                                                                                    FILED
                                                                                 May 21, 2018
                                                                                 04:20 PM(ET)
                                                                               TENNESSEE COURT OF
                                                                              WORKERS' COMPENSATION
                                                                                     CLAIMS




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

PAUL WHITE,                                 )    Docket No.: 2017-03-1291
         Employee,                          )
v.                                          )
G&R TRUCKING, INC.,                         )    State File No.: 63359-2016
        Employer,                           )
and                                         )
RIVERPORT INS. CO.,                         )    Judge Lisa A. Lowe
        Carrier.                            )
                                            )

                           EXPEDITED HEARING ORDER
                             FOR MEDICAL BENEFITS
                            (DECISION ON THE RECORD)


        This matter came before the undersigned workers' compensation judge on May
 18, 2018, on Paul White's Request for Expedited Hearing. The present focus of this case
is whether Mr. White is entitled to medical benefits, specifically a lumbar spine fusion
surgery at the L5-S1 level. The central legal issue is whether Mr. White's need for
surgery relates to his December 22, 2005 injury, for which he has open future medical
treatment, or if it is a direct and natural consequence of his injury on August 17, 2016.
Riverport insured G&R at the time of the 2016 injury. Gallagher Bassett insured G&R at
the time of the 2005 injury and, although not a party, filed an amicus brief. For the
reasons below, the Court holds Mr. White is likely to prevail in establishing his need for
the L5-S1 fusion is a direct and natural consequence of his 2016 work injury.

                                    History of Claim

       G&R Trucking employed Mr. White for over twenty-eight years. In 2005, he
sustained a work-related back injury at the L4 level and underwent surgical
decompression and fusion by Dr. Maguire. Mr. White settled a claim for that injury with
Gallagher Bassett, which included the provision of lifetime medical benefits related to the
mJury.



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      In August 20 16, Mr. White again injured his back when Riverport had coverage of
G&R. Riverport accepted the claim and provided authorized treatment with Dr. Maguire.
An MRI performed two months after the injury revealed L3 issues at the L3 level, mild
narrowing at L4-L5, and mild to moderate narrowing at L5-S 1. Dr. Maguire ultimately
performed surgery at L3.

       While undergoing physical therapy after that surgery, Mr. White felt a sudden pop
in his back with immediate pain. Dr. Maguire ordered a CT myelogram, which again
revealed mild narrowing at L4-L5 but also moderately severe right-sided foramina!
stenosis at L5-S 1 for which Dr. Maguire recommended surgical decompression.

       In his June 19,2017 note, Dr. Maguire stated, "I do consider [the L5-S1 stenosis]
part of his work-related injury. I do not know whether it arose in physical therapy or ...
predated that, but ... I still attribute this to part of his work-related problem." On July
31, Dr. Maguire stated, "He has transitional syndrome and I believe his previous fusion
has predisposed him to this." On September 26, Dr. Maguire noted he did not think Mr.
White's L3 surgery was in any way related to the L5-S1 problem. Instead, he thought
Mr. White was at risk for developing adjacent segment disease related to his prior L4-5
fusion and the L5-S 1 level was now symptomatic due to increased stenosis.

       On October 26, Dr. Maguire responded to a letter from the adjuster and marked
"no" to these questions: (1) Please advise if, in your opinion, the need for surgery at L5-
S1 is primarily caused by the August 17, 2016 work injury at level L3-4; and (2) If the
surgery is not related to the L3-4 injury, do you rescind the request for surgery at L5-S 1
under the claim with the August 17, 201 ~ date of loss. However, on November 16, Dr.
Maguire amended his prior opinion to say that he thought a substantial portion of Mr.
White's need for pain management and surgery at L5-S1 was likely due to the more
recent injury event at physical therapy. Dr. Maguire placed Mr. White at maximum
medical improvement on December 14 and assigned six-percent whole-person
impairment.

      Riverport sent Dr. Maguire's request for L5-S1 surgery to Utilization Review
(UR), and the surgery request was denied. Mr. White appealed the UR decision to the
Bureau Medical Director, who issued an Order for the L5-S1 surgery. As a result,
Riverport filed a Petition for Benefit Determination seeking relief from the Medical
Director's order, and this action followed.

                                Mr. White's Contentions

       Mr. White obtained a record review with board-certified orthopedic surgeon, Dr.
William Kennedy, who reviewed records from the recent injury but not from the 2005
injury. Thus, he relied on Dr. Maguire's discussion of the prior treatment and the
doctor's conclusions in the records regarding the 2016 injury. Dr. Kennedy stated the

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 recent injury resulted in Mr. White attending physical therapy when he felt a pop, which
 permanently aggravated and worsened his degenerative changes at L5 for which Dr.
 Maguire recommended surgery. Dr. Kennedy concluded within a reasonable degree of
 medical certainty that the L5 degenerative changes were dormant, causing no pain or
 symptoms, until aroused and worsened by the physical therapy incident, and therefore
 they related to the 2016 injury. Further, Mr. White stated in his affidavit that the physical
 therapy injury caused the extraordinary amount of pain that he now suffers. Thus, he
 took the position that the physical therapy incident and resulting need for the L5 surgery
 is a direct and natural consequence of his L3 injury. Mr. White asserted the questions
 asked of Dr. Maguire call for a legal opinion rather than a medical opinion.

                                  Riverport 's Contentions

         Riverport argued Mr. White's prior injury caused his need for L5 surgery, making
Gallagher Bassett the responsible carrier. It argued Dr. McGuire related the need for
surgery to Mr. White's prior injury and Dr. Maguire's causation opinion is presumed
correct because he is the "treating physician." It further argued Dr. Kennedy's opinion is
less reliable because he never interviewed or evaluated Mr. White, while Dr. Maguire
treated Mr. White for over ten years.

                              Gallagher Bassett's Contentions

         Gallaher Bassett filed an amicus brief stating Mr. White's need for the L5 surgery
relates to his new injury. It pointed to two objective imaging studies, the October 21,
2016 MRI and the June 8, 2017 CT myelogram performed after Mr. White felt the pop in
his back during physical therapy. Gallagher Bassett argued the MRI noted no disc bulging
and only mild to moderate narrowing at L5-S 1, while the myelogram showed some disc
bulging and moderately severe narrowing at L5-SI. It argued the myelogram clearly
revealed a worsening of Mr. White's condition after the physical therapy incident.
Gallagher Basset noted that even if Mr. White's 2005 injury predisposed him to a
transitional syndrome at L5, the physical therapy caused the current L5 pathology and
need for surgery.

                        Findings of Fact and Conclusions of Law

      Mr. White need not prove every element of his claim by a preponderance of the
evidence to obtain relief at an expedited hearing. Instead, he must present sufficient
evidence that he is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-
6-239(d)(l) (2017); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

      Riverport argued that Dr. McGuire's causation opinion is presumed correct under
Tennessee Code Annotated section 50-6-1 02( 14 )(E) since he is the "treating physician."

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However, that section affords the presumption to the treating physician selected by
employee from a panel. The Court is unable to determine whether Mr. White chose Dr.
Maguire from a panel because Riverport failed to provide documentation or information
that Mr. White did so. In fact, Riverport filed the PBD and left blank Section D,
"Medical Benefits," which provides a selection that "employee received a list of
physicians on [insert date] and selected [insert doctor name]." Due to Riverport's failure
to establish Mr. White selected Dr. Maguire from a panel, Dr. Maguire is not entitled to
the statutory presumption.
        The Court faces conflicting causation opinions from Dr. Maguire and Dr.
Kennedy. A trial judge "has the discretion to conclude that the opinion of one expert
should be accepted over that of another expert." Reagan v. Tennplasco, No. M2005-
02020-WC-R3-CV, 2006 Tenn. LEXIS 1209, at * 10 (Tenn. Workers' Comp. Panel Dec.
27, 2006). As stated by the Tennessee Supreme Court, "[w]hen faced . . . with
conflicting medical testimony ... it is within the discretion of the trial judge to conclude
that the opinion of certain experts should be accepted over that of other experts and that it
contains the more probable explanation." Thomas v. Aetna Life and Cas. Co., 812
S.W.2d 278, 283 (Tenn. 1991) (internal quotation marks omitted).

       Not only do Dr. Maguire and Dr. Kennedy's opinions conflict, but also Dr.
Maguire seems to contradict himself. Namely, Dr. Maguire first said "no" when asked if
the L5 surgery was related to the 2016 injury but later changed that opinion and said it
was related because of the physical therapy event directly attributable to the 2016 injury.
Additionally, the Court is unconvinced Riverport asked Dr. Maguire the appropriate
questions regarding causation.

       Admittedly, Dr. Kennedy only reviewed records and did not perform a physical
examination. However, Dr. Kennedy specifically addressed the effect of the physical
therapy incident on Mr. White's need for L5-S 1 surgery. He said the therapy was a
necessary part of Mr. White's rehabilitation program following L3 surgery and the
physical therapy incident permanently aggravated and worsened Mr. White's
degenerative changes at L5 for which Dr. Maguire recommended surgery. He went on to
say that more likely than not, Mr. White would not have been exercising on the physical
therapy ball but for his L3 surgery. Therefore, he concluded the L5 condition was
causally related to and attributable to the recent work injury and that Mr. White's L5
degenerative conditions were dormant, causing no pain or symptoms until aroused and
made worse by the physical therapy incident.

       Mr. White's affidavit testimony established he felt a sudden pop in his back and
experienced immediate, extraordinary pain that he had not previously suffered. An
employee's assessment as to his own physical condition is competent testimony that is
not to be disregarded. Limberakis v. Pro-Tech Security, Inc., 2017 TN Wrk. Comp. App.
Bd. LEXIS 53, at *6 (Sept. 12, 2017). Standing alone, his own assessment is insufficient,

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                                                                                                .·
but the Court finds that Dr. Kennedy's expert medical opinion supports Mr. White's
testimony, and that even the references in Dr. Maguire's notes support Mr. White's
testimony. Additionally, the comparison of the MRI performed after Mr. White's current
work injury to the CT myelogram performed after the physical therapy incident
objectively show an advancement from mild to moderate narrowing to moderately severe
narrowmg.

      The Appeals Board discussed subsequent injuries in Lee v. W Plastics, 2016 TN
Wrk. Comp. App. Bd. LEXIS 53, at *6-7 (Oct. 20, 2016):
      In Tennessee, the general rule is that a "subsequent injury, whether in the
      form of an aggravation of the original injury or a new and distinct injury, is
      compensable if it is the 'direct and natural result' of a compensable injury."
      Anderson v. Westfield Grp., 259 S.W.3d 690, 696 (Tenn. 2008). "The rule,
      commonly referred to as the direct and natural consequences rule, has been
      stated as: [w]hen the primary injury is shown to have arisen out of and in
      the course of employment, every natural consequence that flows from the
      injury likewise arises out of the employment." !d. Therefore, "all the
      medical consequences and sequelae that flow from the primary injury are
      compensable." Rogers v. Shaw, 813 S.W.2d 397, 400 (Tenn. 1991). "The
      rationale for the rule is that the original compensable injury is deemed the
      cause of the damage flowing from the subsequent injury-producing event."
      Anderson, 259 S.W.3d at 697.
       The Court holds the evidence established that Mr. White would likely prevail at a
hearing on the merits that his L5-S 1 surgery was the direct and natural consequence of
his August 17, 2016 injury because he suffered a specific incident in physical therapy,
which caused his need for the medical treatment.
IT IS, THEREFORE, ORDERED as follows:

   1. Riverport shall provide reasonable and necessary medical treatment for Mr.
      White's L5-S 1 condition under Tennessee Code Annotated section 50-6-
      204(a)(1)(A), including the surgery recommended by Dr. Maguire.

   2. This matter is set for a telephonic Status Hearing on July 13, 2018, at 9:30
      a.m. Eastern Time. You must call toll-free at 855-383-0003 or 865-594-0109
      to participate in the hearing. Failure to call may result in a determination of the
      issues without your further participation.

ENTERED on May 21, 2018.

                                  LISA A. LOWE, JUDGE
                                  Court of Workers' Compensation Claims

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                                      APPENDIX

       1.  Petition for Benefit Determination,
       2.  Dispute Certification Notice,
       3.  Request for Expedited Hearing,
       4.  Employer's Expedited Hearing Position Statement,
       5.  Employee's Response to Employer's Expedited Hearing Position Statement,
       6.  Affidavit of Paul White,
       7.  Affidavit of William E. Kennedy, MD,
       8.  Final Judgment Approving lump Sum Settlement, Knox County Chancery
           Court, filed April 13, 2007,
       9. First Report of Work Injury,
       10. Wage Statement,
       11. Medical Evaluation of Dr. William Kennedy,
       12. Functional Capacity Evaluation of Results Physiotherapy,
       13. Medical Records and Table of Contents
              a. Ortho Tennessee
              b. Knoxville Orthopaedic Surgery Center
              c. Outpatient Diagnostic Center
              d. Physicians Regional Medical Center
       14. October 21, 2016 Lumbar MRI
       15. Gallagher Bassett's Amicus Brief.


                            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 May 21, 2018.

            Name          Certified    Fax       Email   Service sent to:
                           Mail
Joshua J. Bond,                                   X      jbond@hdclaw.com
Employee's Attorney

Ryan L. Sarr,                                     X      rsarr@morganakins.com
Employer's Attorney




                                      ~ ~SJA«&n ~JJii~AQ~
                                         ENNY HRUM, COURT CLE                .        ~
                                        wc.courtclerk@tn.gov


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