Stephens, Tonya v. Quality Private Care d/b/a Volunteer Staffing, Inc.

FILED
Jul 06, 2021
09:53 AM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Tonya Lynn Stephens ) Docket No. 2018-03-1494
)
v. ) State File No. 59534-2016
)
Quality Private Care d/b/a )
Volunteer Staffing, Inc., et al. )
)
)
Appeal from the Court of Workers’ ) Heard June 24, 2021
Compensation Claims ) via Microsoft Teams
Lisa A. Lowe, Judge )
Affirmed and Remanded
In this interlocutory appeal, the employer declined to authorize certain medical treatment
prescribed by an authorized treating physician based on the opinion of another physician
that the recommended treatment was contraindicated due to a diagnosed psychological
condition and was not medically necessary under the circumstances. In response to an
“emergency motion to halt unsafe, contraindicated procedure or, in the alternative, to
hold employer harmless for bad outcome,” the trial court concluded the testimony and
opinions offered by the treating physicians outweighed those of the employer’s expert,
and it ordered the employer to authorize the treatment. The employer has appealed. We
affirm the trial court’s order and remand the case.
Presiding Judge Timothy W. Conner delivered the opinion of the Appeals Board in which
Judge David F. Hensley and Judge Pele I. Godkin joined.
Nicholas J. Peterson and Amy Brown, Knoxville, Tennessee, for the employer-appellant,
Quality Private Care d/b/a Volunteer Staffing, Inc.
Jay E. Kohlbusch, Knoxville, Tennessee, for the employee-appellee, Tonya Lynn
Stephens
Factual and Procedural Background
Tonya Lynn Stephens (“Employee”) worked as a home health nurse for Quality
Private Care d/b/a Volunteer Staffing, Inc. (“Employer”). On August 5, 2016, Employee
was lifting a patient when she felt pain and a pop in her left shoulder. She also
1
complained of neck pain, low back pain, and hip pain. Employer initiated benefits and
authorized medical treatment, and Employee came under the care of an orthopedic
surgeon, Dr. William Hovis, who performed two shoulder surgeries. After the second
shoulder surgery, Dr. Hovis referred Employee to Dr. Sean Grace, a shoulder specialist,
for an evaluation. Dr. Grace diagnosed complex regional pain syndrome (“CRPS”) and
recommended a referral to another physician. Employee then selected Dr. David
Newman from an employer-provided panel, who provided pain management treatment.
Dr. Newman recommended several courses of treatment, including a spinal cord
stimulator trial. Employer submitted Dr. Newman’s treatment recommendations to its
utilization review (“UR”) provider, and the reviewing physician recommended that the
spinal cord stimulator trial be denied. However, when this recommended treatment was
submitted for utilization review a second time, the UR physician agreed the spinal cord
stimulator trial was medically necessary. 1
Before Employee was able to proceed with the spinal cord stimulator trial, Dr.
Newman retired, and treatment was delayed while Employer provided another panel of
physicians. The next panel-selected physician, Dr. James Choo, first saw Employee on
July 15, 2020. He agreed Employee suffered from CRPS and was a candidate for a spinal
cord stimulator trial, but he noted certain prerequisites to proceeding. Specifically,
Employee’s A1C test, which measures blood sugar, needed to be under a certain level
due to her diabetes, and she needed a psychological evaluation to assess the
appropriateness of the spinal cord stimulator trial. Thereafter, Employee underwent a
psychological evaluation with Dr. Ted Jones, who diagnosed her with somatic symptom
disorder, severe depression and anxiety, and “significant catastrophizing.” Nevertheless,
Dr. Jones concluded Employee was a “good candidate” for the spinal cord stimulator trial
despite these diagnoses.
Employer requested Dr. Jeffrey Hazlewood, a physical medicine and rehabilitation
specialist, to review medical records and offer opinions on diagnoses and treatment
recommendations, including the appropriateness of the spinal cord stimulator trial. After
reviewing numerous records, Dr. Hazlewood commented that “[t]here have been minimal
objective signs of CRPS documented, and basically this diagnosis was based on
apparently subjective symptoms with lack of explanation otherwise of her current
symptomatology.” As a result, Dr. Hazlewood concluded he could not state “within a
reasonable degree of medical certainty that this claimant has a diagnosis of [CRPS].” He
further concluded, “[i]t is not appropriate to refer to a spinal cord stimulator placement, in
1
In an expedited hearing order issued May 24, 2019, in which the trial court ordered Employer to
authorize compounded creams as prescribed by Dr. Newman, the trial court noted that Dr. Newman had
recommended several courses of treatment, including a spinal cord stimulator, and that Employer had
“agreed to authorize all of the treatments except the compound[ed] creams.” Thus, contrary to the
assertion in Employer’s “Emergency Motion to Halt Unsafe, Contraindicated Procedure,” which sought to
“rescind prior order authorizing a spinal stimulator surgical implant,” the record contains no such order.
Instead, the record indicates Employer had previously agreed to authorize the spinal cord stimulator trial.
2
my opinion, when there is no clear cut anatomical diagnosis, and certainly not enough
objective findings . . . to justify a spinal cord stimulator.” Finally, Dr. Hazelwood
commented that it is not appropriate under the Official Disability Guidelines (“ODG”) for
a psychological evaluator to have a financial relationship with the physician who
prescribed the spinal cord stimulator trial and, based on his review of the records, such a
relationship existed between Dr. Choo and Dr. Jones.
In response to Dr. Hazlewood’s report, Employee’s attorney requested
supplemental opinions from Dr. Choo and Dr. Jones. In a November 16, 2020 letter to
Employee’s attorney, Dr. Jones disagreed with certain of Dr. Hazlewood’s statements
and, in particular, noted that “[n]ot all patients who have [somatic symptom] disorder
should be ruled out from a stimulator treatment.” After noting he had evaluated
“hundreds of patients for spinal cord stimulators,” he expressly disagreed with Dr.
Hazlewood’s conclusions and suggested Dr. Hazlewood not “practic[e] psychology
without a license.” Finally, he rejected Dr. Hazlewood’s statements concerning his
relationship with Dr. Choo and explained that he is an “independent psychologist” whose
practice merely rents space from Dr. Choo’s practice.
Similarly, in a November 16, 2020 letter to Employee’s attorney, Dr. Choo also
disagreed with Dr. Hazlewood’s conclusions. He insisted that, during his clinical
evaluations of Employee, he “performed a physical evaluation and observed her
symptoms were consistent with the IASP criteria for CRPS.” 2 He commented he had
“never had an instance where an insurance carrier questioned the validity of a diagnosis I
have made.” He disagreed that the proposed treatment violated the ODG. He rejected
Dr. Hazlewood’s statement that there was a financial relationship between himself and
Dr. Jones that precluded his referring patients to Dr. Jones for a psychological evaluation.
He also rejected Employer’s attorney’s suggestion that either he or his practice receives
any kind of financial remuneration from companies that sell neuromodulation devices. In
sum, Dr. Choo insisted that “patients who pass this screening and are determined to be
suitable candidates by the psychologist are permitted to proceed. Patients who do not
pass the screening do not proceed.”
Following a motion hearing, the trial court determined Employee had come
forward with sufficient evidence to conclude she would likely prevail at trial in proving
the reasonableness and medical necessity of a spinal cord stimulator trial that was
causally related to her work injury. Employer has appealed.
Standard of Review
The standard we apply in reviewing the trial court’s decision presumes that the
court’s factual findings are correct unless the preponderance of the evidence is otherwise.
2
IASP refers to the International Association for the Study of Pain.
3
See Tenn. Code Ann. § 50-6-239(c)(7) (2020). However, a trial court’s findings based
upon documentary evidence is reviewed do novo with no presumption of correctness.
Goodman v. Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at
*6 (Tenn. Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and
application of statutes and regulations are questions of law that are reviewed de novo with
no presumption of correctness afforded the trial court’s conclusions. See Mansell v.
Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are
also mindful of our obligation to construe the workers’ compensation statutes “fairly,
impartially, and in accordance with basic principles of statutory construction” and in a
way that does not favor either the employee or the employer. Tenn. Code Ann. § 50-6-
116 (2020).
Analysis
On appeal, Employer asserts the trial court erred in several respects. First,
Employer insists a trial court cannot order treatment that does not comply with the ODG.
Second, Employer argues it cannot be held liable for the cost of treatment that does not
comply with the ODG. Third, Employer insists the trial court abused its discretion in
failing to consider the ODG when evaluating the medical necessity of the prescribed
treatment. Fourth, Employer asserts the trial court erred in not holding it harmless from
any adverse effects that could occur as a result of the spinal cord stimulator trial. For her
part, Employee asserts Employer’s appeal is frivolous and/or taken solely for delay, and
she moves this court to award her “damages.”
Medical Treatment Guidelines
The issues raised by Employer require us to consider and interpret the statutes and
regulations regarding the adoption of the medical treatment guidelines for workers’
compensation claims. In 2013, the General Assembly authorized and instructed the
Administrator of the Bureau of Workers’ Compensation, in consultation with the medical
advisory committee, to “adopt guidelines for the diagnosis and treatment of commonly
occurring workers’ compensation injuries” by January 1, 2016. Tenn. Code Ann. § 50-6-
124(g) (2014). In discharging this obligation, the Administrator officially adopted the
Work Loss Data Institute ODG Guidelines, effective January 1, 2016, and “any future
published updates.” Tenn. Comp. R. & Regs. 0800-02-25-.03(1) (rev. 2018).
Regulations pertaining to the ODG provide that medical treatment that is
“in accordance with the [ODG] . . . is presumed to be reasonable and necessary.” Tenn.
Comp. R. & Regs. 0800-02-25-.03(2). Moreover, “[a]ny treatment that explicitly follows
the treatment guidelines . . . or is reasonably derived therefrom, including allowances for
specific adjustments to treatment, shall have a presumption of medical necessity for
utilization review purposes.” Id. This presumption “shall be rebuttable only by clear and
4
convincing evidence that the treatment erroneously applies the guidelines or that the
treatment presents an unwarranted risk to the injured worker.” Id.
In addition, Bureau regulations acknowledge that “each individual clinical
situation and patient [are] unique” and that “[t]he guidelines are not a standard or a
mandate.” Tenn. Comp. R. & Regs. 0800-02-25-.03(3). Furthermore, “[e]xceptions to
and the proper application of the guidelines require judgment.” Id.
Finally, the regulations provide that an employer “shall not deny treatment based
solely on the determination that the treatment falls outside of the guideline if such denial
is not supported by documented evidence-based medicine.” Tenn. Comp. R. & Regs.
0800-02-25-.03(4). Under such circumstances, “[t]he employer shall not be responsible
for charges for medical treatment that is not in accord with the guidelines unless: (a) [i]t
was provided in a medical emergency; (b) [i]t was authorized by the employer,” or “[i]t
was approved through the appeal process by the Bureau.” Tenn. Comp. R. & Regs.
0800-02-25-.03(5).
Authority of Trial Court to Order Medical Treatment
Judges on the Tennessee Court of Workers’ Compensation Claims have a statutory
duty to “hear and determine claims for compensation.” Tenn. Code Ann. § 50-6-
238(a)(3) (2020). Judges are obligated to apply the Tennessee Rules of Evidence and the
Tennessee Rules of Civil Procedure at all hearings “unless an alternative procedural or
evidentiary rule has been adopted by the administrator.” Tenn. Code Ann. § 50-6-
239(c)(1). Judges have the authority to issue “an order for the payment of benefits under
the workers’ compensation law.” Tenn. Code Ann. § 50-6-239(c)(2). They can also
issue orders “concerning the provision of temporary disability or medical benefits” at an
interlocutory stage of the case if the employee has presented sufficient evidence
supporting a finding that the employee “would likely prevail at a hearing on the merits.”
Tenn. Code Ann. § 50-6-239(d)(1).
With respect to medical benefits, trial judges must also consider several
evidentiary presumptions. For example, “[a]ny treatment recommended by a physician
or chiropractor selected [from an employer-provided panel], or by referral, if applicable,
shall be presumed to be medically necessary for treatment of the injured employee.”
Tenn. Code Ann. § 50-6-204(a)(3)(H). We previously discussed these presumptions in
Morgan v. Macy’s, No. 2016-08-0270, 2016 TN Wrk. Comp. App. Bd. LEXIS 39 (Tenn.
Workers’ Comp. App. Bd. Aug. 31, 2016), as follows:
[W]hen relevant statutory provisions and the rules governing the medical
treatment guidelines are read in conjunction, it is evident that a trial court
can apply one of two potential presumptions to the issue of medical
necessity in any given case. First, as codified in section 50-6-204(a)(3)(H),
5
treatment recommended by an authorized physician is presumed medically
necessary. While this provision does not specify the quantum of evidence
required to rebut the presumption, . . . Tennessee courts have long
acknowledged the presumption and considered it rebuttable by a
preponderance of the evidence.
....
Second, in circumstances where an employee establishes by expert medical
evidence that the recommended treatment “explicitly follows the treatment
guidelines” or “is reasonably derived therefrom, including allowances for
specific adjustments to treatment,” then the burden shifts to the employer to
rebut the presumption of medical necessity by clear and convincing
evidence.
Id. at *17-18 (internal citations omitted). In seeking to rebut this second presumption as
described above, an employer can seek to prove, by clear and convincing evidence, that
the physician erroneously applied the guidelines or that the treatment presents an
unwarranted risk to the injured worker. Tenn. Comp. R. & Regs. 0800-02-25-.03(2). In
accordance with Tennessee Code Annotated section 50-6-238(a)(3), the trial court is to
weigh the evidence and determine whether the employer has met this burden.
Trial Court’s Order for Medical Treatment
Here, the trial court was presented with conflicting medical opinions regarding the
reasonableness and medical necessity of the proposed spinal cord stimulator trial. Dr.
Newman initially recommended the spinal cord stimulator trial, and this recommendation
was reiterated by Dr. Choo, both of whom were panel-selected physicians. Moreover,
Dr. Jones, an authorized referral, completed the psychological evaluation and concluded
Employee was a suitable candidate for the spinal cord stimulator trial despite her
psychological conditions. Dr. Hazlewood, who conducted a medical records review but
did not evaluate the patient in person, recommended against the procedure and concluded
it fell outside the ODG. Both Dr. Choo and Dr. Jones responded to Dr. Hazlewood’s
objections. As we have discussed previously, when all such evidence is by deposition or
other documentation, a reviewing court is in as good a position as the trial court in
assessing such evidence. Brees v. Escape Day Spa & Salon, No. 2014-06-0072, 2015 TN
Wrk. Comp. App. Bd. LEXIS 5, at *16 (Tenn. Workers’ Comp. App. Bd. Mar. 12, 2015).
Here, we conclude the preponderance of the evidence supports the trial court’s
determinations regarding the expert medical proof.
Employer first argues, essentially, that a trial court does not have the authority to
order an employer to authorize or pay for medical treatment that falls outside the ODG.
Employer urges this court to conclude “as a matter of law that the guidelines must be
6
followed.” It further argues that allowing a trial court to order such treatment creates a
“wide open, widespread, anything goes system.” Employer insists “it is an error of law
per se to reject an explicit prohibition in the guidelines.”
The fallacies in Employer’s arguments begin with the title of the publication. The
ODG are “guidelines.” Tennessee’s regulations acknowledge this fact, defining the term
“treatment guideline” to mean “recommendations intended to optimize patient care that
are informed by a systematic review of the evidence and an assessment of the benefit and
harms of alternative care options.” Tenn. Comp. R. & Regs. 0800-02-25-.02(10). In
adopting the regulations governing treatment guidelines, the Administrator expressly
rejected the notion that the guidelines are a “standard” or a “mandate.” Tenn. Comp. R.
& Regs. 0800-02-25-.03(3). Instead, “each individual clinical situation and patient [are]
unique,” and a proper application of the guidelines requires “judgment.” Id. If
Employer’s argument were taken to its logical conclusion, the opinion of a physician
regarding a course of treatment would, in fact, be unnecessary. Any practitioner could
determine recommended treatment as set out in the ODG and follow it to the letter,
without any consideration of the particular circumstances of that patient’s case. We
conclude that is not what was intended when the Bureau adopted medical treatment
guidelines.
Furthermore, Employer’s interpretation would render Tennessee Code Annotated
section 50-6-204(a)(3)(H) meaningless because no presumption of medical necessity
would be necessary if the authorized physician were required to follow the ODG without
any consideration of the physician’s independent judgment and the circumstances of that
patient’s case. We reject such a rigid interpretation of the regulations adopting the ODG
and reiterate that treatment recommended by an authorized physician is presumed
medically necessary, and it is an employer’s burden to overcome this presumption with
competent expert evidence that meets the applicable standard of proof. Thereafter, it is
the trial court’s function to weigh that expert proof and make findings as to which
opinions are more persuasive in light of any applicable burdens of proof. That is what
the trial court did in this case.
Employer next argues that “[a]ll medical experts agree and the trial court agree[s]
the guidelines prohibit the spinal cord stimulator on a patient like [Employee] with
somatic symptom disorder.” Employer’s use of the word “medical” in this context
apparently seeks to exclude the opinions of Dr. Jones, who conducted the psychological
evaluation that Dr. Choo determined was a prerequisite to the spinal cord stimulator trial.
Dr. Jones, in fact, specifically disagreed with the statement that a spinal cord stimulator
“should not be undertaken in any patient with a diagnosis of somatic symptom disorder.”
He explained, “there are varying degrees and severities of this disorder,” and he stated,
“[n]ot all patients who have this disorder should be ruled out from a stimulator
treatment.” Dr. Choo, in reiterating his treatment recommendation, noted that Dr. Jones
“is considered one of the nation’s leading psychological experts on pain-and-addiction
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issues.” Dr. Choo expressed “complete confidence in Dr. Jones’s abilities as a clinical
psychologist,” and he noted that Dr. Jones “found the patient to be a suitable candidate
for [s]pinal [c]ord [s]timulation.”
Employer additionally asserts the trial court determined that the proposed
treatment fell outside the ODG. We conclude this is a mischaracterization of the trial
court’s order. In evaluating the expert proof, the trial court noted that “[t]he treatment
guidelines do not completely rule out [a spinal cord stimulator] for those with
anxiety/depression; they merely urge that caution be used.” The trial court then noted
that Dr. Jones expressly considered the ODG’s guidance regarding a patient with somatic
symptom disorder but concluded that, despite any contraindications, Employee was a
suitable candidate for the procedure. As we have noted previously, “[a] trial court is not
in a position to independently assess an injured worker’s symptoms . . . to determine
whether recommended treatment falls within medical treatment guidelines.” Morgan,
2016 TN Wrk. Comp. App. Bd. LEXIS 39, at *18 (citing Scott v. Integrity Staffing
Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *8 (Tenn.
Workers’ Comp. App. Bd. Aug. 18, 2015)). Thus, a trial court must necessarily evaluate,
weigh, and rely on expert proof to support its determinations regarding the proper
application of the ODG and the issue of medical necessity. The trial court did so in this
case.
Employer next argues the trial court erred in failing to consider the purported
financial relationship between Dr. Choo’s practice and Dr. Jones’s practice, and whether
that relationship invalidated Dr. Jones’s opinions due to a conflict of interest. The trial
court expressly considered the evidence submitted by the parties regarding this issue and
determined there was no conflict of interest, concluding “Dr. Jones and Dr. Choo clearly
rebutted [Employer’s] assumption that a conflict of interest exists.” The preponderance
of the evidence supports that determination.
Employer also argues it cannot be held responsible for charges related to treatment
that falls outside the ODG unless one of the exceptions noted in Tenn. Comp. R. & Regs.
0800-02-25-.03(5) is satisfied. We agree. However, as noted above, the experts in this
case disagreed as to whether this treatment fell outside the ODG. Even assuming the
recommended treatment were found to be “not in accord” with the ODG, we conclude the
second of the exceptions, which requires an employer to pay for treatment authorized by
the employer, applies in the present case for two reasons. First, the record contains no
prior order from the trial court compelling Employer to authorize the spinal cord
stimulator. Instead, the trial court’s May 24, 2019 order indicated Employer had agreed
to authorize all treatment, including the spinal cord stimulator, except for the
8
compounded creams. 3 Second, even if Employer had not previously authorized the
spinal cord stimulator before reversing course, this exception does not require that an
employer voluntarily authorize the treatment, only that it authorize the treatment, whether
voluntarily or involuntarily. Thus, we conclude this exception includes cases where a
court of competent jurisdiction has ordered an employer to authorize treatment.
After weighing the expert medical proof and choosing to give greater weight to the
opinions of the authorized physicians, the trial court denied Employer’s motion to halt the
spinal cord stimulator trial and, in effect, ordered Employer to authorize treatment
Employer had previously authorized. Thus, pursuant to the express terms of Tenn.
Comp. R. & Regs. 0800-02-25-.03(5)(b), Employer is responsible for the charges related
to that treatment. Consequently, we conclude the trial court did not err in ordering
medical treatment as prescribed by the authorized treating physician. 4
Finally, Employee asserts that Employer’s appeal should be deemed frivolous
and/or taken solely for delay. After carefully considering this issue, we decline to find
Employer’s appeal to be frivolous or taken solely for delay and respectfully deny
Employee’s motion for “damages” in accordance with Tenn. Comp. R. & Regs. 0800-02-
22-.09(4).
Conclusion
For the foregoing reasons, we affirm the trial court’s expedited hearing order and
remand the case. Costs on appeal are taxed to Employer.
3
We offer no opinion regarding what circumstances, if any, would support an employer’s decision to
withdraw authorization for treatment previously authorized in light of Tenn. Comp. R. & Regs. 0800-02-
25-.03(5)(b).
4
Employer has cited no authority and we are unaware of any statute or case law indicating a trial court
has the authority to prospectively hold an employer harmless for medical treatment that does not produce
the desired result. Hence, we conclude the trial court did not err in denying that part of Employer’s
motion.
9
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Tonya Lynn Stephens ) Docket No. 2018-03-1494
)
v. ) State File No. 59534-2016
)
Quality Private Care d/b/a )
Volunteer Staffing, Inc., et al. )
)
)
Appeal from the Court of Workers’ ) Heard June 24, 2021
Compensation Claims ) via Microsoft Teams
Lisa A. Lowe, Judge )
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced
case was sent to the following recipients by the following methods of service on this the 6th day
of July, 2021.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Jay E. Kohlbusch X kohlbuschlaw@hotmail.com
Darla Watson darlawatson1224@gmail.com
Amy Brown X amy.brown@petersonwhite.com
Beverly Uphoff beverly.uphoff@petersonwhite.com
Lisa A. Lowe, Judge X Via Electronic Mail
Kenneth M. Switzer, Chief Judge X Via Electronic Mail
Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov
Workers’ Compensation Claims
Olivia Yearwood
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov