The opinion
FILED
Jan 02, 2019
02:02 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT GRAY
AMANDA PERRY, ) Docket No. 2018-02-0065
Employee, )
v. )
OCOEE SYCAMORE )
RETIREMENT CENTER, LLC ) State File No. 41001-2017
Employer, )
and )
GREAT AM. ALLIANCE INS. CO., )
Carrier. ) Judge Robert Durham
EXPEDITED HEARING ORDER DENYING MEDICAL BENEFITS
This case came before the Court for an Expedited Hearing on December 19, 2018.
The issue is whether Ms. Perry is entitled to reimbursement for unauthorized medical
expenses following settlement of her workers' compensation claim. The Court holds that
Ms. Perry is not likely to establish that Ocoee Sycamore Retirement Center (OSRC) is
required to pay her unauthorized expenses and denies her request.
History of Claim
On June 5, 2017, Ms. Perry injured her thoracic and lumbar spine at work. After
conservative care failed to resolve her symptoms, OSRC provided a panel of
neurosurgeons, and she chose Dr. Jody Helms to provide authorized treatment.
On Ms. Perry's first visit, Dr. Helms noted her MRI revealed a T12-L1 herniated
disc, which he attributed to her work injury, as well as a small, degenerative disc bulge at
L5-S 1. He did not feel her complaints corresponded to lumbar radiculopathy. He
ordered additional physical therapy, which Ms. Perry underwent, but it only provided
minor relief. She returned to Dr. Helms complaining of pain down her leg and her
shoulder blades and chest. Dr. Helms did not believe that the arm and chest complaints
were due to radiculopathy or that her leg complaints required surgical care. He
recommended a steroid injection, which Ms. Perry declined. Therefore, at her request, he
ordered chiropractic visits and more physical therapy.
When Ms. Perry returned, she told Dr. Helms that conservative care helped some,
but she still experienced low back pain as well as numbness and tingling in both legs. Dr.
Helms observed that her symptoms did not follow a dermatomal pattern, ruling out
radiculopathy. She also complained of neck pain and dizziness, which he felt were
unrelated to her work injury. Despite her concerns, he returned her to work at light duty.
In October, Ms. Perry saw Dr. Helms for the last time. She complained of low
back pain with numbness and tingling in both legs. On exam, Dr. Helms noted give-way
weakness in all muscle groups and "patchy" numbness in both legs. He felt her exam
was "completely unreliable." He noted he had nothing more to offer for Ms. Perry's
complaints, and he released her without restrictions with a two-percent impairment
rating. However, he ended the record by stating he would "see her back p.r.n."
On February 6, 2018, Ms. Perry settled her workers' compensation claim for her
impairment rating and open medical benefits for her thoracic and lumbar injuries. The
agreement named Dr. Helms as the authorized physician. In March, Ms. Perry filed a
Petition for Benefit Determination seeking additional medical benefits, specifically, a
panel of neurosurgeons to replace Dr. Helms. OSRC initially refused another panel. Ms.
Perry then sought treatment on her own, including multiple chiropractor visits and "cold
laser" treatments recommended by the chiropractor. Following mediation in August,
OSRC agreed to allow Ms. Perry to choose another authorized physician from a panel
comprised of the original panel plus a replacement for Dr. Helms. Ms. Perry declined.
Before the hearing, OSRC filed a motion to dismiss Ms. Perry's PBD on the
grounds that it offered a valid panel to replace Dr. Helms, but she refused to choose
another neurosurgeon. Ms. Perry agreed to select a doctor from the panel, but she stated
she had incurred significant unauthorized medical expenses before the proffered panel for
which she wished to be reimbursed. Given that the PBD cited "medical benefits" as an
issue, the Court declined to grant OSRC's motion to dismiss.
At the hearing, Ms. Perry attempted to introduce a bill from her chiropractor
outlining her unauthorized medical expenses since March. The statement was not
accompanied by records signed by a physician, other than a few chiropractic
examinations, or an affidavit from a records custodian. The only record potentially
addressing whether the treatment provided related to Ms. Perry's work-related injuries
was a note from a chiropractic therapy assistant. Finally, the records provided no medical
opinion as to the reasonableness and necessity of Ms. Perry's unauthorized treatment.
OSRC objected to the admission of these records on the grounds that they constituted
hearsay and lacked authentication. The Court upheld the objection, with the exception of
the chiropractic examinations, and excluded the records from evidence.
Ms. Perry testified that she did not return to Dr. Helms for several reasons. She
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claimed that at her second to last visit, he seemed skeptical of her complaints and
dismissive as to her limitations. When she attempted to bend down to show her range of
motion, he pushed the back of her head, causing increased pain in her low back. She
returned in October with her husband, but he was not allowed in the examining room
with her. She said that Dr. Helms remained brusque and skeptical. He told her there was
nothing more he could do for her. Thus, even though she knew she could "return p.r.n,"
she did not see the point. Ms. Perry admitted that she never attempted to return to Dr.
Helms following the October 2017 visit. She also admitted that she knew at the time of
her settlement that the agreement named Dr. Helms as her authorized physician. She
testified that she did not choose a doctor from the panel provided in August because it
only replaced Dr. Helms and did not constitute an entirely new panel.
Findings of Fact and Conclusions of Law
Ms. Perry need not prove every element of her claim by a preponderance of the
evidence to obtain relief at an expedited hearing. Instead, she must present sufficient
evidence that she 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).
The primary issue is whether Ms. Perry is entitled to reimbursement for
unauthorized expenses for treatment of her lumbar and thoracic spine injuries. The
parties agreed on February 6, 2018, that Dr. Helms would be Ms. Perry's authorized
physician. Ms. Perry admitted that she did not seek additional treatment with Dr. Helms
after this agreement but instead underwent unauthorized care. However, she argued that
she was entitled to seek this treatment given Dr. Helms' skeptical, dismissive attitude.
Whether an employee is justified in obtaining unauthorized medical treatment and
then requiring reimbursement for the cost of this treatment depends upon the
circumstances. Hackney v. Integrity Staffing Solutions, 2016 TN Wrk. Comp. App. Bd.
LEXIS 29, at *8-9 (July 22, 2016). Here, the Court finds that the circumstances did not
justify Ms. Perry's unauthorized treatment.
Before an employee may seek unauthorized treatment, the employer must first be
given an opportunity to determine whether the proposed treatment is reasonable and
necessary for the work injury. !d. Although Dr. Helms was skeptical of Ms. Perry's
symptoms, and he stated he had nothing further to offer, he qualified this statement by
indicating he "would see her p.r.n." By refusing to even attempt to see Dr. Helms again,
Ms. Perry did not give either him or OSRC the opportunity to provide additional
authorized treatment.
The Court acknowledges that Ms. Perry felt Dr. Helms marginalized her
complaints and questioned her credibility during his course of treatment; however, those
3
feelings alone do not justify transferring her care to another doctor without an attempt to
return to Dr. Helms. See Baker v. Electro lux, 2017 TN Wrk. Comp. App. Bd. LEXIS 65,
at *8-9 (Oct. 20, 2017) (employee's dissatisfaction with authorized doctor's care not
enough to require the employer to authorize treatment with another physician).
In addition, OSRC attempted to settle the matter in August by offering to replace
Dr. Helms on the original panel and to allow Ms. Perry to select another treating
physician. he Court finds the new panel is in compliance with Tennessee Code
Annotated section 50-6-204(3)(0), but Ms. Perry declined to choose a new physician.'
Thus, even if Ms. Perry were correct in her assertion that she was reasonable in believing
Dr. Helms would no longer treat her, OSRC remedied that issue with the August panel.
Finally, Ms. Perry argued that, even if the August panel were valid, she was still
entitled to the unauthorized expenses she incurred after she filed the Petition for Benefit
Determination in March until OSRC offered the panel in August. However, even
assuming that she was justified in seeking unauthorized treatment during this timeframe,
she still must prove the expenses were reasonable, necessary and causally-related to her
work injury. Ms. Perry did not offer any doctors' opinions to meet these requirements.
Thus, the records admitted into evidence were insufficient to satisfy her burden even if
she was justified in seeking treatment from someone other than Dr. Helms.
Therefore, Ms. Perry's requests for reimbursement of unauthorized expenses and
an additional panel are denied at this time. Given that this matter arose following
settlement of the claim, there is no need to set a Scheduling Hearing.
ENTERED JANUARY 2, 2018.
~udgOCourt of Workers' Compensation Claims
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At the hearing, OSRC agreed that its offer to allow Ms. Perry to choose another doctor from the revised
panel remains in effect.
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APPENDIX
Technical Record
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Employer's Motion to Dismiss
5. Order Denying Motion to Dismiss
6. Transfer Order
7. Employer's Motion in Limine
8. Employer's Expedited Hearing Brief
9. Employer's Witness and Exhibit List
Exhibits
1. Settlement Agreement with Approval Order
2. Ms. Perry's affidavit
3. Choice of Physician Form
4. Medical records from Dr. Breeding
5. Medical records from Dr. Helms
6. Mary Chambers' affidavit
7. Chiropractic records from Dr. Wingate
8. Letter from Cindy Eller, CTA and attached medical bill summary (for I.D. only)
9. Medical bill outlining amount due (for I.D. only).
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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 January 2, 20 19.
Name Certified Email Service sent to:
Amanda Perry X X Alwavscleanin .ao(a2gmai l.com
David Goudie X dgoudie@ morganakins.com
--~--~-1------------------------
Penny S 1":' m, Court Clerk
Court of Workers' Compensation Claims
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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.
.
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