Waxstein, Victoria v. Architectural Graphics, Inc. , 2017 TN WC 7 ( 2017 )

FILED
January 30, 2017
TN COURTOF
l\' ORKIRS' COJi.IPlNSATION
CL'ill.IS
Tim.e 7: 15 ~U929 S.W.2d 333, 335 (Tenn. Workers' Comp. Panel Sept.
5, 1996); Johnson v. Midwesco, Inc., 801 S.W.2d 804, 806 (Tenn. 1990). Further, when
there is conflicting medical testimony, "the trial judge must obviously choose which view
to believe. In doing so, [the trial judge] is allowed, among other things, to 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., 803 S.W.2d 672, 676 (Tenn. 1991).
Here, the first factor - qualifications of the experts - weighs equally in favor of
either physician, as both physicians are orthopedic physicians. The second factor - the
circumstances of their examination- favors Dr. Thomas, who personally examined Ms.
Waxstein on multiple occasions over the course of several months. The third factor- the
information available to them- is also favorable to Dr. Thomas, who had the opportunity
to: personally observe Ms. Waxstein and assess her credibility; physically examine Ms.
Waxstein and make objective findings, order and review films from various diagnostic
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testing; and obtain historical information not readily available in the medical records.
The final factor - the evaluation of the importance of that information by other experts -
also weighs in favor of Dr. Thomas, as his medical records demonstrate the radicular
complaints reported by Ms. Waxstein since her fall, while Dr. Holladay's consideration
was limited to a single office visit. This Court is persuaded by Dr. Thomas.
Accordingly, this Court concludes that Dr. Holladay's opinion failed to rebut the
presumption of correctness afforded Dr. Thomas, the ATP, on the issue of causation and
medically necessity.
Based upon a review of the written materials, this Court concludes Ms. Waxstein
came forward with sufficient evidence that she is likely to prevail at a hearing on the
merits that the work injury caused and medically necessitated the need for the
recommended MRI.
Additionally, Architectural Graphics shall continue to provide Ms. Waxstein with
medical benefits in accordance with Tennessee Code Annotated section 50-6-204 (2016),
and Dr. Thomas shall remain the authorized treating physician.
IT IS, THEREFORE, ORDERED as follows:
1. Architectural Graphics shall provide Ms. Waxstein with medical treatment for her
injuries as required by Tennessee Code Annotated section 50-6-204 (2016), to
include authorization of the MRI scan recommended by Dr. Thomas. Medical
bills shall be furnished to Architectural Graphics or its workers' compensation
carrier by Ms. Waxstein or the medical providers. Dr. Thomas shall remain the
authorized treating physician.
2. This matter is set for a Scheduling Hearing on April 6, 2017, at 9:30a.m. Eastern
Time. The parties must call 865-594-0091 or 855-543-5041 toll-free to participate
in the Scheduling Hearing. Failure to appear by telephone may result in a
determination of the issues without your further participation.
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)
(2016). The Insurer or Self-Insured Employer must submit confirmation of
compliance with this Order to the Bureau by email to
WCCompJiance.ProgTam@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.
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4. For questions regarding compliance, please contact the Workers' Compensation
Compliance Unit by email at WCCompliance.Program@tn.gov or by telephone at
(615) 253-1471 or (615) 532-1309.
ENTERED this the 30th d~8Vvv---'
HON. PAMELA B. -JOHNSON
Workers' Compensation Judge
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APPENDIX
The Court reviewed the entire case file in reaching its decision. Specifically, the
Court reviewed the following documents, marked as exhibits for ease of reference:
Exhibits:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Architectural Graphics' Position Statement
4. Medical Records of Dr. Roy Kuhl, East Tennessee Medical Group
5. Medical Records of East Tennessee Medical Group, Urgent Clinic
6. Medical Records of Dr. Mark K. Thomas, Ortho Tennessee
7. Utilization Review Denial
8. First Report of Work Injury
9. Request for Expedited Hearing
10. Affidavit of Victoria Waxstein
11. Notice of Filing Medical Records and Medical Records of Dr. L. Scott Sole
12. Docketing Notice for a Decision on the Record
13. Ms. Waxstein's Position Statement
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 30th day
of January, 2017.
Name Certified Fax Email Service sent to:
Mail
Brad C. Burnette, Esq., X bradburnette@foxand farley law .com
Employee's Attorney
James H. Tucker, Esq., X itucker@ma.nierherod. com
Employer's Attorney
--~sA±~ClerkW .CourtClerk@tn.gov
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