                                                                                              FILED
                                                                                            Jan 08, 2019
                                                                                           02:11 PM(ET)
                                                                                        TENNESSEE COURT OF
                                                                                       WORKERS' COMPENSATION
                                                                                              CLAIMS




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

John Vanveldhuizen,                                     )   Docket No.: 2018-01-0388
           Employee,                                    )
v.                                                      )
Crown Automotive Group, Inc.,                           )   State File No.: 79301-2017
          Employer,                                     )
And                                                     )
FFVA Mutual Ins. Co.,                                   )   Judge Thomas Wyatt
           Carrier.                                     )


     EXPEDITED HEARING ORDER FOR ADDITIONAL MEDICAL BENEFITS


       This matter came before the Court on January 3, 2019, for an in-person Expedited
Hearing requested by John Vanveldhuizen. 1 The issue is whether Crown Automotive
Group, Inc. (Crown) must authorize a third lumbar surgery recommended by the treating
physician. Crown denied the surgery based on a utilization review (UR) physician's
opinion that the surgery was not medically necessary. For the reasons below, the Court
orders Crown to authorize the surgery.

                                             History of Claim

       Mr. Vanveldhuizen injured his low back at work. Crown accepted the claim and
authorized treatment with orthopedist Dr. Jay Jolley, who diagnosed radiculopathy
caused by a moderate-to-large L4-5 disk herniation.

       Dr. Jolley performed authorized L4-5 microdiskectomy surgery on February 28,
2018. He noted in his operative report that Mr. Vanveldhuizen "was at risk for a
recurrent piece of disk herniating, given his relatively young age." 2 Dr. Jolley performed
a second authorized L4-5 microdiskectomy eleven days after the first surgery.
1
 Mr. Vanveldhuizen requested an on-the-record determination, but the Court set an in-person hearing on
Crown's request.
2
    Mr. Vanveldhuizen is thirty-eight years old.

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         Part of Crown's argument against authorizing the recommended surgery arises
from the circumstances leading up to the second surgery. Mr. Vanveldhuizen testified
that the pain he experienced after the first surgery severely worsened when he drove to
and from his first post-surgery visit with Dr. Jolley. 3 However, Dr. Jolley's March 11
operative report noted that Mr. Vanveldhuizen reported his left-leg pain resolved after the
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first surgery but it immediately returned because he thinks" he hit a bump in the road
while driving home from the 'office.'.s Dr. Jolley stated in the operative note that, on
March 7, Mr. Vanveldhuizen underwent an MRI that revealed a recurrent L4-5 herniated
disk. Even in consideration of the alleged report that Mr. Vanveldhuizen's pain returned
when his car struck a bump in the road, Dr. Jolley stated in his operative note, "I still feel
this is related to the initial injury."

        The second surgery failed to relieve Mr. Vanveldhuizen's back and left-leg pain.
Dr. Jolley ordered physical therapy, which significantly increased his pain. Mr.
Vanveldhuizen testified that Dr. Jolley cancelled the therapy, but the therapist notes
indicate that the provider discharged him due to missing scheduled appointments. 6 In any
event, Dr. Jolley ordered a May 7 MRI that showed a "probable combination of scar and
posterior disc bulging which mildly deforms the ventral thecal sac but does not cause
significant mass effect."

       Dr. Jolley mentioned the possibility of a second recurrent herniated disk in his
note documenting the second surgery, writing: "[w]e also discussed the fact that if a third
large herniation occurs, then he unfortunately will likely need to consider a fusion or disk
replacement." Dr. Jolley considered the May 7 MRI results to confirm his concern about
another recurrent herniated L4-5 disk and ordered fusion surgery.

        Crown submitted the surgery recommendation to UR. Dr. Richard Lutz, a board-
certified orthopedist, performed the assessment. Dr. Lutz did not examine Mr.
Vanveldhuizen but determined medical necessity based on documentation provided him
by Crown. Dr. Lutz concluded the surgery was not medically necessary under the
Bureau's treatment guidelines because the documentation he received did not contain:



3
  Mr. Vanveldhuizen testified this was his first post-surgery driving experience, and that the round-trip
involved one and one-half hours of driving.
4
 Mr. Vanveldhuizen denied that his pain worsened when his car struck a bump in the road, and he denied telling Dr.
Jolley anything ofthat nature.

5
    The Court interprets "office" to refer to Dr. Jolley's office.
6
  Records indicate that Mr. Vanveldhuizen participated in five therapy sessions following the second
surgery.

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         •   flexion/extension x-rays documenting lumbar instability; 7
         •   MRI evidence of nerve root compression;
         •   records reflecting whether Mr. Vanveldhuizen's symptoms progressed or
             regressed during non-surgical care such as physical therapy and spinal
             injections; 8 and
         •   a psychosocial screen.

Dr. Lutz also based his opinion on a statement in the Bureau's treatment guidelines
recommending against fusion surgery for degenerative disk disease and/or disk herniation
suffered by employees with workers' compensation claims.            Mr. Vanveldhuizen
unsuccessfully appealed Dr. Lutz's decision to the Bureau's medical director, and Crown
denied authorization for the surgery.

       Mr. Vanveldhuizen filed this claim to compel Crown to authorize the surgery.
Afterward, Crown's attorney wrote Dr. Jolley for his opinion whether Mr.
Vanveldhuizen's first recurrent L4-5 herniation primarily arose when he hit a bump while
driving. Dr. Jolley responded that the first recurrent disk was "a result primarily from the
traumatic annulotomy secondary to the [original] disc herniation." Crown's attorney also
questioned why Dr. Jolley recommended fusion surgery, to which Dr. Jolley answered
that Mr. Vanveldhuizen needed it "given the herniation & the instability now present."

        Mr. Vanveldhuizen submitted Dr. Jolley's affidavit at the Expedited Hearing. In
it, Dr. Jolley elaborated as follows on his opinion that surgery is medically necessary:

                 In my opinion, my request for surgery falls within the treatment
        guidelines and is absolutely medically necessary. Mr. Vanveldhuizen has
        lumbar spine instability and radiculopathy, as documented in my records
        and by my physical examination and we have tried conservative care such
        as physical therapy which only makes Mr. Vanveldhuizen's pain and
        instability worse. Furthermore, we have tried two prior microdiscectomies
        and Mr. Vanveldhuizen developed a third recurrent herniation clearly
        indicating a fusion procedure is necessary as Dr. Lutz' own report makes
        clear. 9


7
  Dr. Jolley contended in his response to an inquiry made by Crown's counsel and, later in his affidavit,
that the MRI taken after the second surgery documented lumbar instability.
8
  The records documenting Mr. Vanveldhuizen's participation in physical therapy were available but not
sent to Dr. Lutz.
9
  Dr. Lutz's report stated: "[a]fter failure of two discectomies on the same disc, fusion may be an option at
the time of the third discectomy, which should also meet the ODG criteria. (See ODG Indication for
Surgery-Discectomy. )"

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       Mr. Vanveldhuizen relied on Dr. Jolley's medical-necessity opinion, while Crown
urged the Court to uphold its denial of the surgery based on the opinions of Dr. Lutz and
the medical director. Crown also contended that the symptoms underlying Mr.
Vanveldhuizen's need for the third surgery did not arise primarily out of and in the
course and scope of employment because they were caused by him hitting a bump while
driving. Lastly, Crown contended that the Court should deny the surgery because Mr.
Vanveldhuizen failed to comply with physical therapy.

                           Findings of Fact and Conclusions of Law

       Mr. Vanveldhuizen seeks an order requiring Crown to authorize the recommended
fusion surgery. He need not prove his entitlement to the surgery by a preponderance of
the evidence but instead must present sufficient evidence showing he would likely prevail
on that issue at a hearing on the merits. McCord v. Advantage Human Resourcing, 2015
TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

      The Court first addresses Crown's arguments that it should deny the surgery
because Mr. Vanveldhuizen's current pain was caused by hitting a bump while driving
and/or because he was non-compliant with physical therapy. Crown introduced no
medical evidence to support either argument; thus, the Court rejects them.

      The Court applies certain statutory presumptions in determining which of the
competing medical-necessity opinions to accept. Tennessee Code Annotated section 50-
6-204(a)(3)(H) (2018) affords a presumption of medical necessity for treatment
recommended by an authorized treating physician. In Morgan v. Macy's, 2016 TN Wrk.
Comp. App. Bd LEXIS 35, at *17 (Aug. 31, 2016), the Workers' Compensation Appeals
Board held that this presumption is rebuttable by a showing of the preponderance of the
evidence.

       Tennessee Code Annotated section 50-6-124(h) and subsection 204(a)(3)(1)
strengthen the presumption in favor of the treating physician's recommendation when it
is shown that it is consistent with the Bureau's treatment guidelines. In that event, the
opponent of the recommended treatment must come forward with "clear and convincing
evidence demonstrating that the recommended treatment substantially deviates from, or
presents an unreasonable interpretation of, the treatment guidelines" to overcome the
presumption of medical necessity.

       The Court first holds that it is not bound to accept the decision of a UR physician,
and it may evaluate the opinion of the UR physician just as it does any other medical
expert. See Ledford v. Mid Georgia Courier, Inc., 2018 TN Wrk. Comp. App. Bd.
LEXIS 28, at *4 (June 4, 2018). The Court located no authority indicating that it must
presume a UR physician's opinion correct.


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       In evaluating expert medical opinions, a trial judge may consider, among other
things, the qualifications of the experts, the circumstances of their evaluation, and the
information available to them. Venable v. Superior Essex, Inc., 2016 TN Wrk. Comp.
App. Bd. LEXIS 56, at *6 (Nov. 2, 2016). As the Supreme Court held, "[w]hen faced ...
with conflicting medical testimony . . ., it is within the discretion of the trial judge to
conclude that the opinion of certain experts should be accepted over that of other experts
and that it contains the more probable explanation." Thomas v. Aetna Life and Cas. Co.,
812 S.W.2d 278,283 (Tenn. 1991) (citation omitted) (internal quotation marks omitted).

       Because Dr. Jolley is the authorized treating physician, the Court affords his
opinion the presumption in subsection 50-6-204(a)(3)(H). The Court will not afford his
opinion the stronger presumption for a treating physician's recommendation consistent
with the Bureau's treatment guidelines because neither party introduced the guidelines
into evidence, and because Dr. Jolley failed to adequately state why his recommended
treatment complied with them. Without this proof, the Court is unable to apply the
standard of 50-6-204(a)(3)(1). See Morgan, at *18 (holding that a trial court cannot itself
apply the Bureau's treatment guidelines to specific treatment without medical proof on
the issue of compliance, or lack of compliance, with the guidelines.) Thus, the Court
must order that Crown authorize the recommended surgery unless the preponderance of
the evidence dictates that the surgery is not medically necessary.

       Here, the Court adopts Dr. Jolley's opinion over Dr. Lutz's. Dr. Jolley has a long
history of treating Mr. Vanveldhuizen for this injury, including performing two surgeries
that Crown authorized. Dr. Jolley's opinion is buttressed by his identification before both
previous surgeries that Mr. Vanveldhuizen might endure post-surgical recurrent disk
herniations and require disk-replacement or fusion surgery. Finally, the facts that Dr.
Lutz never saw Mr. Vanveldhuizen and Crown did not provide him a copy of the records
documenting the physical therapy further support the Court's decision that the
preponderance of the evidence does not rebut the medical necessity of the surgery.

         Thus, the Court holds Mr. Vanveldhuizen established that he will likely prevail at
trial in proving the medical necessity of the fusion surgery recommended by Dr. Jolley.

   IT IS, THEREFORE, ORDERED as follows:

   1. Crown shall promptly authorize, schedule and pay for the recommended surgery.

   2. This matter is set for a Status Hearing at 10:30 a.m. Eastern Time on April 9,
      2019. You must call (615) 741-3061 or toll-free at (855) 747-1721 to participate.
      Failure to call may result in a determination of the issues without your further
      participation.



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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 or Self-Insured Employer
   must submit confirmation of compliance with this Order to the Bureau by
   email to WCComoliance.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.

4. For questions regarding compliance, please contact the Workers' Compensation
   Compliance Unit via email at WCCompliance.Program@ln.go

   ENTERED January 8, 2019.




                            Judgi11UHDasVVyatt
                            Court of Workers' Compensation Claims




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