# FILED January 30,2017
TN COURTOF l\'ORKIRS'COJi.IPlNSATION CL'ill.IS**im.e 7:** **15 U<I**  

### TENNESSEE BUREAU OFWORKERS' COMPENSATION INTHE COURTOFWORKERS' COMPENSATIONCLAIMS AT KNOXVILLE VICTORIAKAYWAXSTEIN, ) 

### DocketNo.: 2016-03-1015 Employee, ) 

### v. ) 

### ARCHITECTURAL GRAPHICS, ) 

### StateFile No.: 79729-2015 INC., ) 

### Employer, ) 

### And ) 

### U.S. FIRE INSURANCE CO., ) 

### JudgePamela B. Johnson Carrier. )



### EXPEDITEDHEARING ORDER GRANTINGMEDICALBENEFITS (Decision on the Record)

This matter came before the undersigned Workers' Compensation Judge upon the Request for Expedited Hearing filed by Victoria Kay Waxstein seeking a decision on the record in lieu ofconvening an evidentiary hearing. Architectural Graphics, Inc. did not file a Response to the Request for Expedited Hearing and did not request an evidentiary hearing. The Court issued a Docketing Notice on January 17, 2017, listing the documents to be considered. This Court gave Ms. Waxstein and Architectural Graphics until January 26, 2017, to file objections and/orposition statements. Ms. Waxstein filed a Position Statement on January 25, 2017. Architectural Graphics did not file objections butpreviously filed aPosition Statement on October 10, 2016. Upon careful consideration ofthe record, this Court finds it needs no additional information to determine whether Ms. Waxstein is likely to prevail at a hearing on the merits ofthe claim. Accordingly, pursuant to Tennessee Code Annotated section 50-6- 239(d)(2) (2016), Tennessee Compilation Rules and Regulations 0800-02-21-.14(1)(c) (2016), the Court decides this matterupon areview ofthewritten materials. The central legal issue is whether Ms. Waxstein is likely to prevail at a hearing on the merits on entitlement to additional medical benefits, specifically treatment for an 1alleged low back injury. For the reasons set forth below, the Court holds Ms. Waxstein came forward with sufficient evidence demonstrating she is likely to prevail at a hearing on the merits. Accordingly, this Court concludes Ms. Waxstein is entitled to the requested medical benefits. History ofClaim
A review ofthe written materials revealed the following facts. On September 28, 2015, Ms. Waxstein left work at Architectural Graphics and fell in the parking lot while walking to her car. As a result ofthe fall, she allegedly sustained injury to her right leg and lower back. Architectural Graphics accepted the claim as compensable and provided authorized medical treatment for the right leg injury. However, it disputed the alleged lowerback injury and, as such, itprovidedno medical treatment for the lowerback. The next day, Ms. Waxstein saw Dr. Roy E. Kuhl, Jr., an authorized treating physician (ATP), and reported she "stepped into a hole yesterday, severely twisting her right ankle

... No other injuries occurred." (Ex. 4.) Dr. Kuhl ordered and reviewed xrays, which showed a right ankle distal fibula fracture. Dr. Kuhl referred Ms. Waxstein to orthopedicphysician Dr. MarkThomas.
Later that same day, Dr. Thomas, also an authorized provider, evaluated Ms. Waxstein. She told Dr. Thomas, "while leaving work in the dark last night she stepped, she thinks[,] in a pothole and sustained an inversion injury with immediate onset of lateral ankle pain

... She has no other somatic complaints." (Ex. 6.) Dr. Thomas confirmed aright ankle fracture ofthe lateral malleolus and ordered a short leg cast. Ms. Waxstein went to East Tennessee Medical Group Urgent Care Clinic the following day and reported a history of"recent fx R leg, at time offall may have hurt L leg." (Ex. 5.) The attending provider ordered a DVT ultrasound ofthe left leg, which was negative for evidence ofdeep venous thrombosis. Approximately two weeks later, Ms. Waxstein returned to Dr. Kuhl and reported she "also landed on her left side" and "[a]bout a day after the fall, she started having left lateral hip pain withpainradiating downthe left leg into the left anterior shin to the ankle She denies backpain." !d. Dr. Kuhl noted,

!d

. A fall 2 weeks ago with left leg pain and symptoms that are consistent with lumbar radiculopathy. We will proceed with x-rays of the left hip and lower leg, and I am going to go ahead and ask for an MRI of the lumbosacral spine.

2When Ms. Waxstein returned to see Dr. Thomas for her one-month follow-up, she reported, "within 24 hours ofthe ankle injury[,] [ s]he began having pretty severe sciatic symptoms in the left lower extremity." !d. Dr. Thomas noted,
I have spoken with the patient about the natural history of sciatic symptoms. This does seem to be work related

... We will put her into a CAM boot for the right ankle

... and we will defer on any other treatment for the sciaticauntil we have a little more healing ofthe fracture. Once that is healed, if she is having continued symptoms, would begin more aggressive treatment ofher sciatic symptoms. !d. Thereafter, Ms. Waxstein transitioned to an air cast splint and weight bearing on the right ankle. On January 6, 2016, Dr. Thomas released Ms. Waxstein to unrestricted duties at work, assigned maximum medical improvementwith no permanent impairment, and instructed herto return as needed. Eight months later, Ms. Waxstein returned to Dr. Thomas with complaints of persistent pain in the Achilles tendon region and persistent numbness down her left leg and into her left foot since the fall injury. Dr. Thomas recommended a simple exercise program for the Achilles and peroneal tendinitis. He further obtained lumbar spine xrays, which demonstrated significant L4-5 degenerative changes with L3-4 degenerative spondylolistheses. Dr. Thomas believed the changes to be chronic but ordered a lumbar MRI to evaluate ifthere were any acute changes to explain the numbness. !d. Architectural Graphics submitted the recommended lumbar MRI to Utilization Review (UR). (Ex. 7.) After review ofthe single office note and physician's order in which Dr. Thomas ordered the lumbar MRI, the UR provider, Dr. Robert E. Holladay, was unable to recommendtherequested treatment. Dr. Holladay noted,
In this case, the claimant presents with a history ofright ankle fracture and left leg numbness that goes down to the foot. The claimant denies pain or weakness. Examination is positive for Achilles and peroneal tendinitis. There is limited documentation ofneurologic compromise on examination related to the lumbar spine. Lumbar complaints or conservative care addressing the lumbar spine are not outlined. Without consistent radiculopathy, the current request is not supported per guidelines. The medical necessity is not established. Non-certification is recommended. !d. Based upon the UR non-certification, Architectural Graphics denied the recommended lumbar MRI scan. Subsequently, Ms. Waxstein underwent a nerve conduction and electrodiagnostic study (NCS/EMG), which revealed evidence ofchronic L4 radiculopathy, left lumbosacral plexopathy, or chronic femoral neuropathy. (Ex. 11.) Based upon the results of the testing, the NCV /EMG provider, Dr. L. Scott Sole,
3recommended a MRI ofthe lumbar spine and left pelvis, which Architectural Graphics did not authorize. Findings ofFact and Conclusions ofLaw The following legal principles govern this case. Because this case is in a posture ofan Expedited Hearing, Ms. Waxstein need not prove every element ofher claim by a preponderance ofthe evidence in order to obtain relief. 

### McCord v. Advantage Human Resourcing, 2015 TN Wrk. Camp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). Instead, she must come forward with sufficient evidence from which this Court might determine she is likely to prevail at ahearing on the merits. !d.; Tenn. Code Ann. § 50-6- 239(d)(l) (2016).
Tennessee Code Annotated section 50-6-204(a)(l)(A) (2016) provides that "[t]he employer or the employer's agent shall furnish, free of charge to the employee, such medical and surgical treatment

... made reasonably necessary by accident as defined in this chapter." Furthermore, a work-related injury "causes

... the need for medical treatment only ifit has been shown to a reasonable degree ofmedical certainty that it contributed more than fifty percent (50%) in causing the

...need for medical treatment." Tenn. Code Ann.§ 50-6-102(14)(C) (2016). '"Shown to a reasonable degree ofmedical certainty' means that, in the opinion of the physician, it is more likely than not considering all causes, as opposed to speculation orpossibility." Tenn. Code Ann. § 50- 6-102(14)(D) (2016).
Tennessee Code Annotated section 50-6-204(b)(l) provides that "[w]here the nature of the injury

. . . is such that it does not disable the employee but reasonably requires medical [or] surgical

... treatment or care, medicine [or] surgery ... shall be furnished by the employer." Section 50-6-102(14)(E) provides, "The opinion of the treating physician, selected by the employee from the employer's designated panel of physicians pursuant to § 50-6-204(a)(3), shall be presumed correct on the issue of causation but this presumption shall be rebuttable by a preponderance ofthe evidence. Moreover, "treatment recommended by a physician

... selected pursuant to [§ 50-6- 204(a)(3)] or by referral, ifapplicable, shall be presumed to be medically necessary for treatment ofthe injured employee." Tenn. Code Ann. § 50-6-204(a)(3)(H) (2016); 

### see also Morgan v. Macy's, 2016 TN Wrk. Comp. App. Bd. LEXIS 39, at *17 (Aug. 31, 2016).Here, the sole issue is the causal relationship and medical necessity ofmedical treatment for the alleged low back injury, and specifically for the lumbar MRI recommended by the ATP. Thus, at the Expedited Hearing stage, where the issue concerns medical treatment, Ms. Waxstein has the burden of presenting sufficient evidence to show she is likely to prevail at trial in establishing that the recommended treatment was causally related to and reasonably required as a result ofthe work injury.
4

### See Tenn. Code Ann. § 50-6-204(b)(1); 

### see also Coolidge v. City WineryNashville, LLC, etal., 2016 TNWrk. Comp. App. Bd. LEXIS 46, at*16-17 (Sept. 23, 2016). This Court is presented with competing medical opinions on the issues ofcausal relationship and medical necessity ofthe recommended MRI. On the issue of causal relationship to the work injury, the ATP stated, "I have spoken with the patient about the natural history ofsciatic symptoms. This does seem to be work related." Basedupon the degenerative changes noted on x-ray, Architectural Graphics argued the alleged low back injury did not arise primarily out ofor occur in the course and scope ofthe employment. However, Architectural Graphics did not offer expertproofon the issue ofcausation. As previously noted, the opinion ofthe ATP is presumed correct on the issue ofcausation. Therefore, the Court finds Ms. Waxstein appears likelyto establishthattherecommended MRI is causallyrelated to herwork injury. Turning to the issue of medical necessity, this Court is presented with two opmwns. The authorized treating physician, Dr. Thomas, indicated he believed the lumbar degenerative changes to be chronic but ordered a lumbar MRI to evaluate ifthere were any acute changes to explain Ms. Waxstein's radicular symptoms. In contrast, the URprovider, Dr. Holladay, stated, There is limited documentation ofneurologic compromise on examination related to the lumbar spine. Lumbar complaints or conservative care addressing the lumbar spine are not outlined. Without consistent radiculopathy, the current request is not supported per guidelines. The medical necessity is not established. When weighing expert medical proof, this Court has the discretion to determine which testimony to accept when presented with conflicting expert opinions. 

### See Kellerman v. FoodLion, Inc., 929 S.W.2d 333, 335 (Tenn. Workers' Comp. Panel Sept. 5, 1996); 

### Johnson v. Midwesco, Inc., 801 S.W.2d 804, 806 (Tenn. 1990). Further, when there is conflicting medical testimony, "thetrialjudgemust obviously choose whichview to believe. In doing so, [the trialjudge] is allowed, among other things, to consider the qualifications of the experts, the circumstances of their examination, the information available to them, and the evaluation of the importance of that information by other experts." 

### Orman v. Williams Sonoma, Inc., 803 S.W.2d 672, 676 (Tenn. 1991). Here, the first factor

- qualifications ofthe experts

- weighs equally in favor of either physician, as both physicians are orthopedic physicians. The second factor

- the circumstances oftheir examination- favors Dr. Thomas, who personally examined Ms. Waxstein on multiple occasions overthe course ofseveral months. The third factor- the information available to them- is also favorable to Dr. Thomas, whohad the opportunity to: personally observe Ms. Waxstein and assess her credibility; physically examine Ms. Waxstein and make objective findings, order and review films from various diagnostic
5testing; and obtain historical information not readily available in the medical records. The final factor

- the evaluation ofthe importance ofthat information by other experts

- also weighs in favor ofDr. Thomas, as his medical records demonstrate the radicular complaints reported by Ms. Waxstein since her fall, while Dr. Holladay's consideration was limited to a single office visit. This Court is persuaded by Dr. Thomas. Accordingly, this Court concludes that Dr. Holladay's opinion failed to rebut the presumption ofcorrectness afforded Dr. Thomas, the ATP, on the issue ofcausation and medically necessity. Based upon a review ofthe written materials, this Court concludes Ms. Waxstein came forward with sufficient evidence that she is likely to prevail at a hearing on the merits that the work injury caused and medically necessitated the need for the recommendedMRI. Additionally, Architectural Graphics shall continue to provide Ms. Waxstein with medical benefits in accordance with Tennessee Code Annotated section 50-6-204 (2016), and Dr. Thomas shall remainthe authorized treatingphysician.
IT IS, THEREFORE, ORDERED as follows: 1. Architectural Graphics shall provide Ms. Waxstein with medical treatment for her injuries as required by Tennessee Code Annotated section 50-6-204 (2016), to include authorization ofthe MRI scan recommended by Dr. Thomas. Medical bills shall be furnished to Architectural Graphics or its workers' compensation carrier by Ms. Waxstein or the medical providers. Dr. Thomas shall remain the authorizedtreating physician.
2. This matter is set for a Scheduling Hearing onApril 6, 2017, at 9:30a.m. Eastern Time. Theparties mustcall 865-594-0091 or 855-543-5041 toll-freeto participate in the Scheduling Hearing. Failure to appear by telephone may result in a determination ofthe issues withoutyour further participation. 3. Unless interlocutory appeal ofthe Expedited Hearing Order is filed, compliance with this Order must occurno laterthan seven business days from the date ofentry ofthis Order as required by Tennessee Code Annotated section 50-6-239(d)(3) (2016). The Insurer or Self-Insured Employer must submit confirmation of compliance with this Order to the Bureau by email to WCCompJiance

.ProgTam@tn.gov no later than the seventh business day after entry ofthis Order. Failure to submitthe necessary confirmation withinthe period ofcompliance may result in apenalty assessment for non-compliance.

64. For questions regarding compliance, please contact the Workers' Compensation Compliance Unit by email at WCCompliance.Program@tn.gov or by telephone at (615) 253-1471 or (615) 532-1309.



### ENTEREDthisthe 30th

# vv---'

HON. PAMELAB.-JOHNSON Workers' CompensationJudge

7APPENDIX
The Court reviewed the entire case file in reaching its decision. Specifically, the Courtreviewedthe following documents, marked as exhibits for ease ofreference: Exhibits: 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. Petitionfor BenefitDetermination Dispute CertificationNotice Architectural Graphics' Position Statement Medical Records ofDr. Roy Kuhl, EastTennesseeMedical Group MedicalRecords ofEastTennesseeMedical Group, UrgentClinic MedicalRecords ofDr. MarkK. Thomas, OrthoTennessee Utilization ReviewDenial FirstReportofWorkInjury Request for Expedited Hearing AffidavitofVictoria Waxstein Notice ofFilingMedicalRecords andMedical Records ofDr. L. Scott Sole DocketingNotice for a Decision onthe Record Ms. Waxstein'sPosition Statement CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy ofthe Expedited Hearing Order was sent to the following recipients by the following methods ofservice on this the 30th day ofJanuary, 2017.
Name Certified Fax Email Service sentto: Mail BradC. Burnette, Esq., X bradburnette@foxandfarleylaw.com Employee'sAttorney James H. Tucker, Esq., X 

### i tucker@ma.nierherod.com Employer's Attorney

# --**A±~ Clerk**  W .CourtClerk@tn.gov

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