Lane, Michael L. v. Viskase Companies, Inc. , 2019 TN WC 168 ( 2019 )

FILED
Nov 21, 2019
04:02 PM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT CHATTANOOGA
MICHAEL L. LANE, ) Docket No. 2018-01-0313
Employee, )
v. )
VISKASE COMPANIES, INC, ) State File No. 30803-2018
Employer, )
and )
PROPERTY AND CASUALTY INS. ) Judge Thomas Wyatt
CO. OF HARTFORD, )
Carrier. )
REVISED EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS
(DECISION ON THE RECORD)
On November 20, 2019, the Court considered Michael L. Lane’s request for an on-
the-record decision of his claim for medical and temporary disability benefits based on
his alleged work-related ruptured wrist tendon. Viskase Companies, Inc. did not object to
Mr. Lane’s request, and the Court determined it had sufficient evidence to decide the
issues on the 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.
History of the 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 of straining his left wrist when he “tried to pull a latch on the reel[.]” The
nurse ordered x-rays and wrote:
We discussed the fact that we believe the patient’s current wrist pain is an
exacerbation of his 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 of injury, 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 with the 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 of the 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[.]” But he also wrote:
More than likely, the extensive osteophyte formation (bony spurring) at the
base of the 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 of the [EPL] in an otherwise
healthy wrist could occur from “pulling a latch.”
Dr. Sanabria testified on causation that, under the “recent changes in TN Workers’
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% of causation for the
condition.” Despite his torn tendon, Dr. Sanabria released Mr. Lane as “[fit] for duty
without restrictions” and suggested he see his private physician for an orthopedic referral.
Viskase denied Mr. Lane’s claim based 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.”
He referred Mr. Lane to orthopedist Dr. 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 of not 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 of his [EPL] tendon. This a work compensable condition, which arose
2
directly out of the course of his employment. He also has non work compensable thumb
arthritis.”
Dr. Ivey recommended surgery, which he performed on March 22. In surgery, Dr.
Ivey confirmed the tendon rupture shown on MRI and repaired it. Mr. Lane and a private
health carrier paid Dr. 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 opinion that the pre-existing arthritis in Mr. Lane’s thumb frayed the tendon in
question and represented more than 50% of the causation of the 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 it was
his opinion “that within a reasonable degree of medical certainty the cause of the 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 of the 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 at the base of Mr. Lane’s thumb. Dr. Sanabria cited MRI findings in
support of his 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 generally rupture under the pressure of simply 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 of time, 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 off work due to his work injury.
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.
3
Ivey’s practice documenting charges, insurance payments, patient payments, and
adjustments relating to the treatment of his ruptured tendon.
Findings of Fact and Conclusions of Law
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 of his employment and
caused either “disablement or the need for medical treatment.” Tenn. Code Ann. § 50-6-
102(14). An injury arises primarily out of the employment if the evidence shows to a
reasonable degree of medical 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 it is more likely than not considering all causes. Id.
The Court considered two conflicting medical opinions on the causation of Mr.
Lane’s ruptured tendon. When confronted with conflicting opinions, the Court has
discretion to conclude that one contains the more probable explanation and 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 of the experts, the circumstances of their
evaluation, the information available to them, and the evaluation of the importance of that
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 of correctness since Mr. Lane selected him from a panel. Tenn. Code Ann.
§ 50-6-102(14)(E). This presumption is rebuttable by a preponderance of the evidence.
Id.
After closely reviewing the testimony of Drs. Sanabria and Ivey, Mr. Lane’s
affidavit, and the entire record, the Court holds that the preponderance of the 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 opinion provides the more plausible explanation for Mr. Lane’s ruptured
tendon.
The Court considered the following in coming to the above conclusion:
e 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 his practice to non-surgical care of general medical conditions.
e Dr. Ivey saw Mr. Lane on more occasions than did Dr. Sanabria and visualized
the location of Mr. Lane’s tendon rupture in surgery. Dr. Sanabria relied on
MRI findings made by another physician in testifying as to the location of the
tendon rupture.
e Dr. Sababria based his causation opinion on the assumption that Mr. Lane
injured his wrist while performing the “routine” duty of opening a latch. The
Court accepts as credible Mr. Lane’s sworn testimony that his injury occurred
when he had to pull the latch harder than normal because it was stuck.!
e 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 of causation to
assign the non-work-related arthritis at the base of Mr. Lane’s thumb. The
Court holds Dr. Ivey’s assessment that the arthritis constitutes less than 50% of
the causative effect on the rupture of Mr. Lane’s tendon represents the more
plausible explanation. In support of this holding, the Court considered the fact
that Mr. Lane successfully worked with arthritis at Viskase before he ruptured
his tendon.
In view of the above, the Court holds that Mr. Lane will likely prevail at trial in
establishing that his ruptured tendon arose primarily out of and in the course and scope of
employment.
The Court additionally holds that Mr. Lane will likely prevail in proving his
entitlement to medical benefits. Dr. Ivey testified that the ruptured tendon would not heal
without surgery, and his treatment protocol of surgery, examinations, and therapy
constituted reasonable and necessary treatment for Mr. Lane’s work-related injury.
The Court further holds that, because Viskase denied Mr. Lane’s claim, he
reasonably sought treatment from Dr. Ivey. In support, the Court notes that Dr. Sanabria
recommended orthopedic treatment of the 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 McCord v. 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 of the employee's choice.” The Court also holds that Viskase
shall pay the charges of OrthoTennessee.
As to temporary total disability benefits, Mr. Lane must show he is likely to prove:
(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
off work for his ruptured tendon. For that reason, the Court denies Mr. Lane’s claim for
temporary disability benefits at this time.
'The physician whom Mr. Lane saw after Lakeway corroborated Mr. Lane’s history that he pulled on the
latch harder than normal at the time of injury.
It 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.
Viskase shall authorize Dr. Ivey to provide ongoing care of Mr. Lane’s tendon
injury.
. Mr. Lane’s claim for temporary disability benefits is denied at this time.
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 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
WCCompliance.Program@tn. gov.
. The Court schedules a telephonic Status Conference at 10:00 a.m. Eastern
Time on February 21, 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, without the absent party’s participation.
ENTERED November 21, 2018.
Yn)
Judge Thomas Wyatt
Court of Workers’ Compensation Claims
Appendix
Technical Record:
Oe eee
Exhibits:
Oo Sl os te bo
Petition for Benefit Determination
Dispute Certification Notice
Transfer Order
Request for Expedited Hearing—Decision on the Record
Employee’s Position Statement
Docketing Notice—Decision on the Record
Affidavit of Michael Lane
Transcript of the deposition of Dr. Robert Ivey
Transcript of the deposition of Dr. John Sanabria
Records of Lakeway Urgent Care/Dr. Sanabria
Records of OrthoTennessee/Dr. Ivey
Form C42 Choice of Physicians
Notice of Denial of Claim
Wage Statement
CERTIFICATE OF SERVICE
I certify that a copy of the Order was sent as indicated on November 21, 2019.
Name Certified First | Email | Service sent to:
Mail Class
Mail
Steven Williams, x lawyervol(@gmail.com:swilliams
Employee’s Attorney lawoffice@gmail.com
Blair Cannon, xX Blair.cannon@thehartford.com
Employer/Ins. Carrier’s
Attorney
Dp pasa So bi li miso)
Penny Shrum,\Court Clerk
WC.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:
I. Complete the enclosed form entitled: “Expedited Hearing 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
concerning 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: (I) 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.
EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers’ Compensation
Www. ti. gov/labor-wld/weomp-shtml:
we. courtclerk@tn.gov
1-800-332-2667
Docket #:
State File #/YR:,
Employee
Vv,
Employer
Notice
Notice is given that
[List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s) of the Court of Workers’ Compensation Claims at
to the Workers’ Compensation Appeals
Board, [List the date(s) the order(s) was filed in the court clerk’s office]
Judge
Statement of the Issues
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Additional Information.
Type of Case [Check the most appropriate item]
C) Temporary disability benefits
(1 Medical benefits for current injury
C) Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party):
Address:
Party’s Phone: Emaii:
At Hearing: DEmployer CEmployee
Attomey’s Name: BPR#:
Attorney's Address: Phone:
Attorney's City, State & Zip code:
Attorney'sEmail:
* Attach an additional sheet for each additional Appellant *
LB8-1099 rev. 10/18 Page 1 of 2 RDA 11082
Emplayee Name: SF: bol:
Appellee(s)
Appellee (Opposing Party): ; At Hearing: L]Employer Employee
Appellee’s Address:
Appellee’s Phone: Email:
Attorney's Namé: BPR#:
Attorney’s Address: Phone:
Attorney's City, State & Zip code:
Attorney's Email;
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
1, , certify that | have forwarded a true and exact copy of this
Expedited Hearing Notice of Appeal by First Class, United States Mall, postage prepaid, to all parties
and/or thelr attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules
of Board of Workers’ Compensation Appeals on this the day of ,20__
[Signature of appellant or attorney for appellant]
LB-1099 rev. 10/18 Page 2 of 2 RDA 11082
Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, I-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
because of my poverty, | am undble to bear the cos
waived. The following facts support my poverty.
1. Full Name:
3. Telephone Number:
5. Names and Ages of All Dependents:
6. | am employed by:
2. Address:
4, Date of Birth:
Relationship;
Relationship:
Relationship:
Relationship:
, having been duly swom according to law, make oath that
ts of this appeal and request that the filing fee to appeal be
My employer's address Is:
My employer's phone number is:
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$
8. | receive or axpect to receive money from the following sources:
AFDC $
SSl $
Retirement $
Disability $
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 11082
9. My expenses are:
Rent/House Payment $ permonth Medical/Dental § per month
Groceries $ per month Telephone $ per month
Electricity $ per month School Supplies $ per month
Water $ per month Clothing $ per month
Gas $ per month Child Cara $ per month
Transportation $ per month Child Support $ _ per month
Car 3 per month
Other $ per month (describe: ' }
10. Assets:
Automobile § (FMV)
Checking/Savings Acct. $
House $ re (FMV)
Other $a Destribe:
11. My debts are:
Amaunt Owed To Whom
[hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that | am financially unable to pay the costs of this 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