                                                                                  FILED
                                                                                May 05, 2020
                                                                                10:45 AM(ET)
                                                                              TENNESSEE COURT OF
                                                                             WORKERS' COMPENSATION
                                                                                    CLAIMS




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

Lindsey Smith,                              )   Docket No.: 2018-01-0762
             Employee,                      )
v.                                          )
Dialysis Clinic, Inc.,                      )   State File No.: 59714-2018
             Employer,                      )
And                                         )
The Hartford,                               )   Judge Audrey A. Headrick
             Carrier.                       )


                          EXPEDITED HEARING ORDER
                           (DECISION ON THE RECORD)


       This case came before the Court on Ms. Smith’s Request for an Expedited Hearing
on the record. She asked the Court to order Dialysis Clinic to authorize medical
treatment, including various medical apparatus, allegedly stemming from a low-back
injury. Because the authorized treating physician offered conflicting and speculative
opinions regarding the work-relatedness of her current condition, the Court denies Ms.
Smith’s request.

                                    History of Claim

     The medical chronology from Ms. Smith’s August 4, 2018 accident is complex. A
summary is below.

       Ms. Smith injured her neck and right shoulder while transferring a patient. After a
shoulder MRI, Dr. Peter Lund, a panel-selected physician, determined that she did not
need shoulder treatment but recommended a neck evaluation. On November 30, panel-
selected physician Dr. Alex Sielatycki performed neck surgery.

      Afterward, Ms. Smith reported balance and stroke-like symptoms when turning
her head. As a result, Dr. Sielatycki ordered a wheelchair and referred her to multiple


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specialists over the next two years based on his diagnosis of possible vertebral artery
syndrome that “may have been related to retractor placement and the [neck] surgery.”

       In the meantime, Ms. Smith sought emergency treatment at a local hospital
complaining of almost fainting, weakness, dizziness, “seeing stars,” difficulty
swallowing, lip numbness, and tingling in her arms. She underwent diagnostic testing,
including a brain CT, CTA chest, chest x-ray, and 24-hour Holter monitoring, which
were all normal.

      Ms. Smith saw Dr. David Hauge, a panel-selected neurosurgeon, soon afterward.
Dr. Hauge concluded that no complications from the surgery were causing Ms. Smith’s
symptoms.    He recommended a cardiology consultation with additional Holter
monitoring.

       A month later, Ms. Smith sought unauthorized neurological treatment. Her
evaluation resulted in normal test results from an ophthalmoscope exam of her eye, a
lumbar puncture, and brain CT. The doctor diagnosed “[p]ossibility of conversion
disorder, complex migraine, or malingering” and did not recommend any further testing.

       Ms. Smith sought emergency treatment one week later complaining of weakness
and inability to walk. She declined the provider’s recommendation of physical therapy
and a neuropsychiatric evaluation.

       Two weeks later, Ms. Smith underwent an authorized evaluation by cardiologist
Dr. Kinsman Wright. Dr. Wright suggested that Ms. Smith see vascular surgeon, Dr.
Chris Lazar.

       Ms. Smith then sought unauthorized treatment from three specialists at Mayo
Clinic. A neurologist found “no objective findings during her reported sensory
symptoms, perception of left facial drooping and perceived altered sensorium.” The
neurologist suspected “deliberate efforts not to move her neck.” A neurosurgeon
concluded it was “not entirely clear . . . what is causing Ms. Smith’s symptoms.” After
obtaining normal diagnostic studies, another neurosurgeon evaluated Ms. Smith and
concluded he saw “absolutely nothing to explain her spells.” The neurosurgeon
suggested that Ms. Smith consult with a psychologist or psychiatrist for possible
conversion disorder.

       Three months later, Ms. Smith received an authorized evaluation by vascular
surgeon Dr. Sachin Phade. Dr. Phade was unable to review her Mayo Clinic records and
recommended that Ms. Smith see a neurologist. He stated that if her Mayo Clinic records
were normal, “it is highly unlikely that this is a vascular issue.” Further, Dr. Phade wrote
that even if Ms. Smith had a compromised vertebral artery, “it would seem odd that this
would cause her symptoms.”


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       Ms. Smith had an authorized second-opinion evaluation with orthopedic surgeon
Dr. Richard Pearce two months later. He found no vascular impingements and nothing to
warrant additional neck surgery. However, Dr. Pearce recommended she see a vascular
surgeon.

       Ms. Smith then underwent an authorized evaluation with neurologist, Dr. Larry
Gibson. He concluded that he had nothing to offer and felt her symptoms suggested
vertebrobasilar insufficiency.  Dr. Gibson referred Ms. Smith for a neuro-
interventionalist.

        Throughout Ms. Smith’s appointments with various specialists and unauthorized
treatment at various hospitals, she continued to see Dr. Sielatycki. At a follow-up
appointment, he noted that “[possible vertebral artery syndrome] is something that is in
correlation with the operation she had, not necessarily directly caused by it, but the fact
that the symptoms have come about afterwards is what led to the need for this treatment.”
Dr. Sielatycki referred Ms. Smith to vascular surgeon Dr. Larry Sprouse.

        Ms. Smith returned to Dr. Sielatycki’s office in February 2020 and saw PA
Melissa Shuleva for low-back pain. Ms. Smith reported that she was getting into a
wheelchair a week earlier when she began experiencing pain. PA Shuleva’s record
reflects she discussed Ms. Smith’s symptoms with Dr. Sielatycki, who stated he did “not
see that lower back pain is related to original work-related injury.” However, in a later
addendum, Dr. Sielatycki stated he did “not believe it can be firmly stated that the low
back is not related to her original work injury,” since her pain occurred when she
transferred to the wheelchair. Further, Dr. Sielatycki ordered a lumbar spine MRI,
shower chair, and electric wheelchair.

       In March, Ms. Smith saw Dr. Sprouse, who concluded her symptoms were not
vascular in nature. He referred her to an ophthalmologist for complaints of left-eye
pressure and to neurosurgeon Dr. Paul Hoffman to determine if her complaints were
neurological. Dr. Sprouse concluded he was “unclear at this point of the etiology [of Ms.
Smith’s symptoms].”

       Turning to the testimony, Dr. Sielatycki testified by an undated affidavit regarding
causation and his recommendation of additional medical treatment for Ms. Smith’s
balance and stroke-like symptoms.1 Dr. Sielatycki stated Ms. Smith’s “diagnosis is still

1
  Dialysis Clinic objected to the admissibility of Dr. Sielatycki’s affidavit under Rules 702 and 703 of the
Tennessee Rules of Civil Procedure. It cited various portions of Dr. Sielatycki’s testimony and medical
records to show that his opinions lacked trustworthiness. However, Dialysis Clinic did not identify a fault
with his methodology, processes or data; it merely disagreed with his conclusions. When determining the
admissibility of expert opinions under rules 702 and 703, courts should consider whether “the opinions
are based on relevant scientific methods, processes, and data.” McDaniel v. CSX Transp., 955 S.W.2d


                                                     3
being investigated by a vascular surgeon and may represent vertebral artery syndrome.”
Due to Ms. Smith’s post-surgery symptoms, Dr. Sielatycki ordered a wheelchair. He
noted that Ms. Smith reported she injured her low back a year later when transferring
from her wheelchair. Dr. Sielatycki provided an opinion that “the low back injury . . . is
directly connected to her workers’ compensation injury and is a part of her injury claim
flowing from her initial workers’ compensation injury and . . . arose primarily (over 51%)
as a result of her work-related injury.”

        Ms. Smith testified by affidavit regarding her medical condition.2 She believes
that the neck surgery caused her balance and stroke-like symptoms. Ms. Smith requested
medical treatment for her back, right-shoulder, balance and stroke-like symptoms, and
payment of her unauthorized medical expenses.

                          Findings of Fact and Conclusions of Law
                                      Standard Applied

       Ms. Smith must present sufficient evidence demonstrating she is likely to prevail
at a hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1) (2019). The Court
holds she did not satisfy this burden.

                                            Analysis
                                         Medical Benefits

       To receive medical benefits, Ms. Smith must show, to a reasonable degree of
medical certainty, that the August 4, 2018 incident “contributed more than fifty percent
(50%) in causing the . . . disablement or need for medical treatment, considering all
causes.” Tenn. Code Ann. § 50-6-102(14). When 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. Lee v. W. Plastics, 2016 TN Wrk.
Comp. App. Bd. LEXIS 53, at *6-7 (Oct. 20, 2016). Further, the opinion of the treating
physician selected from a panel is afforded a presumption of correctness on causation
although that presumption can be overcome by a preponderance of the evidence. Id. at §
50-6-102(14)(E).

       Here, Dr. Sielatycki’s opinions are based on his diagnosis of possible vertebral
artery syndrome stemming from Ms. Smith’s neck surgery. However, he provided
contradictory causation opinions. Initially, Dr. Sielatycki noted that her possible
diagnosis “is something that is in correlation with the operation she had, not necessarily
directly caused by it, but the fact that the symptoms have come about afterwards is what

257, 265 (Tenn. 1997). The Court overrules the objection and holds the issues raised by Dialysis Clinic
go to the weight given to Dr. Sielatycki’s opinions rather than admissibility.
2
  The Court sustains Dialysis Clinic’s objections regarding hearsay and medical/legal conclusions drawn
by Ms. Smith.


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led to the need for this treatment.” A later note reflected that he did “not see that lower
back pain is related to original work- related injury,” but in an addendum indicated he did
“not believe it can be firmly stated that the low back is not related to her original work
injury.” In Dr. Sielatycki’s affidavit, he testified that “the low back injury . . . is directly
connected to her workers’ compensation injury and is a part of her injury claim flowing
from her initial workers’ compensation injury and . . . arose primarily (over 51%) as a
result of her work-related injury.” Due to Dr. Sielatycki’s inconsistent statements, the
Court gives little weight to his causation opinions.

       The Workers’ Compensation Law provides that a compensable injury is one that
“in the opinion of the physician, is more likely than not considering all causes, as
opposed to speculation or possibility.” Tenn. Code Ann. § 50-6-102(14)(D). Dr.
Sielatycki’s opinions appear speculative. Likewise, it is not clear that Dr. Sielatycki
considered all causes. Providers from whom Ms. Smith sought unauthorized treatment
recommended a psychiatric evaluation for possible conversion disorder and felt there was
no need for further testing or treatment. Authorized providers found no cause for Ms.
Smith’s symptoms. Importantly, Dr. Sielatycki’s testimony indicates he was unaware of
Dr. Sprouse’s determination that Ms. Smith’s symptoms are not vascular in nature since
he stated her “diagnosis is still being investigated by a vascular surgeon and may
represent vertebral artery syndrome.”

       After considering Ms. Smith’s medical records and Dr. Sielatycki’s conflicting
opinions, the Court holds that the preponderance of the evidence rebuts the presumption
of correctness afforded to Dr. Sielatycki’s opinion. Further, the Court finds the proof
presented is insufficient to establish a causal connection between the medical treatment
and apparatus ordered and Ms. Smith’s work injury.

       The Court next considers Dr. Sprouse’s recent referrals to a neurosurgeon and an
ophthalmologist. As previously noted, Ms. Smith’s proof is insufficient to establish a
causal connection between the medical treatment and her work injury. It appears that Dr.
Sprouse was unaware that Ms. Smith already saw a neurosurgeon, Dr. Hauge, who found
no complications from the neck surgery causing Ms. Smith’s symptoms. Likewise, Ms.
Smith previously had normal test results from an ophthalmoscope exam of her eye. The
Court concludes that the referrals are not medically appropriate.

       Regarding Ms. Smith’s request for shoulder treatment, Tennessee Code Annotated
section 50-6-204(a)(1)(A) obligates an employer to provide medical treatment “made
reasonably necessary.” Dr. Lund performed an MRI and shoulder evaluation and
concluded that she did not need treatment. Therefore, the requested treatment is not
made reasonably necessary by the work injury.




                                               5
       Finally, regarding Ms. Smith’s request for payment of her unauthorized medical
treatment, the medical records do not indicate that Ms. Smith’s work injury contributed
more than fifty percent in causing the need for treatment.

       Therefore, the Court holds Ms. Smith is not likely to prevail at a hearing on the
merits in proving entitlement to the requested medical benefits.

IT IS, THEREFORE, ORDERED as follows:

   1. The Court denies Ms. Smith’s requested relief.

   2. This case is set for a Status Hearing on Tuesday, June 30, 2020, at 2:00 p.m.
      Eastern Time. The parties must call (423) 634-0164 or toll-free at (855) 383-
      0001 to participate. Failure to call might result in a determination of the issues
      without the party’s participation.

ENTERED May 5, 2020.




                                        ______________________________________
                                        JUDGE AUDREY A. HEADRICK
                                        Court of Workers’ Compensation Claims




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                                    APPENDIX

Exhibits:
   1. Affidavit of Ms. Smith
   2. Medical records:
          a. Dr. Sielatycki
          b. Dr. Larry Sprouse (March 9, 2020)
          c. Dr. Peter Lund (September 21, 2018)
          d. Dr. Richard Pearce (August 29, 2019)
          e. Erlanger (March 22, 2019)
          f. AFC Urgent Care/Alliance PT
          g. Dr. Sachin Phade (June 4, 2019)
          h. CHI Memorial (February 8, 2019)
          i. Dr. David Hauge (February 13, 2018)
          j. Dr. Jeffery Clinkscales (March 28, 2019)
          k. Dr. Kinsman Wright (April 9, 2019)
          l. Mayo Clinic:
                     i. Dr. Irene Meissnes (May 14, 2019; May 17, 2019)
                    ii. Dr. Christopher Wood (May 14, 2019)
                   iii. Dr. Benjamin Elder (May 16, 2019)
                   iv. Dr. Frederick Meyer (May 22, 2019)
          m. Dr. Larry Gibson (August 30, 2019)
   3. Affidavit of Dr. Sielatycki
   4. Declaration of LeAnn Negron
   5. Medical bills:
          a. CHI Memorial
          b. Tennessee River Physicians, PLLC
          c. Chattanooga Emergency Med., PLLC
          d. Erlanger Medical Center


Technical record:
      1. Petition for Benefit Determination
      2. Dispute Certification Notice
      3. Notice of Substitution of Counsel
      4. Request for Expedited Hearing
      5. Employer’s Response to Employee’s Request for Expedited Hearing
      6. Employee’s Response to Employer’s Response to Employee’s Request for
          Expedited Hearing
      7. Employer’s Motion to Dismiss Employee’s Request for Expedited Hearing
      8. Employee’s Motion to Amend
      9. Employer’s Response to Employee’s Motion to Amend



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10. Order Granting Employee’s Motion to Amend and Denying Motion to Dismiss
    Employee’s Request for Expedited Hearing
11. Docketing Notice
12. Position Statement
13. Brief in Support of Position Statement
14. Objections to Admissibility
15. Additional Exhibits to Decision on the Record




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                          CERTIFICATE OF SERVICE

     I certify that a copy of this Order was sent as indicated on May 5, 2020.

        Name             Certified   Email     Service sent to:
                          Mail
Michael A. Wagner,                     X       maw@wagnerinjury.com
Employee’s Attorney
Dana Pemberton,                        X       dana@stokeswilliams.com
Employer’s Attorney




                                             /s/ Penny Shrum       w/permission JD
                                        ______________________________________
                                        PENNY SHRUM, COURT CLERK
                                        wc.courtclerk@tn.gov




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