of
         the pre-existing condition, or if, as a result of the pre-existing condition, the
         employee suffers a new, distinct injury other than increased pain, then the
         work injury is compensable.1

Id. at 607. Further, as noted by Justice Koch in his dissent, evidence that a preexisting
condition has advanced may take several forms, including evidence of an anatomical
change. “However, we have never held that proving the existence of an anatomical or
physical change is the only way to establish that work-related activities caused a
progression in an employee’s preexisting condition.” Id. at 616.

        In White v. Werthan Industries, 824 S.W.2d 158, 159 (Tenn. 1992), the employee
had a back injury and was considering surgery when he suffered a subsequent fall at
work. The fall significantly increased his pain, which caused his doctor to perform
surgery right away. Id. Although there was no medical proof that the preexisting disk
herniation had worsened, the Tennessee Supreme Court focused on the employee’s
course of treatment and determined that, because his surgery became necessary only as a
result of his workplace fall, the injury was compensable. Id. at 160-161.


1
  The Court notes that the Trosper decision included a reference to the “equitable construction” provision of an
earlier version of the statute. However, the Supreme Court did not base its framework for analyzing the
compensability of aggravation of preexisting conditions on the doctrine of equitable construction. “Reliance on
precedent from the Tennessee Supreme Court is appropriate unless it is evident that the Supreme Court’s decision or
rationale relied on a remedial interpretation of pre-July 1, 2014 statutes, that it relied on specific statutory language
no longer contained in the Workers’ Compensation Law, and/or that it relied on an analysis that has since been
addressed by the general assembly through statutory amendments.” McCord v. Advantage Human Resourcing, No.
2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *13 n.4 (Tenn. Workers’ Comp. App. Bd. Mar. 27,
2015).


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       Dr. Wade opined Mr. Miller’s work accident caused the onset of his symptoms,
and those symptoms made hip-replacement surgery necessary at this time. Although Dr.
Wade felt it was likely Mr. Miller would have needed the surgery at some point in the
future, he acknowledged it was speculative to try to predict when that would have
occurred. Further, unlike the employee in White, who knew about his condition and was
already considering surgery, Mr. Miller had no symptoms and was unaware of his hip
condition before his accident. The Court therefore finds that Mr. Miller appears likely to
establish he is entitled to medical treatment pursuant to Tennessee Code Annotated
section 50-6-204 (2014).

       Lowe’s argues Mr. Miller is not entitled to medical treatment because he has not
established that the aggravation of his preexisting condition is permanent.2 It relies on
Milligan v. Ten-State, Inc., 1998 Tenn. LEXIS 69, at *5 (Tenn. Workers’ Comp. Panel
Feb. 20, 1998), which stated: “[W]hile aggravation of a preexisting physical condition is
compensable, in order to recover benefits for permanent disability based upon such
aggravation, the aggravation must be permanent, and not the mere normal or expected
progress of the preexisting condition.”

       This argument is unpersuasive, as the issue in Milligan was an employee’s claim
for permanent disability benefits and not, as in Mr. Miller’s case, a request for medical
treatment. The more relevant authority is Foreman v. Automatic Systems, Inc. and
Liberty Mutual Insurance Company, 272 S.W.3d 560 (Tenn. 2008). In Foreman, the
Tennessee Supreme Court affirmed a finding of temporary disability when the employee
was unable to prove permanent injury through medical proof of anatomic change. The
treating physician in Foreman stated, “I thus feel her work-related injury exacerbated her
symptoms, but I do not see that there has been any anatomic change in relation to this.”
Id. at 575. The Supreme Court recognized that increased pain without any permanent
aggravation, while not compensable as a permanent injury, nevertheless entitled an
employee to temporary disability and medical benefits during the period of the temporary
aggravation.

       The Court finds that, pursuant to Foreman, Mr. Miller is eligible for medical
benefits without a showing that his injury resulted in permanent anatomic change.


    IT IS, THEREFORE, ORDERED as follows:

     1. Medical care for Mr. Miller’s left-hip injury shall be paid and Lowe’s or its
        workers’ compensation carrier shall provide Mr. Miller with medical treatment for
        these injuries as required by Tennessee Code Annotated section 50-6-204 (2014),

2
  Dr. Wade initially indicated Mr. Miller’s preexisting condition was temporarily exacerbated, but later testified in
his deposition the exacerbation was chronic.

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      to be initiated by Lowe’s or its workers’ compensation carrier authorizing the
      surgery recommended by Dr. Wade. Medical bills shall be furnished to Lowe’s or
      its workers’ compensation carrier by Mr. Miller or medical providers.

   2. This matter is set for an Initial (Scheduling) Hearing on November 18, 2015, at
      9:00 a.m.

   3. 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) (2014). 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 may result in a
      penalty assessment for non-compliance.

   4. For questions regarding compliance, please contact the Workers’ Compensation
      Compliance Unit via email WCCompliance.Program@tn.gov or by calling (615)
      253-1471 or (615) 532-1309.


      ENTERED this the 16th day of September, 2015.


                                _____________________________________
                                Dale Tipps, Judge
                                Court of Workers’ Compensation Claims

Initial (Scheduling) Hearing:

      An Initial (Scheduling) Hearing has been set with Judge Dale Tipps, Court of
Workers’ Compensation Claims. You must call 615-741-2112 or toll-free at 855-
874-0473 to participate.

       Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation. All conferences are set using Central Time (CT).


Right to Appeal:

      Tennessee Law allows any party who disagrees with this Expedited Hearing Order

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to appeal the decision to the Workers’ Compensation Appeals Board. To file a Notice of
Appeal, you must:

   1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal.”

   2. File the completed form with the Court Clerk within seven business days of the
      date the Workers’ Compensation Judge entered the Expedited Hearing Order.

   3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.

   4. The appealing party is responsible for payment of a filing fee in the amount of
      $75.00. Within ten calendar days after the filing of a notice of appeal, payment
      must be received by check, money order, or credit card payment. Payments can be
      made in person at any Bureau office or by United States mail, hand-delivery, or
      other delivery service. In the alternative, the appealing party may file an Affidavit
      of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
      fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
      of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
      will consider the Affidavit of Indigency and issue an Order granting or denying
      the request for a waiver of the filing fee as soon thereafter as is
      practicable. Failure to timely pay the filing fee or file the Affidavit of
      Indigency in accordance with this section shall result in dismissal of the
      appeal.

   5. The parties, having the responsibility of ensuring a complete record on appeal,
      may request, from the Court Clerk, the audio recording of the hearing for the
      purpose of having a transcript prepared by a licensed court reporter and filing it
      with the Court Clerk within ten calendar days of the filing of the Expedited
      Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
      the evidence within ten calendar days of the filing of the Expedited Hearing
      Notice of Appeal. The statement of the evidence must convey a complete and
      accurate account of what transpired in the Court of Workers’ Compensation
      Claims and must be approved by the workers’ compensation judge before the
      record is submitted to the Clerk of the Appeals Board.

   6. If the appellant elects to file a position statement in support of the interlocutory
      appeal, the appellant shall file such position statement with the Court Clerk within
      three business days of the expiration of the time to file a transcript or statement of
      the evidence, specifying the issues presented for review and including any
      argument in support thereof. A party opposing the appeal shall file a response, if
      any, with the Court Clerk within three business days of the filing of the appellant’s
      position statement. All position statements pertaining to an appeal of an
      interlocutory order should include: (1) a statement summarizing the facts of the

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        case from the evidence admitted during the expedited hearing; (2) a statement
        summarizing the disposition of the case as a result of the expedited hearing; (3) a
        statement of the issue(s) presented for review; and (4) an argument, citing
        appropriate statutes, case law, or other authority.




                             CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Expedited Hearing Order
Granting Medical Benefits was sent to the following recipients by the following methods
of service on this the 16th day of September, 2015.


 Name                       Certified   Via        Via Service sent to:
                             Mail       Fax       Email
 Jill Draughon                                     X    jdraughon@hughesandcoleman.com
 Nancy Steer                                       X    Nancy.steer@leitnerfirm.com



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




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