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

Charity Blevins ) Docket No. 2018-01-0673 ) v. ) State File No. 86761-2017 ) Southern Champion Tray, LP, et al. ) ) ) Appeal from the Court of Workers’ ) Compensation Claims ) Thomas L. Wyatt, Judge )

Affirmed and Remanded

In this interlocutory appeal, the employee alleges suffering a lowback injury while performing her work duties. Based on the authorized physician’s opinion that the work incident aggravated the employee’s pre-existing condition but th at greater than 51% of the cause was related to the employee’s degenerative pre-existin g process, the employer denied the claim. The employee sought treatment from another ph ysician whose responses to a questionnaire indicated the work incident more li kely than not caused the employee’s need for medical treatment. Following an evidentiar y hearing, the trial court awarded medical benefits and ordered the employer to authorize further treatment with the physician sought out by the employee. The employer has app ealed. While we disagree with certain determinations of the trial court, we aff irm the trial court’s decision and remand the case.

Judge David F. Hensley delivered the opinion of the Appeals Board in which Presiding Judge Marshall L. Davidson, III, and Judge Timothy W. Conner joine d.

Nicholas S. Akins, Nashville, Tennessee, for the employer-appell ant, Southern Champion Tray, LP

R. Ethan Hargraves, Chattanooga , Tennessee, for the employee-app ellee, Charity Blevins

Factual and Procedural Background

Charity Blevins (“Employee”) worke d for Southern Champion Tray, LP (“Employer”), as a machine operato r. On November 10, 2017, she w as in the process of clearing her machine of a jam, which was a routine part of her job. In clearing the jam, 

### FILED Jul 11, 2019 11:30 AM(CT)
TENNESSEE WORKERS' COMPENSATION APPEALS BOARD2 she bent over and reached into the machine with a tool in one hand while pushing a button on top of the machine with her other hand. She reported that, while she was bent over, she felt a pop in her lower back accompanied by pain and spreading warmth over her low back. She was unable to stand up due to the pain, and sh e remained bent over until a co-worker noticed she was in distress. When the co-wor ker approached her, she was crying. Her supervisor was notified, and someone retrieveda wheelchair for her to sit in. She was taken to the breakroom where an accident repor t was comple ted. Because her symptoms worsened, her supervi sor took her to the emergency r oom.

At the emergency room, Employee reported she had been bending o ver a machine when she felt a sudden pop and a warm sensation across her lowe r back. She denied a history of previous back problem s. X-rays did not reveal evide nce of an acute trauma, and she was discharged.

Due to Employee’s persistent symptoms, Employer instructed her to go to WorkForce Corporate Health where she was seen by Dr. Jayant Eldurkar three days after the incident. He noted she experienced the sudden onset of low back pain with a sharp pop while she was leaning over her machine. He diagnosed her wi th a lumbar strain, prescribed medication, and assi gned work restrictions. He also o rdered an MRI, which was completed on November 28 and interpreted by the radiologist as revealing a “central disc protrusion at L4-5, mildly compressing the L5 nerve root o rigins and creating moderate central canal stenosis.” When Employee returned to Dr . Eldurkar she reported she was no better and complained of tingling on her right side. At that visit, Dr. Eldurkar referred Employee for a spine consultation.

Employer subsequently provided Em ployee a panel of physicians f rom which she selected Dr. Rickey Hutcheson. She saw Dr. Hutcheson one time, and he diagnosed her with lumbar degenerative disc disease, a disc protrusion, and lowback pain. In a section of his reported titled “Causati on,” he included the following:

Based on recent literature of the AMA Guide to Evaluation of Disease and Injury Causation, Second Edition , in my opinion, I would have to say that greater than 51% of the causation is more related to her degene rative preexisting process and not a work-related injury in that there was no event that occurred at work. I feel that she just has an aggravationof a preexisting condition.

Addressing the MRI, Dr. Hutcheson disagreed with the radiologist ’s impression of an L4- 5 central disc protrusion “creating moderate central canal sten osis,” stating the MRI

showed degenerative di sc[s] at L4-5 and L5-S1 with disk protrusi on at L4-5 without significant nerve root c ompression. It was read as mod erate central stenosis but I disagree. I do no t think there is moderate cent ral stenosis.3 Dr. Hutcheson’s report stated that he gave Employee steroids and “put her on medical restrictions,” adding that “[a]s far as workers’ comp is concerned, there are no restrictions, but as far as medi cal is concerned, I put her on medical restrictions.”

On December 13, 2017, Employer denied the claim. Employer subseq uently sent Dr. Hutcheson a questionnaire on which he marked responses indicat ing Employee has “multilevel degenerative disc dis ease” that pre-existed the work i ncident, that her “low back pathology” is not primarilyrelated to the November 10, 20 17 incident at work, and that Employee did not suffer any anatomical change in the condit ion of her lumbar spine as a result of the incident at work.

Employee thereafter sought an ev aluation with Dr. Paul Broadston e for complaints of low back pain that radiated in to her right leg. She describe d bending over a machine at work and feeling her back pop, followed by a burning sensation i n her low back. Dr. Broadstone diagnosed her with degenerative disc disease and ord ered physical therapy. He also prescribed medications and assigned work restrictions. Employee testified she did not follow up with Dr. Broads tone because she lost her job and, with it, her medical insurance.

On June 28, 2018, Dr. Broadstone responded to a questionnaire s ent by Employee, indicating that Employee’s back inj ury was “historically related to [the] bending incident,” and that the incident more likely than not caused he r need for medical treatment. Dr. Broadstone noted on the questionnaire that Empl oyee had “no history of previous back issues.” 1

At an expedited hearing, Employer as serted that Dr. Hutcheson was the authorized physician and that his causation opi nion should be afforded a statutory presumption of correctness. In addition, Employer argued that Employee did not present sufficient proof to rebut the statutory presumptio n. Employee, on the other hand , asserted she had successfully rebutted the presumption. The trial court agreed with Employee, finding her testimony that she had not experienced significant back pain bef ore the work incident to be credible. The trial court concluded that Employee injured h er back as a result of the November 2017 incident and that t he injury “significantly advan ced the severity of her pre-existing degenerative disc d isease, which was mostly asympt omatic before the injury occurred.” Thus, according to the trial court, the issue was “whether the medical evidence establishe[d] that [Empl oyee] is likely to prove at tri al that her back condition arose primarily out of and in the course and scope of [her] emp loyment.” The court concluded that, when viewed with Employee’s credible testimony, “the medical evidence entitles [Employee] t o medical benefits.”

1 At the expedited hearing, Employee testified that she had seen Dr. Broadstone again in October 2018. The notes from that visit are not contained in the record on ap peal.4 In reaching its decision, the trial court stated that it “gives limited weight to Dr. Hutcheson’s opinion that [Employ ee] did not experience an injur ious ‘event’ at work.” In addition, the trial court determined that Dr. Broadstone’s opi nion was sufficient to establish Employee would likely prevail at trial on the issue of causation. In deciding which doctor was to provide treatment, the court concluded that the panel provided by Employer from which Employee sel ected Dr. Hutcheson was for eva luation rather than treatment, thus rendering it an improper panel. The court dete rmined that Dr. Broadstone would be the authorized physician to treat Employee because Empl oyer “failed to give [Employee] the opportunity to select a physician to treat her i njury as is required by the Tennessee Workers’ Compensation Law.” Finally, the trial court found Employee had not presented sufficient proof of entitlement to temporary disa bility benefits and declined to award such benefits. Employer has appealed. 2

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. See Tenn. Code Ann. § 50-6-239(c)(7) (2018). When the trial judge h as 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

Employer raises two issues on appeal: (1) whether the trial cour t erred in ordering Employer to provide medical ben efits; and (2) whether the trial court erred in naming Dr. Broadstone the authorized physician.

It is well-settled that an injured worker has the burden of pro of on every essential element of his or her claim. Tenn. Code Ann. § 50-6-239(c)(6); see also Buchanan v.

2 Employee has not appealed the trial court’s denial of temporary disability benefits. Thus, we do not address that issue.5 Carlex Glass Co. , No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *5 (Tenn. Workers’ Comp. App. Bd. Sept. 29, 2015). However, at an e xpedited hearing, an employee need not prove every element of his or her claim by a preponderance of the evidence but must come forward w ith sufficient evidence from wh ich the trial court can determine that the employee is l ikely to prevail at a hearing o n the merits consistent with Tennessee Code Annotated section 50-6-239(d)(1). 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). This lesser evidentiary standard “does not relieve an employee of the burden of producing evidence of an i njury by accident that arose primarily out of and in the course and scope of employmen t at an expedited hearing, but allows some relief to be granted if that evidence does not rise to the level of a ‘preponderance of the evidence.’” Buchanan , 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6.

Award of Medical Benefits

Employer asserts that, in accord ance with Tennessee Code Annotated section 50- 6-102(14)(E), Dr. Hutcheson’s cau sation opinion is presumed to be correct, and that Employee did not successfully re but the statutory presumption. Employer contends the trial court erred in assessing the appropriate weight to be giv en to Dr. Hutcheson’s opinion and that the evidence wa s insufficient for the trial co urt to determine that Employee would likely preva il at trial. We disagree.

As an initial matter, the trial court found Employee’s testimony that she had not experienced significant back pain before the November 2017 inci dent to be credible. When a trial judge has seen and heard the witnesses, we give con siderable deference to the court’s credibility determinations. See Tryon v. Saturn Corp. , 254 S.W.3d 321, 327 (Tenn. 2008). In addition, “[t] here shall be a presumption tha t the findings and conclusions of the workers’ co mpensation judge are correct, unl ess the preponderance of the evidence is otherwise.” Tenn. Code Ann. § 50-6-239(c)(7).

The trial court gave “limited weight to Dr. Hutcheson’s opinionthat [Employee] did not experience an injurious ‘event’ at work.” The court ob served that Dr. Hutcheson’s statement was not only contradictory to Employee’s te stimony, but “[i]t is also at odds with the doctor’s own opinion that [Employee] ‘has an aggravation of a preexisting condition.’” Employee imme diately and consistently desc ribed bending over her machine, feeling a pop accompanied by pain and a sensation of w armth, being unable to stand up, requiring a wheelchair to go to the breakroom, and be ing transported to the emergency room by her superviso r. Her description of the incid ent and its effect on her is not contradicted in the reco rd and is sufficient evidence fro m which the trial court could determine she is likely to prevail in establishing an inj urious event for purposes of an interlocutory award of benefits. See Tenn. Code Ann. § 50-6-102(14)(A) (“An injury is ‘accidental’ only if the injur y is caused by a specific incid ent, or set of incidents,6 arising primarily out of and in the course and scope of employm ent, and is identifiable by time and place of occurrence . . . .”). In add ition, Dr. Hutcheson’s statement that there was no “event” at work is incons istent with Employee’s testimony, inconsistent with the medical records, and inconsistent with the first report of injury filed by Employer. Considering the documentary evidence and Employee’s testimony, we conclude the trial court did not err in giving Dr. H utcheson’s causa tion opinion lim ited weight.

Moreover, the questions presented to Dr. Hutcheson and his resp onses provide little support for the opinion expres sed in his report that “gre ater than 51% of the causation is more related to [Em ployee’s] degenerative pre-exis ting process and not a work related injury.” In his re sponses, Dr. Hutcheson agreed that Employee “suffers from multilevel degener ative disc disease,” and he agreed that the disease pre-existed the November 2017 incident. There is no dispute that Employee’s dege nerative disc disease was present before the work incident and that it was not caused by the work incident. Dr. Hutcheson checked “no” when asked whether Employee’s “low back pathology [is] primarily related to the November 10, 2017, inciden t ‘leaning over the machine,’ considering all potential causes,” and he responded “no” when as ked whether Employee suffered “any anatomical change in the condition of her lumbar spine primarily related to the November 10, 2017 incide nt.” (Emphases in original.)

However, the relevant questions are whether the incident at work caused an aggravation of Employee’s pre-ex isting condition and whether that aggravation arose primarily out of her employment. See Tenn. Code Ann. § 50-6-102(14)(A). While Dr. Hutcheson opined there was no anat omical change as a result of th e work incident, there is no indication in the record that he compared post-accident di agnostic tests with any pre-accident tests. Further, a pre-existing condition that is made symptomatic by a work injury may be found to be compen sable even in the absence of me dical proof of an anatomical change if there is a progression or aggravation of th e condition that causes disabling pain. See Hill v. Eagle Bend Mfg. , 942 S.W.2d 483, 488 (Tenn. 1997) (“An employer is responsible for worke rs[’] compensation benefits, ev en though the claimant may have been suffering from a s erious pre-existing condition or disability, if [the] employment causes an actual progression or aggravation of the p rior disabling condition or disease which produces increas ed pain that is disabling.”). In short, while Dr. Hutcheson stated in his report that “greater than 51% of the cau sation is more related to [Employee’s] degenerative pre-existing process and not a work-rela ted injury in that there was no event that occurred at work,” his opinion is incons istent with undisputed facts and does not take into account that an aggravation of a p re-existing condition can be compensable under certain circumstances.

In contrast to Dr. Hutcheson’s opinions, Dr. Broadstone linked Employee’s symptoms to the work incident and provided an opinion that the e mployment “more likely than not” caused her need for medical treatment. While D r. Broadstone’s opinions, as currently contained in the record, may be insufficient to est ablish causation by a7 preponderance of the evidence at trial, those opinions, consider ed with Employee’s lay testimony, are sufficient evidence to rebut the presumption of co rrectness accorded the authorized physician’s causation opinion and to allow the trial court to determine that Employee would likely prevail at a hearing on the merits.

Authorized Physician for Additional Medical Care

Employer contends the trial court erred in naming Dr. Broadston e the authorized physician. The court concluded that Employee “will likely prov e at trial that the panel [Employer] provided . . . was for evaluation but not for treatme nt.” While we disagree with the trial court’s determination that Employer failed to pr ovide Employee the opportunity to select a physician , we find that error to be har mless under the circumstances presented here.

The trial court relied on Employee’ s description of her conversa tion with Dr. Hutcheson in concluding the purpose of her visit with Dr. Hutch eson was for evaluation only. While Employer does not contest Employee’s account of the office visit, we agree with Employer that a necessary ste p for a physician to take whe n he or she has been chosen from a panel is to evaluate the worker’s condition and a lleged injury and to address whether the worker’s condition or injury is causally relat ed to the employment. In this case, had Dr. Hutcheson reached the opposite conclusion , he would not have needed any additional authorization from Employer to treat Emplo yee since he was selected from a panel in accord ance with Tennessee Code Annotat ed section 50-6- 204(a)(3)(A)(ii). Thus, we fi nd insufficient evidence in the r ecord to establish that the physician panel was defective or improper.

Nonetheless, we find the trial court did not err in deeming Dr. Broadstone to be the authorized physician. In circumstances where an employer ref uses to provide medical treatment and/or denies an employee’s claim, such employer runs the risk that a physician of the employee’s choosing will be designated the aut horized physician and that the employer will be responsible for paying for treatment provided by that physician. See GAF Bldg. Materials v. George , 47 S.W.3d 430, 433 (Tenn . Workers’ Comp. Panel 2001) (“An employer who denies liability for a compensable injuryis in no position to insist upon the statutory provi sions respecting the choosing of physicians.”).

Here, Employer denied Employee’s claim on the basis of Dr. Hutc heson’s opinion. When her symptoms did not improve, Employee sought medical care on her own. She reasonably obtained treatment withanother physician and, having established a doctorpatient relationship with Dr. Broa dstone, she should not now be required to choose a different treating physician.8 Conclusion

We affirm the trial court’s conclusion that Employee presented s ufficient medical proof to rebut the statutory pre sumption of correctness afforde d Dr. Hutcheson’s causation opinion, and we affirm the trial court’s determinatio n that Employee would likely prevail in establishing cau sation at a hearing on the me rits. Additionally, we affirm the trial court’s designation of Dr. Broadstone as the authoriz ed physician. The case is remanded, and costs on appeal are taxed to Employer.TENNESSEE BUREAU OF WORKERS’ COMPENSATION WORKERS’ COMPENSATION APPEALS BOARD

) Dock et No. 2018-01-0673 ) ) State File No. 86761-2017 ) ) ) ) ) ) Charity Blevins

v.

SouthernC hampio n Tray
, LP, et al.

Appeal from the Co urt of Workers’ Compensation Claims Thomas L. Wyatt, Judge )

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced case was sent to the following recipients by the fol lowing methods of service on this the 11th day of July, 2019.

Name Certified Mail First Class Mail Via Fax Fax Number Via Email Sent to:

Ethan Hargraves X ethan@masseyattorneys.com brooke@masseyattorneys.com Connor Sestak Nicholas S. Akins X csestak@morganakins.com nakins@morganakins.com plunny@morganakins.com Thomas L. 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’ C ompensation Appeals Board 220 French Landing Dr., Ste. 1-B Nashville, TN 37243 Telephone: 615-253-0064 Electronic Mail: WCAppeals.Clerk@tn.gov J eanette Bair d