Mays, April v. Fast Pace Medical Clinic, PLLC

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT KNOXVILLE
APRIL MAYS, ) Docket No. 2019-03-0262
Employee, )
V. )
FAST PACE MEDICAL CLINIC, )
PLLC, ) State File No. 15377-2019
Employer, )
And )
VALLEY FORGE INSURANCE )
COMPANY, ) Judge Pamela B. Johnson
Carrier. )
EXPEDITED HEARING ORDER
Decision on the Record
April Mays fell at work, and Fast Pace Medical Clinic, PLLC provided authorized
treatment for her neck and cervical spine. Ms. Mays now seeks additional treatment for her
lumbar and thoracic spine, which Fast Pace denied. After a review of the record, the Court
holds Ms. Mays is entitled to the additional treatment.
History of Claim
As a child, Ms. Mays had a rod placed in her spine due to scoliosis. On February
12, 2019, she tripped over a cinder block while carrying boxes at work and fell to the
ground. She landed on her right side and experienced immediate pain in her neck and upper
back.
She initially treated in-house at Fast Pace. The provider recommended cervical and
thoracic MRIs and referred Ms. Mays to an orthopedic surgeon for evaluation of neck pain
and upper-back pain with numbness and tingling into the right hand.
Ms. Mays selected orthopedist Dr. Paul Johnson from the panel. During her initial
visits, she reported moderate to severe neck pain radiating into her upper extremities, pain
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in her cervicothoracic junction radiating into her head, and lumbar pain. Dr. Johnson
treated her conservatively. When her symptoms did not improve, he ordered a cervical
MRI, which revealed disc herniations at C5-6 on the left and at C6-7 on the right. Dr.
Johnson performed a cervical fusion at C5-6 and C6-7. After surgery, he ordered physical
therapy for intermittent, moderate neck pain.
Six months later, Ms. Mays still complained of neck pain. When Dr. Johnson
discussed returning to work, Ms. Mays believed she could not do so, given her chronic
lumbar, thoracic, and cervical pain. Dr. Johnson stated that the thoracic and lower-back
pain had very little, if anything, to do with the job-related injury.
In June 2020, Ms. Mays reported intermittent, moderate symptoms in her neck and
low back. Dr. Johnson placed her at maximum medical improvement, assigned a six-
percent permanent impairment, and released her to return to work with permanent
restrictions.
Ms. Mays then obtained an independent medical examination with Dr. C.M.
Salekin. He diagnosed: (1) cervical radiculopathies from C5 through C7 treated surgically
with residual symptoms; (2) right lumbosacral radiculopathy at L5/S1 caused by the fall at
work; and (3) probable rod displacement versus thoracic disc protrusion caused by the fall.
Dr. Salekin recommended lumbar and thoracic spine MRIs and an orthopedic evaluation
of the rod position.
In his C-32, Dr. Salekin noted that the fall at work more likely than not primarily
caused the need for treatment. He also noted that the injury aggravated a pre-existing
condition, stating, “pain over Harrington Rod area on the thoracic spine which may be
misplaced.” He further wrote that the fall was primarily responsible for advancing or
worsening Ms. Mays’s pre-existing condition and need for treatment.
In January 2021, Dr. Johnson responded to a causation letter from Fast Pace by
stating that the alleged thoracic and lumbar injuries were not causally related to the work
injury.
Ms. Mays requested treatment for her thoracic and lumbar spine as recommended
by Dr. Salekin.
Findings of Fact and Conclusions of Law
At an Expedited Hearing, Ms. Mays must show that she is likely to prevail at a
hearing on the merits that she is entitled to the requested treatment. See Tenn. Code Ann.
§ 50-6-239(d)(1) (2020); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
The Workers’ Compensation Law requires an employer to furnish medical
treatment made reasonably necessary by a work injury. Tenn. Code Ann. § 50-6-
204(a)(1)(A). A work injury causes the need for medical treatment only if it is shown to a
reasonable degree of medical certainty that the injury contributed more than fifty percent
in causing the need for medical treatment. “Shown to a reasonable degree of medical
certainty” means that, in the opinion of the physician, it is more likely than not considering
all causes. The causation opinion of the panel-selected physician is presumed correct. See
generally Tenn. Code Ann. § 50-6-102(14).
Here, Ms. Mays selected Dr. Johnson from a panel. Therefore, the Court must
presume his causation opinions are correct. To overcome this presumption, Ms. Mays must
present evidence rebutting his opinion by a preponderance of the evidence. Tenn. Code
Ann. § 50-6-102(14)(E).
When comparing the medical records, the Court notes that the Fast Pace provider
referred Ms. Mays to an orthopedic surgeon for neck and upper-back pain and
recommended cervical and thoracic MRIs. Further, in her initial visits with Dr. Johnson,
Ms. Mays reported moderate to severe neck pain radiating into her upper extremities, pain
in her cervicothoracic junction radiating into her head, and lumbar pain. However, Dr.
Johnson stated, without explanation, that the thoracic and lower-back pain had very little,
if anything, to do with the work injury. He confirmed this opinion in response to Fast Pace’s
causation letter.
In contrast, Dr. Salekin diagnosed cervical radiculopathies from C5-C7 surgically
repaired, lumbosacral radiculopathy at L5/S1, and probable rod displacement versus
thoracic disc protrusion. He related all these problems to Ms. Mays’s work-related fall. He
recommended further orthopedic evaluation of the rod placement and lumbar and thoracic
MRIs.
In his C-32, Dr. Salekin wrote that the fall at work more likely than not primarily
caused the need for treatment. He also believed that the injury aggravated a pre-existing
condition, noting, “pain over Harrington Rod area on the thoracic spine which may be
misplaced.” He additionally stated the fall was primarily responsible for advancing or
making worse the pre-existing condition and need for treatment.
Considering the record as a whole and weighing the conflicting expert opinions, the
Court holds Ms. Mays presented sufficient proof to rebut Dr. Johnson’s causation opinion.
Ms. Mays’s initial treatment at Fast Pace documented her complaints of thoracic spine and
low back complaints. The Fast Pace provider referred her to an orthopedic surgeon and
recommended a thoracic MRI immediately after the injury. When she saw Dr. Johnson,
Ms. Mays continued to complain of symptoms in her thoracic and lumbar spine, but Dr.
Johnson’s treatment focused only on her cervical spine. When she continued to complain
of thoracic and lumbar spine back, Dr. Johnson concluded the symptoms were unrelated to
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the work injury without explanation. He confirmed his conclusion in a causation letter by
checking a box. However, Fast Pace did not offer his deposition or C-32 to provide the
Court with a detailed explanation as to how he reached his conclusion, despite noting her
thoracic and lumbar spine complaints in his first few visits with Ms. Mays.
In contrast, Ms. Mays offered Dr. Salekin’s opinion who noted the lumbar and
thoracic complaints and provided causation opinions that the fall aggravated her pre-
existing thoracic spine condition. He detailed the mechanism of injury and his causation
opinion in his C-32 and accompanying report.
Accordingly, the Court holds Ms. Mays has shown she is likely to prevail at a
hearing on the merits that she is entitled to the recommended treatment to include lumbar
and thoracic MRIs and orthopedic evaluation of the thoracic spine.
Dr. Johnson remains the authorized treating physician. However, if he will not agree
to evaluate and treat Ms. Mays’s thoracic and lumbar spine complaints, Fast Pace shall
provide a panel from which she may select an orthopedic physician to do so.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. May’s claim against Fast Pace for the requested benefits is granted at this time.
2. This case is set for a Status Conference on July 12, 2021, at 1:30 p.m. Eastern
Time. The parties must call (855) 543-5041 (toll-free) to participate. Failure to
appear might result in a determination of the issues without the party’s participation.
ENTERED March 11, 2021.
Pamele E. hunter
JUDGE PAMELA B/ JOHNSON
Court of Workers’ Compensation Claims
APPENDIX
The Court reviewed the entire case file in reaching its decision. Specifically, the
Court reviewed the following documents:
1. Petition for Benefit Determination with attachments, April 4, 2019
2. Petition for Benefit Determination with attachments, October 1, 2020
3. Dispute Certification Notice
Request for Expedited Hearing with attachments
Employer’s Notice of Filing of Medical Records
Employer’s Expedited Hearing Brief
Expedited Hearing Docketing Notice — Decision on the Record
MANUF
CERTIFICATE OF SERVICE
I certify that a copy of this order was sent as indicated on March 11, 2021.
Name Certified Email Service sent to:
Mail
Ameesh A. Kherani, xX akherani @kheranilaw.com
Employee’s Attorney
J. Brent Moore, xX bmoore @ortalekelley.com
Employer’s Attorney
hain
PENNY SHRUM% Court Clerk
WC.CourtClerk @ tn.gov
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: “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.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.pov/workforce/injuries-at-work/
we.courtclerk@tn.gov | 1-800-332-2667
Docket No.:
State File No.:
Date of Injury:
Employee
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):
0 Expedited Hearing Order filed on O Motion Order filed on
C1 Compensation Order filed on 1 Other Order filed on
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Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
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* 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.:
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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
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[Signature of appellant or attorney for appellant]
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My employer's address is:
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7. My present monthly household income, after federal income and social security taxes are deducted, is:
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8. | receive or expect to receive money from the following sources:
AFDC $
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Retirement $
Disability $
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Worker's Comp.$
Other $
LB-1108 (REV 11/15)
per month
per month
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beginning
beginning
beginning
beginning
beginning
beginning
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Water $ per month Clothing $ per month
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Other $ per month (describe: }
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