The opinion
FILED
March 27,2017
TN COURT OF
WORKERS’ COMPENSATION
CLAIMS
Time 4:17 PM
“No MOnmeeezat
Ne UNTER or
area
TENNESSE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT CHATTANOOGA
Thomas Lane, ) Docket No.: 2016-01-0716
Employee, )
Vv. )
Cleveland Utilities, ) State File No.: 95703-2015
Employer, )
And )
Distributors Self Insurance Fund, ) Judge Thomas Wyatt
Insurance Company. )
)
EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS
This matter came before the undersigned Workers’ Compensation Judge on March
23, 2017, for an in-person Expedited Hearing during which Thomas Lane sought medical
benefits for past and ongoing treatment of a November 20, 2015 spinal injury at
Cleveland Utilities. Because he also suffered a 2007 spinal injury at Cleveland Utilities,
the central legal issue here is whether Mr. Lane’s need for spinal treatment after the 2015
work injury arose primarily out of and in the course and scope of employment. For the
reasons set forth below, the Court holds that it did and consequently Mr. Lane is entitled
to the relief he requested.
History of Claim
Mr. Lane is a fifty-seven year old maintenance technician who resides in
Cleveland, Bradley County, Tennessee. He alleged he injured his spine on November 20,
2015, while strenuously pulling a jack to dislodge it from beneath a pallet loaded with
chemicals. Mr. Lane reported his injury the next day via telephone call to John Corum,
Cleveland Utilities’ safety manager. Mr. Lane testified Mr. Corum told him to go to
Doctor’s Express, a walk-in clinic, for treatment. Mr. Lane did not go to the walk-in
clinic immediately, but waited until November 23 before seeking treatment.
Mr. Lane saw Dr. Charles Rudolph at Doctor’s Express. Dr. Rudolph’s initial
treatment note indicated Mr. Lane reported back pain from a work injury, and noted that
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he was currently taking two prescribed narcotic pain medications. Dr. Rudolph
diagnosed Mr. Lane with left-sided sciatica and ordered two injections of pain
medication. Mr. Lane testified that Dr. Rudolph would not clear him to return to work
until he returned for a follow-up appointment a week later.
After leaving Doctor’s Express, Mr. Lane went to Cleveland Utilities to report
what happened at the visit with Dr. Rudolph. Mr. Lane met with a secretary, Deanna
(Norman) Hitch, who presented a panel form for his signature. (Ex. 3.) The form listed
Doctor’s Express as a treatment option along with four other facilities. Somebody wrote
“Dr. Rudolph” on the line designated to identify the selected treating physician. Mr.
Lane signed the form as presented to him.
When Mr. Lane followed up at Doctor’s Express on November 30, he saw Dr.
Victoria Folsom instead of Dr. Rudolph. Dr. Folsom also diagnosed sciatica, but
instructed Mr. Lane to seek treatment from his primary care physician “for pre existing
injury unrelated to current work injury claim.” (Ex. 6 at 4.). In response to
correspondence from the handling adjuster, Dr. Folsom stated, “[a]s noted in Dr.
Rudolph’s note from 11/23/15’, this was sciatic pain worsened but not caused by the
work.” Id. at 6.
Cleveland Utilities denied Mr. Lane’s claim based on Dr. Folsom’s causation
opinion. Mr. Lane had a standing appointment with Dr. Paul Broadstone, the orthopedic
surgeon authorized to treat the 2007 spinal injury for which Mr. Lane retained open
medical benefits under a court-approved settlement.” Mr. Lane saw Dr. Broadstone on
December 2, during which visit Dr. Broadstone noted that Mr. Lane,
continues to have pain in the lower lumbar spine and RLE with N/T and
weakness. He still experiences numbness in the anterior aspect of his left
leg as well. He relates these symptoms are unchanged since the last visit.
Later in the report, Dr. Broadstone noted that Mr. Lane,
has had a recent exacerbation of his back and left leg symptoms which
somewhat improved over the last week. It is a separate or worker’s
compensation issue and not addressed here.
(Ex. 8 at 1, 2.)
Because of Dr. Broadstone’s reluctance to address issues not related to his 2007
work injury, Mr. Lane saw neurologist Dr. David Lowry on January 5, 2016. In the in-
* The records introduced into evidence do not contain the opinion from Dr. Rudolph referenced by Dr. Folsom.
* The same carrier covered the 2007 and 2015 injuries.
take records he completed before seeing Dr. Lowry, Mr. Lane stated he injured his back
“at work trying to get a pallet jack from a chemical pallet.” (Ex. 7 at 9.) Later, Dr.
Lowry noted Mr. Lane told him the injury occurred November 20, 2015. Id. at 6. Dr.
Lowry ordered an MRI, but did not arrive at a definitive opinion whether Mr. Lane’s
current lumbar symptoms arose from the 2007 injury or the 2015 injury.
Eventually, Dr. Broadstone agreed to see Mr. Lane as a private patient for the
2015 injury. Dr. Broadstone saw Mr. Lane on April 11, 2016, at which visit he recorded
that Mr. Lane told him the onset of his current symptoms occurred on November 20,
2015, when,
there was a pallet jack stuck beneath a pallet . . . he attempted to pull the
jack out, but it was stuck, he continued to try to pull the jack. He stated he
noted a tingling sensation in his lower lumbar spine but only for a brief
period of time . . . but later that night he began to experience pain in the left
buttock, posterior thigh ending at the knee.
(Ex. 8 at 4.)
Dr. Broadstone ordered an MRI to compare to the MRI ordered by Dr. Lowry.
After reviewing the MRI findings, Dr. Broadstone diagnosed Mr. Lane with mild to
moderate degenerative disc and facet disease and disc bulging at the L2-3, L3-4, L4-5
and L5-S1 levels of his spine. An EMG/nerve conduction study performed in August
2016 documented findings consistent with ongoing left-sided radiculopathy at the L4-5
level.
Based on these findings, Dr. Broadstone recommended against surgery, but
suggested that Mr. Lane may need physical therapy and epidural injections to manage the
numbness in his left leg. Dr. Broadstone ordered an epidural injection that Mr. Lane
underwent on May 12.
Mr. Lane presented Dr. Broadstone two identical written causation questionnaires
to obtain his causation opinion. In his first response, Dr. Broadstone stated that Mr. Lane
had experienced additional left-leg numbness and left-buttocks pain since his injury at
Cleveland Utilities. He gave the opinion that the injury at Cleveland Utilities caused an
“exacerbation of [the] previous excising condition [at the L4-5 level].” (Ex. 8 at 11.)
Dr. Broadstone later ordered an MRI of Mr. Lane’s lumbar spine and compared it
to the MRI Dr. Lowry ordered to evaluate whether the work injury caused an increased
bulge in Mr. Lane’s L4-5 disk. Upon completing his review of the MRIs, Dr. Broadstone
supplemented his earlier response by stating that the later MRI did not show a larger L4-5
disk bulge since the work injury. Nevertheless, he still found that Mr. Lane suffered
increased left leg pain, numbness and tingling following the 2015 injury and, thus,
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maintained his opinion that Mr. Lane’s 2015 injury at Cleveland Utilities caused an
“aggravation of the pre-existing condition at the [L4-5 level].” Jd. at 12.
Mr. Lane filed a Petition for Disability Determination after Cleveland Utilities
denied his claim. After mediation failed to resolve the parties’ issues, the mediator issued
a Dispute Certification Notice certifying the issues of causation and medical benefits for
the Court’s decision. Mr. Lane then requested an in-person Expedited Hearing before the
Court.
Findings of Fact and Conclusions of Law
In order to grant the relief Mr. Lane seeks, the Court applies the following general
principles. As in all workers’ compensation actions, Mr. Lane, as the claimant, has the
burden of proof on the essential elements of his claim. Scott v. Integrity Staffing
Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). However,
since this is an Expedited Hearing, he only has to come forward with sufficient evidence
from which the Court can determine he is likely to prevail at a hearing on the merits in
order to meet his burden. McCord v. Advantage Human Resourcing, 2015 TN Wrk.
Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
The Court considers the following statutory definitions in deciding the causation
issue raised by the parties. Tennessee Code Annotated section 50-6-102(14) (2016)
defines a compensable "injury" as "an injury by accident . . . arising primarily out of and
in the course and scope of employment, that causes death, disablement or the need for
medical treatment." Subsection (A) to section 50-6-102(14) specifically addresses the
compensability of injuries that aggravate pre-existing conditions, providing that such
injuries are not compensable “unless it can be shown that the aggravation arose primarily
out of and in the course and scope of employment.” The statute also provides that "[a]n
injury causes death, disablement or the need for medical treatment only if it has been
shown to a reasonable degree of medical certainty that it contributed more than fifty
percent (50%) in causing the death, disablement or need for medical treatment,
considering all causes." Tenn. Code Ann. § 50-6-102(14)(C).
The parties here submitted the opinions of Drs. Folsom and Broadstone for the
Court to consider on the causation issue.” When thoroughly considered, their opinions do
not greatly differ. Dr. Folsom’s opinion is that Mr. Lane’s injury at Cleveland Utilities
worsened, but did not cause, the sciatic pain for which he sought treatment. Upon finding
* While the Court is troubled that Dr. Folsom took it upon herself to become the ultimate decision-maker by
instructing Mr. Lane to seek treatment from his primary care physician, the Court will nonetheless consider her
opinion on the causation issue. See City of Columbia v. C.F.W. Construction Co., 557 S.W.2d 734, 742 (Tenn.
1977), holding that an expert opinion that addresses the ultimate legal issue in a claim may be considered by the
judge if the opinion is within the expert’s field of expertise and is helpful to the Court’s determination of the
ultimate issue.
that Mr. Lane experienced increased numbness in his left leg and severe pain in his left
buttocks because of his injury at Cleveland Utilities, Dr. Broadstone formulated the
opinion that the work injury aggravated the pre-existing condition at the L4-5 level of
Mr. Lane’s spine.
The question then becomes whether the opinions of Drs. Folsom and Broadstone
establish that Mr. Lane will likely prevail at a hearing on the merits that the 2015 injury
he sustained at Cleveland Utilities arose out of and in the course and scope of
employment. In considering this issue, the Court is mindful of the decisions of the
Workers’ Compensation Appeals Board in two claims involving aggravations of pre-
existing conditions.
The first opinion considered is that in Miller v. Lowe's Home Centers, Inc. , 2015
TN Wrk. Comp. App. Bd. LEXIS 40. ( Oct. 21, 2015), in which the employee fell at
work injuring his hip. The evidence in Miller established that radiological testing
indicated the presence of severe pre-existing arthritic changes in the employee’s injured
hip before the fall at work occurred. The employer denied hip replacement surgery
prescribed by the treating physician on the ground it was not liable for the preexisting
arthritis in the hip. The workers’ compensation judge ordered that the employer pay for
the recommended hip replacement surgery.
The Workers’ Compensation Appeals Board in Miller affirmed the trial court’s
decision. In support of its ruling, the Appeals Board held the trial judge properly
accepted the treating physician’s testimony that the work injury aggravated the severe
arthritis in the employee’s hip. Furthermore, the Appeals Board held the treating
physician’s testimony the employee would have needed hip replacement irrespective of
the occurrence of the work injury did not mandate a finding of non-compensability since
the physician also testified the work injury hastened the need for the surgery. Finally, the
Appeals Board in Miller held that an aggravation or exacerbation of a pre-existing
condition need not be permanent for an injured worker to qualify for medical treatment of
the aggravation under workers’ compensation.
The second opinion considered is White v. Boles Trucking, 2016 TN Wrk. Comp.
App. Bd. LEXIS 86, at *7-8 (Nov. 14, 2016). The issue in White was whether new
symptoms experienced by an employee following a 2015 work injury related to the 2015
incident or a pre-existing compensable injury to the same level of his lumbar spine. The
Appeals Board affirmed the trial court’s finding that the employee suffered a new injury,
noting the following factors in support of its decision: the employer did not dispute the
employee’s description of his 2015 work injury; the employee was working without
restriction before the 2015 injury occurred; the employee became restricted in his work
activities eafter the work injury occurred; and the employer did not refute the employee’s
report of more severe pain after the 2015 injury.
The Appeals Board in White further decided that the lack of radiological evidence
supporting a finding that the 2015 injury caused an anatomical change to the employee’s
pre-existing lumbar condition did not mandate a reversal of the trial court’s decision. In
support of this decision, the Appeals Board cited the treating physician’s testimony that
the 2015 injury exacerbated the pre-existing condition to the extent the employee
currently needed the recommended surgery.
Here, the Court notes Cleveland Utilities did not dispute that Mr. Lane suffered
injury at work on November 20, 2015, as he described. Furthermore, the evidence
introduced during the Expedited Hearing established that, following his 2007 lumbar
injury, Mr. Lane successfully returned to the strenuous work of a maintenance technician
without restriction, and performed the duties Cleveland Utilities assigned him until the
2015 injury intervened.* Mr. Lane testified he attempted to return to work following the
2015 injury, but could not perform his assigned duties because of the symptoms that
developed after the 2015 injury occurred. In fact, Mr. Lane began receiving long-term
and Social Security disability benefits following the 2015 injury. Finally, the record
indicates that, since the 2015 injury, Mr. Lane has required treatment by epidural steroid
injections that he did not require before the injury occurred.
Taking the above factors into account, the Court holds the evidence introduced at
the Expedited Hearing established Mr. Lane is likely to prevail at trial in establishing his
need for lumbar spinal treatment since the occurrence of the 2015 work injury arose
primarily out of and in the course and scope of his employment at Cleveland Utilities.
In consideration of the medical benefits to which this holding entitles Mr. Lane, the Court
considers the Workers’ Compensation Appeals Board’s opinion in Hackney v. Integrity
Staffing Solutions, Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS 29, at *8-9 (July 22,
2106), which held,
An employer may risk being required to pay. for unauthorized
treatment if it does not provide the treatment made reasonably necessary by
the work injury as required by Tennessee Code Annotated section 50-6-
204(a)(1)(A) [*9] . See Young v. Young Electric Co., No. 2015-06-0860,
2016 TN Wrk. Comp. App. Bd. LEXIS 24, at *16 (Tenn. Workers' Comp.
App. Bd. May 25, 2016); McCord v. Advantage Human Resourcing, No.
2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *13 (Tenn.
Workers' Comp. App. Bd. Mar. 27, 2015). However, the employer must
first be given an opportunity to provide the treatment, and "[w]hether an
“ Cleveland Utilities did point out that Dr. Broadstone noted in the first visit on which he saw Mr. Lane after the
2015 injury that Mr. Lane’s symptoms were the same as he described them at previous visits. However, after he saw
Mr. Lane on additional occasions following the 2015 injury, Dr. Broadstone stated in his August 3, 2016 responses
to Mr. Lane’s written causation inquiry that Mr. Lane did experience increased left-leg symptoms, including pain,
numbness and tingling, following the 2015 injury.
employee is justified in seeking additional medical services to be paid for
by the employer without consulting the employer depends on the
circumstances of each case." Dorris v. INA Ins. Co., 764 S.W.2d 538, 541
(Tenn. 1989).
Here, Mr. Lane gave Cleveland Utilities timely notice of his injury and sought
care at the facility to which the employer’s safety director directed him. After two visits
to the authorized facility, however, Cleveland Utilities and/or its Carrier interpreted a
causation opinion rendered by a physician at the authorized provider to provide it a valid
basis to deny Mr. Lane’s claim. Mr. Lane testified without refutation that, after
Cleveland Utilities denied his claim, he told them he needed care for his 2015 injury and
intended to seek treatment from Dr. Broadstone. However, someone from Cleveland
Utilities or its Carrier told Mr. Lane workers’ compensation would not pay for him to see
Dr. Broadstone for treatment. In view of the above, the Court holds that, at a hearing on
the merits, Mr, Lane will likely prevail in establishing he was justified in seeking care for
his 2015 back injury from Drs. Lowry and Broadstone following Cleveland Utilities’
denial of his claim.
Mr. Lane seeks recovery for the treatment and evaluation he received from Drs.
Lowry and Broadstone after the November 2015 injury, as well as for ongoing treatment
under Dr. Broadstone as his authorized treating physician. The court first addresses the
claim for payment of the existing bills relating to the treatment and evaluation he
received from Drs. Lowry and Broadstone. In Young v. Young Electric Co., supra at
*20, the Workers’ Compensation Appeals Board modified an award of medical benefits
to exclude payment for certain services ordered paid below. The Appeals Board
excluded the charges in question because the medical records introduced into evidence
below indicated the employee did not claim the underlying treatment was for a work
injury. Here, the records of Drs. Lowry and Broadstone contain histories that indicate
Mr. Lane claimed treatment for pain and symptoms from his November 20, 2015 work
injury at Cleveland Utilities. Accordingly, the Court holds that, at trial, Mr. Lane will
likely prevail in establishing that the treatment and evaluation he received from Drs.
Lowry and Broadstone after November 20, 2015, arose primarily out of and in the course
and scope of his employment by Cleveland Utilities.
Because the evidence introduced at trial does not establish the amounts the
providers charged for the treatment and evaluation provided and ordered by Drs. Lowry
and Broadstone, the Court cannot order Cleveland Utilities to pay the specific charges for
those services. See Osborne v. Beacon Transport, LLC, 2016 TN Wrk. Comp. App. Bd.
49, at *9-10 (Sept. 27, 2016), holding that a party must admit evidence establishing the
amounts charged for non-authorized treatment of a compensable injury before a court can
order an employer to pay for the subject treatment. Accordingly, Mr. Lane must submit
billing records that document the amounts charged by the providers of the compensable
services so that Cleveland Utilities and/or its Carrier can process them for eventual
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payment under the Workers’ Compensation Law.
IT IS, THEREFORE, ORDERED as follows:
1. That Cleveland Utilities and/or its Carrier shall process the charges for the
compensable treatment and evaluation of Mr. Lane’s November 2015 work injury,
but not until Mr. Lane and/or the providers of the subject services presents the
charges to Cleveland Utilities and/or its Carrier by appropriate billing records.
2. That Cleveland Utilities and/or its Carrier shall authorize Dr. Paul Broadstone to
provide ongoing reasonable and necessary treatment of Mr. Lane’s November 20,
2015 work injury.
3. This matter is set for a Status Hearing on June 2, 2017, at 10:30 a.m., Eastern
Time. You must call (615) 741-3061 or toll-free at (855) 747-1721 to participate
in the Status Hearing. 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.
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) (2016). 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.
5. For questions regarding compliance, please contact the Workers’ Compensation
Compliance Unit via email WCCompliance.Program(@tn.gov or by calling (615)
253-1471 or (615) 532-1309.
ENTERED this the 27th day of March, 2017.
Judge Thomas Wyatt
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
The Court admitted the following exhibits into evidence:
1. First Report of Injury;
2. Wage Statement;
3. Agreement Between Employer/Employee Choice of Physician form;
4. Job description;
5. Final Medical Report of Dr. Paul Broadstone;
6. Records of Doctors Express/Drs. Charles Rudolph and Victoria Folsom;
7. Records of Chattanooga Bone & Joint Surgeons, PC/Dr. David Lowry;
8. Records of Dr. Paul Broadstone;
9. Affidavit of Thomas Lane; and
10. Judgment of the Circuit Court of Bradley County, Tennessee (over the objection
of Cleveland Utilities).
Technical record:
Petition for Benefit Determination;
Dispute Certification Notice;
Request for Expedited Hearing;
Employee Position Statement; and
Employer Position Statement.
wkyeyr
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 27th day
of March, 2017.
Name Certified Mail | Via Email | Email Address
Matthew Coleman, x mcoleman@loganthompsonlaw.com
Attorney lhaywood@loganthompsonlaw.com
Harry Cash, Xx megan.welton@millermartin.com
Attorney; Megan harry.cash(@millermartin.com
Welton, Attorney
\ ?
I/we X ww
PENNY SHRUIM, COURT CLERK
we.courtclerk(@tn. gov
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