The opinion
FILED
May 24, 2019
08:50 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT KNOXVILLE
TONYA LYNN STEPHENS, ) Docket No.: 2018-03-1494
Employee, )
V. )
QUALITY PRIVATE CARE d/b/a ) State File No. 59534-2016
VOLUNTEER STAFFING, INC., )
Employer, )
And )
BRIDGEFIELD CASUALTY ) Judge Lisa A. Lowe
INSURANCE COMPANY, )
Carrier. )
EXPEDITED HEARING ORDER GRANTING BENEFITS
DECISION-ON-THE-RECORD
This matter came before the Court on Ms. Stephens’s Request for Expedited
Hearing (REH). She asked that the Court issue its decision based on a review of the
record without convening an in-person hearing. Quality Private Care (QPC) objected to a
record review and requested an in-person hearing. Based on the limited medical issues
involved, the Court overruled the objection, issued a Docketing Notice, and gave the
parties until May 7 to file objections and/or position statements.
When Ms. Stephens filed her REH, she sought various treatments ordered by her
authorized treating physician, Dr. David Newman, including: medial branch blocks;
spinal cord stimulator; right shoulder injection; G.I. evaluation; and compounded creams.
After she filed the REH, QPC agreed to authorize all of the treatments except the
compound creams. Therefore, the legal issue is whether Ms. Stephens is likely to prevail
at a hearing on the merits in proving entitlement to the compounded creams. For the
reasons set forth below, the Court holds Ms. Stephens would likely prevail and orders
QPC to provide the compound creams.
History of Claim
QPC provided in-home nursing for homebound patients and employed Ms.
Stephens as a Licensed Practical Nurse. While transferring a patient to a bed in August
2016, Ms. Stephens felt a pop in her left shoulder and experienced pain shooting down
her left arm into her wrist and fingers. She also felt pain in her neck, back, left hip, and
pain and numbness down her left lower extremity. Ms. Stephens notified her supervisor
and wrote a statement that day. She also completed QPC’s Statement of Injured
Worker’s Form.
Ms. Stephens initially underwent conservative treatment, but after continued pain
and an MRI, QPC provided a panel of orthopedic surgeons. Ms. Stephens chose Dr.
William Hovis, who diagnosed her with a rotator cuff tear and SLAP lesion. He
recommended surgery, which he performed in November. Due to Ms. Stephens’s post-
surgery pain complaints, Dr. Hovis ordered a left shoulder arthrogram and performed
another surgery after reviewing the arthrogram results.
After the second surgery, Ms. Stephens experienced sensitivity symptoms, and Dr.
Hovis diagnosed possible complex regional pain syndrome (CRPS). He recommended a
stellate ganglion block, and Ms. Stephens underwent two of those without much
improvement. After Dr. Hovis recommended a third block, Ms. Stephens refused and
elected to concentrate on physical therapy. She last saw Dr. Hovis in November 2017,
and he referred her for evaluation with a shoulder specialist, Dr. Sean Grace.
Dr. Grace, sent Ms. Stephens for another shoulder MRI. After the MRI, Dr. Grace
diagnosed Ms. Stephens with CRPS and recommended evaluation with Dr. Robert
Lavelle for possible sympathetic nerve blocks.
Instead of scheduling an appointment with Dr. Lavelle, QPC circulated another
panel of physicians. Ms. Stephens chose Dr. David Newman, a pain management
specialist, as her authorized physician. Dr. Newman evaluated Ms. Stephens and
confirmed her diagnoses of CRPS, lumbar facet syndrome, and dysthymic disorder. As
part of his treatment plan, he prescribed various things, including the following
compounded creams: Gabapentin, 3%; Ketoprofen, 2%; Lidocaine, 2.5%; Bupivicaine,
2.5%; and Ketamine, 15%.
On April 18, 2018, QPC submitted Dr. Newman’s orders to Utilization Review
(UR) with Dr. Mahajan, who denied the recommended treatment based on his opinion
that Ms. Stephens did not have CRPS. Concerning the compounded creams, Dr. Mahajan
noted that topical analgesics are largely experimental and have few trials to determine
efficacy and safety. Further, he stated that the compounded creams are primarily
recommended when trials of antidepressants and anticonvulsants have failed and there
was no indication that the Gabapentin and Cymbalta Ms. Stephens took had failed. On
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September 18, 2018, QPC submitted the compounded creams to UR for a second time.
Again, Dr. Mahajan found the compounded creams not medically necessary.
Dr. Neman somewhat disagreed with the effectiveness of the Cymbalta. In
response to a letter, he wrote that Ms. Stephens’s Cymbalta helped with anxiety and sleep
but not her pain and that the compounded cream plus her Cymbalta is an effective
medication combination for CRPS.
Later, Dr. Newman again recommended a spinal cord stimulator trial, right-
shoulder steroid-injection, compounded creams and GI evaluation. QPC submitted the
spinal cord stimulator treatment to UR on January 2, 2019, and this time Dr. Mahajan
said Ms. Stephens had symptoms consistent with CRPS and that the previously denied
spinal cord stimulator trial was now medically necessary and appropriate. Dr. Mahajan’s
report did not address the medical necessity of Dr. Newman’s other recommended
treatment.
Findings of Fact and Conclusions of Law
Ms. Stephens need not prove every element of her claim by a preponderance of the
evidence to obtain relief. McCord v. Advantage Human Resourcing, 2015 TN Wrk.
Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). Instead, she must present
sufficient evidence to prove she is likely to prevail at a hearing on the merits. Jd.; Tenn.
Code Ann. § 50-6-239(d)(1) (2018).
Tennessee Code Annotated section 50-6-204(a)(1)(A) provides that “[t]he
employer or the employer’s agent shall furnish, free of charge to the employee, such
medical and surgical treatment . . . made reasonably necessary by accident as defined in
this chapter.” Moreover, “treatment recommended by a physician . . . selected pursuant
to [§ 50-6-204(a)(3)] or by referral, if applicable, shall be presumed to be medically
necessary for treatment of the injured employee Tenn. Code Ann.§ 50-6-204(a)(3)(H). . .
and shall be rebuttable only by clear and convincing evidence that the recommended
treatment substantially deviates from the guidelines[.]” Tenn. Code Ann. § 50-6-
204(a)(3)(1); see also Morgan v. Macy’s, 2016 TN Wrk. Comp. ADB: Bd. LEXIS 39, at
*17 (Aug. 31, 2016).
Here, the panel-selected physician, Dr. Newman, recommended compounded
creams to treat Ms. Stephens’s symptoms. The UR physician, Dr. Mahajan, originally
denied all of Dr. Newman’s treatment recommendations, including the compounded
creams, because he did not think Ms. Stephens had CRPS, despite the CRPS diagnosis
from Drs. Newman, Hovis, and Grace. Upon resubmission, Dr. Mahajan changed his
mind and found Ms. Stephens did have CRPS. While he agreed that certain treatments
were medically necessary, he did not address the compounded creams.
The Court faces conflicting medical opinions from Dr. Mahajan and Dr. Newman.
A trial judge “has the discretion to conclude that the opinion of one expert should be
accepted over that of another expert.” Bass v. The Home Depot U.S.A., Inc., 2017 TN
Wrk. Comp. App. Bd. LEXIS 36, at *9 (May 26, 2017). As stated by the Tennessee
Supreme Court, “When 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) (internal
quotation marks omitted).
Dr. Mahajan reviewed Ms. Stephens’s medical records and consulted treatment
guidelines but never personally evaluated her. In contrast, Dr. Newman has been treating
Ms. Stephens since April 13, 2018. Moreover, as the panel-selected authorized treating
physician, Dr. Newman’s treatment recommendations enjoy a presumption of being
medically necessary. The Court concludes Dr. Newman is in the better position to make
treatment recommendations for Ms. Stephens and that Dr. Mahajan’s April 18, 2018 UR
report fails to rebut those recommendations by clear and convincing evidence. In fact,
QPC did not ask Dr. Mahajan’s opinion about the compounded creams after he concluded
that Ms. Stephens does in fact have CRPS.
A UR denial decision remains effective for six months, which means Dr.
Mahajan’s second September 18, 2018 denial was in effect until March 18, 2019, under
Rule 0800-02-06.06 (7)(a) of the Tennessee Compilation Rules and Regulations. On
April 1, 2019, it appears that Dr. Newman again prescribed the compounded creams.
QPC did not provide a UR decision following that order. Therefore, Dr. Newman’s
compounded cream treatment-recommendation is presumed medically necessary.
Based on this, this Court concludes Ms. Stephens presented sufficient evidence
that she is likely to prevail at a hearing on the merits in proving entitlement to the
recommended compounded creams.
IT IS, THEREFORE, ORDERED as follows:
1. Quality Private Care:shall provide Ms. Stephens with the compounded creams
recommended by Dr. David Newman.
2. This matter is set for a Scheduling Hearing on July 8, 2019, at 10:30 a.m.
Eastern Time. The parties must call (865) 594-0109 or (toll-free) (855) 383-0003
to participate in the Scheduling Hearing. Failure to appear by telephone 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
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a eS be -
7.
8.
9.
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.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.
ENTERED on May 24, 2019.
uae A Ws\u/
LISA A. LOWE, JUDGE
Court of Workers’ Compensation Claims
APPENDIX
The Court reviewed the following documents:
Petition for Benefit Determination
First Report of Work Injury
Dispute Certification Notice
Request for Expedited Hearing
Tonya Lynn Stephens’s Exhibit List
Affidavit of Tonya L. Stephens with handwritten statement and Summit’s
Statement of Injuries Form
Medical Records of Dr. William Hovis
Medical Records of Dr. Sean Grace
Medical Records of Dr. David Newman
10. Utilization Review Determination of Dr. Nakal Mahajan, dated April 18, 2018
11. Questionnaire to Dr. David Neman, dated November 7, 2018
12. Opinion of Dr. David Newman, dated December 5, 2018
13. Correspondence of Attorney Kohlbusch
14. January 3, 2019 Utilization Review Determination of Dr. Nakal Mahajan
15. Affidavit of Attorney Jay Kohlbusch
16. QPC’s Objection to Request for Decision on the Record
17. Order Overruling Objection to On-The-Record Determination
18. QPC’s Amended Objection to On-The-Record Determination
19. Response to QPC’s Amended Objection, including Ms. Stephens’s Request for
Attorney’s Fee
20. Order Overruling Amended Objection to On-The-Record Determination
21.QPC’s Response to Expedited Hearing Brief
22. Table of Contents for and various medical records provided by QPC
23. Amended Docketing Notice for On-The-Record Determination
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24.Employee’s Response to Employer’s Expedited Hearing
CERTIFICATE OF SERVICE
I 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 May 24, 2019.
Amy Brown,
Employer’s Attorneys
Name Certified | Fax | Email | Service sent to:
Jay Kohlbusch, Xx Kohlbuschlaw@hotmail.com
Employee’s Attorney
Nicholas J. Peterson, x nick.peterson@petersonwhite.com
amy.brown@petersonwhite.com
Ling ll eames
PENNY %FiRUM, Court Clerk
WC.CourtClerk@tn.gov
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. If a 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 ten
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.
LB-1099
EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers’ Compensation
www. tn.gov/labor-wid/weomp.shtml
wce.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]
L] Temporary disability benefits
L] Medical benefits for current injury
LC Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): At Hearing: LJEmployer LJEmployee
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 *
rev. 10/18 Page 1 of 2 RDA 11082
Employee Name: SF#: DOI:
Appellee(s)
Appellee (Opposing Party): At Hearing: L]JEmployer LJEmployee
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,
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
, certify that | have forwarded a true and exact copy of this
[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
I, , 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.
1. Full Name: 2. Address:
3. Telephone Number: 4. Date of Birth:
5. Names and Ages of Ail Dependents:
Relationship:
Relationship:
Relationship:
Relationship:
6. lam employed by:
My employer’s address is:
My employer’s phone number is:
7. 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 I 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