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.
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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
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result in a determination of the issues without the party’s participation.
ENTERED August 22, 2024.
_____________________________________
ROBERT DURHAM, JUDGE
Court of Workers’ Compensation Claims
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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:
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
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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 *
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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]
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