Prianglam Brooks v. Correctional Medical Services
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IN THE SUPREME COURT OF TENNESSEE
SPECIAL WORKERS’ COMPENSATION APPEALS PANEL
AT JACKSON
August 23, 2010 Session
PRIANGLAM BROOKS v. CORRECTIONAL MEDICAL SERVICES
Appeal from the Chancery Court for Shelby County
No. CH-07-1438-3
Kenny W. Armstrong, Chancellor
No. W2010-00266-WC-R3-WC - Mailed January 19, 2011; Filed February 25, 2011
Employee sustained a compensable injury to her lower back. Employer initially provided
medical treatment, but Employer’s insurer subsequently declined to provide additional
medical treatment. Employee sought treatment on her own. Her treating physician found
that she retained a 15% permanent impairment as a result of her injury. An examining
physician for Employer opined that she had no impairment. A physician was selected
through the Medical Impairment Registry (“MIR”) process. That physician also stated that
Employee had no permanent impairment. The trial court found that Employee rebutted the
presumption of correctness of the MIR physician’s rating by clear and convincing evidence
pursuant to Tennessee Code Annotated section 50-6-204(d)(5) and awarded 20% permanent
partial disability. Both sides appealed.1 We affirm the judgment of the trial court.
Tenn. Code Ann. § 50-6-225(e) (2008) Appeal as of Right;
Judgment of the Chancery Court Affirmed
T ONY A. C HILDRESS, S P. J., delivered the opinion of the Court, in which J ANICE M. H OLDER,
J., and D ONALD P. H ARRIS, S R. J., joined.
Gary H. Nichols and Mildred Sabbatini, Memphis, Tennessee, for the appellant, Correctional
Medical Services.
Steve Taylor, Memphis, Tennessee, for the appellee, Prianglam Brooks
1
Pursuant to Tennessee Supreme Court Rule 51, this workers’ compensation appeal has been
referred to the Special Workers’ Compensation Appeals Panel for a hearing and a report of findings of fact
and conclusions of law.
MEMORANDUM OPINION
Factual and Procedural Background
On July 25, 2006, Prianglam Brooks (“Employee”) was working for Correctional
Medical Services (“Employer”) as a registered nurse when she was injured while pushing a
medication cart. Employee promptly reported the injury to Employer, which referred her to
a local minor medical clinic for treatment. Employee was prescribed physical therapy, but
that treatment was discontinued when it was discovered that Employee was pregnant.
Employer’s insurer declined to provide additional medical treatment, and Employee sought
treatment with Dr. Tewfik Rizk, a physiatrist.
Employee filed a complaint against Employer seeking workers’ compensation benefits
for an injury she sustained at work. Employer asserted that Employee suffered no permanent
disability as a result of the injury. The trial court held a hearing to determine Employee’s
permanent partial disability from the injury, if any.
Dr. Rizk testified by deposition. Employee was under Dr. Rizk’s care from October
2005 through July 2009. Dr. Rizk diagnosed Employee as having sacroiliac joint dysfunction
and right L5-S1 facet syndrome. Dr. Rizk ordered physical therapy, prescribed various
medications, and performed epidural nerve block injections. Employee had a positive
response to the injections, but the relief provided by the injections was temporary. Dr. Rizk
testified that Employee’s response to the injections confirmed his diagnosis of sacroiliac joint
dysfunction and right L5-S1 facet syndrome. Dr. Rizk opined that Employee had a
permanent anatomical impairment of 15% to the body as a whole. He recommended that
Employee avoid lifting weights greater than twenty pounds and repetitive movement of the
lumbar spine.
Dr. Rizk testified that the fifth edition of the American Medical Association Guides
(“AMA Guides”) did not directly address sacroiliac dysfunction or facet syndrome. Thus,
he based his impairment rating on the Diagnosis Related Estimate (“DRE”) tables applicable
to lumbar spine injuries, and his impairment rating of Employee fell between category III and
IV of those tables. On cross-examination, Dr. Rizk conceded that Employee exhibited none
of the three objective findings listed in the DRE table for those categories.
At the request of Employer’s attorney, Dr. Stephen Waggoner, an orthopaedic
surgeon, conducted independent medical examination of Employee on April 8, 2008. Dr.
Waggoner reviewed Dr. Rizk’s notes, Employee’s physical therapy records, and the results
of a Magnetic Resonance Imaging (“MRI”) scan that had been performed before Employee
came under Dr. Rizk’s care. Although Employee exhibited “tenderness” at the L4-5 level
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and over the right sacroiliac joint, the results of Dr. Waggoner’s physical examination of
Employee were normal. He opined that Employee had 0% impairment according to the
AMA Guides. Dr. Waggoner based his opinion on the absence of objective findings, and he
placed her in category I of the DRE tables. Dr. Waggoner noted that Dr. Rizk’s impairment
rating was at or above the level normally assigned to patients who had undergone spinal
surgery.
In light of the disparity between the impairment ratings assigned by Drs. Rizk and
Waggoner, Employer requested that an examination be performed by an independent medical
examiner from the Medical Impairment Registry (“MIR”), pursuant to Tennessee Code
Annotated section 50-6-204(d)(5) (2008). Dr. Owen Tabor, an orthopaedic surgeon, was
selected to conduct the examination, which took place on September 11, 2008. Although Dr.
Tabor did find that Employee had some limitation of her range of motion, the results of his
examination of Employee were otherwise normal. Dr. Tabor diagnosed Employee as having
“lumbosacral pain without evidence of orthopaedic or neurologic deficit.” He stated that
“there was nothing in the record to support or there was nothing from an objective study to
support either a diagnosis of sacroiliac disorder or facet syndrome,” and he assigned
Employee 0% impairment. Dr. Tabor noted that Dr. Rizk’s epidural injections had been
performed without a fluoroscope, and for that reason, he implicitly discounted their value as
a diagnostic tool. On cross-examination, Dr. Tabor agreed that the AMA Guides do not
directly address sacroiliac dysfunction.
Dr. Rizk testified in his deposition that he had reviewed Dr. Tabor’s report and
disagreed with Dr. Tabor’s impairment rating. Dr. Rizk observed that Dr. Tabor did not
perform any of the maneuvers to test for sacroiliac joint dysfunction despite knowing Dr.
Rizk’s diagnosis of sacroiliac joint dysfunction. Dr. Rizk further testified that Dr. Tabor’s
finding that Employee had some limitation in her range of motion is incongruent with Dr.
Tabor assigning Employee 0% impairment. Dr. Rizk testified that, according to the AMA
Guides, Dr. Tabor’s findings regarding Employee limited range of motion is consistent with
an assignment of 10% impairment to the body as a whole.
David Strausser, a vocational evaluator, testified on behalf of Employee. Mr.
Strausser conducted his initial evaluation of Employee in August 2007, and he concluded that
Employee had sustained a vocational loss of 51%. The 51% vocational loss was based on
the restrictions Dr. Rizk imposed on Employee. Employee obtained a master’s degree in
nursing after Mr. Stausser’s initial evaluation. Mr. Strausser therefore revised his initial
estimate of her vocational loss to 40%. Based on the absence of restrictions later suggested
by Drs. Waggoner and Tabor, Mr. Strausser testified that Employee would have sustained
0% vocational loss.
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Employee was thirty-six years old at the time of trial. She had a bachelor’s degree in
psychology from Union University and a second bachelor’s degree in nursing from Baptist
College of Health Sciences. After her injury, she earned a master’s degree in nursing and
became a certified nurse practitioner. Employee resigned from Employer shortly after her
injury and worked part-time as a registered nurse while obtaining her master’s degree. At
the time of trial, Employee was employed as a nurse practitioner in Ardmore, Oklahoma, and
she was earning approximately $80,000 per year in that position. Employee had earned
approximately $56,000 per year while working for Employer. Employee testified that she
continued to have lower back and leg pain; that she took Ultram, a prescription medication;
and that she used a transcutaneous electrical nerve stimulation (“TENS”) unit regularly.
Employee stated that she was limited in her ability to lift and bend, and that pain sometimes
interfered with her ability to sleep.
In a letter to counsel, the trial court ruled that Employee had introduced clear and
convincing evidence rebutting the statutory presumption in favor of the 0% impairment
assigned by Dr. Tabor pursuant to Tennessee Code Annotated section 50-6-204(d)(5) and it
awarded Employee 20% permanent partial disability (“PPD”). Employer appealed,
contending that the trial court erred by finding that Employee had rebutted the presumption
of correctness accorded to the independent medical examiner’s impairment rating.
Alternatively, Employer argues that the award is excessive. Employee argues that the award
is inadequate.
Standard of Review
The standard of review of issues of fact is “de novo upon the record of the trial court,
accompanied by a presumption of correctness of the finding, unless the preponderance of
evidence is otherwise.” Tenn. Code Ann. § 50-6-225(e)(2) (2008). When credibility and
weight to be given testimony are involved, considerable deference is given the trial court
when the trial judge had the opportunity to observe the witness’s demeanor and to hear
in-court testimony. Madden v. Holland Grp. of Tenn., Inc., 277 S.W.3d 896, 898 (Tenn.
2009). “When the issues involve expert medical testimony that is contained in the record by
deposition, determination of the weight and credibility of the evidence necessarily must be
drawn from the contents of the depositions, and the reviewing court may draw its own
conclusions with regard to those issues.” Foreman v. Automatic Sys., Inc., 272 S.W.3d 560,
571 (Tenn. 2008). A trial court’s conclusions of law are reviewed de novo on the record with
no presumption of correctness. Seiber v. Reeves Logging, 284 S.W.3d 294, 298 (Tenn.
2009).
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Analysis
1. MIR Impairment Rating
Tennessee Code Annotated section 50-6-204(d)(5) provides that the impairment
assigned by a doctor selected through the MIR process “shall be presumed to be the accurate
impairment rating” unless rebutted by clear and convincing evidence. The Supreme Court
has stated: “Clear and convincing evidence means evidence in which there is no serious or
substantial doubt about the correctness of the conclusions drawn from the evidence.” Hodges
v. S.C. Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992). When addressing what may be
required to rebutted the presumption found in Tenn. Code Ann. § 50-6-204(d)(5), we have
stated that “[a] straightforward interpretation of this standard favors, or even requires, the
presentation of affirmative evidence that an MIR physician had used an incorrect method or
an inappropriate interpretation of the AMA Guides to overcome the statutory presumption.”
Tuten v. Johnson Controls, Inc., No. W2009-1426-SC-WCM-WC, 2010 WL 3363609, at *6
(Tenn. Worker’s Comp. Panel Aug. 25, 2010).
The trial court found that the Employee successfully carried her burden and therefore
adopted the impairment rating assigned by Dr. Rizk. The trial court explained its decision
as follows:
Based on my observation of [Employee] during her testimony, I find her to be
credible and find her testimony regarding back pain and restrictions in her
daily living activities because of her back pain to be believable.
Based on the medical proof, especially Dr. Rizk’s findings, the MRI finding
of a mild bulge at L5-S1 and Dr. Tabor’s findings regarding loss of range of
motion in the spine, and considering the credible testimony of [Employee], it
is the Court’s finding based on clear and convincing proof that there is
substantial doubt about the correctness of Dr. Tabor’s zero impairment rating
as well as Dr. Waggoner’s rating. Indeed, as noted by Dr. Rizk in his
deposition testimony, utilizing the tables in the AMA Guide for impairment
due to abnormal motion of the lumbar region, [Employee’s] loss of motion
alone as found by Dr. Tabor results in a ten (10) percent impairment based
upon the applicable tables.
After fully considering the relevant provisions of the AMA guide, the Court
adopts the fifteen (15) percent rating by Dr. Rizk. This is not a case where a
zero rating is appropriate. Dr. Rizk treated [Employee] for more than three
years and confirmed his diagnosis by administering blocks into the sacroiliac
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joint and the facet joint. These blocks relieved [Employee’s] back pain until
the anesthetics used in the injections wore off. This is a clinically recognized
method to confirm a diagnosis regarding the back. Dr. Tabor’s and Dr.
Waggoner’s one-time evaluation[s] of [Employee] [are] not deserving of the
same weight and consideration as Dr. Rizk’s in-depth evaluation over a three
(3) year period.
It is undisputed that Employee sustained a work related injury, and the question
presented to the trial court was not merely the degree of permanent impairment arising from
that event, but the existence of any impairment. The MIR physician opined that there was
0% impairment. Employee testified that she had chronic pain and limitations in her activities
of daily living since being injuried. Dr. Rizk’s testimony and records of his observation of
Employee over the course of more than three years substantiated that testimony. Dr. Rizk’s
diagnosis was confirmed by Employee’s response to the injections which he performed. Dr.
Tabor, though critical of Dr. Rizk’s method, agreed that this procedure could be a valid
diagnostic tool. Employer is correct that Dr. Rizk did not find diminished range of motion.
However, as Dr. Rizk observed when discussing Dr. Tabor’s deposition testimony, Dr. Tabor
found diminished range of motion in his examination of Employee. After reviewing Dr.
Tabor’s finding, Dr. Rizk stated that a person with the degree of loss of range of motion such
as that found by Dr. Tabor would have at least an impairment rating above 0% and, according
to the AMA Guides, would have an impairment rating of 10% to the body as a whole.
When deciding whether or not an employee has rebutted the statutory presumption of
correctness enjoyed by an MIR physician’ impairment rating, the focus is on the evidence
offered to rebut that physician’s rating. The trial court considered its own observations of
Employee, Employee’s testimony, the medical proof, and the testimony of the physician who
had treated employee for a number of years. Perhaps most importantly, Dr. Rizk’s testimony
reflected his disagreement with the MIR physician’s testimony that Employee’s impairment
rating was 0% despite Employee’s loss of range of motion. Considering this evidence in its
totality, we are unable to conclude that the evidence preponderates against the trial court’s
finding that Employee rebutted the statutory presumption of the accuracy of Dr. Tabor’s
impairment rating by clear and convincing evidence.
2. Size of Award
Employer contends the award is excessive. Specifically, it contends that Employee’s
vocational disability is minimal because she was able to obtain a master’s degree and find
a better-paying job after her injury. Employee, on the other hand, contends that the award
is inadequate. Specifically, she points to Mr. Strausser’s testimony that Dr. Rizk’s
restrictions limit her ability to perform nursing jobs that require movement of patients.
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Employee, who is relatively young and well educated, is engaged in a highly skilled
profession. While the injury she sustained limit some of the opportunities available to her,
she has nevertheless been able to find and hold a position with an income substantially higher
than her income at the time of the injury. In consideration of all factors, the trial court’s
award realistically reflects the effects of this injury, and we therefore conclude that the
evidence does not preponderate against the amount of that award.
Conclusion
The judgment of the trial court is affirmed. Costs are taxed to Correctional Medical
Services and its surety, for which execution may issue if necessary.
_________________________________
TONY A. CHILDRESS, SPECIAL JUDGE
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IN THE SUPREME COURT OF TENNESSEE
SPECIAL WORKERS’ COMPENSATION APPEALS PANEL
AT JACKSON
August 23, 2010
PRIANGLAM BROOKS v. CORRECTIONAL MEDICAL SERVICES
Chancery Court for Shelby County
No. CH-07-1438-3
No. W2010-00266-WC-R3-WC - Filed February 25, 2011
JUDGMENT ORDER
This case is before the Court upon the entire record, including the order
of referral to the Special Workers' Compensation Appeals Panel, and the Panel's
Memorandum Opinion setting forth its findings of fact and conclusions of law, which
are incorporated herein by reference;
Whereupon, it appears to the Court that the Memorandum Opinion of the
Panel should be accepted and approved; and
It is, therefore, ordered that the Panel's findings of fact and conclusions
of law are adopted and affirmed, and the decision of the Panel is made the judgment
of the Court.
Costs on appeal are taxed to the Appellant, Correctional Medical
Services, for which execution may issue if necessary.
IT IS SO ORDERED.
PER CURIAM
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