Jernigan, Robert v. Bailey Co., Inc. , 2018 TN WC 160 ( 2018 )

FILED
Oct 03, 2018
09:42 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION CLAIMS
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
ROBERT JERNIGAN, ) Docket No. 2017-05-1138
Employee, )
v. )
)
BAILEY CO., INC., ) State File No. 41017-2016
Employer, )
and )
)
ZURICH AMERICAN INSURANCE ) Judge Dale Tipps
CO., )
Carrier. )
EXPEDITED HEARING ORDER DENYING REQUESTED BENEFITS
This matter came before the Court on September 26, 2018, for an Expedited
Hearing. The present focus of this case is whether Mr. Jernigan is entitled to additional
medical treatment: the spinal surgery recommended by Dr. Michael Moran. The central
legal issue is whether Mr. Jernigan is likely to establish at a hearing on the merits that his
current condition and the need for this surgery arose primarily out of and in the course
and scope of his employment. For the reasons below, the Court holds Mr. Jernigan failed
to meet this burden and is not entitled to benefits at this time.
History of Claim
Mr. Jernigan injured his low back on April 28, 2016, while making a delivery for
The Bailey Company. Bailey accepted the injury as compensable and provided medical
treatment. That treatment began with Physicians Medical Care, where an advanced
practice nurse assessed a low back strain and referred Mr. Jernigan to an orthopedic
specialist.
Bailey provided an orthopedic panel, and Mr. Jernigan selected Dr. William
Ledbetter. He gave Dr. Ledbetter a history of his low-back pain and reported,
“Intermittent pain into the buttock and thigh bilaterally. No true radicular pain, i.e., pain
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past the knee.” Dr. Ledbetter ordered an MRI.
At a follow-up visit, Dr. Ledbetter noted, “Straight leg raise to 90 degrees
bilaterally with minimal low back pain, no radicular pain or hamstring tightness.” He
reviewed the MRI results, which showed degenerative disease and facet arthrosis, as well
as disc bulges or protrusions at L4-5 and L5-S1, but “no clear-cut nerve root
compression.” He also noted that, “History and physical findings do not support nerve
root compression syndrome.” After stating that Mr. Jernigan’s injuries arose primarily
out of his employment, Dr. Ledbetter referred him to Dr. Jeffrey Hazlewood, a
physiatrist.
Mr. Jernigan saw Dr. Hazlewood and described pain in the left low back. Dr.
Hazlewood noted “Initially he had one or two episodes of pain just mildly down the right
posterior thigh, but this has resolved.” He diagnosed mechanical low-back pain. He
noted the disc pathologies shown on the MRI but could not say whether “the central
protrusions actually occurred with this injury and are not part of a degenerative spine
disease. More importantly, they do not seem to be symptomatic.”
Dr. Hazlewood saw Mr. Jernigan several times over the next few weeks,
performing injections, nerve blocks, and a rhizotomy. He noted in several of those visits
that Mr. Jernigan had no radicular symptoms and his straight leg raise test was negative.
At the October 24 appointment, Dr. Hazlewood reiterated his diagnosis of chronic
mechanical back pain. He elaborated, “I would call this a lumbar strain injury on top of
pre-existing degenerative spine disease.” Dr. Hazlewood determined that Mr. Jernigan
reached maximum medical improvement and assigned an impairment rating.
Mr. Jernigan requested a second opinion, and Bailey authorized an evaluation by
Dr. Jeffrey Peterson, which occurred in February 2017. Dr. Peterson assessed lumbago,
lumbar degenerative disc disease, and disc extrusion L5-S1. He recommended a
neurosurgical evaluation, as well as a new MRI.
Bailey declined to authorize the neurosurgical referral, so Mr. Jernigan returned to
Dr. Hazlewood in August 2017 and reported his condition had not improved. He
described low-back pain but denied any leg pain or radicular symptoms. Dr. Hazlewood
restated his diagnosis of chronic mechanical back pain with no radicular symptoms and
normal neurologic examination. He did not feel pain medication management was
appropriate and did not believe Mr. Jernigan was a surgical candidate.
Mr. Jernigan filed a Petition for Benefit Determination, and Bailey provided a
panel of neurosurgeons from which Mr. Jernigan selected Dr. Michael Moran. He first
saw Dr. Moran in April 2018. Dr. Moran noted that Mr. Jernigan had “chronic back and
leg pain after a work injury” and ordered a new MRI. Dr. Moran assessed lumbar disc
degeneration and displacement, as well as lumbar radiculopathy, and he recommended a
2
decompressive lumbar laminectomy.1 Asked about causation, Dr. Moran stated:
This certainly is a degenerative process in general. However, the
radiologist felt like there is an advancement of the stenosis recently and
there is some displacement of the disc. Essentially he states he was
symptom-free until he had his work accident a couple [of] years ago so my
opinion would be this was an aggravation of a pre-existing condition and
it’s therefore a legitimate Workman’s Comp. claim.
Bailey’s claims adjuster sent Dr. Moran a letter summarizing Mr. Jernigan’s
medical records and asking the doctor to complete a two-page questionnaire about
causation, treatment, and the other doctors’ recommendations. Dr. Moran returned the
letter with a post-it note that said, “I am not doing this. He was mainly treat[ed] by
several other MD[s].”
Dr. Moran later saw Mr. Jernigan on August 30 for complaints of increasing right-
leg numbness and pain, as well as intermittent bladder leakage.
At Bailey’s request, Mr. Jernigan submitted to an Independent Medical Evaluation
(IME) with orthopedic surgeon Dr. David West. Dr. West reviewed Mr. Jernigan’s prior
medical records and examined him. He noted a mildly positive straight leg raising test on
the left but found “no obvious signs of radiculopathy to the bilateral lower extremities.”
He concluded Mr. Jernigan had “chronic low back pain with bilateral sciatica, also
mechanical back pain with possibly a degenerative lumbar facet disease, which I feel is
pre-existing to this injury.” In response to questions about his examination, Dr. West
stated that Mr. Jernigan’s pre-existing condition of degenerative joint disease is “the
more likely cause of his need for ongoing treatment.”
Mr. Jernigan requested that the Court order Bailey to authorize the surgery
recommended by Dr. Moran. He relied on Dr. Moran’s opinion that he suffered an
aggravation of a pre-existing condition, which resulted in his need for surgery. Mr.
Jernigan also requested an award of attorney’s fees.
Bailey countered that Mr. Jernigan’s need for surgery is not causally related to his
work injury. It contended that the medical opinions of Mr. Jernigan’s other doctors are
sufficient to rebut the presumption of correctness attached to Dr. Moran’s opinion.
Findings of Fact and Conclusions of Law
Mr. Jernigan need not prove every element of his claim by a preponderance of the
1
Bailey submitted the surgical recommendation to Utilization Review, which recommended approval of
the procedure.
3
evidence in order to obtain relief at an expedited hearing. 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. See Tenn. Code Ann. § 50-6-239(d)(1) (2017); McCord v.
Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Mar. 27, 2015). To qualify for medical benefits at an interlocutory hearing, an injured
worker who alleges an aggravation of a pre-existing condition must offer evidence that
the aggravation arose primarily out of and in the course and scope of employment. That
is, Mr. Jernigan must come forward with sufficient evidence from which the Court can
determine that he would likely establish, to a reasonable degree of medical certainty, that
the work accident contributed more than fifty percent in causing the aggravation,
considering all causes. Tenn. Code Ann. § 50-6-102(14); Miller v. Lowe’s Home
Centers, Inc., 2015 TN Wrk. Comp. App. Bd. LEXIS 40, at *18 (Oct. 21, 2015).
To establish causation, Mr. Jernigan relies on the ATP, Dr. Moran, whose opinion
is presumed correct. See Tenn. Code Ann. § 50-6-102(14)(E). Bailey contends that the
other medical proof is sufficient to overcome the presumption. To make this
determination, the Court must compare the opinions of the physicians.
When the medical testimony differs, the trial judge must obviously choose
which view to believe. In doing so, he 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).
Applying the first of these factors, the Court notes that the physicians represent
several areas of medical specialty. Drs. Ledbetter and West are orthopedic surgeons, Dr.
Hazlewood is a physiatrist, and Dr. Moran is a neurosurgeon. Although counsel for both
parties argued about the relative qualifications of the doctors, neither party submitted any
curriculum vitae or other evidence to support their assertions. In the absence of any
information concerning their respective qualifications, the Court cannot find any
determinative differences among the doctors.
As to the other factors, the circumstances of the respective examinations are
different, in that Mr. Jernigan was an established patient of Drs. Ledbetter, Hazlewood,
and Moran, while he only saw Dr. West once. However, the most substantive difference
appears to be the amount of information available to the doctors and their evaluation of
the importance of that information. That is, Drs. Ledbetter, Hazlewood, and West all
reviewed records from Mr. Jernigan’s other providers as part of their assessment. Dr.
Moran’s records, on the other hand, show that he reviewed a prior MRI, but there is no
indication he reviewed any other records or office notes regarding previous examinations
or treatment by Mr. Jernigan’s other doctors.
4
This difference in available information is important in light of Dr. Moran’s
diagnosis of radiculopathy and his conclusion that Mr. Jernigan “has chronic back and leg
pain after a work injury.” It is unclear whether Dr. Moran’s opinion would change if he
were aware that all of the prior physicians noted an absence of radiculopathy. Counsel
for the parties indicated that Bailey scheduled Dr. Moran’s deposition before the hearing
but disagreed on the reason it was cancelled.
The Court notes that Mr. Jernigan appeared sincere in his belief that his work
activities caused his current condition. However, contrary to the contention of Mr.
Jernigan’s counsel, this does not make his claim easy to resolve. The Court must abide
by the causation requirements of the Workers’ Compensation Law and cannot infer from
the mere existence of Mr. Jernigan’s condition that it arose primarily out of his
employment. While Dr. Moran’s opinion is entitled to the presumption of correctness,
the Court finds the opinions of three qualified physicians are sufficient to overcome that
presumption, at least until Dr. Moran has an opportunity to address the lack of any prior
findings of radiculopathy. The Court cannot speculate as to what Dr. Moran might say,
so Mr. Jernigan is left without any medical proof that his need for surgery arose primarily
out of a work related aggravation of his preexisting condition. Thus, the Court cannot
find that Mr. Jernigan is likely to establish, to a reasonable degree of medical certainty,
that the work accident contributed more than fifty percent in causing the aggravation,
considering all causes.
Because Mr. Jernigan failed to establish a likelihood of proving that his need for
surgery arose primarily out of his work injury, the Court need not address his request for
attorney’s fees at this time.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Jernigan’s claim against The Bailey Company and its workers’ compensation
carrier for the requested medical benefits is denied at this time.
2. This matter is set for a Scheduling Hearing on November 27, 2018, at 9:00 a.m.
You must call 615-741-2112 or toll-free at 855-874-0473 to participate. Failure to
call may result in a determination of the issues without your further
participation. All conferences are set using Central Time (CT).
ENTERED this the 3rd day of October, 2018.
_____________________________________
Judge Dale Tipps
Court of Workers’ Compensation Claims
5
APPENDIX
Exhibits:
1. Affidavit of Robert Jernigan
2. Indexed medical records
3. Dr. Moran’s August 30, 2018, office note
4. C-42 Form selecting Dr. Ledbetter
5. C-42 Form selecting Dr. Moran
6. Unsigned C-42 Form
7. Medinsights UR report of June 24, 2018
8. Wage Statement
9. Correspondence between counsel for the parties
10. Affidavit of Tim Wyatt
11. Affidavit of Lakota Holder
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Parties’ Pre-Hearing Statements
5. Mr. Jernigan’s Exhibit and Witness Lists
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 3rd day of
October, 2018.
Name Certified Fax Email Service sent to:
Mail
R. Steven Waldron, X arelenesmith@comcast.net
Employee’s Attorney
Marianna Jablonski, X mjablonski@wimberlylawson.com
Employer’s Attorney
_____________________________________
Penny Shrum, Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
6
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: “Expedited Hearing 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.
Filed Date Stamp Here EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers' Compensation
Docket#: - - - -- -- - --
www.tn.go v/labor-wfd/wcomp.shtm l
State File #/YR: - - -- - - --
wc.courtclerk@tn.gov
1-800-332-2667 RFA#: _ _ _ _ _ _ _ _____ _
Date of Injury: - - - -- - - - -
SSN: _______ _ ______ __
Employee
Employer and Carrier
Notice
Noticeisg~enthat _ _ _ _ _ _ _``--````---``~--------~
[List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s) of the Court of Workers' Compensation Claims at _ __
-``~-----````````-to the Workers' Compensation Appeals Board .
[List the date(s) the order(s) was filed in the court clerk's office]
Judge___________________________________________
Statement of the Issues
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Additional Information
Type of Case [Check the most appropriate item]
D Temporary disability benefits
D Medical benefits for current injury
D Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): _____________ .A t Hearing: DEmployer DEmployee
Address:. _______________________ ______________ ___________
Party's Phone:.____________________________ Email: _________________________
Attorney's Name:________________________________ ___ BPR#: - - - - - - - - - - - -
Attorney's Address:. _ _ _ _ _``-````----``---- Phone:
Attorney's City, State & Zip code: _____________________ ___________ _ _ _ __ _
Attorney's Email :_ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ __ _ _ _ __ _ _ _ _ _ _ __
*Attach an additional sheet for each additional Appellant*
LB-1099 rev.4/15 Page 1 of 2 RDA 11082
Employee Name: - - - -- - - -- - - - SF#: _ _ _ _ __ _ _ _ _ DO l: _ __ _ __
Aopellee(s)
Appellee (Opposing Party): _ _ _ _ _ _ _ _.At Hearing: OEmployer DEmployee
Appellee's Address: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Appellee's Phone:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _.Email:_ _ _ _ _ _ __ _ _ _ _ _ __
Attorney's Name:_ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ BPR#: - - - - - - - -
Attorney's Address:._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Phone:
Attorney's City, State & Zip code: - - - -- - - - - - - - - - - - - - - - - - - -- -
Attorney's Email:._ _ _ _ __ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, certify that I have forwarded a true and exact copy of this
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules of
Board of Workers' Compensation Appeals on this the day of__, 20_ .
[Signature of appellant or attorney for appellant]
LB-1099 rev.4/1S Page 2 of 2 RDA 11082
.
ll .I
Tennessee Bureau of Workers' Compensation
220 French Landing Drive, 1-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
I, , having been duly sworn according to law, make oath that
because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name:_ _ _ _ _ _ _ _ _ _ __ 2. Address: - - - - - - - - - - - - -
3. Telephone Number: - - - - - - - - - 4. Date of Birth: - - - - - - - - - - -
5. Names and Ages of All Dependents:
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
- - - - - - - - - - - - - - -- - Relationship: - - - - - - - - - - - --
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
6. I am employed by: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , -
My employer's address is: - - - - - - - - - - - - - - - - - - - - - - - - -
My employer's phone number is: - - - - - - - - - - - - - - - - - - - - - - -
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$ _ _ _ _ _ _ ___
8. I receive or expect to receive money from the following sources:
AFDC $ per month beginning
SSI $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Camp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are: ' ; !•
'
Rent/House Payment $ per month Medical/Dental $ per month
Groceries $ per month Telephone $ per month
Electricity $ per month School Supplies $ per month
Water $ per month Clothing $ per month
Gas $ per month Child Care $ per month
Transportation $ per month Child Support $ per month
Car $ per month
Other $ per month (describe:
10. Assets:
Automobile $ _ _ __ _
(FMV) - - - - - -- - - -
Checking/Savings Acct. $ _ _ _ __
House $ _ _ _ __
(FMV) - - -- - - -- - -
)
Other $ _ _ _ __ Describe:_ _ _ __ _ _ _ _ __
11. My debts are:
Amount Owed To Whom
I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
_ _ _ dayof _____________ ,20____
NOTARY PUBLIC
My Commission Expires:_ _ _ _ _ __ _
LB-1108 (REV 11/15) RDA 11082