The opinion
FILED
May 21, 2019
10:36 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT MEMPHIS
EARY JONES, ) Docket No. 2019-08-0010
Employee, )
v. )
TECHNICOLOR, ) State File No. 41687-2017
Employer, )
And )
ACE AMERICAN INS. CO., ) Judge Allen Phillips
Carrier. )
EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS
(DECISION ON THE RECORD)
This case came before the Court on Mr. Jones's Request for an Expedited Hearing
on the record. Technicolor did not oppose a record review, and the Court determined it
needed no additional evidence to decide the issue. The Court allowed the parties until
May 8, 2019, to file position statements. The contested issue is whether Mr. Jones may
return to Dr. Apurva Dalal, a physician he chose from a pane1. 1 For the following
reasons, the Court holds Mr. Jones would likely prevail at a hearing on the merits and
orders that Technicolor allow him to return to Dr. Dalal.
History of Claim
On May 30, 2017, Mr. Jones fell from a loading dock, landing on his right leg and
lower back. After an initial medical evaluation, Technicolor provided a panel of
physicians from which he chose Dr. John Lochemes.
Dr. Lochemes noted Mr. Jones complained primarily of right-hip and thigh pain.
He diagnosed a right-hip contusion and recommended an MRI of the right hip and leg,
both of which were negative for an acute injury. Dr. Lochemes recommended a second
1
Mr. Jones also requested attorney's fees for wrongful denial.
opinion by stating that a physician who treats hip injuries "would be a likely pick." He
said he would "follow-up" with Mr. Jones after the second opinion.
Technicolor arranged a second opinion with Dr. Tyler Cannon, who described his
evaluation "as a second opinion with a potential to treat." He found "the focal point" of
Mr. Jones's pain was "over the mid-thigh," so he recommended an MRI of the right
thigh. It "demonstrated no abnormalities." No other notes from Dr. Cannon appear in the
record.
Technicolor then offered Mr. Jones a second panel that included Dr. Dalal. Dr.
Dalal recorded Mr. Jones's history and reviewed the records of Drs. Lochemes and
Cannon. He ordered MRis of both the knee and back. At a follow-up, Dr. Dalal reviewed
the knee MRI but noted the back MRI had not been performed. He asked the case
management nurse to schedule the back MRI and indicated he would see Mr. Jones
afterward. No other notes from Dr. Dalal appear in the record.
Technicolor then scheduled an "independent medical evaluation" with Dr.
Christopher Ferguson. An incomplete note indicates that he, like Dr. Dalal, recommended
an MRI of Mr. Jones's back, and he also requested a right-leg EMG. The EMG was
normal, and the back MRI showed only degenerative changes. Dr. Ferguson later stated
the following in response to questions posed by Technicolor:
• Mr. Jones reached maximum medical improvement.
• He had no permanent impairment.
• Mr. Jones underwent a complete workup for his injuries.
• He needed no further treatment.
• Mr. Jones could return to work without restrictions.
Mr. Jones then returned to Dr. Lochemes, who stated the right-hip contusion had
resolved and assigned an impairment rating. Dr. Lochemes released Mr. Jones to return to
work without restriction but added he "was at a loss to explain all of our negative
testing." Although Dr. Lochemes stated he made the referral to Dr. Ferguson, the Court
found no record of that referral. Dr. Lochemes injected Mr. Jones's right hip in "another
attempt at trying to offer the patient some relief."
Based on this record, Mr. Jones argued the Court should compel Technicolor to
allow him to return to Dr. Dalal for evaluation and any necessary treatment. He
contended that his selection of Dr. Dalal from a panel made him an authorized treating
physician. As a result, the treatment recommended by Dr. Dalal, including a follow-up
visit, is presumed reasonable and necessary under Tennessee Code Annotated section 50-
6-204(a)(3)(H) (2018). Finally, Mr. Jones argued that Technicolor wrongfully denied his
claim, and he should receive attorney's fees and costs under Tennessee Code Annotated
section 50-6-226(d)(l)(B).
2
For its part, Technicolor contended Mr. Jones was not entitled to return to Dr.
Dalal because Dr. Lochemes did not intend to "transfer" care by requesting the second
opinion. Instead, Dr. Lochemes stated he would see Mr. Jones after the second opinion.
Further, Tennessee Code Annotated section 50-6-204(a)(3)(C) provides that an
employee's decision to obtain a second opinion "shall not alter the previous selection of
the treating physician or chiropractor." Thus, Technicolor argued Dr. Lochemes remains
the authorized physician, and he and Dr. Ferguson completely evaluated Mr. Jones's hip
condition. Finally, Technicolor argued that Mr. Jones did not rebut Dr. Lochemes's
opinions regarding causation and impairment by a preponderance of the evidence.
Findings of Fact and Conclusions of Law
Mr. Jones must present sufficient evidence that he is likely to prevail at a hearing
on the merits. Tenn. Code Ann. § 50-6-239(d)(l). The Court holds he did.
Specifically, the Court finds the facts of this case are virtually identical to those in
Ledford v. Mid-Georgia Courier, Inc., 2018 TN Wrk. Comp. App. Bd. LEXIS 28 (June
4, 20 18). There, the authorized treating physician believed the employee "would benefit
from a second opinion and the physician who provided the second opinion would have an
option to treat." !d. at *5. The employer argued that the referring physician remained the
authorized physician and the other "was merely asked to provide a second opinion." !d. at
*4. Further, that employer argued that, under Tennessee Code Annotated section 50-6-
204(a)(3)(C), the "employee's decision to obtain a second opinion" did not change the
status of the authorized physician. !d. at *5.
The Appeals Board disagreed. It held that section (a)(3)(C) applies when an
employee requests a second opinion regarding surgery or diagnosis but not when a
physician makes a referral to another. Instead, the Board ruled that section (a)(3)(A)(ii) is
controlling. Namely, when a physician makes a referral, then the employer is deemed to
have accepted the referral unless it provides a panel within three days. !d. at *7. Even
though the employer in Ledford did not provide a panel within three days, the Board
found it provided one and the employee selected a physician from it. !d. at *6. Thus, the
Board held: "When an employer offers a panel of physicians pursuant to section 50-6-
204(a)(3)(A)(ii) ... the new physician becomes an authorized treating physician pursuant
to Tennessee Code Annotated section 50-6-204(a)(3)(E)." !d.
In this case, Dr. Lochemes recommended a second opmwn, and Technicolor
provided one from Dr. Cannon. The record is silent as to why it later provided a second
panel that included Dr. Dalal. However, regardless of the reason, Technicolor provided
the panel from which Mr. Jones chose Dr. Dalal. At that point, Dr. Dalal became an
authorized treating physician whose treatment is presumed medically necessary under
Tennessee Code Annotated section 50-6-204(a)(3)(H). Thus, the Court holds that Mr.
Jones is entitled to return to Dr. Dalal.
3
Before concluding, the Court holds that Mr. Jones's request for attorney's fees for
wrongful denial is inappropriate at this time. In Thompson v. Comcast Corp., 20 18 TN
Wrk. Comp. App. Bd. LEXIS 1, at *29 (Jan. 30, 2018), the Appeals Board held that
awards of attorney's fees are inappropriate at the interlocutory stage absent "extremely
limited circumstances." The Court holds this case does not fall within "extremely limited
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:
1. Mr. Jones's request to return to Dr. Dalal is granted. Technicolor shall approve the
return appointment and provide any reasonable and necessary treatment under
Tennessee Code Annotated section 50-6-204(a)(l)(A) as recommended by Dr.
Dalal.
2. Mr. Jones's request for attorney's fees is denied at this time.
3. This matter is set for a Status Hearing on Monday, August 26, 2019, at 9:00a.m.
Central time. The parties must call 731-422-5263 or toll-free 855-543-5038 to
participate in the Hearing.
4. 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.
5. For questions regarding compliance, please contact the Workers' Compensation
Compliance Unit via email at WCCompliance.Program@tn.gov.
ENTERED May 21, 2019.
mpensation Claims
4
APPENDIX
The Court considered the following record:
1. Petition for Benefit Determination
2. Dispute Certification Notice, including Technicolor's additional defenses
3. Request for Expedited Hearing
4. Affidavit ofEary Jones
5. Employer's Position Statement to mediator
6. Collective Medical Records
7. Dr. Lochemes's Opinion Letter
8. Employee's Choice of Physician Form (Form C-42) (including Dr. Dalal)
9. Wage Statement
10. Employee's Expedited Hearing Brief
11. Employer's Position Statement
CERTIFICATE OF SERVICE
I certify that a copy of this Expedited Hearing Order was sent to the following recipients
on May 21,2019.
Name Email Service Sent To:
Monica R. Rejaei, X mrejaei@nstlaw .com
Employee's Attorney jkamovich@nstlaw .com
Scott Vincent, X Scott. vincent@mgclaw .com
Employer's Attorney J aclyn.bogart@mgclaw .com
5
Exp dited Hearing Order Right to AppeaJ:
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:
l. 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 lndigency 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 I: - - - - - - - - - -
www.t n.gev/la bor-wfd/wcomp.shtml
State File #/YR: - - - - - - - -
wc.courtclerk@tn.gov
1-800-332-2667 RFAI#: ___________________
Date of lojury: - - - - - - - - -
SSN: ____________________
Employee
Employer and Carrier
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]
0 Temporary disability benefits
0 Medical benefits for current injury
0 Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): ________________;At 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 addft{onal sheet for each additional Appellant"
LB-1099 rev.4/15 Page 1 cf 2 RDA 11082
SF#: _ _ _ _ _ _ _ _ _ _ 001: _ _ _ _ __
Employee Name: - - - - - - - - - - -
Aopellee(s)
Appellee (Opposing Party): _ _ _ _ _ _ _ _ At Hearing: OEmployer DEmployee
Appellee's Address: - - - - - - - - - - - - - - -- - - - - - - - - - - - - - -
Appellee's Phone:._ _ _ _ _ _ _ _ _ _ _ _ _ _Email:_ _ _ _ _ _ _ _ _ _ _ _ __
Attorney's Name: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ BPR#: - - - - - - - -
Attorney's A d d r e s s : ' - - - - - - - - - - - - - - - - - - - - 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 o f - J 20_.
[Signature of appellant or attorney for appellant]
LB-1099 rev.4/15 Page 2 of2 RDA 11082
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 Comp.$ per month beginning
Other $ per month beginning
LB-11 08 (REV 11115) 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: --------------L
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