1 TENNESSEE BUREAU OF WORKERS’ COMPENSATION IN THE COURT OF WORKERS’ COMPENSATION CLAIMS AT NASHVILLE

Melanie Burns

- Herrera , ) Docket No. 20 21

- 06

- 0175

Employee, )

v. ) State Industries, LLC , ) State File No. 107705

- 20 19

Employer, ) And ) Sentry Ins. , a Mutual Company, ) Judge Kenneth M. Switzer

Carrier. )

EXPEDITED HEARING ORDER

In the words of one physician in this case, medicine is both an art and a science , and
t he answers are not always clear. As an example, in this case, t wo well

- qualified orthopedic
surgeon s have reached opposite conclusions regarding whether surgery is appropriate to treat M elanie Burns

- Herrera

.

Ms. Burns

- Herrera seeks an order compelling State Industries to authorize surgery with Dr. Matthew Willis , a physician of her choosing

. State Industries counters that the procedure is not advisable , based on the opinion of the treating physician, Dr. Jason Haslam.

After an expedited hearing on June 15, 2022, t he Court holds that Ms. Burns

- Herrera is entitled to undergo the recommended surgery

. If Dr. Haslam is unwilling to perform it, State Industries must provide a panel of orthopedists willing to treat Ms. Burns

- Herrera.

Claim History

Ms. Burns

- Herrera suffered a work injury to her right shoulder on October 15 , 2019

. State Industries authorized treatment , and she chose Dr. Haslam from a panel of physicians

.

Dr. Haslam saw her approximately monthly beginning in January 2020 . He diagnosed impingement syndrome

, recommended physical therapy, injected the shoulder, 

### FILED Jun 21, 2022 02:58 PM(CT)
TENNESSEE COURT OF WORKERS' COMPENSATION

CLAIMS2

and prescribed medication . These measures provided no relief , s o Dr. Haslam performed
surgery , specifically, a right

- shoulder arthroscopy with subacromial decompression, on March 24.

Dr. Haslam saw nothing un usual post

- operatively at the next three visits

, but Ms. Burns

- Herrera continued to experience pain and reduced range of motion . In June, h e injected the shoulder and placed her on modified duty.

At a July visit, Dr. Haslam first saw evidence of adhesive capsulitis, otherwise known as a “frozen shoulder.” His notes characterize the condition as “an unfortunate side effect from surgical intervention.” Dr. Haslam explained at his deposition that th is means the covering of her shoulder joint became inflamed, causing pain and limited range of motion.

In August and September , he injected the shoulder. At the latter visit, Dr. Haslam also placed Ms. Burns

- Herrera at maximum medical improvement and as signed a seven

percent impairment rating. Notes from that visit do not mention surgery as a treatment option. Ms. Burns

- Herrera returned in October and received another injection. Dr. Haslam wrote, “ I have no further treatment for the patient[.] . . . I believe she should get a second opinion regarding possible further treatment options.”

Ms. Burns

- Herrera then sought treatment on her own with Dr. Matthew Willis

. Her first visit in December was with physician assistant , Dana Duff, who sent her for an MRI. When she returned later that month , Ms. Burns

- Herrera saw physician assistant Aust in Bragdon, who reviewed the MRI results and recommend ed surgery

.

After the recommendation, Ms. Burns

- Her r era returned to Dr. Haslam in January 2021

, and they discus s ed surgery

. He testified th a t he did not recommend it at that time: “Because the prognosis for frozen shoulder is good. If you don’t do surgery, it’s good. If you do surgery, it’s relatively good. So I tell my family members and my patients, if you have a good outcome and it’s a good prognosis, avoid doing surgery.” He also said that additional surgery would be painful and that he did not want her to go through that again. This was Ms. Burns

- Her r era’s final visit with Dr. Haslam, at which time he wrote that he

w ould see her back as needed.

On cross

- examination, Dr. Haslam agreed that he did not order a post

- operative MRI and that he had not seen the MRI report that Dr. Willis’s staff ordered. Dr. Haslam acknowledged that his notes do not mention surgery as an option until Janua ry 2021, but he said it came up before then and added

, “ Remember I’m a surgeon. I like to operate.” He further testified that surgery is an option to treat adhesive capsulitis , and it can provide relief to patients. In fact, Dr. Haslam has performed it “many times,” and ninety

- five percent of patients will recover without any long

- term deficits to the ir shoulders , he said

.3

Dr. Haslam conceded that physically, Ms. Burns

- Herrera would probably tolerate another surgery well. He agreed that practicing medicine is an art and science.

Dr. Haslam testified that he told Ms. Burns

- Herrera the following:

Everybody gets better from frozen shoulder. We can do surgery on it and you may get your range of motion faster, but you may have a lot of pain for a very long time. That time frame of pain may not actually get better. It may take another ye ar and a half for your pain to get better. Will you get better motion? Probably, because we’re going to cut up the capsule so, yeah, you might get better motion. But I promise you, it’s a painful operation.

As for Dr. Willis, he testified that he firs t saw Ms. Burns

- Herrera in June 2021. H e examined her and recorded her reduced range of motion. He said that he reviewed all of Dr. Haslam’s records, so he was aware that she received many injections

— more tha n he would have recommended

— and attempted physical therapy many time s with little relief. Dr. Willis said that her post

- surgery pain and stiffness should have resolved by then . He explained the surgery recommendation as follows at his deposition:

She’s m otivated, she’s in a lot of pain. She has an objectively stiff shoulder after surgery. The overwhelming of those do well after a release. She has a clear anatomic problem that would benefit from additional surgery and has failed very extensive conservat ive measures since her surgery. So she really checks all the boxes.

Dr. Willis testified that the capsulitis resulted directly from Ms. Burns

- Herrera’s surgery and that she did not have motion deficits before it. Dr. Willis sai d that the risks of the proposed surgery were low , with only a five

- percent risk that her should er stiffness would worsen

. Dr. Willis acknowledged the doctors’ professional difference of opinion by agreeing that “two skilled and knowledgeable physicians can differ on the treatment plan that they recommend

. ” Ms. Burns

- Herrera returned t o Dr. Willis in January 2022, and Dr. Willis repeated the surgery recommendation.

For her part, Ms. Burns Herrera , who is right

- handed, testified that her work injury has affected her daily living. S he can no longer reach items from the top shelf in her refrigerator. She needs assistance to hook her bra or get in and out of the bathtub. She
cannot participate in past hobbies: riding motorcycles and “work[ing] on cars. ” Ms. Burns

Herrera said she underwent injections six times under Dr. Haslam’s care , but she declined the last one he offered because they were not helping. Ms. Burns

- Her rera t estified that she “was fine” with Dr. Haslam’s treatment at first but no longer trusts him and would not feel comfortable with further treatment from him.4 Findings of Fact and Conclusions of Law

At an e xpedited h earing, Ms. Burns

- Herrera must show she would likely prevail at a hearing on the merits. Tenn. Code Ann. § 50

- 6

- 239(d)(1) (2021)

. Tennessee Code Annotated section 50

- 6

- 204(a)( 1 )( A ) states that an employer shall furnish, free of charge to the employee, “medical and surgical treatment . . . made reasonably necessary” by the work accident. Here, the experts agree that the adhesive capsulitis resulted from the previous surgery but disagree on the next step. Dr. Haslam believes the capsular release is not reasonably necessary; Dr. Willis believes it is.

As an initial issue , the parties disagreed in their briefs whether any presumption is afforded to Dr. Haslam. The Workers’ Co mpensation Law reads, “ A ny treatment recommended by a physician

. . . selected pursuant to [section 50

- 6

- 204(a)(3)] or by referral, if applicable, shall be presumed to be medically necessary for treatment of the injured employee. ” Ms. Burns

- Herrera asserted that this does not apply, and the Court agrees. Dr. Haslam, the a uthorized treating physician, has made no active treatment recommendation. By his own words, he has “no further treatment.” Stated another way, when last consulted in January 2021, he recommended nothing but time.

Moreover, in Endsley v. Benchmark Cont ractors, LLC

, an authorized treating physician recommended no treatment and disagreed with a nother physician who provided a second opinion recommending surgery. The employer had authorized the second

- opinion physician. The Appeals Board concluded that th e initial authorized physician “did not recommend treatment but offered an opinion that surgery recommended by another physician was not necessary.” 2017 TN Wrk. Comp App. Bd. LEXIS 47, at *7 (Aug. 11, 2017) (emphasis in original)

. The Board explained:
The statute provides that treatment recommended by an authorized doctor is presumed to be medically necessary, but makes no mention of whether an authorized physician’s opinion about the medical necessity of treatment recommended by another doctor is enti tled to that same presumption. Thus, by the express terms of this subsection, an opinion of one physician concerning treatment by another physician does not qualify for the presumption described in subsection 204(a)(3)(H).

Id. at *7

- 8 (emphasis in origina l).
The Court agrees with State Industries that the facts of this case and Endsley are not identical. But the salient facts correlate

— specifically, an authorized physic i an recommended taking no action and commented on another physician’s surgery

recomme ndation. Whether the other physician was compensated by the employer or employee is immaterial

. The question of whether Dr. Haslam has “relinquished care,” which he has not , is also irrelevant

.5

Instead, the Court must weigh the competing expert opinions with no presumption

. In determining which to accept, the Court can consider, among other things, the qualifications of the experts, the circumstances of their examination, the information available to them, and an evaluation of the importance att ached to the information by other experts. Bass v. The Home Depot U.S.A., Inc ., 2017 TN Wrk. Comp. App. Bd. LEXIS 36, at *9 (May 26, 2017).

Looking at the first factor, the Court finds both experts are well

- qualified. This consideration favors neither physician.

As to the circumstances of their examination, State Industries contended that this factor favors Dr. Haslam because he saw and examined Ms. Burns

- Herrera more often, while Dr. Willis saw and examined her twice , after his physician assistants first saw her. I n State Industries’ view, not only did Dr. Haslam see her more often, but also, the physician assistants made the surgery recommendation.

The Court disagrees

. It is true that Dr. Haslam saw Ms. Burns

- Herrera twelve times, while Dr. Wil lis saw her twice. Dr. Willis explained the work dynamics of his office in his testimony, namely that he and the physician assistants work together and confer often

. M ore important though, Dr. Willis actually examine d Ms. Burns

- Herrera and record ed objective test results in June 2021, to confirm the previous surgery recommendation , which he reaffirmed most recently in January 2022 . In his testimony, Dr. Willis maintained that ultimately the recommendation was his . This factor ̶ the c i rcumstances o f the examination ̶ likewise favors neither physician.

As to the information available to them, Dr. Haslam testified that he did not see the results of the MRI ordered by Mr. Duff. This factor favors Dr. Willis because he saw the more complete picture

. Regarding the importance of that information attached by other experts, both doctors essentially agreed that two skilled physicians can reach differing conclusions. This factor favors neither.

In addition to considering the Bass factors, l ive t estimony by a lay witness may influence the trier of fact in the consideration of expert medical proof. Caskey v. Powers Pizza, LLC , 2015 TN Wrk. Comp. App. Bd. LEXIS 37, at *9 (Oct. 7, 2015). Ms. Burns

Herrera credibly testified that she has difficulty with daily activities such as reaching for items and dressing her self without assistance. She also cannot enjoy her previous hobbies. T he Supreme Court has consistently held that an employee ’ s assessment as to his or her own physical condition is competent testimony that is not to be disregarded

. Limberakis

v. Pro

- Te ch Sec

. , Inc. , 2017 TN Wrk. Comp. App. Bd. LEXIS 53, at *5

- 6 (Sept. 12, 2017)

.6

Here, Ms. Burns

- Herrera complied with all of Dr. Haslam’s conservative treatment recommendations. When he finally had nothing else to offer, on his advice, she reasonably consulted another physician, who recommended a capsular release

.

Dr. Haslam first diagnosed the adhesive capsulitis in July 2020. He wrote that he had no further treatment starting in September 2020. He testified that time w ould remedy her symptoms. But, a s Ms. Burns

- Herrera argued, it has been “two years, two months, and
twen ty

- four days” since the initial surgery, and her symptoms remain. To date, Dr. Haslam’s prediction simply has not come to fruition , and it is well past his suggested time frame for improvement . As Dr. Willis stated, she is motivated to undergo surgery, and all other options have been exhausted.

Moreover, while State I ndustries is concerned that the surgery will be unsuccessful, both doctors placed the risk very low, just five percent. The Court is likewise unpersuaded by the contention that Ms. Burns

- Herrera’s private insurance is willing to cover the procedure, since the physicians in this case have agreed that the surgery performed to treat the work injury caused her adhesive capsulitis.

Although a close call, Dr. Wil lis’s opinion, considered with Ms. Burns

- Herrera’s testimony, tip s the scales in her favor. The Court holds that State Industries must authorize
surgery as recommended by Dr. Willis.

The question then becomes, who shall perform the procedure? Dr. Haslam testified that as a surgeon

, he “like[s] to operate,” and he is willing to continue treating Ms. Burns

Herrera. Moreover, as State Industries’ attorney acknowledged, Dr. Haslam’s “timeline is not completed yet,” and he did not say h e would “never” do surgery, but “now” he does not recommend it. Ms. Burns

- Herrera has not seen Dr. Haslam since January 2021. Since then, his opinion might have changed.

At the interlocutory stage of a case, where the authorized physician remains willi ng to treat an injured worker, the employee is not entitled to a new authorized treating physician. Baker v. Electrolux, 2017 TN Wrk. Comp. App. Bd. LEXIS 65, at *8

- 9 (Oct. 20, 2017). Ms. Burnes

- Herrera offered no legal authority to justify her proposed designation of Dr. Willis as the authorized physician; she merely expressed dissatisfaction with Dr. Haslam . This is an insufficient reason under the law, and Dr. Haslam remains her authorized treating physician.

IT IS, THEREFORE, ordered as follows:

1. State Industries shall authorize Ms. Burns

- Herrera to return to Dr. Haslam. It shall further authorize Dr. Haslam to perform the recommended surgery. If, however, he is unwilling to do so, State Industries shall offer a panel of orthopedic surgeons willing to treat Ms. Burns

- Herrera

.7

2. A status hearing is set for August 29 , 2022, at 9:45 a.m. Central Time. The parties must dial (615) 532

- 9552 or (866) 943

- 0025 to participate.

3. Unless interlocutory appeal o f the Expedited Hearing Order is filed, compliance with this Order must occur no later than seven business days from the date of entry of this Order as required by Tennessee Code Annotated section 50

- 6

- 239(d)(3)

. The Insurer or Self

- Insured Employer must submit confirmation of compliance with this Order to the Bureau by email to WCCompliance.Program@tn.gov no later than the seventh business day after entry of this Ord er. Failure to submit the necessary confirmation within the period of compliance might result in a penalty assessment for non

- compliance. For questions regarding compliance, please contact the Workers’ Compensation Compliance Unit via email at WCCompliance.Program@tn.gov

.

ENTERED June 2 1 , 20 2 2

.

______________ __________________________ J UDGE K ENNETH M. S WITZER Court of Workers’ Compensation Claims

APPENDIX

Technical Record : 1. Petition for Benefit Determination 2. Dispute Certification Notice 3. Hearing Request 4. Notice of Amended Witness List for Expedited Hearing 5. Pretrial Order 6. Employee’s Pretrial Brief 7. Employer’s Trial Brief 8. Employer’s Witness and Exhibit List 9. Employer’s Reply Brief Evidence : 1. Aff idavit 2. Joint Exhibit List

- Medical Proof 3. Joint Stipulation, February 9, 2022 4. Notice of Stipulations, May 11, 2022 5. Petition for Benefit Determination8 CERTIFICATE OF SERVICE

I certify that a copy of th is Order was sent as indicated on June 2 1 , 20 2 2

.

Name Certified Mail Regular

mail Email Sent to

Stephan Karr, Cindy Harris, E mployee ’s attorneys X Steve@flexerlaw.com Cindy@flexerlaw.com

Lee Anne Murray, Taylor Pruitt

, E mployer’s attorney s X leeamurray@feeneymurray.com trp@feeneymurray.com jessica@feeneymurray.com Madeline@feeneymurray.com

_______________________________________ PENNY SHRUM , CLERK Court of Workers’ Compensation Claims WC.CourtClerk@tn.govFor self

- represented litigants: Help from an Ombudsman is available at 800

- 332

- 2667. 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 f ile 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 B ureau 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

complete d 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. If a 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 busine ss 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 Appe als 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 mu st 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 sta tement. 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.LB -1099 rev. 01/20 Page 1 of 2 RDA 11082 NOTICE OF APPEAL Tennessee Bureau of Workers’ Compensation www.tn.gov/workforce/injuries- at -work/ wc.courtclerk@tn.gov | 1- 800

- 332 -2667

Docket No. :

________________________ State File No.:

______________________ Date of Injury: _____________________

___________________________________________________________________________ Employee

v.

___________________________________________________________________________ Employer

Notice is given that ____________________________________________________________________

[List name(s) of all appealing party(ies). Use separate sheet if necessary.]

appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Co mpensation Appeals Board (check one or more applicable boxes and include the date filestamped on the first page of the order(s) being appealed):



### □ Expedited Hearing Order fil ed on

_______________ 

### □ Motion Order filed on ___________________



### □ Compensation Order filed on

__________________ 

### □ Other Order filed on

_____________________ issued by Judge _____________________________________________________________________

____ .

Statement of the Issues on Appeal Provide a short and plain statement of the issues on appeal or basis for relief on appeal:

______________________________________________________________________________________ __

______________________________________________________________________________________ __

______________________________________________________________________________________ __

______________________________________________________________________________________ __
Parties Appellant(s) (Requesting Party): _________________________________________ ☐ Employer ☐ Employee Address: _______________________________________________________

_ Ph one: ___________________ Email: __________________________________________________________ Attorney’s Na me:

_____________________________________________ _ BPR#: _______________________ Attorney’s E mail: _____________________________________________

_ Phone: _______________________ Attorney’s Ad dress:

_________________________________________________________________________ * Attach an additional sheet for each additional Appellant *LB -1099 rev. 01/20 Page 2 of 2 RDA 11082

Employee Name: _______________________________________ Docket No.: __________________

__ _ Date of Inj.:

____

___________

Appellee(s) (Opposing Party): ___________________________________________ ☐ Employer ☐ Employee App ellee’s Address:

_____________________________________________ _ Phone:

_ ___________________ Email: _________________________________________________________ Attorney’s Na me:

_____________________________________________ B PR#: ________________________ Attorney’s E mail: _____________________________________________ Phone:

_______________________ Attorney’s Ad dress:

_________________________________________________________________________ * Attach an additional sheet for each additional Appellee *

CERTIFICATE OF SERVICE

I, _____________________________________________________________, certify that I have forwarded a true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described in Tennessee Compilation Rules & Regulations, Chapter 0800- 02

- 21
, to all parties and/or their attorneys in this case on this the __________ day of ___________________________________, 20 ____.

__ ____________________________________________ [Signature of appellant or attorney for appellant]