                                                                                                FILED
                                                                                            September 29. 201 7

                                                                                                TNCOURT O F
                                                                                          W ORKERS 'CO MPENSATION
                                                                                                  'C LilllS

                                                                                                Tim ~   1: 13 PM


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

TINA HAYES,                                              )    Docket No. 2016-08-0500
         Employee,                                       )
v.                                                       )
COSTCO,                                                  )    State File No. 27202-2015
         Employer,                                       )
And                                                      )
LIBERTY MUTUAL INSURANCE,                                )   Judge Amber E. Luttrell
         Carrier.                                        )


                        COMPENSATION HEARING ORDER DENYING
                          WORKERS' COMPENSATION BENEFITS


       This matter came before the undersigned Workers' Compensation Judge on
August 31, 2017, for a Compensation Hearing. The central legal issues are whether Ms.
Hayes established by a preponderance of the evidence that her injury arose primarily out
of and in the course and scope of her employment at Costco and whether she is entitled to
permanent partial disability and future medical benefits. For the reasons set forth below,
the Court holds that Ms. Hayes did not. Thus, the Court holds Ms. Hayes is not entitled to
the requested benefits.

                                              History of Claim 1

       Ms. Hayes works for Costco as a cashier. On April 8, 2015, she worked as a
stocker and twisted her left knee on a pallet when she turned from stocking clothes to
answer someone's question. Ms. Hayes experienced pain in her knee but was unsure of
the extent of her injury and continued working.

      Ms. Hayes reported the injury the next morning and received authorized treatment
from Dr. Thomas Giel, whom she selected from a panel of physicians. She also sought
unauthorized treatment from Dr. Timothy Krahn. The parties agreed Ms. Hayes received

1
    The parties stipulated to findings of fact contained in the Appendix of this Order.

                                                        1
    unauthorized treatment from Dr. Krahn for her left knee beginning in July 2015,
    including a total left knee replacement. Dr. Krahn testified he did not treat Ms. Hayes
    under workers' compensation. (Ex. 8 at 34-35.)2 After completing treatment, Ms. Hayes
    underwent an independent medical evaluation by Dr. Apurva Dalal. The parties took the
    depositions of the three physicians and introduced the following medical proof.3

                                Treatment and Physicians' Testimony

                                               a. Dr. Giel

        Ms. Hayes first saw Dr. Giel in May 2015 and provided a history of twisting her
left knee at work resulting in pain and popping in her knee. On exam, Dr. Giel noted Ms.
Hayes' range of motion was well maintained at zero to 120 degrees. She had tenderness
to palpation along the medial and lateral joint lines and pain on McMurray's testing. Dr.
Giel diagnosed "osteoarthritis with an arthritic flare" and recommended conservative
treatment. He discouraged arthroscopic surgery because he believed it would
considerably advance her arthritis for minimal, short-term relief. Dr. Giel provided Ms.
Hayes conservative treatment consisting of a cortisone injection and anti-inflammatory
medication. He noted in an addendum to his report that her "current symptoms" were
more than fifty percent caused by her employment based on Ms. Hayes' reported twisting
injury. (Ex. 7 at 17.)

        In follow-up visits, Ms. Hayes maintained her range of motion and improved, but
she still reported some mechanical symptoms of popping and clicking. Dr. Giel returned
her to full-duty work. On July 15, Ms. Hayes returned and complained of an exacerbation
of her left knee pain. She informed Dr. Giel she stood up from sitting on her couch at
home and felt a pop in her left knee followed by increased pain. She stated she was
unable to walk on her left leg and used crutches for weight-bearing. Dr. Giel noted
tenderness and effusion on exam and diagnosed "left knee pain, early degenerative
changes with a recent exacerbation while getting up from her couch." He aspirated her
knee, injected it with cortisone, and placed her on limited-duty work.

          Ms. Hayes continued to complain of increased pain, an inability to walk, and
2
 Costco filed a Notice of Controversy on September 11, 2015, which is marked as Exhibit 4. The proof
was unclear regarding the timing of Costco denying further treatment. However, the Court understood the
parties to state that Costco did not authorize Dr. Krahn's treatment for the left knee.
3
  Ms. Hayes alleged a 2013 work injury at Costco to her right knee, which is the subject of a separate
pending lawsuit in the Chancery Court of Shelby County, Tennessee. Her right knee injury resulted in a
knee replacement surgery. The Court notes Ms. Hayes referenced her prior right knee injury in her
testimony and the physicians testified extensively regarding the right knee, since their testimony will also
be used in the right knee case. This Court listened to Ms. Hayes' testimony carefully and read the
physicians' depositions in their entirety; however, it considered, and will only reference, the testimony
relevant to her left knee claim in this order.

                                                     2
swelling; therefore, Dr. Giel ordered an MRI. Dr. Giel expressed concern in his notes
stating, "I do not see exactly how this is going to relate to her on-the-job injury." !d. at 7-
9.

        Following the MRI, Dr. Giel noted it revealed a meniscus tear, full thickness
cartilage loss, and large osteophytes on the medial femoral condyle. He explained her
findings looked very similar to her previously injured right knee. He still discouraged an
arthroscopy and recommended viscosupplementation injections. 4 Ms. Hayes declined the
injections. Dr. Giel discussed her surgical options, which included a high tibial osteotomy
versus a total knee arthroplasty and referred her to another surgeon, Dr. Krahn.

       Costco subsequently sent Dr. Giel a "Medical Questionnaire" in 2016 with three
pages of "yes" or "no" questions regarding causation. In response, Dr. Giel indicated Ms.
Hayes reached MMI for her April 8 injury and retained no permanent impairment for that
injury. Concerning Ms. Hayes' knee replacement, Dr. Giel concluded that "to a
reasonable degree of medical certainty . . . the left knee replacement . . . was not
necessitated by the April8, 2015 work incident." (Ex. 7 at 1-3.)

       In Dr. Giel's deposition, counsel asked him more specifically, "[D]o you have an
opinion, within a reasonable degree of medical certainty, as to whether the April 8, 2015,
work incident caused or contributed more than 50 percent in the knee for having a left
knee replacement?" Dr. Giel testified, "My opinion would be ... that her April 8 injury
was less likely than not the cause of her knee replacement; that the osteoarthritis that was
already present was more likely the largest contributing factor to her knee for a total knee
replacement." (Ex. 6 at 13-14.)

       On cross-examination, Dr. Giel testified that Ms. Hayes' MRI findings indicated
an extruded meniscus and other findings, which he deemed chronic. He explained it takes
a while for those conditions to develop. However, he could not determine when the
specific meniscus tear developed. !d. at 20.

                                              b. Dr. Dalal

        Ms. Hayes saw Dr. Dalal for an independent medical evaluation at her attorney's
request on May 25, 2016. She complained of pain and swelling in her knees. She stated
both knees give out and do not bend normally, and she reported difficulty walking for any
length of time. Dr. Dalal testified he reviewed Dr. Krahn's records as part of his
evaluation. On exam, Dr. Dalal found swelling, limited knee flexion, and moderate
anterior and posterior instability. He noted her bilateral knee replacements and assigned a
fifteen percent permanent impairment rating to the body as a whole for Ms. Hayes' left

4
  Viscosupplementation injections are a hyaluronic acid derivative, which is a lubricant-type material used
to treat arthritis. (Ex. 6 at 24.)

                                                    3
knee condition.

       Concerning causation, Ms. Hayes' counsel asked, "[D]o you have an opinion to a
reasonable degree of medical certainty as [sic] the causation of the injuries to the knees
for Ms. Hayes?" Dr. Dalal responded, "[T]he work-related injury Ms. Hayes sustained on
both her knees caused her to have [a] knee replacement." (Ex. 5 at 10.) Counsel later
asked, "[I]f it is said that Ms. Hayes had arthritic knees, what impact would the trauma
have played with regard to the treatment she ultimately received leading up to the knee
replacement? How would the trauma have affected that?" Dr. Dalal responded, "Trauma
caused aggravation of arthritis and acceleration needing knee replacement." !d. at 12.

        On cross-examination, Dr. Dalal did not agree that Ms. Hayes' July incident
standing up from the couch caused the need for the knee replacement. He testified the
April 8 injury made the knee susceptible and weak. He stated, "Had there not been an
original injury she would not have needed a knee replacement on this side." Id. at 20.
Costco argued Dr. Dalal gave an inconsistent rationale when explaining his causation
opinions for the right and left knees. Costco pointed out that Dr. Dalal reached the
opposite conclusion regarding Ms. Hayes' unrelated right knee claim, where he attributed
her right knee replacement to a subsequent work injury at Costco and not her original
InJUry.

                                   Hearing Testimony

        Ms. Hayes denied any prior injury to her left knee. She testified that she worked
full duty after her April 8 injury but continued to have pain in her knee before the
incident when she stood up from the couch. After the incident, Dr. Giel placed her on
light duty. She stated she did not work until Dr. Krahn released her to return to work on
December 23, 2015. She received short-term disability benefits from Costco while off
work.

        Ms. Hayes testified she continues to work full duty at Costco as a cashier. She
stated she is "selective" in what she can do even though she has no permanent
restrictions, which Costco allows. Ms. Hayes described difficulty walking up her stairs at
home and walking her dog, and she cannot ride a bike. Her knees swell sometimes, and
she takes ibuprofen twice daily.

                       Findings of Fact and Conclusions of Law

        Ms. Hayes has the burden of proof on all essential elements of her claim. Scott v.
Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18,
20 15). "[A]t a compensation hearing where the injured employee has arrived at a trial on
the merits, the employee must establish by a preponderance of the evidence that he or she
is, in fact, entitled to the requested benefits." Willis v. All Staff, 2015 TN Wrk. Comp.

                                            4
App. Bd. LEXIS 42, at *18 (Nov. 9, 2015); see also Tenn. Code Ann.§ 50-6-239(c)(6)
(20 16) ("[T]he employee shall bear the burden of proving each and every element of the
claim by a preponderance of the evidence.").

                                         Analysis

       Ms. Hayes' burden includes proving her knee condition arose primarily out of her
employment by showing first that it occurred at a specific time and place. This also
requires medical proof to a reasonable degree of medical certainty that her alleged work
injury contributed more than fifty percent in causing the disablement or need for medical
treatment, considering all causes. Finally, if she contends the work injury aggravated a
previous condition, she must show to a reasonable degree of medical certainty that the
aggravation arose primarily out of and in the course and scope of employment. Tenn.
Code Ann.§ 50-6-102(14).

        The Court cannot find Ms. Hayes satisfied her burden. In so finding, the Court
considers the competing expert medical opinions. The authorized treating physician, Dr.
Giel, concluded in response to Costco's Medical Questionnaire that "to a reasonable
degree of medical certainty ... the left knee replacement ... was not necessitated by the
April 8, 2015 work incident." He then elaborated in his deposition and testified Ms.
Hayes' April 8 work injury was "less likely than not the cause of her knee replacement;
that the osteoarthritis that was already present was more likely the largest contributing
factor to her knee for a total knee replacement." Dr. Giel's causation opinion is afforded a
presumption of correctness rebuttable only by a preponderance of the evidence. See Tenn.
Code. Ann.§ 50-6-102(14)(E).

       Ms. Hayes argued at the hearing that Dr. Giel gave contradictory opinions in that
he initially stated after her first visit that her current symptoms were more than fifty
percent caused by her employment based on Ms. Hayes' reported twisting injury. Costco
countered that Dr. Giel's opinions expressed in the questionnaire and his deposition were
subsequent to Ms. Hayes' MRI and knee replacement with Dr. Krahn. It argued, and the
Court agrees, that his more recent opinions superseded his May 2015 statement regarding
her symptoms at that time.

        Dr. Dalal, after evaluating Ms. Hayes for two separate injuries, testified with
respect to both knees that "the work-related injury Ms. Hayes sustained on both her knees
caused her to have [a] knee replacement." He later stated "trauma caused aggravation of
arthritis and acceleration needing knee replacement."

      Ms. Hayes acknowledged Dr. Dalal was not asked the specific language set forth
in Tennessee Code Annotated section 50-6-102(14) but argued Dr. Dalal found causation
and rebutted the presumption favoring Dr. Giel's opinion. The Court disagrees. Our
Appeals Board held that a physician may render an opinion that meets the legal standard

                                             5
..   set forth in section 50-6-1 02(14) without specifically restating the statutory definition .
     However, sufficient proof is required from which the trial court can conclude that the
     statutory requirements of an injury as defined in section 50-6-1 02(14) are satisfied.
     Panzarella v. Amazon. com, Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 30, * 14-15
     (May 15, 2017). Here, the Court finds Dr. Dalal's testimony falls short in satisfying the
     current standard for a compensable injury or aggravation. Specifically, the Court finds
     Dr. Dalal's testimony insufficient to prove that Ms. Hayes' alleged work injury
     contributed more than fifty percent in causing the disablement or need for medical
     treatment, considering all causes.

            Even if Dr. Dalal's opinions sufficiently met the statutory requirements of an
     injury, the Court still finds Dr. Dalal's testimony insufficient to overcome the
     presumption of correctness afforded Dr. Geil's opinion. The Court notes Ms. Hayes did
     not challenge the basis or correctness of Dr. Giel's causation opinion through cross-
     examination or through Dr. Dalal's deposition. Rather, most of Dr. Dalal's testimony
     concerned Ms. Hayes' unrelated right knee case. The Court finds the conflicting proof
     amounts to a difference of opinion between the physicians, and the Court is not
     persuaded that the preponderance of the evidence overcomes the presumption of
     correctness of Dr. Giel's opinion. 5

            Thus, this Court concludes that Ms. Hayes failed to establish by a preponderance
     of the evidence a compensable injury or aggravation arising primarily out of and in the
     course and scope of her employment with Costco considering all causes.

     IT IS, THEREFORE, ORDERED as follows:

         1. Ms. Hayes' claim against Costco for workers' compensation benefits is denied.

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

         3. Costs of $150.00 are assessed against Costco under Tennessee Compilation Rules
            and Regulations 0800-02-21-.07 (2016), to be paid within five days of this order
     5
       Costco also argued Ms. Hayes sustained an "independent intervening injury" in July 2015 when she
     stood up from the couch, felt a pop in her knee, and experienced a significant increase in pain and
     symptoms. The Court notes the parties focused much of their questioning of the physicians on her
     condition before and after the incident. Our Appeals Board has confirmed that "while events unrelated to
     an employee's conduct may arguably constitute an independent intervening incident sufficient to break
     the chain of causation, there must be negligent, reckless, or intentional conduct on the part of the
     employee." Lee v. W. Plastics, 2016 TN Wrk. Comp. App. Bd. LEXIS 53, at *10 (Oct. 20, 2016). Here,
     the Court finds Ms. Hayes' actions in standing from her couch did not amount to intentional or negligent
     conduct and further no medical proof supports this argument. However, the pertinent inquiry is whether
     Ms. Hayes sustained a compensable injury under 50-6-102(14) by a preponderance ofthe evidence rather
     than any subsequent intervening event.

                                                        6
      becoming final.

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

ENTERED the 29th day of September, 2017.




                                         JUDGE AMBER E. LUTTRELL
                                         Court of Workers' Compensation Claims




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                                             APPENDIX

    Stipulated Findings ofFact:
        1. Employee alleged an injury on AprilS, 2015.
       2. Employee gave notice of her alleged injury.
        3. Employee is fifty-two years of age.
       4. Employee is a high school graduate.
       5. Employee received authorized treatment from Dr. Giel. Dr. Giel's medical
           expenses were paid by Employer or its workers' compensation carrier.
       6. Employee received short-term disability benefits from a Costco-funded plan for
           the period she was off work.
       7. Employee returned to work for Employer earning the same or greater wage as she
           earned prior to the alleged injury.

Exhibits:
   I. First Report of Injury or Illness
   2. Wage Statement
   3. Panel
   4. Notice of Controversy
   5. Deposition of Apurva Dalal, M.D.
   6. Deposition of Thomas V. Giel, III, M.D.
   7. Medical Records of Dr. Thomas Giel
   8. Deposition of Timothy H. Krahn, M.D.

Technical record: 6
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Petition for Benefit Determination (post-discovery)
   4. Post-Discovery Dispute Certification Notice
   5. Transfer Order
   6. Witness and Exhibit List filed by Employer
   7. Motion to Continue Compensation Hearing filed on January 27, 2017
   8. Order Granting Motion to Continue Compensation Hearing
   9. Employee's Witness & Exhibit List
   10. Amended Scheduling Order
   11. Supplement to Exhibit List
   12. Pre-Compensation Hearing Statement
   13. Employer's trial brief
   14. Employee's trial brief
6
  The Court did not consider attachments to Technical Record filings unless admitted into evidence during
the Compensation Hearing. The Court considered factual statements in these filings or any attachments to
them as allegations unless established by the evidence.


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                           CERTIFICATE OF SERVICE

       I certifY that a true and correct copy of the Compensation Hearing Order was sent
to the following recipients by the following methods of service on the _       _ day of
                                                                            29th
September, 20 17.

         Name             Certified   Fax       Email   Service sent to:
                           Mail
Christopher Taylor,                              X      ctaylor@taylortoon.com
Employee's Attorney                                     sreynolds@tay lortoon.com
Kristen C. Stevenson,                            X      kcstevenson@mijs.com
Employer's Attorney                                     telett@mijs.com




                                        ~h ,~~
                                        Court of orkers' Compensation Claims
                                        WC.CourtClerk@tn.gov




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