Grimes, Kimberly v. YRC, Inc. , 2021 TN WC App. 47 ( 2021 )

FILED
Feb 16, 2021
02:31 PM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Kimberly Grimes ) Docket No. 2019-06-1960
)
v. ) State File No. 60942-2018
)
YRC, Inc., et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Joshua D. Baker, Judge )
Affirmed and Remanded
The employee suffered compensable injuries to her right shoulder, and the employer
initiated workers’ compensation benefits for those injuries, including the surgical repair of
the employee’s rotator cuff and biceps tendon. The employee’s treating physician
subsequently recommended a shoulder replacement due to the employee’s preexisting
osteoarthritis, but the employer declined to pay for the shoulder replacement. After an
expedited hearing, the trial court denied the employee’s request that the employer be
compelled to pay for the shoulder replacement, finding the employee had not established
that she would likely prevail at trial in proving the need for shoulder replacement surgery
was reasonable and necessary treatment causally related to her workplace injury. The
employee has appealed. After careful consideration, we affirm the trial court’s order
denying the requested medical benefits and remand the case.
Judge Pele I. Godkin delivered the opinion of the Appeals Board in which Presiding Judge
Timothy W. Conner and Judge David F. Hensley joined.
Samuel Morris, Memphis, Tennessee, for the employee-appellant, Kimberly Grimes
Stephen K. Heard, Nashville, Tennessee, for the employer-appellee, YRC, Inc.
Factual and Procedural Background
Kimberly Grimes (“Employee”) injured her right shoulder and biceps tendon on
August 12, 2018, while pulling a docking plate in the course and scope of her employment
with YRC, Inc. (“Employer”). Employer accepted the claim as compensable and provided
Employee a panel of physicians from which she selected Dr. Blake Garside. Dr. Garside
1
first saw Employee on September 21, 2018. He recorded a history of bilateral shoulder
arthritis, rotator cuff surgery in 2000, and a previous shoulder evaluation with
administration of intra-articular corticosteroid injections approximately six months before
Employee’s visit, which were completed by other physicians in his practice group.
Imaging studies obtained during the earlier evaluation revealed “severe glenohumeral
arthritic change[s] bilaterally. No acute findings.” The attending physician at that time,
Dr. Edward Glenn, Jr., noted Employee’s right shoulder was “more symptomatic than the
left” and recommended shoulder injections. He stated that if the injections were
ineffective, he would have “a more frank discussion [with Employee] regarding shoulder
arthroplasty going forward.”
Dr. Garside reviewed a September 5, 2018 MRI and noted “severe degenerative
changes in the glenohumeral joint with large osteophytes and complete loss of articular
cartilage in the glenohumeral interface.” The imaging also showed “marked end-stage
glenohumeral osteoarthritis,” and Dr. Garside diagnosed right shoulder osteoarthritis, right
biceps tendon subluxation, and a “partial [intrasubstance] right subscapularis tendon tear.”
His report stated that the “work-related injury on 8/12/2018 did not cause [Employee’s]
right glenohumeral osteoarthritis, which represents a preexisting condition.” Dr. Garside
discussed numerous treatment options with Employee, including total shoulder
arthroplasty, but explained that any “total shoulder arthroplasty would be performed for
[the] preexisting right glenohumeral osteoarthritis and [is] not greater than 50% related or
caused by the 8/12/2018 injury.” Employee informed Dr. Garside of her desire to proceed
with a shoulder replacement surgery as well as the indicated surgery for her August 12
injury. Dr. Garside advised Employee that the surgical repair for the work injury “is
unlikely to provide significant lasting pain relief or improvement in function based on her
underlying preexisting right glenohumeral osteoarthritis.”
Dr. Garside saw Employee again on October 9, 2018, and documented an “acute
work-related injury of August [12], 2018” separate from Employee’s preexisting right
glenohumeral osteoarthritis. Dr. Garside emphasized, “[a]s I have explained to [Employee]
on 2 occasions, in my opinion, her glenohumeral arthritis represents a pre-existing
condition that was previously being treated . . . . This is unrelated to the August [12], 2018
injury.” 1
On October 18, Dr. Garside surgically repaired Employee’s rotator cuff tear and
biceps tendon and removed “loose bodies” from her right shoulder. Following surgery,
Employee was placed on work restrictions and underwent a course of physical therapy.
After continued complaints of pain, a repeat MRI was performed on March 26, 2019, which
revealed “rotator cuff tendinitis” and “severe glenohumeral osteoarthritis” with “no
1
Although there are several references to an August 8 date of injury in Dr. Garside’s medical records, there
is no dispute that Employee’s work injury occurred on August 12. Accordingly, we presume for purposes
of this appeal that any reference to an August 8 injury in Dr. Garside’s notes is a typographical error.
2
evidence of recurrent rotator cuff tears” and an intact biceps tenodesis. Dr. Garside
recorded that a “majority of [Employee’s] symptoms are secondary to her underlying
preexisting glenohumeral osteoarthritis,” and he released her to continue full duty work
activities on April 2, 2019. He placed Employee at maximum medical improvement on
May 15 and later assigned a 5% medical impairment rating attributable to the work injury.
On July 15, 2019, Employee saw Dr. Glenn for a second opinion. Upon evaluation,
he noted a “component of stiffness” in Employee’s shoulder and advised her that there
“[may be] some component of adhesive capsulitis present.” Dr. Glenn acknowledged
Employee had arthritic changes prior to her work injury but “believe[d] that the work-
related injury and subsequent rotator cuff injury and repair [had] exacerbated a preexisting
condition.” He also believed, “based on [Employee’s] job description,” that her work
duties “resulted in arthritic change in both of her shoulders.” Dr. Glenn concluded that
Employee “would benefit from shoulder arthroplasty as one definitive procedure, which
would reliably address all components of her shoulder dysfunction.” Employee returned
to Dr. Garside on August 9, 2019, to discuss treatment options for her shoulder and again
on January 22, 2020, to discuss pain management.
The parties deposed Dr. Glenn on September 11, 2020. He testified he saw
Employee on two occasions. He was concerned Employee “may have developed some
stiffness as a result of her surgery” and was “not very optimistic” about releasing
Employee’s shoulder adhesions given her underlying arthritic changes. Dr. Glenn noted
Employee’s diminished range of motion and recommended shoulder replacement “as the
most reliable procedure to address all of [Employee’s] pathology.” However, when
questioned about the reason for Employee’s shoulder replacement surgery, Dr. Glenn
responded as follows:
Q: And [Dr. Garside] has gone on at length in several of his records to
indicate that her primary problem at this point which, both you and he
have indicated might be resolved by shoulder arthroplasty or shoulder
replacement surgery[,] is a result of preexisting glenohumeral
osteoarthritis, correct?
A: Correct.
....
Q: I don’t want to simplify things, but basically are you in agreement with
Dr. Garside’s opinions?
A: Yes.
3
Dr. Garside gave his deposition on October 7, 2020. He described Employee’s
underlying condition as “end-stage” arthritis, which he said means “bone on bone. She has
no articular cartilage, and the articular cartilage is worn away so that she’s down to
subchondral bone.” When questioned about the need for shoulder replacement, Dr. Garside
said “the need for total shoulder arthroplasty represent[s] a preexisting condition not related
to the work caused by the August 12, 2018 injury” and is “not greater than 50 percent
related or caused by the August 12, 2018 injury.” Dr. Garside further testified that
Employee’s arthritis “did not affect [his] opinion that she had an injury on August 12,
which was a work-related injury,” adding that Employee “has preexisting arthritis which
is not related to the August 12, 2018 injury.” Dr. Garside also stated that he did not see
any “significant progression of arthritis” based upon his review of diagnostic studies.
Employee filed a petition for benefits seeking to compel Employer to provide
additional medical benefits, including the shoulder replacement surgery. An expedited
hearing was held on November 19, 2020, at which Employee testified regarding the loss
of movement in her right shoulder following surgery, explaining it “hurts all the time.”
Following the hearing, the trial court concluded that Employee would not likely prevail at
a trial in proving she was entitled to the requested medical benefits “[a]s no physician said
shoulder replacement was reasonable and necessary for the treatment of her workplace
injury.” The trial court noted that Employee failed to offer proof that the work accident
“contributed more than fifty percent” in causing the need for surgery and concluded
Employee failed to prove the surgery was reasonable and necessary to treat her work injury.
Employee has appealed.
Standard of Review
The standard we apply in reviewing a 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 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), or deposition testimony, see Brees v. Escape Day
Spa & Salon, No. 2014-06-0072, 2015 TN Wrk. Comp. App. Bd. LEXIS 5, at *16 (Tenn.
Workers’ Comp. App. Bd. Mar. 21, 2015) (“[T]he trial court occupies no better position
that this Appeals Board in reviewing and interpreting documentary evidence.”). 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
4
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 asserts the trial court erred in denying her request for
continuing medical treatment consisting of a right shoulder replacement. She contends that
“[b]ut for her August 2018 injury and reparative surgery, [she] would not need the sought-
after [shoulder replacement].” She also asserts that Employer should be equitably estopped
from relying on her osteoarthritis to deny compensation for the shoulder surgery because
Employer “knew about the [preexisting osteoarthritis] before it authorized the repair.”
As an initial matter, it is undisputed that Employee sustained an injury to her right
shoulder on August 12, 2018, resulting in the need for surgical repair by Dr. Garside. It is
also undisputed that Employee’s diagnosis of preexisting glenohumeral osteoarthritis
predated her August 12 work incident and that the recommended shoulder replacement
surgery would be performed to address that condition. Consequently, we must consider
whether sufficient evidence was presented at the expedited hearing to indicate Employee
would likely prevail in proving the work injury aggravated or exacerbated her preexisting
arthritic condition necessitating the shoulder replacement surgery. 2
We have previously considered cases in which an injured worker alleged a
compensable aggravation of a preexisting condition. Specifically, we noted that the 2013
Workers’ Compensation Reform Act changed the definition of “injury” in Tennessee Code
Annotated section 50-6-102(14) to address the proof required to establish a compensable
aggravation. The statute now specifies that
“Injury” and “personal injury” mean an injury by accident, . . . or cumulative
trauma conditions . . . arising primarily out of and in the course and scope of
employment, that causes death, disablement, or the need for medical
treatment of the employee; provided that:
(A) An injury . . . shall not include the aggravation of a preexisting disease,
condition or ailment unless it can be shown to a reasonable degree of medical
certainty that the aggravation arose primarily out of and in the course and
scope of employment.
2
We note that Employee’s “but for” analysis is not the appropriate causation analysis under Tennessee law.
An employer is not a general health insurer, Cunningham v. Shelton Sec. Serv., 46 S.W.3d 131, 137 (Tenn.
2001), and, without evidence that a work accident was more than 50% the cause of the need for certain
medical treatment, an employer cannot be deemed responsible for that treatment. See Tenn. Code Ann. §
50-6-102(14)(C).
5
Tenn. Code Ann. § 50-6-102(14) (2020) (emphasis added). See also Miller v. Lowe’s
Home Centers, Inc., No. 2015-05-0518, 2015 TN Wrk. Comp. App. Bd. LEXIS 40, at *7-
9 (Tenn. Workers’ Comp. App. Bd. Oct. 21, 2015). In Miller, we concluded that “an
employee can satisfy the burden of proving a compensable aggravation if: (1) there is
expert medical proof that the work accident contributed more than fifty percent (50%) in
causing the aggravation, and (2) the work accident was the cause of the aggravation more
likely than not, considering all causes.” Id. at *13. In addition, when the dispute centers
on a request for medical treatment, the burden at an expedited hearing is on the employee
to show he or she is likely to prevail at trial in proving that the work injury “contributed
more than fifty percent (50%) in causing the . . . need for medical treatment, considering
all causes.” Tenn. Code Ann. § 50-6-102(14)(C).
In the present case, Dr. Garside testified that Employee’s need for shoulder
replacement arose primarily from her preexisting osteoarthritis. As an authorized
physician selected from a panel pursuant to section 50-6-204(a)(3), Dr. Garside’s causation
opinion is presumed to be correct as provided in section 50-6-102(14)(E). In addition, Dr.
Garside testified that Employee’s “need for total shoulder arthroplasty is not greater than
50 percent related or caused by the August 12, 2018, injury.” Expounding further, he
stated:
In my opinion, she had previously been diagnosed with shoulder arthritis.
She had been previously treated for shoulder arthritis six months prior to her
injury. The arthritis predated the August 12 [work injury] and is unrelated
to the August 12 injury.
In attempting to link her need for shoulder replacement to the August 12 work
injury, Employee relies on certain testimony of Dr. Glenn. Specifically, Dr. Glenn testified
that Employee’s “work-related injury and subsequent rotator cuff injury and
repair . . . exacerbated a preexisting condition.” He also testified that Employee’s job
duties “resulted in arthritic change in both of her shoulders.” However, Dr. Glenn neither
stated that an exacerbation of Employee’s preexisting osteoarthritis was the primary cause
of the need for shoulder replacement, considering all causes, nor did he use words
supporting such a conclusion. See Tenn. Code Ann. § 50-6-102(14)(C).
Employee also argues that “[d]ue to [her] persistent pain and reduced range of
motion, the accident sustained on the job is the nexus both for the repair work performed
by Dr. Garside and for [her] present condition.” Employee points to “Dr. Glenn’s later
observations about how the injury and Dr. Garside’s repair work affected [Employee]” and
contends that, by failing to make a distinction between the August 12 injury and Dr.
Garside’s surgical repair, Dr. Glenn “implied that the repair played some part in
exacerbating the preexisting condition, thus necessitating further repair for the August [12]
injury.” Whether the surgery Dr. Garside performed “played some part” in exacerbating a
preexisting condition is not the issue. See Tenn. Code Ann. § 50-6-102(14)(C). There is
6
no expert medical proof to support Employee’s contention that her need for shoulder
replacement was primarily caused by her work injury or that her work injury contributed
more than fifty percent in causing the need for medical treatment, considering all causes.
Likewise, there is no evidence that Dr. Garside’s surgery contributed more than fifty
percent in causing the need for shoulder replacement. Indeed, Dr. Garside and Dr. Glenn
both testified that Employee’s need for shoulder replacement surgery was the result of her
preexisting glenohumeral osteoarthritis. Accordingly, the preponderance of the evidence
supports the trial court’s conclusion that Employee is unlikely to prevail at trial in
establishing that her need for shoulder replacement is causally related to her work injury. 3
Conclusion
For the foregoing reasons, we affirm the trial court’s order denying Employee’s
interlocutory request for additional medical benefits, including shoulder replacement
surgery, and we remand the case. Costs on appeal are taxed to Employee.
3
Because we conclude that Employee failed to establish that her preexisting osteoarthritis was exacerbated
or aggravated by the August 12 work injury or her reparative surgery performed on October 18, we need
not address the issue of equitable estoppel.
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TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Kimberly Grimes ) Docket No. 2019-06-1960
)
v. ) State File No. 60942-2018
)
YRC, Inc., 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 16th day
of February, 2021.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Samuel Morris X smorris@gmlblaw.com
Libby Belt lbelt@gmlblaw.com
Stephen K. Heard X skheard@cclawtn.com
Hunter Spivey chspivey@cclawtn.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