Hogan, Martean v. Health Connect America , 2019 TN WC 91 ( 2019 )

FILED
Jun 03, 2019
01:44 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT MEMPHIS
MARTEAN HOGAN, ) Docket No. 2018-08-1030
Employee, )
v. )
HEALTH CONNECT AMERICA, ) State File No. 70572-2017
Employer, )
and )
BRIDGEFIELD CASUALTY INS. CO., ) Judge Allen Phillips
Carrier. )
EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS
Ms. Hogan requested that Health Connect pay for a surgery she claimed was
necessary because of an automobile accident. Health Connect denied the accident caused
her need for surgery. After an Expedited Hearing on May 22, 2019, the Court holds Ms.
Hogan established she would likely prevail at a hearing on the merits regarding her
request.
History of Claim
On September 14, 2017, Ms. Hogan was involved in an automobile accident while
traveling for her job. Her vehicle was struck from behind. Initially, she continued her
duties but later sought emergency care. She described feeling "pressure . . . like a three
hundred pound person was sitting on her neck." She also complained of pain in her left
shoulder. After an MRI on September 29, Health Connect provided Ms. Hogan a panel of
physicians. She chose Dr. Samuel Schroerlucke, an orthopedic surgeon who specializes
in spinal conditions.
On October 3, Dr. Schroerlucke diagnosed a C6-C7-level herniation with stenosis
and testified in his deposition that the condition was "primarily related" to the September
14 accident. He recommended conservative care through the fall and on December 5
anticipated Ms. Hogan would reach maximum medical improvement (MMI) by year end.
He did not anticipate she would need surgery, and he allowed her to return to work on
December 11.
1
On January 2, 2018, Ms. Hogan had a second, non-work-related automobile
accident. At an emergency room visit the next day, a physician recorded that Ms. Hogan
complained of pain in various areas including her neck. She told the physician that she
had a "bulging disc in her neck from a previous MVA in September." The emergency
room physician informed Ms. Hogan to follow-up with both Dr. Schroerlucke and her
primary care provider.
On January 4, Ms. Hogan returned to Dr. Schroerlucke. He noted the accident two
days before. Later, during his deposition, he testified that it caused a "significant flare-
up" of her symptoms. However, he further testified Ms. Hogan "completely recovered"
from the January 2 accident by January 16 and that her symptoms had returned to a
"baseline" of what they were before. Dr. Schroerlucke maintained that Ms. Hogan's
symptoms stemmed from the first accident.
Dr. Schroerlucke continued conservative management of Ms. Hogan's condition
including a steroid injection in February; it did not help. On March 6, he recommended
an EMG study of Ms. Hogan's left arm to look for radiculopathy. Dr. Schroerlucke said if
the EMG showed radiculopathy, then "I think the next step is surgery," namely a fusion
of the C6-C7 level. However, he added that even if the EMG did not show radiculopathy,
then surgery might still be the next step. He stated in his note that Ms. Hogan was "very
upset to hear this."
The EMG was normal, but Ms. Hogan continued to complain of pain. Thus, Dr.
Schroerlucke recommended a repeat MRI of her cervical spine.
Before she returned for the MRI results, Ms. Hogan was involved in a third
automobile accident on April 4. When she returned on April 5, she did not tell Dr.
Schroerlucke about the accident the day before. At the hearing, she explained that the
accident was minor, a "side-swipe," and that it caused no injury. But at the doctor's
office, Ms. Hogan described a stabbing pain and a feeling of "pressure" in her neck. Dr.
Schroerlucke noted her pain had "been present for 7 months" in "the context of an injury
at work" and also said the new MRI was not significantly different than the first.
Considering Ms. Hogan's condition on April 5, Dr. Schroerlucke recommended a C6-C7-
level fusion.
Following Dr. Schroerlucke's surgical recommendation, Health Connect obtained
an independent medical evaluation from Dr. John Lochemes, an orthopedic surgeon
specializing in general orthopedics. Contrary to Dr. Schroerlucke, Dr. Lochemes testified
by deposition that he was "certain that the disc pathology [was] not the source" of Ms.
Hogan's symptoms based on his review of the second MRI. Instead, he thought she
suffered from "nerve pain" caused by either neuralgia or neuritis. That being the case, Dr.
Lochemes did not believe surgery would resolve Ms. Hogan's symptoms, and he added
that the work accident would "certainly" not be the precipitating cause for surgery even if
it were necessary. Instead, he attributed "greater than 50 percent" of Ms. Hogan's
2
symptoms to the January accident, calling them worse than before, or "a new set of
symptoms."
Dr. Lochemes noted Ms. Hogan might seek another opinion from a neurosurgeon
regarding surgery but added that this recommendation was not "out of disrespect for the
certification and qualifications of Dr. Schroerlucke." Though Dr. Lochemes disagreed
with Dr. Schroerlucke, he testified he "would take into account" that Dr. Schroerlucke
was a treating physician, "present . . . for the entire period of time across . . . both
accidents."
Health Connect also obtained a record review evaluation from Dr. Edward Kahn,
another orthopedic surgeon, and offered his report in evidence. Dr. Kahn did not believe
surgery would improve Ms. Hogan's complaints based on no documentation of weakness
and intact reflexes. Further, Dr. Kahn said the MRI and EMG did not show evidence of
nerve root compression at the C6-C7 level.
Based on the opinions of Drs. Lochemes and Kahn, Health Connect denied the
surgery.
For his part, Dr. Schroerlucke testified Ms. Hogan needed the recommended
surgery because of the September 14 work accident. He testified that because she
returned to her baseline symptoms, he could not "blame" the second accident for them.
Specifically, he explained that "sometimes people get better for a while and then things
get worse," and in this case, any aggravation caused by the second accident did not mean
"her symptoms ... can't be related to the original disc herniation." He testified he "could
not say anything" regarding the April 4 accident, as Ms. Hogan did not inform him of it,
but he admitted his opinions were dependent on an accurate history.
Ms. Hogan detailed her pain after the first accident and explained how it became
more "intense and consistent" after the January accident. However, she said her pain
never "went away" before January and that she was "still hurting" when Dr. Schroerlucke
returned her to work in December. She emotionally explained that she would accept the
recommended surgery because the pain prevents her from working and her only income
is ongoing temporary total disability (TTD) benefits. She testified that, "I just want my
life back."
Health Connect argued that these facts were controlling: 1) Ms. Hogan
experienced significant improvement in her symptoms before the January accident; 2) Dr.
Schroerlucke anticipated her to reach MMI by December 26; and 3) her symptoms
worsened after the January 2 accident. It added a sworn declaration from Ariane Graves,
a program director for Health Connect, that confirmed Ms. Hogan was able to return to
work in December but could not continue after the second accident in January.
Additionally, Health Connect argued the objective studies did not support the
recommended surgery. Collectively, Health Connect argued these facts were sufficient to
3
rebut the presumption of correctness attached to Dr. Schroerlucke's opinion. See Tenn.
Code Ann.§ 50-6-102(14)(E) (2018).
Ms. Hogan countered that Health Connect did not rebut the presumption. She
asserted the Court should accredit the opinion of Dr. Schroerlucke over the opinions of
the other physicians under the applicable legal criteria. Specifically, she argued Dr.
Schroerlucke's status as the treating physician allowed him the most contact with her and
placed him in the best position to provide an accurate opinion. She also argued the two
MRis "mirrored" each other, indicating no anatomic change after the first accident. She
summarized by asserting that she suffered an injury in September, suffered an
aggravation in January, but then returned to her baseline symptoms caused by the first
accident. She requested the Court to order Health Connect to pay for the surgery.
Findings of Fact and Conclusions of Law
The dispositive issue is whether Ms. Hogan established her work injury was the
primary cause of her need for surgery. At this Expedited Hearing, she must show a
likelihood of prevailing at a hearing on the merits. Tenn. Code Ann.§ 50-6-239(d)(l).
Under law, a compensable injury is one that arises primarily out of the
employment and causes either "disablement or the need for medical treatment[.]" Tenn.
Code Ann. § 50-6-102(14) (Emphasis added). An injury arises primarily out of the
employment only if it has been shown to a reasonable degree of medical certainty that the
work contributed more than fifty percent in causing the injury when considering all
causes. "Shown to a reasonable degree of medical certainty" means that it is more likely
than not considering all causes. Tenn. Code Ann.§ 50-6-102(14)(A)-(D).
Here, Dr. Schroerlucke directly testified that the September 14, 2017 accident was
the primary cause of Ms. Hogan's need for surgery. He offered that opinion with
knowledge of Ms. Hogan's subsequent accidents and of her anatomic condition,
indicating his required consideration of all potential causes. Because Dr. Schroerlucke's
causation opinion is presumed correct, the Court turns to whether Health Connect
rebutted it by a preponderance of the evidence.
When considering the medical opinions, the Court has discretion to conclude that
one should be accepted over that of the others and that it contains the more probable
explanation. Ledford v. Mid-Georgia Courier, Inc., 2018 TN Wrk. Comp. App. Bd.
LEXIS 28, at *8 (June 4, 2018). In evaluating the medical opinions, the Court may
consider, among other things, the qualifications of the experts, the circumstances of their
evaluation, the information available to them, and the evaluation of the importance of that
information by other experts. Hollis v. Komyo Amer., 2019 TN Wrk. Comp. App. Bd.
LEXIS 4, at *11 (Jan. 22, 2019), citing Orman v. Williams Sonoma, Inc., 803 S.W.2d
672, 676 (Tenn. 1991). Here, the Court agrees with Ms. Hogan that it should accept Dr.
Schroerlucke's opinion.
4
First, Dr. Schroerlucke is spine specialist. While Dr. Lochemes testified that he
treats all orthopedic conditions, he does not offer similar expertise. The record does not
detail the qualifications of Dr. Kahn other than his being an orthopedic surgeon. Thus, the
Court finds Dr. Schroerlucke the mostqualified.
Second, Dr. Schroerlucke treated Ms. Hogan after Health Connect offered him on
a panel. He did not see her merely for the purpose of obtaining an opinion. Further,
Health Connect obtained the opinions of Dr. Lochemes and Dr. Kahn only after Dr.
Schroerlucke recommended surgery. This came after Health Connect paid for all other
treatment he recommended, and Health Connect continues to pay TTD benefits because
he continues to restrict Ms. Hogan from work. The Court finds the circumstances of Dr.
Schroerlucke's evaluation the most compelling.
Third, Dr. Schroerlucke had the most information available to him. Dr.
Schroerlucke reviewed both MRis near the time they were made, allowing him to
clinically correlate Ms. Hogan's symptoms to those findings. Dr. Lochemes reviewed
only one MRI, and Dr. Kahn reviewed only reports of the MRis. More importantly, Dr.
Schroerlucke examined Ms. Hogan on multiple occasions, compared to her one visit to
Dr. Lochemes and none to Dr. Kahn. "It seems reasonable that the physicians having
greater contact with the plaintiff would have the advantage and opportunity to provide a
more in-depth opinion if not a more accurate one." Orman, at 677. Here, Dr.
Schroerlucke had the greater contact with Ms. Hogan, and Dr. Lochemes testified he
"would take into account" that Dr. Schroerlucke saw her over the course of both
accidents. The Court finds Dr. Schroerlucke had the most complete information available
to him.
Fourth, the Court finds Dr. Schroerlucke's evaluation of the importance of
information the most persuasive. He explained how Ms. Hogan's symptoms were present
after the first accident and that he could not "blame" the second accident for them. He
explained that he "can't completely forget about" the first accident and "that original disc
herniation." The Court finds this opinion the "more probable explanation" for Ms.
Hogan's symptoms. See Ledford, supra.
Finally, the Court considers the medical proof "in conjunction with the lay
testimony of [Ms. Hogan] as to how the injury occurred and [her] subsequent condition."
Nance v. Randstad, 2015 TN Wrk. Comp. App. Bd. LEXIS 15, at *9 (May 27, 2015).
Here, the Court finds Ms. Hogan testified credibly and convincingly that her symptoms
began after the first accident and never completely resolved. After the January
aggravation, she explained her symptoms returned to a baseline as Dr. Schroerlucke
described. She claimed continued disabling pain, and based on the Court's direct
observation, the Court believes her and finds her credible. The Court also observed a
demeanor similar to that described by Dr. Schroerlucke when he first mentioned surgery
as a last resort, namely Ms. Hogan became "very upset." The Court believes Ms. Hogan's
testimony that she desires surgery in an attempt to "get her life back."
5
Based on the totality of the evidence, the Court holds Ms. Hogan would likely
prevail at a hearing on the merits.
IT IS, THEREFORE, ORDERED AS FOLLOWS:.
1. Health Connect shall pay for the recommended surgery.
2. This case is set for a Status Hearing on Monday, August 26, 2019, at 9:30
a.m. Central Time. You must call 731-422-5263 or toll-free at 855-543-5038
to participate in the Hearing. Failure to call 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 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 v1a email at
WCCompliance.Program@tn. gov.
ENTERED June 3, 2019.
Court of Worker ' Compensation Claims
6
APPENDIX
Technical Record
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Order Setting Expedited Hearing
5. Order Resetting Expedited Hearing
6. Employee's Pre-Hearing Brief
7. Employer's Witness List and Notice of Filing
Exhibits
1. Deposition ofDr. Samuel Schroerlucke
2. Deposition of Dr. John Lochemes
3. Collective Medical Records
4. Sworn Declaration of Ariane Graves
CERTIFICATE OF SERVICE
I certify that a copy of this Expedited Hearing Order was sent to the following
recipients as indicated below on June 3, 2019.
Name Via Service sent to:
Email
Monica Rejaei, Employee's Attorney X mrej aei@nstlaw .com
i karoovich@nstlaw .com
Ryan Malone, Employer's Attorney X aan@geterson white. com
Beverly. uphoff@oetersonwhite.com
Penny Shrum, Court Clerk
Court of Workers' Compensation Claims
7
Exp dited Hearing Order Right to AppeaJ:
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:
l. 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 lndigency 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 I: - - - - - - - - - -
www.t n.gev/la bor-wfd/wcomp.shtml
State File #/YR: - - - - - - - -
wc.courtclerk@tn.gov
1-800-332-2667 RFAI#: ___________________
Date of lojury: - - - - - - - - -
SSN: ____________________
Employee
Employer and Carrier
Notice
Notice is given that ____________________________ _ __
[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]
0 Temporary disability benefits
0 Medical benefits for current injury
0 Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): ________________;At 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 addft{onal sheet for each additional Appellant"
LB-1099 rev.4/15 Page 1 cf 2 RDA 11082
SF#: _ _ _ _ _ _ _ _ _ _ 001: _ _ _ _ __
Employee Name: - - - - - - - - - - -
Aopellee(s)
Appellee (Opposing Party): _ _ _ _ _ _ _ _ At Hearing: OEmployer DEmployee
Appellee's Address: - - - - - - - - - - - - - - -- - - - - - - - - - - - - - -
Appellee's Phone:._ _ _ _ _ _ _ _ _ _ _ _ _ _Email:_ _ _ _ _ _ _ _ _ _ _ _ __
Attorney's Name: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ BPR#: - - - - - - - -
Attorney's A d d r e s s : ' - - - - - - - - - - - - - - - - - - - - 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 o f - J 20_.
[Signature of appellant or attorney for appellant]
LB-1099 rev.4/15 Page 2 of2 RDA 11082
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 Comp.$ per month beginning
Other $ per month beginning
LB-11 08 (REV 11115) 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: --------------L
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