## FILED Nov 21, 2019 02:02 PM(ET) TENNESSEE COURT OF WORKERS' COMPENSATION

CLAIMS



### TENNESSEE BUREAUOFWORKERS' COMPENSATION INTHE COURT OFWORKERS' COMPENSATION CLAIMS AT CHATTANOOGA

MICHAELL. LANE, Employee,


### v. VISKASE COMPANIES, INC, Employer, and PROPERTY AND CASUALTY INS. CO. OFHARTFORD, Carrier. ) DocketNo. 2018-01-0313 ) ) 

### ) StateFile No. 30803-2018 ) ) 

### ) JudgeThomasWyatt ) )



### EXPEDITED HEARINGORDERFORMEDICALBENEFITS (DECISION ONTHE RECORD)

On November 20, 2019, the Court consideredMichael L. 

### Lane'srequest for an onthe-record decision ofhis claim for medical and temporary disability benefits based on his alleged work-relatedruptured wristtendon. Viskase Companies, Inc. did not objectto Mr. 

### Lane's request, and the Court determined it had sufficient evidence to decide the issues onthe record.

The parties submitted two issues for decision: (1) whether Mr. 

### Lane's injury arose primarily out of and in the course and scope of employment, and (2) whether he established entitlement to medical and temporary disability benefits. For the reasons below, the Court holds that Mr. 

### Lane satisfied his burden of proof but awards him medical benefits only.
Historyofthe Case

On January 13, 2018, Mr. 

### Lane injured his left wrist when he pulled on a "stuck" core-chuck latch with greater force than normal. Viskase sent him to Lakeway Urgent Care Center without offering him a panel. A nurse practitioner at Lakeway noted Mr. 

### Lane's history ofstraining his left wrist when he "triedto pull a latch on the reel[.]" The

nurse ordered x-rays and wrote:

1

### We discussed the fact that we believe the patient's current wrist pain is an exacerbation ofhis chronic arthritis. We explained that the recent changes in Tennessee Workers [sic] Comp law now require an injury to be more than 50% related to the incident at work to be eligible for compensability. Due to the mechanism ofinjury, pulling on a latch during routine work, we do not feel that this incident meets that criteria.

Dr. John Sanabria, Lakeway's owner, testified by deposition that he is personally involved in all decisions made for workers' compensation patients at Lakeway, and he agreed withthe nurse's decision on diagnosis and causation.

Viskase later offered Mr. 

### Lane a panel from which he selected Lakeway. Mr. 

### Lane returned to Lakeway and saw Dr. Sanabria, who ordered an MRI. The MRI revealed degenerative changes in the left wrist, including at the base ofthe left thumb, and showed a full thickness tear of the extensor pollicis longus (EPL) tendon. Dr. Sanabria described Mr. Lane's tendon rupture as "spontaneous" and stated it "seems reasonable to conclude that the complete tendon rupture may have occurred while pulling

on the latch[.]" Buthe also wrote:

More than likely, the extensive osteophyte formation (bony spurring) at the base ofthe thumb frayed the tendon over time and weakened it to the point where it finally ruptured. In my medical opinion, it would be unreasonable to conclude that a sudden complete rupture ofthe [EPL] in an otherwise healthy wristcould occurfrom "pulling a latch."

Dr. Sanabriatestified on causation that, under the "recent changes in TNWorkers' Comp Law," Mr. 

### Lane's injury was not compensable because he "has severe chronic pathology in the wrist which easily accounts for greater than 51% ofcausation for the condition." Despite his tom tendon, Dr. Sanabria released Mr. Lane as "[fit] for duty withoutrestrictions" and suggestedhe see his privatephysician for an orthopedic referral. Viskase denied Mr. 

### Lane's claimbased on Dr. Sanabria's opinion.

Mr. 

### Lane saw an orthopedist on February 15, following Dr. Sanabria's advice. This physician noted that Mr. 

### Lane "was at work when he was pulling on something; it would not open, he had to pull more forcefully and he then felt a pop in his left wrist." Hereferred Mr. 

### Lane to orthopedistDr. Robert Ivey for a surgical consultation.

Mr. 

### Lane saw Dr. Ivey on March 1. 

### Dr. Ivey recorded Mr. 

### Lane's history of "pulling on a heavy core chuck latch and felt a pop in his wrist." He further noted Mr. 

### Lane's complaint ofnot being able to straighten his left thumb since the injury. Dr. Ivey offered the following causation opinion in his treatment notes: "I feel that he had a traumatic rupture ofhis [EPL] tendon. This a work compensable condition, which arose

2directly out ofthe course ofhis employment. He also has non work compensable thumb arthrit
. " IS.

Dr. Ivey recommended surgery, which heperformed onMarch 22. In surgery, Dr. Ivey confirmedthetendonrupture shown on MRl and repaired it. Mr. Lane and a private health carrierpaidDr. Ivey's charges, including for therapy ordered by Dr. Ivey.

Dr. Ivey's deposition testimony confirmed the causation opinion in his notes. He stated "[the ruptured tendon] was a work compensable condition that occurred when he

was pulling on that heavy chuck latch." Later in the deposition, Dr. Ivey considered Dr. Sanabria's opinionthatthe pre-existing arthritis in Mr. Lane'sthumb frayed thetendon in question and represented more than 50% ofthe causation ofthe ruptured tendon. Dr. Ivey disagreed with that opinion because the ruptured tendon in Mr. Lane's left wrist is "in a different [anatomical] zip code from the thumb arthritis." Dr. Ivey confirmed itwas his opinion "thatwithin a reasonable degree ofmedical certainty the cause ofthe tendon rupture over 50 percent actual predominant efficient cause was pulling of the chuck latch[.]"

In his deposition, Dr. Sanabria testified that Dr. Ivey was one ofthe best hand and wrist surgeons in the area and had a "perfect" reputation in the medical community. He stated that he often referred patients to Dr. Ivey for surgical treatment. However, he disagreed with Dr. Ivey's statement that the tendon rupture was not in the same "zip code" as the arthritis atthebase ofMr. Lane'sthumb. Dr. Sanabria cited MRlfindings in support ofhis opinion that the tendon rupture occurred in an area adjacent to the arthritis and osteophytes at the base of Mr. Lane's wrist. Dr. Sanabria also confirmed his previous opinion that the primary cause of Mr. Lane's ruptured tendon was the osteophytes from pre-existing, non-work-related arthritis, which frayed the tendon over time and made it more susceptible to rupture. He stated that a normal, healthy tendon would not generallyrupture underthepressure ofsimply opening a latch.

Mr. Lane missed work from the injury date until Dr. Ivey released him with restrictions on July 31. Dr. Ivey's records indicate that Mr. Lane's wrist was placed in a cast; Mr. Lane needed to keep his wrist elevated; he should undergo therapy; and, over the course oftime, Mr. Lane should advance to more activity as tolerated. Dr. Ivey's June 18 note indicated that Mr. Lane stated he did not feel he could resume his regular job due to his injury, which Dr. Ivey did not confirm or deny. None of the records submitted to the Court includes documentation that Dr. Ivey or any other physician took Mr. Lane offworkdue tohis workinjury.
Regarding medical benefits, Dr. Ivey testified that Mr. Lane's ruptured tendon would not have healed on its own, and thus surgery was necessary to treat the condition. He further testified that the bills he charged for treating Mr. Ivey were "reasonable expenses for this treatment protocol." Mr. Lane submitted two billing records from Dr.

3Ivey's practice documenting charges, insurance payments, patient payments, and adjustments relatingto thetreatment ofhis rupturedtendon.

Findings ofFact and Conclusions ofLaw

At this Expedited Hearing, Mr. Lane must present sufficient evidence that he is likely to prevail at a hearing on the merits. Tenn. Code Ann. 

### § 50-6-239(d)(1) (2019). Specifically, he must establish that his injury arose primarily out ofhis employment and caused either "disablementorthe need for medical treatment." Tenn. Code Ann. 

### § 50-6- 1

02(14). An injury arises primarily out ofthe employment ifthe evidence shows to a reasonable degree ofmedical certainty that the work contributed more than fifty percent in causing the injury when considering all causes. "Shown to a reasonable degree of medical certainty"means that itis more likelythannotconsidering all causes. 

### !d.

The Court considered two conflicting medical opinions on the causation ofMr. Lane's ruptured tendon. When confronted with conflicting opinions, the Court has discretionto conclude that one contains the moreprobable explanationand should govern the decision in the case. Ledford v. Mid-Georgia Courier, Inc., 2018 TN Wrk. Comp. App. Bd. LEXIS 28, at *8 (June 4, 2018). In evaluating the opinions, the Court may consider, among other things, the qualifications ofthe experts, the circumstances oftheir evaluation, the information availabletothem, andthe evaluation ofthe importance ofthat information by other experts. Hollis v. Komyo Amer., 2019 TN Wrk. Comp. App. Bd. LEXIS 4, at *11 (Jan. 22, 2019). The Court afforded Dr. Sanabria's causation opinion a presumption ofcorrectness since Mr. Lane selected him from a panel. Tenn. Code Ann. 

### § 50-6-102(14)(E). This presumption is rebuttable by a preponderance ofthe evidence. 

### !d.

After closely reviewing the testimony of Drs. Sanabria and Ivey, Mr. Lane's affidavit, and the entire record, the Court holds that the preponderance ofthe evidence sufficiently rebuts Dr. Sanabria's opinion that Mr. Lane's injury did not arise primarily out of and in the course and scope of employment. Instead, the Court holds that Dr. Ivey's causation opinionprovides the moreplausible explanation for Mr. Lane'sruptured tendon.

The Court consideredthe following incomingto the above conclusion:

• Mr. Lane's injury is orthopedic in nature and required surgery. Dr. Ivey is an orthopedic surgeon with a specialty in treating hand and wrist conditions. Dr. Sanabria limits hispracticetonon-surgical care ofgeneral medical conditions.

• Dr. Ivey sawMr. Lane on more occasions than did Dr. Sanabria and visualized the location ofMr. Lane's tendon rupture in surgery. Dr. Sanabria relied on MRI findings made by another physician intestifying as to the location ofthe tendonrupture.

4• Dr. Sababria based his causation opinion on the assumption that Mr. Lane injured his wrist while performing the "routine" duty ofopening a latch. The Court accepts as credible Mr. Lane's sworn testimony that his injury occurred whenhe hadtopullthe latchharderthan normal because itwas stuck. 1

• Drs. Sanabria and Ivey both agreed that Mr. Lane ruptured his tendon when he pulled on a latch. However, they disagreed as to the percentage ofcausation to assign the non-work-related arthritis at the base of Mr. Lane's thumb. The Courtholds Dr. lvey's assessment thatthe arthritis constitutes less than 50% of the causative effect on the rupture ofMr. Lane's tendon represents the more plausible explanation. In support ofthis holding, the Court considered the fact that Mr. Lane successfully worked with arthritis at Viskase before he ruptured his tendon.

In view ofthe above, the Court holds that Mr. Lane will likely prevail at trial in establishingthat his ruptured tendon arose primarily out ofand inthe course and scope of employment.

The Court additionally holds that Mr. Lane will likely prevail in proving his entitlementto medical benefits. Dr. lveytestifiedthattheruptured tendon wouldnotheal without surgery, and his treatment protocol of surgery, examinations, and therapy constitutedreasonable and necessary treatment for Mr. Lane'swork-related injury.

The Court further holds that, because Viskase denied Mr. Lane's claim, he reasonably sought treatment from Dr. lvey. In support, the Court notes that Dr. Sanabria recommended orthopedic treatment ofthe ruptured tendon. Therefore, the Court orders that Viskase authorize Dr. Ivey as authorized treating physician for ongoing treatment of Mr. Lane's tendon injury. 

### See McCordv. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at 

## *14 (Mar. 27, 2015), holding "an employer who elects to deny a claim runs the risk that it will be held responsible for medical benefits obtained from a medical provider ofthe employee's choice." The Court also holds that Viskase shallpaythe charges ofOrthoTennessee.

As totemporarytotal disability benefits, Mr. Lane must showhe is likelytoprove: (1) a disability from working as the result of a work injury; (2) a causal connection between the injury and the inability to work; and (3) the duration of the period of disability. 

### See Shepherd v. Haren Const. Co., Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS 15, at *13 (Mar. 30, 2016). Here, Mr. Lane did not prove that a doctor took him offwork for his ruptured tendon. For that reason, the Court denies Mr. Lane's claim for temporary disability benefits atthis time.

1The physician whom Mr. Lane saw after Lakeway corroborated Mr. Lane's history thathe pulled on the latch harderthan normal atthetime ofinjury.
5It

### is, therefore, ORDERED:



### 1. Viskase shall pay the charges for the treatment provided and ordered by Dr. Robert Ivey for 

### Mr. Lane's ruptured left EPL tendon. Upon receipt ofthe billing records, Viskase shall promptly pay the charges as billed without reduction under the fee schedule so that OrthoTennessee may reimburse payments made by 

### Mr. Lane and his private health carrier for the described charges.

2. Viskase shall authorize Dr. Ivey to provide ongoing care ofMr. 

### Lane's tendon InJUry.

3. Mr. 

### Lane's claim for temporary disability benefits is denied atthis time.

4. Unless interlocutory appeal of this 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 ofthis Order. Failure to submit the necessary confirmation within the period ofcompliance may 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

.
5. The Court schedules a telephonic Status Conference at 10:00 a.m. Eastern Time on February21, 2020. 

### The parties shall call 855-747-1721 (toll-free) or 615-741-3061 to participate in the hearing. A party's failure to call at the scheduled time might result in the Court making decisions, including scheduling decisions, withoutthe absentparty'sparticipation.

6ENTERED November21, 2018.

I Judge Thomas Wyatt CourtofWorkers' Compensation Claims

Appendix

Technical Record:



### 1. Petition for BenefitDetermination 2. Dispute Certification Notice 3. Transfer Order 4. Request for Expedited Hearing-Decisionon the Record 5. Employee's Position Statement 6. Docketing Notice-Decisiononthe Record

Exhibits:



### 1. Affidavit ofMichael Lane 2. Transcript ofthe deposition ofDr. Robert Ivey 3. Transcript ofthe deposition ofDr. John Sanabria 4. Records ofLakeway Urgent Care/Dr. Sanabria 5. Records ofOrthoTennessee/Dr. Ivey 6. Form C42 Choice ofPhysicians 7. Notice ofDenial ofClaim 8. Wage Statement

7CERTIFICATE OF SERVICE

I certifythat a copy ofthe Orderwas sent as indicated onNovember 21,2019.

Name Certified First Email Service sentto: Mail Class Mail Steven Williams, X**la~crvol@gmail.com:swilliams** Employee'sAttorney lawoffice@gmail

.com

BlairCannon, X Blair.cannon@thehartford

.com Employer/Ins. Carrier's Attorney

# ______,1**----'---H- _____,._** **--'-------.!....:..f1 N~~** **·** Penny

## si1JOUII;,ij()UrtCJerk WC.CourtCierk@tn.gov

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