# Amy A. Cummings-Boyd v. Law Offices of Jeffrey A. Garrety, P.C.

> Tennessee Supreme Court · March 4, 2022

URL: https://www.frixlaw.com/law-library/cases/11240505

## Case

- **Court:** Tennessee Supreme Court
- **Decided:** March 4, 2022
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Justice Holly Kirby
- **Judges:** Justice Holly Kirby
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

IN THE SUPREME COURT OF TENNESSEE
SPECIAL WORKERS' COMPENSATION APPEALS PANEL
AT JACKSON
Assigned on Briefs December 13, 2021

AMY A. CUMMINGS-BOYD v. LAW OFFICES OF JEFFREY A.
GARRETY,P.C.
FILED
Appeal from the Chancery Court for Madison County
No. 74223 James F. Butler, Chancellor MAR 0 if 2022
Clerk of th
Rec'd By
No. W2021-00720-SC-R3-WC — Mailed February 9,2022

This appeal involves an employer's appeal of an order to compel medical treatment. The
employer argues the trial court erred by ordering it to provide the employee specific
continuing treatment, as well as treatments requested by all of her approved treating
physicians in the future, without evidence that the continuing and future treatments are
reasonably necessary and causally related to her work injury. The employer's appeal has
been referred to this Special Workers' Compensation Appeals Panel pursuant to Tennessee
Suprerne Court Rule 51. We affirm the trial court's order compelling the requested medical
treatment, but modify the order to omit predetermined approval of future medical
treatments, and affirm as modified.

Tenn. Code Ann.§ 50-6-225(e)(2014)(applicable to injuries
occurring prior to July 1, 2014) Appeal as of Right;
Judgment of the Chancery Court Affirmed as Modified

HOLLY KIRBY, J., delivered the opinion of the court, in which DON R. ASH, SR.J., and
ROBERT E. LEE DAVIES, SR.J.,joined.

W.Troy Hart and Tiffany B. Sherrill, Knoxville, Tennessee, for the Appellant, Law Offices
of Jeffrey A. Garrety, P.C.

Jeffrey P. Boyd, Jackson, Tennessee, for the appellee, Amy A. Cummings-Boyd.
OPINION
FACTUAL AND PROCEDURAL BACKGROUND

During the relevant period, Appellant Amy A. Cummings-Boyd("Employee')was
employed by Appellee Law Offices of Jeffrey A. Garrety, P.C.("Employer"). On May 21,
2014, Employee sustained a compensable injury to her low back, hip, neck and bilateral
upper arms and hands while working Ernployer. She filed a workers' compensation claim
for the injury.

On April 5, 2016, the trial court entered an order approving the parties' settlement
of the workers' compensation claim. Regarding future medical benefits, the order stated:

[Employer] is willing to provide[,] and [Employee] is willing to accept, the
reasonable and necessary future rnedical treatment, services and supplies
arising out of said injury by accident on May 21, 2014, and within the scope
of Tenn. Code Ann. § 50-6-204, from authorized physicians, G. Bradford
Wright, M.D. and Roy Schmidt, M.D. for pain management; provided,
however, [Employee] shall first consult with [Employer] prior to seeking
such treatment and shall comply with [Employer's] reasonable referral to
authorized medical treatment. In the event Dr. Wright or Dr. Schmidt can no
longer treat[Employee],[Employer] reserves the right to offer [Employee] a
panel of physicians.

After her May 2014 work injury, Employee began receiving radiofrequency ablation
("RFA") treatments frorn Dr. Schmidt, to help manage the pain from her injuries.
Employer's workers' compensation insurance carrier readily paid for those continuing
treatments, as referenced in the settlement order. That changed, however, once AmTrust
North America("AmTrust")became Employer's workers' compensation insurance carrier.
AmTrust began consistently denying payment for the RFA treatments.

In July 2019, after AmTrust denied payment for repeat RFA treatment ordered by
Dr. Schmidt in May 2019, Employee filed a motion to compel medical treatment. On
March 24, 2020,the trial court entered an order granting the rnotion. The trial court's order
found the RFA treatments were "reasonable, necessary and causally connected to the work
injury [Employee] sustained at [Employer]." The trial court ordered AmTrust "to approve
Dr. Schmidt's proposed medical treatment without delay." In compliance with the order,

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Employer paid for a lumbar RFA treatment Employee received in May 2020.

In February 2021, Employee filed a second motion to compel medical treatment. It
asserted that AmTrust denied a repeat cervical RFA treatment ordered by Dr. Schmidt in
October 2020, and that AmTrust denied payment for all of the medications ordered for
Employee as well.' Employee also filed a separate motion asking the trial court to hold
AmTrust in conternpt for willfully failing to comply with the March 24, 2020 order. In
support of these motions, Employee relied on the records related to the previous rnotion to
compel medical treatment.

The records on which Employee relied included Dr. Schmidt's December 3, 2019
deposition. In the deposition, Dr. Schmidt explained the purpose of RFA:

So the spine is composed of several structures. The facet joint is a
joint that goes between each space, each vertebral body. And during injuries,
falls, somebody kicks you in the back, the neck, those joints have a small
capsule. Those capsules can be disrupted. And then they start to develop pain
and/or arthritic changes.

The options to treat these damaged joints, it's either with steroids into
the joint specifically, or what we call [RFA] after doing a diagnostic block
that is called medial branch block. The purpose ofthe[RFA]is to control at
least 50 percent of her pain without using steroids or narcotics.

In response to a general catch-all question about whether the continuing RFA treatments,
including lumbar and cervical, were "reasonable and necessary and related to [Employee's]
May 2014 injury," Dr. Schmidt said they were. Each RFA treatment should last at least six
months, he said, and Employee had "always done better than the average." Because
Employee had "done very well with these treatments," he did not recomrnend alternatives.
Regarding her future RFA treatments, he stated:

`Employee also filed a motion to compel medical treatment in September 2017, concerning denial
of a cervical RFA treatment, but that motion was never heard. Therefore, the second motion to compel
medical treatment heard by the trial court was in fact the third such motion filed by Ernployee. We consider
only the rnotions adjudicated by the trial court.

3
Well,looking—looking at her past, she is going,I think, somewhere like nine
months, sometimes 12 months between, and were doing by sections. So we
don't do the cervical spine or the neck area at the same time as we do the
lower back. But each section is lasting somewhere between nine months and
12 months.

In response to the second motion to compel medical treatment, Employer disputed
whether the treatment is reasonably necessary and causally related to Employee's May
2014 work injury. In response to the contempt motion, Employer asserted Dr. Schmidt's
"new" treatment request for Employee was denied "legitimately and in good faith,"
pursuant to the utilization review process. In addition, Employer filed a motion in limine
to exclude Dr. Schmidt's December 3, 2019 deposition as irrelevant because it concerned
"past treatment on a different location."

The trial court conducted an evidentiary hearing on the rnotions on March 29, 2021.
In the hearing, the trial court received exhibits and heard testimony from Employee
regarding Employee's motions. The parties presented argument on Employer's motion in
limine, but the trial court did not formally rule on it.

In the hearing, Employee testified that the continuing RFA treatments, both lumbar
and cervical, have "worked since [Dr. Schmidt] ordered them in 2014, and they continue
to work." At the time ofthe hearing, she said, the treatments were lasting from six to eight
months, but before ArnTrust "started denying everything on a regular basis," they had
lasted about nine months. AmTrust had also denied payment for Mobic (an anti-
inflammatory) and Flexeril, two medications ordered to go with Employee's RFA
treatments. When Employee was asked on cross-examination about the utilization review,
she indicated no physician in that process had seen or treated her.

In the March 2021 hearing, Employer relied on utilization review decisions denying
a left cervical RFA treatment and denying Cyclobenzaprine (a muscle relaxant marketed
as Flexeril), both requested in June 2020. In the utilization review appeal with the
Tennessee Bureau of Workers' Cornpensation, the Medical Director upheld those
decisions. By letter dated July 24, 2020,the Medical Director stated he agreed with:(1)the
denial regarding the left cervical RFA because "[t]he previous right side was not successful

4
according to the records"; and (2) the denial regarding Cyclobenzaprine because "[t]he
long-term use of this medication is not supported by [the Tennessee Chronic Pain
Guidelines and the Official Disability Guidelines]."

By order filed May 7, 2021, the trial court denied Employee's motion to hold
AmTrust in contempt,"subject to additional filings should they fail to comply with further
Orders of this Court." By order filed May 20, 2021, the trial court granted Employee's
second motion to compel medical treatment and awarded Employee $4,020 in attorney fees
and $218.78 in costs. The trial court's findings included the following:

[Employee] most recently received RFA treatment in May,2020, to her low
back/hips after the Court ordered [Employer's] carrier to pay for the
treatment which had been ordered by Dr. Schmidt, but denied by
[Employer's] carrier.

After the treatment was received by [Employee], she reported a 90%
improvement in pain.

[Employee] saw Dr. Schmidt in October, 2020 when Dr. Schmidt ordered
RFA treatment for her cervical spine, noting that [Employee] had done well
with this treatment. He also ordered medications.

[Employee] is entitled to life time medical treatment for her injuries arising
out of her work accident. Dr. Schmidt is one of her treating physicians. He
sees her regularly as needed. He has stated that the treatments are reasonable
and necessary and related to her work injury of May, 2014.

[Employee] testified, unrebutted, that the treatments ordered by Dr. Schmidt
for RFA work for her for approximately six to eight months, both lumbar and
cervical treatments. She also testified, unrebutted, that the medications
provided by Dr. Schmidt have not changed.

The doctors and persons reviewing her medical records and making decisions
for the Utilization Review Board and the Medical Director have not seen or
spoken with [Employee]. Dr. Schmidt sees [Employee] personally and both
he and [Employee] state that the RFA treatment works for [Employee].

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The May 20, 2021 order directed ArnTrust to "provide [Employee] continuing medical
treatments going forward as requested by Dr. Schmidt and all of her approved treating
physicians in the future." It further ordered AmTrust "to pay for the prescribed medications
relating to [Employee's] injuries and prescribed by her approved treating physicians."

Ernployer now appeals.

STANDARD OF REVIEW

In a worker's compensation appeal, we are required by law to review the trial court's
factual findings "de novo upon the record ofthe trial court, accompanied by a presumption
of the correctness of the finding, unless the preponderance of the evidence is otherwise."
Tenn. Code Ann. § 50-6-225(e)(2)(2014)(applicable to injuries occurring prior to July 1,
2014). When the trial judge has the opportunity to hear in-court testimony and observe a
witness's demeanor, we give considerable deference to the trial court's factual findings.
Madden v. Holland Grp. ofTenn., Inc., 277 S.W.3d 896,898(Tenn. 2009). However, when
the record contains expert medical testimony presented by deposition, as is the case here,
we may draw our own conclusions with respect to the weight and credibility of the
evidence. Foreman v. Automatic Sys., Inc., 272 S.W.3d 560, 571 (Tenn. 2008). We review
the trial court's conclusions of law with no presumption of correctness. Seiber v. Reeves
Logging, 284 S.W.3d 294, 298(Tenn. 2009).

ANALYSIS

As a threshold matter, Ernployer questions whether Employee can rely on Dr.
Schmidt's December 3, 2019 deposition because the trial court never ruled on its
admissibility. Although the trial court did not formally rule on Employer's motion in limine
to exclude the deposition, the trial court addressed it generally and then allowed references
to the deposition during the hearing. The trial court's findings of fact include statements
made by Dr. Schmidt during the deposition. From this we can conclude that the trial court
implicitly denied Employer's motion in limine.

Employer's primary argument is that the trial court erred in its May 20, 2021 order
by directing AmTrust to provide Employee the continuing RFA treatments, as requested

6
by Dr. Schmidt, and the medications prescribed by her approved treating physicians. It
argues further that the trial court erred in ordering AmTrust to provide all continuing
medical treatments "as requested by Dr. Schmidt and all of her approved treating
physicians in the future." We consider these in turn.

Tennessee's workers' compensation statutes require employers to "furnish free of
charge to the employee such rnedical care and treatment rnade reasonably necessary" by a
work injury. Tenn. Code Ann. § 50-6-204(a)(1)(A)(2014)(applicable to injuries occurring
prior to July 1, 2014). Courts rnust presume treatments furnished by a designated physician
are necessary and the charges reasonable. Russell v. Genesco, Inc., 651 S.W.2d 206, 211
(Tenn. 1983). However, employers may use the utilization review process to evaluate
whether a physician's chosen course of treatment is necessary, appropriate, and efficient.
See Tenn. Code Ann. §§ 50-6-102(20)(defining utilization review); 50-6-124 (establishing
utilization review process);Kilgore v. NHCHealthcare, 134 S.W.3d 153, 157(Tenn.2004)
(stating "utilization review provides a mechanism for employers to review and evaluate the
costs, reasonableness, and necessity of medical services provided to employees in workers'
compensation casee). When trial courts hear motions to compel medical treatment arising
out of a denial of care by utilization review, they must consider the evidence and make a
de novo decision about whether the proposed treatment is reasonably necessary. Shelton v.
Joseph Constr. Co., No. W2014-01743-SC-R3-WC, 2015 WL 3509283, at *6 (Tenn.
Workers' Comp.Panel June 3, 2015).

In this appeal, Employer asserts the utilization review decisions sufficiently rebutted
the statutory presumption that the RFA treatments and medications ordered for Employee
are reasonably necessary.2 In support, Employer relies on Walker v. G.UB.MK
Constructors, No. E2015-00346-SC-R3-WC, 2016 WL 2343177(Tenn. Workers' Comp.
Panel May 2, 2016). In Walker, the trial court denied the employee's motion to cornpel
treatment. The trial court ruled that the affidavit by the non-treating physician in the
utilization review appeal was sufficient to rebut the presumption that the treatment ordered

2Employer also argues the presumption should not apply because Dr. Schmidt did not provide
testimony specifically on the disputed treatment. This argument is meritless. Dr. Schmidt's deposition
testimony addressed the continuing RFA treatments, both lumbar and cervical. In any event, Dr. Schmidt
ordered the treatment at issue, and he is Employee's authorized treating physician, so by statute the
treatment is presumed reasonably necessary. As to the medications, contrary to Employer's assertion,
Employee does not bear the initial burden of introducing evidence of the medical necessity of medications
prescribed by her approved treating physicians.

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by the treating physician was reasonable and necessary. Id., 2016 WL 2343177, at *6. In
affirming the trial court'sjudgment,the Panel in Walker noted the conclusions made during
the utilization review process were supported by detailed findings. Id.

This case is in a different procedural posture than Walker. Here, unlike Walker, the
trial court granted Employee's motion to compel medical treatment. It accredited
Employee's testimony about the ordered RFA treatments, both lumbar and cervical, and
about the medications. Based on this testimony, the evidence does not preponderate against
the trial court's findings.

As noted above, we can reach our own conclusions about the documentary evidence.
We consider first the evidence on the utilization review cited by Employer.

In agreeing with the utilization review decision to deny the left cervical RFA, the
Medical Director said that, according to the records, the previous right side RFA treatment
was not successful. Regarding Cyclobenzaprine, the Medical Director observed that the
guidelines do not support long-term use of this medication. Importantly, however, the
utilization review decision for Cyclobenzaprine notes that the Medical Director was not
furnished with Employee's complete medical record.

At the trial court hearing on Employee's motion to compel medical treatment,
Employer submitted no evidence regarding utilization review of any prescribed
medications other than Cyclobenzaprine. As the trial court noted, the physicians who
reviewed the records and made the utilization review decisions had neither seen nor spoken
with Employee.

In contrast with Walker, the opinion of the Medical Director in this case was not
submitted by affidavit, nor was it supported by detailed findings. Moreover, Employee's
authorized treating physician, Dr. Schmidt, testified that Employee has always done better
than average; the RFA treatments lasted more than six months and controlled pain more
than fifty percent.

The utilization review cited by Employer addressed a request made in June 2020 for
a left cervical RFA treatment. The basis for the Medical Director's assertion that the
previous right side RFA was unsuccessful appears to be based on the short period of time
since Employee's May 2020 RFA treatment. However, by October 2020, when Dr.

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Schmidt recommended the cervical RFA treatment at issue, more than six months had
passed since the May 2020 treatrnent, and that treatment was for Employee's low
back/hips. Based on these considerations, we conclude that Employer did not rebut the
statutory presumption that the RFA treatment and medications ordered by Employee's
authorized treating physician are reasonably necessaiy.

Next, Employer contends Employee failed to provide evidence of the causal link
between the requested medical treatment and her work injury. Employer relies on Young
v. Sugar Hollow Properties, LLC, No. E2017-00981-SC-R3-WC, 2018 WL 2357772
(Tenn. Workers' Comp. Panel May 24, 2018). In Young, the Panel held: "[I]n a hearing to
compel medical benefits, the employee cannot rest on the allegations of her motion. She
must offer evidence to support her claim that the requested medical treatment was causally
related to her compensable injury." Id., 2018 WL 2357772, at *4.

This argument is without merit. In this case, Employee has been receiving the RFA
treatments and rnedications since shortly after the injury occurred, under the supervision
of Employee's authorized treating physicians. Under similar circumstances, the Panel in
Kennedy v. Lakeway Auto Sales, Inc., No. E2010-02422-WC-R3-WC, 2011 WL
10857724, at *4(Tenn. Workers' Comp. Panel Aug. 30, 2011), distinguished cases where
the employee was required to present expert testimony to prove the future medical
treatment was causally related to the work injury. In any event, Dr. Schmidt indicated in
his deposition that the continuing RFA treatments, both lumbar and cervical, are related to
Employee's May 2014 work injury. This evidence established the causal connection.

Finally, Employer argues that the trial court erred in ordering it to provide Employee
medical benefits as requested by "all of her approved treating physicians in the future"
without consideration to whether the benefits are reasonably necessary and causally related
to her work injury. We agree. By law, Employee is entitled to reasonably necessary and
causally related future medical benefits, as recognized in the trial court's April 5, 2016
order approving settlement of the workers' compensation claim. However, trial courts
cannot predetermine that future treatments satisfy these foundational requirements.

Carter v. Shoney's Inc., 845 S.W.2d 740(Tenn. 1992), is instructive. In Carter, the
employer appealed the trial court's grant of a rnotion to compel medical treatment. The
employer questioned the trial court's statutory authority to order, in effect, chiropractic
care for the employee for the rernainder of her life. Id. at 741. Giving proper effect to the

9
workers' compensation laws regarding future medical benefits, the Court modified the
judgment "to provide that the employer must provide future, free reasonably necessary
medical, including chiropractic, treatment for the adjudicated injury to the employee." Id.
at 744.

We note as well that the trial court's order in this case could be seen as limiting to
Employee, to the extent it refers to "continuing medical treatments" as ongoing RFA
treatment and medications. Trial courts do not have authority to prescribe the exact future
treatments employers must provide. See Kennedy, 2011 WL 10857724, at *4. The Panel in
Kennedy observed that the judgment granting the motion to compel medical treatment in
that case, as written, could have been seen as limiting the employee's future treatment to
pain management, even if complications arose that required some other course of
treatment. For this reason, the Panel modified the judgment "to require the employer to
provide all reasonably necessary medical treatment, which may include pain management."
Id., 2011 WL 10857724, at *5.

Consistent with Carter and Kennedy, we modify the trial court's judgment in this
case to require Employer to provide Employee future, free reasonably necessary medical
treatment, which may include the continuing treatment requested by Dr. Schmidt, for her
May 2014 work injury.3 In all other respects, we affirm the trial court's judgment granting
the motion to compel medical treatment.

3 We recognize that the trial court's order may have been an effort to prevent Employer from
misusing the workers' compensation laws in the future to unfairly make Employee litigate each and every
requested medical treatment. If Employer engages in such conduct, the trial court may utilize, pursuant to
court rules, other means to compel good faith compliance with the settlement, such as attorney fees and
sanctions.

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CONCLUSION

The judgment of the trial court is modified, as set forth above, and otherwise
affirmed. Costs on appeal are taxed against Law Offices of Jeffrey A. Garrety, P.C., and
its surety, for which execution may issue if necessary.

HOLLY KIRBY, JUSTICE

1I
IN THE SUPREME COURT OF TENNESSEE
AT JACKSON

AMY CUMMINGS-BOYD v. LAW OFFICES OF JEFFERY A. GARRETY
PC

Chancery Court for Madison County
No. 74233
FILED
MAR 0 4 2022
No. W2021-00720-SC-R3-WC Clerk of the
Reed By

JUDGMENT ORDER

This case is before the Court upon the entire record, including the order of referral
to the Special Workers' Compensation Appeals Panel, and the Panel's Memorandum
Opinion setting forth its findings of fact and conclusions of law, which are incorporated
herein by reference.

Whereupon, it appears to the Court that the Memorandum Opinion of the Panel
should be accepted and approved; and

It is, therefore, ordered that the Panel's findings of fact and conclusions of law are
adopted and affirmed, and the decision of the Panel is made the judgment of the Court.

Costs on appeal are taxed against Law Offices of Jeffrey A. Garrety, P.C., and its surety,
for which execution may issue if necessary.

It is so ORDERED.

PER CURIAM

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11240505. Public record. Not legal advice.