Aliyy, Rakin v. LG Electronics

2021 TN WC 250
CourtTennessee Court of Workers' Compensation Claims
DecidedDecember 8, 2021
Docket2021-06-0442
StatusPublished

This text of 2021 TN WC 250 (Aliyy, Rakin v. LG Electronics) is published on Counsel Stack Legal Research, covering Tennessee Court of Workers' Compensation Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Aliyy, Rakin v. LG Electronics, 2021 TN WC 250 (Tenn. Super. Ct. 2021).

Opinion

FILED Dec 08, 2021 10:51 AM(CT) TENNESSEE COURT OF WORKERS' COMPENSATION CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION IN THE COURT OF WORKERS’ COMPENSATION CLAIMS AT NASHVILLE

Rakim Aliyy, ) Docket No. 2021-06-0442 Employee, ) v. ) LG Electronics, ) State File No. 12408-2020 Employer, ) And ) Sompo America Ins. Co., ) Judge Kenneth M. Switzer Carrier. )

EXPEDITED HEARING ORDER DENYING REQUESTED RELIEF

The Court held an expedited hearing on December 3, 2021. Mr. Aliyy requested that the Court order LG Electronics to provide additional treatment with Dr. Christopher Ashley, a referral physician. LG Electronics argued that Mr. Aliyy’s current condition is not related to the work incident, relying upon the opinion of its physician, Dr. Christopher Kauffman. The Court holds that Mr. Aliyy did not satisfy his burden to show that his present symptoms arose primarily out of employment, and therefore Mr. Aliyy’s request is denied at this time.

Claim History

The parties agreed that, while working for LG Electronics on February 14, 2020, Mr. Aliyy injured his low back.

LG Electronics offered a panel listing three medical practices. Mr. Aliyy chose one, and a nurse practitioner ordered x-rays. At a follow-up visit, Mr. Aliyy saw a medical doctor, who diagnosed a low-back strain. At the next visit, he referred him to physical therapy. The doctor later referred him to Dr. Robert Kasper. Dr. Kasper ordered imaging, and Mr. Aliyy underwent a CT of the lumbar spine without contrast, which showed chronic multilevel degenerative changes and multilevel stenosis.

1 Dr. Kasper then referred Mr. Aliyy to a neurosurgeon but did not make a direct referral. Mr. Aliyy came under the authorized care of Dr. Ashley, who is not a neurosurgeon but a physical medicine, rehabilitation, and spine specialist.1

As to how he became Dr. Ashley’s patient, Mr. Aliyy testified, “It wasn’t a specialist that I chose; it was a specialist that the claims adjuster and all them chose.” He later clarified that before he saw Dr. Ashley, the previous claims adjuster telephoned and offered treatment with a physician in Nashville or Dr. Ashley in Clarksville. Mr. Aliyy chose Dr. Ashley because Mr. Aliyy lives in Clarksville. Dr. Ashley saw Mr. Aliyy for the first time in June. Dr. Ashley noted that Dr. Kasper and the workers’ compensation case manager referred him, although Dr. Kasper’s notes do not say that.

At that visit, Dr. Ashley took a detailed history, reviewed x-rays and imaging results, and examined him. Dr. Ashley concluded: “Patient with low-back pain, status post lumbrosacral sprain. Appears to be having mostly mechanical low back pain and reactive facet joint pain with resultant sciatica. . . . It would be within a reasonable degree of medical certainty and medically probable on his current diagnosis, treatment plan were related to the work injury he described.”

Mr. Aliyy returned four times over the next few months. During that time, Mr. Aliyy underwent conservative treatments, including facet joint blocks on two occasions. When his back pain remained, Dr. Ashley recommended medial branch blocks in September. He wrote, “If these are helpful, I would consider radiofrequency ablations. If they are not, would consider surgical consultation for continued conservative treatment. . . . WE [sic] will also have [patient] undergo an H-wave trial[.]”

Considering those treatment options, the claims adjuster “wanted a specialist to see Mr. Aliyy,” per her declaration. LG Electronics sent Mr. Aliyy for an employer’s examination with Dr. Kauffman, an orthopedic surgeon.2

Dr. Kauffman reached different conclusions than Dr. Ashley regarding the work- relatedness of Mr. Aliyy’s condition. In his records, Dr. Kauffman wrote: “Patient’s work- related condition is a lumbar sprain/strain. Patient has completed appropriate physical therapy, temporary medications and temporary activity modification. No role for surgical intervention. The patient’s facet arthritis at L4-5 and L5-S1 is a pre-existing condition which is degenerative and unrelated to the work event.”

1 The Court takes judicial notice of Dr. Ashley’s areas of specialization under Tennessee Rule of Evidence 201 (2021). See https://toa.com/physicians/christopher-p-ashley-md (last checked Dec. 8, 2021). 2 LG Electronics referred to Dr. Kauffman’s opinions as a “second opinion” in its brief. However, at the hearing, counsel agreed that Dr. Kauffman’s opinion is properly characterized as an employer’s examination under Tennessee Code Annotated section 50-6-204(d)(1). 2 Dr. Kauffman additionally answered a causation letter from the adjuster, where he checked a box that the injury arose primarily out of employment. However, the letter contained a handwritten clarification: “Work injury is Lumbar Sprain/Strain[.] TENS Unit prescribed for Sprain/Strain → work related[.] Facet Arthritis is NOT Work Related[.]” (Emphasis in original).

Dr. Kauffman later signed a lengthy declaration stating in relevant part that he did not find a disc herniation but a “soft-tissue injury,” which should have resolved and would not have needed further treatment after six to twelve weeks from the date of injury. He also disagreed with the reasonable necessity of the various treatment options that Dr. Ashley proposed.

Two months after Dr. Kauffman’s examination, Dr. Ashley wrote an addendum to his records documenting his response. He wrote in relevant part:

[W]e appreciate the second opinions, but as a treating physician I have established over the period of time [a] relationship with [the] patient as well as had the benefit of evaluating him multiple times and I have recommended specific treatment options. If the workplace does not want me to treat the patient how I see fit I believe at this point it would be better for them to refer the patient to a doctor of their choosing instead of limiting my ability to care for the patients [as] I see fit.

LG Electronics did not deny the claim, nor did it introduce a notice of controversy into evidence.

Mr. Aliyy testified that he did not hear from the adjuster until February or March of 2021. Afterward, he filed his petition seeking additional treatment with Dr. Ashley. LG Electronics offered a panel of orthopedic surgeons “to break the tie,” according to its counsel.3 But Mr. Aliyy declined to choose a physician. This hearing request followed.

Findings of Fact and Conclusions of Law

At an expedited hearing, Mr. Aliyy must show that he is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1) (2021); 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, beginning with the provision of a panel of physicians. Tenn. Code Ann. §§ 50-6-204(a)(1)(A), 50-6-204(a)(3)(A)(i). Here,

3 LG Electronics offered no legal authority to support the propriety of offering a new panel when a treating physician and an employer’s examiner disagree. 3 immediately after the incident, LG Electronics offered a panel in compliance with the law, and the physician Mr. Aliyy selected made a direct referral to Dr. Kasper. Dr. Kasper later made another referral to a neurosurgeon, which LG Electronics did not honor. Despite its counsel’s arguments that Dr. Ashley’s notes say Mr. Aliyy was a patient by referral by Dr. Kasper and the case manager, Dr. Kasper’s notes simply do not say that. Moreover, Mr.

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Related

§ 50-6-102
Tennessee § 50-6-102(14)(A)
§ 50-6-204
Tennessee § 50-6-204(a)(1)(A)
§ 50-6-239
Tennessee § 50-6-239(d)(1)

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Bluebook (online)
2021 TN WC 250, Counsel Stack Legal Research, https://law.counselstack.com/opinion/aliyy-rakin-v-lg-electronics-tennworkcompcl-2021.