Douglas Brent Walker v. G.UB.MK Constructors

IN THE SUPREME COURT OF TENNESSEE
SPECIAL WORKERS’ COMPENSATION APPEALS PANEL
AT KNOXVILLE
December 2, 2015 Session
DOUGLAS BRENT WALKER v. G.UB.MK CONSTRUCTORS
Appeal from the Circuit Court for Knox County
No. 256105 William T. Ailor, Judge
No. E2015-00346-SC-R3-WC-MAILED- MARCH 30, 2016
FILED-MAY 2, 2016
In 2003, an employee sustained injuries to his spine, pelvis, and shoulder while working
for his employer. In 2007, the trial court determined that the employee was permanently
and totally disabled as a result of the work-related injury and that his employer was
responsible for authorized future medical treatment directly related to the work-related
injury. In 2013, the employee filed a motion to compel medical benefits, asserting that
his employer had refused to pay for medical treatment determined to be reasonable and
necessary by his authorized treating physician. The trial court denied the motion, and the
employee appealed. The appeal has been referred to the Special Workers’ Compensation
Appeals Panel for a hearing and a report of findings of fact and conclusions of law
pursuant to Tennessee Supreme Court Rule 51. We affirm the trial court’s judgment.
Tenn. Code Ann. § 50-6-225(e) (2008 & Supp. 2013) Appeal as of Right; Judgment
of the Trial Court Affirmed
KRISTI M. DAVIS, SP.J., delivered the opinion of the Court, in which SHARON G. LEE,
C.J., and DON R. ASH, SR.J., joined.
Annie S. Duncan, Knoxville, Tennessee, for the appellant, Douglas Brent Walker.
Karen G. Crutchfield and Andrew J. Hebar, Knoxville, Tennessee, for the appellee,
G.UB.MK Constructors.
OPINION
Factual and Procedural Background
On July 14, 2003, Douglas Brent Walker (“Employee”) was injured in the course
and scope of his employment with G.UB.MK Constructors (“Employer”). Employee was
treated by Dr. Edward A. Workman for spinal, pelvic, and shoulder injuries. In July of
2007, the trial court found that Employee was permanently and totally disabled,
allocating 75% of the disability to Employer and 25% of the disability to the Second
Injury Fund. The trial court ordered that Employer was “responsible for authorized
future medical treatment directly related to the injuries sustained in the accident of July
14, 2003.”
In December of 2013, Employee filed a motion to compel medical benefits, for
contempt of court, attorney’s fees, and bad faith penalties. The motion sought an order
requiring Employer “to authorize and pay for medical treatment and other benefits
determined to be medically reasonable and necessary by [Dr. Workman].” The motion
asserted that beginning in 2009, Employer repeatedly denied Employee medical
treatment that was ordered and requested by Dr. Workman. The motion stated that “Dr.
Workman has requested authorization and pre-certification for a series of trigger point
injections, PNT,[1] and aquatic therapy[,] which Dr. Workman has documented to be
reasonable and medically necessary for treatment of [Employee’s] chronic pain and
related depression resulting from his work-related injuries.”
In support of his motion, Employee submitted an affidavit from Dr. Workman,
who explained that following Employee’s accident, Dr. Workman treated Employee for
“chronic pain and for his pain induced depressive spectrum illness.” After several years
of treatment, however, Dr. Workman became unable “to contain [Employee’s] pain by
medications alone,” due largely to “the presence of myofascial trigger points in the
lumbar regions bilaterally from L-1 to S-1, and at various bilateral shoulder sites.” As a
result, Dr. Workman sought approval and pre-certification from Employer’s insurance
carrier for trigger point injections and PNT, which he said had been “immensely” helpful
in the past in relieving Employee’s chronic pain and depression. Dr. Workman stated,
however, that the insurance carrier consistently denied the requested treatments following
the utilization review process.2 Dr. Workman explained:
Recently we sought pre-certification for the injections once again and they
were denied via an “evaluation” of the patient by a physician who has never
1
Percutaneous neuromodulation therapy.
2
Attached to his motion, Employee included a number of records from the utilization review
process, indicating multiple rejections of trigger point injections and PMT, as well as the rejection of
aquatic therapy. Further, in January of 2014, Employee filed a supplemental affidavit from Dr.
Workman, which was similar to Dr. Workman’s original affidavit, but added that in 2013, Employer’s
insurance carrier had “approved only one injection when a series of at least twelve . . . ha[d been] shown
to be medically necessary.”
2
seen or examined him and clearly did not understand his condition or
clinical situation. The physician claimed that the injections were medically
unnecessary and that there was no evidence of their efficacy, despite the
fact that the injections in the past have helped this patient immensely and
kept him off highly addictive and side-effect laden narcotics. He also
claimed that the request did not meet some unknown guidelines regarding
the prior use of physical therapy, home strengthening and the presence of
twitch responses. In fact, the patient . . . has had physical therapy in the
past and this did not help. He does home stretching regularly and still
needs the injections. We document on every visit that his trigger point
exhibits the twitch response that the reviewer apparently did not see in our
records.
Dr. Workman further indicated that Employee “meets all reasonable clinical
guidelines for trigger point injections and PNT” and “would benefit from aquatic
therapy.” He also concluded that “without such treatments, there appear to be no further
options for needed treatment.”
In further support of his motion, Employee attached a number of medical records
from Dr. Workman. These records reflect that Dr. Workman examined and treated
Employee on a monthly basis from July of 2009 to November of 2013, setting forth
detailed recommendations following each examination. On January 24, 2011, after the
denial of trigger point injections, Dr. Workman made the following note in Employee’s
medical records:
1-First the reviewer claimed that we presented no information to show that
the patient had palpable trigger points with a twitch response. On the prior
injection notes, these were documented every single injection set. The[s]e
are also described in terms which meet the “criteria” stated in every exam
as above.
2-Secondly, the ODG “criteria” for trigger points are literally lifted from
the Blue Cross criteria and guidelines for TENDER POINTS and their
injection in FIBROMYALGIA. We are dealing with TRIGGER POINTS
in MYOFASCIAL Pain, NOT FIBROMYALGIA; the ODG guidelines are
completely irrelevant and apply to FIBROMYALGIA TENDER POINTS
(see Blue [C]ross guidelines for such and the American Rheumatological
Assn. guidelines; they are identical); now that they have lifted in toto and
placed on TRIGGER POINTS guidelines by the questionable ODG system.
Similarly, in February of 2011, Dr. Workman noted as follows:
I have recommended a series of 12 sets of trigger point injections to the
cervical and lumbar spine musculature due to emergence of trigger points
3
that are causing severe pain; the “review” by the carrier applied to
Fibromyalgia tender points NOT myofascial trigger points. See above
discussion about ODG guidelines for “trigger points and their injection”
and BC/BS guidelines for fibromyalgia “Tender points and their
injections.” The guidelines are identical, but the diseases and objects of
injection are TOTALLY different.3
Further, in May of 2011, Dr. Workman noted that he was “recommending Aqua
Therapy twice a week for 8 weeks to help improve [Employee’s] shoulder range of
motion and help to decrease his pain flaring; this is the only option left as trigger point
injections and PNT are consistently denied by the carrier.”4
Employee also included his own affidavit, wherein he stated that trigger point
injections and PNT had, in the past, made his life “much more pleasant” and that the
treatments were effective in relieving his chronic pain and feelings of depression he had
as a result of the pain. He explained that since the treatments had been denied, his pain
has increased, his depression has gotten worse, and he has been told by others that his
attitude has suffered. He said he would like to receive the trigger point injections, PNT,
and aquatic therapy that Dr. Workman has recommended.
Employer responded that it had provided all reasonable and necessary medical
treatment and that the only treatment that was denied was done so through the benefit
review process. Employer relied on the affidavit of Dr. Jeffrey E. Hazlewood, who was
designated to review the case as part of the utilization review appeal process. Dr.
Hazlewood stated that after reviewing “all the medical records of [Employee] and
documentation provided . . . by [Dr. Workman], as well as Utilization Review records,”
he concluded “within a reasonable degree of medical certainty, that the trigger point
injections and [PNT were] not reasonable and necessary medical treatments for
[Employee’s] back pain.” Employer also included the affidavit of Terrie Williams, the
claims administrator assigned to Employee’s workers’ compensation claim, who asserted
that all reasonable and necessary treatments had been paid and that the treatments
Employee was seeking to compel had been determined not to be reasonable and/or
necessary through the utilization review process.
In its response, Employer explained that Dr. Workman’s requests for cervical and
lumbar trigger point injections in July of 2009 were denied following utilization review
by Dr. Scott Limpert, who determined that the requested services “d[id] not meet
established standards of medical necessity,” as “[i]t [was] premature at th[at] point to
3
Dr. Workman made a similar note in March of 2011.
4
Dr. Workman also noted his recommendation for aquatic therapy in June of 2011.
4
administer . . . trigger point injections.” As part of the utilization review appeal process,
Dr. Limpert’s decision was upheld by Dr. Terrence Wilson, who opined as follows:
Current clinical guidelines do not endorse the repeated use of trigger point
injections as the primary mode of treatment for myofascial syndrome;
rather, the use of trigger point injections is deemed to be limited to the
extinction of specific foci that are hindering progress during a more active
course of treatment with postural and ergonomic correction, stretching and
flexibility training and exercise, manual medicine intervention and/or
therapeutic exercise. The medical necessity for the continuation of trigger
point injections as a primary means of treating residual myofascial
dysfunction can[]not be established based upon the clinical documentation
submitted at this time.
Employer further noted that in December of 2010, Dr. Workman’s request for trigger
point injections was again denied following utilization review by Dr. Phillip Beaulieu.5
In addition, Dr. Workman’s May 2009 request for PNT was denied after Dr.
Sankar Pemmaraju found that PNT was an unproven alternative for long-term pain
management and that there were no objective findings to justify the need for PNT.
Employer also noted that Dr. Workman’s request for aquatic therapy in May of 2011 was
denied after Dr. Anna-Louise Molette found that the request was not medically necessary
because the treatment was typically used for patients with severe arthritis or patients who
needed exercises or rehabilitation that required minimizing weight bearing and that there
was no documentation or imaging that supported this treatment for Employee.
After a hearing, the trial court denied Employee’s motion to compel medical
benefits, as well as his request for attorney’s fees and bad faith penalties. Employee has
appealed from that decision.
Standard of Review
Our standard of review of factual issues in a workers’ compensation case is de
novo upon the record of the trial court, accompanied by a presumption of correctness of
the trial court’s factual findings, unless the preponderance of the evidence is otherwise.
Tenn. Code Ann. § 50-6-225(e)(2) (2014); Whirlpool Corp. v. Nakhoneinh, 69 S.W.3d
164, 167 (Tenn. 2002) (citing Tenn. Code Ann. § 50-6-225(e)(2); Cutler-Hammer v.
Crabtree, 54 S.W.3d 748, 753 (Tenn. 2001)). When issues of credibility of witnesses and
the weight to be given their in-court testimony are before the reviewing court,
considerable deference must be accorded to the factual findings of the trial court.
5
Dr. Workman’s request for trigger point injections was denied a third time by Dr. Yusuf
Mosuro, but Dr. Mosuro’s records are not included in the record.
5
Richards v. Liberty Mut. Ins. Co., 70 S.W.3d 729, 732 (Tenn. 2002) (citing Seals v.
England/Corsair Upholstery Mfg. Co., 984 S.W.2d 912, 915 (Tenn. 1999)); see also
Rhodes v. Capital City Ins. Co., 154 S.W.3d 43, 46 (Tenn. 2004) (citing Tobitt v.
Bridgestone/Firestone, Inc., 59 S.W.3d 57, 61 (Tenn. 2001)) (“The trial court’s findings
with respect to credibility and weight of the evidence may generally be inferred from the
manner in which the court resolves conflicts in the testimony and decides the case.”).
When expert medical testimony differs, it is within the trial judge’s discretion to accept
the opinion of one expert over another. Hinson v. Wal-Mart Stores, Inc., 654 S.W.2d
675, 676-77 (Tenn. 1983) (citing Combustion Eng’g, Inc. v. Kennedy, 562 S.W.2d 202
(Tenn. 1978)). This Court, however, may draw its own conclusions about the weight and
credibility to be given to expert testimony when all of the medical proof is by deposition.
Krick v. City of Lawrenceburg, 945 S.W.2d 709, 712 (Tenn. 1997) (citing Orman v.
Williams Sonoma, Inc., 803 S.W.2d 672, 676-77 (Tenn. 1991)). Questions of law are
reviewed de novo with no presumption of correctness afforded to the trial court’s
conclusions. Gray v. Cullom Machine, Tool & Die, Inc., 152 S.W.3d 439, 443 (Tenn.
2004) (citing Tucker v. Foamex, L.P., 31 S.W.3d 241, 242 (Tenn. 2000)).
Analysis
Authorization for Medical Treatment
Employee argues that the trial court erred in denying his motion to compel
medical benefits because, as the treating physician, Dr. Workman’s course of treatment
was presumed medically reasonable and necessary. Employee contends that Dr.
Hazlewood’s affidavit was insufficient to overcome the presumption because neither he,
nor the physicians involved in the utilization review process, personally examined
Employee. Employer argues that the evidence does not preponderate against the trial
court’s judgment.
As provided by Tennessee Code Annotated section 50-6-204(a)(1)(A):
The employer or the employer’s agent shall furnish, free of charge to the
employee, such medical and surgical treatment, medicine [and other
medical services or devices] . . . as ordered by the attending physician and
hospitalization, . . . made reasonably necessary by accident as defined in the
[Workers’ Compensation Act].
Tenn. Code Ann. § 50-6-204(a)(1)(A) (2014). Treatment requested and furnished by the
designated authorized treating physician for work-related injuries is presumed to be
medically necessary and reasonable. Russell v. Genesco, Inc., 651 S.W.2d 206, 211
(Tenn. 1983). However, employers may use the utilization review process to evaluate
whether a physician’s course of treatment is necessary, appropriate, and efficient. Tenn.
Code Ann. § 50-6-102(18) (1999 & Supp. 2003) (defining “[u]tilization review” as the
6
“evaluation of the necessity, appropriateness, efficiency and quality of medical care
services provided to an injured or disabled employee based on medically accepted
standards and an objective evaluation of the medical care services provided”); see also id.
§ 50-6-122 (1999 & Supp. 2003) (providing that, along with ensuring the availability of
quality medical care services to injured and disabled employees, it is the intent of the
Legislature “to control increasing medical costs in workers’ compensation matters by
establishing cost control mechanisms to ensure cost-effective delivery of medical care
services by employing a program of medical case management and a program to review
the utilization and quality of medical care services”); id. § 50-6-124 (1999 & Supp. 2003)
(providing for a system of utilization review established by the commissioner of labor
and workforce development of selected healthcare providers for employees claiming
benefits under the Workers’ Compensation Act).6
In denying Employee’s motion to compel medical benefits, the trial court noted as
follows:
Dr. Jeffrey Hazlewood is a licensed Tennessee physician specializing in
pain management and physical rehabilitation in Lebanon, Tennessee, and in
his capacity as the Designee of the Medical Director of the Tennessee
Department of Labor and Workforce Development . . . reviewed the
medical and other records submitted through the Utilization Review
process, and the proposed trigger point injections, PNT’s, and
a[]quatherapy treatment prescribed by Dr. Edward Workman, the medical
peer review reports provided by other medical doctors as a part of the
Utilization Review Process, and opined that he was in agreement with the
reviewing doctors in the Utilization Review Process that such treatment
was not reasonable and necessary for the Employee’s current diagnosis and
treatment, and provided an Affidavit in this cause confirming his review of
6
At the time of Employee’s injury, Tennessee Code Annotated section 50-6-124 provided, in
part:
(a) The commissioner of labor and workforce development shall establish a system of
utilization review of selected outpatient and inpatient health care providers to employees
claiming benefits under the Workers’ Compensation Law . . . by providers qualified
pursuant to law or the utilization review accreditation commission.
....
(d) Nothing in this section shall prevent an employer from electing to provide utilization
review; however, if the employee, provider or any other party not contractually bound to
the employer’s utilization review program disagrees with that employer’s utilization
review, then that employee, provider or other party shall have recourse to the
commissioner’s utilization review program . . . .
Tenn. Code Ann. § 50-6-124 (1999 and Supp. 2003).
7
the records and his opinion that certain treatment proposed by Dr.
Workman was not appropriate[.]
The trial court ruled that Dr. Hazlewood “sufficiently rebutted the presumption that the
treatment in dispute prescribed by [Dr. Workman was] reasonable and necessary, and
therefore, [that] it [was] not appropriate to compel the Employer to authorize and pay for
the trigger point injections, PNT’s and aquatherapy.”
We conclude that the evidence does not preponderate against the trial court’s
decision. Dr. Hazlewood reviewed the pertinent medical records and reports, and each
physician in the utilization review process concluded that trigger point injections, PNT,
and aquatic therapy were not medically reasonable or necessary. These conclusions were
supported by detailed findings. For example, with respect to trigger point injections, Dr.
Wilson determined that “[c]urrent clinical guidelines do not endorse the repeated use of
trigger point injections as the primary mode of treatment for myofascial syndrome.”
With respect to PNT, Dr. Pemmaraju determined that PNT was unproven for long-term
pain management and that there were no objective findings with regard to the
Employee’s low back pain to justify the need for PNT. Finally, Dr. Molette concluded
that aquatic treatment is typically reserved for patients with severe arthritis or patients
who need exercises that require minimal weight bearing. Given that Dr. Hazlewood
considered the utilization review records, as well as Employee’s medical records
provided by Dr. Workman, we disagree with Employee’s argument that Dr. Hazlewood
simply provided a conclusory affidavit that lacked support.
Employee relies on Harville v. Emerson Electric Co., No.
W2010-01011-WC-R3-WC, 2011 WL 11745136 (Tenn. Workers’ Comp. Panel July 6,
2011), for the proposition that the presumption in favor of the authorized treating
physician’s recommendation cannot be rebutted by the affidavit of a non-treating
physician. In Harville, a treating physician’s recommendation for an electromyogram
(“EMG”) and nerve conduction study to treat the employee’s carpal tunnel syndrome was
denied by a utilization review provider due to the physician’s failure to try conservative
treatment, such as splinting, restrictions, medications, and physical therapy. Harville,
2011 WL 11745136, at *1. In response, the treating physician opined that the guidelines
promulgated by the American Academy of Orthopedic Surgeons did not require such
conservative treatment for carpal tunnel syndrome. Id. at *2. The trial court ordered the
employer to authorize the treatment after finding that it was reasonably necessary. Id.
The trial court considered the deposition testimony of the treating physician and a letter
from the utilization review physician, Dr. Andrew Cole. Id. at *5. In upholding the trial
court’s decision, the Special Workers’ Compensation Appeals Panel noted that, whereas
the treating physician’s opinion was presented by deposition, in which he explained his
reasoning and was subjected to cross-examination, Dr. Cole’s opinion “was expressed in
a letter placed into evidence as an exhibit.” Id. Contrasting this with the treating
physician’s opinion, the panel stated that Dr. Cole did not actually examine the employee,
8
that it was unclear what records or other information Dr. Cole reviewed in forming his
opinion, and that Dr. Cole was not subjected to cross-examination. Id.
Employee argues that Dr. Hazlewood’s affidavit cannot overcome the presumption
afforded to Dr. Workman. However, Employee reads Harville too broadly, as Harville
does not stand for the proposition that the presumption afforded to a treating physician’s
opinion can only be overcome by a physician who has examined the employee and whose
opinions have been subject to cross-examination. While these may be factors for the trial
court to consider, they may not be dispositive in every case. In the present case, unlike
Harville, the record reflects that Dr. Hazlewood considered all of the pertinent records,
including both the utilization review decisions and the opinions of Dr. Workman. Thus,
we find Employee’s reliance on Harville to be misplaced.
Attorney’s Fees and Bad Faith Penalty
Having determined that the trial court did not err in denying Employee’s motion to
compel medical benefits, we necessarily conclude that the trial court did not err in
denying attorney’s fees or refusing to impose a bad faith penalty.
Conclusion
For the foregoing reasons, the trial court’s judgment is affirmed. Costs are
assessed to Douglas Brent Walker and his surety, for which execution shall issue if
necessary.
__________________________________
KRISTI M. DAVIS, SPECIAL JUDGE
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IN THE SUPREME COURT OF TENNESSEE
SPECIAL WORKERS’ COMPENSATION APPEALS PANEL
AT KNOXVILLE
DOUGLAS BRENT WALKER v. G.UB.MK CONSTRUCTORS
Circuit Court for Knox County
No. 256105
No. E2015-00346-SC-R3-WC-FILED-MAY 2, 2016
JUDGMENT ORDER
This case is before the Court upon the entire record, including the order of referral
to the Special Workers’ Compensation Appeals Panel, and the Panel’s Memorandum
Opinion setting forth its findings of fact and conclusions of law, which are incorporated
herein by reference.
Whereupon, it appears to the Court that the Memorandum Opinion of the Panel
should be accepted and approved; and
It is, therefore, ordered that the Panel’s findings of fact and conclusions of law are
adopted and affirmed, and the decision of the Panel is made the judgment of the Court.
Costs on appeal are taxed to Douglas Brent Walker and his surety, for which
execution may issue if necessary.
It is so ORDERED.
PER CURIAM
10