Lee, Justin v. Western Plastics ( 2016 )


Menu:
  •              TENNESSEE BUREAU OF WORKERS’ COMPENSATION
    WORKERS’ COMPENSATION APPEALS BOARD
    Justin Lee                                   )   Docket No. 2016-06-0912
    )
    v.                                           )   State File No. 70538-2015
    )
    Western Plastics, et al.                     )
    )
    )
    Appeal from the Court of Workers’            )
    Compensation Claims                          )
    Robert V. Durham, Judge                      )
    Affirmed and Remanded - Filed October 20, 2016
    In this interlocutory appeal, the employer challenges the trial court’s findings that the
    employee’s recurrent shoulder dislocations and need for surgery were causally related to
    a compensable work injury. The employee suffered a shoulder dislocation at work,
    which the employer accepted as compensable and for which it provided medical care,
    including surgery. Subsequently, the employee suffered multiple dislocations of the
    same shoulder while away from the workplace. The trial court ruled there was sufficient
    evidence to establish the employee was likely to prevail at trial in establishing the
    subsequent dislocations were causally related to the workplace injury and ordered
    medical benefits, including surgery recommended by the employee’s authorized treating
    physician. The employer has appealed, arguing that (1) the evidence is insufficient to
    link the recurrent shoulder dislocations to the original work injury, and (2) the recurrent
    dislocations were due to intervening events, specifically the employee’s intentional
    and/or negligent conduct. We affirm the trial court’s decision and remand the case.
    Presiding Judge Marshall L. Davidson, III, delivered the opinion of the Appeals Board in
    which Judge Timothy W. Conner joined; Judge David F. Hensley dissenting.
    J. Scott Hickman, Nashville, Tennessee, for the employer-appellant, Western Plastics
    Justin Lee, Madisonville, Kentucky, employee-appellee, pro se
    1
    Factual and Procedural Background
    Justin Lee (“Employee”) was employed by Western Plastics (“Employer”) on
    August 31, 2015 when he suffered a compensable shoulder injury. Specifically, his right
    shoulder was dislocated when he struck his shoulder on a piece of machinery. Employer
    provided authorized medical treatment, including surgery, with Dr. Calvin Dyer, an
    orthopedic surgeon.
    On January 8, 2016, Employee returned to Dr. Dyer for a post-surgical follow-up
    at which Dr. Dyer noted Employee had progressed to a home exercise program and could
    return to work with no restrictions. He instructed Employee to return in one month, at
    which time he anticipated Employee would be at maximum medical improvement.
    When Employee followed up with Dr. Dyer on February 5, 2016, Dr. Dyer noted
    he had been doing well until a large dog jumped on him and hit his shoulder, causing it to
    dislocate again. Dr. Dyer noted that Employee had experienced a good recovery overall
    and that it was “unfortunate that he has had a new injury but hopefully this will only slow
    him down minimally.” A report completed that day by Dr. Dyer reflects Employee was
    at maximum medical improvement, could return to work with no restrictions, should
    follow up as needed, and that his diagnosis of right shoulder dislocation was work-
    related. Several weeks later, on March 18, 2016, Employee returned to Dr. Dyer
    reporting he had experienced a recurrent dislocation when he rolled over in bed. Dr.
    Dyer ordered physical therapy and resumption of a home exercise program. He did not
    assign work restrictions and indicated on his report that the “recurrent dislocation” was
    work-related.
    The last medical report in the record is for an office visit with Dr. Dyer on April
    28, 2016. At that visit, Employee reported yet another right shoulder dislocation as a
    result of “just a simple swat of his arm.” Dr. Dyer observed Employee had experienced
    instability in his shoulder for the past four months and recommended a second surgery to
    address the “continued instability.” In his office note, Dr. Dyer stated that Employee’s
    “compliance is an issue, and I have confronted him and counseled him again at length
    about the operative procedure and the need for compliance and exercises.” Dr. Dyer
    further observed that Employee had experienced “a set of unfortunate circumstances for
    this work-related injury. The recurrent instability unfortunately occurred during his
    recovery. He never had a chance to heal.” Dr. Dyer also noted that “with his everyday
    activities and continued instability,” he needed surgery and opined that “with a
    reasonable degree of medical certainty the original dislocation had an episode at work
    2
    followed by trauma and his recovery from this work injury.” Employer denied the
    surgery recommended by Dr. Dyer.1
    Employee filed a petition for benefit determination, and the parties agreed that a
    decision could be rendered based upon the record without an evidentiary hearing. The
    trial court determined that no additional evidence was necessary to resolve the issues and,
    after reviewing the information submitted, the trial judge found Employee was likely to
    succeed at a hearing on the merits and ordered Employer to provide ongoing medical
    care, including the surgery recommended by the authorized physician, Dr. Dyer. The
    trial court denied payment of emergency room bills submitted by Employee on the basis
    that he had not established the bills were reasonable and necessary.2 Employer has
    appealed.
    Standard of Review
    The standard we apply in reviewing a trial court’s decision is statutorily mandated
    and limited in scope. Specifically, “[t]here shall be a presumption that the findings and
    conclusions of the workers’ compensation judge are correct, unless the preponderance of
    the evidence is otherwise.” Tenn. Code Ann. § 50-6-239(c)(7) (2015). The trial court’s
    decision may be reversed or modified if the rights of a party “have been prejudiced
    because findings, inferences, conclusions, or decisions of a workers’ compensation judge:
    (A)      Violate constitutional or statutory provisions;
    (B)      Exceed the statutory authority of the workers’ compensation judge;
    (C)      Do not comply with lawful procedure;
    (D)      Are arbitrary, capricious, characterized by abuse of discretion, or
    clearly an unwarranted exercise of discretion; or
    (E)      Are not supported by evidence that is both substantial and material
    in the light of the entire record.”
    Tenn. Code Ann. § 50-6-217(a)(3) (2015).
    Analysis
    Employer makes two arguments on appeal. First, Employer asserts that the trial
    court erred in ordering benefits in the absence of a medical opinion linking the recurrent
    shoulder dislocations to the original work injury. Second, Employer maintains Employee
    is not entitled to the additional medical treatment ordered by the trial court because of
    1
    According to Employee’s affidavit contained in the record, he dislocated his shoulder again on July 23,
    2016, this time when he slipped and tried to catch himself while vacuuming out his car. There are no
    medical records or other information in the record about this incident.
    2
    Employee did not appeal the denial of the emergency room bills and, thus, we do not address that issue.
    3
    independent, intervening causes, specifically Employee’s own intentional and/or
    negligent acts.
    A.
    In Tennessee, the general rule is that a “subsequent injury, whether in the form of
    an aggravation of the original injury or a new and distinct injury, is compensable if it is
    the ‘direct and natural result’ of a compensable injury.” Anderson v. Westfield Grp., 
    259 S.W.3d 690
    , 696 (Tenn. 2008).3 “The rule, commonly referred to as the direct and
    natural consequences rule, has been stated as: [w]hen the primary injury is shown to have
    arisen out of and in the course of employment, every natural consequence that flows from
    the injury likewise arises out of the employment.”
    Id. Therefore, “all the
    medical
    consequences and sequelae that flow from the primary injury are compensable.” Rogers
    v. Shaw, 
    813 S.W.2d 397
    , 400 (Tenn. 1991). “The rationale for the rule is that the
    original compensable injury is deemed the cause of the damage flowing from the
    subsequent injury-producing event.” 
    Anderson, 259 S.W.3d at 697
    .
    Under circumstances similar to this case, the Tennessee Supreme Court’s Special
    Workers’ Compensation Appeals Panel determined that the failure of a biceps tendon
    repair due to the injured worker restraining a dog was a direct and natural consequence of
    the work-related injury and was compensable. Kirby v. Memphis Jewish Nursing Home,
    No. W2010-02261-WC-R3-WC, 2011 Tenn. LEXIS 1135, at *10 (Tenn. Workers’
    Comp. Panel Dec. 1, 2011). The subsequent injury occurred when the employee’s arm
    was jerked by a dog he was holding by the collar some three months after the employee’s
    shoulder surgery.
    Id. at
    *3. 
    As in the present case, the authorized physician had assigned
    no restrictions, and the Panel determined the employee had not acted negligently in
    grabbing the dog’s collar.
    Id. at
    *10. 
    In doing so, the Panel concluded that the injury to
    the employee’s arm was a natural and probable consequence of the original injury rather
    than an independent, intervening event.
    In the present case, the trial court considered Employee’s medical records and
    determined that, taken as a whole, they were sufficient to conclude Dr. Dyer opined the
    recurrent dislocations and need for surgery were causally related to the workplace injury.
    We agree. Dr. Dyer’s records reflect that Employee’s recurrent dislocations occurred
    during his healing period. Dr. Dyer stated that Employee never had a chance to heal from
    his surgery and that he had “continued instability,” resulting in the recurrent dislocations.
    Moreover, the record contains two reports, one dated February 5, 2016, which is when
    Employee saw Dyer following the dog incident, and the other dated March 18, 2016,
    which is when he saw Dr. Dyer for the sleeping incident. One report lists the diagnosis
    3
    The effect of the Reform Act of 2013 on the direct and natural consequences rule, if any, has not been
    raised or addressed by the parties in the trial court or on appeal. Thus, any discussion or consideration of
    that issue must await an appropriate case.
    4
    as “recurrent dislocation” and the other report shows the diagnosis as “dislocation.” To
    the right of the diagnosis on each form, Dr. Dyer checked a box stating “is work related.”
    Additionally, Dr. Dyer’s April 2016 record reflects Employee had experienced instability
    in his right shoulder for four months, indicating the instability pre-dated the January 31,
    2016 incident in which the dog jumped on him. The record contains no contrary medical
    evidence. Absent any such proof, we cannot conclude that the evidence preponderates
    against the trial court’s finding that the recurrent dislocations and need for surgery are
    causally related to the compensable injury.4
    B.
    Employer’s second argument is that the trial court erred in awarding additional
    medical benefits because Employee’s actions constitute independent, intervening events
    resulting in the need for the additional medical treatment. According to Employer,
    Employee’s recurrent shoulder instability is due to intervening events unrelated to the
    original work injury, namely, Employee’s “own intentional and/or negligent acts.” Thus,
    Employer argues that additional treatment needed due to the subsequent dislocations
    should be denied. We do not agree.
    The law is clear that “[h]owever firmly implanted the principle may be that a
    subsequent injury is deemed to arise out of the employment if it flows from a
    compensable injury, the rule has a limit. That limit hinges on whether the subsequent
    injury is the result of independent intervening causes, such as the employee’s own
    conduct.” 
    Anderson, 259 S.W.3d at 697
    . While events unrelated to an employee’s
    conduct may arguably constitute an independent intervening cause, Tennessee courts
    have consistently applied the principle that, in order for an employee’s actions to
    constitute an independent intervening incident sufficient to break the chain of causation,
    there must be negligent, reckless, or intentional conduct on the part of the employee.
    Id. (“[N]egligence is the
    appropriate standard for determining whether an independent
    intervening cause relieves an employer of liability for a subsequent injury purportedly
    flowing from a prior work-related injury.”); 
    Rogers, 813 S.W.2d at 399
    (“[E]very natural
    consequence that flows from the occupational disease arises out of the employment,
    unless it is the result of an independent intervening cause attributable to the employee’s
    intentional conduct.”).
    4
    Employer correctly points out that when Dr. Dyer saw Employee after the first post-surgery dislocation,
    he referred to it as a “new injury.” Employer argues, therefore, that Dr. Dyer believed Employee’s post-
    surgical dislocations were unrelated to his August 2015 work injury. This argument fails to consider Dr.
    Dyer’s records as a whole. As stated by the trial judge, Employee “continued to suffer from shoulder
    dislocations, often over seemingly trivial activities such as rolling over in bed or swatting at a dog, [and]
    Dr. Dyer revised his opinion,” noting that Employee continued to suffer from “recurrent instability” as he
    was recovering from surgery.
    5
    Moreover, for purposes of the intervening cause principle, an employee acts
    negligently when the employee fails to exercise reasonable care under the circumstances.
    
    Anderson, 259 S.W.3d at 698
    . An employee acts intentionally “when it is the person’s
    conscious objective or desire to engage in the conduct or cause the result.”
    Id. at
    n.18.
    Thus, “[t]hough stated in different ways, our cases make clear that an employee’s
    intervening conduct can break the chain of causation necessary to impose liability for a
    subsequent injury based on the direct and natural consequences concept.”
    Id. at
    697.
    Guided by these well-established principles, we note the trial court concluded that
    the instances resulting in Employee’s recurrent dislocations did not amount to intentional
    or negligent conduct on the part of Employee. We find no proof in the record to the
    contrary. While Employer asserts that it was negligent of Employee to allow a dog to
    jump on him, there is no evidence to establish the circumstances surrounding that event.
    It is unclear from the record whether Employee allowed the dog to jump on him, tried to
    avoid the dog, or was simply taken unawares. Furthermore, we cannot see how rolling
    over in bed or casually swatting one’s arm at a dog amounts to behavior that could be
    characterized as negligent, at least based on this record, and especially given that Dr.
    Dyer had not imposed any physical restrictions on Employee when these incidents
    occurred.
    Finally, we agree with the trial court’s observation that, while Dr. Dyer’s notes
    reflect some concern with Employee’s compliance, there is insufficient evidence in the
    record to establish the nature of the noncompliance and whether it was in any way
    causally related to the recurrent dislocations. Accordingly, the trial court’s order for
    medical benefits, including the surgery recommended by the authorized treating
    physician, Dr. Dyer, is affirmed.
    Conclusion
    For the foregoing reasons, we hold that the evidence does not preponderate against
    the trial court’s decision at this interlocutory stage of the case. Nor does the trial court’s
    decision violate any of the standards set forth in Tennessee Code Annotated section 50-6-
    217(a)(3). Accordingly, the trial court’s decision is affirmed. The case is remanded for
    any further proceedings that may be necessary.
    6
    TENNESSEE BUREAU OF WORKERS’ COMPENSATION
    WORKERS’ COMPENSATION APPEALS BOARD
    Justin Lee                                     )   Docket No. 2016-06-0912
    )
    v.                                             )   State File No. 70538-2015
    )
    Western Plastics, et al.                       )
    )
    )
    Appeal from the Court of Workers’              )
    Compensation Claims                            )
    Robert V. Durham, Judge                        )
    Dissent-Filed October 20, 2016
    Hensley, J., dissenting.
    The issue in this case is whether the preponderance of the evidence supports the
    trial court’s determination that the employee will likely prevail at trial in establishing that
    the employer is responsible under the applicable principles of the Workers’
    Compensation Law for providing additional medical care and shoulder surgery
    recommended by the authorized physician. The majority opinion concludes the
    employee presented sufficient evidence at this interlocutory stage of the claim. I
    respectfully disagree.
    I would reverse the trial court’s determination on the basis that the preponderance
    of the evidence does not support a determination that the employee will likely prevail at
    trial in establishing that the need for the additional medical care and surgery is the “direct
    and natural consequence” of the August 31, 2015 work-related injury. At an expedited
    hearing, an employee need not prove every element of his or her claim by a
    preponderance of the evidence but, instead, must come forward with sufficient evidence
    from which the trial court can determine that the employee is likely to prevail at a hearing
    on the merits consistent with Tennessee Code Annotated section 50-6-239(d)(1) (2015).
    McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp.
    App. Bd. LEXIS 6, at *9 (Tenn. Workers’ Comp. App. Bd. Mar. 27, 2015). This lesser
    evidentiary standard “does not relieve an employee of the burden of producing evidence
    of an injury by accident that arose primarily out of and in the course and scope of
    employment at an expedited hearing, but allows some relief to be granted if that evidence
    1
    does not rise to the level of a ‘preponderance of the evidence.’” Buchanan v. Carlex
    Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6 (Tenn.
    Workers’ Comp. App. Bd. Sept. 29, 2015). In my view, although no issue has been
    raised as to the compensability of the original workplace injury, the employee failed to
    meet even this lesser evidentiary standard regarding whether his need for medical care
    and surgery subsequent to the January 31, 2016 dislocation was the direct and natural
    consequence of the workplace injury.
    Here, the relief granted in the trial court’s interlocutory order was additional
    medical care, including surgery, recommended by the authorized treating physician. In
    reviewing a trial court’s decision determining that the evidence presented at an expedited
    hearing is sufficient to find that an employee is likely to prevail at trial, the Appeals
    Board must determine where the preponderance of the evidence lies. Revnew v.
    Amazon.com, Inc., No. 2016-06-0320, 2016 TN Wrk. Comp. App. Bd. LEXIS _, at *_
    (Tenn. Workers’ Comp. App. Bd. Oct. 3, 2016). The only records submitted by the
    parties for the trial court’s consideration are those that post-date the employee’s right
    shoulder stabilization surgery. Because of the significance the medical records play in
    deciding the issue under review, I believe it is necessary to discuss the records in greater
    detail than does the majority opinion.
    The earliest medical report contained in the record is the report of the employee’s
    January 8, 2016 post-operative visit. The report does not suggest that Dr. Dyer or the
    employee had any concerns about the success of the shoulder stabilization surgery:
    Healthy young man. Wounds are nicely healed. He can forward flex to
    180 degrees. He is still tight with only 70 degrees of external rotation.
    Elbow and hand movements are full. He reports no subluxation events and
    has been going to therapy working on strengthening exercises.
    X-rays “show[ed] good alignment, centralization of the shoulder.              No other
    abnormalities.” The “Plan” included home exercises, returning to regular work, and
    following up with the doctor in one month. Dr. Dyer stated that “[a]t that time, I expect
    him to be back at maximum medical improvement with one month of work under his
    belt.”
    As with each of the four office visits for which medical records were submitted,
    the January 8, 2016 record included a form WorkLink Physician’s Report (“WorkLink
    Report”) that included, among other information, the name of the employer, the insurance
    company, and the case manager. The form included boxes that could be checked to
    identify whether the visit was an initial visit, re-check, evaluation only/second opinion, or
    “evaluation and treat.” The form also included three boxes that could be checked to
    identify whether the visit is work-related, is not work-related, or “cannot be determined.”
    Below these boxes are two lines, one for “Diagnosis,” and the second for “Medications.”
    2
    The form also contains space for the physician to provide work status information and/or
    restrictions.
    The January 8, 2016 Worklink Report is marked “re-check” and “is work related.”
    The diagnosis was “[r]ight shoulder [p]ost op.” No work restrictions were specified, and
    the report indicates the employee was returned to regular duty on January 8, 2016. He
    was to follow up in one month.
    As instructed, the employee returned to Dr. Dyer approximately one month later,
    on February 5, 2016, and reported “[a] large 100-pound dog jumped on him, hit his
    shoulder and he re-dislocated while in Kentucky this past week.” The physical exam at
    this visit revealed “slight tenderness anteriorly . . . [m]ild pain only behind his back,” and
    Dr. Dyer noted that “[o]verall, he has made a good recovery from his surgical
    procedure.” However, Dr. Dyer also stated that “[i]t is unfortunate that he has had a new
    injury but hopefully this will only slow him down minimally.” Dr. Dyer placed the
    employee at maximum medical improvement “following right shoulder surgery for a
    dislocation related to work,” noting he would assign an impairment rating and that the
    employee would not have any permanent restrictions. The WorkLink Report noted the
    visit was a “re-check” that “is work related” and included a diagnosis of right shoulder
    “dislocation.” The work status box noted the employee was at “MMI” and was returned
    to regular duty with no permanent restrictions. The employee was to return to Dr. Dyer
    “as needed.” Four days later, Dr. Dyer electronically signed a letter “To Whom It May
    Concern,” wherein he expressed the following:
    Justin Lee has been under my care following a work-related injury dated
    August 31, 2015. He suffered a work-related right shoulder dislocation.
    He currently has reached maximum medical improvement as of February 5,
    2016. He will be able to perform full duty regular work. He will retain
    permanent impairment related to this injury and subsequent surgery
    according to the AMA Guides Sixth Edition page 404, table 15-5. He will
    retain an 11% right upper extremity impairment or 7% whole person
    impairment.
    When the employee returned to Dr. Dyer six weeks later on March 18, 2016, he
    reported another dislocation episode while sleeping. The narrative report states he
    “reports rolling over . . . when his shoulder just simply came out of place in bed . . . [on]
    02/29/2016.” Dr. Dyer started “a short course of physical therapy,” and noted that “[h]is
    case manager is present today.” The employee was to “[r]eturn to regular duty work as a
    pharmacy technician,” which the report noted was a “different employment than his
    injury.” The March 18, 2016 WorkLink Report was marked “re-check” and “is work
    related” and indicated a diagnosis of “[right] [s]houlder [r]ecurrent [d]islocation.” It
    reflected the employee was to return to regular duty the following day and was to return
    to the doctor in six weeks, following four physical therapy visits.
    3
    When the employee returned to Dr. Dyer six weeks later on April 28, 2016, he
    reported continuing to “work full duty for a job other than the one that caused [the]
    dislocation.” Dr. Dyer noted that the employee “previously had shoulder stabilization in
    December [2015] and then had trauma in his postoperative recovery period.” The report
    states “[t]his time his date of injury was 04/19 when he just had a simple swat of his arm
    and the shoulder came out of place.” Dr. Dyer noted that the employee “has had
    recurrent instability for 4 months following shoulder stabilization. Unfortunately, he had
    mild trauma in his recovery while [he was] still in a sling, which dislocated his shoulder.”
    The narrative report included the following assessment:
    Recurrent shoulder instability. I spent more than 20 minutes discussing
    options for treatment, but with his everyday activities and continued
    instability, I have offered revision surgery. At this point, I would expect
    enough soft tissue to be able to repair this. Physiologically, he is not
    excessively lax. There is a possibility of open procedure with bony block,
    but at this time without any bony defects in his anterior glenoid, I would
    expect to be able to fix him arthroscopically. His compliance is an issue,
    and I have confronted him and counseled him again at length about the
    operative procedure and the need for compliance and exercises. He has a
    set of unfortunate circumstances for this work-related injury periods [sic].
    The recurrent instability unfortunately occurred during his recovery. He
    never had a chance to heal.
    Although this is a complicated situation, with a reasonable degree of
    medical certainty the original dislocation had an episode at work followed
    by trauma and [sic] his recovery from this work injury. He consents and
    will proceed.
    In my opinion, it is significant that Dr. Dyer did not mark the WorkLink Report
    for the April 28, 2016 visit to indicate that the employee’s diagnosis of “[r]ight [s]houlder
    [r]ecurrent [d]islocation” was work-related. The doctor also did not indicate whether the
    visit was a “re-check” or an “initial visit.” The WorkLink Report noted that the surgery
    is “to be scheduled,” but nowhere in the narrative report or the WorkLink Report for the
    April 28, 2016 visit does the doctor indicate that the need for surgery is either a direct and
    natural consequence of the August 2015 work injury or reasonably required as a result of
    the August 2015 work injury.
    The trial court identified the “dispositive issue” as whether the employee’s “post-
    surgery shoulder dislocations constitute intervening events sufficient to break the causal
    connection between [the employee’s] original injury and his current need for medical
    treatment.” The trial court “[held that] the evidence submitted by [the employee] is
    sufficient to establish he is likely to prevail at a hearing on the merits regarding the
    4
    reasonableness and necessity of additional treatment . . . for his work-related injury.”
    However, the reasonableness and necessity for additional medical treatment was not at
    issue. The trial court stated that “[i]n order to prevail, [the employee] must establish that
    his recurrent shoulder dislocations and his current need for medical treatment are the
    ‘direct and natural result’ of the undisputed work injury he sustained on August [31],
    2015.” The trial court noted that Dr. Dyer’s causation statement “is admittedly less than
    clear.” Nevertheless, the trial court found that “when considering the record as a whole,
    . . . Dr. Dyer’s record is sufficient to establish he has opined [the employee’s] ‘recurrent
    instability’ and need for revision surgery causally relate to his initial work injury on
    August [31], 2015.” (Emphasis added).
    I disagree with the trial court’s finding that Dr. Dyer’s “record” is sufficient to
    establish that he has opined that the employee’s recurrent instability and need for surgery
    causally relate to the original injury. Likewise, I disagree with the majority’s agreement
    with the trial court’s conclusion that the medical records, taken as a whole, “were
    sufficient to conclude Dr. Dyer opined the recurrent dislocations and need for surgery
    were causally related to the workplace injury.” Instead, in my opinion both the trial court
    and the majority reached their own conclusions in the absence of medical evidence either
    disclosing the doctor’s opinion or establishing causation.
    Contrary to the trial court’s determination, Dr. Dyer did not opine that the
    employee’s recurrent instability and need for surgery either causally relate to or are the
    direct and natural consequence of the August 2015 injury. He simply did not address the
    issue. I do not discern any of the statements upon which the trial court and the majority
    opinion rely to constitute an expert opinion regarding causation. The authorized
    physician made observations about the employee’s post-surgical course of treatment and
    his setbacks. However, these statements do not indicate that Dr. Dyer has an opinion
    regarding whether the subsequent dislocations are causally related to the workplace
    injury. Moreover, statements contained in Dr. Dyer’s records can be interpreted to
    express an opinion contrary to the one the trial court and the majority opinion have
    adopted. Furthermore, once the doctor recommended the additional surgery, he did not
    mark the “is work related” box on the WorkLink Report as he had for the previous visits.
    In my view, the record is devoid of an expert medical opinion regarding causation, and
    there is insufficient evidence in the record at this stage of the proceedings to establish that
    the employee is likely to succeed on the merits of his claim at trial. Accordingly, I would
    reverse the trial court.
    5
    TENNESSEE BUREAU OF WORKERS’ COMPENSATION
    WORKERS’ COMPENSATION APPEALS BOARD
    Justin Lee                                               )   Docket No.   2016-06-0912
    )
    v.                                                       )   State File No. 70538-2015
    )
    Western Plastics, et al.                                 )
    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 20th day of October, 2016.
    Name                    Certified   First Class   Via   Fax      Via     Email Address
    Mail        Mail          Fax   Number   Email
    Justin Lee                                                         X     Jlee59305@gmail.com
    J. Scott Hickman                                                   X     SHickman@srvhlaw.com
    Robert V. Durham,                                                  X     Via Electronic Mail
    Judge
    Kenneth M. Switzer,                                                X     Via Electronic Mail
    Chief Judge
    Penny Shrum, Clerk,                                                X     Penny.Patterson-Shrum@tn.gov
    Court of Workers’
    Compensation Claims
    Matthew Salyer
    Clerk, Workers’ Compensation Appeals Board
    220 French Landing Dr., Ste. 1-B
    Nashville, TN 37243
    Telephone: 615-253-1606
    Electronic Mail: Matthew.Salyer@tn.gov
    

Document Info

Docket Number: 2016-06-0912

Judges: Marshall L. Davidson III, David F. Hensley, Timothy W. Conner

Filed Date: 10/20/2016

Precedential Status: Precedential

Modified Date: 1/10/2021