The opinion
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
BOB WALLS, ) Docket No.: 2019-05-0371
Employee, )
V. )
)
UNITED TECHNOLOGIES CORP., ) State File No.: 57369-2018
Employer, )
)
And )
)
NEW HAMPSHIRE INS. CO., ) Judge Dale Tipps
Carrier. )
ORDER GRANTING MEDICAL BENEFITS
This case came before the Court on February 24, 2021, for a Hearing under
Tennessee Code Annotated section 50-6-204(g)(2) (2020). The central legal issue is
whether Mr. Walls is entitled to left-hip surgery recommended by his authorized treating
doctors. Mr. Walls also seeks attorney fees. For the reasons below, the Court holds that
Mr. Walls established entitlement to the requested medical benefits. However, he is not
entitled to attorney fees.
History of Claim
Mr. Walls suffered work-related injuries to his left shoulder and left hip on July 25,
2018. United Technologies Corporation (UTC) provided benefits, including medical
treatment with authorized treating physician Dr. Jeffrey Adams. In November 2018, Dr.
Adams placed Mr. Walls at maximum medical improvement and assigned a permanent
impairment rating. The parties appeared before the Court for a settkement approval in
March 2019.
In addition to payment of permanent disability benefits, the settlement agreement
provided:
Employer agrees to pay for reasonable and necessary authorized future
medical expenses which are directly related to the subject injury, pursuant to
Tenn. Code Ann. 50-6-204. Dr. Adams shall be the designated authorized
treating physician for future care[.]
The Court approved the settlement after determining that the proposed terms secured to
Mr. Walls substantially the benefits to which he was entitled.
After the settlement, Mr. Walls sought additional treatment for his hip. An MRI in
September showed a tear of the gluteus medius tendon, and Dr. Adams recommended
surgical repair. UTC submitted the recommendation to utilization review (UR), where it
was reviewed by Dr. Reese Polesky. Dr. Polesky recommended non-certification of the
request because:
As per the guidelines, predictors for this type of surgery include abduction
power of a grade less than 4 and gait dysfunction. The evaluation of October
24, 2019 did not establish the grade or laterality of the noted weakness[.]
Additionally, gait dysfunction was not noted. Furthermore, this patient is a
69-year-old individual with advanced osteoarthritis noted in the bilateral
hips. This would render him a suboptimal candidate for surgery.
Mr. Walls appealed the non-certification to the Medical Director, who upheld the denial.
In January 2020, Mr. Walls returned to Dr. Adams for continuing symptoms of pain
in the left hip. Dr. Adams wrote:
I have once again re-reviewed x-rays as well as the MRI of his left hip. Once
again, he has very minimal degenerative changes of the hip. His MRI
showed a tear of this gluteus medius tendon, which is consistent with his
exam findings. He has not responded to two Cortisone injections or a course
of formal physical therapy. It has been over a year since his injury and his
pain is worsening. I have once again recommended a left hip gluteus medius
repair. However, his work comp as well as the TN Department of Labor has
denied this even with an appeal letter from me. Therefore, I have
recommended a second opinion[.]
Dr. William Kurtz provided the requested second opinion in April. After examining
Mr. Walls and reviewing the MRI, he noted 4/5 abductor strength and a gait disruption.
Dr. Kurtz concurred in Dr. Adams’s diagnosis and added: “He did not have any arthritis in
that left hip. MRI report did say moderate arthritis, but he had no subchondral edema and
no signs of arthritis to speak of in that left hip.” Dr. Kurtz felt a tendon repair was
reasonable, and he discussed the procedure with Mr. Walls, including that he would need
to be non-weightbearing for two or three months after the operation.
Mr. Walls returned to Dr. Kurtz in May, and he recommended surgery.! UTC
submitted the recommendation to UR, and Dr. Polesky again recommended non-
certification. He explained:
In the most recent report, the provider states that the MRI does not really
show any hip arthritis. However, this is not consistent with the radiologist’s
impression in the 9/19/19 left hip MRI report. The MRI report states that
there is advanced arthritis in the bilateral hip joints. The provider should
submit a current x-ray report from a radiologist to clarify this issue. Given
the patient’s age, and with the MRI report describing advanced arthritis in
the bilateral hip joints, the patient would be a suboptimal candidate for the
requested procedure.
This non-certification was also appealed, and the Medical Director upheld the denial,
stating: “It is suggested that since the fact in dispute is the presence or absence of
advance[d] osteoarthritis in the left hip, that a hospital or imaging center plain weight
bearing x-ray of the left hip should be obtained and the file should then be resubmitted to
the adjuster.”?
Dr. Kurtz gave a deposition a few months after the second UR denial. He repeated
the findings and recommendations in his office notes, confirmed that he reviewed Mr.
Walls’s MRI, and testified he found no significant arthritis. He continued:
He had great range of motion in his hip, which was — you know, that’s the
main indicator of arthritis. .. That’s the classic provocative symptom of hip
arthritis, and he did not have that. And therefore, I do not think that he had
hip arthritis and definitely not any symptomatic hip arthritis.
Dr. Kurtz disagreed with the second non-certification and said: “I don’t think his age has
anything to do with it. I mean his MRI findings were not significant nor his physical exam
findings significant for arthritis.”
Dr. Kurtz also confirmed that “this is a tough surgery to have.” He acknowledged
that the outcome is not as predictable as some other procedures and requires a long recovery
' Although Dr. Kurtz’s first treatment note states that he was seeing Mr. Walls for a second opinion, Mr.
Walls’s unrefuted testimony established that UTC asked him to treat with Dr. Kurtz because of his expertise
in hip injuries.
* The first UR appeal letter was signed by Dr. Robert Snyder, the Bureau’s Medical Director. The second
appeal letter was also signed by Dr. James Talmadge, Assistant Medical Director.
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period but added: “You’ve got to fix the abductor tendon or he’s always going to be in pain
and he’s always going to limp.”
Findings of Fact and Conclusions of Law
Medical Treatment
Tennessee Code Annotated section 50-6-204(g)(2) provides authority for the Court
to order specific medical benefits under a settlement agreement. Although this section does
not specify a burden of proof, Tennessee Code Annotated section 50-6-239(c)(6) provides,
“at a hearing the employee shall bear the burden of proving each and every element of the
claim by a preponderance of the evidence.” This includes the burden of showing the
necessity of the requested medical treatment.
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 that Dr. Adams and Dr. Kurtz are authorized
physicians. So, under Tennessee Code Annotated section 50-6-204(a)(3)(H), their surgical
recommendation is presumed medically necessary. Thus, the first question for the Court
is the proof necessary for UTC 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 gave two methods by which UTC might
rebut the presumption of necessity of the proposed surgery. 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. /d. at *19. Second, if the employee
does show 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. Id.
Dr. Polesky’s report stated that the ODG “is silent regarding gluteus medius tendon
repair,” and the parties offered no proof as to whether the treating doctors’ recommendation
“explicitly follows the treatment guidelines” or “is reasonably derived therefrom.”
Therefore, UTC need only rebut the medical necessity of Dr. Adams’s and Dr. Kurtz’s
recommendations by a preponderance of the evidence.
In this case, the primary evidence presented for rebuttal is the conflicting opinion of
Dr. Polesky. When “faced . . . with conflicting medical testimony,” the Court must
determine which expert opinion “should be accepted [and which opinion] contains the
more probable explanation.” Thomas v. Aetna Life and Cas. Co., 812 S.W.2d 278, 283
(Tenn. 1991). To do this, the Court should consider “the qualifications of the experts, the
circumstances of their examination, the information available to them, and the evaluation
of the importance of that information by other experts.” Orman v. Williams Sonoma, Inc.,
4
803 S.W.2d 672, 676 (Tenn. 1991). 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.” Jd. at 677.
The Court notes that Drs. Adams and Kurtz saw Mr. Walls on multiple occasions,
and they examined his hip at each visit. Based on their findings, they formulated an opinion
that surgery was reasonable and necessary treatment. Conversely, Dr. Polesky only
reviewed medical records; he never examined Mr. Walls. Similarly, it appears Dr. Polesky
only reviewed the radiology report and did not view the actual MRI, while both authorized
doctors reviewed and interpreted the MRI images themselves.
This last distinction is important because Dr. Polesky’s primary objection to the
surgery is based on the MRI report saying that Mr. Walls suffers from advanced arthritis
in the hip.* Because of this, Dr. Polesky felt Mr. Walls was not a surgical candidate.* Drs.
Adams and Kurtz, on the other hand, both reviewed the MRI images and stated that the
MRI did not show significant arthritis. Dr. Kurtz also testified that his physical
examination and testing supported that conclusion. After careful consideration of this
difference in the information available to the doctors, as well as the other factors in Orman,
the Court finds Dr. Polesky’s opinions to be less persuasive than those of the authorized
medical providers.
Regarding Dr. Talmage’s appeal letter, the Court agrees with the doctor that the fact
in dispute is the presence or absence of advanced osteoarthritis in the left hip. Unlike the
doctor, however, the Court cannot suggest or order an additional x-ray to try to resolve that
dispute. Instead, the Court is limited to evaluating the admitted evidence and determining
whether it supports a finding that UTC overcame the presumption of reasonableness and
necessity. The fact that additional testing might provide relevant information is not
evidence. Instead, as noted above, the only evidence of advanced osteoarthritis before the
Court is the MRI report, which is belied by Drs. Kurtz and Adams’s interpretation of the
MRI images and their physical examination of Mr. Walls.
Further, Tennessee law has long held that medical proof is not to be “read and
evaluated in a vacuum” but, instead “must be considered in conjunction with the lay
testimony of the employee as to how the injury occurred and the employee’s subsequent
condition.” Thomas, 812 S.W.2d at 283. The Court finds Mr. Walls testified credibly
regarding his physical condition and limitations. He did not appear to exaggerate his
+ Although the parties presented the issue as a question involving two UR denials, the Court questions
whether the first denial, which presumably became irrelevant after the treating doctor’s second surgical
recommendation, is properly before the Court. However, the Court need not decide that question because
Dr. Polesky’s first non-certification was based on the grounds that the surgical recommendation did not
establish the grade or laterality of Mr. Walls’s hip weakness or note any gait dysfunction. Dr. Polesky
noted that those deficiencies were corrected in Dr. Adams’s later surgical request, and he focused instead
on the issue of arthritis.
* Dr. Polesky also referenced Mr. Walls’s age, but because he said he would reconsider his decision if
additional x-rays were taken, it appears Mr. Wall’s age was not a primary factor in his non-certification.
5
complaints of pain, his demeanor was consistent with one who had endured pain for some
time, and his need for relief was believable. In the context of the authorized doctors’
recommendations, the Court finds his lay testimony supports the necessity of the
recommended surgery.
UTC argued that Dr. Polesky was a disinterested and board-certified doctor whose
review and determination adhered to the requirements of the UR program.” It contended
that it complied with its obligations under the UR program and maintained that:
“Employers and insurance carriers must be allowed to make these determinations based
upon a Utilization Review decision or the entire Utilization Review program would be
unnecessary.” UTC suggested that this case “expressly invites [the] Court to substitute its
own judgment and own opinions in the place of reasoned medical authority and
opinions[.]” It argued that the issue of medical necessity:
has already been decided by Dr. Snyder and Dr. Talmage in their medical
roles as the Medical Director and Assistant Medical Director, and
Employer/Carrier would respectfully request that this Honorable Court not
substitute its own judgment and own opinions for those of the State of
Tennessee’s Medical Director and Assistant Medical Director regarding
medical necessity.
(Emphasis in original).
UTC misapprehends the role of the Court in this situation. It does not substitute its
judgment for that of the Medical Director or any of the other qualified physicians in this
case. Rather, the Court must merely determine whether UTC has met its burden of proving,
by a preponderance of the evidence, that the statutory presumption of necessity has been
overcome. The deference to the superior expert knowledge of the medical professionals
urged by UTC is implicit in this process, but the Court cannot allow that deference to
interfere with its duty to evaluate all the medical opinions using the criteria in Morgan and
Orman.®
5 Both parties argued that the other’s doctors were biased, but neither party introduced any evidence to
support those allegations.
® To the extent UTC’s argument suggests the Court does not have or should not exercise jurisdiction in this
matter, the Court notes that it 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)() 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)() would be made meaningless.
6
In making its finding on the issue of medical necessity, the Court recognizes its
inability to formulate its own medical conclusions. Instead, it only considered the
conflicting evidence properly admitted into the record, namely, the findings and opinions
of the physicians. After careful analysis, the Court holds UTC has not rebutted the
presumption of medical necessity attached to Dr. Adams’s and Dr. Kurtz’s recommended
surgery by a preponderance of the evidence.
Attorney Fees
Tennessee Code Annotated section 50-6-226(d)(1)(A) empowers the Court to award
reasonable attorney fees and costs when an employer “fails to furnish appropriate medical,
surgical .. . treatment or care . . . to an employee provided for in a settlement[.]” In this
case, there is no dispute that UTC failed to furnish medical treatment provided for in a
settlement. The question for the Court, therefore, is whether attorney fees should be
awarded when the medical treatment at issue was denied by UR. The Court finds that they
should not.
As noted above, employers have 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. As required by Tennessee
Code Annotated section 50-6-124, the Bureau has established the process for doing so by
promulgating several rules. See Tennessee Compilation Rules and Regulations, Chapter
0800-02-06. UTC properly followed these procedures and made its decision to deny Mr.
Walls’s surgery based on the recommendations of the UR reviewer and later Medical
Director decisions.
Even though the Court has now found the UR records insufficient to overcome the
presumption of necessity, UTC’s actions were reasonable at the time and consistent with
the statute. It is unrealistic to expect UTC to authorize the recommended surgery after UR
twice noncertified it as unnecessary, and it would be incongruous and inequitable to
sanction UTC for not doing so. The Court, therefore, cannot grant the request for attorney’ s
fees.
IT IS, THEREFORE, ORDERED as follows:
1. UTC or its workers’ compensation carrier shall provide Ms. Walls reasonable and
necessary future medical benefits under Tennessee Code Annotated section 50-6-
204(a)(1)(A), including the left hip gluteus medius repair, with Dr. Kurtz as the
authorized physician.
2. UTC shall pay costs of $150 to the Court Clerk within five business days of this
order becoming final.
3.
4,
UTC shall file a Statistical Data Form (SD-2) with the Court Clerk within five
business days of the date this order becomes final.
Unless appealed, this order shall become final thirty days after issuance.
ENTERED February 26, 2021.
i
DALE TIPPS, JUDGE
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
WR wWNS
UTC’s Index of Medical Records
Mr. Walls’s Amended Notice of Filing Medical Records
Deposition of Dr. William Kurtz
Mr. Walls’s Notice of Filing Proposed Exhibits
March 5, 2019 Settlement Agreement and Order
Technical record:
WR wWNS
Petition for Benefit Determination
Dispute Certification Notice
Employee’s Witness and Exhibit List
Employee’s Pre-Trial Statement
Employer and Carrier’s Pre-Hearing Statement and Trial Brief
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on February 26, 2021.
Name Certified | Via Service Sent To
Mail Email
D. Russell Thomas, xX russthomas @thethomaslawfirm.com
Employee’s claudia @ thethomaslawfirm.com
Attorney
Kyle Cannon, X kcannon@ gwtclaw.com
Employer’s Attorney
byt { ag Hho
Me
PENNY SHRU MI, COURT CLERK
we.courtclerk @in.gov
Compensation Hearing Order Right to Appeal:
If you disagree with this Compensation Hearing Order, you may appeal to the Workers’
Compensation Appeals Board or the Tennessee Supreme Court. To appeal to the Workers’
Compensation Appeals Board, 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 thirty calendar days of the
date the compensation hearing order was filed. When filing the Notice of Appeal, you
must serve a copy upon the opposing party (or attorney, if represented).
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
altemative, you may file an Affidavit of Indigency (form available on the Bureau’s
website or any Bureau office) seeking a waiver of the filing 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 your 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. A licensed court
reporter must prepare a transcript and file it with the court clerk within fifteen calendar
days of the filing the Notice of Appeal. Alternatively, you may file a statement of the
evidence prepared jointly by both parties within fifieen calendar 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
of the evidence 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. After the Workers’ Compensation Judge approves the record and the court clerk transmits
it to the Appeals Board, a docketing notice will be sent to the parties. The appealing
party has fifteen calendar days after the date of that notice to submit a brief to the
Appeals Board. See the Practices and Procedures of the Workers’ Compensation
Appeals Board.
To appeal your case directly to the Tennessee Supreme Court, the Compensation Hearing
Order must be final and you must comply with the Tennessee Rules of Appellate
Procedure. If neither party timely files an appeal with the Appeals Board, the trial court’s
Order will become final by operation of law thirty calendar days after entry. See Tenn.
Code Ann. § 50-6-239(c)(7).
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/
wc.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):
CZ Expedited Hearing Order filed on CD Motion Order filed on
C1 Compensation Order filed on Oi 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): [o Employerl | Employee
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): [| 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]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082