1 TENNESSEE BUREAU OF WO RKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Ceasar Gamble ) Do cket No. 2016-01-0372 )

v. ) State File No. 63828-2015 ) Miller Industries, Inc., et al. ) ) ) Appeal from the Court of Workers’ ) Compensation Claims ) Thomas Wyatt, Judge )

Affirmed in Part, Vacated in Part and Remanded - Filed February 9, 2017

In this interlocutory appeal, the employer c ontests the trial court’s award of medical benefits to the employee, who fell at work and suffered compensable injuries to his left hip and low back. The authorized treating physician recommended a hip replacement and the employer denied that treatment, contendi ng the need for the hip replacement did not arise primarily out of the employment. At the request of the employee, and without objection from the employer, the trial court rendered a decision wi thout convening an evidentiary hearing, determin ing the employee was likely to prevail at a hearing on the merits in establishing his en titlement to the requested medical benefits but denying the request for temporary disability be nefits. Both parties have appealed. We affirm the trial

court’s award of medical benefits for treatm ent of the employee’s compensable left hip and low back injuries and its denial of temporary disability benefits, but vacate the trial court’s finding that the employee will likely pr evail in establishing th at his need for the hip replacement surgery arose pr imarily out of the employment. We remand the case for further proceedings as may be necessary.

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

Eric Shen, Brentwood, Tennessee, for the employer, Miller Industries, Inc.

Ceasar Gamble, Chattanooga, Tennessee, employee, pro se2 Factual and Procedural Background

Ceasar Gamble (“Employee”) suffered in juries on August 14 , 2015, while in the course and scope of his empl oyment with Miller Industries, Inc. (“Employer”), when the stool he was attempting to sit on rolled out from under him, causing him to fall. The claim was accepted as compensable, and Empl oyer provided authorized medical care for Employee’s low back and left hip injuries. Employee initially sought medical care from the emergency department at Memorial Hosp ital in Chattanooga. A pelvic CT scan

revealed no evidence of trau matic injury, but indicated se vere left hip osteoarthritis, evidence of a right hip arthroplasty, and lu mbar degenerative disc disease and facet arthropathy.

On August 24, 2015, Employee treated at Physician’s Care, a walk-in clinic, complaining of “constant left side pain since Fri. Aug 14, 2015.” He denied a history of similar problems and was diagnosed with lumbar sprain or strain and left hip/thigh sprain

or strain.

Employee received medical treatment at Nova Medical Centers on multiple occasions from August 24, 2015 through January 2016, incl uding physical therapy.

While the record includ es several work status forms from Nova Medical Centers, it does not include any office notes fo r Employee’s visits other th an a January 12, 2016 note signed by Dr. Daniel Callan. Th at record reflects that Empl oyee reported a “sudden onset of pain [in his] head and hip while [at] wo rk,” noting that Employee “claims [he] fell and hit his left hip and head when a chair rolled aw ay when he went to sit down.” It states that a left hip MRI revealed “[a]dvanced left hip arthropathy with marked cartilage loss, femoral head subluxation, subchrondral cyst s, mixed reactive acetabular bone changes, marginal osteophytes, moderate left hip effusion with 10 mm probable cartilaginous loose body in the anterior recess, [and] diffuse labr al degeneration without discrete tear.” The report states that Employee was “advised to follow-up with his/her primary care doctor for positive review of systems that are not related to the injury.”

Employee was provided authorized medica l treatment with Dr. Alexander Roberts, an orthopedist, whom he first saw on February 4, 2016 for complaints of “lumbar spine and [left lower extremity] pain with [numbness and tingling] and weakness.” 1 At a March 7, 2015 visit, Dr. Roberts injected Employee’s left hip for therapeutic and diagnostic purposes, noting that prior to leaving, Employee reported “100% total improvement of [his] symptoms.” At the following visit on March 31, 2016, Dr. Roberts noted that although the hip injection provid ed significant relief of hip pain, Employee “continues to experience left lower back pain consistent with a lumbar etiology.” Dr.

1 Dr. Roberts provided treatment for Employee’s low back complaints, which ultimately resolved. Because the low back is not at issue in this app eal, we have not addressed that aspect of Employee’s

medical treatment.3 Roberts recommended a lumbar MRI and also recommended a referral to an orthopedic surgeon for a hip evaluation, stating that Employee “does continue to complain of

intermittent left lower extrem ity weakness which is most lik ely secondary to left hip injury/degenera tive joint disease.” Dr. Roberts also expressed the opinion in his report that “[i]t appears the patient had a pre-existing left degene rative hip, which was injured during a trauma on 8/14/2015.”

Employee returned to Dr. Roberts on Ma y 6, 2016 for follow-up after undergoing an MRI of his lumbar spine, reporting that his lumbar pain had improved. Based on the results of the MRI, Dr. Roberts concluded that Employee “does have facet arthritis which could’ve been aggravated du ring the injury.” However, due to th e improvement in Employee’s lumbar symptoms, he did not recommend any further treatment of the lumbar spine, but again recommended Employe e “continue with his orthopedic consult for a left hip.” He noted the MRI “[did] no t indicate any significant neural compression which could result in his left lower extremity weakness,” and stated “[t]he left lower extremity symptoms are most likely related to the left hip injury and not the lumbar spine.”

Employer authorized the recommende d examination, and on May 24, 2016, Employee saw hip specialist Dr. Matthew Bernar d. He noted that Employee complained of severe, intermittent left hip pain and ob served that Employee ha d been “dealing with longstanding avascular necrosis since at least back in 2012.” He stated that Employee “has been managing this and has been ab le to work.” He observed that “[n]ew radiographs are available on ou r system, as well as an MRI . . . that was done back in October 2015 after the fall, that did show hi s advanced arthropathy, but it also showed the 10mm probable cartilaginous loose body in the anterior jo int recess.” He expressed a causation opinion, stating “I believe that th is represents fractured osteophyte from his fall, based on our comparative films available on our system.” Ad ditional x-rays were obtained at Dr. Bernard’s office on May 24, 2016, and he addressed them as follows:

Severe arthrosis with loss of joint sp ace. Positive osteophytes. Several broken osteophytes represen ting loose bodies within th e joint, in the area of consistent osteonecrosis [present on] his prior films and today’s films. Interval change from 2013 films to today’s films are these osteochondral

loose bodies within the joint space.

Dr. Bernard noted that th e October 20, 2015 MRI reveal ed “[a]dvanced left hip arthropathy with marked cartilage loss, fe moral head subluxation, subchondral cysts, mixed reactive acetabular bone changes, and ma rginal osteophytes”; “[m]oderate left hip effusion with 10mm probable cartilaginous loos e body in the ante rior joint recess”; “[d]iffuse labral degenerati on without discrete tear”; an d “[n]o acute bony abnormality, tendinopathy, or periarticular soft tissue in jury.” Ultimately, Dr. Bernard recommended that Employee undergo a left total hip replac ement, stating that Employee “is no longer4 able to ambulate to perform his duties, seco ndary to the hip pain and the catching from the loose bodies.” He expressed the opinio n that “arthroscopically removing the loose bodies is not the appropriate answer and that to take care of his entire problem and get him back to a functional manual labor type job will require total hip arthroplasty.”

Two months later on July 27, 2016, and in apparent response to an inquiry from Employer’s insurance carrier co ncerning the rationale for his opinion for the left total hip replacement, Dr. Bernard provi ded the following opinion:

After review of all of [Employee’s] films, as well as my office notes, my

intent in that note was to convey the medical rationa le for his need for a hip arthroplasty and not to im ply that this was greater than 50% causally related

to his fall at work. While the fall at work certainly was the proverbial straw that broke the camel’s back, it is cert ainly evident radiographically that his avascular necrosis was long standing and would represent greater than 51% of the need for hip repl acement. I do think there were interval changes prior to the fall and post -fall, including fractured osteophytes. This however is the natural course of pr e-collapse to post-collapse avascular necrosis. In regards to the last statem ent in this letter, that it appears that [Employee] was already a candidate for a left total hip arth roplasty prior to the 08-14-2015 injury, I do agree that radiographically [Employee] was a candidate for this hip replacement prior to this [08-14-2015] event.

Employer denied authori zation for the left hip repl acement, asserting the work

accident did not result in Employee’s need for the surgery. The parties ag reed to forego an evidentiary hearing and, after concluding no additional in formation was necessary, the trial court rendered a decision requiring Empl oyer to provide ongo ing treatment for the left hip. Specifically, the j udge determined that “at a hear ing on the mer its, [Employee] will likely prevail in establis hing that his need for left hip replacement surgery arose primarily out of and in the course and scope of employment.” The trial court additionally denied Employee’s request for te mporary disability benefits. Both parties have appealed.

Standard of Review

The standard we apply in reviewing a tria l court’s decision is statutorily mandated and limited in scope. Specifically, “[t]here shall be a presumption that the findings and conclusions of the workers’ compensation judge are correct, unless the preponderance of

the evidence is otherwise.” Tenn. Code An n. § 50-6-239(c)(7) (2015). The trial court’s decision may be reversed or modified if th e rights of a party “have been prejudiced because findings, inferences, conclusions, or decisions of a workers’ compensation judge:

(A) Violate constitutional or statutory provisions; (B) Exceed the statutory authority of the workers’ compensation judge;5 (C) Do not comply with lawful procedure; (D) Are arbitrary, capricious, characteri zed by abuse of discretion, or clearly an unwarranted exercise of discretion; or (E) Are not supported by evidence that is both substantial and material in the light of th e entire record.”

Tenn. Code Ann. § 50-6-217(a)(3) (2015).

Analysis

Employee’s Appeal

For his statement of the issues or basi s for relief on appeal, Employee wrote on the notice of appeal that he was “threatened by employer to retu rn from light duty to perform job that cause[d] injury.” Employee has provid ed no other statement regarding any issues he attempts to raise on appeal, and he ha s provided no argument, brief, or position statement setting out how the trial court erred in deciding the case. As stated by the Tennessee Supreme Court, “[i]t is not the role of the courts, trial or appellate, to research or construct a litigant’s case or arguments for him or her.” Sneed v. Bd. of Prof’l Responsibility of the Supreme Court of Tenn. , 301 S.W.3d 603, 615 (Tenn. 2010). Indeed, were we to search th e record for possible errors a nd raise issues and arguments for Employee, we would essentially be acti ng as his counsel, which the law clearly prohibits us from doing. Courts on appeal will not “dig through the re cord in an attempt to discover arguments or issues that [a part y] may have made” because doing so “would place [the opposing party] in a distinct and likely insurmountable and unfair disadvantage.” Webb v. Sherrell , No. E2013-02724-COA-R3 -CV, 2015 Tenn. App. LEXIS 645, at *5 (Tenn. Ct. Ap p. Aug. 12, 2015). Accordi ngly, we decline to conduct an “archaeological dig” into the record in an attempt to discov er errors that might benefit either party. McEarl v. City of Brownsville , No. W2015-00077-COA-R3-CV, 2015 Tenn. App. LEXIS 894, at *7 (Tenn. Ct. App. Nov. 6, 20 15). Here, it is unclear from Employee’s comment on the notice of appeal how he contends the tr ial court erred in resolving the case, and we decline to speculate.

Employer’s Appeal

Employer raises a single issue on ap peal questioning whether Employee’s claim for medical benefits for his left hip injury should be denied ba sed on Dr. Bernard’s written statement that Employee’ s need for a left hip replacement “was more than 51% due to pre-existing avascular necrosis.” Fo r the reasons that fo llow, we agree with Employer that the medical proof to date is insufficient to show th at Employee will likely prevail at a hearing on the mer its in establishing that the work injury contributed more than 50% in causing the need for his left hip replacement. Accordingly, to the extent the trial court’s order requires Employer to auth orize and pay for a left total hip replacement,6 the order is vacated. Employee is, howev er, entitled to ongoing medical treatment reasonably necessary as a result of the work -related left hip and low back injuries.

As our prior opinions have consistently stated, although an in jured worker has the burden of proof on every essentia l element of his or her claim, at an expedited hearing an employee need not prove every element by a preponderance of the evidence, but must

come forward with sufficient ev idence from which the trial court can determine that the employee would likely prevail at a hearing on the merits consistent with Tennessee Code

Annotated section 50-6 -239(d)(1) (2015). McCord v. Advantage Human Resourcing , No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd . LEXIS 6, at *9 (Tenn. Workers’ Comp. App. Bd. Mar. 27, 2015). We ha ve described the burden of pr oof at an expedited hearing as a lesser evidentiary standard that “doe s not relieve an employee of the burden of producing evidence of an injury by accident th at arose primarily out of and in the course and scope of employment . . ., but allows some relief to be granted if that evidence does not rise to the level of a ‘pre ponderance of th e evidence.’” Buchanan v. Carlex Glass

Co.

, No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd. LEX IS 39, at *6 (Tenn. Workers’ Comp. App. Bd. Sept. 29, 2015).

Tennessee Code Annotated section 50-6-1 02(14) (2015) defines “injury” as “an injury by accident . . . arising primarily out of and in the c ourse and scope of employment, that causes death, disablement or the need for me dical treatment .” (Emphasis added.) Furthermore, “[a]n injury causes death, disablement or the need for

medical treatment only if it has been shown to a reasonable degree of medical certainty

that it contributed more than fifty percent (50%) in causing the death, disablement or need for medical treatment , considering all causes.” Tenn. Code Ann. § 50-6-102(14)(C) (emphasis added).

In this case, Employee has failed to pr oduce evidence suggesting that the work injury contributed more than 50% in caus ing the need for the total hip replacement surgery. Although Dr. Roberts expressed a causation opinion stati ng Employee’s left hip complaints are “most likely secondary to the left hip injury/degenerative joint disease,” and that Employee’s hip was “injured during a trauma on 8/14/2015, ” he did not express an opinion as to the treatment reasonably necessary or recommended for the left hip injury or whether the injury contributed more than 50 % in causing the need for such

medical treatment. While Dr. Bernard’s medical records reflect his opinion that the fall at work caused one or more osteophytes to br eak off and enter the “a nterior joint space,” there is no medical opinion suggesting that th is work accident contributed more than 50% in causing the need for the r ecommended hip replacement. To the contrary, Dr. Bernard stated in response to Employe r’s inquiry that “[w]hile the fall at work certainly was the proverbial straw that broke th e camel’s back, it is certainly evident radiographically that his avascular necrosis was long standing an d would represent greater than 51% of the need for hip replacement.” Th ere is no medical proof in th e record cont radicting Dr. Bernard’s opinion or supportin g the contention that the Au gust 14, 2015 work injury7 contributed more than 50% in causing the need for the left hip replacement as required by

Tennessee Code Annotated section 50-6-102(14)(C).

Furthermore, there is no suggestion in the trial court’s order that it disregarded Dr. Bernard’s opinion or did not fi nd the opinion to be credible . Instead, the trial court considered that, prior to Em ployee’s work-related injury, he “had not received treatment for, nor been impaired from working at [Empl oyer] by, left hip pain.” The trial court

considered Dr. Bernard’s statement that Employee was a “candidate” for left hip replacement surgery before his fall “with the fact that the submitted evidence failed to establish that any physician had recommended treatment on [Employee’s] left hip before he fell.” In addition, the trial court observed that “after enduring left-hip pain for six months following his work-re lated fall, [Employee] is not now a candidate for hip surgery as he was before he fell, but, accordi ng to Dr. Bernard, is currently a surgical patient.” (Emphasis added.) Although these observations and considerations are relevant to the issue at hand, the only medical opinion addressing the statutory requirement that an injury “contribute[] more than fifty percent (50%) in causi ng the . . . need for medical treatment” is Dr. Bernard’s opinion that Employee’s pre-existing avascular necrosis “would represent greater than 51% of the need for hip re placement.” While Employee may ultimately succeed in presenting medical ev idence sufficient to establish that his work injury contributed more than 50% in causing the need for the left hip replacement,

the record does not contain such evidence at this stage of the proceedings. Although our review begins with the presumption that the trial court’s conclusion that Employee would likely prevail at trial in establishing “his need for left hip replacement surgery arose primarily out of and in the course an d scope of employment” is correct, the preponderance of the evid ence in the record on appeal is otherwise. See Tenn. Code Ann. § 50-6-239(c)(7) (2016).

There is, however, no dispute that Employee fell at work and suffered injuries to his left hip and low back as a result of th e incident. Thus, Employee remains entitled to medical treatment made reasonably necessary by and causally related to the work injury

in accordance with Tennessee Code Annotated sections 50 -6-204 and 50-6-102(14).

Conclusion

For the foregoing reasons, we hold that the evidence preponderates against the

trial court’s determination that Employee will likely prevail at trial in establishing that the need for left hip replacement surgery arose pr imarily out of and in the course and scope of the employment. However, the preponderance of the evidence supports the conclusion that Employee is entitled to ongoing medical treatment ma de reasonably necessary by and causally related to the wo rk injury. Accordingly, th e trial court’s order that Employee is entitled to medical benefits for trea tment of his left hip and low back injuries is affirmed, as is the trial court’s denial of temporary disability benefits. The trial court’s finding that Employee will lik ely prevail in establishing that his need for left hip8 replacement surgery arose prim arily out of and in the course and scope of the employment is vacated and the case is re manded to the trial court for any further proceedings that may be necessary.TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPEN SATION APPEALS BOARD

) Docket No. 2016-01-0372
)
) State File No. 63828-2015
) C eas ar Gamble

v.

Miller Industries, Inc., et al. )

CERTIFICATE OF SERVICE

I hereby certify that a true and correct c opy of t h e Appeals B o ard’s deci sion in the

referenced case was sent to th e following recipients by the following methods of service on this the 9th day of February, 2017.

Name Certified

Mail First Class

Mail Via

Fax F ax Nu mber Via

Email Email Address

Ceasar Gamble X C/O 5131 Mimosa Circle, Chattanooga, TN

37416

Eric Shen X Eric.shen@LibertyMutual.com Thomas Wyatt, Judge X Via Electronic Mail Kenneth M. Switzer, Chief Judge X Via Electronic Mail

Penny Shrum, Clerk,

Court of Workers’ Compensation Claims X Penny.Patterson-Shrum@tn.gov

Jeanette Baird Deputy Clerk, Workers’ Compensation Appeals Board 220 French Landing Dr., Ste. 1-B Nashville, TN 37243 Telephone: 615-253-0064

Electronic Mail: Jeanette.Baird@tn.gov