The opinion
FILED
December 18, 2017
TN COURT OF
i * WORKERS’ COMPENSATION
Je RENO CLAIMS
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TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT KNOXVILLE
ANGELA TAYLOR, ) Docket No.: 2017-03-0481
Employee, )
Vv. )
KNOX COUNTY BOARD OF ) State File No.: 87086-2016
EDUCATION and KNOX COUNTY )
GOVERNMENT, )
Employer. ) Judge Pamela B. Johnson
EXPEDITED HEARING ORDER
(ON-THE-RECORD DETERMINATION)
This matter came before the undersigned Workers’ Compensation Judge on
Angela Taylor’s Request for Expedited Hearing (REH) seeking a decision on the record.
Knox County did not request an evidentiary hearing. The Court issued a Docketing
Notice and gave the parties until November 21, 2017, to file position statements and any
objection to the admissibility of the listed documents. Upon careful consideration of the
record, the Court finds it needs no additional information to determine whether Ms.
Taylor is likely to prevail at a hearing on the merits of the claim and decides this matter
upon a review of the written materials.
The central legal issue is whether Ms. Taylor established entitlement to a panel of
neuropsychiatrists. For the reasons set forth below, the Court holds Ms. Taylor did not
come forward with sufficient evidence demonstrating entitlement to a panel of
neuropsychiatrists but she demonstrated entitlement to a return visit to Dr. Butler and a
panel of mental health counselors.
History of Claim
A review of the written materials revealed the following facts. Ms. Taylor tripped
over a box in a walk-in freezer and struck her head on metal shelving in the course and
scope of her employment as a cafeteria worker for Knox County schools. She reported
the injury, and Knox County provided authorized medical treatment.
It
Ms. Taylor received initial treatment from Occupational Health Systems (OHS) on
the day of the incident. She saw Physician’s Assistant Heather Thompson and reported
headache, double/blurred vision, and dizziness. She also reported a previous head injury
after a fall with loss of her right-side peripheral vision. PA-C Thompson, under the
supervision of Dr. John McElligott, diagnosed a head injury.
She remained under the care of OHS. Dr. Chris Copeland at OHS ordered brain
and cervical MRIs, which were both unremarkable. He referred Ms. Taylor to Dr. Darel
Butler for a neurological evaluation.
Dr. Butler reviewed the MRIs, performed a physical examination, and diagnosed
chronic post-traumatic headaches, nausea, and dizziness. He prescribed Tx360 nasal
application treatments and other prescription medications.
Ms. Taylor returned to Dr. Butler on March 6 and declined the Tx360 treatment.
She reported worsening dizziness and confusion but stated her headaches were
improving. Dr. Butler instructed Ms. Taylor to follow-up when necessary for. her
headaches should she opt for the Tx360 treatment; otherwise, he indicated she needed to
find another neurologist on the panel for headache treatment. Dr. Butler referred Ms.
Taylor to an ENT for her dizziness and to a neuropsychologist for her post-concussive
syndrome.
Ms. Taylor’s counsel wrote Dr. Butler for clarification about his referral to a
neuropsychologist. The inquiry and response are as follows:
As ] understand, on March 6, 2017, you zeferred Ms. Taylor for further treatment and you referred
her come under the care of an ENT physician as well as a neutopsychologist. As you may be
awate a psychologist in Tennessee is not qualified to render an opinion on causation or prescribe
certain medications ifnecessary. In order to direct proper care of Ms, Taylor, I would request that
you please let us if you would recommend Ms, Taylor to be seen by a neuropsychiatrist as opposed
to a neuropsychologist, I would request your response to the following question to direct
appropriate medical care and treatment for Ms. Taylor.
T recommend that as a result of her work injury of November 4, 2016, that Ms.
Taylor be seen by a neuropsychiatrist for her ongoing medi¢al treatment for post-
concussion syndrome? ‘ Yes No
—_
Dr. Darrell f uller, M.D.
ENT Dr. S. Mark Overholt evaluated Ms. Taylor. Dr. Overholt suspected Ms.
Taylor’s symptoms were related to a traumatic brain injury. He further indicated that
nothing suggested historically, on physical examination, or on audiometric testing, that
Ms. Taylor’s problems were otologic. Dr. Overholt indicated Ms. Taylor needed to see a
neurologist and deferred questions about causation and impairment to the neurologist.
Ms. Taylor returned to Dr. Butler several months later. She reported persistent
dizziness but no headache. Dr. Butler noted, “I had previously found nothing the (sic)
refer her to ENT. They found nothing and have her come back here. J again told her I
had nothing to offer.” He informed Ms. Taylor that as to her dizziness, “it was a matter
of healing and we cannot predict when nor how much healing [you] will ultimately get.”
Dr. Butler instructed her to return if her symptoms increased in frequency, severity, or
duration, and made a “neuropsych referral as suggested by case manager” for her post-
concussive syndrome. He again recommended Tx360 when necessary for Ms. Taylor’s
headaches. Lastly, Dr. Butler noted it was “ok to see Dr. Robert Roth for post traumatic
syndrome.”
Dr. Roth, a neuropsychologist, evaluated Ms. Taylor on September 14. He
determined that Ms. Taylor functions at or near her premorbid neurocognitive abilities,
which included borderline-low average intellectual ability, low average memory skills,
and problems with reading. He raised concerns regarding her visuospatial skills but
noted the impairment to these skills was disproportionate to the incident and inconsistent
with the nature of the injury. He also stated Mr. Taylor’s depression was significantly
exacerbated. Dr. Roth did not recommend additional medical workup but stated Ms.
Taylor should continue to work with physicians regarding post-traumatic migraine
managément and resolution of her dizziness. He also suggested that she consider
vestibular therapy and counseling with an outpatient mental health counselor.
Knox County offered a panel of psychiatrists to evaluate causation of Ms. Taylor’s
reported exacerbation of her pre-existing depression and anxiety. Ms. Taylor refused to
select a physician because the Knox County offered the panel for evaluation not
treatment and filed the pending REH.
Ms. Taylor sustained a prior work injury in 2011 and received treatment for neck
and upper back pain, headaches, and blurred vision.
Findings of Fact and Conclusions of Law
Ms. Taylor need not prove every element of her claim by a preponderance of the
evidence in order to obtain relief at an Expedited Hearing. McCord v. Advantage Human
Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Instead, she must come forward with sufficient evidence from which this Court can
determine she is likely to prevail at a hearing on the merits. Jd.; Tenn. Code Ann. § 50-6-
239(d)(1) (2017).
The law requires that Ms. Taylor show her alleged injury arose primarily out of
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and in the course and scope of her employment. To do so, she must demonstrate that her
injury primarily arose out of a work-related incident, or specific set of incidents,
identifiable by time and place of occurrence. Further, she must show, “to a reasonable
degree of medical certainty that [her work injury] contributed more than fifty percent
(50%) in causing the . . . disablement or need for medical treatment, considering all
causes.” “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. See Tenn. Code Ann. § 50-6-102(14).
As the Appeals Board explained in Panzarella v. Amazon.com, Inc., 2017 TN
Wrk. Comp. App. Bd. LEXIS 30, at *14 (May 15, 2017) (Emphasis in original):
[A] physician may render an opinion that meets the legal standard espoused
in section 50-6-102(14) without couching the opinion in a rigid recitation of
the statutory definition. What is necessary, however, is sufficient proof
from which the trial court can conclude that the statutory requirements of
an injury as defined in section 50-6-102(14) are satisfied.
Applying these principles, the Court first finds that Knox County presented no
material proof to contradict the mechanism of injury Ms. Taylor alleged. Instead, the
record reflects that Ms. Taylor reported the incident and Knox County completed a report
of injury and provided authorized medical treatment. Thus, Ms. Taylor established a
specific incident, identifiable by time and place.
Additionally, the medical evidence demonstrated Ms. Taylor suffered and received
authorized treatment for post-traumatic headaches and post-concussive syndrome
following the work incident. The medical records further demonstrated Ms. Taylor’s
work injury exacerbated her pre-existing depression.
The Court rejects Knox County’s argument that Ms. Taylor’s injuries are pre-
existing and unrelated to her work injury. While the record establishes similar
complaints following a slip and fall in 2011, Knox County introduced no evidence that
the 2011 symptoms continued to exist immediately prior to the November 4, 2016 work
incident. Thus, the Court concludes that Ms. Taylor is likely to prevail at a hearing on
the merits in showing her current need for treatment arises primarily out of and in the
course and scope of her employment.
The Court now turns to the issue of whether Ms. Taylor established entitlement to
a panel of neuropsychiatrists. Under the Workers’ Compensation Law, an employer must
furnish medical treatment made reasonably necessary by the work accident. See Tenn.
Code Ann. § 50-6-204(a)(1)(A). Employers are also required to offer a panel of
physicians from which the employee shall select the authorized treating physician. See
Tenn. Code Ann. § 50-6-204(a)(3)(A)(i). When necessary, the treating physician shall
4
make referrals to a specialist, and the employer shall be deemed to have accepted the
direct referral unless the employer provides an appropriate panel within three business
days of the referral. See Tenn. Code Ann. § 50-6-204(a)(3)(A)(ii). Only psychologists or
psychiatrists shall render psychological or psychiatric services upon the referral of an
authorized treating physician. See Tenn. Code Ann. § 50-6-204(h).
Ms. Taylor argued she is entitled to the neuropsychiatry panel that the ATP, Dr.
Butler, recommended. Knox County opposed the request, asserting it fulfilled its
obligation when it authorized the direct referral to Dr. Roth, a neuropsychologist. Knox
County argued Dr. Butler originally referred Ms. Taylor to a neuropsychologist and only
after persuasion from Ms. Taylor’s counsel agreed the referral should be to a
neuropsychiatrist. Subsequently, Dr. Butler simply made referral to “neuropsych” and to
Dr. Roth, which Knox County authorized.
The Court finds that Ms. Taylor has not returned to Dr. Butler following Dr.
Roth’s evaluation. Dr. Butler’s change in referral from neuropsychologist to
neuropsychiatrist occurred in March at Ms. Taylor’s counsel’s suggestion. Dr. Roth’s
evaluation by direct referral from Dr. Butler occurred in September. Without a return
visit to Dr. Butler, nothing indicates that Dr. Butler finds Dr. Roth’s evaluation
insufficient for purposes of treatment of Ms. Taylor’s posttraumatic syndrome.
Thus, the Court concludes Ms. Taylor is not entitled to a panel of
neuropsychiatrists at this time but she is entitled to return to Dr. Butler. If Dr. Butler
refuses to see her, Ms. Taylor is entitled a panel of neurologists to take over her care.
Additionally, based upon the recommendations of Dr. Roth as an ATP by referral, the
Court concludes Ms. Taylor is entitled to a panel of outpatient mental health counselors.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. Taylor’s request for a panel of neuropsychiatrists is denied at this time.
2. Ms. Taylor is entitled to a panel of outpatient mental health counselors for
treatment of work-related injuries or conditions under Tennessee Code Annotated
section 50-6-204.
3. Ms. Taylor is entitled to a return appointment with neurologist Dr. Butler. If Dr.
Butler refuses to see Ms. Taylor, she is entitled to a panel of neurologists under
Tennessee Code Annotated section 50-6-204.
4, This matter is set for a Status Conference on February 15, 2018, at 9:00 a.m.
Eastern Time. The parties must call (865) 594-0091 or (toll-free) (855) 543-5041
to participate in the Status Conference. Failure to appear by telephone may result
in a determination of the issues without the party’s participation.
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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).
The Carrier 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.
For questions regarding compliance, please contact the Workers’ Compensation
Compliance Unit via email WCCompliance.Program@tn.gov.
ENTERED December 18, 2017. _—_—
OAM lo
PAMELA B. JOHNSON, JUDGE
Court of Workers’ Compensation Claims
APPENDIX
The Court reviewed the following documents, marked as exhibits for ease of
reference:
Petition for Benefit Determination
Dispute Certification Notice with attachments (83 pages)
Show Cause Order
Employee’s Response to Show Cause Order with attachments
Request for Expedited Hearing with Affidavit (September 21, 2017)
Order Following Show Cause Hearing Setting Status Conference
Request for Expedited Hearing (October 25, 2017)
a. Employee’s Brief in Support of Request for Expedited Hearing On-the-
Record
b. Correspondence signed by Dr. Butler Regarding Recommendation for
Neuropsychiatric Evaluation
c. Affidavit of Employee
8. Notice of Deposition with attachments
9. Motion to Quash Notice of Deposition and For Sanctions
10. Employer’s Response to Employee’s Request for Expedited Hearing
a. Table of Contents with attachments (112 pages)
b. Affidavit of Adam Parson with exhibits
c. Affidavit of Jan Benson
NDAARWN -
11. Motion to Compel Discovery and Response to Motion to Quash
12. Response to Motion for Sanctions
13. Docketing Notice for On-The-Record Determination
14. Response to Motion to Compel
15. Motion for Protective Order
16.Motion to Compel Physical Examination and Response to Motion for
Protective Order
17. Brief in Opposition to Request for Expedited Hearing
18. Response to Motion to Compel Physical Examination
19. Order Denying Motion to Quash and Granting Motion to Compel Discovery
20. Order Denying Motion for Protective Order and Granting Motion to Compel
Physical Examination
CERTIFICATE OF SERVICE
I 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 December 18, 2017.
Name Certified | Fax Email | Service sent to:
Ameesh Kherani, xX akherani(@davidhdunaway.com
Employee’s Attorney
Evan Hauser, x Evan.hauser@knoxcounty.org
Employer’s Attorney
~’ Min Ss Aw wd) Oy Kise QO ts
PENNY SHRUM, COURT CLERK Mia
we.courtclerk@tn.gov