The opinion
FILED
Jun 18, 2021
02:37 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT JACKSON
ROBERT GREVE, ) Docket No. 2018-07-0621
Employee, )
v. )
SOUTHERN INTEGRATED )
SERVS., ) State File No. 55332-2018
Employer, )
and )
BRIDGEFIELD CASUALTY INS. )
CO., ) Judge Allen Phillips
Carrier. )
EXPEDITED HEARING ORDER DENYING MEDICAL BENEFITS
This case came before the Court for an Expedited Hearing on June 10, 2021. Mr.
Greve requested that the Court order Southern to pay for a surgery recommended by the
authorized treating physician. Southern argued the requested surgery was neither causally
related to the alleged injury nor medically necessary. For the following reasons, the Court
holds Mr. Greve is not entitled to the requested surgery at this time.
History of Claim
On July 20, 2018, Mr. Greve lifted a piece of iron and felt pain in his neck, left
shoulder, and left arm. He sought treatment on his own from orthopedic surgeon Dr.
Raymond Gardocki. 1 Dr. Gardocki obtained an MRI that revealed anatomic findings at
the C5/6 and C6/7 levels of Mr. Greve’s spine, including what he called a C6/7 herniated
disc. Dr. Gardocki recommended an anterior cervical discectomy and fusion (ACDF)
surgery at the C5/6 and C 6/7 levels.
1
The parties did not enter these records into evidence, so the Court gleans this information from the
medical depositions.
1
Mr. Greve stopped seeing Dr. Gardocki after choosing orthopedic surgeon Dr.
Samuel Murrell from a panel provided by Southern. He first saw Dr. Murrell on
December 12, 2018. Testifying by deposition, Dr. Murrell said he reviewed the MRI and
agreed it showed a disc lesion at C 6/7. Dr. Murrell “felt” Mr. Greve sustained an injury
on July 20 by history, and he said the disc lesion was “consistent” with Mr. Greve’s
symptoms.
Dr. Murrell recommended an EMG to test for ongoing radiculopathy. The EMG
was positive, but for a C8 level radiculopathy rather than one at C6. He said it was
“somewhat difficult” to explain the EMG findings given the MRI, so he recommended a
myelogram. That test confirmed the MRI findings at C/5-6 and C/6-7 and, based on those
findings, Dr. Murrell agreed with Dr. Gardocki that Mr. Greve should undergo the
ACDF. As to causation, Dr. Murrell was asked whether the “surgical procedure was
related to the lifting incident at work.” He replied, “I felt it was given the history and the
records provided.”
Southern requested a Utilization Review (UR) of Dr. Murrell’s recommendation.
Dr. Robert Greenberg, an orthopedic surgeon, stated in a report that the ACDF procedure
was neither medically necessary nor appropriate. Specifically, he said there was no
documentation of a C6/7 radiculopathy based on the objective findings, and the EMG
report of a C8 radiculopathy, “would not be affected by an ACDF at the C5/6 or C6/7
levels.” Dr. Greenberg extensively quoted the ODG 2 guidelines as to why the ACDF did
not meet the criteria supporting the procedure.
Dr. Murrell expressly disagreed with Dr. Greenberg. He asserted that Dr.
Greenberg does not perform spinal surgery and did not review all of Mr. Greve’s records.
Further, in an office note, Dr. Murrell wrote without elaboration that Dr. Greenberg cited
“indications from the DG [sic] guide which are not relevant but appear to be a cut and
paste process for generic indications.” During his deposition, Dr. Murrell maintained his
disagreement with Dr. Greenberg and said he would still perform the ACDF if Mr. Greve
had similar findings and wanted to proceed.
Southern also obtained an evaluation from orthopedic surgeon Dr. Bret Sokoloff,
who examined Mr. Greve and reviewed the MRI, EMG, and myelogram. He believed Mr.
Greve had “significant cervical pathology” but thought it was “primarily degenerative in
nature.” As to any work relation, Dr. Sokoloff said the pre-existing disease “may have
been aggravated by heavy lifting,” but he quantified the relation as “not ˃ 51%
originating from the reported lifting injury at work.” He thought the recommended
2
“ODG” refers to the Work Loss Data Institute ODG Guidelines as published by the Work Loss Data
Institute. “Any utilization review of treatment must apply the ODG Guidelines . . . in determining whether
treatment is medically necessary[.]” Tenn. Comp. R. & Regs. 0800-02-25-.03 (2018).
2
surgery should be covered under Mr. Greve’s regular insurance “as the primary cause for
the surgery is his degenerative spine.”
Southern obtained another evaluation from neurosurgeon Dr. Laverne Lovell. He
felt the degenerative changes were “more or less consistent with the patient’s age.” He
did not believe the changes seen at C5/6 and C6/7 were severe enough to account for Mr.
Greve’s arm pain and also thought the EMG findings at the C8 level were unrelated to
any problems at C5/6 and C6/7. For clarity, he recommended another EMG to rule out a
peripheral nerve problem. That EMG was normal, showing neither peripheral nerve
issues nor radiculopathy.
Dr. Lovell concluded that he did not “think [Mr. Greve] had a cervical spine injury
at the workplace.” As to the recommended surgery, he testified that he did not believe
Mr. Greve had a surgical lesion at the proposed C5/6 and C6/7 levels, and surgery would
be of no benefit.
Mr. Greve testified he is “getting worse,” describing continued symptoms of
radiating pain in his left arm and shoulder when he lifts or uses the arm. He said he
sometimes cannot feel his fingers, and that he often cannot close them to grip. He wants
Dr. Murrell to perform the recommended surgery.
He argued that Dr. Murrell’s surgery recommendation is presumed correct under
Tennessee Code Annotated section 50-6-204(a)(1)(H) (2020) because he is the authorized
treating physician chosen from a panel. He further contended that section (a)(1)(I)
requires Southern to rebut the recommendation by clear and convincing evidence. He
noted Dr. Gardocki agreed he needed surgery and, though he did not object to its
admission, argued the UR report was “hearsay.”
For its part, Southern agreed with Mr. Greve that it must overcome the surgical
recommendation by clear and convincing evidence. Southern claimed it did, citing Dr.
Sokoloff’s opinion that the need for surgery was unrelated to the injury, Dr. Lovell’s
opinion that surgery was unnecessary, and the UR physician’s opinion that the surgery
did not comply with the ODG guidelines. Southern noted that neither Dr. Murrell nor Mr.
Greve appealed the UR determination.
Findings of Fact and Conclusions of Law
At this Expedited Hearing, Mr. Greve must prove he would likely prevail at a
hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(1). However, this lesser
evidentiary standard does not relieve him of producing evidence that his injury arose
primarily out of his employment at Southern; instead, it only allows some relief if his
evidence does not rise to a “preponderance.” Buchanan v. Carlex Glass Co., 2015 TN
Wrk. Comp. App. Bd. LEXIS 39, at *6 (Sept. 29, 2015).
3
Both parties focused their arguments on the presumption afforded Dr. Murrell’s
opinion and the degree of evidence needed to rebut it. However, the case turns on a more
basic analysis, one focused on Dr. Murrell’s opinion itself.
Namely, an injury is compensable only if it arises primarily out of the
employment. Tenn. Code Ann. § 50-6-102(14). Further, an injury causes the need for
medical treatment only if it is shown to a reasonable degree of medical certainty to have
contributed more than fifty percent in causing the need. Tenn. Code Ann. § 50-6-
102(14)(C). A physician’s opinion on those issues need not use the specific causation
language of the statute, but it must sufficiently satisfy the statutory requirements.
Panzarella v. Amazon.com, Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 30, at *14 (May
15, 2017).
Dr. Murrell testified that he “felt” Mr. Greve sustained an injury, and he “felt” the
surgical procedure was “related to” it. In Joiner v. UPS, 2018 TN Wrk. Comp. App. Bd.
LEXIS 54, at *23 (Sep. 24, 2018), the Appeals Board held a doctor’s testimony that a
condition is “related to” an event, “does not offer a measure of the ‘contribution’ that the
employment provided to the injury or to the need for medical treatment, and it does not
indicate whether such contribution was ‘more than fifty percent (50%).’” The physician
in Joiner was not asked “the measure of contribution” of the employment to the injury,
and he did not say whether the employment contributed more than fifty percent to the
need for surgery. The same is true here. Dr. Murrell was not asked the degree to which
the employment caused Mr. Greve’s injury or whether his work contributed more than
fifty percent in causing the need for surgery.
The Joiner decision was an appeal from a compensation hearing. However, the
Board has considered the same causation testimony at the expedited hearing stage. In
Miller v. Old Folks Mission Center, Inc., 2019 TN Wrk. Comp. App. Bd. LEXIS 1, at
*13 (Jan. 9, 2019), the treating physician also stated that he “considered Employee’s
condition to be a ‘work-related injury.’” The Board found that, “[w]hile such a statement
does not satisfy the standard of proof applicable at a compensation hearing, when
considered with other evidence presented at the expedited hearing, it supports the trial
court’s determination that Employee is ‘likely to prevail’ on this issue at trial.” Id.
(Emphasis added).
Here, the converse is true: the “other evidence” does not support a determination
that Mr. Greve would likely prevail at trial. To the contrary, three other physicians
expressed an opinion that the recommended surgery was either unnecessary, unrelated to
the injury, or contrary to the ODG guidelines. Thus, under the evidence presented, the
Court cannot order Southern to pay for the surgery recommended by Dr. Murrell at this
time.
IT IS, THEREFORE, ORDERED AS FOLLOWS:
4
1. Mr. Greve’s request for the surgery recommended by Dr. Murrell is denied.
2. The Court sets a Status Hearing on Monday, July 19, 2021, at 10:00 a.m.
Central Time. The parties must call 731-422-5263 or toll-free at 855-543-5038 to
participate in the Hearing. Failure to call might result in a determination of any
issue without the party’s participation.
ENTERED June 18, 2021.
______________________________________
JUDGE ALLEN PHILLIPS
Court of Workers’ Compensation Claims
APPENDIX
Exhibits
1. Deposition of Dr. Samuel Murrell
2. Deposition of Dr. Laverne Lovell
3. Medical records of Dr. Bret Sokoloff
4. Collective medical records of Dr. Lovell, EMG report, Dr. Murrell, Utilization
Review Denial, and Dr. Sokoloff report
Technical record
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Transfer Order
5. Notice of Expedited Hearing
6. Employee’s Pre-Hearing Brief
7. Employer’s Pre-Hearing Brief
8. Employer’s Exhibit List
9. Employee’s Exhibit List
10. Employer’s Additional Exhibit List
5
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on June 18, 2021.
Name Via Email Service Sent To:
Jeffrey P. Boyd, X jboyd@borenandboyd.com
Employee’s Attorney ataylor@borenandboyd.com
Meredith Weaver, X meredith.weaver@petersonwhite.com
Employer’s Attorney Beverly.uphoff@petersonwhite.com
______________________________________
Penny Shrum, Court Clerk
Wc.courtcler@tn.gov
6
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
v.
___________________________________________________________________________
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):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ 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 *
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 I 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