The opinion
FILED
Aug 08, 2018
02:51 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT NASHVILLE
Jerry Miles, ) Docket No. 2017-06-2296
Employee, )
v. )
Amley Logistics, Inc., ) State File No. 46712-2017
Employer, )
And )
Acuity Mut. Ins. Co., ) Judge Kenneth M. Switzer
Carrier. )
EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS
This case came before the Court on August 6 on Jerry Miles' Request for
Expedited Hearing. He seeks additional medical benefits, specifically a panel of
orthopedic physicians, for treatment of alleged right shoulder, neck and low-back
mJunes. For the reasons below, the Court grants his request.
History of Claim
Mr. Miles drives a dump truck for Amley Logistics. He testified that on June 22,
2017, a large boulder fell in the bed of his truck, causing it to tip to the passenger side
and Mr. Miles to "bounce" upward then fall to the right. He injured his right shoulder
trying to break his fall. The truck then tipped to the other side, slamming Mr. Miles into
the drivers' side door and window. He suffered immediate head, neck and low-back
injuries as well as shoulder pain. He testified to experiencing confusion and memory loss
in the days immediately following the accident.
Mr. Miles informed his supervisor about the injuries. Amley offered a panel, and
he chose Occupational and Environmental Medicine (Occ Med). Mr. Miles testified that
he does not remember signing the panel selection form, but he did not dispute that the
form bears his signature.
He saw Occ Med providers on June 23. The history states that he complained of
1
"pain in c-spine and ® thoracic and low back." Mr. Miles testified that he also told them
about the injuries to his right shoulder. The notes are not entirely legible; they give the
following assessment:
11~ ~.00(. --~ --1._@__ /l.q_~y;
-~~:\i'!: • Slto~ ___ _$ri!!:W#..p&l?...rMEL · - _ - --· _ .
Mr. Miles returned on June 26 again reporting head, neck and back pain. Providers noted
limited cervical mobility and recommended a CT scan of the head. On June 29 and July
5, they again noted a cervical strain/sprain. At the July visit, they referred him for a
neurological evaluation. When Mr. Miles returned to Occ Med for another visit after the
referral, staff told him the appointment was cancelled.
Amley provided a neurology panel. Mr. Miles chose Dr. Steven Graham, whom
he saw four times over the next three months. During the first visit, he reported memory
problems following the accident. Dr. Graham treated the head injury and referred him to
physical therapy for the neck, but his notes do not document any complaints of or
treatment for Mr. Miles' shoulder or low back. 1 He testified that he told Dr. Graham
about the pain in his right shoulder and low back.
At an August 15 follow-up, Dr. Graham referred him for a neuro-otology
evaluation with Dr. Mitchell Schwaber. Mr. Miles reported headaches and memory
lapses to Dr. Schwaber, who diagnosed dizziness but also "no peripheral vestibular
findings" and wrote, "If it was BPV [Benign Positional Vertigo], it has resolved."
Mr. Miles returned to Dr. Graham, who released him to full-duty work as of
October 9, 2017, placed him at maximum medical improvement from a neurological
standpoint, assigned a zero-percent impairment rating, and noted "follow-up as needed."
Mr. Miles returned to work after the release.
Mr. Miles testified that his right shoulder, low back and neck still hurt.
He
demonstrated to the Court an inability to raise his right arm above the shoulder. On
cross-examination, Mr. Miles acknowledged that he wrote in answers to interrogatories
that he injured his left shoulder. He said he received no help answering the
interrogatories and reviewed his responses, but he "missed that. " 2
Mr. Miles requested additional medical benefits, asserting that Dr. Graham never
addressed the shoulder, cervical or low-back complaints. He sought an order that Amley
provide a panel of orthopedic specialists. Amley countered that Mr. Miles did not
1
The parties did not introduce records from physical therapy.
2
The parties did not introduce the responses to interrogatories into evidence.
2
complain of shoulder or back pain to the authorized treating physicians. Dr. Graham
remains the authorized treating physician and expressed a willingness to continue treating
Mr. Miles. If Dr. Graham were to recommend an orthopedic panel, Amley would offer it.
Until Dr. Graham makes that recommendation, Amley contended it provided all the
workers' compensation benefits to which Mr. Miles is entitled.
Findings of Fact and Conclusions of Law
Mr. Miles need not prove every element of his claim by a preponderance of the
evidence to obtain relief at an expedited hearing. Instead, he must present sufficient
evidence that he is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-
6-239(d)(l) (2017); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Relevant to this dispute, Tennessee Code Annotated section 50-6-204(a)(l)(A)
requires an employer to provide injured workers "medical and surgical treatment ... as
ordered by the attending physician . . . made reasonably necessary by accident."
Additionally, the employer "shall designate a group of three (3) or more independent
reputable physicians, surgeons, chiropractors or specialty practice groups ... from which
the injured employee shall select one (1) to be the treating physician." Tenn. Code Ann.
§ 50-6-204(a)(3)(A)(i).
Here, Amley acted in accordance with these statutes when it provided Mr. Miles
with a panel from which he chose Occ Med. Mr. Miles later selected Dr. Graham after
Occ Med recommended a neurologist. Based on Dr. Graham's notes and Mr. Miles'
testimony, he only treated the neurological symptoms. Occ Med provided limited
treatment for cervical issues and noted his complaints regarding shoulder and low-back
pain, but once Occ Med referred Mr. Miles to Dr. Graham, it refused to see him again.
As a result, he received no follow-up treatment for the neck, shoulder and low back.
Mr. Miles' credibility is central to the determination of this issue. The Tennessee
Supreme Court gave indicia of witness credibility, so trial courts consider whether a
witness is "calm or agitated, at ease or nervous, self-assured or hesitant, steady or
stammering, confident or defensive, forthcoming or deceitful, reasonable or
argumentative, honest or biased." Kelly v. Kelly, 445 S.W.3d 685, 694-695 (Tenn. 2014).
Here, the Court finds Mr. Miles a credible witness. He appeared calm, at ease, self-
assured, steady, confident, forthcoming, reasonable and honest.
Amley questioned Mr. Miles' credibility because his interrogatory answer reported
that he injured his "left" shoulder rather than his right. It also attempted to discredit him
based on his inability to recall selecting the panel physicians. The Court is unpersuaded.
Mr. Miles adequately explained the discrepancies. In particular, the Court finds plausible
his inability to remember signing the panels, given that he suffered a head injury and
3
injury and reported memory problems to the physicians. Amley also contended that Mr.
Miles did not complain of shoulder pain until after Dr. Graham released him, asserting
that the medical records do not document his complaints during his treatment. This is
incorrect. While Dr. Graham's records do not mention shoulder pain, the Occ Med
records list "shoulder strain/sprain" as an assessed condition at Mr. Miles' very first visit.
Therefore, the Court holds Mr. Miles has presented sufficient evidence from
which this Court concludes that he is likely to prevail at a hearing on the merits regarding
his entitlement to additional medical benefits. His request is granted.
IT IS, THEREFORE, ORDERED as follows:
1. Amley or its workers' compensation carrier shall provide a panel of orthopedic
specialists.
2. This matter is set for a scheduling hearing on October 8, 2018, at 8:45 a.m.
Central. You must call 615-532-9552 or toll-free at 866-943-0025 to participate.
Failure to call may result in a determination of the issues without your
participation.
3. 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.go 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 August 8, 2018.
Court of Workers' Comp~
4
APPENDIX
Exhibits:
1. Affidavit
2. Composite medical records
3. Wage statement
4. Occupational and Environmental Medicine records (Identification only)
5. Panel
6. Panel
7. Occupational and Environmental Medicine records
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
CERTIFICATE OF SERVICE
I certify that a copy of the Expedited Hearing Order was sent to these recipients by
the following methods of service on August 8, 20 18.
Name Certified Via Via Service sent to:
Mail Fax Email
Allen Brown, X abrown@bughesandcoleman .com;
employee's attorney sconner@hughesandcoleman.com
David Hatfield, X dhatfie ld@dmrgclaw .com
employer's attorney
m, Clerk of Court
Court of orkers' Compensation Claims
WC.CourtClerk@ 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