                                                                                              FILED

                                                                                            TNCOURTOF
                                                                                     1\ ORKI.RS' COllPE.NSATION
                                                                                              <CLAIMS

                                                                                             Tim.e 12 :53 PM

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

James McDonough,                                    )   Docket No.: 2016-08-1106
          Employee,                                 )
v.                                                  )
Phillips General and Mechanical,                    )   State File No.: 2328-2015
             Employer,                              )
And                                                 )
Summit Insurance Co.,                               )   Judge Deana Seymour
            Insurance Carrier.                      )
                                                    )


                               EXPEDITED HEARING ORDER


        This case came before the Court on January 24, 2018, for an Expedited Hearing.
The central legal issue is whether Mr. McDonough's work-related head injury caused the
psychiatric and neurological injuries for which he seeks ongoing medical treatment. 1 For
the reasons set forth below, the Court finds Mr. McDonough came forward with
sufficient evidence from which this Court can conclude he is likely to prevail at a hearing
on the merits. Therefore, the Court grants his requested benefits.

                                         History of Claim

      Mr. McDonough worked as a steamfitter for Phillips General and Mechanical
(PGM) when he sustained a head injury on January 8, 2015. A large pipe hit his face,
causing him to fall back, lose his hardhat, and strike his head on a railroad track. 2 His
next memory was waking in the emergency room.

       At the ER, Mr. McDonough described a headache and neck pain. He had a mild

1
 The Dispute Certification Notice listed temporary disability benefits as an issue. However, the parties
did not present argument or evidence related to this issue. Therefore, the Court will not address TTD.
2
 Mr. McDonough entered into evidence consistent written statements from co-workers, Timothy Meeks
and Brent Needham, which described how the accident occurred.

                                                   1
    abrasion to the left occipital area, contusions, and neck tenderness. CT scans showed no
    acute facial fractures and no intracranial findings. Mr. McDonough was discharged and
    told to follow-up with a neurosurgeon.

      However, four days later, Mr. McDonough presented to another ER, complaining
of neck pain, headaches, blurred vision, and ringing in his left ear. The provider
diagnosed a head injury and a neck sprain/strain and again told him to see a
neurosurgeon.

        PGM accepted the claim and provided Mr. McDonough with a panel of
neurologists from which he chose Dr. Feiyu Chen. Mr. McDonough complained to Dr.
Chen of headaches, dizziness, blurred vision, neck pain, and insomnia. Dr. Chen
diagnosed him with probable post-concussion syndrome and a probable cervical sprain.
He referred Mr. McDonough to Dr. Rodney Olinger, a neurosurgeon. Dr. Olinger did not
recommend surgery but referred Mr. McDonough to Dr. Autry Parker, who diagnosed
him with occipital neuralgia and administered pain blocks. When the blocks failed, Dr.
Parker referred Mr. McDonough back to Dr. Chen.

        Dr. Chen recorded Mr. McDonough's behavioral changes and pre-existing
attention deficit disorder. He believed Mr. McDonough's behavioral changes could be
related to his head injury and post-concussion syndrome and referred him to a
psychiatrist. 3 Mr. McDonough selected Dr. Jim Pang from a panel of psychiatrists. Dr.
Chen conservatively treated Mr. McDonough and released him at neurological maximum
medical improvement with no permanent impairment on February 9, 2016.

       Dr. Pang referred Mr. McDonough to Dr. John Hutson for psychological testing
and therapy. Rather than sending him to Dr. Hutson, PGM provided Mr. McDonough
with a panel of psychologists from which he chose Dr. Connie Paul. According to Dr.
Paul, Mr. McDonough's cognitive functioning fell within normal range; however, she
noted a lower than expected score in memory recognition. She could not interpret some
of the test results because of "an unusual response set in test taking" usually seen in
individuals who "have exaggerated difficulties in a cry for help or deliberate distortion of
difficulties." She stated, "[E]motional factors are contributing to his presenting
complaints."

       Dr. Pang continued to treat Mr. McDonough for post-traumatic stress and major
depressive disorders primarily through medication management after the
neuropsychological evaluation. PGM denied the psychological counseling and
neurological evaluation.


3
  Kathy McDonough, Mr. McDonough's wife, credibly testified that he experienced behavioral changes
since the accident, which included agitation, depression, and memory loss.

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        PGM sent Mr. McDonough's medical records to psychologist James Walker,
Ph.D. and psychiatrist J. Sidney Alexander, M.D. for a review. Neither doctor spoke to
Mr. McDonough, his treating physicians, or his family in conducting his review or
drawing his conclusion. Drs. Walker and Alexander relied on medical records and
surveillance of Mr. McDonough engaged in activities such as gambling at a casino and
assisting his wife at a restaurant she owns. PGM introduced this surveillance into
evidence at the hearing. Dr. Walker and Dr. Alexander concluded that Mr. McDonough
was malingering, and they agreed his alleged accident of January 8, 2015, did not cause
his complaints.

       Dr. Pang considered their opinions but still related Mr. McDonough's treatment
and diagnoses primarily to his work injury. He also indicated that treating and personally
examining Mr. McDonough over a period of time gave him greater insight into causation
than only reviewing his r cord .4 On January 8, 2018, Dr. Pang placed Mr. McDonough
at maximum medical improvement for his psychiatric injuries and assigned a 15%
permanent impairment rating, although he still believed Mr. McDonough would benefit
from psychological counseling and a neurological evaluation.

                                  Findings of Fact and Conclusions of Law

       Mr. McDonough has the burden of proof on the essential elements of his claim.
Scott v. Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6
(Aug. 18, 20 15). Since this is an expedited hearing, he has to come forward with
sufficient evidence from which the Court can determine he is likely to prevail at a hearing
on the merits. McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, at *7-8, 9 (Mar. 27, 2015). Specifically, he must show he suffered an "injury"
as defined under the Workers' Compensation Law.

       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). Medical evidence is generally required in order to
establish a causal relationship, "[e]xcept in the most obvious, simple and routine cases."
Willis v. All Staff, No. M2016-01143-SC-R3-WC, 2017 Tenn. LEXIS 455, at * 13
(Workers' Comp. Panel Aug. 3, 2017). The opinion of the treating physician, selected by
the employee from the employer's designated panel of physicians under§ 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. Tenn. Code Ann. § 50-6-102(14)(E).

      Also, "a trial judge has the discretion to determine which testimony to accept
when presented with conflicting expert opinions." Bass v. The Home Depot US.A., Inc.,

4
    Dr. Pang's opinions were contained in correspondence introduced into evidence at the hearing.

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2017 TN Wrk. Comp. App. 'Bd. LEXIS 36, at *9-10 (May 26, 2017) (internai citations
omitted). When medical opinions conflict, "the trial judge must obviously choose which
view to believe." In doing so, the trial judge can 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." !d. (internal
citations omitted). If one of the experts is an authorized treating physician, that expert's
opinion is afforded a presumption of correctness on the issue of causation. !d. (internal
citations omitted).

       Here, the issue is whether Mr. McDonough's work injury caused the need for
psychological counseling and a neurological evaluation. Mr. McDonough's authorized
psychiatrist, Dr. Pang, referred him to a psychologist for testing and extensive therapy
and to a neurologist for headaches. However, PGM retained a psychologist, Dr. Walker,
and a psychiatrist, Dr. Alexander, to review Mr. McDonough's records to determine
whether the recommended treatment was causally-related to his work injury. Both
doctors concluded Mr. McDonough was malingering and that his January 8, 2015 work
incident did not require ongoing psychological and neurological treatment.

        In considering the conflicting expert opinions, the Court notes Dr. Pang's opinion
is entitled to a rebuttable presumption of correctness as the authorized treating
psychiatrist. To determine whether the opinions of Drs. Alexander and Walker rebut Dr.
Pang's opinion, the Court considers the following: Dr. Walker is a psychologist and not
a medical doctor; Drs. Pang and Alexander are equally qualified psychiatrists. Dr. Pang
treated Mr. McDonough for an extended period, communicated with his treating
physician and family, and documented his evaluation process in his office notes. "It
seems reasonable that the physicians having greater contact with the Plaintiff would have
the advantage and opportunity to provide a more in-depth opinion, if not a more accurate
one." Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 677 (Tenn. 1991). In contrast,
neither Dr. Alexander nor Dr. Walker examined Mr. McDonough or communicated with
his treating physician or family. Instead, each only performed a records review. Notably,
Dr. Alexander did not review several records he allegedly relied upon in his report. He
testified that he used Dr. Walker's report to summarize some of those records. Thus, the
information available to the doctors and the importance of that information by other
experts weigh in favor of Dr. Pang.

       Tennessee Code Annotated section 50-6-204(a)(l)(A) (2017) states, "the 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."
PGM initially approved treatment with Dr. Pang, who referred Mr. McDonough to a
psychologist for testing and therapy and to a neurologist or "head concussion specialist"
for further treatment. The records-review reports of Dr. Walker and Dr. Alexander and
surveillance video of Mr. McDonough fail to rebut Dr. Pang's causation opinion, which
is presumed correct.

                                            4
       Thus, Mr. McDonough has come forward with sufficient evidence from which this
Court concludes he is likely to prevail regarding his need for the treatment recommended
by Dr. Pang. Therefore, the Court grants his request for this treatment.

.IT IS, THEREFORE, ORDERED as follows:

      1. PGM shall approve Dr. Pang's referral for psychological therapy and pay for
         evaluation and/or treatment with Dr. Connie Paul as a result of the January 8,
         2015 injury. PGM shall also approve Dr. Pang's referral for a neurological
         evaluation and/or treatment with Dr. Feiyu Chen as a result of the January 8,
         2015 injury. Mr. McDonough or the providers shall submit their billing to PGM
         for payment under the applicable fee schedule.

     2. This matter is set for a Scheduling Hearing on April 9, 2018, at 9:00 a.m.
        Central Time. The parties must call (615)532-9550 or toll-free (866)943-0014
        to participate in the Scheduling Hearing. Failure to appear by telephone may
        result in a determination of issues without your 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). The Insurer or Self-Insured Employer must submit confirmation of
        compliance with        this   Order    to the Bureau          by     email   to
        WCCompliance.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.
        For questions regarding compliance, please contact the Workers' Compensation
        Penalty Unit by email at WCCompliance.Program@tn.gov.

     ENTERED this     the\~day of February, 2018.

                             ~ c.-
                                 DEA A     SEYMOUR, JUDGE
                                 Court of Workers' Compensation Claims




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                                     APPENDIX


Exhibits:
       1) Medical records and reports with Table of Contents (Collective)
       2) Medical Record of Edward Pratt, M.D., dated October 14, 2011
       3) Medical Records of Conrad Pearson Clinic, dated April27, 2012
       4) Recorded Statement of James McDonough
       5) Transcript of James McDonough's deposition
       6) Transcript of James Alexander, M.D.'s deposition
       7) Transcript of James Walker, Ph.D.'s deposition
       8) Declaration of Phil Shulte with report and surveillance video
      9) Declaration of Sherry Turner with report and surveillance video
       10) Witness Statement of Timothy Meeks
       11)Witness Statement of Brent Needham
       12)Form C-20 Employer's First Report of Work Injury or Illness
       13)Form C-41 Wage Statement

Technical Record:
       1) Petition for Benefit Determination
       2) Dispute Certification Notice, with attached list of Additional Issues
       3) Show Cause Order
       4) Request for Expedited Hearing, with Mr. McDonough's affidavit
       5) Notice of Filing
       6) Order of Dismissal Without Prejudice, issued March 2, 2017
       7) Motion to Set Aside Order of Dismissal Without Prejudice
       8) Order Setting Aside Order of Dismissal, issued March 16, 2017
       9) Notice of Filing Wage Statement, with attachment
       10)PGM's Position Statement for Expedited Hearing
       11)0rder of Continuance, issued April21, 2017
       12)Transfer Order, issued April24, 2017
       13)Status Hearing Order, issued May 23, 2017
       14)Status Hearing Order, issued June 7, 2017
       15)Notice of Filing Opinion Letter of Jim Pang, M.D., with attachments
       16)Joint Motion to Extend Deadline for Pre-Hearing Submissions
       17)0rder on Joint Motion to Extend Deadline for Pre-Hearing Submissions,
          issued January 10, 2018
       18)Position Statement of Mr. McDonough for Expedited Hearing
       19)Mr. McDonough's Exhibit List
       20)Mr. McDonough's Witness List
       21)PGM's Supplemental Expedited Hearing Statement
       22)PGM's Witness and Exhibit List

                                          6
       23)Mr.l\1cDonough's Amended Exhibit List
       24)Notice of Filing Medical Record of Edward Pratt, M.D., with attachments
       25)Notice ofFiling Medical Records of Conrad Pearson Clinic, with attachments
       26)Notice of Filing Deposition Transcripts of James Walker, Ph.D. and James
          Alexander, M.D., with attachments
       27) PGM's Motion to Deem Admitted
       28)Mr. McDonough's Response to PGM's Request for Admissions




                           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 _ _ day
                                                                                 16th
ofFebruary, 2018.

Name                       Certified Via       Via      Service sent to:
                           Mail      Fax       Email
Stephen Libby,                                   X     steve@lnlawmemQhis.com
Employee's Attorney                                    cc: cecile@lnlawmemphis.com
Cate Dugan,                                      X     cate@2eterson white. com
Employer's Attorney                                    cc: rvan@petersonwhite.com




                                        Pe~,E:~
                                        Court of  rkers' Compensation Claims
                                        WC.CourtClerk@tn.gov




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