           IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                            AT KINGSPORT

Chad Drovdahl,                               )     Docket No.: 2015-02-0143
           Employee,                         )
v.                                           )     State File No.: 3062-2015
                                             )
City of Bristol, Tennessee,                  )     Date of Injury: January 13,2015
              Employer,                      )
and                                          )     Judge: Brian K. Addington
                                             )
TML Risk Management Pool,                    )
          Insurance Carrier.                 )



        EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS


       THIS CAUSE came before the undersigned Workers' Compensation Judge on
August 25, 2015, upon the Request for Expedited Hearing filed by Chad Drovdahl (Mr.
Drovdahl), the Employee, on August 5, 2015, pursuant to Tennessee Code Annotated
section 50-6-239 (2014), to determine if the City of Bristol, Tennessee (Bristol), is
obligated to provide medical and temporary disability benefits. Considering the positions
of the parties, the applicable law, and all of the evidence submitted, the Court concludes
that Mr. Drovdahl is entitled to the requested medical benefits.

                                      ANALYSIS

                                          Issues

     1. Whether Mr. Drovdahl sustained an injury that arose primarily out of and in the
        course and scope of employment with Bristol.
     2. Whether Mr. Drovdahl suffered from a pre-existing condition that was aggravated
        by a work-related injury.
     3. Whether Mr. Drovdahl sustained an injury in the course and scope of his
        employment with Bristol.

                                            1
   4. Whether Bristol is obligated to provide a panel of physicians upon notice of Mr.
      Drovdahl of an alleged injury.
   5. Whether the panel of physicians provided by Bristol was in compliance with the
      law.
   6. Whether Mr. Drovdahl is entitled to another panel of physicians in compliance
      with the law.
   7. Whether Mr. Drovdahl is entitled to additional medical care as recommended by a
      physician.
   8. Whether Mr. Drovdahl is entitled to an evaluation by another physician.
   9. Whether Mr. Drovdahl is entitled to any past or future temporary total disability
      benefits, and if so, in what amount.

                                  Evidence Submitted

      The Court admitted into evidence the exhibits below:

          1.   Collective Exhibit of State forms;
          2.   Pre-Injury Medical Records: Dr. Thomas Whitman (Dr. Whitman);
          3.   Medical Records: Dr. Galen Smith;
          4.   C-23 Notice of Denial dated May 27, 2015;
          5.   Post-Injury Medical Records: Dr. Sanjeev Kakkar and Dr. Whitman; and
          6.   March 25, 2015 letter by Dr. Whitman.

      The Court designated the following as the technical record:

          •    Petition for Benefit Determination (PBD), May 26, 2015
          •    Dispute Certification Notice (DCN), July 24, 2015
          •    Mr. Drovdahl's Request for Expedited Hearing (REH), August 5, 2015.

      Mr. Drovdahl testified in-person at the hearing.

                                   History of Claim

       Mr. Drovdahl worked for Bristol as a maintenance worker. On January 13, 2015,
Mr. Drovdahl repaired a broken water pipe, which required him to work in knee-deep
mud. When he completed his work, Mr. Drovdahl attempted to free his right leg from the
surrounding mud and felt a pop and a tear in his right knee. (Ex. 1 at 1.) Mr. Drovdahl
reported the incident to his supervisor and went home due to pain. Bristol called Mr.
Drovdahl to return to work in order to arrange medical treatment for his condition.

      Mr. Drovdahl testified that he initially received authorized treatment at Wellmont
Occupational Health Services (Wellmont). The parties did not present evidence of a
signed panel of physicians for the Wellmont visit. Dr. Sanjeev Kakkar at Wellmont
                                            2
examined Mr. Drovdahl on January 13, 2015, and diagnosed an acute right-knee strain.
Dr. Kakkar provided a toradol injection and assigned work restrictions. (Ex. 5 at 1-2.)

       On January 20, 2015, Dr. Kakkar noted that Mr. Drovdahl continued to suffer
sharp pain and range of motion deficits in his right knee. Dr. Kakkar requested an MRI
to "delineate his pathology." !d. at 3. According to the radiologist, Dr. Mitchell
Medndrek, the MRI results indicated a sprain of the ACL and a bucket-handle tear of the
medial meniscus. !d. at 4. After discussing the MRI results with Mr. Drovdahl, Dr.
Kakkar referred him to an orthopedic physician. !d. at 5.

       Bristol offered Mr. Drovdahl a panel of two orthopedists and a physiatrist. Mr.
Drovdahl chose an orthopedist, Dr. Thomas Whitman. (Ex. 1 at 3.) Dr. Whitman
previously treated Mr. Drovdahl for non-work-related osteoarthritis of the right knee.
(Ex. 2 at 1.) Dr. Whitman last saw Mr. Drovdahl on August 27, 2014. At that
appointment, Dr. Whitman noted that Mr. Drovdahl's condition improved, but he also
discussed treatment options of therapeutic injections or a total right-knee arthroplasty. !d.
at 2.

        Mr. Drovdahl saw Dr. Whitman for the first time post-accident on February 11,
2015. Upon examination, Dr. Whitman observed "[t]ri-compartmental degenerative
changes, medial meniscal subluxation, worse than films in 7/2014." !d. at 7-9. He
diagnosed Mr. Drovdahl with a "right knee injury with significant exacerbation of prior
OA [osteoarthiritis]." !d. at 9. Dr. Whitman injected Mr. Drovdahl's knee and
recommended physical therapy. !d. at 9-10. Dr. Whitman provided two additional
injections on March 16, and March 23, 2015. !d. at 20.

       On March 25, 2015, Dr. Whitman prepared a letter to Bristol's workers'
compensation adjuster regarding a causation questionnaire he received from her. (Ex. 6.)
Dr. Whitman noted that Mr. Drovdahl suffered significant worsening of his pathology
from July 2014, to February 2015. !d. He opined that it was reasonable to consider that
Mr. Drovdahl's January 2015 injury significantly worsened the difficulty with his right
knee. !d. Dr. Whitman further stated, "It would be reasonable to obtain a second opinion
from someone who has not been involved in his care longitudinally in an effort to have
another estimation of the contribution of his injury in January of 2015 to his current
symptoms." !d.

       Dr. Whitman continued to treat Mr. Drovdahl through April 13, 2015, at which
time he recommended a total-knee arthroplasty. (Ex. 5 at 31-35.)

      Bristol sent Mr. Drovdahl to another orthopedic surgeon, Dr. Galen Smith, who
examined Mr. Drovdahl on May 18, 2015. 1 (Ex. 3.) Dr. Smith wrote the following:

1
    Exhibit 3 is labeled as an Independent Medical Examination. The Court shall refer to Exhibit 3 as an examination

                                                           3
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(Ex. 3 at 3.)

      Bristol declined further treatment once it obtained Dr. Smith's opinion. It filed a
C-23 Notice of Denial of Claim for Compensation on May 27, 2015, asserting that
"[o]ngoing treatment is not 50% or greater related to the incident." (Ex. 4.) Mr.
Drovdahl disagreed with Dr. Smith's opinion and requested further treatment as
recommended by Dr. Whitman.

        Mr. Drovdahl filed a PBD on May 26, 2015, seeking medical and temporary

by the employer's physician. See Tenn. Code. Ann§ 50-6-204(d)(\).

                                                                4
disability benefits. The parties did not resolve the disputed issues through mediation, and
the Mediating Specialist filed the DCN on July 24, 2015. Mr. Drovdahl filed an REH on
August 5, 2015.

                              Mr. Drovdahl's Contentions

       Mr. Drovdahl asserts that he injured his right leg in the course and scope of his
employment. He acknowledges that he saw Dr. Whitman for his right-knee condition
before the work accident occurred. Mr. Drovdahl further acknowledged that his right
knee caused some discomfort before the work accident. However, he contends that the
work accident caused a different more severe pain in his right knee than he previously
experienced. He requests medical treatment as recommended by Dr. Whitman. He
disagrees with Dr. Smith's opinion, because his knee did not hurt as badly before the
incident on January 13, 2015. He requests temporary disability benefits for a single day,
May 18, 2015, the day he went to the examination by Bristol's physician, Dr. Smith.

                                  Bristol's Contentions

        Bristol contends that Dr. Smith s opinion is controlling, and that Mr. Drovdahl
failed to present sufficient evidence to prove that he suffered a compensable work injury
on January 13, 2015. Bristol argues that Mr. Drovdahl has not shown that his need for
right-knee treatment was primarily caused by the alleged work accident. Bristol points
out that it paid for Mr. Drovdahl's medical treatment with Dr. Kakkar and Dr. Whitman,
in addition to temporary·disability benefits, until Dr. Smith rendered his opinion. Bristol
denies it owes Mr. Drovdahl any further worker's compensation benefits.

                       Findings of Fact and Conclusions of Law

                                   Standard Applied

        The Workers' Compensation Law shall not be remedially or liberally construed in
favor of either party but shall be construed fairly, impartially and in accordance with
basic principles of statutory construction favoring neither the employee nor
employer. Tenn. Code Ann. § 50-6-116 (2014). An employee need not prove every
element of his or her claim by a preponderance of the evidence in order to obtain relief at
an expedited hearing. McCord v. Advantage Human Resourcing, No. 2014-06-0063,
2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd.
Mar. 27, 2015). At an expedited hearing, an employee has the burden to come forward
with sufficient evidence from which the trial court can determine that the employee is
likely to prevail at a hearing on the merits. !d.




                                             5
                                   Factual Findings

       Mr. Drovdahl's right knee popped when he pulled his leg from mud at work on
January 13, 2015. When Mr. Drovdahl reported the injury, Bristol did not provide Mr.
Drovdahl a panel of physicians, but sent him to Wellmont for evaluation. The Wellmont
physician, Dr. Kakkar, referred Mr. Drovdahl for an evaluation with an orthopedic
physician. Bristol provided a panel of physicians that included two orthopedics and a
physiatrist. Mr. Drovdahl chose Dr. Whitman from the panel, because he previously
treated him. Dr. Whitman recommended a total-knee arthroplasty, but elected not to
render an opinion on causation. Bristol sent Mr. Drovdahl for an examination by a
physician of its choosing, Dr. Smith. Dr. Smith opined that: 1) Mr. Drovdahl's
osteoarthritis pre-existed the January 13, 2015 incident; and, 2) Mr. Drovdahl's need for
surgery is "mainly" due to his pre-existing osteoarthritis.

                              Application ofLaw to Facts

      The Workers' Compensation Law defines "injury" and "personal injury" to mean
an injury by accident "arising primarily out of and in the course and scope of
employment[.]" Tenn. Code Ann.§ 50-6-102(13)(A) (2014). In addition:

       An injury is "accidental" only if the injury is caused by a specific incident,
       or set of incidents, arising primarily out of and in the course and scope of
       employment, and is identifiable by time and place of occurrence and shall
       not include the aggravation of a preexisting disease, condition or ailment,
       unless 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[.]

Tenn. Code Ann.§ 50-6-102(13)(A) (2014). An injury "arises primarily out of and in the
course and scope of employment" only if it has been shown "by a preponderance of the
evidence that the employment contributed more than fifty percent (50%) in causing the
injury, considering all causes[.]" Tenn. Code Ann.§ 50-6-102(13)(B) (2014).

       When an employee suffers an injury and requests a need for medical care, an
employer must provide the employee a panel of physicians. See Tenn. Code. Ann. § 50-
6-204(a)(3)(A)(i) (2014). In the present case, Bristol did not originally provide a panel of
physicians to Mr. Drovdahl, but sent him for an evaluation at Wellmont. Later, Dr.
Kakkar referred Mr. Drovdahl to an orthopedist. At that time, Bristol provided a panel.

        When Dr. Kakkar made the referral to an orthopedist, he did not make a specific
referral. Under such circumstances, Bristol's proper response should have been to
provide Mr. Drovdahl with a panel of three orthopedists. See Tenn. Code Ann. § 50-6-
204(a)(3)(A)(ii) (2014). Instead, Bristol provided Mr. Drovdahl a panel comprised of

                                             6
two orthopedists and one physiatrist. Mr. Drovdahl chose one of the orthopedists, Dr.
Whitman. Dr. Whitman recommended surgery, but he refused to opine as to whether Mr.
Drovdahl's injury primarily arose out of and in the course and scope of his employment,
or whether his condition was pre-existing.

       The Workers' Compensation Law presumes that the panel-selected physician will
render an opinion on causation. See Tenn. Code Ann. § 50-6-102(13)(E) (2014). Bristol
sent Mr. Drovdahl for an examination by its physician, Dr. Smith, to obtain a causation
opinion. Dr. Smith opined Mr. Drovdahl suffered an exacerbation of his pre-existing
condition, but added that Mr. Drovdahl's need for treatment was pre-existing and not
work-related. Bristol terminated benefits once Dr. Smith rendered his opinion, even
though Mr. Drovdahl requested additional treatment.

       At issue is whether Bristol provided an appropriate panel in compliance with the
law. The Court finds it did not. Instead of three orthopedists, Bristol provided only two,
and the one Mr. Drovdahl chose refused to render a causation opinion. Neither
circumstance is acceptable. Consequently, Bristol shall provide Mr. Drovdahl a panel of
physicians comprised of three orthopedists.

       The Court reserves the remaining issues. Although Dr. Smith rendered an opinion
on causation, at this time, the Court withholds an assessment of the appropriate weight to
give to Dr. Smith's determination, pending Mr. Drovdahl's evaluation by the new, panel-
selected orthopedist.

       The Court finds that Mr. Drovdahl is likely to prevail at a hearing on the merits of
the issue concerning Bristol's provision of an appropriate panel.

IT IS, THEREFORE, ORDERED as follows:

       1. Bristol shall provide Mr. Drovdahl a panel of physicians specializing in
          orthopedics from which Mr. Drovdahl may select an authorized treating
          physician for evaluation and treatment of work-related conditions in
          accordance with Tennessee Code Annotated section 50-6-204 (2014). Mr.
          Drovdahl or the medical providers shall furnish medical bills to Bristol or its
          workers' compensation carrier.

       2. This matter is set for a Scheduling Hearing on October 12, 2015, at 10:00 a.m.
          Eastern Time.

       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) (2014). The Insurer or Self-Insured

                                             7
          Employer must submit confirmation of compliance with this Order to the
          Bureau by email to WCCompHance.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.

       4. For questions regarding compliance, please contact the Workers'
          Compensation Compliance Unit via email W ' ompli ance.Program r@tn. gov or
          by calling (615) 253-1471 or (615) 532-1309.


                                 ENTERED this the 31st day of August, 20 15.




Initial (Scheduling) Hearing:

      An Initial Hearing has been set with Judge Addington, Court of Workers'
Compensation Claims. You must call 865-594-6538 or toll free at 855-543-5044 to
participate in the Initial Hearing.

       Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation. All conferences are set using Eastern Time (ET).


Right to Appeal:

       Tennessee Law allows any party who disagrees with this Expedited Hearing Order
to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of
Appeal, you must:

   1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal."

   2. File the completed form with the Court Clerk within seven business days of the
      date the Workers' Compensation Judge entered the Expedited Hearing Order.

   3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.



                                          8
   4. The appealing party is responsible for payment of a filing fee in the amount of
      $75.00. Within ten calendar days after the filing of a notice of appeal, payment
      must be received by check, money order, or credit card payment. Payments can be
      made in person at any Bureau office or by United States mail, hand-delivery, or
      other delivery service. In the alternative, the appealing party may file an Affidavit
      of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
      fee. The Affidavit of lndigency may be filed contemporaneously with the Notice
      of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
      will consider the Affidavit of Indigency and issue an Order granting or denying
      the request for a waiver of the filing fee as soon thereafter as is
      practicable. Failure to timely pay the filing fee or file the Affidavit of
      Indigency in accordance with this section shall result in dismissal of the
      appeal.

   5. The parties, having the responsibility of ensuring a complete record on appeal,
      may request, from the Court Clerk, the audio recording of the hearing for the
      purpose of having a transcript prepared by a licensed court reporter and filing it
      with the Court Clerk within ten calendar days of the filing of the Expedited
      Hearing Notice of Appeal. Alternatively, the parties may file a statement of the
      evidence within ten calendar days of the filing of the Expedited Hearing Notice of
      Appeal. The Judge must approve the statement of the evidence before the Court
      Clerk may submit the record to the Clerk of the Appeals Board.

   6. If the appellant elects to file a position statement in support of the interlocutory
      appeal, the appealing party shall file such position statement with the Court Clerk
      within three business days of the filing of the Expedited Hearing Notice of Appeal,
      specifying the issues presented for review and including any argument in support
      thereof. If the appellee elects to file a response in opposition to the interlocutory
      appeal, appellee shall do so within three business days of the filing of the
      appellant's position statement.

                            CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Expedited Hearing Order
Granting Medical Benefits was sent to the following recipients by the following methods
of service on this the 28th day of August, 2015.


Name                       Certified    Via        Via    Service sent to:
                            Mail        Fax       Email
Chad Drovdahl                 X                           482 Hayes Road, Ext.
                                                          BluffCity, TN 37618
 Sam McPeek, Esq.                                  X      sam@hbm-lawfirm.com


                                              9
Penny Shrum, Clerk of Court
Court of Workers' Compensation Claims
WC.CourtClerk@tn.gov




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