The opinion
FILED
Jan 24, 2019
03:04 PM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT CHATTANOOGA
Jason Rhodes, ) Docket No.: 2018-01-0349
Employee, )
Vv. )
Amazon.com, LLC, ) State File No.: 33747-2018
Employer, )
And )
American Zurich Insurance Company, ) Judge Thomas Wyatt
Carrier. )
)
EXPEDITED HEARING ORDER FOR MEDICAL AND TEMPORARY
PARTIAL DISABILITY BENEFITS
This matter came before the Court on January 14, 2019, for an Expedited Hearing
to determine if Jason Rhodes should receive a panel or treatment by an orthopedist of his
choice despite his refusal to see an orthopedist referred by the authorized treating
physician. Mr. Rhodes also seeks temporary partial disability benefits for a period during
which Amazon did not accommodate his restrictions. For the reasons below, the Court
holds Mr. Rhodes is entitled to medical and temporary partial disability benefits.
History of Claim
Mr. Rhodes injured his foot at Amazon when it was struck by a falling box
containing sheet lead. He timely reported the injury, and Amazon provided a panel
listing two walk-in clinics and orthopedist Dr. Rickey Hutcheson. Mr. Rhodes selected
one of the clinics because it was nearer his home in Ft. Oglethorpe, Georgia than Dr.
Hutcheson’s office in Cleveland, Tennessee.'
' Ft. Oglethorpe is a few miles south of Chattanooga. Mr. Rhodes testified that he resides in the
Chattanooga “community.” During the hearing, Amazon established that Dr. Hutcheson’s Ooltewah,
Tennessee office is closer to Chattanooga than Cleveland. However, it did not prove that it offered Mr.
Rhodes the option of seeing Dr. Hutcheson in Ooltewah.
Mt
Mr. Rhodes saw Dr. Natasha Ballard at the clinic the day after the injury. Dr.
Ballard diagnosed a contusion and returned him to restricted work including the use of an
open-toed walking boot. Mr. Rhodes testified Dr. Ballard told him Amazon would not let
her take him out of work and would not approve the walking boot.
Mr. Rhodes returned to Amazon, but its medical personnel did not clear him to
work because of the boot. They tried to fit it with a cap and an over-boot, but neither
sufficiently accommodated Mr. Rhodes’s return to work. He went to work on his next-
scheduled day, April 22, but an HR representative told him without explanation that he
was terminated. Mr. Rhodes remained out of work until June 2 when he obtained his
current job.
Mr. Rhodes saw Dr. Ballard on April 22 and 27. The doctor imposed more
stringent walking and standing restrictions and referred him to Dr. Hutcheson following
the April 27 visit. Mr. Rhodes did not see Dr. Hutcheson because he previously declined
to select him from Amazon’s panel due to the driving distance from his home.” When
Amazon insisted he see Dr. Hutcheson, Mr. Rhodes saw Chattanooga orthopedist Dr.
Jesse Doty instead.
Dr. Ballard testified by deposition that she saw Mr. Rhodes “[flor a foot injury that
he sustained while working at Amazon.” She provided a positive causation opinion:
“y]es, I said it was a contusion based on the box that fell on him at work.” She later
stated that the box falling on Mr. Rhodes’ foot primarily caused his foot injury. She
placed restrictions, including wearing a walking boot, following each visit.
Dr. Ballard referred Mr. Rhodes to Dr. Hutcheson because her treatment had not
alleviated his symptoms. She testified she selected Dr. Hutcheson because:
Dr. Hutcheson has just been, since we got the Amazon account, the
kind of preferred physician for Amazon, just we are told that, you know, for
orthopedic we prefer Dr. Hutcheson[.] Even though we are a panel state, it
depends on the employer and particularly their preference. Some
employers or case managers prefer certain physicians over others.
Typically, we do that just to help speed up the process, so they can get in to
see someone sooner.
Dr. Ballard conceded that several orthopedists practiced in close proximity to her
in Chattanooga. When asked if anybody told her to refer Amazon employees to Dr.
Hutcheson, Dr. Ballard answered, “[t]hat was told us by Michael Schock when we first
started the account[.] When we first got that, he had given us something that they wanted
Mr. Rhodes testified that Dr. Hutcheson’s Cleveland, Tennessee office was a fifty-mile roundtrip from
his home.
referrals to Dr. Hutcheson. So we’ve just kept that going ever since to him.” Dr. Ballard
later testified that, if Mr. Rhodes had not worked for Amazon, she would have referred
him to an orthopedist clinic “up the street because it’s easier and faster, honestly.”
Dr. Doty testified by deposition that saw Mr. Rhodes once, on May 11, and
diagnosed lateral foot strain with stress reaction of the fifth metatarsal bone. He stated,
assuming the truthfulness of Mr. Rhodes’s history that his foot was struck by a heavy
box: “I certainly think this could have been caused by the work-related accident that he
described.” Dr. Doty placed Mr. Rhodes in a boot. He returned him to sedentary work
for two weeks and on light duty for two weeks afterward. Dr. Doty testified that it is best
that patients receive treatment from physicians in whom patients trust and have
confidence, although that is not always feasible. He stated that he has referred patients to
specific physicians because “based on feedback from case managers with workers’ comp
... [know there are certain physicians that they work with and have relationships with.”
Mr. Rhodes argued that Amazon’s placement of Dr. Hutcheson as the sole
orthopedist on its panel, coupled with its requirement that the treating physician refer him
only to Dr. Hutcheson for orthopedic care, usurped his right under Tennessee law to
select his treating physician. Amazon countered that it complied with the law by giving
Mr. Rhodes a panel of three physicians upon receiving notice of his work injury. It
argued that the direct-referral statute does not impose restrictions or requisite criteria
governing the treating physician’s selection of a referral specialist. Thus, Amazon
contended that its acceptance of Dr. Ballard’s referral to Dr. Hutcheson bound Mr.
Rhodes to go to Dr. Hutcheson if he wants orthopedic treatment.
Findings of Fact and Conclusions of Law
Medical Benefits
At an expedited hearing, Mr. Rhodes must provide sufficient evidence from which
the Court can determine he is likely to prevail at a hearing on the merits. McCord v.
Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Mar. 27, 2015). The resolution of the medical-benefits issue here turns on whether Mr.
Rhodes can prove that the law allows him to compel a panel or see an orthopedist of his
own selection despite his refusal to see the orthopedist to whom the treating physician
referred him.
Mr. Rhodes first argued that his referral to Dr. Hutcheson is contrary to Tennessee
law because the doctor is outside his community. Mr. Rhodes is correct that Tennessee
Code Annotated section 50-6-204(a)(3)(A)(i) (2018) provides that an employer must
provide free medical care for an employee’s work injuries by offering a panel listing “a
group of three (3) or more independent reputable . . . specialty groups if available in the
injured employee’s community[.]” (Emphasis added.)
3
However, the parties did not provide, and the Court did not locate, a statutory or
judicial definition of “the injured worker’s community.” While the Workers’
Compensation Law references an employee’s “community” or “residence” in other
provisions relating to medical benefits,’ it does not provide a bright-line rule defining an
employee’s “community” for purposes of subsection 50-6-204(a)(3)(A)(i). The Court
holds that this absence indicates the general assembly’s intent that disputes on this issue
should be decided in view of what is fair under the totality of the applicable
circumstances.
The Court disagrees with Mr. Rhodes that Amazon violated the law by insisting
that he see an orthopedist in another city twenty-five miles away from his home. Had the
general assembly intended to impose boundary-related restrictions on the “community”
requirement, it could have used terms such as “city of residence” or “county of
residence,” but it did not. While seeing Dr. Hutcheson would be inconvenient for Mr.
Rhodes, the Court will not hold that the inconvenience is sufficiently unfair to exclude
Dr. Hutcheson as an appropriate physician under the “community” requirement.
Mr. Rhodes also contended that Amazon’s placement of Dr. Hutcheson as the only
orthopedist on its panel, coupled by its requirement that the treating physician send him
to Dr. Hutcheson if orthopedic care was needed, usurped his right to select a physician
under subsection 50-6-204(a)(3)(A)(i). He contends that the impact of Amazon’s scheme
was to direct him to a single physician in violation of the law.
Amazon is correct that the direct-referral process in subsection 50-6-
204(a)(3)(A)(ii) permits the treating specialist to make a referral to a specialist “[w]hen
necessary” and does not further restrict the specialist’s decision. This provision also
states that the employer is deemed to have accepted the referral unless it provides the
employee a panel of specialists within three business days of the date it received notice of
the referral. The statute is silent on whether the employee may request a panel after the
employer accepts the direct referral.
However, considering the facts here, the Court agrees with Mr. Rhodes that
Amazon essentially directed him to a single orthopedist. It placed only one orthopedist
on its panel and directed the treating physician selected by Mr. Rhodes to refer him to Dr.
Hutcheson, should he need orthopedic care.’ Mr. Rhodes never received an alternate
panel under subsection 50-6-2049(a)(3)(A)(ii) because, as would be expected, Amazon
3 See, e.g., subsection 50-6-204(a)(3)(b) (if three specialists do not practice in the employee’s community,
the employer can include specialists within a radius of 125 miles to fill out the panel); subsection 50-6-
204(j)(2) (employer can include pain management physicians within 175 mile radius of employee’s
residence or place of employment on panel); and subsection 50-6-204(a)(6)(A) (providing for mileage
reimbursement if the employee must drive more than fifteen miles for treatment.)
‘ The parties did not present evidence as to what would have resulted had Mr. Rhodes selected the other
walk-in clinic on the panel.
accepted the referral to Dr. Hutcheson that it directed Dr. Ballard to make. The issue thus
becomes whether the law affords Mr. Rhodes a remedy under these facts.
In Ducros y. Metro Roofing and Metal Supply Co., Inc., 2017 TN Wrk. Comp.
App. Bd. LEXIS 62, at *10-11 (Oct. 17, 2017), the employer directed the employee to a
single doctor for authorized care, who referred the employee to a specialist. After the
employee received treatment from the specialist, the employer provided a panel of
specialists from which the employee selected a new specialist. The employee became
dissatisfied with the panel specialist and requested permission to return to the first
specialist. He sought judicial recourse when the employer refused.
The Workers’ Compensation Appeals Board reversed a denial of the employee’s
request. It cited long-held Supreme Court precedent, holding: ‘“[rJeferring the employee
to a single physician does not comply with the statute; it is [a] usurpation of the privilege
of the employee to choose the ultimate treating physician.”’ Employers Ins. of Wausau v.
Carter, 522 §.W.2d 174, 176 (Tenn. 1975).
The Court holds Amazon’s requirement that walk-in clinics on its panel must refer
patients to Dr. Hutcheson is equivalent to directing orthopedic treatment to a single
physician. While the direct-referral statute does not specifically impose criteria on the
treating physician’s selection of a specialist, the Court holds that an employer fails to
comply with the spirit of the direct-referral statute when it removes the treating
physician’s neutrality by compelling referral to a specific specialist.
Therefore, the Court holds Mr. Rhodes established that, at a hearing on the merits,
he will likely prevail in proving his entitlement to see an orthopedist other than Dr.
Hutcheson. The Court orders that Amazon promptly provide a panel of orthopedists from
which to select a treating orthopedist. Upon receiving Mr. Rhodes’s selection, Amazon
shall schedule a timely appointment with the selected orthopedist in his community.
Temporary Partial Disability Benefits
The Court now turns to Mr. Rhodes’s claim to temporary partial disability
benefits. Temporary partial disability refers to the time, if any, during which the injured
employee is able to resume some gainful employment but has not reached maximum
recovery. Hackney v. Integrity Staffing Solutions, Inc., 2016 TN Wrk. Comp. App. Bd.
LEXIS 29, at *11 (July 22, 2016).
Here, Amazon terminated Mr. Rhodes on April 22, and he remained out of work
until June 1. Mr. Rhodes remained under partial disability as stated by both Drs. Ballard
and Doty. Mr. Rhodes testified he tried to obtain work during the applicable period but
was unsuccessful. Thus, he had no earnings during this period. In view of the above, the
Court holds Mr. Rhodes established that, at trial, he will likely prevail in proving his
° The Court’s decision on this issue moots Amazon’s argument that Mr. Rhodes should be denied benefits
because he refused authorized treatment.
entitlement to temporary partial disability benefits for five weeks and six days between
April 22 and June 1. Amazon shall file a wage statement with the Court within ten days
of this order, and it shall pay temporary partial disability benefits at the rate calculated in
the wage statement.
IT IS, THEREFORE, ORDERED as follows:
1.
Amazon shall promptly provide Mr. Rhodes a panel of orthopedists in his
community of residence and, upon receiving notice of his selection, it shall
schedule as prompt an appointment as possible.
Amazon shall pay temporary partial disability benefits covering the period
between April 22 and June 1. Amazon shall complete a wage statement and file it
within ten days of this order, and it shall pay this award at the rate in the wage
statement.
This matter is set for a Status Hearing on 2:00 p.m., Eastern Time, on April 15,
2019. You must call (615) 741-3061 or toll-free at (855) 747-1721 to participate
in the Status Hearing. You must call in on the scheduled date/time to participate.
Failure to call in may result in a determination of the issues without your further
participation.
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.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
ENTERED January 24, 2019.
[hook lo
Judge Thomas Wyatt
Court of Workers’ Compensation Claims
Exhibits:
ws
APPENDIX
1. Affidavit of Jason Rhodes
2.
3.
First Report of Injury
Medical Records Compilation
AFC Urgent Care
Dr. Jesse Doty
Deposition of Dr. Natasha Ballard, with exhibits
Panel form signed by Jason Rhodes
Tennessee Valley Bone & Joint website information
Google Maps information
Deposition of Dr. Jesse Doty
Dr. Doty’s response to medical questionnaire
Technical record:
OSI AARWNS
Petition for Benefit Determination
Dispute Certification Notice
Employee’s Additional Disputed Issue
Employer’s Additional Disputed Issue
Request for Expedited Hearing-On-the-Record Decision
Response in Opposition to On-the-Record Hearing
Order for In-Person Expedited Hearing
Notice of Expedited Hearing
. Employer’s Pre-Hearing Brief
10. Employer Witness and Exhibit List
11.Employee Brief Supporting PBD
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 24, 2019.
Name Certified | First | Email | Service sent to:
Mail Class
Tim Henshaw x tim(@memahanlawfirm.com
Employee Attorney missy@memahanlawfirm.com
Tiffany Sherrill Xx tbsherrill@mijs.com
Employer Attorney
Dewy Shrwin W
PENNY SHRUM, COURT CLERK
we.courtclerk(@tn.gov
purus.
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. Ifa 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.
EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers’ Compensation
www. tn gov/labor-wid/weomp.shtml
we.courtclerk@tn.gov
1-800-332-2667
Docket #:
State File #/YR:
Employee
Vv.
Employer
Notice
Notice is given that
[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]
L] Temporary disability benefits
L] Medical benefits for current injury
1 Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): At Hearing: Employer DiEmployee
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. 10/18 Page 1 of 2 RDA 11082
Employee Name: SF#H: DOI:
Appellee(s)
Appellee (Opposing Party): At Hearing: Employer LJEmployee
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 | 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. 10/18 Page 2 of 2 RDA 11082
Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, I-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, | 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. |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. | 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 Comp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) 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