ROBERT RODGERS
v.
RENT-A-CENTER EAST, INC. ET AL.
No. W2019-01106-SC-R3-WC
Tennessee Workers Compensation
Supreme Court of Tennessee, Special Workers’ Compensation Appeals Panel, Jackson
July 29, 2020
Session: April 20, 2020
Mailed
June 12, 2020
Appeal
from the Circuit Court for Shelby County No. CT-004371-14
Jerry Stokes, Judge.
Employee
was injured in an automobile accident in the course and scope
of his employment with Employer. The authorized treating
physician and an authorized second opinion physician
concluded that Employee suffered zero percent (0%) permanent
impairment from his injury and released Employee to return to
work. Employee did not successfully return to work and sought
private medical treatment, including an independent medical
examination (“IME”). The Employee’s IME
physician assigned a seven percent (7%) permanent impairment
rating. Employer then sought an independent medical
evaluation from a physician chosen from the Medical
Impairment Registry (“MIR”). The MIR physician
assigned a two percent (2%) permanent impairment rating. The
trial court adopted the seven percent (7%) permanent
impairment rating and awarded permanent partial disability
benefits based on a multiplier of three, having determined
Employee failed to make a meaningful return to work, for an
award of 21% permanent partial disability to the body as a
whole. The court further awarded 104 weeks of temporary total
disability benefits and certain discretionary costs. Employer
has appealed, arguing that the trial court erred in adopting
the rating of Employee’s IME physician rather than the
MIR physician’s rating; in determining Employee did not
make a meaningful return to work; in awarding extended
temporary total disability benefits; and in awarding Employee
his discretionary costs. The 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 pursuant to Tennessee Supreme Court Rule 51. Following
our review of the trial court’s judgment and the record
on appeal, we modify in part, affirm in part, and reverse in
part.
Tenn.
Code Ann. § 50-6-225(e)(1)(2014) (applicable to injuries
occurring prior to July 1, 2014) Appeal as of Right; Judgment
of the Circuit Court Modified in Part, Affirmed in Part, and
Reversed in Part.
A.
Allen Grant, Nashville, Tennessee, for the appellants,
Rent-A-Center East, Inc., and Rent-A-Center Franchising
International, Inc.
Christopher L. Taylor, Memphis, Tennessee, for the appellee,
Robert Rodgers.
Arnold
B. Goldin, J., delivered the opinion of the court, in which
Roger A. Page, J., and Kyle C. Atkins, J., joined.
OPINION
ARNOLD
B. GOLDIN, JUDGE.
Factual
and Procedural Background
Robert
L. Rodgers, Jr. (“Employee”) began employment
with Rent-A-Center (“Employer”) in February 2013.
He was hired to fill a customer service position, but he
performed other tasks including deliveries, repossessions,
and credit calls. On May 7, 2013, Employee was rear-ended in
an automobile accident while running job-related errands for
the store manager. Immediately following the accident,
Employee reported a sharp pain in his lower back that
radiated down his left leg. He was transported to a nearby
hospital where he was x-rayed, administered medication, and
given an off-work release. Employee briefly returned to work
with complaints of back and leg pain; however, he was soon
placed on medical leave.
After
being placed on leave, Employee was treated briefly by Dr.
Darrin Jessop, a Memphis chiropractor chosen from a list
provided by Employer, but he testified the treatment was too
painful and provided no relief. On July 22, 2013, Employee
was examined by Dr. Stephen Waggoner, an orthopedic surgeon
with the Memphis Orthopedic Group, who was also chosen by
Employee from a physician panel provided by Employer. The
results of an MRI ordered by Dr. Waggoner were noted as
normal, and Employee’s straight leg raise testing was
negative. After receiving a regimen of physical therapy, Dr.
Waggoner determined that Employee reached maximum medical
improvement (“MMI”) on October 9, 2013. He
assigned Employee a zero percent (0%) permanent impairment
rating and released him to return to work. Employee, however,
never did return to work. According to Employee, Employer
told him not to return to work unless he was
“100%.”
Upon
exhausting the benefit review process, Employee filed a
complaint in the Shelby County Circuit Court for
workers’ compensation benefits on October 16, 2014.
Employer subsequently agreed to authorize a second opinion
evaluation with Dr. Fereidoon Parsioon, a Memphis
neurosurgeon, which took place on May 20, 2015. Dr. Parsioon
ordered x-rays, the results of which were normal, and two
weeks of physical therapy. After Employee completed the
physical therapy, Dr. Parsioon released him from his care
with no restrictions on October 8, 2015. Dr. Parsioon
concurred with Dr. Waggoner that Employee had a zero percent
(0%) permanent impairment rating.
Employee
subsequently sought treatment on his own. From November 2016
to February 2017, he saw Dr. Manuel Carro, a physical
medicine and rehabilitation specialist at the Semmes-Murphy
Clinic in Memphis. Dr. Carro noted lumbar myofascial pain
syndrome and numbness and tingling in both legs with no
evidence of peripheral radiculopathy1. The results of an EMG,
x-rays, and an MRI of Employee’s right leg were all
normal. Dr. Carro recommended continued physical therapy. On
April 25, 2017, Employee was seen by Dr. Gregory Dabov, an
orthopedic surgeon at the Campbell Clinic in Memphis.
Following a physical examination, Dr. Dabov diagnosed
Employee with chronic lower back pain and patellofemoral
syndrome in his right knee. Dr. Dabov offered Employee
conservative treatment, including strengthening exercises.
In May
2018, Employee obtained his own IME with Dr. Apruva Dalal, a
Memphis orthopedic surgeon. Dr. Dalal observed that Employee
walked with a cane, appeared depressed, and spoke sluggishly.
Dr. Dalal took Employee’s history and reviewed the
records of Drs. Waggoner, Parsioon, and Dabov, and the
results of an August 2013 MRI. Employee presented with
complaints of severe back pain and numbness and pain
radiating to his lower extremity. During the physical
examination, Dr. Dalal noted moderate tenderness in the
paraspinal region of the lumbar spine with moderate
paraspinal muscle spasms attributable to inflammation.
According to Dr. Dalal, Employee’s straight leg raise
test was positive bilaterally at fifty degrees. Dr. Dalal
took x-rays which revealed...
