The opinion
FILED
Jul 05, 2018
07:23 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT GRAY
CARRIE LINNEN, ) Docket No. 2018-02-0219
Employee, )
v. )
COUNTRY CLUB OF BRISTOL, ) State File No. 76324-2014
Employer, )
and )
QB INS. CORP., ) Judge Brian K. Addington
Carrier. )
)
EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS
On June 28, 2018, the Court conducted an Expedited Hearing at Carrie Linnen's
request. At issue is her entitlement to a new physician panel. Country Club of Bristol
asserted it has no obligation to provide a second panel because the authorized physician,
Dr. John Testerman, has not declined treatment. The Court holds that Ms. Linnen
established that she is likely to succeed at a hearing on the merits in proving her
entitlement to a new panel.
History of Claim
Ms. Linnen dislocated her left patella when she fell descending a ramp at Country
Club on September 20, 2014. She selected Dr. John Testerman from a panel after
Country Club accepted the claim. Ms. Linnen suffered a recurrent dislocation of the
patella, and Dr. Testerman eventually operated to correct it.
However, Ms. Linnen continued to experience symptoms of pain, swelling and
instability following surgery. Dr. Testerman noted a significant change in symptoms in
September 2015 and ordered an MRI. The MRI results showed marked thickening and
edema of the patellar tendon. Dr. Testerman noted the MRI results were "very
disconcerting," and ordered a deep culture and biopsy of the tendon and hardware
removal. The tests were "normal," so Dr. Testerman referred Ms. Linnen to "Vanderbilt"
for a second opinion and further evaluation.
Dr. Charles Cox at Vanderbilt University Medical Center ordered physical therapy
with an "emphasis on eccentric quadriceps training" and prescribed a topical gel. Dr.
Cox noted, "[S]urgery should only be considered as a last resort as there is a reasonable
probability that she will still have pain and dysfunction[.]"
When Ms. Linnen returned to Dr. Testerman, she showed little improvement
despite the additional therapy. Dr. Testerman ordered work-hardening therapy and a
functional capacity evaluation, which indicated she could perform medium level work.
Dr. Testerman placed Ms. Linnen at MMI on December 16, 2016, and assigned
permanent work restrictions for kneeling and squatting.
Ms. Linnen became pregnant in early 2017, and Dr. Testerman suspended
treatment. Postpartum, she returned to him with radicular complaints down her left leg
along with knee pain and swelling. An MRI ruled out any back issues, and in December,
Dr. Testerman noted, "there is nothing left to t1x with the knee." Since that time Ms.
Linnen saw Dr. Testerman with continued complaints of instability, 1 pain and swelling.
She testified that he will not examine or touch her knee but will only discuss her
symptoms. He referred her again to Dr. Cox in March 2018 because, "I have exhausted
everything I know to do or to look for." Presently, Ms. Linnen self-treats with ice and
heat when her leg swells.
On May 7, 2018, Dr. Testerman responded to Ms. Linnen's attorney regarding her
treatment plan. He stated, "Apparently Dr. Cox at Vanderbilt has declined to see her
again. I have nothing to offer her as far as treatment or diagnostic intervention." He
added that she could seek another opinion or live with her symptoms. He stated he saw
no reason to see her unless her symptoms significantly changed. Based on Dr.
Testerman's statements, Ms. Linnen filed a Request for Expedited Hearing seeking
another panel.
Findings of Fact and Conclusions of Law
To prevail at an expedited hearing, Ms. Linnen must provide sufficient evidence
from which this Court can determine that she is likely to prevail at a hearing on the
merits. See Tenn. Code Ann. § 50-6-239(d)(l).
Ms. Linnen requests a new panel. She acknowledged she is neither dissatisfied
with Dr. Testerman's care nor has Country Club refused to provide the treatment Dr.
Testerman recommended. Rather, Ms. Linnen asserted that Dr. Testerman did all he can
1
The instability caused her to fall.
2
do to help her. Dr. Testerman tried to refer her back to Dr. Cox, but according to the
parties and Dr. Testerman, Dr. Cox will not see her. 2
The Court reviewed Dr. Testerman's notes, and he repeatedly stated he has
nothing to offer her unless her symptoms change. Her current, serious symptoms are
buckling, pain, and swelling of her knee. Ms. Linnen consistently attempted to treat the
symptoms on her own, yet they continue. Instead of stating Mr. Linnen does not need
treatment, Dr. Testerman acknowledged the problems and stated he has nothing to offer.
Yet, he informed Ms. Linnen that she may return to him when her symptoms change.
The Court is mindful of precedent regarding physician panels. The Appeals Board
found that an employee is entitled to a new panel when the authorized physician places
an employee at MMI, states the employee needs no further treatment, and refuses to see
the injured employee. Limberakis v. Pro-Tech Security, Inc., 2017 TN Wrk. Comp. App.
Bd. LEXIS 53, at *3-4, 9-10 (Sept. 12, 2017). However, an injured employee is not
entitled to a new panel of physicians when the authorized treating physician has not
refused to see the injured employee. Baker v. Electrolux, 2017 TN Wrk. Comp. App. Bd.
LEXIS 65, at *8-9 (Oct. 20, 2017). Nevertheless, the Baker court hinted that it might
have made a difference if the treating physician in that case were "unable or unwilling to
treat the employee." !d. at* 9-10.
At this interlocutory stage, Ms. Linnen presented sufficient evidence to establish
that Dr. Testerman gave up addressing her current complaints. He is unwilling to
physically examine her injured leg or offer other treatment options. He tried
unsuccessfully to refer her to another physician. The Court finds Ms. Linnen is likely to
prove at a hearing on the merits that Dr. Testerman is unable and unwilling to treat her
current complaints and holds she is entitled to a new panel of orthopedic surgeons. 3
IT IS, THEREFORE, ORDERED as follows:
1. Country Club shall provide Ms. Linnen a panel of orthopedic surgeons.
2. The Court sets this for a Scheduling Hearing on August 23, 2018, at 10:30 a.m.
Eastern Time. You must call 855-543-5044 to participate in the Hearing. Failure
to call may result in a determination of the issues without your further
participation.
3. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
2
Neither party introduced records from Dr. Cox saying he will not see Ms. Linnen.
3
The Court's Order is not for a second opinion, as Dr. Testerman has not given an opinion on which
treatment, if any, might help Ms. Linnen. Rather he merely expressed an inability to offer Ms. Linnen
anything.
3
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 WCComp liance.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 vta email at
WCComplianc .Pr gram@ tn .gov.
ENTERED THIS THE 5th DAY OF JULY 2018.
Is/Brian K. Addington
JUDGE BRIAN K. ADDINGTON
Court of Workers' Compensation Claims
APPENDIX
Exhibits:
1. Affidavit of Carrie Linnen with attached Medical Records
2. First Report of Injury
3. Wage Statement
4. Physician Panel
5. Final Medical Report
6. Medical Records of Drs. John Testerman and Charles Cox
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Notice of Expedited Hearing
5. Ms. Linnen's Response and Position Statement
6. Country Club of Bristol's Response to Employee's Request for Expedited Hearing
4
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the foregoing was sent to the following
recipients by the following methods of service on July 5, 2018.
Name Certified Fax Email Sent to:
Gregory Haden, X ghaden@hsdlaw.com
Employee's Attorney
Kimberly Greuter, X kgreuter@allenandnewman.com
Employer's Attorney
4~, ~~
Wc.cou erk@tn.gov
5
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 business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business 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 ten
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 ten 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.
Filed Date Stamp Here EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers' Compensation
Docket#: - - - -- -- - --
www.tn.go v/labor-wfd/wcomp.shtm l
State File #/YR: - - -- - - --
wc.courtclerk@tn.gov
1-800-332-2667 RFA#: _ _ _ _ _ _ _ _____ _
Date of Injury: - - - -- - - - -
SSN: _______ _ ______ __
Employee
Employer and Carrier
Notice
Noticeisg~enthat _ _ _ _ _ _ _~~--~~~~---~~~--------~
[List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s) of the Court of Workers' Compensation Claims at _ __
-~~~-----~~~~~~~~-to the Workers' Compensation Appeals Board .
[List the date(s) the order(s) was filed in the court clerk's office]
Judge___________________________________________
Statement of the Issues
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Additional Information
Type of Case [Check the most appropriate item]
D Temporary disability benefits
D Medical benefits for current injury
D Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): _____________ .A t Hearing: DEmployer DEmployee
Address:. _______________________ ______________ ___________
Party's Phone:.____________________________ Email: _________________________
Attorney's Name:________________________________ ___ BPR#: - - - - - - - - - - - -
Attorney's Address:. _ _ _ _ _~~-~~~~----~~---- Phone:
Attorney's City, State & Zip code: _____________________ ___________ _ _ _ __ _
Attorney's Email :_ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ __ _ _ _ __ _ _ _ _ _ _ __
*Attach an additional sheet for each additional Appellant*
LB-1099 rev.4/15 Page 1 of 2 RDA 11082
Employee Name: - - - -- - - -- - - - SF#: _ _ _ _ __ _ _ _ _ DO l: _ __ _ __
Aopellee(s)
Appellee (Opposing Party): _ _ _ _ _ _ _ _.At Hearing: OEmployer DEmployee
Appellee's Address: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
Appellee's Phone:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _.Email:_ _ _ _ _ _ __ _ _ _ _ _ __
Attorney's Name:_ _ _ _ _ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ BPR#: - - - - - - - -
Attorney's Address:._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ Phone:
Attorney's City, State & Zip code: - - - -- - - - - - - - - - - - - - - - - - - -- -
Attorney's Email:._ _ _ _ __ _ __ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, certify that I have forwarded a true and exact copy of this
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules of
Board of Workers' Compensation Appeals on this the day of__, 20_ .
[Signature of appellant or attorney for appellant]
LB-1099 rev.4/1S Page 2 of 2 RDA 11082
.
ll .I
Tennessee Bureau of Workers' Compensation
220 French Landing Drive, 1-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
I, , having been duly sworn according to law, make oath that
because of my poverty, I 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.
1. Full Name:_ _ _ _ _ _ _ _ _ _ __ 2. Address: - - - - - - - - - - - - -
3. Telephone Number: - - - - - - - - - 4. Date of Birth: - - - - - - - - - - -
5. Names and Ages of All Dependents:
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
- - - - - - - - - - - - - - -- - Relationship: - - - - - - - - - - - --
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
6. I am employed by: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , -
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. I receive or expect to receive money from the following sources:
AFDC $ per month beginning
SSI $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Camp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are: ' ; !•
'
Rent/House Payment $ per month 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
I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
_ _ _ dayof _____________ ,20____
NOTARY PUBLIC
My Commission Expires:_ _ _ _ _ __ _
LB-1108 (REV 11/15) RDA 11082