FILED
Jun 05, 2018
08:16 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT GRAY
Timothy Hoss, ) Docket No. 2018-02-0051
Employee, )
v. )
ASR Metals, ) State File No. 87088-2014
Employer, )
And )
Technology Ins. Co., ) Judge Brian K. Addington
Carrier. )
EXPEDITED HEARING ORDER GRANTING REQUESTED RELIEF
Timothy Hoss filed a Request for Expedited Hearing, which this Court heard on
May 30, 2018. Mr. Hoss requested medical benefits for a back injury that occurred on
October 29, 2014. The issues are whether Mr. Hoss's need for medical treatment is
causally related to the October 29 event and whether spinal surgery and facet injections
are medically necessary and reasonable to treat the injury. 1 For the reasons below, the
Court grants the requested relief at this time.
History
Mr. Hoss worked at ASR Metals as a truck driver and sustained significant injures
in the course and scope of his employment on October 29, 2014. ASR Metals supplied
authorized medical treatment with emergency physicians, an orthopedist, and a
neurosurgeon.
Dr. Morgan Lorio, an orthopedist, served as Mr. Hoss's first authorized spinal
specialist. After noting Mr. Hoss' work injuries and prior L4-5 spinal fusion, Dr. Lorio
recommended decompression surgery. ASR submitted the recommendation to Dr.
1
Mr. Hoss also requested payment of two medical bills but did not present medical records to support the
bills. ASR Metals did not strictly oppose payment of the bills but asked the Court to give the parties time
to review the medical records before making a decision. The issue concerning payment of the bills is
reserved. The parties may file a request for hearing if the need arises.
1
Trenton Gause, orthopedist, for utilization review. Dr. Gause found the recommendation
was not medically necessary. Mr. Boss appealed the determination to the Bureau's
Medical Director, who agreed with Dr. Gause. Mr. Boss did not appeal this decision.
Subsequently, Dr. Lorio moved to Nashville, and ASR provided Mr. Boss with a
new panel of physicians from which he chose Dr. Jim Brasfield, neurosurgeon. Dr.
Brasfield first saw Mr. Boss in November 2017, and Mr. Boss shared his history with
him, including his pre-injury spinal surgery and treatment with Dr. Lorio. Mr. Boss
complained he could no longer drive a truck because of back and right-leg pain. Because
it had been several years since Mr. Boss's last MRl, Dr. Brasfield ordered a lumbar
myelogram, nuclear whole body scan, and right-leg EMG.
Following the tests, Dr. Brasfield noted the myelogram indicated moderate to
severe stenosis at L2 and moderate stenosis at L3; the nuclear whole body scan was
normal; and the EMG suggested right L5-S1 radiculopathy. Dr. Brasfield believed that
Mr. Boss suffered 1) facet pain and arthropathy as indicated by the post-myelogram CT
scan and 2) stenosis at L2 and L3. Dr. Brasfield recommended a L2-L3 MIS
decompressive hemilaminectomy and right and left L5-S 1 percutaneous facet injections.
ASR Metals sent Dr. Brasfield's recommendation to its Utilization Review
physician Dr. Kimberly Terry. Dr. Terry determined the imaging indicated pre-existing
and unrelated degenerative disc disease with some stenosis but no focal nerve root
impingement, and these findings were not consistent with radiculopathy caused by the
accident. She also determined the recommended procedures were not medically
necessary because 1) there was no focal impingement; 2) there was no electrodiagnostic
evidence of radiculopathy stemming from the L2-3 or L3-4 nerve roots; and 3) facet
injections in addition to decompression are not supported by current literature. Based on
this report, ASR Metals denied the procedure. Mr. Boss did not appeal the denial to the
Bureau's Medical Director.
In response to the denial, Dr. Brasfield reaffirmed his opinion that surgery was
necessary to address Mr. Boss's complaints. He also noted that he would not continue to
treat Mr. Boss with medication when surgery was indicated. Dr. Brasfield also signed a
letter stating that the surgery was necessary and causally related to Mr. Boss's accident.
Findings of Fact and Conclusions of Law
Mr. Boss must present sufficient evidence from which the Court can determine he
is likely to prevail at a hearing on the merits. McCord v. Advantage Human Resourcing,
2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). Specifically, he
must show his need for surgery is causally related to the injury he suffered and necessary
2
and reasonable to treat his injury. 2
There is no dispute that Mr. Hoss suffered a significant back injury on the date in
question. The physicians noted he suffered a L3-4 transverse fracture from the accident.
There is also no dispute that Mr. Hoss underwent a pre-injury fusion at L4-5. Mr. Hoss
testified that after follow-up and release from that surgery he performed his job at ASR
Metals without pain or restriction. The medical records also indicate he returned to work
after the current injury but in June 2017 his back and leg pain rendered him unable to
drive.
Dr. Brasfield is the authorized panel physician. As such, his opinion is presumed
correct on the issue of causation. Tenn. Code Ann. § 50-6-102(14)(E). Further, his
treatment recommendations are presumed to be medically necessary. Tenn. Code Ann. §
50-6-204(a)(3)(H). These presumptions can be overcome by the preponderance of the
evidence.
Concerning causation, ASR Metals introduced Dr. Terry's opinion to rebut Dr.
Brasfield. Their qualifications are similar, and both have reviewed all the medical history
and each other's opinions. However, Dr. Brasfield has personally examined Mr. Hoss
and discussed his issues with him. Mr. Hoss's testimony that before the accident in
October 2014 he was able to perform his job without restriction supports Dr. Brasfield's
opinion that Mr. Hoss's current back complaints are causally related to the accident.
Thus, the Court finds that ASR Metals has not rebutted Dr. Brasfield's causation opinion
by the preponderance of the evidence.
Concerning medical necessity, ASR again relied on Dr. Terry to rebut Dr.
Brasfield's opinion. The physicians disagreed whether the testing indicated
radiculopathy and facet arthropathy. Because she found no radiculopathy or facet
arthropathy, Dr. Terry felt surgery was not medically necessary. Again, physicians with
similar qualifications and the same information came to separate conclusions. However,
the Court adopts Dr. Brasfield's opinion because Dr. Terry's opinion, standing alone,
does not rebut Dr. Brasfield's opinion by the preponderance of the evidence.
In conclusion, Mr. Hoss presented sufficient evidence to establish he is likely to
prevail at a hearing on the merits regarding whether his need for medical treatment is
causally related to his compensable injury and whether spinal surgery and facet injections
are medically necessary and reasonable.
IT IS, THEREFORE, ORDERED AS FOLLOWS:
1. Mr. Hoss' s requested relief is granted at this time. 3 ASR Metals shall
2
The parties did not depose either expert. The Court gleaned their opinions from the medical records.
3
schedule the L2-L3 MIS decompressive hemilaminectomy and right and
left L5-S 1 percutaneous facet injections with Dr. Brasfield.
2. The Court sets this for a Scheduling Hearing on August 20, 2018, at 10:00
a.m. Eastern Time. You must call 855-543-5044 to participate in the
Hearing. Failure to call may result in a determination of the issues without
your further participation.
3. Unless interlocutory appeal of 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 WCCompl ianc .Program(Ci),tn.gov no later than the seventh
business day after entry of this Order. Failure to submit the necessary
confirmation within the period of compliance may result in a penalty
assessment for non-compliance. For questions regarding compliance,
please contact the Workers' Compensation Compliance Unit via email at
WCComplian e.Program@tn.gov.
ENTERED June 5, 2018.
IS/ Brian K. Addington
JUDGE BRIAN K. ADDINGTON
Court of Workers' Compensation Claims
3
Mr. Hoss filed a request for attorney fees, but he did not file an affidavit in support of the request or an
accounting. The Court reserves this issue for the Compensation Hearing if the parties are unable to reach
an agreement.
4
APPENDIX
Exhibits:
1. Affidavit of Timothy Hoss
2. Employer's First Report of Injury
3. Wage Statement
4. Utilization Review Peer Review Determination-December 2016
5. Utilization Review Peer Review Determination-March 2017
6. Utilization Review Appeal Determination-April2017
7. Chronological Table of Contents and Collective Exhibits
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Motion for Attorney's Fees and Costs
5. Notice of Expedited Hearing
6. Employer's Motion to Compel Discovery
7. Employee's Responses to Employer' s First Set of Interrogatories and Requests for
Production
8. Order Denying Motion to Compel
9. Employer's Position Statement
10. Objection to Defendant's Doctor's Opinion
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent to the following recipients by these
methods of service on June 5, 2018.
Name Certified Via Via Service sent to:
Mail Fax Email
Frankie L. Slaughter, X flsjrlaw@yahoo.com
Employee's Counsel
Fredrick R. Baker, X fbaker@wimberlylawson.com
Employer's Counsel
P nny S r m, Clerk of Court
Court of orkers' Compensation Claims
WC. Co u rtCJerk@tn.gov
5