The opinion
FILED
Mar 10, 2020
03:00 PM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT CHATTANOOGA
Robert Cummings, ) Docket No. 2017-01-0748
Employee, )
V. )
American Medical Response of ) State File No. 23571-2017
Tennessee, Inc., )
Employer, )
And ) Judge Audrey Headrick
Indemnity Ins. Co. of N. America, )
Carrier. )
EXPEDITED HEARING ORDER
Mr. Cummings asked the Court to order American Medical to authorize the back
surgery recommended by Dr. Jay Jolley and reinstate his temporary disability benefits.
For the reasons below, the Court orders American Medical to provide the surgery and
additional temporary disability benefits.
History of Claim
The facts of this case are undisputed. Mr. Cummings injured his back on March 8,
2017, while lifting a patient. Dr. Jolley, his panel-selected physician, later performed two
laminectomy surgeries. Despite those surgeries, Mr. Cummings remained in constant,
daily pain. Due to the “severity of persistent [right lower extremity] radicular pain,”
“weakness and numbness in both feet,” and, “instability L4-S1,” Dr. Jolley recommended
a fusion surgery on May 5, 2019.
American Medical submitted the surgical recommendation for utilization review
(UR), and the reviewing physician found the procedure not medically necessary under the
Official Disability Guidelines. The Bureau’s assistant medical director upheld the UR
denial for the same reason.
In response to the denial, Dr. Jolley stated that his “request for surgery falls within
the treatment guidelines and is absolutely medically necessary.” Dr. Jolley explained that
Mr. Cummings’s severe, worsening radiculopathy, unfruitful conservative treatment, and
unsuccessful discectomies warranted the recommended surgery. Further, Dr. Jolley
concluded that, without the surgery, Mr. Cummings will need ongoing pain management
and lifelong follow-up care.
Dr. Jolley also addressed Mr. Cummings’s inability to work. He stated Mr.
Cummings remained temporarily totally disabled and was not yet at maximum medical
improvement (MMI). However, without the surgery, Dr. Jolley indicated that Mr.
Cummings reached MMI on July 16, 2019. Based on Dr. Jolley’s testimony, American
Medical stopped paying temporary total disability benefits on November 11.
Findings of Fact and Conclusions of Law
Standard Applied
Mr. Cummings must present sufficient evidence demonstrating he is likely to
prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1) (2019). The
Court holds he did.
Medical Benefits
The first issue is whether Mr. Cummings is entitled to the recommended surgery.
The Workers’ Compensation Law provides that American Medical must provide Mr.
Cummings with medical and surgical treatment ordered by Dr. Jolley, the authorized
treating physician, if it is reasonably necessary for the work-injury. Tenn. Code Ann. §
50-6-204(a)(1)(A). Any treatment recommended by Dr. Jolley “shall be presumed to be
necessary for treatment of the injured employee.”' Jd. at § 50-6-204(a)(3)(H).
To resolve this issue, the Court must determine if American Medical rebutted the
presumption of medical necessity attached to Dr. Jolley’s recommendation. Because Dr.
Jolley recommended surgery for Mr. Cummings’s back, the law presumes that the
surgical treatment is medically necessary. This presumption is rebuttable by a
preponderance of the evidence.” Morgan v. Macy’s, 2016 TN Wrk. Comp. App. Bd.
' Tennessee Code Annotated 50-6-204(a)(3)(H) provides a presumption of medical necessity for “any
treatment recommended by a physician or chiropractor selected [from a panel] or by referral, if
applicable.”
* Dr. Jolley stated his “request for surgery falls within the treatment guidelines[.]” Aside from this
general statement, nothing indicated that Dr. Jolley’s surgical recommendation explicitly follows or is
reasonably derived from the ODG. Therefore, the presumption of medical necessity rebuttable by clear
and convincing evidence is inapplicable. See Tenn. Code Ann. § 50-6-124(h).
LEXIS 5, at *14 (Mar. 12, 2015). After reviewing the evidence, the Court holds it did
not.
Despite the presumption of medical necessity, the Workers’ Compensation Law
provides a UR system to consider any treatment recommended for the injured worker.
Tenn. Code Ann. § 50-6-124. UR provides an “evaluation of the necessity,
appropriateness, efficiency and quality of medical services . . . provided to an injured or
disabled employee based upon medically accepted standards and an objective evaluation
of the medical services provided[.]” Tenn. Comp. R. & Regs. 0800-02-06-.01(20) (June
2017). This is done with a record review by an “advisory medical practitioner” to
determine whether the proposed procedure is medically necessary. Id. at 0800-02-06-.03.
American Medical submitted Dr. Jolley’s surgical recommendation to UR. The
reviewing physician applied the guidelines and determined that the surgery was not
medically necessary, and the assistant medical director upheld the denial.
These physician decisions present the Court with conflicting medical opinions
about the reasonableness and necessity of the proposed surgery. A trial court has the
discretion to choose which expert to accredit when there is a conflict of expert opinions.
Brees v. Escape Day Spa & Salon, 2015 TN Wrk. Comp. App. Bd. LEXIS 5, at *14
(Mar. 12, 2015). In evaluating conflicting expert testimony, a trial court may consider,
among other things, “the qualifications of the experts, the circumstances of their
examination, the information available to them, and the evaluation of the importance of
that information through other experts.” /d. Further, it is reasonable to conclude that the
physician “having the greater contact with [the injured worker] would have the advantage
and opportunity to provide a more in-depth opinion, if not a more accurate one.” Orman
v. Williams Sonoma, Inc., 803 S.W.2d 672, 677 (Tenn. 1991).
Considering the various opinions, Dr. Jolley treated Mr. Cummings conservatively
after performing two laminectomies and relied upon his observations and findings to
conclude that Mr. Cummings needed surgery based upon his severe, worsening pain and
radiculopathy. The reviewing physician, on the other hand, performed a one-time record
review and relied upon the treatment guidelines in denying the recommendation. After
learning of the UR denial, Dr. Jolley stood by his recommendation and explained that the
surgery is medically necessary.
The Court has “authority to assess the validity of the utilization review reports and
determine the relative weight to be given those physicians’ opinions as well as other
expert medical opinions.” Venable v. Superior Essex, Inc., 2016 TN Wrk. Comp. App.
Bd. LEXIS 56, at *9 (Nov. 2, 2016). After considering the conflicting medical opinions,
the Court finds that the reviewing physician’s opinion is insufficient to overcome the
presumption of correctness afforded Dr. Jolley’s opinion. Therefore, the Court holds Mr.
Cummings is likely to prevail at a hearing on the merits in proving that he is entitled to
the surgery.
Temporary Disability Benefits
The next issue is whether Mr. Cummings is entitled to additional temporary total
disability benefits. To recover these benefits, Mr. Cummings must prove (1) he became
disabled from working due to a compensable injury; (2) a causal connection between the
injury and his inability to work; and (3) the duration of his disability. Jones v. Crencor
Leasing and Sales, TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11, 2015).
Here, Dr. Jolley stated that Mr. Cummings remains temporarily totally disabled
due to his work injury, and he is not yet at MMI until after undergoing the recommended
surgery. Since the Court is ordering American Medical to provide the surgery, it must
also reinstate Mr. Cummings’s temporary disability benefits. Therefore, the Court holds
Mr. Cummings is likely to prevail at a hearing on the merits in proving that he is entitled
to temporary total disability benefits from November 12 forward.
IT IS, THEREFORE, ORDERED as follows:
1. American Medical shall provide Mr. Cummings additional medical treatment for
his back injury with Dr. Jolley, including the recommended surgery, under
Tennessee Code Annotated section 50-6-204.
2. American Medical shall pay past-due temporary total disability benefits at the
agreed weekly compensation rate of $410.11 in the lump-sum amount of
$7,030.46.
3. American Medical shall continue to pay temporary total disability benefits until
Mr. Cummings is no longer eligible for those benefits.
4. This case is set for a Status Hearing on Tuesday, May 19, 2020, at 10:00 a.m.
Eastern Time. The parties must call (423) 634-0164 or toll-free at (855) 383-
0001 to participate. Failure to call might result in a determination of the issues
without the party’s participation.
5. 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 Employer or Carrier must submit confirmation of compliance with this Order
to the Bureau by email to WCCompliance.Program@tn.gov no later than the
*The parties stipulated that Mr. Cummings’s average weekly wage is $615.13.
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 noncompliance.
6. For questions regarding compliance, please contact the Workers’ Compensation
Compliance Unit via email at WCCompliance.Program(@tn.gov.
ENTERED March 10, 2020.
JUDGE AUDREY) A. HEADRICK
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Mr. Cummings’s Records Index:
a. Affidavit of Robert Cummings
b. Affidavit of Jay Jolley, M.D.
c. Medical records of Dr. Jolley
d. Operation Record of Dr. Jolley
2. American Medicals’s Exhibits:
a. Peer review report
b. Medical Director’s report
c. Medical Director’s supplement to the ODG
3. Printout of last TTD check payment
Technical record:
1. Order Referring Claim to Mediation
2. Petition for Benefit Determination
3. Agreed Order
4. Dispute Certification Notice
5. Request for Expedited Hearing
6. Notice of Expedited Hearing
7. Employee’s Brief Supporting Petition for Benefit Determination
8. Employer’s Brief Denying Petition for Benefit Determination
9. Employee’s Motion to Amend Dispute Certification Notice
10.Employer’s Response to Employee’s Motion to Amend Dispute Certification
Notice
11.Employer’s Supplemental Exhibit to Benefit Determination Hearing
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on March 10, 2020.
Name Certified Email | Service sent to:
Lew Belvin, x lew.belvin@mcmahanlawfirm.com
Tim Henshaw, x tim@memahanlawfirm.com
Employee’s Attorneys
Fred Clelland, xX fclelland@raineykizer.com
Employer’s Attorney
Pecan tats N |prmaae | op
PENNY SHRUM, COURT CLERK
we.courtclerk@tn.gov
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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:
L.
Complete the enclosed form entitled: “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.
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.
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.
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: (ja
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.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www. tn.eov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.:;
State File No.:
Date of Injury:
Employee
Vv.
Employer
Notice is given that
[List name(s) of ail appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
O Expedited Hearing Order filed on QO Motion Order filed on
D Compensation Order filed on O Other Order filed on
issued by Judge
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Parties
Appellant(s) (Requesting Party): 0 Employer[_jEmployee
Address: Phone:
Email:
Attorney's Name: BPR#:
Attorney’s Email: Phone:
Attorney’s Address:
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
Employee Name: Docket No.+ Date of Inj.:
Appellee(s) (Opposing Party): Lj Employer Employee
Appellee’s Address: Phone:
Email:
Attorney’s Name: BPR#:
Attorney's Email: . Phone}:
Attorney’s Address:
* Attach an additional sheet far each additional Appellee *
CERTIFICATE OF SERVICE
I, , certify that | have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the day of , 20 7
. [Signature of appeliant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082
Tennessee Gureau of Workers’ Compensation
220 French Landing Drive, |-B
Nashville, TN 37243-1002
800-332-2687
AFFIDAVIT OF INDIGENCY
, having been duly sworm according to law, make oath that
because of my poverly, | 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:
3. Telephone Number: .
5. Names and Ages of All Dependents:
2. Address:
4. Date of Birth:
Relationship;
Relationship:
Relationship:
Relationship:
6. | am employed by:
My employer's address is:
My employer's phone number is:
7. My present monthly household income, after fedetal income and social security taxes are deducted, is:
$
B. | receive or expect to receive money from the follawing sources;
AFDC $ per month beginning
SSsi $___ sper 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 $ pet month School Supplies $ ___ per month
Water $ per month Clothing $ per month
Gas $ per month Child Care $ per month
Trangportation $ per month Child Support $. per month
Car $ per month
Other $ per month (describe: }
10. Assets:
Automobile $ (FMV)
Checking/Savings Acct. §
House $ (FMV).
Other $ Describa:
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 casts of thia appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
day of ,20
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV | 1/15) RDA 11082