Pendergrass, Donn v. Rich Transport. LLC , 2020 TN WC 129 ( 2020 )

FILED
Dec 04, 2020
07:15 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
DONN PENDERGRASS, ) Docket No.: 2019-05-1160
Employee, )
V. ) State File No.: 9424-2019
RICH TRANSPORT, LLC, )
Employer, ) Judge Robert Durham
And )
MIDWEST EMPLOYERS CAS. CO., _)
Insurer. )
EXPEDITED HEARING ORDER
The Court held a hearing on November 25, 2020, to determine whether Mr.
Pendergrass is likely to prove entitlement to pain management treatment for his current
low-back complaints. The Court holds his evidence is insufficient at this time and denies
the requested treatment.!
History of Claim
Mr. Pendergrass worked as a tractor-trailer driver for Rich Transport. On January
25, 2019, a van rear-ended Mr. Pendergrass’s truck, causing him low back pain that
radiated down his legs.”
A February 2019 lumbar MRI revealed degenerative and post-surgical changes at
L4-5 and L5-S1 with foraminal narrowing at L4-5 deforming the L4 root sleeves as well
as a broad-based disc bulge at L5-S1 that suggested an annular tear (disc herniation). Rich
provided a panel, and Mr. Pendergrass chose neurosurgeon Oran Aaronson as his
authorized physician.
Dr. Aaronson evaluated Mr. Pendergrass in March, observing that he complained of
low-back pain and bilateral lower-extremity pain with numbness radiating to his feet. He
'Mr. Pendergrass filed a motion to compel payment of medical benefits; however, the Court shall treat it
as a Request for Expedited Hearing and use the appropriate evidentiary standard for interlocutory hearings.
Mr. Pendergrass also complained of left knee pain, which is not relevant to this motion.
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noted that Mr. Pendergrass underwent laminectomies at L4-5 and L5-S1 in 2017, but he
had been doing “exceptionally well” before his accident. He thought the disc herniation at
L5-S1 was the “most significant culprit” for Mr. Pendergrass’s symptoms.
Dr. Aaronson recommended a course of epidural injections, but Rich denied it. He
then declined to provide further treatment, so Rich authorized neurosurgeon Patrick
Schwartz to see Mr. Pendergrass in August. Mr. Pendergrass complained of recurring pain
and numbness from his left buttock to his foot. Dr. Schwartz recommended physical
therapy as well as pain management for “evaluation and treatment of low back pain.”
Rich authorized physical therapy but denied pain-management through Utilization
Review. Mr. Pendergrass returned to Dr. Schwartz after attempting physical therapy,
which he stated he could not complete due to pain. Dr. Schwartz recommended he take
pain medication before therapy sessions. He stated Mr. Pendergrass’s condition was in a
“holding pattern” until he undergoes a pain-management evaluation and finishes physical
therapy. Nevertheless, Rich denied his recommended treatment and advised that “none of
his treatment will be approved.” Thus, Dr. Schwartz assessed maximum medical
improvement on November 7.
After an expedited hearing in January 2020, the Court held Mr. Pendergrass proved
that the pain management recommended by Dr. Schwartz was reasonable and necessary to
treat his work-related back injury. Causation was not an issue at the time.
Rich provided a panel, but Mr. Pendergrass’s choice was no longer available, so
Rich scheduled him to see Dr. Puneet Mishra. Mr. Pendergrass did not see Dr. Mishra until
May 2020, at which time Dr. Mishra prescribed various non-opioid medications and
ordered a lumbar MRI.
Mr. Pendergrass returned to Dr. Mishra on June 17 complaining of continued sharp
pain and numbness radiating to both legs. He underwent an MRI, which showed “bilateral
facet joint DJD and hypertrophy most prominent at L4-L5, L5-S1 with moderate bilateral
neuroforaminal stenosis.” Dr. Mishra did not believe Mr. Pendergrass’ accident caused
these conditions, although it might have triggered a previous asymptomatic condition that
caused low back and leg pain.
Rich then refused to authorize additional visits until it received clarification on
causation. On September 13, Dr. Mishra signed an opinion letter stating that he did not
believe Mr. Pendergrass’s current low-back symptoms are more than 50% causally related
to his accident. Rich then denied additional pain-management care, which led to this
motion and the parties taking Dr. Schwartz’s and Dr. Mishra’s depositions.
Dr. Schwartz gave his deposition on November 5, 2020. He testified when he last
saw Mr. Pendergrass in November 2019, he believed within a reasonable degree of medical
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certainty that his low-back pain and radiculopathy were more than 50% caused by the
January 2019 accident. He based this opinion on Mr. Pendergrass’s history that his
symptoms had resolved after his 2017 surgery only to return after the 2019 accident, based
on the February 2019 MRI, and his objective findings on examination. He further believed
at that time that pain management and physical therapy were reasonable and necessary to
treat those symptoms.
However, he qualified these opinions by stating he had not seen Mr. Pendergrass,
or any record of his progress, in a year. To address this issue, Mr. Pendergrass’s counsel
asked him whether he would have any reason to disbelieve Mr. Pendergrass if he said that
he still suffered from sharp, radiating pain in both legs. Dr. Schwartz stated he did not, but
he could not give an opinion as to whether he would currently benefit from pain
management or physical therapy, since he had not seen him in a year.
Dr. Mishra testified that Mr. Pendergrass was a candidate for physical therapy,
epidural injections and pain management, just as any person who suffers from debilitating
low back pain would be. As for causation, he observed that the February 2019 MRI showed
an annular tear consistent with his symptoms at the time; however, the June 2020 MRI did
not show this tear, indicating the injury had resolved. He concluded that Mr. Pendergrass’s
complaints could have initially been triggered by his accident; however, he could not give
an opinion one way or the other as to whether his current symptoms were more than 50%
caused by the accident. He further stated he could not see how any physician could give
such an opinion, but he suspected the answer would be “no” given the length of time since
the accident.
Findings of Fact and Conclusions of Law
Mr. Pendergrass must present sufficient evidence establishing he is likely to prove
at trial that he is entitled to the requested benefits. See Tenn. Code Ann. § 50-6-239(d)(1)
(2019). Here, the only issue is whether Mr. Pendergrass’s current low-back symptoms are
causally related to his accident, entitling him to additional treatment. Mr. Pendergrass must
prove this entitlement through expert medical opinion. Tennessee Code Annotated § 50-
6-102(14)(C). The Court holds that the medical proof he offered is insufficient to meet his
burden.
Normally, when considering different medical opinions, the Court must weight
various factors, including the presumptions afforded to authorized physicians under
Tennessee Code Annotated §§ 50-6-102(14)(E) and 50-6-204(a)(3)(H), to determine which
opinion to credit. However, this is not necessary here, since the Court finds that Dr.
Schwartz’s opinion is not sufficient to prove the need for additional pain management for
Mr. Pendergrass’s work-related injury.
Dr. Schwartz’s opinions as to the cause of his low-back complaints and the need for
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additional treatment only meet Mr. Pendergrass’s evidentiary burden through the time that
Dr. Schwartz last saw him. He repeatedly qualified his opinions by stating he believed
they were correct at the time he made them, but it had been a year since he last saw him,
and information and circumstances might have changed. He admitted that he did not
review Mr. Pendergrass’s FCE, Dr. Mishra’s records, or the June 2020 MRI.
Dr. Schwartz specifically said he could not offer an opinion as to whether pain
management was still reasonable and necessary treatment. The only comment he made
about Mr. Pendergrass’s current condition was that, based on the information he had, he
had no reason to doubt his ongoing complaints of sharp stabbing pain that radiated down
both legs. However, he did not give an opinion that these symptoms were due to the
January 2019 accident. In addition, Dr. Mishra did not provide an actual causation opinion
that offers any guidance.
Given the record before it, the Court holds the medical evidence is not enough to
prove that Mr. Pendergrass is likely to prevail on the issue of causation for his current low-
back symptoms.
IT IS, THEREFORE, ORDERED that:
1. Mr. Pendergrass’s request for additional pain management for his current low-back
symptoms is denied.
2. This case is set for a Scheduling Hearing on January 13, 2021, at 9:00 a.m. Central
Time. The parties must call 615-253-0010 or toll-free at 855-689-9049 to participate.
Failure to call might result in a determination of the issues without your participation.
ENTERED December 4, 2020.
Robert V. Durham, Judge
Court of Workers’ Compensation Claims
Exhibits:
APPENDIX
1. Dr. Schwartz’s deposition with attached exhibits
2; Dr. Mishra’s deposition with attached exhibits
Technical Record:
1. Motion for Medical Care
2. Mr. Pendergrass’s Pre-Hearing Brief
3. Rich’s Pre-Hearing Brief
CERTIFICATE OF SERVICE
A copy of the Order was sent as indicated on December 4, 2020.
Name
Certified
Mail
Email
Service sent to:
Stephan Karr
Xx
steve(@flexerlaw.com
nancy@flexerlaw.com
Michael Mansfield
x
mmansfield@raineykizer.com
cjohnson(@raineykizer.com
Penny Shrum, Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
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
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’ 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):
XO Expedited Hearing Order filed on O Motion Order filed on
LF Compensation Order filed on 1 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): CT Employer|_| Employee
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): Employer |__ Employee
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