1 TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSATION APPEALS BOARD

Donna Dav is ) Docket No. 2021-06-0188 )

v. ) State File No. 28188-2021 ) Amazon.com, Inc., et al. ) ) ) Appeal from the Court of Workers’ ) Compensation Claims ) Kenneth M. Switzer, Chief Judge )

Affirm ed and Remanded

This interlocutory appeal arises from the denial by the Court of Workers’ Compensation

Claims of the employer’s motion to deny the employee’s request for an independent medical examiner from the Bureau of Workers’ Compensation’s Medical Impairment Rating Registry (“MIRR”). Following the employee’s knee injury and authorized medical treatment, the treating physician assigned no permanent impairment but placed permanent restrictions as recommended in the report of a functional capacity evaluation. The employee filed a petition for benefits and requested an MIRR examiner , contending there was a dispute as to the degree of medical impairment as defined in the applicable regulations. The employer objected and moved to disallow the employee’s request

, contending there was not a dispute as to the medical impairment because the permanent restrictions imposed by the treating physician related to a condition that pre

- existed the employee’s work-related injury. The Court of Workers’ Compensation Claims denied the employer’s motion

, and the employer has appealed. Having carefully reviewed the record,

we affirm the trial court’s decision and remand the case.

Judge David F. Hensley delivered the opinion of the Appeals Board in which Presiding Judge Timothy W. Conner and Judge Pele I. Godkin joined.

W. Troy Ha rt and Adam C. Brock -Dagnan

, Knoxville , Tennessee, for the employ er

appellant, Amazon.com, Inc.

Keith Jorda n, Nashville, Tennessee, for the employ ee -appellee, Donna Davis2 Factual and Procedural Background

Donna Davis (“Employee”) w as employed by Amazon.com, Inc. (“Employer”), and was working as a package handler when she struck her right knee against a conveyor on March 22, 2021

. Employer accepted Employee’s claim for workers’ compensation benefits and provided a panel of physician s from which Employee selected Dr. Harold

Nevels . Dr. Nevels subsequently referred Employee to an orthopedic physician

, Dr. James Rungee . Dr. Rungee prescribed physical therapy as well as a corticosteroid injection that

he later described as producing “equivocal” results . Thereafter, Employee underwent a functional capacity evaluation to determine the level of function she could expect from her knee. According to Dr. Rungee, the evaluation showed that Employee “could only work at a sedentary seated

- type job with occasional walking, stooping and stair climbing and no lifting or pushing over 15 pounds.”

Employee last saw Dr. Rungee on June 16, 2021. He assigned Employee the permanent restrictions indicated in the functional capacity evaluatio n and noted Employee was working in a sedentary position with Employer at the time. Further, Dr. Rungee signed a June 16, 2021 report not ing that Employee would not have any permanent impairment as a result of her March 2021 injury and stat ing that, “from her medical history, she does have posttraumatic arthritis that is all related to her remote injury in 1999 and would appear to be compensable under that injury if indeed the history is correct .”

On July 28, 2021, Employee filed a petition for benefit de termination in which she indicated a dispute existed regarding her impairment rating, noting that Dr. Rungee had indicated she had no medical impairment but had imposed permanent restrictions. Employee requested a review by an MIRR examiner pursuant to Te nnessee Code

Annotated section 50

- 6

- 204(d)(5) and Tenn. Comp. R. and Regs. 0800

- 02

- 20. On August 17, the MIRR Program Coordinator issued a report stating

, “it appears

. . . the MIR Request

does indeed meet the definition o f a dispute, as defined in [Tenn. Comp. R. and Regs. ]

0800

- 02

- 21

- .01( 7) (b).” The report noted that if a party disagreed, a petition for benefit

determination could be filed. Employer filed a petition the following day in accordance with Tenn. Comp. R. and Regs. 0800

- 02

- 20

- .06(2), which indicated a dispu te existed as to each of the six categories on the petition

, specifically noting a dispute of “MIR applicability.”

Employer subsequently filed a motion in limine requesting the court “to deny [Employee’s] [ MIRR] request.” 1 Employer’s motion asserted there was no dispute as to the degree of medical impairment because Dr. Rungee had given his opinion that Employee had zero impairment and had indicated that the permanent restrictions he assigned were

1 A motion in limine is a pretrial request that certain evidence not be referred to or offered at trial. See Black’s Law Dictionary ( 10 th e d. 2014) . E mployer’s motion did not seek to exclude evidence but sought to have the Court of Workers’ Compensation Claims deny Employee ’s request for an independent medical

examiner from the MIRR.3 related to Employee’s preexisting condition. The Court of Workers’ Compensation Claims denied Employer’s motion, reasoning that “Dr. Rungee did not give a permanent impairment rating but placed restrictions. Thus, by definition, a ‘dispute’ regarding impairment exists. ” Employer has appealed

.

Standard of Review

The standard we apply in reviewing the order of the Court of Workers’ Compensa tion Claims presumes that the court’s factual findings are correct unless the preponderance of the evidence is otherwise. See Tenn. Code Ann. § 50

- 6

- 239(c)(7) (20 2 1 ).

While we give considerable deference to factual findings made by the court that are bas ed

on in

- court testimony, Madden v. Holland Grp. of Tenn., Inc. , 277 S.W.3d 896, 898 (Tenn. 2009)

, “[n]o similar deference need be afforded the trial court’s findings based upon 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 regulations are questions of law that are

reviewed de novo with no presumption of correctness afforded the trial court’s conclusions.

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’ compensation

statutes “fai rly, impartially, and in accordance with basic principles of statutory construction” and in a way that does not favor either the employee or the employer. Tenn. Code Ann. § 50

- 6

- 116 (20 2 1 ).

Analysis

Tennessee Code Annotated section 50

- 6

- 204(d)( 5 ) (2021) provides that “[w]hen a dispute exists as to the degree of medical impairment, either party may request an independent medical examiner from the administrator’s registry.” The regulations promulgated by the administrator define “[d]ispute of degree of medical impairment” to include, among other circumstances , those where “[a] physician has issued an opinion in compliance with the Act that no permanent impairment exists, yet that physician has issued permanent physical or mental (psychiatric) restric tions to the injured employee.” Tenn. Comp. R. & Regs. 0800

- 02

- 20

- .01(7)(b) (2018).

Employer raises a single issue on appeal

, asserting no dispute as to the degree o f medical impairment exist s “ when permanent physical restrictions are assigned to a non

work

- related injury. ” In his J une 16 report, Dr. Rungee outlined Employee’s medical history concerning her right knee.

Her medical issue is a little bit more complex and she has had an injury to her right knee

. . . at her former job with [Employer] in Memphis where she had also hit it on a conveyor system and was out of work for 2 months, going to therapy with that before moving to Nashville in March in her current job.4 She had a work

- related anterior cruciate ligament in 1999 when she was working l oading [a] truck and twisted her knee. Workup had included an MRI, which showed no visualized ACL graft and her PCL appeared lax. As a consequence of [] having an ACL deficient knee, she had partial medial and lateral meniscectomies and grade 3 degenerat ive changes in all compartments of the knee, pronounced at the medial compartment with

chondral defects and fissures.

Dr. Rungee also stated in the report that he had “ counseled [ Employee ] that she has moderately severe posttraumatic arthritis of her knee and [] given that she has had 2 minor injuries with pain just in the preceding 6 months, [] she will consider [a] more sedentary

type job than her current jo b at [Employer]. ” Further, he noted that Employee “elected to undergo a functional capacity evaluation to determine with objectivity just what level of function she could expect from her knee,” relating that the evaluation showed that Employee “could only work at a sedent ary

- type job with occasional walking, stooping and stair climbing and no lifting or pushing over 15 pounds.” After noting Employee would not have any permanent impairment “assignable to her most current contusion of the knee,” he said Employee “does have posttraumatic arthritis that is all related to her remote injury

in 1999.”

Employer argued in the Court of Workers’ Compensation Claims that “[a] proper reading of Dr. Rungee’s medical records” leads to the conclusion that “Employee’s work

related contusi on did not induce any permanent medical impairment,” and that “Employee’s post

- traumatic arthritis

– not the knee contusion

– gave rise to her permanent physical restrictions.” According to Employer, “[t]o put it differently, the non

- work

related injury i s the genesis for the permanent restrictions, according to Dr. Rungee.” We disagree with Employer’s interpretation of Dr. Rungee’s report.

In analyzing Employer’s position, the Court of Workers’ Compensation Claims noted that Dr. Rungee “did not give a p ermanent impairment rating but placed restrictions,” concluding that, “by definition, a ‘dispute’ regarding impairment exists.” Turning to Employer’s motion in limine

, the court noted that the only issue was the merits of Employee’s request for an evaluation by a MIRR physician, “an issue that does not pose an evidentiary question.” While our analysis does not address whether filing a motion in

limine under these circu mstances was proper or appropriate , we nonetheless fail to discern any error in the court’s denial of Employe r ’s motion to deny Employee’s request for an independent examiner from the MIRR program

.

The purpose of the MIRR p rogram is to comply with and imp lement the statutes establishing a resource to resolve disputes regarding the degree of permanent medical impairment for injuries subject to the Workers’ Compensation Act. See Tenn. Comp. R. & Regs. 0800

- 02

- 20

- .02(1). The regulations clearly define a “di spute of degree of medical impairment” to include those circumstances in which a physician who has expressed an5 opinion that no permanent impairment exits “yet that physician has issued permanent physical

. . . restrictions to the injured employee” as Dr. Rungee did here. Unlike Employer’s interpretation of Dr. Rungee’s statements, we conclude t he medical record s before us do not address the underlying source or cause of Employee’s permanent restrictions; rather, the records are silent in that regard and o nly attribute the existence of Employee’s post traumatic arthritis “ t o her remote injury in 1999.”

Conclusion

For the foregoing reasons, we affirm the order of the Court of Workers’ Compensation Claim s denying Employer’s motion and remand the case. Costs on appeal

are taxed to Employer

.TENNESSEE BUREAU OF WORKERS’ COMPENSATION

WORKERS’ COMPENSAT ION APPEALS BOARD

Donna Davis ) Docket No. 2021-06-0188 )

v. ) State File No. 28188-2021 ) Amazon.com, Inc., et al. ) ) ) Appeal from the Court of Workers’ ) Compensation Claims )

Kenneth M. Switzer

, Chief Judge )

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeal s Board’s decision in the referenced

case was sent to th e following recipients by the following methods of service on this the 16th day of November, 2021.

Name Certified

Mail First Class

Mail Via

Fax Via

Email Se nt to:

W. T ro y Hart
Adam Brock

- Dagnan X w th@mijs.com

acbrock

- dagnan@mijs.com

Keith Jordan X jordanlawoffice@comcast.net

Kenneth M. Switzer

, Chief Judge X Via Electronic Mail Penny Shrum, Clerk, Court of Workers’ Compensation Claims X penny.patterson

- shrum@tn.gov

Olivia Yearwood Clerk, Workers’ Compensation Appeals Board 220 French Landing Dr., Ste. 1-B Nashville, TN 37243 Telephone: 615-253-1606

Electronic Mail: WCAppeals .Clerk@tn.gov