Booker, Veatrice v. US Farathane

FILED
Sep 05, 2024
11:25 AM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Veatrice Booker ) Docket No. 2022-07-0638
)
v. ) State File No. 111982-2019
)
US Farathane )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Amber E. Luttrell, Judge )

Affirmed and Certified as Final

In this appeal of a compensation order, the employee alleges she retained a permanent
impairment as a result of a fall at work and is entitled to permanent partial disability
benefits. The employee alleged injuries to her neck, shoulder, and back when she slipped
and fell onto a piece of machinery. The employer acknowledged the compensability of the
accident and provided a panel of medical providers. Following authorized medical
treatment with several providers, a spine specialist released the employee at maximum
medical improvement with no permanent medical impairment rating. The employee
obtained her own medical examination and sought additional medical care for her neck and
treatment for her shoulder. Following an expedited hearing, the court denied the
employee’s request for medical benefits related to the shoulder, determining the employee
was not likely to prevail at trial in proving her shoulder complaints were primarily related
to the work injury. However, the court ordered the employer to provide additional medical
benefits related to her neck and lumbar spine complaints. Thereafter, the employee
returned to the spine specialist, who again released her at maximum medical improvement.
At trial, the court determined that the injuries to the employee’s neck and back were
compensable, entitling her to future reasonable, necessary, and causally-related medical
care. However, the trial court determined the employee did not prove that she retained any
permanent disability as a result of the work accident and denied her claim for permanent
disability benefits. The employee has appealed. After careful consideration of the record,
we affirm the trial court’s order and certify it as final.

Judge Meredith B. Weaver delivered the opinion of the Appeals Board in which Presiding
Judge Timothy W. Conner and Judge Pele I. Godkin joined.

1
Veatrice Booker, Brownsville, Tennessee, employee-appellant, pro se

John D. Burleson, Jackson, Tennessee, for the employer-appellee, US Farathane

Factual and Procedural Background

Veatrice Booker (“Employee”) was working on a production line at a facility
operated by US Farathane (“Employer”) on November 5, 2019, when she slipped on some
oil and fell onto a piece of equipment. She immediately reported pain in her right upper
neck, the back of her right shoulder, and the right side of her low back. Employer provided
a panel of urgent and primary care clinics, from which Employee selected Physician’s
Quality Care. Employee began treating with Dr. Peter Gardner on November 11, 2019, at
which time she complained about symptoms in her neck, back, and right shoulder. Dr.
Gardner prescribed an anti-inflammatory medication and physical therapy, and he assigned
work restrictions. When Employee’s symptoms did not improve, Dr. Gardner referred
Employee to an orthopedist, Dr. Jason Hutchison.

At her initial appointment with Dr. Hutchison on February 17, 2020, Employee
reported low back pain. Dr. Hutchison recommended continued physical therapy and
prescribed muscle relaxers. Following that appointment, Dr. Hutchison included an
addendum to his February 17 office note stating that Employee had previously treated with
another doctor in his practice, Dr. David Sickle, in 2019 for left hip pain under her private
insurance and that Dr. Hutchison was only treating Employee for “cervical strain and bone
bruise of the lumbar spine.” At Employee’s telehealth appointment in April 2020, due to
increased pain complaints and indications of potential radiculopathy following her physical
therapy, Dr. Hutchison recommended a lumbar MRI. 1 After reviewing the MRI films from
both July 2019 and April 2020, Dr. Hutchison opined that both showed “significant lumbar
spondylosis.” He further stated Employee’s lumbar contusion and cervical strain were
resolved but that the “herniation” at L5-S1 “may be a little worse” than indicated in the
2019 MRI. Dr. Hutchison went on to say, “[B]ased upon the MRI I have seen, it is very
likely the underlying pathology that was present in July is what predisposed her to undergo
the current problem that she has, more so than the fall.”

Due to the MRI findings, Dr. Hutchison referred Employee to a spine specialist, Dr.
John Brophy, who examined her on April 22, 2020. He also reviewed both MRIs as well
as previous medical records and diagnosed Employee with lumbar and cervical/trapezius
myofascial pain. However, Dr. Brophy found no indication for surgical treatment and
released Employee at maximum medical improvement with no permanent medical
impairment or permanent work restrictions.

1
Employee had previously undergone an MRI in July 2019 for her hip complaints during her treatment
with Dr. Sickle. Dr. Hutchison specifically indicated he wanted a new MRI in order to compare it to the
MRI obtained prior to the work accident.
2
On April 7, 2021, Employee saw Dr. Samuel Chung for a medical examination at
the request of her attorney. Dr. Chung reviewed the radiologist’s report from the April
2020 MRI and other medical records and conducted a physical exam. He then assigned an
impairment rating of 12% for a lumbar disc injury with radiculopathy. Meanwhile,
Employee obtained unauthorized medical treatment under her personal insurance with Dr.
Eric Homberg, a pain management specialist in the same practice as Dr. Hutchison.

In May 2022, the parties deposed Dr. Hutchison, Dr. Brophy, and Dr. Chung. Dr.
Hutchison testified that he believed the April 2020 MRI of the lumbar spine showed some
progression of the herniation at L5-S1, although both scans indicated the presence of
spondylosis, or arthritic changes in the back. He did believe that there was some possible
nerve root compression at L5-S1, but he noted the symptoms of radiculopathy were
subjective in nature. Finally, he deferred to Dr. Brophy as a spine specialist on causation
of Employee’s back complaints.

Dr. Brophy testified in his deposition that he had compared the July 2019 MRI and
the April 2020 MRI “side-by-side” and there was “no change.” As such, it was his
assessment that there was no anatomical change as a result of the accident. Furthermore,
he testified that although the lumbar disc was “abnormal,” the abnormality did not result
in pressure on the nerve. Consequently, it was his opinion that Employee suffered
“subjective soft tissue pain” as a result of her fall at work with no permanent medical
impairment and that there was no further treatment indicated other than a home exercise
endurance program.

Finally, Dr. Chung was also deposed in May 2022. 2 During cross examination by
Employer’s counsel, Dr. Chung agreed he had not reviewed either MRI scan in preparing
his report. Dr. Chung testified he only reviewed the radiologist’s report from the April
2020 MRI, but he reiterated his 12% rating.

On November 22, 2022, Employee’s counsel filed a petition for benefit
determination seeking permanent disability benefits. 3 Sometime thereafter, Employee’s
counsel informed Employee he planned to withdraw as her attorney of record, and she
attended a January 2023 mediation in a self-represented capacity. 4 Employee then
submitted a request for expedited hearing, seeking medical benefits for her shoulder, as

2
The technical record contains only the cross-examination portion of Dr. Chung’s deposition, as that is all
Employer submitted into evidence at the compensation hearing.
3
Correspondence in the record indicates that Employee’s counsel had previously filed a petition for benefit
determination, which was voluntarily dismissed, and that Employee also filed her own petition for benefit
determination at some point. Neither document is contained in the record.
4
Employee’s counsel filed a motion to withdraw in March 2023, and the trial court subsequently entered
an order granting that motion.
3
well as continued medical benefits for her neck due to ongoing pain. A hearing was set for
August 2023 but was delayed because the issues of medical benefits and compensability
had not been certified by the mediator on a dispute certification notice. See Tenn. Code
Ann. § 50-6-239(b)(1). The parties returned to the mediator, a new dispute certification
notice was filed, and the expedited hearing was held on September 14, 2023.

Following the hearing, the court issued an order denying Employee’s request for
treatment of her shoulder, stating she had not provided sufficient evidence for the court to
find she will likely prevail at trial in showing that her need for shoulder treatment arose
primarily out of the work injury. The court noted that, other than her initial appointment
with Dr. Gardner, there was no indication Employee complained about or sought treatment
for her shoulder with the other authorized treating physicians, and she did not discuss her
shoulder at her evaluation with Dr. Chung. Furthermore, the court reasoned that although
Employee had obtained unauthorized treatment with other physicians, none of those
physicians opined that the need for treatment primarily arose out of her reported work
injury. However, in that same order, the court did grant Employee’s request to return to
Dr. Brophy for treatment of her neck and back based on his diagnosis of lumbar and
cervical/trapezius myofascial pain and the statement that she could return to him if she did
not improve. That order was not appealed.

Employee returned to Dr. Brophy on October 18, 2023, with complaints of lumbar
and cervical myofascial pain, at which time he examined her and found no clinical evidence
of radiculopathy and no need for further treatment from a workers’ compensation
standpoint. He indicated, however, that she might want to seek a formal evaluation through
her personal insurance to “rule out an occult inflammatory process.” Dr. Brophy again
released her at maximum medical improvement with no permanent impairment.

The trial court held a compensation hearing on May 15, 2023. In addition to other
evidence admitted at trial, the parties stipulated to the admissibility of Dr. Chung’s report,
and Employee also offered records from Dr. John Janovich, who provided Employee with
conservative treatment for cervical and lumbar radiculopathy following her release from
Dr. Brophy. Employee also submitted a letter from Dr. Janovich that was partially
illegible. The trial court asked for a clearer copy, but Employee did not submit one prior
to the trial court’s issuance of its compensation order. The trial court denied Employee’s
request for permanent disability benefits based on its determination Employee had not
presented evidence sufficient to rebut the presumption afforded Dr. Brophy’s opinion
regarding impairment pursuant to Tennessee Code Annotated section 50-6-204(k)(7). It
further ruled that Employee was entitled to future reasonable, necessary, and causally-
related medical benefits arising from her work injury. Employee has appealed.

4
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) (2023). 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 (2023).

Analysis

On her notice of appeal, Employee challenges the zero percent impairment rating
from Dr. Brophy and asserts the court erred in finding she did not retain any permanent
partial disability. Thus, the singular issue before us is whether the trial court erred in
accepting Dr. Brophy’s opinions regarding the lack of permanent medical impairment in
light of the 12% impairment rating assigned by Dr. Chung.

In this case, there is no question Employer accepted the work accident as
compensable and authorized medical treatment. Following conservative treatment,
Employee was referred directly to Dr. Hutchison, an orthopedist. Dr. Hutchison then
referred Employee to a neurosurgeon, Dr. Brophy. Pursuant to Tennessee Code Annotated
section 50-6-204(a)(3)(A)(ii), an employer has the option to provide a panel of specialists
within three days of a referral or can accept the direct referral. See Rhodes v. Amazon.com,
LLC, No. 2018-01-0439, 2019 TN Wrk. Comp. App. Bd. LEXIS 24, at *14 (Tenn. Workers’
Comp. App. Bd. June 11, 2019). Here, once Employer accepted the direct referral to Dr.
Brophy, he became an authorized treating physician, and his opinion regarding permanent
impairment had a presumption of correctness pursuant to Tennessee Code Annotated
section 50-6-204(k)(7). This presumption can be overcome by a preponderance of the
evidence. Id.

Employee avers the trial court erred in determining Dr. Chung’s assigned
impairment of 12% did not overcome Dr. Brophy’s impairment of zero percent. “When a
trial court is presented with conflicting medical testimony it is within the discretion of the
trial judge to conclude that the opinion of certain experts should be accepted over that of

5
other experts and that [the accepted opinion] contains the more probable explanation.”
Goodman v. Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at
*8 (Tenn. Workers’ Comp. Panel Jan. 18, 2018) (internal citations omitted). In this
instance, the court reviewed the expert opinions offered by both Dr. Brophy and Dr. Chung.
Dr. Chung admitted he did not review either MRI scan from July 2019 or April 2020 in
making his assessment and only reviewed the radiologist’s report for the second MRI.
Moreover, the record contains no expert opinion from Dr. Janovich regarding causation or
impairment. Thus, we conclude the trial court did not err in determining Employee failed
to overcome the presumption of correctness afforded Dr. Brophy’s impairment rating. 5 In
short, the preponderance of the evidence supports the trial court’s determination on this
issue.

Finally, we note that Employee did not file a transcript of the compensation hearing
or a statement of the evidence. “Without a transcript or statement of the evidence, we
presume that the evidence presented at the hearing supported the findings of the trial court.”
Webb v. Blakeford Management Services, Inc., No. 2022-06-2036, 2023 TN Wrk. Comp.
App. Bd. LEXIS 46, at *7-8 (Tenn. Workers’ Comp. App. Bd. Sept. 15, 2023) (citing Estate
of Cockrill, No. M2010-00663-COA-R3-CV, 2010 Tenn. App. LEXIS 754, at *11-12
(Tenn. Ct. App. Dec. 2, 2010)). Consequently, we affirm the trial court’s denial of
permanent partial disability benefits.

Conclusion

For the foregoing reasons, we affirm the trial court’s order in all respects and certify
it as final. Costs on appeal are taxed to Employee.

5
In her brief on appeal, Employee argues her termination due to absenteeism was part of the trial court’s
rationale for the denial of permanent partial disability benefits; however, the trial court’s order contains no
discussion of the circumstances of Employee’s termination or its relevance to the issue of permanent
disability.
6
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD

Veatrice Booker ) Docket No. 2022-07-0638
)
v. ) State File No. 111982-2019
)
US Farathane )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Amber E. Luttrell, 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 5th day
of September, 2024.

Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Veatrice Booker X veatrice36@gmail.com
John D. Burleson X jburleson@raineykizer.com
cjordan@raineykizer.com
Amber E. Luttrell, 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