The opinion
August 1, 2016
1N COURT OF
WORKIRS' CO!\.IP[NSATION
CLAThlS
Time 11:1.1 AM
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT CHATTANOOGA
JOSHUA JOHNSON ) Docket No.: 2015-01-0098
Employee, )
v. ) State File No.: 3532-2015
FAMILY DOLLAR STORES, INC. )
Employer, ) Judge Audrey A. Headrick
And )
INDEMNITY INS. CO. OF NORTH )
AMERICA )
Insurance Carrier. )
EXPEDITED HEARING ORDER DENYING
REQUESTED MEDICAL BENEFITS
This matter came before the Court on July 7, 2016, on a Request for Expedited
Hearing filed by the employee, Joshua Johnson, pursuant to Tennessee Code Annotated
section 50-6-239 (20 15). The present focus of this case is whether Family Dollar Stores,
Inc. (Family Dollar) is required to pay for past and ongoing psychiatric treatment that he
sought on his own and, if so, whether his attorney is entitled to attorney fees. The central
legal issue is whether Mr. Johnson is likely to prevail at a hearing on the merits of these
issues. For the reasons set forth below, the Court finds Mr. Johnson is unlikely to prevail
at a hearing on the merits in proving entitlement to past and future psychiatric treatment
based on the evidence presented at this time. 1 Accordingly, the issue of whether Mr.
Johnson's attorney is entitled to attorney fees is moot for purposes of this expedited
hearing.
History of Claim
This case involves an incident that occurred on January 14, 2015, when a
shoplifter in Family Dollar stabbed Mr. Johnson, an assistant manager, in the throat. The
1
A complete listing of the technical record and exhibits is attached to this Order as an appendix.
parties stipulated that Mr. Johnson received authorized medical treatment from Erlanger
Medical Center (Erlanger) and Dr. Phillip Smith. Although the patiies agree that neither
Erlanger nor Dr. Smith referred Mr. Johnson for psychiatric treatment, he alleges he
developed post-traumatic stress disorder (PTSD) due to the January 14, 2015 stabbing
incident.
After an ambulance transported Mr. Johnson to Erlanger, the medical evidence
indicated he provided a past medical history to his providers. (Ex. 5.) Specifically, under
"Past Medical History," it identifies "ptsd" regarding Mr. Johnson's psychiatric history in
two different areas of the record. I d. The record reflects that the past medical history
information was obtained and entered into his chart at 18:09, on January 14, 2015, the
date of the stabbing incident. ld.
Erlanger admitted Mr. Johnson on January 14, 2015, and he remained
hospitalized through January 20, 2015, for observation of esophageal injuries. I d.
During his hospitalization, Mr. Johnson testified he told Dr. Smith and some nurses of an
inability to sleep unless heavily sedated, nightmares of seeing his own funeral, and a fear
of leaving his room However, the record is silent as to Mr. Johnson reporting those
symptoms to anyone. The Discharge Summary addressed Mr. Johnson's laceration and
stated "[ n]o other issues noted." I d. Mr. Johnson allegedly reported his symptoms to
Amy Harvey, his store manager; Glen Moregain, his general manager; and Kelly Stanley,
his nurse case manager. He indicated the response given to him by everyone was that the
immediate concern was for him to get better physically.
Upon his discharge from Erlanger, Mr. Johnson saw Dr. Smith for follow-up on
two occasions. (Ex. 4.) During the first visit, although unrelated to his stab wound, Dr.
Smith noted that Mr. Johnson complained of right ear pain. I d. Dr. Smith examined his
ear, prescribed Neosporin Otic Solution, and advised him to see his primary care
physician if the problem did not resolve in five days. I d. At the second visit, Dr. Smith
noted Mr. Johnson "has no complaints." ld. Dr. Smith opined Mr. Johnson did "not need
any further follow-up." ld.
Mr. Johnson testified he discussed his psychiatric symptoms with Dr. Smith at his
post-discharge appointments: Specifically, he stated he reported to Dr. Smith his
inability to sleep, nightmares, and anxiety. When completing Dr. Smith's New Patient
Information form, Mr. Johnson did not disclose his past psychiatric history of PTSD. Id.
However, he did check the "yes" boxes regarding nervousness, depression, and problems
sleeping. ld. Upon asking Dr. Smith for help regarding his psychiatric symptoms, Mr.
Johnson stated Dr. Smith referred him to Ms. Stanley, his nurse case manager, and Mary
Strumbach, his adjuster. However, Dr. Smith's record is silent regarding any discussion
with Mr. Johnson concerning psychiatric symptoms.
Mr. Johnson subsequently obtained psychiatric treatment on his own and saw Dr.
2
Erica Skidmore, a licensed clinical psychologist, who regularly treats patients with
PTSD. Dr. Skidmore testified she diagnosed Mr. Johnson with PTSD based upon the
traumatic event in which his life was threatened as well as his symptoms of almost
nightly nightmares, difficulty sleeping, flashbacks, anxiety, and daily panic attacks? She
also stated Mr. Johnson found it extremely difficult being at work and had an inability to
go into public places. When asked about causation of Mr. Johnson's PTSD, Dr.
Skidmore opined that the stabbing incident was "undoubtedly the cause of his PTSD."
Dr. Skidmore also testified that Mr. Johnson had no prior history of PTSD. 3 (Ex. 5; Ex.
2.) During the expedited hearing, Mr. Johnson stated he "was not this way before [the
January 14, 2015 incident]." Regarding Mr. Johnson's past psychiatric treatment and his
need for ongoing treatment, Dr. Skidmore stated the treatment was reasonable and
medically .necessary. Dr. Skidmore acknowledged that she did not contact Family
Dollar's workers' compensation carrier to request authorization for Mr. Johnson's
treatment.
Mr. Johnson argued he is entitled to the psychiatric treatment that he sought on his
own with Dr. Skidmore. He relied on Taylor v. Airgas Mid-South, Inc., No. W2012-
00621-WC-R3-WC, 2013 Tenn. LEXIS 304, at *5-8 (Tenn. Workers' Comp. Panel Feb.
26, 2013), and Robertson Co. Bd. of Educ. v. Knight, No. M2001-00516-WC-R3-CV,
2002 Tenn. LEXIS 166, at *7-8 (Tenn. Workers' Comp. Panel April 2, 2001), to support
the following contentions: (1) He was justified in obtaining the unauthorized treatment
because he told his medical providers about his PTSD symptoms, and no one addressed
it; and, (2) Dr. Skidmore's testimony establishes that the unauthorized medical treatment
he received was reasonable and necessary. Mr. Johnson further argued his unrefuted and
uncontradicted testimony is that he reported his psychiatric problem to Dr. Smith, his
district manager, and his nurse case manager. Additionally, Mr. Johnson requested
payment of attorney fees in relation to the disputed psychiatric treatment.
Family Dollar argued the Court must deny Mr. Johnson's request for payment of
his unauthorized psychiatric treatment. Relying upon Tennessee Code Annotated section
50-6-204(h) (20 15), it contended the statute requires the treating physician to refer the
employee for psychological and psychiatric treatment before an employee is entitled to
such care. Family Dollar pointed out that Dr. Smith, the treating physician, never
referred Mr. Johnson to a psychiatrist or psychologist, and the medical records do not
establish that Mr. Johnson ever complained about an alleged, work-related mental injury.
It pointed out that Dr. Smith specifically made a referral for Mr. Johnson to see his
primary care physician regarding his complaint of right ear pain, yet he failed to
reference that Mr. Johnson made any psychiatric complaints and did not refer him to a
2
Mr. Johnson testified he previously served in the military. However, there is no mention that he disclosed that
information to Dr. Skidmore.
3
Although Mr. Johnson did disclose to Dr. Skidmore that he had smoked marijuana two to three times per day for
the past seven years, he circled "never" when asked about drug usage on Dr. Smith's New Patient Information form.
(Ex. 2; Ex. 3.)
3
specialist. Pursuant to Lalla v. Marion Environmental, Inc., No. 2015-06-0287, 2015 TN
Wrk. Camp. App. Bd. LEXIS 32, at *10 (Tenn. Workers' Camp. App. Bd. Sept. 4,
20 15), it further argued the Court is without authority at this interlocutory stage to award
attorney's fees.
Mr. Johnson filed a Petition for Benefit Determination on February 12, 20 16,
seeking medical benefits in relation to his unauthorized psychiatric treatment. The
parties did not resolve the disputed issues through mediation, and the mediator filed a
Dispute Certification Notice on March 15, 2016. Mr. Johnson filed a Request for
Expedited Hearing, and this Court heard the matter on July 7, 2016.
Findings of Fact and Conclusions of Law
Mr. Johnson has the burden of proof on all essential elements of a workers'
compensation claim. Scott v. Integrity Staffing Solutions, No. 2015-01-0055, 2015 TN
Wrk. Camp. App. Bd. LEXIS 24, at *6 (Tenn. Workers' Camp. App. Bd. Aug. 18, 2015).
He is not required to 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. Camp. App. Bd. LEXIS 6, at *7-8, 9
(Tenn. Workers' Camp. App. Bd. Mar. 27, 2015). At an expedited hearing, Mr. Johnson
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.
The following general principles govern adjudication of this proceeding. In order
for an injury to be compensable, it must be accidental. Under the Tennessee Workers'
Compensation Law, 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." Tenn. Code Ann. §
50-6-102(14)(A) (2015). Mr. Johnson must show, to a reasonable degree of medical
certainty, that the incident "contributed more than fifty percent (50%) in causing the ...
disablement or need for medical treatment, considering all causes." Tenn. Code Ann. §
50-6-1 02(14 )(C) (20 15). Likewise, an aggravation of a pre-existing condition is
compensable only if "it can be shown to a reasonable degree of medical certainty that the
aggravation arose primarily out of and in the course and scope of employment." Tenn.
Code Ann. § 50-6-102(14)(A) (2015). The legislature defined "[s]hown to a reasonable
degree of medical certainty" to mean the physician must opine "it is more likely than not
considering all causes, as opposed to speculation or possibility." Tenn. Code Ann. § 50-
6-102(14)(D) (2015).
The Court respectfully disagrees with Mr. Johnson's assertion that his testimony
about telling Dr. Smith and other individuals that he was experiencing PTSD symptoms
is "unrefuted" and "uncontradicted." Instead, based upon the evidence presented, the
Court finds Mr. Johnson's testimony is not credible regarding the circumstances
4
surrounding his PTSD diagnosis. On the date he was injured and admitted for emergency
treatment at Erlanger, Mr. Johnson disclosed, under "Past Medical History," a past
psychiatric history of PTSD. (Ex. 5.) (Emphasis added.) The records admitted from
Erlanger and from Dr. Smith not only are silent as to Mr. Johnson making any such
complaints or exhibiting such symptoms, but they are also silent as to any discussions
indicating that he requested psychiatric treatment. Erlanger's discharge summary
indicated there were "[n]o other issues noted" besides Mr. Johnson's throat injury. (Ex.
5.) There is no mention by Dr. Smith of any complaints or discussions regarding PTSD
symptoms. The Court questions Mr. Johnson's credibility that he reported the PTSD
symptoms to Erlanger nurses or to Dr. Smith since the records do not reflect that he did
so. Further, Dr. Smith documented Mr. Johnson's complaints of right ear pain and
referred him to see his primary care physician if needed, yet he made no mention of any
PTSD complaints. Therefore, the Court finds that the discrepancies that exist within the
medical records refute and contradict Mr. Johnson's testimony.
Additionally. Mr. Johnson made a material mission in the information he ga to
Dr. Skidmore. He fa il ed to disclose to Dr. Skidmore his pre-existing PT D condition. 4
Conversely, Mr. Johnson testified before this Court that he "was not this way before [the
January 14, 2015 incident]." Therefore, based on the foregoing reasons, the Court finds
that Dr. Skidmore's opinion is not reliable, since the underlying facts that support her
testimony stem from the incomplete history provided by Mr. Johnson.
With those findings in mind, the Court will address whether Mr. Johnson would
likely prevail at a hearing on the merits that he is entitled to psychiatric treatment with
Dr. Skidmore based on the medical proof presented. The Workers' Compensation
Appeals Board provided direction regarding the requirements an employee with pre-
existing conditions must satisfy in order to qualify for medical benefits at an interlocutory
hearing:
In sum, to qualify for medical benefits at an interlocutory hearing, an
injured worker who alleges an aggravation of a pre-existing condition must
offer evidence that the aggravation arose primarily out of and in the course
and scope of employment. See Tenn. Code Ann. § 50-6-102(13)(A)
(20 14 ). Moreover, the employee must come forward with sufficient
evidence from which the trial court can determine that the employee would
likely establish, to a reasonable degree of medical certainty, that the work
accident contributed more than fifty percent in causing the aggravation,
considering all causes. See Tenn. Code Ann. § 50-6-102(13)(B)-(C).
Finally, an aggravation or exacerbation need not be permanent for an
injured worker to qualifY for medical treatment reasonably necessitated by
4
Although perhaps unrelated to his pre-existing PTSD condition, Mr. Johnson did not disclose his past military
service to Dr. Skidmore. While he did disclose his long-term, daily use of marijuana to Dr. Skidmore, the Court
notes he circled "never" regarding drug usage on a patient intake form for Dr. Smith.
5
the aggravation.
Miller v. Lowe's Home Centers, Inc., No. 2015-05-015 8, 2015 TN Wrk. Comp. App. Bd.
LEXIS 40, at *18 (Tenn. Workers' Comp. App. Bd. Oct. 21, 2015). (T.R. 6 at Ex. 2.)
Upon consideration of the evidence presented, this Court finds Mr. Johnson has
not demonstrated he is likely to prevail at a hearing on the merits to establish he sustained
an aggravation of his pre-existing PTSD condition due to the January 14, 2015 incident.
Dr. Smith, the authorized treating physician, neither diagnosed Mr. Johnson with PTSD
nor made any referral for psychiatric treatment. Mr. Johnson sought treatment on his
own with Dr. Skidmore, who opined during the expedited hearing that the stabbing
incident was "undoubtedly the cause of his PTSD." However, as documented by the
Erlanger records, Mr. Johnson failed to disclose his past PTSD condition to her. Since
Dr. Skidmore relied upon the incomplete information provided to her by Mr. Johnson,
she was not able to provide an informed opinion regarding his PTSD condition.
Accordingly, Mr. Johnson's request for medical benefits related to psychiatric treatment
is denied.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Johnson's request for the psychiatric treatment he sought for his PTSD 1s
denied at this time.
2. This matter is set for a Status Hearing on September 13, 2016, at 2:00p.m. , ET.
ENTERED this the 1st day of August, 2016.
Initial (Sch eduling) Hearin g:
A Scheduling Hearing has been set on September 13, 2016, at 2:00 p.m. Eastern
Time, with Judge Audrey A. Headrick, Court of Workers' Compensation Claims.
You must call 423-634-0164 or toll free at 855-383-0001 to participate in the Initial
Hearing.
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.
6
Ri ght to Appeal:
Tennessee Law allows any party who disagrees \Vith 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 pat1y is responsible for payment of a filing fee in tlte 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 f'h Affidavit of lndigency m
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.
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
7
any, with the Court Clerk within five business days ofthe 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.
8
APPENDIX
Exhibits:
1. Affidavit of Joshua Johnson
2. Medical records of Erica Skidmore, Psy.D. Bates Stamped 000234-000295
3. Medical records ofErica Skidmore, Psy.D. Bates Stamped 000296-000309 5
4. Medical records of University Surgical Associates, Bates Stamped 000215-000233
5. Medical records of Erlanger Medical Center, Bates Stamped 00016-00038
Technical record: 6
1. Petition for Benefit Detennination with position statement attached
2. Dispute Certification Notice
3. Show Cause Order
4. Request for Expedited Hearing
5. Order on Show Cause Hearing
6. Employer and Insurance Company's Brief
7. Notice of Filing of Affidavit Certifying Records
8. Notice of Expedited Hearing
5
Family Dollar objected to the admission of this portion of Dr. Skidmore's records pursuant to Rule 0800-02-21-
.16(6) (20 16) of the Tennessee Compilation Rules and Regulations because they were late-filed on July I, 2016.
However, Mr. Johnson filed the records upon receiving them from Dr. Skidmore's office. Therefore, for good cause
shown, the Court admits the late-filed records of Dr. Skidmore as Exhibit 3.
6
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.
9
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Expedited Hearing Order
Denying Requested Medical Benefits was sent to the following recipients by the
following methods of service on this the 1st day of August, 2016.
Name Certified Via Fax Via Email Service Sent to:
Bill Brown, X WJB @Voll aw.com
Employee's Attorney
Kimberly Greuter, X kgreuler@allenandnewman.com
Employer's Attorney
Jerk of Court
10