     FILED
   Nov 20, 2018
   01:39 PM(CT)
 TENNESSEE COURT OF
WORKERS' COMPENSATION
       CLAIMS
March 15, Ms. Foster told Dr. Dalal of pain in her foot, neck, and shoulder. 1 X-rays of
those body parts proved negative. However, Dr. Dalal's primary concern was a possible
deep vein thrombosis (DVT) given Ms. Foster's complaints and his examination. Thus,
he recommended an ultrasound of the right leg.

        On March 22, Dr. Dalal noted the ultrasound was negative for DVT. But he also
recorded that Ms. Foster said her right ankle, hip, and knee were twisted when the cart
ran over her foot. An x-ray of the foot on that date revealed a :fracture of Ms. Foster's
right third toe. On March 28, Dr. Dalal responded to Frain's inquiry about the cause of
Ms. Foster's complaints in light of a report that Ms. Foster had fallen getting out of bed.
Dr. Dalal attributed all of Ms. Foster's problems to the December 30 incident despite the
fall by explaining that she suffered weakness in her foot since the work event and that led
to her fall at home.

       Ms. Foster returned to Dr. Dalal on May 31 and said she had seen another
orthopedist that provided her with an ankle brace. Further, Ms. Foster complained that
her right knee and hip had hurt since the incident but "nobody has paid attention" to those
body parts. On that date, Dr. Dalal found diminished motion of Ms. Foster's right knee
due to swelling and pain and said he was "convinced she had an injury to the right knee"
due to the incident. He requested Frain approve treatment.

        By June 7, Frain had approved treatment for the knee and Dr. Dalal found severe
tenderness in the lateral compartment. An x-ray revealed a lateral patella subluxation, or
tilt, which he said indicated a ligament tear. He recommended a CT scan which did not
show "hardware dysfunction." However, his clinical exam led him to believe a ligament
tear was causing knee instability. Specifically, his examination demonstrated Ms.
Foster's knee "came out a lot more than it should" when he pulled it toward the front
(anterior instability) and that her knee "gaped open a lot more than it should" when he
torqued it inward (medial instability). DL Dalal's continued findings of instability on
subsequent examinations prompted him to recommend the revision of Ms. Foster's knee
replacement. He stated to a reasonable degree of medical certainty that the need for
surgery arose primarily from the December 30 incident.

       Frain requested a medical record review by Dr. Riley Jones, an orthopedic
surgeon. In a January 8, 2018 report, Dr. Jones recounted Ms. Foster's treatment and
concluded her "injury was a contusion of the right foot and a sprain to the right lower leg
which was resolving when she injured herself at home .... "Namely, he attributed the
fractured toe and sprained ankle to her fall getting out of bed and those injuries had
"nothing to do with her original injury." Further, he said the records contained only
"intermittent" complaints of knee pain and the CT scan revealed no hardware

1
 Dr. Dalal clarified in his deposition that his initial note mistakenly listed the left extremity but that Ms.
Foster had complained of the right.
                                                      2
    dysfunction. Dr. Jones did not relate Ms. Foster's complaints to the December 30
    incident. Dr. Jones wrote this report before he examined Ms. Foster.

          On March 6, Dr. Jones performed a physical examination of Ms. Foster. She
   complained of pain in both knees but had no difficulty moving about the examination
   room. Dr. Jones said he could not "reproduce the laxity that Dr. Dalal had found" and
   there was no "opening" of the joint in either flexion or extension "under x-ray." He
   reviewed the December 30 x-rays taken at Methodist Hospital and said they showed
   "chronic" changes in the "patella button" placed during the knee replacement surgery.
   He believed placement of the patella button at an angle led to "grooving" of the patella
   bone, which in tum led to the patella shift noted by Dr. Dalal. He attributed no anatomic
   changes to the December 30 incident but requested a bone scan for completeness. After
   the scan revealed no abnormalities, he maintained his original opinion that the December
   30 incident did not cause Ms. Foster's complaints.

           Dr. Dalal "disagreed totally" with Dr. Jones's opinions. Specifically, he pointed to
   the "gross instability" of Ms. Foster's knee that he found on several visits, in addition to
   swelling and the tilted patella. Further, Ms. Foster told him "repeatedly" that her knee
   "bothers her" and that it "gives out." Dr. Dalal said "for some unknown reason" Dr. Jones
   did not "detect instability in the knee joint" and said surgery was unnecessary. He also
   noted Dr. Jones provided his initial causation opinion in a report generated before
   examining Ms. Foster. He testified Ms. Foster told him that she functioned without
   restriction at work and at home before the incident.

          Based on this evidence, Ms. Foster claimed entitlement to the recommended
   surgery. She did not testify but instead argued from the medical records. She noted Dr.
   Dalal's testimony that her need for surgery arose primarily out of the December 30
   incident and that he focused on the clinical findings of ligament instability as opposed to
   Dr. Jones's focus on the absence of hardware dysfunction. Also, she pointed to Frain's
   misplaced focus on her later fall rather than the direct cause, the December 30 incident.
   Finally, she argued Dr. Dalal' s opinion is presumed correct because he is the authorized
   physician and that Frain did not rebut it by a preponderance of the evidence.

           Frain countered that Dr. Jones had the benefit of reviewing all the medical
   records, including x-rays from Methodist Hospital. It argued Dr. Dalal did not see the
   hospital x-rays and was mistaken when he attributed any prosthetic dysfunction to the
   work incident. Frain asserted Dr. Dalal focused primarily on Ms. Foster's ankle and foot
   and when he found nothing to treat, then found a knee problem. Frain contended the
   delayed observation of a knee issue coupled with Dr. Jones's explanation of no objective
   findings attributable to the incident rebutted the presumption of correctness attached to
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                                  Findings of Fact and Conclusions of Law

              At this interlocutory proceeding, Ms. Foster must show she would likely prevail at
       a hearing on the merits regarding her surgery request. Tenn. Code Ann. § 50-6-239(d)(l)
       (2018). The Court holds she would.

              In so holding, the Court must determine whether a particular medical treatment is
       'made reasonably necessary' based on the proof presented at the time of proposed
       treatment. Limberakis v. Pro-Tech Security, 2017 TN Wrk. Comp. App. Bd. LEXIS 53
       at *5-6 (Sep. 12, 2017). Because the proof consists of two medical opinions, the Court
       must decide which one to accept. Sanker v. Nacarato Tntcks, Inc., 2016 TN Wrk. Comp.
       App. Bd. LEXIS 27, at *11-12 (July 6, 2016). In making that determination, the Court
       may consider the qualifications of the experts, the circumstances of their evaluation, the
       information available to them, and the evaluation of the importance of that information to
       other experts. It also might accept the expert opinion containing the more probable
       explanation. Ledford v. Mid-Georgia Courier, 2018 TN Wrk. Comp. App. Bd. LEXIS 28,
       at *7 (June 4, 2018). Dr. Dalal, as the authorized treating physician, is presumed correct
       subject to rebuttal by a preponderance of the evidence. See Tenn. Code Ann. § 50-6-
       102(14)(E).

              Regarding qualifications, the Court notes both Dr. Dalal and Dr. Jones are
       experienced orthopedic surgeons. They stand on equal footing.

               Regarding the circumstances of their evaluations, the Court accredits Dr. Dalal. As
       the treating physician he had more extensive contact with Ms. Foster, seeing her multiple
       times. Conversely, Dr. Jones saw Ms. Foster on one occasion, fourteen months after her
       injury, for evaluation only. Tennessee law considers it reasonable to conclude that the
       physician having greater contact with an injured employee has an advantage in providing
       a more in-depth opinion, if not a more accurate one. Bass v. Home Depot U.S.A., Inc.,
       2017 TN Wrk. Comp. App. Bd. LEXIS 36 at *14 (May 26, 2017).

                Regarding the information available to the experts, the Court again finds Dr. Dalal
       in a superior position. He saw Ms. Foster soon after her injury and routinely examined
       her over the course of many months. He chronicled Ms. Foster's pain complaints and
       explained how and why his focus moved towards her knee. He testified unequivocally
       that he detected joint laxity in the knee and his personal review of x-rays taken in his
       office revealed a tilted patella, two findings indicating that Ms. Foster suffered a ligament
       lilJUry.

             In rebuttal, Frain contended Dr. Jones had the benefit of all records for review and
- - -that- plaeed--him-in---a- superio1'--positon:-----T ue-Gowt-disagrees:--Dr:-J0nes.!.s--information- - - - -
     largely came from Dr. Dalal, the physician whom Frain claims he rebutted. Contrary to
     Frain's argument, the Court finds Dr. Dalal had superior information because of his

                                                    4
     extensive contact with Ms. Foster and he aiticulated his clinical findings more
     persuasively than Dr. Jones. Notably, Dr. Jones stated Ms. Foster's complaints were not
     related to the incident before he actually exainined her.

            Regarding the importance of information to other experts, the Court finds both
     physicians reviewed objective studies and arrived at different conclusions regai·ding their
     importance. Dr. Jones maintains any anatomic findings on the studies came from gradual
     degeneration unrelated to the incident while Dr. Dalal viewed the studies as suggesting
     ligament laxity. Under these circumstances, the Court finds the proof equal and subject to
     interpretation. The Court recognizes that it is not well-suited to make independent
     medical determinations without expert medical proof and relies only on the evidence
     presented. Thompson v. Comcast Corp., 2018 TN Wrk. Comp. App. Bd. LEXIS 1 at *31
     (Jan. 30, 2018).

             When weighing that evidence, the Court holds Dr. Dalal offered the more probable
     explanation for Ms. Foster's need for surgery. Before the incident, Ms. Foster worked
     regularly and functioned without restriction. She no longer does so. In Wallis v. Baptist
     Mem. Hosp., 2018 TN Wrk. Comp. App. Bd. LEXIS 29 (June 20, 2019), the employee
     worked without restriction until injuring his back One physician attributed the injury to
     the work and another did not. The Appeals Board stated that the physician who provided
     causation gave the more accurate opinion "when considered in conjunction with
     Employee's testimony." Id. at *20. Here, the Court finds Dr. Dalal provided the more
     probable explanation when considering his clinical findings in conjunction with Ms.
     Foster's history. The Court does not read medical evidence "in a vacuum" but considers
     it in conjunction with Ms. Foster's history of how the injury occurred and her subsequent
     condition. See Thomas v. Aetna Life and Cas. Co., 812 S.W.2d 278, 283 (Tenn. 1991).
     When so doing, the Court holds Dr. Dalal was correct and that Frain did not rebut his
     opinion by a preponderance of the evidence.

           Therefore, Frain must provide Ms. Foster all medical benefits made reasonably
     necessary by the injury, including the surgery recommended by Dr. Dalal. See Tenn.
     Code Ann. § 50-6-204(a)(l)(A).

           IT IS, THEREFORE, ORDERED as follows:

        1. Frain shall continue to provide Ms. Foster reasonable and necessary medical
           treatment under Tennessee Code Annotated section 50-6-204(a)(l)(A), including
           the surgery recommended by Dr. Dalal. He shall remain the authorized physician.

        2. This matter is set for a Status Hearing on Tuesday, January 29, 2019, at 10:00
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           to participate in the Hearing.


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   3. Unless interlocutory appeal of the Expedited Heating 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.

        ENTERED this the 20th day of ov




                                       APPENDIX

Exhibits:

   1. Deposition of Dr. Apurva Dalal
   2. Deposition of Dr. Riley Jones
   3. Collective Medical Records

Technical record:

   1.   Petition for Benefit Determination
   2.   Dispute Certification Notice
   3.   Request for Scheduling Hearing
   4.   Order Setting Expedited Hearing
   5.   Employee's Witness List
   6.   Employer's Pre-Hearing Brief




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                            CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of this Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 20th day
ofNovember, 2018.

                                               Email   Service sent to :

                                                X      ctaylor taylortoon.com
                                                       saraebarnett@spraginslaw.com
                                                X      h. s ra inslaw.com



                                        Penny Shrum, Court Clerk
                                        Court of Workers' Compensation Claims




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