                                                                                                 FILED
                                                                                               Jul 08, 2019
                                                                                              10:08 AM(ET)
                                                                                           TENNESSEE COURT OF
                                                                                          WORKERS' COMPENSATION
                                                                                                 CLAIMS




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

Charles Buckner,                                          )   Docket No.: 2018-01-0590
           Employee,                                      )
v.                                                        )
Ecolab Manufacturing, Inc.,                               )   State File No.: 25427-2017
           Employer,                                      )
And                                                       )
New Hampshire Ins. Co.,                                   )   Judge Thomas Wyatt
           Carrier.                                       )
                                                          )

               EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS


       On July 2, 2019, the Court conducted an Expedited Hearing to determine Charles
Buckner's entitlement to surgery as prescribed by his authorized physician but twice
denied following utilization reviews (URs). For the reasons below, the Court orders
authorization of the recommended surgery.

                                            History of Claim

       Mr. Buckner worked as a forklift operator for Ecolab, a contractor at the
Chattanooga Volkswagen plant. While lifting containers of parts over his head, he
experienced neck pain that ran down his arms. He reported the injury and received a
panel from Ecolab, from which he selected orthopedist Dr. Jason Eck for authorized
treatment.

       Dr. Eck performed C4-5 and C5-6 fusion surgery in June 2017. 1 Over the next
several months, Mr. Buckner consistently reported continuing neck pain with tingling,
numbness and pain radiating down both arms to his hands. 2 His authorized physicians


1
    Authorization for this surgery followed a UR denial reversed by the Bureau's Medical Director.
2
 Mr. Buckner testified that he presently has periodic symptoms in his right arm but more frequently
occurring left-arm and hand symptoms.

                                                      1
prescribed medication, trigger-point injections and physical therapy that did little to
alleviate his symptoms.

        Dr. Eck saw Mr. Buckner approximately ten times since the June 2017 surgery.
On each occasion, he noted Mr. Buckner's reports of neck pain radiating into his upper
extremities. In December 2017, Dr. Eck noted bilateral muscle weakness in Mr.
Buckner's arms and ordered aCT scan and EMG to investigate these symptoms. He
interpreted the CT to show "C5-6 mild to moderate bilateral foramina! narrowing." The
EMG revealed "C5-6 foramina! stenosis with facet arthritis," as well as severe bilateral
carpal tunnel syndrome and ulnar compression at the wrist. In May 2018, a pinprick test
revealed that Mr. Buckner exhibited decreased sensation in the left C6-C8 nerve-root
distribution. Dr. Eck documented that Mr. Buckner's symptoms have persisted to the
present.

      Mr. Buckner also saw Dr. Jerry Smith for pain management. In August 2017, Dr.
Smith found decreased sensation to light touch in Mr. Buckner's right fmgers and
decreased arm reflexes. In March 2018, Dr. Smith added a finding of numbness in the
left thumb. Dr. Smith's records continue to reflect these findings through the present.

        Concerning the surgical recommendation at issue, after reviewing the diagnostic
tests, Dr. Eck concluded that the indicated C5-C6 findings were causing Mr. Buckner's
persistent neck pain and radicular symptoms. He recommended surgery to address the
narrowing at the C5-C6 level. Ecolab submitted the recommendation to UR in June
2018.

        The UR physician assessed the need for surgery based solely on a records review.
Though he attempted to contact Dr. Eck, the UR physician never discussed the
recommendation with him. Despite the foramina! narrowing and Mr. Buckner's
continuing complaints following surgery and conservative treatment, the UR physician
recommended non-certification of the surgery under the Official Diagnostic Guidelines
(ODG) because the records allegedly contained "no documentation supportive of C6
nerve root impingement, either on imaging or evaluation." Dr. Eck appealed the UR
denial to the Bureau's Medical Directors, who upheld the denial without discussion, as is
their practice.

        Dr. Eck resubmitted the surgical recommendation in January 2019. Ecolab again
submitted the request to UR. This UR physician also assessed medical necessity based
solely on a records review. He likewise tried unsuccessfully to reach Dr. Eck to discuss
the matter. He recommended against certification because the records allegedly showed
"no evidence of focal motor or sensory deficit, EMG findings, 3 or reflex changes, and no

3
  Mr. Buckner underwent a second EMG in May 2018 that revealed "no evidence of carpal tunnel
syndrome, cervical radiculopathy, and peripheral neuropathy."

                                             2
clear evidence of radicular pain to support the medical necessity of the requested
surgery." The doctor further cited the lack of objective evidence of severe stenosis and
the absence of diagnostic testing ruling out non-cervical explanations for Mr. Buckner's
symptoms. The Bureau's Medical Directors again upheld the UR denial without
discussion or personally examining the employee, as appears to be their standard
procedure.

       Mr. Buckner requested that this Court order authorization of the recommended
surgery. He submitted Dr. Eck's affidavit, which stated his opinion that the surgery was
medically necessary under the ODG. He asserted that the post-fusion CT scan showed
"moderate nerve root impingement at levels which correlate with my physical
examinations ... and document sufficient objective fmdings to verify the persisting
radiculopathy[,] warranting the surgery ordered."

       Dr. Eck also concluded that the lack of EMG evidence of radiculopathy in the
most recent EMG did not mandate a decision against the recommended surgery. He
stated that "electrodiagnostic studies . . . have a certain amount of false negatives and
must be correlated with physical examination and assessment of the patient." Dr. Eck
stated that Mr. Buckner was "a compliant and legitimate patient" worthy of trust in his
reports of continuing symptoms. Finally, he stated that he did not recommend surgery
until conservative treatment proved insufficient to successfully manage Mr. Buckner's
continuing symptoms.

                              Findings of Fact and Conclusions of Law

       This dispute focuses on differing opinions of the authorized treating physician and
non-treating UR physicians (as affirmed by the Bureau~ s Medical Directors) regarding
the necessity of post-fusion CS-6 surgery. 4 In determining which opinion to adopt, the
Court considers Morgan v. Macy's, 2016 TN Wrk. Comp. App. Bd. LEXIS 39, at *17-18
(Aug. 31, 2016), which provides:

               [a] trial court can apply one of two potential presumptions to the
         issue of medical necessity in any given case. First, as codified in section
         50-6-204(a)(3)(H), treatment recommended by an authorized physician
         is presumed medically necessary[.]
               Second, in circumstances where an employee establishes by expert
         medical evidence that the recommended treatment "explicitly follows the
         treatment guidelines" or "is reasonably derived therefrom, including
         allowances for specific adjustments to treatment," then the burden shifts
4
  Ecolab argued during the Expedited Hearing that Mr. Buckner's injury is not compensable because he
complained of neck pain before he reported the current incident. However, it did not present evidence to
counter Dr. Eck's opinion that Mr. Buckner's neck injury arose primarily out of and in the course and
scope of employment.

                                                   3
        to the employer to rebut the presumption of medical necessity by clear
        and convincing evidence. See Tenn. Code Ann. §§ 50-6-124(h),
        204(a)(3)(I); Tenn. Comp. R. & Regs. 0800-02-25-.03(2).

       Here, the Court applies the presumption found in subsection 50-6-204(a)(3)(H),
which provides: "(a]ny treatment recommended by a physician . . . selected pursuant to
this subdivision (a)(3) ... shall be presumed to be medically necessary for treatment of
the injured employee." Because Mr. Buckner selected Dr. Eck from a panel, the Court
will order Ecolab to authorize the surgery unless the preponderance of the evidence
dictates otherwise. See Morgan, at * 17.

        In Creasman v. Waves, Inc., 2018 TN Wrk. Comp. App. Bd. LEXIS 13, at *8
(Apr. 16, 20 18), the Appeals Board cited the following considerations for weighing
conflicting expert opinions: "[T]he qualifications of the experts, the circumstances of
their examination, the information available to them, and the evaluation of the importance
of that information by other experts." Orman v. Williams Sonoma, Inc., 803 S.W.2d 672,
676 (Tenn. 1991).

       In comparing the opmwns admitted into evidence, the Court finds the most
pertinent point to be that Dr. Eck performed surgery on Mr. Buckner and has treated him
on multiple occasions over the past few years. This has given him an opportunity to
know Mr. Buckner on a personal level and become intimately involved with his care. In
contrast, the UR physicians the Bureau's Medical Directors did not see Mr. Buckner at
all, but they assessed medical necessity based solely on medical records. "It seems
reasonable that the physicians having greater contact with the Plaintiff would have the
advantage and opportunity to provide a more in-depth opinion, if not a more accurate
one." Orman, at 677.

        Dr. Eck's greater familiarity with Mr. Buckner and the fact that he followed Mr.
Buckner and made decisions regarding the non-surgical treatment of his post-fusion
symptoms provided him with a better platform than the UR physicians and Medical
Directors to provide a thorough assessment of Mr. Buckner's medical needs. Further, Dr.
Eck's ability to examine Mr. Buckner clinically gave him a better opportunity to correlate
Mr. Buckner's clinical presentation with diagnostic testing, as compared to the UR
physicians and Medical Directors, who performed only record reviews. In view of this
fact, the Court accepts Dr. Eck's explanation in support of the medical necessity of the
recommended surgery over the contrary opinions of the UR physicians and Medical
Directors.

      In making the above ruling, the Court holds that the negative findings in the May
2018 EMG do not preponderate against Dr. Eck's recommendation. The Court credits
Dr. Eck's statement that EMG studies sometimes show false negatives, and the doctor
may give the results reduced weight if, as here, his clinical experience with the patient

                                            4
and diagnostic testing, such as the post-fusion CT scan, otherwise support a diagnosis of
radiculopathy. Dr. Smith also examined Mr. Buckner monthly since the fusion surgery
and, like Dr. Eck, noted findings on examination of numbness and tingling in Mr.
Buckner's left fmgers both before and after the May 2018 EMG.

      In view of the above, the Court holds that the preponderance of the evidence
supports Dr. Eck's presumptively-correct opinion that the recommended surgery is
medically necessary to treat Mr. Buckner's injury. Therefore, the Court orders that
Ecolab promptly authorize the surgery.

       This matter is set for a Status Hearing at 10:00 a.m. Eastern Time on September
3, 2019. You must call toll-free at (855) 747-1721or (615) 741-306 to participate in the
Status Hearing. You must call on the scheduled date and time to participate. Failure to
call might result in a determination of the issues without your further participation.

       Unless interlocutory appeal of the 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 WCCompliance.Program@tn.gov or by calling (615) 253-
1471 or (615) 532-1309.

      It is ORDERED.

      ENTERED July 8, 2019.




                                  Judge Thomas Wyatt
                                  Court of Workers' Compensation Claims




                                            5
                                     APPENDIX

Technical Record: The Court considered the following:

   1.   Petition for Benefit Determination
   2.   Dispute Certification Notice
   3.   Request for Expedited Hearing
   4.   Objection to Decision on the Record
   5.   Order Setting In-Person Expedited Hearing
   6.   Notice of Expedited Hearing
   7.   Employee Brief
   8.   Employer Position Statement

Exhibits: The Court admitted the following into evidence:

           1. Records of Center for Sports Medicine/Drs. Shay Richardson and Jason
               Eck
           2. Records of Southeastern Spine/Dr. Jason Eck
           3. Records of Siskin Spine and Rehabilitation/Dr. Jerry Smith
           4. Affidavit of Charles Buckner
           5. Affidavit of Dr. Jason Eck
           6. Records of Center For Sports Medicine/Dr. Bradford Mitchell
           7. Report of March, 16, 20 17 CT of the cervical spine
           8. Physical therapy notes
           9. UR letter of Dr. Robin Simon
           10. Medical Director's order for fusion surgery
           11. Functional capacity examination
           12. Report of December 13, 2017 CT of the cervical spine
           13. UR letter of Dr. Luc Jasmin
           14.Medical Director's agreement with UR surgery
           15. UR letter of Dr. Avrom Simon
           16. UR letter of Dr. Peter Garcia
           17. Medical Director's agreement with UR surgery denial
           18.Report ofDecember 22,2017 EMG/NCV
           19.Report ofMay 24,2018 EMG/NCV




                                           6
                           CERTIFICATE OF SERVICE

     I certify that a copy of this Order was sent as indicated on July 8, 2019.

        Name              Certified   First       Email   Service sent to:
                           Mail       Class
                                      Mail
Tim Henshaw                                        X      tim@mcmahanlawfrrm.com
Employee                                                  rnissy@mcmahanlawfirm. com

Doug Dooley                                        X      Doug.dooley@leitnerfirm.com
Employer Attorney                                         Dawn. bailey@leitnerfirm.com
                                                          Kate.haley@.leitnerfim1.com




                                                    fk~~
                                              PENNY SHR       , COURT CLERK
                                                                                   IJ~
                                                  wc.courtclerk@tn.go




                                              7
                           Expedited Hearing Order Right to Appeal:

     If you disagree with this Expedited Hearing Order, you may appeal to the Workers'
Compensation Appeals Board. To appeal an expedited hearing order, you must:

   1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal," and file the
      form with the Clerk of the Court of Workers' Compensation Claims within seven
      business days of the date the expedited hearing order was filed. When filing the Notice
      of Appeal, you must serve a copy upon all parties.

   2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
      calendar days after filing of the Notice of Appeal. Payments can be made in-person at
      any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
      alternative, you may file an Affidavit of Indigency (form available on the Bureau's
      website or any Bureau office) seeking a waiver of the fee. You must file the fully-
      completed Affidavit of Indigency within ten calendar days of filing the Notice of
      Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
      result in dismissal of the appeal.

   3. You bear the responsibility of ensuring a complete record on appeal. You may request
      from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
      the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
      it with the court clerk within ten business days of the filing the Notice of
      Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
      parties within ten business days of the filing of the Notice of Appeal. The statement of
      the evidence must convey a complete and accurate account of the hearing. The Workers'
      Compensation Judge must approve the statement before the record is submitted to the
      Appeals Board. If the Appeals Board is called upon to review testimony or other proof
      concerning factual matters, the absence of a transcript or statement of the evidence can be
      a significant obstacle to meaningful appellate review.

   4. If you wish to file a position statement, you must file it with the court clerk within ten
      business days after the deadline to file a transcript or statement of the evidence. The
      party opposing the appeal may file a response with the court clerk within ten business
      days after you file your position statement. All position statements 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.




For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
                                            EXPEDITED HEARING NOTICE OF APPEAL
                                                 Tennessee Division of Workers' Compensation
                                                     www.tn .gov/ labor-wfd/wr.omp.shtml
                                                            wc.courtclerk@tn .gov
                                                               1-800-332-2667
                                                                                                      Docket#: _ _ _ _ _ __ _ __
                                                                                                      State File #/YR: _ _ _ _ _ __ _



                   Employee
                    v.


                   Employer
          Notice
          Notice is given that - -- - - -- - - -- -- - - -- - - - - - - - - - - - -
                                 [List name(s) of all appealing party(ies) on separate sheet if necessary]

          appeals the order(s) of the Court of Workers' Compensation Claims at - -- -- - - -- - -
                                                                 to the Workers' Compensation Appeals
           ~-~~~-~~~~-~~~-~~~
           Board. [List the date(s) the order(s) was filed in the court clerk's office]

          Judge_ _ ________________________________________

          Statement of the Issues
          Provide a short and plain statement ofthe issues on appeal or basis for relief on appeal :




          Additional Information
          Type of Case [Check the most appropriate item]

                           0   Temporary disability benefits
                           0   Medical benefits for current injury
                           0   Medical benefits under prior order issued by the Court
          list of Parties
          Appellant (Requesting Party): _____ __ _ _ At Hearing: DEmployer OEmployee
          Address:. ____________________________________________________________________
          Party's Phone:_ ___ _ _ _ __ ___________ Email :_ _ _ __ _ __ _ _ _ _ _ __

          Attorney's Name:_ _ __ __ _ __ __ _ _ __ _______ BPR#: ------- - - - - - -
          Attorney's Address: _ _ _ _ _ __ _ _ __ _ _ _ _ __ _ _ __                                     Phone :
          Attorney's City, State & Zip code:._ _____ ________________________________________
          Attorney's Email:_ __ _ _ _ _ _ _ _ __ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

                                       • Attach an additional sheet for each additional Appellant •

LB-1099    rev. 10/18                                     Page 1 of 2                                                       RDA 11082
Employee N a m e : - - - --   -   - - --   --     SF#: _ _ _ _ _ __      _   _ _ DOl : _ _ _ __        _




Appellee(s)
Appellee (Opposing Party)·...__ _ _ _ _ _ _ _ At Hearing: DEmployer DEmployee


Appellee's Address : _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ __ _ _ _ _ __ _ __
Appellee's Phone:,___ _ _ _ _ _ _ _ _ _ _ _ _ _ Email:_ _ _ _ _ _ _ _ _ _ __ __
Attorney's Name:,___ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ BPR#: - - - - - - - -

Attorney's Address~:- - - - - - - - - - - - - - - - - - - - Phone:-- -- - -- -
Attorney's City, State & Zip code: - - - -- - - - -- -- - -- - - - - - -- - - -
Attorney's E m a i l : . . : - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
                        * Attach an additional sheet for each additional Appellee *


CERTIFICATE OF SERVICE

I,                                           , certify that I have forwarded a true and exact copy of this
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules
of Board of Workers' Compensation Appeals on this the              day of          , 20_



[Signature of appellant or attorney for appellant]



LB-1099   rev. 10/18                              Page 2 of 2                              RDA 11082
                               Tennessee Bureau of Workers' Compensation
                                      220 French Landing Drive, 1-B
                                        Nashville, TN 37243-1002
                                              800-332-2667

                                          AFFIDAVIT OF INDIGENCY


I,                                                 , having been duly sworn according to law, make oath that
because of my poverty, I ain unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name:_ _ _ _ _ _ __ _ _ __                       2. Address: - - - - - - -- - - - -
3. Telephone Number: _ _ _ _ _ _ __ _                    4. Date of Birth: - - -- - - - - - - -

5. Names and Ages of All Dependents:

        - - -- - - - - -- - -- - - - Relationship; - - - - -- - - - - - -

        . ,. .-----==---- - - - - -- - - - - -           Relationship: ~---------....,.....-

       - - - - - -- - -- - - -- - - Relationship: - - -- -- - - -- - -

        - - - -- - - -- - -- - -- -· Relationship: - -- - -- - -- - - -

6. I am employed by: - - - - - - -- - - ---:----- - - - -- - - - -- - --
        My employer's address is: _ _ _ _ __ _ __ _ _ _ _ _ __ _ _ __;;:;;;_ _ __

        My employer's phone number is: - - -- - - - - - -- - -- - -- - - - --

7. My present monthly household income, after federal income and social security taxes are deducted, is:
$ _ _ __ _ _ __

B. I receive or expect to receive money from the following sources:

        AFDC            $            per month           beginning
        SSI             $            per month           beginning
        Retirement      $            per month           beginning
        Disability      $            per month           beginning
        Unemployment $               per month           beginning
        Worker's Comp.$              per month           beginning
       Other            $ ..         per month           beginning



LB-1108 (REV 11/15)                                                                                 RDA 11082
9. My expenses are:

        RenUHouse Payment $               per month     Medical/Dental $                per month

        Groceries       $           per month           Telephone       $               per month
        Electricity     $           per month           School Supplies $               per month
        Water           $           per month           Clothing        $               per month
        Gas             $           per month           Child Care      $               per month
        Transportation $            per month           Child Support   $               per month
        Car             $            per month
        Other           $           per month (describe:


10. Assets:

        Automobile              $ _ __ _ _
                                                        (FMV) - - --        ------
        Checking/Savings Acct. $ -------=-
        House                   $ _ _ _ __              (FMV) _ _ _ __       _   ..;;.;.;.;;;.._ __

        Other                   $ _ _ __                Describe:_ _ _ _ _ __ __ _ _


11. My debts are:

        Amount Owed                     To Whom




I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.




APPELLANT



Sworn and subscribed before me, a notary public, this

____ dayof ___________________ , 20____




NOTARY PUBLIC

My Commission Expires:__________ _ _




LB- 11 08 (REV 11115)                                                                                 RDA 11082
