Ingstrup, Jeffrey v. At Home Stores, LLC

2018 TN WC 127
CourtTennessee Court of Workers' Compensation Claims
DecidedAugust 15, 2018
Docket2018-06-0453
StatusPublished

This text of 2018 TN WC 127 (Ingstrup, Jeffrey v. At Home Stores, LLC) 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
Ingstrup, Jeffrey v. At Home Stores, LLC, 2018 TN WC 127 (Tenn. Super. Ct. 2018).

Opinion

FILED Aug 15, 2018 10:32 AM(CT) TENNESSEE COURT OF WORKERS' COMPENSATION CLAIMS

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

JEFFERY INGSTRUP, ) Docket No. 2018-06-0453 Employee, ) v. ) AT HOME STORES, LLC, ) State File No. 77994-2017 Employer, ) And ) TWIN CITY FIRE INSURANCE CO., ) Judge Joshua Davis Baker Carrier. )

EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS

The Court convened an expedited hearing on August 8, 2018, to determine whether the employer, At Home Stores, LLC, should be required to provide Mr. Ingstrup additional medical treatment recommended by the authorizing treating physician. The legal issue is whether Mr. Ingstrup is likely to prevail at trial in establishing the recommended treatment is reasonable and necessary. At Home argued it should not be required to provide the surgery because its utilization review agent declared the treatment not medically necessary. Mr. Ingstup countered that circumstances changed since the initial denial, and the new medical evidence proves the treatment is reasonable and necessary. The Court agrees with Mr. Ingstrup and holds he came forward with sufficient evidence to show he is likely to prevail on this issue at trial. The Court orders At Home to provide the treatment.

History of Claim

The current dispute concerns the non-provision of recommended medical care in an accepted claim. On October 10, 2017, Mr. Ingstrup injured his left shoulder while unloading a mattress. At Home accepted the claim and provided a panel of physicians. After visiting Care Now, a walk-in clinic, Mr. Ingstrup began treating with Dr. Todd Wurth, his panel-selected physician. Dr. Wurth gave Mr. Ingstrup a steroid pack and hydrocodone, but these failed to provide relief. He suspected Mr. Ingstrup had a SLAP tear and sent him for an MRI arthrogram. The MRI results confirmed Dr. Wurth’s suspicion, and he recommended surgical correction pending approval from the insurer, Twin City Fire.

Twin City submitted the recommendation for utilization review (UR), and the reviewing physician deemed the procedure not medically necessary. In a February 2, 2018 report, the reviewing physician explained:

The MRI arthrogram of the left shoulder documented evidence of superior labrum anterior and posterior (SLAP) tear at the bicipital anchor. Per ODG Shoulder, surgical intervention is recommended after 3 months of conservative treatment including NSAIDS, injection therapy, and physical therapy PT for patients with persistent symptoms. In this case, the records indicate the patient has been using a sling and taking NSAIDs only, there is no mention of physical therapy attempts. Therefore, the request is not medically necessary and not certified.

Mr. Ingstrup requested peer review, and the peer reviewer affirmed the decision. Mr. Ingstrup never filed an appeal to the Bureau of Workers’ Compensation’s medical director.1 He stated he did not know he could appeal. He returned to Dr. Wurth.

After learning Twin City denied the surgery recommendation, Dr. Wurth changed the course of treatment. He gave Mr. Ingstrup an injection and sent him for physical therapy with instructions to follow up in four weeks.

Mr. Ingstrup returned three weeks later on February 27, complaining that the injection provided no relief and that therapy worsened his symptoms. His physical therapist recommended he stop. Dr. Wurth agreed that the therapy “exacerbated his symptoms” and discontinued it. He discussed surgery again with Mr. Ingstrup, who wished to go forward. The medical records indicated Dr. Wurth intended to submit the surgical recommendation to the insurance company for approval.

About a month after his last visit with Dr. Wurth, Mr. Ingstrup filed a Petition for Benefit Determination seeking medical and temporary disability benefits.2 The parties failed to resolve the dispute through mediation, and the mediator filed a Dispute Certification Notice (DCN).

1 At the hearing, the Court stated Mr. Ingstrup submitted the decision to the Bureau for review through a contract provider. On further review of the record, this statement was incorrect. 2 Mr. Ingstrup withdrew the issue of temporary disability benefits during the hearing.

2 Shortly after the DCN issued, Mr. Ingstrup’s counsel sent a letter to Dr. Wurth requesting information about the previously recommended surgery. In response, Dr. Wurth indicated Mr. Ingstrup’s need for surgery related to the October 10, 2017 workplace injury. He also wrote the following in response to a question concerning treatment options other than surgery: “We have previously tried with injections, PT, work restrictions. Patient has ongoing clinical complaints thereby prompting request for surgery.”3

Mr. Ingstrup testified he received conservative treatment. Significantly, Mr. Ingstrup stated Dr. Wurth gave him two injections—although the medical records only describe one—and sent him to physical therapy. Neither treatment improved his shoulder. Consistent with the medical records, Mr. Ingstrup also testified the therapy made his shoulder worse. At the time of the hearing, he still had problems with his shoulder and wished to have surgery.

Mr. Ingstrup argued the Court should order the surgery despite the lack of an appeal to the medical director because the right to appeal is permissive rather than mandatory. He further argued neither the initial reviewing physician nor the peer reviewer had complete records when they denied surgery. At Home argued it followed correct UR procedure and should not have to provide the surgery at this time.

Legal Principles and Analysis

Mr. Ingstrup has the burden of proof but need not prove every element of his claim by a preponderance of the evidence to receive relief at an expedited hearing. Instead, he must present sufficient evidence showing he would likely prevail at a hearing on the merits. McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). The Court finds he carried this burden and orders At Home to provide him additional medical benefits.

At Home must provide Mr. Ingstrup “medical and surgical treatment . . . as ordered by the attending physician . . . made reasonably necessary by accident.” Tenn. Code Ann. § 50-6-204(a)(1)(A) (2017). In that vein, any treatment recommended by the authorized treating physician “shall be presumed to be necessary for treatment of the injured employee.” Id. at § 50-6-204(a)(3)(H). Here, Dr. Wurth served as the authorized treating physician and recommended surgery to repair Mr. Ingstrup’s shoulder. The law presumes the surgical treatment is medically necessary.

Despite the presumption of medical necessity, the Workers’ Compensation Law provides a system of “utilization review” to consider any treatment recommended for the

3 The Court relied heavily on counsel’s reading of this document, as Dr. Wurth’s handwriting is difficult to read on the copy filed with the Court. 3 injured worker. See id. at § 50-6-124. Utilization review means “evaluation of the necessity, 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). UR is a record review by an “advisory medical practitioner” to determine whether the proposed procedure is medically necessary. Id. at 0800-02-06-.03.

If an employer questions the medical necessity of treatment proposed by the treating physician, it must submit that treatment to UR. Id. at 0800-02-06-.05(1).

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Related

§ 50-6-124
Tennessee § 50-6-124(h)
§ 50-6-204
Tennessee § 50-6-204(a)(1)(A)

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Bluebook (online)
2018 TN WC 127, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ingstrup-jeffrey-v-at-home-stores-llc-tennworkcompcl-2018.