FILED 

J une 1,2018 

TN COURTOF 

WORKERS'Om.IPENSATION 

CLAIMS 

Time3:05 PM 

TENNESSEE BUREAU OF WORKERS' COMPENSATION 

IN THE COURT OF WORKERS' COMPENSATION CLAIMS 

AT MEMPHIS 

REGINA HENDERSON, ) Docket No. 2016-08-1035 

Employee, ) 

v. ) 

THE EGGO COMPANY, ) State File No. 31274-2015 

Employer, ) 

And ) 

CORVEL INSURANCE CO., ) Judge Deana Seymour 

Carrier. ) 

COMPENSATION HEARING 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 

Compensation Hearing on May 2, 2018, and holds Ms. Henderson is entitled to additional 

temporary disability and medical benefits for her lumbar strain and tailbone contusion, 

but no permanent disability benefits. 

History of Claim 

Ms. Henderson injured her back and tailbone when she slipped and fell down 

stairs on April 16, 2015. Eggo provided her a panel of physicians and she chose Dr. 

James Varner, a board certified orthopedic surgeon. 

Ms. Henderson saw Dr. Varner six times from May to July 2015. She reported 

low back and buttock pain 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. He placed her on 

light duty and ordered MRI scans of her low back, sacrum, and tailbone, which showed 

degenerative changes and a disk bulge in her low back. After determining Ms. 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 

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she complamed of urological symptoms and increased pain from lifting totes 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 anticipate permanent impairment. 

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 of trauma or radiculopathy. He interpreted Ms. 

Henderson's MRI report as showing mild lumbar degenerative disc disease. Dr. Murrell 

restricted her to no lifting over twenty-five pounds and ordered an updated MRI. 

That MRI revealed degenerative disc disease at the lowest level of her spine and a 

central disc bulge with no compression of the nerve root. Dr. Murrell could not relate 

either the degenerative disc disease or any aggravation of it 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 

lumbar contusion condition but not 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 of and in the 

course and scope of employment, contributing more than fifty percent to the need for 

medical treatment. 

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 

under the AMA Guidelines. Dr. Chung believed Ms. Henderson's fall aggravated her preexisting 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. He testified Ms. Henderson's fall contributed more than fifty percent to her 

disablement or need for medical treatment, and he believed she needed future medical 

1 Dr. Dlabach provided ongoing treatment for Ms. Henderson's unrelated right knee symptoms. 

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treatment, including medication, nerve blocks, and therapy. 

At the hearing, Ms. Henderson testified she continued to experience back spasms 

and pain in her back, tailbone, and legs. She often needed assistance from her co-workers 

to complete her job duties. Ms. Henderson explained her constant pain 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 asked Eggo for additional treatment before seeing Dr. Dlabach, but Eggo denied 

her request. 

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 of TTD. The parties further agreed to a weekly 

compensation rate of $813.00. The parties also agreed Ms. Henderson returned to work 

for Eggo at the same or greater wage as she earned prior to her injury. 

Ms. Henderson requested additional temporary disability benefits due to the 

undeqJayment, and payment of Dr. Dlabach's bill of $1,744.00 and Dr. Kraus's bill of 

$3 ,472.00.2 She also requested permanent partial disability benefits equal to Dr. Chung's 

twelve-percent impairment rating. Eggo maintained its position that Ms. Henderson did 

not sustain a compensable aggravation of her underlying degenerative disc disease. 

Findings of Fact and Conclusions of Law 

Standard Applied 

Ms. Henderson must establish all elements of her claim by a preponderance of the 

evidence. Tenn. Code Ann.§ 50-6-239(c)(6) (2017). 

Causation 

Ms. Henderson must establish a permanent injury arising primarily out of and in 

the course and scope of her 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 of the 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 of the treating physician, it is more likely than not, considering 

2 The parties stipulated to the amount of Dr. Dlabach and Dr. Kraus' medical bills but Eggo did not agree 

that Ms. Henderson was entitled to payment. 

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all causes. !d. at (14)(D). 

An aggravation of a pre-existing condition is a compensable injury "if 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." 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, 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." Bradshaw v. Jewell 

Mechanical, LLC, 2015 TN Wrk. Comp. App. Bd. LEXIS 16, at * 13-17 (June 4, 20 15). 

Finally, "an aggravation need not be permanent for an injured worker to qualify for 

medical treatment reasonably necessitated by the aggravation." Miller, at * 18. 

Here, Ms. Henderson established that she fell at work. Drs. Varner and Murrell 

agreed Ms. Henderson complained of pain 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 medical treatment necessitated 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 of her pain from degenerative lumbar 

disease. In such situations, the Appeals Board reiterated that Tennessee law has long 

held, "A trial court generally has the discretion to choose which expert to accredit when 

there is a conflict of expert opinions." Brees v. Escape Day Spa & Salon, 2015 TN Wrk. 

Comp. App. Bd. LEXIS 5, at *14 (Mar. 12, 2015). In making its choice, this Court may 

consider, among other things, "the qualifications of the experts, the circumstances of their 

examination, the information available to them, and the evaluation of the importance of 

that information through other experts." !d. When one of those experts is an authorized 

treating physician, that expert's opinion on the issue of causation is afforded a 

presumption of correctness. Tenn. Code Ann.§ 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 of correctness. Drs. Dlabach, Kraus, and Chung were not authorized 

treating physicians. 

Dr. Varner treated Ms. Henderson six times from May to July 2015. He reviewed 

an MRI of her low back. Dr. Murrell treated Ms. Henderson from August to September 

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·· 2015. He also reviewed an MRI and ordered an uvdated MRI. Neither Dr. Varner nor Dr. 

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 anticipated permanent impairment. 

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 causing the 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 of left 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 not need 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 of the 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 of a pre-existing condition. 

Underpayment of Temporary Disability Benefits 

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. 

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Alternative 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 of judicial 

economy. See Cunningham v. Shelton Sec. Serv., 46 S.W.3d 131, 137-138 (Tenn. 2001), 

("the trial court should ... hear the entire case and make appropriate findings of fact and 

alternative findings when necessary, for appellate review.") 

In the alternative, if Dr. Chung's opinion overcame the presumption of correctness 

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 of the initial compensation period 

on June 26, 2019. 

Further, the medical bills of Dr. Dlabach, totaling $1,744.00, and of Dr. Kraus, 

totaling $3,471.00, would be reasonable and necessary, and paid by Eggo. Ms. Henderson 

would also be entitled to future medical benefits with Dr. Murrell as her authorized 

treating physician pursuant to Tennessee Code Annotated section 50-6-204. 

IT IS, THEREFORE, ORDERED as follows: 

1. The Court denies Ms. Henderson sustained a compensable injury resulting m 

permanent disability. 

2. The Court further denies payment of unauthorized medical treatment, including 

the medical bills of Dr. Dlabach, totaling $1,744.00, and of Dr. Kraus, totaling 

$3,471.00. 

3. Eggo shall provide reasonable and necessary treatment with Dr. Murrell related to 

Ms. Henderson's lumbar strain and tailbone contusion. 

4. Eggo shall pay Ms. Henderson $4 31.00 for the underpayment of TTD benefits. 

The Court denies Ms. Henderson's request 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 within ten business days of entry of this order. 

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' 

ENTERED June 1, 2018. 

JUDGE DEANA C. SEYMOUR 

Court of Workers' Compensation Claims 

APPENDIX 

Exhibits: 

1) Medical Records and Bills from OrthoOne Sports Medicine (Dr. Jeffrey 

Dlabach) 

2) Medical Records and Bills from Memphis Interventional Pain (Dr. Alan Kraus) 

3) Deposition transcript of Dr. Samuel Chung 

4) Medical Records from Baptist Memorial Hospital- Collierville 

5) Deposition transcript of Dr. James Varner 

6) Deposition transcript of Dr. Samuel Murrell 

7) Form C-41 Wage Statement 

8) Deposition transcript of Regina Henderson 

Technical Record: 

1) Petition for Benefit Determination 

2) Dispute Certification Notice 

3) Request for Initial Hearing 

4) Scheduling Hearing Order 

5) Amended Scheduling Hearing Order 

6) Transfer Order 

7) Consent Order Substituting Named Defendant 

8) Employee's Disclosure of Expert Witnesses 

9) Notice ofBankruptcy 

10) Notice of United States Bankruptcy Court Order Granting Debtor's 

Application to Employ Attorney for Special Purposes 

11) Amended Scheduling Order 

12) Dispute Certification Notice 

13) Pre-Compensation Hearing Statement 

14) Notice of Filing of Employer's Proposed Trial Exhibit IV and Request to 

Supplement Pre-Compensation Hearing Statement 

15) Supplemental Pre-Compensation Hearing Statement 

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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 June 1, 2018. 

Name Certified Via Via Service sent to: 

Mail Fax Email 

Shannon Toon, X stoon@taylortoon.com 

Employee's Attorney 

Charles Patrick X charlie.Qatrick@leitnerfirm.com 

Employer's Attorney 

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