Opinion

Adams, Terry V. v. East Tennessee Personal Care Service, LLC

  • 2019 TN WC 117
Court
Tennessee Court of Workers' Compensation Claims
Filed
Aug 1, 2019
Status
Published
On the bench
Pamela B. Johnson
Cited by
0 cases

The opinion

FILED

Aug 01, 2019

11:54 AM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT KNOXVILLE

TERRY V. ADAMS, ) Docket No. 2019-03-0154

Employee, )

V. )

EAST TENNESSEE PERSONAL )

CARE SERVICE, LLC, ) State File No. 27353-2018

Employer, )

And )

ACCIDENT FUND GENERAL )

INSURANCE COMPANY, ) Judge Pamela B. Johnson

Carrier. )

)

EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS

This case came before the Court for an Expedited Hearing on July 10, 2019. The

Court must decide whether Ms. Adams came forward with sufficient evidence

demonstrating that she is entitled to additional benefits. For the reasons below, the Court

holds Ms. Adams is entitled to ongoing medical benefits.

History of Claim

Ms. Adams worked as a personal aide for East Tennessee Personal Care Service

(ETPCS).' Her duties involved assisting clients with transportation and activities of daily

living. On March 5, 2018, another vehicle struck Ms. Adams’s personal vehicle while

transporting an ETPCS client. Ms. Adams immediately called the police and reported the

accident to her supervisor. After the police completed its report, Ms. Adams transported

her client and herself to the emergency room.

Although the police report indicated the parties were not injured, Ms. Adams

emailed her supervisor on the evening of the accident and stated, “The impact was so

'Two months after Ms. Adams’s injury, ETPCS joined Associated Home Care, an Amedisys company.

hard, I knew I needed to get checked out due to having thoracic stents in my body.”” She

provided her supervisor the hospital discharge paperwork and the traffic accident report

number. Ms. Adams completed a Tennessee Department of Safety and Homeland

Security Owner/Driver Report and noted that the accident resulted in injuries. She

additionally provided a written statement on March 23 and advised, “I had emergency

medical care, due to a pre-existing medical problem, but I may need additional medical

care.” In her statement, she requested that “the correct person who handles Workers’

Compensation contact me as soon as possible.”

ETPCS prepared a First Report of Work Injury on April 16 and noted, “INJURED

WORKER STATES CHEST, HEAD AND LOWER LEG PAIN.” (Emphasis in

original). That same day, the owner of ETPCS told Ms. Adams that the only provider she

could see was Farragut Family, but he did not give her an appointment date or any

documentation from workers’ compensation. In July, she contacted ETPCS’s carrier and

spoke to the adjuster, who told her the claim was “opened and closed.” On July 31, Ms.

Adams received a note with a telephone number for Farragut Family. However, when

she called to schedule an appointment, Farragut Family said that it needed her employer’s

authorization.

She ultimately received authorization and saw Dr. Gerald Russell at Farragut

Family on August 2. She reported neck and mid-back pain radiating down her left arm

after the March car accident. Dr. Russell ordered a cervical and thoracic MRI and

assigned restrictions. On August 30, Dr. Russell reviewed the MRI, which showed

degenerative disc disease in her cervical spine, and he suggested physical therapy and

“possible physiatry referral.”

Ms. Adams filed her Petition for Benefit Determination on February 5, 2019,

seeking additional medical treatment. At the Expedited Hearing, she asserted that

ETPCS unreasonably delayed authorization of her initial treatment and payment of her

medical bills. Ms. Adams acknowledged that she received a panel of physiatrists in

October 2018 and selected a physician.

ETCPS denied it unreasonably delayed Ms. Adams’s treatment or payment of

related bills. It asserted Ms. Adams did not initially request treatment, and the police

report noted no injuries. It also introduced its carrier’s claim payment report

demonstrating payment of benefits to or on Ms. Adams’s behalf. Specifically, the report

indicated it paid the ER physician’s March 5, 2018 charges on May 10, 2018, and the

corresponding March 5, 2018 hospital bill on July 1, 2019. It argued the bill was

* Ms. Adams testified she suffered from a preexisting aortic aneurysm and needed medical treatment

immediately.

improperly sent to Ms. Adams’s automobile insurer, who declined to pay the hospital

charges. ETCPS further noted it paid Ms. Adams’s mileage.

At the conclusion of the hearing, ETPCS confirmed its willingness to provide

additional treatment with Dr. Russell and a panel-selected physiatrist for Ms. Adams’s

work-related injuries. However, it argued other than continued authorized, causally-

related medical care for Ms. Adams’s injuries, no other benefits were due.

Findings of Fact and Conclusions of Law

To prevail at an Expedited Hearing, Ms. Adams must show she would likely

prevail at a hearing on the merits that she is entitled to additional benefits. See Tenn.

Code Ann. § 50-6-239(d)(1) (2018).

It became clear to the Court during the hearing that Ms. Adams filed the Petition

for Benefit Determination because she believed ETCPS neglected her. She testified she

took immediate action to ensure her client received prompt medical attention. She

contacted her supervisor from the scene of the accident to report the accident, and the

same day she sent the traffic accident report number and discharge papers. In contrast,

she said ETCPS showed little concern for her well-being. She testified it did not

immediately offer her treatment or pay her emergency room care.

ETCPS argued that the police report noted no injuries, and Ms. Adams did not ask

for treatment. However, the evidence showed Ms. Adams requested treatment as of

March 23, but ETCPS did not provide it until August 2.

The Court finds Ms. Adams a credible employee who placed her client’s needs

above her own. While Ms. Adams ensured her client was evaluated and treated if

necessary, ETCPS did not extend the same courtesy to her. ETCPS eventually provided

authorized medical treatment and paid her emergency room bills and mileage, but the

delay caused discord between the parties and led to litigation.

The Workers’ Compensation Law requires an employer to provide an injured

employee with medical treatment made reasonably necessary by a work accident. Tenn.

Code Ann. § 50-6-204. To do so, following notice of injury and request for medical care,

the employer must provide the injured employee with a panel of physicians within three

business days. Tenn. Comp. R. & Regs. 0800-02-01-.06(1). Additionally, medical bills

must be paid within thirty calendar days of receipt of a properly submitted and complete

bill. Tenn. Comp. R. & Regs. 0800-02-17-.10(7) (2018). Failure to timely provide a

panel of physicians and medical treatment exposes the employer to penalties under

Tennessee Code Annotated section 50-6-118.

The Court finds ETCPS failed to timely provide Ms. Adams medical treatment

and to timely pay her medical bills. Ms. Adams gave ETCPS notice and requested

treatment by March 23, 2018, but ETCPS did not authorize it until shortly after July 31,

2018—a four-month delay. ETCPS further did not pay Ms. Adams’s March 5, 2018

emergency room bills until July 1, 2019 — an almost fifteen-month delay. Accordingly,

the Court refers this case to the Compliance Unit for investigation and assessment of

penalties under Tennessee Code Annotated section 50-6-118 and Tennessee Compilation

Rules and Regulations 0800-02-01 et seq. Further, the Court holds Ms. Adams is entitled

to ongoing medical treatment under Tennessee Code Annotated section 50-6-204.

IT IS, THEREFORE, ORDERED as follows:

1. ETCPS shall provide ongoing medical treatment for Ms. Adams’s work injuries by

authorizing a return appointment with Dr. Russell and scheduling an appointment

with Ms. Adams’s selection from the previously-provided panel of physiatry.

2. This case is set for a Status Conference on November 18, 2019, at 1:30 p.m.

Eastern Time. The parties must call 865-594-0091 or 855-543-5041 toll-free to

participate in the Status Conference. Failure to appear by telephone might result

in a determination of the issues without the party’s participation.

3. 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.

4. For questions regarding compliance, please contact the Workers’ Compensation

Compliance Unit by email at WCCompliance.Program@tn.gov.

ENTERED August 1, 2019.

, fondo \2y Woe

PAMELA B. JOHNSON, JUDGE

Court of Workers’ Compensation Claims

APPENDIX

Technical Record:

1. Petition for Benefit Determination

Attachment-Employee Issues

Employer Correspondence-Employer/Fund Issues

Employee Correspondence

Employee Correspondence

Dispute Certification Notice

Request for Expedited Hearing

Notice of Expedited Hearing

Employer’s Response in Opposition to Request for Expedited Hearing

10. Employee’s Reply to Employer’s Response

11. Subsequent Injury Fund’s Expedited Prehearing Statement

CON DAARWH

Exhibits:

Affidavit of Terry V. Adams

First Report of Work Injury

Tennessee Electronic Traffic Crash Report

Notice of Workers’ Compensation Injury

Tennessee Department of Safety and Homeland Security Owner/Driver Report

Department of Intellectual and Developmental Disabilities Reportable Incident

Notice of Hospital Lien

Marked for Identification Only: Medical Records of Physicians Regional

Medical Center

9. Medical Records of Summit Medical Group, Internal Medicine Associates

10. Medical Records of Dr. Gerald Russell, Farragut Family Practice

11. Marked for Identification Only: Medical Records of Therapy Plus

12. Marked for Identification Only: Medical Expenses

13.Marked for Identification Only: Correspondence from Humana Financial

Recovery & Subrogation

14. Correspondence from United Heartland

15.Marked for Identification Only: Joe Neubert Collision Repair Preliminary

Estimate

16. Email Communications between Employee and Employer

17. Correspondence of Associated Home Care

18. United Heartland Claim Payment Report

19. Deposition Transcript of Terry V. Adams

OF Sa GN ba Se Be

CERTIFICATE OF SERVICE

I certify that a copy of the Expedited Hearing Order was sent as indicated on

August 1, 2019.

Name US. Fax | Email | Service sent to:

Mail

Terry V. Adams, x X | 5929 Loice Lane

Self-Represented Knoxville, TN 37924

Employee adamsterry367@gmail.com

Tiffany B. Sherrill, X | tbsherrill@mijs.com

Employer’s Attorney

Robert Davies, xX robert.davies@tn.gov

Fund Attorney

Loy

Mum

PENNY SARI, Court Clerk

WC.CourtCli’k@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. 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.

LB-1099

EXPEDITED HEARING NOTICE OF APPEAL

Tennessee Division of Workers’ Compensation

www. tn.gov/labor-wid/weomp.shtml

wce.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: LJEmployer LJEmployee

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: L]JEmployer 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,

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

, certify that | have forwarded a true and exact copy of this

[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 Ail Dependents:

Relationship:

Relationship:

Relationship:

Relationship:

6. lam 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

ssl $ 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 I 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

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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