The opinion
FILED
November 2, 2017
TN COURT OF
WORKERS’ COMPENSATION
CLAIMS
Time 3:29 PM
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
David Thompson, ) Docket No.: 2017-05-0639
Employee, )
Vv. )
Comcast Corporation, ) State File No.: 63224-2016
Employer, )
and )
Liberty Mutual Insurance Co., ) Judge Thomas Wyatt
Carrier. )
)
EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS
This claim came before the Court on October 27, 2017, to decide whether
Comcast Corporation is liable for pain management treatment ordered by the authorized
treating physician.’ The Court holds that it is.
History of the Claim
Mr. Thompson injured his neck and back on August 14, 2016, when he fell from a
ladder while working as a Comcast technician. He timely reported the injury, which
Comcast accepted as compensable.”
Mr. Thompson received emergent treatment at Skyline Medical Center, where he
reported falling a distance of four to five feet from a ladder, landing on his tailbone and
right side. Mr. Thompson’s primary complaint of pain was in the right side of his neck,
' The Court conducted the in-person hearing on October 26 but allowed Comcast until October 27 to
provide additional evidence. Also, Mr. Thompson asked for a decision on the record, to which Comcast
objected. The Court decided to conduct the in-person hearing to observe Mr. Thompson’s demeanor
during his testimony.
* Counsel for Comcast stated during the Expedited Hearing that Comcast gave Mr. Thompson “the benefit
of the doubt” in accepting his claim as compensable. However, compensability issues permeated
Comceast’s argument that it is not liable for Mr. Thompson’s pain management treatment.
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but he also reported back pain. Radiological testing indicated muscle spasm in Mr.
Thompson’s neck, as well as abnormalities in his lumbar spine. Skyline released him
with a prescription for medication and placed restrictions on his work activities.
Comcast first offered Mr. Thompson a panel consisting of physicians outside his
community. Mr. Thompson asked for another panel, but sought emergent care at St.
Thomas West Hospital on August 28 while awaiting Comcast’s response. At St. Thomas,
Mr. Thompson complained primarily of back pain. Soon after, Comcast offered Mr.
Thompson a panel, from which he selected orthopedist Dr. James N. Johnson.
On September 21, Dr. Johnson noted tenderness and limited range of motion in
Mr. Thompson’s neck and low back, as well as positive straight-leg findings, bilaterally.
Dr. Johnson ordered MRIs of both the cervical and lumbar spine. The MRI on Mr.
Thompson’s cervical spine proved normal, but the lumbar MRI revealed a herniated L4-5
disc impinging the L5 nerve.*
Over the next several months, Dr. Johnson treated Mr. Thompson with physical
therapy, medication, and a steroid injection. While Mr. Thompson’s neck pain subsided,
Dr. Johnson noted on January 9, 2017, that Mr. Thompson still had lumbar tenderness
and positive straight-leg findings. He referred Mr. Thompson for a surgical consultation
by Dr. Colin Crosby, who determined that he did not require surgery. Dr. Johnson then
rated Mr. Thompson’s impairment.
Mr. Thompson returned to Dr. Johnson on May 19, reporting pain in his neck,
right arm and low back, plus shooting pain into his hips, groin, and thighs. Dr. Johnson
noted severe muscle tenderness in Mr. Thompson’s neck and moderate muscle tenderness
in his low back. He again noted that Mr. Thompson had positive straight-leg findings in
his right leg. Dr. Johnson ordered “[p]ain management referral for c-spine and !-spine.”
Mr. Thompson’s counsel immediately emailed Comcast’s counsel requesting a
pain management panel. Comcast asked for a copy of the referral note, which Mr.
Thompson provided on June 6. On June 19, Comcast’s lawyer emailed Mr. Thompson’s
counsel that: “[e]specially in light of this claim’s history, my client is concerned about
the request for pain management and I join in that concern.” Mr. Thompson filed a
Petition for Benefit Determination on June 20. To assist mediation, Mr. Thompson
> During his examinations, Dr. Johnson noted Waddell’s signs, specifically pain exaggeration, in Mr.
Thompson’s reactions. However, Dr. Johnson ultimately concluded that, because a lumbar MRI
confirmed the presence of a herniated disc in his lumbar spine, Mr. Thompson actually experienced the
pain he reported even though he exaggerated the extent of the pain.
* Email correspondence indicated that Mr. Thompson’s counsel began asking in early February that
Comcast authorize Mr. Thompson’s return to Dr. Johnson.
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executed releases so Comcast could obtain his VA medical records and submitted to a
deposition. Nevertheless, Comcast declined to provide pain management.
Counsel for Mr. Thompson wrote Dr. Johnson seeking his opinion whether Mr.
Thompson’s neck and back injuries arose primarily out of and in the course and scope of
his employment. Dr. Johnson marked “Yes” and also marked “Yes” as to whether pain
management constituted reasonable and necessary treatment of Mr. Thompson’s injuries.
After obtaining Mr. Thompson’s pain management records, Comcast took Dr.
Johnson’s deposition. The doctor testified that the presence of a disc extrusion on the
MRI of Mr. Thompson’s lumbar spine indicated “some kind of recent change [to that
area of his spine.]” (Ex. 2 at 19.)° Dr. Johnson also testified:
That would be a logical injury to cause this kind of [herniated disc]|—the
fall off a ladder from four to five feet. Any fall from greater than four
feet is likely to cause some anatomic injury. That’s well-described in the
literature.
So a fall from four to five feet onto his buttock could have caused a
compression of that L4-5 disc and caused this anular [sic] tear and disc
extrusion, which would have caused his leg pain.
Id. at 19-20.
Dr. Johnson further testified that Mr. Thompson “was hurting. There was no
doubt he was hurting. And I don’t think there was ever a doubt in my mind that he was
hurting; that he had some real findings, though . . . he did have some equivocal findings.”
Id. at 43-44. He also testified that he referred Mr. Thompson to pain management
primarily for his back pain, and that Mr. Thompson never asked for narcotics.
On the day before the Expedited Hearing, Comcast filed a motion for a
continuance because it offered Mr. Thompson a panel for a physician authorized for a
one-time assessment of the reasonableness for pain management. The Court struck the
motion because Comcast filed it too late.
During the hearing, Mr. Thompson argued that Comcast was guilty of “bad faith”
in depriving him of pain management for the past five months. He contended the Court
should, therefore, allow him to select his own pain management physician. He also urged
the Court to refer Comcast to the Bureau’s penalty division and to require Comcast to pay
reasonable attorney’s fees for the time spent litigating his right to pain management.
° Dr. Johnson testified that, if Mr. Thompson’s extrusion were long-standing, it would have appeared
black and not white, as it actually appeared, on the MRI.
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Comcast argued that credibility issues, as well as the national “opioid epidemic,”
justified its reticence to authorize the “quagmire” of pain management without a thorough
investigation. Comcast also contended that Dr. Johnson’s pain management referral is
unreliable because Mr. Thompson initially complained his neck injury was more severe
than his back injury. It further asserted that the Waddell signs negated the positive
straight-leg raise findings that constituted the only objective findings underlying the
referral. Finally, Comcast asserted that “treater’s bias” tainted the referral. It asked that
the Court order Mr. Thompson to select a physician from the panel Comcast offered to
determine whether Mr. Thompson needs pain management.
Findings of Fact and Conclusions of Law
Pain Management Treatment
In deciding these issues, the Court notes the Workers’ Compensation Law contains
a specific statute governing pain management referrals. Tennessee Code Annotated
section 50-6-204(j)(1) (2017) provides that a treating physician may refer an employee to
a qualified physician for “pain management encompassing pharmacological,
nonpharmacological and other approaches to manage chronic pain.” When a treating
physician makes such a referral, an employer must provide a panel from which to select
the pain management provider. See Tenn. Code Ann. § 50-6-204()(2)(A).
Here, Dr. Johnson, as the treating physician, referred Mr. Thompson for pain
management treatment, but Comcast chose to embark upon an investigation instead of
providing a panel. Upon Comcast’s refusal, Mr. Thompson’s counsel obtained
confirmation from Dr. Johnson that, in his opinion, referral of Mr. Thompson to pain
management constituted reasonable and necessary treatment of injuries that arose
primarily out of and in the course and scope of Mr. Thompson’s employment. Since Dr.
Johnson is the treating physician, the law affords his opinions a presumption of
correctness. See Tenn. Code Ann. § 50-6-102(14)(E). Mr. Thompson provided those
opinions to Comcast, but it still refused to provide a pain management panel.
The Court finds it significant that Comcast never submitted the issue to another
physician for assessment nor did it contact Dr. Johnson directly to clarify any issues
about the referral. Instead, it refused to honor the referral and sought to justify its refusal
by attempting to rebut Dr. Johnson’s opinion by attacking his and Mr. Thompson’s
credibility.
In its attempt to discredit Mr. Thompson, Comcast pointed out discrepancies in his
reports as to when his back and leg symptoms arose. Despite those discrepancies, the
Court finds that, when considered as a whole, Mr. Thompson provided credible testimony
during the Expedited Hearing. In support of this finding, the Court notes that histories
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from several medical providers confirmed Mr. Thompson’s testimony about the onset of
his back pain and that Dr. Johnson believed Mr. Thompson’s reports of pain. Further,
Comcast did not rebut Mr. Thompson’s testimony that he did not suffer from neck and
back pain until his fall.
In addition, the Court is unpersuaded that Dr. Johnson’s assessment that Mr.
Thompson exaggerated his pain negated his opinion that Mr. Thompson required pain
management. Dr. Johnson testified that a patient’s symptom magnification does not
necessarily mean the patient has no pain. In fact, Dr. Johnson testified that the herniated
disc sufficiently satisfied him that Mr. Thompson experienced pain sufficient to require
medical management. Lastly, Comcast came forward with no medical opinion that
“treater’s bias” affected Dr. Johnson’s opinions, and the Court finds no merit in that
argument.
In Scott v. Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd. LEXIS 24,
at *8 (Aug. 18, 2015), the Workers’ Compensation Appeals Board held: “Judges are not
well-suited to second-guess a medical expert’s treatment, recommendations, and/or
diagnoses absent some conflicting medical evidence or some other countervailing
evidence properly admitted into the record.” The Court finds no evidence indicating the
incorrectness or unreliability of Dr. Johnson’s opinions. Thus, the Court holds that, at a
hearing on the merits, Mr. Thompson will likely prevail in establishing that he is entitled
to receive the recommended pain management. McCord v. Advantage Human
Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Pain Management Panel
The Court addresses whether Mr. Thompson must select his pain management
doctor from a panel provided by Comcast. Mr. Thompson argued that Comcast’s long
inaction in providing a panel operated as a waiver of its right to compel Mr. Thompson to
choose a doctor from it. Therefore, the Court should order Comcast to pay for treatment
by a doctor of his selection.
The Workers’ Compensation Appeals Board addressed this issue in Barrett v.
Lithko Contracting, Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS 93 (Dec. 8, 2016), and
Young v. Young Electric Co., 2016 TN Wrk. Comp. App. Bd. LEXIS 24 (May 25, 2016).
In both claims, the Appeals Board upheld an award reimbursing the employee for charges
incurred for treatment after the employer denied the claim. In support, the Appeals Board
cited McCord, holding, “an employer who elects to deny a claim runs the risk that it will
be held responsible for medical benefits obtained from a medical provider of the
employee's choice[.]” Jd. at *14; see also Ducros v. Metro Roofing & Metal Supply Co.,
Inc., 2017 TN Wrk. Comp. App. Bd. 62, at *10 (Oct. 17, 2017), holding, “[a]n employer
who attempts to claim the benefits of [the Workers’ Compensation Law] must also
comply with the statute.”
As in the cases above, the Court finds that Comcast’s failure to provide a panel for
five months constituted a denial of Mr. Thompson’s rightful claim to treatment. The
Court notes that the employees in Barrett and Young had already incurred unauthorized
expenses from the physicians the court eventually designated as treating physicians,
while here Mr. Thompson has not yet obtained pain management. The Court, however,
does not deem that distinction dispositive, and thus orders that Mr. Thompson may
execute his right to pain management by self-selection of a physician meeting the
qualifications set forth in Tennessee Code Annotated section 50-6-204(j)(2)(B). Upon
notice, Comcast shall promptly schedule an appointment with the selected physician.
Attorney’s Fees
Mr. Thompson asked the Court to order Comcast to pay reasonable attorney’s fees
for its wrongful refusal to initiate pain management treatment. He contended Comcast’s
delay deprived him of needed treatment for five months and compelled his attorney to
spend numerous hours in pursuing his right to pain management.
Tennessee Code Annotated section 50-6-226(d)(1)(B) empowers the Court to
award attorney’s fees and costs when the employer “[w]rongfully . . . fails to timely
initiate any of the benefits to which the employee is entitled under this chapter, including
medical benefits . . . if the workers’ compensation judges makes a finding that such
benefits were owed at an expedited hearing or compensation hearing.” The Court’s
ruling that Comcast owes Mr. Thompson benefits in the form of pain management
invokes the Court’s authority to award attorney’s fees and costs. Thus, the issue becomes
whether Comcast wrongfully failed to initiate pain management.
While the law does not specify the time an employer may take to honor a treating
physician’s pain management referral, the Court considers that the spirit of the law
contemplates fewer than the five months Comcast took here. Comcast’s argument that it
needed time to perform a thorough investigation before committing to the “quagmire” of
pain management is meritless. The Court notes that Mr. Thompson’s claim was pending
for eight months before Dr. Johnson made his referral, meaning Comcast had ample
opportunity to investigate Mr. Thompson’s medical history even before the referral.
In Andrews v. Yates Servs., Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 35, at *7-
8 (May 23, 2017), the Appeals Board acknowledged that an appellate opinion has not
defined the term “wrongfully denied” in section 50-6-226(d)(1)(B). The Court thus turns
to the Court of Appeals’ opinion in Wright Med. Tech. v. Grison, 135 S.W.3d 561, 594
(Tenn. App. 2001), which, in the context of injunctive relief, defined the term
“wrongfully” as follows: “[a] party has been wrongfully enjoined when it turns out the
party enjoined had the right all along to do what it was enjoined from doing.”
Thus, the Court finds that Comcast wrongfully denied Mr. Thompson the pain
management treatment to which the law entitled him by virtue of Dr. Johnson’s referral.°
Whatever Comcast’s concerns, the law still required it to offer a pain management panel.
Comcast could have investigated whether it had a viable defense simultaneously with its
compliance, but instead chose to delay recommended treatment for approximately five
months without even seeking another physician’s opinion as to the reasonableness of the
referral. Under these circumstances, the Court holds that Comcast wrongfully denied Mr.
Thompson’s right to pain management.
The Court acknowledges that the Appeals Board in Andrews cautioned against the
determination of an employee’s entitlement to attorney’s fees under section 50-6-
226(d)(1)(B) during the pendency of a claim. However, the Appeals Board in Andrews
also stated that the above admonition “is not to suggest that a determination of attorney’s
fees and expenses may never be proper prior to the conclusion of a case, as each case
must be evaluated based on the particular circumstances presented.” Jd. at *8.
The Court considers the evidence here—especially the fact that Comcast delayed
Mr. Thompson’s treatment for five months to conduct an investigation that did not
involve obtaining another physician’s assessment—established appropriate circumstances
for the award of attorney’s fees following an Expedited Hearing. While Comcast has the
right to revisit whether Dr. Johnson’s pain management referral was appropriate, it failed
to provide a panel as required by law for five months after the treating physician made
the referral. With that fact in mind, the Court awards Mr. Thompson attorney’s fees to
compensate his counsel for the time he expended to establish Mr. Thompson’s right to
pain management at the Expedited Hearing. Counsel for Mr. Thompson shall petition the
Court for approval of the requested attorney’s fee.
Penalty Referral
Tennessee Code Annotated section 50-6-118(a)(11) authorizes the Bureau of
Workers’ Compensation to consider the establishment and collection of a penalty for the
“(flailure of any employee to timely provide medical treatment made reasonably
necessary by the accident and recommended by the authorized treating physician or
operating physician.” As indicated above, the Court holds that Comcast wrongfully
denied Mr. Thompson pain management. For that reason, the Court refers Comcast to
the Bureau’s penalty division for establishment and collection of a penalty.
° The Court is aware that section 50-6-204(j)(1) charges a treating physician with making a pain
management referral when the physician “determines that pain is persisting for an injured or disabled
employee beyond an expected period for healing.” Although Comcast raised no issue about the timing of
Dr. Johnson’s referral, the Court notes that Dr. Johnson did not refer Mr. Thompson for pain management
until after he determined his patient attained maximum medical improvement.
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THEREFORE, IT IS ORDERED:
. That Mr. Thompson select a qualified pain management physician and
communicate his selection to Comcast;
. That, upon receiving the identity of the pain management physician selected by
Mr. Thompson, Comcast shall promptly schedule an appointment for him;
. That Comcast shall pay reasonable attorney’s fees for the time his counsel
expended in litigating Mr. Thompson’s entitlement pain management. Mr.
Thompson’s counsel shall petition the Court for approval of a reasonable fee and
reimbursement of reasonable expenses in this matter;
. That the Court refers Comcast to the Bureau’s Penalty Division for consideration
of the establishment and collection of a penalty pursuant to Tennessee Code
Annotated section 50-6-118(a)(11); and,
. That 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). The Insurer or Self-Insured Employer must submit confirmation of
compliance with this Order to the Bureau. by email to
WCCompliance.Program@tn.goy 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. For
questions regarding compliance, please contact the Workers’ Compensation
Compliance Unit via email WCCompliance.Program@tn.gov.
ENTERED this the 2nd day of November, 2017.
(funforhto—
Judge Thomas Wyatt
Court of Workers’ Compensation Claim
APPENDIX
Technical Record: The Court considered the following filings in the consideration of the
issues raised during the Expedited Hearing:
CRON AAARWNS
Petition for Benefit Determination;
Dispute Certification Notice;
Additional Issues Submitted by Employer;
Additional Issues Submitted by Employee;
Request for Expedited Hearing-Decision on the Record;
Employee Position Statement;
Employer’s Opposition to Decision on the Record;
Employee’s Response to Employer’s Opposition to Decision on the Record;
Order Denying Decision on the Record;
10. Employee’s Motion to Reconsider Decision on the Record;
11.Employer’s Continued Objection to Decision on the Record;
12. Order Denying Motion to Reconsider;
13. Employer’s Motion to Continue Expedited Hearing;
14. Order Denying Motion to Continue Expedited Hearing;
15.Employer’s Position Statement;
16.Employee’s Position Statement; and
17, Employee’s Response (via e-mail) to Motion to Continue.
Exhibits: The Court considered the following exhibits admitted as evidence during the
AWPWNS
~
Expedited Hearing:
Medical Records (collective exhibit);
Transcript of Deposition of Dr. James N. Johnson;
Employee’s Choice of Physician form (C-42);
Affidavit of David Thompson (over Comcast’s hearsay objection);
Wage Statement;
Dr. Johnson’s responses to letter from Mr. Thompson’s counsel dated September
17, 2017;
E-mail communication between counsel prior to October 23, 2017; and
Email Communication between counsel on and after October 23, 2017.
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Order was sent to the following
recipients by the following methods of service on this the 2nd day of November, 2017.
Name Via Email Address
Michael Fisher, xX mfisher@ddzlaw.com
Employee Attorney klee@ddzlaw.com
Christopher Sherman, x cwsherman@mijs.com
Employer Attorney wth@mijs.com
Compliance Program Xx WCCompliance.Program@tn.gov
nw Shun Ww houamairD
Penny Shrum, Court Clerk
WC.CourtClerk@tn.gov
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