                                                                                 FILED
                                                                            December 6, 2017

                                                                                TN COURT Of
                                                                         l\ ORKIRS' CO:Il.IPE.NS.I\TION
                                                                                   CLill.IS

                                                                                 Time :2 :30 Pll

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

David Valle Castillo,                        )   Docket No. 2017-06-0405
            Employee,                        )
v.                                           )
The Hotel Group Holdings, LLC,               )   State File No. 15759-2017
            Employer,                        )
And                                          )
Travelers,                                   )   Judge Kenneth M. Switzer
            Carrier.                         )


      EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS
                       (ON THE RECORD)


       The case came before the Court on December 4, 2017, on David Valle Castillo's
request that the Court order The Hotel Group Holdings, LLC, to provide additional
medical and temporary benefits in this accepted claim. The present focus is whether Mr.
Castillo's current need for surgery relates to the compensable injuries he suffered while
working for The Hotel Group. Mr. Castillo asked for an on-the-record determination, and
The Hotel Group did not object. The Court finds it needs no further information to make
a decision and holds Mr. Castillo satisfied his burden of showing his need for surgery
relates to his work. Therefore, the Court grants his request for medical benefits but
denies his request for temporary benefits at this time.

                                    History of Claim

       Mr. Castillo worked as a dishwasher at the Hilton Hotel. On October 7, 2016, he
slipped and fell. The Hotel Group accepted his claim, and Mr. Castillo came under the
authorized care of Dr. Edward Mackey.

       Mr. Castillo saw Dr. Mackey at least five times over nine months. At the first visit
in December 2016, Dr. Mackey recorded a history of two months of back pain after a
"significant fall" at work and a "remote history of a lumbar laminectomy." He diagnosed
"symptomatic spinal stenosis due to a fall" and assigned light duty. At a February 13,

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2017 visit, Dr. Mackey noted a laminectomy occurred sixteen years earlier and wrote,
"[H]e is not able to work at this point." He recommended a spinal fusion. At a March 1
visit, Dr. Mackey continued to restrict Mr. Castillo from work and again recommended a
fusion. He repeated the recommendation on May 2.

      According to counsel for The Hotel Group, at some point it "requested an opinion
on causation from Dr. Mackey, and he would not provide one." It offered no
documentation to verify this assertion. The Hotel Group hired Dr. Tarek Elalayli to
perform an independent medical examination. Dr. Elalayli examined him on May 10 and
concluded that Mr. Castillo:

        [C]learly has a history of pre-existing degenerative disease of his lower
        back and history of previous surgery. I do not believe that he suffered an
        acute anatomic change. That being said, he does have severe stenosis at L4-
        5. This has remained symptomatic since he fell at work about 7 months
        ago.

 In response to a letter from the carrier, Dr. Elalayli wrote that Mr. Castillo's work was
"<50% related to injury." Afterward, The Hotel Group denied further medical benefits,
but it did not file a notice of denial.

       Mr. Castillo's counsel wrote Dr. Mackey a causation letter on August 4 that
mentioned the fall at work and the previous surgery. The letter explained that a
compensable injury in Tennessee must arise "primarily out of and in the course and scope
of employment . . . shown by a preponderance of the evidence that the employment
contributed more than (51%) in causing the injury, considering all causes." 1 He further
wrote, "Considering the legal standard, your examination and treatment of this patient,
and his medical records, can you state within a reasonable degree of medical certainty
that Mr. David Valle Castillo's diagnosis and need for ongoing medical care arose out of
the employment?" Dr. Mackey checked "yes."

                           Findings of Fact and Conclusions of Law

       At an expedited hearing, Mr. Castillo must come forward with sufficient evidence
from which the Court can determine he is "likely to prevail at a hearing on the merits."
See McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6,
at *7-8, 9 (Mar. 27, 2015). To satisfy this burden, he must show he suffered an "injury
by accident ... arising primarily out of and in the course and scope of employment, that
causes ... the need for medical treatment." An injury causes the need for medical

1
  Causation letters from both parties inadvertently misstate the legal standard. Tennessee Code Annotated
section 50-6-102(14)(B) provides that an employee must show by a preponderance of the evidence that
the employment contributed "more than fifty percent (50%)" in causing the need for medical treatment.

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treatment only if it has been "shown to a reasonable degree of medical certainty" that it
contributed more than fifty percent in causing the need for medical treatment, considering
all causes. In addition, the opinion of the treating physician selected from a panel is
presumed correct on the issue of causation, but this presumption is rebuttable by a
preponderance of the evidence. See generally Tenn. Code Ann. § 50-6-1 02(14) (20 17).

        Here, the causation letter to Dr. Mackey provided a near verbatim definition of
causation from the statute and asked Dr. Mackey if Mr. Castillo's injury satisfied that
definition. He responded in the affirmative. That response matches Dr. Mackey's
December 2016 assessment that Mr. Castillo suffered from "symptomatic spinal stenosis
due to a fall." (Emphasis added.)

        The Hotel Group asserted that Dr. Mackey refused to offer a causation opinion, so
it sought Dr. Elalayli's causation opinion and ultimately denied additional medical
benefits based on it. It further argued that, because Dr. Mackey ceased serving as the
authorized treating physician at that time, the law no longer presumed his opinion as
correct. The Court disagrees. The Hotel Group introduced no evidence that Dr. Mackey
refused to provide a causation opinion nor did it file a denial notice. The Hotel Group
offered no legal authority that failure to respond to a causation request ends Dr. Mackey's
status as the authorized treating physician.

        The Hotel Group further argued that, regardless of whether the presumption
applies, the Court should afford Dr. Elalayli's opinion more weight. It argued that Dr.
Mackey did not give any reasoning for his opinion but just "marked a box on a letter
from Plaintiff's counsel." The Court disagrees. Mr. Castillo provided from the outset a
history of a fall at work, and Dr. Mackey accepted that incident as the cause of injury.
The records also noted that Mr. Castillo underwent a "remote" previous surgery, which
Dr. Mackey apparently did not find to be a significant causal factor for his current
condition. Moreover, Mr. Castillo saw Dr. Mackey at least five times, while he saw Dr.
Elalayli once. "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).

       Thus, based on the statutory presumption and the fact of greater contact with Dr.
Mackey, the Court holds Mr. Castillo produced sufficient evidence showing he is likely
to prevail at a hearing on the merits regarding his entitlement to the recommended
surgery.

       Mr. Castillo additionally seeks temporary total disability benefits. To be eligible
for the requested TTD benefits, Mr. Castillo must show: (1) he became disabled from
working due to a compensable injury; (2) there is a causal connection between his injury
and his inability to work; and (3) the duration of the period of disability. See Jones v.

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Crencor, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11, 2015). On the
present record, Mr. Castillo has not met these criteria. Dr. Mackey took Mr. Castillo off
work on February 13, but the records are incomplete regarding the duration of his
disability. Notwithstanding this ruling, Mr. Castillo may file another hearing request and
submit the requisite additional evidence.

IT IS, THEREFORE, ORDERED as follows:

   1. The Hotel Group shall authorize continued treatment with Dr. Mackey, including
      the recommended surgery.

   2. Mr. Castillo's request for temporary disability benefits is denied at this time.

   3. This matter is set for a Scheduling Hearing on February 5, 2018, at 9:45 a.m.
      Central. You must call 615-532-9552 or toll-free at 866-943-0025 to
      participate in the Hearing. Failure to call may result in a determination of the
      issues without your participation.

   4. 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 Compliance Unit vta email
      WCCompliance.Program@tn.gov.

                                   ENTERED the 6th day of December, 2017.




                                    I
                                   Court of Workers' Compens




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                                      APPENDIX

The Court considered the following documents:

       1.   Petition for Benefit Determination
       2.   Defense Counsel's email to mediator
       3.   Dispute Certification Notice
       4.   Request for Expedited Hearing and Affidavit
       5.   Statement of the Employer
       6.   Certified records, Dr. Elalayli
       7.   Order
       8.   Dr. Mackey's medical records
       9.   Docketing Notice.


                             CERTIFICATE OF SERVICE

       I certify that a copy of this Order was sent to the following by these methods of
service on this the 6th day of December, 2017.

Name                         Certified Via       Via      Service sent to:
                             Mail      Fax       Email
William Merrell,                                   X      bmerrell@hhQfirm.com;
Employee's Counsel                                        loa Iacio@.hhpfirm.com
David Weatherman,                                  X      david. weatherman@zurichna.com
Employer's Counsel




                                                 urn, Clerk of Court
                                         Court o  orkers' Compensation Claims
                                         WC.CourtCierk@tn.gov




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