Blakenship, Roger v. Wolverine-OWSFI, Inc. , 2017 TN WC 169 ( 2017 )

FILED
September 5, 2017
TN COURT OF
WORKERS’ COMPENSATION
CLAIMS
Time: 4:03 PM
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT KNOXVILLE
ROGER BLANKENSHIP, ) Docket No.: 2017-03-0504
Employee, )
V. )
WOLVERINE-OWSFI, INC., ) State File No.: 48845-2016
Employer, )
And )
TECHNOLOGY INSURANCE CO., ) Judge Lisa A. Lowe
Carrier. )
)
EXPEDITED HEARING ORDER
GRANTING MEDICAL BENEFITS
This matter came before the undersigned Workers’ Compensation Judge for an
Expedited Hearing on August 22, 2017. The central legal issue is whether Mr.
Blankenship established he is likely to prevail at a trial on the merits that his left shoulder
surgery is reasonable and necessary as a result of his work injury. For the reasons set
forth below, the Court finds that, based on the opinions of the authorized treating
physician and the Medical Director, Mr. Blankenship is likely to do so.
History of Claim
Mr. Blankenship worked as a roofing foreman for Wolverine. On June 28, 2016,
he attempted to move an industrial blower with two co-workers up two flights of steps.
His co-worker tripped, causing the blower to land on the back of Mr. Blankenship’s neck
and left shoulder. He felt immediate pain in his neck, left shoulder, and left arm and
reported the injury to his supervisor.
Wolverine accepted the claim as compensable and provided authorized medical
treatment with Dr. Paul Brady. An MRI revealed a probable labral tear, and Dr. Brady
recommended physical therapy and restrictions. Because Dr. Brady thought Mr.
Blankenship’s pain and symptoms might be coming from a neck condition, he ordered a
referral to a spine specialist. Specifically, Dr. Brady noted, “I really believe his shoulder
pain/arm pain is secondary to spine issues and not shoulder issues. He does have a labral
irregularity in the shoulder but honestly I do not believe that is causing the degree of pain
that he is currently having.”
Mr. Blankenship received authorized treatment with Dr. John Lavelle for his neck
complaints. He underwent a cervical MRI, which revealed a left C4-5 disc protrusion
and foraminal narrowing. Dr. Lavelle performed an epidural steroid injection, but his
symptoms persisted. As a result, Dr. Lavelle recommended a surgical consultation with
Dr. Paul Johnson, who found Mr. Blankenship’s degenerative cervical spine condition
not related to the work injury.
Mr. Blankenship returned to Dr. Brady in January 2017 with continued shoulder
complaints. Dr. Brady noted:
I told him that while surgery is a potential option, I fear that this could
potentially make him worse. I told him there are certainly no guarantees
that it would make him better... He asked for my advice and I told him all
I could do was give him the risks and benefits and outline the options to
him but as far as making a decision that is up to him . . . he will call us back
if he decides on surgery.
Mr. Blankenship contacted his nurse case manager and advised he wanted to
proceed with surgery. Wolverine sent the surgery request through Utilization Review
(UR). Dr. Glen Smith performed a review of the medical records and found that the
labral tear surgery was not medical necessary. Dr. Smith based his opinion on the facts
that a recent exam revealed no findings of instability, none of the records documented the
failure of non-operative measures, and not all labral tears require surgery. Mr.
Blankenship appealed the UR denial, and Medical Director Dr. Robert B. Snyder
concluded that the labral tear surgery should be approved.
At the hearing, Mr. Blankenship asserted entitlement to the shoulder surgery based
on the authorized treating physician’s recommendation and the Medical Director’s
confirmation. Wolverine countered that Dr. Brady did not recommend surgery. In fact,
Dr. Brady said he was afraid surgery would make Mr. Blankenship’s problems worse. In
addition, the UR physician outlined the basis for his denial in his report, but the Medical
Director did not indicate which records he reviewed or identify the basis for his decision
to overturn the UR denial.
Findings of Fact and Conclusions of Law
Because this case is in a posture of an Expedited Hearing, Mr. Blankenship need
not prove every element of his claim by a preponderance of the evidence in order to
obtain relief. McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd.
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LEXIS 6, at *7-8, 9 (Mar. 27, 2015). Instead, he must come forward with sufficient
evidence from which this Court might determine he is likely to prevail at a hearing on the
merits. Zd.; Tenn. Code Ann. § 50-6-239(d)(1) (2016).
Workers’ Compensation Law requires the employer to furnish, free of charge,
medical treatment made reasonably necessary by the accident. Tenn. Code Ann. § 50-6-
204(a)(1)(A). Additionally, any treatment recommended by the authorized treating
physician shall be presumed to be medically necessary. Tenn. Code Ann. § 50-6-
204(a)(1)(H).
Here, Dr. Brady found that Mr. Blankenship’s work injury caused his shoulder
condition and provided surgery as a treatment option. Admittedly, Dr. Brady cautioned
Mr. Blankenship that he cannot guarantee that surgery will make him better and it could
make him worse. However, this is so with virtually any surgery. As the authorized
treating physician, Dr. Brady’s offer of surgery as a treatment option is presumed
medically necessary. The Court discounts Dr. Smith’s UR opinion because he stated the
medical records did not document failure of non-operative treatment. This is belied by
the fact that Mr. Blankenship has been treating conservatively from the time of the injury
without relief of his symptoms. Finally, the letter from the Medical Director’s office to
Mr. Blankenship indicates the Director “reviewed the medical records as presented.” The
Director overturned the UR denial and concluded that Mr. Blankenship’s surgery should
be approved. The Court holds that the opinions of Dr. Brady and the Medical Director
outweighed the opinion of the UR physician.
Therefore, as a matter of law, Mr. Blankenship has come forward with sufficient
evidence from which this Court concludes that he is likely to prevail at a hearing on the
merits. His request for medical benefits in the form of left shoulder labral tear repair is
granted at this time.
IT IS, THEREFORE, ORDERED as follows:
1. Wolverine-OWSFI, Inc. or its workers’ compensation carrier shall provide Mr.
Blankenship with treatment for his June 28, 2016 injuries as required by
Tennessee Code Annotated section 50-6-204, including the left shoulder labral
tear repair.
2. This matter is set for a Scheduling Hearing on October 24, 2017, at 11 a.m.
Eastern Time. The parties must call 865-594-0109 or 855-383-0003 toll-free to
participate in the Scheduling Hearing. Failure to appear by telephone may result
in a determination of the issues without your 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
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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 by email at WCCompliance.Program@tn.gov.
ENTERED this the 5th day of September, 2017.
LISA A. LOWE, JUDGE
Court of Workers’ Compensation Claims
Exhibits:
APPENDIX
1) Order for Medical Benefits Upon Review by the Medical Director
2) Correspondence from the Office of the Medical Director re: Overturned Denial
3) Peer Review and Medical Record Review of Eckman/Freeman
4) Collective Medical Records of Dr. Paul Brady, Dr. John Lavelle, Dr. Paul
Johnson, and Benchmark Therapy
Technical Record:
1) Petition for Benefit Determination
2) Dispute Certification Notice
3) Request for Expedited Hearing
4) Employer’s Response in Opposition to Employee’s Request for Expedited
Hearing
5) Employer’s Pre-Hearing Brief
6) Employer’s Notice of Filing Medical Records
7) Employer’s Witness and Exhibit List
8) Employee’s Witness and Exhibit List
9) Affidavit of Roger Blankenship
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 5th day of
September, 2017.
Name Certified | Fax | Email | Service sent to:
Mail
Jonathan W. Doolan, X jonathan@collinsdoolan.com
Employee’s Attorney
Brent Latham xX brlaman@mijs.com
Employer’s Attorney
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PENNYSHRUM, Court Clerk Adler
WC.CourtClerk@tn.gov
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