Mays, April v. Fast Pace Medical Clinic, PLLC

2021 TN WC 156

• Court: Tennessee Court of Workers' Compensation Claims
• Decided: March 11, 2021
• Docket: 2019-03-0262
• Status: Published

Opinion

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

1 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

3 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

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