Chatman, Amanda v. Topre America

FILED

NOV 1 2 2014

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WORKERS COMPENSATION CLAIMS

COURT OF WORKERS' COMPENSATION CLAIMS

DIVISION OF WORKERS' COMPENSATION

EMPLOYEE: Amanda Chatman DOCKET#: 2014-06-0007

STATE FILE#: 54810/2014

EMPLOYER: Topre America DATE OF INJURY: July 15,2014

INSURANCE CARRIER: Farmington

Casualty Company/Traveler's

EXPEDITED HEARING ORDER

THIS CAUSE came before the undersigned Workers' Compensation Judge upon the Request

for Expedited Hearing filed by Amanda Chatman, (Employee), on October 8, 2014, with the

Tennessee Court ofWorkers' Compensation Claims, Division ofWorkers' Compensation, pursuant

to Tennessee Code Annotated section 50-6-239 to determine if the continuation of medical benefits

and the initiation of temporary disability benefits is appropriate, and whether Employer is

responsible for the cost of a specific medical treatment.

The Court conducted a telephonic hearing on October 29,2014. Employee participated with

her Counsel, Keith Jordan. Topre America (Employer) and Traveler's Insurance Company (Carrier)

participated through their Counsel, Emil L. "Chip" Storey Jr. Employee testified on her own behalf.

Brandon Skipper, Brooke Holt and Christina Kilby testified on behalf of Employer.

Considering the positions of the parties, the applicable law and all ofthe evidence submitted,

the Court hereby finds that Employee sustained an injury arising primarily in the course and scope of

her employment. Employee is not entitled to past medical expenses relative to unauthorized care.

Employee is entitled to a panel of orthopedic specialists to select a provider for ongoing medical

benefits until such time as she reaches maximum medical improvement (MMI). Employee is entitled

to temporary partial disability (TPD) benefits at this time .

.;;.

ANALYSIS

Issues

1. Whether Employee sustained an injury that arose primarily out of and in the course and scope

of employment with Employer.

1

2. Whether Employee is entitled to another panel of physicians in compliance with the law.

3. Whether Employer is obligated to pay for any past medical expenses.

4. Whether Employee is entitled to any past or future temporary partial disability benefits, and if

so, in what amount.

Evidence Submitted

The Court designated the following as the technical record:

• Petition for Benefit Determination, August 20, 2014

• Dispute Certification Notice (DCN), October 8, 2014 1

• Request for Expedited Hearing, October 8, 2014.

The following documents were admitted into evidence:

Exhibit 1: Amanda Chatman Medical Records (ACMR), pages 1-80

Exhibit 2: Star Physical Therapy Progress notes

Exhibit 3: Time Card Reports, July 7-20, 2014 and July 21-August 3, 2014

Exhibit 4: Time Sensitive Request for Separation Information

Exhibit 5: Disciplinary Action Forms, June 18, 2014 and July 28, 2014

Exhibit 6: Separation Notice

Exhibit 7: Topre America Associate Attendance Policy

Exhibit 8: Associate Acknowledgement Form

Exhibit 9: Admission Notes, StoneCrest Medical Center, July 29, 21042

Exhibit 10: Form C-42, Choice ofPhysicians3 .

History of Claim

Employee is a 35-year-old resident ofNolensville, Tennessee. She worked fulltime, third-

shift, as an assembly line worker at Topre America from January 6, 2014 until July 31, 2014.

Employee testified that on July 15,2014, sometime between 9 and 10 PM, she suddenly felt a

sharp pain in her left arm and shoulder while performing her assigned duties. She reported the injury

to her supervisor, Jeff Steakley, and attempted to continue working, but could not keep up her usual

pace. During her "lunch" break, she went outside to her car, where she lifted a cup. Immediately her

arm "felt really heavy" and was "hurting worse." Upon her return to work, the pain worsened. She

1

Various supporting documents were attached to the DCN and are part of the technical record. However, the Court did

not consider any attachments unless properly admitted as evidence.

2

Portions of these records were not available at the teleconference. The Court allowed Employee's Counsel 10

business days to submit the additional information, because it appeared that they would be critical to the resolution

of one of the issues before the Court at the Expedited Hearing stage. Employee's Counsel faxed the records on

November 6, 2014, and they were received via regular mail on November 7, 2014.

3

The parties stipulated to the admission of this document via email upon the Court's suggestion a few days after the

hearing.

2

again told her supervisor and he denied her request for light duty. They located Biofreeze and

Tylenol, but these were ineffective. Eventually, Employer agreed she could seek medical care at

StoneCrest Medical Center (StoneCrest). It is undisputed that Employer received actual notice of the

injury. Employee sought emergency medical care at StoneCrest on July 16, 2014, with express

authorization from Employer through Mr. Steakley.

At StoneCrest, Dr. Steven Aaronson diagnosed a left-shoulder strain and placed Employee on

restricted duty of no lifting, pushing or pulling greater than 6-10 pounds. These restrictions were to

remain in effect until her follow-up visit with a workers' compensation provider. (Exhibit 1,

ACMR, p. 55). Employee received a panel of potential treating physicians from Employer and

selected U.S. HealthWorks (HealthWorks) on July 18,2014. (Exhibit 10).

Employee received authorized medical care at HealthWorks on July 18, 21 and 28, 2014, and

August 1 and 13, 2014. She received treatment from Karynthia Phillips, a certified physician

assistant (P .A.), on July 18 and 21. P .A. Phillips checked a box in the medical report form to

indicate that the injury is work-related. (Exhibit 1, ACRM, p.8). She diagnosed a "shoulder sprain,

back/thoracic spine sprain, overexertion from sudden strenuous movement, and disturbance of skin

sensation." P .A. Phillips placed Employee on restrictions of no lifting more than zero pounds floor

to waist or waist to shoulder, no forceful pushing or pulling and no repetitive hand/wrist motion.

(Exhibit 1, ACMR, p. 11 ). These restrictions remained in effect following subsequent visits to

HealthWorks on July 21 and 28 and on August 1 and 13, when P .A. Nan Waldkirch provided care.

(Exhibit 1, ACMR, pp. 19, 23, 31 and 38). A Medical Certificate dated August 19,2014 estimated

that Employee "is expected to be able to return to usual duties: 8/26/14." (Exhibit 1, ACMR, p. 39).

After receiving restrictions from P .A. Phillips, Employee returned to work and delivered the

restrictions to her supervisor. She testified that the job to which she was assigned on a welding

machine required her to lift parts weighing two to five pounds. She complained about this

assignment. Employer next provided her with a "light-duty" job of using a push broom/mop to clean

the plant. By her own testimony, Employee provided evidence that Employer made a video

illustrating how she could sweep/mop the floors using only her right hand and arm. Employer

provided dust cloths so Employee could dust machinery using only her right extremity. Employee

testified that pushing the broom/mop caused her back to hurt. She admitted she could do the dusting

without problems. She testified that when she ran out of available cloths, the company did not

replace them.

Employer offered the testimony of Brooke Holt, its Human Resources Supervisor since July

3, 2014. Ms. Holt testified regarding the circumstances surrounding the decision to discharge

Employee under the Employer's disciplinary point system. Specifically, Employer maintains a

disciplinary system that results in discharge should an employee accumulate eight "points" or more

during a revolving 12-month calendar. The records revealed that Employee had accumulated 6.25

points by June 18, 2014. (Exhibit 5). An examination of Employee's time cards (Exhibit 3)

following the injury of July 15, 2014, indicates that she worked and left late on July 16, 2014. On

July 18, 2014, she selected a panel and had a doctor visit. On July 20, 21, 22 and 23, she did not

work pending results of a drug screen. She received full payment for those days. On July 24, she

performed light duty for an entire shift. On July 27, her time card is marked "NCNS"- meaning "no

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call, no show." On July 28, she attended an appointment at HealthWorks. This absence did not

result in any point being assigned. On July 29, a notation indicates she refused light-duty work and

requested personal medical leave.

As a result of this work history, Ms. Holt testified that Employee received an additional point

for missing work on July 27, the "NCNS" day. This increased her points to 7.25. A Disciplinary

Action Form (Exhibit 5) prepared on July 28, 2014, indicates that Employee refused to sign the

form. Employee testified she did call in to work and report that she would be absent on July 27,

2014. She testified she could not reach her supervisor, Mr. Steakley, but left a message with her

team leader, Matthew Garrety4 , about her pending absence. She testified that her team leader

responded to her by text message indicating that he would let the supervisor know. Employee further

testified that when presented with the disciplinary form, she showed her supervisor the text message

and that her team leader confirmed their communications. As a result she refused to sign the form.

Employer did not offer the testimony of either the team leader or Mr. Steakley.

Employer called Mr. Brandon Skipper, plant production manager, to testify concerning

procedures regarding calling in to alert Employer of a missed shift. Employer produced the

employee attendance policy. (Exhibit 7). Mr. Skipper confirmed the policy contained a specific call-

in number. However, he agreed, upon cross-examination, that the important point of the policy was

to advise Employer of a pending absence. If using the call-in line resulted in leaving a message,

bypassing the call-in line to provide direct notice to a supervisor or team leader accomplished the

task.

Employee reported for work on July 29, 2014. As the evening wore on, she began to

experience pain. The pain became so significant that she asked permission to leave early and seek

medical attention. Permission to do so was denied, but Employee left anyway, more than four hours

early. This resulted in another "point," which pushed her total to 8.25.

Late-filed medical records from StoneCrest (Exhibit 9) indicate that Employee arrived at

10:16 PM. She presented complaining of"neck pain" and "neck injury." She saw Dr. Clark Archer

at 11: 18 PM. In her history of present illness, she reported the "mechanism of injury'' as '"work-

related' due to lifting" and classified her current pain level as "moderate." Dr. Archer diagnosed

cervical strain and gave her an unsigned note stating that Employee "was seen on 7/29/2014 and is

excused from work from 7/29/14 through 7/31/2014." (Exhibits 2 and 95).

4

None of the witnesses spelled the team leader's surname. This is the Court's best guess.

5

Employer's Counsel observed in a November 7, 2014 email that the late-filed medical records additionally identify

Employee's family practice physician as Dr. Jian Wei. He stated that Employee had not listed Dr. Wei in response to

a question asking her to identify all providers in her September 25, 2014 Responses to Interrogatories. He said he

would be promptly obtaining copies of medical records and accordingly asked to supplement the record. However,

Employee's Responses to Interrogatories were not moved into and marked as evidence in this interlocutory matter.

Moreover, Employer's Counsel did not indicate specifically how the records could potentially be useful or

determinative of any of the issues before the Court at the Expedited Hearing stage. The Court is not inclined to allow

for further delay. Therefore Employer's request is denied. Should Dr. Wei's records offer relevant information,

Employer may move them into evidence at the final Compensation Hearing.

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On the next day, July 30, Employee telephoned Ms. Holt and told her about Dr. Archer's note

excusing her from work. Ms. Holt testified she refused to honor the note since it came from an

unauthorized physician. Ms. Holt further testified that the July 29, 2014, visit to StoneCrest was not

authorized. Therefore, the "point" assessed for leaving early that evening was justified. Employer

discharged Employee as of August 1, 2014.

Following the discharge, Employee continued with authorized medical treatment from

HealthWorks. In her final visit on August 13, 2014, P.A. Waldkirch discharged Employee from

HealthWorks' care and noted on the line designated "Referral:" the word "Ortho." (Exhibit 1,

ACMR, pp. 37-38). Testimony revealed that Employee was accompanied on the final visit by a

nurse case manager, Diana Laffoon. Employee testified without contradiction that after she left the

appointment, the case manager went back inside to see the P .A. When the case manager returned,

she advised Employee that her appointment would be with Dr. James Rungee at Tennessee

Orthopaedic Alliance in Murfreesboro. Exhibit 1, page 38 confirms this fact. Page 40 ofExhibit 1

contains the following notation: "Per Nurse Case Manager & she asked me to write Dr. Rungee on

referral for PT. 6"

This documentary evidence was confirmed by the testimony of Christina Kilby, claims

investigator for Carrier. Ms. Kilby testified she had previously instructed Ms. Laffoon to tell the

P.A. to designate Dr. Rungee. An appointment was set with Dr. Rungee on August 21, 2014.

Employee did not attend that appointment and instead filed a Petition for Benefit Determination on

August 20, 2014. Mediation failed and a DCN was prepared and filed. Employee requested this

Expedited Hearing.

Employee's Contentions

Employee contends she sustained an accidental injury arising primarily out of and in the

course and scope of employment. She argues there is no evidence on the record to suggest otherwise

In addition, Employer initially accepted the compensability of the injury.

Employee also asserts she is entitled to medical benefits and in particular a panel of

orthopedic specialists. Employee asserts that the referral to Dr. Rungee is invalid because it came

from a P.A . and not a physician. She further objects to the instruction by the nurse case manager,

under the direction of Carrier, to the ATP to refer Employee to Dr. Rungee. She argues that the

practical effect of this instruction rendered the referral "an insurance company referral" rather than a

"physician referral."

Employee contends Employer should be liable for treatment provided by StoneCrest on July

29,2014 because HealthWorks was not open at that hour, Employee's pain was severe, and the team

leader and supervisor did not object when she said she needed immediate medical attention.

Employee further argues that Employer failed to accommodate her restrictions and provide

her with appropriate light duty. She asserts she was wrongfully terminated. She contends that

6

"PT" is an abbreviation for patient.

5

Employer is liable for past temporary partial disability (TPD) benefits from the date of her

termination and continuing TPD until she attains MMI and is able to return to work. Although a

HealthWorks "Medical Certificate," dated August 19, 2014, states that the estimated date Employee

should be able to return to work is August 26, 2014, that information is superseded by the MRI

finding that she may have sustained a labral tear. Therefore, Employee remains eligible for ongoing

TPD because Employer has not provided her with appropriate orthopedic care to properly treat her

Injury.

Employer's Contentions

Employer disputes that Employee sustained an accidental injury arising primarily out of and

in the course and scope of her employment. Employer notes that Employee had worked for it for only

six months and questions Employee's credibility. Employer contends that the injury might have been

sustained during the break when Employee picked up the cup, or at some unknown point in time

when Employee was exercising.

Employer provided a panel of three outpatient clinics, as has been customary in workers'

compensation practice for many years now. Employee has accepted that treatment thus far. The P .As

whom she saw were acting under the direction of physicians and therefore their recommendations

carry weight equal to that of a physician. The statute only allows employers, not employees, to object

when an attending physician makes a referral. Employer made no attempt to manipulate the statute or

the system when the nurse case manager asked the P.A. to refer Employee to Dr. Rungee. Rather,

Employer/Carrier has developed a professional relationship with him, he brings the requisite

expertise and he has treated workers' compensation claimants for years.

Employer argues that it did not authorize the July 29, 2014 StoneCrest visit and should not be

liable for it. ·

In addition, Employer was properly accommodating Employee's restrictions with light-duty

work. Employee was terminated for cause on July 30, 2014, because on July 27, 2014, Employee did

not follow the correct call-in procedures, and on July 29,2014, she left without completing her shift

to receive unauthorized care. The authorized provider never took her completely off of work. But for

Employee's decision to leave on July 29, 2014, she would still be performing light-duty and drawing

her salary. Therefore Employer is not liable for past or continuing TPD benefits.

Findings of Fact and Conclusions of Law

Standard Applied

When determining whether to award benefits, the Judge must decide whether the moving

party is likely to succeed on the merits at trial given the information available. See generally, McCall

v. Nat'! Health Care Corp., 100 S.W. 3d 209,214 (Tenn. 2003). In a workers' compensation action,

pursuant to Tennessee Code Annotated section 50-6-239(c)(6), Employee shall bear the burden of

proving each and every element of the claim by a preponderance of the evidence. Employee must

show the injury arose primarily out of and in the course and scope of employment. Tenn. Code Ann.

6

§ 50-6-102(13).

Factual Findings

On July 15, 2014, Employee sustained an injury to her left shoulder by accident arising

primarily out of and in the course and scope of the employment. Employer authorized Employee to

seek medical care from StoneCrest on July 16, 2014.

Employee received additional authorized medical treatment for the injury with the following

medical providers: HealthWorks, July 18-August 13, 20 14; Star Physical Therapy, July 25-August 5,

2014; and Vanderbilt Imaging, August 8, 2014.

At Employee's first visit on July 18,2014, HealthWorks placed restrictions against use ofher

left extremity. Employer reasonably accommodated those restrictions. Employee made reasonable

efforts to notify her supervisor regarding her absence on July 27, 2014 in compliance with

Employer's policy. Employee left work early on July 29, 2014 to receive unauthorized medical care.

The absence led to Employer terminating her under its disciplinary procedure. Employer incorrectly

assessed a disciplinary point for the absence on July 27, 2014. Therefore, Employer's termination of

Employee was improper under Employer's standards.

On August 8, 2014, Employee underwent an MRI, which results suggest a labral tear.

On August 13, 2014, HealthWorks discharged Employee from further care and referred her

for orthopedic treatment. Employer/Carrier objected to the general referral on August 13, 2014, when

the nurse case manager requested Dr. Rungee as the specific provider of orthopedic care.

Application of Law to Facts

1. Employee sustained an injury that arose primarily out of and in the course and scope of

employment with Employer.

An injury is "accidental" only if the injury is caused by a specific incident, or set of incidents,

arising primarily out of and in the course and scope of employment, and is identifiable by time and

place of occurrence. See Tenn. Code Ann. § 50-6-1 02(13)(A)(20 14). An injury "arises primarily out

of and in the course and scope of employment" only if it has been shown by a preponderance of the

evidence that the employment contributed more than fifty percent (50%) in causing the injury,

considering all causes. See Tenn. Code Ann. § 50-6-102(13)(8)(2014). The Tennessee Supreme

Court has held that if it is apparent to the rational mind, after considering all of the circumstances

that there is a causal connection between the conditions under which the work is required to be

performed and the resulting injury, then such accidental injury "arises out of one's employment."

Crew v. First Source Furniture Group, 259 S.W.3d 656,664 (Tenn. 2007).

Except in the most obvious, simple and routine cases, the claimant in a workers'

compensation action must establish by expert medical evidence the causal relationship between

the claimed injury and the employment activitv. Orman v. Williams Sonoma, Inc. 803 S.W.2d

7

672 676 (Tenn. 1991). P.A. Phillips, the ATP, documented the injury as work-related in her

initial assessment. Her opinion is presumed correct under Tennessee Code Annotated section 50-

6-1 02(12)(E)(2014).

Trial courts must assess witness credibility when weighing the evidence prior to making

factual findings. Live testimony is the preference. See generally Kelly v. Kelly, --- S.W.3d ---,2014

Tenn. LEXIS 664 (Tenn., Sept. 10, 2014); see also Kenneyv. Shiroki N Am, Inc., 2011 Tenn. LEXIS

182, 9 (Tenn. Workers' Comp. Panel Feb. 28, 2011) ("When credibility and weight to be given to

testimony are involved, considerable deference is given the trial court when the trial judge had the

opportunity to observe the witness' demeanor and to hear in-court testimony.") However, the

Tennessee Supreme Court held in Kelly that telephone testimony is more akin to live testimony than

to documentary evidence, and appellate courts should afford trial courts considerable deference when

reviewing issues that hinge on the witnesses' credibility. Id, *30. The high court gave indications of

credibility that can be gleaned via telephonic testimony when it adopted language in the appellant's

brief as follows:

Only the Trial Court heard the tone and inflection of [the counselor's]

voice. The Trial Court was in the best position to determine whether

[the counselor] sounded calm or agitated, at ease or nervous, self-

assured or hesitant, steady or stammering, confident or defensive,

forthcoming or deceitful, reasonable or argumentative, honest or

biased. [The counselor] was a virtual live witness -linked by wire in

open court- responding in her own voice in real time to questions on

direct and on cross examination. [She] was not a cold transcript for

the Court of Appeals to assess anew.

ld

As recapped in the previous "History of Claim," Employee's testimony offered sufficient

detail regarding the circumstances of her arm and shoulder injury. Employee's fulltime assembly line

duties require fairly constant, repetitive motions and lifting, which are wholly consistent with the

type of injury she sustained. In fact, Employee testified about a specific event. Employee's testimony

was credible, considering the factors outlined in Kelly. Specifically, Employee's tone and demeanor

were calm, at ease, self-assured, steady, confident, forthcoming, reasonable and honest. She gave the

Court no indications to doubt her veracity. Further, a claimant's assessment of his or her physical

condition is competent testimony and may not be disregarded. Uptain Constr. Co. v. McClain, 526

S.W.2d 458, 459 (Tenn. 1975).

On cross-examination, Employer's Counsel engaged in a brief line of questioning regarding

whether Employee had injured herself working out, but put forth no proof to substantiate that the

injury was sustained anywhere other than the workplace. Employer did not call any witnesses to

contravene Employee's version of the particulars of her sustaining the injury while working.

Therefore, at this interlocutory stage of the case, Employee has satisfied the McCall standard to show

that the injury arose primarily out of and in the course and scope of employment with Employer.

8

2. Employee is entitled to a panel of orthopedic specialists for additional authorized

treatment.

Tennessee Code Annotated section 50-6-204(3)(A)(ii) provides:

When necessary, the treating physician selected in accordance with

this subdivision (a)(3)(A) shall make referrals to a specialist

physician, surgeon, or chiropractor and immediately notify the

employer. The employer shall be deemed to have accepted the

referral, unless the employer, within three (3) business days, provides

the employee a panel of three (3) or more independent reputable

physicians, surgeons, chiropractors or specialty practice groups. In

this case, the employee may choose a specialist physician, surgeon,

chiropractor or specialty practice group to provide treatment only

from the panel provided by the employer.

Tenn. Code Ann. § 50-6-204(3)(A)(ii)(2014).

The authorized medical treatment rendered in this case was by two licensed physician's

assistants. Employee asserts that the referral to Dr. Rungee is invalid because it came from a P.A.

The Court disagrees; see, Tennessee Attorney General Opinion 06-126 ("Because physician

assistants and orthopedic physician assistants render services 'under the supervision, direction, and

ultimate responsibility of a licensed physician accountable to the Board of Medical Examiners,'

Tenn. Comp. R. & Regs. 0880-3-9-.02; 0880-10-.02, any medical services they may recommend or

provide are therefore ultimately ordered by the attending physician."). Therefore, the protocol

established by the Tennessee Board of Medical Examiners is consistent with the P.A. issuing

restrictions, treatment orders and making specialty referrals. In this case, the attending P .A.s issued

restrictions by which the Employer abided and the Employee insisted upon. The P.A.s designated

physical therapy and ordered an MRI. All parties agreed to these actions and complied with their

orders. Therefore, all treatment, restrictions and referrals from the attending P.A.s in this case are

valid actions under the Tennessee Workers' Compensation Act.

On Employee's last visit with P .A. Waldkirch on August 13, 2014, a notation appears on the

handwritten record, "Referral: Ortho." (Exhibit 1, ACMR, p. 37). On p. 38 of Exhibit 1, a typed

version of the same note appears as follows: "Referral: ORTHO." Below this typed notation in the

"Comments" section is written, "Dr. Rungee TOA (Murfreesboro) 8-13-14 per nurse case manager."

The Court finds that the P .A. made a general referral to "Ortho" meaning orthopedic

treatment. The Court finds that the case manager then asked the P .A. to specifically refer Employee

to Dr. Rungee. This sequence of events is significant for the reasons that follow. The Court finds this

general referral to an "Ortho" to comply with Tennessee Code Annotated section 50-6-

204(a)(3)(A)(i) (2014). At the time of that referral, if the Employer disagreed with the general

referral, its response is to have accepted the referral or within three (3) business days of the general

referral.to provide Employee with a panel of three (3) or more "independent reputable physicians,

surgeons, chiropractors or specialty groups." Tenn. Code Ann. § 50-6-204(a)(3)(A)(i)(2014). The

9

Court finds that Employer failed to comply with the statutory referral procedure by returning to the

P .A. and directing a specific referral to Dr. Rungee.

This is a new statutory scheme effective July 1, 2014. Under the new law, the authorized

treating physician (ATP) makes a referral to a specialist. The employee has no choice in accepting

the referral. The employer, if it does not approve of the referral, has three (3) business days to

provide a choice to the employee by providing a panel of physicians from which to select. The

employer cannot direct a specific referral without choice by the employee after the ATP makes a

general referral. That would destroy the statutory scheme. Employee has asked for a panel from

which to choose an orthopedic provider in this case. Under the circumstances in this case, Employee

is entitled to a panel of orthopedic physicians from which to select a provider.

3. Employer is not obligated to pay for the medical expenses related to Employee's July

29,2014 emergency room visit.

The Court finds that Employer specifically authorized Employee to visit StoneCrest on July

16,2014, the date ofthe injury. Following that visit, Employee selected HealthWorks as the ATP.

On July 29, Employee asked to leave work to be treated for pain. This request was denied, but

Employee left anyway and sought treatment at StoneCrest.

Whether an employee is justified in seeking additional medical services to be paid by the

employer without consulting him depends upon the circumstances of each case. Buchanan v. Mission

Ins. Co., 713 S.W.2d 654, 656 (Tenn. 1986). In Buchanan, an employee unilaterally abandoned the

medical services her employer provided. !d. at 657. The high Court reasoned that, at the least, she

could have notified the employer that she was not obtaining relief from the only doctor to whom she

had been referred to allow the employer the opportunity to comply with the statute. !d. The Court

concluded that section 50-6-204:

Makes it clear that the intent [of the Legislature] . . . was for the

employee to certainly do no less than consult his employer before

incurring the expenses called for by that statute if the employee

expects the employer to pay for it. The opposite would seem to be

against public policy.

Tennessee Code Annotated section 50-6-204(a)(l)(A) states that "the employer ... shall

furnish, free of charge to the employee, such medical and surgical treatment, medicine, medical and

surgical supplies ... as ordered by the attending physician and hospitalization, ... made reasonably

necessary by accident as defined in the chapter," namely a work-related injury. Tenn. Code Ann.§

50-6-204(a)(l)(A)(2014). The Tennessee Supreme Court has held that when an employee receives

medical care for a work-related injury that has not been authorized by the employer, the employee

must establish the necessity and reasonableness of the charges before the employer is responsible.

Moore v. Town ofCollierville, 124 S.W.3d 93, 98 (Tenn.2004).

In this matter, unlike in Buchanan, Employee did give adequate notice of her intent to seek

unauthorized treatment because the ATP was not open at that hour. At first blush, it would seem

10

reasonable that she returned to a treatment provider that had previously been authorized, However, at

this time, Employee has offered minimal medical proof as to the medical necessity ofthe July 29,

2014 emergency department visit to StoneCrest. The late-filed records state that she characterized

her pain as "moderate." Dr. Archer discharged her within less than two hours' time at the hospital,

without prescribing medication or follow-up care. The fact that he did write her the note excusing her

from work for that night and the next two nights, without explanation, admittedly makes this a close

call. However, even assuming the treatment was necessary, significantly, Employee failed to offer

any proof as to the amount or reasonableness of the medical bills incurred on that visit. In sum,

Employee has not satisfied her burden of proof for this Court to find that Employee's injury posed a

medical necessity to justify seeking such treatment, nor has she offered any proof as to the amount of

or reasonableness of the charges for such service. Employee's request for these medical expenses is

denied at this time.

4. Employee is entitled to past and future temporary partiaf disability benefits, because

although Employer made reasonable accommodations for Employee's restrictions,

Employer wrongfully terminated Employee.

Entitlement to temporary disability benefits requires proof that the employee's inability to

work is related to a compensable injury, and concludes when the injured employee reaches MMI.

Simpson v. Satterfield, 564 S.W.2d 953 (Tenn. 1978). See also, Grayv. Cullom Machine Tool and

Dye, Inc., 152 S.W.3d439 (Tenn. 2004); Gluck Brothers, Inc. v. Coffey, 431 S.W.2d 756 (Tenn.

1968). Temporary restrictions assigned by medical professionals during an injured employee's

medical treatment do not entitle the employee to continued temporary disability benefits if he or

she was able to perform work other than the pre-injury former job without loss of income. See,

Long v. Mid-Tennessee Ford Truck Sales, 160 S.W.3d 504 (Tenn. 2005); Cleek v. Wal-Mart

Stores, Inc., 19 S.W.3d 770, 776 (Tenn. 200); and Vinson v. Firestone Tire and Rubber Co., 655

S.W.2d 931 (Tenn. 1983).

An injured employee may not be entitled to temporary disability benefits if he or she

is terminated from employment for cause and the employer reasonably would have been able

to provide modified duty within the restrictions assigned. To be excused from this obligation,

the employer is required to demonstrate that the termination of the injured employee's

employment involved a breach of the reasonable expectations of an employer and appears

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Temporary partial disability arises when "the temporary disability is not total." Stem v. Thompson Servs., 2011

Tenn. LEXIS 742,27 (Tenn. Workers' Comp. Panel, July 26, 2011), citing 20 Reynolds§ 14:4, at 213. Addressing

temporary partial disability, Tennessee Code Annotated section 50-6-207(2), provides that "[i]n all cases of

temporary partial disability, the compensation shall be sixty-six and two-thirds percent (66 2/3%) of the difference

between the average weekly wage at the time of the injury and the wage the worker is able to earn in the worker's

partially disabled condition." I d. The 20 14 changes codifY the compensation rate for partial disability in section 50-

6-207(2)(B)(2014) using the same calculation. In this matter, Employer paid Employee her regular wage for the time

that she worked light-duty, and accordingly the parties have stipulated to a compensation rate based upon it.

Therefore, although her disability benefits are properly labelled as temporary partial disability, they have been

calculated in accordance with Tennessee Code Annotated section 5-6-207(1 )(A)(20 14) for total temporary disability

benefits- to wit, sixty-six and two thirds percen.t (66 2/3%) of the average weekly wage.

11

reasonably appropriate. In such cases, the employer is deemed to have made reasonable efforts

to accommodate the employee's work restrictions and the Employee's work injury is not the

reason why he is not returned to his former job. See, generally, Carter v. First Source Furniture

Group, 92 S.W.3d 367, 371-372 (Tenn. 2002) (holding that, "an employer should be

permitted to enforce workplace rules without being penalized in a workers' compensation case,"

!d. at 368).

In the present case the Court finds that Employer made a reasonable accommodation for

Employee's restrictions. In fact, Employer produced a video for the Employee to demonstrate how

the assigned tasks could be performed without violating the assigned restrictions. Although

Employee complained that the sweeping assignment caused her back to hurt, she did make efforts

to perform that task. Employee admitted that she could do the dusting job without complications.

However, the Court finds that Employee's discharge was not appropriate under the

Employer's own guidelines. Employee should not have been assigned a "point" under the eight (8)

point dismissal system for missing work on July 27, 2014 on a "no call, no show" basis.

Employer's superintendent, Mr. Skipper, clearly testified that Employee's method of calling-in is

an acceptable reporting method. No testimony refuted Employee's testimony that she advised her

team leader of her pending absence and that he confirmed receipt of the notice by a responsive

text message. Therefore, the discharge was incorrect and not reasonable.

The Court finds that the Employee is significantly restricted in her physical work

activities. But for the unreasonable discharge, Employer would have provided Employee work

within the restrictions that were issued. Therefore, since those restrictions remain the only proof of

Employee's physical restrictions and there is no medical finding ofMMI 8, Employee is entitled to

past-due temporary partial disability benefits in the amount of$430.21 per week from August 1 to

November 12,2014, totaling $6,330.38. Employer's obligation to continue said benefits remains

until Employee is declared to be at MMI or returns to work.

IT IS, THEREFORE, ORDERED as follows:

1. Medical care for Employee's injuries shall be paid and Employer or its workers'

compensation carrier shall provide Employee with medical treatment for these injuries as

required by Tennessee Code Annotated section 50-6-204, to be initiated by Employer or its

workers' compensation carrier providing Employee with a panel of orthopedic physicians as

required by that statute. Medical bills shall be furnished to Employer or its workers'

compensation carrier by Employee or medical providers.

2. Employee shall remain liable for any balance owed to StoneCrest relative to the July 29,

2014, emergency room visit.

8

The Court acknowledges that the Health Works Medical Certificate dated August 15, 2014 indicates an "estimated"

date of August 26, 2014 that Employee is expected to be able to return to regular duties. (Exhibit 1, ACMR, p. 39).

The Court finds this to be speculative and unpersuasive.

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3. The amount of temporary disability benefit is $430.21 per week based on Employee's

average weekly wage of $645.32.

4. Payment of past due benefits in the amount of$6,330.38 shall be made for the period from

August 1, 2014 to November 12, 2014.

5. Employer or its workers' compensation insurance carrier shall continue to pay to Employee

temporary disability benefits in regular intervals until Employee is no longer eligible for

those benefits by reaching maximum medical improvement, by returning to work, or by

release without restrictions by the authorized treating physician. Employer's representative

shall notify the Division, Employee and Employee's counsel, if any, in writing immediately

by filing Form C-26 of Employer's intent to terminate temporary disability benefits, citing

the basis for the termination.

6. This matter is set for Initial Hearing on December 10, 2014 at 9 a.m.

7. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance with

this Order must occur no later than seven (7) business days from the date of entry of

this Order as required by Tennessee Code Annotated section 50-6-239(d)(3). The

Insurer or Self-Insured Employer must submit confirmation of compliance with this

Order to the Division by email to WCCompliance.Program@tn.gov no later than the

seventh (7th) business day after entry of this Order. Failure to submit the necessary

confirmation within the period of compliance may result in a penalty assessment for

non"7compliance.

8. For questions regarding compliance, please contact the Workers' Compensation Compliance

Unit via email WCCompliance.Program@tn.gov or by calling (615) 253-1471 or(615) 532-

1309.

ENTERED this the 12th day of November, 2014.

Kenneth M. Switzer, C

Court of Workers' Co

Initial Hearing:

An Initial Hearing has been set with Chief Judge Kenneth M. Switzer, Court ofWorkers

Compensation. You must dial in at 615-532-9552 or 866-943-0025 toll free at to participate in

your scheduled conference.

Please Note: You must call in on the scheduled date/time to participate. Failure to call in

may result in a determination of the issues without your further participation. All conferences

are set using Central Time (CT).

13

Right to Appeal:

Tennessee Law allows any party who disagrees with this Expedited Hearing Order to appeal the

decision to the Workers' Compensation Appeals Board. To file a Notice of Appeal, you must:

1. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal".

2. File the completed form with the Court Clerk within seven (7) business days of the date the

Expedited Hearing Order was entered by the Workers' Compensation Judge.

3. Serve a copy of the Request for Appeal upon the opposing party.

4. The parties, having the responsibility of ensuring a complete record on appeal, may request

from the Court Clerk the audio recording of the hearing for the purpose of having a transcript

prepared by a licensed court reporter and filing it with the Court Clerk within ten ( 10)

calendar days of the filing of the Expedited Hearing Notice of Appeal. Alternatively, the

parties may file a statement of the evidence within ten ( 10) calendar days of the filing of the

Expedited Hearing Notice of Appeal. The statement of the evidence must be approved by the

Judge before the record is submitted to the Clerk of the Appeals Board.

5. If the appellant elects to file a position statement in support of the interlocutory appeal, the

appealing party shall file such position statement with the Court Clerk within three (3)

business days of the filing of the Expedited Hearing Notice of Appeal, specifying the issues

presented for review and including any argument in support thereof. If the appellee elects to

file a response in opposition to the interlocutory appeal, appellee shall do so within three (3)

business days of the filing of the appellant's position statement.

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Expedited Hearing Order was sent to the

following recipients by the following methods of service on this the 12th day ofNovember, 2014.

Name Certified First Via Fax Via Email Address

Mail Class Fax Number Email

Mail

Keith Jordan, jordanlawoffice(mcomcast.net

Employee's attorney

Emil L. "Chip" cstore_yj(W,travelers.com

Storey,

Employer/Carrier's

attorney

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