## FILED May 21, 2018 04:20 PM(ET) TENNESSEE COURT OF WORKERS' COMPENSATION

CLAIMS



### TENNESSEE BUREAU OFWORKERS' COMPENSATION INTHE COURTOFWORKERS' COMPENSATIONCLAIMS AT KNOXVILLE

PAULWHITE, ) 

### DocketNo.: 2017-03-1291 Employee, ) 

### v. ) 

### G&RTRUCKING,INC., ) 

### StateFile No.: 63359-2016 Employer, and RIVERPORTINS. CO., Carrier. ) ) ) 

### JudgeLisaA. Lowe ) )



### EXPEDITEDHEARING ORDER FORMEDICALBENEFITS 

### (DECISIONONTHERECORD)

This matter came before the undersigned workers' compensationjudge on May 18, 2018, on Paul White's Request for ExpeditedHearing. The present focus ofthis case is whether Mr. White is entitled to medical benefits, specifically a lumbar spine fusion surgery at the L5-S1 level. The central legal issue is whether Mr. White's need for surgery relates to his December 22, 2005 injury, for which he has open future medical treatment, or ifit is a direct and natural consequence ofhis injury on August 17, 2016. Riverport insured G&Rat the time ofthe 2016 injury. GallagherBassett insured G&R at the time ofthe 2005 injury and, although not a party, filed an amicus brief. For the
reasons below, the Court holds Mr. White is likely to prevail in establishing his need for the L5-S1 fusion is a direct and natural consequence ofhis 2016 work injury. 

### HistoryofClaim
G&R Trucking employed Mr. White for over twenty-eight years. In 2005, he sustained a work-related back injury at the L4 level and underwent surgical decompression and fusion by Dr. Maguire. Mr. White settled a claim for that injury with GallagherBassett, which includedtheprovision oflifetime medical benefits related to the mJury.

1InAugust 2016, Mr. White again injured his backwhen Riverport had coverage of G&R. Riverport acceptedthe claim andprovided authorizedtreatmentwithDr. Maguire. An MRI performed two months after the injury revealed L3 issues at the L3 level, mild narrowing at L4-L5, and mild to moderate narrowing at L5-S1. Dr. Maguire ultimately performed surgery atL3.

While undergoingphysical therapy afterthat surgery, Mr. White felt a sudden pop in his back with immediate pain. Dr. Maguire ordered a CT myelogram, which again revealed mild narrowing at L4-L5 but also moderately severe right-sided foramina! stenosis at L5-S1for whichDr. Maguirerecommended surgical decompression.

In his June 19,2017 note, Dr. Maguire stated, "I do consider [the L5-S1 stenosis] part ofhis work-related injury. I do not know whether it arose in physical therapy or
... predated that, but

... I still attribute this to part ofhis work-related problem." On July 31, Dr. Maguire stated, "He has transitional syndrome and I believe his previous fusion has predisposed him to this." On September 26, Dr. Maguire noted he did not think Mr. White's L3 surgery was in any way related to the L5-S1 problem. Instead, he thought Mr. White was at risk for developing adjacent segment disease related to his prior L4-5 fusion andtheL5-S1level was now symptomatic due to increased stenosis.

On October 26, Dr. Maguire responded to a letter from the adjuster and marked "no" to these questions: (1) Please advise if, in your opinion, the need for surgery at L5- S1 is primarily caused by the August 17, 2016 work injury at level L3-4; and (2) Ifthe surgery is not related to the L3-4 injury, do you rescind the request for surgery at L5-S1 under the claim with the August 17, 201**~** date ofloss. However, on November 16, Dr. Maguire amended his prior opinion to say that he thought a substantial portion ofMr. White's need for pain management and surgery at L5-S1 was likely due to the more recent injury event at physical therapy. Dr. Maguire placed Mr. White at maximum medical improvement on December 14 and assigned six-percent whole-person impairment. Riverport sent Dr. Maguire's request for L5-S1 surgery to Utilization Review (UR), and the surgery request was denied. Mr. White appealed the UR decision to the Bureau Medical Director, who issued an Order for the L5-S1 surgery. As a result, Riverport filed a Petition for Benefit Determination seeking relief from the Medical Director's order, and this action followed.

Mr. White's Contentions

Mr. White obtained a record review with board-certified orthopedic surgeon, Dr. William Kennedy, who reviewed records from the recent injury but not from the 2005 injury. Thus, he relied on Dr. Maguire's discussion of the prior treatment and the doctor's conclusions in the records regarding the 2016 injury. Dr. Kennedy stated the

2recent injury resulted in Mr. White attending physical therapy when he felt a pop, which permanently aggravated and worsened his degenerative changes at L5 for which Dr. Maguire recommended surgery. Dr. Kennedy concluded within a reasonable degree of medical certainty that the L5 degenerative changes were dormant, causing no pain or symptoms, until aroused and worsened by the physical therapy incident, and therefore theyrelatedto the 2016 injury. Further, Mr. White stated in his affidavitthatthephysical therapy injury caused the extraordinary amount ofpain that he now suffers. Thus, he took the position that the physical therapy incident and resulting need for the L5 surgery is a direct and natural consequence ofhis L3 injury. Mr. White asserted the questions asked ofDr. Maguirecall for a legal opinionratherthan a medical opinion.
Riverport's Contentions Riverport argued Mr. White'sprior injury caused his need for L5 surgery, making Gallagher Bassett the responsible carrier. It argued Dr. McGuire related the need for surgery to Mr. White's prior injury and Dr. Maguire's causation opinion is presumed correct because he is the "treatingphysician." Itfurther argued Dr. Kennedy's opinion is less reliable because he never interviewed or evaluated Mr. White, while Dr. Maguire treatedMr. White for overtenyears. GallagherBassett's Contentions

GallaherBassett filed an amicus briefstating Mr. White's need for the L5 surgery relates to his new injury. It pointed to two objective imaging studies, the October 21, 2016 MRI and the June 8, 2017 CTmyelogram performed after Mr. White felt the pop in his back duringphysicaltherapy. GallagherBassettargued the MRI noted no disc bulging and only mild to moderate narrowing at L5-S1, while the myelogram showed some disc bulging and moderately severe narrowing at L5-SI. It argued the myelogram clearly revealed a worsening of Mr. White's condition after the physical therapy incident. Gallagher Basset noted that even if Mr. White's 2005 injury predisposed him to a transitional syndrome at L5, the physical therapy caused the current L5 pathology and need for surgery. Findings ofFact and Conclusions ofLaw
Mr. White need not prove every element ofhis claim by a preponderance ofthe evidence to obtain relief at an expedited hearing. Instead, he must present sufficient evidencethathe is likely toprevail at ahearing onthe merits. See Tenn. CodeAnn. § 50- 6-239(d)(l) (2017); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). Riverport argued that Dr. McGuire's causation opinion is presumed correct under Tennessee Code Annotated section 50-6-102(14)(E) since he is the "treating physician."

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### However, that section affords the presumption to the treating physician selected by employeefrom apanel. The Court is unable to determine whether Mr. White chose Dr. Maguire from a panel because Riverport failed to provide documentation or information that Mr. White did so. In fact, Riverport filed the PBD and left blank Section D, "Medical Benefits," which provides a selection that "employee received a list of physicians on [insert date] and selected [insert doctor name]." Due to Riverport's failure to establish Mr. White selected Dr. Maguire from a panel, Dr. Maguire is not entitled to the statutorypresumption.
The Court faces conflicting causation opinions from Dr. Maguire and Dr. Kennedy. A trialjudge "has the discretion to conclude that the opinion of one expert should be accepted over that of another expert." Reagan v. Tennplasco, No. M2005- 02020-WC-R3-CV, 2006 Tenn. LEXIS 1209, at *10 (Tenn. Workers' Comp. Panel Dec. 27, 2006). As stated by the Tennessee Supreme Court, "[w]hen faced

... with conflicting medical testimony

... it is within the discretion ofthe trialjudgeto conclude thatthe opinion ofcertain experts shouldbe accepted overthat ofother experts and that it contains the more probable explanation." Thomas v. Aetna Life and Cas. Co., 812 S.W.2d 278, 283 (Tenn. 1991) (internal quotationmarks omitted).

Not only do Dr. Maguire and Dr. Kennedy's opinions conflict, but also Dr. Maguire seems to contradicthimself. Namely, Dr. Maguire first said "no"when asked if the L5 surgery was related to the 2016 injury but later changed that opinion and said it
was related because ofthe physical therapy event directly attributable to the 2016 injury. Additionally, the Court is unconvinced Riverport asked Dr. Maguire the appropriate questions regarding causation. Admittedly, Dr. Kennedy only reviewed records and did not perform a physical examination. However, Dr. Kennedy specifically addressed the effect ofthe physical therapy incident on Mr. White's need for L5-S1 surgery. He said the therapy was a necessary part of Mr. White's rehabilitation program following L3 surgery and the physical therapy incident permanently aggravated and worsened Mr. White's degenerative changes at L5 for which Dr. Maguire recommended surgery. He went on to say that more likely than not, Mr. White would not have been exercising on the physical therapy ball but for his L3 surgery. Therefore, he concluded the L5 condition was causally related to and attributable to the recent work injury and that Mr. White's L5 degenerative conditions were dormant, causing no pain or symptoms until aroused and made worse bythephysicaltherapy incident.

Mr. White's affidavit testimony established he felt a sudden pop in his back and experienced immediate, extraordinary pain that he had not previously suffered. An employee's assessment as to his own physical condition is competent testimony that is not to be disregarded. Limberakis v. Pro-Tech Security, Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 53, at *6 (Sept. 12, 2017). Standing alone, his own assessment is insufficient,

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### .·but the Court finds that Dr. Kennedy's expert medical opinion supports Mr. White's testimony, and that even the references in Dr. Maguire's notes support Mr. White's testimony. Additionally, the comparison ofthe MRI performed afterMr. White's current work injury to the CT myelogram performed after the physical therapy incident objectively show an advancement from mild to moderate narrowing to moderately severe narrowmg.
The Appeals Board discussed subsequent injuries in Lee v. W Plastics, 2016 TN Wrk. Comp. App. Bd. LEXIS 53, at *6-7 (Oct. 20, 2016):
In Tennessee, the general rule is that a "subsequent injury, whether in the form ofan aggravation ofthe original injury or a new and distinct injury, is compensable ifit is the 'directand natural result' ofa compensable injury." Anderson v. Westfield Grp., 259 S.W.3d 690, 696 (Tenn. 2008). "Therule, commonly referred to as the direct and natural consequences rule, has been stated as: [ w]hen the primary injury is shown to have arisen out ofand in the course ofemployment, every natural consequence that flows from the injury likewise arises out of the employment." 

### !d. Therefore, "all the medical consequences and sequelae that flow from the primary injury are compensable." Rogers v. Shaw, 813 S.W.2d 397, 400 (Tenn. 1991). "The rationale for the rule is that the original compensable injury is deemed the
cause ofthe damage flowing from the subsequent injury-producing event." Anderson, 259 S.W.3d at 697.
The Court holds the evidence established that Mr. White would likely prevail at a hearing on the merits that his L5-S1 surgery was the direct and natural consequence of his August 17, 2016 injury because he suffered a specific incident in physical therapy, whichcausedhis need for the medicaltreatment.


### ITIS,THEREFORE, ORDERED as follows:
1. Riverport shall provide reasonable and necessary medical treatment for Mr. White's L5-S1 condition under Tennessee Code Annotated section 50-6- 204(a)(1)(A), includingthe surgery recommendedbyDr. Maguire.



### 2. This matter is set for a telephonic Status Hearing on July 13, 2018, at 9:30
a.m. Eastern Time. You must call toll-free at 855-383-0003 or 865-594-0109 to participate in the hearing. Failure to call may result in a determination ofthe issues withoutyour furtherparticipation.



### ENTERED on May21, 2018.

LISAA. LOWE,JUDGE CourtofWorkers' Compensation Claims
5APPENDIX
1. Petition for BenefitDetermination, 2. Dispute CertificationNotice, 3. Request for ExpeditedHearing, 4. Employer's Expedited HearingPosition Statement, 5. Employee'sResponsetoEmployer'sExpeditedHearingPosition Statement, 6. Affidavit ofPaul White, 7. Affidavit ofWilliamE. Kennedy, MD, 8. Final Judgment Approving lump Sum Settlement, Knox County Chancery Court, filed April 13, 2007, 9. FirstReport ofWorkInjury, 10.Wage Statement, 11.Medical Evaluation ofDr. William Kennedy, 12.Functional CapacityEvaluation ofResults Physiotherapy, 13.MedicalRecords and Table ofContents
a. Ortho Tennessee b. Knoxville Orthopaedic Surgery Center
c. OutpatientDiagnostic Center d. Physicians RegionalMedical Center 14.October21, 2016 LumbarMRI 15.GallagherBassett'sAmicusBrief.

CERTIFICATE OF SERVICE

I certify that a true and correct copy ofthe Expedited Hearing Order was sent to the following recipients bythe following methods ofservice onMay 21, 2018.

Name Certified Fax Email Service sentto: Mail JoshuaJ. Bond, X jbond@hdclaw.com Employee'sAttorney
Ryan L. Sarr, X rsarr@morganakins.com Employer'sAttorney

# ~**~SJA«&n ~JJ** **ii ~AQ~**  ENNY HRUM, COURT CLE

.**~** wc.courtclerk@tn.gov

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