Aliyy, Rakin v. LG Electronics ( 2021 )

FILED
Dec 08, 2021
10:51 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
Rakim Aliyy, ) Docket No. 2021-06-0442
Employee, )
v. )
LG Electronics, ) State File No. 12408-2020
Employer, )
And )
Sompo America Ins. Co., ) Judge Kenneth M. Switzer
Carrier. )
EXPEDITED HEARING ORDER DENYING REQUESTED RELIEF
The Court held an expedited hearing on December 3, 2021. Mr. Aliyy requested
that the Court order LG Electronics to provide additional treatment with Dr. Christopher
Ashley, a referral physician. LG Electronics argued that Mr. Aliyy’s current condition is
not related to the work incident, relying upon the opinion of its physician, Dr. Christopher
Kauffman. The Court holds that Mr. Aliyy did not satisfy his burden to show that his
present symptoms arose primarily out of employment, and therefore Mr. Aliyy’s request is
denied at this time.
Claim History
The parties agreed that, while working for LG Electronics on February 14, 2020,
Mr. Aliyy injured his low back.
LG Electronics offered a panel listing three medical practices. Mr. Aliyy chose one,
and a nurse practitioner ordered x-rays. At a follow-up visit, Mr. Aliyy saw a medical
doctor, who diagnosed a low-back strain. At the next visit, he referred him to physical
therapy. The doctor later referred him to Dr. Robert Kasper. Dr. Kasper ordered imaging,
and Mr. Aliyy underwent a CT of the lumbar spine without contrast, which showed chronic
multilevel degenerative changes and multilevel stenosis.
1
Dr. Kasper then referred Mr. Aliyy to a neurosurgeon but did not make a direct
referral. Mr. Aliyy came under the authorized care of Dr. Ashley, who is not a
neurosurgeon but a physical medicine, rehabilitation, and spine specialist.1
As to how he became Dr. Ashley’s patient, Mr. Aliyy testified, “It wasn’t a specialist
that I chose; it was a specialist that the claims adjuster and all them chose.” He later
clarified that before he saw Dr. Ashley, the previous claims adjuster telephoned and offered
treatment with a physician in Nashville or Dr. Ashley in Clarksville. Mr. Aliyy chose Dr.
Ashley because Mr. Aliyy lives in Clarksville. Dr. Ashley saw Mr. Aliyy for the first time
in June. Dr. Ashley noted that Dr. Kasper and the workers’ compensation case manager
referred him, although Dr. Kasper’s notes do not say that.
At that visit, Dr. Ashley took a detailed history, reviewed x-rays and imaging results,
and examined him. Dr. Ashley concluded: “Patient with low-back pain, status post
lumbrosacral sprain. Appears to be having mostly mechanical low back pain and reactive
facet joint pain with resultant sciatica. . . . It would be within a reasonable degree of
medical certainty and medically probable on his current diagnosis, treatment plan were
related to the work injury he described.”
Mr. Aliyy returned four times over the next few months. During that time, Mr.
Aliyy underwent conservative treatments, including facet joint blocks on two occasions.
When his back pain remained, Dr. Ashley recommended medial branch blocks in
September. He wrote, “If these are helpful, I would consider radiofrequency ablations. If
they are not, would consider surgical consultation for continued conservative treatment. .
. . WE [sic] will also have [patient] undergo an H-wave trial[.]”
Considering those treatment options, the claims adjuster “wanted a specialist to see
Mr. Aliyy,” per her declaration. LG Electronics sent Mr. Aliyy for an employer’s
examination with Dr. Kauffman, an orthopedic surgeon.2
Dr. Kauffman reached different conclusions than Dr. Ashley regarding the work-
relatedness of Mr. Aliyy’s condition. In his records, Dr. Kauffman wrote: “Patient’s work-
related condition is a lumbar sprain/strain. Patient has completed appropriate physical
therapy, temporary medications and temporary activity modification. No role for surgical
intervention. The patient’s facet arthritis at L4-5 and L5-S1 is a pre-existing condition
which is degenerative and unrelated to the work event.”
1
The Court takes judicial notice of Dr. Ashley’s areas of specialization under Tennessee Rule of Evidence
201 (2021). See https://toa.com/physicians/christopher-p-ashley-md (last checked Dec. 8, 2021).
2
LG Electronics referred to Dr. Kauffman’s opinions as a “second opinion” in its brief. However, at the
hearing, counsel agreed that Dr. Kauffman’s opinion is properly characterized as an employer’s
examination under Tennessee Code Annotated section 50-6-204(d)(1).
2
Dr. Kauffman additionally answered a causation letter from the adjuster, where he
checked a box that the injury arose primarily out of employment. However, the letter
contained a handwritten clarification: “Work injury is Lumbar Sprain/Strain[.] TENS Unit
prescribed for Sprain/Strain → work related[.] Facet Arthritis is NOT Work Related[.]”
(Emphasis in original).
Dr. Kauffman later signed a lengthy declaration stating in relevant part that he did
not find a disc herniation but a “soft-tissue injury,” which should have resolved and would
not have needed further treatment after six to twelve weeks from the date of injury. He
also disagreed with the reasonable necessity of the various treatment options that Dr.
Ashley proposed.
Two months after Dr. Kauffman’s examination, Dr. Ashley wrote an addendum to
his records documenting his response. He wrote in relevant part:
[W]e appreciate the second opinions, but as a treating physician I have
established over the period of time [a] relationship with [the] patient as well
as had the benefit of evaluating him multiple times and I have recommended
specific treatment options. If the workplace does not want me to treat the
patient how I see fit I believe at this point it would be better for them to refer
the patient to a doctor of their choosing instead of limiting my ability to care
for the patients [as] I see fit.
LG Electronics did not deny the claim, nor did it introduce a notice of controversy into
evidence.
Mr. Aliyy testified that he did not hear from the adjuster until February or March of
2021. Afterward, he filed his petition seeking additional treatment with Dr. Ashley. LG
Electronics offered a panel of orthopedic surgeons “to break the tie,” according to its
counsel.3 But Mr. Aliyy declined to choose a physician. This hearing request followed.
Findings of Fact and Conclusions of Law
At an expedited hearing, Mr. Aliyy must show that he is likely to prevail at a hearing
on the merits. See Tenn. Code Ann. § 50-6-239(d)(1) (2021); McCord v. Advantage
Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
The Workers’ Compensation Law requires an employer to furnish medical
treatment made reasonably necessary by a work injury, beginning with the provision of a
panel of physicians. Tenn. Code Ann. §§ 50-6-204(a)(1)(A), 50-6-204(a)(3)(A)(i). Here,
3
LG Electronics offered no legal authority to support the propriety of offering a new panel when a treating
physician and an employer’s examiner disagree.
3
immediately after the incident, LG Electronics offered a panel in compliance with the law,
and the physician Mr. Aliyy selected made a direct referral to Dr. Kasper. Dr. Kasper later
made another referral to a neurosurgeon, which LG Electronics did not honor. Despite its
counsel’s arguments that Dr. Ashley’s notes say Mr. Aliyy was a patient by referral by Dr.
Kasper and the case manager, Dr. Kasper’s notes simply do not say that. Moreover, Mr.
Aliyy credibly testified, without contradiction, that the adjuster offered two choices over
the phone. LG Electronics did not introduce a signed panel documenting his selection.
The Court places greater weight on his sworn testimony over a medical record notation.
When a referral is made, “[t]he specialist physician . . . shall become the treating
physician until treatment by the specialist physician . . . concludes and the employee has
been referred back to the treating physician selected by the employee from the initial
panel[.]” Tenn. Code Ann. § 50-6-204(a)(3)(E). Further, the Appeals Board explained,
“Unless a court terminates an employee’s entitlement to medical benefits, or approves a
settlement in which the parties reach a compromise on the issue of future medical benefits,
an injured worker remains entitled to reasonable and necessary medical treatment causally-
related to the work injury[.]” Limberakis v. Pro-Tech Security, Inc., 2017 TN Wrk. Comp.
App. Bd. LEXIS 53, at *7 (Sept. 12, 2017).
Here, the Court finds that Dr. Ashley became Mr. Aliyy’s treating physician. His
treatment did not “conclude.” Rather, LG Electronics implicitly denied further treatment
with him but never filed the required forms to notify Mr. Aliyy or the Bureau of its position.
LG Electronics argued that no presumption of medical necessity attached to Dr. Ashley’s
opinions under Tennessee Code Annotated section 50-6-204(a)(3)(H). The Court
disagrees. The cited statute states just the opposite. Moreover, the Court is concerned
about how the carrier directed Mr. Aliyy to a physician with a specialty of its choosing,
only to later question that physician’s qualifications and the accuracy of his opinions.
Regardless, at this point, the case turns on the threshold question of causation. A
work injury is defined in the statute as one “arising primarily out of and in the course and
scope of employment” that causes the need for medical treatment. This includes the
aggravation of a preexisting condition if it can be shown “to a reasonable degree of medical
certainty that the aggravation arose primarily out of and in the course and scope of
employment.” It must be shown to a reasonable degree of medical certainty that the
employment contributed more than fifty percent in causing the injury, considering all
causes. See Tenn. Code Ann. § 50-6-102(14)(A)-(C).
In this case, two specialist physicians offered different opinions, both of which
ultimately do not provide satisfactory answers to whether Mr. Aliyy’s current condition
and need for treatment were caused by work.
4
Dr. Ashley characterized the facet arthritis as “reactive” to the incident and the
sciatica as “resultant.” These conditions might be considered “aggravations” of preexisting
conditions under the above definition, but Dr. Ashley did not make that clear.
He also determined, “It would be within a reasonable degree of medical certainty
and medically probable on his current diagnosis, treatment plan were related to the work
injury he described.” This sentence, likewise, is not a clear statement on the cause of Mr.
Aliyy’s need for medical treatment. Dr. Ashley did not say whether Mr. Aliyy’s pain and
discomfort aggravated his facet joint arthritis or sciatica, both preexisting conditions, and
that—to a reasonable degree of medical certainty—the aggravations arose primarily out of
and in the course and scope of employment such that the employment contributed more
than fifty percent in causing the aggravations, considering all causes. Dr. Ashley suggests
this, but it is just not entirely clear, and neither party posed the question to him in terms
that satisfy the statutory definition.
Dr. Kauffman’s opinion, although more precise, is not entirely clear, either. He
wrote that the lumbar sprain, which he later called a “soft-tissue injury,” was work related
but should have healed by that point, and that any remaining facet arthritis was preexisting,
degenerative, and not work-related. However, he did not state whether the preexisting facet
joint arthritis or sciatica were aggravated and that to a reasonable degree of medical
certainty, the aggravations did not arise primarily out of and in the course and scope of
employment, or that the employment did not contribute more than fifty percent in causing
the aggravations, considering all causes.
Importantly, at a hearing, the employee bears the burden of proof for each and every
element of the claim. Tenn. Code Ann. § 50-6-239(c)(6). Mr. Aliyy’s proof does not
satisfy this burden. Therefore, at this time, the Court holds that Mr. Aliyy has not shown
that he is likely to succeed at a hearing on the merits that he is entitled to further treatment
with Dr. Ashley. Nothing in this opinion precludes him from gathering additional evidence
to meet this standard.
As a final matter, the Court refers this case to the Compliance Program for
consideration of the imposition of penalties for potential violations of the following.
◼ LG Electronics did not provide a panel of neurosurgeons as Dr. Kasper
recommended, contrary to Tennessee Code Annotated section 50-6-
204(a)(3)(A)(ii).
◼ By Mr. Aliyy’s unrefuted testimony, the adjuster offered a panel of only two
specialist physicians telephonically and never memorialized his choice “in
writing on a form prescribed by the bureau” as required under Tennessee Code
Annotated section 50-6-204(a)(3)(D)(1).
5
◼ LG Electronics did not file a notice of denial or notice of controversy, as required
under Tennessee Code Annotated section 50-6-205(c)(1) and Tennessee
Compilation Rules and Regulations 0800-02-14-.04(8) (July, 2021).
IT IS ORDERED AS FOLLOWS:
1. Mr. Aliyy’s requested relief is denied at this time.
2. This case is set for a status hearing on February 7, 2022, at 9:45 a.m. Central
Time. Please call (615) 532-9552 or (866) 943-0025 to participate. Failure to appear
may result in a determination of the issues without your participation.
3. The case is referred to the Compliance Program for consideration of the imposition
of penalties as outlined above.
Entered December 8, 2021.
________________________________________
JUDGE KENNETH M. SWITZER
Court of Workers’ Compensation Claims
Appendix
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice and Employer’s Defenses
3. Order on Status Hearing, September 15, 2021
4. Hearing Request
5. Order on Status Hearing, October 5, 2021
6. Employee’s Brief
7. Order Setting Expedited Hearing
8. Employer’s Brief
9. Employer’s Witness and Exhibit List
10. Employee’s Witness List
Evidence:
1. Declaration of Mr. Aliyy
2. Declaration of Dr. Kauffman and attachments
3. Declaration of Ms. Piper-Lennon
4. Medical records
5. Photos/ergonomic report (Identification only)
6
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on December 8, 2021.
Name Certified Regular Email Sent to
Mail mail
Rakim Aliyy, self- X X 3944 Benjamin Drive
represented Clarksville TN 37040
employee rakimaliyy@hotmail.com
Brett Burrow, Laura X Bburrow@burrowlee.com
Bassett, employer’s lbassett@burrowlee.com
attorneys tbrasher@burrowlee.com
Compliance X WCCompliance.Program@tn.gov
Program
_______________________________________
Penny Shrum
Clerk, Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
7
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
concerning 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/
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