Hensley, Paul v. Amazon.com Services, LLC

FILED
Jun 21, 2021
10:36 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
Paul Hensley, ) Docket No. 2021-06-0183
Employee, )
v. )
Amazon.com Services, LLC, ) State File No. 102262-2020
Employer, )
And )
American Zurich, Inc., ) Judge Kenneth M. Switzer
Carrier. )
EXPEDITED HEARING ORDER DENYING REQUESTED RELIEF
Paul Hensley seeks an order that Amazon.com Services, LLC authorize shoulder
surgery performed by Dr. Kyle Joyner. Amazon opposed the request, relying on a
noncertification from a utilization review physician upheld by the Bureau’s Medical
Director, as well as updated records from Dr. Joyner. The Court held a hearing on June
17, 2021. Because the medical proof does not convey Dr. Joyner’s current opinion on the
need for surgery, the Court denies Mr. Hensley’s request at this time.
History of Claim
Mr. Hensley alleged that on November 3, 2020, he injured his left shoulder while
working for Amazon.1 He received authorized treatment at an occupational clinic. The
provider referred Mr. Hensley to orthopedist Dr. Kyle Joyner, ordered an MRI and physical
therapy, and placed him on restrictions.
Mr. Hensley first saw a nurse practitioner at Dr. Joyner’s office in late November.
She retained the work restrictions, and Mr. Hensley underwent an injection. He returned
to Dr. Joyner’s office in December, reporting that the injection did not bring significant
improvement and physical therapy had not been very effective. Dr. Joyner diagnosed a
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Mr. Hensley testified that he injured his neck as well, and that treatment for it has been denied. However,
that issue was not raised at this hearing.
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tear of the left glenoid labrum and tendinitis of the rotator cuff and agreed with the
restrictions. At the next visit in early February, Mr. Hensley’s shoulder was still painful.
Dr. Joyner diagnosed a presumptive labral tear and recommended a left-shoulder
arthroscopy.
Amazon submitted the recommendation to utilization review. An orthopedic
surgeon reviewed the MRI and Dr. Joyner’s office notes. In his report, the reviewer wrote
that the left-shoulder arthroscopy/arthrotomy was not medically necessary because “the
claimant’s conservative treatment to date has been minimal.” He attached the ODG
Guidelines 2021, “Surgery for SLAP Lesions, Shoulder Conditions,” which states that
surgery is recommended “for persistent symptoms following 6 months of conservative
treatment.” The Bureau’s Medical Director agreed with the noncertification.
Dr. Joyner wrote a letter on March 5, 2021, stating in relevant part that the surgery
recommendation “was made given failure of conservative care.”
However, at an April 28 visit ̶ the last time that Mr. Hensley saw the doctor ̶ Dr.
Joyner noted that Mr. Hensley reported improvement in his symptoms. He wrote that Mr.
Hensley had changed jobs to one that requires “significantly reduced physical demand.”
Dr. Joyner noted, “[O]ccasional catching, but overall pain is decreased and he is able to
use the arm fairly normally with his daily activity.” On exam, he observed improved range
of motion, although he saw some discomfort with “compression rotation, but no frank
instability.” Mr. Hensley felt “catching” with repeated circumduction of his shoulder. Dr.
Joyner recorded good strength in the deltoid and improved strength in the rotator cuff. The
doctor removed the work restrictions and set an appointment two months out. The note
did not mention surgery.
For his part, Mr. Hensley testified that he participated in physical therapy on the
recommendations of the authorized providers but recently switched to an at-home regimen.
Mr. Hensley has difficulty sleeping due to shoulder pain. He also cannot lift his grandchild
or participate in hobbies that require physical activity.
As for the most recent visit with Dr. Joyner, Mr. Hensley testified that the doctor
“recommended that we put off the surgery and see if there’s any more improvement.” Mr.
Hensley believes that surgery is still “on the table” and will be discussed again at the next
appointment. On cross-exam, he said that he was released to full-duty “for the current
job;” Mr. Hensley has changed employers and is no longer required to perform any physical
duties. He would undergo surgery if it were possible.
Findings of Fact and Conclusions of Law
Under the Workers’ Compensation Law, the employer shall provide medical and
surgical treatment “made reasonably necessary by accident[.]” Tenn. Code Ann. § 50-6-
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204(a)(1)(A) (2020). Mr. Hensley bears the burden of proving that the proposed surgery
is reasonable and necessary. Further, since this an expedited hearing, he must present
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); McCord v. Advantage
Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Tennessee Code Annotated section 50-6-204(a)(3)(H) provides that any treatment
recommended by a referral physician “shall be presumed to be medically necessary for
treatment of the injured employee.” Here, Dr. Joyner’s recommendations are presumed
medically necessary.
Dr. Joyner’s written recommendation in February was for surgery. However, at the
most recent visit in April, Dr. Joyner noted that Mr. Hensley reported significant
improvement, and he removed the work restrictions. Importantly, the note is silent
regarding surgery.
The Tennessee Supreme Court has held that “[t]he employee’s own assessment of
[his] physical condition and resulting disability is competent testimony that should be
considered[.]” McIlvain v. Russell Stover Candies, Inc., 996 S.W.2d 179, 183 (Tenn.
1999). Mr. Hensley credibly testified that his shoulder remains painful and has affected
his activities of daily living. He believes that surgery is still “on the table.” But the April
note simply does not support that contention. “Parties and their lawyers cannot rely solely
on their own medical interpretations of the evidence to successfully support their
arguments. Lurz v. Int’l Paper Co., 2018 TN Wrk. Comp. App. Bd. LEXIS 8, at *16 (Feb.
14, 2018).
The Court finds no current recommendation for surgery from Dr. Joyner. Therefore,
on this record, Mr. Hensley is not likely to succeed at a hearing on the merits regarding the
reasonable necessity of surgery. His request is denied at this time.
This case is set for a status hearing on July 19, 2021, at 9:45 a.m. Central. You
must call 615-532-9552 or toll-free at 866-943-0025 to participate. Failure to call might
result in a determination of the issues without your participation.
ENTERED June 22, 2021.
_____________________________________
JUDGE KENNETH M. SWITZER
Court of Workers’ Compensation Claims
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APPENDIX
Exhibits:
1. Affidavit of Paul Hensley
2. Employee’s Exhibits for Expedited Hearing
A. First Report of Injury
B. Dr. Joyner causation letter
C. Concentra records
D. MRI
E. Dr. Joyner records
F. Physical therapy records
3. Utilization review
4. Dr. Joyner records, April 28, 2021
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice and Employer’s Position Statement
3. Request for Expedited Hearing
4. Pretrial Hearing Order
CERTIFICATE OF SERVICE
I certify that a copy of the Expedited Hearing Order was sent as indicated on June
22, 2021.
Name Certified Regular Email Sent to:
Mail Mail
Stephan Karr, X steve@flexerlaw.com
employee’s attorney nancy@flexerlaw.com
Troy Hart, Matthew X wth@mijs.com
Morris, employer’s mbmorris@mijs.com
attorneys
_____________________________________
Penny Shrum, Clerk of Court
WC.CourtClerk@tn.gov
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NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________
Employer
Notice is given that ____________________________________________________________________
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ Other Order filed on_____________________
issued by Judge _________________________________________________________________________.
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
Parties
Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee
Address: ________________________________________________________ Phone: ___________________
Email: __________________________________________________________
Attorney’s Name: ______________________________________________ BPR#: _______________________
Attorney’s Email: ______________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________
Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee
Appellee’s Address: ______________________________________________ Phone: ____________________
Email: _________________________________________________________
Attorney’s Name: _____________________________________________ BPR#: ________________________
Attorney’s Email: _____________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, _____________________________________________________________, certify that I have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the __________ day of ___________________________________, 20 ____.
______________________________________________
[Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082