                                                                                                              FILED
                                                                                                       September 20, 2016

                                                                                                            TN COURT Of
                                                                                                    WORKI.RS' COhiPI.NSATION
                                                                                                            C1.ill1S

                                                                                                             Time·8 :34 .Al.l

               TENNESSEE BUREAU OF WORKERS' COMPENSATION
              IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                               AT MEMPHIS

David Hall,                                                      Docket No.: 2016-08-0658
                  Employee,
v.
Randstad Staffing,                                               State File No.: 92815-2014
            Employer,
and
Indemnity Insurance Co. of North America,                        Judge Jim Umsted
            Insurance Carrier.



                         EXPEDITED HEARING ORDER GRANTING
                                 MEDICAL BENEFITS


       This case came before the undersigned Workers' Compensation Judge upon the
Request for Expedited Hearing filed by the employee, David Hall, under Tennessee Code
Annotated section 50-6-239 (2015). The only issue presented is whether the employer,
Randstad Staffing, must provide the requested medical treatment for Mr. Hall's back
injury. For the reasons set forth below, the Court holds Mr. Hall is likely to succeed at a
hearing on the merits in proving entitlement to the requested medical benefits.

                                               History of Claim

      The following facts were established at the Expedited Hearing held on September
13, 2016. 1 Mr. Hall is a thirty-seven-year-old resident of Tipton County, Tennessee.
(T.R. 1.) He worked as a temporary employee for Randstad for approximately eight
months. (Ex. 2.)

       On November 20, 2014, Mr. Hall injured his back after lifting a box at work. He
notified Randstad of the injury and received a panel of physicians from which he selected

1
  During the hearing, the Court also heard Mr. Hall's Motion in Limine and Motion for Sanctions, asking the Court
to exclude exhibits related to any child support liens and to award attorney fees and expenses for his attorney's work
in preparing and arguing the motion. The Court took the motions under advisement. Since the child support liens in
question were never moved into evidence during the trial, the Court denies the motions.
Campbell Clinic as his authorized provider. He received authorized medical care from
Dr. Carlos Rivera-Tavarez at Campbell Clinic, which consisted of diagnostic testing,
physical therapy, medication, and lumbar spine injections, from January 16, 2015, to
August 6, 2015. (Ex. 10.) Dr. Rivera-Tavarez diagnosed Mr. Hall with back pain and a
lumbar disc herniation and, after extensive conservative treatment, ultimately referred
him to a spine surgeon. (Ex. 10.)

       Mr. Hall began treating with spine surgeon Dr. Raymond Gardocki, also at
Campbell Clinic, on October 1, 2015. (Ex. 10.) Dr. Gardocki diagnosed Mr. Hall with a
degenerative disc at L4-5 with discogenic pain and recommended a transforaminal
epidural injection to determine whether Mr. Hall would be a reasonable candidate for
surgery. (Ex. 10.) Based on the results of the injection, Dr. Gardocki recommended
surgery and an EMG of Mr. Hall's left leg due to pain radiating down the leg. (Ex. 10.)
Randstad denied the surgery and EMG on grounds oflack of medical necessity. (Ex. 10.)

       In an office note dated April 7, 2016, Dr. Gardocki stated, "[Mr. Hall] has clear
radicular symptoms in his leg. We need to objectively document that he has a
radiculopathy because that will determine whether or not surgery is a reasonable option
for him or not, and work comp will not let us do that." (Ex. 10.) He noted the denial left
him with only one option for treatment, which involved work hardening and a functional
capacity evaluation. (Ex. 10.) The functional capacity evaluation put Mr. Hall at a
medium work range, so Dr. Gardocki placed him on restrictions consistent with a
medium work level and opined he had reached maximum medical improvement as of
June 23, 2016. (Ex. 10.) On August 11, 2016, Dr. Gardocki indicated Mr. Hall retained
no permanent impairment from his work injury of November 20, 2014, which he
diagnosed as degenerative disc disease with no objective radicular signs on examination.
(Ex. 10.)

       At the Expedited Hearing, Randstad supported its denial of the surgery and EMG
by pointing to Mr. Hall's prior back injuries and treatment as well as Dr. Gardocki's
comment that the surgery for Mr. Hall's condition was "mediocre at best." It also
maintained that Dr. Rivera did not agree with Dr. Gardocki's recommendation for
surgery, as he noted he had nothing further to offer Mr. Hall. Mr. Hall argued that no
medical evidence presented at the hearing contradicted Dr. Gardocki's treatment
recommendations, which possess a presumption of medically necessity.
                        Findings of Fact and Conclusions of Law

                                  General Legal Principles

        Mr. Hall need not prove every element of his claim by a preponderance of the
evidence in order to recover temporary disability benefits at an Expedited Hearing.
McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015). Instead,
he must come forward with sufficient evidence from which this Court might determine he
is likely to prevail at a hearing on the merits. !d.; Tenn. Code Ann. § 50-6-239(d)(l)
(2015).

       This lesser evidentiary standard does not relieve Mr. Hall of the burden of
producing evidence of an injury by accident that arose primarily out of and in the course
and scope of employment at an Expedited Hearing, but "allows some relief to be granted
if that evidence does not rise to the level of a 'preponderance of the evidence."'
Buchanan v. .Car/ex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd.
LEXIS 39, at *6 (Tenn. Workers' Comp. App. Bd. Sept. 29, 2015). In analyzing whether
he met his burden, the Court will not construe the law remedially or liberally in his favor,
but instead shall construe the law fairly, impartially, and in accordance with basic
principles of statutory construction favoring neither Mr. Hall nor Randstad. See Tenn.
Code Ann. § 50-6-116 (20 15).

                                      Medical Benefits

        The only issue presented to the Court was Mr. Hall's entitlement to medical
benefits ordered by Dr. Gardocki. The parties agreed that Dr. Gardocki is an authorized
treating physician. Pursuant to Tennessee Code Annotated section 50-6-204(a)(1)(A)
(2015), "the employer or the employer's agent shall furnish, free of charge to the
employee, such medical and surgical treatment . . . made reasonably necessary by
accident as defined in this chapter." Any treatment recommended by a physician or
chiropractor selected pursuant to this subdivision (a)(3) or by referral, if applicable, shall
be presumed to be medically necessary for treatment of the injured employee. Tenn.
Code Ann. § 50-6-204(a)(l)(H) (2015). This presumption has not been rebutted.
Moreover, even though Dr. Gardocki ultimately placed Mr. Hall at maximum medical
improvement and opined he retained no permanent imp~irment, Mr. Hall may still be
entitled to additional medical treatment, particularly considering Dr. Gardocki made these
determinations without the benefit of the EMG testing he initially recommended.
Accordingly, the Court finds Mr. Hall is entitled to reasonably necessary medical
treatment as recommended by his authorized treating physician, Dr. Gardocki, and as
required by Tennessee Code Annotated section 50-6-204 (2015).
IT IS, THEREFORE, ORDERED as follows:

    1. Randstad or its workers' compensation carrier shall provide Mr. Hall reasonably
       necessary medical treatment as recommended by authorized treating physician,
       Dr. Gardocki, possibly including EMG and surgery, and as required by Tennessee
       Code Annotated section 50-6-204 (20 15).

   2. This matter is set for a Status Conference on November 7, 2016, at 1:00 p.m.
      Central time.

       ENTERED this the 20th day of September, 2016.

                                                ~~
                                       Judge Jim Umsted
                                       Court of Workers' Compensation Claims

                                 Status Conference:

       A Status Conference has been set with Judge Jim Umsted, Court of Workers'
Compensation Claims. You must call 615-532-9550 or toll-free at 866-943-0014 to
participate in the Status Conference.

       Please Note:     You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation.

Right to A ppeaJ:

       Tennessee Law allows any party who disagrees with this Expedited Hearing Order
to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of
Appeal, you must:

   1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal."

   2. File the completed form with the Court Clerk within seven business days of the
      date the Workers' Compensation Judge entered the Expedited Hearing Order.

   3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.

   4. The appealing party is responsible for payment of a filing fee in the amount of
      $75.00. Within ten calendar days after the filing of a notice of appeal, payment
      must be received by check, money order, or credit card payment. Payments can be
      made in person at any Bureau office or by United States mail, hand-delivery, or
   other delivery service. In the alternative, the appealing party may file an Affidavit
   of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
   fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
   of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
   will consider the Affidavit of Indigency and issue an Order granting or denying
   the request for a waiver of the filing fee as soon thereafter as is
   practicable. Failure to timely pay the filing fee or file the Affidavit of
   Indigency in accordance with this section shall result in dismissal of the
   appeal.

5. The parties, having the responsibility of ensuring a complete record on appeal,
   may request from the Court Clerk the audio recording of the hearing for the
   purpose of having a transcript prepared by a licensed court reporter and filing it
   with the Court Clerk within ten calendar days of the filing of the Expedited
   Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
   the evidence within ten calendar days of the filing of the Expedited Hearing
   Notice of Appeal. The statement of the evidence must convey a complete and
   accurate account of what transpired in the Court of Workers' Compensation
   Claims and must be approved by the workers' compensation judge before the
   record is submitted to the Clerk of the Appeals Board.

6. If the appellant elects to file a position statement in support of the interlocutory
   appeal, the appellant shall file such position statement with the Court Clerk within
   five business days of the expiration of the time to file a transcript or statement of
   the evidence, specifying the issues presented for review and including any
   argument in support thereof. A party opposing the appeal shall file a response, if
   any, with the Court Clerk within five business days of the filing of the appellant's
   position statement. All position statements pertaining to an appeal of an
   interlocutory order should include: (1) a statement summarizing the facts of the
   case from the evidence admitted during the expedited hearing; (2) a statement
   summarizing the disposition of the case as a result of the expedited hearing; (3) a
   statement of the issue(s) presented for review; and (4) an argument, citing
   appropriate statutes, case law, or other authority.
                                               APPENDIX

    Technical Record: 2
       1. Petition for Benefit Determination, filed on June 9, 2016;
       2. Dispute Certification Notice, filed on July 13, 2016;
       3. Request for Expedited Hearing, filed on August 4, 2016;
       4. Response to Request for Expedited Hearing and Response in Opposition to Ruling
          Without Evidentiary Hearing, filed August 12, 2016;
       5. Mr. Hall' s Exhibit List, Witness List and Pre-Hearing Brief, filed August 29,
          2016;
       6. Randstad's Exhibit List, Witness List and Pre-Hearing Brief, filed August 29,
          2016;
       7. Mr. Hall's Motion in Limine and Motion for Sanctions, filed August 30, 2016; and
       8. Randstad's Response to Mr. Hall's Motion in Limine and Motion for Sanctions,
          filed September 1, 2016.

Exhibits:
   1. Mr. Hall' s Affidavit;
   2. Form C-41 Wage Statement;
   3. Tennessee Bureau of Workers' Compensation Records;
   4. Workers' Compensation Claim Questionnaire;
   5. Employee's Description of Incident;
   6. Child Support Liens (for identification only);
   7. Medical records filed by Randstad (for identification only);
   8. Collective exhibit of Campbell Clinic records not included m Randstad' s
       submission (for identification only);
  9. Collective exhibit of Baptist One Care records not included m Randstad's
       submission (for identification only);
   10. Collective exhibit of medical records from Campbell Clinic submitted by Mr.
       Hall, dated between January 16, 2015, and April 7, 2016;
   11. Collective exhibit of certified medical records from Campbell Clinic submitted by
       Mr. Hall, dated between April 7, 2016, and August 11, 2016;
   12. Safety Smart Injury Checklist and related documents submitted by Randstad; and
   13. Collective exhibits of medical and employment records submitted by Randstad.




2
  The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as
allegations unless established by the evidence.
                            CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 20th day
of September, 2016.

Name                        Certified Via      Via      Service sent to:
                            Mail      Fax      Email
Andrew Wener,                                    X      awener@wenerlawfirnLcom
Employee's Attorney
Blair Evans,                                      X     bevans@bakerdonelson .com
Employer's Attorney                                     chavesCa2bakerdonelson.com



                                         P nny Sh   , Clerk of Court
                                         Court of orkers' Compensation Claims
                                         WC.CourtCiet·k@tn.gov
