## FILED
June 1,2018

TN COURTOF WORKERS'Om.IPENSATION CLAIMS
Time3:05 PM TENNESSEEBUREAU OFWORKERS' COMPENSATION INTHE COURTOFWORKERS' COMPENSATIONCLAIMS ATMEMPHIS
REGINAHENDERSON, ) DocketNo. 2016-08-1035 Employee, ) 

### v. ) THEEGGO COMPANY, ) StateFile No. 31274-2015 Employer, ) And ) CORVELINSURANCE CO., ) JudgeDeana Seymour Carrier. )

COMPENSATIONHEARING ORDER
Regina Henderson claimed a back and coccyx (tailbone) injury at Eggo and requested medical and temporary and permanent disability benefits. Eggo contended the injury did not cause Ms. Henderson any permanent disability. The Court conducted a CompensationHearing onMay 2, 2018, and holds Ms. Henderson is entitledto additional temporary disability and medical benefits for her lumbar strain and tailbone contusion, butnopermanent disabilitybenefits. HistoryofClaim
Ms. Henderson injured her back and tailbone when she slipped and fell down stairs on April 16, 2015. Eggo provided her a panel ofphysicians and she chose Dr. James Varner, aboard certified orthopedic surgeon. Ms. Henderson saw Dr. Varner six times from May to July 2015. She reported low back and buttockpain after "she fell on her backside or buttocks and bumped down five stairs

...." Dr. Varner found no sensory or motor deficits or radiculopathy and diagnosed Ms. Henderson with a lumbar strain and tailbone contusion. Heplaced her on light duty and ordered MRI scans ofher low back, sacrum, and tailbone, which showed degenerative changes and a diskbulge in her lowback. After determiningMs. Henderson did not have nerve impingement, Dr. Varner returned her to full duty and treated her conservatively with medication and physical therapy. She improved until July 22 when
1she complamed ofurological symptoms and increasedpain from liftingtotes at work. Dr. Varner again restricted her work activities and ordered a lumbar block that proved helpful. Dr. Varner testified that the lumbar strain and tailbone contusion resulted from the work-related incident. He did not anticipatepermanentimpairment.
Ms. Henderson requested another doctor and Eggo offered a second panel. She chose Dr. Samuel Murrell, another board-certified orthopedic surgeon, whom she saw on August 3. Ms. Henderson complained of low back and tailbone pain but no radicular symptoms. Dr. Murrell did not find signs oftrauma or radiculopathy. He interpreted Ms. Henderson's MRI report as showing mild lumbar degenerative disc disease. Dr. Murrell restrictedherto no lifting overtwenty-five pounds and ordered an updatedMRI.
That MRI revealed degenerative disc disease at the lowest level ofher spine and a central disc bulge with no compression ofthe nerve root. Dr. Murrell could not relate either the degenerative disc disease or any aggravation ofit to Ms. Henderson's work because she had no nerve compression to support her complaints, and because he had no pre-injury MRI for comparison. He agreed Ms. Henderson's symptoms were consistent with her fall and agreed with Dr. Varner that she did not need surgery. He referred Ms. Henderson to Dr. David Dowling for additional bilateral lumbar blocks. However, because Dr. Murrell did not primarily relate Ms. Henderson's MRI findings to her employment, Eggo denied her request for additional lumbar blocks. Dr. Murrell placed Ms. Henderson at maximum medical improvement (MMI) on September 16 for her lumbarcontusion conditionbutnot for her degenerative disc disease.
In April 2016, Ms. Henderson treated on her own for low back and bilateral leg pain with orthopedic surgeon Dr. Jeffrey Dlabach. 1 Dr. Dlabach diagnosed Ms. Henderson with low back pain and lumbar disc degeneration with radiculopathy. He referred her to Dr. Alan Kraus who saw her four times and administered two lumbar blocks. Dr. Kraus concluded Ms. Henderson's injury arose primarily out ofand in the course and scope of employment, contributing more than fifty percent to the need for medicaltreatment.
In June 2017, Ms. Henderson saw Dr. Samuel Chung for an independent medical evaluation at her attorney's request. He assigned twelve-percent permanent impairment underthe AMA Guidelines. Dr. ChungbelievedMs. Henderson's fall aggravatedherpreexisting degenerative disc disease and brought on clinical symptoms of left lumbar radiculopathy. He conceded her radicular complaints did not start immediately after her fall and admitted he could not say when they actually began. Dr. Chung said he did not review the actual MRI films but noted the MRI reports did not indicate nerve compression. Hetestified Ms. Henderson's fall contributedmore than fifty percentto her disablement or need for medical treatment, and he believed she needed future medical

1Dr. Dlabach provided ongoingtreatmentfor Ms. Henderson's unrelated right knee symptoms. 2treatment, including medication, nerve blocks, and therapy

. At the hearing, Ms. Henderson testified she continued to experience back spasms and pain in herback, tailbone, and legs. She often needed assistance from her co-workers to complete herjob duties. Ms. Henderson explained her constantpain affected her sleep, her marriage, and her ability to perform household chores and participate in family activities. She takes over-the-counter medication for pain. Ms. Henderson testified that she had no back problems before the fall and that she suffered no new injuries after the fall. She askedEggo for additional treatment before seeing Dr. Dlabach, but Eggo denied herrequest. The parties stipulated Eggo paid Ms. Henderson temporary partial disability (TPD) benefits totaling $2,448.09 from April 16 to August 13, 2015, and temporary total disability (TTD) benefits from August 14 to September 17, 2015 totaling $4,065.00. Ms. Henderson claimed an underpayment ofTTD. The parties further agreed to a weekly compensation rate of$813.00. The parties also agreed Ms. Henderson returned to work for Eggo atthe same or greaterwage as she earnedpriorto herinjury.
Ms. Henderson requested additional temporary disability benefits due to the undeqJayment, and payment ofDr. Dlabach's bill of$1,744.00 and Dr. Kraus's bill of $3,472.00.2 She also requestedpermanentpartial disability benefits equal to Dr. Chung's twelve-percent impairment rating. Eggo maintained its position that Ms. Henderson did not sustain a compensable aggravation ofherunderlying degenerative disc disease. Findings ofFact and Conclusions ofLaw
StandardApplied
Ms. Henderson must establish all elements ofher claimby apreponderance ofthe evidence. Tenn. CodeAnn.§ 50-6-239(c)(6) (2017).
Causation
Ms. Henderson must establish a permanent injury arising primarily out ofand in the course and scope ofher employment with Eggo. "An injury 'arises primarily out of and in the course and scope of employment' only if it has been shown by a preponderance ofthe evidence that the employment contributed more than fifty percent (50%) in causing the injury, considering all causes." Tenn. Code Ann. § 50-6-102(14). This contribution must be established to a reasonable degree of medical certainty, meaning, in the opinion ofthe treating physician, it is more likely than not, considering

2The parties stipulated to the amount ofDr. Dlabach and Dr. Kraus' medical bills but Eggo did not agree thatMs. Hendersonwas entitledto payment. 3all causes. !d. at (14)(D).
An aggravation ofa pre-existing condition is a compensable injury "ifit can be shown to a reasonable degree ofmedical certainty that the aggravation arose primarily out ofand in the course and scope of employment." Miller v. Lowe's Home Centers, Inc., 2015 TN Wrk. Comp. App. Bd. LEXIS 40, at *12 (Oct. 21, 2015), citing Tenn. Code Ann. § 50-6-102(14)(A). Moreover, Tennessee courts have long held that an increase in pain alone is not a compensable aggravation. Berdnik v. Fairfield Glade Community Club, et. al., 2017 TN Wrk. Comp. App. Bd. LEXIS 32, at *8-9 (May 18, 2017). "[H]owever, ifthe work injury advances the severity ofthe pre-existing condition, or if, as a result ofthe pre-existing condition, the employee suffers a new, distinct injury other than increased pain, then the work injury is compensable." Bradshaw v. Jewell Mechanical, LLC, 2015 TN Wrk. Comp. App. Bd. LEXIS 16, at *13-17 (June 4, 2015). Finally, "an aggravation need not be permanent for an injured worker to qualify for medical treatmentreasonably necessitated by the aggravation."Miller, at *18. Here, Ms. Henderson established that she fell at work. Drs. Varner and Murrell agreed Ms. Henderson complained ofpain in her low back from the fall. Further, both doctors testified they treated Ms. Henderson for a lumbar strain and tailbone contusion resulting from the fall. Thus, the Court holds Ms. Henderson is entitled to temporary disability benefits and medicaltreatmentnecessitated by her fall.
Because Eggo ceased benefit payments as of September 17, the Court must determine whether Ms. Henderson is entitled to additional benefits after that date. The medical expert opinions differ regarding causation ofher pain from degenerative lumbar disease. In such situations, the Appeals Board reiterated that Tennessee law has long held, "Atrial court generally has the discretion to choose which expert to accredit when there is a conflict ofexpert opinions."Brees v. Escape DaySpa & Salon, 2015 TN Wrk. Comp. App. Bd. LEXIS 5, at *14 (Mar. 12, 2015). In making its choice, this Court may consider, among otherthings, "the qualifications ofthe experts, the circumstances oftheir examination, the information available to them, and the evaluation ofthe importance of that information through other experts." !d. When one ofthose experts is an authorized treating physician, that expert's opinion on the issue of causation is afforded a presumption ofcorrectness. Tenn. CodeAnn.§ 50-6-102(14)(E). Applying these factors, the Court finds that Dr. Varner, Dr. Murrell, and Dr. Dlabach are board-certified orthopedic surgeons. Dr. Kraus and Dr. Chung are not. Dr. Varner and Dr. Murrell were authorized treating physicians whose opinions are entitled to a presumption ofcorrectness. Drs. Dlabach, Kraus, and Chung were not authorized treatingphysicians.
Dr. Varner treated Ms. Henderson six times from May to July 2015. He reviewed an MRI ofher low back. Dr. Murrell treated Ms. Henderson from August to September
4·· 2015. He also reviewed an MRI and ordered an uvdatedMRI. NeitherDr. VarnernorDr. Murrell diagnosed anything but a back strain and sacral contusion. After reviewing the MRI scans, they concluded Ms. Henderson did not have signs of nerve compression, radiculopathy, weakness, or sensory loss. Neither anticipatedpermanentimpairment.
Over a year after her fall, Ms. Henderson saw Dr. Dlabach who diagnosed low back pain and lumbar disc degeneration with radiculopathy. He referred Ms. Henderson to Dr. Kraus, who indicated Ms. Henderson's injury contributed more than fifty percent in causingthe need for medical treatment.
Dr. Chung saw Ms. Henderson on one occasion for an IME. He testified Ms. Henderson's fall aggravated her pre-existing degenerative disc disease and brought on clinical symptoms ofleft lumbar radiculopathy. Dr. Chung testified the fall contributed more than fifty percent to Ms. Henderson's disablement or need for medical treatment. However, Dr. Chung admitted Ms. Henderson's radicular complaints did not begin immediately after her fall, and he could not tell when they began. Dr. Chung did not review the MRI lumbar film nor did he find a herniated disc. The MRI report Dr. Chung reviewed did not show nerve compression. He agreed with Drs. Varner and Murrell that Ms. Henderson did notneed surgery. Considering each of these opinions, the Court holds Dr. Chung's opmwn is insufficient to overcome the presumption of correctness afforded to Drs. Varner and Murrell's opinions by a preponderance ofthe evidence. Thus, Ms. Henderson failed to establish by a preponderance of the evidence that she sustained a permanent injury arising primarily out of and in the course and scope of her employment or that she sustained a compensable aggravation ofapre-existing condition. Underpayment of TemporaryDisabilityBenefits
The parties agreed Ms. Henderson received five weeks of TTD benefits, or $3,634.00, from August 14 to September 17, 2015. They further agreed to a weekly compensation rate of$813.00. The total TTD for that period equals $4,065.00 and the Court holds Ms. Henderson was underpaid $431.00 in TTD benefits. (5 weeks x $813.00=$4,065.00

- $3,634.00=$431.00).
Ms. Henderson did not introduce any evidence regarding the amount of TPD benefits and the Court will not disturb the parties' stipulation as to the amount Eggo paid for TPD.

5Alternative Findings Solely in the event that an appellate body finds error in the compensability holding, the Court makes the following alternative findings for the sake ofjudicial economy. See Cunningham v. Shelton Sec. Serv., 46 S.W.3d 131, 137-138 (Tenn. 2001), ("the trial court should

...hearthe entire case and make appropriate findings offact and alternative findings when necessary, for appellatereview.")
In the alternative, ifDr. Chung's opinion overcamethe presumption ofcorrectness afforded Drs. Varner and Murrell, the Court finds that Ms. Henderson sustained a permanent, compensable injury when she fell at work on April 16, 2015. The Court further finds she reached maximum medical improvement on June 14, 2017, and Dr. Chung assigned a permanent medical impairment equal to twelve percent to the whole person, which entitles her to a permanent partial disability award of $43,902.00. The Court would order Eggo to pay the accrued portion in a lump sum with the remaining balance paid at $813.00 per week until the expiration ofthe initial compensation period onJune 26, 2019. Further, the medical bills ofDr. Dlabach, totaling $1,744.00, and ofDr. Kraus, totaling $3,471.00, wouldbe reasonable and necessary, andpaidby Eggo. Ms. Henderson would also be entitled to future medical benefits with Dr. Murrell as her authorized treatingphysicianpursuantto Tennessee CodeAnnotated section 50-6-204.
IT 

### IS, THEREFORE, ORDERED as follows:
1. The Court denies Ms. Henderson sustained a compensable injury resulting m permanentdisability.
2. The Court further denies payment ofunauthorized medical treatment, including the medical bills ofDr. Dlabach, totaling $1,744.00, and ofDr. Kraus, totaling $3,471.00.
3. Eggo shall provide reasonable and necessary treatment with Dr. Murrell related to Ms. Henderson's lumbar strain andtailbone contusion.
4. Eggo shallpayMs. Henderson $431.00 for the underpayment ofTTD benefits. The Court denies Ms. Henderson'srequest for additional TPD.
5. Eggo shall pay the $150.00 filing fee under Tennessee Compilation Rules and Regulations 0800-02-21-.07 (November, 2016).
6. Eggo shall file an SD-2 withintenbusiness days ofentry ofthis order.

6' ENTEREDJune 1, 2018.

JUDGE DEANAC. SEYMOUR CourtofWorkers' CompensationClaims

APPENDIX

Exhibits: 1) Medical Records and Bills from OrthoOne Sports Medicine (Dr. Jeffrey Dlabach) 2) MedicalRecords andBills from Memphis Interventional Pain (Dr. AlanKraus) 3) Depositiontranscript ofDr. Samuel Chung 4) Medical Records from BaptistMemorial Hospital- Collierville 5) Depositiontranscript ofDr. James Varner 6) Depositiontranscript ofDr. Samuel Murrell 7) FormC-41 Wage Statement 8) Depositiontranscript ofReginaHenderson
TechnicalRecord: 1) Petition for BenefitDetermination 2) Dispute CertificationNotice 3) Request for InitialHearing 4) SchedulingHearing Order 5) Amended Scheduling Hearing Order 6) Transfer Order 7) Consent Order SubstitutingNamedDefendant 8) Employee's Disclosure ofExpertWitnesses 9) Notice ofBankruptcy 10) Notice of United States Bankruptcy Court Order Granting Debtor's Applicationto EmployAttorney for Special Purposes 11) Amended Scheduling Order 12) Dispute CertificationNotice 13) Pre-CompensationHearing Statement 14) Notice of Filing of Employer's Proposed Trial Exhibit IV and Request to SupplementPre-CompensationHearing Statement 15) SupplementalPre-CompensationHearing Statement

7CERTIFICATE OF SERVICE
I certify that atrue and correct copy ofthe Compensation Hearing Order was sent to the following recipients by the following methods ofservice on June 1, 2018.

Name Certified Via Via Service sentto: Mail Fax Email ShannonToon, X stoon@taylortoon

.com Employee'sAttorney Charles Patrick X charlie.Qatrick@leitnerfirm.com Employer'sAttorney

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