1 TENNESSEE BUREAU OF W ORKERS’ COMPENSATION WORKERS’ COMPENSAT ION APPEALS BOARD

Braxton Smith ) Docket No. 2019-03-0016 ) v. ) State File No. 30371-2018 ) Galloway Constructi on, LLC, et al. ) ) ) Appeal from the Court of Workers’ ) Compensation Claims ) Pamela B. Johnson, Judge )

Affirmed and Remanded

The employee, a lineman, was in jured when a pole fell from a trailer and struck him on the back, causing him to fall and hit his head. The employer p rovided medical treatment for the employee’s back injury but denied that his complaints o f headaches were causally related to the work accident. The trial court found the employe e was entitled to a panel of neurologists for evaluationand treatment of his headaches. T he employer has appealed. We affirm the trial court’s decision and remand the c ase.

Presiding Judge Marshall L. Davidson, III, delivered the opinio n of the Appeals Board in which Judge David F. Hensley an d Judge Timothy W. Conner joined

. Christopher R. Brooks and Kristi M. Pickens, Knoxville, Tennesse e, for the employerappellant, Galloway Construction, LLC

Ameesh Kherani, Knoxville, Tenne ssee, for the employee-appellee , Braxton Smith

Factual and Procedural Background

Braxton Smith (“Employee”) was w orking for Gallo way Construction, LLC (“Employer”), loading telephone poles onto a trailer when one of the poles fell from the trailer and struck Employee in t he back on April 25, 2018. As aresult, Employee was knocked into the truck to which the trailer was attached and hit h is head. He sought treatment at Cumberland Medical C enter’s emergency room where h e complained of low back pain and headaches. X-rays of his back did not reveal anyfractures, and a CT scan of his head was normal. Employe e was diagnosed with contusions to his back and head. 

### FILED Oct 28, 2019 02:50 PM(CT)
TENNESSEE WORKERS' COMPENSATION APPEALS BOARD2 Employee continued to complain of back pain as a result of the a ccident, and Employer provided authorized med ical treatment, first at MorganCounty Medical Center and then with Dr. Paul Johnson. Dr. Johnson first saw Employee on May 17, 2018, and recommended conservative care for Employee’s back complaints. When Employee’s back complaints did not resolve over the course of several mont hs, Dr. Johnson performed surgery. Employee saw Dr. Johnson for post-surgical follow up in October and November 2018.

On December 21, 2018, Employee saw Dr. Johnson and complained o f headaches. Dr. Johnson noted that Employee “s tates that he has been having headaches all along since the time of his injury.” Dr. Johnson stated that the hea daches were not related to the back injury and, as such, were outside the scope of his pra ctice. He concluded that if Employee “in fact relates this to his job-related injury, I fee l it is [the] compensation carrier’s responsibility to refer him to see someone.” Dr. Johnson placed Employee at maximum medical improvement with respect to his back injury on February 1, 2019.

At some point, Employer sought a records review from a Dr. Robe rt Greenberg. Dr. Greenberg is not further identified, and any report he may h ave provided is not in the record. However, Employer refere nced Dr. Greenberg’s opinion ina written inquiry it sent to Dr. Johnson regarding the cause of Employee’s headaches . The questionnaire asked whether Dr. Johnson agre ed with Dr. Greenberg’s opinion t hat Employee’s headaches were less than 50% cau sally related to the work accid ent, and Dr. Johnson answered in the affirmative.

Employee sought an evaluation w ith Dr. Choudhury Salekin, who o pined that Employee had “[p]ost-traumatic h eadache as a complication of cl osed head injury sustained during the incident at work on 4-25-18.” Dr. Salekinalso completed a Standard Form Medical Report (“Form C-32”) that likewise indicated Employ ee’s headaches were causally related to the work accident.

Employer obtained a second record s review from Dr. David Hauge, who opined that Employee’s headaches were not causally related to his work accident. Dr. Hauge noted that, while there was a complaint of headaches on the day of the accident, there were no further complaints until December 2018. He stated that “in [his] medical judgment and in the absence of anycontradictory history the patient’s onset of headache in [sic] December 21, 2018 would n ot be post[-]traumatic headache and would not be referable to the April 25, 2018 work accident.”

Following the issuance of a dispute certification notice, Employ ee filed a request for an expedited hearing that ide ntified Dr. Salekin as a witnes s “[v]ia C32.” Employee’s request for a h earing was accompanied by his aff idavit but did not include any medical records or the Form C-32. Employee requested that the trial judge issue a decision on the record i nstead of convening an evidenti ary hearing.3 Employer filed an objection to the use of Dr. Salekin’s C-32 in lieu of a deposition as provided in Tennessee Code Annotated section 50-6-235(c)(2) and advised of its intent to schedule his deposition. Employer also objected to Employee’s r equest for a decision on the record and requested an evidentiary hearing. In support of its objection, Employer asserted that Dr. Johnson had e xpressed the opinion that Employ ee’s complaints of headaches were “less than 50% c ausally related” to the work acc ident and attached Dr. Johnson’s records as an exhibit to its response. In addition, Em ployer’s response noted that Dr. Salekin had evaluated Employee and that Employee had “ implied that he intends to enter Dr. Salekin’s medical findings as proof via C-32.” The response noted Employer’s objection to the use of Dr. Salekin’s C-32, stating that Employer planned to depose Dr. Salekin.

Although the record on appeal doe s not include an order address ing Employee’s request for a decision on the record, it is apparent the trial court denied the request, as it scheduled an evidentiary hearin g. Approximately one month after Employer filed its response to Employee’s request for a decision on the record, Employer filed its prehearing brief and witness and exhibit lists. Employer submitted numerous exhibits, including medical records of Empl oyee’s treatment, as well as Dr . Salekin’s report and Form C-32. Employer’s list of exh ibits included “[a]ny and all d ocuments and pleadings filed . . . along with attachments or exhibits to those documents and pleadings.” It also included “any and all medical records or evaluations regarding the Employee.” Employee did not file a pre-hearing brief or a list of exhibits

. At the expedited hearing, Employe e testified that Dr. Johnson’s records were silent with respect to complaints of headaches because Employee knew Dr. Johnson was only treating his back complaint s. He stated that his headache s had been consistently present since the accident, but that he saw no reason to discus s them with a physician who would not address them.

The trial court found Employee ha d presented sufficient evidenc e to establish he would likely prevail at trial i n proving he was entitled to a p anel of physicians for his headaches. In reaching that con clusion, the court admitted Dr. Salekin’s C-32 over Employer’s objection and gave Dr. Salekin’s opinion greater wei ght than that of Dr. Hauge based on the fact that Dr. Salekin actually examined Empl oyee. The court also relied on Employee’s lay testimony, which the court found credible. The court gave no weight to Dr. Johnson’s response s to Employer’s questionnaire i n light of his statements that evaluation and treatment of headaches were beyond the scope of his expertise. Employer has appealed.

Standard of Review

The standard we apply in reviewing a trial court’s decision pre sumes that the court’s factual findings are correct unless the preponderance o f the evidence is otherwise.4 See Tenn. Code Ann. § 50-6-239(c)(7) (2018). When the trial judge has had the opportunity to observe a witness’ s demeanor and to hear in-court testimony, we give considerable deference to factual findings made by the trial co urt. Madden v. Holland Grp. of Tenn., Inc. , 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar deference need be afforded the trial court’s findings based upo n documentary evidence.” Goodman v. Schwarz Paper Co. , No. W2016-02594-SC-R3-WC , 2018 Tenn. LEXIS 8, at *6 (Tenn. Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and application of statutes and regu lations are questions of law th at are reviewed de novo with no presumption of correctness afforded the trial court’s conclu sions. See Mansell v. Bridgestone Firestone N. Am. Tire, LLC , 417 S.W.3d 393, 399 (Tenn. 2013). We are also mindful of our obligation to construe the workers’ compens ation statutes “fairly, impartially, and in accordance wi th basic principles of statuto ry construction” and in a way that does not favor either the employee or the employer. T enn. Code Ann. § 50-6- 116 (2018).

Analysis

A.

Employer first asserts that the trial court erred in admitting D r. Salekin’s C-32 into evidence. Employer argues that Employee gave inadequate notice of his intent to use the C-32 as required by Tennessee Co de Annotated section 50-6-235(c )(2), that the C-32 was deficient because it failed to include all the information required by section 50-6- 235(c)(1), and that the court failed to make findings establish ing good cause for excusing Employee’s failure to file medi cal records prior to the hearing

.

Tennessee Code Annotated section 50-6-235(c)(1) states that “[a] ny party may introduce direct testimony from a physician through a written m edical report on a form established by the administrator. . . . Any wr itten medical report sought to be introduced into evidence shall include within the body of the report or as an attachment a statement of the qualifications of the person making the report.” Furthe rmore, the report “shall be admissible at any stage of a workers’ compensation claim in lieu of a deposition upon oral examination, if notice of intent to use the sworn statement is provided to the opposing party or coun sel not less than twenty (20) days before the date of intended use.” Tenn. Code Ann. § 50-6-235(c)(2) (2018).

With respect to Employer’s argum ent that it did not receive ade quate notice of Employee’s intent to use Dr. Salekin’s C-32, the court found th at Employee’s indication on his request for expedited hear ing that Dr. Salekin would appe ar “via C-32” was sufficient to put Employer on no tice that Employee intended to rely on the document. We agree.5 Also without merit is Employer’s argument that the C-32 is defi cient and therefore inadmissible. Because Employee fa iled to file any medical reco rds in the trial court, including Dr. Salekin’s C-32, Employer made the decision to fil e the records of Employee’s treatment, as well as Dr. Salekin’s C-32, noting in i ts brief on appeal that “Employer did not file Dr. Salekin’s curriculum vitae .” However, we conclude Employer cannot now complain that the document should have beenexcluded for its deficiencies when those deficiencies were the result of Employe r’s determination of which records to file and its indi cation that it would rely on “ [a]ny and all documents and pleadings filed . . . along with attachments or exhibits to those d ocuments and pleadings.” Moreover, other than asserting that it did not receive adequate notice of Employee’s intent to use Dr. Salekin’s Form C-32 at the expedited hearing, Employer did not raise any issue in the trial court concerning whether the Form C-32 m et the statutory requirements. Such issues are therefore waived.

Employer also takes issue with E mployee’s failure to file any m edical records with the trial court in support of his request for benefits, as well as the trial court’s lack of findings establishing good cause for Employee’s failure to file any records. The trial court cautioned Employee that not submitting medical records or other documentation to support a request for benefits was not good practice, and we ag ree. 1 While it is true that Employee failed to file any documentation other than his own aff idavit to support his claim, Employer elected to file Employee’s medical records. 2 Thus, the record contains Employee’s treatment records and Dr. Salekin’s report and C-32, and these records provide an adequate basis for the trial court’s decision.

In short, there is no dispute that Employer objected to the adm ission of Dr. Salekin’s C-32 (which it filed) and notified the court and Emplo yee of its intent to depose Dr. Salekin. Moreover, we recog nize Employer’s argument that, between the time it became aware of Employee’s intent to rely on Dr. Salekin’s C-32 and the expedited hearing, it was not feasible to schedule Dr. Salekin’s depositio n. However, Employer did not seek a continuance to be allo wed the opportunity to depose Dr. Salekin. Rather, Employer filed the C-32 and Employee’s medical records and proc eeded with the expedited hearing. Issues reg arding the admissibility of exper t testimony are left to the discretion of the trial court an d will not be overturned unless the trial court abused its discretion. Bogle v. Nighthawk Radiology Servs., LLC , No. M2014-01933-COA-R3-CV, 2016 Tenn. App. LEXIS 244, at *20 (Tenn. Ct. App. Apr. 6, 2016) . We find no abuse of discretion under the circumstances presented.

1 We also note that Employee has failed to file a brief on appeal as required by Tenn. Comp. R. & Regs. 0800-02-22-.02(2) (2018).

2 Even assuming the trial court had excluded the Form C-32, Dr. Sa lekin’s April 28, 2019 report was admissible for purposes of the expedited hearing pursuant to Te nn. Comp. R. & Regs. 0800-02-21- .16(6)(b) (2018). In that report, Dr. Salekin opined that Emplo yee suffered from “post-traumatic headaches as a complication of cl osed head injury sustained dur ing the incident at work on 4-25-18.”6 B.

Employer’s remaining issues may be restated as whether the trial court erred in finding Employee will likely prevail at trial in establishing h is entitlement to a panel of neurologists. Employer asserts that the trial court erred in i ts evaluation of the medical proof because it failed to conduct a thorough analysis of the f actors set out in Bass v. The Home Depot U.S.A., Inc. , No. 2016-06-1038, 2017 TN Wrk. Comp. App. Bd. LEXIS 36 (Tenn. Workers’ Comp. App. Bd. May 26, 2017). In that case, we stated that when faced with contradictory expert medical opinions, “the trial judge mus t obviously choose which view to believe. In doing so, [the trial judge] is allowed, am ong other things, to consider the qualifications of the experts, the circumstances of their e xamination, the information available to them, and the evaluation of the importance of that information by other experts.” Id. at *9 (citing Orman v. Williams Sonoma, Inc. , 803 S.W.2d 672, 676 (Tenn. 1991)). Because the trial court did not set out a detailed ana lysis of each of these factors, Employer argues the court abusedits discretion in determining which medical expert’s opinion to accept. We disagree.

While the factors identified by the Supreme Court in Orman and adopted by us in Bass are relevant factors to consider, a trial court need not engage i n a detailed analysis of each factor prior to reaching its decision. Here, the court gave little weight to Dr. Johnson’s opinion based on his previously expressed lack of qua lifications with respect to evaluating and treating headaches. The court then considered t he opinions of Dr. Hauge and Dr. Salekin and concluded th at, viewed in the context of Emp loyee’s testimony, which the court found credible, Dr. Salekin’s opinion was the m ore persuasive. We conclude the trial court di d not abuse its discretion.

Employer also points out that, to the extent Dr. Johnson’s reco mmendation that Employee “see someone” is a referral, it is vague and does not identify the specialty of the physician Employee should s ee. Employer asserts that, in o rdering it to provide a panel of neurologists, the trialcourt inappropriately exercise d medical judgment. However, Employer does not assert that another specialty is mor e appropriate or that neurology is in some way inappropriate. We conclude that the e vidence does not preponderate against the trial court’s conclusion that Employee is likely to prevail at a hearing on the merits in estab lishing his entitlement to a pane l of neurologists.

Conclusion

For the foregoing reasons, we affirm the trial court’s decision and remand the case. Costs on appeal are taxed to Employer.7(11(66((%85($8 2):25.(56¶&203(16$7,21 :25.(56¶&203(16$7,21$33($/6%2$5'

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