                                                                                                         FILED
                                                                                                       Apr 17, 2018
                                                                                                      08:00 AM(CT)
                                                                                                   TENNESSEE COURT OF
                                                                                                  WORKERS' COMPENSATION
                                                                                                         CLAIMS



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

MICHAEL PATTERSON,                                        )    Docket No.: 2017-05-1265
         Employee,                                        )
v.                                                        )
HUFF & PUFF TRUCKING,                                     )    State File No.: 85818-2016
         Employer,                                        )
AND                                                       )
                                                          )   Judge Robert Durham
PRAETORIAN INS. CO.,                                      )
        Carrier.                                          )


    EXPEDITED HEARING ORDER GRANTING MEDICAL AND TEMPORARY
                       DISABILITY BENEFITS


       This case came before the Court for an Expedited Hearing on April 3, 2018. The
issues are whether Mr. Patterson is entitled to additional medical and temporary disability
benefits following his release from the authorized orthopedist's care. The Court holds
Mr. Patterson is likely to establish that Huff and Puff is required to provide the requested
benefits. Thus, it grants his requests. 1

                                              History of Claim

        On October 17, 2016, Mr. Patterson was driving a truck for Huff and Puff on
Interstate 40 just east of Knoxville. Traffic stopped due to construction, and as he sat on
the interstate, Mr. Patterson's truck was rear-ended by another tractor-trailer. The impact
caused Mr. Patterson's truck to ram the vehicle in front of him, creating extensive
damage to the truck's cab. Mr. Patterson testified he felt several other crashes jarring
him back and forth as other vehicles became involved. However, he did not seek medical
attention immediately following the accident.

        Mr. Patterson reported the wreck to Paul Wheeler, Safety Director for Huff and

1
  The parties stipulated that Mr. Patterson suffered a work-related accident; that his compensation rate is $771.02;
that if the right-shoulder labral tear was compensable, Huff and Puff shall pay the reasonable and necessary medical
expenses incurred for treatment and temporary disability benefits from April 18, 2017.
Puff. Mr. Wheeler drove to the scene from the Murfreesboro area, and he and Mr.
Patterson spent several hours transporting and securing the truck and its cargo. Mr.
Wheeler then drove Mr. Patterson to his home in Cannon County, approximately 30
miles southeast of Murfreesboro.

       Mr. Patterson testified he woke up the next morning in "excruciating pain up and
down his right side." At the emergency room, he complained of bilateral shoulder and
low back pain and possible loss of consciousness the previous day. Diagnostic tests
reported normal findings except for cervical x-rays which showed moderate degenerative
changes. After providing medication, the hospital discharged Mr. Patterson with
diagnoses of possible concussion and low bac~ and right shoulder pain.

       Huff and Puff authorized Dr. Martin Glynn, a general practitioner, to treat Mr.
Patterson's asserted injuries. At his first visit, Mr. Patterson complained of headaches
and severe pain in his right shoulder and the right side of his neck. Dr. Glynn diagnosed
a concussion, cervical strain, and right shoulder strain. He eventually ordered physical
therapy for the cervical and shoulder complaints. Dr. Glynn later noted that Mr.
Patterson claimed he could no longer lift his right arm above his head with his arm
extended out to the side. Dr. Glynn noted "slow progress" with the right shoulder
because Mr. Patterson continued reporting he could not extend his right arm above ninety
degrees without pain, despite participating in ongoing physical therapy. Mr. Patterson
also began complaining of low back pain, depression, anxiety, and "flashbacks."

       Mr. Patterson completed therapy with little improvement. In December, Dr. Glynn
referred him for orthopedic and neurologic care. Huff and Puff provided specialist panels
to Mr. Patterson. The orthopedic panel included Dr. James Rungee, who practices in
Murfreesboro, and two Nashville-based orthopedists. Mr. Patterson chose Dr. Rungee.

       Dr. Rungee first saw Mr. Patterson in January 20 17. Mr. Patterson noted a
primary complaint of right shoulder pain extending to his neck on the intake form. Dr.
Rungee diagnosed him with "persistent right neck and shoulder pain." A cervical MRI
revealed a "disc osteophyte complex" but no obvious impingement. Dr. Rungee felt the
osteophyte pre-existed the accident but that the accident could have made it symptomatic.
Mr. Patterson underwent an epidural steroid injection but claimed the injection did not
help. Dr. Rungee still felt most of Mr. Patterson's complaints stemmed from his neck,
although he did not rule out a shoulder problem.

       In March, Mr. Patterson returned to Dr. Rungee. Before returning, he underwent
neuropsychological testing by Dr. James Walker, as ordered by Mr. Patterson's
authorized neurologist, Dr. Richard Rubinowicz. 2 Dr. Rungee noted Dr. Walker's
2
  Dr. Rubinowicz treated Mr. Patterson for asserted neurologic complaints, including memory loss, headaches,
double vision and loss of cognitive function. Following Dr. Walker's assessment, Dr. Rubinowicz released Mr.
Patterson from neurologic care and declined to refer him for psychological treatment.

                                                     2
conclusion that Mr. Patterson did not suffer from any cognitive disorders that prevented
him from working and related "his complaints of extreme psychiatric symptoms ... to his
rather histrionic style." Dr. Rungee also noted a change in Mr. Patterson's shoulder
complaint. He now claimed that he could not physically elevate his arm because his
shoulder became "mechanically stuck." On exam, Mr. Patterson would only actively
abduct his shoulder above 30 degrees. Dr. Rungee ordered a shoulder MRI despite his
belief that it would not show anything to explain Mr. Patterson's symptomology.

       Upon return to Dr. Rungee following the MRI, Mr. Patterson still complained of
his shoulder "locking up" at 90 degrees abduction as well as pain in his neck and
shoulder radiating to his fingertips. On exam, Mr. Patterson actively lifted his arm only
level with his head, but Dr. Rungee stated he could passively move the shoulder through
full range of motion. Dr. Rungee reviewed the MRI and found a labral tear but no
damage to the rotator cuff. Dr. Rungee stated their meeting was a "bit tense" as he
conveyed the labral tear did not explain Mr. Patterson's symptoms and that surgery
would not alleviate them.

        In April, Mr. Patterson returned for an evaluation of his low back complaints. Dr.
Rungee reviewed MRI film and told Mr. Patterson he did not have any nerve
compression to explain his complaints. At that point, Mr. Patterson "expressed
frustration" and requested another doctor for his shoulder. Dr. Rungee again told him
that the labral tear did not explain his symptoms or his purported inability to raise his
arm. He declined to make any recommendation other than a functional capacity
evaluation (FCE) to determine Mr. Patterson's physical capabilities.

        The FCE stated that Mr. Patterson put forth a valid effort and could work in the
"light physical demand" category. On April 17, Dr. Rungee met with Mr. Patterson for
the last time. Mr. Patterson remained discontented and complained he felt he did not
receive good care from Dr. Rungee. He again demanded a second opinion and told Dr.
Rungee that when he got one, he would bring it to Dr. Rungee to "prove" he was wrong.
Dr. Rungee stated it was clear that "there was nothing I could tell him that would salvage
a relationship." He determined Mr. Patterson was at maximum medical improvement
(MMI) and released him subject to the FCE restrictions. He concluded his report by
stating, "We will not see him back."

       Mr. Patterson's counsel emailed the handling adjuster and requested another
orthopedic panel because Dr. Rungee refused to provide further treatment. The adjuster
declined. On April 28, Huff and Puff terminated Mr. Patterson because it could not
accommodate his restrictions.

       On May 19, 2017, Mr. Patterson sought unauthorized treatment with Dr. Jeffrey
Peterson, an osteopath, for pain along the entire right side of his body. On exam, Mr.
Patterson actively raised his outstretched arm above his shoulder to 110 degrees, but Dr.

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Peterson could raise it to 150 degrees. Dr. Peterson ordered an arthrogram, which did
not reveal any abnormalities. He followed up with an MRI that, according to the report,
revealed some degenerative changes at the AC joint which caused mild impingement but
did not reveal any rotator cuff or labral tears. However, Dr. Peterson reviewed the film
and believed a follow-up with a shoulder specialist should occur. Further, he believed
Mr. Patterson's shoulder problems were due to his work-related accident since he had no
complaints before, and "he's had nothing but trouble" since.

        At Dr. Peterson's request, Dr. Stephen Neely saw Mr. Patterson for a second
opinion. Dr. Neely found the shoulder to be stiff and painful. Although he could not
pinpoint the cause, he felt the situation called for an arthroscopic evaluation for a possible
labral tear and to decompress possible impingement.

        On December 21, Dr. Peterson performed arthroscopic surgery on Mr. Patterson's
right shoulder to repair the "obvious" tearing of the anterior/superior labrum at the biceps
insertion. Dr. Peterson's most recent note of February 16, 2018 stated that Mr. Patterson
was undergoing physical therapy. Mr. Patterson had no concerns or complaints, and Dr.
Peterson did not place any restrictions on his activities. However, he indicated Mr.
Patterson would return in six weeks.

        Dr. Peterson and Dr. Glynn, the initial authorized physician, both provided written
opinions supporting the work-relatedness of Mr. Patterson's injury. In response to a
letter from Mr. Patterson's counsel, Dr. Peterson wrote that the right shoulder injury
arose primarily from the motor vehicle accident on October 17, 2016. In response to
another letter, he stated that Mr. Patterson's pre-surgical inability to abduct his shoulder
beyond 90 degrees was due to the labrum tear; that his care was reasonable and
necessary; and that Mr. Patterson was not at MMI on the first day he saw him. Dr. Glynn
also wrote that Mr. Patterson's right shoulder injury arose primarily out of and in the
course and scope of his employment on October 17, 20 16, in response to a letter from
Mr. Patterson's attorney.

       Huff and Puff submitted Dr. Rungee's deposition. Dr. Rungee testified that, in his
opinion, Mr. Patterson did not suffer a right-shoulder labral tear in the accident.
Essentially, he based this opinion on two grounds. One, he believed that if the accident
had actually tom the labrum, Mr. Patterson's pain would have been so intense he would
have required immediate medical attention rather than waiting until the next morning.
Two, a tom labrum simply could not cause the shoulder joint to "lock up" at 90 degrees,
as Mr. Patterson claimed it did several months after the accident.

       Dr. Rungee further stated that if Mr. Patterson now claims that he has full range of
motion after his surgery, it only proves that Mr. Patterson was lying when he told him
that he couldn't move his shoulder. In fact, Mr. Patterson's claim that his shoulder
"locked up," along with his increasing hostility and Dr. Walker's neuropsychological

                                              4
assessment, caused Dr. Rungee to believe Mr. Patterson did not suffer any injury in the
accident. Finally, Dr. Rungee admitted that their relationship deteriorated through the
course of treatment and that he did not like treating Mr. Patterson because their
relationship became more "controversial" with each visit.

        At the hearing, Mr. Patterson testified that he did not have any right shoulder
problems before his accident. He also vigorously maintained that he could not physically
lift his outstretched arm above his head prior to his surgery. However, he demonstrated
that he could now do so by raising his arm over his head without apparent difficulty.

                             Findings of Fact and Conclusions of Law

      Mr. Patterson 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)(l) (2017); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

        Here, the essential issue is whether Mr. Patterson provided sufficient evidence to
show he is likely to prevail at trial in establishing that he suffered a right-shoulder labral
tear on October 17, 2016. The medical evidence submitted provides opposing views on
this issue. 3 Thus, the Court must consider the evidence to determine which opinion
should be accorded the most weight. See Sanker v. Nacarato Trucks, Inc., 2016 TN Wrk.
Comp. App. Bd. LEXIS 27, at* 12 (July 6, 2016).

        In weighing these contrary opinions, the Court holds that Mr. Patterson is likely to
prevail in establishing causation and rebutting any presumption of correctness that might
be afforded to Dr. Rungee's causation opinion, even though the Court believes Dr.
Rungee's explanation that a labral tear would not cause a shoulder joint to mechanically
"lock up." Despite Mr. Patterson's exaggerated symptoms, the Court finds the following
evidence compelling in crediting Drs. Peterson's and Glynn's opinion over Dr. Rungee's
as to causation.

        Huff and Puff cannot dispute that Mr. Patterson was in a serious accident in which
his vehicle rammed forcefully into another, causing substantial damage to the truck and
the trailer. Mr. Patterson testified he had never experienced pain in his shoulder before
the accident, and Huff and Puff provided no evidence to the contrary. Mr. Patterson
consistently complained of right shoulder pain beginning with his emergency room visit
the day after the accident. The FCE noted valid effort. Based on Dr. Peterson's operative

3
 The parties made extensive arguments as to whether Dr. Rungee was an "authorized" physician, thus affording his
opinion a statutory presumption of correctness. However, the Court finds that Mr. Patterson provided sufficient
evidence to rebut Dr. Rungee's opinion by a preponderance of the evidence even if the presumption did apply.
Thus, the Court declines to address whether Mr. Patterson selected Dr. Rungee from a valid panel.

                                                       5
report, Dr. Neely observed that Mr. Patterson's shoulder was stiff and painful, thus
warranting an arthroscopic evaluation. Mr. Patterson did have an actuallabral tear which
required repair. Drs. Peterson and Glyn provided opinions that Mr. Patterson's right
shoulder complaints were work-related. Mr. Patterson's testimony that his complaints
improved following surgery supports the likelihood of proving a work-related injury to
his shoulder.

       Finally, Dr. Rungee primarily based his opinion against causation on the grounds
that Mr. Patterson did not seek medical care immediately after the accident and that he
made exaggerated complaints. The Court is not convinced that Mr. Patterson's decision
to wait until the next day to seek medical care is as significant as Dr. Rungee believed,
given the circumstances immediately following the accident. And while the exaggerated
complaints certainly go to Mr. Patterson's credibility, the Court does not give it the
weight Dr. Rungee seemed to do, particularly in light of the evidence described above. It
is clear from testimony that the relationship between Dr. Rungee and Mr. Patterson
became increasingly hostile as Mr. Patterson grew frustrated with his perceived lack of
care. Therefore, after weighing the available evidence in its entirety, the Court holds Mr.
Patterson is likely to overcome any presumption of correctness that might be afforded Dr.
Rungee's causation opinion and prove at trial that he sustained a labral tear in his right
shoulder as a result of his October 17, 20 16 accident.

       Based on these findings, the Court also holds that Huff and Puff is obligated to pay
for the reasonable and necessary medical expenses incurred for the treatment of Mr.
Patterson's shoulder injury following Dr. Rungee's dismissal. "An employer may risk
being required to pay for unauthorized treatment if it does not provide the treatment made
reasonably necessary by the work injury as required by Tennessee Code Annotated
section 50-6-204(a)(1)(A)." See Hackney v. Integrity Staffing Solutions, 2016 TN Wrk.
Comp. App. Bd. LEXIS 29, at *8-9 (July 22, 2016). Of course, before it is obligated to
do so, "the employer must first be given an opportunity to provide the treatment."
Further, "[w ]hether an employee is justified in seeking additional medical services to be
paid for by the employer without consulting the employer depends on the circumstances
of each case." !d. (quoting Dorris v. INA Ins. Co., 764 S.W.2d 538,541 (Tenn. 1989)).

       Here, Dr. Run gee made it clear in his April 17, 2017 note that their relationship
could not be "salvaged" and he would not see Mr. Patterson again. Upon receiving this
note, Mr. Patterson's counsel requested another panel from the adjuster, and the adjuster
refused to provide one. The Court finds that under these circumstances, Mr. Patterson
was justified in seeking medical services on his own, including surgery and was under no
obligation to notify Huff and Puff of his continued treatment. See Barrett v. Lithko
Contracting, Inc. et al., 2016 TN Wrk. Comp. App. Bd. LEXIS 93, at *8 (Dec. 8, 2016).

       Finally, Dr. Peterson stated that Mr. Patterson was not at MMI from his shoulder
condition as of April 17, 2017, the date Huff and Puff terminated his temporary disability

                                            6
benefits.    The Court agrees with this assessment given that he underwent shoulder
surgery and has testified as to his substantial post-surgical improvement in his shoulder.
Mr. Patterson has yet to return to work, and Dr. Peterson has not stated he is at MMI.
However, on February 16, 2018, Dr. Peterson released Mr. Patterson with no physical
restrictions on his activities. Given this evidence, the Court holds that Mr. Patterson is
likely to prevail in proving entitlement to temporary disability benefits from April 18,
2017 through February 16, 2018, at the stipulated compensation rate of $771.02.

      IT IS, THEREFORE, ORDERED that:

   1. Huff and Puff shall pay for the reasonable and necessary medical expenses Mr.
      Patterson incurred through treatment of his right shoulder by Dr. Jeffrey Peterson.
      Dr. Peterson shall be designated as Mr. Patterson's authorized doctor with regard
      to any further treatment of his right shoulder.


   2. Huff and Puff shall pay temporary partial disability benefits from April 18, 2017,
      until February 16, 2018, at the compensation rate of $771.02 for a total of
      $33,594.44.

   2. This matter is set for a Scheduling Hearing on May 29, 2018, at 1:30 p.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 your participation.

ENTERED THIS THE / ( hDAY OF April, 2018.




                               ~-·Robert V. Durham, Judge
                                  Court of Workers' Compensation Claims




                                            7
                                      APPENDIX

Technical Record

   1.   Petition for Benefit Determination
   2.   Dispute Certification Notice
   3.   Request for Expedited Hearing
   4.   Employee's Pre-Hearing Statement
   5.   Employer's Witness and Exhibit List
   6.   Employer's Expedited Hearing Brief

Exhibits

   1. Separation Notice
   2. Wage Statement
   3. Mr. Patterson's affidavit
   4. Dr. Glynn's response to causation letter
   5. Dr. Peterson's medical records
   6. Dr. Walker's medical records
   7. Physical therapy records
   8. Rutherford County Hospital medical records
   9. Dr. Glynn's medical records
   10. Dr. Rungee's medical records
   11. Additional records from Dr. Peterson
   12. Dr. Peterson's response to causation letter
   13.Dr. Peterson's response to second causation letter
   14.Dr. Peterson's CurriculumVitae
   15.Dr. Rubinowicz's medical records
   16. Traffic accident report (I.D. only)
   17. Dr. Rungee' s deposition
   18. Further records from Dr. Peterson
   19.Employer's response to Request for Admissions
   20. Choice of Physician form
   21. Accident scene photos




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                            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 April 17
                                                                               _ 2018.

Name                Certified   Via        Email Address
                    Mail        Email
Michael Fisher                      X      mfisher@ddzlaw .com
Michael Jones                       X      mj ones@wimberly lawson.com




                                         Pe ny S r m, Clerk of Court
                                         Court of orkers' Compensation Claims




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