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Posted by: Landry Butler on Aug 31, 2016

Court: TN Workers Comp Appeals Board

Attorneys 1:

J. Allen Callison, Brentwood, Tennessee, for the employer-appellant, Macy's.

Attorneys 2:

Andrew L. Wener, Memphis, Tennessee, for the employee-appellee, Debbie Morgan.

Judge(s): CONNER

In this interlocutory appeal, the employee tripped and fell onto her right shoulder while attempting to avoid a cart as she exited a stockroom. The employer provided medical treatment and, after the employee completed a course of conservative treatment for neck pain, the authorized physician recommended a cervical fusion. The employer submitted the recommended surgery for utilization review, and the reviewing physician declined to certify the surgery as medically necessary. The employee did not appeal the utilization review denial to the state's utilization review program, but instead filed a request for expedited hearing. The trial court ruled that an employee need not pursue an appeal of a utilization review denial to the medical director as a prerequisite to filing a request for expedited hearing. Upon consideration of the medical records of the treating physician, including a report admitted into evidence over the objection of the employer, the trial court determined that the surgery was medically necessary and ordered the employer to pay for the surgery. Additionally, the trial court denied the employer's post-hearing motion to add an additional defense to the dispute certification notice. The employer appealed. Upon careful consideration of the record, we affirm in part and vacate in part the decision of the trial court, and we remand the case for further proceedings as may be necessary.