### COURT OFWORKERS' COMPENSATION CLAIMS DIVISION OFWORKERS' COMPENSATION NAKESHA STRUNK, Employee, 

### v. ARAMARKNISSAN SMYRNA Employer, And SEDGWICK CLAIMS MANAGEMENT SERVICES,INC., InsuranceCarrier. DocketNo.: 2015-05-0027 StateFile No.: 56378-2014 Date ofInjury: July 16, 2014 Judge: Lisa A. 

### Knott



## INTERLOCUTORY ORDER FILED June 2, 2015**T~COIJR TO** **F** WORKERS'**OJ\IPE:'\SATIO~** CLAIMS Time: 8:03 AM

THIS CAUSE came before the undersigned Workers' Compensation Judge upon the Request for Expedited Hearing filed on April 21, 2015, by Nakesha Strunk (Ms. Strunk), pursuant to Tennessee Code Annotated section 50-6-239. The Court convened a review ofthe file without an evidentiary hearing. Upon review of Ms. Strunk's Request for Expedited Hearing, the evidence presented upon review, the arguments ofcounsel for the parties, and in consideration ofthe applicable law, the Court enters the following order holding that Ms. Strunk is not entitledto a second medical opinion. 

### Issue Whether Ms. Strunk is entitled to a secondmedical opinionpursuant to Tennessee Code Annotatedsection 50-6-204(a)(J)(C). 

### Documentation/Evidence Submitted The Courtreceivedthe following information from Ms. Strunk:

• Motion for SecondMedical Opinion, filed April 21, 2015 • Affidavit ofNakesha Strunk • Medical Records and Final Medical Report ofDr. Jeffrey Hazelwood (15 pages) • Medical Records ofAmerica's Family Doctors and Walk-In Clinics (8 pages) • Medical Records ofThe Imaging Center ofMurfreesboro (5 pages) 1• Medical Records ofMid StateNeurosurgery (11 pages) • Medical records ofStone Crest Medical Center (41 pages) • Ms. Strunk's Positional Statements, February 6, 2015 and February 20,2015. The Courtreceived the following information from Aramark:

• Response to Employee's Motionfor Second Opinion, filed April27, 2015 • First Report ofWork Injury, Form C-20, for date ofinjury- July 16, 2014 • Panels ofPhysicians, Form C-42, for date ofinjury- July 16, 2014 • 52 WeekWage Statement, Form C-41,**fo~** date ofinjury- July 16, 2014 • Aramark's Positional Statement, February 19,2015 • Affidavit ofBarbaraAcuff. The Court designatedthe following as the Technical Record:

• Petitionfor BenefitDetermination, filed February 10, 2015 • Dispute CertificationNotice, filed March4, 2015 • Request for Expedited Hearing, filed April21, 2015. History ofClaim Ms. Strunk reported to Aramark that on July 16, 2014, she injured her low back while wringing out a mop. Aramark acceptedthe claim as compensable. Ms. Strunk initially treated with Stone Crest Emergency Room (ER) where she underwent diagnostic testing, which was normal. Aramarkprovided a panel ofphysicians, from which Ms. Strunk chose Dr. Michael Moran. Dr. Moran opined that Ms. Strunk was nonsurgical and referred her for physical therapy and epidural steroid injections. She followed up with Dr. Moran reporting that the ESI helped her feel fifty percent (50%) better. In December 2014, Ms. Strunk again followed up with Dr. Moran with complaints ofpain and urgent need for care. Dr. Morancancelled thepending epidural steroidinjection andreferred herto physiatry. Aramark provided Ms. Strunk with a physiatrypanel and she chose Dr. Robert Clendenin as her authorized treating provider. Ms. Strunk retained counsel at that time and Attorney Thompson requested Dr. Hazlewood be added to the panel. Aramark complied with counsel's request and Ms. Strunk chose Dr. Hazlewood as the authorized treating provider. OnJanuary 21, 2015, Aramark received a Final Medical Report from Dr. Hazlewood indicating: full duty release, no obvious explanation for Ms. Strunk's low back pain, recommendation for detox, assignment ofzero percent (0%) permanent partial disability rating, and placement at maximum medical improvement (MMI) as ofJanuary 21,2015. Ms. Strunk, through counsel, submitted the Petition for Benefits Determination seeking a second medical opinion.

2Ms. Strunk's Contentions Ms. Strunk's contentions are taken from the documentation provided to the Court for review. On September 12, 2014, Dr. Moran noted that Ms. Strunk had a herniated L5-S1 disc. On December 8, 2014, Dr. Moran indicated a physiatry consultation would be in order as he felt that a non-surgical approach would be better and suggested a facet block. Dr. Hazlewood saw Ms. Strunk on January 14, 2015, and agreed with Dr. Moran that she has a disc injury, but he also provided multiple differential diagnoses, which included malingering and secondary gain. His conclusion seemed to be that: he should not try and help her; she was not injured at work; and she was at MMI withno permanentmedical impairment. Ms. Strunk is seeking reliefin that there is a disparity in the diagnoses provided by Dr. Moran and Dr. Hazlewood. Dr. Moran found that Ms. Strunk had a herniated disc but felt that physiatrist care with a facet injection would be the best approach. While Dr. Hazlewood seemed to agree with the diagnosis, he also thought Ms. Strunk is malingering or seeking secondary gain and never provided a facet injection. Ms. Strunk is seeking an appointment from the panel of "pain specialists" previouslyprovidedbyAramark. Attorney Thompson filed Ms. Strunk's affidavit that addressed Dr. Hazlewood's conduct during the examination. Ms. Strunk statedthe following about Dr. Hazlewood:

• He noted I was thirty five (35) years old but I am actually thirty three (33) years old. • He asked me questions but would not let me answer and would cut me offwhen I was speaking. • When Itriedto correcthim, he ignoredme. • He insisted I wasn'tbeinghonest withhim. • I felt like I was under attack. • He said "people do not gethurt simplyby mopping." • He reported I did not get relieffrom the epidural shot or physical therapy which was not true. • He noted I saidthe Percocetwere not working butthat is nottrue. • He did not show any interest in learning what my tearful eyes and emotions were about. Attorney Thompson argued that Ms. Strunk is entitled to a second medical opm10n pursuant to Tennessee Code Annotated section 50-6-204(a)(l)(C), and that Aramark would not be harmedby allowing Ms. Strunk to have a second opinion. Aramark's Contentions Aramark's contentions are taken form the documentation submitted to the Court for review. On October 2, 2014, Ms. Strunk presented to Stone Crest ER with complaints of narcotic withdrawal. On December 16, 2014, Ms. Strunk returned to Stone Crest ER reporting withdrawal symptoms and alleging to be out ofPercocet. Dr. Moran referred Ms. Strunk for a physiatry evaluation. Aramarkprovided a panel but Ms. Strunk's attorney specifically requested 3authorization ofDr. Hazlewood. Dr. Hazlewood placed Ms. Strunk at MMI as ofJanuary 21, 2014. He noted that there was no obvious explanation for her low back pain, released her to full duty work, and assigned an impairment rating ofzero percent (0%). Attorney Smith argued that pursuant to Tennessee Code Annotated section 50-6- 2040)(3), employees are not entitled to a second opinion on the issue ofimpairment, diagnosis, orprescribedtreatment relating to painmanagement. Findings ofFact and Conclusions ofLaw StandardApplied "The Workers' Compensation Law shall not be remedially or liberally construed in favor ofeither party but shall be construed fairly, impartially, and in accordance with basic principles ofstatutory construction favoring neither the employee nor employer." Tenn. Code Ann. 50-6- 116 (2014). Tennessee Code Annotated section 50-6-239(c)(6) provides that "[u]nless the statuteprovides for a different standard ofproof, at ahearing, the employee shall bearthe burden ofproving each and every element ofthe claim by a preponderance ofthe evidence." Tenn. Code Ann. section 50-6-239(c) (2014). A different standard ofproofexists for the issuance of interlocutory orders at expedited hearings than the standard ofproofrequired at compensation hearings. McCord v. Advantage Human Resourcing, No. 2014-06-0063 (Tenn. Work. Comp. App. Bd., March 27, 2015). A workers' compensationjudgemay enter an interlocutory order for medical or temporary benefits upon a determination that the injured employee would likely prevail at a hearing on the merits. Tenn. Code Ann. 50-6-239(d)(1) (2014); cfMcCall v. Nat'l Health Care Corp., 100 S.W.3d 209, 214 (Tenn. 2003). FactualFindings

• Ms. Strunkreported a work-related July 16, 2014 injuryto Aramark.

• Aramark accepted the claim as compensable and provided an initial panel of physicians from which Ms. Strunk selected Dr. Moran.

• Dr. Moran referred Ms. Strunkto physiatry.

• Aramark provided a panel of physiatrists and at the request of Ms. Strunk's attorneyrevised the panel to include Dr. Hazlewood.

• Ms. Strunk selected Dr. Hazlewood as the authorizedtreatingphysiatrist.

• Dr. Hazlewood placed Ms. Strunk at MMI on January 21, 2015. He did not assign any restrictions or permanent impairment. He did not recommend any additional treatment other than detoxification.

4Application of Law to Facts Tennessee Code Annotated section 50-6-204(a)(l)(C) (2013) states: When the treating physician or chiropractor refers the injured employee, the employee shall be entitled to have a second opinion on the issue of surgery and diagnosis from a physician or chiropractor in the same specialty as the physician who recommendedthe surgery...(Emphasis added.) Tennessee Code Annotated section 50-6-2040)(3) (2013) states: The injured or disabled employee is not entitled to a second opinion on the issue of impairment, diagnosis or prescribed treatmentrelatedtopainmanagement...

### (Emphasis added.) OnDecember 8, 2014, Dr. Morannotedthe following: This patient has severe degenerative disc disease L5-S1 with leftsided disc osteophyte complex but nothing that would account for her current right leg complaints. I think she would be a candidate for a facet injection. I don't think we should consider surgeryfor thispointbecause her mechanical discogenic backpain is her chief complaint one would have to consider an arthrodesis and at her young age and the fact she has only been symptomatic for four months, I don't think it would be reasonable to pursue that nor is she interested in surgery. I think her best option wouldbe to work with aphysiatrist for continued non-surgical care and I think she would be a candidate for a facet block. (Emphasis added). On January 14, 2015, Dr. Hazlewood noted the following: The goals of my treatment program are improvement in pain, physical functional capabilities and psychosocial functioning. The patientwas instructedto continue ahome exerciseprogram. She becomes very upset today and curses. She then calms down, and at the end when I explain that I have no further treatment recommendations she becomes very belligerent again. I told her that I felt obligated to give her a sheet that lists treatment centers for drug detox and I think this is the best chance she has to get better, especially if she has opiod hyperalgesia. This would not need to be covered through work comp, but is best covered through herprivate insurance. She walks out and refuses to take the sheet. She refuses to take my work sheet, but I explained that in my 5opinion there is no objectivebasis for any permanent restrictions in this case, and I think she needs to return to work and do the best she can. Certainly she is free to follow-up with her primary care physician and make sure there is not some other sort ofproblem caused this painreferred to her lowback. She wants me to refer her to another doctor under work comp, and I cannot do this. She would have to discuss this with her insurance company. I explained the importance ofpushing through this the best she can and doing herhome exercises, but again there is a definite problem here in my opinion. At any rate, I cannot explain the presentation, and she has significant signs of symptom magnification. I think this lady in my opinion has a very possible true opiod dependency problem, but she disagrees obviously. I do think she has reached MMI.

..She would have a zero percent (0%) whole personimpairmentratingrelated to this injury. In the submissions provided, both attorneys repeatedly reference "pain management." While some treatment rendered by a physiatrist may address a patient's management ofpain, the Court does not find that Dr. Moran's referral to a physiatrist for "continued non-surgical care" a "painmanagementreferral." In addition, although Dr. Hazlewoodreferenced inhis report, "[A]s a pain specialist looking to possibly continue indefinite pain management in a case, I must address the appropriateness of pain management," it does not appear that his treatment was limited to only pain management. Regardless ofwhether the referral was for general physiatry care or limited to pain management, Ms. Strunk is not entitled to a second medical opinion because Tennessee Code Annotated section 50-6-204(a)(1)(C) references "surgery and diagnosis" not "surgery or diagnosis." Further, itreferences the panel should consist ofthe same specialtyas thephysician who recommendedthe surgery. Neither Dr. Moran norDr. Hazlewood recommended surgery. Finally, Tennessee Code Annotated section 50-6-204(j)(3), specifically states employees are not entitled to a second opinion on the issue ofimpairment, diagnosis or prescribedtreatmentrelatedto pain management. ITIS, THEREFORE, ORDERED as follows: ' 1. The claim ofMs. Strunk against Aramark Nissan Smyrna or its workers' compensation carrier for a second medical opinion is denied at this time on grounds other than compensability. 2. This matteris set for Initial Hearing onJuly 8, 2015, at 9:00a.m. CST/10 a.m. EST.

6ENTERED thisthe2ndday ofJune,2015.

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HON. LISAA. KNOTT Workers' Compensation Judge Initial Hearing: An Initial Hearing has been setwith Judge Lisa A. Knott, Court ofWorkers' Compensation Claims. You mustcall 865-594-0109 ortoll free at 855-383-0003to participate in the Initial Hearing. PleaseNote: You must call in on the scheduled date/time to participate. Failure to call in may result in a determination ofthe issues withoutyour further participation. All conferences are setusing Central Time (CT). Right to Appeal: Tennessee Law allows any party who disagrees with this Expedited Hearing Order to appeal the decision to the Workers' Compensation Appeals Board. To file a Notice of Appeal, you must: 1. Complete the enclosed form entitled: "ExpeditedHearing Notice ofAppeal". 2. File the completed form with the Court Clerk 

### within seven (7) business days ofthe date the Expedited Hearing Orderwas enteredbythe Workers' CompensationJudge. 3. Serve a copy ofthe Expedited HearingNotice ofAppeal uponthe opposingparty. 4. The parties, having the responsibility of ensuring a complete record on appeal, may request from the Court Clerk the audio recording ofthe hearing for the purpose ofhaving a transcript prepared by a licensed courtreporter and filing it withthe Court Clerk within ten (10) calendar days of the filing of the Expedited Hearing Notice of Appeal. Alternatively, the parties may file a statement ofthe evidence within ten (10) calendar days ofthe filing ofthe Expedited Hearing Notice ofAppeal. The statement of the evidence mustbe approvedby the Judge before the record is submittedto the Clerk of the Appeals Board. 5. Ifthe appellant elects to file a position statement in support ofthe interlocutory appeal, the appealingparty shall file suchposition statementwiththe Court Clerkwithin three (3) business days ofthe filing ofthe Expedited Hearing Notice of Appeal, specifying the issues presented for review and including any argument in support thereof. If the appellee elects to file a response in opposition to the interlocutory appeal, appellee shall do so withinthree (3) business days ofthe filing ofthe appellant'sposition statement.

7CERTIFICATE OF SERVICE I hereby certify that a true and correct copy ofthe Expedited Hearing Order was sent to the following recipients bythe following methods ofservice onthis the 2nd day ofJune, 2015.

Name Certified Via Via Service sentto: Mail Fax Email 

### C. Kim Thompson, Esq. X kthomoson@hgollc.com CourtneyE. Smith, Esq. X ces@spicerfirm.com

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