The opinion
FILED
Oct 02, 2018
10:00 AM(CT)
TENNESSEE COURT OF
ett WORKERS' COMPENSATION
Sas e Be CLAIMS
i eI sah
NEN peed jee
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT JACKSON
CAROLYN MILLER, ) Docket No. 2018-07-0022
Employee, )
v. )
OLD FOLKS MISSION CENTER, INC., ) State File No. 86061-2017
Employer, )
And )
AMERISURE MUTUAL INS. CO., ) Judge Allen Phillips
Carrier. )
EXPEDITED HEARING ORDER FOR MEDICAL AND TEMPORARY
DISABILITY BENEFITS
Ms. Miller requested medical and temporary disability benefits for an arm injury.
Old Folks Mission Center (Mission) asserted she did not provide proper notice of her
injury and it did not arise primarily out of her employment. The Court held an Expedited
Hearing on September 18, 2018, and holds Ms. Miller came forward with sufficient
evidence that she likely would prevail at a hearing on the merits on both notice and
causation. Thus, she is entitled to some of the requested benefits.
History of Claim
Ms. Miller worked as a housekeeper at Mission, a nursing home. She described
her work as repetitive, involving mopping, sweeping, washing windows and wiping down
walls.
Ms. Miller said she reported a gradually-occurring right wrist and thumb injury on
September 25, 2017, to Duane Cherry, Mission’s administrator. She said Mr. Cherry did
not offer to send her to a doctor but instead told her to seek her own treatment. She
further stated she continued to ask Mr. Cherry to complete an injury report over the
following weeks.
For his part, Mr. Cherry denied Ms. Miller reported an injury on September 25.
He admitted she told him that her arm hurt, but he adamantly denied she said it was
work-related. He also denied telling Ms. Miller to seek treatment on her own.
After the September 25 conversation, Ms. Miller made an appointment with Dr.
Harold Antwine, an orthopedic surgeon whom she knew from his prior treatment of her
daughter. Ms. Miller saw him on September 27 and reported “a few week history of right
wrist and thumb pain” that was “gradual in onset with no injury.” Dr. Antwine diagnosed
de Quervain’s tenosynovitis and told her to return in three or four weeks. He did not
restrict Ms. Miller from work.
Ms. Miller returned to Dr. Antwine on October 26. He recorded that she worked as
a janitor and “does a lot of repetitive activity.” Dr. Antwine noted “that [activity]
certainly could be a causative factor for this current problem.” He also noted Ms. Miller
denied any injury at home. Dr. Antwine maintained his de Quervain’s diagnosis and took
her off work.
Ms. Miller said she gave the off-work slip to Mr. Cherry on October 27, but Mr.
Cherry said she gave it to him on November 3. He then completed a “First Report of
Work Injury” and noted Ms. Miller reported an injury on November 3 and that she last
worked on October 27. Mr. Cherry wrote “unknown” as to how the injury occurred and
added Ms. Miller was “alleging carpal tunnel.” Mr. Cherry said she did not report an
injury at any time other than November 3, and she “had to have reported on the 3rd” or
he would not have completed the report. Mr. Cherry recalled the report occurred after
Ms. Miller’s second visit to Dr. Antwine. On November 28, Mission’s carrier filed a
“Notice of Denial” on grounds of inadequate proof of causation and lack of notice.
Ms. Miller returned to Dr. Antwine on November 17, and he kept her off work.
She returned on December 15, and he recommended surgery. Dr. Antwine kept her off
work and set surgery for January 25, 2018. Ms. Miller testified she never had surgery
because Mission terminated her health insurance.
On December 15, Dr. Antwine placed an Addendum in Ms. Miller’s chart that said
her symptoms started in September 2017. On February 15, 2018, Dr. Antwine wrote
another addition, stating Ms. Miller spoke of “a lot of repetitive activity” that “certainly .
. could be a causative factor of [her] current problem.” He concluded the entry by
stating, “I would consider this a work-related injury due to the repetitive activity.”
Before the hearing, Mission moved for a continuance on grounds that it provided
Ms. Miller a panel of physicians on August 21, 2018. It contended that this made the
Expedited Hearing “moot,” and it wished to “avoid taking up the Court’s time.” Ms.
Miller objected. She argued she had “waited almost a year” for Mission to respond to her
request for benefits. Further, providing a panel did not address her other requests that Dr.
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Antwine be placed on the panel and that Mission pay her medical bills and temporary
disability benefits. The Court denied Mission’s motion.
At the Expedited Hearing, Ms. Miller contended Dr. Antwine’s statements
regarding work relation entitled her to all the requested benefits. Mission countered that
Ms. Miller was unclear regarding the onset of her condition but did not report any work
relation in September 2017 despite allegedly having problems for some time. It also
argued that Dr. Antwine’s statement that her work could be a causative factor does not
“come close” to the requisite level of proof. It pointed to Ms. Miller’s activities away
from work, such as housework and caring for a grandchild, which matched the purported
repetitive activity at work. It claimed Ms. Miller had “worked” Dr. Antwine for months
to get him to provide a favorable causation opinion. Mission asked the Court to deny her
request and dismiss the claim.
Findings of Fact and Conclusions of Law
Standard applied
Ms. Miller must come forward with sufficient evidence from which the Court can
determine she is likely to prevail at a hearing on the merits. Tenn. Code Ann. § 50-6-
239(d)(1) (2017).
Analysis
I) Notice
Adequate notice of an injury is an absolute prerequisite to the employee’s right to
compensation. Pool v. Jarmon D&Q Transp., Inc., 2016 TN Wrk. Comp. App. Bd.
LEXIS 9, at *8 (Feb. 18, 2016). Thus, at this expedited hearing, Ms. Miller must come
forward with sufficient evidence for the Court to determine she would prevail on the
issue at a hearing on the merits. Based on the evidence, Ms, Miller might have provided
notice on at least two different occasions.
Ms. Miller said she provided notice on September 25; Mission denies that she did.
The Court agrees with Mission. Specifically, the Court notes neither party denied the
conversation of September 25 — they simply disputed what Ms. Miller said. The Court
recognizes Ms. Miller sincerely believes she conveyed that she injured her arm at work.
However, after directly observing both witnesses, the Court finds Mr. Cherry testified
more credibly. He convincingly and adamantly repeated that Ms. Miller told him only
that her arm hurt but did not report an injury. He admitted she reported an injury on
November 3, and this admission belies any effort on his part to provide self-serving
testimony. Thus, the Court finds Ms. Miller did not convey “in plain and simple language
the time, place, nature, and cause of the accident resulting in injury” on September 25.
See Tenn. Code Ann. § 50-6-201(a)(2).
However, the Court finds Ms. Miller did convey this information on November 3.
On this point, Mr. Cherry testified Ms. Miller “had to have reported” on November 3, or
he would not have completed a First Report of Work Injury. He recalled something
“came up” about “carpal tunnel” in his communication with Ms. Miller, and he knew she
saw Dr. Antwine a second time. Thus, Ms. Miller’s statements on November 3
constituted adequate notice of her alleged injury.
Having determined when Ms. Miller provided notice, the Court turns to its legal
sufficiency. Ms. Miller reported an injury caused by repetitive work. When gradual
injuries occur, Tennessee law requires they be reported within fifteen days after the
employee:
(1) Knows or reasonably should know that the employee has suffered a
work-related injury that has resulted in permanent physical impairment;
or
(2) Is rendered unable to continue to perform the employee's normal work
activities as the result of the work-related injury and the employee
knows or reasonably should know that the injury was caused by work-
related activities.
Tenn. Code Ann. § 50-6-201(b).
Under these requirements, the Court holds Ms. Miller reported her injury to
Mission within fifteen days of when she became unable to perform her normal work and
Dr. Antwine mentioned a possible work connection. The Court holds she provided proper
notice.
2) Panel of physicians
The Court now turns to Mission’s obligation to provide a panel of physicians.
Tennessee Code Annotated section 50-6-204(a)(3)(A)() provides that when an employee
“has suffered an injury and expressed a need for medical care, the employer shall
designate [a panel of physicians].” (Emphasis added). Ms. Miller expressed a need for
medical care on November 3. Mission contested its obligation to provide benefits on
grounds of inadequate proof of causation and lack of notice.
Looking to Mission’s defenses, the Court has found Ms. Miller provided adequate
notice. In Pool, the Appeals Board explained that notice exists to provide an employer
“the opportunity to make a timely investigation of the facts while still readily accessible,
and to enable the employer to provide timely and proper treatment for the injured
employee.” /d. at *7. Further, employers have the opportunity after receiving notice to
conduct “a reasonable investigation” and make a decision on compensability within
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fifteen days of the notice of an injury. Tenn. Comp. R. & Regs. 0800-02-14-.04(6)
(August 2018). This opportunity to investigate prevents compelling an employer to
provide medical benefits without regard to any potential defenses. Hardin v. Dewayne 's
Quality Metals, 2015 TN Wrk. Comp. App. Bd. LEXIS 45, at *8 (Nov. 18, 2015). The
Court finds Mission had adequate opportunity to investigate the claim.
Next, the Court looks to the lack of medical evidence defense. On this point, the
Court holds Ms. Miller came forward with sufficient evidence to receive a panel of
physicians. In McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, at *9 (Mar. 27, 2015), the Appeals Board determined that an employee must
only come forward with sufficient evidence at an expedited hearing to show she likely
would prevail at a hearing on the merits but is not required to produce proof that her
condition was causally related to her work to receive a panel. Like the employee in
McCord, Ms. Miller established a work incident, medical evaluation for the resulting
symptoms, and that she reported the injury. Thus, Mission must provide a panel.
Mission ultimately provided a panel but offered no explanation as to why it did so
in August 2018, some ten months after the report of injury. The Court is unpersuaded that
the delay was appropriate based on Dr. Antwine’s opinions, particularly after he stated on
February 15 that Ms. Miller suffered from a work-related condition. Even then, Mission
waited another six months to provide a panel. The Court finds Mission’s delay violates
Tennessee Code Annotated section 50-6-118(12) requiring timely provision of a panel
and refers the case to the Penalty Unit for consideration of a penalty.
3) Inclusion of Dr. Antwine
A belated attempt to insist an injured worker treat with a panel physician after that
worker has established a doctor-patient relationship with another will not succeed,
particularly absent evidence other than assertion of the employer’s right to choose the
physicians. Burnette v. WestRock, 2017 TN Wrk. Comp. App. Bd. LEXIS 66, at *12
(Oct. 31, 2017). In Burnette, the employee established he expressed a need for medical
care and the employer knew he received medical treatment on his own. /d. at *13.
Likewise, there was an “absence of information supporting a compensability defense as
to the occurrence of the accident.” /d.
The Court finds comparable facts here and holds it inappropriate to compel Ms.
Miller to treat with another physician, given the relationship she has with Dr. Antwine.
Thus, the Court designates him as the treating physician.
4) Medical bills
Tennessee law is long-settled that an employer who does not timely provide a
panel risks being required to pay for treatment an injured worker receives on her own.
Burnette, at *10.
Here, Mission learned of Ms. Miller’s claimed injury on November 3. Two
medical bills in evidence contain dates of service for treatment of de Quervain’s
tenosynovitis after that date. Having found Mission should have provided a panel, the
Court holds she is entitled to payment of Dr. Antwine’s bills from November 17 and
December 15, 2017.
5) Temporary Total Disability Benefits
To establish entitlement to temporary benefits, Ms. Miller must show she (1)
became disabled from working due to a compensable injury, (2) a causal connection
between the injury and her inability to work, and (3) the duration of the period of
disability. Jones v. Crencor Leasing and Sales, TN Wrk. Comp. App. Bd. LEXIS 48, at
*7 (Dec. 11, 2015). In this case, Ms. Miller established she became disabled from
working due to an injury based on Dr. Antwine taking her off work as of October 30 to
December 15. On December 15, Dr. Antwine recommended surgery and kept Ms. Miller
off work through January 25, 2018, the date of the proposed surgery.
The Court finds Dr. Antwine totally restricted Ms. Miller from work from October
30, 2017, through January 25, 2018. The Court orders Mission to pay temporary total
disability benefits for that period. The Court will not infer under these facts that Dr.
Antwine would have totally restricted Ms. Miller for any other times, but she may present
evidence at a trial on the merits regarding further entitlement to temporary disability
benefits.
IT IS, THEREFORE, ORDERED as follows:
1. Mission shall provide medical treatment under Tennessee Code Annotated section
50-6-204(a)(1)(A) with Dr. Antwine is designated the authorized physician.
2. Mission shall pay Ms. Miller’s medical bills from Dr. Antwine’s office in the
amount of $70.00 for dates of service of November 17 and December 15, 2017.
Mission shall pay Ms. Miller temporary total disability benefits from October 30,
2017, through January 25, 2018, a period of twelve weeks and three days at the
rate of $235.15 per week, or $2,920.56.
Od
4. This matter is set for a Status Hearing on Monday, December 10, 2018, at 9:00
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a.m. Central time. The parties must call 731-422-5263 or toll-free 855-343-
5038 to participate in the Hearing.
. 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 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 WCCompliance.Program@tn. gov.
ENTERED this the 2™ day of October,
JUDGE AMLEN PHQALTPS
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
I.
SIAM AON
Medical Records of Dr. Harold Antwine
First Report of Work Injury
Notice of Denial of Compensation (C-23)
Off-work slips from Dr. Antwine
Wage Statement
Medical bills of Dr. Antwine
Pay stubs from October and November 2017
Job Description
Technical record:
ae MP
Petition for Benefit Determination
Dispute Certification Notice
Order Setting Case for Show Cause Hearing
Request for Expedited Hearing
Order Setting Case for Expedited Hearing
Employer’s Motion for Emergency Telephone Hearing
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7. Employer’s Motion to Continue Expedited Hearing
8. Employee’s Response to Motion to Continue Expedited Hearing
9. Employer’s Pre-Hearing Statement
10. Order on Employer’s Motion for Emergency Telephone Hearing
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 this the 2" day of
October, 2018.
Name Via Via Email Service Sent To:
Carolyn Miller, Employee x 46 Archwood Dr.
Jackson, TN 38301
A. Allen Grant, Employer’s Attorney x agrant@eraclides.com
Ryan Mirian, Employer’s Attorney rmirian@eraclides.com __
Penalty Unit x WCCompliance.Program@tn. gov
Li, an ' dh tor -
Penny Shrum, Court Clerk
Wce.courtclerk@tn.gov