                                                                                 FILED
                                                                               July 7,,2017

                                                                                TN COURTOF
                                                                        1\rORKERS' COllPI.NS_'\TION
                                                                                ClAThiS

                                                                                Tim~2 : 00PM
           TENNESSEE BUREAU OF WORKERS' COMPENSATION
          IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                         AT CHATTANOOGA

Michael Wilson,                            )    Docket No.: 2017-01-0079
            Employee,                      )
v.                                         )
Dixie Produce, Inc.,                       )    State File No.: 16470-2015
            Employer,                      )
And                                        )
Key Risk,                                  )    Judge Audrey A. Headrick
            Carrier.                       )


                          EXPEDITED HEARING ORDER
                          (DECISION ON THE RECORD)


        This claim came before the Court upon a Request for Expedited Hearing (REH)
filed by Michael Wilson. The Court issued a Docketing Notice on June 16, 2017,
allowing seven business days for the parties to file objections. Neither side filed
objections, and Dixie Produce, Inc. (Dixie Produce) did not object to a decision on the
record. Mr. Wilson requests that the Court order Dixie Produce to authorize a surgical
procedure recommended by the authorized physician. Dixie Produce contends the
utilization review (UR) determined, more than once, that the requested surgery is not
medically necessary. The central legal issue is whether Mr. Wilson is likely to establish
at a hearing on the merits that he is entitled to the requested surgery despite the UR
denials. This Court holds it needs no additional information to determine this issue. For
the reasons set forth below, the Court holds Mr. Wilson is entitled to the requested
benefit.

                                 History of the Claim
       Mr. Wilson fell from a loading dock on February 21, 2015, and landed on his
back. After his injury, Mr. Wilson received authorized medical treatment from Dr.
Alexander Roberts at Parkridge Medical Group Spine Surgery Associates for low-back
pain that radiated down his left leg. Dr. Roberts treated Mr. Wilson with conservative
treatment such as prescription medication, physical therapy, and an injection. He also

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ordered two lumbar spine MRis and a nerve conduction study (NCS) of the left lower
extremity, and he referred Mr. Wilson to pain management. Due to Mr. Wilson's
ongoing complaints of pain, Dr. Roberts ultimately referred him for a surgical evaluation.
       On August 23, 2016, Mr. Wilson saw Dr. Richard Pearce, who is in the same
practice as Dr. Roberts, for a surgical evaluation. Dr. Pearce agreed with the
electromyographer, who stated the EMG was "consistent with, but not diagnostic for, an
L4 and L5 nerve root injury." (Ex. 8.) He also reviewed the lumbar MRI, which
indicated "a severe foramina! stenosis with L5 nerve root compression." !d. At that visit,
Dr. Pearce recommended a fusion at L5-S 1.
       Dixie Produce requested UR of the recommended surgery and, on September 21,
Coventry, a UR organization, issued a report from Dr. Gregory Goldsmith, an orthopedic
surgeon. After reviewing 268 pages of Mr. Wilson's records, diagnostic reports; and
physical therapy records, Dr. Goldsmith determined that the recommended surgery was
non-certified. Dr. Goldsmith stated he based the non-certification on the criteria of the
Official Disability Guidelines (ODG), Online Edition 2016, for the following reasons:
"Medical records submitted for review had no documentation of significant objective
findings to warrant the requested procedure. In addition, a psychological evaluation
should be done first before referral to surgery to improve surgical outcomes." (Ex. 9.)
Following an appeal of the UR denial, Dr. Robert Snyder, Medical Director of the Bureau
of Workers' Compensation, upheld the denial based on his determination that the
recommended surgery was not medically necessary.
       After receipt of Dr. Snyder's determination, Mr. Wilson deposed Dr. Pearce to
address the issues raised by Dr. Goldsmith. First, Dr. Pearce discussed Dr. Goldsmith's
determination that no significant objective findings exist to support the recommended
surgery. Dr. Pearce stated that he reviewed both of Mr. Wilson's MRis, which showed
objective evidence of "anatomic changes that could be producing his symptoms." (Ex. 4
at 8.) He also stated the NCS showed objective evidence of L5 nerve root irritation. !d.
at 8; 13. Likewise, Dr. Pearce agreed that Mr. Wilson's subjective complaints were
"consistent with the dermatome of nerve compression in his lower back." !d. at 10. He
explained that the surgery is to help relieve Mr. Wilson's L5 radiculopathy. !d. at 25.
       Next, Dr. Pearce addressed Dr. Goldsmith's recommendation for a psychiatric
evaluation to improve Mr. Wilson's surgical outcome. Dr. Pearce noted that Veta
Daffron, the surgery scheduler in his office, communicated with Josh Evans, the adjuster,
who told her that, "the psych eval will not change the decision for the surgery." !d. at 14-
15. Based on that communication, Dr. Pearce did not think ordering a psychiatric
evaluation was necessary. !d. at 13-15. However, Dr. Pearce stated he was happy to
write an order for the evaluation after his deposition. !d. at 15.
       During his deposition, Dr. Pearce acknowledged he did not perform a physical
examination of Mr. Wilson. Instead, Dr. Pearce stated he relied on the medical records
and diagnostic reports provided to him by Dr. Roberts. Dr. Pearce explained that he does
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perform a physical examination if he feels it is necessary to do so after reviewing the
prior treatment records. He also testified that he discussed treatment options with Mr.
Wilson "since he had failed conservative management." ld. at 29.

       Following Dr. Pearce's deposition, Mr. Wilson filed a Petition for Benefit
Determination (PBD) on February 6, 2017. In the PBD, Mr. Wilson identified the UR
denial as the disputed issue. Dixie Produce filed a motion to dismiss the PBD for failure
to timely file same. Rule 0800-02-06-.07(6) (2016) of the Tennessee Compilation Rules
and Regulations states that a party who wishes to appeal the Medical Director's
determination on a UR denial "may file a Petition for Benefit Determination (PBD) with
the Court of Workers' Compensation Claims within seven (7) business days of the receipt
of the determination to request a hearing of the dispute in accordance with the applicable
statutory provisions." Upon review, the Court found that Mr. Wilson did not timely file a
PBD seeking relief from the Medical Director's determination, granted Dixie Produce's
motion and dismissed Mr. Wilson's PBD without prejudice to its refiling.

        Three days after the Court dismissed Mr. Wilson's PBD, Dr. Pearce again
recommended the same surgical procedure in a "Spine Surgery Associates Surgery
Scheduling" fonn. (Ex. 2.) Mr. Wilson filed a new PBD the following day. Dixie
Produce again requested UR of the recommended surgery and, on May 5, Coventry
issued another report from Dr. Goldsmith. For this UR, Dr. Goldsmith only reviewed
thirty-seven pages of records, which did not include Mr. Wilson's diagnostic reports or
physical therapy records. Based on the ODG criteria, Dr. Goldsmith determined the
surgery was non-certified. He stated the following reasoning:

      There were limited significant objective findings in the most recent medical
      report. Also, there was no actual report of the MRI to evaluate and validate
      the findings. Moreover, there was no evidence of exhaustion of all
      conservative care such as physical therapy in the records submitted.
      Furthermore, there was no psychosocial screen with confounding issues
      that would address the presence and/or absence of identified psychological
      barriers that are known to preclude post-operative recovery. There were no
      exceptional factors noted. Thus, the request is not supported.

(Ex. 9.) The record does not reflect that either Mr. Wilson or Dr. Pearce appealed the
May 5 UR denial.

                       Findings of Fact and Conclusions of Law

                                General Legal Principles
       In order to grant Mr. Wilson the relief he seeks, the Court must apply the
following legal principles. Mr. Wilson bears the burden of proof on all essential elements
of his workers' compensation claim. Scott v. Integrity Staffing Solutions, 2015 TN Wrk.

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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.
Wilson 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.

       The DCN did not list compensability as a disputed issue, and the parties did not
request permission to present additional issues. In light of this, the Court deems
compensability of Mr. Wilson's claim to be undisputed. Therefore, Mr. Wilson is not
required to make the usual showing that his alleged injury arose primarily out of and in
the course and scope of his employment, as required by Tenn. Code Ann. § 50-6-102(14)
(2016).

                          Failure to Appeal Utilization Review

       The Court will first address Dixie Produce's argument that the Court must deny
Mr. Wilson's surgical request because neither he nor Dr. Pearce appealed the most recent
UR denial as of the filing of the Request for Expedited Hearing. The Court respectfully
disagrees with Dixie Produce's position. Instead, the Court finds it has authority to
review the medical evidence in this case and determine whether it supports a finding that
Mr. Wilson is entitled to the recommended surgery.
       In so finding, the Court notes it has "original and exclusive jurisdiction over all
contested claims for workers' compensation benefits when the date of the alleged injury
is on or after July 1, 2014." Tenn. Code Ann. § 50-6-237 (2016). Likewise, the Court
has statutory authority under Tennessee Code Annotated section 50-6-238(a)(3), "to hear
and determine claims for compensation, to approve settlements of claims for
compensation, to conduct hearings, and to make orders, decisions, and determinations."
(Emphasis added). Accordingly, the Court finds it has statutory power to review the
medical evidence in this case.
      Further, this Court finds the common law to be instructive. In Kilgore v. NHC
Healthcare, 134 S.W.3d 153 (Tenn. 2004), our Supreme Court addressed an employer's
argument that an appeal to the Medical Director was the exclusive remedy to overturn a
UR denial. The Court noted such argument was "not supported by the plain and ordinary
meaning of section 50-6-124(d)," which reads, then and now, as follows:
      Nothing in this section shall prevent an employer from electing to provide
      utilization review; however, if the employee, provider or any other party
      not contractually bound to the employer's utilization review program
      disagrees with that employer's utilization review, then that employee,
      provider or other party shall have recourse to the commissioner's
      utilization review program, as provided for in this section.

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!d. at 158. (Emphasis added.)
       In Kilgore, the Court found the term "shall have recourse" means a party can seek
administrative review; however, seeking administrative review "does not replace or limit
judicial review." !d. The statute did not provide that administrative appeal was the "sole
or exclusive means of appealing an employer's [UR] decision, nor [did] the statute state
that seeking recourse [within the UR system] is a condition to appealing to the court that
had jurisdiction" of the case. !d. Therefore, while Mr. Wilson may seek review of the
UR denial by the Medical Director, the Court holds it is not a prerequisite for seeking
judicial review in this Court.
                                    Presumption of Medical Necessity

       Next, the Court must consider whether Dixie Produce rebutted the applicable
presumption of medical necessity attached to Dr. Pearce's surgical recommendation.
After review of the evidence, the Court holds that it has not done so.

       Tennessee Code Annotated 50-6-204(a)(3)(H) provides a presumption of medical
necessity for "any treatment recommended by a physician or chiropractor selected
pursuant to this subdivision (a)(3) or by referral, if applicable." 1 Further, this
presumption of medical necessity is rebuttable by a preponderance of the evidence.

        In addition to the presumption of medical necessity provided in Tennessee Code
Annotated 50-6-204(a)(3)(H), the Tennessee Workers' Compensation Appeals Board
provided guidance in Morgan v. Macy's, et al., 2016 TN Wrk. Comp. App. Bd. LEXIS
39, at *13 (Aug. 31, 2016), regarding the recently-adopted medical treatment guidelines
set forth in the ODG. It cited Tennessee Code Annotated section 50-6-124(h) (2016) as
follows: "Any treatment that explicitly follows the treatment guidelines adopted by the
administrator or is reasonably derived therefrom, including allowances for specific
adjustments to treatment, shall have a presumption of medical necessity for utilization
review purposes." (Emphasis added.) The Appeals Board explained that "if an employee
does not establish the criteria [set forth in 50-6-124(h)], the employer has the burden to
overcome the presumption of favor of medical necessity of the authorized physician's
recommended treatment by a preponderance of the evidence." !d. at* 18.

        Shortly after the Appeals Board issued its opinion in Morgan, it provided further
guidance in Venable v. Superior Essex, Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS 56
(Nov. 2, 2016). In Venable, the Appeals Board found "it was within the scope of the trial
court's authority to assess the validity of the utilization review reports and determine the
relative weight to be given those physicians' opinions as well as other expert medical
1
 In their briefs, both parties repeatedly refer to Dr. Roberts and Dr. Pearce as authorized physicians. Likewise, the
Petition for Benefit Determination reflects that Mr. Wilson selected Dr. Pearce from a panel of physicians. Further,
neither side contested that Dr. Roberts and Dr. Pearce are authorized physicians within the meaning of Tennessee
Code Annotated section 50-6-204 (2016).

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opinions." Id. at *9. As explained by the Appeals Board, a trial court can assess the
weight to give to a UR report against a competing medical opinion as long as the medical
proof consists of more than a trial court' s independent assessment of the employee's
medical records. !d. at *11-12.

       Here, there is no evidence that Dr. Pearce "explicitly follow[ ed] the treatment
guidelines," so Dixie Produce has the burden to rebut the presumption of medical
necessity of the recommended surgery by a preponderance of the evidence. Morgan, at
*17-18. A preponderance of the evidence standard requires that the truth of the facts
asserted be more probable than not. Teter v. Republic Parking Sys. , 181 S. W.3d 330, 341
(Tenn. 2005). With that in mind, the Court will consider the medical evidence.

       In the present case, Dr. Pearce disputed Dr. Goldstein's findings. First, Dr. Pearce
disagreed with Dr. Goldstein's opinion that no significant objective findings existed to
warrant the recommended surgery. Dr. Pearce testified that the two MRis show objective
evidence of "anatomic changes" that may be producing Mr. Wilson's symptoms.
Further, the NCS showed objective evidence of L5 nerve root irritation. He also stated
that Mr. Wilson's symptoms are consistent with the objective diagnostic findings.

        Next, the Court considers Dr. Goldstein's opinion that conservative treatment was
not exhausted. The September 21, 2016 UR report reflects Dr. Goldstein reviewed Mr.
Wilson's records for twenty physical therapy visits. As to other conservative treatment,
Dr. Pearce stated Mr. Wilson took anti-inflammatories, had multiple epidural steroid
injections, and was restricted from working. However, Dr. Pearce recommended surgery
to Mr. Wilson because "he had failed conservative management." Additionally, the
Court notes that Dr. Goldstein considered 268 pages of medical records, including
diagnostic tests and physical therapy records, for the first UR he performed. For the
second UR performed by Dr. Goldstein, he only considered thirty-seven pages of records,
which did not include any of the diagnostic tests or physical therapy records.

       Lastly, the Court considers the lack of a psychosocial assessment, which was the
second basis relied upon by Dr. Goldstein to non-certify the recommended surgery. Dr.
Pearce testified he had intended to order the psychological assessment until an adjuster
for Dixie Produce advised his office that ordering it would not change its decision to
deny the surgery. Nevertheless, Dr. Pearce testified that he remained willing to order the
psychological assessment.

       In summary, the Court finds that Dr. Pearce addressed each of Dr. Goldstein's
objections to the recommended surgery with objective recitations to Mr. Wilson's
medical records. The Court also finds that Dr. Goldstein failed to consider all of Mr.
Wilson's medical records when he performed the second UR. For these reasons, the
Court gives the greater weight to the opinions of Dr. Pearce on the issue of medical
necessity for the recommended surgery.

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        After considering the foregoing, the Court holds that Dixie Produce failed to rebut
the presumption of correctness afforded to Dr. Pearce's opinion by Tennessee Code
Annotated section 50-6-204(a)(3)(H) (2016). Accordingly, the Court holds Mr. Wilson is
likely to prevail at a hearing on the merits in proving that he is entitled to the requested
surgery despite the UR denials.

IT IS, THEREFORE, ORDERED as follows:

   1. Upon receipt of Dr. Pearce's order for the psychological assessment, Dixie
      Produce shall promptly authorize and schedule same. Medical care for Mr.
      Wilson's injuries shall be paid, and Dixie Produce or its workers' compensation
      carrier shall provide Mr. Wilson with medical treatment for those injuries as
      required by Tennessee Code Annotated section 50-6-204(20 16), to include the
      back surgery recommended by Dr. Pearce. Medical bills shall be furnished to
      Dixie Produce or its workers' compensation carrier by Mr. Wilson or the medical
      providers.

   2. This matter is set for a Status Hearing on Thursday, September 7, 2017, at 10:00
      a.m., ET. You must call423-634-0164 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.

   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 WCCompliance.P ro gram@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.

   4. For questions regarding compliance, please contact the Workers' Compensation
      Compliance Unit via email W Compli anc .Prograrn@ tn.ga .

ENTERED this the 7th day of July, 2017.




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                                     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.  Plain and Concise Statement of Michael Wilson
        2.  Spine Surgery Associates Surgery Scheduling
        3.  First Report oflnjury
        4.  Deposition of Richard Garfield Pearce, M.D.
        5.  Wage Statement
        6.  Panel
        7.  Medical records of Dr. Alexander Roberts (December 18, 2015; August 25,
            2015; September 25, 2015; and, June 20, 2016)
        8. August 23, 2016 office note of Dr. Richard Pearce
        9. Cumulative Utilization Review documents:
                a. Correspondence from Dr. Robert Snyder to Mr. Wilson dated October
                   19,2016
                b. Utilization Review dated May 5, 2017
                c. Notice of Appeal Rights for a Utilization Review
                d. Memorandum regarding Utilization Review Appeal (incorrectly dated
                   October 19, 2017)
                e. Utilization Review dated September 21, 20 16
        10. Medical records of Chattanooga Outpatient Center

Technical Record:

1.   Petition for Benefit Determination
2.   Dispute Certification Notice
3.   Request for Expedited Hearing
4.   Employer's Response to Request for Expedited Hearing
5.   Docketing Notice for On-The-Record Determination
6.   Employer's Response to Request for Expedited Hearing
7.   Employee's Response to Employer's June 2, 2017 Filing
8.   Employee's Response to Employer's Response Requesting Expedited Hearing
9.   Defendant's Reply to Plaintiffs Response to Employer's Response to Request for
     Expedited Hearing




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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 this the 7th day of
July, 2017.

          Name             Certified    Fax       Email   Service sent to:
                            Mail
Michael A. Wagner,                                 X      maw@wagnerinjur:r .com
Employee Attorney
Nicholas S. Akins,                                 X      nakins@morganakins .com
Employer Attorney




                                                  ' m, Clerk of Court
                                         Court of orkers' Compensation Claims
                                         WC.CourtClet·k@tn.gov




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