The opinion
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
STACEY ELMORE, ) Docket No. 2020-05-0361
Employee, )
V. )
)
FEDERAL EXPRESS GROUND, ) State File No. 25334-2020
Employer. )
)
) Judge Dale Tipps
)
EXPEDITED HEARING ORDER GRANTING REQUESTED BENEFITS
This case came before the Court on November 5, 2020, for an Expedited Hearing
on whether Ms. Elmore is entitled to the spinal cord stimulator trial ordered by her
authorized physician. For the reasons below, the Court holds Ms. Elmore is entitled to the
requested benefits.
History of Claim
Ms. Elmore injured her left foot while working for FedEx on November 27, 2018.
FedEx accepted the claim and provided medical treatment and temporary disability
benefits, which it continues to pay. Ms. Elmore’s authorized podiatrist referred her to a
pain specialist when she developed complex regional pain syndrome in her foot and leg,
and Ms. Elmore began seeing Dr. Matthew Rupert.!
After treating Ms. Elmore for several months, Dr. Rupert recommended a spinal
cord stimulator trial in February 2020. According to Ms. Elmore, that recommendation
was denied by utilization review (UR). Counsel for both parties agreed that UR denied the
recommended treatment because of missing lab work and that the Medical Director upheld
' Although FedEx provided a panel of pain doctors, Ms. Elmore testified that the adjuster selected Dr.
Rupert as her authorized pain specialist. However, she is pleased with Dr. Rupert and wishes to continue
treating with him. The parties stipulated that Dr. Rupert is an authorized treating physician.
the denial on appeal.
Dr. Rupert addressed the denial in a letter noting that the primary reason for the
denial was a “lack of labs.” He explained, “These labs would not be obtained until we had
approval, otherwise they would likely need to be repeated.” He concluded, “The patient
fits all criteria for this service. These labs will be performed once approved and scheduled.
Labs cannot be performed sooner as protocol states these must be current and within 30
days of the scheduled procedure.”
Ms. Elmore requested that the Court order FedEx to provide the recommended trial.
FedEx contended that this would be “putting the cart before the horse,” as the labs must be
performed before UR could grant approval. It asked the Court to deny Ms. Elmore’s
request.
Findings of Fact and Conclusions of Law
For the Court to grant Ms. Elmore’s request, she must provide sufficient evidence
from which this Court might determine she is likely to prevail at a hearing on the merits.
See Tenn. Code Ann. § 50-6-239(d)(1) (2018); McCord v. Advantage Human Resourcing,
2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). This requires the
Court to examine whether she is likely to prove the medical necessity of the spinal cord
stimulator trial.
The Workers’ Compensation Law gives an employer the right to submit medical
treatment recommended by the authorized treating physician to UR for “evaluation of the
necessity, appropriateness, efficiency and quality of medical care services[.]” Tenn. Code
Ann. § 50-6-102(20). The parties agree Dr. Rupert is an authorized physician. So, under
Tennessee Code Annotated section 50-6-204(a)(3)(H), his recommendation for a spinal
cord stimulator trial is presumed medically necessary. The question for the Court then is
whether the UR denial is sufficient for FedEx to rebut this presumption.
The Appeals Board addressed this question in Morgan v. Macy’s, 2016 TN Wrk.
Comp. App. Bd. LEXIS 39 (Aug. 31, 2016). It detailed two distinct methods by which
FedEx might rebut the presumption of necessity of Dr. Rupert’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, 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, the employer must rebut the presumption of
medical necessity by clear and convincing evidence. /d.
The parties offered no proof as to whether Dr. Rupert’s recommendation “explicitly
follows the treatment guidelines” or “is reasonably derived therefrom.” Thus, the Court
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can only consider whether the evidence rebutted the medical necessity of Dr. Rupert’s
recommendation for the stimulator trial by a preponderance of the evidence.
Rule 0800-02-06-.01(12) defines “medical necessity” as services that are “[i]n
accordance with generally accepted standards of medical practice, including [the Bureau’s]
Treatment Guidelines.” Therefore, to determine whether the stimulator trial is medically
necessary, the Court must evaluate whether the recommended treatment falls within the
ODG or otherwise meets a generally accepted standard of practice. The parties agreed that
UR denied the claim because of a lack of labs. However, neither party moved the UR
report or appeal into evidence. Similarly, they offered no proof addressing the ODG or
standards of medical practice. Without that information, the Court is unable to evaluate
whether Dr. Rupert’s recommendation met those standards. The remaining question then
is whether the mere existence of the UR denial overcomes the presumption of medical
necessity.
This Court has “original and exclusive jurisdiction over all contested claims for
workers’ compensation benefits when the date of the alleged injury is on or after July 1,
2014.” Tenn. Code Ann. § 50-6-237. Further, the Court has statutory authority under
Tennessee Code Annotated section 50-6-238(a)(3) “to hear and determine claims for
compensation, to approve settlements of claims for compensation, to conduct hearings, and
to make orders, decisions, and determinations.” (Emphasis added). Finally, Tennessee
Code Annotated section 50-6-204(a)(3)(1) establishes the evidentiary standard for
overcoming a treating physician’s opinion regarding medical necessity. If the Court had
no authority to hear issues of medical necessity, then a party would have no avenue to argue
this evidentiary issue, and section 50-6-204(a)(3)(1) would be made meaningless.
Allowing the unexplained UR denial, without more, to overcome the presumption
of medical necessity, would have the same effect. This would prevent the Court from
applying the applicable standard of proof and making the determination in section 50-6-
238(a)(3). In other words, it would limit the Court’s jurisdiction in a manner inconsistent
with the statute. For this reason, the Court holds that proof of the requirements of the ODG
or the applicable standards of practice is necessary to overcome the presumption. As
FedEx did not provide this proof, Dr. Rupert’s recommendation is presumed medically
necessary. Ms. Elmore therefore appears likely to prevail at trial in establishing that she is
entitled to the recommended spinal cord stimulator trial.
IT IS, THEREFORE, ORDERED as follows:
1. FedEx shall provide Ms. Elmore with medical treatment made reasonably necessary
by her November 27, 2018 injury, including the spinal cord simulator trial ordered
by Dr. Rupert.
2. This case is set for a Status Hearing on March 31, 2021, at 9:00 a.m. Please call
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toll-free at 855-874-0473 to participate. Failure to call or appear might result in a
determination of the issues without your further participation. All conferences are
set using 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). 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 might result in a penalty assessment
for non-compliance. For questions regarding compliance, please contact the
Workers’ Compensation Compliance Unit via email at
WCCompliance.Program@tn. gov.
ENTERED November 18, 2020.
=) _ eas—____
(ADF >
“Ze, Z
Judge Dale Tipps
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Affidavit of Stacey Elmore
2. Employee Exhibit List (with medical records)
3. Employee’s Second Supplemental Exhibit List
4. Employee’s Supplemental Exhibit List
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Employee’s Statement of the Case
CERTIFICATE OF SERVICE
I certify that a copy of the Expedited Hearing Order was sent as indicated on
November 18, 2020.
Name Certified | Email | Service sent to:
Stephan Karr, Esq. x steve@flexerlaw.com
Employee Attorney
Byron Lindberg, Esq. x blindberg@hallboothsmith.com
Employer Attorney
MULE DD
LM
LM
Penny Shrunt/ Clerk of Court
Court of Workers’ Compensation Claims
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: “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
conceming 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.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
we.courtclerk@tn.gov | 1-800-332-2667
Docket No.:
State File No.:
Date of Injury:
Employee
Employer
Notice is given that
[List name(s) of all 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):
D Expedited Hearing Order filed on UO) Motion Order filed on
O Compensation Order filed on 0 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): ['Employer!” Employee
Address: Phone:
Email:
Attorney’s Name: BPR#:
Attorney’s Email: Phone:
Attorney’s Address:
* Attach an additional sheet for each additional Appellant *
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Employee Name: Docket No.: Date of !nj.:
Appellee(s) (Opposing Party): [| Employer |~ Employee
Appellee’s Address: Phone:
Email:
Attorney’s Name: BPR#:
Attorney’s Email: Phone:
Attorney’s Address:
* Attach an additional sheet for 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
[Signature of appellant or attorney for appellant]
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