Morton, Darrell B. v. Alexian Village of Tennessee

2019 TN WC 61
CourtTennessee Court of Workers' Compensation Claims
DecidedApril 18, 2019
Docket2018-01-0748
StatusPublished

This text of 2019 TN WC 61 (Morton, Darrell B. v. Alexian Village of Tennessee) 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
Morton, Darrell B. v. Alexian Village of Tennessee, 2019 TN WC 61 (Tenn. Super. Ct. 2019).

Opinion

FILED Apr 18, 2019 02:08 PM(ET)

TENNESSEE COURT OF WORKERS' COMPENSATION CLAIMS

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

AT CHATTANOOGA

Darrell B. Morton, ) Docket No.: XXX-XX-XXXX Employee, )

V. )

Alexian Village of Tennessee, ) State File No.: 6329-2016 Employer, )

And )

Ascension Health, ) Judge Audrey Headrick

Self-Insured Parent Co. )

EXPEDITED HEARING ORDER (DECISION ON THE RECORD)

This matter came before the Court on Darrell B. Morton’s Request for an Expedited Hearing on the record.’ Alexian Village accepted Mr. Morton’s right-shoulder injury as work-related but denied the referral for his right-cubital tunnel syndrome. The issue is whether Mr. Morton is likely to establish at trial that he is entitled to medical and temporary disability benefits for his cubital tunnel syndrome. For the reasons below, the Court awards medical benefits but denies his claim for temporary disability benefits.

History of Claim

While working as a bus driver at Alexian Village on January 20, 2016, Mr. Morton slipped on an icy sidewalk injuring his right arm. Alexian Village provided a panel, and Mr. Morton selected orthopedist Dr. Todd Bell. Between March 2016 and October 2017, Dr. Bell performed three shoulder surgeries for his rotator cuff tear.

Mr. Morton returned to Dr. Bell on March 8, 2018, five months after his third surgery. Dr. Bell observed that Mr. Morton “complains of continued numbness/tingling along the ulnar side of the hand.” Although Mr. Morton’s August 2017 EMG/NCS

' The Court issued a docketing notice allowing the parties until April 9 to file objections or submit position statements. Alexian Village did not request an evidentiary hearing, and the Court determined it needed no additional evidence to decide the issue. showed right cubital tunnel syndrome, his office note showed the “onset date” as March 8, 2018. Dr. Bell ordered a “hand surgery referral” for the cubital tunnel syndrome.

Alexian Village requested Utilization Review (UR), and a reviewing physician issued a report on March 19. After reviewing a “Referral Form dated 3/8/18 signed by Dr. Bell,” a “Final Report dated 8/17/17,” and a “Referral Order dated 3/8/18,” the doctor determined the referral was not medically necessary. He relied on two bases. First, the EMG/NCS described the cubital tunnel syndrome as an incidental finding. Second, “[t]here is no documentation of the claimant having any complaints regarding the ulnar nerve distribution and if he is not symptomatic, a cubital tunnel referral would be unnecessary.” Based on the UR opinion, Alexian Village denied the referral.

Dr. Bell then scheduled Mr. Morton to see his colleague, Dr. Justin Arnold. Dr. Arnold reported Mr. Morton complained of almost constant right-hand numbness and tingling as well as some pain.’ He diagnosed Mr. Morton with cubital tunnel syndrome and recommended surgery, which Alexian Village and Mr. Morton’s private insurance denied.

In a December 2018 affidavit, Dr. Arnold addressed causation by concluding that Mr. Morton’s cubital tunnel syndrome and resulting need for surgery arose primarily out of his work-related fall on January 20, 2016. Dr. Arnold also stated he is not at maximum medical improvement (MMI) for his cubital tunnel syndrome and “is temporarily partially disabled.”

Alexian Village then sent Dr. Bell a causation letter. Dr. Bell responded that he did “not have a medical opinion on his cubital tunnel syndrome” and deferred “to the opinion of a qualified hand surgeon.” Alexian Village provided a panel of three hand specialists in March, but Mr. Morton declined to select from it.

Mr. Morton asked the Court to order Alexian Village to designate Dr. Arnold as a treating physician, the recommended surgery, reinstated temporary disability benefits, and attorneys’ fees and costs.

Alexian Village disputed Mr. Morton’s requests. It argued Dr. Bell did not notify it of a direct referral to Dr. Arnold; therefore, it does not have to provide treatment recommended by Dr. Arnold because he is not an authorized treating physician. Further,

* Alexian Village acknowledged it inadvertently paid for two bills from Dr. Arnold, who is in the same practice as Dr. Bell. Mr. Morton submitted a billing summary that reflects Dr. Arnold’s outstanding charges and the charges inadvertently paid.

3 Dr. Bell placed Mr. Morton at MMI on August 18, 2018, and Alexian Village stopped paying temporary disability benefits. it contended the issue of temporary disability benefits cannot be determined until after causation is addressed by an authorized treating physician.

Findings of Fact and Conclusions of Law Standard Applied

To prevail at an expedited hearing, Mr. Morton must provide sufficient evidence to show he would likely to prevail at a hearing on the merits in proving his claim for medical and temporary disability benefits. See Tenn. Code Ann. § 50-6-239(d)(1) (2018). The Court holds he would likely prevail in his claim for medical benefits but not temporary disability benefits.

Medical Benefits Alexian Village must provide Mr. Morton “medical and surgical treatment . . . as ordered by the attending physician . . . made reasonably necessary by accident.” Tenn.

Code Ann. § 50-6-204(a)(1)(A). Likewise, any treatment recommended by the authorized treating physician “shall be presumed to be necessary for treatment of the injured employee.” Jd. at -204(a)(3)(H). Here, Dr. Bell, the panel physician, recommended a hand surgeon referral for Mr. Morton’s cubital tunnel syndrome. The law presumes the referral was medically necessary.

However, the law also provides a UR system that permits the employer to retain a physician to perform a record review and determine the medical necessity of any “recommended treatment,” including referrals for treatment. See generally Tenn. Code Ann. § 50-6-124; Tenn. Comp. R. & Regs. 0800-02-06-.01 (Jan. 2017); Jd. at 0800-02- 06-.03(1). Here, Alexian Village denied Dr. Bell’s referral based on a UR review. While the reviewing physician denied the referral in part because the cubital tunnel syndrome was an “incidental finding,” he also incorrectly stated there was “no documentation of {Mr. Morton] having any complaints regarding the ulnar nerve distribution.” Dr. Bell’s March 8 office note reflects that Mr. Morton “complains of continued numbness/tingling along the ulnar side of the hand.” Therefore, the Court gives little weight to the UR determination.

Dr. Bell, the panel physician, referred Mr. Morton to a hand surgeon, and Alexian denied it, at which time Dr. Bell referred him to Dr. Arnold for unauthorized treatment. Tennessee Code Annotated section 50-6-204(a)(3)(A)(ii) states that an employer is deemed to have accepted a referral to a specialist unless the employer provides a panel of specialists to the employee within three business days. When such a referral is made, the referral physician becomes the treating physician until treatment concludes and the employee is referred back to the panel physician. See Tenn. Code Ann. § 50-6- 204(a)(3)(E). Alexian Village neither provided a panel nor sought to address causation until it received Dr. Arnold’s opinion in December 2018. It then attempted to obtain Dr. Bell’s opinion and, after receiving his referral, offered Mr. Morton a panel of hand surgeons a year after the referral.

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Related

§ 50-6
Tennessee § 50-6
§ 50-6-124
Tennessee § 50-6-124
§ 50-6-204
Tennessee § 50-6-204(a)(1)(A)
§ 50-6-207
Tennessee § 50-6-207(2)(A)
§ 50-6-239
Tennessee § 50-6-239(d)(1)

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Bluebook (online)
2019 TN WC 61, Counsel Stack Legal Research, https://law.counselstack.com/opinion/morton-darrell-b-v-alexian-village-of-tennessee-tennworkcompcl-2019.