                                                                                             FILED
                                                                                           Oct 03, 2019
                                                                                          03:42 PM(ET)
                                                                                       TENNESSEE COURT OF
                                                                                      WORKERS' COMPENSATION
                                                                                             CLAIMS




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

Joseph Burnette,                                   )   Docket No.: 2018-01-0797
           Employee,                               )
v.                                                 )
SRB Corporation,                                   )   State File No.: 87528-2018
              Employer,                            )
And                                                )
Selective Ins. Co. of America,                     )   Judge: Audrey A. Headrick
               Carrier.                            )


                              EXPEDITED HEARING ORDER
                               (DECISION ON THE RECORD)


        This case came before the Court on Joseph Burnette's Request for an Expedited
Hearing on the record. 1 The only issue is whether Mr. Burnette is likely to establish at
trial that he is entitled to the cervical surgery recommended by Dr. Jay Jolley. For the
reasons below, the Court holds he is and orders SRB to provide the surgery.

                                         History of Claim

        The essential facts of this case are undisputed. Mr. Burnette injured his neck and
other body parts on October 26, 20 18, when he fell backwards at work and landed on
pavement striking his head on a steel trailer. His authorized treating physician, Dr.
Jolley, recommended a C4-7 anterior cervical discectomy and fusion in May 20 19 after
four months of conservative treatment failed.

       SRB submitted the surgical recommendation for utilization review (UR), and the
reviewing physician found the procedure not medically necessary. 2 In a June 3, 2019
report, the reviewing physician used the Official Disability Guidelines (ODG) and
provided several bases for finding the surgery not medical necessary: (1) Mr. Burnette's
1
  The Court issued a docketing notice allowing the parties until October 1 to file objections or submit
position statements.
2
  The reviewing physician is board-certified in orthopedic surgery.
records do not describe any specific focal neurological deficits; (2) Clarification is
needed regarding his bilateral strength decrease; (3) No frank neurocompressive lesions
are documented by the MRI; and, (4) Mr. Burnette is a daily smoker without any
documentation that he stopped smoking for six weeks. The Bureau's Assistant Medical
Director upheld the UR denial because the request did not satisfy the ODG, and Mr.
Burnette timely filed a Petition for Benefit Determination. 3

        Dr. Jolley testified by affidavit regarding the recommended surgery. He stated
"that the ODG criteria used by UR reviewer in this case is extremely stringent and is not
adopted by most practicing orthopedic surgeons." He also gave his opinion that the
surgery is necessary "as a result of [Mr. Burnette's] work-related injury and that the
proposed surgery has a greater than 80% chance of reducing his neck and arm
complaints." Dr. Jolley additionally said that Mr. Burnette will continue to have pain and
be unable to work without the surgery.

                           Findings of Fact and Conclusions of Law

       To prevail at an expedited hearing, Mr. Burnette must provide sufficient evidence
to show he would likely to prevail at a hearing on the merits. See Tenn. Code Ann. §50-
6-239(d)(l) (2018). The Court holds he did.

       The sole issue is whether Mr. Burnette is entitled to the recommended surgery. To
resolve this issue, the Court must determine if SRB rebutted the presumption of medical
necessity attached to Dr. Jolley's recommendation. After reviewing the evidence, the
Court holds it did not.

       The Workers' Compensation Law provides that SRB must provide Mr. Burnette
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)(1)(A) (2018). Likewise, any treatment recommended by Dr. Jolley "shall be
presumed to be necessary for treatment of the injured employee." ld. at § 50-6-
204(a)(3)(H). Because Dr. Jolley recommended surgery for Mr. Burnette's neck, the law
presumes that the surgical treatment is medically necessary. This presumption is
rebuttable by a preponderance of the evidence. Morgan v. Macy's, 2016 TN Wrk. Comp.
App. Bd. LEXIS 5, at* 14 (Mar. 12, 2015).

      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,
3
  The Court's September 20 Docketing Notice stated, "[t]he Court will not consider documentation that a
party did not file with the Request for Expedited Hearing or the Response in Opposition to the Request
for Expedited Hearing." SBR did not file its pre-hearing statement until September 30 and requested that
the Court consider newly filed exhibits. The Court declines to do so.

                                                   2
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.

       SRB submitted Dr. Jolley's surgical recommendation to UR. The reviewing
physician applied the ODG treatment guidelines and determined that the surgery was not
medically necessary, and the Assistant Medical Director upheld the denial.

       Dr. Jolley's surgery recommendation, the reviewing physician's denial, and
ultimately the Assistant Medical Director affirmation of that denial 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
ofthe importance of that information through other experts." !d. 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 Mr. Burnette conservatively
for his cervical injury for four months and relied upon his observations and findings after
that time to conclude that he needed surgery. The reviewing physician, on the other
hand, performed a one-time record review and relied upon the ODG treatment guidelines
in denying the recommendation. After learning of the UR denial, Dr. Jolley stood by his
recommendation and stated he thinks the surgery has more than an eighty percent chance
of reducing Mr. Burnette's symptoms.

       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 Mr.
Burnette is likely to prevail at a hearing on the merits in proving that he is entitled to the
surgery.




                                              3
IT IS, THEREFORE, ORDERED as follows:

  1. SRB shall provide Mr. Burnette additional medical treatment with Dr. Jolley,
     including the recommended surgery, for his cervical injury under Tennessee Code
     Annotated section 50-6-204.

  2. This case is set for a Status Hearing on Thursday, December 12, 2019, at 1:00 p.m.
     Eastern Time. You 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
     your 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 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.

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

     ENTERED October 3, 2019.




                                       AUDR     1\. HEADRICK
                                       Workers' Compensation Judge




                                          4
                                    APPENDIX

Exhibits:
       1. Form C-20 First Report
       2. Form C-41 Wage Statement
       3. Utilization Review documents:
             a. June 3, 2019 UR denial letter
             b. June 25,2019 UR Appeal Memorandum
              c. June 25, 2019letter ofDr. Robert Snyder, Medical Director
      4. July 2, 2019 note ofDr. Jay Jolley
       5. Affidavit of Dr. Jolley

Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing
   4. Docketing Notice
   5. Employer/Carrier's Pre-Expedited Hearing On-The-Record Position Statement




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                             CERTIFICATE OF SERVICE

 I certify that a copy of this Expedited Hearing Order was sent as indicated on October 3,
 2019.

        Name              Certified      Email       Service sent to:
                           Mail
Mike Wagner,                               X         maw@wagnerinj w·y .com
Employee's Attorney
Fred Baker,                                X         fbaker@wimberlylawson. com
Courtney Hart,                             X         chart@wimberly lawson. com
Employer's Attorneys




                                                   ~Vvw~ v~~~
                                               PENNY SHR         , COURT CLERK
                                                   we. courtc 1erk@tn. gov




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