                                                                                   FILED
                                                                                Nov 28, 2018
                                                                                02:47 PM(CT)
                                                                             TENNESSEE COURT OF
                                                                            WORKERS' COMPENSATION
                                                                                   CLAIMS




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

BRIAN JACKSON,                               )   Docket No. 2018-07-0450
         Employee,                           )
v.                                           )
PRAXIS INDUSTRIES, INC.                      )
          Employer,                          )   State File No. 7257-2018
and                                          )
ZURICH INS. CO.,                             )
          Carrier.                           )   Judge Robert Durham


             EXPEDITED HEARING ORDER GRANTING BENEFITS


       This case came before the Court for an Expedited Hearing on November 21, 2018.
The primary issue is whether Mr. Jackson is entitled to surgery recommended by his
authorized physician, Dr. Randall Frazier, for an alleged work injury to his right knee.
The Court holds the opinions of the utilization review physician and the Bureau's
medical director are insufficient to overcome the presumption afforded Dr. Frazier as
authorized physician.

                                    History of Claim

        On November 7, 2017, Mr. Jackson sprained his left ankle while working for
Praxis. He reported the injury and later treated with an urgent care clinic, but he did not
receive a panel of orthopedists from Praxis until January 2018. In the meantime, he
allegedly developed pain in his right knee due to limping because of his ankle injury. He
testified he never suffered from knee pain before his ankle sprain.

       Mr. Jackson chose Dr. Frazier from the panel. He noted Mr. Jackson complained
of "popping or clicking" in his knee and suffered from knee swelling and tenderness
along the meniscalline. A McMurray test was positive for a possible meniscal tear, and
Dr. Frazier noted an antalgic gait. He provided steroid injections and ordered physical
therapy. Although the treatment provided some initial relief, Mr. Jackson soon
experienced renewed pain as well as "catching and grinding" in his knee. An MRI of the
right knee revealed severe medial compartment degenerative change with a broad area of

                                             1
full-thickness chondral loss and associated edema. The MRI also showed "mild
degenerative free edge fraying of the medial meniscus."

       After reviewing the MRI, Dr. Frazier addressed causation. He stated that while
Mr. Jackson's right knee arthritis pre-existed his ankle injury, he was asymptomatic
before that event. Thus, Dr. Frazier gave his opinion to a reasonable degree of medical
certainty that "at least 75% of his symptoms" were due to an aggravation of his pre-
existing knee condition caused by the left ankle injury. He recommended an arthroscopy
to debride and clean out the degenerative areas in Mr. Jackson's knee.

         Praxis then asked orthopedist Gregory Goldsmith for a utilization review as to the
need for a right knee arthroscopy with partial medial meniscectomy. In his report, Dr.
Goldsmith cited four criteria from the Official Disability Guidelines (ODG) in
determining the need for a meniscectomy: ( 1) Conservative care such as physical therapy
and medication or activity modification; (2) subjective findings of pain, swelling, give-
way sensations or popping and clicking; (3) objective findings of a positive McMurray's
test, joint line tenderness, effusion, or crepitus and, (4) meniscal tear on MRI.

       Dr. Goldsmith recommended non-certification. As grounds, he stated that there
was no evidence of conservative treatment other than a course of physical therapy. In
addition, he found no evidence of a physical exam, and the MRI report did not identify
whether it was the right or left knee. Further, meniscectomies are not recommended for
older patients with degenerative tears and arthritis since it might accelerate the arthritic
process. Dr. Frazier appealed the non-certification to Dr. Robert Snyder, the Bureau's
Medical Director. Dr. Snyder agreed with Dr. Goldsmith's opinion. As a result, Praxis
denied the surgery.

        Following the denial, Mr. Jackson returned to Dr. Frazier. He observed that Mr.
Jackson's pain was worsening and that he suffered from "catching" in his knee with
activities and a "give-way" sensation when on stairs. Dr. Frazier felt Mr. Jackson's
condition was deteriorating, and on July 9 he recommended a chondroplasty before a
partial arthrotomy became necessary.

        That same day, Praxis sent Dr. Frazier's recommendation to Dr. Goldsmith. Upon
review, Dr. Goldsmith recommended non-certification of the request for right-knee
chondroplasty. Dr. Goldsmith noted there was no progress note from Dr. Frazier that
documented a physical examination. He felt the MRI report did not show a chondral
lesion, but generalized arthritic change. He wrote that the ODG stated that "arthroscopic
lavage and debridement in patients with osteoarthritis of the knee is no better than
placebo surgery[.]"      However, he also noted the ODG listed four criteria for
chondroplasty: (1) Failure of conservative care; (2) subjective findings noting joint pain,
swelling, and mechanical catching; (3) objective findings of swelling, crepitus or limited
range of motion; and, (4) an MRI that showed a large, unstable chondral defect.

                                             2
      Dr. Frazier appealed to Dr. Snyder, who again agreed with Dr. Goldsmith that the
medical evidence did not indicate a need for right-knee arthroscopy, chondroplasty and
debridement.

                          Findings of Fact and Conclusions of Law

      Mr. Jackson 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); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

       Here, the only issue is whether Mr. Jackson established the likelihood of
prevailing at trial as to the need for the knee surgery recommended by Dr. Frazier. Praxis
argued that the opinions in Dr. Frazier's records were too conclusory and vague to justify
an order requiring surgery and that a deposition was necessary to explore his opinion.
The Court disagrees. Mr. Jackson's history and physical examination revealed consistent
knee abnormalities that medication, bracing and physical therapy failed to correct.
Indeed, the records showed that Mr. Jackson's knee condition rapidly worsened. An MRI
confirmed significant problems. Dr. Frazier felt that, given the failure of conservative
treatment, a chondroplasty and debridement were recommended not only to alleviate Mr.
Jackson's symptoms but also to stave off the need for a partial knee arthrotomy. The
records containing Dr. Frazier's opinions, and his justification for them, are sufficient for
the Court to determine the likelihood of Mr. Jackson prevailing as to the need for surgery.

       As the authorized treating physician, Dr. Frazier's opinion concerning treatment is
entitled to a presumption of correctness. Tenn. Code Ann. § 50-6-204(a)(3)(H). 1 Thus,
the burden falls on Praxis to rebut his opinion. To meet its burden, Praxis offered Dr.
Goldsmith's utilization review reports, which clearly conclude that surgery is
unnecessary, and Dr. Snyder's agreement with those reports.

        The Court "has the discretion to determine which testimony to accept when
presented with conflicting expert opinions." Bass v. The Home Depot, 2017 TN Wrk.
Comp. App. Bd. LEXIS 36, at *9 (May 26, 2017). When opinions conflict, 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 of the importance
of that information by other experts." !d.

1
  Praxis argued that the definition of authorized treating physician contained within the Bureau's
regulations could be construed to make the Medical Director an "authorized" physician as well. While
the argument is novel, Dr. Snyder was not chosen from a panel, nor can the Court consider him to have
provided treatment. The Court declines to extend the definition of authorized treating physician to
include Dr. Snyder.

                                                 3
       In this case, a number of factors serve to lessen the weight the Court gives Dr.
Goldsmith's opinions. First, unlike Dr. Frazier, he did not treat or even examine Mr.
Jackson. See, Ledford v Mid Georgia Courier, Inc., 2018 TN. Wrk. Comp. App. Bd.
LEXIS 28 at *8 (June 4, 2018). Second, it appears from his April 23 report that Dr.
Goldsmith did not have all of Mr. Frazier's medical records when he made his
assessment. He stated the MRI did not specify whether it was the right knee or the left
knee, but the actual report made it clear that it was the right knee. He also stated that Mr.
Jackson did not undergo conservative treatment other than physical therapy, but the
records establish he received braces, steroid injections, and medication.

       Dr. Goldsmith cited ODG criteria to support his non-certification; however, Mr.
Jackson's situation actually appears to have met those guidelines. For example, he
underwent every form of conservative treatment listed by the ODG, had popping and
clicking in his knee, had a positive McMurray's test, and a positive MRI. The Court is
hard-pressed to see from the record how Mr. Jackson's situation does not fit within the
ODG criteria. Finally, Dr. Goldsmith does not offer an alternative to surgery to relieve
Mr. Jackson's symptoms.

       Dr. Goldsmith's primary issue appears to be the possibility that Mr. Jackson's
underlying osteoarthritis will not be helped, and might actually be exacerbated, by
surgery. While perhaps a valid point, the Court does not find it sufficient to override Dr.
Frazier's concern about Mr. Jackson's continuing, debilitating symptoms and the
possibility he might soon require a partial knee arthrotomy if he does not have the
recommended surgery.

      Of course, that does not end the query. Dr. Snyder supported Dr. Goldsmith's
opinions by denying Dr. Frazier's appeals. However, for the reasons stated above, the
Court cannot find that Dr. Snyder's brief statement of denial, made without elaboration,
outweighs Dr. Frazier's opinion and the presumption given it, even when combined with
Dr. Goldsmith's opinion. See Ledford at *8.

IT IS, THEREFORE, ORDERED that:

   1. Praxis shall authorize Dr. Frazier to provide reasonable and necessary treatment
      for Mr. Jackson's right knee injury, including but not limited to the surgery he
      recommended.

   2. This matter is set for a Scheduling Hearing on January 14, 2018, at 10:00 a.m.
      C.S.T. The parties or their counsel must call 615-253-0010 or toll-free at 855-
      689-9049 to participate in the hearing. Failure to call may result in a
      determination of the issues without the party's participation.


                                             4
 ENTERED November.2!2018.


                          - ~~L
                                    JtmGE ROBERT V. DURHAM
                                    Court of Workers' Compensation Claims


                                         APPENDIX

 Technical Record

    1.   Petition for Benefit Determination
    2.   Dispute Certification Notice
    3.   Request for Expedited Hearing
    4.   Transfer Order
    5.   Notice of Expedited Hearing

 Exhibits

    1.   Documents submitted by Praxis
    2.   Documents submitted by Mr. Jackson
    3.   Mr. Jackson's affidavit and attached medical records
    4.   Medical records with chronology


                              CERTIFICATE OF SERVICE

         I 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 November 28,2018.

Name                 Certified   Email        Service sent to:
                     Mail
Edward Martindale                    X        edwardmartindale@gmai l.com
Rachal Wallace                                rachalwallace@gmail.com
Dean Norris                          X        Dean.norris@zurichna.com
Christi Thomas                                Christi.thomas~zurichna.com



                                          __&            ))v~ -
                                          Penn~um, Court Clerk
                                           Court of Workers' Compensation Claims

                                              5
                           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
