The opinion
FILED
Apr 23, 2025
09:44 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
MARTHA MCCOOL, ) Docket No.: 2022-08-0687
Employee, )
v. )
PROFESSIONAL CARE SERVICES, ) State File No.: 99553-2019
Employer, )
And )
BRIDGEFIELD CAS. INS. CO., ) Judge Shaterra R. Marion
Insurer. )
____________________________________________________________________________
COMPENSATION ORDER GRANTING MEDICAL BENEFITS
At the April 17, 2024, Compensation Hearing, Ms. McCool asked that Professional
Care Services authorize a second opinion for a surgery recommended by the authorized
treating physician. Professional Care argued that Ms. McCool is not entitled to a second
opinion because the authorized treating physician did not refer her for a second opinion.
For the reasons below, the Court grants Ms. McCool’s request.
History of Claim
On October 7, 2019. Ms. McCool suffered multiple stab wounds to her torso,
abdomen, upper extremities, head and face. In August 2023 she accepted a settlement that
gave her the right to reasonable and necessary future care. Her first authorized treating
physician referred her to plastic surgery, and she received a panel from which she selected
Dr. Dan Shell.
On April 14, 2024, Dr. Shell ordered surgical reconstruction of the abdominal wall
with excision of scars and tissue transfer to restore symmetry. On May 9, Professional Care
authorized the surgery.
Ms. McCool then requested a second opinion on the surgery with one of the
remaining panel physicians. Ms. McCool testified that Dr. Snell encouraged her to get a
second opinion. Professional Care denied the request.
Findings of Fact and Conclusions of Law
The only issue is whether Professional Care must give Ms. McCool a second
opinion. Ms. McCool must prove her entitlement by a preponderance of the evidence.
Tenn. Code Ann. § 50-6-239(c)(6) (2024). The Court holds that she carried this burden.
“When the treating physician or chiropractor refers the injured employee, the
employee shall be entitled to have a second opinion on the issue of surgery and diagnosis
from a physician or chiropractor from a panel of two (2) physicians practicing in the same
specialty as the physician who recommended the surgery.” Id. at - 204(a)(3)(C).
Professional Care contended that the first clause of the statute requires the
authorized treating physician to refer Ms. McCool in writing for a second opinion.
However, this position is inconsistent with statutory interpretation and the case law.
The role in construing a statute is to ascertain and give effect to the legislative intent
without unduly restricting or expanding a statute's coverage beyond its intended scope.
Petty v. Convention Production Rigging, 2016 TN Wrk. Comp. App. Bd. LEXIS 95, at *20
(Dec. 29, 2016). “To do so, we focus initially on the statute's words, giving these words
their natural and ordinary meaning in light of their statutory context.” Id. “We must avoid
any forced or subtle construction that would limit or extend the meaning of the language.”
Id.
The Appeals Board held that the statute requires an opinion of a specialist
recommending surgery before an injured worker is entitled to a second opinion on the issue
of surgery and diagnosis under 50-6-204(a)(3)(C). Id. at * 21. Further, when the treating
physician refers the employee to a specialist for surgery the employee shall be entitled to a
second opinion. Bassham v. Lowes Home, Centers, 2023 TN Wrk Comp App Bd LEXIS
19, at *4-5 (May 1, 2023).
Thus, when giving “refer” its ordinary meaning and not expanding the statute’s
coverage, the Court holds that “refers” means when an authorized treating physician refers
the employee to a specialist. The Appeals Board interpretation in Petty also supports this
conclusion.
For an employee to be entitled to a second opinion, the authorized treating physician
must refer the employee to the specialist, and the specialist must recommend surgery. Both
factors have been satisfied in this case. Therefore, Ms. McCool is entitled to a second
opinion.
Attorney’s Fees
The Court may award “reasonable attorney’s fees and reasonable costs” when the
employer unreasonably fails to timely initiate any of the benefits in Tennessee Code
Annotated section 50-6-204, including medical benefits, if the workers' compensation
judge makes a finding that the benefits were owed at a compensation hearing. Tenn. Code
Ann. § 50-6-226(d)(1)(B).
A trial court need only find that the denial was “erroneous, incorrect, or otherwise
inconsistent with the law or facts” to award fees under section 50-6-226(d)(1), and the
“good faith” or “bad faith” of the employer is not relevant to the determination.
To be eligible for an award of reasonable attorney’s fees and expenses under section
226(d)(1), an employee must show either that the employer failed to furnish appropriate
medical treatment as provided for in a court order, or that the employer was erroneous or
incorrect in denying the employee’s claim for benefits. Walls v. United Tech’s Corp., 2021
TN Wrk. Comp. App. Bd. LEXIS 27, at *19 (Aug. 6, 2021).
Here, Professional Care argued that it did not deny Ms. McCool medical benefits
because it approved the surgery. However, a second opinion is a medical benefit under §
50-6-204. She requested the second opinion, and Professional Care incorrectly denied that
request. Therefore, Ms. McCool is entitled to attorney’s fees, and the Court directs Ms.
McCool’s counsel to file a motion for fees as described below.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. McCool’s request for a second opinion is granted. Ms. McCool shall select from
one of the physicians remaining on the panel. If that physician is unavailable,
Professional Care shall replace that physician.
2. The Court grants Ms. McCool’s request for attorney’s fees under Tennessee Code
Annotated section 50-6-226(d)(1)(B) because of the Professional Care’s failure to
provide the second opinion. Ms. McCool’s counsel shall file a motion for fees and
expenses incurred in obtaining the second opinion, itemized by task, date of
performance, time spent, and the requested hourly rate within ten days of the date
of this order. Professional Care shall have five days to respond.
3. Unless appealed, this order shall become final in 30 days.
ENTERED April 23, 2025.
________________________________________
Judge Shaterra R. Marion
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Joint Stipulations
2. Panel of Physicians
3. Emails between Ms. McCool, Summit Holdings, and Dr. Shell’s Office
4. [For Identification Only] Email dated August 16, 2024, from Brandy Isbell to Ann
Hoffman and Ms. McCool
5. Workers’ Compensation Settlement Agreement
6. Dr. Shell Medical Records
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on April 23, 2025.
Name Email Service sent to:
Jonathan May, X jmay@forthepeople.com
Employee’s Attorney
Brayden Hunter, X brhunter@mijs.com
Employer’s Attorney
_____________________________________
Penny Shrum, Court Clerk
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
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