The opinion
FILED
Jan 08, 2019
02:11 PM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT CHATTANOOGA
John Vanveldhuizen, ) Docket No.: 2018-01-0388
Employee, )
Vv. )
Crown Automotive Group, Inc., ) State File No.: 79301-2017
Employer, )
And )
FFVA Mutual Ins. Co., ) Judge Thomas Wyatt
Carrier. )
)
EXPEDITED HEARING ORDER FOR ADDITIONAL MEDICAL BENEFITS
This matter came before the Court on January 3, 2019, for an in-person Expedited
Hearing requested by John Vanveldhuizen.! The issue is whether Crown Automotive
Group, Inc. (Crown) must authorize a third lumbar surgery recommended by the treating
physician. Crown denied the surgery based on a utilization review (UR) physician’s
opinion that the surgery was not medically necessary. For the reasons below, the Court
orders Crown to authorize the surgery.
History of Claim
Mr. Vanveldhuizen injured his low back at work. Crown accepted the claim and
authorized treatment with orthopedist Dr. Jay Jolley, who diagnosed radiculopathy
caused by a moderate-to-large L4-5 disk herniation.
Dr. Jolley performed authorized L4-5 microdiskectomy surgery on February 28,
2018. He noted in his operative report that Mr. Vanveldhuizen “was at risk for a
recurrent piece of disk herniating, given his relatively young age.”” Dr. Jolley performed
a second authorized L4-5 microdiskectomy eleven days after the first surgery.
Mr. Vanveldhuizen requested an on-the-record determination, but the Court set an in-person hearing on
Crown’s request.
? Mr. Vanveldhuizen is thirty-eight years old.
Part of Crown’s argument against authorizing the recommended surgery arises
from the circumstances leading up to the second surgery. Mr. Vanveldhuizen testified
that the pain he experienced after the first surgery severely worsened when he drove to
and from his first post-surgery visit with Dr. Jolley.’ However, Dr. Jolley’s March 11
operative report noted that Mr. Vanveldhuizen reported his left-leg pain resolved after the
first surgery, but it immediately returned because he “thinks” he hit a bump in the road’
while driving home from the “office.” Dr. Jolley stated in the operative note that, on
March 7, Mr. Vanveldhuizen underwent an MRI that revealed a recurrent L4-5 herniated
disk. Even in consideration of the alleged report that Mr. Vanveldhuizen’s pain returned
when his car struck a bump in the road, Dr. Jolley stated in his operative note, “I still feel
this is related to the initial injury.”
The second surgery failed to relieve Mr. Vanveldhuizen’s back and left-leg pain.
Dr. Jolley ordered physical therapy, which significantly increased his pain. Mr.
Vanveldhuizen testified that Dr. Jolley cancelled the therapy, but the therapist notes
indicate that the provider discharged him due to missing scheduled appointments.° In any
event, Dr. Jolley ordered a May 7 MRI that showed a “probable combination of scar and
posterior disc bulging which mildly deforms the ventral thecal sac but does not cause
significant mass effect.”
Dr. Jolley mentioned the possibility of a second recurrent herniated disk in his
note documenting the second surgery, writing: “[w]e also discussed the fact that if a third
large herniation occurs, then he unfortunately will likely need to consider a fusion or disk
replacement.” Dr. Jolley considered the May 7 MRI results to confirm his concern about
another recurrent herniated L4-5 disk and ordered fusion surgery.
Crown submitted the surgery recommendation to UR. Dr. Richard Lutz, a board-
certified orthopedist, performed the assessment. Dr. Lutz did not examine Mr.
Vanveldhuizen but determined medical necessity based on documentation provided him
by Crown. Dr. Lutz concluded the surgery was not medically necessary under the
Bureau’s treatment guidelines because the documentation he received did not contain:
* Mr. Vanveldhuizen testified this was his first post-surgery driving experience, and that the round-trip
involved one and one-half hours of driving.
“Mr. Vanveldhuizen denied that his pain worsened when his car struck a bump in the road, and he denied telling Dr.
Jolley anything of that nature.
* The Court interprets “office” to refer to Dr. Jolley’s office.
° Records indicate that Mr. Vanveldhuizen participated in five therapy sessions following the second
surgery.
e flexion/extension x-rays documenting lumbar instability;
MRI evidence of nerve root compression;
e records reflecting whether Mr. Vanveldhuizen’s symptoms progressed or
regressed during non-surgical care such as physical therapy and spinal
injections;* and
e apsychosocial screen.
Dr. Lutz also based his opinion on a statement in the Bureau’s treatment guidelines
recommending against fusion surgery for degenerative disk disease and/or disk herniation
suffered by employees with workers’ compensation claims. Mr. Vanveldhuizen
unsuccessfully appealed Dr. Lutz’s decision to the Bureau’s medical director, and Crown
denied authorization for the surgery.
Mr. Vanveldhuizen filed this claim to compel Crown to authorize the surgery.
Afterward, Crown’s attorney wrote Dr. Jolley for his opinion whether Mr.
Vanveldhuizen’s first recurrent L4-5 herniation primarily arose when he hit a bump while
driving. Dr. Jolley responded that the first recurrent disk was “a result primarily from the
traumatic annulotomy secondary to the [original] disc herniation.” Crown’s attorney also
questioned why Dr. Jolley recommended fusion surgery, to which Dr. Jolley answered
that Mr. Vanveldhuizen needed it “given the herniation & the instability now present.”
Mr. Vanveldhuizen submitted Dr. Jolley’s affidavit at the Expedited Hearing. In
it, Dr. Jolley elaborated as follows on his opinion that surgery is medically necessary:
In my opinion, my request for surgery falls within the treatment
guidelines and is absolutely medically necessary. Mr. Vanveldhuizen has
lumbar spine instability and radiculopathy, as documented in my records
and by my physical examination and we have tried conservative care such
as physical therapy which only makes Mr. Vanveldhuizen’s pain and
instability worse. Furthermore, we have tried two prior microdiscectomies
and Mr. Vanveldhuizen developed a third recurrent herniation clearly
indicating a fusion procedure is necessary as Dr. Lutz’ own report makes
clear.
’ Dr. Jolley contended in his response to an inquiry made by Crown’s counsel and, later in his affidavit,
that the MRI taken after the second surgery documented lumbar instability.
* The records documenting Mr. Vanveldhuizen’s participation in physical therapy were available but not
sent to Dr. Lutz.
* Dr. Lutz’s report stated: “[a]fter failure of two discectomies on the same disc, fusion may be an option at
the time of the third discectomy, which should also meet the ODG criteria. (See ODG Indication for
Surgery—Discectomy.)”
Mr. Vanveldhuizen relied on Dr. Jolley’s medical-necessity opinion, while Crown
urged the Court to uphold its denial of the surgery based on the opinions of Dr. Lutz and
the medical director. Crown also contended that the symptoms underlying Mr.
Vanveldhuizen’s need for the third surgery did not arise primarily out of and in the
course and scope of employment because they were caused by him hitting a bump while
driving. Lastly, Crown contended that the Court should deny the surgery because Mr.
Vanveldhuizen failed to comply with physical therapy.
Findings of Fact and Conclusions of Law
Mr. Vanveldhuizen seeks an order requiring Crown to authorize the recommended
fusion surgery. He need not prove his entitlement to the surgery by a preponderance of
the evidence but instead must present sufficient evidence showing he would likely prevail
on that issue at a hearing on the merits. McCord v. Advantage Human Resourcing, 2015
TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
The Court first addresses Crown’s arguments that it should deny the surgery
because Mr. Vanveldhuizen’s current pain was caused by hitting a bump while driving
and/or because he was non-compliant with physical therapy. Crown introduced no
medical evidence to support either argument; thus, the Court rejects them.
The Court applies certain statutory presumptions in determining which of the
competing medical-necessity opinions to accept. Tennessee Code Annotated section 50-
6-204(a)(3)(H) (2018) affords a presumption of medical necessity for treatment
recommended by an authorized treating physician. In Morgan v. Macy’s, 2016 TN Wrk.
Comp. App. Bd LEXIS 35, at *17 (Aug. 31, 2016), the Workers’ Compensation Appeals
Board held that this presumption is rebuttable by a showing of the preponderance of the
evidence.
Tennessee Code Annotated section 50-6-124(h) and subsection 204(a)(3)(1)
strengthen the presumption in favor of the treating physician’s recommendation when it
is shown that it is consistent with the Bureau’s treatment guidelines. In that event, the
opponent of the recommended treatment must come forward with “clear and convincing
evidence demonstrating that the recommended treatment substantially deviates from, or
presents an unreasonable interpretation of, the treatment guidelines” to overcome the
presumption of medical necessity.
The Court first holds that it is not bound to accept the decision of a UR physician,
and it may evaluate the opinion of the UR physician just as it does any other medical
expert. See Ledford v. Mid Georgia Courier, Inc., 2018 TN Wrk. Comp. App. Bd.
LEXIS 28, at *4 (June 4, 2018). The Court located no authority indicating that it must
presume a UR physician’s opinion correct.
In evaluating expert medical opinions, a trial judge may consider, among other
things, the qualifications of the experts, the circumstances of their evaluation, and the
information available to them. Venable v. Superior Essex, Inc., 2016 TN Wrk. Comp.
App. Bd. LEXIS 56, at *6 (Nov. 2, 2016). As the Supreme Court held, “[w]hen faced...
with conflicting medical testimony . . ., it is within the discretion of the trial judge to
conclude that the opinion of certain experts should be accepted over that of other experts
and that it contains the more probable explanation.” Thomas v. Aetna Life and Cas. Co.,
812 S.W.2d 278, 283 (Tenn. 1991) (citation omitted) (internal quotation marks omitted).
Because Dr. Jolley is the authorized treating physician, the Court affords his
opinion the presumption in subsection 50-6-204(a)(3)(H). The Court will not afford his
opinion the stronger presumption for a treating physician’s recommendation consistent
with the Bureau’s treatment guidelines because neither party introduced the guidelines
into evidence, and because Dr. Jolley failed to adequately state why his recommended
treatment complied with them. Without this proof, the Court is unable to apply the
standard of 50-6-204(a)(3)(I). See Morgan, at *18 (holding that a trial court cannot itself
apply the Bureau’s treatment guidelines to specific treatment without medical proof on
the issue of compliance, or lack of compliance, with the guidelines.) Thus, the Court
must order that Crown authorize the recommended surgery unless the preponderance of
the evidence dictates that the surgery is not medically necessary.
Here, the Court adopts Dr. Jolley’s opinion over Dr. Lutz’s. Dr. Jolley has a long
history of treating Mr. Vanveldhuizen for this injury, including performing two surgeries
that Crown authorized. Dr. Jolley’s opinion is buttressed by his identification before both
previous surgeries that Mr. Vanveldhuizen might endure post-surgical recurrent disk
herniations and require disk-replacement or fusion surgery. Finally, the facts that Dr.
Lutz never saw Mr. Vanveldhuizen and Crown did not provide him a copy of the records
documenting the physical therapy further support the Court’s decision that the
preponderance of the evidence does not rebut the medical necessity of the surgery.
Thus, the Court holds Mr. Vanveldhuizen established that he will likely prevail at
trial in proving the medical necessity of the fusion surgery recommended by Dr. Jolley.
IT IS, THEREFORE, ORDERED as follows:
1. Crown shall promptly authorize, schedule and pay for the recommended surgery.
2. This matter is set for a Status Hearing at 10:30 a.m. Eastern Time on April 9,
2019. You must call (615) 741-3061 or toll-free at (855) 747-1721 to participate.
Failure to call may result in a determination of the issues without your further
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.goy 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 at WCCompliance.Program(@tn.gov.
ENTERED January 8, 2019.
: -
Judge Thomas Wyatt
Court of Workers’ Compensation Claims
Technical Record:
Sas ees
Exhibits:
SINS Yb
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 January 8, 2018.
Appendix
Affidavit of John Vanveldhuizen
Affidavit of Dr. Jay Jolley
Dr. Jolley’s response to questionnaire submitted by Employer’s Counsel
Eckman Freeman UR report
UR Appeal Determination
Dr. Jay Jolley’s records
Memorial Health System records
ATI Physical Therapy records
Amended Petition for Benefit Determination
Dispute Certification Notice
Employee’s Brief Supporting Petition for Benefit Determination
Request for Expedited Hearing—On-the-Record Determination
Employee’s Response in Opposition to On-the-Record Determination
Order Scheduling In-Person Expedited Hearing
Notice of Expedited Hearing
Employer’s Witness and Exhibit List
CERTIFICATE OF SERVICE
Name Certified Via Email Email Address
Tim Henshaw xX tim@memahanlawfirm.com
Employee Attorney missy@memahanlawfirm.com
Tiffany Sherrill X tbsherrill@mijs.com
Alex Morrison abmorrison@mijs.com
Employer Attorney
Den Mane
PENNY SHRWUM, COURT CLERK
we.courtclerk@tn.gov
W oor naa iY)
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. Ifa 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 fen
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.
EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers’ Compensation
wwiw.tn.gov/labor-wfd/weomp.shtm!
wc.courtclerk@tn.gov
1-800-332-2667
Docket #:
State File #/YR:
Employee
Vv.
Employer
Notice
Notice is given that
[List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s) of the Court of Workers’ Compensation Claims at
to the Workers’ Compensation Appeals
Board. [List the date(s) the order(s) was filed in the court clerk’s office]
Judge
Statement of the Issues
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Additional Information
Type of Case [Check the most appropriate item]
LCL] Temporary disability benefits
C1 Medical benefits for current injury
1] Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): At Hearing: DEmployer (JEmployee
Address:
Party’s Phone: Email:
Attorney's Name: BPR#:
Attorney’s Address: Phone:
Attorney’s City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 10/18 Page 1 of 2 RDA 11082
Employee Name: _ _ SF#: DOI:
Appellee(s)
Appellee (Opposing Party): At Hearing: DEmployer Employee
Appellee’s Address:
Appellee’s Phone: Email:
Attorney's Name: BPR#:
Attorney's Address: Phone:
Attorney’s City, State & Zip code:
Attorney’s Email:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, , certify that | have forwarded a true and exact copy of this
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules
of Board of Workers’ Compensation Appeals on this the day of ,20__
[Signature of appellant or attorney for appellant)
LB-1099 rev. 10/18 Page 2 of 2 RDA 11082
Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, I-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
lL, , having been duly sworn according to law, make oath that
because of my poverty, | 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.
4. Full Name: 2. Address:
3. Telephone Number: 4. Date of Birth:
5. Names and Ages of All Dependents:
Relationship:
Relationship:
Relationship:
Relationship:
a
. Lam employed by:
My employer's address is:
My employer’s phone number is:
“I
. My present monthly household income, after federal income and social security taxes are deducted, is:
8. | receive or expect to receive money from the following sources:
AFDC $ per month beginning
ssl $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Comp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9, My expenses are:
Rent/House Payment $ permonth 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
| hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that | am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
day of , 20
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV 11/15) RDA 11082