FILED
Jan 06, 2021
10:17 AM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Angel Smith ) Docket No. 2018-05-1098
)
v. ) State File No. 894-2018
)
TrustPoint Hospital, LLC, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Robert V. Durham, Judge )
Affirmed and Remanded
In this interlocutory appeal, the employer asserts the trial court erred in ordering it to
provide additional medical benefits as recommended by the authorized treating physician,
arguing that the need for additional surgery arose primarily from the employee’s pre-
existing medical condition. The employer further asserts the trial court erred in awarding
temporary partial disability benefits pending a final determination of maximum medical
improvement or the employee’s return to work. Upon careful review of the record, we
affirm the trial court’s order and remand the case.
Presiding Judge Timothy W. Conner delivered the opinion of the Appeals Board in which
Judge David F. Hensley and Judge Pele I. Godkin joined.
Marcia Dawn McShane, Nashville, Tennessee, for the employer-appellant, TrustPoint
Hospital, LLC
R. Stephen Waldron, Murfreesboro, Tennessee, for the employee-appellee, Angel Smith
Factual and Procedural Background
Angel Smith (“Employee”) worked as a certified nursing assistant at a medical
facility operated by TrustPoint Hospital, LLC (“Employer”). On December 31, 2017,
Employee was helping a nurse move a patient when she felt a pop in her left shoulder.
She reported the incident to Employer and received emergency care at a local hospital.
Thereafter, she was evaluated by Dr. Frank Thomas at Concentra, who prescribed
medications and ordered physical therapy and an MRI of her shoulder. Dr. Thomas noted
in his January 4, 2018 report that Employee was “not tolerating therapy well.” He
1
diagnosed left shoulder impingement syndrome and recommended a referral to an
orthopedic specialist.
The left shoulder MRI was interpreted as revealing “rotator cuff
tendinosis/tendinopathy” with “minimal partial-thickness articular surface and bursal
surface tears.” In his January 16 note, Dr. Thomas reiterated his request for a referral to
an orthopedic specialist. Employer provided a panel of orthopedic physicians, from
which Employee selected Dr. Kyle Joyner with Tennessee Orthopedic Alliance.
Employee first saw Dr. Joyner on February 7, 2018. Following his initial
evaluation and review of diagnostic reports, Dr. Joyner diagnosed left shoulder pain
“with presumptive aggravation of the AC joint, with a component of underlying
impingement.” He injected medication into Employee’s shoulder and prescribed an
additional course of physical therapy. During a March 6 visit, Employee reported no
significant improvement with the previous injection or continued therapy. Dr. Joyner
discussed the possibility of surgical intervention and Employee agreed.
On March 9, 2018, Employer’s utilization review (“UR”) provider issued a report
in which it declined to certify the requested surgery after the reviewing physician opined
that objective findings did not support a conclusion that Employee had exhausted
conservative treatment options. However, according to Dr. Joyner’s May 1, 2018 report,
authorization for the surgery was eventually obtained, and he performed the surgery on
May 7.
Following surgery, Dr. Joyner prescribed another course of therapy, but Employee
attended only two of five appointments. In a June 17 discharge summary, the therapist
noted decreased range of motion, weakness, and difficulties with lifting, reaching, and
activities of daily living. However, in his June 19 report, Dr. Joyner noted good range of
motion in the left shoulder and “good clinical function” in the rotator cuff. Due to
“residual pain,” Dr. Joyner offered an injection, which Employee received. Dr. Joyner
noted he was transitioning her to a home exercise program.
On July 1, 2018, Employee was seen at St. Thomas Rutherford Hospital’s
emergency room complaining of severe shoulder pain at her incision site. X-rays did not
reveal any evidence of fracture or dislocation. The attending physician diagnosed “post-
surgical complications” and released her with a recommendation to follow up with her
treating physician. Upon her return to Dr. Joyner on July 5, Employee complained of
persistent shoulder pain but no radicular pain. Dr. Joyner noted “[s]he does have some
longstanding numbness and tingling in the hand secondary to carpal tunnel that is
unchanged,” but she had no complaints of neck pain. Dr. Joyner ordered another MRI of
the shoulder.
2
The July 7 left shoulder MRI revealed “[s]mall partial-thickness bursal and
articular surface tears” with rotator cuff tendinosis. The MRI report also noted “[s]evere
AC joint osteoarthropathy with surrounding inflammation and AC joint effusion.” In a
July 18 report, Dr. Joyner noted the MRI findings, which he felt were consistent with
post-surgical inflammation. He injected Employee’s shoulder with a pain medication and
documented her work restrictions. When she returned with persistent pain on August 21,
Dr. Joyner again offered her an injection and noted that “[i]f her pain does not improve,
we may give consideration to further intervention.”
During the next visit on September 18, 2018, Dr. Joyner discussed additional
surgery due to “persistent pain in the AC joint.” He recommended proceeding with an
“open AC joint left shoulder decompression and possible interposition.” Employer
submitted this request to its UR provider and, in a report dated September 21, 2018, the
reviewing physician recommended the surgery not be certified. The reviewing physician
concluded there were “limited objective findings to support the request for surgery” and
that “[q]uantifiable [range of motion] and provocative testings were not presented.” The
UR non-certification was appealed to the Tennessee Bureau of Workers’ Compensation’s
Medical Director’s office, where it was reviewed by Dr. James Talmage. In an October
8, 2018 letter, Dr. Talmage upheld the UR denial but suggested that the treating
physician:
[R]esubmit this care to Utilization Review documenting presence of
rheumatologic disease, and what joints are active, labs for inflammatory
disease, re-examination during pharmacologic activity of local anesthetic
injection into AC joint area, and documentation of psychiatric status.
There is nothing in the record indicating that Dr. Joyner re-submitted the
recommended surgical treatment to UR. In his October 17 report, Dr. Joyner reiterated
his recommendation for surgery because “[c]onservative care to this point has failed
regarding continued pain in the AC joint.”
On February 18, 2019, Dr. Joyner responded to a questionnaire from Employee’s
attorney by stating he had not had the opportunity to review previous diagnostic test
results or make a comparison of pre-accident and post-accident MRIs of the left shoulder.
He explained he could not provide an opinion regarding permanent impairment but stated
he believed Employee had reached maximum medical improvement (“MMI”). He
further noted that permanent restrictions would be addressed through a functional
capacity evaluation (“FCE”) and that permanent impairment would be addressed after
completion of the FCE. He also provided the following causation statement: “[G]iven
her history, it is likely that her most recent injury has exacerbated the condition of her
shoulder necessitating further treatment at this time.”
3
Thereafter, an FCE was completed on March 20, 2019, which indicated Employee
was capable of functioning in the sedentary physical demand category. The therapist
noted that Employee gave “acceptable/good effort” and that her pain profile was
“moderate to high.” In his subsequent April 2 report, Dr. Joyner commented that the
FCE was “a reliable evaluation.” He adopted the restrictions outlined in the FCE and
released Employee from active care, indicating she could return “as needed.” In a final
medical report dated April 23, 2019, Dr. Joyner assigned a five percent permanent
medical impairment rating.
On April 11, 2019, Employee was seen by Dr. Gary Margolies for complaints of
back pain and hip pain, apparently related to rheumatoid arthritis. Dr. Margolies noted
that Employee’s case was “hard to assess” in that Employee had “residual pain but no
swollen or tender joints today.” He diagnosed rheumatoid arthritis, osteoarthritis, lumbar
disc degeneration, and lumbar radiculopathy, among other diagnoses.
On December 17, 2019, Employee returned to Tennessee Orthopedic Alliance and
was seen by a physician’s assistant rather than Dr. Joyner. The physician’s assistant
documented that Employee reported becoming entangled in a dog leash on December 12,
causing her to fall backward and land awkwardly on her right shoulder. She specifically
denied any aggravation of her left shoulder associated with this fall. The physician’s
assistant ordered an MRI and recommended Employee follow up with Dr. Joyner after
that test. No such follow-up report is contained in the record.
On March 4, 2020, Employee was evaluated by Dr. Damon Petty, also with
Tennessee Orthopedic Alliance, at Employer’s request. In his Independent Medical
Evaluation report, Dr. Petty summarized Employee’s medical history and prior surgical
treatment. He conducted a physical examination and noted Employee’s pain complaints
were “quite excessive and beyond normal.” He also noted inconsistencies in her range of
motion during distracted testing versus non-distracted testing. In his report, Dr. Petty
opined that Employee had sustained an aggravation of rotator cuff tendinitis but that her
rotator cuff was intact and functional. He felt she exhibited signs of symptom
magnification and inconsistencies in range of motion testing. He offered several
differential diagnoses, including adhesive capsulitis, a painful AC joint, and symptom
magnification but concluded he “cannot make a determination based on the facts that are
laid out before me.” Finally, he stated in his report that “further surgery on her left AC
joint would not be required by her work-related injury in December 2017 because her AC
joint had preexisting pathology that was not affected by the injury.”
Employee returned to Dr. Joyner on July 1, 2020, complaining of persistent pain
and functional limitation in her left shoulder. Dr. Joyner noted “maximal tenderness”
around the AC joint with “clinically intact” rotator cuff function. Dr. Joyner again
discussed the possibility of surgical intervention, but he noted Employee “is awaiting
final disposition regarding her Workers’ Compensation case.”
4
Employee filed a petition for benefit determination and a request for an expedited
hearing. In preparation for the expedited hearing, Employee deposed Dr. Joyner, and
Employer deposed Dr. Petty. During Dr. Joyner’s December 9, 2019 deposition, he
testified that diagnostic testing completed after the work accident revealed arthritic
changes in the AC joint and “a significant rotator cuff injury.” He explained that
following his initial evaluation, he diagnosed Employee with aggravation of her AC joint
“with a component of underlying impingement.” He described the conservative care he
prescribed and his eventual surgical recommendation, which was approved by
Employer’s insurer. He testified that during the surgery, he confirmed the pre-operative
diagnoses and “cleaned up” the labrum arthroscopically. Dr. Joyner expressed his
opinion that Employee “had some arthritis in the AC joint that was exacerbated by [the
work] injury, and she had a low-grade tear of her rotator cuff.” He also opined that the
aggravation of her pre-existing arthritis was “primarily related to . . . the work activity.”
According to Dr. Joyner’s deposition testimony, following the May 2017 shoulder
surgery, Employee continued to complain of persistent pain. Over the next several
months, she reported no improvement with therapy. Thereafter, Dr. Joyner ordered
another MRI that revealed inflammatory changes in the AC joint. He gave Employee
another injection and recommended she continue her home exercise program. In
September 2018, after additional conservative care failed to improve her symptoms, Dr.
Joyner discussed the possibility of another surgical procedure. Dr. Joyner testified that
after authorization for the additional surgical procedure was denied, he filed an appeal
“[b]ecause [he] felt that the surgery was indicated and that it . . . was related to the
process of her injury.” He further indicated a willingness to perform the additional
surgery as of the date of his deposition testimony.
Addressing the opinion of the UR reviewing physician stating there was
insufficient evidence of the failure of conservative treatment to support certification of
the recommended surgery, Dr. Joyner testified as follows:
We characterized her pain multiple times throughout the process of
evaluation. She had multiple visits with physical therapy documenting her
range of motion. We discussed the physical examination findings,
including direct tenderness of the AC joint, cross body testing. And she
had undergone physical therapy. Had been treated with anti-
inflammatories, pain medication and injection, and a lidocaine injection
test. . . . [A]nd we had an MRI also confirming residual pathological
changes at the AC joint.
Dr. Joyner testified that, in his opinion, the recommended surgery was medically
necessary, and the “primary cause” of the need for the additional surgery was “the work
injury.” Finally, Dr. Joyner noted that if further surgical treatment was authorized, “her
MMI date would be adjusted pursuant to completion of treatment.”
5
During cross-examination, Dr. Joyner was asked about Employee’s prior history
of shoulder problems. He acknowledged that diagnostic studies pre-dating the work
accident could be helpful in determining whether the work injury caused an anatomic
change in her shoulder. After reviewing the report from a 2012 MRI of Employee’s left
shoulder, as well as the operative report from a 2012 surgery, Dr. Joyner agreed there was
evidence of pre-existing arthritis in the left shoulder AC joint in 2012. However, Dr.
Joyner also noted that Employee had reported a good result from the 2012 surgery and
had experienced a resumption of normal work activities until the 2017 work accident. He
had received no records to suggest any left shoulder complaints or treatment in the
intervening period between her recovery from the 2012 surgery and the 2017 work
accident. 1 Dr. Joyner maintained that the December 2017 work accident caused a partial-
thickness tear of the rotator cuff and an aggravation of her pre-existing arthritis.
During Dr. Petty’s July 29, 2020 deposition, he summarized the results of his
independent medical examination and reiterated the opinions expressed in his report. He
noted a 2012 MRI that revealed Employee’s “AC joint was already arthritic,” and a 2018
pre-surgical MRI that showed similar arthritic changes in her AC joint. Dr. Petty
acknowledged that the pre-surgical 2018 MRI showed a worsening of her tendinitis. He
testified, however, that the worsening “could be presumed to be due to the work injury,
but had there not been a work injury, you might have seen the same thing because it’s
been five years, and tendinitis that’s chronic will look a little worse five years later.” Dr.
Petty also found it significant that, during the left shoulder surgery performed by Dr.
Joyner, there was no full-thickness tear identified and only AC joint arthritis was
addressed, which both he and Dr. Joyner agreed was not a work-related condition. Dr.
Petty then offered the following testimony with respect to Employee’s presentation:
I’m confused by that. I’ve probably examined 30- or 50,000 shoulders
overall and I – this is an unusual situation for me, so I’m confused by her
presentation. One minute it moves this far; another minute it moves that
far. I had, at one point, become convinced that she had adhesive capsulitis.
Then the next moment, I repeated an exam and it wasn’t the same. . . .
So maybe the significance of it is that normally things have a somewhat
logical progression . . . . The only thing that in the end I could really hang
my hat on was her acromioclavicular joint is abnormal.
With respect to Dr. Joyner’s recommendation for additional surgery, Dr. Petty
described it as “nonwork-related.” He testified that Employee “had it before this work
injury, and it is still here now.” He then explained, “[t]he lifting of the [patient’s] leg
1
During the expedited hearing, Employee acknowledged that she saw a physician in 2014 for complaints
of left shoulder pain while working as a CNA at a veterans’ hospital. In its amended Expedited Hearing
Order, the trial court considered this inconsistency but concluded it did not change the court’s ultimate
determination.
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could not have caused arthritis to emerge spontaneously in her [AC] joint. That’s a
longstanding process that marches along slowly and progressively over time.”
During cross-examination, Dr. Petty acknowledged some differences in his
interpretation of the 2018 pre-surgery MRI findings versus those of Dr. Joyner. He
agreed with Dr. Joyner’s assessment that Employee suffered a “new work injury” on
December 31, 2017, but he disagreed with Dr. Joyner’s subsequent opinions regarding
the cause of degenerative changes seen on the 2018 MRI as compared to the 2012 MRI.
He also disagreed with Dr. Joyner’s conclusion that Employee had suffered a “low grade
tear of her rotator cuff” as a result of the work injury. Dr. Petty clarified his opinion as
follows:
So what we would presume if there is an exacerbation of her shoulder
condition from the 2017 work injury, it is an exacerbation of tendinitis,
because no tear was found at either surgery. The gold standard for
diagnosing a rotator cuff tear is surgical inspection, and we did not find one
in either of the two surgeries she had, so her diagnosis must be rotator cuff
tendinitis.
There’s no basis – from the intraoperative findings, which should be
conclusive and used as the gold standard for diagnostic purposes, there’s no
basis for concluding she had a tear of her rotator cuff.
Finally, during cross-examination, Dr. Petty acknowledged that Dr. Joyner’s
treatment recommendation was “a great plan.” He explained, “I think he’s taking her
situation and assessing it with an open mind and coming up with a reasonable and
appropriate treatment plan.” With respect to whether the surgery is medically necessary,
Dr. Petty testified that “when it comes to shoulder pain and nonthreatening pathology like
this, [surgery is] an option . . . it’s an appropriate option, and it’s a great plan.”
Following the expedited hearing, the trial court weighed the evidence, including
the countervailing expert opinions, and concluded the opinions expressed by the
authorized treating physician, Dr. Joyner, were more persuasive as to the primary cause
of the need for additional surgery. As a result, the court ordered Employer to provide the
additional medical treatment recommended by Dr. Joyner, as well as additional
temporary disability benefits. Employer has appealed.
Standard of Review
The standard we apply in reviewing the trial court’s decision presumes that the
court’s factual findings are correct unless the preponderance of the evidence is otherwise.
See Tenn. Code Ann. § 50-6-239(c)(7) (2019). When the trial judge has had the
opportunity to observe a witness’s demeanor and to hear in-court testimony, we give
7
considerable deference to factual findings made by the trial court. Madden v. Holland
Grp. of Tenn., Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar
deference need be afforded the trial court’s findings based upon documentary evidence.”
Goodman v. Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at
*6 (Tenn. Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and
application of statutes and regulations are questions of law that are reviewed de novo with
no presumption of correctness afforded the trial court’s conclusions. See Mansell v.
Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are
also mindful of our obligation to construe the workers’ compensation statutes “fairly,
impartially, and in accordance with basic principles of statutory construction” and in a
way that does not favor either the employee or the employer. Tenn. Code Ann. § 50-6-
116 (2019).
Analysis
Employer presented three issues on appeal, which we have consolidated and re-
stated as two issues: (1) whether the trial court erred in finding Employee presented
sufficient evidence of a compensable work injury and/or an aggravation of her pre-
existing left shoulder condition to support an interlocutory order for medical benefits; and
(2) whether the trial court erred in awarding and calculating temporary disability benefits.
Interlocutory Order for Medical Benefits
Generally, to be compensable, an injury must arise primarily out of and in the
course and scope of employment and must cause disablement, death, and/or the need for
medical treatment of the employee. Tenn. Code Ann. § 50-6-102(14) (2019).
Furthermore, “[a]n injury ‘arises primarily out of and in the course and scope of
employment’ only if it has been shown by a preponderance of the evidence that the
employment contributed more than fifty percent (50%) in causing the injury, considering
all causes.” Tenn. Code Ann. § 50-6-102(14)(B).
The aggravation of a pre-existing condition is not compensable unless it can be
shown to a reasonable degree of medical certainty that the aggravation arose primarily
out of and in the course and scope of employment. Tenn. Code Ann. § 50-6-102(14)(A).
Thus, to establish a compensable aggravation of a pre-existing condition, an employee
must prove by a preponderance of the evidence that the work accident contributed more
than fifty percent in causing the aggravation. See Miller v. Lowe’s Home Ctrs., Inc., No.
2015-05-0158, 2015 TN Wrk. Comp. App. Bd. LEXIS 40, at *13 (Tenn. Workers’
Comp. App. Bd. Oct. 21, 2015) (“[A]n employee can satisfy the burden of proving a
compensable aggravation if: (1) there is expert medical proof that the work accident
‘contributed more than fifty percent (50%)’ in causing the aggravation, and (2) the work
accident was the cause of the aggravation ‘more likely than not considering all causes.’”).
Under such circumstances, the injured worker is entitled to receive all medical treatment
8
“made reasonably necessary by [the] accident.” Tenn. Code Ann. § 50-6-204(a)(1)(A)
(2019).
However, at an expedited hearing, an employee need not prove each and every
element of his or her claim by a preponderance of the evidence to obtain temporary
disability or medical benefits but, rather, must come forward with sufficient evidence
from which the court can determine that he or she is likely to prevail at a hearing on the
merits, consistent with Tennessee Code Annotated section 50-6-239(d)(1). See 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). Moreover, to qualify
for medical benefits, an employee need not establish that the aggravation of his or her
pre-existing condition caused a permanent disability. Miller, 2015 TN Wrk. Comp. App.
Bd. LEXIS 40, at *18 (“[A]n aggravation or exacerbation need not be permanent for an
injured worker to qualify for medical treatment reasonably necessitated by the
aggravation.”).
Finally, it is well-established that a “trial judge has the discretion to determine
which testimony to accept when presented with conflicting expert opinions.” Payne v.
UPS, No. M2013-02363-SC-R3-WC, 2014 Tenn. LEXIS 1112, at *18 (Tenn. Workers’
Comp. Panel Dec. 30, 2014). Thus, when medical opinions conflict, as in this case, “the
trial judge must obviously choose which view to believe. In doing so, [the trial judge] is
allowed, among other things, to consider the qualifications of the experts, the
circumstances of their examination, the information available to them, and the evaluation
of the importance of that information by other experts.” Orman v. Williams Sonoma,
Inc., 803 S.W.2d 672, 676 (Tenn. 1991). When one of those experts is an authorized
treating physician, that expert’s causation opinion is afforded a presumption of
correctness. Tenn. Code Ann. § 50-6-102(14)(E). On appeal, the trial court’s
determinations regarding the weighing of expert opinions are reviewed under an abuse of
discretion standard. Johnston v. Siskin Steel & Supply Co., Nos. 2015-01-0023, 2018-01-
0003, 2018-01-0008, 2020 TN Wrk. Comp. App. Bd. LEXIS 23, at *13 (Tenn. Workers’
Comp. App. Bd. Mar. 24, 2020).
In the present case, the trial court was faced with two competing expert medical
opinions. The causation opinion of one of those physicians, Dr. Joyner, is entitled to a
presumption of correctness as provided in section 50-6-102(14)(E). Similarly, Dr.
Joyner’s treatment recommendations are presumed to be medically necessary in
accordance with section 50-6-204(a)(3)(H). To prevail, Employer must show the trial
court abused its discretion in accepting the opinions of Dr. Joyner over those of Dr. Petty.
Both Dr. Joyner and Dr. Petty are well-qualified orthopedic specialists who
expressed their opinions as to the cause and medical necessity of the need for additional
surgery. However, unlike Dr. Petty, Dr. Joyner had the benefit of seeing the condition of
Employee’s rotator cuff and AC joint during surgery. Dr. Joyner characterized his
9
findings as a “low-grade tear” of the rotator cuff, and he clearly testified his pre-operative
diagnoses were confirmed during the first surgery he performed. Dr. Joyner followed
Employee as a patient and saw her lack of progress with conservative care firsthand.
Finally, Dr. Joyner’s opinions are presumed correct unless overcome by a preponderance
of the evidence. In short, we conclude the trial court did not abuse its discretion in
accepting Dr. Joyner’s testimony as to the medical necessity and primary cause of the
need for additional surgery over that of Dr. Petty.
Temporary Disability Benefits
Employer next asserts the trial court erred in awarding temporary disability
benefits because Employee did not offer proof of the “duration of disability” as required
by Tennessee law. Employer further argues that because Employee applied for Social
Security disability benefits, “her inability to work cannot be causally connected to a
compensable work injury.” (Emphasis in original.)
To qualify for temporary total disability benefits, an employee must establish: (1)
that he or she became disabled from working due to a compensable injury; (2) that there
is a causal connection between the injury and the inability to work; and (3) the duration
of the period of disability. Jones v. Crencor Leasing and Sales, No. 2015-06-0332, 2015
TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Tenn. Workers’ Comp. App. Bd. Dec. 11,
2015) (citing Simpson v. Satterfield, 564 S.W.2d 953, 955 (Tenn. 1978)). An employee’s
entitlement to temporary total disability benefits ends when the employee either reaches
MMI or is able to return to work. Simpson, 564 S.W.2d at 955 (“Temporary total
disability benefits are terminated either by the ability to return to work or attainment of
maximum recovery.”).
However, in the present case, the parties acknowledged during the post-trial
hearing to address Employer’s motion to alter or amend the expedited hearing order that
Employee’s claim for temporary disability benefits was properly characterized as one for
temporary partial disability. “In all cases of temporary partial disability, the
compensation shall be sixty-six and two-thirds percent (66 2/3%) of the difference
between the average weekly wage of the worker at the time of the injury and the wage the
worker is able to earn in the worker’s partially disabled condition.” Tenn. Code Ann. §
50-6-207(2)(A) (2019). The statute does not specify the type of work or the manner in
which the partially disabled worker can earn wages but instead provides that, in those
circumstances, “the wage the worker is able to earn in the worker’s partially disabled
condition” is to be deducted from the worker’s average weekly wage to calculate the
temporary partial disability benefits due the worker. Id. Therefore, Employer’s
arguments with respect to the duration of disability are not relevant to the calculation of
temporary partial disability benefits.
10
In its amended expedited hearing order, the trial court considered additional
information offered by Employee as to her ongoing earnings from a part time sales job
and amended its order for temporary partial disability benefits accordingly. Employer
did not object to or dispute Employee’s amended calculation of the weekly compensation
rate to account for her ongoing earnings. We conclude the evidence does not
preponderate against the trial court’s determinations in this regard.
Finally, Employer argues that Employee’s efforts to secure Social Security
Disability benefits for reasons other than her work injury disqualify her from receiving
temporary partial disability benefits. We addressed a similar issue in Warren v. The
Pictsweet Co., No. 2017-07-0811, 2019 TN Wrk. Comp. App. Bd. LEXIS 60 (Tenn.
Workers’ Comp. App. Bd. Oct. 17, 2019), where the employer argued that the employee
had failed to secure employment after his work accident but had instead “chosen to rely
on Social Security Disability benefits.” Id. at *5. In rejecting that argument, we
explained that “employment after an injury should be considered along with ‘whether
[the] employee, in light of his [or her] education, abilities, physical and/or mental
infirmities, is employable in the open labor market.’” Id. at *6 (quoting Duignan v.
Stowers Mach. Corp., No. E2018-01120-SC-R3-WC, 2019 Tenn. LEXIS 224, at *25
(Tenn. Workers’ Comp. Panel June 19, 2019)). In the present case, we conclude that
Employee’s current work status, her application for Social Security disability benefits,
and her ongoing earnings are relevant considerations, but they are not the only factors
affecting her entitlement to temporary partial disability benefits. Instead, the trial court
was required to consider whether, in her partially disabled condition prior to a
determination of MMI, Employee was entitled to receive temporary partial disability
benefits in light of all relevant circumstances. Accordingly, we conclude the evidence
does not preponderate against the trial court’s determinations at this interlocutory stage of
the case.
Conclusion
For the foregoing reasons, we affirm the trial court’s interlocutory order in all
respects and remand the case. Costs on appeal are taxed to Employer.
11
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Angel Smith ) Docket No. 2018-05-1098
)
v. ) State File No. 894-2018
)
TrustPoint Hospital, LLC, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Robert V. Durham, Judge )
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 6th day
of January, 2021.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
R. Steven Waldron X arlenesmith@wfptnlaw.com
Arlene Smith
Marcia McShane X mmcshane@constangy.com
Nelson Suarez nsuarez@constangy.com
Ronald McNutt, Attorney, X ronald.mcnutt@tn.gov
Subsequent Injury and Vocational
Recovery Fund
Robert V. Durham, Judge X Via Electronic Mail
Kenneth M. Switzer, Chief Judge X Via Electronic Mail
Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov
Workers’ Compensation Claims
Olivia Yearwood
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov