                                                                                  FILED
                                                                                Aug 15, 2018
                                                                                10:32 AM(CT)
                                                                             TENNESSEE COURT OF
                                                                            WORKERS' COMPENSATION
                                                                                   CLAIMS




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

JEFFERY INGSTRUP,                           )   Docket No. 2018-06-0453
          Employee,                         )
v.                                          )
AT HOME STORES, LLC,                        )   State File No. 77994-2017
          Employer,                         )
And                                         )
TWIN CITY FIRE INSURANCE CO.,               )   Judge Joshua Davis Baker
          Carrier.                          )


                   EXPEDITED HEARING ORDER GRANTING
                           MEDICAL BENEFITS


        The Court convened an expedited hearing on August 8, 2018, to determine
whether the employer, At Home Stores, LLC, should be required to provide Mr. Ingstrup
additional medical treatment recommended by the authorizing treating physician. The
legal issue is whether Mr. Ingstrup is likely to prevail at trial in establishing the
recommended treatment is reasonable and necessary. At Home argued it should not be
required to provide the surgery because its utilization review agent declared the treatment
not medically necessary. Mr. Ingstup countered that circumstances changed since the
initial denial, and the new medical evidence proves the treatment is reasonable and
necessary. The Court agrees with Mr. Ingstrup and holds he came forward with sufficient
evidence to show he is likely to prevail on this issue at trial. The Court orders At Home
to provide the treatment.

                                    History of Claim

      The current dispute concerns the non-provision of recommended medical care in
an accepted claim. On October 10, 2017, Mr. Ingstrup injured his left shoulder while
unloading a mattress. At Home accepted the claim and provided a panel of physicians.
After visiting Care Now, a walk-in clinic, Mr. Ingstrup began treating with Dr. Todd
Wurth, his panel-selected physician.
       Dr. Wurth gave Mr. Ingstrup a steroid pack and hydrocodone, but these failed to
provide relief. He suspected Mr. Ingstrup had a SLAP tear and sent him for an MRI
arthrogram. The MRI results confirmed Dr. Wurth’s suspicion, and he recommended
surgical correction pending approval from the insurer, Twin City Fire.

      Twin City submitted the recommendation for utilization review (UR), and the
reviewing physician deemed the procedure not medically necessary. In a February 2,
2018 report, the reviewing physician explained:

          The MRI arthrogram of the left shoulder documented evidence of superior
          labrum anterior and posterior (SLAP) tear at the bicipital anchor. Per ODG
          Shoulder, surgical intervention is recommended after 3 months of
          conservative treatment including NSAIDS, injection therapy, and physical
          therapy PT for patients with persistent symptoms. In this case, the records
          indicate the patient has been using a sling and taking NSAIDs only, there is
          no mention of physical therapy attempts. Therefore, the request is not
          medically necessary and not certified.

Mr. Ingstrup requested peer review, and the peer reviewer affirmed the decision. Mr.
Ingstrup never filed an appeal to the Bureau of Workers’ Compensation’s medical
director.1 He stated he did not know he could appeal. He returned to Dr. Wurth.

       After learning Twin City denied the surgery recommendation, Dr. Wurth changed
the course of treatment. He gave Mr. Ingstrup an injection and sent him for physical
therapy with instructions to follow up in four weeks.

        Mr. Ingstrup returned three weeks later on February 27, complaining that the
injection provided no relief and that therapy worsened his symptoms. His physical
therapist recommended he stop. Dr. Wurth agreed that the therapy “exacerbated his
symptoms” and discontinued it. He discussed surgery again with Mr. Ingstrup, who
wished to go forward. The medical records indicated Dr. Wurth intended to submit the
surgical recommendation to the insurance company for approval.

       About a month after his last visit with Dr. Wurth, Mr. Ingstrup filed a Petition for
Benefit Determination seeking medical and temporary disability benefits.2 The parties
failed to resolve the dispute through mediation, and the mediator filed a Dispute
Certification Notice (DCN).


1
 At the hearing, the Court stated Mr. Ingstrup submitted the decision to the Bureau for review through a
contract provider. On further review of the record, this statement was incorrect.
2
    Mr. Ingstrup withdrew the issue of temporary disability benefits during the hearing.


                                                       2
        Shortly after the DCN issued, Mr. Ingstrup’s counsel sent a letter to
Dr. Wurth requesting information about the previously recommended surgery.             In
response, Dr. Wurth indicated Mr. Ingstrup’s need for surgery related to the October 10,
2017 workplace injury. He also wrote the following in response to a question concerning
treatment options other than surgery: “We have previously tried with injections, PT, work
restrictions. Patient has ongoing clinical complaints thereby prompting request for
surgery.”3

       Mr. Ingstrup testified he received conservative treatment. Significantly, Mr.
Ingstrup stated Dr. Wurth gave him two injections—although the medical records only
describe one—and sent him to physical therapy. Neither treatment improved his
shoulder. Consistent with the medical records, Mr. Ingstrup also testified the therapy
made his shoulder worse. At the time of the hearing, he still had problems with his
shoulder and wished to have surgery.

       Mr. Ingstrup argued the Court should order the surgery despite the lack of an
appeal to the medical director because the right to appeal is permissive rather than
mandatory. He further argued neither the initial reviewing physician nor the peer
reviewer had complete records when they denied surgery. At Home argued it followed
correct UR procedure and should not have to provide the surgery at this time.

                                  Legal Principles and Analysis

       Mr. Ingstrup has the burden of proof but need not prove every element of his claim
by a preponderance of the evidence to receive relief at an expedited hearing. Instead, he
must present sufficient evidence showing he would likely prevail 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 finds he carried this burden and orders
At Home to provide him additional medical benefits.

       At Home must provide Mr. Ingstrup “medical and surgical treatment . . . as
ordered by the attending physician . . . made reasonably necessary by accident.” Tenn.
Code Ann. § 50-6-204(a)(1)(A) (2017). In that vein, any treatment recommended by the
authorized treating physician “shall be presumed to be necessary for treatment of the
injured employee.” Id. at § 50-6-204(a)(3)(H). Here, Dr. Wurth served as the authorized
treating physician and recommended surgery to repair Mr. Ingstrup’s shoulder. The law
presumes the surgical treatment is medically necessary.

      Despite the presumption of medical necessity, the Workers’ Compensation Law
provides a system of “utilization review” to consider any treatment recommended for the

3
  The Court relied heavily on counsel’s reading of this document, as Dr. Wurth’s handwriting is difficult
to read on the copy filed with the Court.
                                                   3
injured worker. See id. at § 50-6-124. Utilization review means “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). UR is a record review by an “advisory medical practitioner” to determine
whether the proposed procedure is medically necessary. Id. at 0800-02-06-.03.

        If an employer questions the medical necessity of treatment proposed by the
treating physician, it must submit that treatment to UR. Id. at 0800-02-06-.05(1). “Any
treatment that explicitly follows the treatment guidelines adopted by the administrator or
is reasonably derived therefrom . . . shall have a presumption of medical necessity for
utilization review purposes.” Tenn. Code Ann. § 50-6-124(h). This presumption can
only be overcome in UR through the presentation of clear and convincing evidence that
“the treatment erroneously applies the guidelines or that the treatment presents an
unwarranted risk to the injured worker.” Id. If any party disagrees with the UR decision,
they may appeal the decision to the Bureau’s medical director. Tenn. Comp. R. & Regs.
0800-02-06-.07. Without an appeal, the UR decision remains effective for six months
from the date of issuance absent a “material change documented by the treating physician
that supports a new review or other information that was not used by the [reviewing
physician] in making the initial decision.” Id. at 0800-02-06-.06(7)(a).

       Here, At Home disagreed with Dr. Wurth’s surgical recommendation and
submitted it for UR. The reviewing physician applied the guidelines and determined that
the treatment was not medically necessary because Mr. Ingstrup had only completed
some of the pre-surgical treatment prescribed by the guidelines. Specifically, Mr.
Ingstrup had received no physical therapy. Accordingly, it appears to the Court that the
record supported the UR decision. Mr. Ingstrup failed to appeal it, and the decision
bound the parties for six months until August 2, 2018.

         The Court finds that during the six-month period, the parties were only prohibited
from further UR review of the same surgical procedure. Additionally, Mr. Ingstrup’s
failure to appeal the decision to the medical director did not prohibit him from seeking
relief through a request for expedited hearing. Tennessee Code Annotated section 50-6-
239(d)(1) allows judges to hear disputes concerning temporary disability or medical
benefits on an expedited basis “at any time after a dispute certification notice has been
issued by a workers’ compensation mediator[.]” Accordingly, Mr. Ingstrup’s request for
medical benefits is properly before the Court.

        The Court holds At Home must provide the surgery that Dr. Wurth recommended.
While surgery was not medically necessary at the time he initially recommended it,
circumstances have changed. Since the initial denial, Mr. Ingstrup received additional
conservative care—injections and physical therapy—that proved ineffective. In view of
their failure to provide relief, Dr. Wurth reaffirmed his surgical recommendation, and the

                                            4
law presumes his recommendation is reasonable and medically necessary. The Court
finds At Home did not overcome that presumption given that circumstances have
materially changed since the UR decision.

      It is ORDERED as follows:

      1. At Home shall provide Mr. Ingstrup additional medical treatment, including
         surgery as recommended by Dr. Wurth.

      2. The parties shall appear for a status conference on October 1, 2018, at 8:30
         a.m. (CDT). The Court will convene the status conference via telephone. The
         parties must call the Court’s conference line at (615) 741-2113 or (855) 874-
         0474 to participate.

      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
         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 ON AUGUST 15, 2018.



                                       ______________________________________
                                       Judge Joshua Davis Baker
                                       Court of Workers’ Compensation Claims




                                          5
                                     APPENDIX

Exhibits:

   1.   Medical Records
   2.   Mr. Ingstrup’s Affidavit
   3.   Wage Statement
   4.   Utilization Review Decision and Peer Review
   5.   Letter from Dr. Wurth
   6.   Choice of Physician Form

Technical Record:

   1.   Petition for Benefit Determination
   2.   Dispute Certification Notice
   3.   Request for Expedited Hearing
   4.   At Home’s Prehearing Brief/Statement




                                           6
                             CERTIFICATE OF SERVICE

       I 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 August 15, 2018

 Name                     Certified    Fax       Email   Service sent to:
                           Mail
 Stephan D. Karr                                  X      steve@flexerlaw.com
 Tamara Gauldin                                   X      tamara.gauldin@thehartford.com




                                          ______________________________________
                                          PENNY SHRUM, COURT CLERK
                                          wc.courtclerk@tn.gov




                                             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.
   Filed Date Stamp Here                     EXPEDITED HEARING NOTICE OF APPEAL
                                                  Tennessee Division of Workers' Compensation
                                                                                                     Docket#: - - - -- -- - --
                                                      www.tn.go v/labor-wfd/wcomp.shtm l
                                                                                                     State File #/YR: - - -- - - --
                                                             wc.courtclerk@tn.gov
                                                                1-800-332-2667                       RFA#: _ _ _ _ _ _ _ _____ _

                                                                                                     Date of Injury: - - - -- - - - -
                                                                                                     SSN: _______ _ ______ __




                      Employee


                      Employer and Carrier

          Notice
          Noticeisg~enthat _ _ _ _ _ _ _~~--~~~~---~~~--------~
                                    [List name(s) of all appealing party(ies) on separate sheet if necessary]

          appeals the order(s) of the Court of Workers' Compensation Claims at _ __

           -~~~-----~~~~~~~~-to the Workers' Compensation Appeals Board .
           [List the date(s) the order(s) was filed in the court clerk's office]

          Judge___________________________________________

          Statement of the Issues
          Provide a short and plain statement of the issues on appeal or basis for relief on appeal:




          Additional Information
          Type of Case [Check the most appropriate item]

                             D   Temporary disability benefits
                             D   Medical benefits for current injury
                             D   Medical benefits under prior order issued by the Court

          List of Parties
          Appellant (Requesting Party): _____________ .A t Hearing: DEmployer DEmployee
          Address:. _______________________ ______________ ___________

          Party's Phone:.____________________________ Email: _________________________

          Attorney's Name:________________________________ ___ BPR#: - - - - - - - - - - - -

          Attorney's Address:. _ _ _ _ _~~-~~~~----~~----                                             Phone:
          Attorney's City, State & Zip code: _____________________ ___________ _ _ _ __ _
          Attorney's Email :_ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ __ _ _ _ __ _ _ _ _ _ _ __

                                        *Attach an additional sheet for each additional Appellant*

LB-1099    rev.4/15                                        Page 1 of 2                                                     RDA 11082
Employee Name: - - - -- - - -- - - -              SF#: _ _ _ _ __ _ _ _ _ DO l: _ __             _ __




Aopellee(s)
Appellee (Opposing Party): _ _ _ _ _ _ _ _.At Hearing: OEmployer DEmployee



Appellee's Address: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Appellee's Phone:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _.Email:_ _ _ _ _ _ __ _ _ _ _ _ __

Attorney's Name:_ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ BPR#: - - - - - - - -
Attorney's Address:._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Phone:

Attorney's City, State & Zip code: - - - -- - - - - - - - - - - - - - - - - - - -- -
Attorney's Email:._ _ _ _ __ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

                       * Attach an additional sheet for each additional Appellee *


CERTIFICATE OF SERVICE

I,                                             certify that I have forwarded a true and exact copy of this
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules of
Board of Workers' Compensation Appeals on this the              day of__, 20_ .



[Signature of appellant or attorney for appellant]



LB-1099   rev.4/1S                                Page 2 of 2                              RDA 11082
 .
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
