By Jared S. Renfroe
Stephen Partilla v. Velocity Ventures, Inc.
Docket No. 2016-03-0502
State File Nos. 16161-2016, 21649-2016
Filed October 31, 2016
The employee had a history of two prior lumbar spine surgeries and had allegedly sustained two additional back injuries while working for the employer. After his prior surgeries, he continued to receive medical treatment for chronic pain, including narcotic pain medication, but he was able to work his normal job.
The employee alleged that on February 24, 2016, he removed a truck tire and felt a pop in his low back and aggravated symptoms in his right leg. He did not report the injury because his supervisor was off work. Instead, he saw his primary care physician, and an MRI was performed.
The employee reported the injury the next week, but he was not provided a panel of physicians. Subsequently, the employee again was injured at work on March 10, 2016, when he felt another pop in his back while performing a similar task. This incident, however, knocked him to the ground and made him lose bowel control. He was assisted by co-workers and was given a panel of physicians, and the selected physician ordered another MRI.
The authorized physician reviewed both recent MRIs and noted that the employee had a recurrent disc herniation in addition to his chronic postoperative changes. He stated, “I suspect that his symptoms involving his right lower extremity are secondary to a combination of foraminal stenosis and now with a recurrent disk herniation on the right side . . . I think that one could make a justification that his problem at the [L5-S1] level and the recurrent disk herniation on the right side is acute and is what has produced his current symptoms.”
It was noted that this was evident on the pre-March 10, 2016 MRI, so the physician stated that he “would attribute this actually to his on-the-job injury that occurred on 2/24. . . . As to causation, I do think it is reasonable to attribute this to the accident that occurred on 2/24 being greater than 51 percent of why he has a significant pain that he has now.” The employer obtained an independent medical examination, and the physician opined that, at most, the work accidents caused acute exacerbations of a pre-existing problem and that the employee’s complaints do not cross the 50 percent threshold for causation.
The trial court ruled in favor of the employee on the issues of medical benefits and temporary disability benefits. The employer appealed, asserting that the causation opinion of the authorized physician was not sufficient for the employee to meet his burden and that he is likely to prevail at a hearing on the merits. Specifically, the employer asserted that the statement that the authorized physician made stating that “one could make a justification” and did not state in his record that he considered all causes or used the 50 percent language does not meet the current causation standard.
However, the Appeals Board pointed out that standing alone, the language “one could make a justification” regarding causation may be insufficient at a hearing on the merits to establish causation. Additionally, the Appeals Board noted that although the physician also stated, “I do think it is reasonable to attribute this to the accident that occurred on 2/24 being greater than 51 percent of the [cause of the] significant pain” rather than of the cause of the injury, this is sufficient to meet the lower causation standard required at expedited hearings.
Finally, the Appeals Board reiterated that the trial court has the discretion to determine which physician(s)’ opinions to accept and that this determination is judged on an abuse of discretion standard, and in this case, the trial court did not abuse its discretion in accepting the authorized physician’s opinion over the IME physician’s opinion.
Jared S. Renfroe is an attorney for Spicer Rudstrom PLLC. He focuses his legal practice on litigation throughout Tennessee. He concentrates primarily on premises liability, business and commercial representation, employment practices litigation, professional liability, insurance defense, and workers’ compensation.
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