By Jared S. Renfroe

State File No. 64363-2014

Docket No. 2016-01-0135

Filed August 16, 2016

Summary

The Employee had a compensable left knee injury, and he alleged that he sustained an injury to his cervical spine as a result of the Functional Capacity Evaluation (FCE) ordered for the left knee injury. However, before the FCE took place, the Employee complained of cervical spine symptoms, and chiropractic records show that he reported pain in his neck radiating down to his fingers as a result of the FCE. The trial court found this troubling and held in favor of the Employer, and the Appeals Board affirmed.

Details

In this case, the Appeals Board reviewed the interlocutory appeal by the Employee after the trial court entered an Order denying medical and temporary disability benefits, which followed the review of documents without a hearing, upon the request of Employee.

Employee sustained a compensable left knee injury and underwent surgery with Dr. Smalley, the authorized treating physician. During the time he was treating for the left knee injury, he was also treating with Dr. Smalley for a non-work-related shoulder injury. Also, Employee had been receiving chiropractic treatment for his low back and neck pain for several years. Dr. Smalley ordered a functional capacity evaluation (“FCE”) on July 29, 2015, and his records on this date indicate that Employee reported some neck pain and numbness and tingling into his hand. The FCE was performed on August 25, 2015, and Employee was released to MMI for the left knee injury at the next appointment with Dr. Smalley.  At this appointment, Dr. Smalley recommended that Employee see Dr. Eck, a cervical spine specialist in his clinic. However, approximately two weeks before the FCE, chiropractic records indicate that Employee reported that “he was doing better until Wednesday, July 22, 2015 when his left shoulder blade, neck, left hand and [fingers] began hurting and became weak after performing [sic] FCE at work.”

Employer did not provide a panel of cervical spine specialists initially and did not authorize Dr. Eck to provide treatment. Ultimately, Employee treated for the cervical spine problem with Dr. Hodges, another spine specialist in practice with Dr. Eck and Dr. Smalley. On Employee’s first visit with Dr. Hodges, he reported that all of his left shoulder pain and weakness started after the FCE, and denied any prior history. Dr. Hodges opined that the cervical spine injury was work-related, and he performed an ACDF surgery.  Subsequently, Employer provided a panel of physicians, and Employee selected Dr. Strait to evaluate Employee and give an opinion as to causation. Initially, Dr. Strait opined that the cervical spine injury was work-related because he was told by Employee that his symptoms started after the FCE, but after Dr. Strait had the opportunity to review medical records, Dr. Strait retracted his opinion and opined instead that it was clear that Employee’s symptoms did not start after the FCE. Employee submitted an affidavit of Dr. Hodges stating that he had reviewed the medical records from all of the relevant providers and opining that the FCE was the primary cause of the cervical injury.

The trial court found that the cervical spine injury was not compensable, and the Appeals Board affirmed. The Appeals Board held that the recommendation for Employee to be seen by Dr. Eck (which ultimately ended up being Dr. Hodges) did not result in Dr. Hodges becoming an authorized treating physician because Dr. Smalley was only the authorized physician for the knee injury, and he placed Employee at MMI for the knee injury on the same date he made the cervical spine recommendation. There was no indication that the cervical spine recommendation was in any way related to the knee injury. Additionally, the Appeals Board agreed with the trial court that, although Dr. Strait’s opinion was not entitled to a rebuttable presumption of correctness on the causation issue, it was entitled to greater weight than Dr. Hodges’s opinion. The Appeals Board highlighted that the trial court found it “troubling” that Employee complained of neck symptoms after performing an FCE at work before the FCE even occurred. Additionally, the Appeals Board held that Employee’s assertion that Dr. Strait “is not a reputable medical expert in the Workers’ Compensation community” and that he “is known primarily as an advocate for the insurance companies and employers of Chattanooga” failed because the record was devoid of any evidence to support these accusations.

Jared S. Renfroe is an attorney for Spicer Rudstrom PLLC. He focuses his legal practice on litigation throughout Tennessee. His concentrates primarily in premises liability, business and commercial representation, employment practices litigation, professional liability, insurance defense and workers’ compensation.

 

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