                                                                                             FILED
                                                                                          Apr 10, 2019
                                                                                          09:25 AM(CT)
                                                                                       TENNESSEE COURT OF
                                                                                      WORKERS' COMPENSATION
                                                                                             CLAIMS




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

MIGUEL GUERRA,                                     )   Docket No. 2018-08-1273
         Employee,                                 )
v.                                                 )
ABC TREE SERVICE,                                  )   State File No. 16111-2017
         Employer,                                 )
And                                                )
ZURICH AMERICAN INSURANCE                          )   Judge Deana Seymour
CO.,                                               )
         Carrier.                                  )


                              EXPEDITED HEARING ORDER


       This case came before the Court on March 22, 2019, for an Expedited Hearing.
The issue is whether Mr. Guerra is entitled to back surgery recommended by his
authorized treating physician. For the reasons below, the Court holds he is entitled to the
surgery.

                                        History of Claim

        Mr. Guerra injured his back while lifting a heavy log at work on January 10, 2017.
ABC accepted the claim and provided authorized treatment with Dr. Stephen Waggoner,
who performed surgery to address a “large herniation” at L4-5. Dr. Waggoner released
Mr. Guerra at maximum medical improvement on July 31, assigning permanent
restrictions of no lifting over 10 pounds frequently or 20 pounds occasionally. 1

       In March 2018, Mr. Guerra returned to Dr. Waggoner with continued back and
right leg complaints. Dr. Waggoner recommended a repeat discectomy at L4-5 after
updated MRIs indicated a possible recurrent disc herniation and epidural fibrosis
encasing the traversing right L5 nerve root.

1
 A June 2017 post-operative MRI report noted a right central protrusion at L4-5, which subtly deformed
the ventral thecal sac.
                                                  1
       ABC sent the recommended surgery through utilization review (UR). Based on the
Official Disability Guidelines, UR reviewer Dr. Edward Kahn determined the surgery
was not medically necessary. Mr. Guerra appealed the UR decision to the Bureau’s
Medical Director, Dr. Robert Snyder. Dr. Snyder upheld Dr. Kahn’s denial and stated,
“The clinical notes and discussion [are] not sufficient to approve procedure. Further
documentation of indications, risks, and consideration of a fusion [is] necessary.”

       Mr. Guerra filed a Petition for Benefit Determination asking for the recommended
surgery. 2 According to Mr. Guerra, neither Dr. Kahn nor Dr. Snyder had a complete set
of his medical records when they denied the surgery. He argued that Dr. Kahn and Dr.
Snyder only reviewed Dr. Waggoner’s 2018 office notes and the June 2017 post-
operative MRI report in making their respective UR decisions.

        Mr. Guerra filed Dr. Waggoner’s March 20, 2019 medical record, which contained
a continued surgical recommendation for Mr. Guerra’s worsening symptoms. Mr. Guerra
testified that his low back pain persisted and ran down his right leg, especially while
standing or walking, and he experienced numbness and tingling in his leg. Mr. Guerra
also testified that he had not worked or performed physical activity outside his
restrictions since his injury and denied any subsequent injuries.

       ABC relied on Dr. Kahn’s and Dr. Snyder’s UR decisions to support its position
that the recommended surgery was not medically necessary. It contended that the June
2017 post-operative MRI report did not indicate a disc herniation and that Mr. Guerra
was not working for ABC between June 2017 and April 2018 when a recurrent herniation
was initially mentioned. ABC further noted that Dr. Waggoner never causally related Mr.
Guerra’s current complaints to the work injury.

                         Findings of Fact and Conclusions of Law

       At an Expedited Hearing, Mr. Guerra must present sufficient evidence that he is
likely to prevail at a hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(1) (2018).
Here, the issue is whether Mr. Guerra presented sufficient evidence to establish the
recommended surgery is medically necessary as a result of the work injury. The Court
finds that he did.

       Tennessee Code Annotated section 50-6-204(a)(3)(H) provides: “Any treatment
recommended by a physician or chiropractor selected pursuant to this subdivision (a)(3)
or by referral, if applicable, shall be presumed to be medically necessary for treatment of
2
 On the day before the Expedited Hearing, Mr. Guerra filed a motion asking the Court to allow him to
raise the issue of temporary disability benefits based on newly-acquired records from Dr. Waggoner.
However, the Court denied the motion, finding that Mr. Guerra had not met the requirements of
Tennessee Code Annotated section 50-6-239(b)(1) (2018) to add issues not listed in the Dispute
Certification Notice.
                                                 2
the injured employee.” This presumption “shall be rebuttable only by clear and
convincing evidence demonstrating that the recommended treatment substantially
deviates from, or presents an unreasonable interpretation of, the treatment guidelines.”
Tenn. Code Ann. § 50-6-204(a)(3)(I). While the parties did not introduce a signed panel
into evidence, both referred to Dr. Waggoner as Mr. Guerra’s authorized treating
physician. Therefore, the back surgery recommended by Dr. Waggoner is presumed
medically necessary.

        ABC relied on the UR reports of Drs. Kahn and Snyder to rebut the presumption. 3
However, it is unclear whether either had a complete picture of Mr. Guerra’s condition in
evaluating medical necessity of the recommended surgery. Dr. Kahn’s report specifically
listed the documents he reviewed, and it did not include Dr. Waggoner’s pre-March 21,
2018 medical notes or the recent MRI reports from April and May 2018. Dr. Snyder did
not specify which documents he reviewed, but Mr. Guerra claimed Dr. Snyder reviewed
the same information listed in Dr. Kahn’s report.

       Moreover, neither Dr. Kahn’s nor Dr. Snyder’s report provided an adequate
explanation of how Dr. Waggoner’s recommendation “substantially deviates from, or
presents an unreasonable interpretation of the treatment guidelines.” (Emphasis added.)
Dr. Kahn pointed to Mr. Guerra’s negative straight leg test as the reason he could not
certify the surgery. Dr. Snyder’s report simply noted that additional documentation was
necessary to approve the procedure.

        In comparison, Dr. Waggoner began treating Mr. Guerra in February 2017. He
performed an initial surgery on Mr. Guerra’s back and recommended a repeat discectomy
at L4-5 after MRIs revealed a recurrent disc herniation and epidural fibrosis encasing the
traversing right L5 nerve root. His office notes demonstrated consistent complaints of
radiating pain and tingling into Mr. Guerra’s right thigh, and his most recent office note
from March 20, 2019, suggested that Mr. Guerra’s symptoms were worsening and that he
continued to recommend surgery. When comparing conflicting expert opinions,
“physicians having greater contact with the [injured worker] 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).

       The Court holds that based on the foregoing, ABC failed to overcome the statutory
presumption of medical necessity by clear and convincing evidence. Therefore, Mr.
Guerra appears likely to prove at a hearing on the merits that the recommended back
surgery is medically necessary.

3
 ABC suggested during the hearing that the Court is bound by the Official Disability Guidelines (ODG).
The Court disagrees. The adoption of the ODG Guidelines does not remove the ability of this Court to
review the evidence in a given case to determine medical necessity. See Venable v. Superior Essex, 2016
TN Wrk. Comp App. Bd. LEXIS 56, at *5-10 (Nov. 2, 2016).
                                                  3
       Turning to causation, 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 to establish a causal relationship when the case is not “obvious, simple
[or] routine.” Berdnik v. Fairfield Glade Cmty. Club, 2017 TN Wrk. Comp. App. Bd.
LEXIS 32, at *11 (May 18, 2017). Under Tennessee Code Annotated section 50-6-
102(14)(E), “[t]he opinion of the treating physician, selected by the employee from the
employer’s designated panel of physicians pursuant to § 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.”

       ABC argued that Dr. Waggoner failed to address the cause of Mr. Guerra’s current
complaints. It suggested the 2017 post-operative MRI report did not indicate a disc
herniation, and in fact, the first mention of a disc herniation occurred after Mr. Guerra’s
April 2018 MRI. ABC alleged that since Mr. Guerra did not work for ABC between June
2017 and April 2018, something other than the work injury caused the herniation.
However, ABC failed to substantiate its allegation, and the Court disagrees with its
contentions.

       First, the Court notes that Dr. Waggoner recommended a “repeat” discectomy for
a “recurrent” disc herniation. He sent his order to ABC’s workers’ compensation
insurance carrier under the original workers’ compensation claim number. The Court
finds that taken as a whole, Dr. Waggoner’s language and conduct support a
determination that Mr. Guerra’s current condition relates to his original work injury.
Further, Mr. Guerra’s 2017 MRI documented a “right central protrusion . . . which subtly
deforms the ventral thecal sac,” which is consistent with his 2018 MRIs and his current
symptoms.

        Tennessee law has long held that medical proof is not to be “read and evaluated in
a vacuum” but, instead, “must be considered in conjunction with the lay testimony of the
employee as to how the injury occurred and the employee’s subsequent condition.”
Thomas v. Aetna Life and Cas. Co., 812 S.W.2d 278, 283 (Tenn. 1991). The Court finds
Mr. Guerra credible and his testimony compelling with regard to his worsening
symptoms and inability to function during the period between his release from care in
July 2017 and his return to Dr. Waggoner in March 2018. Coupled with the fact that ABC
failed to identify any other possible cause, the Court holds Mr. Guerra came forward with
sufficient proof to show he is likely to succeed at establishing the recommended surgery
is medically necessary as a result of the work injury.

IT IS, THEREFORE, ORDERED as follows:

   1. ABC shall authorize the surgery recommended by Dr. Stephen Waggoner.

                                            4
2. This matter is set for a Scheduling Hearing on June 3, 2019, at 10:00 a.m.
   central time. 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.

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 Compliance Unit by email at
   WCCompliance.Program@tn.gov.

   ENTERED April 10, 2019.



                               _____________________________________
                               JUDGE DEANA C. SEYMOUR
                               Court of Workers’ Compensation Claims




                                         5
                                          APPENDIX

   Exhibits:
      1. Medical records with Table of Contents (Collective)
      2. Genex Utilization Review Report, dated June 28, 2018
      3. Dr. Robert Snyder’s Utilization Review Appeal Report, dated August 1, 2018
      4. Medical note with attachments from Stephen Waggoner, M.D., dated March 20,
         2019

   Technical Record:
      1. Petition for Benefit Determination
      2. Dispute Certification Notice
      3. Request for Expedited Hearing, with attached Affidavit of Miguel Guerra
      4. Employee’s Expedited Hearing Brief, with attachments
      5. Employer’s Brief for Expedited Hearing on Employee Seeking Medical Benefits,
         with attachments
      6. Employee’s Notice of Filing of Supplemental Medical Records and Request for
         Review of Award for Temporary Total Disability (TTD) Benefits in Conjunction
         with Award for Medical Benefits, with attachments
      7. Employer’s Motion to Dismiss Employee’s Request for Temporary Total
         Disability Benefits, and to Exclude Evidence Submitted by Employee


                              CERTIFICATE OF SERVICE

         I certify that a copy of this Order was sent to these recipients by the following
   methods of service on April 10, 2019.

Name                    Certified   Fax    Regular   Email    Sent to
                        Mail               mail
Monica Rejaei,                                          X     mrejaei@nstlaw.com
Employee’s attorney
Dean Norris,                                            X     dean.norris@zurichna.com
Employer’s attorney

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




                                              6
                           Expedited Hearing Order Right to Appeal:

     If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:

   1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
      form with the Clerk of the Court of Workers’ Compensation Claims within seven
      business days of the date the expedited hearing order was filed. When filing the Notice
      of Appeal, you must serve a copy upon all parties.

   2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
      calendar days after filing of the Notice of Appeal. Payments can be made in-person at
      any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
      alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
      website or any Bureau office) seeking a waiver of the fee. You must file the fully-
      completed Affidavit of Indigency within ten calendar days of filing the Notice of
      Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
      result in dismissal of the appeal.

   3. You bear the responsibility of ensuring a complete record on appeal. You may request
      from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
      the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
      it with the court clerk within ten business days of the filing the Notice of
      Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
      parties within ten business days of the filing of the Notice of Appeal. The statement of
      the evidence must convey a complete and accurate account of the hearing. The Workers’
      Compensation Judge must approve the statement before the record is submitted to the
      Appeals Board. If the Appeals Board is called upon to review testimony or other proof
      concerning factual matters, the absence of a transcript or statement of the evidence can be
      a significant obstacle to meaningful appellate review.

   4. If you wish to file a position statement, you must file it with the court clerk within ten
      business days after the deadline to file a transcript or statement of the evidence. The
      party opposing the appeal may file a response with the court clerk within ten business
      days after you file your position statement. All position statements should include: (1) a
      statement summarizing the facts of the case from the evidence admitted during the
      expedited hearing; (2) a statement summarizing the disposition of the case as a result of
      the expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an
      argument, citing appropriate statutes, case law, or other authority.




For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
 .
ll                                                                                                                 .I




                                    Tennessee Bureau of Workers' Compensation
                                           220 French Landing Drive, 1-B
                                             Nashville, TN 37243-1002
                                                   800-332-2667


                                               AFFIDAVIT OF INDIGENCY


     I,                                                , having been duly sworn according to law, make oath that
     because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
     waived. The following facts support my poverty.

     1. Full Name:_ _ _ _ _ _ _ _ _ _ __                      2. Address: - - - - - - - - - - - - -

     3. Telephone Number: - - - - - - - - -                   4. Date of Birth: - - - - - - - - - - -

     5. Names and Ages of All Dependents:

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

             - - - - - - - - - - - - - - -- -                 Relationship: - - - - - - - - - - - --

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

     6. I am employed by: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , -

             My employer's address is: - - - - - - - - - - - - - - - - - - - - - - - - -

             My employer's phone number is: - - - - - - - - - - - - - - - - - - - - - - -

     7. My present monthly household income, after federal income and social security taxes are deducted, is:

     $ _ _ _ _ _ _ ___

     8. I receive or expect to receive money from the following sources:

             AFDC            $            per month           beginning
             SSI             $            per month           beginning
             Retirement      $            per month           beginning
             Disability      $            per month           beginning
             Unemployment $               per month           beginning
             Worker's Camp.$              per month           beginning
             Other           $            per month           beginning



     LB-1108 (REV 11/15)                                                                               RDA 11082
9. My expenses are: ' ;                                                     !•
                                                                             '

        Rent/House Payment $              per month     Medical/Dental $            per month

        Groceries         $         per month           Telephone       $           per month
        Electricity       $         per month           School Supplies $           per month
        Water             $         per month           Clothing        $           per month
        Gas               $         per month           Child Care      $           per month
        Transportation $            per month           Child Support   $           per month
        Car               $          per month
        Other             $         per month (describe:


10. Assets:

        Automobile              $ _ _ __ _
                                                        (FMV) -    - - - - -- - - -
        Checking/Savings Acct. $ _ _ _ __
        House                   $ _ _ _ __
                                                        (FMV) - - -- - - -- - -
              )
        Other                   $ _ _ _ __              Describe:_ _ _ __ _ _ _ _ __


11. My debts are:

        Amount Owed                     To Whom




I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.




APPELLANT



Sworn and subscribed before me, a notary public, this

_ _ _ dayof _____________ ,20____




NOTARY PUBLIC

My Commission Expires:_ _ _ _ _ __ _




LB-1108 (REV 11/15)                                                                         RDA 11082
