Moore, Dianne v. Beacon Transport, LLC , 2021 TN WC App. 81 ( 2021 )

FILED
Oct 29, 2021
08:00 AM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Dianne Moore ) Docket No. 2018-06-1503
)
v. ) State File No. 18493-2018
)
Beacon Transport, LLC, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Joshua D. Baker, Judge )
Affirmed and Certified as Final
The employee, a truck driver, reported low back pain, leg numbness, and other symptoms
following an incident in Oklahoma. After certain authorized medical evaluations were
completed, the employer denied the claim, asserting the employee’s medical condition
was not causally related to the alleged work accident. Following a compensation hearing,
the trial court concluded the employee had not proven by a preponderance of the
evidence that her medical condition arose primarily from the reported work accident, and
the employee appealed. Upon careful consideration of the record, we affirm the trial
court’s order and certify it as final.
Presiding Judge Timothy W. Conner delivered the opinion of the Appeals Board in which
Judge Pele I. Godkin joined. Judge David F. Hensley concurred in a separate opinion.
Dianne Moore, Erin, Tennessee, employee-appellant, pro se
Cole Stinson, Lansing, Michigan, for the employer-appellee, Beacon Transport, LLC
Factual and Procedural Background
Dianne Moore (“Employee”), a Tennessee resident, worked as a truck driver for
Beacon Transport, LLC (“Employer”). On March 11, 2018, Employee arrived at a
location in Oklahoma to drop off an empty trailer and pick up another trailer. In an
attempt to get between her trailer and another trailer to release her “landing gear,”
Employee crawled underneath the trailer, grabbed a large crank handle, and jerked on it
several times. Upon doing so, she experienced immediate pain in her low back followed
by numbness in her torso and legs. Because she had left her cell phone in the cab of her
1
vehicle and no one was nearby to assist her, she crawled from under the trailer, retrieved
her cell phone from the cab of her truck, and called Employer to report the incident. She
then called 911 and was transported by ambulance to a local hospital. Emergency
personnel examined her and diagnosed bilateral sciatica.
Employee remained in Oklahoma for several days and was evaluated by a
neurosurgeon, Dr. Bridger Cox. Dr. Cox ordered several MRIs and, upon reviewing the
results, advised Employee she had degenerative changes at multiple levels of her spine.
He saw no evidence of an acute disc herniation or vertebral fracture. He found no
evidence of disc compression or stenosis. He did note “signal intensity” at the T5-6
level, which he described as possibly indicating “demyelinating disease.” Dr. Cox
advised Employee she could return to Tennessee and recommended she follow up with
her primary care physician.
Upon her return to Tennessee, Employee continued to experience symptoms and
requested additional medical treatment. Employer provided a panel of physicians, from
which Employee selected Dr. Rubinowicz. The nurse case manager assigned to
Employee’s case advised Employee that Dr. Rubinowicz had no appointments available
for several weeks. Employee expressed a need for a quicker appointment and agreed to
see a different physician, Dr. Stephen Graham, but he too had no prompt appointments
available. As a result, Employee agreed to see Dr. Garrison Strickland.
Dr. Strickland reviewed Employee’s diagnostic scans and diagnosed transverse
myelitis, which he concluded was not a work-related condition. He recommended
Employee seek further treatment from her primary care physician. Employee then saw
Dr. Darian Reddick, a neurologist in Nashville, who agreed that Employee suffered from
idiopathic transverse myelitis. Employer denied Employee’s claim for further workers’
compensation benefits.
Following an expedited hearing, the trial court denied Employee’s interlocutory
claim for additional benefits. Thereafter, Employer filed a motion for summary
judgment, arguing Employee was unable to establish sufficient evidence that her medical
condition arose primarily from the alleged work accident. In response to Employer’s
motion, Employee submitted a standard form medical report (Form C-32) from Dr. James
Anderson, a board-certified neurologist, who concluded Employee’s reported work
accident resulted in the need for medical treatment, resulted in some degree of
disablement, and was primarily responsible for her injury or need for treatment.
Specifically, Dr. Anderson stated Employee had suffered from an “accidental
overstraining [incident] causing injury to vertebral structure which, in turn, injured spinal
cord.” As a result, the trial court denied Employer’s motion for summary judgment,
concluding there were genuine issues of material fact regarding medical causation, and
set the case for trial.
2
After a period of additional discovery, the court conducted a compensation hearing
on June 21, 2021, during which Employee, the nurse case manager, the insurance
adjuster, and two employer representatives testified live. In addition, the parties
introduced into evidence thirty-five exhibits, including the depositions of Dr. Cox, Dr.
Strickland, and Dr. Reddick, and the Form C-32 of Dr. Anderson. In its compensation
order, the trial court considered and weighed the expert medical proof addressing the
issue of causation, noted that the law provides a presumption of correctness to Dr.
Strickland’s causation opinion, and determined that Employee’s evidence did not
overcome that presumption. As a result, the trial court denied Employee’s claim for
additional benefits and dismissed the case. Employee has appealed.
Standard of Review
The standard we apply in reviewing the trial court’s decision 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) (2020). When the trial judge has had the
opportunity to observe a witness’s demeanor and to hear in-court testimony, we give
considerable deference to factual findings and credibility determinations made by the trial
court. 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 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 “fairly, 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 (2020).
Analysis
On appeal, Employee raises three issues, which we have combined and restated as
follows: Did the trial court err in concluding Employee’s evidence did not overcome the
presumption of correctness accorded the causation opinion of Dr. Strickland?
Many workers’ compensation cases that proceed to trial ultimately hinge on
evidence of medical causation. Tennessee’s Workers’ Compensation Law provides that
“[t]he opinion of the treating physician, selected by the employee from the employer’s
designated panel of physicians pursuant to § 50-6-204(a)(3), shall be presumed correct
on the issue of causation but this presumption shall be rebuttable by a preponderance of
the evidence.” Tenn. Code Ann. § 50-6-102(14)(E) (2020) (emphasis added).
3
In Kirk v. Amazon.com, Inc., No. 2015-01-0036, 2015 TN Wrk. Comp. App. Bd.
LEXIS 44 (Tenn. Workers’ Comp. App. Bd. Nov. 16, 2015), we addressed the level of
proof required to overcome a trial court’s factual determinations, stating “[t]he appellant
bears the burden of showing that the evidence presented in the trial court preponderates
against the trial court’s findings. For the evidence to preponderate against a trial court’s
finding of fact, it must support another [finding] of fact with greater convincing effect.”
Id. at *19 (internal quotation marks and citations omitted).
Moreover, it is well established that a trial judge “has the discretion to conclude
that the opinion of one expert should be accepted over that of another expert.” Reagan v.
Tennplasco, No. M2005-02020-WC-R3-CV, 2006 Tenn. LEXIS 1209, at *10 (Tenn.
Workers’ Comp. Panel Dec. 27, 2006). As explained by the Tennessee Supreme Court,
“[w]hen faced . . . with conflicting medical testimony . . ., it is within the discretion of the
trial judge to conclude that the opinion of certain experts should be accepted over that of
other experts and that it contains the more probable explanation.” Thomas v. Aetna Life
and Cas. Co., 812 S.W.2d 278, 283 (Tenn. 1991) (internal quotation marks omitted). We
review such determinations under an abuse-of-discretion standard. Barnes v. Yasuda
Fire & Marine, No. W2000-02559-SC-WCM-CV, 2001 Tenn. LEXIS 696 (Tenn.
Workers’ Comp. Panel Sept. 24, 2001) (“we cannot say the trial court abused its
discretion” by concluding “the opinion of certain experts should be accepted over that of
other experts”). 1
1
In his concurrence, our colleague posits that, in circumstances where the expert medical testimony is
offered by deposition, there is no basis to review the trial court’s conclusions regarding the expert proof
under an abuse-of-discretion standard. Instead, in his view, we are to review such evidence independently
of the trial court’s review and make our own determination as to where the preponderance of the expert
medical evidence lies. We conclude this approach ignores a substantial body of case law directing us to
acknowledge the trial court’s role as factfinder and accord the trial court the discretion to choose which
expert offered the more probable explanation based on the totality of the evidence. This framework was
discussed by the Supreme Court’s Special Workers’ Compensation Appeals Panel as recently as June
2021 in Jumper v. Kellogg Co., No. W2020-01274-SC-R3-WC, 2021 Tenn. LEXIS 175 (Tenn. Workers’
Comp. Panel June 23, 2021), a case in which the expert medical proof was by deposition: “When
presented with conflicting expert opinions, a trial court has discretion to determine which testimony to
accept . . . . A trial court abuses its discretion when it applies an incorrect legal standard, reaches an
illogical result, or bases its decision on a clearly erroneous assessment of the evidence.” Id. at *17-18(emphasis added) (internal citations omitted). The Tennessee Supreme Court adopted the Appeals
Panel’s opinion in Jumper as its own. See Jumper v. Kellogg Co., No. W2020-01274-SC-R3-WC, 2021
Tenn. LEXIS 174 (Tenn. June 23, 2021). Other cases support this interpretation. See, e.g., Lavender v.
Saturn Corp., No. M2002-00759-WC-R3-CV, 2003 Tenn. LEXIS 348, at *3-4 (Tenn. Workers’ Comp.
Panel May 5, 2003) (“We may make an independent assessment of the medical proof which is submitted
by deposition, reports or records. We do not, however, disagree with the discretion exercised by the trial
judge in this regard unless the record clearly shows an abuse of this discretion.”); Davenport v. Wal-Mart
Supercenter, No. E2002-02156-WC-R3-CV, 2003 Tenn. LEXIS 865, at *4 (Tenn. Workers’ Comp. Panel
Oct. 7, 2003) (“After our own reading of the medical depositions in this case, we find no abuse of
discretion.”); Johnston v. Siskin Steel & Supply Co., No. E2020-00799-SC-R3-WC, 2021 Tenn. LEXIS
241, at *30-31 (Tenn. Workers’ Comp. Panel Feb. 10, 2021) (“We will review any such determination
under an abuse of discretion standard.”). As noted by our colleague, pursuant to Tennessee Code
4
Here, because the trial court’s decision to deny benefits hinged on its evaluation of
expert medical proof of causation, including an opinion from a panel-selected physician,
Employee must show both that the trial court abused its discretion in accepting the
causation opinion of Dr. Strickland over that of other physicians and that Employee’s
evidence of causation overcame the presumption of correctness accorded Dr. Strickland’s
opinion. We find nothing in the trial court’s opinion that indicates it applied an incorrect
legal standard, reached an illogical conclusion, or based its decision on a clearly
erroneous assessment of the evidence. Each physician who offered causation testimony
had similar expertise and qualifications, each physician saw the employee once, and each
physician reviewed essentially the same records. Both Dr. Strickland and Dr. Reddick
diagnosed transverse myelitis. Dr. Strickland concluded it was not a work-related
condition, and Dr. Reddick described it as “idiopathic.” The trial court was tasked with
choosing which physician offered the more probable explanation in light of the
presumption of correctness afforded Dr. Strickland’s opinion, and it chose to accredit Dr.
Strickland’s opinion over the opinions of Dr. Cox and Dr. Anderson.
In short, we cannot conclude the trial court abused its discretion in crediting Dr.
Strickland’s causation opinion over other expert opinions, and we cannot conclude the
totality of the evidence preponderates against the trial court’s decision.
Conclusion
For the foregoing reasons, we affirm the trial court’s order and certify it as final.
Costs on appeal are taxed to Employee.
Annotated section 50-6-239(c)(7), we are to apply a “presumption that the findings and conclusions of the
workers’ compensation judge are correct, unless the preponderance of the evidence is otherwise.” In our
opinion, the manner in which that directive is phrased, while noting circumstances in which an appellate
court must consider where the preponderance of the evidence lies, places more emphasis on the trial
court’s role as factfinder and the Appeals Board’s role as reviewing tribunal than does our colleague’s
concurrence.
5
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Dianne Moore ) Docket No. 2018-06-1503
)
v. ) State File No. 18493-2018
)
Beacon Transport, LLC, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Joshua D. Baker, Judge )
Concurring Opinion
Hensley, J., concurring.
I agree with the majority that the preponderance of the evidence supports the trial
court’s decision, and I agree with the majority’s affirmance of the trial court’s order
denying the employee’s claim for additional benefits.
I write separately to address the majority’s application of an abuse of discretion
standard in reviewing the trial judge’s conclusion that the employee’s medical proof did
not overcome the statutory presumption of correctness applicable to Dr. Strickland’s
causation opinion. More specifically, in cases where the medical proof is presented by
depositions or other documentary evidence, as in this case, I find no controlling authority
for application of the abuse of discretion standard in reviewing a trial judge’s decision to
accept one expert’s opinion over that of another. If a trial judge has the discretion to
accept one expert’s opinions over those of another, logic may lead one to conclude that a
reviewing court would uphold the judge’s decision absent an abuse of discretion.
However, a review of the history of the applicable standards of review and applicable
appellate court opinions leads me to conclude that when the medical proof is limited to
deposition testimony and other documentary evidence, the Appeals Board should not
apply an abuse of discretion standard in reviewing a trial judge’s decision to accept one
expert’s opinions over those of another but should look to see where the preponderance
of the evidence lies.
Numerous Tennessee Supreme Court opinions have considered trial court orders
in which the expert proof was limited to depositions or other documentary evidence
without applying an abuse of discretion standard to their review of the trial court’s
1
decision to accept one expert’s opinion over that of another. See, e.g., Lang v. Nissan
North Am., Inc., 170 S.W.3d 564 (Tenn. 2005) (“No deference to the trial court is
warranted in reviewing documentary proof, such as expert medical testimony presented
by deposition, because the appellate court stands in as good a position as the trial
court.”); Krick v. City of Lawrenceburg, 945 S.W.2d 709, 712 (Tenn. 1997). In my
opinion, these cases are controlling authority for the proposition that, when the expert
proof is limited to depositions and other documentary evidence, an appellate court need
not apply an abuse of discretion standard when reviewing a trial court’s decision to
accept one expert’s opinions over those of another. As addressed below, there are several
unpublished opinions of the Tennessee Supreme Court’s Special Workers’ Compensation
Appeals Panel suggesting that an abuse of discretion standard is the appropriate standard
of review in these circumstances. However, I am unaware of any published opinion of
the Tennessee Supreme Court or the Special Workers’ Compensation Appeals Panel
applying the abuse of discretion standard under these circumstances. 1 The Appeals
Board must presume that the “findings and conclusions of the workers’ compensation
judge are correct, unless the preponderance of the evidence is otherwise.” Tenn. Code
Ann. § 50-6-239(c)(7). If the issue at hand is whether the trial judge erred in accepting
one or more expert’s opinions over those of another or others, and the expert medical
proof is limited to depositions and other documentary evidence, applicable controlling
authority looks to see where the preponderance of the evidence lies without applying an
abuse of discretion standard.
The genesis for applying an abuse of discretion standard under these
circumstances can be traced to the principle that trial judges have the discretion to
conclude that the opinion of certain experts should be accepted over that of other experts.
The Tennessee Supreme Court long ago held that, when faced with conflicting medical
testimony, “it is within the discretion of the trial judge to conclude that the opinion of
certain experts should be accepted over that of other experts and that it contains the more
probable explanation.” Hinson v. Wal-Mart Stores, Inc., 654 S.W.2d 675, 676-77 (Tenn.
1983) (citing Combustion Engineering, Inc. v. Kennedy, Tenn., 562 S.W.2d 202 (Tenn.
1978)). However, both Hinson and Combustion Engineering were decided when the
standard for reviewing factual determinations of a trial judge was whether there was any
material evidence to support the trial judge’s determination. 2 In Hinson, the Supreme
1
Tennessee Supreme Court Rule 4(A)(1) uses “publication” to mean publication in the Southwestern
Reporter. Rule 4(A)(3) provides that “[o]pinions of the Special Workers’ Compensation Appeals Panels
shall not be published unless publication is ordered by a majority of the Supreme Court.” Rule 4(G)(1)
provides that “[u]npublished opinions of the Special Workers’ Compensation Appeals Panel shall . . . be
considered persuasive authority.” Rule 4(G)(2) provides that “[o]pinions reported in the official reporter,
however, shall be considered controlling authority for all purposes unless and until such opinion is
reversed or modified by a court of competent jurisdiction.” (Emphasis added.)
2
For injuries occurring after July 1, 1985, the standard of appellate review of workers’ compensation
cases was changed from “any material evidence” to “de novo upon the record of the trial court,
2
Court concluded that the expert medical evidence supported the trial judge’s finding of a
sufficient causal connection to sustain an award, stating “[t]his Court does not ‘reweigh
the evidence; in fact, even if the evidence preponderates against the findings below, the
decision will be upheld so long as any material evidence supports it.’” Hinson, 654
S.W.2d at 676 (citing Davis v. Gulf Ins. Group, Tenn., 546 S.W.2d 583 (Tenn. 1977)
(emphasis added)). Under the material evidence standard of review, whether the trial
judge abused his or her discretion was not an issue in deciding whether the trial judge
reached the correct result; rather, the issue was whether there was any material evidence
to support the trial judge’s decision.
In addressing the standard of review applicable to injuries occurring after July 1,
1985 (“de novo upon the record of the trial court, accompanied by a presumption of the
correctness of the finding, unless the preponderance of the evidence is otherwise”), the
Tennessee Supreme Court stated in Humphrey v. David Witherspoon, Inc., 734 S.W.2d
315 (Tenn. 1987), that the standard differed “from that previously provided and requires
this Court to weigh in more depth factual findings and conclusions of trial judges in
workers’ compensation cases.” Id. at 315. The Court noted that “[w]here the trial judge
has seen and heard witnesses, especially where issues of credibility and weight of oral
testimony are involved, on review considerable deference must still be accorded to those
circumstances.” Id. (emphasis added). Further, the Court stated that “[i]n the present
case, however, some of the issues involve expert testimony” and that “[a]ll of the medical
proof was taken by deposition or was documentary, so that all impressions of weight and
credibility must be drawn from the contents thereof, and not from the appearance of
witnesses on oral testimony at trial.” Id. at 315-16. The Humphrey Court did not address
whether the trial judge had the discretion to conclude from the documentary proof that
the opinion of one expert should be accepted over that of another expert, nor did the
Court address whether an abuse of discretion standard applied to the review of the trial
judge’s decision to accept the opinions of one expert over those of another.
Two years later the Supreme Court used similar language in addressing medical
proof presented by depositions in Landers v. Fireman’s Fund Ins. Co., 775 S.W.2d 355(Tenn. 1989). Noting the medical proof was presented by depositions, the Court
concluded that “[o]ur view of the evidence is somewhat different from that found in the
memorandum opinion of the trial judge.” Id. at 356. The Court did not address the
discretion of the trial judge to conclude that the opinions of certain experts should be
accepted over those of other experts but stated “it is certainly within the authority of this
Court to reverse the judgment below.” The Court said it did not consider it appropriate to
reverse the judgment and instead vacated the judgment dismissing the employee’s claim
and remanded the case for further proof. Id. at 359. Like Humphrey, Landers did not
accompanied by a presumption of the correctness of the finding, unless the preponderance of the evidence
is otherwise.” Tenn. Code Ann. § 50-6-225(e) (1985).
3
address whether an abuse of discretion standard applied to the Court’s review of the trial
judge’s decision to accept the opinions of one expert over those of another.
On numerous occasions after Landers, the Tennessee Supreme Court has
reiterated that it is able to make its own independent assessment of the medical proof to
determine where the preponderance of the evidence lies when the medical testimony is
presented by depositions. See, e.g., Williamson v. Baptist Hosp. of Cocke County, Inc.,
361 S.W.3d 483, 487 (Tenn. 2012); Foreman v. Automatic Sys., 272 S.W.3d 560, 571
(Tenn. 2008); Crew v. First Source Furniture Grp., 259 S.W.3d 656, 665 (Tenn. 2008);
Wilhelm v. Krogers, 235 S.W.3d 122, 127 (Tenn. 2007); Orrick v. Bestway Trucking,
Inc., 184 S.W.3d 211, 216 (Tenn. 2006); Saylor v. Lakeway Trucking, Inc., 181 S.W.3d
314, 322 (Tenn. 2005); Lang v. Nissan North Am., Inc., 170 S.W.3d 564, 569 (Tenn.
2005); Fritts v. Safety Nat’l Cas. Corp., 163 S.W.3d 673, 679 (Tenn. 2005); Bohanan v.
City of Knoxville, 136 S.W.3d 621, 624 (Tenn. 2004); Conner Bros. Excavating Co. v.
Long, 98 S.W.3d 656, 660 (Tenn. 2003); Tobitt v. Bridgstone/Firestone, Inc., 59 S.W.3d
57, 61 (Tenn. 2001); Cleek v. Wal-Mart Stores, Inc., 19 S.W.3d 770, 774 (Tenn. 2000);
Wells v. Tennessee Bd. Of Regents, 9 S.W.3d 779, 783-83 (Tenn. 1999); McIlvain v.
Russell Stover Candies, 996 S.W.2d 179, 183 (Tenn. 1999); Walker v. Saturn Corp., 986
S.W.2d 204, 207 (Tenn. 1998); Krick v. City of Lawrenceburg, 945 S.W.2d 709, 712
(Tenn. 1997); Henson v. Lawrenceburg, 851 S.W.2d 809, 812 (Tenn. 1993); Elmore v.
Travelers, 824 S.W.2d 541, 544 (Tenn. 1992); Thomas v. Aetna Life & Cas. Co., 812
S.W.2d 278, 283 (Tenn. 1991); Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 676
(Tenn. 1991).
Thomas v. Aetna Life & Casualty Company was one of the first “post-material
evidence standard” cases applying the principle announced in Hinson that a trial judge
has the discretion to conclude that the opinions of certain experts should be accepted over
those of other experts. In Thomas, the Supreme Court cited Hinson for this principle and
noted that “because of the presumption of correctness which attaches to the trial court’s
finding pursuant to [Tennessee Code Annotated section] 50-6-225(e), the rule cited from
Hinson remains valid even though the Hinson case was decided under the ‘material
evidence’ standard of review.” Thomas, 812 S.W.2d at 283. However, addressing the
Supreme Court’s review of a trial judge’s findings that are based on expert testimony, the
Thomas Court included the following quote from Humphrey:
[w]here the trial judge has seen and heard witnesses, especially where
issues of credibility and weight of oral testimony are involved, on review
considerable deference must still be accorded to those circumstances. In
the present case, however, some of the issues involve expert medical
testimony. All of the medical proof was taken by deposition or was
documentary, so that all impressions of weight and credibility must be
drawn from the contents thereof, and not from the appearance of witnesses
on oral testimony at trial.
4
Id.Thus, consistent with Landers, the Court in Thomas acknowledged that, when the
medical evidence is presented by depositions, the credibility and weight of the proof must
come from the depositions. The Court stated that the above quote from Humphrey “does
not mean that the deposition testimony of experts should be read and evaluated in a
vacuum,” adding that “[w]hile causation and permanency of an injury must be proved by
expert medical testimony, such testimony must be considered in conjunction with the lay
testimony of the employee.” Id. The Court noted that “considerable deference must be
given to the trial court’s evaluation of such oral testimony,” adding that, in this case, “the
evidence concerning the employee’s back injury came from the employee, who described
how the accident happened and what effect the injury has had on his back, as well as the
deposition testimony of the medical experts.” Id. (emphasis added). Stating that the
medical testimony was conflicting, the Court did not apply or address an abuse of
discretion standard but affirmed the trial court stating, “the evidence does not
preponderate against the findings of the trial court.” 3 Id.Orman v. Williams Sonoma, Inc., a 1991 opinion released before Thomas, is
consistent with Thomas in stating that “all impressions of weight and credibility [of
medical proof taken by depositions or documentary proof] must be drawn from the
contents thereof, and not from the appearance of witnesses on oral testimony at trial.” Id.
at 676. The Orman Court disagreed with the trial court about causation and, considering
the testimony of the employee and her husband, was “persuaded that there exists a
rational connection between [the employee’s] physical condition and the incident,”
concluding “the injury arose out of and occurred in the scope of” the employment. Id. at
677. The Court reversed the trial court without addressing an abuse of discretion
standard.
The Tennessee Supreme Court’s Special Workers’ Compensation Appeals Panel
faced similar issues with conflicting medical opinions in numerous cases. In Story v.
Legion Ins. Co., 3 S.W.3d 450 (Tenn. 1999), the employer contended the trial judge erred
in failing to give greater weight to the testimony of the treating physician than the
evaluating physician, both of whom had testified by deposition. Stating that it was within
3
The Thomas Court also cited Talley v. Virginia Ins. Reciprocal, 775 S.W.2d 587 (Tenn. 1989) for the
quote from Humphrey. In Talley, the determinative issue was whether the employee’s surgery and
disability were causally connected to her employment. The trial judge found that the employee’s pre-
existing back condition was aggravated by her work accident and that the employee was totally disabled
due to her injury. Id. at 588-89. Noting that the only in-court testimony came from the employee and
“added little beyond the circumstances surrounding her accident,” the Court reviewed the expert medical
testimony before concluding that it “cannot find that [the employee’s] surgery and disability were
causally connected to the injury she sustained.” Id. at 589, 592. The Court reversed the trial judge’s
findings that the employee’s surgery and disability were causally connected to her employment and, like
Thomas, did so without any mention of an abuse of discretion standard being applicable.
5
the discretion of the trial judge to determine which expert testimony to accept when the
medical testimony differs, the Panel quoted from the Supreme Court’s opinion in Krick
addressing medical proof that is presented by depositions:
Where the issues involve expert medical testimony and all the medical
proof is contained in the record by deposition, as it is in this case, then this
Court may draw its own conclusions about the weight and credibility of that
testimony, since we are in the same position as the trial judge . . . . With
these principles in mind, we review the record to determine whether the
evidence preponderates against the findings of the trial court.
Id. at 455. Like Krick, Story offers no suggestion that an appellate court reviews a trial
judge’s findings regarding expert medical proof presented by depositions with an abuse
of discretion standard; rather, these cases stand for the principle that an appellate court
makes an independent review of the record and draws its own conclusions about the
weight and credibility of expert proof presented by depositions for the purpose of
determining where the preponderance of the evidence lies.
The earliest case I located in which the reviewing court mentioned an “abuse of
discretion” in the context of a trial judge choosing between conflicting medical opinions
where the proof was limited to deposition testimony and other documentary evidence is a
2001 Panel opinion. Barnes v. Yasuda Fire & Marine Ins. Co., No. W2000-02559-SC-
WCM-CV, 2001 Tenn. LEXIS 696 (Tenn. Workers’ Comp. Panel Sept. 24, 2001) is an
unpublished memorandum opinion of the Panel and is persuasive rather than controlling
authority. 4 The case involved conflicting medical testimony. Noting that it was “as well
situated to gauge the weight, worth and significance of deposition testimony as the trial
judge,” the Panel reversed the trial judge, concluding that the employee’s injury “was
probably one arising out of her employment and should be held compensable” without
making any reference to an abuse of discretion standard. Id. at *4, *7. However,
addressing the differing medical opinions concerning the employee’s permanent
impairment, the Panel stated the trial judge “must choose which view to believe,” and,
citing the 1983 Hinson case, added that “it is within the discretion of the trial judge to
conclude the opinion of certain experts should be accepted over that of other experts and
that it contains the more probable explanation.” Id. at *10, *11. Further, the Panel noted
that the trial judge accepted the opinion of one expert as to the employee’s permanent
impairment and conditionally awarded benefits based on a multiple of the impairment
rating, stating that “[f]rom our independent examination of the record, we cannot say the
trial court abused its discretion by [accepting one expert’s opinion] or that the evidence
preponderates against an award . . . based on [the expert’s opinion].” Id. at *11(emphasis added). The Panel did not cite any authority to support an abuse of discretion
4
See footnote 1.
6
standard being applicable or otherwise address the abuse of discretion standard. No
published cases have been located citing Barnes.
The Panel addressed similar issues in 2003 in Lavender v. Saturn Corp., No.
M2002-00759-WC-R3-CV, 2003 Tenn. LEXIS 348 (Tenn. Workers’ Comp. Panel May
5, 2003), which, like Barnes, was an unpublished memorandum opinion of the Panel.
The case involved conflicting medical opinions in depositions and other medical records.
The Panel noted that, “in determining causation, the trial judge has the discretion to
accept the opinion of one or more experts’ testimony over that of others or another,”
adding that “[w]e may make an independent assessment of the medical proof which is
submitted by depositions, reports or records.” Lavender, 2003 Tenn. LEXIS 348, at *3-4.
The Panel further stated:
We do not, however, disagree with the discretion exercised by the judge in
this regard unless the record clearly shows an abuse of discretion.
We have reviewed the expert testimony in this case and find no reason to
disagree with the trial judge’s finding.
Id. at *4 (emphasis added). The Panel did not cite any authority for its assertion that it
would not disagree with the discretion exercised by the trial judge “unless the record
clearly shows an abuse of discretion.” No published cases have been located citing
Lavender.
In a later unpublished Panel opinion, Davenport v. Wal-Mart Supercenter, No.
E2002-02156, 2003 Tenn. LEXIS 865 (Tenn. Workers’ Comp. Panel Oct. 7, 2003), the
Panel acknowledged that it was in the same position as the trial judge in evaluating
medical proof submitted by depositions but also referenced the abuse of discretion
standard. The Panel affirmed the trial court’s judgment, stating that “[a]fter our own
reading of the depositions in this case, we find no abuse of discretion.” Id. at *4(emphasis added). Again, there was no explanation for the reference to an “abuse of
discretion” and no case was cited to support the application of an abuse of discretion
standard for reviewing the trial judge’s decision to accept one expert’s opinion over that
of another. Like Barnes and Lavender, no published cases have been located citing
Davenport.
In a 2013 unpublished memorandum opinion, the Panel again addressed a case
with conflicting medical proof that was presented by depositions. In Hill v. Hutcherson
Metals, Inc., No. W2011-01834-SC-WCM-WC, 2013 Tenn. LEXIS 258 (Tenn. Workers’
Comp. Panel Mar. 5, 2013), the trial court entered a judgment finding the employee’s
inability to work and depression were caused by rheumatoid arthritis, a preexisting
condition unrelated to his work, and that the employee had sustained a permanent partial
disability as a result of injuries to his spine. At the outset, the Panel pointed out that
7
“when expert medical testimony differs, it is within the trial judge’s discretion to accept
the opinion of one expert over another.” Id. at *17 (citation omitted). After reviewing the
expert testimony concerning the employee’s rheumatoid arthritis, the Panel was “unable
to conclude that the trial court erred by accepting Dr. Zizic’s opinion over those of
physicians who testified on [the employee’s] behalf and finding that [the employee’s]
work injury did not aggravate his [rheumatoid arthritis]. Id. at *19. Addressing the
medical proof concerning the employee’s spinal injury, the Panel stated that it
“review[ed] the trial court’s assessment of the expert testimony of [the employee’s]
radiculopathy with the same abuse of discretion standard we applied in our analysis of
[the employee’s rheumatoid arthritis] claim.” The Panel cited the 1983 case of Hinson as
support for its statement. Id. at *20 (emphasis added).
However, as previously noted, Hinson did not involve or address an abuse of
discretion standard. It was decided under the “material evidence” standard of review, and
the Court concluded that the medical evidence supported the trial judge, adding, as
previously noted, that the Court “does not reweigh the evidence; in fact, even if the
evidence preponderates against the findings below, the decision will be upheld so long as
any material evidence supports it.” Hinson, 654 S.W.2d at 676. In my opinion, the Panel
in Hill did not cite Hinson to support its application of the abuse of discretion standard
but simply because Hinson involved an employee who, like the employee in Hill,
suffered from preexisting “rheumatic arthritic disease.” Id.In Payne v. UPS, No. M2013-02363-SC-R3-WC, 2014 Tenn. LEXIS 1112 (Tenn.
Workers’ Comp. Panel Dec. 30, 2014), another unpublished opinion, the Panel reviewed
a trial judge’s award of permanent disability benefits that was based on conflicting
medical deposition testimony. Noting that the trial judge had the discretion to determine
which testimony to accept when presented with conflicting expert opinions, the Panel
concluded that the evidence did not preponderate against the trial judge’s decision,
stating the judge “had the opportunity to hear [the employee], hear her testimony
concerning the effects of her injury, and compare the findings of each medical expert in
light of those observations.” Id. at *21. Further, the Panel wrote that “[a]ccordingly, the
trial court did not abuse its discretion in adopting Dr. Gaw’s diagnosis and impairment
rating as the basis for the award.” Id. (emphasis added). The opinion made no other
mention of the abuse of discretion standard and provided no cite to support application of
the standard.
Payne has been cited by two cases for the proposition that a trial judge’s decision
to accept one expert’s opinion over another’s will not be disturbed on appeal absent an
abuse of discretion. Both cases involved appeals decided by the Appeals Board. I was
the primary author of the first opinion, Thysavathdy v. Bridgestone Ams. Tire Operations,
No. 2014-05-0026, 2017 TN Wrk. Comp. App. Bd. LEXIS 40 (Tenn. Workers’ Comp.
App. Bd. July 6, 2017). The Panel adopted the Appeals Board’s opinion as its own
unpublished opinion. See Thysavathdy v. Bridgestone Ams. Tire Operations, No. M2017-
8
01575-SC-R3-WC, 2018 Tenn. Lexis 313 (Tenn. Workers’ Comp. Panel June 8, 2018).
There were conflicting medical opinions in Thysavathdy, and, quoting from Payne, the
opinion states that it is well-established that “a trial judge has the discretion to determine
which testimony to accept when presented with conflicting expert opinions.” Id. at *19-
20. After addressing factors that a trial judge is to consider in deciding which expert’s
view to accept, Thysavathdy states that “[i]t is for the trial court to determine the relative
weight to be given to expert proof taking into account the presumption of correctness
afforded the authorized physician, and we will not disturb that finding absent an abuse of
discretion.” Id. at *20 (emphasis added). The cite provided to support that statement is
Darraj v. McKee Foods Corp., No. 2015-01-0339, 2017 TN Wrk. Comp. App. Bd.
LEXIS 4, at *9 (Tenn. Workers’ Comp. App. Bd. Jan. 17, 2017), another Appeals Board
opinion. In Darraj, the Appeals Board stated that “[a] trial court’s decision concerning
the assessment of competing expert medical opinions is reviewed under an abuse of
discretion standard,” and that “a trial court’s determination regarding the relative weight
to be given to expert medical opinions should be affirmed by a reviewing court unless the
reviewing court concludes the trial court abused its discretion.” Id. at *9, *14. No
authority was cited for the latter quote, but the earlier quote cited Sanker v. Nacarto
Trucks, Inc., No. 2016-06-0101, 2016 TN Wrk. Comp. App. Bd. LEXIS 27, at *12
(Tenn. Workers’ Comp. App. Bd. July 6, 2016), another opinion of the Appeals Board in
which we stated that, “[t]hus, with respect to the issue of competing medical expert
opinions, we review the trial court’s determination under an abuse of discretion
standard.” Id. at *12. No authority was cited to support this conclusion.
The second opinion citing Payne for the principle that a trial judge’s decision to
accept one expert’s opinion over that of another expert will not be disturbed on appeal
absent an abuse of discretion is Johnston v. Siskin Steel & Supply Co., No. E2020-00799-
SC-R3-WC, 2021 Tenn. LEXIS 241 (Tenn. Workers’ Comp. Panel Feb. 10, 2021).
Johnston is a Panel opinion that, like Thysavathdy, adopted the Appeals Board’s opinion
as its own. The case involved several experts with conflicting medical opinions
presented by depositions. The opinion cites Payne for the principle that the trial judge
has the discretion to determine which testimony to accept when presented with
conflicting expert opinions. Id. at *30. After identifying the factors that a trial judge
may consider in determining which expert opinion to accept, the Johnston opinion states
that “[w]e will review any such determination under an abuse of discretion standard,”
citing the Appeals Board’s opinion in Sanker. Id. at *31.
In a 2015 unpublished opinion that has not been cited in subsequent reported
cases, the Panel again referenced the abuse of discretion standard, finding “no abuse of
discretion in the trial court’s adoption of Dr. Gaw’s opinion.” Hedgecoth v. Cummins
Engine Co., No. M2014-01274-SC-R3-WC, 2015 Tenn. LEXIS 623, at *23 (Tenn.
Workers’ Comp. Panel Aug. 7, 2015). The Panel provided no citation to support
application of the abuse of discretion standard but did cite the 1983 Hinson opinion for
9
the proposition that “it is within the trial judge’s discretion to accept the opinion of one
expert over another” when expert medical testimony differs. Id.Finally, Jumper v. Kellogg Co., No. W2020-01274-SC-R3-WC, 2021 Tenn.
LEXIS 175 (Tenn. Workers’ Comp. Panel June 23, 2021), is a recent unpublished
opinion in which the Panel noted that a trial court “has discretion to determine which
testimony to accept” when presented with conflicting opinions. Id. at *17-18. After
identifying several factors that a trial court may consider in deciding which testimony to
accept, the Panel noted in its “Standard of Review” that “[a] trial court abuses its
discretion when it applies an incorrect legal standard, reaches an illogical result, or bases
its decision on a clearly erroneous assessment of the evidence.” Id. at *18 (citing
Henderson v. SAIA, Inc., 318 S.W.3d 328, 335 (Tenn. 2010)). One of the issues on
appeal was whether the employee established a compensable injury. The trial judge
denied the employee’s request for benefits for a gradually occurring injury, finding the
employee did not establish a gradually occurring injury “because she did not prove her
injury was caused by a specific set of incidents, identifiable by time and place of
occurrence.” 2021 Tenn. LEXIS 175, at *16. Further, the trial judge found that even if
the employee had established an injury, “she did not establish causation by a
preponderance of the evidence.” Id. at *16-17. The Panel affirmed the trial judge, noting
that the authorized treating physician’s opinion that the employee’s back pain was not
work related was entitled to a presumption of correctness. Id. at *22. Further, the Panel
noted that the employee attempted to overcome the presumption with a letter to another
doctor asking the doctor to opine on causation. Stating that the hypothetical question
presented to the doctor “was not fully supported by the evidence at trial,” the Panel
concluded that the employee “simply did not present sufficient evidence to establish a
work-related injury.” Id. at *24. The Panel did not address an abuse of discretion
standard in its analysis. Thus, Jumper is not controlling or persuasive authority for the
principle that, when the medical proof is presented by depositions and other documentary
proof, an appellate court is to apply an abuse of discretion standard when reviewing a
trial judge’s decision to accept one expert’s opinion over that of another.
Moreover, the statement in the Jumper “Standard of Review” addressing an abuse
of discretion cited Henderson v. SAIA, Inc., which did not involve conflicting expert
proof or a trial court’s decision to accept one expert’s opinion over another. Rather, it
involved a trial court’s disposition of a motion to set aside a judgment filed pursuant to
Rule 60.02 of the Tennessee Rules of Civil Procedure, which the Supreme Court noted is
“best left to the discretion of the trial judge.” Id. at 335. The Court concluded that the
employee had not shown “that the trial court’s decision to deny relief from the parties’
settlement . . . amounts to an abuse of discretion.” Id. at 342. Accordingly, neither
Jumper nor Henderson supports the assertion that an abuse of discretion standard applies
to an appellate court’s review of a trial judge’s decision to accept the opinions of one
expert over those of another where the proof is limited to depositions and other
documentary evidence.
10
Addressing the abuse of discretion standard, the Tennessee Supreme Court has
explained:
The abuse of discretion standard recognizes that the trial court is in a better
position than the appellate court to make certain judgments. The abuse of
discretion standard does not require a trial court to render an ideal
order . . . to withstand reversal. Reversal should not result simply because
the appellate court found a “better” resolution.
Eldridge v. Eldridge, 42 S.W.3d 82, 88 (Tenn. 2001).
A workers’ compensation judge is not in any better position than the Appeals
Board to assess expert proof presented by depositions and other documentary evidence.
Tennessee Code Annotated section 50-6-239(c)(7) provides that the findings and
conclusions of the workers’ compensation judge are presumed correct unless the
preponderance of the evidence is otherwise. Thus, the Appeals Board must determine
where the preponderance of the evidence lies rather than whether a trial judge’s
determination to accept one expert’s opinions is within an acceptable range of
alternatives. See Lee Med., Inc. v. Beecher, 312 S.W.3d 515, 524 (Tenn. 2010). The
abuse of discretion standard is a “review constraining concept” implying less intense
appellate review and, therefore, less likelihood of reversal. BIF, Div. of General Signals
Controls, Inc. v. Service Const. Co., Inc., No number in original, 1988 Tenn. App. LEXIS
430 (Tenn. Ct. App. July 13, 1988).
Since the 1985 date that the “preponderance of the evidence” standard replaced the
“material evidence” standard, controlling opinions from the Supreme Court have
consistently held that appellate courts are able to make their own independent assessment
of the medical proof to determine where the preponderance of the evidence lies when the
medical testimony is presented by depositions. Ironically, all the Panel opinions I located
that used the “abuse of discretion” language also included language indicating that courts
reviewing depositions and documentary evidence are not required to afford deference to a
trial court’s findings based on such evidence and may independently assess such evidence
to determine where the preponderance lies, or words to that effect. Indeed, quoting from
Goodman v. Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at
*6 (Tenn. Workers’ Comp. Panel Jan. 18, 2018), the majority opinion recognizes that
while the Appeals Board gives considerable deference to factual findings and credibility
determinations made by a trial court from in-court testimony, “[n]o similar deference
need be afforded the trial court’s findings based upon documentary evidence.”
Moreover, none of the Panel opinions addressed above offers a cite to support application
of an abuse of discretion standard, excepting Hill, which cited the 1983 Hinson case that
was controlled by the “material evidence” standard. In an appeal in which the medical
proof is limited to depositions and other documentary evidence, I am no longer persuaded
11
that a review of the trial judge’s decision to accept one expert’s opinions over those of
another is controlled by an abuse of discretion standard.
12
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Dianne Moore ) Docket No. 2018-06-1503
)
v. ) State File No. 18493-2018
)
Beacon Transport, LLC, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Joshua D. Baker, 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 following methods of service on this the 29th day
of October, 2021.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Dianne Moore X melow_d2000@yahoo.com
Cole Stinson X cole.stinson@accidentfund.com
Susan Block susan.block@accidentfund.com
Joshua D. Baker, Judge X Via Electronic Mail
Kenneth M. Switzer, Chief Judge X Via Electronic Mail
Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov
Workers’ Compensation Claims
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