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

Sheila Owens,                                     )   Docket No. 2017-01-0401
            Employee,                             )
v.                                                )
Sitters, Etc.,                                    )    State File No. 44323-2015
                 Employer,                        )
And                                               )
Bridgefield Casualty Ins. Co.,                    )   Judge Audrey Headrick
             Carrier.                             )


                             EXPEDITED HEARING ORDER
                             (DECISION ON THE RECORD)


       This matter came before the Court on Sheila Owens' Request for Expedited
Hearing filed November 7, 2017. 1 Sitters, Etc. did not request an evidentiary hearing.
The Court issued a docketing notice on February 9, 2018, listing the documents for
consideration. The central legal issue is whether Ms. Owens is likely to establish at a
hearing on the merits that she is entitled to medical treatment for her cervical condition.
This Court finds it needs no additional information to determine this issue and holds Ms.
Owens is entitled to the requested benefit at this time.

                                        History of Claim

       Ms. Owens, a nursing assistant for Sitters, injured her left shoulder and back on
June 9, 2015, when she caught a falling client. She received authorized treatment at
Parkridge Hospital and Physicians Care. Following conservative treatment, Physicians
Care referred Ms. Owens to see Dr. Rickey Hutcheson, an orthopedic surgeon, for her
back. Ms. Owens disclosed to Dr. Hutcheson that she was in pain management due to
prior cervical surgeries. Dr. Hutcheson testified he did not examine Ms. Owens' neck,


1
  The Order on Show Cause Hearing and Order Granting Employer's Motion for Extension of Time
discuss the circumstances surrounding the delays in moving the Request for Expedited Hearing forward.


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and she made no complaints regarding her neck.                      Sitters, Etc. only authorized Dr.
Hutcheson to treat her back.

       For Ms. Owens' shoulder, she selected Dr. Robert Mastey from a panel of
orthopedic surgeons. The records reflected that Dr. Mastey's former partner, Dr. Craig
Humphreys, performed Ms. Owens' prior cervical surgeries. Dr. Mastey indicated he
frequently discussed Ms. Owens' neck pain with her due to the interplay between the
neck and the shoulder. Since Dr. Mastey believed most of her pain stemmed from her
cervical condition, he only provided conservative treatment of her left shoulder rotator
cuff tear.

        While treating with Dr. Mastey, Ms. Owens simultaneously sought unauthorized
treatment with Dr. Richard Pearce, a board-certified orthopedic surgeon who took over
Dr. Humphreys' practice. The records stated that Ms. Owens saw Dr. Pearce upon
referral by her primary care physician. Dr. Pearce received authorization to treat Ms.
Owens from the carrier for her prior, work-related cervical injury.

       Dr. Pearce's office ordered diagnostic testing due to Ms. Owens's neck pain,
including radiculopathy into both upper extremities with numbness and tingling. Based
on the test results, Dr. Pearce determined that a C3-4 spinal cord compression caused her
symptoms and recommended an anterior cervical discectomy, decompression, and fusion.
Dr. Pearce indicated that Ms. Owens might develop permanent neurologic problems if the
cord compression continued or worsened. Further, Dr. Pearce answered "yes" when
asked if the need for surgery was "[c]aused by the old condition being aggravated by the
new [June 9, 2015] injury." (Ex. 10.)

       Dr. Pearce related the cause of Ms. Owens' current cervical condition to the work
injury. He testified that, "Based on the history that she gave to me as far as onset of
symptoms and the anatomic findings at C3-4 being obviously a level not previously
operated on, I would relate it as to [the June 9] event." (Ex. 7.) Dr. Pearce compared Ms.
Owens' diagnostic testing from 20 12 to 20 16, and stated, "The amount of cord
compression and the size of that disc herniation [at C3-4] was obviously much worse."
!d. He also discussed the timing of the anatomic change, admitting, "And at what point
that [change] occurred between the last MRI of 20 12 versus 20 16 I cannot say except,
based on her history, that she started having symptoms, and now we have a new MRI
which shows a definite anatomic change." !d. Dr. Pearce acknowledged Ms. Owens'
April27, 2012 cervical MRI report referenced a "[m]otor vehkle accident" in the history
section. 2 Even after reviewing the 2012 MRl, Dr. Pearce rejterated that Ms. Owens' June
9, 2015 injury proximally caused her condition at C3-4.


2
    Ms. Owens testified she sustained whiplash due to the motor vehicle accident in 2012 .


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        Dr. Mastey, the authorized physician for Ms. Owens' shoulder, offered no opinion
as to the cause of Ms. Owens' cervical complaints. Instead, Dr. Mastey deferred to Dr.
Pearce, whom he believed was in the best position to address causation. After reviewing
Dr. Pearce's causation opinion, Dr. Mastey again deferred to him and stated he had "no
reason to disagree with Dr. Pearce." (Ex. 6.) Dr. Mastey also confirmed that Ms. Owens
had not returned to his clinic for cervical treatment since she last treated with Dr.
Humphreys, his former partner, approximately eight to ten years ago.

       After Ms. Owens notified Sitters about her cervical condition, it sent her to Dr. Jay
Jolley, a board-certified orthopedic surgeon, for an independent medical evaluation
(IME). He acknowledged that on June 9, 2015, "there could've been some aggravation
of the pre-existing degeneration." (Ex. 8.) Dr. Jolley initially determined that Ms.
Owens' "overwhelming degeneration and arthritis at [C3-4] [caused] her significant pain
and [was] more responsible [for the recommended surgery] than the incident." ld. He
explained that, "her degeneration at C3-4 [was] not injury related." Jd. However, Dr.
Jolley later agreed with Dr. Pearce's causation opinion. 3 ld.

      Ms. Owens asked the Court to order Sitters to authorize Dr. Pearce to perform the
recommended cervical surgery. She contended that Dr. Mastey deferred to Dr. Pearce's
opinion regarding causation and surgery, and Dr. Jolley agreed with Dr. Pearce's opinion.

      Sitters countered that Dr. Pearce based his opinions on false and/or incomplete
information, making it unreliable. It also contended that Dr. Pearce's testimony failed to
rebut the presumption of correctness afforded the opinions of Drs. Mastey and
Hutcheson, who concluded Ms. Owens did not sustain a work-related cervical injury.

                         Findings of Fact and Conclusions of Law

                                   General Legal Principles

       Ms. Owens need not prove every element of her claim by a preponderance of the
evidence to obtain relief at an expedited hearing. Instead, she must come forward with
sufficient evidence from which this Court might determine she is likely to prevail at a
hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(l) (2017); McCord v.
Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Mar. 27, 20 15). Applying these principles to the facts of this case, the Court finds that
Ms. Owens is likely to prevail at a hearing on the merits.



3
 Dr. Pearce marked "yes" when asked ifthe surgery he recommended was "[c]aused by the old condition
being aggravated by the new [June 9, 20 15] injury."



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       Ms. Owens requested that the Court order Sitters order additional medical
treatment with her own physician, Dr. Pearce. To grant her request, Ms. Owens must
show, to a reasonable degree of medical certainty, that the work 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). Likewise, an
aggravation of a pre-existing condition is compensable only if "it can be shown to a
reasonable degree of medical certainty that the aggravation arose primarily out of and in
the course and scope of employment." !d. A physician is not required "to use particular
words or phrases included in the statutory definition of 'injury' to establish the requisite
medical proof to succeed at trial." Panzarella v. Amazon.com, Inc., 2017 TN Wrk.
Comp. App. Bd. LEXIS 30, at *14 (May 15, 2017). However, sufficient proof is
necessary "from which the trial court can conclude that the statutory requirements of an
injury ... are satisfied." !d. Further, as the treating physicians, the presumption of
correctness on the issue of causation attaches to Drs. Hutcheson and Mastey. Engler v.
Able Moving Co., No. W2016-02125-SC-R3-WC, 2017 Tenn. LEXIS 713, at *11-14
(Tenn. Workers' Comp. Panel Oct. 30, 2017).

       Here, Ms. Owens' authorized treating physicians did not render an opinion on
causation of her cervical condition. Dr. Mastey, who treated Ms. Owens' shoulder, had
no opinion regarding causation of her cervical condition and deferred the issue of
causation to Dr. Pearce. Likewise, Dr. Hutcheson, who treated Ms. Owens' back,
expressed no opinion on this issue. However, Dr. Pearce, who recommended surgery at
C3-4, testified that the June 9, 2015 injury aggravated Ms. Owens' pre-existing cervical
condition necessitating surgery. Dr. Jolley, who performed Sitters' IME, agreed with Dr.
Pearce's opinion. Therefore, the Court holds that Ms. Owens provided sufficient
evidence of her entitlement to medical benefits for her cervical condition and satisfied her
burden at this interlocutory stage. Her request for relief is granted.

IT IS, THEREFORE, ORDERED as follows:

   1. Sitters or its workers' compensation carrier shall provide Ms. Owens with a panel
      of orthopedic surgeons for treatment, including surgery, of the June 9, 2015
      cervical injury. Ms. Owens or the providers shall furnish bills for the charges
      incurred for compensable care to Sitters or its carrier, who shall timely pay the
      charges.

   2. This matter is set for a Status Hearing on May 10, 2018, at 10:00 a.m., Eastern
      Time. The parties must call 423-634-0164 or toll-free at 855-383-0001 to
      participate. Failure to call may result in a determination of the issues without the
      parties' 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

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   of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3)
   (2017). The Insurer or Self-Insured Employer must submit confinnation of
   compliance      with    this     Order    to    the   Bureau     by     email     to
   WCComgliance.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.

4. For questions regarding compliance, please contact the Workers' Compensation
   Compliance Unit via email WCCompliance.Program@tn.gov.

   ENTERED March 12, 2018.




                                                   Compensation Claims




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                                  APPENDIX

Exhibits:
   1. First Report
   2. Panel
   3. Wage Statement
   4. Deposition of Sheila D. Owens
   5. Deposition of Rickey Hutcheson, D.O.
   6. Deposition of Robert Daniel Mastey, M.D.
   7. Deposition of Richard G. Pearce, M.D.
   8. Deposition of Jay E. Jolley, M.D.
   9. Billing statements:
       a. Parkridge Medical Center;
       b. SE Tennessee Emergency Physicians, PLLC;
       c. Chattanooga Ear, Nose & Throat; and,
       d. Diagnostic Center
   10. Medical Records of Sheila Owens

Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Motion for Medical Treatment
   4. Motion to Quash Notice of Deposition of Sheila D. Owens
   5. Defendant's Response to Plaintiffs Motion for Medical Treatment
   6. Defendant's Response to Plaintiffs Motion to Quash Notice of Deposition of
       Sheila Owens
   7. Order Denying Motion to Quash Notice of Deposition
   8. Notice of Deposition (Sheila Owens)
   9. Show Cause Order
   10. Request for Expedited Hearing
   11.Employer's Response to Show Cause Order
   12. Employee's Reply to Employer's Response to Show Cause Order
   13. Order on Show Cause Hearing
   14. Employer's Motion for Attorney Fees
   15. Employer's Motion for Extension of Time
   16. Notice of Deposition (Dr. Jolley)
   17. Notice to Take the Deposition of Dr. Richard G. Pearce
   18. Order Denying Employer's Motion for Attorney Fee
   19. Order Granting Employer's Motion for Extension of Time
   20.Employer's Response to Employee's Request for Expedited Hearing
   2l.Notice ofFiling (Deposition ofDr. Hutcheson)
   22. Notice of Filing (Deposition of Dr. Mastey)
   23. Notice of Filing (Deposition of Ms. Owens)

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   24. Notice of Filing (Deposition of Dr. Pearce)
   25. Notice of Filing (Deposition of Dr. Jolley)
   26. Docketing Notice for On-The-Record Determination
   27. Joint Notice of Filing Medical Records of Sheila Owens


                           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 March 12,2018.

         Name             Certified    Fax       Email   Service sent to:
                           Mail
Ronald J. Berke,                                  X      r01mie@berkeattys .com
Employee Attorney                                        margo@berk eattvs.com
Charles E. Pierce,                                X      ~i erce@mij s . com
Employer Attorney




                                        PE~CLERK ~Lf>'V
                                        wc.courtclerk@tn. gov




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