                                                                                             FILED
                                                                                           Jul 16, 2019
                                                                                          12:15 PM(CT)
                                                                                       TENNESSEE COURT OF
                                                                                      WORKERS' COMPENSATION
                                                                                             CLAIMS




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

JEANETTE CORNELISON,                                 )   Docket No. 2019-07-0058
    Employee,                                        )
v.                                                   )
JTN LODGING, LLC,                                    )   State File No. 43390-2018
     Employer,                                       )
And                                                  )
EMPLOYERS PREFERRED INS. CO.,                        )   Judge Allen Phillips
     Carrier.                                        )


     EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS AND
             DENYING TEMPORARY DISABILITY BENEFITS


       Ms. Cornelison requested additional medical benefits and temporary disability
benefits for injuries to her right knee and back. JTN contended it paid all medical benefits
to which she was entitled and denied she was entitled to temporary disability benefits.
The Court conducted an Expedited Hearing on June 27, 2019, and holds Ms. Cornelison
would likely prevail on her request for additional medical benefits but not temporary
disability benefits.

                                         History of Claim

      Ms. Cornelison tripped and fell on both knees. JTN provided a panel of orthopedic
surgeons that included Dr. John Masterson and Dr. Michael Smigielski. She chose Dr.
Masterson but later saw Dr. Smigielski for a second opinion.

      Dr. Masterson noted her history and diagnosed, among other conditions, right-
knee pain. 1 An MRI of the right knee revealed a tom meniscus, and Dr. Masterson
recommended an injection for both "diagnostic and therapeutic purposes." Specifically,
1
 Ms. Cornelison complained of injuries to other body parts, which are not relevant to the issues here.
Also, Dr. Masterson was not deposed; thus, the Court takes his statements and opinions from his office
notes.
he said if the injection improved Ms. Cornelison's symptoms, he contemplated returning
her to full duty. Conversely, if the injection provided "only temporary relief," he would
consider arthroscopic surgery to repair the meniscal tear. Ms. Cornelison's response to
the injection led Dr. Masterson to recommend surgery. As to causation, he stated the
meniscal tear was "greater than 51%" related to the work injury.

       While evaluating her knee, Dr. Masterson also noted complaints of "burning pain"
in Ms. Cornelison's leg. He could not explain the pain but added she had no history of
"neuropathy" before the fall. He also noted Ms. Cornelison neither had back pain nor did
she report a back injury when she fell. Regardless, he recommended she undergo a nerve
study to evaluate the burning pain because he wanted the results before performing
surgery.

        The nerve study proved normal. Nevertheless, Dr. Masterson called Ms.
Cornelison's complaints "nerve type pain." Moreover, because her pain was nerve-related
rather than knee-related, Dr. Masterson reversed his earlier causation opinion and said he
"would not be able to recommend a right knee arthroscopy." Ms. Cornelison asked for a
second opinion. Dr. Masterson agreed.

       Ms. Cornelison testified that JTN's nurse case manager scheduled a second
opinion with Dr. Smigielski. Testifying by deposition, Dr. Smigielski said Ms.
Cornelison complained of both knee and leg pain. He suspected her leg pain was sciatica,
a type of pain caused by nerve impingement in the lower back. He recommended an MRI
of her lumbar spine to check for impingement. He also confirmed she needed a right-knee
arthroscopy for the torn meniscus.

      Ms. Cornelison testified that JTN, through the case manager then returned her to
Dr. Masterson. Instead of obtaining the lumbar MRl as Dr. Smigielski recommended, Dr.
Masterson recommended a Functional Capacity Evaluation (FCE) to determine which
work activities Ms. Cornelison might perform given her knee injury. He also reiterated
his belief that she did not need knee surgery. Ms. Cornelison disagreed with Dr.
Masterson's FCE recommendation and with his opinion on surgery.

       In explaining himself, Dr. Masterson noted the nerve testing was normal and that
Ms. Cornelison had not complained of a back injury or back pain. He "explained to her
exhaustively" that he could not relate her complaints of a back injury to work event.
Regardless, he administered another knee injection to treat the meniscal tear. When Ms.
Cornelison claimed he deliberately injected her "in the wrong spot," Dr. Masterson
declined to see her again. However, he later placed her at maximum medical
improvement and listed a "medial meniscal tear" as one of the final diagnoses. He
assessed an impairment rating for the meniscal tear and released her to full duty.



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      After Dr. Masterson refused to see her, Ms. Cornelison requested that JTN allow
her to return to Dr. Smigielski. She testified without rebuttal that she received no
response, so she returned to Dr. Smigielski on her own.

        Ms. Cornelison then underwent the MRI of her lumbar spine, and it revealed nerve
impingement. Dr. Smigielski testified that the impingement caused Ms. Cornelison's
sciatica, and he recommended an anesthesiologist perform a nerve block. He also referred
her to another orthopedic surgeon for consideration of the arthroscopy. Regarding
causation, Dr. Smigielski testified that "he would say so" when asked if the workplace
accident was "more likely than not" the cause of the torn meniscus. Further, in a letter to
Ms. Cornelison's counsel, Dr. Smigielski stated: ''I would say her knee injury and sciatica
were related to her work accident."

        Dr. Smigielski also testified Ms. Cornelison should remain off work until she saw
the anesthesiologist. During Dr. Smigielski's deposition, Ms. Cornelison's counsel
presented him with a note (not in evidence) from an anesthesiologist purportedly
restricting Ms. Cornelison from work. Dr. Smigielski testified he could neither agree nor
disagree with the purported restrictions because he does not perform nerve blocks.
Likewise, when presented with the orthopedic surgeon's recommendations for time off
work, Dr. Smigielski testified he did not know of any periods she actually missed.

       At the hearing, Ms. Cornelison testified that all of her pain, both in her knee and
her leg, began after the accident. She did not know that the sciatica was related to nerve
impingement in her back until Dr. Smigielski told her it was. Further, she argued that Dr.
Masterson recorded her complaints of leg pain throughout his treatment but admitted he
did not know its source. Conversely, she asserted Dr. Smigielski properly diagnosed her
sciatica and confirmed it by MRI. She argued Dr. Smigielski's testimony provided the
necessary causal relationship between both injuries.

       Further, Ms. Cornelison remained adamant that she requested additional medical
treatment after Dr. Masterson refused to see her and she never received a response.
Therefore, she went to Dr. Smigielski on her own but has not received the recommended
treatment.

       Ms. Cornelius requested the Court designate Dr. Smigielski as her authorized
treating physician for her knee and back. She pointed out that he was on the original
panel and that JTN scheduled the second opinion with him. She also requested temporary
disability benefits from the time Dr. Smigielski first took her off work through the
present.

       For its part, JTN argued Dr. Masterson's opinions are presumed correct. Namely,
he placed Ms. Cornelison at maximum medical improvement and stated she did not need
surgery. He also did not relate any back injury to her work. Thus, JTN asserted it owes no

                                            3
further medical benefits. Additionally, JTN asserted Dr. Smigielski was only a second
opinion, and it did not intend to transfer care. Thus, JTN concluded Ms. Cornelison must
return to Dr. Masterson or, alternatively, it would provide a new panel.

                         Findings of Fact and Conclusions of Law

       At this Expedited Hearing, Ms. Cornelison must show a likelihood of prevailing at
a hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(l) (2018).

                                     Medical Benefits

                                       a) Causation

       To receive medical benefits, Ms. Cornelison must establish her injuries arose
primarily out of her employment and caused her "need for medical treatment[.]" Tenn.
Code Ann. § 50-6-102(14) (Emphasis added). An injury arises primarily out of the
employment only if it has been shown to a reasonable degree of medical certainty that the
work contributed more than fifty percent in causing the injury when considering all
causes. "Shown to a reasonable degree of medical certainty" means that it is more likely
than not considering all causes. Tenn. Code Ann.§ 50-6-102(14)(A)-(D).

        Here, Dr. Smigielski testified he "would say so" when asked if the work injury
more likely than not caused Ms. Cornelison's need for the knee arthroscopy. He also
stated that he "would say her knee injury and sciatica were related to her work accident."
In Panzarella v. Amazon.com, Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 30 (May 15,
20 17), the Appeals Board held a causation opinion satisfies the required legal standard
even if it is not "a rigid recitation of the statutory definition" so long as there is
"sufficient proof' of the statutory requirements of an injury. !d. at * 14. In this case, the
Court finds Dr. Smigielski's testimony sufficient to satisfy the statutory definition of an
injury as to both the knee and back.

        Further, though Dr. Masterson initially said Ms. Cornelison's tom meniscus was
"greater than 51%" related to the work event, he later reversed his opinion. Thus, the
Court must consider whether his opinion or Dr. Smigielski's is correct. When faced with
conflicting opinions, the Court may conclude that the opinion of one expert should be
accepted over that of another and that it contains the more probable explanation. Ledford
v. Mid-Georgia Courier, Inc., 2018 TN Wrk. Comp. App. Bd. LEXIS 28, at *8 (June 4,
20 18). The Court holds Dr. Smigielski provided the more probable explanation.

       Specifically, the Court first considers Ms. Cornelison's testimony that all of her
pain, both in her knee and leg, resulted from the work injury. Her testimony is probative
on the issue of causation, and the Court both believes her and finds her credible. See
Arciga v. AtWork Personnel Serv., 2016 TN Wrk. Comp. App. Bd. LEXIS 6, at *7 (Feb.

                                             4
2, 2016). Second, Dr. Smigielski obtained an MRI that objectively established sciatica as
the cause of Ms. Cornelison's leg pain. Third, Dr. Masterson recorded Ms. Cornelison's
complaints of burning pain in her leg throughout his treatment and recommended its
evaluation by nerve testing. Dr. Smigielski verified Ms. Cornelison's leg pam was
separate from her knee pain, thus establishing both sciatica and a knee injury.

       Finally, the Court holds Ms. Cornelison rebutted the presumption of correctness
attached to Dr. Masterson's reversal of opinion contained in his medical records by a
preponderance of the evidence through the sworn testimony of Dr. Smigielski. See Tenn.
Code Ann. § 50-6-102(14)(E) (the causation opinion of a panel physician is presumed
correct subject to rebuttal by a preponderance of the evidence).

      In summary, the Court holds Ms. Cornelison would likely prevail at a hearing on
the merits that her work injury caused the need for treatment of both her right knee and
back.

                                a) Treatment by Dr. Smigielski

       Ms. Cornelison testified without contradiction that she asked JTN to provide
further treatment before she returned to Dr. Smigielski. That request complies with
Tennessee law requiring an employee to give the employer an opportunity to provide
treatment each time the employee reasonably requires it. Greenlee v. Care Inn of
Jefferson City, 644 S.W.2d 679, 680 (Tenn. 1983). However, Ms. Cornelison must also
show she was justified in seeking further treatment. See Pickett v. Chattanooga
Convalescent and Nursing Home, Inc., 627 S.W.2d 941 (Tenn. 1982).
       Here, the Court finds Ms. Cornelison justified in continuing treatment with Dr.
Smigielski. Dr. Masterson stated he would not see her again, and he placed her at
maximum medical improvement, by definition an assertion that he had nothing more to
offer. To the contrary, Dr. Smigielski diagnosed sciatica, a condition separate and apart
from the meniscal tear, and said Ms. Cornelison needed treatment for both conditions. A
reasonable person in Ms. Cornelison's position would want further treatment for both
conditions, given that they flowed from the same injury and caused her disablement.
       Likewise, the Court finds it appropriate to designate Dr. Smigielski as the
authorized treating physician because Ms. Cornelison developed a relationship with him
after JTN forced her to seek treatment on her own. Further, JTN set the second opinion
with Dr. Smigielski and put him on the initial panel. JTN cannot ask to provide another
panel at this late date. "A belated attempt to insist that an injured worker treat with a
panel physician after the worker has established a doctor-patient relationship with another
physician will not succeed, particularly when the employer has pointed to no rationale to
require the change in physicians other than an assertion of its statutory right." Ducros v.
Metro Roofing and Metal Supply Co., Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 62, at
*11 (Oct. 17, 2017). The Court holds Dr. Smigielski is the authorized treating physician.
                                             5
                              Temporary disability benefits

        To receive temporary disability benefits, Ms. Cornelison must establish that (1)
she became disabled from working due to a compensable injury; (2) a causal connection
between her injury and her inability to work; and (3) her period of disability. Jones v.
Crencor Leasing and Sales, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11,
20 15). The Court holds she did not establish the required elements.

       Specifically, though Dr. Smigielski testified he took Ms. Cornelison off work until
she saw an anesthesiologist, he deferred to the anesthesiologist regarding any time off
work following a nerve block. Ms. Cornelison presented no proof of when she saw an
anesthesiologist or any period he had her off work. Likewise, though Dr. Smigielski
referenced a note from an orthopedic surgeon regarding time off, Ms. Cornelison did not
have surgery or provide evidence regarding when a surgeon took her off work. Given this
lack of evidence, the Court holds Ms. Cornelison is not entitled to temporary disability
benefits at this time.

IT IS, THEREFORE, ORDERED as follows:

   1. JTN shall provide Ms. Cornelison additional reasonable and necessary medical
      treatment for both her knee and back under Tennessee Code Annotated section 50-
      6-204(a)(1)(A). Dr. Smigielski is designated the authorized treating physician.

   2. Ms. Cornelison's claim for temporary disability benefits is denied at this time.

   3. The case is set for a Status Hearing on Monday, September 9, 2019, at 9:00a.m.
      Central Time. The parties must call 731-422-5263 or toll-free 855-543-5038 to
      participate in the Hearing.

   4. 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).
      The Insurer or Self-Insured Employer must submit confirmation of compliance
      with this Order to the Bureau by email to WCCompliance.Program@tn.gov 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' Compensation Compliance Unit v1a email at
      WCCompliance.Program@tn.gov.


      ENTERED July 16, 2019.


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                                    APPENDIX

Exhibits:
   1. Deposition ofDr. Michael Smigielski
   2. Medical Records of:
          o Dr. John Masterson
          o Dr. Ronald Bingham
          o Physical Therapy of Jackson (FCE)
   3. Dr. Masterson's Final Medical Report (C-30A)
   4. Employee's Choice of Physician Form (C-42)

Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Scheduling Hearing
   4. Order Converting to Request for Expedited Hearing
   5. Transfer Order
   6. Employee's Witness and Exhibits List
   7. Employer's Witness and Exhibits List
   8. Employer's Pre-Hearing Brief




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                            CERTIFICATE OF SERVICE

      I certify that a copy of this Order was sent as indicated on July 16, 2019.
               Name                     Via Email               Service Sent To:

David Hardee, Employee's Attorney            X       kperry@hmdlaw1.com
Tiffany Sherrill, Employer's Attorney        X       tbsherrill@mijs.com




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                                         P~hrum, Court Clerk
                                         W c.courtclerk@tn.gov




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