The opinion
FILED
September 30,2016
TN COURT OF
WORKERS'
COMPENSATION
CLAil\IIS
TENNESSEE BUREAU OF WORKERS' COMPENSATION Time: 8:35A.M.
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT MEMPHIS
DEBBIE MORGAN, ) Docket No.: 2016-08-0270
Employee, )
)
v. )
MACY'S, ) State File No. 63707-2015
Employer, )
)
and )
MACY'S CORPORATE SERVICES, ) Judge Allen Phillips
Insurance Carrier. )
EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS AFTER REMAND
This matter came before the undersigned Workers' Compensation Judge upon
remand from the Tennessee Workers' Compensation Appeals Board. The Appeals Board,
in an opinion dated August 31, 2016, vacated this Court's July 12, 2016 order holding a
surgery requested by Ms. Morgan was medically necessary. The Appeals Board
remanded the case to this Court for reconsideration of its decision in light of only the
evidence the Board deemed admissible. After reconsideration, this Court again finds Ms.
Morgan is entitled to the requested surgery for the reasons set forth below.
Procedural History
On March 15, 2016, Ms. Morgan filed a Petition for Benefit Determination (PBD)
seeking medical and temporary disability benefits. (T.R. 1 at 1). 1 When the parties could
not resolve the contested issues through mediation, the mediating specialist issued a
Dispute Certification Notice (DCN) on May 2, 2016, listing "compensability" and
1
The Court will refer to the Technical Record as "(T.R. at_)" and to the Exhibits as "(Ex. _ at_.)" The Court
listed the Technical Record and Exhibits in an Appendix to this Order and these represent the record made at the
original Expedited Hearing with the exception of evidence the Appeals Board deemed inadmissible.
"medical benefits" as disputed issues. Macy's later requested the mediator more fully
describe the issues as, "compensability- based on the nature of the incident itself and the
primarily arising out of requirement- and the medical necessity of the fusion as
recommended by the [authorized treating physician] pursuant to Tenn. [Comp.] R. &
Regs. 0800-02-06 and 0800-02-06-25." (T.R. 2 at 3.) Ms. Morgan requested an Expedited
Hearing, which the Court conducted on June 7, 2016.
Following the Expedited Hearing, and as relevant to this reconsideration, this
Court found Ms. Morgan came forward with sufficient evidence for the Court to
2
determine a surgery recommended by an authorized physician was medically necessary.
Macy's appealed. On August 31, 2016, the Appeals Board vacated this Court's decision
regarding medical necessity and remanded the case for reconsideration of its decision "in
light ofthe admissible evidence." Morgan v. Macy's, No. 2016-08-0270, TN Wrk. Comp.
App. Bd. LEXIS 39, at *14 (Tenn. Workers' Comp. App. Bd. Aug. 31, 2016).
Facts
Ms. Morgan works for Macy's as a sales associate. On July 9, 2015, in the course
of her employment, she fell on a concrete floor, 'jamming" her right shoulder. She felt
immediate pain in both her right shoulder and her neck. Ms. Morgan began treatment
with Dr. Samuel Schroerlucke, who the parties agree is an authorized physician.
Ms. Morgan first saw Dr. Schroerlucke on October 27, 2015, and reported "right
arm and shoulder pains" and "neck pain and right upper extremity numbness that runs
down into her first three fingers." (Ex. 1 at 1.)3 Dr. Schroerlucke noted she had tried "a
steroid pack with no relief' and "physical therapy for three weeks which gave her
minimal relief." !d. On examination, he noted a "positive Spurling's to the right" and
"severe pain running down her right arm" when extending her neck. !d.
On November 24, 2015, Dr. Schroerlucke noted an MRI, "reveal[ed] right C4-C5
and C5-C6 foramina! stenosis." (Ex. 1 at 4.) A subsequent EMG revealed "no
abnormalities." !d. at 12. On January 5, 2016, Dr. Schroerlucke stated: "I think that her
symptoms are coming from her cervical spinal stenosis." !d. On January 26, 2016, he
noted that, "[i]f she continues to have a lot of symptoms ... I will likely offer her a C4-
C6 ACDF." 4 !d. at 31.
On February 2, 2016, Ms. Morgan returned "very frustrated with how much pain
2
The parties argued additional issues of I) this Court's jurisdiction to consider disputes regarding medical necessity;
2) whether an appeal of utilization review is a prerequisite to seeking relief in this Court; and 3) Ms. Morgan's
entitlement to temporary disability benefits.
3
The Court numbered the pages of Exhibit 1 sequentially in the lower right comer of each page. The Court reminds
the parties, for future reference, that Rule 0800-02-21-.16(6)( c) requires the parties to number the medical records
submitted as evidence.
4
As noted by the Appeals Board, "ACDF" is an acronym for "anterior cervical discectomy and fusion."
2
she [was] having" and was "very interested in surgical intervention." !d. at 38. On
examination, she had a "decreased right bicep reflex." !d. Dr. Schroerlucke diagnosed
C4-C6 stenosis and right upper extremity radiculopathy. He stated:
At this point I have recommended a C4-C6 ACDF. . .. We did talk about
the fact that she had seen me in the past for a similar complaint. However,
she says she was completely asymptomatic prior to her work injury.
Therefore, this is an aggravation of a pre-existing asymptomatic condition
that her work contributed more than 50% of the problem to.
I d.
On February 23, 2016, Dr. Schroerlucke noted Ms. Morgan continued
complaining of pain in her neck and right upper extremity. He stated: "We are simply
awaiting approval for her ACDF. I have nothing further to offer her at this time." (Ex. 1
at 41.) No further records of Dr. Schroerlucke are in evidence for purposes of this
reconsideration.
Macy's requested UR review of the recommended surgery. On February 24, 2016,
Dr. Robert G. Winans, a "Board Certified Orthopedic Surgeon" licensed in Tennessee,
opined the "C4-6 ACDF" was "not authorized" pursuant to the criteria of the "ODG
treatment guidelines" because, in pertinent part:
Nothing definitely objectively abnormal was described as being present
neurologically. There is no indication of the presence of spinal instability.
There is no definite indication of the presence of a surgical lesion - some
degenerative disc changes in the cervical spine are noted however there are
no described objective signs or symptoms that can be directly related to
these imaging findings. The electrodiagnostic test was negative for any
radiculopathy. Guidelines state that there must be evidence of radicular pain
and sensory symptoms in a cervical distribution that correlate with the
involved cervical level or presence of a positive Spurling test. ... Without
a demonstration of spinal instability or objective neurological deficits
including reflex depression, objective motor weakness or dermatomal
sensory depression that correlate with imaging findings or distinct imaging
study evidence of a surgical lesion and without attempting to resolve the
problem nonsurgically in an intensive spinal rehabilitation program
guidelines would not support proceeding with cervical fusion surgery.
(Ex. 2 at 1-2.)
Following the UR review, Macy's denied the ACDF procedure recommended by
Dr. Schroerlucke, and Ms. Morgan filed her PBD on March 15, 2016.
3
Ms. Morgan was the only witness at the Expedited Hearing on June 7, 2016. She
testified she continues to work for Macy's but that she continues to have pain in her neck
and right upper extremity. She wore a "soft" collar. Because of adverse reactions, she
cannot tolerate the use of pain medications. Her understanding is that Dr. Schroerlucke
has nothing further to offer her apart from surgery and, though she does not "want"
surgery, she will submit to it for relief of her pain and disablement.
Based upon the evidence at the first hearing, this Court found Dr. Schroerlucke's
recommendation for surgery was presumed medically necessary pursuant to Tennessee
Code Annotated section 50-6-204(a)(3)(1)(2015). Further, this Court found that Macy's
had not rebutted the presumption of necessity by clear and convincing evidence by
submission of the UR report. Based upon Dr. Schroerlucke's findings, and bolstered by
Ms. Morgan's credibility, this Court found the recommended ACDF was consistent with
the ODG treatment guidelines. The Court's resulting order for Macy's to pay for the
surgery prompted Macy's appeal.
Appeals Board Opinion
As relevant to this reconsideration hearing, the Appeals Board considered the
issues of the admissibility of certain medical records and the applicable law regarding the
presumption of medical necessity.
First, regarding the admissibility of medical records, the Board noted this Court
admitted into evidence the UR report of Dr. Robert Winans and all of Dr. Samuel
Schroerlucke's medical records. Morgan, at *10-11. The Board further noted this Court
deemed Dr. Schroerlucke's records admissible because Dr. Winans relied upon them in
his UR report and because the records bore an electronic signature. !d. at * 11. Regarding
one particular record of Dr. Schroerlucke, the Board stated:
Later in the hearing, Employer objected to the introduction of a specific
record from Dr. Schroerlucke dated March 15, 2016 because it was not
included within the scope of the medical record certification dated March
10, 2016. After examining the report, the trial court noted that it contained
the physician's initials at the end of the record and stated, "that's good
enough for electronic signature under our ... standards."
!d.
The Board cited Tennessee Compilation Rules and Regulations 0800-02-21-
.16(6)(b ), which provides that, "[a] ll medical records signed by a physician or
accompanied by a certification that the records are true and accurate which has been
signed by the medical provider or custodian of records shall be admissible." In this case,
the Board found this Court properly admitted all records of Dr. Schroerlucke "dated on or
4
prior to the date of the medical certification form[.]" !d. at * 13. However, the Board
found this Court erred in admitting into evidence Dr. Schroerlucke's note of March 15,
2016, because it was not included in the records certified by his office as being true and
accurate. Thus, it was not "accompanied by a certification" as required by Rule 0800-02-
21-.16(6)(b). Further, the Board stated:
We respectfully disagree with the trial court that a mere typed notation
which purports to be a physician's initials at the end of a record is
sufficient, standing alone, to satisfy requirements for admissibility. The
purpose of the rule is to provide an efficient and cost-saving means of
introducing medical records as evidence when such records have basic
indicia of reliability. The rule is not burdensome, requiring either a
physician's signature on the record itself or an accompanying certification
form signed by a custodian of the records. The trial court concluded that an
electronic signature complies with the rule and that a physician's typed
initials at the end of the document are the equivalent of an electronic
signature. Without fully resolving the issue of what constitutes a valid
electronic signature, we disagree that mere typed initials at the end of the
document are sufficient.
Therefore, we conclude it was error for the trial court to accept Dr.
Schroerlucke's March 15, 2016 report as evidence at the expedited hearing.
!d. at* 14-15.
Second, the Board considered, "the relationship between the newly-adopted
medical treatment guidelines and the presumptions outlined in Tennessee Code
Annotated section 50-6-204(a)(3)(H) and (1)." Id at* 15. When so doing, the Board found
this Court "concluded that the presumption that the authorized physician's recommended
treatment is medically necessary could be overcome only by clear and convincing
evidence." !d. at* 15. The Board disagreed. Instead, the Board held that "a trial court can
apply one of two potential presumptions to the issue of medical necessity in any given
case." !d. at* 17.
In so finding, the Board first cited Tennessee Code Annotated section 50-6-
204(a)(3)(H), which provides "a presumption of medical necessity for 'any treatment
recommended by a physician or chiropractor selected pursuant to this subdivision (a)(3)
or by referral, if applicable."' !d. at *15. The Board then cited section 204(a)(3)
discussing this presumption as follows:
Following the adoption of treatment guidelines pursuant to § 50-6-124, the
presumption of medical necessity for treatment recommended by a
physician or chiropractor selected pursuant to this subsection or by referral,
5
if applicable, 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.
/d.
Further, in Tennessee Code Annotated section 50-6-124(h) the Board noted that
"the legislature also discussed this presumption" as follows:
Any treatment that explicitly follows the treatment guidelines adopted by
the administrator or is reasonably derived therefrom, including allowances
for specific adjustments to treatment, shall have a presumption of medical
necessity for utilization review purposes. This presumption shall be
rebuttable only by clear and convincing evidence that the treatment
erroneously applies the guidelines or that the treatment presents an
unwarranted risk to the injured worker.
/d. at *16 (emphasis by Appeals Board).
Based upon these statutes, the Board found that the first presumption that a trial
court might utilize is one that treatment recommended by an authorized physician is
"presumed medically necessary" subject to rebuttal by the employer by a preponderance
of the evidence. !d. at * 17; see, e.g., Walker v. G. UB.MK Constructors, No. E2015-
00346-SC-R3:.wc, 2016 Tenn. LEXIS 313 (Tenn. Workers' Comp. Panel May 2, 2016).
The Board found the second presumption that a trial court might consider is one that
arises when the "employee establishes by expert medical evidence that the recommended
treatment" of an authorized physician "explicitly follows the treatment guidelines" or "is
reasonably derived therefrom." In those instances, the burden shifts to the employer to
rebut the presumption of medical necessity by clear and convincing evidence. !d. at * 18.
Guided by the directives of the Appeals Board, the Court will reconsider the issue
of medical necessity under the standards outlined by the Board and in light of the
evidence deemed admissible by the Board.
Findings of Fact and Conclusions of Law
Standard Applied
At this expedited hearing stage of the proceedings, Ms. Morgan need not prove
every element of her claim by a preponderance of the evidence in order to obtain relief.
McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015). Instead,
she must come forward with sufficient evidence from which this Court might determine
6
she is likely to prevail at a hearing on the merits. !d.; Tenn. Code Ann. § 50-6-239(d)(l)
(20 15).
Evaluation of Medical Necessity In Light Of Evidence Deemed Admissible By The
Appeals Board
For purposes of this interlocutory proceeding, the parties agree Dr. Schroerlucke is
an authorized physician. Accordingly, pursuant to Tennessee Code Annotated section 50-
6-204(a)(3)(H), his recommendation that Ms. Morgan undergo an ACDF surgery IS
presumed medically necessary. Macy's must rebut this presumption.
As noted above, the Board detailed two distinct standards by which Macy's might
rebut the presumption of necessity of Dr. Schroerlucke's treatment. First, if the treating
physician's recommended treatment does not "explicitly follow," or if it is not
"reasonably derived," from the ODG guidelines, then the employer need only rebut the
authorized physician's recommendation by a preponderance of the evidence. Morgan, at
*19. Second, if the employee does establish that the authorized physician followed the
ODG guidelines in recommending treatment, then the employer must rebut the
presumption of medical necessity by clear and convincing evidence. !d. Our Supreme
Court instructs that a preponderance of the evidence standard requires that the truth of the
facts asserted be more probable than not, whereas the clear and convincing evidence
standard requires that the truth be highly probable. Teter v. Republic Parking Sys ., 181
S. W.3d 330, 341 (Tenn. 2005).
In this case, the Board found Ms. Morgan "did not offer proof at the expedited
hearing that [Dr. Schroerlucke's recommendation for surgery] 'explicitly follows the
treatment guidelines' or 'is reasonably derived therefrom."' !d. at *18. Thus, this Court
can only consider the evidence deemed admissible by the Board against the first standard
above: namely, did Macy's rebut Dr. Schroerlucke's recommendation for surgery by a
preponderance of the evidence? This Court finds it did not.
The only opinion with which Macy's might rebut the medical necessity of Dr.
Schroerlucke's surgery recommendation is that of Dr. Winans. At the hearing, Macy's
argued that Dr. Winans found the ACDF was not medically necessary because there was,
1) an absence of an EMG showing radiculopathy, 2) no evidence of spinal instability, and
3) no definite indication of a surgical lesion. When further reviewing Dr. Winans' report,
the Court again notes, as it did at the first hearing, that he opines the, "Guidelines state
that there must be evidence of radicular pain and sensory symptoms in a cervical
distribution that correlate with the involved cervical level or presence of a positive
Spurling's sign.'' (Ex. 2 at 2.) (Emphasis added.) Dr. Winans also stated, "[w]ithout a
demonstration of spinal instability or objective neurological deficits including reflex
depression, objective motor weakness or dermatomal sensory depression that correlate
with imaging findings ... of a surgical lesion ... [the] guidelines would not support
7
proceeding with cervical fusion surgery." (Ex. 2 at 2.) (Emphasis added.)
The Court finds Dr. Schroerlucke documented Ms. Morgan had a positive
Spurling's sign on October 27, 2015. According to Dr. Winans' interpretation of the
ODG Guidelines, a positive Spurling's sign is one prerequisite for an ACDF. Further, Dr.
Schroerlucke found diminished biceps reflexes on the right on February 2, 2016. "Reflex
depression" is also specific indicia of the need for surgery, according to Dr. Winans.
Finally, Dr. Schroerlucke noted right upper extremity radiculopathy and cervical stenosis
throughout his treatment of Ms. Morgan. Again, Dr. Winans specifically states the ODG
Guidelines require such findings as prerequisites for an ACDF.
Because Dr. Schroerlucke documented the very criteria that Dr. Winans opines
are necessary under the ODG Guidelines for an ACDF, the Court finds Macy's did not
rebut the presumption of medical necessity through Dr. Winans' report. In so finding, this
Court recognizes its inability to "independently assess an injured worker's symptoms as
described in the medical records." Morgan, at *18, citing Scott v. Integrity Staffing
Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *8 (Tenn.
Workers' Comp. App. Bd. Aug. 18, 2015). Thus, it confined its analysis to the
"conflicting [and] countervailing evidence properly admitted into the record," namely,
the findings and opinions of Dr. Winans juxtaposed against those of Dr. Schroerlucke.
Scott, at *8.
As noted in its first order, the Court found Ms. Morgan credible. 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
& Cas. Co., 812 S.W.2d 278, 283 (Tenn. 1991). Ms. Morgan consistently reported the
same complaints throughout Dr. Schroerlucke's course of treatment. Her expressed desire
to recover, even with endurance of surgery, is believable and sincere. She testified to her
areas of pain, her intolerance to pain medications and to her failure to improve with
conservative care. This Court finds nothing in the 2013 Reform Act that lessens the
importance of an employee's credibility to an accurate diagnosis or treatment regimen.
This Court also notes our Supreme Court instructs that it stands to reason that the
physician having the most contact with the patient might provide a more accurate opinion
regarding necessary treatment. Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 677
(Tenn. 1991). Dr. Schroerlucke fits that description.
Temporary Disability Benefits
The issue of entitlement to temporary disability remains premature because Ms.
Morgan has yet to be restricted from work due to medical treatment. If she is so
restricted, then Macy's would be responsible for same if the inability to work is causally-
related to any treatment for her injury of July 9, 2015.
8
IT IS, THEREFORE, ORDERED as follows:
1. Macy's shall pay for the surgery recommended by Dr. Schroerlucke, the authorized
treating physician. Further, Macy's shall remain responsible for all other reasonable
and necessary medical expenses related to the injury of July 9, 2015.
2. This matter is set for a Status Hearing on January 11 , 2017, at 10:30 a.m. Central
Time.
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) (2015). The
Insurer or Self-Insured Employer must submit confirmation of compliance with this
Order to the Bureau by email 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 via email
WCComp liance.Program@tn.gov or by calling (615) 253-1471 or (615) 532-1309.
r;
ENTERED this the 30th day of Septem~ ,
Judge Allen Ph1 lips
Court of Workers' Compensation
Status H earing:
An Status Hearing has been set with Judge Allen Phillips, Court of Workers'
Compensation Claims. You must call 731-422-5263 or toll-free at 855-543-5038 to
participate in the Initial Hearing.
Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation.
Right to Appeal:
9
Tennessee Law allows any party who disagrees with this Expedited Hearing Order
to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of
Appeal, you must:
1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal."
2. File the completed form with the Court Clerk within seven business days of the
date the Workers' Compensation Judge entered the Expedited Hearing Order.
3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.
4. The appealing party is responsible for payment of a filing fee in the amount of
$75.00. Within ten calendar days after the filing of a notice of appeal, payment
must be received by check, money order, or credit card payment. Payments can be
made in person at any Bureau office or by United States mail, hand-delivery, or
other delivery service. In the alternative, the appealing party may file an Affidavit
of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
will consider the Affidavit of Indigency and issue an Order granting or denying
the request for a waiver of the filing fee as soon thereafter as is
practicable. Failure to timely pay the filing fee or file the Affidavit of
Indigency in accordance with this section shall result in dismissal of the
appeal.
5. The parties, having the responsibility of ensuring a complete record on appeal,
may request, from the Court Clerk, the audio recording of the hearing for the
purpose of having a transcript prepared by a licensed court reporter and filing it
with the Court Clerk within ten calendar days of the filing of the Expedited
Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
the evidence within ten calendar days of the filing of the Expedited Hearing
Notice of Appeal. The statement of the evidence must convey a complete and
accurate account of what transpired in the Court of Workers' Compensation
Claims and must be approved by the workers' compensation judge before the
record is submitted to the Clerk of the Appeals Board.
6. If the appellant elects to file a position statement in support of the interlocutory
appeal, the appellant shall file such position statement with the Court Clerk within
five business days of the expiration of the time to file a transcript or statement of
the evidence, specifying the issues presented for review and including any
argument in support thereof. A party opposing the appeal shall file a response, if
any, with the Court Clerk within five business days of the filing of the appellant's
position statement. All position statements pertaining to an appeal of an
10
interlocutory order 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.
11
APPENDIX
Exhibits:
1. Medical Records of Tabor Orthopedics from October 27, 2015, through February
23,2016;and
2. Utilization Review Report ofGenex Services (Dr. Winans).
Technical record:
1. Petition for Benefit Determination;
2. Dispute Certification Notice;
3. Request for Expedited Hearing;
4. Correspondence from Macy s requesting in-person evidentiary hearing; and
5. Employer's Pre-Hearing Brief, Exhibit List, and Witness List. 5
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 this the 30th day
of September, 2016.
Name Certified Via Via Service sent to:
Mail Fax Email
Andrew L. Wener, Esq. X awener@wenerlawfirm.com
Employee's Counsel
J. Allen Callison, Esq. X acallison@cartwelllaw .com
Employer's Counsel
_6_ )./v~ -
Penny Shrum, Clerk of Court
Court of Workers' Compensation Claims
WC.CourtClerk@tn.gov
5
The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as
allegations unless established by the evidence.
12