The opinion
FILED
Sep 20, 2024
10:49 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
MICHELLE HARDY, ) Docket No. 2020-08-0327
Employee, )
v. )
OLLIE’S BARGAIN OUTLET, INC., ) State File No. 27227-2019
Employer, )
And )
PA MANUFACTURERS INDEM. CO., ) Judge Shaterra R. Marion
Carrier. )
EXPEDITED HEARING ORDER DENYING BENEFITS
(DECISION ON THE RECORD)
The Court held an expedited hearing on the record on Ms. Hardy’s request for
authorized treatment with Dr. Greg Kyser, the panel-selected physician. The carrier offered
Ms. Hardy a new panel of physicians to take over her care. The Court holds that Ms. Hardy
is entitled to a new panel of physicians because Dr. Kyser has declined to treat her.
History of Claim
Ms. Hardy alleged she suffered an arm injury on April 11, 2019, which evolved into
complex regional pain syndrome. Her authorized treating physician made a psychiatric
referral, and she selected Dr. Kyser from a panel.
She began treating with Dr. Kyser in September 2023, and he last saw her in
February 2024. He did not release her at maximum medical improvement and anticipated
that she still needed psychiatric treatment.
Dr. Kyser testified that he requires the carrier to sign an agreement before he agrees
to treat. The carrier signed the required agreement in August 2023 before Ms. Hardy began
treatment. After treatment began, Dr. Kyser later updated the agreement to reflect increased
fee schedule amounts and sent the updated agreement to the carrier for signature.
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The carrier objected to signing the updated agreement because of collection and
legal fee language associated with unpaid medical bills. Further, it took issue with language
holding the carrier personally responsible for payment of medical bills. The first
agreement, signed by the carrier, contained all the language it now objects to.
Dr. Kyser testified that he could not agree to striking the collection language
because his office had extensive collection problems with the carrier. At the time of his
deposition, medical bills related to Ms. Hardy’s treatment remained unpaid.
On February 27, Dr. Kyser terminated Ms. Hardy’s treatment due to the carrier’s
failure to pay medical bills related to her treatment and its refusal to sign an updated
agreement. To resume Ms. Hardy’s treatment, Dr. Kyser stated he would need the signed
updated agreement, all outstanding medical bills paid, and the name of a contact person for
any additional billing problems. The carrier refused.
In June, the carrier offered a new panel of physicians for Ms. Hardy to select another
physician due to Dr. Kyser’s refusal to treat her. Ms. Hardy argued that Dr. Kyser should
remain her treating physician and her treatment with him should be authorized.
Findings of Fact and Conclusions of Law
Ms. Hardy has the burden of proving she is likely to prevail at a hearing on the
merits on her request for continued treatment with Dr. Kyser. Tenn. Code Ann. § 50-6-
239(c)(6) (2023); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App.
Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Tennessee Code Annotated section 50-6-204(a)(1)(A) says that employers must
provide injured workers medical care and treatment made reasonably necessary by the
work-related injury. This includes both the authorization and payment of reasonable and
necessary medical care, causally related to the work injury. Mitchell v. AECOM, 2023 TN
Wrk. Comp. App. Bd. LEXIS 5, at *10-11 (Jan. 27, 2023).
The parties agreed that Ms. Hardy is entitled to treatment with a psychiatrist. The
issue is whether the Court can order continued treatment with Dr. Kyser. It cannot.
The Appeals Board held that where the employer designated an authorized treating
physician who refused to see the employee, the trial court correctly ordered the employer
to replace the physician on its panel to allow the employee to select another physician.
Limberakis v. Pro-Tech Sec., Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 53, at *8-10
(Sept. 12, 2017).
Here, Dr. Kyser has declined to treat Ms. Hardy unless his demands are met. The
Court does not have the authority to scrutinize Dr. Kyser’s demands and likewise does not
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have the authority to tell the carrier that it must meet them.
The carrier previously signed the agreement and has failed to timely pay Dr. Kyser’s
bills. Even at the time of the deposition, and after assurances from the carrier’s counsel,
bills remained unpaid. The Court recognizes the fact that the carrier’s failure to timely pay
Ms. Hardy’s bills is, at least in part, why she has been unable to receive continued treatment
with Dr. Kyser.
However, Ms. Hardy offered no authority to support her position that the reason for
the physician’s denial of treatment is relevant to the analysis after further treatment has
been declined. Her request to return to Dr. Kyser is thus denied, and she shall select a new
treating physician from the June 2024 panel.
Penalty Referral
Section 50-6-118(8) authorizes penalties for an employer’s failure to timely provide
medical treatment made reasonably necessary by the accident and recommended by the
authorized treating physician. Tennessee Compilation Rules and Regulations 0800-02-01-
.06(1) (2023) requires that an employer give a panel of physicians no later than three days
after the employee expresses the need for medical care.
Here, the carrier’s failure to pay Dr. Kyser’s bills has effectively denied Ms. Hardy
reasonable and necessary medical treatment. Additionally, Dr. Kyser declined to treat Ms.
Hardy in February, but Ollie’s did not offer a new panel until June. Moreover, Dr. Kyser
testified, in August, that some of his medical bills remain unpaid. The Court therefore refers
Ollie’s to the Compliance Program for assessment of penalties under both section 50-6-
118(8) and Rule 0800-02-01-.10.
Attorney’s Fees
The Court holds that Ms. Hardy is entitled to attorney’s fees under section 50-6-
226(d)(1)(B) for the failure to timely initiate medical benefits because Ollie’s did not
provide a new panel until four months after Dr. Kyser declined to treat Ms. Hardy.
The Appeals Board held this type of delay “exemplifies one of the extremely limited
set of circumstances where an award of reasonable attorney’s fees and costs is appropriate
at the interlocutory stage of the case.” Thompson v. Comcast Corp., 2018 TN Wrk. Comp.
App. Bd. LEXIS 1, at *31 (Jan. 30, 2018). The carrier’s four-month delay demonstrates
those circumstances, and the Court directs Ms. Hardy’s counsel to file a motion for fees as
described below.
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IT IS, THEREFORE, ORDERED as follows:
1. Ms. Hardy’s request that Dr. Kyser remain the authorize treating physician is
denied. Ms. Hardy shall select a new treating physician from the June 2024 panel,
and Ollie’s shall schedule an appointment as soon as possible.
2. The Court grants Ms. Hardy’s request for attorney’s fees under Tennessee Code
Annotated section 50-6-226(d)(1)(B) because of the employer’s failure to timely
reinitiate medical benefits. Ms. Hardy’s counsel shall file a motion for fees and
expenses incurred in obtaining the updated panel, itemized by task, date of
performance, time spent, and the requested hourly rate within ten days of the date
of this order. Ollie’s shall have five days to respond.
3. Ollie’s is referred for penalties for violations of Tennessee Code Annotated section
50-6-118(8) and Rule 0800-02-01-.10.
4. Unless an interlocutory appeal of the 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
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 confirmation within seven business days
may result in a penalty assessment for non-compliance. For questions regarding
compliance, contact the Workers’ Compensation Compliance Unit via email at
WCCompliance.Program@tn.gov.
ENTERED September 20, 2024.
JUDGE SHATERRA R. MARION
Court of Workers’ Compensation Claims
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APPENDIX
Exhibits:
1. Employee Affidavit
2. Physiatry referral
3. Dr. Kyser Panel
4. Emails between parties
5. First Report of Injury
6. June 12, 2024 Panel
7. Dr. Greg Kyser Deposition and Exhibits
CERTIFICATE OF SERVICE
I certify that a copy of this order was sent as indicated on September 20, 2024.
Name Email Service sent to:
Jonathan May, X jmay@forthepeople.com
Employee’s Attorney
Alex Elder, X alex@holleyelder.com
Employer’s Attorney
Compliance Program X WCCompliance.Program@tn.gov
_____________________________________
PENNY SHRUM, COURT CLERK
Court of Workers’ Compensation Claims
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.
¾ 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.
¾ 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;ĐŚĞĐŬŽŶĞŽƌŵŽƌĞĂƉƉůŝĐĂďůĞďŽdžĞƐĂŶĚŝŶĐůƵĚĞƚŚĞĚĂƚĞĨŝůĞͲ
ƐƚĂŵƉĞĚŽŶƚŚĞĨŝƌƐƚƉĂŐĞŽĨƚŚĞŽƌĚĞƌ;ƐͿďĞŝŶŐĂƉƉĞĂůĞĚͿ͗
□ 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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