                                                                                             FILED
                                                                                           Sep 06, 2019
                                                                                          08:40 AM(CT)
                                                                                       TENNESSEE COURT OF
                                                                                      WORKERS' COMPENSATION
                                                                                             CLAIMS




       TENNESSEE BUREAU OF WORKERS’ COMPENSATION CLAIMS
         IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                        AT MURFREESBORO

CORNELIUS POLK,                                    ) Docket No. 2018-05-1146
        Employee,                                  )
v.                                                 )
                                                   )
SUNDOWNER MGMT. GROUP,                             ) State File No. 56493-2017
       Employer,                                   )
And                                                )
                                                   )
SECURITY NAT. INS. CO.,                            ) Judge Dale Tipps
         Carrier.                                  )


      EXPEDITED HEARING ORDER DENYING REQUESTED BENEFITS


       This case came before the Court on August 29, 2019, for an Expedited Hearing on
whether Mr. Polk is entitled to Botox injections ordered by his authorized physician.1
For the reasons below, the Court holds Mr. Polk failed to prove entitlement to the
requested benefits at this time.

                                         History of Claim

       Mr. Polk worked as a cook at one of Sundowner’s restaurants. During a robbery
on July 27, 2017, Mr. Polk suffered a head injury. He received authorized treatment with
Dr. Elizabeth Null.

       Dr. Null first saw Mr. Polk on September 27 for complaints of daily headaches,
dizziness, and blurred vision. She diagnosed headache disorder, ordered physical therapy
and a brain MRI, and prescribed Ketorolac and Klonopin. She also noted Mr. Polk was
anxious and sleeping poorly, so she ordered a psychiatric evaluation and treatment.


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  When Mr. Polk requested the Expedited Hearing, he also sought a sleep study recommended by his
neurologist. However, Mr. Polk confirmed during the hearing that the Botox treatment was the only issue
to be determined.
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      When Mr. Polk returned on November 7, his symptoms were largely unchanged.
Dr. Null continued the previous prescriptions and recommended Botox injections for
what she diagnosed as intractable chronic migraine.

       The next medical record submitted is from June 2018. Dr. Null found that Mr.
Polk was suffering from PTSD as well as his headaches. She stopped his earlier
prescriptions and prescribed Topamax instead. Dr. Null also referred Mr. Polk to a sleep
physician and reiterated her Botox recommendation.

       Dr. Null’s February 2019 record shows that Mr. Polk continued to complain of
headaches. He reported his medications “didn’t agree with him,” so he did not refill
them. Although he was receiving counseling, Mr. Polk felt that his PTSD was worse. He
also told Dr. Null that Sundowner never approved his Botox injections.

       At the hearing, Mr. Polk testified about problems getting medical treatment.2 He
noted that it took two months for him to get his first appointment with Dr. Null. He
described great difficulty communicating with the carrier, which caused the seven-month
delay between his November 2017 and June 2018 appointments. Further, even though
Dr. Null recommended psychiatric treatment at his first visit, Sundowner did not provide
a psychiatric panel until July 2018. He selected Dr. Barr but never got an appointment.
Six months later, Mr. Polk received a second psychiatric panel in January 2019 and
selected Dr. Kyser. He is now treating with Dr. Kyser and feels his treatment is going
well.

        Mr. Polk said he continues to suffer severe headaches almost daily that last four to
six hours. He confirmed that Dr. Null had prescribed Ketorolac and Topamax but
testified they never helped his headaches.

      Regarding the Botox recommendations, Mr. Polk testified that he never received
any written notice of denial or utilization review from Sundowner or its carrier.

        Sundowner’s proof consisted of two utilization review (UR) reports. The first of
these, issued by Reliable Review Services (RRS), is dated December 19, 2017. The
reviewing doctor explained that Botox injections “have been demonstrated to be effective
for treatment of chronic migraine and no other type of headache.” Noting that Mr. Polk
“has post-traumatic headaches, but he has not been diagnosed with chronic migraine,” the
doctor concluded that Botox injections were not medically necessary under the ODG
Treatment Guidelines.

      The second UR document is a February 4, 2019 report from Mitchell International.
This report also concluded that Botox injections were not medically necessary. The

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    Mr. Polk’s wife confirmed these problems during her testimony.
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reviewing doctor noted that, for Botox injections, the ODG Guidelines require a patient
to have “a diagnosis of migraine headache, more than 15 days per month with headaches
lasting 4 hours a day or longer, and not responded to at least three prior first-line
migraine headache prophylaxis medications.” He concluded: “There is a lack of
documentation to show the patient had more than 15 days per month with headaches
lasting 4 hours a day or longer and was [sic] not responded to at least three prior first-line
migraine headache prophylaxis medications.”

        Mr. Polk requested that the Court order Sundowner to provide the Botox
injections. He also asked for attorney fees incurred because Sundowner failed to provide
a wide range of treatment recommended by his authorized doctor.

       Sundowner contended that it accepted Mr. Polk’s claim and provided all benefits
to which he is entitled. It argued he failed to prove he is likely to establish the medical
necessity of the Botox injections and asked the Court to deny his request.

                           Findings of Fact and Conclusions of Law

       For the Court to grant Mr. Polk’s request, he must provide sufficient evidence
from which this Court might determine he is likely to prevail at a hearing on the merits.
See Tenn. Code Ann. § 50-6-239(d)(1) (2018); McCord v. Advantage Human
Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). This
requires the Court to examine whether he is likely to prove the medical necessity of the
Botox injections.

                                     Medical Necessity

       Any treatment recommended by a panel physician “shall be presumed to be
medically necessary for the treatment of the injured employee.” Tenn. Code Ann. § 50-
6-204(H). Resolution of this issue requires the Court to determine whether Sundowner
rebutted the applicable presumption of medical necessity attached to Dr. Null’s
recommendation.

       The Appeals Board addressed this presumption in Morgan v. Macy’s, 2016 TN
Wrk. Comp. App. Bd. LEXIS 39 (Aug. 31, 2016). The Board noted section 204(a)(3)(I)
provides that, “[f]ollowing the adoption of treatment guidelines . . . the presumption of
medical necessity for treatment recommended by an authorized physician is rebuttable
only by clear and convincing evidence demonstrating that the recommended treatment
substantially deviates from, or presents an unreasonable interpretation of, the treatment
guidelines.” The Board also referred to the Bureau’s medical treatment guidelines. See
Tenn. Comp. R. & Regs. 0800-02-25-.03(2).

       Based upon these provisions, the Board held in Morgan that, “a trial court can

                                              3
apply one of two potential presumptions to the issue of medical necessity in any given
case.” Id. at *17. First, the presumption of medical necessity may be rebutted by a
preponderance of the evidence when the treating physician does not explicitly follow the
treatment guidelines. Second, a trial court should apply the presumption rebuttable by
clear and convincing evidence only when an employee presents proof that the authorized
physician “explicitly follows the treatment guidelines.” Id. at *18.

       Because Dr. Null is an authorized panel physician, the Court must presume the
Botox injections are medically necessary. However, Mr. Polk presented no evidence that
she explicitly followed the treatment guidelines. Thus, under Morgan, Sundowner need
only rebut the medical necessity of the injections by a preponderance of the evidence.

        The RRS report is flawed because the reviewer based his conclusion on the fact
that Mr. Polk had not been diagnosed with chronic migraines. A review of Dr. Null’s
records shows that this is incorrect. Those records show she actually diagnosed Mr. Polk
with intractable chronic migraine on November 7, 2017, over a month before RRS issued
its report.

       The Mitchell International reviewer based his non-certification on a different part
of the ODG: “a diagnosis of migraine headache, more than 15 days per month with
headaches lasting 4 hours a day or longer, and not responded to at least three prior first-
line migraine headache prophylaxis medications.” Mr. Polk’s testimony and Dr. Null’s
medical records confirm that he has a migraine diagnosis and headaches of the requisite
number and duration. The second half of the guideline is more problematic.

        Dr. Null’s records only show two prescriptions for Mr. Polk’s migraines –
Ketorolac and Topamax. Further, it appears from the Mitchell report that only Topamax
is included in the list of “first-line” medications identified in the ODG Treatment Index.
The Court concludes that the recommended treatment substantially deviates from the
treatment guidelines’ requirement of three prior first-line medications. Absent any
information from Dr. Null regarding this deviation, the Court finds this is sufficient to
rebut the presumption of necessity. Therefore, the Court cannot find at this time that Mr.
Polk is likely to prevail on this issue at a hearing on the merits.

                                    Utilization Review

       The Court notes that Mr. Polk presented some compelling arguments about
Sundowner’s use of UR. He did not object to the UR reports’ admissibility, noting
correctly that they are admissible medical records because the reviewing physicians
signed them. See Tenn. Comp. R. & Regs. 0800-20-21-.16(2)(b). Instead, Mr. Polk
contended that Sundowner’s UR process was improper.

      The Workers’ Compensation Law gives an employer the right to submit any

                                            4
medical treatment recommended by the authorized treating physician to UR for
“evaluation of the necessity, appropriateness, efficiency and quality of medical care
services[.]” Tenn. Code Ann. § 50-6-102(20). In the case of all denials, the UR decision
“shall be determined by an advisory medical practitioner and communicated to the parties
in a written utilization review report.” Tenn. Comp. R. & Regs. 0800-02-06-.03(3).

        The rules require an employer to submit any UR request to its provider within
three business days of the authorized physician’s notification of the recommended
treatment. The employer is also required to notify all parties when it submits a case to its
UR provider. Id. at .06(1). Further, the UR decision must be sent to the employee and
the authorized treating physician within seven business days. Id. at .06(2). Mr. Polk
testified that he did not know his case had been referred to UR, and nothing in Dr. Null’s
records suggests she received notice, either. Sundowner presented no evidence to the
contrary. It also failed to rebut Mr. Polk’s testimony that he never received either UR
report. It appears to the Court that Sundowner’s violation of these UR rules deprived Mr.
Polk and his authorized physician of the opportunity to address the ODG issues and
might have significantly delayed the course of his treatment.

       The Court also finds troubling Sundowner’s failure to comply with the three-day
submission requirement. The first referral to UR occurred at least a month after Dr.
Null’s first Botox recommendation. Sundowner did not make the second referral until
January 31, 2019, over six months after Mr. Polks most recent appointment with Dr.
Null. This suggests that Sundowner made the decision to ignore Dr. Null’s
recommendations and only later sought medical opinions supporting that decision.

       Based on the foregoing, the undersigned Workers’ Compensation Judge refers
Sundowner and its UR providers to the penalty unit for investigation and assessment of a
civil penalty. Upon its issuance, the Clerk shall send a copy of this Order to the Penalty
Unit. See Tenn. Comp. R. & Regs. 0800-02-24-.03.

                                      Attorney Fees

      Mr. Polk seeks attorney fees under Tennessee Code Annotated section 50-6-
226(d)(1)(B). This section allows an award of fees and reasonable costs incurred when
an employer:

       Wrongfully denies a claim or wrongfully fails to timely initiate any of the
       benefits to which the employee or dependent is entitled under this chapter,
       including medical benefits . . . if the workers’ compensation judge makes a
       finding that such benefits were owed at an expedited hearing or
       compensation hearing.

       The Court agrees with Mr. Polk that Sundowner likely failed to timely initiate his

                                             5
recommended psychiatric treatment, Botox injections, and sleep study. Further, as noted
above, this failure to provide Mr. Polk the treatment recommended by his authorized
treating physician appears to have been based solely on Sundowner’s own interpretation
of the medical records instead of an expert medical opinion. This behavior is likely to
meet the requirement of a “wrongful” failure to timely initiate medical benefits. See
Thompson v. Comcast Corp., 2018 TN Wrk. Comp. App. Bd. LEXIS 1, at *22-32 (Jan.
30, 2018).

       However, the Appeals Board has repeatedly held that section 226(d)(1)(B) does
not require determination of fee requests following an Expedited Hearing. Citing the
uncertainties inherent in litigation, the standard of proof, and other concerns, the Board
concluded, “a decision to award attorneys’ fees and expenses at an interlocutory stage of
a case should be made only in extremely limited circumstances.” See Andrews v. Yates
Servs., LLC, 2017 TN Wrk. Comp. App. Bd. LEXIS 35, at *7-8 (May 23, 2017).

       Mr. Polk suggested attorney fees are necessary to avoid “letting adjusters get away
with” unsupported refusal of treatment. However, Mr. Polk failed to articulate exactly
how an award of attorney fees at this stage of the claim is necessary to accomplish that
goal. Further, at least so far as the Botox injections are concerned, some question
remains as to the ultimate medical necessity of some of the denied treatment. In view of
the possibility that this question might be resolved with further treatment or explanation
from Dr. Null, as well as the fact that the other medical recommendations or referrals
were not identified as disputed issues for this hearing, the Court denies Mr. Polk’s request
for fees at this time.

IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Polk’s claims against Sundowner and its workers’ compensation carrier for
      the requested Botox injections and attorney fees are denied at this time.

   2. This matter is set for a Scheduling Hearing on November 12, 2019, at 9:00 a.m.
      You must call toll-free at 855-874-0473 to participate. Failure to call might result
      in a determination of the issues without your further participation. All conferences
      are set using Central Time.

       ENTERED September 6, 2019.



                                   _____________________________________
                                   Judge Dale Tipps
                                   Court of Workers’ Compensation Claims


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                                     APPENDIX

Exhibits:
   1. Affidavit of Cornelius Polk
   2. Records from Dr. Elizabeth Null
   3. RRS medical review report
   4. Mitchell International medical review report
   5. July 11, 2019 C-42 Choice of Physician Form
   6. Affidavit of Jill Draughon
   7. January 28, 2019 C-42 Choice of Physician Form

Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing
   4. Employer’s Pre-Hearing Brief
   5. Employee’s Pre-Hearing Brief



                           CERTIFICATE OF SERVICE

      I certify that a copy of the Expedited Hearing Order was sent as indicated on
September 6, 2019.

 Name                       Certified Email       Service sent to:
                            Mail
 Jill Draughon, Esq.                  X           Jdraughon@hughesandcoleman.com
 Employee Attorney
 Troy Hart, Esq.                       X          wth@mijs.com
 Employer Attorney
 Compliance Program                    X          WCCompliance.Program@tn.gov



                                           _____________________________________
                                           Penny Shrum, Clerk of Court
                                           Court of Workers’ Compensation Claims
                                           WC.CourtClerk@tn.gov




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