                                                                                            FILED
                                                                                        August 21,2017
                                                                                         TN <C OURTOF
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              TENNESSEE BUREAU OF WORKERS' COMPENSATION
             IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                              AT NASHVILLE

Victor Magadan,                                      )   Docket No. 2016-06-2107
           Employee,                                 )
v.                                                   )
JS Gardening, LLC,                                   )   State File No. 19824-2016
           Employer,                                 )
And                                                  )
Auto Owners Insurance Company,                       )   Judge Kenneth M. Switzer
           Carrier.                                  )


                               EXPEDITED HEARING ORDER


       JS Gardening filed a hearing request seeking an order allowing it to deny certain
medical benefits. The undersigned conducted the hearing on August 17, 2017. The
central legal issue is whether Victor Magadan's current need for treatment - surgery to
correct an eye disorder and further treatment of left-ear hearing loss - relates to injuries
he sustained in a fire at work. For the reasons set forth below, the Court holds JS
Gardening is entitled to the requested relief.

                                          History of Claim

        This Court granted Mr. Magadan medical benefits in a May 16, 2017 expedited
hearing order. 1 Specifically, the Court held that Mr. Magadan sustained compensable
injuries from a fire at work and ordered JS Gardening tore-initiate treatment with Drs. Ira
Shivitz and David Fortune, authorized treating physicians~ for injuries to his eyes and
ears. JS Gardening complied with the order.

     At a status conference on July 3, Mr. Magadan reported that Dr. Shivitz
recommended surgery and Dr. Fortune referred him to a specialist, but JS Gardening
1
 .1n determining this claim, the Court takes judicial notice of testimony heard and exhibits admitted into
evidence at the prior in-person Expedited Hearing. See Hughes v. New Life Dev. Corp., 387 S.W.3d 453,
457 n.l (Tenn. 20 12), holding, "we are permitted to take judicial notice of the facts from earlier
proceedings in the same action."

                                                    1
declined to authorize treatment in accordance with these recommendations. Shortly
afterward, JS Gardening filed medical records from both providers suggesting no causal
link exists between Mr. Magadan's present need for treatment and the work incident.
The Court ordered it to file a hearing request.

        At the hearing, JS Gardening introduced records from a June 5 visit to Dr. Shivitz,
where he diagnosed bilateral stationary peripheral pterygium and peripheral opacity of
cornea of right eye. He wrote: "Discussed with pt through interpreter pterygium removal
as treatment. Discussed through interpreter that workman's comp may not cover
procedure as it is not likely due to accident that occurred over a year ago." JS Gardening
sent a letter after this visit seeking Dr. Shivitz's causation opinion. Specifically, the letter
asked, "Did the alleged March 4, 2016 accident contribute more than 50% in causing the
bilateral stationary peripheral pterygium, considering all causes?" Dr. Shivitz circled
"no." The letter additionally asked, "Did the alleged March 4, 2016 accident contribute
more than 50% in causing the peripheral opacity of the cornea of the right eye,
considering all causes? He again replied "no."

      JS Gardening further introduced records of Dr. Fortune from a June 21 visit. Dr.
Fortune wrote:

       Audio shows signs of malingering with POSITIVE STENGER TEST,
       inconsistent responses, and bone line below air line in right ear. Given
       signs of symptom magnification on today's audio, inconsistent history as
       noted, this changes my opinion significantly. Cannot now say with any
       degree of medical certainty that an ear injury occurred to the left or right
       ear as [a] result of work place incident, and today's results voids [sic] my
       previous impairment rating as well. . . . I suspect that there is not any
       work related hearing impairment from the incident in question.

(Emphasis in original.) Dr. Fortune recommended objective "ABR" testing for further
clarification. JS Gardening authorized the ABR. After its performance, JS Gardening
sent Dr. Fortune a letter asking about causation. The letter asked, "Does Victor Magadan
have hearing loss that primarily arose out of and in the course and scope of the alleged
on-the-job accident? An injury 'primarily arises out of' an incident at work if the
incident at work contrihutes more than :SO% in causing the injury, considering all causes."
Dr. Fortune responded "no."

       Mr. Magadan submitted no contrary medical proof. He testified that several
medical bills from past treatment for the work injury remain unpaid. In the previous
expedited hearing order, the Court ordered that JS Gardening pay any outstanding sums
owed for past authorized treatment. JS Gardening said it intended to pay these bills but
never received copies. After the hearing, Mr. Magadan gave copies of the bills to
counsel.

                                              2
                        Findings of Fact and Conclusions of Law

        At the previous expedited hearing, the Court held Mr. Magadan came forward
with sufficient evidence from which the Court could determine he was "likely to prevail
at a hearing on the merits" _in order to meet his burden. See McCord v. Advantage
Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Considering this new medical proof, however, the Court now holds he is unlikely to
prevail at a hearing on the merits regarding his entitlement to further medical benefits for
his vision and hearing.                                                             ·

       The Workers' Compensation Law defines an "injury" as an "injury by accident ...
arising primarily out of and in the course and scope of employment, that causes ... the
need for medical treatment." An injury causes the need for medical treatment only if it
has been "shown to a reasonable degree of medical certainty" that it contributed more
than fifty percent in causing the need for medical treatment, considering all causes. In
addition, the opinion of the treating physician selected from a panel is presumed correct
on the issue of causation, but this presumption is rebuttable by a preponderance of the
evidence. See generally Tenn. Code Ann. § 50-6-102(14) (2016).

       Here, the medical records from both physicians contain opmwns that Mr.
Magadan's present need for treatment is not related to the work incident. For
confirmation, JS Gardening asked these doctors about causation using language nearly
identical to the statutory definition of "injury." Under this standard, both physicians
found no current causative link. Mr. Magadan offered no medical proof to the contrary.
The Court is cognizant of Mr. Magadan's sincerely-held belief that the work incident
caused his current conditions. However, our Appeals Board held that an employee's lay
testimony, without corroborative expert testimony, does not constitute adequate evidence
of medical causation. Scott v. Integrity Staffing Solutions, 2015 TN Wrk. Comp. App.
Bd. LEXIS 24, at *11-12 (Aug. 18, 2015). Notably, in Scott, the Appeals Board
observed, "Judges are not well-suited to second guess a medical expert's treatment,
recommendations, and or diagnoses absent some conflicting medical evidence or some
other countervailing evidence properly admitted into the record." !d. at *8.

       Therefore, as a matter of law, the Court holds Mr. Magadan has not come
forward with sufficient evidence showing he is likely to prevail at a hearing on the
merits that he is entitled to the proposed eye surgery or to further treatment for hearing
loss.

IT IS, THEREFORE, ORDERED as follows:

   1. JS Gardening may cease the provision of medical benefits as it relates to a
      proposed eye surgery and to further treatment for hearing loss at this time.


                                             3
   2. This matter is set for a Scheduling Hearing on October 16, 2017, at 9:45 a.m.
      Central Time. The parties must call 615-532-9552 or toll-free at 866-943-0025
      to participate in the Hearing. Failure to call may result in a determination of the
      issues without the parties' participation. The Court recommends that Mr.
      Magadan arrange for the services of an interpreter at the hearing.

                                  ENTERED this the 21st day of August, 2017.




                                  Court of Workers' Compensa ·

                                     APPENDIX

Exhibits:
   A. Affidavit of Michael Haynie with attachments
       1. Dr. Shivitz, June 5, 2017 notes
       2. Dr. Shivitz causation letter
       3. Dr. Fortune, June 21, 2017 notes
   B. Dr. Fortune causation letter
   C. Mr. Magadan's statement

Technical Record:
   1. Expedited Hearing Order Granting Medical Benefits
   2. Order Resetting Scheduling Hearing
   3. Order Setting Expedited Hearing
   4. Request for Expedited Hearing
   5. Employer's Brief




                                           4
                           CERTIFICATE OF SERVICE

       I 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 21st day of
August, 20 17.

Name                        Certified Via       Via     Service sent to:
                            Mail      Fax       Email
Victor Magadan,                X                        Tay lonma II @beiJsoulh.net;
Self-represented                                        104 Fannin Dr. Lot H,
Employee                                                Goodlettsville TN 37072
Michael Haynie,                                  X      mhaynie@manierherod.com
Employer's Counsel




                                         enny S  m, Clerk of Court
                                        Court o£ orkers' Compensation Claims
                                        WC.CourtCierk@tn. gov




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