FILED
Mar 18, 2022
11:24 AM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Jo Carol Edwards ) Docket No. 2020-07-0656
)
v. ) State File No. 53020-2020
)
PeopLease, LLC, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Allen Phillips, Judge )
Affirmed in Part, Reversed in Part, and Remanded
In this interlocutory appeal, the employee reported suffering various injuries as a result of
a truck accident. The employer provided workers’ compensation benefits, including a
panel of orthopedic surgeons from which the employee selected an authorized physician.
The authorized physician opined, in part, that the employee had severe arthritis in both
knees necessitating total knee replacements but did not believe the accident was the
primary cause of the need for the knee replacement surgeries. The employee sought
unauthorized treatment with another physician who attributed more than fifty percent of
the cause of the need for bilateral knee surgeries to the accident. Following an expedited
hearing, the trial court determined the employee would likely prevail at trial in proving
the need for bilateral total knee replacements arose primarily from the work accident.
The court ordered the employer to pay the medical expenses for the employee’s left knee
replacement that had already been performed and to provide ongoing medical care,
including a right knee replacement as recommended by the employee’s physician. The
court additionally awarded the employee temporary disability benefits and
reimbursement for mileage expenses incurred for her travel to obtain medical care. The
employer has appealed. We affirm the trial court’s decision to the extent it orders the
employer to provide reasonable and necessary medical benefits causally related to the
work accident. However, we reverse the trial court’s finding that the employee has
shown she is likely to prevail at trial in establishing that her need for bilateral knee
replacements arose primarily out of the work accident, and we remand the case.
Judge Pele I. Godkin delivered the opinion of the Appeals Board in which Presiding
Judge Timothy W. Conner and Judge David F. Hensley joined.
Stephen B. Morton, Nashville, Tennessee, for the employer-appellant, PeopLease, LLC
1
Charles L. Hicks, Camden, Tennessee, for the employee-appellee, Jo Carol Edwards
Art D. Wells, Jackson, Tennessee, for the Tennessee Subsequent Injury and Vocational
Recovery Fund
Factual and Procedural History
On August 14, 2020, Jo Carol Edwards (“Employee”), a truck driver, was
employed by PeopLease, LLC (“Employer”) to drive a tractor trailer for French
Trucking. While driving in Mississippi, the truck’s right front tire blew out, causing the
truck to strike a bridge before traveling down an embankment and coming to a stop in a
field. Employee was transported to the University of Mississippi Medical Center where
she reported “neck pain, chest pain, bilateral knee pain, [and] sacral pain.” Examination
revealed bilateral anterior patella tenderness and bilateral pain to the right and left knees
with passive range of motion upon flexion but “no swelling deformity or signs of injury.”
A CT of Employee’s cervical spine and head revealed no acute abnormalities. X-rays of
Employee’s right knee revealed “degenerative joint disease with no acute abnormality,”
and x-rays of her left knee showed “tricompartmental degenerative joint disease with
trace joint effusion” but “[n]o acute fractures.” Employee was prescribed pain
medications and advised to follow up with her primary care physician.
Employee next treated on August 20, 2020, at Fast Pace Urgent Care Clinic where
she received a referral for an orthopedic evaluation. 1 Employer provided a panel of
orthopedic physicians, and Employee selected Dr. Jason Hutchison to be her treating
physician. Employee first saw Dr. Hutchison on September 14, 2020, reporting bilateral
knee pain following the work-related truck accident. Employee described her pain as a
“constant aching, burning, and throbbing sensation,” noting that her left knee was worse
than her right knee. Dr. Hutchison documented tenderness along the medial joint line,
with no instability and normal tracking of the patella for both knees. X-rays revealed
bilateral tricompartmental end-stage arthritis. Dr. Hutchison administered an injection
and advised Employee that “her injury is only an aggravation of her underlying arthritis.”
He concluded that Employee’s work-related injury was “not responsible for greater than
51% of the [Employee’s] current problem,” and he placed her at maximum medical
improvement. Dr. Hutchison returned Employee to work without restrictions and noted
she could return to see him as needed.
Employee returned to Fast Pace Urgent Care Clinic on September 21, 2020, and
was seen by Jacqueline Wilson, a family nurse practitioner. Triage notes indicate
Employee stated she was there for lab work, to discuss medications, and that she needed
“a referral for orthopedics for [her] bilateral knee replacement.” Employee provided a
1
This medical record is not contained in the record on appeal. We have gleaned this information from
Employee’s testimony at the expedited hearing, medical bills admitted in evidence, and the parties’ briefs.
2
history of joint pain in “the lateral aspect of the left knee, medial aspect of the left knee,
lateral aspect of the right knee, and medial aspect of the right knee,” describing the pain
as “sharp, dull, and aching.” Employee stated she had been “seen with workmans [sic]
comp and evaluated, [and] she was told she will need both knees replaced.” Employee
requested and received a referral to Dr. Timothy Sweo in Jackson, Tennessee. 2
On September 24, 2020, Employee was evaluated by Dr. Sweo, who recorded a
history of constant pain, swelling and stiffness of both knees. She described her
symptoms as “mild-moderate” with “aching, sharp and throbbing” pain. X-rays revealed
severe bilateral knee arthritis, and Dr. Sweo noted Employee had severe pain, “left
greater than right” following conservative treatment. He discussed a left total knee
replacement and recorded that Employee “does wish to proceed.”
On October 19, 2020, Dr. Hutchison prepared an office note concerning an
impairment rating for Employee. He summarized the history provided by Employee, his
diagnosis, and his causation opinion before addressing Employee’s impairment rating:
Based on the absence of causation to the underlying severe
tricompartmental arthritis, I do not think [Employee] has any underlying
impairment that is specifically caused by the accident, and therefore,
[Employee] is released to [follow up] under [her] private medical with
appropriate treatments for osteoarthritis and potential knee replacement
recommended. Based upon this, there is no impairment per the AMA
[G]uideline, 6th Edition of [Permanent] Impairment. [Employee] may
[follow up] with me or [her] orthopedist of choice p.r.n.
Employee returned to Dr. Sweo on November 17, 2020, with complaints of
continued bilateral knee pain. Dr. Sweo reported Employee was “adamant” that she had
no problems with her knees prior to the work accident. He noted Employee “may have
some ligamentous damage or nondisplaced fractures” and requested an MRI, which
revealed severe arthritis throughout Employee’s left knee and an avulsion fracture of her
posterior tibial plateau. On December 3, 2020, Dr. Sweo noted it “appears [an] acute
fracture destabilized her knee causing the arthritis to hurt. So the accident was the main
cause of her needing a knee replacement.” Dr. Sweo also documented the injury to be
“greater than 51% of the cause for her knee replacement.”
Employee filed a petition for workers’ compensation benefits, asserting her claim
had been denied and that she needed medical treatment and “legal benefits.” Employee
2
After her appointment with Dr. Hutchison, Employee returned to French Trucking and spoke with
Vickie French. Employee testified that “Vickie French told me that she goes to Dr. Sweo, [that] her
family goes to Dr. Sweo . . . so she gave me Dr. Sweo’s name and number.” Employee stated that Ms.
French recommended that she see Dr. Sweo. It is undisputed, however, that Employee’s treatment with
Dr. Sweo was not authorized by Employer or its insurer.
3
indicated in her petition that she had selected Dr. Jason Hutchison from a list of three
doctors on August 25, 2020, and she alleged she was denied additional reasonable and
necessary medical care for her work injury after receiving some initial treatment.
On December 31, 2020, Dr. Sweo drafted correspondence stating that Employee
was under his medical care and currently unable to return to work. He noted Employee
had been off work since September 24, 2020, and was scheduled to undergo knee
replacement surgery on January 11, 2021, with an expected recovery period of three
months. Dr. Sweo performed a left total knee replacement on February 8, 2021. 3 On
May 4, at a follow-up visit with Dr. Sweo, Employee indicated that her left knee was
improving, but the pain was more noticeable in her right knee. Employee expressed her
desire to proceed with a right total knee replacement during this visit. Dr. Sweo
recommended that Employee wait to ensure her left joint was doing better before
proceeding. Following the May 4 visit, Dr. Sweo drafted a letter stating that Employee
was still recovering from her knee replacement, would “likely need one on her right knee
also,” and was still unable to return to work.
At a December 14, 2021 expedited hearing, Employee requested payment of
medical bills for her left knee replacement, authorization for a right knee replacement,
evaluation of alleged chest and right foot injuries, payment of additional temporary
disability benefits, and reimbursement of expenses for her travel to obtain medical care.
Employer argued it did not deny Employee’s claim and should only be responsible for
reasonable and necessary treatment for the aggravation of Employee’s pre-existing
arthritic condition resulting from the work accident. Employer additionally contended
that the need for Employee’s bilateral knee replacements was not more than 50% caused
by the August 2020 work-related accident, relying on the causation opinion of the
authorized panel physician for support of this position.
Employee testified in person at the expedited hearing, where she described being
“jarred up and down, sideways, [and] front[ward]” during the accident and having her
knees “smashed against the dash several times.” In addition, Employee testified that she
had not experienced pain in either knee prior to the accident but experienced pain,
swelling, and difficulty walking following the accident. The court determined Employee
was credible, observed her limping and using a cane, and concluded “her complaints
align with those Dr. Hutchison said he would expect from someone whose arthritis is
made symptomatic.”
Dr. Hutchison and Dr. Sweo testified by deposition. The court noted that Dr.
Hutchison was the panel-selected physician whose causation opinions are entitled to a
rebuttable presumption of correctness as provided by Tennessee Code Annotated section
3
Dr. Sweo also noted that Employee’s accident resulted in injuries to her ribs, sternum, ankle, and
tailbone. However, no treatment was recommended for those injuries.
4
50-6-102(14)(E) (2021). 4 However, the court pointed to Dr. Hutchison’s testimony that
an exacerbation of a pre-existing injury is not compensable as being an “incorrect
assumption.” In doing so, the court compared the facts of this case with those in Blevins
v. Southern Champion Tray, LP, No. 2018-01-0673, 2019 TN Wrk. Comp. App. Bd.
LEXIS 29 (Tenn. Workers’ Comp. App. Bd. July 11, 2019), and concluded that, as in
Blevins, Dr. Hutchison’s opinion was inconsistent with the facts, as he did not consider
whether Employee’s pain caused by the accident had become disabling. In addition, the
court noted that Dr. Sweo opined that Employee’s knee injuries and need for treatment
were more than 51% related to the accident. When coupled with the testimony of
Employee, the court found Dr. Sweo’s opinion to be more compelling and sufficient to
rebut the presumption accorded to Dr. Hutchison’s causation opinion. Accordingly, the
court ordered Employer to pay medical bills related to Employee’s left knee replacement,
to authorize surgery for the right knee replacement, to pay past and ongoing temporary
total disability benefits, and to pay mileage reimbursement. Employer has appealed.
Standard of Review
The standard we apply in reviewing a 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) (2021). When the trial judge has had the
opportunity to observe a witness’s demeanor and to hear in-court testimony, we give
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 (2021).
Analysis
Employer identified two issues on appeal, which we restate as follows: (1)
whether the trial court erred in assessing the respective weight afforded to the opinions of
each medical expert and in concluding Employee had met her burden of proof to rebut
4
In its order, the trial court referenced Tennessee Code Annotated section 50-6-204(k)(7). However, that
section provides a presumption of correctness to the authorized physician’s impairment rating. The
presumption of correctness attributable to an authorized physician’s causation opinion is found in
Tennessee Code Annotated section 50-6-102(14)(E).
5
the causation opinion of Dr. Hutchison and establish her entitlement to additional
unauthorized medical care and temporary benefits; and (2) whether the trial court erred in
concluding Employee was justified in seeking unauthorized medical treatment and
ordering Employer to pay for past unauthorized medical expenses. 5
When an employee reports a work injury, the employer is required to “designate a
group of three (3) or more independent reputable physicians . . . from which the injured
employee shall select one (1) to be the treating physician.” Tenn. Code Ann. § 50-6-
204(a)(3)(A)(i) (2021). The opinion of the physician selected from the panel is
“presumed correct on the issue of causation but this presumption shall be rebuttable by a
preponderance of the evidence.” Tenn. Code Ann. § 50-6-102(14)(E). In addressing the
level of proof required to overcome a trial court’s factual determinations, we previously
explained that “[t]he appellant bears the burden of showing that the evidence presented in
the trial court preponderates against the trial court’s findings. For the evidence to
preponderate against a trial court’s finding of fact, it must support another [finding] of
fact with greater convincing effect.” Kirk v. Amazon.com, Inc., No. 2015-01-0036, 2015
TN Wrk. Comp. App. Bd LEXIS 44, at *19 (Tenn. Workers’ Comp. App. Bd. Nov. 16,
2015). Moreover, when faced with competing expert medical opinions, a trial judge “has
the discretion to conclude that the opinion of one expert should be accepted over that of
another expert.” Regan v. Tennplasco, No. M2005-0202-WC-R3-CV, 2006 Tenn.
LEXIS 1209, at *10 (Tenn. Workers’ Comp. Panel Dec. 27, 2006). However, when the
medical proof is limited to documentary evidence, we are in just as good a position to
review and analyze the evidence as the trial court and, therefore, need not afford a
presumption of correctness to the trial court’s conclusions based on documentary
evidence. See Goodman, 2018 Tenn. LEXIS 8, at *6.
Employee selected Dr. Hutchison as her authorized physician. Dr. Hutchison is an
orthopedic surgeon, board certified in both sports medicine and orthopedic surgery, with
a significant portion of his practice involving knee treatment and surgery. Dr. Hutchison
testified that he regularly treats patients with arthritis and individuals who sustained
traumatic injuries to their knees, such as motor vehicle accidents. He first saw Employee
approximately one month after the work incident and provided a diagnosis of “end stage
tricompartment arthritis in both knees.” He testified that Employee’s knees had “bone on
bone arthritis,” stating “the cartilage is gone, and you’ve got bone against bone.” Dr.
Hutchison acknowledged that patients with end stage arthritis could potentially have
numerous symptoms that he identified as follows:
5
Employee raises as an issue her assertion that the trial court did not err in finding she suffered a
compensable aggravation of a pre-existing condition. Although Employer does not dispute this particular
finding, we note that at an expedited hearing, it is premature to address the compensability of Employee’s
claim and decline to do so.
6
Pain. Trouble standing for lengths of time. Swelling. Loss of range of
motion. Aching. Trouble sleeping at night. Startup pain, meaning after
they’ve been seated for awhile, they have trouble getting up and walking
initially for the first few steps. Going up and down stairs is difficult.
Squatting is difficult.
Dr. Hutchison noted Employee presented with pain in both knees, “some loss of
range of motion, [and] tenderness along the joint lines.” He acknowledged this “could
have been related to the accident,” but when asked to provide an opinion as to causation,
Dr. Hutchison testified:
I determined that her primary pathology is end stage tricompartmental
arthritis of both knees and that that particular finding was not work related
or injury related, that she had an exacerbation of symptoms caused by the
accident, and, that is not, according to my understanding of the law,
compensable or something that should be considered for treatment under
Workers’ Compensation.
Dr. Hutchison gave Employee an injection that he testified was reasonable and necessary
treatment for Employee’s knee pain, and further clarified that,
in essence, when someone comes in, I have authorization to treat them for
that day. And, again, keep in mind, I treat people all day long who aren’t
involved in Workers’ Compensation and that happens to people all the
time. Someone on their farm trips and falls, you know, taking care of their
cows and come in with their knee hurting. They have an end stage arthritic
knee that’s hurting from the accident where they fell. What’s the treatment
for it? I inject their knee, and try to calm them back down to the baseline,
because presumably they were doing pretty good before this and that’s their
treatment. And, even though I determined that their underlying arthritis is
not work related, I always try to treat the patient in the same manner that I
would if they were not Workers’ Comp, which is what I did in this setting.
Based upon his evaluation of Employee, the imaging obtained, and the history provided
by Employee, Dr. Hutchison concluded Employee’s knee condition and need for total
knee replacements was not greater than fifty percent related to the August 2020 incident.
When Employee saw Dr. Hutchison on January 4, 2021, he observed Employee
using a cane and noted her continued pain, “particularly inner lateral pain.” During this
visit, Dr. Hutchison reviewed the December 3, 2020 MRI ordered by Dr. Sweo. Dr.
Hutchison testified that the MRI revealed, in part, a subacute mildly displaced fracture to
the posterior medial tibial plateau and characterized this as “an osteophyte, which is a
bone spur off the back of the knee that had fractured.” Dr. Hutchison acknowledged this
7
can sometimes happen when people have trauma but emphasized that “we’re talking a
very small bone spur, 14 by 9 millimeters. And the fact that it fractured, doesn’t change
the treatment at all . . . doesn’t change, in my opinion, it’s fairly nonconsequential to the
big picture of this lady having an arthritic knee.” Dr. Hutchison testified there is “no
treatment” for this type of “nonconsequential” condition and stated, “[y]ou just leave it
alone. I mean, it is not any – it doesn’t change anything with regard to the treatment,
prognosis, [or] diagnosis [of Employee’s knees].”
Dr. Hutchison was asked specifically about a February 2, 2021 medical note from
Dr. Sweo in which Dr. Sweo noted Employee “denies any previous culture of that knee
with particular [motor vehicle accident]. So [it] appears [to] be acute fracture
destabili[zing] her knee, causing the arthritis to hurt. So the accident was the main cause
of her needing a knee replacement.” Addressing Dr. Sweo’s report, Dr. Hutchison stated:
I 100 percent disagree with what [Dr. Sweo] says there. [Dr. Sweo’s]
treatment is correct. It’s silly to talk about going in there and repairing this
tiny little 8 ball fragment, in this setting. But, to say she’s having knee
replacement because her knee’s unstable makes – well is unstable because
of this small fracture, makes no sense at all. And, in my opinion, he’s
stretching, trying to please the patient because of the situation that she’s in.
Dr. Hutchison also testified that he did not “see anywhere in [Dr. Sweo’s] exam where he
described instability of her knee.” When asked if it was possible for an avulsion fracture,
as seen on the MRI, to destabilize the knee, Dr. Hutchison responded, “This avulsion
fracture and this knee, no.”
During cross-examination, Dr. Hutchison testified that even if the fracture had
been visible on the x-rays, it would have been of no consequence because “[w]hen you
have an end stage arthritic knee and you have these bone spurs which are called
osteophytes around the knee, it is not unusual for one to facture at its base, or, to break
off.” He agreed that the fracture probably occurred as a result of the accident but testified
that this particular anatomic change was “of no consequence to her knee.”
Dr. Hutchison agreed that the accident may have caused an exacerbation of
Employee’s arthritis, testifying that “it is a very common situation where someone has an
accident, and their knee arthritis begins to hurt worse.” Dr. Hutchison testified that both
he and Dr. Sweo provided the same initial diagnosis. Dr. Hutchison acknowledged that
Employee’s symptoms, including pain, were consistent with someone who has an
arthritic knee and was involved in an accident that causes an exacerbation of underlying
symptoms, stating “since I don’t have the history to say and know for certain that she did
or did not have symptoms prior to the accident, I can’t – I can’t make that determination.”
However, Dr. Hutchison testified that the accident was not greater than fifty percent of
the cause of Employee’s end stage arthritis and did not result in permanent and
8
documented anatomical change in her knee, stating that “[t]he arthritis is greater than 51
percent of the cause for the need of a [knee] replacement” even assuming Employee was
asymptomatic prior to the accident.
Dr. Sweo is a board-eligible orthopedic surgeon who has practiced in the field of
orthopedics for approximately 25 years. He first treated Employee on September 24,
2020, approximately ten days after Dr. Hutchison. Dr. Sweo testified that Employee
“was complaining of her knees . . . [and] said that it had been going on for a few
months.” Employee had stiffness of the knees, pain with motion, and mild swelling, and
Dr. Sweo noted her range of motion was “much less motion than normal.” He testified
that “[p]retty much everything was normal other than arthritis in her knees,” adding that
“[h]er x-rays initially looked like just severe arthritis of the knees.” Dr. Sweo
recommended knee replacements and testified that “[Employee] hadn’t decided what she
wanted to do at that point, but that’s what I recommended to her.” 6
Employee returned to Dr. Sweo on November 17. Dr. Sweo testified Employee
was “adamant at that point that she hadn’t had any pain in her knees prior to this motor
vehicle accident she had that previous summer.” Dr. Sweo ordered an MRI, which
revealed a “[s]ignificant arthritic change with possible ligament damage or non-displaced
fracture.” Dr. Sweo acknowledged that the MRI findings were “pretty much as expected:
severe arthritis throughout her knee,” adding that Employee “did have a fracture of her
knee, which I did not expect.” He explained that the fracture was to the posterior tibial
plateau, which is the “back inside bone of the knee.” Dr. Sweo stated that the fracture
“certainly fit with [Employee’s] history.” Although Dr. Sweo agreed that the fracture
was incidental “as far as treatment,” he attributed “more than 51% of the cause” of
Employee’s problems in both knees and the need for total knee replacements to the
accident.
Dr. Sweo performed a left total knee replacement on February 8, 2021. He
testified that Employee had severe arthritis and would likely have needed a knee
replacement at some point but added that “because of the accident she had a fractured
bone that didn’t heal.” When questioned, Dr. Sweo agreed that the accident and fractured
bone were the cause of Employee’s knee problems and the surgery he had to perform.
According to Dr. Sweo, in May 2021, Employee started to realize how much her
right knee hurt and expressed her desire to proceed with a right total knee replacement.
He opined that the condition of Employee’s right knee required surgery as a result of the
automobile accident. Specifically, he agreed that, in light of the diagnostic studies, if the
accident involved Employee’s hitting both knees on the dash “to the point that it broke
6
There is no reference to a motor vehicle accident in the medical records of Employee’s first visit with
Dr. Sweo. When questioned about this omission, Dr. Sweo testified that the accident either “wasn’t
mentioned to us or I just failed to put it in there.”
9
the steering column on the truck,” the accident would have caused an anatomic change in
her knees. 7 When asked to explain how the trauma impacted Employee’s right knee, Dr.
Sweo responded that he would “probably get an MRI of [the right knee] to see if she has
a fracture on that one, too, but it really won’t change what she needs. She needs the knee
replacement either way.” Dr. Sweo agreed that someone could have severe arthritis, be
asymptomatic, and still work as a truck driver; however, he testified that Employee “had
very severe arthritis, and the fact that she tells me it doesn’t hurt, didn’t hurt her at all, it’s
hard to believe.”
In determining whether Employee suffered an aggravation or exacerbation of a
pre-existing condition, the trial court noted that Dr. Hutchison incorrectly stated that an
exacerbation of a pre-existing condition is not compensable and should not be treated
under workers’ compensation. 8 Dr. Hutchison testified that Employee’s “complaints
were consistent with someone who has an accident that causes an exacerbation of
underlying symptoms.” He noted “it is a very common situation where someone has an
accident, and their knee arthritis begins to hurt worse.” In fact, Dr. Hutchison provided
an injection in an effort to relieve Employee’s knee pain and treat the aggravation of
Employee’s left knee. Considering Employee’s testimony and that of Dr. Hutchison and
Dr. Sweo, we conclude the preponderance of the lay and expert proof supports the trial
court’s determination that Employee is likely to prevail at trial in proving her need for
medical care to treat the aggravation of her pre-existing condition arose primarily from
the August 14, 2020 work injury. However, that does not end our inquiry. We must also
address whether Employee came forward with sufficient evidence to show she is likely to
prevail at trial in proving her need for bilateral total knee replacements was primarily
caused by the work accident.
When a dispute centers on a request for medical treatment, the burden at an
expedited hearing is on the employee to show he or she is likely to prevail at trial in
proving that the work injury “contributed more than fifty percent (50%) in causing
the . . . need for medical treatment, considering all causes.” Tenn. Code Ann. § 50-6-
102(14)(C). Both Dr. Hutchison and Dr. Sweo examined Employee, reviewed the same
diagnostic imaging, and provided the same diagnosis during Employee’s initial visits.
The medical records reflect that Dr. Hutchison was provided a history of Employee’s
truck accident during her first visit; however, Dr. Sweo’s medical records contain no
7
When this issue was discussed at trial, Employee admitted that the steering column did not break as a
result of her knees striking the dash during the accident.
8
An aggravation of a pre-existing condition is compensable if “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 the
employment,” meaning the employment contributed more than 50% in causing the aggravation.” Tenn.
Code Ann. § 50-6-102(14)(A)-(B). The phrase “[s]hown 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(D).
10
mention of the accident or an acute incident that could have caused Employee’s injury.
In fact, Dr. Sweo testified that Employee reported a history of pain “for months.”
In addition, both doctors reviewed the December 3 MRI of Employee’s left knee.
Dr. Hutchison opined that the avulsion fracture did not destabilize Employee’s knee and
“was of no consequence to her knee.” He testified that the accident was not greater than
51 percent the cause of Employee’s end stage arthritis, did not result in permanent and
documented anatomical change of her knee, and he opined that “[t]he arthritis is greater
than 51 percent of the cause for the need of a [knee] replacement,” even assuming
Employee was asymptomatic prior to the accident. His opinions on these issues are
entitled to a statutory presumption of correctness.
Dr. Sweo testified that the avulsion fracture caused “instability” to Employee’s
right knee, but Dr. Hutchison testified that Dr. Sweo’s opinion regarding instability of the
knee was unsupported by Dr. Sweo’s physical examinations, noting that nowhere in Dr.
Sweo’s medical notes or operative report is “instability of the knee” described. In
addition, Dr. Sweo recommended a total right knee replacement despite the fact that an
MRI of Employee’s right knee had not yet been obtained. When questioned as to his
treatment of Employee’s right knee, Dr. Sweo testified that he would “probably get an
MRI of that [knee] to see if [Employee] has a fracture on that one, too.” Dr. Sweo
testified that he would likely find similar results on the MRI and the need for a right total
knee replacement is “most likely” the result of Employee’s motor vehicle accident.
Based on our review of the documentary evidence and lay testimony, we conclude
the trial court erred in its analysis of the proof regarding whether Employee came forward
with sufficient evidence to show a likelihood of prevailing at trial regarding the need for
bilateral total knee replacements. It is undisputed that the objective studies revealed end-
stage tricompartmental arthritis in both knees during Employee’s initial visit with both
doctors. Dr. Hutchison explained why the avulsion fracture in Employee’s left knee
could not cause “instability” in the knee and was not a medically significant finding. In
contrast, Dr. Sweo did not explain how, in comparing the pre-existing end-stage
tricompartmental arthritis to the work accident, it was the work accident that caused more
than fifty percent of the need for bilateral total knee replacements.
The trial court determined that the facts of this case were analogous to Blevins,
2019 TN Wrk. Comp App. Bd. LEXIS 29, in which we found the authorized physician’s
opinion had been successfully rebutted based, in part, on the physician’s
misunderstanding of the law. In that case, the authorized physician’s causation opinion
was given little weight because his statements concerning causation were inconsistent
with Employee’s testimony regarding how the injury occurred and were in response to
inquiries that incorrectly characterized the relevant legal questions regarding causation.
Here, although the authorized physician incorrectly stated his understanding of the law as
it applies to the aggravation of pre-existing conditions, his testimony nevertheless
11
supports the conclusion that the need for bilateral total knee replacements was not caused
primarily by the work accident.
Based upon our review of the record, we conclude the trial court did not err in
determining Employee is likely to prevail in establishing a compensable aggravation of
her pre-existing condition. However, we further conclude that the proof is insufficient to
show a likelihood of prevailing at trial in proving that the need for bilateral total knee
replacements was primarily caused by the work accident.
Finally, Employer contends Employee was not justified in seeking unauthorized
medical care after selecting Dr. Hutchison as her treating physician. It asserts Employee
“simply disagreed” with Dr. Hutchison and decided to undergo “significant knee surgery”
with an unauthorized provider without consulting with Employer. Employer emphasizes
that it did not deny Employee’s claim or delay authorization of treatment. Moreover,
Employer notes that Dr. Hutchison testified Employee could return to see him as needed
and that there is no evidence he failed to provide appropriate medical treatment. We
conclude the preponderance of the evidence does not support a determination that
Employee will likely prevail at trial in establishing Employer is responsible for payment
of unauthorized treatment for those conditions at this stage of the case.
Conclusion
For the foregoing reasons, we affirm the trial court’s conclusion that Employee is
likely to prevail at trial in establishing she suffered a compensable aggravation of a pre-
existing condition. Thus, she is entitled to reasonable and necessary medical care with
Dr. Hutchison for that aggravation. However, we reverse the trial court’s finding that
Employee is likely to prevail at trial in establishing her need for bilateral knee
replacements arose primarily from her work injury. Accordingly, we reverse the portions
of the trial court’s order requiring Employer to pay past medical expenses and mileage
expenses incurred as a result of the left knee replacement. In addition, we reverse the
trial court’s order requiring Employer to authorize and pay for Employee’s right knee
replacement, to pay temporary disability benefits associated with the left knee
replacement, and to authorize further treatment as recommended by Dr. Sweo. The case
is remanded to the trial court. Costs on appeal are taxed to Employer.
12
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Jo Carol Edwards ) Docket No. 2020-07-0656
)
v. ) State File No. 53020-2020
)
PeopLease, LLC, et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Allen Phillips, 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 18th day
of March, 2022.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Stephen B. Morton X stephen.morton@mgclaw.com
Charles L. Hicks X office@hickslawfirm.net
assistant@hickslawfirm.net
Art D. Wells X art.wells@tn.gov
Allen Phillips, 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