Nesreen Boutros v. Amazon.Com DEDC, LLC Et Al.

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Court Description:

Authoring Judge: Senior Judge William B. Acree

Trial Court Judge: Judge Kenneth M. Switzer

Nesreen Boutros ( Employee ) suffered a work-related injury to her right arm and neck while working for her employer, Amazon.com DEDC, LLC ( Employer ), on April 23, 2015. The Court of Workers’ Compensation Claims (the trial court ) held Employee suffered a compensable injury and was entitled to lifetime medical benefits and temporary total disability ( TTD ) benefits, but suffered no permanent impairment. Employer appealed the award of TTD benefits and additional medical benefits, and the Workers’ Compensation Appeals Board (the Appeals Board ) affirmed. Employer appealed. The appeal has been referred to the Special Workers’ Compensation Appeals Panel for consideration and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. After careful consideration, we affirm the decision of the Appeals Board and adopt its well-reasoned opinion in its entirety as set forth in the attached Appendix.

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IN THE SUPREME COURT OF TENNESSEE SPECIAL WORKERS’ COMPENSATION APPEALS PANEL AT NASHVILLE Assigned on Briefs November 17, 2020 NESREEN BOUTROS v. AMAZON.COM DEDC, LLC ET AL. Appeal from the Workers’ Compensation Appeals Board Court of Workers’ Compensation Claims No. 2016-06-0418 Kenneth M. Switzer, Judge ___________________________________ No. M2020-00455-SC-R3-WC – Mailed January 20, 2021 Filed April 8, 2021 _______________________________ Nesreen Boutros (“Employee”) suffered a work-related injury to her right arm and neck while working for her employer, Amazon.com DEDC, LLC (“Employer”), on April 23, 2015. The Court of Workers’ Compensation Claims (the “trial court”) held Employee suffered a compensable injury and was entitled to lifetime medical benefits and temporary total disability (“TTD”) benefits, but suffered no permanent impairment. Employer appealed the award of TTD benefits and additional medical benefits, and the Workers’ Compensation Appeals Board (the “Appeals Board”) affirmed. Employer appealed. The appeal has been referred to the Special Workers’ Compensation Appeals Panel for consideration and a report of findings of fact and conclusions of law pursuant to Tennessee Supreme Court Rule 51. After careful consideration, we affirm the decision of the Appeals Board and adopt its well-reasoned opinion in its entirety as set forth in the attached Appendix. Tenn. Code Ann. § 50-6-217(a)(2)(B) Appeal as of Right; Decision of the Workers’ Compensation Appeals Board Affirmed WILLIAM B. ACREE, SR. J., delivered the opinion of the Court, in which SHARON G. LEE, J., and ROBERT E. LEE DAVIES, SR. J., joined. W. Troy Hart, Knoxville, Tennessee, for the appellants, Amazon.com DEDC, LLC and American Zurich Insurance Co. Nesreen Boutros, Mt. Juliet, Tennessee, Pro Se. OPINION On April 23, 2015, Employee suffered a work-related injury to her right arm and neck while working for Employer. On March 11, 2016, Employee filed a Petition for Benefit Determination. On May 4, 2016, a Dispute Certification Notice was filed indicating issues regarding TTD benefits, medical benefits, and compensability based on a prior condition. On September 20, 2016, the trial court held an expedited hearing pursuant to Tennessee Code Annotated section 50-6-239, which applies to injuries occurring on or after July 1, 2014. In its September 23, 2016 order, the trial court accredited Employee’s testimony and held that Employee was likely to prevail at a hearing on the merits in establishing her injury was caused by her employment with Employer and she was entitled to further medical benefits. The trial court ordered Employer to re-initiate Employee’s medical treatment by the provision of a panel of physiatrists. The court denied Employee TTD benefits at that time due to the lack of medical proof to establish that Employee was likely to prevail at a trial on that issue. Boutros v. Amazon.com DEDC, LLC, et al., No. 2016-06-0418, 2016 WL 11577436 (Tenn. Workers’ Comp. Cl. Sept. 23, 2016). Employer appealed and the Appeals Board affirmed by decision filed November 9, 2016. Boutros v. Amazon.com DEDC, LLC, et al., No. 2016-06-0418, 2016 WL 8468421 (Tenn. Workers’ Comp. App. Bd. Nov. 9, 2016). Employee filed a second request for an expedited hearing in 2018, seeking treatment from a physician independent of those provided under workers’ compensation. The trial court held an expedited hearing on September 26, 2018, and entered its order on October 2, 2018. The court again accredited Employee’s testimony, but held Employee was not entitled to treatment from a physician other than panel physician Dr. Victor Isaac. The court further held, however, that Employee was entitled to physical therapy, the medications prescribed by Dr. Isaac, and continued medical treatment. Boutros v. Amazon.com DEDC, LLC, et al., No. 2016-06-0418, 2018 WL 5098996 (Tenn. Workers’ Comp. Cl. Oct. 2, 2018). Employer did not appeal this order. By order filed April 23, 2019, the trial court ordered post-discovery alternative dispute resolution for May 28, 2019. Following mediation, the mediator issued a Dispute Certification Notice which was filed June 5, 2019. The court then set a compensation hearing, which was held on October 9, 2019. The issues before the trial court were the compensability of Employee’s claim and her entitlement to lifetime medical benefits, TTD benefits, and permanent partial disability benefits. In its order filed October 14, 2019, the trial court accredited Employee’s testimony and relied on the medical opinions of her treating panel physician, Dr. Isaac. The trial court held that Employee suffered a 2 compensable injury and that she was entitled to lifetime medical benefits and TTD benefits, but that Employee suffered no permanent impairment. The court awarded Employee TTD benefits for the period August 26, 2015, through January 1, 2018, but deducted from the amount of benefits for a period of ninety days, for a net award of TTD benefits in the amount of $30,037.14. Boutros v. Amazon.com DEDC, LLC, et al., No. 2016-06-0418, 2019 WL 5294225 (Tenn. Workers’ Comp. Cl. Oct. 14, 2019). Employer appealed the award of TTD benefits and additional medical benefits. By order filed February 13, 2020, the Appeals Board affirmed. Boutros v. Amazon.com DEDC, LLC, et al., No. 2016-06-0418 (Tenn. Workers’ Comp. App. Bd. Feb. 13, 2020). Employer has appealed the Appeals Board’s February 13, 2020 decision, and within that appeal has challenged the Appeals Board’s November 9, 2016 decision affirming the trial court’s September 23, 2016 interlocutory order. After careful consideration, we affirm the Appeals Board’s November 9, 2016 decision affirming the trial court’s September 23, 2016 interlocutory order. We further affirm the February 13, 2020 decision of the Appeals Board and adopt its well-reasoned opinion in its entirety as set forth in the attached Appendix. Costs of this appeal are taxed to Amazon.com, DEDC, LLC and American Zurich Insurance Co., for which execution may issue if necessary. WILLIAM B. ACREE, Senior Judge 3 APPENDIX OPINION OF THE WORKERS’ COMPENSATION APPEALS BOARD Factual and Procedural Background Nesreen Boutros (“Employee”), a resident of Wilson County, Tennessee, alleged that she suffered injuries to her neck, right shoulder, and right arm on April 23, 2015, while working as a package handler for Amazon (“Employer”). Employee described placing a heavy box on a conveyor belt and feeling a “pop,” which she testified resulted in burning pain in her neck and right arm. She presented to Employer’s on-site medical clinic and received a panel of medical providers from which she selected an urgent care facility. After two visits at the urgent care clinic, Employee was referred to an orthopedic physician and was seen by Dr. Kyle Joyner, an orthopedic surgeon. Dr. Joyner opined that Employee’s problems were muscular in nature rather than orthopedic, and he recommended referral to a physiatrist, stating in his report that Employee “does not need to follow up with me.” Employer arranged for Employee to begin treating with Dr. Jeffrey Hazlewood, a physiatrist and pain management specialist. Dr. Hazlewood’s records reflect ongoing complaints of right shoulder and arm pain, which he consistently noted were out of proportion to any objective findings. An MRI of Employee’s cervical spine revealed a disc protrusion at C6-7, but Dr. Hazlewood observed that this finding did not correlate with Employee’s complaints either objectively or subjectively. After failing to appear for two appointments and appearing late for a third, Dr. Hazlewood discharged Employee from his care, observing that her failure to keep her appointments suggested that her symptoms were not as severe as she reported. He released her at maximum medical improvement as a result of what he deemed to be noncompliance. Following an expedited hearing, Employer provided another medical panel from which Employee selected Dr. Victor Isaac. After multiple visits, and after Employee expressed dissatisfaction with his care, Dr. Isaac referred Employee to Dr. Damon Petty, who saw Employee once. Dr. Petty recommended an injection, which Employee declined. In his April 23, 2018 report, Dr. Petty concluded “symptom magnification has played a large role in the presentation here and the long duration of treatment without success.” Thereafter, Employee returned to Dr. Isaac, who prescribed physical therapy. Employee attended several therapy visits, but declined additional therapy because she believed it worsened her pain. Eventually, a nurse practitioner working under Dr. Isaac’s supervision placed Employee at maximum medical improvement. In preparation for the compensation hearing, Employee submitted several medical reports that were admitted into evidence by agreement. One such report, apparently from a Dr. Fahid, included a permanent medical impairment rating of 30%.1 A second such report, signed by Dr. Pradumosa Singh on August 13, 2019, also included an impairment rating of 30%.2 For its part, Employer relied on the records and medical opinions of Dr. Joyner, Dr. Isaac, Dr. Petty, and Dr. Hazlewood. Following a trial, during which Employee was the only witness to provide live testimony, the trial court concluded Employee was entitled to temporary disability benefits and future medical benefits, but declined to award any permanent disability benefits. In reaching its conclusions, the trial court relied on several opinions expressed by Dr. Isaac. First, Dr. Isaac concluded Employee was unable to work from April 23, 2015 until January 2, 2018. Second, Dr. Isaac signed a Final Medical Report (Form C-30A) indicating that Employee may need future medical treatment as a result of her work injury. Third, Dr. Isaac concluded Employee’s work injury did not result in any permanent medical impairment. The trial court further noted that Dr. Hazlewood had issued a final medical report indicating Employee retained no permanent medical impairment associated with the work accident. 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) (2019). 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 (2019). 1 The Final Medical Report (Form C-30A) admitted into evidence as Exhibit 2 is partially illegible. 2 Dr. Singh also signed a Form C-30A dated February 26, 2019, which included an impairment rating of 75%, apparently assigned to the right arm. 2 Analysis In its brief on appeal, Employer raises three issues, which we have restated as follows: (1) whether the trial court “abused its discretion in awarding temporary total disability benefits”; (2) whether the trial court erred in awarding temporary disability benefits covering a period of time after Employee had reached maximum medical improvement; and (3) whether Employee’s alleged medical noncompliance prevents her from receiving any workers’ compensation benefits. To qualify for temporary 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 has the burden of establishing his or her entitlement to temporary disability benefits by a preponderance of the evidence. See Tenn. Code Ann.§ 50-6-239(c)(6). As a preliminary matter, we note that the awarding of temporary disability benefits is not within a trial court’s “discretion,” as suggested by Employer, and the standard of review on appeal is not an abuse of discretion standard. Instead, consistent with Tennessee Code Annotated section 50-6-239(c)(6), an employee must prove the essential elements of his or her claim at a compensation hearing by a preponderance of the evidence, and we will presume a trial court’s factual findings are correct unless the preponderance of the evidence is otherwise. Riley v. Group Elec., No. 2015-06-0886, 2016 TN Wrk. Comp. App. Bd. LEXIS 26, at *10-11 (Tenn. Workers’ Comp. App. Bd. July 5, 2016). In the present case, the trial court concluded that Employee suffered a compensable accident that caused an inability to work. The trial court relied on the records and opinions expressed by an authorized panel physician, Dr. Isaac, who noted Employee was unable to work from the date of the injury until January 2, 2018. The court deducted from its award of temporary disability benefits amounts representing the time during which Employee worked, based on the evidence presented during the compensation hearing. In its brief, Employer asserts that Dr. Isaac’s opinions were “not credible” because he “did not have the needed information to determine whether restrictions were appropriate.” Yet, Dr. Isaac’s records, including the Final Medical Report forms, were offered into evidence by Employer and were relied on by Employer in support of its defenses. It is undisputed that Dr. Isaac’s December 6, 2018 Final Medical Report indicated Employee was unable to work from the date of the injury until January 2, 2018. It is incongruous for a party to offer 3 medical documentation into evidence and rely on certain portions of the documentation, then argue that the remainder of the documentation is not credible. It is well-settled that a trial court can weigh expert evidence and accept the opinions of one expert over those of another. See, e.g., Bass v. The Home Depot U.S.A., Inc., No. 2016-06-1038, 2017 TN Wrk. Comp. App. Bd. LEXIS 36, at *9 (Tenn. Workers’ Comp. App. Bd. May 26, 2017). We afford a presumption of correctness to a trial court’s determination of which expert opinions to accept, and we will reverse or modify such a determination only if the preponderance of the evidence is otherwise. In this case, we cannot conclude the evidence preponderates against the trial court’s decision to accept the opinions expressed by Dr. Isaac that supported the trial court’s award of temporary disability benefits. Next, Employer asserts that some portion of the award of temporary benefits represented a period of time after Employee had reached maximum medical improvement. Because the attainment of maximum medical improvement or the ability to return to work terminates an employee’s entitlement to temporary disability benefits, see Simpson, 564 S.W.2d at 955, Employer argues Employee is not entitled to temporary benefits after the earlier of those dates. However, in its brief, Employer acknowledged that “[Employee] was placed at maximum medical improvement (“MMI”) multiple times by multiple providers including authorized treating physicians.” Dr. Isaac, who began treating Employee in December 2016, indicated in his November 8, 2018 office note that Employee would reach maximum medical improvement after he had administered an epidural steroid injection. He then completed a Final Medical Report dated December 6, 2018, indicating Employee was unable to work from the date of the injury through January 2, 2018, when he released her to return to work with restrictions. That is the date used by the trial court to determine the award of temporary benefits, and we cannot conclude the trial court erred in selecting that date based on the proof presented during the compensation hearing. Finally, Employer argues the trial court erred in awarding compensation because Employee has been medically noncompliant throughout the course of her treatment. Although Employer raised issues in the trial court concerning Employee’s alleged medical noncompliance with respect to whether she was entitled to additional medical care and/or permanent disability benefits, Employer did not assert that her noncompliance was a sufficient basis to deny her temporary disability benefits. Rather, Employer argued that Employee presented insufficient and vague proof regarding her alleged entitlement to temporary disability benefits and that such proof could not form the basis of an award of temporary benefits. Where issues and arguments are not raised in the trial court, we will not address them for the first time on appeal. See Cartwright v. Jackson Capital Partners, Ltd. P'ship, 478 S.W.3d 596, 614 (Tenn. Ct. App. 2015) (“[A]ppellate courts do not sit as 4 self-directed boards of legal inquiry and research, but essentially as arbiters of legal questions presented and argued by the parties before them.”). Even if we were to conclude Employer properly raised the issue of whether Employee’s alleged noncompliance with medical treatment should bar her recovery of temporary disability benefits in the trial court, we find no error on the part of the trial court. Employer points out numerous instances in which Employee declined certain treatments for various reasons. Employee explained her reasons for missing or being late to appointments, her dissatisfaction with her physical therapy, and her reasons for declining invasive treatment, including epidural steroid injections. The trial court heard her testimony and found her explanations to be reasonable and her testimony to be credible. As we have previously observed, “[w]hen the trial court has heard in-court testimony, considerable deference must be afforded in reviewing the trial court’s findings of credibility and assessment of the weight to be given to that testimony.” Love v. Delta Faucet Co., No. 2015-07-0195, 2016 TN Wrk. Comp. App. Bd. LEXIS 45, at *17 (Tenn. Workers’ Comp. App. Bd. Sept. 19, 2016) (citing Tryon v. Saturn Corp., 254 S.W.3d 321, 327 (Tenn. 2008)). Employee testified that she failed to attend or was late to medical appointments because her prescribed medications made her drowsy and unable to drive safely. She testified that she declined an injection because she would not be able to use her arm to drive home afterward, but that she attempted to return the following day to receive the injection when someone would be available to drive her. Finally, Employee testified that she had difficulties with physical therapy and that it made her symptoms worse. The trial court heard these explanations and found them to be reasonable. We cannot conclude the preponderance of the evidence weighs against the trial court’s determinations in this regard. Conclusion For the forgoing reasons, the decision of the trial court awarding temporary disability benefits and medical benefits is affirmed, and its order is certified as final. Costs on appeal are taxed to Employer. 5

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