The opinion
FILED
May 01, 2018
09:26 AM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT CHATTANOOGA
Billie Sanders, ) Docket No.: 2017-01-0710
Employee, )
Vv. )
Robinson Manufacturing Co., Inc., ) State File No.: 58982-2016
Employer, )
And )
United Wisconsin Insurance Company, ) Judge Thomas Wyatt
Carrier. )
)
EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS
This matter came before the Court for an Expedited Hearing on April 26, 2018,
wherein Billie Sanders sought medical benefits, including a request for a change of
treating orthopedists. Robinson Manufacturing Co. (Robinson) contended that the statute
of limitations barred Ms. Sanders’s claim and alternatively that Ms. Sanders must return
to her panel-selected physician, Dr. John Chrostowski, for treatment of her injury. For
the reasons below, the Court holds the statute of limitations does not bar Ms. Sanders’s
claim, but she must return to Dr. Chrostowski for further treatment of her injury.
History of Claim
Ms. Sanders’s right shoulder “popped” while lifting a 35-to-40 pound box at
Robinson on July 29, 2016. She experienced immediate shoulder pain and numbness, as
well as tingling in her right arm. Robinson provided her a panel from which she selected
Physician’s Care, a walk-in clinic, for authorized care. The nurse practitioner at
Physician’s Care diagnosed Ms. Sanders with a shoulder strain and released her to return
to work under restrictions. Ms. Sanders obtained a full work-release four days later
during a follow-up visit. On October 10, 2016, the carrier issued checks to pay for Ms.
Sanders’s treatment at Physician’s Care, according to the carrier’s payment records.
Ms. Sanders returned to her regular job at Robinson and continued to experience
symptoms. She claimed that she reported her pain to her supervisor on several occasions,
but Robinson did not file new First Reports of Injury or send her for treatment.’
Ms. Sanders testified that she reported her shoulder pain to her supervisor on
August 15, 2017, when she could no longer handle the pain.” Ms. Sanders’s supervisor
documented her recurrence of pain from the July 2016 injury but did not note that Ms.
Sanders reported a new injury. However, Robinson prepared a new First Report of Injury
and offered Ms. Sanders a panel from which she again selected Physician’s Care.
The records at Physician’s Care noted Ms. Sanders’s history that the symptoms
from her previous injury went away until recurring approximately three months before
the visit. The records also indicated that Ms. Sanders stated she did not suffer a new
work injury prior to the current visit. After examining Ms. Sanders, the nurse at
Physician’s Care again diagnosed a strain, placed work restrictions, and recommended
orthopedic treatment.
Ms. Sanders selected Dr. John Chrostowski from a panel of orthopedists offered
by Robinson. She completed and signed an in-take form before her initial visit with him
in which she described injuring her shoulder lifting a box in July 2016. Ms. Sanders also
wrote on the form that, following her previous injury, “the pain would come and go, then
two months ago it came and never left.” She added that, “[a]s long as I don’t move it
(work it) it don’t hurt that bad.” Ms. Sanders did not describe a new injury on August 15,
2017.
Dr. Chrostowski took an x-ray of Ms. Sanders’s shoulder and, following his
clinical examination, identified findings suggestive of cervical radiculopathy or shoulder
impingement. He ordered physical therapy. Ms. Sanders’s therapist noted that she made
gains during therapy but with increased pain.
Ms. Sanders complained about Dr. Chrostowski’s treatment recommendations at
her next visit with him. Dr. Chrostowski noted the following documentation of his
conversation with Ms. Sanders:
Patient frustrated because she feels shoulder isn’t getting better. Stated
they would like to see another physician because she feels she isn’t
getting treatment adequately. [I] [s]tated it’s standard protocol to try
1 Ms. Sanders stated in her affidavit that she did not seek additional care for her shoulder because she was
concerned she might lose her job.
> Ms. Sanders stated in her affidavit that she injured her shoulder on August 15, 2017, when she reached
for a garment.
physical therapy and then if that doesn’t improve patient’s symptoms,
order MRI. Patient wants to see another physician and [I] informed her
she will need to contact workers’ compensation and pick another
physician from their panel.
Ms. Sanders and her husband both testified about Ms. Sanders’s dissatisfaction
with Dr. Chrostowski’s treatment. Ms. Sanders stated the physical therapy made her pain
worse, which in turn made it difficult for her to perform the duties Robinson assigned
her. She testified Dr. Chrostowski “acted like she was not even there” during the second
visit. Mr. Sanders testified that Dr. Chrostowski was “unprofessional” because he did not
know what his wife was “there for,” stating he “had slept” since the initial visit.
Robinson’s carrier issued several payments for Ms. Sanders’s treatment after
August 15, 2017. The carrier issued mileage checks to Ms. Sanders on September 17 and
October 5. On September 20, it paid for Ms. Sanders’s treatment at Physician’s Care and
issued a check for Dr. Chrostowski’s care. The carrier assigned these payments to a new
claim it established after Ms. Sanders’s report to her supervisor on August 15, 2017.
Ms. Sanders never actually asked Robinson to replace Dr. Chrostowski. However,
on January 2, 2018, she consulted orthopedist Dr. Todd Bell about her shoulder. Dr. Bell
noted a history of the July 2016 injury but not an August 2017 injury. Dr. Bell injected
Ms. Sanders’s shoulder with cortisone, released her to return to work without restrictions,
and recommended cervical and right-shoulder MRIs to assist him in deciding a course of
treatment. Ms. Sanders submitted an affidavit signed by Dr. Bell stating his opinion that
Ms. Sanders’s “lifting a box... on July 28, 2016. . . and reaching on August 15, 20177,”
primarily caused her right-shoulder and cervical conditions.
Ms. Sanders filed a Petition for Benefit Determination (PBD) on October 13,
2017, on the July 2016 injury.’ Robinson claimed that the statute of limitations barred
Ms. Sanders’s claim because she did not file a PBD within one year of October 10, 2016,
the date of the last medical payment issued under her July 2016 claim. In support of this
position, Robinson argued that Ms. Sanders’s report of shoulder pain in August 2017
constituted a new injury; and thus, payments issued for that injury did not extend the
statute of limitations on the July 2016 claim.
Ms. Sanders countered Robinson’s statute of limitations defense by asserting that
her pain from the July 2016 injury never went away and the pain she reported August 15,
> The parties presented no evidence explaining how Dr. Bell received information regarding the 2017
reaching incident.
4 Robinson stated that Ms. Sanders also filed a PBD on the August 2017 injury. The parties submitted no
evidence regarding the alleged filing.
2017, did not constitute a new injury. She argued that the payments Robinson issued in
September and early October 2017 extended the statute of limitations on the July 2016
injury because Robinson issued the payments within one year from its October 10, 2016
payment. Ms. Sanders contended the filing of her PBD on October 13 is timely because
it occurred within a year of the payments that Robinson issued in September and October
2017. She argued that Robinson cannot absolve itself from liability on the July 2016
claim by unilaterally creating a new claim following the August 2017 report of pain.
On the change-of-physician issue, Ms. Sanders contended she has the right to seek
a new treating physician because Dr. Chrostowski refused to treat her after she
challenged his treatment protocol. Robinson countered that if her claim survives the
statute of limitations defense, Ms. Sanders must return to Dr. Chrostowski for future care
of her shoulder injury, as he is the authorized treating physician.
Findings of Fact and Conclusions of Law
General Legal Principles
Under Tennessee law, Ms. Sanders bears the burden of proof on all elements of
her workers’ compensation claim. Tenn. Code Ann. § 50-6-239(c)(6) (2017); see also
Buchanan v. Carlex Glass Co., 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *5 (Sept.
29, 2015). However, Robinson has the burden of showing that the statute of limitations
bars Ms. Sanders’s claims. Cloyd v. Hartco Flooring Co., 274 S.W.3d 638, 647 (Tenn.
2008).
A party is not required to establish a claim or defense by a preponderance of the
evidence at an Expedited Hearing. McCord v. Advantage Human Resourcing, 2015 TN
Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). Rather, the party with the
burden of proof must present sufficient evidence the party is likely to prevail at a hearing
on the merits. Jd.; see also Tenn. Code Ann. § 50-6-239(d)(1) (2017).
Statute of Limitations
Tennessee Code Annotated sections 50-6-203(b)(2) and (c) (2017) address
Robinson’s statute of limitations defense. The section describes the requisite limitation
period as follows:
(b)(2) In instances when the employer has voluntarily paid workers’
compensation benefits, within one (1) year following the accident
resulting in injury, the right to compensation is forever barred, unless a
petition for benefit determination is filed with the bureau on a form
prescribed by the administrator within one (1) year from the latter of the
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date of the last authorized treatment or the time the employer ceased to
make payments of compensation to or on behalf of the employee.
(c) For purposes of this section, the issuing date of the last payment of
compensation by the employer, not the date of its receipt, shall constitute
the time the employer ceased making payments[.]
In addressing the statute of limitations defense, the Court first decides whether the
August 2017 injury is a new injury. The Court holds that Robinson will not likely prevail
in showing that Ms. Sanders sustained a new work injury in August 2017. The Court
notes that Ms. Sanders did not inform medical providers she saw in and after August
2017 that she sustained a new injury. Further, the Court finds credible Ms. Sanders’s
testimony that she routinely endured shoulder pain following the July 2016 injury. In
summary, the Court holds that the evidence established that, at a hearing on the merits,
the Court would likely find that the shoulder pain Ms. Sanders experienced in August
2017 had its genesis in the injury she sustained in July 2016, and no new injury occurred
in August 2017.
The Court now considers whether Robinson will likely prevail at trial in showing
the one-year statute of limitations bars Ms. Sanders’s July 2016 claim. The evidence
established that Robinson’s carrier issued a check on October 10, 2016, to pay for Ms.
Sanders’s treatment for the July 2016 injury. The evidence also showed that Robinson
issued mileage checks to Ms. Sanders on September 7 and October 10, 2017, for mileage
for medical visits and issued checks to Physician’s Care and Dr. Chrostowski on
September 20.
Since the Court concluded that the August 2017 event was not a new injury, all the
medical benefits payments that Robinson made for treatment of Ms. Sanders’s shoulder
injury applied to the July 2016 injury date. Thus, a one-year gap in payments never
occurred following the October 10, 2016 payments. As such, Robinson will not likely
prevail in showing that Ms. Sanders untimely filed her PBD.
Change of Physicians
The Court considers Ms. Sanders’s request to change physicians within the
framework laid out in Baker v. Electrolux, 2017 TN Wrk. Comp. App. Bd. LEXIS 65, at
*7-8 (Oct. 20, 2017). In Baker, the Appeals Board recognized the employer’s statutory
duty to “provide injured workers ‘such medical and surgical treatment . . . as ordered by
the attending physician . . . made reasonably necessary by [the employee’s injury].’” See
Tenn. Code Ann. § 50-6-204(a)(1)(A). The Board coupled the employer’s obligation
with the requirement that the employee “accept the medical benefits afforded under this
section” provided that the employer offered the employee an appropriate panel. See Tenn.
Code Ann. § 50-6-204(a)(3)(A)(i). However, the Board in Baker did recognize that an
5
employer would have an obligation to provide an employee with a new authorized
treating physician “when the physician selected from a panel refuse[s] to see the
employee[.]”
Based on the above authority, the Court holds that Ms. Sanders must return to Dr.
Chrostowski for future treatment of her injury. Ms. Sanders’s disagreement with Dr.
Chrostowski’s treatment protocol and the doctor’s instruction that she obtain the
employer’s authorization for treatment by another orthopedist do not rise to the level of a
refusal by Dr. Chrostowski to treat Ms. Sanders. Thus, the Court holds that, at a hearing
on the merits, Ms. Sanders will likely not prevail in her quest for treatment by a physician
other than Dr. Chrostowski.
IT IS, THEREFORE, ORDERED as follows:
1. The statute of limitations does not bar Ms. Sanders’s claim.
2. Dr. Chrostowski remains the authorized treating physician for future treatment of
Ms. Sanders’s accepted shoulder injury. Ms. Sanders shall contact Robinson for
pre-approval to see Dr. Chrostowski again.
3. This matter is set for a Status Hearing at 10 a.m. Eastern Time on July 2, 2018.
You must call (423) 634-0164 or toll-free at (855) 383-0001 to participate in the
Status Hearing. You must call on the scheduled date/time to participate. Failure
to call may result in a determination of the issues without your further
participation.
4. 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) (2016). 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.
5. For questions regarding compliance, please contact the Workers’ Compensation
Compliance Unit via email at WCCompliance.Program@tn.gov or by calling
(615) 253-1471 or (615) 532-1309.
ENTERED May 1, 2018.
Diorbrtagthe
Judge Thomas Wyatt
Court of Workers’ Compensation Claims
APPENDIX
Exhibits: The Court admitted the following exhibits into evidence during the Expedited
Hearing:
First Report of Injury;
Affidavit of Billie Sanders;
Records of Dr. Todd Bell;
Records of Dr. John Chrostowski;
Records of Physician’s Care;
Payment records of Robinson’s carrier;
Affidavit of Dr. Todd Bell;
Declaration of Hope Garlich, plus attached exhibits; and
Additional Physician’s Care record.
So ONAYP YY
Technical record: The Court considered the following documents filed with the Clerk in
deciding this claim’:
Petition for Benefit Determination;
Dispute Certification Notice;
Request for Expedited Hearing;
Notice of Expedited Hearing;
Employee’s Brief Supporting Petition for Benefit Determination;
Employee’s Notice of Filing of the Affidavit of Dr. Todd Bell;
Employer Pre-Hearing Brief; and
Employer Witness and Exhibit List.
SN ARAWN >
> The Court did not review documents attached to filings unless it admitted the attached documents into evidence.
7
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 May 1, 2018.
Name Certified Via Email Email Address
R. Lew Belvin, Tim xX Lew.belvin@mcmahanlawfirm.co
Henshaw, m
Employee Attorneys tim@mecmahanlawfirm.com
Cole Stinson, x Cole.stinson(@accidentfund.com
Employer Attorney Amy.jacobs@accidentfund.com
Donaw Sawin whQerwuas no
PENNY SHRUM, COURT CLERK "
we.courtclerk(@tn.gov
et a
Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
form with the Clerk of the Court of Workers’ Compensation Claims within seven
business days of the date the expedited hearing order was filed. When filing the Notice
of Appeal, you must serve a copy upon all parties.
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of the Notice of Appeal. Payments can be made in-person at
any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
website or any Bureau office) seeking a waiver of the fee. You must file the fully-
completed Affidavit of Indigency within ten calendar days of filing the Notice of
Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
result in dismissal of the appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten calendar days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten calendar days of the filing of the Notice of Appeal. The statement of
the evidence must convey a complete and accurate account of the hearing. The Workers’
Compensation Judge must approve the statement before the record is submitted to the
Appeals Board. If the Appeals Board is called upon to review testimony or other proof
concerning factual matters, the absence of a transcript or statement of the evidence can be
a significant obstacle to meaningful appellate review.
4. If you wish to file a position statement, you must file it with the court clerk within five
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within five business
days after you file your position statement. All position statements 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.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, |-B
Nashville, TN 37243-1002
AFFIDAVIT OF INDIGENCY
800-332-2667
, having been duly sworn according to law, make oath that
because of my poverty, | am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
4. Full Name:
3. Telephone Number:
5. Names and Ages of All Dependents:
6. | am employed by:
2. Address:
4. Date of Birth:
Relationship:
Relationship:
Relationship:
Relationship:
My employer's address is:
My employer’s phone number is:
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$
8, | receive or expect to receive money from the following sources:
AFDC $
SSI $
Retirement $
Disability $
Unemployment $
Worker's Comp.$
Other $
LB-1108 (REV 11/15)
per month
per month
per month
per month
per month
per month
per month
beginning
beginning
beginning
beginning
beginning
beginning
beginning
RDA 11082
9. My expenses are:
Rent/House Payment $ permonth Medical/Dental $ per month
Groceries $ per month Telephone $ per month
Electricity $ per month School Supplies $ per month
Water $ per month Clothing $ per month
Gas $ per month Child Care $ per month
Transportation $ per month Child Support $ per month
Car $ per month
Other $ per month (describe: )
10. Assets:
Automobile $ . (FMV)
Checking/Savings Acct. $
House $ (FMV)
Other $ Describe:
11. My debts are:
Amount Owed To Whom
| hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that | am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
day of .20
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV 11/15) RDA 11082