TENNESSEEBUREAUOFWORKERS' COMPENSATION WORKERS' COMPENSATIONAPPEALSBOARD

John Miller

v.
Lowe'sHome Centers, Inc.

Appeal from the Court ofWorkers' CompensationClaims DaleTipps, Judge ) DocketNo. 2015-05-0158 ) ) ) StateFileNo. 69295-2014 ) ) ) ) ) )



### Affirmed andRemanded- October21,2015

In this interlocutory appeal, the employee was involved in a work-related accident when he fell onto his left side after stepping backward onto a pallet jack. The employer accepted the accident as compensable and authorized certain medical treatment, but denied that the employee suffered a compensable left hip injury. The treating physician diagnosed left hip osteoarthritis and recommended hip replacement surgery. The trial court concluded that the employee was entitled to medical benefits for the left hip, including hip replacement surgery, based on a finding that the employee's pre-existing degenerative condition had been aggravatedby the work injury and that such aggravation
was primarily caused by the compensable accident. The employer appealed. Having carefully reviewed the record, we affirm the determination ofthe trial court and remand the case for furtherproceedings as maybe necessary. Judge Timothy W. Conner delivered the opinion ofthe Appeals Board, in which Judge MarshallL. Davidson, III, andJudge DavidF. Hensleyjoined. Nancy

### R. Steer, Nashville, Tennessee, for the employer-appellant, Lowe'sHome Centers, Inc.
Jill T. Draughon,Nashville, Tennessee, for the employee-appellee, JohnMiller

1Factualand ProceduralBackground
John Miller ("Employee"), a sixty-two-year-old resident of Marshall County, Tennessee, was employed by Lowe's Home Centers, Inc. ("Employer"), as a delivery person. Hisjob required him to move and lift appliances, load and unload trucks, and install appliances in customers' homes. On August 31, 2014, he was moving an appliance to a staging area inside the store in preparation for the next day's deliveries when, unbeknownst to Employee, a co-worker placed a palletjack directly behind him. As Employee manipulated a dolly underneath the appliance and stepped backward to tilt the appliance onto the dolly, he backed onto the palletjackand fell to his left. He struck his head and left side and was rendered unconscious for several minutes. He was transportedby ambulanceto an emergencyroom for treatment. Employee alleged injuries to his left leg, left shoulder and arm, left hip, low back, and neck. He received authorized medical treatment from Dr. Joseph F. Wade, who noted complaints oflow back pain, left shoulder pain, and left hip pain. Employee was referredto Dr. Jeffrey Adams for treatment ofhis left shouldercomplaints.
A CT ofthe lumbar spine completed on the date ofthe accident revealed multilevel degenerative disc disease with chronic, calcified disc herniations at Ll-L4. Dr. Wade also noted evidence ofleft lumbarradiculopathy. On December2, 2014, Dr. Wade reviewed x-rays of Employee's left hip and opined that Employee had a "severely arthritic left hip" and needed hip replacement surgery. Dr. Wade further noted that Employeehadpreviouslyundergone hip replacement surgery onthe right side:
In his April 14, 2015 report, Dr. Wade stated that Employee's "osteoarthritic left hip" had been "exacerbated by his work injury." Hereiterated his opinion thatEmployee neededhip replacement surgery. Employer took the position that Employee's left hip osteoarthritis was a preexisting, degenerative condition, and that there was no evidence of a compensable aggravation caused primarily by the work accident. Both parties submitted written questionnaires to Dr. Wade. In response to a questionnaire from Employee's attorney dated February 19, 2015, Dr. Wade stated that the work injury "caused the condition to become symptomatic." Moreover, although Dr. Wade agreed that the surgery was necessitatedby "pain andproblems"Employee experienced following the workinjury, he also commentedthat "[Employee] would have needed the surgery eventually withoutthe injury." Finally, Dr. Wade agreed that the reason for the surgery is the degree of Employee'spain following the workaccident.
In his May 19, 2015 response to the questionnaire from Employer's counsel, Dr. Wade agreed that the work accident "temporarily exacerbate[d]" Employee's preexisting, degenerative lefthip condition. He further agreed thatthe work accident did not
2cause a permanent aggravation of the left hip condition and did not result m "any permanent anatomical change"to thatcondition. During his deposition on August 25, 2015, Dr. Wade reiterated the opinions expressed in the questionnaire from Employee's counsel and further testified that it can be difficult to determine why a previously asymptomatic condition becomes symptomatic. He explained that it "could be" that an injury to the low back during the fall put "increased force" on the left hip, thereby indirectly causing the condition to become symptomatic. He also testified that the work injury could have "caused a twisting motion to the hip," thereby directly worsening the hip condition. He explained that "[p]ain is the primary indication for the surgery." Significantly, Dr. Wade opined that "certainly, the timing ofthe surgery may have been hastened because ofthe injury for sure, yes."
On cross-examination, Dr. Wade confirmed his responses to Employer's questionnaire and reiterated that, in his opinion, the fall at work did not cause a permanent anatomical change to Employee's pre-existing left hip condition. However,
on re-direct examination, Dr. Wade agreed that, given the length oftime the left hip symptoms have persisted since the work accident, he would describe the condition as a "chronicexacerbation." Employee filed a Petition for Benefit Determination seeking temporary disability and medical benefits. Following unsuccessful mediation efforts, a Dispute Certification Noticewas issued, identifyingmultiple issues for adjudication. Employee filed aRequest for Expedited Hearing and asked for an in-person evidentiary hearing. During the hearing, conducted on September 8, 2015, the parties agreed thatthe claim for temporary disability benefits was not ripe for adjudication, and that the only issues to be addressed at the hearing were the compensability of the left hip condition and the request for authorizedmedicaltreatment for thatcondition. Following the hearing, the trial court issued an Expedited Hearing Order Granting Medical Benefits. The trial court concluded that Employee "appears likely to establish that he is entitled to medical treatment" and that he "is eligible for medical benefits without a showing that this injury resulted in permanent anatomic change." Employer timely appealed.
Standard ofReview
The standard ofreview to be applied by this Board in reviewing a trial court's decision is statutorily mandated and limited in scope. Specifically, "[t]here shall be a presumption that the findings and conclusions ofthe workers' compensationjudge are correct, unless the preponderance ofthe evidence is otherwise." Tenn. Code Ann. § 50- 6-239(c)(7) (2014). The trial court's decision must be upheld unless the rights ofaparty
3"have been prejudiced because findings, inferences, conclusions, or decisions of a workers' compensationjudge: (A) Violateconstitutional or statutoryprovisions; (B) Exceedthe statutory authority oftheworkers' compensationjudge; (C) Donotcomplywith lawful procedure; (D) Are arbitrary, capricious, characterized by abuse of discretion, or clearly an unwarranted exercise ofdiscretion; (E) Are not supported by evidence that is both substantial and material in the light ofthe entirerecord."
Tenn. Code Ann. § 50-6-217(a)(3) (2015). Like other courts applying the standards embodied in section 50-6-217(a)(3), we will not disturb the decision ofthe trial court absentthe limited circumstances identified in the statute. Analysis
Reliance

_ on Pre-Reform CaseLaw Determining the compensability ofan alleged work-related aggravation ofa preexisting, degenerative medical condition has long been a source of difficulty under Tennessee's Workers' Compensation Law. The general assembly has, in recent years, sought to clarify this issue through statutory amendments. In 2011, the definition of "injury" was amended to provide that work-related injuries "[d]o not include

. . . [ c]umulative trauma conditions

... unless such conditions arose primarily out ofand in the course and scope of employment." Tenn. Code Ann. § 50-6-102(12)(C) (2013) (emphasis added).
Two years later, as part ofthe 2013 Workers' Compensation Reform Act, the general assembly again amendedthe definition of"injury": "Injury" and "personal injury" mean an injury by accident,

. . . or cumulative trauma conditions

... arising primarily out ofand in the course and scope ofemployment, that causes death, disablement, or the need for medical treatment ofthe employee;providedthat: (A) An injury

. . . shall not include the aggravation of a preexisting disease, condition or ailment unless it can be shown to a reasonable degree ofmedical certainty that the aggravation arose primarily out of and in the course and scope ofemployment.

4Tenn. Code Ann. § 50-6-102(13) (2015). Moreover, for injuries occurring on or after July 1, 2014, the general assembly made clearthat "this chapter shall not be remedially or liberally construed but shall be construed fairly, impartially, and in accordance withbasic principles ofstatutory construction and this chapter shall not be construed in a manner favoring eitherthe employee orthe employer." Tenn. Code Ann.§ 50-6-116 (2015).
It is in the context ofthese most recent statutory amendments that relevant case law must be considered. As we have indicated before, "reliance on precedent from the Tennessee Supreme Court is appropriate unless it is evident that the Supreme Court's decision orrationale relied on aremedial interpretation ofpre-July 1, 2014 statutes, thatit relied on specific statutory language no longer contained in the Workers' Compensation Law, and/or that it relied on an analysis that has since been addressed by the general assembly through statutory amendments." 

### McCord v. Advantage Human Resourcing, No. 2014-06-0063,2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *13 n.4 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015). In this case, the trial courtrelied upon case law decided under pre-reform law, namely 

### Trosper v. Armstrong Wood Products, Inc., 273 S.W.3d 598 (Tenn. 2008), in arriving atits decision. We concludethis was error.
In 

### Trosper, the Tennessee Supreme Court sought to clarify the circumstances in which the aggravation of a pre-existing, degenerative condition may be compensable under Tennessee's Workers' Compensation Law. However,

.the majority opinion in 

### Trosper cited several tenets ofthe lawwhich were directly impacted by the 2013 reforms. For example, with respect to evidence of medical causation, the Court noted that "reasonable doubt mustbe resolved in favor ofthe employee." !d. at 604. Giventhatthe law no longer allows a liberal or remedial interpretation of the statute in favor of an employee, this statementofpre-reform law no longer applies.
In addition, the Supreme Court in 

### Trosper explained that "unlike in some other jurisdictions, there is no requirement that the injury be traceable to a definite moment in time ortriggering event in orderto be compensable." !d. However, for dates ofinjury on or afterJuly 1, 2014, the law now provides that an injury by accident mustresult from "a specific incident, or set ofincidents

... identifiable by time and place ofoccurrence." Tenn. CodeAnn.§ 50-6-102(13)(A). Third, the Supreme Court in 

### Trosper relied on the proposition that an employee may prevail on the issue ofmedical causation ifa medical expert testifies that a work accident "could be" the cause of a medical condition, when there is corroborative lay testimony from which medical causation can be inferred. !d. at 608, 609. However, the statute now requires proof, by a "reasonable degree ofmedical certainty," that the work accident "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(13)(C). Furthermore, '"shown to a reasonable degree ofmedical certainty' means

5that, in the opinion ofthe physician, it is more likely than not considering all causes, as opposedto speculation orpossibility." Tenn. CodeAnn.§ 50-6-102(13)(D). Finally, the Supreme Court in Trosper concluded that "[a]lthough the evidence of causation is particularly close, the lay testimony in conjunction with the medical evidence is sufficient to establish that the Employee's work activities did not merely increase the pain in his hands, but advanced the severity ofhis pre-existing arthritic condition. To the extent that reasonable doubt may exist on this point, our law requires an interpretation favorabl[e] to the Employee. That view is consistent, ofcourse, with the remedial nature ofthe Workers' CompensationAct." !d. at 609 (citation omitted). Thus, the Supreme Court in Trosper relied on key tenets ofthe law which were directly impacted, indeed superseded, by subsequent legislative action. Given the recent amendments to the statute as discussed above, we conclude that the trial court's reliance
on Trosper in reaching its decision was error. We also conclude, however, that the error was harmless giventhis record. See, e.g., Hensley v. CSXTransp., Inc., 310 S.W.3d 824, 830 (Tenn. 2009) ("Our harmless error rule

... looks at whether or not the error 'more probably than not affected thejudgment."'). Aggravationof aPre-existingDegenerative Condition
The pertinent statute, Tennessee Code Annotated section 50-6-102(13), makes clearthat an aggravation ofapre-existing condition is a compensable injury when "itcan be shownto areasonable degree ofmedical certaintythatthe aggravation arose primarily out of and in the course and scope of employment." Tenn. Code Ann. § 50-6- 102(13)(A). Thus, an employee can satisfy the burden of proving a compensable aggravation if: (1) there is expertmedical proofthat the work accident "contributedmore than fifty percent (50%)" in causing the aggravation, and (2) the work accident was the
cause ofthe aggravation "more likely than not considering all causes." Tenn. Code Ann. § 50-6-102(13)(C)-(D). However, an employee need not prove each and every element ofhis or her claim by apreponderance ofthe evidence at an expedited hearing to obtain temporary disability ormedical benefits, but must come forward with sufficient evidence from which the court can conclude that he or she is likely to prevail at a hearing on the merits, consistent with Tennessee Code Annotated section 50-6-239(d)(1). McCord, 2015 TNWrk. Comp. App. Bd. LEXIS 6, at *9.
In the present case, it is undisputed that Employee had no prior difficulties with his left hip and no limitations in work activities due to his left hip before the August 31, 2014 work accident. Itis undisputed that he suffered a work-related injury when he fell onto his left side, and it is also undisputed that he complained ofradiating pain into his left hip following the fall. Most significantly, Dr. Wade testified that the work accident caused a "chronic exacerbation" ofhis pre-existing hip condition. He further stated that the need for hip replacement surgery was "hastened" by the work accident. He

6concluded that Employee'spain following the work accident was the "primary indication for the surgery
." Employer argues that the words "aggravation" and "exacerbation" have specific meanings as set forth in the Sixth Edition ofthe American Medical Association's Guides totheEvaluationofPermanentImpairment ("AMA Guides"), which states: Althoughthere are circumstances in which an eventwas the sole orprimary
cause of a given effect, in many instances patients have preexisting pathology that may have contributed to their clinical condition. 

### Aggravation is a circumstance or event that permanently worsens a preexisting or underlying condition. The terms 

### exacerbation, recurrence, orflare-up generally imply worsening of a condition temporarily, which subsequentlyreturnsto baseline. Exacerbation does not equal aggravation.
Am. Med. Ass'n, Guides to the Evaluation ofPermanent Impairment 25 (6th ed. 2008) (emphasis in original). In its position statement on appeal, Employer argues that "the
case law appears to indicatethat entitlementto medical benefits requires an aggravation

- 

### as defined by the AMA Guides- ofa preexisting condition." (Emphasis added.) Thus, Employer contends that because Dr. Wade used the term "exacerbation," in contrast to the statute's use of the term "aggravation," Employee cannot prove a compensable "aggravation"ofhis pre-existing, degenerative condition. However, there is nothing in the statute indicating that the general assembly relied
on the definitions ofthe terms "aggravation" and "exacerbation" as discussed above. 1 Moreover, it is evident from Dr. Wade's testimony that he did not use those terms as defined in the AMA Guides. Instead, Dr. Wade testified that, given the length oftime Employee's symptoms have persisted, he would describe Employee's condition as a "chronic exacerbation." Such testimony implies more than a temporary "flare-up" ofa pre-existing condition. In addition, there is no evidence in this record to suggest that Employee's lefthip conditionhas "returnedto baseline." Employer next argues that an "aggravation" of a pre-existing condition is not compensable unless there is a permanent anatomical change or actual advancement caused by the work injury. In support ofthis position, Employer cites 

### Milligan v. TenState, Inc., No. 02S01-9612-CV-00110, 1998 Tenn. LEXIS 69, at *5 (Tenn. Workers' Comp. Panel Feb. 20 1998). However, the Supreme Court's Special Workers' Compensation Appeals Panel in 

### Milligan was addressing whether an employee was eligible for permanent disability benefits, not whether the employee was entitled to

1 Tennessee Code Annotated section 50-6-204(k) requires a treating physician to utilize "the applicable edition of the AMA [G]uides" in assigning an impairment rating. Nothing in the statute, however, mandatesthe use ofthe AMA Guides for any otherpurpose. 7medical benefits following a work-related accident. In fact, the court in Milligan acknowledged that the work accident itselfwas compensable and that the employee had already received significant medical treatment causally-related to the work accident. 

### !d. at *4.
After filing its notice ofappeal, Employer filed a position statement with a threepage exhibit that includes a September 29, 2015 letter from Employer's attorney to Dr. Wade and the doctor's handwritten responses dated October 2, 2015. The letter asked Dr. Wade to apportion the cause ofthe need for hip replacement surgery betweenthepreexisting osteoarthritis and the work accident. Employerpresents as one oftwo issues on appeal "whetherEmployer shouldberesponsible for the recommendedmedical treatment when employee's authorized treating physician opined that employee's pre-existing condition contributed seventy-five percent (75%) to cause the need for the recommended surgery." This latest questionnaire and Dr. Wade's responses were not among the questionnaires previously answered by Dr. Wade and were not discussed during Dr. Wade's deposition for proof. More importantly, the information was not admitted into evidence during the expeditedhearing for consideration by the trialjudge. "[W]ewill not consideron appeal testimony, exhibits, or other materials thatwere notproperly admitted into evidence at the hearing before the trialjudge." Hadzic v. AverittExpress, No. 2014- 02-0064, 2015 TN Wrk. Comp. App. Bd. LEXIS 14, at*13 n.4 (Tenn. Workers' Comp. App. Bd. May 18, 2015); see also Brown v. Cont'l Baking Co., No. W1999-02700-SCWCM-CV, 2000 Tenn. LEXIS 386, at*10 (Tenn. Workers' Comp. Panel July 7, 2000) ("[W]e will not consider supplementedportions ofthe record thatwerenot consideredby the trial court."). Consequently, Dr. Wade's responses to this most recent questionnaire cannotbe considered in this interlocutory appeal.
In sum, to qualify for medical benefits at an interlocutory hearing, an injured worker who alleges an aggravation ofa pre-existing condition must offer evidence that the aggravation arose primarily out ofand in the course and scope ofemployment. See Tenn. Code Ann. § 50-6-102(13)(A) (2015). Moreover, the employee must come forward with sufficient evidence from which the trial court can determine that the employee would likely establish, to a reasonable degree ofmedical certainty, that the work accident contributedmore than fifty percentin causingthe aggravation, considering all causes. See Tenn. Code Ann. § 50-6-102(13)(B)-(C). Finally, an aggravation or exacerbation need not be permanent for an injured worker to quality for medical treatmentreasonably necessitatedbythe aggravation.
In his deposition, Dr. Wade attributed the need for surgery to the work accident. He testified that although Employee likely would have needed hip replacement at some undetermined time in the future, the work accidenthastened the need for the surgery. He also opined thatEmployee suffered a "chronicexacerbation"ofhis pre-existingcondition
as a result of the work accident. Employer did not offer any countervailing expert opinions at the expedited hearing. In light ofthis testimony, we find that the evidence
8presented to date does not preponderate against the trial judge's determination that Employee is likely to prevail at a hearing on the merits, and thatEmployee is entitled to authorized, reasonable and necessary medical treatment as recommendedby Dr. Wade.
Conclusion
We conclude that the trial court did not err in ordering medical benefits based on the evidence presented at the expedited hearing. We further find that the trial court's order does not violate any of the standards identified in Tennessee Code Annotated section 50-6-217(a)(3) (2015). The trial court's decision is affirmed and the case is remandedfor such additionalproceedings as may be necessary.



# ~~

**Timo~y**

## JN. Conner,Judge Worl&ri' CompensationAppealsBoard

9TENNESSEE BUREAUOF WORKERS’ COMPENSATION WORKERS’ COMPENSATION APPEALS BOARD 

### John Miller ) Docket No.

### 2015-05-0158 ) 

### v. ) ) State File No.

### 69295-2014 Lowe's Home Centers, Inc. )



### 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 following methods of service on this the 21st day ofOctober,2015.

Name Certified Mail First Class

Mail Via

Fax Fax Number Via

Email Email Address
Jill Draughon X jdraughon@hughesandcoleman.com Nancy Steer X nancy.steer@leitnerfirm.com Dale Tipps 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



### Matthew Salyer Clerk,Workers’ Compensation Appeals Board 220 French Landing Dr., Ste. 1-B Nashville, TN 37243 Telephone: 615-253-1606 Electronic Mail:Matthew.Salyer@tn.gov

, Judge