                                                                                  FILED
                                                                                Mar 03, 2020
                                                                                02:32 PM(ET)
                                                                             TENNESSEE COURT OF
                                                                            WORKERS' COMPENSATION
                                                                                   CLAIMS




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

Kimberly Parrott,                            )   Docket No. 2019-01-0603
           Employee,                         )
v.                                           )
Grace Healthcare, LLC,                       )   State File No. 75425-2018
            Employer,                        )
And                                          )
United Wisconsin Ins. Co.,                   )   Judge Audrey Headrick
            Carrier.                         )



                           EXPEDITED HEARING ORDER
                            (DECISION ON THE RECORD)


       This case came before the Court on Ms. Parrott's Request for an Expedited
Hearing on the record. Ms. Parrott asked the Court to order Grace Healthcare to
authorize the back surgery recommended by Dr. Jay Jolley. For the reasons below, the
Court orders Grace Healthcare to provide the surgery.

                                    History of Claim

       The essential facts of this case are undisputed. Ms. Parrott injured her low back at
work on November 9, 2018, when she slipped on butter and fell. Her initial panel-
selected physician, Dr. Barry Vaughn, determined that Ms. Parrott was not a surgical
candidate. He concluded that her significant degenerative changes predated the injury.
Dr. Vaughn diagnosed Ms. Parrott with a work-related back sprain, recommended
physical therapy, and offered no other treatment options. Ms. Parrott's unrebutted
testimony by affidavit confirmed that Grace Healthcare then provided another panel to
take over her care, and she selected Dr. Jay Jolley. He recommended back surgery after
conservative treatment failed.
        Grace Healthcare submitted the surgical recommendation for utilization review
(UR), and the reviewing physician found the procedure not medically necessary. 1
Initially, the reviewing physician based his determination on the fact that the medical
records submitted did not contain Ms. Parrott's lumbar MRI scan. After receiving the
MRI scan, the reviewing physician used the Official Disability Guidelines (ODG) and
found the surgery not medically necessary. The Bureau's assistant medical director
upheld the UR denial because the request did not satisfy the ODG.

       Dr. Jolley testified by affidavit regarding the recommended surgery. He stated
that his "request for surgery falls within the treatment guidelines and is absolutely
medically necessary." Dr. Jolley also gave his opinion that Ms. Parrott's fall "contributed
to more than fifty percent (50%) in causing [her] disablement and the need for [back
surgery]." Dr. Jolley additionally said that Ms. Parrott will need pain management in the
future and will be unable to return to work at full capacity without the surgery.

                              Findings of Fact and Conclusions of Law

       Ms. Parrott must present sufficient evidence demonstrating she is likely to prevail
at a hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1) (2019). The Court
holds she did.

       The sole issue is whether Ms. Parrott is entitled to the recommended surgery. The
Workers' Compensation Law provides that Grace Healthcare must provide Ms. Parrott
with medical and surgical treatment ordered by Dr. Jolley, the authorized treating
physician, if it is reasonably necessary for the work-injury. Tenn. Code Ann. § 50-6-
204(a)(l)(A). Likewise, any treatment recommended by Dr. Jolley "shall be presumed to
be necessary for treatment of the injured employee." 2 ld. at§ 50-6-204(a)(3)(H).

       To resolve this issue, the Court must determine if Grace Healthcare rebutted the
presumption of medical necessity attached to Dr. Jolley's recommendation. Because Dr.
Jolley recommended surgery for Ms. Parrott's back, the law presumes that the surgical
treatment is medically necessary. This presumption is rebuttable by a preponderance of
the evidence. 3 Margan v. Macy's, 2016 TN Wrk. Comp. App. Bd. LEXIS 5, at *14 (Mar.
12, 2015). After reviewing the evidence, the Court holds it did not.


1
    The reviewing physician is board-certified in orthopedic surgery.
2
  Tennessee Code Annotated 50-6-204(a)(3)(H) provides a presumption of medical necessity for "any
treatment recommended by a physician or chiropractor selected [from a panel] or by referral, if
applicable."
3
  Dr. Jolley stated his "request for surgery falls within the treatment guidelines[.]" Aside from this
general statement, nothing indicated that Dr. Jolley's surgical recommendation explicitly follows or is


                                                       2
       Despite the presumption of medical necessity, the Workers' Compensation Law
provides a UR system to consider any treatment recommended for the injured worker.
Tenn. Code Ann. § 50-6-124.           UR provides an "evaluation of the necessity,
appropriateness, efficiency and quality of medical services ... provided to an injured or
disabled employee based upon medically accepted standards and an objective evaluation
of the medical services provided[.]" Tenn. Comp. R. & Regs. 0800-02-06-.01(20) (June
20 17). This is done with a record review by an "advisory medical practitioner" to
determine whether the proposed procedure is medically necessary. !d. at 0800-02-06-.03.

      Grace Healthcare submitted Dr. Jolley's surgical recommendation to UR. The
reviewing physician applied the guidelines and determined that the surgery was not
medically necessary, and the assistant medical director upheld the denial.

        These three physician decisions present the Court with conflicting medical
opinions about the reasonableness and necessity of the proposed surgery. A trial court
has the discretion to choose which expert to accredit when there is a conflict of expert
opinions. Brees v. Escape Day Spa & Salon, 2015 TN Wrk. Comp. App. Bd. LEXIS 5,
at *14 (Mar. 12, 2015). In evaluating conflicting expert testimony, a trial court may
consider, among other things, "the qualifications of the experts, the circumstances of their
examination, the information available to them, and the evaluation of the importance of
that information through other experts." ld. Further, it is reasonable to conclude that the
physician "having the greater contact with [the injured worker] would have the advantage
and opportunity to provide a more in-depth opinion, if not a more accurate one." Orman
v. Williams Sonoma, Inc., 803 S.W.2d 672, 677 (Tenn. 1991).

       Considering the various opinions, Dr. Jolley treated Ms. Parrott conservatively for
her back injury and relied upon his observations and findings to conclude that she needed
surgery. The reviewing physician, on the other hand, performed a one-time record
review and relied upon the treatment guidelines in denying the recommendation. After
learning of the UR denial, Dr. Jolley stood by his recommendation and explained that the
surgery is medically necessary to return Ms. Parrott to work.

       The Court has "authority to assess the validity of the utilization review reports and
determine the relative weight to be given those physicians' opinions as well as other
expert medical opinions." Venable v. Superior Essex, Inc., 2016 TN Wrk. Comp. App.
Bd. LEXIS 56, at *9 (Nov. 2, 2016). After considering the conflicting medical opinions,
the Court finds that the reviewing physician's opinion is insufficient to overcome the
presumption of correctness afforded Dr. Jolley's opinion. Therefore, the Court holds Ms.



reasonably derived from the ODG. Therefore, the presumption of medical necessity rebuttable by clear
and convincing evidence is inapplicable. See Tenn. Code Ann. § 50-6-124(h).


                                                 3
Parrott is likely to prevail at a hearing on the merits in proving that she is entitled to the
surgery.

IT IS, THEREFORE, ORDERED as follows:

   1. Grace Healthcare shall provide Ms. Parrott additional medical treatment for her
      back injury with Dr. Jolley, including the recommended surgery, under Tennessee
      Code Annotated section 50-6-204.

   2. This case is set for a Status Hearing on Tuesday, May 5, 2020, at 10:00 a.m.
      Eastern Time. The parties must call (423) 634-0164 or toll-free at (855) 383-
      0001 to participate. Failure to call might result in a determination of the issues
      without the party's participation.

   3. 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 Employer or Carrier 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 noncompliance.

   4. For questions regarding compliance, please contact the Workers' Compensation
      Compliance Unit via email at WCC01npliance.Program@tn.gov.

ENTERED March 3, 2020.




                                           JUDGE    A A.       HEADRICK
                                           Court of Workers' Compensation Claims




                                              4
                                     APPENDIX

Exhibits:
   1. Ms. Parrott's Records Index:
            a. Affidavit of Kimberly Parrott
            b. Affidavit of Jay Jolley, M.D.
            c. Letter to Dr. Jolley from Adjuster
            d. Medical records of Dr. Jolley
   2. Index of Exhibits
            a. CHI Memorial medical records
            b. Dr. Vaughn's medical records
            c. Dr. Vaughn's medical questionnaire
            d. Dr. Jolley's medical records
            e. First UR
            f. Second UR
            g. URAppeal
            h. Imaging records
            i. Dr. Jolley's invoice and notes
      3. Affidavit of Ms. Parrott, February 26, 2020


Technical record:
      1. Petition for Benefit Determination
      2. Dispute Certification Notice
      3. Request for Expedited Hearing
      4. Employee's Brief Supporting Petition for Benefit Determination
      5. Docketing Notice
      6. Employer's Brief in Response to Employee's Brief
      7. Employee's Rebuttal Position Statement




                                           5
                            CERTIFICATE OF SERVICE

       I certify that a copy of this Order was sent as indicated on March 3, 2020.

        Name                Certified     Email     Service sent to:
                             Mail
Tim Henshaw,                                X       tim@mcmahanlawfirm.com
Employee Attorney
Garret Franklyn,                            X       gpfranklyn@mijs.com
Employer Attorney




                                          PENNY
                                                ~~~    UM, COURT CLERK
                                                                               4)1~~~
                                          wc.courtclerk@tn.gov




                                             6
                           Expedited Hearing Order RlgbttoAppea l:

     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:

    I. Complete the enclosed form entitled: "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 lndigency 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: (l) 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.
