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

Paul Hensley , ) Docket No. 2021

- 06

- 0183 Employee, )

v. ) Amazon.com Services , LLC, ) State File No. 102262

- 2020 Employer, ) And ) American Zurich, Inc. , ) Judge Kenneth M. Switzer Carrier. )

EXPEDITED HEARING ORDER DENYING REQUESTED RELIEF

Paul Hensley seeks an order that Amazon.com Services, LLC authorize shoulder surgery performed by Dr. Kyle Joyner. Amazon opposed the request, rel ying on a noncertification from a utilization review physician upheld by the Bureau’s Medical Director , as we ll as updated records from Dr. Joyner

. The Court held a hearing on June 17, 2021. Because the medical proof does not convey D r. Joyner ’s current opinion on the need for surgery , the Court denies Mr. Hensley’s request at this time

.
History of Claim

Mr. Hensley alleged that on November 3, 2020, he injured his left shoulder while working for Amazon

. 1 He received authorized treatment at an occupational clinic. The provider referred Mr. Hensley to orthopedist Dr. Kyle Joyner

, ordered an MRI and physic al therapy , and placed him on restrictions

.
Mr. Hensley first saw a nurse practitioner at Dr. Joyner’s office i n late November. She retained the work restrictions , and Mr. Hensley underwent an injection

. He retu rned
to Dr. Joyner ’s office in December , r eporting that the injection did not bring significant improvement and physical therapy had not been very effective. Dr. Joyner diagnosed a

1 Mr. Hensley testified that he injured his neck as well, and that treatment for it has been denied. However, that issue was not raised a t this hearing. 

### FILED Jun 21, 2021 10:36 AM(CT)
TENNESSEE COURT OF WORKERS' COMPENSATION

CLAIMS2

tear of the left glenoid labrum and tendinitis of the rotator cuff and agreed with the restrictions. At the next vi sit in early February, Mr. Hensley’s shoulder was still painful. Dr. Joyner diagnosed a presumptive labral tear and recommended a left

- shoulder arth r oscopy.

Amazon submitted the recommendation to utilization review. A n orthopedic surgeon reviewed the MRI and Dr. Joyner’s office notes. In his report, the reviewer wrote that the left

- shoulder arthroscopy/arth ro tomy was not medically necessary because “the claimant’s conservative treatment to date has been minimal.” He attached the ODG Guidelines 2021, “Surgery for SLAP Lesions, Shoulder Conditions

, ” which s tates that surgery is recommended “for persistent symptoms following 6 months of conservative treatment.” The Bureau’s Medical Director agreed with the noncertifica tion.

Dr. Joyner wrote a letter on March 5, 2021, stating in relevant part that the surgery recommendation “ was made given failure of conservative ca r e.”

However, at an April 28 visi t ̶ the last time that Mr. Hensley saw the doctor ̶ Dr. Joyner noted that Mr. Hensley reported improvement in his symptoms . He wrote that Mr. Hensley had changed jobs to one that requires “significantly reduced physical demand.” D r . Joyner noted, “ [O] cc asional catching, but overall pain is decreased and he is able to use the arm fairly normally with his daily activity.” On exam, he observed improved range of motion, although he saw s ome discomfort with “compression rotation, but no frank instability.” Mr. Hensley felt “catching” with repeated circumduction of his shoulder. Dr. Joyner recorded good strength in the deltoid and improved strength in the rotator cuff. The doctor removed the work restrictions and set an appointment two months out. The note d id not mention surgery.

For his part, Mr. Hensley testified that he participated in physical therapy on the recommendations of the authorized providers but recently switched to an at

- home regimen. Mr. Hensley has difficulty sleeping due to shoulder pa in. He also cannot lift his grandchild or participate in hobbies that require physical activity.

As for the most recent visit with Dr. Joyner, Mr. Hensley testified that the doctor “recommended that we put off the surgery and see if there’s any more imp rovement.” Mr. Hensley believes that surgery is still “on the table” and will be discussed again at the next appointment. On cross

- exam, he said that he was released to full

- duty “for the current job;” Mr. Hensley has changed employers and is no longer required to perform any physical duties

. He would undergo surgery if it were possible

.

Findings of F act and Conclusions of Law

Under the Workers ’ Compensation Law, the empl oyer shall provide medical and surgical treatment “ made reasonably necessary by accident[.] ” Tenn. Code Ann. § 50

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204(a)(1)(A) (20 20 ). Mr. Hensley bears the burden of proving that the propos ed surgery is reasonable and necessary. Further, since this an e xpedited h earing, he must present sufficient evidence from which this Court might determine he is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50

- 6

- 239(d)(1); McCord v. Advantage Human Resourcing , 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7

- 8, 9 (Mar. 27, 2015).

Tennessee Code Annotated section 50

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- 204(a)(3)( H ) provides that any treatment recommended by a referral physician “shall be presumed to be medically necessary for
treatment o f the injured employee.” Here, Dr. Joyner’s recommendations are presumed medically necessary.

Dr. Joyner’s written recommendation in February was for surgery. However, at the most recent visit in April , Dr. Joyner noted that Mr. Hensley reported significant improvement

, and he removed the work restrictions. Importantly, t he note is silent regarding surgery.

The Tennessee Supreme Court has held that “[t]he employee’s own assessment of [his] physical condition and resulting disability is competent testimony that should be considered[.]” McIlvain v. Russell Stover Candies, Inc., 996 S.W.2d 179, 183 (Tenn. 1999). Mr. Hensley credibly testified that his shoulder remains painful and has affected his activities of daily living. He believes that surgery is still “on the table.” But the April
note simply do es not support that contention. “P arties and their lawyers cannot rely solely on their own medical interpretations of the evidence to successfully support their arguments. Lurz v. Int’l P aper Co., 2018 TN Wrk. Comp. App. Bd. LEXIS 8, at *16 (Feb. 14, 2018)

.

T he Court finds no current recommendation for surgery from Dr. Joyner . Therefore, on this record

, Mr. Hensley is not likely to succeed at a hearing on t he merits regarding the reasonable necessity of surgery. His request is denied at this time.

T his case is set for a s tatus h e aring on July 19 , 20 2 1 , at 9: 45 a.m. Central. You must call 615

- 532

- 9552 or toll

- free at 866

- 943

- 0025 to participate. Failure to call m ight result in a determination of the iss ues without your p articipation.

ENTERED June 22 , 202 1

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_____________________________________ J UDGE KENNETH M. SWITZER Court of Workers’ Compensation Claims4 APPENDIX

Exhibits: 1. Affidavit of Paul Hensley 2. Employee’s Exhibits for Expedited Hearing A. First Report o f Injury B. Dr. Joyner c ausation letter C. Concentra r ecords D. MRI E. Dr. Joyner r ecords F. Physical therapy records 3. Util i zation review 4. Dr. Joyner r ecords

, April 28, 2021

Technical record: 1. Petition for Benefit Determination 2. Dispute Certification Notice and Employer’s Position Statement 3. Request for Expedit ed Hearing 4. Pretrial Hearing Order

C ERTIFICATE OF SERVICE

I certify that a copy of the Expedited Hearing Order was sent as indicated on June 22

, 202 1

.

Name Certified Mail Regular

Mail Email Sent to:

Stephan Karr, employee’s attorney X steve@flexerlaw.com nancy@flexerlaw.com Troy Hart, M atthew Morris, employer’s attorneys X wth@mijs.com mbmorris@mijs.com

_____________________________________ Penny Shrum, Clerk of Court WC.CourtClerk@tn.govLB -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

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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

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### □ Motion Order filed on ___________________



### □ Compensation Order filed on

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_____________________ issued by Judge _____________________________________________________________________

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

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

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

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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

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

__ ____________________________________________ [Signature of appellant or attorney for appellant]