                                                                                     FILED
                                                                                January 30, 2017

                                                                                   TN COURTOF
                                                                            l\' ORKIRS' COJi.IPlNSATION
                                                                                      CL'ill.IS

                                                                                    Tim.e 7: 15 ~U<I

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

VICTORIA KAY W AXSTEIN,                     ) Docket No.: 2016-03-1015
         Employee,                          )
v.                                          )
ARCHITECTURAL GRAPHICS,                     ) State File No.: 79729-2015
INC.,                                       )
            Employer,                       )
And                                         )
U.S. FIRE INSURANCE CO.,                    ) Judge Pamela B. Johnson
            Carrier.                        )


                          EXPEDITED HEARING ORDER
                         GRANTING MEDICAL BENEFITS
                             (Decision on the Record)


        This matter came before the undersigned Workers' Compensation Judge upon the
Request for Expedited Hearing filed by Victoria Kay Waxstein seeking a decision on the
record in lieu of convening an evidentiary hearing. Architectural Graphics, Inc. did not
file a Response to the Request for Expedited Hearing and did not request an evidentiary
hearing. The Court issued a Docketing Notice on January 17, 2017, listing the
documents to be considered. This Court gave Ms. Waxstein and Architectural Graphics
until January 26, 2017, to file objections and/or position statements. Ms. Waxstein filed a
Position Statement on January 25, 2017. Architectural Graphics did not file objections
but previously filed a Position Statement on October 10, 2016.

        Upon careful consideration of the record, this Court finds it needs no additional
information to determine whether Ms. Waxstein is likely to prevail at a hearing on the
merits of the claim. Accordingly, pursuant to Tennessee Code Annotated section 50-6-
239( d)(2) (20 16), Tennessee Compilation Rules and Regulations 0800-02-21-.14(1 )(c)
(2016), the Court decides this matter upon a review ofthe written materials.

      The central legal issue is whether Ms. Waxstein is likely to prevail at a hearing on
the merits on entitlement to additional medical benefits, specifically treatment for an

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alleged low back injury. For the reasons set forth below, the Court holds Ms. Waxstein
came forward with sufficient evidence demonstrating she is likely to prevail at a hearing
on the merits. Accordingly, this Court concludes Ms. Waxstein is entitled to the
requested medical benefits.

                                      History of Claim

       A review of the written materials revealed the following facts. On September 28,
2015, Ms. Waxstein left work at Architectural Graphics and fell in the parking lot while
walking to her car. As a result of the fall, she allegedly sustained injury to her right leg
and lower back. Architectural Graphics accepted the claim as compensable and provided
authorized medical treatment for the right leg injury. However, it disputed the alleged
lower back injury and, as such, it provided no medical treatment for the lower back.

       The next day, Ms. Waxstein saw Dr. Roy E. Kuhl, Jr., an authorized treating
physician (ATP), and reported she "stepped into a hole yesterday, severely twisting her
right ankle ... No other injuries occurred." (Ex. 4.) Dr. Kuhl ordered and reviewed x-
rays, which showed a right ankle distal fibula fracture. Dr. Kuhl referred Ms. Waxstein
to orthopedic physician Dr. Mark Thomas.

        Later that same day, Dr. Thomas, also an authorized provider, evaluated Ms.
Waxstein. She told Dr. Thomas, "while leaving work in the dark last night she stepped,
she thinks[,] in a pothole and sustained an inversion injury with immediate onset of
lateral ankle pain ... She has no other somatic complaints." (Ex. 6.) Dr. Thomas
confirmed a right ankle fracture of the lateral malleolus and ordered a short leg cast.

       Ms. Waxstein went to East Tennessee Medical Group Urgent Care Clinic the
following day and reported a history of "recent fx R leg, at time of fall may have hurt L
leg." (Ex. 5.) The attending provider ordered a DVT ultrasound of the left leg, which
was negative for evidence of deep venous thrombosis.

        Approximately two weeks later, Ms. Waxstein returned to Dr. Kuhl and reported
she "also landed on her left side" and "[a]bout a day after the fall, she started having left
lateral hip pain with pain radiating down the left leg into the left anterior shin to the ankle
     She denies back pain." !d. Dr. Kuhl noted,

       A fall 2 weeks ago with left leg pain and symptoms that are consistent with
       lumbar radiculopathy. We will proceed with x-rays of the left hip and
       lower leg, and I am going to go ahead and ask for an MRI of the
       lumbosacral spine.

!d.


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       When Ms. Waxstein returned to see Dr. Thomas for her one-month follow-up, she
reported, "within 24 hours of the ankle injury[,] [s]he began having pretty severe sciatic
symptoms in the left lower extremity." !d. Dr. Thomas noted,

       I have spoken with the patient about the natural history of sciatic
       symptoms. This does seem to be work related ... We will put her into a
       CAM boot for the right ankle ... and we will defer on any other treatment
       for the sciatica until we have a little more healing of the fracture. Once that
       is healed, if she is having continued symptoms, would begin more
       aggressive treatment of her sciatic symptoms.

!d. Thereafter, Ms. Waxstein transitioned to an air cast splint and weight bearing on the
right ankle. On January 6, 2016, Dr. Thomas released Ms. Waxstein to unrestricted
duties at work, assigned maximum medical improvement with no permanent impairment,
and instructed her to return as needed.

       Eight months later, Ms. Waxstein returned to Dr. Thomas with complaints of
persistent pain in the Achilles tendon region and persistent numbness down her left leg
and into her left foot since the fall injury. Dr. Thomas recommended a simple exercise
program for the Achilles and peroneal tendinitis. He further obtained lumbar spine x-
rays, which demonstrated significant L4-5 degenerative changes with L3-4 degenerative
spondylolistheses. Dr. Thomas believed the changes to be chronic but ordered a lumbar
MRI to evaluate if there were any acute changes to explain the numbness. !d.

      Architectural Graphics submitted the recommended lumbar MRI to Utilization
Review (UR). (Ex. 7.) After review of the single office note and physician's order in
which Dr. Thomas ordered the lumbar MRI, the UR provider, Dr. Robert E. Holladay,
was unable to recommend the requested treatment. Dr. Holladay noted,

      In this case, the claimant presents with a history of right ankle fracture and
      left leg numbness that goes down to the foot. The claimant denies pain or
      weakness. Examination is positive for Achilles and peroneal tendinitis.
      There is limited documentation of neurologic compromise on examination
      related to the lumbar spine. Lumbar complaints or conservative care
      addressing the lumbar spine are not outlined.             Without consistent
      radiculopathy, the current request is not supported per guidelines. The
      medical necessity is not established. Non-certification is recommended.

!d.   Based upon the UR non-certification, Architectural Graphics denied the
recommended lumbar MRI scan. Subsequently, Ms. Waxstein underwent a nerve
conduction and electrodiagnostic study (NCS/EMG), which revealed evidence of chronic
L4 radiculopathy, left lumbosacral plexopathy, or chronic femoral neuropathy. (Ex. 11.)
Based upon the results of the testing, the NCV/EMG provider, Dr. L. Scott Sole,

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recommended a MRI of the lumbar spine and left pelvis, which Architectural Graphics
did not authorize.

                       Findings of Fact and Conclusions of Law

       The following legal principles govern this case. Because this case is in a posture
of an Expedited Hearing, Ms. Waxstein need not prove every element of her claim by a
preponderance of the evidence in order to obtain relief. McCord v. Advantage Human
Resourcing, 2015 TN Wrk. Camp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Instead, she must come forward with sufficient evidence from which this Court might
determine she is likely to prevail at a hearing on the merits. !d.; Tenn. Code Ann. § 50-6-
239(d)(l) (2016).

       Tennessee Code Annotated section 50-6-204(a)(l)(A) (2016) provides that "[t]he
employer or the employer's agent shall furnish, free of charge to the employee, such
medical and surgical treatment ... made reasonably necessary by accident as defined in
this chapter." Furthermore, a work-related 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 (50%) in causing the ... need for medical treatment."
Tenn. Code Ann.§ 50-6-102(14)(C) (2016). '"Shown to a reasonable degree of medical
certainty' means that, in the opinion of the physician, it is more likely than not
considering all causes, as opposed to speculation or possibility." Tenn. Code Ann. § 50-
6-102(14)(D) (2016).

        Tennessee Code Annotated section 50-6-204(b)(l) provides that "[w]here the
nature of the injury . . . is such that it does not disable the employee but reasonably
requires medical [or] surgical ... treatment or care, medicine [or] surgery ... shall be
furnished by the employer." Section 50-6-102(14)(E) provides, "The opinion of the
treating physician, selected by the employee from the employer's designated panel of
physicians pursuant to § 50-6-204(a)(3), shall be presumed correct on the issue of
causation but this presumption shall be rebuttable by a preponderance of the evidence.
Moreover, "treatment recommended by a physician ... selected pursuant to [§ 50-6-
204(a)(3)] or by referral, if applicable, shall be presumed to be medically necessary for
treatment of the injured employee." Tenn. Code Ann. § 50-6-204(a)(3)(H) (2016); see
also Morgan v. Macy's, 2016 TN Wrk. Comp. App. Bd. LEXIS 39, at *17 (Aug. 31,
2016).

       Here, the sole issue is the causal relationship and medical necessity of medical
treatment for the alleged low back injury, and specifically for the lumbar MRI
recommended by the A TP. Thus, at the Expedited Hearing stage, where the issue
concerns medical treatment, Ms. Waxstein has the burden of presenting sufficient
evidence to show she is likely to prevail at trial in establishing that the recommended
treatment was causally related to and reasonably required as a result of the work injury.

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See Tenn. Code Ann. § 50-6-204(b)(1); see also Coolidge v. City Winery Nashville, LLC,
et al., 2016 TN Wrk. Comp. App. Bd. LEXIS 46, at* 16-17 (Sept. 23, 2016).

        This Court is presented with competing medical opinions on the issues of causal
relationship and medical necessity of the recommended MRI. On the issue of causal
relationship to the work injury, the ATP stated, "I have spoken with the patient about the
natural history of sciatic symptoms. This does seem to be work related." Based upon the
degenerative changes noted on x-ray, Architectural Graphics argued the alleged low back
injury did not arise primarily out of or occur in the course and scope of the employment.
However, Architectural Graphics did not offer expert proof on the issue of causation. As
previously noted, the opinion of the ATP is presumed correct on the issue of causation.
Therefore, the Court finds Ms. Waxstein appears likely to establish that the recommended
MRI is causally related to her work injury.

      Turning to the issue of medical necessity, this Court is presented with two
opmwns. The authorized treating physician, Dr. Thomas, indicated he believed the
lumbar degenerative changes to be chronic but ordered a lumbar MRI to evaluate if there
were any acute changes to explain Ms. Waxstein's radicular symptoms. In contrast, the
UR provider, Dr. Holladay, stated,

       There is limited documentation of neurologic compromise on examination
       related to the lumbar spine. Lumbar complaints or conservative care
       addressing the lumbar spine are not outlined.        Without consistent
       radiculopathy, the current request is not supported per guidelines. The
       medical necessity is not established.

        When weighing expert medical proof, this Court has the discretion to determine
which testimony to accept when presented with conflicting expert opinions. See
Kellerman v. Food Lion, Inc., 929 S.W.2d 333, 335 (Tenn. Workers' Comp. Panel Sept.
5, 1996); Johnson v. Midwesco, Inc., 801 S.W.2d 804, 806 (Tenn. 1990). Further, when
there is conflicting medical testimony, "the trial judge must obviously choose which view
to believe. In doing so, [the trial judge] is allowed, among other things, to consider the
qualifications of the experts, the circumstances of their examination, the information
available to them, and the evaluation of the importance of that information by other
experts." Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn. 1991).

       Here, the first factor - qualifications of the experts - weighs equally in favor of
either physician, as both physicians are orthopedic physicians. The second factor - the
circumstances of their examination- favors Dr. Thomas, who personally examined Ms.
Waxstein on multiple occasions over the course of several months. The third factor- the
information available to them- is also favorable to Dr. Thomas, who had the opportunity
to: personally observe Ms. Waxstein and assess her credibility; physically examine Ms.
Waxstein and make objective findings, order and review films from various diagnostic

                                            5
testing; and obtain historical information not readily available in the medical records.
The final factor - the evaluation of the importance of that information by other experts -
also weighs in favor of Dr. Thomas, as his medical records demonstrate the radicular
complaints reported by Ms. Waxstein since her fall, while Dr. Holladay's consideration
was limited to a single office visit. This Court is persuaded by Dr. Thomas.
Accordingly, this Court concludes that Dr. Holladay's opinion failed to rebut the
presumption of correctness afforded Dr. Thomas, the ATP, on the issue of causation and
medically necessity.

      Based upon a review of the written materials, this Court concludes Ms. Waxstein
came forward with sufficient evidence that she is likely to prevail at a hearing on the
merits that the work injury caused and medically necessitated the need for the
recommended MRI.

      Additionally, Architectural Graphics shall continue to provide Ms. Waxstein with
medical benefits in accordance with Tennessee Code Annotated section 50-6-204 (2016),
and Dr. Thomas shall remain the authorized treating physician.

IT IS, THEREFORE, ORDERED as follows:

   1. Architectural Graphics shall provide Ms. Waxstein with medical treatment for her
      injuries as required by Tennessee Code Annotated section 50-6-204 (2016), to
      include authorization of the MRI scan recommended by Dr. Thomas. Medical
      bills shall be furnished to Architectural Graphics or its workers' compensation
      carrier by Ms. Waxstein or the medical providers. Dr. Thomas shall remain the
      authorized treating physician.

   2. This matter is set for a Scheduling Hearing on April 6, 2017, at 9:30a.m. Eastern
      Time. The parties must call 865-594-0091 or 855-543-5041 toll-free to participate
      in the Scheduling Hearing. Failure to appear by telephone may result in a
      determination of the issues without your further participation.

   3. 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)
      (2016). The Insurer or Self-Insured Employer must submit confirmation of
      compliance      with    this     Order    to   the    Bureau     by     email    to
      WCCompJiance.ProgTam@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.




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4. For questions regarding compliance, please contact the Workers' Compensation
   Compliance Unit by email at WCCompliance.Program@tn.gov or by telephone at
   (615) 253-1471 or (615) 532-1309.


   ENTERED this the 30th d~8Vvv---'



                                  HON. PAMELA B. -JOHNSON
                                  Workers' Compensation Judge




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                                      APPENDIX

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

Exhibits:
      1.     Petition for Benefit Determination
      2.     Dispute Certification Notice
      3.     Architectural Graphics' Position Statement
      4.     Medical Records of Dr. Roy Kuhl, East Tennessee Medical Group
      5.     Medical Records of East Tennessee Medical Group, Urgent Clinic
      6.     Medical Records of Dr. Mark K. Thomas, Ortho Tennessee
      7.     Utilization Review Denial
      8.     First Report of Work Injury
      9.     Request for Expedited Hearing
      10.    Affidavit of Victoria Waxstein
      11.    Notice of Filing Medical Records and Medical Records of Dr. L. Scott Sole
      12.    Docketing Notice for a Decision on the Record
      13.    Ms. Waxstein's Position Statement

                            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 30th day
of January, 2017.

         Name             Certified   Fax       Email   Service sent to:
                           Mail
Brad C. Burnette, Esq.,                          X      bradburnette@foxand farley law .com
Employee's Attorney
James H. Tucker, Esq.,                           X      itucker@ma.nierherod. com
Employer's Attorney




                                         --~sA±~ClerkW .CourtClerk@tn.gov




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