The opinion
FILED
Sep 10, 2021
09:21 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
GELACIO JUAREZ MATUZ, ) Docket No. 2020-08-0071
Employee, )
v. )
TROXEL MANUFACTURING LP, ) State File No. 11920-2019
Employer, )
And )
AMERICAN CASUALTY CO. OF ) Judge Deana Seymour
READING, PA, )
Carrier. )
EXPEDITED HEARING ORDER
______________________________________________________________________
This case came before the Court on September 1, 2021, for an Expedited Hearing.
Mr. Matuz requested the Court order Troxel to pay for surgery recommended by his
former authorized physician or, alternatively, for an injection recommended by his
current authorized physician. Thus, the central legal issue is whether Mr. Matuz is likely
to prove at a hearing on the merits that he is entitled to the surgery or to the injection. 1
For the reasons below, the Court holds that at this time Mr. Matuz is not entitled to the
surgery but is entitled to the injection.
History of Claim
Mr. Matuz claimed injury to his low back while working in Troxel’s warehouse on
February 1, 2019. Troxel accepted the claim and authorized treatment with orthopedic
surgeon Dr. Raymond Gardocki. 2
1
The Court originally set an Expedited Hearing for July 29, 2020. After two continuances, the parties
filed a Notice of Compromise, and the Court removed the hearing from its docket. Later, Mr. Matuz filed
a motion to enforce the compromised agreement, and the Court reset the case for this Expedited Hearing.
2
Although no panel form was admitted into evidence, the parties agreed that Mr. Matuz selected Dr.
Gardocki from a panel.
1
Dr. Gardocki saw Mr. Matuz for primarily left-sided low-back pain. He diagnosed
a degenerative L5-S1 disc and prescribed medication and physical therapy.
Physical therapy helped slightly, but Mr. Matuz’s back pain continued. Dr.
Gardocki ordered a lumbar MRI, which showed degeneration at L4-5 and L5-S1 with a
disc herniation on the left at L4-5 and stenosis at L5-S1. He believed the pain was
coming from both levels and performed epidural injections. Dr. Gardocki noted that if the
injections did not provide lasting pain relief, he would consider a two-level fusion or less
invasive discectomies at L4-5 and L5-S1.
Two months later, after further therapy and anti-inflammatories failed to resolve
Mr. Matuz’s back pain, Dr. Gardocki advised that surgery for two-level degenerative disc
disease “is something we want to avoid at all costs.” Dr. Gardocki referred Mr. Matuz to
a physiatrist in his clinic for more epidural injections since they had given him some
relief in the past. He advised that if they did not provide relief, he would see Mr. Matuz
back to consider surgery.
Troxel denied the injections, and Mr. Matuz returned to Dr. Gardocki requesting
surgery. Dr. Gardocki again told Mr. Matuz that “[a] two level lumbar fusion for two
level degenerative disc disease and a manual laborer who is 43 years old with mild disc
degeneration on the MRI is a terrible idea for an operation and not a good indication with
risk potentially making him worse.”
Dr. Gardocki attempted to identify the specific area of Mr. Matuz’s pain to
develop a conservative treatment plan. He ordered L4-5 and L5-S1 discograms to
pinpoint the specific location of the pain and an injection with bone marrow concentrate
aspirate for pain relief. Troxel sent these requests through utilization review, which
determined that the procedures were not medically necessary.
Mr. Matuz continued to see Dr. Gardocki for increased back pain radiating into his
left leg. Dr. Gardocki ordered a repeat MRI that showed progressive degeneration at L4-5
and L5-S1 with a superimposed large left disc extrusion at L4-5. Based on these findings,
Dr. Gardocki recommended a two-level fusion. He explained the two-level fusion was
“not my ideal way of going about this but the only other option I would have to offer him
since I can’t get the discograms. And I think they even denied an injection if I remember
correctly.” Dr. Gardocki then moved and did not see Mr. Matuz again.
After receiving Dr. Gardocki’s report, Troxel scheduled an employer’s
examination with orthopedic surgeon Dr. Samuel Murrell. Dr. Murrell agreed with the
utilization review denial of the discograms and the injection with bone marrow
concentrate aspirate to pinpoint and treat low back pain. He suggested consideration of a
diskectomy of the L4-5 herniated disk if the leg symptoms worsened. Dr. Murrell did not
recommend a two-level fusion because of Mr. Matuz’s young age, and “because I think
2
he would be addressing more underlying discogenic type back pain, which is known to
have a poor outcome, and I think it would probably be a disservice to him to recommend
it.”
With conflicting medical opinions concerning a treatment plan, and because Dr.
Gardocki left Mr. Matuz without an authorized physician, the parties designated
orthopedic surgeon Dr. Kirk Thompson as Mr. Matuz’s authorized treating physician. 3
The parties agreed that Dr. Thompson would address causation and provide a treatment
plan. Further, the parties agreed that Troxel’s carrier would authorize reasonable and
necessary medical care based on Dr. Thompson’s recommendations.
Mr. Matuz saw Dr. Thompson, complaining of severe, constant, and progressive
back pain as well as intermittent leg symptoms. Dr. Thompson reviewed the MRI, which
he found did not explain Mr. Matuz’s symptoms. Dr. Thompson recommended against
two-level fusion surgery, stating, “I have talked to him about the complications
associated with potential 2-level fusion surgery, adjacent level issues and the fact that he
has a low probability of getting symptomatic relief.” He referred Mr. Matuz to his
partner, Dr. Carlos Rivera-Tavarez, for pain management. He commented, “I think
frankly that is a far better option than 2-level fusion surgery. I think that hopefully with
some innovative strategies that we can provide, we can give him a measure of pain relief
and help him return to functional employment.” 4
Mr. Matuz saw Dr. Rivera-Tavarez, who recommended an L4-5 intradiscal
injection with bone marrow concentrate aspirate with local anesthesia under fluoroscopy,
and a spinal cord stimulator.
Troxel submitted Dr. Rivera-Tavarez’s recommendations to utilization review. At
utilization review, Dr. William Barreto determined that the Official Disability Guidelines
“do not recommend intradiscal steroid injections for low back conditions since they do
not improve the clinical outcome compared with placebo in patients with discogenic back
pain.” He explained that the guidelines do not contain recommendations for bone marrow
concentrate, so he consulted another article, which noted that “bone marrow concentrate
augmentation in this small randomized controlled trial failed to demonstrate positive
effects on autologous local bone graft in posterolateral lumbar fusion.” Based on this
research, Dr. Barreto concluded that the recommended injection was not medically
necessary.
Dr. Barreto also determined the spinal cord stimulator was not medically
necessary for treatment of discogenic back pain without evidence of neuropathic pain. He
3
The parties did not introduce any evidence that Mr. Matuz selected Dr. Thompson from a panel.
4
The parties did not introduce any evidence that Mr. Matuz selected Dr. Rivera-Tavarez from a panel.
3
noted that he found no evidence of radicular neuropathic pain, and Mr. Matuz had not
tried neuropathic drugs or undergone electrodiagnostic or imaging studies to confirm
radiculopathy.
Based on these recommendations, Troxel denied the requested injection but
authorized the spinal cord stimulator. Dr. Rivera-Tavarez inserted the spinal cord
stimulator but later removed it because it was ineffective. He then recommended long-
term chronic pain treatment.
At the hearing, Mr. Matuz was the only witness. He testified by an interpreter that
he continues to have persistent and increasing pain in his back and left leg, and
conservative treatment failed. Mr. Matuz explained that due to his pain, he cannot sleep,
enjoy his family, or work.
Mr. Matuz requested the Court order Troxel to provide the two-level fusion
surgery Dr. Gardocki recommended in May 2020 or provide the injection with bone
marrow concentrate aspirate, recommended by Dr. Rivera-Tavarez.
Troxel countered that Dr. Murrell and Dr. Thompson strongly opposed a two-level
fusion. Troxel contends that it rightfully denied the injection based on non-certification
by utilization review.
Findings of Fact and Conclusions of Law
At an Expedited Hearing, Mr. Matuz must show that he is likely to prevail at a
hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1) (2020); McCord v.
Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Mar. 27, 2015). Here, the issue is whether Mr. Matuz presented sufficient evidence to
prove the surgery, or the injection, is medically necessary. Tenn. Code Ann. § 50-6-204
(a)(1)(A).
The parties agreed that Dr. Gardocki, Dr. Thompson, and Dr. Rivera-Tavarez
provided authorized medical treatment. Dr. Gardocki ended his authorized treatment
when he moved. Neither Dr. Thompson nor Dr. Rivera-Tavarez were selected from a
proper panel under Tennessee Code Annotated section 50-6-204(a)(3). Thus, the opinions
of these two physicians are not presumed correct. See Tenn. Code Ann. § 50-6-
204(a)(3)(H).
Without the presumption of correctness, the Court must compare the opinions of
the physicians to determine medical necessity of the requested treatment. When presented
with different medical opinions, the Court has discretion to determine which opinion to
accept. Patterson v. Huff & Puff Trucking, 2018 TN Wrk. Comp. App. Bd. LEXIS 33, at
*9 (July 6, 2018). The Court may consider, among other things, “the qualifications of the
4
experts, the circumstances of their examination, the information available to them, and
the evaluation of the importance of that information by other experts.” Bass v. The Home
Depot U.S.A, Inc., TN Wrk. Comp. App. Bd. LEXIS 36, at *9 (May 26, 2017.)
The Court first considers Mr. Matuz’s request for surgery recommended by Dr.
Gardocki.
Applying the first of these factors, Dr. Gardocki, Dr. Thompson, and Dr. Murrell
are orthopedic surgeons. Dr. Gardocki’s and Dr. Murrell’s depositions included their
qualifications. Both physicians are qualified experts. Although the Court does not have
Dr. Thompson’s qualifications, neither party questioned his abilities. Thus, the Court
cannot find any determinative differences in their expert qualifications.
Considering the other factors, Dr. Gardocki treated Mr. Matuz from February 25,
2019, until May 2020. He diagnosed degenerative discs at L4-5 and L5-S1 with
herniation on the left L4-5 and stenosis at L5-S1. Dr. Gardocki recommended a
conservative treatment plan, since he believed the two-level lumbar surgical option was
“a terrible idea” for degenerative disc disease and “not a good indication with risk
potentially making him worse.”
When the initial conservative treatment failed to relieve Mr. Matuz’s pain, Dr.
Gardocki ordered a discogram to pinpoint the specific location of the pain and an
injection of bone marrow concentrate aspirate for pain relief. Troxel sent these requests
through utilization review, which were denied.
After the denial, Dr. Gardocki ordered a repeat MRI that showed worsening of Mr.
Matuz’s back, including a large disc extrusion. Based on these findings, Dr. Gardocki
recommended a two-level fusion, noting that, while not ideal, it was the only remaining
option, since other conservative treatments had been denied.
Troxel obtained an employer’s examination from Dr. Murrell, who testified that he
would not recommend the two-level fusion surgery because of its known poor outcome
for discogenic type back pain. Dr. Murrell believed it would be a disservice to Mr. Matuz
to recommend it.
Significantly, Dr. Gardocki left his practice and has not seen Mr. Matuz since May
2020. Having practiced in Dr. Gardocki’s clinic, Dr. Thompson took over treatment of
Mr. Matuz, reviewed his medical history, including all diagnostic tests, and formulated a
treatment plan. He recommended against the two-level fusion due to complications
associated with the surgery, including a low probability of symptom relief. Rather, he
referred Mr. Matuz to Dr. Rivera-Tavarez for pain management, noting it was a far better
option.
5
In sum, Dr. Gardocki stands alone in his surgical recommendation, while two duly
qualified orthopedic surgeons, Dr. Murrell and Dr. Thompson, reach different
conclusions. Further, as Mr. Matuz’s current authorized treating orthopedic physician,
Dr. Thompson gave detailed and convincing reasoning to support his opinion and
referred Mr. Matuz to Dr. Rivera-Tavarez for pain management to give him a measure of
pain relief and to help him return to functional employment.
The Court holds that Dr. Thompson’s opinion is the most persuasive. Therefore,
Mr. Matuz is unlikely to prove at a hearing on the merits that the recommended back
surgery is medically necessary.
The Court now turns to Mr. Matuz’s alternative request for the injection with bone
marrow concentrate aspirate for pain relief. This procedure was first recommended by Dr.
Gardocki and most recently by Dr. Rivera-Tavarez. Troxel relied on the utilization
review decision of Dr. Barreto to support its denial of the injection.
In comparing their opinions, the Court first considers the physicians’s
qualifications. However, neither party questioned their expert qualifications. In the
absence of any information, the Court cannot discern a difference in their respective
expert qualifications.
Looking to the other factors, the Court finds the circumstances of their
examinations favor Dr. Rivera-Tavarez’s injection recommendation. Dr. Rivera-Tavarez
personally met and examined Mr. Matuz to assist Dr. Thompson in formulating a
treatment plan to relieve Mr. Matuz’s pain from the work injury. As a result, Dr. Rivera-
Tavarez requested Troxel authorize the injection. Troxel submitted the request to
utilization review. Dr. Barreto reviewed the records and found the requested treatment
was not medically necessary based on the Official Disability Guidelines.
A close inspection of Dr. Barreto’s reasoning shows that the Official Disability
Guidelines do not fully address the medical necessity of the injection. He must reach
beyond the guidelines to assess the reasonableness of the substance of the injection: bone
marrow concentrate aspirate. In doing so, Dr. Barreto located a posterior lumbar fusion
trial to determine its effect on local bone grafts. He further downplayed the extent of Mr.
Matuz’s increasing back pain and radiation into his left leg. Unlike the authorized
physicians, Dr. Barreto did not physically examine and personally discuss the degree and
location of the pain with Mr. Matuz.
Finally, the Court finds Mr. Matuz credible. 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 to how the injury
occurred and the employee’s subsequent condition.” Thompson v. Aetna Life & Cas. Co.,
812 S.W. 2d 278, 283 (Tenn. 1991). Mr. Matuz testified that he has experienced constant
6
and increasing back and leg pain since his work injury. He has tried all treatment Troxel
authorized, without relief. Mr. Matuz explained that he cannot sleep, enjoy his family, or
work.
After careful analysis, the Court holds Mr. Matuz is likely to prove at a hearing on
the merits that the injection recommended by Dr. Rivera-Tavarez is medically necessary.
IT IS ORDERED as follows:
1. Mr. Matuz’s request for two-level fusion surgery recommended by Dr. Raymond
Gardocki is denied at this time.
2. Troxel shall pay for Mr. Matuz to return to Dr. Carlos Rivera-Tavarez for the
requested injection. Troxel shall remain responsible for all other reasonable and
necessary medical expenses related to the February 1, 2019 injury, with Dr.
Thompson for orthopedic treatment and Dr. Rivera-Tavarez for pain management.
3. The case is set for a Status Hearing on October 25, 2021, at 8:30 a.m. central
time. The parties must call 866-943-0014 to participate in the Hearing. Failure to
call may result in a determination of issues without the parties’ participation.
4. 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 may result in a penalty assessment for non-compliance.
For questions regarding compliance, please contact the Workers’ Compensation
Compliance Unit via email WCCompliance.Program@tn.gov.
ENTERED September 10, 2021.
____________________________________
Judge Deana C. Seymour
Court of Workers’ Compensation Claims
7
APPENDIX
Technical Record
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Declaration of Gelacio Juarez Matuz
5. Notice of Filing Affidavit of Robert B. Snyder, M.D.
6. Joint Motion to Continue Expedited Hearing
7. Order on Joint Motion to Continue Expedited Hearing
8. Second Joint Motion to Continue Expedited Hearing
9. Order on Second Joint Motion to Continue Expedited Hearing
10. Employer’s Motion to Attend Hearing via Zoom
11. Order on Employer’s Motion to Attend Hearing via Zoom
12. Notice of Filing the deposition transcript of Dr. Samuel Murrell
13. Notice of Filing the deposition transcript of Dr. Raymond Gardocki
14. Notice of Filing video titled “7/10/20 D. Raymond Gardocki Deposition Video”
15. Notice of Compromise
16. Motion to Enforce Settlement Agreement
17. Employer/Defendant’s Response to Plaintiff’s Motion to Enforce Settlement
Agreement
18. Supplemental Reply to Motion to Enforce Settlement Agreement
19. Motion for Emergency Status Conference
20. Employer’s Request for Zoom/Telephonic Hearing
21. Employer’s Expedited Hearing Brief
22. Notice of Filing Medical Record Certification and letter from Dr. Carlos Rivera-
Tavarez
Exhibits
1. Dr. Raymond Gardocki’s deposition transcript
2. Video of Dr. Raymond Gardocki’s deposition
3. Dr. Samuel Murrell’s deposition transcript
4. Affidavit of Dr. Robert Snyder with attachments
5. Medical Certification and letter of Dr. Carlos Rivera-Tavarez
6. Notice of Compromise
7. Dr. Carlos Rivera-Tavarez’s Medical Records, March 19, 2021 (3 pages)
8. Utilization Review denial dated April 16, 2021 (Collective)
9. Dr. Carlos Rivera-Tavarez’s Medical Records, July 13, 2021 (3 pages)
10. Dr. Carlos Rivera-Tavarez’s Medical Records, August 17, 2021 (2 pages)
8
11. Declaration of Gelacio Juarez Matuz (Collective)
12. Dr. Kirk Thompson’s Medical Records, November 12, 2020 (Late Filed)
CERTIFICATE OF SERVICE
I certify that a copy of this order was sent as indicated on September 10, 2021.
Name Certified Fax Email Service sent to:
Bryce Ashby, X bryce@donatilaw.com
Employee’s Attorney
J. Brent Moore, X bmoore@ortalekelley.com
Employer’s Attorney
_____________________________________
Penny Shrum, Court Clerk
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
9
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