More oral arguments

By Jane Salem, staff atorney, Nashville

Last Tuesday, the Appeals Board held telephonic oral arguments in six cases. I previously wrote about the morning cases. The following summarizes the afternoon’s cases, which all involved review of expedited hearings and medical causation issues.

In Barnes v. Jack Cooper Transportation Co., the employer appealed an order for medical benefits.

William Barnes suffered a work injury in 2013 that required surgical repair of a meniscal tear. He settled the case with open medicals. Then in 2018, he re-injured the knee at work. Panel physician Dr. Blake Garside diagnosed an exacerbation of preexisting osteoarthritis and said he needed a knee replacement, but he said the need for surgery wasn’t work-related. Barnes treated on his own with Seven Springs Orthopaedics, where providers agreed on the diagnosis and need for surgery but said the need for a knee replacement was related to the 2018 injury.

Jack Cooper said the Court erred by accepting Seven Springs’ opinion over Dr. Garside’s.

Attorney Allen Grant, representing Jack Cooper, said it wasn’t clear that Barnes even saw a physician at Seven Springs, but rather he just saw a physician assistant, and it’s also unknown which records they reviewed, if any.

“All we know is, they gave an opinion that a total knee replacement was in his future. They said he has pain that they think is due to his employment, and that he needs a total knee replacement. They never connected those two dots,” Grant said.

“On the other hand, Dr. Garside was questioned thoroughly by three attorneys, two of them under cross-examination. And he rendered a very detailed and well thought-out response that his opinion was [that] the total knee replacement was not primarily related to this claim.”

Grant added that Dr. Garside, who testified that he performs about 100 knee replacements annually, attributed the need for the knee replacement to preexisting osteoarthritis.

Attorneys Richard Dugger and Sarah Barnett said the trial court got it right.

Dugger, representing Barnes, acknowledged that he didn’t depose the physician who signed the Seven Springs records, Dr. Jason Jones, stating that his client couldn’t afford it.

Barnett, who represented the employer’s previous carrier, relied on verbiage from a letter by Dr. Jones, who wrote “I believe his second injury is the cause of his ongoing pain, which was an exacerbation of osteoarthritis.”

Referring to that statement, Barnett said, “I think in the brief of the employer, what they quibble with is, ‘well, the cause is not strong enough.’ But I think a fair reading of that, and a common reading, and the way that courts reads these things, is that ‘the cause’ is unequivocal. It’s definitive.”

Barnett added that Dr. Jones’ opinion, combined with Barnes’ credible testimony, was enough to satisfy the employee’s burden at the expedited hearing stage.

Judge Tim Conner observed, “As I understand your argument, you’re saying the accident caused the pain, and the pain is causing the need for the knee replacement. And it’s actually two links in the chain.”

Barnett agreed with that interpretation, adding, “‘The cause’ indicates to me it’s the sole cause. ‘The cause’ is the only one.”

Were later symptoms a ‘direct and natural consequence’?

In Hudgins v. Global Personnel Solutions, Inc., the employer appealed an order granting additional medical benefits.

Natacha Hudgins tripped and fell at work, injuring her knee. Global Personnel accepted the claim and later authorized knee surgery. Afterward, Hudgins began feeling back and hip pain. The trial court found it was a direct and natural consequence of the fall at work.

Global’s attorney, Tiffany Sherrill, argued there was “no identifiable injury.” She said, “She is unable to really say when the back or hip pain occurred. She’s not able to identify anything specifically, other than it just happened at some point after the knee surgery.”

As for medical causation, an authorized treating physician wrote, “I feel like this is at the very least an aggravation of a preexisting problem secondary to walking with [a] flexion contracture to the right knee.” Sherrill argued that the doctor’s use of the words “secondary to” did not comport with the statutory definition that an injury must arise “primarily” out of and in the course and scope of employment.

The same physician later responded to Global’s causation letter that Hudgins’ condition “possibly” arose from the work injury. Sherrill said that as time passed, the doctor was backing off from his earlier opinion, and that her preexisting degenerative disc disease was the primary cause of the later symptoms.

But Matthew Coleman, Hudgins’ attorney, said that physicians often use “secondary to” to mean “due to,” “caused by,” or “resulting from.” He further argued that case law permits judges to draw “reasonable inferences” from the lay testimony and expert opinions, and the record as a whole supported the judge’s order.

Coleman noted delays in Global authorizing treatment throughout the case and said, “They only denied treatment when the back doctor … made a recommendation for surgery. That was the kicker that put them into the denial stage.”

No opinion on causation for alleged gradual injury

In Ibarra v. Amazon Fulfillment Services, the employer appealed an order concluding that Grecia Ibarra sustained a gradual injury identifiable by time and place, where the authorized treating physician didn’t offer an opinion on medical causation but made a specialist referral.

Judge Conner asked Amazon’s attorney, Tiffany Sherrill, if Ibarra satisfied the specific incident requirement by testifying that she was “lifting totes” at work and her pain started in “September.” Sherrill responded that Ibarra was just describing her job duties, and, “‘September’ is not really identifiable by time. September is a long month; there’s plenty of days in September it could’ve been.”

Sherrill further noted that Ibarra originally described her back pain as “soreness.”

“If this Board recognizes ‘soreness’ as an actual injury, it would have horrible ramifications for any employers who hire employees for physical labor, because any time an employee is sore from doing work that by its nature can cause you to be sore, they could potentially be entitled to workers’ compensation benefits.”

As to medical causation, the initial panel physician said causation was “unknown” and referred Ibarra to a specialist.

“She [the doctor] didn’t specifically say it’s not [work-related], but she said that she couldn’t say it was. So in that scenario, my client does not feel that they have an obligation to provide continued treatment,” Sherrill told the Board. “At some point, there has to be a stop. I mean, how many panels does my client have to provide before somebody can provide an opinion?”

Regarding “soreness,” Chris Markel, Ibarra’s attorney, urged the judges to consider the entire transcript. “If you take certain parts out of context, it may be viewed a certain way. But if you read the transcript as a whole, it’s very clear that she said, ‘I have an injury. It’s related to lifting the totes.’”

As to the lack of a causation opinion, Markel said, “If the initial treating physician says, ‘This requires a specialist to make a determination as to causation,’ I think there’s certainly enough room in the law to say that at that point, the person has to go to a specialist. Because there are … innumerable conditions that a walk-in clinic or a general practice physician is probably not going to be able to opine to as far as causation.”

By statute, the Board must issue opinions within 20 business days of the arguments.

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Photo by Judge Brian Addington, Gray.

 

 

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