The opinion
FILED
Apr 18, 2019
02:08 PM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT CHATTANOOGA
Darrell B. Morton, ) Docket No.: XXX-XX-XXXX
Employee, )
V. )
Alexian Village of Tennessee, ) State File No.: 6329-2016
Employer, )
And )
Ascension Health, ) Judge Audrey Headrick
Self-Insured Parent Co. )
EXPEDITED HEARING ORDER
(DECISION ON THE RECORD)
This matter came before the Court on Darrell B. Morton’s Request for an
Expedited Hearing on the record.’ Alexian Village accepted Mr. Morton’s right-shoulder
injury as work-related but denied the referral for his right-cubital tunnel syndrome. The
issue is whether Mr. Morton is likely to establish at trial that he is entitled to medical and
temporary disability benefits for his cubital tunnel syndrome. For the reasons below, the
Court awards medical benefits but denies his claim for temporary disability benefits.
History of Claim
While working as a bus driver at Alexian Village on January 20, 2016, Mr.
Morton slipped on an icy sidewalk injuring his right arm. Alexian Village provided a
panel, and Mr. Morton selected orthopedist Dr. Todd Bell. Between March 2016 and
October 2017, Dr. Bell performed three shoulder surgeries for his rotator cuff tear.
Mr. Morton returned to Dr. Bell on March 8, 2018, five months after his third
surgery. Dr. Bell observed that Mr. Morton “complains of continued numbness/tingling
along the ulnar side of the hand.” Although Mr. Morton’s August 2017 EMG/NCS
' The Court issued a docketing notice allowing the parties until April 9 to file objections or submit
position statements. Alexian Village did not request an evidentiary hearing, and the Court determined it
needed no additional evidence to decide the issue.
showed right cubital tunnel syndrome, his office note showed the “onset date” as March
8, 2018. Dr. Bell ordered a “hand surgery referral” for the cubital tunnel syndrome.
Alexian Village requested Utilization Review (UR), and a reviewing physician
issued a report on March 19. After reviewing a “Referral Form dated 3/8/18 signed by
Dr. Bell,” a “Final Report dated 8/17/17,” and a “Referral Order dated 3/8/18,” the doctor
determined the referral was not medically necessary. He relied on two bases. First, the
EMG/NCS described the cubital tunnel syndrome as an incidental finding. Second,
“[t]here is no documentation of the claimant having any complaints regarding the ulnar
nerve distribution and if he is not symptomatic, a cubital tunnel referral would be
unnecessary.” Based on the UR opinion, Alexian Village denied the referral.
Dr. Bell then scheduled Mr. Morton to see his colleague, Dr. Justin Arnold. Dr.
Arnold reported Mr. Morton complained of almost constant right-hand numbness and
tingling as well as some pain.’ He diagnosed Mr. Morton with cubital tunnel syndrome
and recommended surgery, which Alexian Village and Mr. Morton’s private insurance
denied.
In a December 2018 affidavit, Dr. Arnold addressed causation by concluding that
Mr. Morton’s cubital tunnel syndrome and resulting need for surgery arose primarily out
of his work-related fall on January 20, 2016. Dr. Arnold also stated he is not at
maximum medical improvement (MMI) for his cubital tunnel syndrome and “is
temporarily partially disabled.”
Alexian Village then sent Dr. Bell a causation letter. Dr. Bell responded that he
did “not have a medical opinion on his cubital tunnel syndrome” and deferred “to the
opinion of a qualified hand surgeon.” Alexian Village provided a panel of three hand
specialists in March, but Mr. Morton declined to select from it.
Mr. Morton asked the Court to order Alexian Village to designate Dr. Arnold as a
treating physician, the recommended surgery, reinstated temporary disability benefits,
and attorneys’ fees and costs.
Alexian Village disputed Mr. Morton’s requests. It argued Dr. Bell did not notify
it of a direct referral to Dr. Arnold; therefore, it does not have to provide treatment
recommended by Dr. Arnold because he is not an authorized treating physician. Further,
* Alexian Village acknowledged it inadvertently paid for two bills from Dr. Arnold, who is in the same
practice as Dr. Bell. Mr. Morton submitted a billing summary that reflects Dr. Arnold’s outstanding
charges and the charges inadvertently paid.
3 Dr. Bell placed Mr. Morton at MMI on August 18, 2018, and Alexian Village stopped paying temporary
disability benefits.
it contended the issue of temporary disability benefits cannot be determined until after
causation is addressed by an authorized treating physician.
Findings of Fact and Conclusions of Law
Standard Applied
To prevail at an expedited hearing, Mr. Morton must provide sufficient evidence
to show he would likely to prevail at a hearing on the merits in proving his claim for
medical and temporary disability benefits. See Tenn. Code Ann. § 50-6-239(d)(1)
(2018). The Court holds he would likely prevail in his claim for medical benefits but not
temporary disability benefits.
Medical Benefits
Alexian Village must provide Mr. Morton “medical and surgical treatment . . . as
ordered by the attending physician . . . made reasonably necessary by accident.” Tenn.
Code Ann. § 50-6-204(a)(1)(A). Likewise, any treatment recommended by the
authorized treating physician “shall be presumed to be necessary for treatment of the
injured employee.” Jd. at -204(a)(3)(H). Here, Dr. Bell, the panel physician,
recommended a hand surgeon referral for Mr. Morton’s cubital tunnel syndrome. The
law presumes the referral was medically necessary.
However, the law also provides a UR system that permits the employer to retain a
physician to perform a record review and determine the medical necessity of any
“recommended treatment,” including referrals for treatment. See generally Tenn. Code
Ann. § 50-6-124; Tenn. Comp. R. & Regs. 0800-02-06-.01 (Jan. 2017); Jd. at 0800-02-
06-.03(1). Here, Alexian Village denied Dr. Bell’s referral based on a UR review. While
the reviewing physician denied the referral in part because the cubital tunnel syndrome
was an “incidental finding,” he also incorrectly stated there was “no documentation of
{Mr. Morton] having any complaints regarding the ulnar nerve distribution.” Dr. Bell’s
March 8 office note reflects that Mr. Morton “complains of continued numbness/tingling
along the ulnar side of the hand.” Therefore, the Court gives little weight to the UR
determination.
Dr. Bell, the panel physician, referred Mr. Morton to a hand surgeon, and Alexian
denied it, at which time Dr. Bell referred him to Dr. Arnold for unauthorized treatment.
Tennessee Code Annotated section 50-6-204(a)(3)(A)(ii) states that an employer is
deemed to have accepted a referral to a specialist unless the employer provides a panel of
specialists to the employee within three business days. When such a referral is made, the
referral physician becomes the treating physician until treatment concludes and the
employee is referred back to the panel physician. See Tenn. Code Ann. § 50-6-
204(a)(3)(E).
Alexian Village neither provided a panel nor sought to address causation until it
received Dr. Arnold’s opinion in December 2018. It then attempted to obtain Dr. Bell’s
opinion and, after receiving his referral, offered Mr. Morton a panel of hand surgeons a
year after the referral. Once Alexian Village denied the cubital tunnel syndrome portion
of the claim, it ran the risk that it might later face responsibility for treatment obtained by
Mr. Morton. McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, at *13 (Mar. 27, 2015). Given the record, the Court holds Mr. Morton is likely
to prove at trial that he is entitled to additional medical treatment with Dr. Arnold,
including surgery, for his cubital tunnel syndrome.
Temporary Disability Benefits
Mr. Morton also requested temporary disability benefits. To receive temporary
total disability benefits, he must prove (1) he became disabled from working due to a
compensable injury; (2) a causal connection exists between the injury and his inability to
work; and (3) the duration of his disability. Jones v. Crencor Leasing and Sales, TN
Wrk. Comp. App. Bd. LEXIS 48, at *7 (Dec. 11, 2015). Concerning temporary partial
disability benefits, Mr. Morton is eligible for benefits if he earned less than his average
weekly wage due to work restrictions. See Tenn. Code Ann. § 50-6-207(2)(A).
Although Dr. Bell placed Mr. Morton at MMI for his right shoulder injury, Dr.
Arnold stated he is not at MMI for his cubital tunnel syndrome. Dr. Arnold also stated
that Mr. Morton “is temporarily partially disabled,” which is a legal conclusion. His
medical records are silent regarding which, if any, restrictions he placed on Mr. Morton.
Therefore, Mr. Morton’s request for temporary disability benefits is denied at this time.
Attorneys’ Fees
Ms. Morton’s counsel requested attorneys’ fees under Tennessee Code Annotated
section 50-6-226(d)(1)(B). This statute does not set a time for attorneys’ fee awards, but
the Appeals Board stated:
Given the uncertainties inherent in litigation, the limited issues
typically addressed at expedited hearings, the fact that discovery and
medical proof often are incomplete at an interlocutory stage of a case, the
standard of proof that applies at expedited hearings, and the fact that a trial
judge’s determinations at an interlocutory hearing are subject to change at
any time prior to the entry of a final compensation hearing order, a decision
to award attorneys’ fees and expenses at an interlocutory stage of a case
should be made only in extremely limited circumstances.
Thompson v. Comcast Corp., 2018 TN Wrk. Comp. App. Bd. LEXIS 1, at *28-29 (Jan.
30, 2018). The Court holds this case does not fall within “extremely limited
4
circumstances” to justify an award of attorneys’ fees at this interlocutory stage. Thus, the
Court denies this request at this time.
IT IS, THEREFORE, ORDERED as follows:
I.
pa
Mr. Morton’s request for temporary disability benefits is denied at this time.
Mr. Morton’s request for an award of attorneys’ fees and costs is denied at this
time.
Dr. Arnold is designated as Mr. Morton’s treating physician for treatment of his
work-related right-cubital tunnel syndrome. Alexian Village shall provide Mr.
Morton additional medical treatment, including the recommended surgery, for his
right cubital tunnel syndrome under Tennessee Code Annotated section 50-6-204.
Further, Alexian Village shall pay all medical expenses incurred through Dr.
Arnold’s treatment of his work-related injury.
This matter is set for a Status Hearing on Wednesday, June 19, 2019, at 1:00 p.m.
Eastern Time. You must call 423-634-0164 or toll-free at 855-383-0001 to
participate. Failure to call may result in a determination of the issues without your
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 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
Compliance Unit via email at WCCompliance.Program@tn.gov.
ENTERED April 18, 2019.
AUDREY.A. HEADRICK
Workers’ Compensation Judge
APPENDIX
Exhibits:
Affidavit of Darrell Morton
Affidavit of Justin Arnold, M.D.
Panel
Medical records of Center for Sports Medicine
Billing records of Center for Sports Medicine
Medical records of Dr. Tareck Kadrie
Demand notice
January 25, 2016 Physicians Care note
Affidavit of Stephanie Parker
10. Second opinion
11. Peer Review Report
12. December 7, 2018 letter
13. December 12, 2018 letter
14. January 11, 2019 letter
15. February 12, 2019 response of Dr. Bell
16. March 7, 2019 letter with panel
17. March 8, 2019 e-mail
ae SS Se eS
Technical record:
2e7 5 22F
Petition for Benefit Determination (PBD)
Dispute Certification Notice
Request for Expedited Hearing
Employee’s Brief Supporting PBD
Notice of No Objection
Docketing Notice
Employer’s Statement
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of this Expedited Hearing Order was sent to
the following recipients by the following methods of service on April 18, 2019.
Name Certified Email | Service sent to:
Tim Henshaw, x tim(@mcmahanlawfirm.com
Employee’s Attorney
Lee Anne Murray, Xx leeamurray(@feeneymurray.com
Employer’s Attorney
sheila@feeneymurray.com
fy A
I . . #0
y CAM yr Shad bw Ay eermnisar?
PENNY SHRUM, COURT CLERK /
we.courtclerk(@tn. gov
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 fen
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.
LB-1099
EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers’ Compensation
www,tn.pov/labor-wfd/weomp.shtm!
wc.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
LC] Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): At Hearing: LlEmployer Employee
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 *
rev. 10/18 Page 1 of 2 RDA 11082
Employee Name: SF#: DOI: _
Appellee(s)
Appellee (Opposing Party): At Hearing: Employer LIEmployee
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, |-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:
m
. lam employed by:
My employer's address is:
My employer’s phone number is:
~W
. 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 Suppont $ 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 compiete
and that | am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
day of
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV 11/15)
, 20
RDA 11082