                                                                                                    FILED
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                                                                                                   Time· 12 :38 PA.I
              TENNESSEE BUREAU OF WORKERS' COMPENSATION
             IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                            AT MURFREESBORO

LISADOHVE,                                             )    Docket No.: 2016-05-0851
        Employee,                                      )
v.                                                     )    State File No.: 92610-2015
                                                       )
FIRST UNITED METHODIST                                 )    Judge Robert Durham
CHURCH,                                                )
          Employer,                                    )
                                                       )
And                                                    )
                                                       )
CINCINNATI INS. CO.,                                   )
          Insurance Carrier.                           )




                EXPEDITED HEARING ORDER GRANTING BENEFITS


      This cause came before the undersigned Workers' Compensation Judge on
February 23, 2017, upon the Request for Expedited Hearing filed by Lisa Dohve pursuant
to Tennessee Code Annotated section 50-6-239 (2016). The central legal issue is whether
Ms. Dohve came forward with sufficient evidence to establish she is likely to prevail at a
Compensation Hearing that her work-related incident of November 17, 2015, was the
primary cause of her need for a three-level cervical fusion. 1 The Court holds Ms. Dohve
met her burden and is entitled to the requested benefits.

                                            History of Claim

       Ms. Dohve worked as a pre-school teacher's assistant at First United Methodist
Church in Murfreesboro (FUMC) beginning in September 2015. Ms. Dohve alleged
sustaining a work injury on November 17, 2015, when she lifted a two-year-old weighing
1
  The parties stipulated that if it were determined Ms. Dohve's cervical disc condition causally related to her
employment with FUMC, issues regarding temporary disability benefits and Dr. Shibayama's medical care would be
resolved by agreement.

                                                      1
approximately thirty pounds onto the changing table. As she did so, she immediately felt
a sharp pain in her neck and down her right shoulder. She notified the pre-school teacher
but stayed until her shift ended at 2:30p.m. After going home, her pain worsened, and
she developed numbness and tingling in her arms. That evening, she notified her
supervisor, Crystal Warren, who told her to seek medical attention the next day at a
facility that treated workers' compensation claims.

        At the hearing, the proof demonstrated as a condition of employment, Ms. Dohve
obtained medical certification stating she could lift forty-pounds and had the agility and
stamina to "keep pace with toddlers." (Ex. 9.) Ms. Dohve testified her job required her
to do physical tasks often, and one of her primary duties was changing the diapers and
training pants of twelve two-year-olds at least once every two hours. This duty required
her to lift an active toddler weighing thirty to forty pounds to her chest and over the lip of
a changing table so she could change the child's diaper. She stated she had no trouble
performing this task, as well as the other physical requirements of her job, prior to
November 17, 2015. Ms. Susan Titshaw, business manager for FUMC, testified she was
not aware of any issues Ms. Dohve had meeting the requirements of her job prior to her
work incident.

       Ms. Dohve initially received authorized treatment at Physician's Medical Center
(PMC) for a few months; she was taken off work, but experienced no improvement
through conservative care. PMC then referred her to an orthopedic specialist, and Ms.
Dohve chose Dr. James Rungee from a panel provided by FUMC. Dr. Rungee
determined Ms. Dohve's complaints were not due to her shoulder and ordered an MRI
that revealed stenosis in multiple levels of her cervical spine that was causing
impingement on her spinal cord. (Ex. 5 at 8.) He referred Ms. Dohve to a neurosurgeon,
and FUMC authorized Ms. Dohve to see Dr. Juris Shibayama. Upon examination, Dr.
Shibayama noted the long-standing duration of her pain and numbness and that she had a
"neurologic deficit consisting of weakness in her right arm." !d. As a result, he
immediately recommended a multi-level cervical discectomy and fusion. !d.

       Rather than authorize surgery, FUMC sent Ms. Dohve to Dr. Christopher
Kauffman, another neurosurgeon, for a second opinion. Ms. Dohve and her husband, Jeff
Dohve, sharply disputed the extent of the exam described by Dr. Kauffman in his notes
and in his deposition. They testified he only spent a couple of minutes with her and did
not perform several of the tests he claimed to have done. Regardless, Dr. Kauffman
declared that, while Ms. Dohve needed a fusion, the necessity was not primarily caused
by her employment at FUMC. (Ex. 7 at 12.) Based on Dr. Kauffman's opinion, FUMC
denied Ms. Dohve's claim and ended her temporary disability benefits.

       Ms. Dohve then returned to Dr. Shibayama, who performed a three-level cervical
fusion on August 24, 2016, for which Ms. Dohve's health insurance paid. (Ex. 6 at 9.)
Dr. Shibayama took her off work on August 24, and Ms. Dohve testified she has

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remained offwork through the present. !d. at 10.

        At the hearing, Ms. Dohve testified she never experienced any problems with her
neck or her arms prior to the work incident on November 17, 2015. Mr. Dohve
corroborated her testimony. The parties stipulated that a canvas of Ms. Dohve's medical
records over the past several years did not reveal any complaints that could be attributed
to the degenerative disc disease in her cervical spine. Ms. Dohve and her husband also
testified that she continues to experience significant limitations regarding the strength in
her arms, so that she has difficulty with simple household chores, lifting a gallon of milk,
and even breaking the seal on a bottle of water.

       Ms. Dohve introduced the deposition of Dr. Shibayama, who testified as follows
regarding causation:

       A: Well, per her report to me, she was asymptomatic in terms of neck,
       right arm pain, numbness, tingling and weakness. Prior to this incident, she
       felt an immediate pull in her neck and shoulder, immediately went to the
       walk-in clinic the next day and had been having symptoms since that time.
       So certainly she had some pre-existing stenosis. But I would say the
       majority of the cause of her current symptoms, which ultimately led to
       surgery, was the actual incident where she lifted the child and felt that pull
       and actually sought medical care right away for it.

       Q:     And, Dr. Shibayama, you say the majority, would that mean-

       A:     Greater than 51 percent.



       Q:     Now, with her pre-existing condition, if prior to November 17, 2015,
       she was not having symptoms as she reported, would she have needed the
       surgery before her work injury if she was not having symptoms?

       A:     No.

       Q:     Okay.

       A:     You can't make the asymptomatic patient better.

(Ex. 5 at 11-13.)

       On cross-examination, Dr. Shibayama agreed Ms. Dohve's cervical stenosis pre-
existed her work incident and he could not testify that the incident caused any objective

                                             3
anatomical change in her condition. (Ex. 5 at 16.) However, based on her history and his
examination, it did lead to an immediate onset of pain, numbness and loss of strength in
her right arm from which she has yet to recover. (Ex. 5 at 23-24.)

        The parties also introduced Dr. Kauffman's deposition. (Ex. 7.) He testified he
conducted a thorough record review and physical examination of Ms. Dohve, including
several tests involving coordination and her lower extremities, but did not note any
weakness. Id. at 15-18, 22. He reviewed the cervical MRI and noted multilevel
degenerative changes but no evidence of an "acute disc herniation" he would attribute to
lifting a small child. !d. at 10-12. Nevertheless, he agreed surgery was appropriate for
her condition. Id. at 12. When specifically asked about causation, Dr. Kauffman
testified: "In this case, I didn't see any acute anatomical change. Lifting a small child
one time, I don't think in my medical opinion that that's caused a problem that required
surgery." Id. at 20. He likened Ms. Dohve's condition to someone who has heart disease
and suffers a heart attack while walking past the candy aisle at Walmart. The fact that
they were walking past the candy aisle had little if anything to do with the actual heart
attack, and the fact that Ms. Dohve's condition became symptomatic while lifting a
toddler was not the primary cause of her need for surgery. ld. at 1~.

       He further testified that, while spinal surgery would not normally be recommended
for an asymptomatic patient, there could be instances where the degenerative condition
could be fortuitously discovered and be of sufficient severity to warrant surgery even
with the lack of symptoms. !d. at 25.

                       Findings of Fact and Conclusions of Law

       As in all workers' compensation actions, Ms. Dohve, as the claimant, has the
burden of proof on the essential elements of her claim. Scott v. Integrity Staffing
Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). However,
since this is an expedited hearing, she only has to come forward with sufficient evidence
from which the Court can determine she is likely to prevail at a hearing on the merits in
order to meet her burden. McCord v. Advantage Human Resourcing, 2015 TN Wrk.
Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).                .

        In order to establish causation, an employee must prove "to a reasonable degree of
medical certainty that [the injury] contributed more than fifty percent (50%) in causing
the death, disablement or need for medical treatment, considering all causes." Tenn.
Code Ann.§ 50-6-102(14)(C) (2016). The term "reasonable degree of medical certainty"
means that, "in the opinion of the physician, it is more likely than not considering all
causes, as opposed to speculation or possibility." Tenn. Code Ann. § 50-6-102(14)(D)
(20 16). An aggravation of a pre-existing condition is not a compensable injury unless "it
can be shown to a reasonable degree of medical certainty that the aggravation arose
primarily out of and in the course and scope of employment." Tenn. Code Ann. § 50-6-

                                            4
102(14)(A) (2016).

       In Miller v. Lowe's Home Centers, Inc., 2015 TN Wrk. Comp. App. Bd. LEXIS
40, at * 18 (Oct. 21, 20 15), the Appeals Board considered the issue of pre-existing
conditions and causation.         In Miller, the employee suffered from pre-existing
degenerative arthritis in his hip that was asymptomatic prior to his work-related fall, but
who required hip surgery due to the symptoms triggered by the fall. While his opinion
often appeared contrary during the course of litigation, the treating physician stated the
fall caused a "chronic exacerbation" of the employee's arthritis. Furthermore, the
employee's pain following the fall hastened the need for surgery and was the primary
indication for surgery. The trial court ordered medical benefits, and the Appeals Board
upheld the trial court's decision.

        In this matter, Dr. Shibayama's opm10n regarding causation is much less
equivocal than that of the treating physician in Miller. He clearly states that, given Ms.
Dohve's undisputed lack of symptoms prior to the incident and the immediate onset of
severe pain, numbness, and weakness necessitating medical care afterwards, the work
incident ofNovember 15, 2015, was the primary cause of her symptoms and her need for
surgery. The Court finds that Dr. Shibayama's opinion, considered alone, meets the
definition of an "accidental injury" as defined by statute and clarified in Miller. !d.

       However, unlike Miller, there is a contrary medical opinion to consider in this
matter. Dr. Christopher Kauffman submitted that lifting a toddler one time was not the
primary cause of Ms. Dohve's need for surgery, even if she were asymptomatic before
the incident. Thus, the Court must weigh the testimony in order to determine which
physician's opinion to credit. See Sanker v. Nacarato Trucks, Inc., 2016 TN Wrk. Comp.
App. Bd. LEXIS 27, at *12 (July 6, 2016).

       First, it is undisputed that Dr. Shibayama was Ms. Dohve's authorized treating
physician while Dr. Kauffman was asked by FUMC's carrier to provide a second opinion
as to causation. Therefore, Dr. Shibayama's causation opinion is entitled to a
presumption of correctness while Dr. Kauffman's opinion is not. See Tenn. Code Ann. §
50-6-102(14)(E) (2016).

       Furthermore, Dr. Shibayama saw Ms. Dohve on multiple occasions and noted the
progression of her symptoms, particularly the loss of strength in her right arm. Ms.
Dohve and her husband, whom the Court finds to be credible witnesses, confirmed she
continues to have serious issues with weakness in her upper extremities. Dr. Kauffman,
on the other hand, stated he did not note any loss of strength in Ms. Dohve's right arm
during his examination.

       With regard to Dr. Kauffman's exam, the Court finds it was cursory at best, given
the testimony of the Dohves that he did not even do a number of tests he claimed to

                                            5
perform in his report and at his deposition. On this issue, the Court finds the Dohves to
be more credible than Dr. Kauffman. Finally, the Court is skeptical of Dr. Kauffman's
attempt to discount the fact that Ms. Dohve' s onset of symptoms caused the need for
surgery by stating he would consider doing a three-level fusion even if the party were
asymptomatic. The Court finds Dr. Shibayama's statement that you "can't make the
asymptomatic patient better" to be a more compelling position.

       Accordingly, the Court accredits Dr. Shibayama's opinion regarding causation and
finds Dr. Kauffman's opinion, standing alone, is insufficient to overcome the
presumption of correctness afforded Dr. Shibayama. See Tenn. Code Ann. § 50-6-
102(14)(E) (2016). Thus, the Court holds Ms. Dohve is likely to establish at a
Compensation Hearing that the need for her cervical fusion primarily arose out of her
November 17, 2015 work injury and is thus compensable under the law. Because Dr.
Shibayama was Ms. Dohve's authorized physician, his treatment is presumed reasonable
and necessary, and FUMC shall pay the expenses incurred in accordance with the law.
Furthermore, as stipulated by the parties upon a finding of compensability, FUMC shall
pay temporary total disability benefits from August 24, 2016, through the date Ms. Dohve
reaches maximum medical improvement or is able to return to employment.

 IT IS, THEREFORE, ORDERED as follows:

 1. FUMC shall pay for the treatment provided by Dr. Shibayama for Ms. Dohve's
 work-related injury of November 17, 2015, including but not limited to the cervical
 fusion in accordance with Workers' Compensation Law, and shall authorized Dr.
 Shibayama to provide any further reasonable and necessary medical care for treatment
 of her injury.

 2. As stipulated by the parties upon a finding of compensability, FUMC shall pay
 Ms. Dohve temporary total disability benefits from August 24, 20 16, through the date
 Ms. Dohve reaches maximum medical improvement or is able to return to employment.

 3. This matter is set for a Scheduling Hearing/Status Conference on April 18, 2017,
 at 9:30 a.m. C.T. The parties must call 615-253-0010 or toll-free at 866-689-9049 to
 participate in the Hearing. Failure to call in may result in a determination of the issues
 without your further participation.

ENTERED THIS THE 2nd DAY OF MARCH, 2017.



                            ~-u-d-ge                         _____________
                                  Court of Workers' Compensation Claims


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                                        APPENDIX
Exhibits:

     1.      First Report of Injury
     2.      Affidavit of Lisa Dohve
     3.      Records of Physician's Medical Care
     4.      Wage Statement
     5.      Deposition of Dr. Juris Shibayama with attached exhibits
     6.      Medical records of Tennessee Orthopedic Alliance
     7.      Deposition of Dr. Christopher Kauffman with attached exhibits
     8.      DHS Childcare Provider's Medical Report

Technical Record:

1.        Petition for Benefit Determination
2.        Dispute Certification Notice
3.        Request for Expedited Hearing
4.        FUMC's Witness and Exhibit List
5.        FUMC's Pre-Hearing Statement
6.        Ms. Dohve's Witness and Exhibit List
7.        Ms. Dohve's Pre-Hearing Statement

                              CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Order was sent to the following
recipients by the following methods of service on this the 2nd day of March, 2017.

 Name                      Certified     Via        Via    Service sent to:
                            Mail         Fax       Email
Jill Draughon                                       X      jdraughon@hughesandcoleman.com
Michael Jones                                       X      mjones@wimberlylawson.com




                                           enny S r. m, Clerk of Court
                                          Court o · orkers' Compensation Claims
                                          WC.CourtClerk@tn.gov




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