The opinion
FILED
September 24, 2015
TX COl."RTOF
WORKERS' C O~IPE:\" SATIO:\"
CLAD I S
Time: 2:45 Pl\f
COURT OF WORKERS' COMPENSATION CLAIMS
AT MEMPHIS
Sarah Kaye Mcintosh, ) Docket No.: 2015-08-0106
Employee, )
v. ) State File No.: 24706-2015
)
Randstad, ) Date of Injury: March 23, 2015
Employer, )
and ) Judge Jim Umsted
)
ESIS, )
Insurance Carrier. )
EXPEDITED HEARING ORDER CONTINUING BENEFITS PREVIOUSLY
ORDERED AND DENYING MOTION TO TERMINATE BENEFITS
THIS CAUSE came before the undersigned Workers' Compensation Judge on
September 9, 2015, upon the Motion to Terminate Benefits and Request for Expedited
Hearing filed by Randstad, the Employer, on August 14, 2015. Randstad requests that
the Court determine whether it is obligated to continue providing medical and/or
temporary disability benefits as ordered by the Court on July 13,2015.
The undersigned Workers' Compensation Judge conducted an in-person Motion to
Terminate Benefits and Expedited Hearing on September 9, 2015. Considering the
positions of the parties, the applicable law, and all of the evidence submitted, the Court
concludes that Randstad is obligated to continue providing the benefits ordered on July
13, 2015.
ANALYSIS
Issues
At the hearing on Randstad's motion, the parties agreed the following issues
should be addressed:
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1. Whether Ms. Mcintosh's claim for injuries is compensable.
2. Whether Rands tad has complied with the Court's order dated July
15, 2015.
3. Whether Dr. Alday is an authorized physician pursuant to statute
and the Court's order ofJuly 13, 2015.
4. Whether Dr. Alday's medical opinion on causation is entitled to a
statutory presumption of correctness.
5. Whether the Court should terminate the benefits ordered on July 13,
2015.
6. Whether the Court should order Ms. Mcintosh to reimburse
Rands tad for benefits already paid.
Evidence Submitted
The Court admitted into evidence the following exhibits:
Exhibit 1: Form C-42 "Agreement Between Employer/Employee Choice of
Physician;"
Exhibit 2: Medical Records of Campbell Clinic Orthopaedics;
Exhibit 3: Medical Records ofDr. Ronald Terhune; and
Exhibit 4: Affidavit of Christie Hays, attorney for Randstad.
The Court marked the following exhibits for identification only:
Exhibit 5: Unsigned letter from Randstad to Ms. Mcintosh dated April 8, 2015;
and
Exhibit 6: Unsigned letter from Randstad to Ms. Mcintosh dated August 10,
2015.
The Court allowed the parties to file the affidavit of Dr. David L. Cannon after the
conclusion of the hearing on September 9, 2015, and admitted the affidavit into evidence,
as follows:
Exhibit 7: Affidavit of Dr. David L. Cannon.
The Court designated the following as the technical record:
• Petition for Benefit Determination (PBD), filed April16, 2015;
• Dispute Certification Notice (DCN), filed May 28, 2015;
• Expedited Hearing Order, filed July 13, 2015;
• Request for Expedited Hearing, filed August 14, 2015; and
• Motion for Termination of Benefits (with attachments), dated August 14,
2015.
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The Court did not consider attachments to the above filings unless admitted into
evidence during the Expedited Hearing. The Court considered factual statements in the
above filings or any attachments thereto as allegations unless established by the evidence.
Ms. Mcintosh provided in-person testimony.
History of Claim
Ms. Mcintosh claimed she injured her wrists on March 23, 2015, after filing
thousands of files over a period of a few days. Randstad provided authorized treatment
with Baptist Minor Medical Center (BMMC), where the doctor diagnosed "acute carpal
tunnel syndrome" and referred Ms. Mcintosh to an orthopedic specialist. BMMC also
placed work restrictions on Ms. Mcintosh as of April 1, 2015. Randstad accommodated
Ms. Mcintosh's light-duty work status until April 10, 2015. Randstad did not
accommodate her work restrictions after that date. Ms. Mcintosh filed a Request for
Expedited Hearing, and on July 13, 2015, the Court issued an Order finding Ms.
Mcintosh presented sufficient evidence to conclude she would likely prevail at a trial on
the merits. Accordingly, the Court ordered Randstad to provide a panel of orthopedic
surgeons for evaluation and/or treatment of the injury of March 23, 2015. The Court also
ordered Randstad to pay Ms. Mcintosh past and ongoing temporary disability benefits.
Pursuant to the Court's order, Randstad provided a panel of orthopedic surgeons
consisting of Dr. David L. Cannon at Campbell Clinic, Dr. W. Lee Moffatt at East
Memphis Orthopedic Group, and Dr. Riley Jones at Memphis Orthopedic Group. On
July 20, 2015, Ms. Mcintosh selected, "Dr. David L. Cannon" as her authorized
physician.
Randstad scheduled an appointment for Ms. Mcintosh to see Dr. Cannon on
August 3, 2015. Ms. Mcintosh testified that, on the morning of August 3, she received a
telephone call from staff at Campbell Clinic, who told her Dr. Cannon would not see her.
Instead, Dr. Michael Alday, an occupational medicine physician at Campbell Clinic,
would see her. The affidavit of Dr. Cannon explained that his policy is to refer new
patients with alleged work-related injuries to an occupational medicine physician for an
evaluation. Dr. Cannon noted he would only see the patient if the occupational medicine
physician determines the injury is work-related. In this case, Dr. Cannon never
personally saw Ms. Mcintosh and, instead, referred her to Dr. Alday for evaluation.
Ms. Mcintosh went to the medical appointment with Dr. Alday on August 3, 2015.
She testified Dr. Alday performed a physical examination and x-rayed her wrists. Dr.
Alday reported Ms. Mcintosh's chief complaint was bilateral wrist and hand pain, which
Ms. Mcintosh said began on March 23, 2015, after six days of increased workload
pulling heavy folders. He reported that, in his opinion, her symptoms were not likely the
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result of any employment-related activity. He could not state whether she had carpal
tunnel syndrome without confirmation by electrodiagnostic studies. This test was not
performed. He opined that highly repetitive work, such as work performed in an
assembly plant, caused "advanced carpal tunnel syndrome," and individuals in a clerical
setting were not routinely at high risk for developing repetitive motion injuries. He
opined her employment at Randstad did not contribute more than fifty percent to her
current symptoms. In his report, Dr. Alday described himself as "a board certified
occupational medicine physician."
Ms. Mcintosh's Contentions
Ms. Mcintosh contends her carpal tunnel condition is a compensable, work-related
injury. She is requesting a panel of orthopedic physicians for treatment. She has not
worked since April 10, 2015, and remains unable to work because of her injury.
Consequently, she also requests an award of temporary disability benefits.
Randstad's Contentions
Randstad contends the claim is not compensable. Dr. Alday opined he did not
believe Ms. Mcintosh's injury arose "primarily out of and in the course and scope of
employment" as required by Tennessee Code Annotated section 50-6-102(13) (2014).
Randstad further contends it complied with the Court's order by paying temporary
disability benefits and providing a panel of orthopedic surgeons. According to Randstad,
Dr. Alday should be an authorized treating physician because Dr. Cannon, the physician
selected by Ms. Mcintosh from the panel, referred her to him. Furthermore, Randstad
argues the Court should presume Dr. Alday's opinion on causation is correct because he
is an authorized treating physician. Finally, Randstad asserts that, because Ms.
Mcintosh's claim is not compensable, the Court should terminate its order for benefits,
and require Ms. Mcintosh to refund the benefits already paid.
Findings of Fact and Conclusions of Law
Standard Applied
The Workers' Compensation Law shall not be remedially or liberally construed in
favor of either party but shall be construed fairly, impartially and in accordance with
basic principles of statutory construction favoring neither the employee nor
employer. Tenn. Code Ann. § 50-6-116 (20 14 ). An employee need not prove every
element of his or her claim by a preponderance of the evidence in order to obtain relief at
an expedited hearing. McCord v. Advantage Human Resourcing, No. 2014-06-0063,
2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Tenn. Workers' Comp. App. Bd.
Mar. 27, 2015). At an expedited hearing, an employee has the burden to come forward
with sufficient evidence from which the trial court can determine that the employee is
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likely to prevail at a hearing on the merits. !d.
Factual Findings
On July 13, 2015, the Court ordered Randstad to provide a panel of orthopedic
surgeons for evaluation and/or treatment of the March 23, 2015 injury. Randstad
provided a panel of orthopedic surgeons, and Ms. Mcintosh selected Dr. Cannon at
Campbell Clinic. Ms. Mcintosh was supposed to see Dr. Cannon, Campbell Clinic;
however, Campbell Clinic informed her she would see Dr. Alday, an occupational
medicine specialist, instead. Dr. Alday reported that, in his opinion, Ms. Mcintosh's
injury is not compensable, and her work did not contribute more than fifty percent to her
symptoms. Ms. Mcintosh has not returned to work and has not been examined by an
orthopedic surgeon, as ordered by the Court.
Application ofLaw to Facts
For injuries on or after July 1, 2014, an employee must show that her injury arose
primarily out of and in the course and scope of employment. Tenn. Code Ann. § 50-6-
102(13) (2014). "Arising primarily out of and in the course and scope of employment"
requires a showing, to a reasonable degree of medical certainty, that the injury causing
disablement or the need for medical treatment contributed more than fifty percent
considering all causes. Tenn. Code Ann. § 50-6-102(13)(B) (2014). "'Shown to a
reasonable degree of medical certainty' means that, in the opinion of the treating
physician, it is more likely than not considering all causes, as opposed to speculation or
possibility." Tenn. Code Ann.§ 50-6-102(13)(D) (2014).
On July 13, 2015, the Court ordered Randstad to provide a panel of orthopedic
surgeons, compliant with Tennessee Code Annotated section 50-6-204(a)(3) (2014), for
evaluation and/or treatment ofthe injury of March 23, 2015. Tennessee Code Annotated
section 50-6-204(a)(3)(A)(i) provides that a panel includes "a group of three (3) or more
independent reputable physicians, surgeons, chiropractors or specialty practice groups."
The Court's order limited the panel to orthopedic surgeons. Randstad initially complied
with the Court's order by providing a panel of orthopedic surgeons. However, Dr.
Cannon, the physician selected from the panel, refused to see Ms. Mcintosh. Instead, Dr.
Alday, an occupational medicine specialist, examined her.
Randstad contends Dr. Alday is an authorized treating physician, since Dr. Cannon
referred Ms. Mcintosh to him. Tennessee Code Annotated section 50-6-204(a)(3)(A)(ii)
provides, "[w]hen 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." This Court finds, however, that Dr.
Cannon was not a treating physician as described by this statute. While Ms. Mcintosh
selected Dr. Cannon from a valid panel, he declined to treat her. Accordingly, Tennessee
Code Annotated section 50-6-204(a)(3)(G) applies. Pursuant to this section:
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If any physician, surgeon, chiropractor or specialty practice group included
on a panel provided to an employee under this subsection declines to accept
the employee as a patient for the purpose of providing treatment to the
employee for his workers' compensation injury, the employee may either
select a physician from the remaining physicians, surgeons or chiropractors
included on the initial panel provided to the employee pursuant to
subdivision (a)(3)(A) or request that the employer provide an additional
choice of a physician, surgeon, chiropractor or specialty practice group to
replace the physician, surgeon or chiropractor who refused to accept the
injured employee as a patient for the purpose of treating the employee's
workers' compensation injury.
Tenn. Code Ann. § 50-6-204(a)(3)(G) (2014). According to this statute, Randstad should
have allowed Ms. Mcintosh to either choose one of the remaining physicians listed on the
panel, or request another orthopedic surgeon to replace Dr. Cannon on the panel. Neither
of these options was given to Ms. Mcintosh. Furthermore, to find that Dr. Alday is Ms.
Mcintosh's authorized treating physician based on Dr. Cannon's "referral" would allow a
physician to circumvent the Court's order, which concluded that the law entitled Ms.
Mcintosh to examination and/or treatment from an orthopedic surgeon. Consequently,
the Court finds that Dr. Alday is not an authorized treating physician pursuant to
Tennessee Code Annotated section 50-6-204(a)(3)(A).
Tennessee Code Annotated section 50-6-102(13)(E) (2014) provides, "[t]he
opinion of the treating physician, selected by the employee from the employer's
designated panel of physicians pursuant to§ 50-6-204(a)(3), shall be presumed correct on
the issue of causation but this presumption shall be rebuttable by a preponderance of the
evidence." Having found that Dr. Alday is not an authorized treating physician in this
case, his opinion on causation carries no presumption of correctness. However, his
opinion is entitled to consideration. A careful review of Dr. Alday's opinion shows he
did not believe Ms. Mcintosh's work contributed more than fifty percent to her
symptoms. However, he did not explain how he reached that conclusion. He did not
point to any specific causes other than work that could have caused her current
symptoms. His only explanation was that highly repetitive work, such as work
performed in an assembly plant, caused "advanced carpal tunnel syndrome," and
individuals in a clerical setting were not routinely at high risk for developing repetitive
motion injuries. Using this logic, no claims alleging clerical work caused carpal tunnel
syndrome would ever be compensable. The Court declines to adopt that reasoning.
Furthermore, Dr. Alday did not address the initial diagnosis of "acute carpal tunnel
syndrome" made at BMMC, but instead, concentrated on a discussion of repetitive
motion injury.
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Having considered all of the above, the Court finds the benefits previously ordered
are not terminated, temporary partial disability benefits shall continue to be paid, and Ms.
Mcintosh remains entitled to a panel of orthopedic surgeons as previously ordered.
IT IS, THEREFORE, ORDERED as follows:
1. Randstad's Motion to Terminate Benefits is denied.
2. Randstad shall allow Ms. Mcintosh to select an orthopedic surgeon pursuant to
Tennessee Code Annotated section 50-6-204(a)(3)(G) (2014) for evaluation and/or
treatment of the injury of March 23, 2015. Randstad shall replace Dr. Cannon on
the previous orthopedic panel and provide this new panel to Ms. Mcintosh.
3. As previously ordered, Randstad shall continue TPD payments to Ms. Mcintosh
until she is either placed at MMI or able to work at a job enabling her to earn a
wage equal to or better than that earned at the time of injury.
4. This matter is set for Initial Hearing on October 28, 2015, at 9:00 a.m. Central
Time.
5. Unless 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) (2014). The Insurer or Self-Insured
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 the
necessary confirmation within the period of compliance may result in a
penalty assessment for non-compliance.
6. For questions regarding compliance, please contact the Workers' Compensation
Compliance Unit via email WCC mpliance.Program@tn.gov or by calling (615)
253-1471 or (615) 532-1309.
ENTERED this the 24th day of Septemb:::...;;e~---..
Jim Umsted, Judge
Court of Workers' Compensation Claims
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Initial I earing:
An Initial Hearing has been set with Judge Jim Umsted, Court of Workers
Compensation Claims. You must dial in at 866-943-0014 toll free 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).
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 business days of the
date the Workers' Compensation Judge entered the Expedited Hearing Order.
3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.
4. The appealing party is responsible for payment of a filing fee in the amount of
$75.00. Within ten calendar days after the filing of a notice of appeal, payment
must be received by check, money order, or credit card payment. Payments can be
made in person at any Bureau office or by United States mail, hand-delivery, or
other delivery service. In the alternative, the appealing party may file an Affidavit
of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
will consider the Affidavit of Indigency and issue an Order granting or denying
the request for a waiver of the filing fee as soon thereafter as is
practicable. Failure to timely pay the filing fee or file the Affidavit of
Indigencv in accordance with this section shall result in dismissal of the
appeal.
5. 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 calendar days of the filing of the Expedited
Hearing Notice of Appeal. Alternatively, the parties may file a statement of the
evidence within ten calendar days of the filing of the Expedited Hearing Notice of
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Appeal. The Judge must approve the statement of the evidence before the Court
Clerk may submit the record to the Clerk of the Appeals Board.
6. If the appellant elects to file a position statement in support of the interlocutory
appeal, the appellant shall file such position statement with the Court Clerk within
three business days of the expiration of the time to file a transcript or statement of
the evidence, specifying the issues presented for review and including any
argument in support thereof. A party opposing the appeal shall file a response, if
any, with the Court Clerk within three business days of the filing ofthe appellant's
position statement. All position statements pertaining to an appeal of an
interlocutory order should include: (1) a statement summarizing the facts of the
case from the evidence admitted during the expedited hearing; (2) a statement
summarizing the disposition of the case as a result of the expedited hearing; (3) a
statement of the issue(s) presented for review; and (4) an argument, citing
appropriate statutes, case law, or other authority.
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 24th day
of September, 2015.
Name Certified First Via Fax Via Email Address
Mail Class Fax Number Email
Sarah Mcintosh X justka~e44@ao l.com
Blair B. Evans, Esq. X bevans@bakerdonelson.com
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Court o Workers' Compensation Claims
WC.CourtClerk@tn.gov
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