The opinion
FILED
Mar 04, 2025
08:25 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
Allan Tan, ) Docket No. 2024-06-4392
Employee, )
v. )
Select Specialty Hospital-Nash Select )
Medical Corporation, ) State File No. 13325-2024
Employer, )
And )
Employers Insurance Company of )
Wausau, ) Judge Joshua Davis Baker
Carrier. )
EXPEDITED HEARING ORDER
The Court held an expedited hearing on February 26, 2025, regarding Allan Tan’s
entitlement to payment of a medical bill and temporary disability benefits. Select Specialty
Hospital contends that it should not be liable for an unauthorized doctor’s bill and that Mr.
Tan is not eligible for temporary disability benefits because he was not restricted from
work. For the reasons below, the Court finds Mr. Tan has not satisfied his burden for either
request, and they are denied.
Claim History
On January 18, 2024, Mr. Tan, an experienced nurse, injured his low back at work
while pulling and lifting a patient. Select accepted the claim, and Mr. Tan saw Dr. Robert
Lowe.
Dr. Lowe and his physician assistant treated Mr. Tan conservatively for the next
several months, but this decision turns largely on the June 10, 2024 visit. Mr. Tan said he
was in significant pain and unable perform full-duty work; the treatment notes convey a
different impression.
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Dr. Lowe diagnosed “low back pain, unspecified,” ordered additional physical
therapy, and released Mr. Tan to full-duty work. The doctor wrote: “This patient has
improved significantly. He is satisfied with his progress. He would like to return to some
activities. He is not 100% sure if the job at Select Specialty will accommodate him with
his age and findings.” Dr. Lowe examined Mr. Tan and noted, “[H]is back pain is much
improved. I do not detect any significant focal weakness in the lower extremities. He has
some mild spasm in the low back.”
In contrast, Mr. Tan said he still had pain and swelling around that time. He was
willing to work with lifting restrictions, but Select would not offer light duty. He disagreed
that he could do full-duty work, pointing out that while his job description requires
occasional lifting as much as 50 pounds and pulling up to 60 pounds, the patients he moves
sometimes weigh 200 pounds. He said the job is stressful both physically and mentally.
At two earlier visits, Mr. Tan was taken off work for four weeks and then given
lifting restrictions. Select paid temporary total disability benefits each time. Dr. Lowe
wrote in April that Mr. Tan was not a surgical candidate.
The restrictions were imposed again at a July visit with Dr. Lowe’s physician
assistant, and Select reinitiated temporary disability benefits. Then at an August visit, Dr.
Lowe released Mr. Tan “to work without specific restrictions related to his job, which
delineates no requirements over 50 pounds. On WorkLink that says no lifting over 50
pounds consistent with return to work full duty.” He added, “I would not anticipate
permanent restrictions or permanent impairment as it relates to this injury.”
Dr. Lowe requested a return in one month, but around that time Mr. Tan moved to
California. Since then, the parties have been attempting to furnish treatment with a
California physician. In early February, Select sent Mr. Tan a panel. He testified that he
has not signed and returned the form.
Mr. Tan expressed dissatisfaction with Dr. Lowe’s treatment and testified that after
the June 10 visit, he went to Dr. Philip Elizondo later that month for a second opinion. Dr.
Elizondo diagnosed “acute midline low-back pain, unspecified whether sciatica present.”
He recommended that Mr. Tan continue with physical therapy and medications. He
additionally advised that Mr. Tan “not return to work where he needs to lift 50 to 60
pounds. He should not return to any work requiring more than 20 to 30 pounds lifting.”
Mr. Tan paid for this visit with his personal insurance but incurred a copay.
Mr. Tan seeks reimbursement of the copay and temporary disability benefits from
June 10 to July 8. Select denies that he is entitled to either.
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Findings of Fact and Conclusions of Law
To prevail at this expedited hearing, Mr. Tan must show he would likely succeed at
a final hearing in proving entitlement to reimbursement of Dr. Elizondo’s bill and
additional temporary disability benefits. Tenn. Code Ann. § 50-6-239(d)(1) (2024);
McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at
*7-8, 9 (Mar. 27, 2015).
Turning first to the medical bill, Dr. Elizondo gave a second opinion. As the
Appeals Board has explained, “A specialist must recommend surgery before an injured
worker is entitled to a second opinion on the issue of surgery and diagnosis.” Petty v.
Convention Prod. Rigging, 2016 TN Wrk. Comp. App. Bd. LEXIS 95, at *21 (Dec. 29,
2016). Dr. Lowe did not recommend surgery. Moreover, section 50-6-204(a)(1)(A)
requires an employer only to furnish treatment free of charge “as ordered by the attending
physician.” Dr. Lowe is the treating physician. Therefore, Mr. Tan has not shown he is
likely to prevail at a hearing on the merits that he is entitled to reimbursement for Dr.
Elizondo’s services.
Next, Mr. Tan seeks temporary disability benefits. In Jones v. Crencor Leasing and
Sales, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11, 2015), the Appeals Board
repeated longstanding eligibility requirements: “An injured worker is eligible for
temporary disability benefits if: (1) the worker became disabled from working due to a
compensable injury; (2) there is a causal connection between the injury and the inability to
work; and (3) the worker established the duration of the period of disability.” Applying
this authority, he has not met the first condition that he was “disabled,” since Dr. Lowe
released him to full duty for the period that Mr. Tan seeks benefits.
Mr. Tan was a credible witness who possesses great medical knowledge from his
years of experience as a nurse. However, he is not a medical doctor, nor is the Court. The
Appeals Board has held, “Judges are not well-suited to make independent medical
determinations without expert medical testimony supporting such a
determination. Likewise, parties . . . cannot rely solely on their own medical interpretations
of the evidence to successfully support their arguments.” Lurz v. Int’l Paper Co., 2018 TN
Wrk. Comp. App. Bd. LEXIS 8, at *17 (Feb. 14, 2018). Mr. Tan is unlikely to prevail at
trial on this request as well.
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IT IS, THEREFORE, ORDERED as follows:
1. Mr. Tan’s requests are denied at this time.
2. A status hearing is set for July 14 at 9:15 a.m. Central Time. You must call 615-
532-9552 or 866-943-0025 to participate. If Mr. Tan has reached maximum medical
improvement at that time, the Court will set dates for mediation and the
compensation hearing.
ENTERED March 4, 2025.
________________________________________
JUDGE JOSHUA DAVIS BAKER by interchange
Court of Workers’ Compensation Claims
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APPENDIX
Exhibits
1. Rule 72 Declaration of Allan Tan
2. Rule 72 Declaration of Samantha Tyree
3. Wage statement
4. Composite medical records: Dr. Lowe, Dr. Elizondo
5. C-42, panel of California physicians
6. CareNow Urgent Care, March 7, 2024
7. Ascension St. Thomas Hospital Midtown, February 18, 2024
8. Email from Leah Carter, PT to Mr. Tan, June 19, and notes, June 4, 2024
9. Select Medical job description
10. First Report of Injury
11. Emails between Mr. Tan and Trace Karp
12. Video
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CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on March 4, 2025.
Name Certified Regular Email Sent to
Mail mail
Allan Tan, employee X X 4259 Heritage Ln.
Clovis, CA 93619
Allantan7311974@yahoo.com
Maddox Burgess, X maddox.burgess@libertymutual.
employer’s attorney com
eva.noss@libertymutual.com
_______________________________________
Penny Shrum
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 *
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