                                                                                                                 FD..ED

                                                                                                          November 10, 2~Hei;

                                                                                                             TNCOURT OF
                                                                                                              WORKERS'
                                                                                                            COMPE -sATJON
                                                                                                                'CLAIMS

                                                                                                             Time: 1:54 P.hif.

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


TERESA DYER,                                               )   Docket No.: 2015-07-0460
         Employee,                                         )
v.                                                         )
SUPPORT SOLUTIONS OF                                       )   State File Number: 27218-2015
THE MID-SOUTH,                                             )
         Employer,                                         )
And                                                        )
LIBERTY MUTUAL INS. CO.,                                   )   Judge Allen Phillips
         Insurance Carrier.                               )


              EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS


       This matter came before the undersigned Workers' Compensation Judge on
November 1, 2016, upon the Request for Expedited Hearing filed by Teresa Dyer
pursuant to Tennessee Code Annotated section 50-6-239 (2015). Ms. Dyer requests a
surgical procedure recommended by the authorized treating physician for treatment of a
right-shoulder injury. Liberty Mutual, on behalf of Support Solutions, denied the
requested surgery based upon a Utilization Review (UR) report and subsequent adoption
of that report by the Bureau's Medical Director. Accordingly, the central legal issue is
whether Ms. Dyer is entitled to the requested surgery when considering the divergent
medical opinions. For the following reasons, the Court holds Ms. Dyer is entitled to
continued medical benefits including the requested surgery. 1

                                               History of Claim

       Ms. Dyer sustained a right shoulder injury on January 12, 2015. Liberty Mutual
did not contest the injury, but disputed a surgical procedure recommended by Dr. Kelly
Pucek, the authorized treating physician.

1
 A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.

                                                          1
        Ms. Dyer began treatment with Dr. Pucek on April 20, 2015. On that date, she
reported a history of shoulder pain beginning six to eight weeks earlier when "doing a lot
of repetitive lifting." (Ex. 1 at 9). She noted having seen a general practitioner and having
done "exercises, which have not lessened her pain." !d. On examination, Dr. Pucek found
"obvious impingement signs of [the] right shoulder" and "pain and weakness in terms of
abduction, external rotation." !d. He diagnosed "rotator cuff syndrome," injected her
shoulder with pain medications, and recommended physical therapy. !d. Upon her return
on May 27, 2015, she "noted some improvement, but still [was] having activity limiting
pain." !d. at 12. Her examination was unchanged. Dr. Pucek noted that, "[g]iven only
partial response to injections, therapy, and conservative treatment, I think the next step is
going to be MRI evaluation of the shoulder as to whether we are looking at anything
surgical." !d.

       On July 9, 2015, Dr. Pucek recorded the MRI results as showing "some
inflammatory changes in her rotator cuff [and] surprisingly extensive labral tearing. !d. at
18. Dr. Pucek further noted: "With her failure with conservative treatment, MRI showing
extensive labral tearing, I think she is ultimately looking at a scope with labral
debridement versus repair. I went over risks and benefits as well as what to expect. She
does want to proceed." Id.

        Liberty Mutual referred the surgery request to an independent UR agent for
review. On July 23, 2015, Dr. Glenn Smith, an orthopedic surgeon licensed in Tennessee,
completed a "Peer Review Report." Therein, he noted his review of the treatment notes
detailed above, the MRI report, physical therapy notes, and the notes of the initial
provider. He documented two separate attempts to contact Dr. Pucek. He then detailed a
"Summary of Records" and "Review Question" as follows:

      SUMMARY OF RECORDS:
      This is a female was has [sic] sustained an injury on January 12, 2015, from
      opening and closing a lot of binders and putting boxes on the floor.

      The examinee has been treated conservatively with physical therapy and
      when failing to respond an MRI was performed June 26, 2015, that noted
      extensive tearing of the labrum anterior and anterior inferior with posterior
      superiorly noted tearing.

      The biceps was in the normal position.

      On July 9, 2025, Dr. Pucek indicated in followup review of the MRI
      findings the examinee had impingement signs with pain and weakness on
      abduction, external rotation. No gross ligamentous instability noted and
      there was pain with cross-body adduction.


                                             2
       Dr. Putek then recommended surgical treatment due to failure of
       conservative treatment.

       REVIEW QUESTION(S):
       Is the requested Right shoulder arthroscopy with labral debridement
       versus repair medically necessary?

       No. The requested Right shoulder arthroscopy with labral debridement
       versus repair is not medically necessary.

       In this case, there is not a Type II or specific Type IV lesion described in
       the MRI report and the physical examination did not document provocative
       testing indicative of a possible labral tear for which surgical treatment
       would be medically necessary. Therefore, the requested arthroscopic
       surgery with labral debridement versus repair is not medically necessary
       within ODG recommendations.

       Criteria Guidelines Utilized and its Application:

       ODG, Shoulder, Surgery for SLAP lesions, is recommended for Type II
       lesions and Type IV lesions if more than 50 percent of the tendon is
       involved after 3 months of failed conservative treatment.


       On August 19, 2015, Ms. Dyer returned to Dr. Pucek who noted, verbatim, that,
"We had her scheduled [for surgery], but Workmen's Comp's infinite wisdom denied it,
believed not medically necessary. She is back today requesting options, so I told her at
this point, she failed conservative treatment, there is very little I have to offer if unable to
do surgery." (Ex. 1 at 22). Dr. Pucek advised she could either have surgery through her
private insurance or "fight it out with Workmen's Comp about coverage." !d. Return
visits on November 5, 2015, and April 25, 2016, yielded histories of no change in
symptoms and continued statements by Dr. Pucek that he had nothing to offer apart from
surgery. !d. at 24-25; 29. On April 26, 2016, Dr. Pucek corresponded with Ms. Dyer's
counsel to reiterate his opinions on failed conservative treatments and his continued
surgical recommendation. !d. at 32.

       On September 27, 2016, the parties deposed Dr. Pucek. When asked if he "agreed"
or "disagreed" with Dr. Smith's opinion regarding the type lesion that appeared on the
MRI or his opinion that the "physical examination did not document provocative testing
indicative of a possible labral tear," Dr. Pucek testified:

       I would have to say I disagree. I mean, I've evaluated her four or five times.
       As far as I know, we threw everything we could non-operatively at her. She

                                               3
       still has persistent symptoms. I think I documented she had a lot of pain in
       the cross-body adduction or bringing the arm across the body kind of
       stressing the labrum. I stand by my opinion that at this point there's
       nothing else to do for this shoulder but scope it.

(Ex. 2 at 17).

       Dr. Pucek further testified that the MRI and his physical examination "suggested a
labral tear." Id. at 18. Namely, "with these type symptoms and the examination we
documented, it's going to boil down to rotator cuff or labrum 99 percent of the time, so I
felt we dotted the "i's" and crossed the "t's". Id. He noted that, "MRI evaluations of
labrums are dubious at best, okay, and you never know until you get in there." Id. at 24.
Further, Dr. Pucek felt that simply viewing the MRI does not allow a physician to "tell
specifically acute versus chronic just based on looking at the MRI without all the history
and mechanism and stuff." Id. at 26.
        For her part, Ms. Dyer testified that physical therapy had helped her very little
and, that medications, including an injection, "did not help at all." Currently, her shoulder
hurts "very bad," though it is "better some days." She seeks help from her husband to
"get dishes out of the cabinet," has problems sweeping, and notes cold air, such as a
blowing ceiling fan, causes her pain. She noted she is right hand dominant. She would
like to undergo the recommended surgery in an attempt to improve her condition.

       Ms. Dyer argued that Dr. Pucek's recommendation for surgery is presumed
medically necessary pursuant to Tennessee Code Annotated section 50-6-
204(A)(3)(H)(2015). Further, "[b]eyond that basic premise, Dr. Pucek provided a detailed
analysis of not only his rationale for recommending surgery, but also, for his
disagreement with Utilization Review denial. ." T .R. 5 at 5.

       Liberty Mutual countered that Dr. Smith's opinion was based on specific MRI
findings and followed the treatment guidelines. Accordingly, the Court should give Dr.
Smith's opinion more weight than Dr. Pucek's opinion.

                       Findings of Fact and Conclusions of Law

                                     Standard Applied

        Ms. Dyer bears the burden of proof on all prima facie elements of her workers'
compensation claim. Tenn. Code Ann. § 50-6-239(c)(6) (2015); see also Buchanan v.
Car/ex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *5
(Tenn. Workers' Comp. App. Bd. Sept. 29, 2015). However, Ms. Dyer need not prove
every element of her claim by a preponderance of the evidence at an Expedited Hearing
stage in order to obtain relief. McCord v. Advantage Human Resourcing, No. 2014-06-

                                             4
0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App.
Bd. Mar. 27, 2015). Rather, she must come forward with sufficient evidence from which
this court might determine she is likely to prevail at a hearing on the merits. !d.; Tenn.
Code Ann.§ 50-6-239(d)(1)(2015).

                                          Analysis

       The sole issue for determination is whether Ms. Dyer is entitled to the surgery
recommended by Dr. Pucek. Resolution of this issue requires the Court to determine if
Liberty Mutual rebutted the applicable presumption of medical necessity attached to Dr.
Pucek's recommendation. After review of the evidence, the Court holds that Liberty
Mutual has not done so.

       A recent Appeals Board case provides guidance. In Morgan v. Macy's, No. 2016-
08-0270, TN Wrk. Comp. App. Bd. LEXIS 39 (Tenn. Workers' Comp. App. Bd. Aug.
31, 20 16), our Appeals Board "consider[ed] the relationship between the newly-adopted
medical treatment guidelines and the presumptions outlined in the Workers'
Compensation Law. !d. at *15. The Board first noted Tennessee Code Annotated section
50-6-204(a)(3)(H) provides a presumption of medical necessity for "any treatment
recommended" by an authorized physician. Further, the Board noted section 204(a)(3)(I)
provides that, "[f]ollowing the adoption of treatment guidelines ... the presumption of
medical necessity for treatment recommended by an authorized physician is rebuttable
only by clear and convincing evidence demonstrating that the recommended treatment
substantially deviates from, or presents an unreasonable interpretation of, the treatment
guidelines." The Board noted the Bureau adopted medical treatment guidelines effective
January 1, 2016. See, Tenn. Comp. R. & Regs. 0800-02-25-.03(2)(2016).

       Based upon these provisions, the Board held in Morgan that, "a trial court can
apply one of two potential presumptions to the issue of medical necessity in any given
case." !d. at * 17. First, a trial court should apply a presumption that treatment
recommended by an authorized physician is "presumed medically necessary" subject to
rebuttal by a preponderance of the evidence. !d. at * 17; see, e.g., Walker v. G. UB.MK
Constructors, No. E2015-00346-SC-R3-WC, 2016 Tenn. LEXIS 313 (Tenn. Workers'
Comp. Panel May 2, 20 16)(Emphasis added). This presumption applies when the treating
physician does not explicitly follow the treatment guidelines. Second, a trial court should
apply a presumption rebuttable only by clear and convincing evidence when the
authorized physician "explicitly follows the treatment guidelines" !d. at * 18.

       In this case, there is no evidence that Dr. Pucek "explicitly follow[ ed] the
treatment gui~elines." Thus, under Morgan, Liberty Mutual need only rebut the medical
necessity of the recommended surgery by a preponderance of the evidence. Our Supreme
Court instructs that a preponderance of the evidence standard requires that the truth of the
facts asserted be more probable than not. Teter v. Republic Parking Sys., 181 S.W.3d

                                             5
330, 341 (Tenn. 2005). So guided, this Court will analyze the medical evidence.

      First, the Court notes the medical records in evidence indicate Dr. Pucek saw Ms.
Dyer on multiple occasions. See generally, Ex. 1. At each visit, he examined her right
shoulder. Based upon his findings, he formulated an opinion that surgery was the only
remaining treatment option. Conversely, Dr. Smith, the UR physician only reviewed
medical records; he never examined Ms. Dyer. Likewise, there is no indication that Dr.
Smith reviewed the actual MRI. Based upon the record review, Dr. Smith opined the
recommended surgery was not medically necessary according to the treatment guidelines.

        When "faced ... with conflicting medical testimony," this Court must determine
which expert opinion "should be accepted [and which opinion] contains the more
probable explanation." Thomas v. Aetna Life and Cas. Co., 812 S.W.2d 278, 283 (Tenn.
1991). Further, this Court should consider "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." Orman v. Williams Sonoma, Inc.,
803 S.W.2d 672, 676 (Tenn. 1991). 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).

       The Court finds Dr. Pucek testified he "evaluated [Ms. Dyer] four or five times."
(Ex. 2 at 17). The records indicate these evaluations occurred over a period of four
months before Dr. Smith's record review for UR purposes. Dr. Pucek documented his
findings at each examination before formulating his opinion that surgery is the only
viable option for treating Ms. Dyer's shoulder injury. When exercising its obligation to
determine which expert opinion to accept, and applying the factors of Orman, the Court
holds Dr. Pucek's opinion is more accurate.

       Second, the Court is guided by the precedent of Venable v. Superior Essex, Inc.,
No. 2015-05-0582, 2016 TN Wrk. Comp. App. Bd. LEXIS 56 (Tenn. Workers' Comp.
App. Bd. Nov. 2, 2016), a recent case of our Appeals Board. In Venable, the injured
employee sustained a knee injury requiring surgery. When he failed to improve, an
authorized physician opined a second surgery was required and stated: "I think the
current issue and need for [surgery] are related to his original work comp injury." !d. at
*2. The physician also explained the anatomic findings supporting his opinion. The
employer submitted the request toUR and Dr. Glenn Smith, the same UR physician as in
this case, "concluded that the recommended surgery was not medically necessary based
on his review of the medical records and his interpretation of the [medical treatment
guidelines]" !d. at *3. Then, the treating physician refuted Dr. Smith's opinion and the
employer again sent the surgery recommendation to UR. A second UR physician opined
the surgery was "likely reasonable" but, was not work-related. The Medical Director
agreed with the employer's denial. The trial court ordered the employer to provide the

                                            6
requested surgery. !d. at *4.

       In affirming, the Board found "it was within the scope of the trial court's 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." Id. at *9.
The Board stated:

        In the present case, an authorized physician . . . opined that the
       recommended surgery was "related to [the employee's] original work comp
       injury." [The authorized physician] then explained his disagreement with
       Dr. Smith's utilization review report and stated, "[t]here is clear
       progression in his radiographic findings comparing today's x-ray with the
       original x-rays from 9/18/2014." After receipt of the second utilization
       review report, in which [another UR physician] agreed that the
       recommended surgery was "likely reasonable" but "unrelated to the injury
       in question," [the authorized physician] reiterated his opinion that the
       need for surgery was related to [the injury in question]. We find such
       evidence was sufficient to support the trial court's determination that
       Employee is likely to prevail at a hearing on the merits.

!d. at *11-12.

       Here, Dr. Pucek, like the authorized physician in Venable, "explained his
disagreement with Dr. Smith's report." Namely, Dr. Pucek disagreed with Dr. Smith's
opinions regarding the absence of certain anatomic findings and the absence of
"provocative testing indicative of a possible labral tear." (Ex. 1 at 34).

        In explaining his disagreement, Dr. Pucek testified MRI studies of the shoulder
labrum "are dubious at best" and, oftentimes fail to detect anatomic abnormalities found
at the time of surgery. (Ex. 2 at 24). Notably, Dr. Pucek personally reviewed the MRI. Id.
at 11. Similarly, the treating physician in Venable disagreed with the UR physician based
upon x-ray findings. Likewise, Dr. Pucek "documented [Ms. Dyer] had a lot of pain in ..
. bringing [her] arm across the body kind of stressing the labrum." (Ex. 2 at 17). Hence,
his physical examination is at variance with Dr. Smith's statement that "the physical
examination did not document provocative testing indicative of a possible labral tear."
(Ex. 1 at 34). Accordingly, the Court finds Dr. Pucek offered the more "probable
explanation" regarding the issue of the propriety of surgical intervention. See, Thomas,
812 S.W.2d at 283.

       Further, Dr. Pucek stood by opinion that surgery is the only remaining option and
that further conservative therapy is fruitless. This challenges Dr. Smith's opinion that the
treatment guidelines require "3 months of failed conservative treatment." (Ex. 1 at 34).
Of course, the evidence indicates Dr. Pucek has already tried three months of

                                             7
conservative treatment, beginning in April 2015 and extending through July 2015, all
before the UR report. After the UR report, he saw Ms. Dyer in August and November
2015, and noted at both visits the failure of conservative care.

        Finally, Tennessee law has long held that medical proof is not to be "read and
evaluated in a vacuum" but, instead "must be considered in conjunction with the lay
testimony of the employee as to how the injury occurred and the employee's subsequent
condition." Thomas, 812 S.W.2d at 283. The Court finds Ms. Dyer testified credibly
regarding her physical condition and limitations. She was steady and, though obviously
frustrated by her current predicament, did not overly exaggerate her complaints of pain.
Her intonation and demeanor were consistent with one who had endured pain for some
time and her expressed desire to obtain relief and a return to gainful employment were
believable. In context of Dr. Pucek's recommendations, the Court finds her lay testimony
supports the reasonableness of the recommended surgery.

        In making these findings, the Court recognizes its inability to "independently
assess an injured worker's symptoms as described in the medical records." Morgan, at
*18, citing Scott v. Integrity Staffing Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp.
App. Bd. LEXIS 24, at *8 (Tenn. Workers' Comp. App. Bd. Aug. 18, 2015). Thus, it
confined its analysis to the ""conflicting [and] countervailing evidence properly admitted
into the record," namely, the findings and opinions of Dr. Smith juxtaposed against those
of Dr. Pucek. See, Scott, at *8. After such analysis, the Court holds Liberty Mutual has
not rebutted the presumption of medical necessity attached to Dr. Pucek's recommended
surgery by a preponderance of the evidence.

IT IS, THEREFORE, ORDERED as follows:

   1. In accordance with Tennessee Code Annotated section 50-6-204(a)(l)(A)(2015),
      Liberty Mutual shall continue to pay for reasonable and necessary medical
      treatment for Ms. Dyer's right shoulder injury of January 12, 2015, including
      approval of the right shoulder surgery recommended by Dr. Kelly Pucek.

   2. This matter is set for an Scheduling/Status Hearing on February 6, 2017, at
      10:30 a.m. Central Time.

   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)
      (2015). The Insurer or Self-Insured Employer must submit confirmation of
      compliance with this Order to the Bureau by email 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'

                                            8
       Compensation Compliance Unit via email WCCompliance.Program@tn.gov or by
       calling (615) 253-1471 or (615) 532-1309. ·     f\
       ENTERED this the lOth day of     Novem~ l U




Scheduling (Status) Hearing:

      An Scheduling/Status Hearing has been set with Judge Allen Phillips, Court of
Workers' Compensation Claims. You must call toll-free at 731-422-5263 or toll free
855-543-5038 to participate in the Initial Hearing.

       Please Note: Yon must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation.


Right to Appeal:

       Tennessee Law allows any party who disagrees with this Expedited Hearing Order
to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of
Appeal, you must:

   1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal."

   2. File the completed form with the Court Clerk within seven business days of the
      date the Workers' Compensation Judge entered the Expedited Hearing Order.

   3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.

   4. The appealing party is responsible for payment of a filing fee in the amount of
      $75.00. Within ten calendar days after the filing of a notice of appeal, payment
      must be received by check, money order, or credit card payment. Payments can be
      made in person at any Bureau office or by United States mail, hand-delivery, or
      other delivery service. In the alternative, the appealing party may file an Affidavit
      of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
      fee. The Affidavit of Indigency may be filed contemporaneously with the Notice

                                            9
   of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
   will consider the Affidavit of Indigency and issue an Order granting or denying
   the request for a waiver of the filing fee as soon thereafter as is
   practicable. Failure to timely pay the filing fee or file the Affidavit of
   Indigency in accordance with this section shall result in dismissal of the
   appeal.

5. The parties, having the responsibility of ensuring a complete record on appeal,
   may request, from the Court Clerk, the audio recording of the hearing for the
   purpose of having a transcript prepared by a licensed court reporter and filing it
   with the Court Clerk within ten calendar days of the filing of the Expedited
   Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
   the evidence within ten calendar days of the filing of the Expedited Hearing
   Notice of Appeal. The statement of the evidence must convey a complete and
   accurate account of what transpired in the Court of Workers' Compensation
   Claims and must be approved by the workers' compensation judge before the
   record is submitted to the Clerk of the Appeals Board.

6. If the appellant elects to file a position statement in support of the interlocutory
   appeal, the appellant shall file such position statement with the Court Clerk within
   five business days of the expiration of the time to file a transcript or statement of
   the evidence, specifying the issues presented for review and including any
   argument in support thereof. A party opposing the appeal shall file a response, if
   any, with the Court Clerk within five business days of the filing of the appellant's
   position statement. All position statements pertaining to an appeal of an
   interlocutory order 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.




                                        10
                                               APPENDIX


Exhibits:
   1. Medical Records, collectively, of Occ Med, Dr. Kelly Pucek, Dr. Glenn Smith
       (UR Report), and of Bureau's Medical Director; and
   2. Deposition of Dr. Kelly Pucek_,_


Technical record: 2
   1. Petition for Benefit Determination;
   2. Dispute Certification Notice;
   3. Request for Expedited Hearing; and,
   4. Employee's Pre-Hearing Brief.


                                   CERTIFICATE OF SERVICE


       I hereby 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 this the 1Oth day
ofNovember, 2016.

              Name                      Via                           Service sent to:
                                       Email
Spencer R. Barnes, Esq.,                 X       spence@morrisonandbarnes.com
Attorney for Employee                            Chandra@morrisonandbarnes.com
Shaterra Reed., Esq.,                     X      Shaterra.reed@libertymutual.com
Attorney for Employer                            Lesley.burton@libertymutual.com

                                                       t2          JJv~ -
                                                  Penny~m, Clerk of Court
                                                  Court of Workers' Compensation Claims

2
   The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as
allegations unless established by the evidence.




                                                     11
