                                                                                      FILED
                                                                                    Nov 21, 2019
                                                                                    02:02 PM(ET)
                                                                                 TENNESSEE COURT OF
                                                                                WORKERS' COMPENSATION
                                                                                       CLAIMS




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

MICHAEL L. LANE,                              )   Docket No. 2018-01-0313
         Employee,                            )
v.                                            )
VISKASE COMPANIES, INC,                       )   State File No. 30803-2018
          Employer,                           )
and                                           )
PROPERTY AND CASUALTY INS.                    )   Judge Thomas Wyatt
CO. OF HARTFORD,                              )
          Carrier.                            )


           EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS
                      (DECISION ON THE RECORD)


        On November 20, 2019, the Court considered Michael L. Lane's request for an on-
the-record decision of his claim for medical and temporary disability benefits based on
his alleged work-related ruptured wrist tendon. Viskase Companies, Inc. did not object to
Mr. Lane's request, and the Court determined it had sufficient evidence to decide the
issues on the record.

       The parties submitted two issues for decision: (1) whether Mr. Lane's injury arose
primarily out of and in the course and scope of employment, and (2) whether he
established entitlement to medical and temporary disability benefits. For the reasons
below, the Court holds that Mr. Lane satisfied his burden of proof but awards him
medical benefits only.

                                   History of the Case

       On January 13, 2018, Mr. Lane injured his left wrist when he pulled on a "stuck"
core-chuck latch with greater force than normal. Viskase sent him to Lakeway Urgent
Care Center without offering him a panel. A nurse practitioner at Lakeway noted Mr.
Lane's history of straining his left wrist when he "tried to pull a latch on the reel[.]" The
nurse ordered x-rays and wrote:

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       We discussed the fact that we believe the patient's current wrist pain is an
       exacerbation of his chronic arthritis. We explained that the recent changes
       in Tennessee Workers [sic] Comp law now require an injury to be more
       than 50% related to the incident at work to be eligible for compensability.
       Due to the mechanism of injury, pulling on a latch during routine work, we
       do not feel that this incident meets that criteria.

Dr. John Sanabria, Lakeway's owner, testified by deposition that he is personally
involved in all decisions made for workers' compensation patients at Lakeway, and he
agreed with the nurse's decision on diagnosis and causation.

       Viskase later offered Mr. Lane a panel from which he selected Lakeway. Mr.
Lane returned to Lakeway and saw Dr. Sanabria, who ordered an MRI. The MRI
revealed degenerative changes in the left wrist, including at the base of the left thumb,
and showed a full thickness tear of the extensor pollicis longus (EPL) tendon. Dr.
Sanabria described Mr. Lane's tendon rupture as "spontaneous" and stated it "seems
reasonable to conclude that the complete tendon rupture may have occurred while pulling
on the latch[.]" But he also wrote:

       More than likely, the extensive osteophyte formation (bony spurring) at the
       base of the thumb frayed the tendon over time and weakened it to the point
       where it finally ruptured. In my medical opinion, it would be unreasonable
       to conclude that a sudden complete rupture of the [EPL] in an otherwise
       healthy wrist could occur from "pulling a latch."

       Dr. Sanabria testified on causation that, under the "recent changes in TN Workers'
Comp Law," Mr. Lane's injury was not compensable because he "has severe chronic
pathology in the wrist which easily accounts for greater than 51% of causation for the
condition." Despite his tom tendon, Dr. Sanabria released Mr. Lane as "[fit] for duty
without restrictions" and suggested he see his private physician for an orthopedic referral.
Viskase denied Mr. Lane's claim based on Dr. Sanabria's opinion.

       Mr. Lane saw an orthopedist on February 15, following Dr. Sanabria's advice.
This physician noted that Mr. Lane "was at work when he was pulling on something; it
would not open, he had to pull more forcefully and he then felt a pop in his left wrist."
He referred Mr. Lane to orthopedist Dr. Robert Ivey for a surgical consultation.

       Mr. Lane saw Dr. Ivey on March 1. Dr. Ivey recorded Mr. Lane's history of
"pulling on a heavy core chuck latch and felt a pop in his wrist." He further noted Mr.
Lane's complaint of not being able to straighten his left thumb since the injury. Dr. Ivey
offered the following causation opinion in his treatment notes: "I feel that he had a
traumatic rupture of his [EPL] tendon. This a work compensable condition, which arose

                                             2
directly out of the course of his employment. He also has non work compensable thumb
       . "
arthritIS.

       Dr. Ivey recommended surgery, which he performed on March 22. In surgery, Dr.
Ivey confirmed the tendon rupture shown on MRl and repaired it. Mr. Lane and a private
health carrier paid Dr. Ivey's charges, including for therapy ordered by Dr. Ivey.

        Dr. Ivey's deposition testimony confirmed the causation opinion in his notes. He
stated "[the ruptured tendon] was a work compensable condition that occurred when he
was pulling on that heavy chuck latch." Later in the deposition, Dr. Ivey considered Dr.
Sanabria's opinion that the pre-existing arthritis in Mr. Lane's thumb frayed the tendon in
question and represented more than 50% of the causation of the ruptured tendon. Dr.
Ivey disagreed with that opinion because the ruptured tendon in Mr. Lane's left wrist is
"in a different [anatomical] zip code from the thumb arthritis." Dr. Ivey confirmed it was
his opinion "that within a reasonable degree of medical certainty the cause of the tendon
rupture over 50 percent actual predominant efficient cause was pulling of the chuck
latch[.]"

       In his deposition, Dr. Sanabria testified that Dr. Ivey was one of the best hand and
wrist surgeons in the area and had a "perfect" reputation in the medical community. He
stated that he often referred patients to Dr. Ivey for surgical treatment. However, he
disagreed with Dr. Ivey's statement that the tendon rupture was not in the same "zip
code" as the arthritis at the base of Mr. Lane's thumb. Dr. Sanabria cited MRl findings in
support of his opinion that the tendon rupture occurred in an area adjacent to the arthritis
and osteophytes at the base of Mr. Lane's wrist. Dr. Sanabria also confirmed his
previous opinion that the primary cause of Mr. Lane's ruptured tendon was the
osteophytes from pre-existing, non-work-related arthritis, which frayed the tendon over
time and made it more susceptible to rupture. He stated that a normal, healthy tendon
would not generally rupture under the pressure of simply opening a latch.

        Mr. Lane missed work from the injury date until Dr. Ivey released him with
restrictions on July 31. Dr. Ivey's records indicate that Mr. Lane's wrist was placed in a
cast; Mr. Lane needed to keep his wrist elevated; he should undergo therapy; and, over
the course of time, Mr. Lane should advance to more activity as tolerated. Dr. Ivey's
June 18 note indicated that Mr. Lane stated he did not feel he could resume his regular
job due to his injury, which Dr. Ivey did not confirm or deny. None of the records
submitted to the Court includes documentation that Dr. Ivey or any other physician took
Mr. Lane off work due to his work injury.

      Regarding medical benefits, Dr. Ivey testified that Mr. Lane's ruptured tendon
would not have healed on its own, and thus surgery was necessary to treat the condition.
He further testified that the bills he charged for treating Mr. Ivey were "reasonable
expenses for this treatment protocol." Mr. Lane submitted two billing records from Dr.

                                             3
Ivey's practice documenting charges, insurance payments, patient payments, and
adjustments relating to the treatment of his ruptured tendon.

                           Findings of Fact and Conclusions of Law

        At this Expedited Hearing, Mr. Lane must present sufficient evidence that he is
likely to prevail at a hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(1) (2019).
Specifically, he must establish that his injury arose primarily out of his employment and
caused either "disablement or the need for medical treatment." Tenn. Code Ann. § 50-6-
102( 14). An injury arises primarily out of the employment if the evidence shows to a
reasonable degree of medical certainty that the work contributed more than fifty percent
in causing the injury when considering all causes. "Shown to a reasonable degree of
medical certainty" means that it is more likely than not considering all causes. !d.

       The Court considered two conflicting medical opinions on the causation of Mr.
Lane's ruptured tendon. When confronted with conflicting opinions, the Court has
discretion to conclude that one contains the more probable explanation and should govern
the decision in the case. Ledford v. Mid-Georgia Courier, Inc., 2018 TN Wrk. Comp.
App. Bd. LEXIS 28, at *8 (June 4, 2018). In evaluating the opinions, the Court may
consider, among other things, the qualifications of the experts, the circumstances of their
evaluation, the information available to them, and the evaluation of the importance of that
information by other experts. Hollis v. Komyo Amer., 2019 TN Wrk. Comp. App. Bd.
LEXIS 4, at *11 (Jan. 22, 2019). The Court afforded Dr. Sanabria's causation opinion a
presumption of correctness since Mr. Lane selected him from a panel. Tenn. Code Ann.
§ 50-6-102(14)(E). This presumption is rebuttable by a preponderance of the evidence.
!d.

       After closely reviewing the testimony of Drs. Sanabria and Ivey, Mr. Lane's
affidavit, and the entire record, the Court holds that the preponderance of the evidence
sufficiently rebuts Dr. Sanabria's opinion that Mr. Lane's injury did not arise primarily
out of and in the course and scope of employment. Instead, the Court holds that Dr.
Ivey's causation opinion provides the more plausible explanation for Mr. Lane's ruptured
tendon.

      The Court considered the following in coming to the above conclusion:

       •   Mr. Lane's injury is orthopedic in nature and required surgery. Dr. Ivey is an
           orthopedic surgeon with a specialty in treating hand and wrist conditions. Dr.
           Sanabria limits his practice to non-surgical care of general medical conditions.
      •    Dr. Ivey saw Mr. Lane on more occasions than did Dr. Sanabria and visualized
           the location of Mr. Lane's tendon rupture in surgery. Dr. Sanabria relied on
           MRI findings made by another physician in testifying as to the location of the
           tendon rupture.

                                             4
        •   Dr. Sababria based his causation opinion on the assumption that Mr. Lane
            injured his wrist while performing the "routine" duty of opening a latch. The
            Court accepts as credible Mr. Lane's sworn testimony that his injury occurred
            when he had to pull the latch harder than normal because it was stuck. 1
        •   Drs. Sanabria and Ivey both agreed that Mr. Lane ruptured his tendon when he
            pulled on a latch. However, they disagreed as to the percentage of causation to
            assign the non-work-related arthritis at the base of Mr. Lane's thumb. The
            Court holds Dr. lvey's assessment that the arthritis constitutes less than 50% of
            the causative effect on the rupture of Mr. Lane's tendon represents the more
            plausible explanation. In support of this holding, the Court considered the fact
            that Mr. Lane successfully worked with arthritis at Viskase before he ruptured
            his tendon.

       In view of the above, the Court holds that Mr. Lane will likely prevail at trial in
establishing that his ruptured tendon arose primarily out of and in the course and scope of
employment.

       The Court additionally holds that Mr. Lane will likely prevail in proving his
entitlement to medical benefits. Dr. lvey testified that the ruptured tendon would not heal
without surgery, and his treatment protocol of surgery, examinations, and therapy
constituted reasonable and necessary treatment for Mr. Lane's work-related injury.

       The Court further holds that, because Viskase denied Mr. Lane's claim, he
reasonably sought treatment from Dr. lvey. In support, the Court notes that Dr. Sanabria
recommended orthopedic treatment of the ruptured tendon. Therefore, the Court orders
that Viskase authorize Dr. Ivey as authorized treating physician for ongoing treatment of
Mr. Lane's tendon injury. See McCord v. Advantage Human Resourcing, 2015 TN Wrk.
Comp. App. Bd. LEXIS 6, at *14 (Mar. 27, 20 15), holding "an employer who elects to
deny a claim runs the risk that it will be held responsible for medical benefits obtained
from a medical provider of the employee's choice." The Court also holds that Viskase
shall pay the charges of OrthoTennessee.

       As to temporary total disability benefits, Mr. Lane must show he is likely to prove:
(1) a disability from working as the result of a work injury; (2) a causal connection
between the injury and the inability to work; and (3) the duration of the period of
disability. See Shepherd v. Haren Const. Co., Inc., 2016 TN Wrk. Comp. App. Bd.
LEXIS 15, at *13 (Mar. 30, 2016). Here, Mr. Lane did not prove that a doctor took him
off work for his ruptured tendon. For that reason, the Court denies Mr. Lane's claim for
temporary disability benefits at this time.


1
 The physician whom Mr. Lane saw after Lakeway corroborated Mr. Lane's history that he pulled on the
latch harder than normal at the time of injury.

                                                 5
It is, therefore, ORDERED:

1. Viskase shall pay the charges for the treatment provided and ordered by Dr.
   Robert Ivey for Mr. Lane's ruptured left EPL tendon. Upon receipt of the
   billing records, Viskase shall promptly pay the charges as billed without
   reduction under the fee schedule so that OrthoTennessee may reimburse
   payments made by Mr. Lane and his private health carrier for the described
   charges.

2. Viskase shall authorize Dr. Ivey to provide ongoing care of Mr. Lane's tendon
   InJUry.

3. Mr. Lane's claim for temporary disability benefits is denied at this time.

4. Unless interlocutory appeal of this Expedited Hearing Order is filed,
   compliance with this Order must occur no later than seven business days from
   the date of entry of this Order as required by Tennessee Code Annotated
   section 50-6-239(d)(3). The Insurer or Self-Insured Employer must submit
   confirmation of compliance with this Order to the Bureau by email to
   WCCompliance.Program@tn.gov no later than the seventh business day after
   entry of this Order. Failure to submit the necessary confirmation within the
   period of compliance may result in a penalty assessment for non-compliance.
   For questions regarding compliance, please contact the Workers'
   Compensation         Compliance         Unit        VIa       email        at
   WCCompliance.Program@tn.gov.

5. The Court schedules a telephonic Status Conference at 10:00 a.m. Eastern
   Time on February 21, 2020. The parties shall call 855-747-1721 (toll-free) or
   615-741-3061 to participate in the hearing. A party's failure to call at the
   scheduled time might result in the Court making decisions, including
   scheduling decisions, without the absent party's participation.




                                      6
      ENTERED November 21, 2018.




                                                               I
                                   Judge Thomas Wyatt
                                   Court of Workers' Compensation Claims

                                   Appendix

Technical Record:

      1.    Petition for Benefit Determination
      2.    Dispute Certification Notice
      3.    Transfer Order
      4.    Request for Expedited Hearing-Decision on the Record
      5.    Employee's Position Statement
      6.    Docketing Notice-Decision on the Record

Exhibits:

      1.    Affidavit of Michael Lane
      2.    Transcript of the deposition of Dr. Robert Ivey
      3.    Transcript of the deposition ofDr. John Sanabria
      4.    Records of Lakeway Urgent Care/Dr. Sanabria
      5.    Records ofOrthoTennessee/Dr. Ivey
      6.    Form C42 Choice of Physicians
      7.    Notice ofDenial of Claim
      8.    Wage Statement




                                             7
                             CERTIFICATE OF SERVICE

       I certify that a copy of the Order was sent as indicated on November 21,2019.

Name                      Certified    First    Email    Service sent to:
                           Mail        Class
                                       Mail
Steven Williams,                                   X     la~crvol@gmail.com:swilliams
Employee's Attorney                                      lawoffice@gmail.com


Blair Cannon,                                      X     Blair.cannon@thehartford.com
Employer/Ins. Carrier's
Attorney




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                                          WC.CourtCierk@tn.gov




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