                                                                                     FILED
                                                                                   Feb 01, 2019
                                                                                   09:16 AM(CT)
                                                                                 TENNESSEE COURT OF
                                                                                WORKERS' COMPENSATION
                                                                                       CLAIMS




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

 Kenneth Daron,                            )       Docket No.: 2017-06-1981
            Employee,                      )
 v.                                        )       State File No.: 31117-2017
                                           )
 Hickman County Government                 )
           Employer,                       )
 And                                       )
                                           )
 TN Risk Management Trust                  )
            Self-Insured Pool.             )       Judge Robert Durham


      EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS


       This case came before the Court for an Expedited Hearing on January 17, 20 19.
The issue is whether the right-knee injury Mr. Daron sustained entitles him to treatment
as recommended by Christopher Stark, M.D., an unauthorized physician. The Court
holds that Mr. Daron is likely to establish that Hickman County is required to pay for Dr.
Stark's recommended treatment.

                                    History of Claim

       On May 1, 2017, Mr. Daron injured his right knee when he "mis-stepped" while
going up steps to a home where he was quieting a domestic dispute in his capacity as a
patrol officer for the Hickman County Sheriffs Department. Mr. Daron testified that he
never experienced problems with his right knee or sought medical treatment for it before
his accident. Hickman County provided a panel of physicians from which he chose
orthopedist Philip Karpos for treatment.

        Dr. Karpos noted Mr. Daron was sixty-three and morbidly obese. He ordered x-
rays that revealed right-knee arthritis. He diagnosed an aggravation of pre-existing
arthritis and/or a medial meniscal tear. Mr. Daron initially responded to conservative
care, but his symptoms recurred in September. He returned to Dr. Karpos, who ordered

                                               1
an MRI. It revealed a meniscal tear as well as areas of full thickness chondral loss
evidencing advanced arthritis.

       On October 11, Dr. Karpos informed Mr. Daron that he did not believe his arthritis
was work-related. Further, he could not say whether the meniscus tear was work-related,
due to Mr. Daron's advanced arthritis. Because of the arthritis, he did not believe that
arthroscopic debridement of the meniscus would be helpful, and he told Mr. Daron that
he might require a knee replacement in the future. He gave him an injection to ease the
symptoms and indicated he would likely require intermittent injections. He also
recommended Mr. Daron lose weight. This was Mr. Daron's last visit to Dr. Karpos.

       On January 30, 2018, Mr. Daron sought an opinion with orthopedist Chris Stark.
He testified he did so because Hickman County denied his claim upon receiving Dr.
Karpos' report. Based on Mr. Daron's history that he had "absolutely no pain" in his
right knee before the incident, Dr. Stark believed he sustained a meniscal and chondral
injury on May 1, and that "greater than 50% of his symptoms" were related to this work
injury. Dr. Stark recommended a partial knee replacement rather than a meniscectomy.

       The parties took the depositions of Drs. Karpos and Stark. On direct examination,
Dr. Karpos testified that it was impossible to say whether Mr. Daron's work-related
injury caused his meniscal tear based on x-rays and MRI results alone. However, given
that Mr. Daron did not complain of knee pain before the incident, "one can reasonably
make the case" that it might have been related to his work injury. Regardless, he
believed that a meniscectomy would not relieve Mr. Daron's symptoms in light of the
extensive degenerative changes in the knee.

        On cross, Dr. Karpos testified that he could not say whether Mr. Daron's work
injury caused a "progression" of his degenerative knee condition. When questioned
further, he agreed that the work accident described by Mr. Daron "could cause" meniscal
tearing and that it "certainly could have been" a primary cause of an aggravation to the
right-knee degenerative process. He also agreed that, without the accident, he "would not
be sitting here today talking about a potential total knee replacement." However, he
stated that, even if the accident had not occurred, Mr. Daron would have eventually
suffered from knee pain given the arthritis' severity.

       He also maintained that a partial knee replacement would be "doomed to fail"
because of Mr. Daron's activity level and obesity as well as the extent of his arthritic
condition. If conservative treatment failed, his recommendation would be a total knee
replacement, although Mr. Daron would have to lose weight before the surgery.

      In his deposition, Dr. Stark testified that, to his knowledge, Mr. Daron did not
have a history of right-knee problems before his "significant" work injury. The MRI
                                           2
revealed osteoarthritis, a medial meniscus tear, and an acute chondral injury to the medial
femoral condyle. The chondral injury was evidenced by significant swelling on the bone
near the cartilage defect, which was consistent with a traumatic injury. He stated that the
MRI results were consistent with the traumatic injury described by Mr. Daron. When
asked whether Mr. Daron's knee injury was more likely than not primarily related to his
work accident, Dr. Stark agreed that, based on his history and diagnostic film, the
condition appears to be related to accident.

       As for treatment, Dr. Stark indicated that a partial knee replacement would be best,
given that Mr. Daron underwent conservative treatment without significant improvement.
However, he conceded that a total knee replacement would also be a viable option. On
cross, he admitted that he presumed Mr. Daron had some pre-existing arthritis, but he
could not say how much, since there was no diagnostic film before the injury.
Nevertheless, the bone swelling around the femoral condyle defect was consistent with a
"direct blow" as Mr. Daron described.

                        Findings of Fact and Conclusions of Law

      Mr. Daron need not prove every element of his claim by a preponderance of the
evidence to obtain relief at an expedited hearing. Instead, he must present sufficient
evidence that he is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-
6-239(d)(1) (2018); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

        The Court must first address which doctor is the authorized treating physician,
since the "treating" doctor's opinion on causation is presumed correct unless rebutted by
a preponderance of the evidence. Tenn. Code Ann. § 50-6-102(14)(E). This section
states that the presumption of correctness as to causation shall be attributed to the opinion
of the doctor "selected by the employee from the employer's designated panel of
physicians[.]" Here, that doctor was unquestionably Dr. Karpos, whether or not Hickman
County later denied Mr. Daron's claim. Thus, Mr. Daron must rebut Dr. Karpos'
causation opinion by a preponderance of the evidence.

       In assessing causation, Dr. Karpos said that he could not state within a reasonable
degree of medical certainty that Mr. Daron's accident caused his meniscal tear, although
since he was asymptomatic before, "one can reasonably make the case" for causation.
Likewise, while he felt that the accident did not cause Mr. Daron's arthritis, Dr. Karpos
believed that it "certainly could have been" a primary cause of an aggravation of the
knee's degenerative condition. Further, the reason why Mr. Daron possibly required
surgical intervention at this time was due to the accident making his condition
symptomatic.


                                             3
       On the other hand, Dr. Stark's testimony and medical records establish that he
believed, due to Mr. Daron's pre-accident lack of symptoms, that his current problems
were more than fifty percent related to his accident. In addition, this opinion was
bolstered by the fact that the MRI showed bone swelling around the femoral condyle,
which was consistent with an acute, traumatic injury like the one described by Mr. Daron.

       Thus, Dr. Karpos never testified that Mr. Daron's meniscal tear and aggravation of
his arthritic symptoms were not work-related. He testified that they could be, but he
could not state they were within a reasonable degree of medical certainty. Dr. Stark gave
his opinion that Mr. Daron's current knee conditions were more than fifty percent related
to his accident, and he justified his opinion by Mr. Daron's lack of pre-accident
symptoms as well as the MRI that corroborated an acute injury.

       This case is very similar to Vercek v. YRC, Inc., 2017 TN Wrk Comp. App. Bd.
LEXIS 39, at *7 (June 6, 2017), although the injury compounding the degenerative
condition was to the shoulder as opposed to the knee. In Vercek, the treating physician
could not say that the accident caused the degenerative condition, but he did state that it
exacerbated the shoulder's pathology and the employee's symptoms, previously silent,
were the result of the work-injury. Thus, he recommended a shoulder replacement. The
Appeals Board held that the doctor's testimony, when considered as a whole,
demonstrated that the employee suffered a "compensable aggravation of a pre-existing
condition" that created the need for a shoulder replacement. !d. at *9.

       Here, the Court holds that Dr. Stark's opinion, in its totality, is sufficient to
overcome any presumption attached to Dr. Karpos' opinion that Mr. Daron's work injury
"possibly" caused and/or exacerbated Mr. Daron's knee condition. Further, the Court
finds that he is likely to prove at trial that he suffered a "compensable aggravation of a
pre-existing condition" due to his work injury.

        The next question is whether Dr. Karpos or Dr. Stark should be authorized to treat
the injury. No one disputed that Mr. Daron sought treatment with Dr. Stark without
Hickman County's consent. However, he testified he did so only after Hickman County
denied his claim following its receipt of Dr. Karpos' causation opinion. Hickman County
did not produce any evidence to the contrary. Indeed, at the hearing, Hickman County
continued to deny it had a responsibility to provide treatment for Mr. Daron's meniscal
tear or arthritis.

      Whether an employee is justified in obtaining unauthorized medical treatment and
then requiring reimbursement for the cost of this treatment depends upon the
circumstances. Hackney v. Integrity Staffing Solutions, 2016 TN Wrk. Comp. App. Bd.
LEXIS 29, at *8-9 (July 22, 2016). Here, the Court finds that the circumstances justified
Mr. Daron's unauthorized treatment with Dr. Stark. Since Dr. Stark firmly established a
                                            4
doctor/patient relationship with Mr. Daron, the Court holds that he is authorized to
provide reasonable and necessary treatment for his right-knee injury, including the
meniscal tear and the aggravation of his pre-existing arthritic condition. 1

        Both Dr. Stark and Dr. Karpos testified that knee replacement surgery, whether
partial or total, was a reasonable option for treating Mr. Daron's knee condition. As the
treating physician, the law presumes the care recommended by Dr. Stark is reasonable
and necessary, and the employer is obligated to provide it. Tenn. Code Ann. § 50-6-
204(a)(1)(H); see also Clarendon v. Baptist Mem 'l Hosp., 796 S.W.2d 685, 691 (Tenn.
1990). Thus, the Court holds that Hickman County shall be obligated to pay for
treatment recommended by Dr. Stark.

IT IS, THEREFORE, ORDERED as follows:

    1. Hickman County shall pay for treatment recommended by Dr. Stark for Mr.
    Daron's work injury, including but not limited to a partial knee replacement.

    2. This matter is set for a Scheduling Hearing/Status Conference on March 29, 2019,
    at 2:00 p.m. C.T. The parties must call 615-253-0010 or toll-free at 855-689-9049 to
    participate. Failure to call in may result in a determination of the issues without your
    further 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
    Insurer 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 FEBRUARY 1, 2019.




1
  While Mr. Daron established by deposition testimony that the treatment Dr. Stark already provided was
reasonable and necessary for the work injury, he did not introduce the expenses into evidence. Thus, the
Court denies reimbursement for these expenses at this time.

                                                   5
                                        APPENDIX

Technical Record

   1.   Petition for Benefit Determination
   2.   Dispute Certification Notice
   3.   Request for Expedited Hearing
   4.   Employee's Witness and Exhibit List
   5.   Employer's Expedited Hearing Brief
   6.   Employee's Expedited Hearing Brief

Exhibits

   1.   Notice ofFiling Medical Records
   2.   Dr. Stark's deposition
   3.   Dr. Karpos' deposition
   4.   First Report of Injury
   5.   Accident Report
   6.   Second Accident Report
   7.   Choice of Physician Form


                            CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the Expedited Hearing Order was
sent to the following recipients by the following methods of service on February 1, 2019.

Name                     Certified       Via          Via     Service sent to:
                          Mail           Fax         Email
Julie Reasonover                                      X      Julie_@_reasonoverlaw .com
Teri Bernal                                           X      tbernal@chartwelllaw .com
                                                             mwhite@chartwelllaw .com


                                         ,/) )Juljk- /
                                     ~' Court Clerk
                                     Court of       ·" rkers' Compensation Claims




                                                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.
 .
ll                                                                                                                 .I




                                    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 am 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:

     $ _ _ _ _ _ _ ___

     8. 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 Camp.$              per month           beginning
             Other           $            per month           beginning



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

        Rent/House 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-1108 (REV 11/15)                                                                         RDA 11082
