By Jane Salem, staff attorney, Nashville

A trial court can’t award permanent partial disability benefits for an impairment rating where part of that rating is attributable to a non-work-related condition.

So held the Appeals Board last week, modifying the trial court’s order to reflect a lower rating. The case was argued last month.

In Hart v. ThyssenKrupp Elevator Corp., Jeannie Hart injured her shoulder at work. ThyssenKrupp accepted the claim and authorized treatment with Dr. Jason Hutchison. He ultimately performed a subpectoral biceps tenodesis and debridement of the labrum with subacromial decompression and distal clavicle resection.

Dr. Hutchison assigned a six-percent impairment rating. In his report, Dr. Hutchison explained the basis for his impairment rating, stating in relevant part, “We did do a distal clavicle resection, given her severe AC arthrosis, which again was not work related but was significant pathology and was treated concomitantly[.]”

At a deposition, Dr. Hutchison testified that he performed surgery because of the labral tear and biceps pathology resulting from the work injury and not because of the pre-existing AC arthrosis.

He said he chose the distal clavicle impairment rating because Hart “consistently presented with poor shoulder function,” and he “felt her outcome was poor” and that the rating was justified. Dr. Hutchison also agreed that the rating for the distal clavicle was “related to her AC arthrosis,” which he acknowledged “was not work-related.” On cross-examination, he testified that the six percent rating was “not entirely representative of just the work-related problem” and took into account “some preexisting condition” separate from the work injury. Dr. Hutchison agreed that the AMA Guides directs providers to “pick the highest causally related impairment” when assigning an impairment for a patient with multiple diagnoses.

At trial, Hart argued Dr. Hutchison’s six-percent was presumed correct under the statute, while ThyssenKrupp asserted a three-percent rating was proper because that rating considered only work-related conditions.

Judge Allen Phillips, Jackson, accepted the six-percent rating because Dr. Hutchinson had “testified he would not have performed the distal clavicle resection but for the work injury.” Judge Phillips also noted that Dr. Hutchison’s opinion was the only expert opinion in the record.

ThyssenKrupp appealed, and the Board ruled in its favor in an opinion written by Judge Pele Godkin.

The Board held that the six-percent rating improperly included conditions that did not arise primarily out of employment.

“No evidence was presented in this case supporting a finding that the AC arthrosis, which necessitated the distal clavicle resection, ‘flowed from’ the primary injury,” Godkin wrote. “Thus, the question is whether the distal clavicle resection was merely collateral to the work injury or whether the need for that additional treatment was caused by or made reasonably necessary by Employee’s work accident.”

Judge Godkin pointed out that Dr. Hutchison’s report stated that the distal clavicle resection was performed due to her severe AC arthrosis “which. . . . was not work related.”  In addition, Dr. Hutchison testified that the distal clavicle excision rating was related to the AC arthrosis, which he said was not a work-related condition. “In short, our review of the record reveals no evidence of a causal link between Employee’s March 6 work incident and the AC arthrosis that led to the need for the distal clavicle resection,” Judge Godkin wrote.

Judge Phillips’s characterization of the doctor’s testimony didn’t consider “the entirety of Dr. Hutchison’s explanation, which indicated that, without the work injury, Employee would not have been his patient. This testimony explains how Dr. Hutchison came to perform the procedure in question, but it does not provide a causal connection between the work injury and the need for the distal clavicle procedure,” Godkin wrote.

“When considered as a whole, it is clear that Dr. Hutchison repeatedly testified the need for the distal clavicle resection was due to a pre-existing condition that was not work related.”

As for the rating, Dr. Hutchison had testified there were two ways he could have assessed Employee’s impairment. The first was based on the labral tear and the subpectoral tenodesis, which Dr. Hutchison testified “is the injury as it pertains to what [he] believe[d], the pop she felt and the true injury she had at work.” The second method was to consider Hart’s AC arthrosis and the distal clavicle resection. Dr. Hutchison chose the latter because he believed it was “the most appropriate” for her outcome.

The Board disagreed, rejecting Hart’s argument that, to rebut the presumption of correctness afforded an authorized physician’s impairment opinion, a dissatisfied party must provide a contrary opinion from another expert. “Nor do we agree that eliciting testimony from an expert on cross-examination is per se insufficient to rebut the presumption, as Employee insists,” Godkin wrote.

“In this case, there is a single authorized physician who provided an impairment rating on a Form C-32 Final Medical Report.  After submitting that form, that physician was deposed, and his testimony is clear and unequivocal that: (1) the six percent rating he assigned contemplated the distal clavicle resection performed for Employee’s AC arthrosis and (2) this condition was not causally related to the work injury. Dr. Hutchison’s testimony is likewise clear that, with respect to Employee’s work-related injuries, she has a three percent permanent partial impairment. We therefore conclude Employer sufficiently rebutted the portion of Dr. Hutchison’s direct testimony regarding the six percent impairment rating during cross-examination and, as a result, Employee is entitled to permanent partial disability benefits based on a three percent medical impairment.”

Hailey David represented ThyssenKrupp, while Jonathan May represented Hart. The decision is available here.