Opinion

Headley, Harry v. Roadstar, LLC

  • 2024 TN WC 60
Court
Tennessee Court of Workers' Compensation Claims
Filed
Aug 22, 2024
Status
Published
On the bench
Durham
Cited by
0 cases
Authority
More cited than 30.5%

The opinion

FILED

Aug 22, 2024

02:58 PM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT COOKEVILLE

HARRY HEADLEY, ) Docket No.: 2023-07-7479

Employee, )

v. ) State File No.: 68020-2023

ROADSTAR, LLC, )

Employer, ) Judge Robert Durham

And )

NATIONAL LIABILITY AND )

FIRE INS. CO., )

Insurer. )

EXPEDITED HEARING ORDER DENYING BENEFITS

The Court held an Expedited Hearing on August 15, 2024, to determine whether

Roadstar must give Mr. Headley a panel of pulmonologists. Roadstar denied his request

because it authorized treatment with a pulmonologist. The Court holds Mr. Headley is not

likely to prove at trial that he is entitled to a panel.

History of Claim

Mr. Headley inhaled chemicals from a fire extinguisher when he accidentally

discharged it into his face on June 28, 2023. He immediately had difficulty breathing, and

Roadstar authorized him to treat at a clinic.

After several visits, Mr. Headley continued to suffer breathing problems, numbness,

and fatigue. The clinician recommended he see a pulmonologist after a chest x-ray

revealed possible lung damage. On September 7, Roadstar presented a panel that only

included walk-in clinics. The next day, Roadstar sent another panel that included

orthopedists but no pulmonologists.

In her affidavit, Rachel Whitemen, the adjuster for Roadstar, explained that she

could only locate two pulmonologists within 100 miles of Mr. Headley’s home who would

accept workers’ compensation patients. One was Dr. Kumar Yogesh, but she could not

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reach his office by telephone. The other pulmonologist’s first available appointment was

not until December, which she authorized.

Mr. Headley felt he needed treatment sooner than December and asked to see Dr.

Yogesh after the urgent-care clinician recommended him. Ms. Whitemen told him that

while his office would not return her call, he was welcome to try reaching out to Dr. Yogesh

on his own.

Mr. Headley visited Dr. Yogesh’s office on October 11 and asked him to treat even

if it meant charging his personal insurance. When Dr. Yogesh agreed, Ms. Whitemen

authorized treatment.

Dr. Yogesh’s first note revealed that Mr. Headley complained of weakness, fatigue,

and dizziness. A chest x-ray was consistent with “resolving infiltrate.” Pulmonary

functional tests showed diminished lung capacity. Dr. Yogesh diagnosed acute but

unspecified respiratory conditions due to chemical inhalation and prescribed a

bronchodilator and inhaled steroids. He also ordered blood work to determine the source

of Mr. Headley’s fatigue.

Mr. Headley returned a month later. The blood work revealed no abnormalities,

although Mr. Headley complained his fatigue and weakness had worsened. He also

complained of chronic shortness of breath and said that while the inhaler helped, he had to

take more than the recommended 12 inhaler puffs a day. Dr. Yogesh did not diagnose Mr.

Headley’s complaints but ordered additional medication and tests.

Mr. Headley’s final visit was in December. His lung-volume test showed saturation

at 95%. Dr. Yogesh also reviewed an October CT scan that he said did not reveal any

infiltrates. Dr. Yogesh advised Mr. Headley to continue with the inhaler and an inhaled

corticosteroid for unspecified shortness of breath.

At this point, Mr. Headley became dissatisfied with Dr. Yogesh’s treatment and

requested a panel of pulmonologists. Ms. Whitemen refused but said that he was free to

continue treating with Dr. Yogesh. Mr. Headley then sought treatment on his own with

Dr. James Carruth, whom he testified had a different diagnosis than Dr. Yogesh, but he did

not submit his records as an exhibit.

Findings of Fact and Conclusions of Law

To obtain the requested panel, Mr. Headley does not have to prove at this stage

every essential element of his claim by a preponderance of the evidence. Instead, he must

show a likelihood of prevailing at a hearing on the merits. See Tenn. Code Ann. § 50-6-

239(d)(1) (2023).

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Here, Mr. Headley’s position is simple: Roadstar authorized Dr. Yogesh, but it did

not give him a panel. Now, it must do so, since he has expressed his dissatisfaction with

Dr. Yogesh. For its part, Roadstar does not contest that Mr. Headley suffered a

compensable work-related injury or that it must pay for medical care “made reasonably

necessary” by this injury under Section 50-6-204(a)(1)(A). It also concedes that it did not

submit a panel of doctors as mandated by Section 50-6-204(a)(3)(A)(i). However, it asserts

that it offered reasonable and necessary care by agreeing to his request and authorizing Dr.

Yogesh to treat him.

In support of their positions, both parties cited to pre-reform case law. Mr. Headley

quoted the Supreme Court in Employers Insurance of Wausau v. Carter, 522 S.W.2d 174,

176 (Tenn. 1975), which held that “[r]eferring the employee to a single physician does not

comply with the statute; it is an usurpation of the privilege of the employee to choose the

ultimate treating physician.” Roadstar cited several Supreme Court cases holding that a

failure to give the employee a panel did not necessarily obligate the employer to pay for

unauthorized medical expenses. Instead, the issue often turned on whether the employee

was justified in seeking additional treatment without consulting the employer. See, e.g.

Pickett v. Chattanooga Convalescent & Nursing Home, Inc., 627 S.W.2d 941, 944 (Tenn.

1982). However, neither party referred to any case law directly on point.

The Appeals Board has addressed the issue of “new panels” in several post-reform

cases, and decisions have fallen on both sides.

For example, in Lamm v. E. Miller Construction, Inc., 2017 TN Wrk. Comp. App.

Bd. LEXIS 38, at *14 (June 2, 2017), the employee claimed a low back injury, and the

employer sent him to an urgent-care clinic, where he saw a nurse practitioner three times.

The nurse practitioner then denied causation after discussion with her supervising

physician, and the employer denied the claim. The trial court ordered the employer to

submit a panel, so the employee could choose authorized care.

On appeal, the Board held that the employer did not meet its statutory obligation to

offer a panel of doctors, and authorizing the supervising doctor at the clinic did not relieve

the employer’s responsibility to do so. Thus, “under the circumstances presented at this

stage of the proceedings,” the Board affirmed the trial court’s order, even though the

employee did not have proof of causation. Id. at *17.

However, in Berdnik v. Fairfield Glade Community Club, 2017 TN Wrk. Comp.

App. Bd. LEXIS 32, at *16 (May 18, 2017), the Appeals Board reversed the trial court’s

order to authorize a panel. In this case, the employer did not submit a panel but sent the

employee to an evaluating doctor, who said her back condition was not work-related. The

Appeals Board said the employer did not have to issue a panel, since the only medical

evidence established that the employee’s work did not cause her low-back condition.

3

Other Board decisions about whether the law warranted a new panel of doctors also

turned on the facts of each case. In Limberakis v. Pro-Tech Security, Inc., 2017 TN Wrk.

Comp. App. Bd. LEXIS 53, at *10 (Sept. 12, 2017), the Board held the employer must

submit a new panel if the original authorized doctor refused to treat the employee. In Baker

v. Electrolux, 2017 TN Wrk. Comp. App. Bd. LEXIS 65, at *9 (Oct. 20, 2017), the Board

decided that an employee was not entitled to a new panel, because she became dissatisfied

with the authorized doctor’s treatment and nothing indicated the doctor refused to continue

seeing her or was offering inadequate treatment.

As these and other cases illustrate, the law does not mandate that the employer must

offer a panel in every case where it failed to give a proper one initially. However, it does

not preclude it, either. The Court must determine whether the circumstances of this case

merit the provision of a new panel. After consideration, the Court finds that they do not.

One factor that distinguishes Mr. Headley’s case from others where the court

required the employer to issue a new panel is that he requested that Roadstar authorize Dr.

Yogesh as his authorized physician. While the Court disagrees with Roadstar’s contention

that Mr. Headley had more discretion in choosing his authorized physician than others who

received proper panels, the fact that he pursued treatment with Dr. Yogesh before Roadstar

authorized him is significant.

Additionally, Mr. Headley has not shown that he is likely to prove that Roadstar has

not offered “reasonably necessary” treatment under section 50-6-204(a)(1)(A) for his

work-related injury. He did not offer any medical proof that Dr. Yogesh is unqualified to

treat him, that his treatment has been deficient, or that Dr. Yogesh is unwilling to continue

seeing him. As stated in Baker, Mr. Headley’s dissatisfaction with Dr. Yogesh is not

enough reason to merit a new authorized physician. So the Court denies Mr. Headley’s

request.

However, Roadstar’s admitted failure to give a panel is not without consequences.

The Court refers Roadstar to the Bureau’s Compliance Program for a penalty determination

under Tennessee Code Annotated section 50-6-118(a)(9).

IT IS, THEREFORE, ORDERED:

1. Mr. Headley’s request for a panel of pulmonologists is denied. Dr. Yogesh shall

remain his authorized physician to treat his work-related injury of June 28, 2023.

2. This case is referred to the Bureau’s Compliance Program to determine if, and

to what extent, a penalty is warranted.

3. This case is set for a Scheduling Hearing on October 17, 2024, at 10:00 a.m.

Central Time. The parties must call 615-253-0010. Failure to appear might

4

result in a determination of the issues without the party’s participation.

ENTERED August 22, 2024.

_____________________________________

ROBERT DURHAM, JUDGE

Court of Workers’ Compensation Claims

5

APPENDIX

Exhibits:

1. Panel of Physicians

2. First Report of Work Injury

3. Various emails between adjuster and Mr. Headley

4. Additional emails

5. Petition for Benefit Determination with attached statement

6. Dr. Yogesh’s medical records

7. Rule 72 Statement from Rachel Whitemen

CERTIFICATE OF SERVICE

I certify that a copy of the Order was sent as indicated on August 22, 2024.

Name Certified Fax Email Service sent to:

Mail

Drew Saulters, X dsaulters@ortalekelley.com

Employee’ s Attorney

Emily Faulkner, X Emily.Faulkner@mgclaw.com

Employer’s Attorney

Compliance Progam X WCCompliance.Progam@tn.gov

_____________________________________

PENNY SHRUM, Court Clerk

WC.CourtClerk@tn.gov

6

Right to Appeal:

If you disagree with the Court’s Order, you may appeal to the Workers’ Compensation

Appeals Board. To do so, you must:

1. Complete the enclosed form entitled “Notice of Appeal” and file it with the Clerk of the

Court of Workers’ Compensation Claims before the expiration of the deadline.

 If the order being appealed is “expedited” (also called “interlocutory”), or if the

order does not dispose of the case in its entirety, the notice of appeal must be filed

within seven (7) business days of the date the order was filed.

 If the order being appealed is a “Compensation Order,” or if it resolves all issues

in the case, the notice of appeal must be filed within thirty (30) calendar days of

the date the Compensation Order was filed.

When filing the Notice of Appeal, you must serve a copy on the opposing party (or attorney,

if represented).

2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten calendar

days after filing 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 filing 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 your appeal.

3. You are responsible for ensuring a complete record is presented on appeal. If no court

reporter was present at the hearing, you may request from the Court Clerk the audio

recording of the hearing for a $25.00 fee. If you choose to submit a transcript as part of your

appeal, which the Appeals Board has emphasized is important for a meaningful review of

the case, a licensed court reporter must prepare the transcript, and you must file it with the

Court Clerk. The Court Clerk will prepare the record for submission to the Appeals Board,

and you will receive notice once it has been submitted. For deadlines related to the filing of

transcripts, statements of the evidence, and briefs on appeal, see the applicable rules on the

Bureau’s website at https://www.tn.gov/wcappealsboard. (Click the “Read Rules” button.)

4. After the Workers’ Compensation Judge approves the record and the Court Clerk transmits

it to the Appeals Board, a docketing notice will be sent to the parties.

If neither party timely files an appeal with the Appeals Board, the Court Order

becomes enforceable. See Tenn. Code Ann. § 50-6-239(d)(3) (expedited/interlocutory

orders) and Tenn. Code Ann. § 50-6-239(c)(7) (compensation orders).

For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.

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

v.

___________________________________________________________________________

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):

□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________

□ Compensation Order filed on__________________ □ 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): _________________________________________ ☐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 I 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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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