Opinion

Bryan, David v. Ashley Distribution Services Ltd.

  • 2019 TN WC 138
Court
Tennessee Court of Workers' Compensation Claims
Filed
Sep 20, 2019
Status
Published
On the bench
Pamela B. Johnson
Cited by
0 cases

The opinion

FILED

Sep 20, 2019

02:30 PM(ET)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS

TENNESSEE BUREAU OF WORKERS' COMPENSATION

IN THE COURT OF WORKERS' COMPENSATION CLAIMS

AT KNOXVILLE

DAVID BRYAN, ) Docket No. 2018-03-0115

Employee, )

v. )

ASHLEY DISTRIBUTION )

SERVICES, LTD, ) State File No. 13790-2016

Employer, )

And )

HARTFORD CASUALTY )

INSURANCE COMPANY, ) Judge Pamela B. Johnson

Employee, )

EXPEDITED HEARING ORDER DENYING BENEFITS

Mr. Bryan seeks additional medical treatment, specifically a panel of physicians,

for continued treatment of his closed-head injury. 1 Ashley Distribution denied his

request for a new panel but offered to allow him to return to Dr. Jeffrey Uzzle for further

treatment. After an Expedited Hearing on September 4, 2019, the Court holds Mr. Bryan

failed to demonstrate that he is entitled to a new panel at this time.

History of Claim

Mr. Bryan was a truck driver with Ashley Distribution. On February 10, 2016,

he fell on ice while delivering furniture. Due to his fall, Mr. Bryan suffered insomnia,

headaches, tinnitus, dizziness, balance deficits, concentration difficulties, and emotional

instability. He timely reported his injury, and Ashley Distribution accepted his claim.

Mr. Bryan received authorized treatment with Dr. Robert L. Chironna, who

determined that Mr. Bryan suffered from post-concussive symptoms from a traumatic

brain injury. He treated Mr. Bryan's symptoms with prescription medication and various

1

The Dispute Certification also listed temporary disability benefits as an issue. However, at the

Expedited Hearing, Mr. Bryan stated he was only seeking additional medical benefits and reserved his

right to seek additional temporary disability benefits at a later date.

1

therapies. 2 On Dr. Chironna's recommendations, Mr. Bryan underwent physical therapy,

occupational therapy, speech and language therapy, vision therapy, and behavioral

medicine/psychotherapy. Dr. Chironna anticipated that Mr. Bryan was nearing maximum

medical improvement (MMI) during his last visit on June 26, 2017.

Unfortunately, Dr. Chironna died before he could assign MMI and assess

permanent medical impairment. Ashley Distribution did not provide a panel of

physicians to take over his care. Instead, the parties agreed that Mr. Bryan would see Dr.

Jeffrey Uzzle to determine whether Mr. Bryan had reached MMI and sustained a

permanent impairment. 3

Mr. Bryan saw Dr. Uzzle on February 6, 2018. 4 Dr. Uzzle examined Mr. Bryan

and reviewed his extensive treatment following the injury. He noted Dr. Malcolm Spica

evaluated him and found that Mr. Bryan had: (1) a normal neuropsychological

examination, no restrictions or limitations, and no findings of neurocognitive disorder

from a brain injury; (2) no significant mood disruption or other psychiatric features; and

(3) no neurocognitive or behavioral health dysfunction that rises to the level of

impairment. Similarly, Dr. Uzzle noted that Dr. Sidney Alexander conducted an

independent psychiatric evaluation resulting in his conclusion that Mr. Bryan was

malingering and did not require work restrictions or limitations.

Dr. Uzzle then determined that Mr. Bryan "probably" had a mild traumatic injury

or concussion from his work injury, which "completely resolved without residuals." Dr.

Uzzle stated Mr. Bryan's "ongoing subjective complaints are probably behavioral in

etiology and unrelated causally to the work injury." Dr. Uzzle placed Mr. Bryan at MMI

on February 6 and assigned a zero-percent impairment rating for his mild traumatic brain

injury. Dr. Uzzle also indicated Mr. Bryan needed no further treatment or restrictions

related to his work injury, and he stated he could return to work as a truck driver.

In response, Mr. Bryan testified that Dr. Uzzle only conducted a short examination

lasting ten minutes and did not have sufficient information to know what he was

experiencing due to his injury. Mr. Bryan said he continues to suffer ringing in his ears,

balance problems, visual disturbances, and headaches. He acknowledged that he is able

to drive his personal vehicle but denied that any physician cleared him for commercial

driving.

At the hearing, Mr. Bryan requested a panel. Ashley Distribution denied the

2

Mr. Bryan did not select Dr. Chironna from a panel.

3

Mr. Bryan did not select Dr. Uzzle from a panel.

4

In his report, Dr. Uzzle noted Ashley Distribution asked him to address causation, MMI, and impairment

rating.

2

request but offered a return visit to Dr. Uzzle.

Findings of Fact and Conclusions of Law

Mr. Bryan must show at an Expedited Hearing that he would likely prevail at a

hearing on the merits that he is entitled to a new panel of physicians. See Tenn. Code

Ann. § 50-6-239(d)(l) (2018).

The Workers' Compensation Law requires an employer to furnish medical

treatment made reasonably necessary by a work injury. Tenn. Code Ann. § 50-6-

204(a)(l)(A). A work injury causes the need for medical treatment only if it is shown to

a reasonable degree of medical certainty that the injury contributed more than fifty

percent in causing the need for medical treatment. "Shown to a reasonable degree of

medical certainty" means that, in the opinion of the physician, it is more likely than not

considering all causes. The causation opinion of the panel-selected physician is

presumed correct. See generally Tenn. Code Ann.§ 50-6-102(14).

Mr. Bryan argued that Dr. Chironna's opinion is entitled to a presumption of

correctness as the authorized treating physician. As the Workers' Compensation Appeals

Board held in Gilbert v. United Parcel Service, 2019 TN Wrk. Comp. App. Bd. LEXIS

20, at *13 (Jun. 7, 20 19), "Tennessee Code Annotated section 50-6-1 02(14 )(E) makes

clear that the rebuttable presumption of correctness attributable to a causation opinion

applies only to such opinions expressed by a treating physician selected by the employee

from the employer's designated panel of physicians pursuant to § 50-6-204(a)(3)."

Therefore, Dr. Chironna's opinion holds no presumption of correctness. Moreover, his

last office note contains no specific recommendation for further treatment or evaluation

that Ashley Distribution has not already provided.

Here, Dr. Uzzle determined Mr. Bryan did not recommend further treatment and

indicated he could return to truck driving without restrictions. Mr. Bryan offered no

expert opinion relating his need for medical treatment to the work injury. Thus, the Court

holds Mr. Bryan failed to demonstrate that he is likely to prevail at a hearing on the

merits concerning entitlement to the requested physician panel.

IT IS, THEREFORE, ORDERED as follows:

1. Mr. Bryan's request for a panel is denied at this time.

2. This case is set for a Scheduling Hearing on January 13, 2020, at 1:30 p.m.

Eastern Time. The parties must call 855-543-5041 (toll-free) to participate.

Failure to appear by telephone might result in a determination of the issues

without the party's participation.

3

ENTERED September 20,2019. ----

PAMELA B. JOHNSON, JUDGE

Court of Workers' Compensation Claims

APPENDIX

Technical Record:

1. Petition for Benefit Determination

2. Dispute Certification Notice

3. Request for Expedited Hearing

4. Employer's Witness and Exhibit List

Exhibits:

1. Affidavit

2. Medical Records with Table of Contents 5

3. Medical Records ofDr. Chironna

CERTIFICATE OF SERVICE

I certify that a copy if this Order was sent as indicated as September 20, 2019.

Name Certified Fax Email Service sent to:

Mail

Jonathan W. Doolan, X j onathan@collinsdoolan.com

Employee's Attorney

Richard R. Clark, Jr., X RClark@eraclides.com

Employer's Attorney

fRUM, Court Cler

·Cierk@tn.gov

5

Page 7 of Dr. Uzzle's report was missing in original filing. The employer submitted page 7 at the

Court's request and added to this exhibit.

4

EXPEDITED HEARING NOTICE OF APPEAL

Tennessee Division of Workers' Compensation

www.tn .gov/lallor-wfd/wcomp.shlml

wc.courtclerk@tn.gov

1-800-332-2667

Docket#: _ _ __ _ _ _ _ __

State File #/YR: _ _ _ _ _ __

Employee

v.

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]

D Temporary disability benefits

D Medical benefits for current injury

D 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 additional sheet for each additional Appellant •

LB-1099 rev.10/18 Page 1 of 2 RDA 11082

Employee Name: _ _ __ __ _ _ _ _ __ SF#: _ _ __ _ _ _ _ _ _ DOl : _ _ _ _ __

Appelle,e (s)

Appellee (Opposing Party)._

· _ _ _ _ _ _ _ _ At Hearing: DEmployer DEmployee

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

!,_ __ _ _ __ _ _ _ _ _ _ _ _, 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 of , 20_

[Signature of appellant or attorney for appellant]

LB-1099 rev. 10/18 Page 2 of 2 RDA 11082

Tennessee Bureau ofWorkers' Compensation

220 French Landing Drive, 1-8

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 11 / 15) 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:

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

Expedi ted Hearin g Oi·der Ri ght to Ap peal:

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:

I. 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 lndigency (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.

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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