                                                                                   FILED

                                                                                  IN COURIOF
                                                                           l'\ ORKIRS' OO:MPiliNS ~UION
                                                                                    CLAD.IS

                                                                                   Ti.n1eo 1:01PM

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

Daryl Crabtree,                             )   Docket No.: 2016-01-0701
            Employee,                       )
v.                                          )
Eaton Corporation,                          )   State File No.: 70024-2015
            Employer,                       )
And                                         )
Old Republic Insurance Co.,                 )   Judge Audrey A. Headrick
            Carrier.                        )


                          EXPEDITED HEARING ORDER
                          (DECISION ON THE RECORD)


        This claim came before the Court upon a Request for Expedited Hearing filed by
Daryl Crabtree. The Court issued a Docketing Notice on April 18, 2017, allowing seven
business days for the parties to file objections or submit position statements. Both sides
submitted position statements, and Eaton Corporation did not object to a decision on the
record determination. The central legal issue is whether Mr. Crabtree is likely to
establish at a hearing on the merits that Eaton must provide additional medical benefits
with an unauthorized doctor for his compensable back injury. This Court holds it needs
no additional information to determine this issue. For the reasons set forth below, the
Court holds Mr. Crabtree is not entitled to the requested benefit at this time.

                                  History of the Claim
       Here, the parties do not dispute that Mr. Crabtree, a sixty-one-year-old welder,
sustained a low-back injury on August 28, 2015, while moving a large container of
copper at work. The parties dispute whether Mr. Crabtree would likely prevail at a
hearing on the merits in rebutting the statutory presumption of correctness afforded to the
authorized treating physician's opinion that the need for further back treatment is not
caused by the work injury.




                                            1
       After his injury, Mr. Crabtree received authorized medical treatment at
Healthworks for low-back pain that radiated down his right leg. Vickie Frye, a
physician's assistant, diagnosed him with a back strain and ordered a lumbar MRI. Based
on the MRI, Ms. Frye referred Mr. Crabtree to an orthopedic surgeon. (Ex. 7 at 13-15.)

      After the referral, Mr. Crabtree selected Dr. Rickey Hutcheson from a panel of
orthopedic surgeons. (Ex. 3.) Mr. Crabtree infonned Dr. Hutcheson that he had a back
problem five years ago but had no problems since that time. Dr. Hutcheson examined
Mr. Crabtree and reviewed his lumbar MRI. After doing so, Dr. Hutcheson indicated the
L3-4 and L4-5 central stenosis with foramina! stenosis pre-existed the injury and
diagnosed Mr. Crabtree with a lumbar strain and lumbar spondylosis. He prescribed
medication and ordered physical therapy.
        Dr. Hutcheson treated Mr. Crabtree on two other occasions. At Mr. Crabtree's last
visit with Dr. Hutcheson in January 2016, Dr. Hutcheson stated, "I have done all that I
can do for him." !d. at 22. He refilled Mr. Crabtree's prescriptions and continued his
physical therapy for two more weeks. At that time, Dr. Hutcheson placed Mr. Crabtree at
maximum medical improvement (MMI) with a two percent medical impairment rating
for his lumbar and thoracic strains. Dr. Hutcheson discharged Mr. Crabtree and indicated
he would see him as needed. Mr. Crabtree requested a second opinion due to his
continued symptoms. Eaton denied his request. (Ex. 1.)

       Four months later, Mr. Crabtree sought treatment on his own with Dr. Scott
Hodges, an orthopedic surgeon. He told Dr. Hodges he injured his back on August 28,
2015, while moving a large barrel and indicated he had experienced pain since that time.
Mr. Crabtree indicated he had not lost any time from work due to his symptoms. He
disclosed that he previously treated with Dr. Jay Jolley in 2008 for his back. Melissa
Shuleva, Dr. Hodges' physician's assistant, prescribed medications and gave Mr.
Crabtree a lumbar spine epidural injection. (Ex. 7 at 24-26.)

       Due to Mr. Crabtree's ongoing complaints of pain, numbness, and tingling down
his right leg, Ms. Shuleva ordered a lumbar CT scan and myelogram. The scans
indicated L4-5 mild to moderate foramina! stenosis. Dr. Hodges diagnosed Mr. Crabtree
with L4-5 severe foramina! stenosis and recommended a transforaminal interbody lumbar
fusion with hardware. !d. at 27-34.
       Several months later, Dr. Hodges responded to a questionnaire from Mr. Crabtree.
Dr. Hodges was asked if Mr. Crabtree's low-back condition arose primarily out of his
work related injury of August 28, 2015. He provided the following response: "Yes,
based on records I have available to me (old records 2007-2008)-recent records. If
there are records 2008 [through] 2015-2016, this could change answer." On November
16, 2016, Eaton filed a Notice of Controversy based on the causation opinion of Dr.




                                            2
Hutcheson, the authorized treating physician (ATP), and because Dr. Hodges was an
unauthorized physician. 1 (Ex. 5.)
       With regard to the requested benefits, Mr. Crabtree seeks medical treatment under
the care of Dr. Hodges? Mr. Crabtree argued he had no choice but to seek treatment on
his own with Dr. Hodges since Eaton denied his claim and denied his request for a
second opinion. He relied on the opinion of Dr. Hodges regarding his diagnosis and
surgical recommendation.

        In response, Eaton argued the Court should deny Mr. Crabtree's request for
medical treatment under the care of Dr. Hodges. It relied on the opinion of Dr.
Hutcheson, the panel physician, who placed Mr. Crabtree at MMI and indicated he
needed no further treatment beyond the two additional weeks of physical therapy ordered
at the time of discharge. Eaton also argued Mr. Crabtree did not rebut the presumption of
correctness given the medical opinion of Dr. Hutcheson and contended the mere
submission of Dr. Hodges' opinion is not sufficient to do so.

                               Findings of Fact and Conclusions of Law

                                            General Legal Principles
        In order to grant Mr. Crabtree the relief he seeks, the Court must apply the
following legal principles. Mr. Crabtree bears the burden of proof on all essential
elements of his workers' compensation claim. Scott v. Integrity Staffing Solutions, 2015
TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). However, he is not required
to prove every element of his claim by a preponderance of the evidence in order to obtain
relief at an expedited hearing. McCord v. Advantage Human Resourcing, 2015 TN Wrk.
Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). Rather, at an expedited hearing,
Mr. Crabtree must come forward with sufficient evidence from which this Court might
determine that he is likely to prevail at a hearing on the merits. !d.

       Here, Mr. Crabtree requests that the Court order Eaton to provide him with
additional medical treatment with his own physician, Dr. Hodges. Mr. Crabtree must
1
  After Eaton filed its Notice of Controversy, it had Dr. Roger Berg, a New Jersey radiologist, perform a Peer
Review of Mr. Crabtree's records. His opinion was that Mr. Crabtree "sustained no discernible injury to his lumbar
spine, disks or nerve roots as a result of the 8/28/15 accident." (Ex. 7 at 45-47.) Although Eaton submitted Dr.
Berg's Peer Review in support of its position, the Court finds it unnecessary to give any weight to the opinion of a
radiologist licensed in New Jersey who only performed a record review. Since both sides admitted evidence from
physicians who actually examined Mr. Crabtree, the Court finds it unnecessary to rely upon a records review.
2
  In the Dispute Certification Notice, Mr. Crabtree also raised the disputed issue of permanent disability benefits.
However, since this is an expedited hearing on the record determination, the Court will not address the permanent
disability benefits issue until the final compensation hearing. Similarly, Mr. Crabtree raised the issue of temporary
disability benefits in the Dispute Certification Notice, but the parties did not address that issue in its filings with the
Court. Accordingly, the Court will not address the temporary disability benefits issue at this time.


                                                            3
show, to a reasonable degree of medical certainty, that the incident "contributed more
than fifty percent (50%) in causing the ... disablement or need for medical treatment,
considering all causes." Tenn. Code Ann. § 50-6-102(14) (2016). Likewise, an
aggravation of a pre-existing condition is compensable only if "it can be shown to a
reasonable degree of medical certainty that the aggravation arose primarily out of and in
the course and scope of employment." Id. Further, as the panel physician, Dr.
Hutcheson's opinion regarding causation "shall be presumed correct but this presumption
shall be rebuttable by a preponderance of the evidence." Jd.

                                                  Medical Benefits

       As noted above, in order to prevail, Mr. Crabtree must rebut the presumption of
correctness given the medical opinion of Dr. Hutcheson. In an effort to do so, Mr.
Crabtree submitted the opinion of Dr. Hodges, who recommended low-back surgery. Dr.
Hodges' opinion that Mr. Crabtree's need for low-back surgery arose primarily out of his
work-related injury is contingent on whether additional medical records exist from 2008
through 2016 that might alter his opinion. His medical records do not indicate that he
reviewed Mr. Crabtree's medical records from either Healthworks or Dr. Hutcheson.

       Conversely, Dr. Hutcheson diagnosed Mr. Crabtree with pre-existing L3-4 and
L4-5 central stenosis with foramina} stenosis and indicated he was back to baseline from
his work-related lumbar and thoracic strains. Dr. Hutcheson also discharged Mr.
Crabtree and stated he would see him on an as-needed basis. Based on the evidence
submitted, the Court holds that the mere submission of the opinion of Dr. Hodges is not
sufficient to overcome the statutory presumption in favor of Dr. Hutcheson. See Sanker
v. Nacarato Trucks, Inc., et al., 2016 TN Wrk. Comp. App. Bd. LEXIS 27, at *11-13
(July 6, 2016). 3

       Accordingly, the Court holds Mr. Crabtree is unlikely to prevail at a hearing on the
merits in proving that Eaton must provide additional medical benefits with Dr. Hodges,
an unauthorized doctor, for his compensable back injury. Therefore, while the Court
denies his specific request for medical benefits, Mr. Crabtree remains entitled to return to
see Dr. Hutcheson as his authorized treating physician.




3
  Although Mr. Crabtree argues Eaton wrongfully denied him a second opinion, no entitlement to a second opinion
exists. Under Tennessee Code Annotated section 50-6-204(a)(3)(C) (2016), the entitlement to a second opinion
regarding surgery and diagnosis only arises when the treating physician recommends surgery. Here, Dr. Hutcheson
did not recommend surgery. Further, the Appeals Board recently held there is no entitlement to a second opinion on
the issue of diagnosis alone. Petty v. Convention Prod. Rigging, 2016 TN Wrk. Comp. App. Bd. LEX IS 95, at *21
(Dec. 29, 2016).

                                                        4
IT IS, THEREFORE, ORDERED as follows:

  1. Mr. Crabtree's requested relief is denied at this time.

  2. This matter is set for a Scheduling Hearing on August 9, 2017, at 10:00 a.m., ET.
     You must call 423-634-0164 or toll-free at 855-383-0001 to participate in the
     Hearing. Failure to call in may result in a determination of the issues without your
     further participation.

     ENTERED this the 9th day of May, 2017.




                                  ~= ~ dJ.Lc{);l
                                  Judge Audrey . eadrick
                                  Court of Workers' Compensation Claims




                                            5
                                        APPENDIX

       The Court reviewed the entire case file, as listed in the docketing notice, in
reaching its decision. Specifically, the Court reviewed the following documents, marked
as exhibits for ease of reference:

Exhibits:

1. Affidavit of Dary I Crabtree
2. First Report oflnjury
3. Panel
4. Wage Statement
5. Notice of Controversy
6. Description oflnjury Statement
7. Cumulative Medical Records numbered Exhibit Page 01-47:
   a. Medical Records of Health Works
   b. Medical Records of Dr. Nicole Bernatowicz
   c. Medical Records of Dr. Rickey L. Hutcheson
   d. Medical Records of Dr. Scott Hodges
   e. Peer Review of Dr. Roger A. Berg
8. Eaton Corporation's Salaried Position Questionnaire

Technical Record:

1.   Petition for Benefit Determination
2.   Dispute Certification Notice, including list of additional issues
3.   Request for Expedited Hearing
4.   Employer Response to Request for Expedited Hearing
5.   Order on Filing of Medical Records for Decision on the Record
6.   Docketing Notice for On-The-Record Determination
7.   Employee's Position Statement
8.   Position Statement for Employer and Carrier




                                              6
                             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 9th day of
 May, 2017.

       Name              Certified      Via Email      Service Sent to:
                          Mail
Matthew Coleman,                             X         mcoleman@logantbomgsonl aw.com
Employee's Attorney                                    ll1aywood(ci21oo anthom psonl aw .com
Reed Martz,                                  X         reed@fi·eelandmartz .com
Employer's Attorney




                                                    m, Clerk of Court
                                          Court o  orkers' Compensation Claims
                                          \VC.CourtCierk@tn.gov




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