The opinion
FILED
1\llay 25,.2016
1N COUKf OF
"ORKIRS ' COMPENSATION
CLAThlS
Time: 1:45PM
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT KNOXVILLE
JACK CARTER, ) Docket No.: 2015-03-0709
Employee, )
v. ) State File No.: 47080-2015
LABOR FINDERS OF TENNESSEE, )
INC., ) Judge Pamela B. Johnson
Employer, )
and )
SUNZ INSURANCE COMPANY, )
Carrier. )
)
EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS
This matter came before the undersigned Workers' Compensation Judge upon the
Request for Expedited Hearing filed by the Employee, Jack Carter, pursuant to Tennessee
Code Annotated section 50-6-239 (20 15). The central legal issue is whether Mr. Carter is
entitled to an evaluation by another physician. For the reasons set forth below, the Court
finds Mr. Carter provided sufficient evidence from which this Court concludes that he is
likely to prevail at a hearing on the merits. His request for a return appointment with Dr.
Shirley is granted at this time. 1
History of Claim
Mr. Carter is a forty-seven-year-old resident of Knox County, Tennessee. He
worked for Labor Finders of Tennessee, Inc. as a laborer. On June 18, 2015, while
raking dirt, Mr. Carter stepped on a clod of dirt and twisted his right knee. (T.R. 1; Exs.
1 and 2.) He reported the work incident to Labor Finders on the same day. (Ex. 2.)
On the date of injury, Mr. Carter treated with Dr. Grant Shirley at Nova Medical
Center and reported that "as he was raking dirt[,] he stepped on a clod of dirt[,] twisting
1
A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.
1
his right knee[,] reporting immediate pain followed shortly by pain [in his] right ankle."
(Ex. 4.) Dr. Shirley diagnosed "Right Int derangement knee NEC - Other internal
derangement of knee" and "Right Ankle and foot - Traumatic arthropathy." !d. He
prescribed physical therapy, prescription medication therapy, and a hinged knee support
and ankle brace. !d. The following day, June 19, 2015, Mr. Carter selected Nova
Medical Center from a panel of physicians. (Ex. 3.)
Mr. Carter continued to treat with Dr. Shirley and reported less discomfort in his
right ankle, but continued right knee pain without improvement, made worse with weight
bearing. !d. On July 1, 2015, he stated, "the knee is killing me" and "it pops behind the
knee." !d. Dr. Shirley recommended a consultation with an orthopedic specialist for the
right knee and right ankle. !d. While waiting for the orthopedist appointment, Mr. Carter
continued to see Dr. Shirley and completed physical therapy as ordered. !d.
Labor Finders provided Mr. Carter a panel of orthopedic physicians, and he
selected Dr. Michael T. Casey of Tennessee Orthopaedic Clinic. (Exs. 3 and 5.) Dr.
Casey evaluated Mr. Carter on August 14, 2015, for continued right knee pain. Mr.
Carter reported "difficulty getting up, twisting and turning aggravate[ d] his knee
symptoms." (Ex. 5.) "Due to persistent [sic] of symptoms and failure of conservative
measures," Dr. Casey recommended an MRI scan and the result was "essentially
negative." !d.; see also Ex. 6. Dr. Casey injected Mr. Carter's knee and instructed him to
follow up within a week. !d.
Mr. Carter returned to see Dr. Casey on September 10, 2015, and advised the
injection provided him "no relief." !d. In the office note, Dr. Casey stated:
At this point, I have discussed with him very clearly from a surgical
standpoint that I have nothing left to offer him. We will place him on some
Indocin which is an anti-inflammatory that he has not been on. At this
point, I have nothing further to offer. He is a maximum medical
improvement. No impairment and no restrictions. No need for followup.
!d.
Mr. Carter filed a Petition for Benefit Determination (PBD) for medical benefits,
stating, "The insurance company is closing the case after Dr. Casey couldn't find
anything surgurical [sic] to explain my pain even though I'm still in a lot of pain. Asking
for a second opinion." (See PBD.) The parties did not resolve the disputed issues
through mediation, and the Mediating Specialist filed a Dispute Certification Notice,
which noted, "Employer does not believe Employee is entitled to a second opinion. ATP
stated 'At this point I have nothing further to offer. He is at mmi. No impairment and no
restrictions. No need for followup. "' (See DCN.) Mr. Carter filed a Request for
Expedited Hearing (REH), and this Court heard the matter on May 5, 2016.
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At the Expedited Hearing, Mr. Carter testified he understood that Dr. Casey had
nothing further to offer him as a surgeon. After speaking with Dr. Casey at his last visit,
Mr. Carter testified he understood that he needed to find an orthopedic specialist and "go
from there." Mr. Carter contested Dr. Casey's statement in the office note concerning no
need for follow-up, arguing he clearly needed further care given Dr. Casey's prescription
of anti-inflammatories. Mr. Carter testified, "I just want my leg fixed to the way it was
before I was injured as best that it can be done." Labor Finders did not cross-examine
Mr. Carter.
At the conclusion of Mr. Carter's testimony and close of his proof, Labor Finders
moved for an involuntary dismissal of Mr. Carter's PBD under Rule 41 of the Tennessee
Rules of Civil Procedure. Labor Finders argued Mr. Carter's affidavit was insufficient to
demonstrate his entitlement to the relief sought. Labor Finders additionally argued that
Mr. Carter's REH did not comply with the statutory and rule requirements that an
affidavit and other information must accompany the REH and demonstrate entitlement to
the benefits sought. Labor Finders further argued that Mr. Carter is not entitled to a
second opinion pursuant to Tennessee Code Annotated section 50-6-204(a)(3)(C) (2015)
as the authorized treating physician, Dr. Casey, did not order a second opinion or
otherwise refer Mr. Carter for further evaluation pursuant to Tennessee Code Annotated
section 50-6-204(a)(3)(E) (20 15).
Mr. Carter responded to Labor Finders' motion for involuntary dismissal, arguing
that he is not looking for a second opinion with another surgeon for evaluation of whether
a surgical problem exists. Dr. Casey clearly stated from a surgical standpoint that he had
nothing further to offer Mr. Carter. However, Mr. Carter argued he does not want a
second opinion, but wants a follow-up evaluation with an orthopedic specialist or a return
visit with Dr. Shirley to see which treatment is available to fix his knee. Once the
surgeon stated he had nothing further to offer from a surgical standpoint, Mr. Carter
contended he was then entitled to an evaluation by another doctor to find out what was
wrong with his knee and fix it.
Findings of Fact and Conclusions of Law
Whether Labor Finders' Motion for Involuntary Dismissal Should Be Granted
This Court took Labor Finders' motion for involuntary dismissal under advisement
and advised the Court would set forth its finding in this Expedited Hearing Order. In
Burchfield v. Renfree, 2013 Tenn. App. LEXIS 685 (Tenn. Ct. App. Oct. 18, 2013), the
Court of Appeals reiterated the principles regarding directed verdicts:
The rule for determining a motion for directed verdict2 requires the trial
2
An involuntary dismissal is often referred to as a directed verdict in cases involving trials by jury. The standard of
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judge and the appellate courts to look to all of the evidence, take the
strongest, legitimate view of the evidence in favor of the opponent of the
motion and allow all reasonable inferences from it in his favor. The court
must disregard all countervailing evidence and if there is then any dispute
as to any material, determinative evidence or any doubt as to the
conclusions to be drawn from the whole evidence, the motion must be
denied. The court may grant the motion only if, after assessing the
evidence according to the foregoing standards, it determines that reasonable
minds could not differ as to the conclusions to be drawn from the evidence.
ld. at *86-87 (internal citations omitted).
In this case, the Court finds that reasonable minds can differ as to the conclusions
to be drawn from the evidence. Therefore an involuntary dismissal pursuant to Rule 41 is
not warranted. Accordingly, the Court denies Labor Finders' motion for involuntary
dismissal.
Whether Mr. Carter is Entitled to Evaluation by Another Physician
Mr. Carter bears the burden of proof on all essential elements of his workers'
compensation claim. Scott v. Integrity Staffing Solutions, No. 2015-01-0055, 2015 TN
Wrk. Comp. App. Bd. LEXIS 24, at *6 (Tenn. Workers' Comp. App. Bd. Aug. 18, 2015).
Mr. Carter need not prove every element of his 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, Mr. Carter
has the burden to come forward with sufficient evidence from which the trial court can
determine that he is likely to prevail at a hearing on the merits. !d.
Mr. Carter seeks an evaluation by another physician. Under the Workers'
Compensation Law, an employer shall furnish, free of charge to the injured employee,
such medical treatment made reasonably necessary by the work incident. See Tenn. Code
Ann. § 50-6-204(a)(l )(A) (20 15). The injured employee shall accept the medical
benefits, provided that the employer shall designate a group of three or more independent
reputable physicians, surgeons, chiropractors, or specialty practice groups, from which
the injured employee shall select one to be the treating physician. See Tenn. Code Ann. §
50-6-204(a)(3)(A)(i) (2015).
The treating physician selected from the panel shall make referrals when necessary
to a specialist physician, surgeon, or chiropractor. See Tenn. Code Ann. § 50-6-
review applied is the same for involuntary dismissals in nonjury cases as the standard of review applied in direct
verdicts in jury cases.
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204(a)(3)(A)(ii) (2015). The employer shall be deemed to have accepted the referral
unless, within three days of the referral, the employer provides a panel of three or more
independent reputable physicians, surgeons, chiropractors or specialty practice groups.
!d.
When the treating physician refers the injured employee, the injured employee
shall be entitled to have a second opinion on the issue of surgery and diagnosis from a
one of the two remaining specialists listed on the panel of specialists previously provided.
See Tenn. Code Ann.§ 50-6-204(a)(3)(C) (2015).
In all cases where the treating physician has referred the injured employee to a
specialist physician, surgeon, chiropractor or specialty practice group, the specialist shall
become the treating physician until treatment by the specialist concludes and the injured
employee has been referred back to the treating physician selected by the employee from
the initial panel provided by the employer. See Tenn. Code Ann. § 50-6-204(a)(3)(E)
(2015).
In the present case, the evidence indicates Labor Finders authorized Mr. Carter to
see first Dr. Shirley and then Dr. Casey, both of whom Mr. Carter selected from a panel
of physicians. Upon release from Dr. Casey, Mr. Carter requested a second opinion,
which Labor Finders denied.
The issue before this Court is whether Mr. Carter is entitled to an evaluation by
another physician. During the Expedited Hearing, Mr. Carter argued he is not seeking a
second opinion and evaluation by another surgeon, but requested an evaluation with an
orthopedist or the opportunity to return to see Dr. Shirley. Because Mr. Carter stated he
was not seeking a second opinion, this Court will not address whether Mr. Carter is
entitled to a second opinion pursuant to section 50-6-204(a)(3)(C) concerning diagnosis
or surgery. As to entitlement to an evaluation by another physician, this Court finds that
Dr. Casey did not expressly refer Mr. Carter to an orthopedist for further evaluation as
required by statute. Accordingly, this Court denies Mr. Carter's request for an evaluation
by an orthopedist.
However, this Court finds Mr. Carter is entitled to a return appointment with Dr.
Shirley. The purpose of the Workers' Compensation Law is to provide medical and
disability benefits to an injured employee who sustains an injury arising primarily out of
and in the course and scope of his employment. Although Dr. Casey opined he has
nothing further to offer Mr. Carter from a surgical standpoint and ordered no follow up
treatment, this opinion does not preclude Mr. Carter from receiving further medical
treatment made reasonably necessary by the work incident. Such a finding would
frustrate the purpose of the Workers' Compensation Law. See Tenn. Code Ann. §§ 50-6-
103(a) and 50-6-204(a)(l)(A) (2015).
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Therefore, as a matter of law, this Court concludes Mr. Carter provided sufficient
evidence from which this Court concludes that he is likely to prevail at a hearing on the
merits. His request for a return appointment with Dr. Shirley is granted at this time.
IT IS, THEREFORE, ORDERED as follows:
1. Medical care for Mr. Carter's injuries shall be paid and Labor Finders of
Tennessee, Inc., or its workers' compensation carrier shall provide Mr. Carter with
medical treatment for these injuries as required by Tennessee Code Annotated
section 50-6-204 (2015), to be provided by Labor Finders of Tennessee, Inc. or its
workers' compensation carrier providing Mr. Carter with a return appointment
with Dr. Shirley as required by that statute. Mr. Carter or the medical providers
shall furnish medical bills to Labor Finders of Tennessee, Inc. or its workers'
compensation carrier.
2. This matter is set for an Initial (Scheduling) Hearing on August 3, 2016, at 9:30
a.m. Eastern Time.
3. 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)
(2015). 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.
4. For questions regarding compliance, please contact the Workers' Compensation
Compliance Unit by email at W ompliancc.Program@tn.gov or by telephone at
(615) 253-1471 or (615) 532-1309.
ENTERED this the 25th day of May, 2016.
]f~---
i,_.n-J
HON. PAMELA B. JOHNSON
Workers' Compensation Judge
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Ini tia l (Schedulin g) Hearin g:
An Initial (Scheduling) Hearing has been set with Judge Pamela B. Johnson, Court
of Workers' Compensation Claims. The parties must call 865-594-009lor 855-543-5041
toll free to participate in the Initial Hearing. Failure to appear by telephone may result in
a determination of the issues without your further participation.
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 Indigency
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 joint statement of
the evidence within ten calendar days of the filing of the Expedited Hearing
Notice of Appeal. The statement of the evidence must convey a complete and
accurate account of what transpired in the Court of Workers' Compensation
Claims and must be approved by the Workers' Compensation Judge before the
record is submitted to the Clerk of the Appeals Board.
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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
five 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 five business days of the filing of the 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.
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APPENDIX
Technical Record:
• Petition for Benefit Determination, filed November 4, 2015;
• Dispute Certification Notice, filed November 18, 2015;
• Request for Expedited Hearing, issued December 7, 2015;
• Show Cause Order, issued February 11, 2016;
• Request for Expedited Hearing with Affidavit, filed February 11, 20 16; and
• Order, issued March 31, 2016.
The Court did not consider attachments to Technical Record filings unless
admitted into evidence during the Expedited Hearing. The Court considered factual
statements in these filings or any attachments to them as allegations unless established by
the evidence.
Exhibits:
• EXHIBIT 1: Affidavit of Jack Carter;
• EXHIBIT 2: First Report of Work Injury, Form C-20;
• EXHIBIT 3: Panels of Physicians, Form C-42;
• EXHIBIT 4: Medical Records of Nova Medical Center;
• EXHIBIT 5: Medical Records of Dr. Michael T. Casey, Tennessee Orthopedic
Clinic;
• EXHIBIT 6: MRI Report of Outpatient Diagnostic Center of Knoxville; and
• EXHIBIT 7: Stipulations of the Parties.
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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 25th day
ofMay, 2016.
Name Certified Fax Email Service sent to:
Jack Carter, X X Jack Carter
Self-Represented 7621 H. Old Clinton Pike
Employee Powell, TN 37847
Jack c 37849~yahoo.com
Michael J. Mollenhour, X mike@mollenour.com
Esq.,
Employer's Attorney
SHRUM, Court Clerk
.CourtCierl<@tn.gov
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