By Jane Salem, staff attorney, Nashville

Last week, the Tennessee Workers’ Compensation Appeals Board, in a divided decision, considered a case in which the employee suffered a work injury that she claims aggravated a preexisting condition and caused the need for a particular treatment.

The Board took a deep dive into four expert opinions. The majority concluded the trial court abused its discretion by finding that the primary cause of the employee’s need for bilateral total knee replacements was a work accident, not her underlying severe osteoarthritis.

The dissent, however, found no abuse of discretion. The dissent concluded that sufficient evidence supported the finding that the work accident caused new or increased symptoms that led to functional limitations, and that the need for the knee replacements was hastened by the work accident.

Historically, when the Board splits, the parties seek Supreme Court Panel review. We have no word yet on whether the employee will appeal the Board’s decision. The entire opinion is 22 pages long, so the summary below is also lengthy.

Facts

In Edwards v. Peoplease, LLC, the employee, a truckdriver, was in a single-vehicle accident, during which she said both knees repeatedly hit the truck’s dashboard.

Edwards chose Dr. Jason Hutchison from a panel, who ultimately concluded that she needed bilateral total knee replacements but that the need wasn’t caused by the work accident. Instead, it arose primarily from her preexisting, bilateral end-stage osteoarthritis.

Edwards then saw Dr. Timothy Sweo on her own, who likewise recommended knee replacements. He opined that, although her osteoarthritis preexisted the work accident, her knees were asymptomatic before, and she’d been able to work as a truck driver without restrictions. He also noted that the work accident caused an anatomic change in her preexisting condition (an avulsion fracture) and stressed that the accident made her knees symptomatic, necessitating the joint replacements. He replaced the left knee and soon afterward recommended she undergo the other.

By then, the lawsuit was underway, and Edwards requested an expedited hearing.

After the hearing, the trial court ordered Peoplease to pay for Dr. Sweo’s left knee replacement and to authorize the right knee. But the Appeals Board reversed in part, holding that Dr. Sweo hadn’t sufficiently explained how, in comparing the preexisting arthritis to the work accident, it was the accident that caused more than 50% of the need for knee replacements.

The case ultimately proceeded to a compensation hearing, where additional medical experts became involved: Peoplease hired Dr. Claiborne Christian, while Edwards saw Dr. Lawrence Schrader.

After the trial, the court found Dr. Hutchison’s causation opinion was “incorrect,” emphasizing that no evidence suggested that Edwards had knee symptoms before the accident. The judge reasoned that an aggravation of a preexisting condition can be compensable if it causes disabling pain. According to Drs. Sweo and Schrader, the need for total knee replacements was more than 50% caused by the accident, regardless of her preexisting arthritis. Dr. Schrader had testified to at least two anatomic changes caused by the accident (the avulsion fracture and a meniscal tear), and the judge found Edwards’s testimony credible. Therefore, in the trial court’s view, the work accident aggravated her arthritis by causing disabling pain and the need for bilateral knee replacements.

Peoplease appealed.

The Majority

Judge Meredith Weaver, writing for Judge Pele Godkin and herself, reversed in part.

The majority began by citing the statutory requirements for proving causation, writing that not only must an employee prove that the aggravation of a preexisting condition arose primarily from a work accident, but also, “as a separate burden, that the work accident was the primary cause of the need for whatever medical treatment has been recommended.”

After recapping several post-2014 appellate opinions on aggravations, the majority identified “multiple principles of law that intersect in the present case.” Among them:

• “The employee has the additional burden of proving by a preponderance of the evidence that the work-related accident contributed more than fifty percent (50%) in causing the need for any particular medical treatment, considering all causes.”
• A trial court can consider, among other factors “(1) evidence that [the] employee was asymptomatic prior to the work accident but became symptomatic after the work accident; (2) evidence that the employee had no functional limitations to the injured body part prior to the work accident but had functional limitations after the work accident; and (3) evidence, or a lack of evidence, of an ‘anatomic change’ to the body part or condition in question.”

Applying these principles, the majority wrote that all of the physicians agreed Edwards suffered from advanced osteoarthritis in both knees before the accident, and she more likely than not suffered increased symptoms and decreased function in both knees after the accident. So the accident “caused an increase in pain and some possible functional limitations,” which supported the trial court’s finding that Edwards suffered a compensable aggravation.

But the question remained whether Edwards proved that the need for bilateral knee replacements was more than 50% caused by the accident.

The majority disagreed with the trial court’s conclusion that Dr. Hutchison’s causation opinions were fatally flawed when he stated that “an exacerbation of symptoms caused by the accident” is not “compensable or something that should be considered for treatment under Workers’ Compensation.” This statement, while only “partially incorrect,” didn’t “render[] each and every opinion he expressed unreliable,” they reasoned.

Judge Weaver wrote: “Dr. Hutchison consistently and directly stated that, in his opinion, the primary cause of the need for bilateral total knee replacements was the underlying severe osteoarthritis, not the work accident.” That opinion was presumed correct by statute and was supported by Dr. Christian.

The majority held that the trial court abused its discretion in concluding that Drs. Schrader’s and Sweo’s opinions, along with the lay testimony and other evidence, overcame the presumption of correctness given to Dr. Hutchison’s causation opinion—“[a]lthough the issue is close[.]”

The majority wrote:

“First, the preponderance of the medical evidence presented by both Employer and Employee supports a finding that Employee’s degenerative osteoarthritic condition had progressed to the point that she had some functional limitations in her knees prior to the work accident. Second, all physicians in this case agreed that, in most circumstances, it is a combination of underlying advanced osteoarthritis and disabling pain that leads to the need for knee replacement surgery. Here, there is no doubt that Employee in the present case had advanced ‘end stage’ osteoarthritis in both knees that pre-existed the work accident. Both Dr. Hutchison and Dr. Christian testified that, without the advanced underlying arthritis, Employee would not have been a candidate for total knee replacements, and Dr. Sweo testified the fracture was ‘incidental’ to the left knee replacement. Third, the preponderance of the medical testimony supports a finding that the only medical treatment for Employee’s underlying condition was total knee replacements, regardless of the truck accident. Fourth, though both Dr. Sweo and Dr. Shrader testified Employee’s need for total knee replacements was primarily related to the work accident, they gave substantially different reasons for their opinions.”

Dr. Hutchison had acknowledged that the accident caused an exacerbation of Edwards’s symptoms, but he concluded that the underlying arthritic condition caused the need for total knee replacements. Moreover, the accident didn’t result in any permanent change in the anatomical function of her knees. Dr. Hutchison’s opinions are presumed correct and supported by Dr. Christian’s conclusions.

The majority further relied on Dr. Hutchison’s testimony that Dr. Sweo’s opinion regarding instability of the knee wasn’t documented in his notes or operative report. In addition, Dr. Sweo recommended the right knee replacement and related the need for that surgery to the work accident, despite the fact that an MRI of the right knee hadn’t been done at the time he expressed that opinion. Rather, he testified that he “assumed” the results would be similar, and the need for a right total knee replacement is “most likely” due to her accident.

The majority concluded, “[T]his statement is inconsistent with his testimony that the instability from the fracture in the left knee is what primarily caused the need for the total knee replacements, and as such, his testimony still fails to rebut Dr. Hutchison’s opinion regarding the primary cause of the need for surgery.”

Moreover, the majority wrote that Dr. Schrader also concluded that Edwards suffered permanent work-related injuries to multiple other body parts—yet the trial court chose to rely only on Dr. Schrader’s causation and impairment opinions relative to the knees and disregarded his opinions as to the other body parts. The trial court didn’t adequately explain its decision to rely only on a portion of Dr. Schrader’s testimony.

Most of Dr. Schrader’s testimony was “speculative,” Judge Weaver continued. No other physician had testified the arthritis itself was advanced by the accident, and Drs. Christian and Hutchison testified definitively it wasn’t. Finally, Dr. Schrader disagreed that Edwards even had tricompartmental osteoarthritis, when all other experts, including Dr. Sweo, agreed she did and it preexisted the work accident.

As a result, the majority reversed the trial court’s award of temporary total and permanent total disability it said had been caused by the left total knee replacement and the order that Peoplease authorize and pay for the right total knee replacement.

The Dissent

Presiding Judge Timothy Conner dissented.

He wrote that the trial court accepted as credible Edwards’s testimony that she had no knee problems before the truck accident. Although the majority noted “substantive inconsistencies” in her testimony, the majority didn’t conclude the trial court had abused its discretion in accrediting her testimony.

Judge Conner pointed out that although Drs. Hutchison and Sweo testified she likely had some symptoms in her knees before the accident, those were mere “assumptions.” Further, Drs. Sweo and Schrader both testified that some patients who develop severe arthritis don’t experience symptoms until late in the process.

“There is no evidence in the record Employee was limited in any way in the performance of her job as a truck driver prior to the accident. There is also no dispute that, after the accident, Employee was unable to return to work as a truck driver,” Judge Conner wrote.

“[E]ven if Employee had been experiencing some symptoms in her knees prior to the work accident, there is no evidence those symptoms caused any functional limitations. Thus, I conclude the preponderance of the evidence supports a finding that the truck accident caused new symptoms or an increase in symptoms that led to functional limitations.”

The dissent continued, “In most circumstances, it is a combination of underlying advanced osteoarthritis and disabling pain or functional limitations that leads to the need for knee replacement surgery.”

Several physicians had testified that Edwards “eventually” would’ve needed knee replacements regardless of the accident. “Yet, no physician offered an opinion as to the time frame for that need absent the truck accident,” Judge Connor emphasized. “In my opinion, based on the totality of the evidence presented in this case, the record supports a finding that the truck accident hastened the need for a left total knee replacement.”

As to the conclusion that the trial court abused its discretion, case law says this occurs “when it causes an injustice to the party challenging the decision by: (1) applying an incorrect legal standard; (2) reaching an illogical or unreasonable decision; or (3) basing its decision on a clearly erroneous assessment of the evidence.”

None of the above happened in this case, per the dissent.

“Each physician who offered causation testimony had similar expertise and qualifications. Two of the physicians concluded the underlying osteoarthritis was more than 50% the cause of the need for surgery, while two of the physicians opined that the truck accident was the primary need for the surgery. The preponderance of the evidence supports a finding that Employee had increased pain and functional limitations caused by the work accident that hastened the need for surgery.”

Conclusion

This might be an understatement: Aggravation cases are complicated.

The Board is currently wrestling with a similar issue, but at the expedited hearing stage and involving a back injury, in Ridley v. Mature Care of Standifer Place. They heard oral argument last month, and a decision will be released soon.

In the meantime, Edwards has 30 days to appeal to a Supreme Court Panel under section 50-6-225(a)(1) and Rule 4 of the Rules of Appellate Procedure. If that happens, we’ll let you know in this blog.

Cane Creek Park, Cookeville. Photo by Elizabeth Vines, Appeals Board staff attorney–who didn’t use a filter!