Burnette, Joseph v. SRB Corporation

FILED
Oct 03, 2019
03:42 PM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT CHATTANOOGA
Joseph Burnette, ) Docket No.: 2018-01-0797
Employee, )
V. )
SRB Corporation, ) State File No.: 87528-2018
Employer, )
And )
Selective Ins. Co. of America, ) Judge: Audrey A. Headrick
Carrier. )
EXPEDITED HEARING ORDER
(DECISION ON THE RECORD)
This case came before the Court on Joseph Burnette’s Request for an Expedited
Hearing on the record.' The only issue is whether Mr. Burnette is likely to establish at
trial that he is entitled to the cervical surgery recommended by Dr. Jay Jolley. For the
reasons below, the Court holds he is and orders SRB to provide the surgery.
History of Claim
The essential facts of this case are undisputed. Mr. Burnette injured his neck and
other body parts on October 26, 2018, when he fell backwards at work and landed on
pavement striking his head on a steel trailer. His authorized treating physician, Dr.
Jolley, recommended a C4-7 anterior cervical discectomy and fusion in May 2019 after
four months of conservative treatment failed.
SRB submitted the surgical recommendation for utilization review (UR), and the
reviewing physician found the procedure not medically necessary.” In a June 3, 2019
report, the reviewing physician used the Official Disability Guidelines (ODG) and
provided several bases for finding the surgery not medical necessary: (1) Mr. Burnette’s
' The Court issued a docketing notice allowing the parties until October 1 to file objections or submit
position statements.
* The reviewing physician is board-certified in orthopedic surgery.
l
records do not describe any specific focal neurological deficits; (2) Clarification is
needed regarding his bilateral strength decrease; (3) No frank neurocompressive lesions
are documented by the MRI; and, (4) Mr. Burnette is a daily smoker without any
documentation that he stopped smoking for six weeks. The Bureau’s Assistant Medical
Director upheld the UR denial because the request did not satisfy the ODG, and Mr.
Burnette timely filed a Petition for Benefit Determination.’
Dr. Jolley testified by affidavit regarding the recommended surgery. He stated
“that the ODG criteria used by UR reviewer in this case is extremely stringent and is not
adopted by most practicing orthopedic surgeons.” He also gave his opinion that the
surgery is necessary “as a result of [Mr. Burnette’s] work-related injury and that the
proposed surgery has a greater than 80% chance of reducing his neck and arm
complaints.” Dr. Jolley additionally said that Mr. Burnette will continue to have pain and
be unable to work without the surgery.
Findings of Fact and Conclusions of Law
To prevail at an expedited hearing, Mr. Burnette must provide sufficient evidence
to show he would likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-
6-239(d)(1) (2018). The Court holds he did.
The sole issue is whether Mr. Burnette is entitled to the recommended surgery. To
resolve this issue, the Court must determine if SRB rebutted the presumption of medical
necessity attached to Dr. Jolley’s recommendation. After reviewing the evidence, the
Court holds it did not.
The Workers’ Compensation Law provides that SRB must provide Mr. Burnette
with medical and surgical treatment ordered by Dr. Jolley, the authorized treating
physician, if it is reasonably necessary for the work-injury. Tenn. Code Ann. § 50-6-
204(a)(1)(A) (2018). Likewise, any treatment recommended by Dr. Jolley “shall be
presumed to be necessary for treatment of the injured employee.” Jd. at § 50-6-
204(a)(3)(H). Because Dr. Jolley recommended surgery for Mr. Burnette’s neck, the law
presumes that the surgical treatment is medically necessary. This presumption is
rebuttable by a preponderance of the evidence. Morgan v. Macy’s, 2016 TN Wrk. Comp.
App. Bd. LEXIS 5, at *14 (Mar. 12, 2015).
Despite the presumption of medical necessity, the Workers’ Compensation Law
provides a UR system to consider any treatment recommended for the injured worker.
Tenn. Code Ann. § 50-6-124. UR provides an “evaluation of the necessity,
* The Court’s September 20 Docketing Notice stated, “[t]he Court will not consider documentation that a
party did not file with the Request for Expedited Hearing or the Response in Opposition to the Request
for Expedited Hearing.” SBR did not file its pre-hearing statement until September 30 and requested that
the Court consider newly filed exhibits. The Court declines to do so.
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appropriateness, efficiency and quality of medical services . . . provided to an injured or
disabled employee based upon medically accepted standards and an objective evaluation
of the medical services provided[.]” Tenn. Comp. R. & Regs. 0800-02-06-.01(20) (June
2017). This is done with a record review by an “advisory medical practitioner” to
determine whether the proposed procedure is medically necessary. Jd. at 0800-02-06-.03.
SRB submitted Dr. Jolley’s surgical recommendation to UR. The reviewing
physician applied the ODG treatment guidelines and determined that the surgery was not
medically necessary, and the Assistant Medical Director upheld the denial.
Dr. Jolley’s surgery recommendation, the reviewing physician’s denial, and
ultimately the Assistant Medical Director affirmation of that denial present the Court with
conflicting medical opinions about the reasonableness and necessity of the proposed
surgery. A trial court has the discretion to choose which expert to accredit when there is
a conflict of expert opinions. Brees v. Escape Day Spa & Salon, 2015 TN Wrk. Comp.
App. Bd. LEXIS 5, at *14 (Mar. 12, 2015). In evaluating conflicting expert testimony, a
trial court may consider, among other things, “the qualifications of the experts, the
circumstances of their examination, the information available to them, and the evaluation
of the importance of that information through other experts.” Jd. Further, it is reasonable
to conclude that the physician “having the greater contact with [the injured worker]
would have the advantage and opportunity to provide a more in-depth opinion, if not a
more accurate one.” Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 677 (Tenn.
1991).
Considering the various opinions, Dr. Jolley treated Mr. Burnette conservatively
for his cervical injury for four months and relied upon his observations and findings after
that time to conclude that he needed surgery. The reviewing physician, on the other
hand, performed a one-time record review and relied upon the ODG treatment guidelines
in denying the recommendation. After learning of the UR denial, Dr. Jolley stood by his
recommendation and stated he thinks the surgery has more than an eighty percent chance
of reducing Mr. Burnette’s symptoms.
The Court has “authority to assess the validity of the utilization review reports and
determine the relative weight to be given those physicians’ opinions as well as other
expert medical opinions.” Venable v. Superior Essex, Inc., 2016 TN Wrk. Comp. App.
Bd. LEXIS 56, at *9 (Nov. 2, 2016). After considering the conflicting medical opinions,
the Court finds that the reviewing physician’s opinion is insufficient to overcome the
presumption of correctness afforded Dr. Jolley’s opinion. Therefore, the Court holds Mr.
Burnette is likely to prevail at a hearing on the merits in proving that he is entitled to the
surgery.
IT IS, THEREFORE, ORDERED as follows:
I,
SRB shall provide Mr. Burnette additional medical treatment with Dr. Jolley,
including the recommended surgery, for his cervical injury under Tennessee Code
Annotated section 50-6-204.
. This case is set for a Status Hearing on Thursday, December 12, 2019, at 1:00 p.m.
Eastern Time. You must call 423-634-0164 or toll-free at 855-383-0001 to
participate. Failure to call might result in a determination of the issues without
your participation.
. 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 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 via email at WCCompliance.Program@tn.goyv.
ENTERED October 3, 2019.
AUDREY. HEADRICK
Workers’ Compensation Judge
APPENDIX
Exhibits:
1. Form C-20 First Report
2. Form C-41 Wage Statement
3. Utilization Review documents:
a. June 3, 2019 UR denial letter
b. June 25, 2019 UR Appeal Memorandum
c. June 25, 2019 letter of Dr. Robert Snyder, Medical Director
4. July 2, 2019 note of Dr. Jay Jolley
5. Affidavit of Dr. Jolley
Technical record:
1. Petition for Benefit Determination
Dispute Certification Notice
Request for Expedited Hearing
Docketing Notice
Employer/Carrier’s Pre-Expedited Hearing On-The-Record Position Statement
i ge we be
CERTIFICATE OF SERVICE
I certify that a copy of this Expedited Hearing Order was sent as indicated on October 3,
2019.
Name Certified Email Service sent to:
Mail
Mike Wagner, xX maw(@wagnerinjury.com
Employee’s Attorney
Fred Baker, xX fbaker(@wimberlylawson.com
Courtney Hart, x chart@wimberlylawson.com
Employer’s Attorneys
PENNY SHRUM, COURT CLERK |
we.courtclerk(@tn.gov
Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, I-B
I,
Nashville, TN 37243-1002
AFFIDAVIT OF INDIGENCY
800-332-2667
, having been duly sworn according to law, make oath that
because of my poverty, | 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:
3. Telephone Number:
5. Names and Ages of All Dependents:
6. | am employed by:
2. Address:
4, Date of Birth:
Relationship:
Relationship:
Relationship:
Relationship:
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. | receive or expect to receive money from the following sources:
AFDC $
ssl $
Retirement $
Disability $
Unemployment $
Worker's Comp.$
Other $.
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beginning
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9. My expenses are:
Rent/House Payment $ permonth Medical/Dental $
per month
per month
per month
per month
per month
per month
Groceries $ per month Telephone $
Electricity $ per month School Supplies $
Water $ per month Clothing $
Gas $ per month Child Care $
Transportation $ per month Child Support $_
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
| hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that | am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
day of , 20
NOTARY PUBLIC
My Commission Expires:
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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. Ifa 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.
EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers’ Compensation
www.tn.gov/labor-wfd/weomp.shtml
wc.courtclerk@tn.gov
1-800-332-2667
Docket #:
State File #/YR:
Employee
Vv.
Employer
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]
LC] Temporary disability benefits
CL) Medical benefits for current injury
CL] Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): At Hearing: Employer LiEmployee
Address:
Party’s Phone: Email:
Attorney’s Name: BPR#:
Attorney’s Address: Phone:
Attorney's City, State & Zip cade:
Attorney’s Email:
* Attach an additional sheet for each additional Appellant *
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Employee Name: SFH: DOI:
Appellee(s)
Appellee (Opposing Party). === SSC At. Herring: CJ Employer LJ Employee
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 | 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]
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