                                                                                   FILED
                                                                                Apr 02, 2018
                                                                                10:49 AM(CT)
                                                                             TENNESSEE COURT OF
                                                                            WORKERS' COMPENSATION
                                                                                   CLAIMS




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

MICHELLE HUNT,                               )   Docket No.: 2017-05-0892
         Employee,                           )
v.                                           )
AMAZON.COM,                                  )   State File No.: 73262-2015
         Employer,                           )
AND                                          )
AMER. ZURICH INS. CO.,                       )   Judge Robert Durham
         Carrier.                            )


       EXPEDITED HEARING ORDER DENYING MEDICAL BENEFITS


       This case came before the Court for an Expedited Hearing on March 26, 2018.
The issue is whether Ms. Hunt is entitled to a panel of orthopedists for evaluation and/or
treatment of her low back complaints. The Court holds Ms. Hunt is not likely to establish
that Amazon is required to provide a panel of specialists at this time. Thus, it denies her
request.

                                    History of Claim

        On August 23, 2015, Ms. Hunt slipped and fell while pushing a cart performing
her duties with Amazon. She testified she fell onto her right ankle and buttocks. She
also attempted to brace herself with her right hand, injuring her right wrist.

       Amazon provided Ms. Hunt with a panel of physicians, from which she chose Dr.
Jeffrey Hazlewood. At her first visit on August 26, Ms. Hunt gave a history of her right
leg folding underneath her as she fell, trapping her foot and ankle underneath her
buttocks. She complained of right wrist and right ankle pain as well as an onset of low
back pain two days after the accident. Ms. Hunt testified she never experienced back
pain before August 23.

        Dr. Hazlewood diagnosed Ms. Hunt with a sprained wrist and ankle. He further
felt the low back pain was a "mild soft tissue event" with no suspected herniation or
significant pathology, given the absence of signs of radiculopathy. He provided splints,

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prescribed anti-inflammatories, and placed lifting restrictions.

        Over the next several months, Dr. Hazlewood continued conservative treatment,
including anti-inflammatories and physical therapy, but Ms. Hunt showed little
improvement. She claimed worsening back pain with numbness and weakness in her
entire leg. Dr. Hazlewood maintained that the low back complaints were most likely due
to a sprain or strain and not a herniation, since she experienced no radiculopathy.
However, given Ms. Hunt's continued complaints, he ordered a lumbar MRI.

       The lumbar MRI report revealed moderate bilateral fat hypertrophy with a diffuse
disc bulge and mild central disc extrusion at L5-S 1. The report further noted that this
finding, in combination with prominent epidural fat, caused borderline thecal sac
narrowing. After reviewing the MRI, Dr. Hazlewood felt that the mild bulge/extrusion at
L5-S1 did not clinically correlate with Ms. Hunt's symptoms and seemed to be "in the
setting of degenerative spine disease vs. false positive disc." Due to Ms. Hunt's
continued wrist and ankle complaints, he referred her to an orthopedic specialist for those
conditions. 1 However, Dr. Hazlewood maintained her low back pain did not warrant a
specialist referral and he could do little more for her low back symptoms. He last saw
Ms. Hunt on November 16, 2015. He continued to provide anti-inflammatories and
maintained her restrictions. He also indicated he would see her back as needed.

       Ms. Hunt testified that she subsequently asked the adjuster if she could see another
physician for her low back, but the adjuster refused. Counsel for Amazon maintained
that Amazon would, however, authorize Dr. Hazlewood to see Ms. Hunt again.

       Ms. Hunt testified that she continues to suffer from significant low back pain,
particularly if she has to stand or sit for extended periods. She recently sought treatment
on her own with a nurse practitioner, who ordered a lumbar MRI on February 28, 2018.
The MRI revealed multifocal degenerative change/disc disease with the most significant
changes being at L5/S 1. The degenerative change, as well as prominent epidural fat,
served to narrow the thecal sac diameter at the L5/S 1 level.

                         Findings of Fact and Conclusions of Law

      Ms. Hunt need not prove every element of her claim by a preponderance of the
evidence to obtain relief at an expedited hearing. Instead, she must present sufficient
evidence that she is likely to prevail at a hearing on the merits. See Tenn. Code Ann. §
50-6-239(d)(l) (2017); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).


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  Amazon authorized Dr. James Rungee to treat Ms. Hunt's wrist and ankle injuries. Neither of these
injuries is at issue at this time.

                                                2
       The sole issue is whether Ms. Hunt is entitled to a panel of orthopedists for
evaluation and/or treatment of her low back complaints. The evidence established that
Amazon provided Ms. Hunt with a panel of physicians in accordance with Tennessee
Code Annotated section 50-6-204(a)(3)(A)(i) from which she voluntarily chose Dr.
Hazlewood as her authorized treating doctor. However, Ms. Hunt argues that, since Dr.
Hazlewood's care failed to improve her symptoms and he appeared unwilling to
recommend more than conservative treatment, she is entitled to additional treatment with
orthopedist.

       Ms. Hunt cited an unpublished case, McClendon v. Food Lion, LLC, 2014 Tenn.
LEXIS 518 (Tenn. Workers' Comp. Panel July 11, 2014), as authority for her position.
In McClendon, the Panel upheld the trial court's order that the employer replace the
authorized neurosurgeon with a panel of orthopedists, since the employee's low back
complaints were muscular in origin. However, McClendon is distinguishable from Ms.
Hunt's claim on several points.

       First, the claim in McClendon had already concluded, with causation and
permanency issues resolved by settlement. Second, the neurosurgeon was not the
original treating physician but a replacement for a recently retired orthopedist, who
previously treated the employee for several years through deep-tissue muscle massages.
Third, the employee testified that the massages significantly alleviated her pain, while the
home exercise program recommended by the neurosurgeon did not.

       Finally, and most importantly, the Panel in McClendon clearly relied upon the
requirement that "the workers' compensation statute should be liberally construed in
favor of compensation and any doubts resolved in the employee's favor." !d. at *13.
Under Tennessee Code Annotated section 50-6-116, workers' compensation statutes must
no longer be "liberally construed." Further, the Appeals Boa,rd held that, in post-reform
cases, Supreme Court precedent will be relied upon unless it is evident the decision relied
upon a remedial interpretation of workers' compensation law. McCord, at *9. Thus, the
Court gives little weight to McClendon.

       The Court finds that Ms. Hunt voluntarily chose Dr. Hazlewood as her treating
physician from a valid panel. Treatment recommendations made by a treating physician
"shall be presumed to be medically necessary." Tenn. Code Ann. § 50-6-204(a)(3)(H).
Ms. Hunt's testimony as to her continued complaints, and the failure of Dr. Hazlewood's
recommendations to alleviate those complaints, is certainly a factor the Court must
consider in determining if Dr. Hazlewood's treatment was reasonable and necessary for
Ms. Hunt's work-related injury. However, the Court holds that Ms. Hunt's testimony
alone, without any medical proof, is insufficient to establish that she is likely to prevail in
overcoming the presumption accorded to Dr. Hazlewood's opinion.

       IT IS, THEREFORE, ORDERED that:

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  1. Ms. Hunt's request for a panel of orthopedists is denied at this time.

  2. This matter is set for a Scheduling Hearing on May 7, 2018, at 2:00p.m. C.S.T.
     The parties or their counsel must ca11615-253-0010 or toll-free at 855-689-9049 to
     participate in the hearing. Failure to call may result in a determination of the
     issues without your participation.

ENTERED THIS THE 2"d DAY OF April, 2018.




                             ~dgeCourt of Workers' Compensation Claims




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                                         APPENDIX

 Technical Record

     1.   Petition for Benefit Determination
     2.   Dispute Certification Notice
     3.   Motion and Response to Enforce Subpoena
     4.   Notice of Expedited Hearing
     5.   Employer's Response to Request for Expedited Hearing
     6.   Employee's Expedited Hearing Brief

 Exhibits

    1. Ms. Hunt's affidavit
    2. Subpoena
    3. Dr. Hazlewood's medical records
    4. Tennessee Orthopedic Alliance medical records
    5. Functional Capacity Evaluation
    6. Physical therapy records
    7. Final medical report
    8. WorkLink Physician's Reports
    9. Lumbar MRI report dated 2/28/2018
    10. Choice of Physicians Form
    11. Ms. Hunt's deposition transcript


                             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 April2, 2018.

Name                 Certified   Via       Email Address
                     Mail        Email
Carolina Martin                      X     cvmartin@hughesandcoleman.com
Charles Pierce                      X      ceoierce@ miis.com




                                                    urn, Clerk of Court
                                                     orkers' Compensation Claims



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