           TENNESSEE BUREAU OF WORKERS’ COMPENSATION
              WORKERS’ COMPENSATION APPEALS BOARD


Maury Endsley                               )   Docket No. 2016-05-0743
                                            )
v.                                          )   State File No. 76993-2014
                                            )
Benchmark Contractors, LLC, et al.          )
                                            )
                                            )
Appeal from the Court of Workers’           )
Compensation Claims                         )
Dale Tipps, Judge                           )


                  Affirmed and Remanded – Filed August 11, 2017

This interlocutory appeal involves a machine operator who fell at work and reported pain
and symptoms in his lower back. His claim was accepted as compensable, but the
employer subsequently declined to authorize surgical treatment based on an opinion of
the authorized treating physician that the surgery was not necessary. Following an
expedited hearing, the trial court ordered the employer to authorize additional medical
care, including surgery, concluding that the opinion of the authorized treating physician
was outweighed by the opinion of a physician who provided a second opinion. The
employer appealed. We affirm the trial court’s decision and remand the case for any
further proceedings that may be necessary.

Judge Timothy W. Conner delivered the opinion of the Appeals Board in which Presiding
Judge Marshall L. Davidson, III, and Judge David F. Hensley joined.

Stephen Morton, Nashville, Tennessee, for the employer-appellant, Benchmark
Contractors, LLC

Timothy Lee, Nashville, Tennessee, for the employee-appellee, Maury Endsley

                         Factual and Procedural Background

       Maury Endsley (“Employee”), a forty-nine-year-old resident of Bedford County,
Tennessee, worked for Benchmark Contractors, LLC (“Employer”), as a machine
operator. On September 24, 2014, he was exiting the cab of a truck when his foot caught

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and he fell backwards approximately eight to ten feet, suffering pain and other symptoms
in his low back and left leg. His claim was accepted as compensable and he received
authorized medical treatment from Dr. John Klekamp, who performed a discectomy at
the L4-5 level.

       Following surgery, Employee reported ongoing pain and symptoms. On May 5,
2015, Dr. Klekamp discussed with Employee the possibility of a spinal fusion, but
concluded Employee was a poor candidate for such a procedure due primarily to his on-
going status as a cigarette smoker. Dr. Klekamp estimated a less than fifty percent
chance the surgery would improve his condition and referred Employee for pain
management, which was authorized with Dr. Eric Young. However, when Dr. Klekamp
was deposed on April 28, 2016, he testified that fusion surgery was a “viable option” and
that Employee “needs to decide whether or not he wants to proceed.” He then clarified
that “[w]hat [Employee] has is not life threatening, so at no point . . . will I say that he
has to have this surgery. I think it is a viable option for his treatment going forward.”
When Dr. Klekamp was asked to comment on what caused the need for surgery, he
responded, “it is discogenic pain that occurred after the fall at work from the injury to the
disk.” When asked about the recommendations of Dr. James Fish, a physician who
provided a second opinion on the issue of additional medical treatment, Dr. Klekamp
responded that he would defer to Dr. Fish with respect to medical decisions concerning
additional treatment options, including surgery, and he agreed that Dr. Young’s referral
to Dr. Fish for consideration of surgery was an appropriate treatment plan. Finally, in
response to a question about the cause of the need for surgery, Dr. Klekamp agreed that
the fall at work was “more than a 50 percent contributor to the need for the fusion
surgery.”

       When Dr. Klekamp referred Employee for pain management treatment, Employee
requested a second opinion, which Dr. Klekamp endorsed. Employer voluntarily
provided a panel of physicians for the second opinion, from which Employee selected Dr.
Fish. Following receipt of an MRI report dated February 9, 2017, Dr. Fish diagnosed a
recurrent disc herniation at L4-5 and recommended a spinal fusion at that level. In his
February 15, 2017 report, Dr. Fish stated, “[w]ithin a reasonable degree of medical
certainty, the surgery proposed above is a direct result of the September 2014 work-
related injury.”

       Thereafter, on May 16, 2017, Dr. Klekamp signed an affidavit in which he opined
that Employee’s most recent MRI did not support a finding of a recurrent disc herniation
and that the proposed fusion surgery was not necessary. As a result, Employer declined
to authorize this treatment. Employee filed a request for an expedited hearing, seeking an
order requiring Employer to authorize further medical care as recommended by Dr. Fish.
Following the expedited hearing, the trial court concluded that Dr. Klekamp was no
longer an authorized treating physician, that his opinions were not entitled to a
presumption of correctness, and that the opinions expressed by Dr. Fish outweighed those

                                             2
of Dr. Klekamp. As a result, the trial court ordered Employer to authorize additional
medical care, including surgery, and designated Dr. Fish as the authorized treating
physician going forward. Employer has appealed.

                                   Standard of Review

       The standard of review we apply in reviewing a trial court’s decision is statutorily
mandated and limited in scope. Specifically, “[t]here shall be a presumption that the
findings and conclusions of the workers’ compensation judge are correct, unless the
preponderance of the evidence is otherwise.” Tenn. Code Ann. § 50-6-239(c)(7) (2016).

                                         Analysis

        Employer raises five issues on appeal: (1) whether the trial court erred in not
applying a presumption of correctness to the opinions of Dr. Klekamp; (2) whether the
evidence supported the trial court’s determination that any presumption of correctness
which may be afforded to Dr. Klekamp’s opinions was rebutted by Employee’s evidence;
(3) whether the trial court erred in ordering additional medical care; (4) whether the trial
court erred in designating Dr. Fish as the authorized physician moving forward; and (5)
whether the trial court failed to properly consider the affidavit of Dr. Klekamp in addition
to his records and deposition testimony.

          Presumptions in Favor of Opinions of Authorized Treating Physicians

        The Tennessee Workers’ Compensation Act contains several provisions that favor
certain opinions of a treating physician selected from a panel in accordance with
Tennessee Code Annotated section 50-6-204(a)(3)(A)(i) (2016). For example, in section
50-6-102(14)(E), “[t]he opinion of the treating physician, selected by the employee from
the employer’s designated panel of physicians . . ., shall be presumed correct on the issue
of causation but this presumption shall be rebuttable by a preponderance of the
evidence.”      Additionally, section 50-6-204(a)(3)(H) states that “[a]ny treatment
recommended by a physician or chiropractor selected pursuant to this subdivision (a)(3)
or by referral, if applicable, shall be presumed to be medically necessary for treatment of
the injured employee.” (Emphasis added.) Also relevant is section 50-6-204(a)(3)(E),
which states that in circumstances where a treating physician makes a referral to a
specialist, the specialist physician to whom the employee was referred “shall become the
treating physician until the treatment by the specialist physician . . . concludes and the
employee has been referred back to the treating physician selected by the employee from
the initial panel.”

       In considering the plain and ordinary meaning of these statutes, we note that
subsection 204(a)(3)(H) applies the presumption of correctness to “a physician . . .
selected pursuant to this subdivision (a)(3)” (emphasis added), not only to the current

                                             3
treating physician as implied by the trial court. Thus, we agree with Employer that Dr.
Klekamp remained an authorized treating physician even after the referral to pain
management and, to the extent Dr. Klekamp expressed opinions as described in
subsections 102(14)(E) and/or 204(a)(3)(H), such opinions would be entitled to a
presumption of correctness.

       However, that statutory analysis does not end the inquiry on this issue. Three
other factors are relevant. First, Dr. Klekamp did not recommend treatment as
contemplated in subsubsection 204(a)(3)(H), but offered an opinion that treatment
recommended by another physician was not necessary. The statute provides that
treatment recommended by an authorized doctor is presumed to be medically necessary,
but makes no mention of whether an authorized physician’s opinion about the medical
necessity of treatment recommended by another doctor is entitled to that same
presumption. Thus, by the express terms of this subsection, an opinion of one physician
concerning treatment recommended by another physician does not qualify for the
presumption described in subsection 204(a)(3)(H).

        Second, Dr. Klekamp’s opinion did not address whether the recommended
treatment was “made reasonably necessary by accident,” see Tennessee Code Annotated
section 50-6-204(a)(1)(A) (emphasis added), but simply offered an opinion that it was not
“necessary.” In his deposition testimony, he clarified his opinion on this issue by
explaining that Employee’s condition was “not life threatening” and that “at no point . . .
will I say that he has to have this surgery.” Such testimony indicates that Dr. Klekamp’s
interpretation of the word “necessary” is not consistent with the meaning of “reasonably
necessary” as used in Tennessee’s workers’ compensation laws. The question is not
whether the recommended treatment is necessary to save the patient’s life, but whether
the treatment is “reasonably necessary” to treat the work-related injury. When
considering Dr. Klekamp’s deposition testimony as a whole, we conclude that Dr.
Klekamp opined the fusion surgery was a “viable option” and was more than fifty percent
related to the work accident. It was his belief that Employee was not a good candidate
for the surgery due to his smoking history, but he did not foreclose the possibility that
another physician may agree to proceed with the surgery.

        Third, Dr. Klekamp referred Employee to a pain management physician “to
transition his care . . . as I have not much more to offer him regarding future treatment
options.” That physician, Dr. Young, then referred Employee to Dr. Fish, who Employee
had already selected from Employer’s panel for a second opinion examination. In
addition, in a July 16, 2015 report, Dr. Klekamp expressed his willingness to “provide an
approval” for a second opinion examination. Finally, in his deposition, Dr. Klekamp
expressly deferred to the opinions of Dr. Fish with respect to further options for
Employee’s medical care. Thus, there is ample evidence in the record that Dr. Klekamp
concluded he had no other treatment to offer Employee, that Dr. Fish was an authorized
referral from Dr. Young, that Employer accepted that referral, and that Dr. Klekamp

                                            4
relinquished possible surgical intervention to Dr. Fish’s judgment. Under these
circumstances, we conclude that the trial court did not err in refusing to apply a
presumption of correctness to Dr. Klekamp’s opinion concerning the medical necessity of
treatment recommended by Dr. Fish. While the trial court’s conclusion that Dr. Klekamp
was no longer a panel-selected physician whose causation opinion was entitled to a
presumption of correctness was error, it was harmless under these circumstances.

                              Weighing of Expert Opinions

       Given our conclusions as stated above, it is unnecessary to address Employer’s
assertion that the trial court erred in concluding “Dr. Klekamp’s presumption of
correctness was successfully rebutted.” Instead, we combine and restate Employer’s
second and third issues as whether the trial court erred in its assessment of the weight of
the expert proof and in determining that Dr. Fish’s opinions outweighed those of Dr.
Klekamp. It is well-settled that a trial judge has the discretion to determine which
opinion to accept when presented with conflicting expert opinions. See, e.g., Bass v. The
Home Depot, No. 2016-06-1038, 2017 TN Wrk. Comp. App. Bd. LEXIS 36, at *9 (Tenn.
Workers’ Comp. App. Bd. May 26, 2017). As outlined above, the proof offered by
Employer from Dr. Klekamp, including his medical records, his deposition testimony,
and his affidavit, is equivocal on the issue of future medical treatment options for
Employee. There is no question that Dr. Klekamp opined in both his deposition and his
affidavit that the fusion surgery was not “necessary.” However, he never expressed any
opinion as to whether the fusion surgery was “made reasonably necessary by accident” or
was “medically necessary” to treat Employee’s work-related injuries. Instead, his
deposition testimony suggested that he associated the word “necessary” with “life-
saving,” which is not consistent with statutory language or applicable precedent defining
the term “reasonably necessary.” Finally, in his deposition, Dr. Klekamp deferred to Dr.
Fish with respect to further treatment options, including surgery.

       On the other hand, the record is clear that Dr. Fish recommended the fusion
surgery and stated it was “a direct result of the September 2014 work-related injury.” His
opinions are not equivocal but are clear and direct. Under these circumstances, we
believe the evidence preponderates in favor of the trial court’s decision to credit the
opinions of Dr. Fish over those of Dr. Klekamp to the extent those opinions conflict.

                      Designation of Authorized Treating Physician

      Furthermore, we disagree with Employer’s assertion that the trial court unilaterally
appointed Dr. Fish as the authorized treating physician going forward. As explained
previously, the record indicates Employee was referred by the original treating physician,
Dr. Klekamp, for pain management, at which time he came under the authorized care of
Dr. Young. Thereafter, Dr. Young referred Employee to Dr. Fish in his February 16,


                                            5
2016 report. Thus, pursuant to Tennessee Code Annotated section 50-6-204(a)(3)(A) &
(E), Dr. Fish became an authorized treating physician by referral.

       In addition, although Employee selected Dr. Fish from a panel of physicians
provided by Employer for the purpose of a second opinion examination, this selection as
a second opinion physician pursuant to section 204(a)(3)(C) does not negate the later
direct referral of Employee from Dr. Young to Dr. Fish for treatment. Finally, Dr.
Klekamp expressed the opinion that he has nothing else to offer Employee in terms of
additional treatment and would defer to Dr. Fish with respect to further treatment. Under
these circumstances, we conclude it was not error for the trial court to acknowledge Dr.
Fish’s status as an authorized treating physician and order Employer to provide additional
medical treatment as recommended by Dr. Fish.

                    Trial Court’s Consideration of Medical Evidence

       Finally, we find no merit in Employer’s argument that the trial court “fail[ed] to
consider all evidence that was properly admitted into evidence.” In support of its
assertion, Employer argued that footnote 2 in the trial court’s order evidenced the trial
court’s failure to properly consider Dr. Klekamp’s affidavit. We disagree. In that
footnote, the trial court concluded that “[n]o evidence was presented to explain Dr.
Klekamp’s opinion that there is no recurrent disc herniation or whether he felt that the
disc protrusion was related to the work accident.” In reviewing Dr. Klekamp’s affidavit,
we cannot disagree with the trial court’s characterization of the evidence. Although Dr.
Klekamp stated in his affidavit that he did not believe the spinal fusion surgery was
“necessary,” he did not further explain or support this opinion. The only explanation for
this opinion was offered in his deposition, where he linked the term “necessary” to “life-
saving.” Moreover, while Dr. Klekamp stated in his affidavit that he did not believe
Employee had a recurrent disc herniation at L4-5, he did not offer any explanation of the
February 9, 2017 MRI report showing “central disc protrusion at L4-L5, mildly
compressing the L5 nerve root origins bilaterally.” Under the circumstances, we cannot
conclude that the trial court failed to consider Dr. Klekamp’s affidavit and properly
weigh it against other evidence in the record.

                                       Conclusion

        For the foregoing reasons, we conclude the evidence does not preponderate against
the trial court’s determination. We therefore affirm the trial court’s order and remand the
case for any further proceedings that may be necessary.




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                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD


Maury Endsley                                            )   Docket No.   2016-05-0743
                                                         )
v.                                                       )   State File No. 76993-2014
                                                         )
Benchmark Contractors, LLC, et al.                       )


                                     CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the
referenced case was sent to the following recipients by the following methods of service
on this the 11th day of August, 2017.
 Name                    Certified   First Class   Via   Fax      Via     Email Address
                         Mail        Mail          Fax   Number   Email

 Timothy Lee                                                        X     tim@timleelawfirm.com
 Stephen Morton                                                     X     stephen.morton@mgclaw.com
 Dale Tipps, Judge                                                  X     Via Electronic Mail
 Kenneth M. Switzer,                                                X     Via Electronic Mail
 Chief Judge
 Penny Shrum, Clerk,                                                X     Penny.Patterson-Shrum@tn.gov
 Court of Workers’
 Compensation Claims




Matthew Salyer
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov
