                                                                                      FILED
                                                                                    Allgust 1,.2018

                                                                                     TNCOURTOf
                                                                                WORKI.RS 'COllPENSATION
                                                                                        CLAIMS

                                                                                      Tinu~ 3 :05 Pll



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

ROBERT DUMAS,                                   )   Docket No. 2016-08-1353
        Employee,                               )
v.                                              )
REPUBLIC SERVICES,                              )   State File No. 58564-2014
         Employer,                              )
And                                             )
OLD REPUBLIC INSURANCE,                         )   Judge Deana C. Seymour
         Insurer.                            )


                        COMPENSATION HEARING ORDER


       The parties agreed that Robert Dumas sustained a compensable right-shoulder
injury at Republic Services (Republic) on July 31, 2014, but they disputed the extent of
his permanent disability. The Court heard the issue at a Compensation Hearing on June
29, 2018, and holds Mr. Dumas is entitled to permanent total disability benefits (PTD).
                                       History of Claim
       Mr. Dumas worked as a trash collector for Republic. On July 31, he grabbed a
large tree limb and felt a pop in his right shoulder, followed by severe pain. Republic
provided Mr. Dumas a panel of physicians from which he chose Dr. Thomas Giel.
      Dr. Giel surgically repaired three rotator cuff tendons, reattached a biceps tendon,
and removed excess bone (a distal clavicle excision) in the shoulder to reduce pain.
However, Mr. Dumas's pain and stiffness persisted.
       Dr. Giel ordered an MRI and EMG. The MRI revealed intact rotator cuff tendons,
a degenerative labrum tear and inflammation. The EMG was normal. Dr. Giel prescribed
a month of physical and aqua therapy.
      Despite therapy, his pain and stiffness continued, so Dr. Giel opted to manipulate
Mr. Dumas's shoulder under anesthesia to remove scar tissue and improve range of
motion. The manipulation was unsuccessful. Having exhausted treatment options, Dr.

                                            1
    Giel ordered a functional capacity evaluation that revealed Mr. Dumas did not give a full
    and consistent effort.
            Dr. Giel released Mr. Dumas at maximum medical improvement on August 20,
    2015, and assessed a six-percent permanent impairment to the body as a whole for only
    the distal clavicle excision. He deferred to the doctors who later saw him to determine his
    range of motion. Dr. Giel permanently restricted Mr. Dumas from lifting over twenty
    pounds with an additional two pounds above the shoulder lifting restriction. Dr. Giel
    certified he could not return to his prior job as a trash collector due to his permanent
    restrictions. He encouraged Mr. Dumas to seek a second opinion.
       Mr. Dumas asked Republic for a second opinion, and it provided one with Dr. Jay
Saenz on August 11, 2016. Dr. Saenz found stiffness, crepitus, and atrophy of Mr.
Dumas's right shoulder. He also stated that his diabetes increased his risk of more severe
permanent stiffness and scar tissue formation. Dr. Saenz determined Mr. Dumas's work
injury left him with "significant dysfunction" and pain. He commended Dr. Giel on his
treatment and advised against additional surgery. Dr. Saenz recommended restricting Mr.
Dumas from lifting over ten pounds and from performing repetitive overhead activity.
        Three years after the accident, Dr. Apurva Dalal independently evaluated Mr.
Dumas at the request of his counsel. He diagnosed significant loss of right-shoulder
motion with severe arthritis and adhesive capsulitis. Dr. Dalal determined only a reverse
shoulder joint replacement might correct the problems. Because the injury included
numerous damaged tendons, Dr. Dalal believed rating the distal clavicle -excision alone
was insufficient. Rather, he considered the loss of range of motion and assessed a
fourteen percent permanent impairment to the body as a whole under the AMA Guides. 1
He thought Mr. Dumas re-tore a rotator cuff tendon and the labrum but did no objective
tests to verify. Dr. Dalal noted he also began experiencing left-shoulder pain.
        Afterward, Mr. Dumas retained Dr. Saenz for an impairment rating evaluation. He
found Mr. Dumas had persistent pain, atrophy, and substantial dysfunction in his
shoulder. Dr. Saenz used range-of-motion measurements to calculate permanent
impairment, since a "rotator cuff tear complicated by adhesive capsulitis is not a specific
diagnosis" under the AMA Guides. Based on loss of motion, Dr. Saenz assessed a ten-
percent permanent impairment to the body as a whole. He recommended a ten-pound
lifting restriction with no overhead activity. Dr. Saenz also certified that Mr. Dumas
could not perform his pre-injury occupation due to the permanent restrictions.
       Both parties presented vocational proof. Mr. Dumas offered Dr. C. Greg Cates's
vocational assessment that he retained a ninety-five percent vocational impairment. Dr.

1
  '"AMA guides' means the 6 111 edition of the American Medical Association Guides to the Evaluation of
Permanent Impairment." Tenn. Code Ann. § 50-6-1 02(2) (2017). Tennessee law requires physicians use
the guides to determine the degree of anatomical impairment sustained by an employee. Tenn. Code Ann.
§ 50-6-204(k)(l ).

                                                  2
    Cates described this rating as "textbook." He explained that in the "real world," Mr.
    Dumas could not sustain gainful employment. He based his opinion on his age, lack of
    transferrable skills, manual unskilled labor history, and the significant restrictions Dr.
    Saenz placed on his physical activities. Achievement testing placed him well below
    average in math and with an overall reading composite score below average. Dr. Cates
    explained that, in his opinion, employers are unwilling to invest in training older workers
    with physical limitations.
           Republic presented vocational expert Michael Galloway to counter Dr. Cates. Mr.
    Galloway reviewed the available records and interviewed Mr. Dumas to determine jobs
    available for him within his restrictions. Though he did not assign a vocational
    impairment rating, he did not dispute Dr. Cates's "textbook" ninety-five percent
    vocational impairment rating. Mr. Galloway differed regarding the realistic availability of
    jobs for Mr. Dumas. He could drive, attend to his daily hygiene, as well as stand and
    walk without assisted devices. He agreed with Dr. Cates that Mr. Dumas was limited to
    sedentary, unskilled jobs and was unable to operate a computer. Mr. Galloway's numbers
    were based on job types but not on realistic job openings in the area.
         Mr. Dumas testified he was sixty-one years old and worked in heavy labor
 throughout his adult life. He wrote with his left hand but primarily used his right hand for
 all other activities before this accident. At Republic, he lifted up to 100 pounds with both
hands, picked up and pushed brush, and operated a truck lever at neck level. Mr. Dumas's
work injury and resulting restrictions prevented him from continuing that work, and
Republic terminated him on October 31, 2014. Mr. Dumas previously drove a truck for a
steel company, which required him to throw chains to secure his load. He could no longer
perform that type of work. He could not pass the physical requirements to maintain his
commercial driver's license. Although Mr. Dumas graduated from high school, he had
difficulty with math, reading, and writing. 2 He never used a computer and could not type.
He demonstrated in Court his inability to lift his right arm above his waist. Mr. Dumas's
weakness and lack of motion made it difficult for him to scratch his back and shave. His
pain hindered his ability to sleep. Mr. Dumas could not perform yard work. He watched
television and kept an eye on his grandchildren during the day. Mr. Dumas enjoyed
working but believed he could not physically perform any work. 3

                                              Contested Issues

       The parties disagreed on the extent of Mr. Dumas's permanent medical
impairment and vocational disability. Dr. Giel testified that Mr. Dumas's torn rotator cuff
was the primary injury, but he did not consider any malady apart from the distal clavicle
resection in assessing an impairment rating. He specifically did not include range-of-
motion impairment. Mr. Dumas contended Dr. Saenz was his ATP and properly based his

2
    The Court observed Mr. Dumas struggle to read a statement he wrote detailing his work injury.
3
    Mr. Dumas receives social security disability.

                                                     3
 ten-percelit impairment rating on loss of active range of motion measured with a
 goniometer under the AMA Guides. Therefore, Mr. Dumas maintained the Court should
 presume Dr. Saenz's rating to be correct. Coupled with Dr. Dalal's fourteen-percent
 rating and the vocational evidence of Dr. Cates, Mr. Dumas contended he was
 permanently and totally disabled. He alternatively argued he was entitled to up to 275
 weeks of permanent partial disability benefits based on the ten-percent anatomical rating
 of his ATP, Dr. Saenz.

        Republic countered that Dr. Giel was the A TP, and the Court must presume that
his six-percent impairment rating was correct. Republic contended that neither Drs. Saenz
nor Dalal overcame the presumption of correctness attached to Dr. Giel's opinion. Thus,
Mr. Dumas was entitled to 43.7 4 weeks of permanent partial disability benefits based on
Dr. Giel's six-percent rating plus additional benefits for the enhancing factors of no
return to work and being over forty years of age. Republic further argued that Mr. Dumas
did not meet the criteria for 275 weeks of permanent partial disability benefits because
his A TP did not rate him at ten percent or more.

       Finally, Republic argued Mr. Dumas was not permanently and totally disabled. It
relied on its vocational expert, Mr. Galloway, who testified Mr. Dumas was not
permanently and totally disabled based on his medical records and interview.

                       Findings of Fact and Conclusions of Law

                                    Standard Applied

      Mr. Dumas must establish all elements of his claim by a preponderance of the
evidence at a Compensation Hearing. Tenn. Code Ann. § 50-6-239( c)(6) (20 17).

                             Permanent Medical Impairment

        Tennessee law provides that all permanent impairment ratings shall be assigned by
the treating physician under the applicable edition of the AMA Guides. Tenn. Code Ann.
§ 50-6-204(k)(l) and (2)(A). The permanent impairment rating shall be presumed correct
unless it is rebutted by a preponderance of the evidence. !d. at (k)(7).

        Here, the Court is presented with conflicting medical opinions regarding the
appropriate impairment rating. Dr. Giel was Mr. Dumas's ATP, and the Court presumes
his six-percent rating is correct.

      Dr. Giel based the six-percent rating on one component of his surgical repair of
Mr. Dumas's shoulder injury- the distal clavicle excision. He did not consider his loss of
motion in calculating the rating. Dr. Giel admitted he was unaware and did not follow the

                                            4
    corrections and clarifications of the AMA Guides that         di~')allowed   rating the distal clavicle
    excision if it were incidental to the rotator cuff repair.

            In contrast, both IME physicians explained the flaws in Dr. Giel's impairment
    rating. Both correctly utilized the AMA Guides and measured Mr. Dumas's range of
    motion to assess his permanent impairment ratings.

            The Court holds, by a preponderance of the evidence, Dr. Saenz's opinions and
    testimony rebutted the presumption of correctness afforded Dr. Giel. Dr. Saenz provided
    a surgical and diagnostic second opinion after Dr. Giel completed treatment. About a year
    later, he evaluated Mr. Dumas to assess his permanent impairment. Dr. Saenz determined
    that his most significant impairment involved loss of motion. He followed the AMA
    Guides and based his permanent impairment rating on motion measurements.
    Accordingly, the Court concludes Mr. Dumas sustained a ten-percent permanent
    impairment to the body as a whole.

                                       Permanent Total Disability
        The Court next analyzes whether Mr. Dumas is entitled to PTD. Tennessee law
provides that, "[w ]hen an injury not otherwise specifically provided for in this chapter
totally incapacitates the employee from working at an occupation that brings the
employee an income, the employee shall be considered totally disabled[.]" Tenn. Code
Ann. § 50-6-207( 4)(B). The assessment of permanent total disability is based on
numerous factors, including the employee's skills and training, education, age, local job
opportunities, and the capacity to work at the kinds of employment available in the
disabled condition. Roberson v. Loretto Casket Co., 722 S.W.2d 380, 384 (Tenn. 1986).
Although a rating of anatomical disability by a medical expert is one of the relevant
factors, "the vocational disability is not restricted to the precise estimate of anatomical
disability made by a medical witness." Henson v. City ofLawrenceburg, 851 S.W.2d 809,
812 (Tenn. 1993). In addition, the employee's "own assessment of [his] physical
condition and resulting disability is competent testimony that should be considered[.]"
Mcilvain v. Russell Stover Candies, Inc., 996 S.W.2d 179, 183 (Tenn. 1999).

        Mr. Dumas gave a bleak picture of his physical condition and earning ability.
Republic fired him because it could not accommodate his physical restrictions. He was sixty-
one years old with a heavy manual labor work history. Mr. Dumas could not type and knew
nothing about operating a computer. He experienced constant pain that interfered with his
ability to sleep at night and required frequent naps during the day. Mr. Dumas had no
transferrable skills. 4 He had not worked since his injury. Mr. Dumas inquired about a job, but
it required heavy lifting, so he never applied. Mr. Dumas did not believe he could work at
any job because of his significant restrictions and pain.


4
    Mr. Dumas is unable to renew the commercial driver's license he has had since high school.

                                                     5
            Regarding expert proof, the Court finds Dr. Cates and Mr.- Galloway equally
    qualified. Both relied on Mr. Dumas's medical records, physical restrictions, and a personal
    interview. Dr. Cates first explained that he was ninety-five percent vocationally impaired. He
    questioned Mr. Dumas's ability to be retrained because of his age and low achievement test
    scores. Dr. Cates explained that he derived the ninety-five percent impairment by applying
    the restrictions to textbook statistics. He clarified the difference between a vocational
    impairment rating and a "real world" determination. In the real world, employers are
    unwilling to hire older employees with substantial physical restrictions, limited education,
    and no transferrable skills. Dr. Cates concluded Mr. Dumas could not realistically sustain
    gainful employment.

           Mr. Galloway testified that Mr. Dumas was not permanently and totally disabled. He
    did not assess a vocational impairment rating but took no issue with Dr. Cates' ninety-five
    percent rating. Mr. Galloway testified Mr. Dumas could drive (automatic transmission),
    stand, walk, see and hear. He could perform sedentary, unskilled jobs that did not involve
    computer use. Mr. Galloway's numbers were based on job types but not on realistic job
    openings in the area.

       The Court holds Mr. Dumas is permanently and totally disabled, based on the totality
ofthe evidence and accepting Dr. Cates's opinion that he is unable to find and sustain gainful
employment in his disabled condition. Therefore, he is entitled to permanent total disability
benefits from his MMI date of August 20, 2015, "until [he] is, by age, eligible for full
benefits in the Old Age Insurance Benefit Program under the Social Security Act." See Tenn.
Code Ann.§ 50-6-207(4)(A)(i).

     IT IS, THEREFORE, ORDERED as follows:

       1. Republic shall continue to provide Mr. Dumas with medical treatment for his work
          injuries under Tennessee Code Annotated section 50-6-204. Dr. Giel will remain
          the authorized treating physician.

       2. Republic shall pay Mr. Dumas a lump sum of$77,813.19, representing 154 weeks
          of benefits ($102 420. 78) minus its stipulated credit of $24,607.59, for accrued
          PTD ben fits from August 15 2015, to the dat ofthe issuance of this Order. 5

      3. Republic shall pay ongoing PTD benefits on a weekly basis at the rate of $665.07
         per week until Mr. Dumas is eligible for full Old Age Social Security retirement
         benefits.



5
  The parties stipulated to a weekly compensation rate of $665.07 based on an average weekly wage of
$996.74. They further stipulated that Republic is entitled to a credit of $24,607.54 against the judgment
for permanent disability benefits.


                                                   6
    4. Counsel for Employee may file a motion for attorney fees and expenses.

    5. Republic shall prepare and file a statistical data form SD2 within ten business days
       of the date of this order under Tennessee Code Annotated section 50-6-244.

    6. The filing fee for this cause is taxed to Republic under Rule 0800-02-21-.07 (May
       20 18) of the Tennessee Compilation Rules and Regulations.

    7. Absent an appeal of this order by either party, the order shall become final thirty
       days after issuance.

ENTERED AUGUST 1, 2018.




                               ~ c;"'YM                --
                                   .ffiDGE DANA c. SEYMOUR
                                   Court of Workers' Compensation Claims




                                          APPENDIX


Exhibits:
   1.        Collective exhibit of medical records filed by Employer on March 14, 2018
   2.       Deposition transcript of Mr. Robert Dumas
   3.       Deposition transcript of Dr. Thomas Giel, III
   4.       Deposition transcript of Dr. Apurva Dalal
   5.       Deposition transcript of Dr. Jay Saenz
   6.       Form C-32 Standard Form Medical Report for Industrial Injuries prepared by
            Dr. Jay Saenz
   7.       Form C-41 Wage Sta~ement
   8.       Form C-42 Agreement Between Employer/Employee Choice of Physician
   9.       C. Greg Cates, Ed. D.'s Vocational Report
   10.      Michael Galloway's Vocational Report
   11.      Employee's Job Description
   12.      Excerpts from the AMA Guidelines to the Evaluation of Permanent
            Impairment
   13.      Printout of Temporary Total Disability benefits paid to Employee
   14.      Mr. Dumas's timesheets

                                            7
   15.    Email from R. Scott Vincent dated August 11, 2016 ·
   16.    Mr. Dumas's Written Statement
   17.    May 2, 2018 Deposition transcript of Dr. Thomas Giel, III
   18.    May 17,2018 Deposition transcript ofDr. Jay Saenz
   19.    Curriculum Vitae of Dr. Greg C. Cates
   20.    Curriculum Vitae of Michael Galloway

Technical record:
   J. Petition tl r Benefit Determination
   2. Dispute Certification Notice
   3. Scheduling Order
   4. Amended Scheduling Order
   5. Employer's Objection to Dr. Jay Saenz's Standard Form Medical Report for
        Industrial Injuries (Form C-32)
   6. Employer's Motion for Partial Summary Judgment
   7. Employer's Memorandum of Law in Support of its Motion for Partial Summary
       Judgment
   8. Employer's Statement of Undisputed Facts in Support of its Motion for Partial
       Summary Judgment
   9. Employer's Motion in Limine to Exclude Dr. Jay Saenz' C-32, or, in the
       alternative Objection to the C-32
   10. Employee's Memorandum in Response to Employer's Motion for Partial
       Summary Judgment
   11. Employee's Response to Employer's Statement of Undisputed Facts in Support of
       its Motion for Partial Summary Judgment
   12. Employee's Response to Employer's Motion in Limine to Exclude Dr. Jay Saenz's
       C-32, or, in the Alternative Objection to the C-32
   13. Order on Motion in Limine to Exclude Dr. Jay Saenz's C-32, or, in the Alternative
       Objection to the C-32; Employee's Motion to Strike Untimely Filed Motion in
       Limine; and Employer's Motion to Strike Employee's Response to Motion in
       Limine
  14. Employee's Exhibit List
  15. Employee's Witness List
  16. Employer's Pre-Compensation Hearing Statement
  17. Employer's Pre-Compensation Hearing Brief
  18. Order on Employer's Motion for Partial Summary Judgment
  19. Dispute Certification Notice, including Additional Issues raised by Employer
      (February 2, 20 18)
  20. Employee's Position Statement
  21. Employee's Supplemental Position Statement
  22. Employer's Motion to Strike and Exclude Portions of Dr. Jay Saenz' Deposition
      Testimony from May 17, 2018, as well as to Exclude Dr. Saenz' Physician
      Certification Form Pursuant to Tenn. Code Ann. § 50-6-242(a)(2)(B)

                                          8
   23. Employer's Motion to Strike and Exclude Portions of Dr. Thomas Giel's
       Deposition Testimony from May 2, 2018, as well as to Exclude Dr. Giel's
       Physician Certification Form Pursuant to Tenn. Code Ann. § 50-6-242(a)(2)(B)
   24. Employee's Combined Response to Employer's Motion to Strike and Exclude
       Portions of Dr. Thomas Giel's and Dr. Jay Saenz' Deposition Testimony and to
       Exclude Doctors Giel's Physician Certification Forms and Plaintiff's Motion to
       Allow Admission of Doctors Testimony
   25. Employer's Reply to Employee's Combined Response to Employer's Motion to
       Strike and Exclude Portions of Dr. Thomas Giel's and Dr. Jay Saenz' Deposition
       Testimony as well as to Exclude Dr. Giel and Dr. Saenz' Physician Certification
       Forms Pursuant to Tenn. Code Ann. § 50-6-242(a)(2)(B)
   26. Order on Motions to Strike and Exclude Portions of Dr. Thomas Giel's Deposition
       Testimony from May 2, 2018 and Dr. Saenz' Deposition Testimony from May 17,
       2018 as well as to Exclude Drs. Giel and Saenz' Physician Certification Forms
       Pursuant to Tenn. Code Ann. § 50-6-242(a)(2)(B)


                            CERTIFICATE OF SERVICE

      I hereby certify that a true and correct copy of this Compensation Hearing Order
was sent to the following recipients by the following methods of service on this August 1,
2018.

       Name                        Via                  Email Address
                                   Email

       Stephen Libby,                 X     steve@lnlawmemuhis.com
       Employee's Attorney
       Steve Snyder,                  X     scott. vincent@mgclaw. com
       Employer's Attorney                  steve.snvder@mgclaw.com




                                                P nny S r. m, Clerk of Court
                                                Court o · orkers' Compensation Claims
                                                WC.CourtClerk@tn.gov




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