## FILED Mar 02, 2020 02:17 PM(CT) TENNESSEE COURT OF WORKERS' COMPENSATION

CLAIMS

TENNESSEEBUREAUOFWORKERS' COMPENSATION INTHE COURTOFWORKERS' COMPENSATIONCLAIMS ATJACKSON
MICHAELHAYES, Employee, 

### v. JACKSON GOLF & COUNTRY CLUB, Employer, And, TECHNOLOGYINS. CO., Carrier. ) ) ) ) ) ) ) ) ) DocketNo. 2019-07-0251

StateFile No. 51271-2017

JudgeAllen Phillips

COMPENSATIONORDERFORPERMANENTPARTIALDISABILITY BENEFITS

The issue in this case is the amount ofpermanentpartial disability benefits for Mr. Hayes, a tennis professional. He claimed it was six percent, and the Club claimed it was three. After considering the evidence, the Court holds Mr. Hayes sustained a six-percent permanentpartial disabilityto the body as awhole. History ofClaim
Mr. Hayes began playingtennis at age five and turnedprofessional at eighteen. He was once the number-six ranked player in his native England and competed for his country in international events. Over the years, he played against top-ranked professionals.
Mr. Hayes played collegiately at the University of Memphis. While there, he learned ofan opening for a tennis professional at the Club and applied. Mr. Hayes was hiredbyJay Veazey, the Club'sheadprofessional.
On May 11, 2017, Mr. Hayes felt a "tweak" in his right shoulder while serving a ball. The incident so affected his play that he reported it to Mr. Veazey, who recommended that Mr. Hayes see Dr. Kelly Pucek, an orthopedic surgeon who had

1previously treated him for a shoulder injury. Mr. Hayes took Mr. Veazey's advice, and the Club later acceptedDr. Pucekas the authorizedtreatingphysician. Testifying by deposition, Dr. Pucek said Mr. Hayes reported the "sudden onset of pain" while serving and that he sensed a loss of"some velocity" on his serves. Dr. Pucek diagnosed impingement syndrome and a possible labral tear, later confirmed by an MRI. Dr. Pucek surgically repaired the tear and performed a sub-acromial decompression for the impingement. He testified that shoulder surgery on a tennis professional is "more concerning" than on an attorney, for example, because ofthe overhead activity required to playtennis.
Two months after the surgery, Dr. Pucek found Mr. Hayes's motion was not improving, but he added that labral repair patients are "always a little slower" in recovering motion. However, after two more months, he found Mr. Hayes lacked only some external rotation ofhis shoulder, while all other planes ofmotion were "in pretty good shape." So, he released Mr. Hayes to regular duty. Mr. Hayes returned to work, but for the next two years voiced complaints about his shoulder, which Dr. Pucek described as "concerning," andpossibly "longterm." Regarding his impairment rating, Dr. Pucek testified that theAMA Guidelines to the Evaluation of PermanentImpairment, 61 hEdition, allow for a "ratingbased on motion or the surgical procedure." He thought that a rating based on the surgical procedure was more appropriate because Mr. Hayes lacked only some external rotation. Thus, under the diagnosis-based method, Dr. Pucek assigned Mr. Hayes two-percent permanent impairment to his upper extremity for the labral repair and one-percent impairment for the impingement. These combined for a rating ofthree percent to the upper extremity, which converted to two-percent impairment to body as a whole. However, after his deposition, Dr. Pucek corresponded with Mr. Hayes's counsel stating that had he been asked, he would have increased the rating to three percent to the body because ofMr. Hayes's ongoing complaints. He basedhis increasedrating on "modifiers" found in Table 15-5 ofthe Guides, atable addressing several diagnoses including labral tears, but did not elaborate on what modifiers he used. Nevertheless, the parties agreed to the change in rating.
Mr. Hayes saw Dr. Samuel Chung for an independent medical evaluation (IME). Dr. Chung testified that Mr. Hayes was thirty-two years old and had taught tennis at the Club for seven years. He said Mr. Hayes reported "acute" pain when serving a ball and then noted "very little force behind" his serve. He noted Mr. Hayes complained of continued difficulty with his serve after surgery, describing that he could not fully serve overhead but rather used a more "sideways" motion. At the time ofthe IME, Dr. Chung saidMr. Hayes thoughthis motion was "ifanything

...gettingworse."

2Dr. Chung confirmed the veracity of those complaints when he examined Mr. Hayes, finding "a mild degree ofmotion loss in almost all planes ofhis right shoulder." Dr. Chung specifically documented the actual degrees of Mr. Hayes's motion in extension, flexion, adduction, abduction, and internal rotation and, because ofthe losses in those planes, thought "range ofmotion [was] the biggest factor" ofimpairment. Thus, Dr. Chung used Table 15-34 ofthe Guides, titled "ShoulderRange ofMotion," to assess six-percent impairment to the body as a whole. He explained that "the main rationale for me using the range ofmotion is really directed by the Guide's [sic] direction because if there is an injury and recovery of a certain diagnosis, unless it's completely normal motion, we ... are, youknow askedto use the range ofmotion. Andthat'swhatI did."
Mr. Hayes was the only witness at the hearing. He explained his injury continues to affect his service velocity, describing a decrease from 115 to 80 miles per hour. Because ofthat, he obtained a machine that simulates service. Further, he said he hoped he might play in more tournaments in the future, but now he cannot. Finally, he testified that he reduced his on-court instruction time from approximately forty hours per week down to roughly thirty. Because ofMr. Hayes's lay testimony, his counsel argued that Dr. Chung'srating was more in line withthe true effects ofthe injury.
Forits part, the Club objectedto the relevance ofMr. Hayes's testimonyregarding the ill effects ofhis injury, asserting instead that the Court should focus on the ratings. The Court overruledthose objections.
As to the ratings themselves, the Club argued Dr. Pucek, as the authorizedtreating physician, is presumed correct, and that Mr. Hayes did not rebut that presumption by a preponderance of the evidence. See Tenn. Code Ann. § 50-6-204(k)(7) (2019). In support, it pointed to a section ofthe Guides, Chapter 15, page 461, which provides the diagnosis-based method is the "method ofchoice for calculating impairment," and that "range ofmotion is usedprincipally as a factor inthe AdjustmentGrid."Finally, the Club argued that the Guides make no distinctions between occupations, whether a professional tennisplayeroran attorney, the comparative dichotomyusedby Dr. Pucek. Findings ofFactand Conclusions ofLaw
Mr. Hayes must establish the extent of his permanent disability by a preponderance of the evidence. Tenn. Code Ann. § 50-6-239(c)(6). The extent ofhis disability is a question of fact, determined by a consideration of all of the evidence, including both expert and lay testimony. Duignan v. Stowers Mach. Corp., No. E2018- 01120-SC-R3-WC, 2019 Tenn. LEXIS 224, at *22 (Tenn. Workers' Comp. Panel June 19, 2019).

3When considering the expert proof, the Court considers the qualifications ofthe experts, the circumstances oftheir examination, the information available to them, and the evaluation ofthe importance ofthatinformationby other experts. Bass vHome Depot USA, Inc., 2017 TNWrk. Comp. App. Bd. LEXIS 36, at *9 (May 26, 2017). Applying those factors here, the Court first finds both doctors qualified to assess a rating; Dr. Pucek is a board-certified orthopedic surgeon, and Dr. Chung is a specialist in physical medicine and rehabilitation, as well a certified independent medical examiner. They are on equal footing. Second, as to the circumstances oftheir evaluation, the Court finds Dr. Pucekhad the most contact with Mr. Hayes, seeing him on many occasions over two years as opposed to Dr. Chung's one-time evaluation. It seems reasonable the physician having greater contact with the employee would have the advantage to provide a more accurate opinion. Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 677 (Tenn. 1991). However, Dr. Chung specifically detailed Mr. Hayes's loss ofmotion using a methodology he said is dictated by the Guides. Conversely, though Dr. Pucek agreedthe Guides allow arangeof-motion loss rating, he did not document any measurements ofMr. Hayes's shoulder motion. The Court takes judicial notice that the Guides provide that ifmore than one method ofrating exists, then the evaluator should use the method producing the higher rating. Guides, page 2,Table 2-1 n.12. The Courttakes further notice that Table 15-5, the table used by Dr. Pucek for his diagnosed-based rating, provides that range ofmotion may be used as an alternative to the diagnosis-based rating. Guides, page 405, Table 15- 5, footnote. Third, the information available to the experts in assessing impairment supports Dr. Chung. As noted, he documented his specific measurements in all planes ofmotion. Contrastthis with Dr. Pucek'stestimonythat mostplanes ofmotion were "inpretty good shape." Finally, the factor of which information was important to other experts again supports Dr. Chung. Dr. Pucek expressed his concern with Mr. Hayes's ongoing complaints and surmised they might become long-term. Even more compelling was Dr. Chung's explanationofhow lost motion affects aprofessionaltennis player.
In support ofits position that Dr. Pucek was correct, the Club cited Marshall v. Pinnacle, No. W2015-00382-SC-R3-WC, 2016 Tenn. LEXIS 751 (Tenn. Workers' Comp. Panel Oct. 27, 2016). There, a Workers' Compensation Panel contrasted the impairment rating of a Medical Impairment Rating Registry (MIRR) physician, whose rating also carries a presumption ofcorrectness, with that ofan IME physician like Dr. Chung. ThePanel found the trial courterred in finding the IMErating rebutted the MIRR physician by clear and convincing evidence. Specifically, that IME physician testified he

4didnot follow the directives ofthe Guides to assess the rating because he disagreed with the Guides'srecommendedmethodology.
Marshall is distinguishable. Unlike the IME physician there, Dr. Chung testified he did follow the Guides's directives when assessing his rating. Moreover, Dr. Pucek, whose rating is entitled to a presumption ofcorrectness, agreed the Guides allow use of range-of-motion. Thus, the only expert proofhere is that the Guides allow a range-ofmotion impairment, and the only material difference is that Dr. Chung actually measured and documented the lost motion. Moreover, the standard to rebut Dr. Pucek is lower than the applicable standard in Marshall, apreponderance as opposed to clear and convincing evidence. Turning to the lay testimony, the Court is guided by longstanding authority that the employee's own assessment of his physical condition and resulting disability is competenttestimony notto be disregarded. Orrickv. Bestway Trucking, Inc., 184 S.W.3d 211, 217 (Tenn. 2006). Thus, the Court respectfully disagrees with the Club's assertion that the Court's focus remain primarily on the ratings. Here, Mr. Hayes's testimony is particularly importantwhenhe describedthe detrimental effects ofhis injury. Namely, Mr. Hayes said he began playing tennis at age five, twenty-seven years ago, and became a professional by age eighteen, playing at an international level. His level ofexperience provides him keen insight into how his injury affects his play. He described his loss of service velocity, approximately thirty-five miles per hour slower post-injury, and he doubted he could play in tournaments. Importantly, his injury caused him to lighten his work schedule by ten hours per week, a loss of earning capacity directly reflective ofthe extent of disability. This lay testimony supports Dr. Chung's rationale for the higherrating. Finally, the Court finds Mr. Hayes credible. His testimony was calm, self-assured, confident, forthcoming, reasonable, and honest. See Kelly v. Kelly, 445 S.W.3d 685, 694- 695 (Tenn. 2014) (discussing indicia ofwitness credibility). He was consistent in his history and resolute in his complaints, and he neither exaggerated nor embellished his symptoms. Instead, the Court was convinced he provided an honest assessment ofthe effects ofhis injury.
In totality, the Court holds Mr. Hayes rebutted the presumption of correctness attachedto Dr. Pucek's rating and that Dr. Chung'srating is the more accurate. Itfollows that Mr. Hayes is entitled to an award ofsix-percent permanent partial disability to the body as a whole under Tennessee Code Annotated section 50-6-207(3), calculated as six percenttimes 450 weeks timesthe stipulated compensationrate of$888.00, or $23,976.
ITIS, THEREFORE, ORDERED as follows:

51. Jackson Country Club shall pay Mr. Hayes permanentpartial disability benefits of $23,976 under Tennessee Code Annotated section 207(3)(A) based on Dr. Chung's six-percentpermanentpartial impairmentrating to thebody as awhole.
2. Jackson Country Club will continue to pay for reasonable and necessary future medical benefits related to the injury underTennessee Code Annotated section 50- 6-204(a)(l)(a)

.Dr

.Pucekremains the authorized treatingphysician. 3. The Court assesses the $150.00 filing fee to Jackson Country Club to be paid to the Court Clerk under Tennessee Compilation Rules and Regulations 0800-02-21- .06 (August, 2019) within five business days ofthis order becoming final, and for which execution may issue ifnecessary. 4. Jackson Country Club shall file a Statistical Data Form (SD-2) with the Court Clerkwithin five business days ofthe date this orderbecomes final. 5. Absent an appeal, this ordershall become final thirty days after issuance

.
ENTERED March 2, 2020.

pensation Claims

APPENDIX
Exhibits: 1. FirstReport ofWorkInjury 2. Deposition ofDr. Kelly Pucek 3. Deposition ofDr. Samuel Chung 4. Collective Medical Records
Technicalrecord: 1. Petition for BenefitDetermination 2

. Dispute CertificationNotice (DCN) 3. Request for SchedulingHearing 4. Scheduling Order 5

. Post-DiscoveryDCN 6

. Pre-CompensationHearing Statement

67. Employer's CompensationHearingBrief 8. Employee's Witness andExhibitList

CERTIFICATE OF SERVICE
I certify that a copy ofthis Compensation Hearing Order was sent as indicated on March2, 2020.
Name Certified First Via Service SentTo: Mail Class Email Mail Charles M. Purcell and X chuck@gsclegal.com Katherine C. Wallace, katie@Qsclegal.com Attorneys forEmployee RosaliaFiorello, X rfiorello@wimberlylawson.com Attorney for Employer

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