Moses, Jamie v. Five Star Food Service, Inc. , 2021 TN WC 192 ( 2021 )

FILED
Jun 21, 2021
03:19 PM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT CHATTANOOGA
Jamie Moses, ) Docket No.: 2020-01-0875
Employee, )
V. )
Five Star Food Service, Inc., ) State File No.: 32242-2020
Employer, )
And ) Judge Thomas Wyatt
Amerisure Partners Ins. Co., )
Carrier. )
EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS
(DECISION ON THE RECORD)
Jamie Moses requested an Expedited Hearing on the record for left-shoulder/rotator
cuff surgery recommended by the treating physician. The Court entered a Docketing
Notice setting deadlines for filing evidence and briefs by June 15, 2021. Five Star
responded that the Court should not hear the surgery issue because Ms. Moses failed to
comply with timing provisions in the Bureau’s rules. Alternatively, it argued Ms. Moses
failed to prove the medical necessity of the disputed surgery. For the reasons below, the
Court orders Five Star to authorize the surgery.
History of Claim
On May 20, 2020, Ms. Moses felt a pulling sensation and immediate pain when she
slung a heavy tote into a truck at work. Five Star accepted the claim and approved a referral
to orthopedist Dr. Jason Spangler after a brief period of care at a walk-in clinic.
Dr. Spangler first saw Ms. Moses in mid-June. He injected the shoulder and, with
the benefit of MRI results, diagnosed a sprain that acutely caused joint inflammation in her
already-arthritic left shoulder. He also diagnosed small tendon tears in the left rotator cuff.
He ordered physical therapy and injected the shoulder again on August 17. He ordered
arthroscopic surgery on September 28 because conservative measures failed to provide
relief.
Five Star submitted the surgery recommendation to utilization review (UR). A
physician reviewer who did not examine Ms. Moses declined to certify the recommended
surgery. By letter dated October 6, the reviewer concluded that the recommended surgery
did not conform to applicable treatment guidelines because: the surgery should not be
performed until six months after the last injection to the affected area; Ms. Moses had full
strength in the muscles of her left rotator cuff; and the MRI showed only tiny tears in the
rotator cuff.
Ms. Moses appealed the UR decision. On November 10, the Bureau’s Medical
Director upheld the non-certification because “the medical records do not reflect that
sufficient and consistent conservative treatment has failed.”!
Ms. Moses filed a Petition for Benefit Determination on December 3 seeking
authorization of the surgery. The Dispute Certification Notice listed Five Star’s defense
as: “Utilization Review denial of request for surgery.” It later added lack of medical
causation as a defense. Ms. Moses requested an on-the-record Expedited Hearing, to which
Five Star consented.
In support of the requested surgery, Ms. Moses submitted an affidavit signed by Dr.
Spangler on April 7.2 He concluded that Ms. Moses’s shoulder injuries, need for treatment,
and disablement “arose primarily out of and in the course and scope of employment with
[Five Star] and the employment contributed more than fifty percent (50%) in causing [her]
left shoulder injuries and the need for treatment.” Regarding the medical necessity of the
recommended surgery, Dr. Spangler stated:
In my opinion, my request for surgery falls within the treatment
guidelines and is absolutely medically necessary. Ms. Moses has tried
conservative treatment including an AC Joint injection which only gave
her some relief and a subacromial injection which did not afford complete
relief. The MRI shows partial thickness tearing of the rotator cuff and a
superior glenoid labrum tear which need to be surgically repaired along
with arthroscopic clearing of inflammation in the AC joint. This is the
only way to get this patient back to maximum medical improvement and
I do not understand why workers’ compensation would deny this patient
such a typical, usual remedy for such a left shoulder injury.
Five Star relied on the opinions of the UR reviewer and Medical Director to support
' The UR physician stated the guidelines required three to six months of failed conservative care. Dr.
Spangler recommended surgery approximately four and one-half months after Ms. Moses began her course
of conservative treatment.
* Dr. Spangler last saw Ms. Moses in his office in January 2021. His diagnosis and treatment
recommendations on that date did not change from the previous visits
its position the requested surgery is not medically necessary.?
Findings of Fact and Conclusions of Law
To recover, Ms. Moses must present evidence from which the Court can determine
she is likely to prevail at a hearing on the merits in showing that the disputed surgery is
reasonable and necessary to treat a compensable injury. See generally McCord v.
Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Mar. 27,
2015). Under the Workers’ Compensation Law, an employer’s obligation is limited to
providing treatment that is made “reasonably necessary” by the work injury. Tenn. Code
Ann. § 50-6-204(a)(1)(A) (2020).
Five Star first argued that the surgical issue is not ripe for consideration because Ms.
Moses did not comply with timing provisions in the Bureau’s UR regulations. Specifically,
it argued that Ms. Moses failed to timely file a petition for benefit determination requesting
a hearing on the Medical Director’s denial of the surgery recommended by Dr. Spangler.
Tennessee Compilation Rules and Regulations 0800-02-06-.07(6) prescribes a
period of seven business days after the date of the Medical Director’s decision for filing a
petition on the decision. If no petition requesting a hearing of the dispute is made within
the seven-business-day period, the Medical Director’s denial “shall remain effective for a
period of 6 months from the date of the decision” unless there is “material change
documented by the treating physician that supports a new review or other information that
was not used by the [reviewing physician] in making the initial decision.” Tenn. Comp.
R. & R. 0800-02-06-.06(7), 0800-02-06-.07(5) (January 2017).
Ms. Moses filed a petition disputing the Medical Director’s denial of surgery outside
the limitations period in the Bureau’s rules. Thus, by regulation, the Medical Director’s
denial stayed in effect for six months, or until May 10, 2021. The issue here is whether
Ms. Moses’ failure to comply with the limitations period meant she could not file a petition
to challenge the UR denial until after May 10. Five Star argued that Ms. Moses’ failure to
file her petition within seven business days of the Medical Director’s denial meant she had
to begin the entire surgical-authorization process again after May 10. In other words, she
could not bring the surgery issue before the Court until she saw Dr. Spangler after May 10,
he again recommended surgery, Five Star again submitted the recommendation to UR, and
the UR procedure was exhausted.
In essence, Five Star argued that Ms. Moses had no judicial review of the Medical
Director’s denial of her surgery because she did not exhaust the administrative remedy in
> Five Star expressed concern that the Court would not consider the evidence it filed because the Docketing
Notice stated the Court had sufficient information to decide the medical-necessity decision on the record.
That is not the case. The Court’s Docketing Notice gave Five Star the opportunity to submit evidence and
the Court considered the evidence Five Star submitted.
the Bureau’s rules—filing a petition within seven business days to challenge the Medical
Director’s denial. After considering the Bureau’s rules and the Workers’ Compensation
Law together, the Court holds that Five Star’s position is incorrect.
The Supreme Court has held that, “[U]nless the statute providing for an
administrative remedy requires exhaustion [of remedies] “by its plain words,” an
administrative appeal is not mandatory[.] Absent a statutory mandate, the exhaustion of
the administrative remedies doctrine is a matter of judicial discretion.” Thomas v. State
Bd. of Equalization, 940 §.W.2d 563, 566 n.5 (Tenn. 1997).
Tennessee Code Annotated section 50-6-242 empowers the Bureau to establish a
utilization review program. Nothing in the statute requires an employee to exhaust
administrative remedies before filing a petition to seek authorization for a surgery denied
by UR. In fact, the administrative procedure of filing a petition to challenge the Medical
Director’s denial is couched in permissive (a party “may file”), not mandatory, terms.
Nothing in the plain words of the Workers’ Compensation Law and the UR regulations
mandates that the only way to challenge the Medical Director’s denial of treatment is to
file a petition within seven business days of the Medical Director’s denial of treatment.
However, if, as here, the employee fails to file a petition within the seven-day period
prescribed in the UR rules, the Medical Director’s decision remains effective for six
months. While the employee need not wait until the six months expires to file a petition,
the Court cannot act on the issue until the six-month period expires. Once it expires, as it
has here, the Court can, within its recognized procedures including an Expedited Hearing,
consider remedies sought by a party who disagrees with the Medical Director’s decision.
The Workers’ Compensation Appeals Board has held that the Court of Workers’
Compensation Claims may order an employer to pay for medical treatment that was non-
certified under the UR procedure. See Venable v. Superior Essex, Inc., 2016 TN Wrk.
Comp. App. Bd. LEXIS 56 (Nov. 2, 2016). Thus, the Court holds Ms. Moses had the right
to judicially challenge the UR denial of the recommended surgery, and she was not required
to wait six months after the Medical Director’s decision to file a PBD initiating the
challenge.
To receive the recommended surgery, Ms. Moses must show that, at a hearing on
the merits, she will prevail in proving, by a reasonable degree of medical certainty, that the
surgery is medically necessary. Tenn. Code Ann. § 50-6-204(a)(1)(A). “Reasonable
degree of medical certainty” means “it is more likely than not considering all causes, as
opposed to speculation or uncertainty.” Jd. at § 50-6-102(14)(D). A standard requiring
“medical certainty” requires an expert medical opinion. “Any treatment recommendation
by a physician . . . selected pursuant to this subdivision (a)(3) or by referral, if applicable,
shall be presumed to be medically necessary for treatment of the injured employee.” Jd. at
§ 50-6-204(a)(2)(H).
Here, the Court is presented with different opinions on whether surgery is medically
necessary. The Court has discretion to determine which opinion to accept. Patterson v.
Huff & Puff Trucking, 2018 TN Wrk. Comp. App. Bd. LEXIS 33, at *9 (July 6, 2018).
When deciding, the Court may consider, among other things, “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.” Bass v. The Home
Depot U.S.A., Inc., 2017 TN Wrk Comp. App. Bd. LEXIS 36, at *9 (May 26, 2017).
Using the above direction, the Court considered the opinion of treating physician
Dr. Spangler that the recommended surgery is reasonable and necessary, as well as the
opinions of the UR physician and the Medical Director that the surgery did not meet
applicable treatment guidelines. Upon doing so, the Court holds that Dr. Spangler’s
opinion best assists the Court in determining the medical necessity of the disputed surgery.
In so holding, the Court considered the statutory presumption afforded Dr. Spangler’s
opinion on medical necessity; the fact he has seen and treated Ms. Moses over a period of
months while the other physicians only reviewed records and treatment guidelines; and Dr.
Spangler’s consistent documentation of the painful and disabling impact of Ms. Moses’s
injury.
The Court gives little weight to Five Star’s argument that the Court should devalue
Dr. Spangler’s opinion on medical necessity because he has not recently seen Ms. Moses.
This position is inconsistent with Five Star’s argument that the Court should uphold the
denial of surgery by physicians who never saw her at all. Further, it offered no evidence
that the MRI findings on which Dr. Spangler based his surgical recommendation had
changed or are expected to change.
In view of the above, the Court holds that Ms. Moses will likely prevail in proving
the medical necessity of the surgery recommended by Dr. Spangler.
IT IS, THEREFORE, ORDERED as follows:
1. Five Star must authorize the recommended surgery.
2. This case is set for a Status Hearing on September 24, 2021, at 10:00 a.m. Eastern
Time. The parties shall call (615) 741-3061 or toll-free at (855) 747-1721 to
participate. Failure to call may result in a determination of the issues without the
absent party’s 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
Employer or Carrier 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 Order. Failure to submit the necessary confirmation
within the period of compliance may result in a penalty assessment for
noncompliance.
4. For questions regarding compliance, please contact the Workers’ Compensation
Compliance Unit via email at WCCompliance.Program@tn.gov.
ENTERED June 21, 2021.
JUDGE THOMAS WYATT
Court of Workers’ Compensation Claims
APPENDIX
Exhibits: The Court admitted the following exhibits into evidence:
1.
Affidavit of Jamie Moses
2. Records of AFC Urgent Care
ws
Records (submitted by both parties) of Center for Sports Medicine/Dr. Jason
Spangler
Affidavit of Dr. Jason Spangler
Notice of Utilization Review denial
Letter from Medical Director upholding denial
Technical record: The Court considered the following filings in making its determination”
NAY RB WN SE
Petition for Benefit Determination
Dispute Certification Notice and Employer’s additional issue
Request for Expedited Hearing (Decision on the Record)
Employee’s brief
Notice of Employer’s consent to on-the-record decision
Docketing Notice
Employer’s position statement
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on June 21, 2021.
Name Certified | Email | Service sent to:
Mail
G. Brent Burks Xx brentburks@mcmahanlawfirm.com
Employee Attorney
Nicholas Peterson x Nick.peterson@petersonwhite.com
Employer Attorney
/) 4 ~¢
ic M4 | Vine | pecunaunD
PENNY SHRUM, COURT CLERK |
we.courtclerk@tn.gov
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 file 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 Bureau 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-
completed 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 business 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 Appeals Board is called upon to review testimony or other proof
concerming 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 must 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 statement. 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.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.thgov/workforce/injuries-at-work/
wc.courtderk@tn.gov | 1-800-332-2667
Docket No.;:
State Fife No.:
Date of Injury:
Employee
Vv.
Employer
Notice is given that
{List name(s) of all appealing partyfies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
O Expedited Hearing Order filed on 0 Motion Order filed on
0 Compensation Order filed on O 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}; 0 Employer_jEmployee
Address: Phone:
Email:
Attorney’s Name: . BPR#:
Attorney's Email: Phone:
Attorney’s Address:
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
Employee Name: Docket No.: Date of Inj.:
Appellee(s) (Opposing Party): oi [1 Employer [_lEmployee
Appellee’s Address: Phone:
Email: ;
Attorney's Name: BPR#:
Attorney’s Email: Phone:
Attorney’s Address:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, , certify that | 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]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082
Tennessee Bureau of Workers' Compensation
!
because of my poverty, | am unable to bear the
waived. The following facta support my poverty.
1. Full Name:
3. Telephone Number:
220 French Landing Drive, I-B
Nashville, TN 37243-1002
600-332-2667
AFFIDAVIT OF INDIGENCY
5. Names and Ages of All Dependents:
, having been duly sworn according to law, make oath that
cosis of this appeal and request that the filing fee to appeal be
2. Address:
4, Date of Birth:
6. |! am employed by.
My employer's address is:
My employer's phone number is:
7. My present monthly household income, after federal income and social securty taxes are deducted, is:
$ 7
5. | receive or expect to recelve monay from the following sources;
AFDC $
SSI $
Retirement 3
Disabtity $
Unemployment §
Worker's Comp.$
Other $
LB-1108 (REV 11/15)
per month
per month
per month
per month
per month
per month
per month
beginning
beginning,
‘beginning
beginning
‘beginning
beginning
beginning
RDA 1) 1082
9. My expenses are:
Rent/House Payment $ permonth Medical/Dental $s par month
Groceries $__sper month Telephone $$. peor month
Electricity $ per month Schoo! Supplies §__ per month
Water $ per month Clothing $__ sper month
Gas $_._ sper month Child Cara $$. per manth
Transportation $ per month Chitd Support $ per month
Car $ per month
Other 3 per month (describe: j
10. Assets:
Automahile $ (FMV)
Checking/Savings Acct. §
House $ (FMV)
Other $ Describe;
11, My debts are:
Amaunt Owed To Whom
(hereby declare under the penalty of perjury that the foregoing answors are true, correct, and complete
and that | am financially unable to pay the costs of thia appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
day of , 20
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV 11/15) RDA 11082