TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Susan Coolidge ) Docket No. 2015-06-1333
)
v. ) State File No. 18273-2015
)
City Winery Nashville, LLC, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Joshua D. Baker, Judge )
Reversed and Remanded-Filed September 23, 2016
In this interlocutory appeal, the employer seeks a reversal of the trial court’s order for
medical benefits for the employee’s alleged nose disfigurement. The employee, having a
history of nose surgeries, alleged she suffered disfigurement to her nose when she was
struck in the face by a falling tray. The employee’s claim was accepted as compensable,
but the employee’s request for plastic surgery to repair her nasal deformity was denied.
Following an expedited hearing, the trial court ordered the employer to provide a panel of
surgeons specializing in rhinoplasties for evaluation of the effectiveness of corrective
surgery and to pay for the surgery should the panel physician indicate surgery would be
effective in correcting the employee’s nasal deformity. The employer has appealed.
Having carefully reviewed the record, we reverse the trial court’s decision and remand
the case for further proceedings as may be necessary.
Judge David F. Hensley delivered the opinion of the Appeals Board in which Judge
Marshall L. Davidson, III, and Judge Timothy W. Conner joined.
E. Chip Storey, Jr., Franklin, Tennessee, for the employer-appellant, City Winery
Nashville, LLC
Susan Coolidge, Goodlettsville, Tennessee, employee-appellee, pro se
1
Factual and Procedural Background
Susan Coolidge (“Employee”) is a resident of Davidson County, Tennessee, who
suffered an injury when she was struck on her nose by a falling tray while in the course
and scope of her work duties at City Winery Nashville, LLC (“Employer”) on March 4,
2015. Employer does not dispute that the incident occurred, and it has accepted the claim
as compensable and provided medical care to Employee. Employee was initially seen at
CareSpot on March 9, 2015 by a physician’s assistant who diagnosed her with a
contusion to her nose. The physician’s assistant documented that Employee requested a
referral to a plastic surgeon and stated “[t]his provider believes the contusion is self
limited [sic] and will resolve completely spontaneously – I cannot make a professional
recommendation for plastic surgery intervention.” Employee has a history of surgeries to
her nose to correct what she described to her physicians as a congenital deformity, but
which she testified was a broken nose with a “bump” on it. Consequently, she felt that
only a plastic surgeon would be able to properly assess her work-related injury and
determine whether she needed surgery. The record of Employee’s visit to CareSpot
reflects she “became very upset that [the physician’s assistant] did not agree that her
subjective visual changes, dizziness, sore throat, [and] hoarse voice were related to [her
work] injury,” and that she “demanded that [the physician’s assistant] document a
‘bump/swelling’ on her nose,” even though the physician’s assistant “[could] not
appreciate a deformity.” The record also states that Employee “attempted to alter original
documentation by taking it off the counter and writing on it.”
Following Employee’s visit to CareSpot, Employer provided a panel of medical
providers from which Employee chose Vanderbilt Health Medical Clinic. She was seen
there by Dr. Lorina Poe on March 26, 2015. Dr. Poe noted a history of Employee’s
having been “hit in the face by a bus tray . . . still with swelling in the area.” The record
of the visit noted a history of five nasal surgeries “to fix [a] congenital defect, [and a]
secondary defect made by the surgeon [was] subsequently repaired . . . to obtain
symmetry.” The report noted that Employee “had pictures to compare[] before and after
[the] injury in which the injury is apparent.” Dr. Poe advised Employee she “needs to see
[a] plastic [surgeon] for consultation.” Employer subsequently wrote to Dr. Poe
requesting her opinion “as to whether [Employee’s] contusion and the need for a consult
[with a] plastic surgeon arise[] primarily out of the acute injury.” Dr. Poe responded
affirmatively, stating Employee “has [a history] of nasal surgery [and] the physical
deformity is at the site of previous surgery.” Her response to a question about the
treatment plan stated that a referral to a plastic surgeon “will determine necessity for
further treatment.”
Employer offered Employee a second panel, this time of plastic surgeons, from
which Employee chose Dr. Bruce Shack. She first saw Dr. Shack on May 4, 2015,
reporting to him that she had undergone prior nose surgeries for a “congenital deformity
of the nose” and correction/refining of the initial surgery. Dr. Shack’s record notes
2
Employee “says that after the second surgery 3 additional operations were done for
smoothing and tweaking the result with which she was ultimately happy.” It also notes
that “[h]er last operation was done about 10 years ago.” Dr. Shack observed that, on
examination, Employee had a “relatively normal-looking nose with a little bit of dorsal
irregularity shortly [sic] nothing major.” He noted that “[t]he septum is midline and her
airway is wide open.” Dr. Shack told Employee that he did not “know that anything
really needs to be done,” observing “she’s very concerned about this little subtle change
in the appearance of her nose that resulted from the injury and since this is a Worker[s’]
Compensation issue wishes to have everything done possible.” He ordered “a CT scan to
evaluate the current status of her nasal anatomy” and asked Employee to provide him
with the records related to her prior surgeries.
Employee followed up with Dr. Shack on July 1, 2015 after undergoing the CT
scan, which Dr. Shack observed showed “no evidence of any underlying cartilaginous or
bony injury,” and stating:
Nonetheless, she continues to complain of deformity on the right side of her
nose and shows me several photographs today which she thinks
demonstrate[] this deformity. There is a little bit of very subtle asymmetry
to the soft tissue with the right side being a little bit for [sic] than the left
and there is a little bit of erythematous discoloration over this area which
tends to [be] accentuated. However, this remains a very subtle finding and
I don’t think any surgical intervention would be indicated. However,
because of her insistence I am going to refer her to Dr. Russell Ries in
otolaryngology for another opinion. We’ll see her back in plastic surgery
clinic in the future only as needed.
Employee saw Dr. Ries on July 16, 2015 “for evaluation of [a] nasal deformity.”
His examination, diagnosis, and recommendation included the following:
Nasal examination shows the external osseus cartilaginous nasal pyramid to
be midline. There is a very slight asymmetry of the nasal bones, the right
being somewhat more prominent than the left. She does have some
narrowing of the middle vault of the nose. I did not appreciate any collapse
of the nasal valves on inspiration. Intranasally, the septum is in good
position. . . . I did not appreciate any palpable bony stepoffs or significant
deformities of the nasal bones.
My working diagnosis is acquired external nasal deformity.
I have recommended to [Employee] that no treatment be undertaken for her
nose. She will return to see me on a p.r.n. basis.
3
Employee continued to be dissatisfied with the medical care she had been
provided, testifying at the expedited hearing that, because the physicians were provided
by Employer and its insurance carrier and because of the presence of a nurse case
manager, she had no faith in the treatment recommendations of these physicians.
Consequently, on August 4, 2015, Employee saw Dr. Mark A. Clymer, a board certified
plastic surgeon that she selected. A medical questionnaire completed by Employee at the
visit asked “[w]ho can we thank for referring you,” and Employee wrote “your website
[and] photos (before [and] after).” The records of Dr. Clymer include three separate
quotes for surgeries, each of which included rhinoplasty, with two of the quotes including
additional procedures. An August 4, 2015 scheduling note in Dr. Clymer’s records
states, in part, “[Employee] given several quotes. Unsure about [c]hin [i]mplant at this
time. This will be revision from an accident at work. She may go thru [sic] worker[s’]
comp for this.”
Employer received a note dated August 21, 2015 from Dr. Ries’ office, which
stated Dr. Ries “is referring his patient to Dr. Mark Clymer.” Employer sent a letter
dated September 8, 2015 to Dr. Ries stating that Employer “recently received your
referral to Dr. Mark Clymer for a second opinion.” The letter requested additional
information “as to the reason for the referral and how it relates to [Employee’s] work
injury of 03/04/15.” The letter requested Dr. Ries’ opinion “as to whether the referral to
Dr. Clymer for the current diagnosis of external nasal deformity arises primarily out of
and in the course and scope of employment.” Dr. Ries responded affirmatively,
identifying the work-related diagnosis to be “[l]ate effect of nasal injury,” and noting the
treatment for the work-related injury to be “[p]ossible surgery.”
Employer declined to approve an evaluation by Dr. Clymer. In an affidavit of the
adjuster assigned to Employee’s claim, the adjuster stated that Dr. Ries was “authorized
to provide medical treatment to [Employee] as it pertains to her alleged injury,” and that
the doctor “requested that [Employee] receive a third medical opinion with Dr. Mark
Clymer.” Further, the affidavit reflects that the adjuster “contacted Dr. Clymer’s office
and learned that they do not accept workers’ compensation insurance.” The affidavit
additionally noted that a nurse case manager had been hired to “coordinate an
appointment with a provider who would agree to see [Employee] for a third medical
opinion and who accepts workers’ compensation insurance.” It also stated that an
appointment had been scheduled with Dr. Kevin Kelly, that Employee had been notified
of the appointment, and that Employee “subsequently refused to attend the appointment.”
Employee testified she “didn’t refuse to go” to the appointment with Dr. Kelly, but
acknowledged that she did not attend the appointment. She testified that when she
received a call from the nurse case manager she “asked her who [she] could talk to about
other options because [she] didn’t want to waste anyone else’s time and money, because
this would be the third doctor, specialist, that they would have sent [her] to, and this one
happened to be a cranio-oral surgeon.”
4
Employee introduced 28 pages of photographs at the expedited hearing. However,
there was no testimony at the expedited hearing and no markings on the exhibits to
identify which photographs were taken before the work injury, which were taken after the
injury, or the date on which any of the photographs were taken. In her closing argument,
Employee stated that “the proof is in the photos that are dated from the evening of the
incident and several months, and the proof is the physical damage I have to my nose right
now standing here in front of you.” She described in her argument “a white area
surrounded by a dark shadow . . . it’s an oval angle,” but none of the exhibited
photographs were marked to depict the alleged physical damage.
Dr. Clymer’s records included email correspondence from Employee to his office
staff dated January 4, 2016, stating that in the records Employee received “it does not
state that there is a problem to be repaired in my nose.” The email also stated,
I need something in writing from a doctor which states there is damage to
be repaired . . . and ultimately that my nose has been changed/damaged due
to this incident. I can show them before and after photos. But the medical
records that I have from Dr. Clymer and the other doctors I’ve seen since
the accident, don’t show anything in writing to this effect. In other words,
no doctor had noted any official damage. Perhaps the treatment plan of
rhinoplasty is suggestive enough, but I’m worried they will just deny me
and I’ll never be able to have the corrective surgery.
Employee’s email asked “[w]ould it be possible to get some additional notes from
Dr. Clymer to this effect?” The record on appeal does not include a response directly
referencing Employee’s request, but it includes a letter that Dr. Clymer sent to Employer
dated February 4, 2016, which was accompanied by all of Employee’s medical records.
The letter stated, in part,
In summary, [Employee] came to see me and her presenting complaint was
of a “divit” [sic] in her nose. She has had 3 prior rhinoplasties, and on her
intake questionnaire reports sinus problems and nasal polyps. She
described to me an injury at work on 3/15 where she was struck in the nose
by a serving tray, and now sees the divit [sic] again. With her extensive
previous nasal surgery and other conditions it is not clear that her breathing
difficulties, although possibly the result, are directly related to her injury.
Employer agreed to allow Employee to return to Dr. Shack for additional medical
care deemed reasonable, necessary, and related to the work injury, but it denied the
corrective rhinoplasty requested by Employee and declined to pay for medical treatment
with Dr. Clymer, whose office had indicated he would not accept workers’ compensation
insurance. Employee filed a petition for benefit determination followed by a request for
expedited hearing.
5
Following the hearing, the trial court issued an order stating “the central issue” to
be “whether the surgical treatment [Employee] seeks – a corrective rhinoplasty – would
be reasonably effective to correct the condition of her nose.” The trial court made the
following finding and holding:
[Employee] will likely succeed at a hearing on the merits in proving the
surgical treatment is reasonable and necessary and, therefore, holds
[Employer] must provide [Employee] a panel of surgeons specializing in
rhinoplasty from which she may select one to evaluate the condition of her
nose and provide surgery if the physician determines surgery would be
reasonably effective to correct the nasal deformity that resulted from the
workplace accident.
The order provided that if Employer “cannot identify a sufficient number of physicians to
fill a panel, it shall request a waiver of the fee schedule from the Bureau.” The trial court
further ordered Employer to bear the costs of the evaluation as well as the corrective
rhinoplasty “[i]n the event the physician chosen from the panel indicates corrective
surgery would be an effective means for correcting her nasal deformity.” In its
assessment of the medical proof, the trial court stated:
Although none of the panel physicians who examined [Employee]
recommended additional medical treatment, the medical records contain no
explanation of why further treatment is unnecessary. In short, the Court
questions why treatment is not recommended despite the presence of the
nasal deformity: do the physicians think the procedure would be
unsuccessful, or do they feel the damage is not serious enough to justify
corrective surgery? The Court’s questions on this issue are further
amplified by Dr. Clymer’s notes, which indicate corrective surgery could
be performed.
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 must be upheld unless 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;
6
(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). Like other courts applying the standards
embodied in section 50-6-217(a)(3), we will not disturb the decision of the trial court
absent the limited circumstances identified in the statute.
Analysis
Employer asserts that the medical proof is insufficient to support the order for
medical benefits, that the trial court did not properly consider the presumption of
correctness to which opinions of authorized physicians are entitled, and that it was error
for the trial court to order Employer to provide a third panel of physicians. We agree that
the proof was insufficient to support the order for medical benefits and that it was error
for the trial court to order a third panel of physicians.
Initially, we reiterate that at an expedited hearing, an employee need not prove
every element of his or her claim by a preponderance of the evidence, but 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) (2014). 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 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).
Tennessee Code Annotated section 50-6-204(a)(1)(A) (2015) provides that “[t]he
employer or the employer’s agent shall furnish, free of charge to the employee, such
medical and surgical treatment . . . made reasonably necessary by accident as defined in
this chapter.” Furthermore, a work-related injury “causes . . . the need for medical
treatment only if it has been shown to a reasonable degree of medical certainty that it
contributed more than fifty percent (50%) in causing the . . . need for medical treatment.”
Tenn. Code Ann. § 50-6-102(14)(C) (2015). “‘Shown to a reasonable degree of medical
certainty’ means that, in the opinion of the physician, it is more likely than not
considering all causes, as opposed to speculation or possibility.” Tenn. Code Ann. § 50-
6-102(14)(D) (2015).
7
Tennessee Code Annotated section 50-6-204(b)(1) (2015) provides that “[w]here
the nature of the injury . . . is such that it does not disable the employee but reasonably
requires medical [or] surgical . . . treatment or care, medicine [or] surgery . . . shall be
furnished by the employer.” Moreover, “treatment recommended by a physician . . .
selected pursuant to [§ 50-6-204(a)(3)] or by referral, if applicable, shall be presumed to
be medically necessary for treatment of the injured employee.” Tenn. Code Ann. § 50-6-
204(a)(3)(H) (2015). Thus, at an expedited hearing where the issue concerns medical
treatment offered by an unauthorized provider to an employee whose injury is not
disabling, the employee has the burden of presenting sufficient evidence to show he or
she is likely to prevail at trial in establishing that the offered treatment is reasonably
required as a result of the work injury. See Tenn. Code Ann. § 50-6-204(b)(1).
Here, the fact that a work accident occurred and that Employee is entitled to the
medical treatment made reasonably necessary as a result of that injury is undisputed.
However, Employer contends that it satisfied its obligation to provide medical treatment
by providing appropriate panels of physicians as well as a second opinion on the issue of
surgery. Employee has expressed her belief from the outset of her medical treatment that
the work injury has resulted in an alteration to the appearance of her nose. However, the
record is devoid of any medical proof that any further treatment is reasonably required to
correct any alleged defect resulting from the work injury. Indeed, as the trial court itself
observed, “none of the panel physicians who examined [Employee] recommended
additional medical treatment.”
Moreover, not only is there no proof that any further treatment is reasonably
required as a result of the work injury, but there is substantial proof to the contrary. The
physician’s assistant who examined Employee at CareSpot, Dr. Shack, and Dr. Ries have
all opined that no surgery or additional treatment is necessary. Dr. Poe, the first
physician to examine Employee after the incident, did not offer an opinion regarding
whether surgery was needed or reasonably required. Rather, she referred Employee to a
plastic surgeon to determine if surgery was necessary. In accordance with that referral,
Employer provided a panel of plastic surgeons from which Employee selected her
authorized treating physician, Dr. Shack. Although Dr. Shack opined in response to
Employer’s inquiry that Employee’s contusion and need for a plastic surgery consultation
arose primarily out of the March 4, 2015 work injury, he told Employee “I don’t know
that anything really needs to be done.” He asked her to get her earlier records so he could
review her previous operative notes, and he scheduled a CT scan “to evaluate the current
status of her nasal anatomy.” After reviewing photographs and CT films, Dr. Shack
opined “there is no evidence of any underlying cartilaginous or bony injury,” and he did
not “think any surgical intervention would be indicated.” Dr. Ries “did not appreciate
any palpable bony stepoffs or significant deformities of the nasal bones,” and he
“recommended to [Employee] that no treatment be undertaken for her nose.”
8
Even the plastic surgeon Employee saw on her own, Dr. Clymer, did not opine
that she reasonably requires surgical intervention as a result of the work injury. He
indicated a willingness to perform surgery, but even with Employee’s request to his
office “to get some additional notes from Dr. Clymer” to document “damage to be
repaired . . . due to this incident,” no proof was presented at the expedited hearing that the
injury reasonably requires surgery as section 50-6-204(b)(1) mandates. In
correspondence to Employer, Dr. Clymer stated that “[w]ith her extensive previous nasal
surgery and other conditions it is not clear that her breathing difficulties, although
possibly the result, are directly related to her injury.” (Emphasis added). No physician
other than Dr. Clymer suggested Employee may have breathing difficulties, and at the
expedited hearing, Employee denied experiencing breathing difficulties. In short, and
assuming Employee experiences breathing difficulties despite evidence to the contrary,
the mere possibility that those breathing difficulties are a result of the work injury is an
insufficient basis upon which to order Employer to provide a panel of medical specialists
from which Employee can select a doctor to evaluate the effectiveness of corrective
surgery.
Moreover, we have previously noted that an injured worker does not have a right
to a panel of physicians solely for the purpose of an evaluation. “While an injured
worker who meets the applicable statutory requirements is entitled to medical benefits,
there is no ‘right to a causation opinion’ as such. If a trial court determines that medical
benefits are appropriate, the court can order the initiation of such benefits. However, it is
the parties’ responsibility to secure expert opinions or other evidence necessary to
address any applicable burden of proof.” Pool v. Jarmon Trans., No. 2015-06-0510,
2016 TN Wrk. Comp. App. Bd. LEXIS 1, at *9-10 (Tenn. Workers’ Comp. App. Bd. Jan
4, 2016) (citation omitted). In the present case, Employee has presented no proof to
support an order for yet another panel of physicians, and we hold that the trial court
exceeded its statutory authority in ordering a third panel of physicians.
In ordering benefits, the trial court relied on Wilkes v. Resource Authority, 932
S.W.2d 458 (Tenn. 1996), in which the employer was held responsible for surgery to
correct a disfiguring scar on the employee’s face, which the record revealed was
detrimental to his ability to function normally despite the fact that it caused him no
physical impairment. The trial court’s reliance on this case is misplaced. In Wilkes, the
Tennessee Supreme Court observed that the scar on the employee’s face “made him
overly conscious of his appearance. He [did] not express or assert himself like he did
prior to the injury, [tried] not to call attention to himself in meetings or gatherings at
work, and [had] difficulty looking at people during conversations at work and
elsewhere.” Id. at 460. The Court also noted that the employee altered his appearance,
attempting “to hide the scar by wearing a beard.” Id. In the instant case, there is no
evidence that Employee’s alleged deformity has an effect on her ability to function in her
daily life.
9
More importantly, Wilkes relies on a portion of the statute that did not survive
enactment of the Workers’ Compensation Reform Act of 2013. The Tennessee Supreme
Court, in finding the employer to be responsible for the requested benefits in Wilkes, cited
the “disfigurement statute,” Tennessee Code Annotated section 50-6-207(3)(E) (1995
Supp.). Prior to the Workers’ Compensation Reform Act of 2013, that provision allowed
recovery “[f]or serious disfigurement to the head, face or hands, . . . so altering the
personal appearance of the injured employee as to materially affect the injured
employee’s employability.” On this basis, the Court in Wilkes awarded benefits, finding
the employee’s scar affected his ability to function such that his employability was
impaired. Id. at 461-62. Specifically, the Court stated that the impact the disfigurement
had on the employee rendered the surgery “reasonably necessary.” Id. Given that the
Workers’ Compensation Reform Act of 2013 does not include a provision specifically
addressing benefits for disfigurement, the statutory foundation for Wilkes is inapplicable
to the present case.
Conclusion
For the foregoing reasons, we hold that the evidence preponderates against the
trial court’s conclusion that Employee would likely prevail at trial in establishing that
surgical treatment for her nose is reasonably necessary as a result of the work injury.
Further, we hold that, under the circumstances presented, the trial court exceeded its
statutory authority in ordering that a third panel of physicians be provided. Accordingly,
the trial court’s decision is reversed and the case is remanded for any further proceedings
that may be necessary.
10
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Susan Coolidge ) Docket No. 2015-06-1333
)
v. ) State File No. 18273-2015
)
City Winery Nashville, LLC, 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 23rd day of September, 2016.
Name Certified First Class Via Fax Via Email Address
Mail Mail Fax Number Email
Susan Coolidge X 1444 Campbell Rd.
X
Goodlettsville, TN 37072
suscoo@gmail.com
Emil L. (Chip) Story X cstoreyj@travelers.com
Joshua David Baker X Via Electronic Mail
Kenneth M. Switzer, X Via Electronic Mail
Chief Judge
Penny Shrum, Clerk, X Penny.Patterson-Shrum@tn.gov
Court of Workers’
Compensation Claims
Jeanette Baird
Deputy Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: Jeanette.Baird@tn.gov