The opinion
FILED
Feb 11, 2020
02:59 PM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT CHATTANOOGA
David Miranda, ) Docket No. 2019-01-0603
Employee, )
v. ) State File No. 75425-2018
Don Ledford Automotive, )
Self-Insured Employer. ) Judge Audrey A. Headrick
EXPEDITED HEARING ORDER
(DECISION ON THE RECORD)
This case came before the Court on Mr. Miranda’s Request for an Expedited
Hearing on the record. The issue involves referrals and panel designations.
Mr. Miranda argued Don Ledford provided an invalid panel of orthopedists
because his authorized physician referred him for a neurosurgeon examination. Don
Ledford argued that because Mr. Miranda selected an orthopedist from the panel and
received treatment, he cannot now change that selection. As a remedy, Mr. Miranda
requested that the Court designate his second-opinion physician and his independent
medical evaluation physician as authorized treating physicians. For the reasons below,
the Court denies Mr. Miranda’s request.
History of Claim
Mr. Miranda tripped and fell at work on September 14, 2018, landing on his knees.
He received authorized treatment for his knees initially at a walk-in clinic and later from
Dr. Todd Grebner, an orthopedist.' When he complained of back pain for the first time
on October 9, Dr. Grebner referred Mr. Miranda to a neurosurgeon but did not specify a
particular neurosurgeon.
Despite the neurosurgeon referral, Don Ledford provided Mr. Miranda with a
' It is unknown whether Mr. Miranda selected Dr. Grebner from a panel.
panel of orthopedists, and he selected Dr. Rickey Hutcheson from the panel. Dr.
Hutcheson diagnosed a work-related back sprain, provided conservative treatment, and
ordered a Functional Capacity Evaluation, which showed reliable effort.2 Due to his
progressive symptoms, Dr. Hutcheson referred Mr. Miranda to Dr. Joseph Miller, a
neurosurgeon, for a second opinion.
Mr. Miranda saw Dr. Miller in March 2019. Dr. Miller referred him to an
orthopedist for a hip evaluation. He also ordered a bilateral lower-extremity EMG nerve
conduction study and a series of epidural steroid injections. Later, Dr. Miller provided an
opinion that the fall primarily caused Mr. Miranda’s injury, aggravating a pre-existing
degenerative back condition.
After seeing Dr. Miller, Mr. Miranda returned to Dr. Hutcheson. After reviewing
Dr. Miller’s recommendations, he x-rayed Mr. Miranda’s hips and found no arthritis or
necrosis. Dr. Hutcheson ordered the recommended NCS of the lower extremities,
epidural injections, and physical therapy, and he prescribed Cymbalta. Don Ledford
denied the epidural injections and physical therapy.
In June 2019, Dr. Hutcheson determined “[t]he radicular component and the
degeneration is a preexisting [back] condition, so greater than 51% causation of his
radicular symptoms is associated with his preexisting degenerative condition.” Dr.
Hutcheson assigned an impairment rating for Mr. Miranda’s work-related back sprain and
instructed him to follow-up as needed.
Afterward, Mr. Miranda underwent an independent medical evaluation with Dr.
Stephen Dreskin, a pain-management physician. Dr. Dreskin concluded that Mr.
Miranda’s fall primarily caused a disc herniation and radiculopathy causing chronic pain
in his low back and right thigh.’ Further, Dr. Dreskin recommended lumbar spine
surgery and assigned an impairment rating.
Findings of Fact and Conclusions of Law
Standard Applied
Mr. Miranda must present sufficient evidence from which the Court can determine
he is likely to prevail at a hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(1)
(2019). The Court holds he did not satisfy this burden.
’ Before and after Mr. Miranda’s FCE, Dr. Hutcheson made references to symptom magnification.
> Dr. Dreskin referenced an exaggerated response during examination but noted he believed that Mr.
Miranda’s pain was genuine.
Analysis
Medical Benefits
The Workers’ Compensation Law requires an employer to provide an injured
employee with medical and surgical treatment ordered by the treating physician and made
reasonably necessary by the accident. Tenn. Code Ann. § 50-6-204(a)(3)(A)(i). To that
end, the employer must provide a list of three or more independent reputable physicians,
surgeons, chiropractors or specialty practice groups from which the injured employee
shall select one to be the treating physician. Jd. When the panel-selected physician
makes a referral to a specialist, the employer shall be deemed to have accepted the
referral unless the employer provides a panel of three or more independent reputable
physicians within three business days. Tenn. Code Ann. § 50-6-204(a)(3)(A)(ii). In
cases where the employer provides a panel, the employee may choose a specialist to
provide treatment only from the panel provided by the employer. Jd.; see also Rhodes v.
Amazon.com, LLC, 2019 TN Wrk. Comp. App. Bd. LEXIS 24, at *12-15 (June 11, 2019).
Here, the Court has no evidence that Dr. Grebner was selected from a panel, but he
was an authorized physician. Dr. Grebner made a referral to a neurosurgeon but
designated no particular physician. In response, Don Ledford provided a panel of
orthopedic specialists.
The parties submitted no evidence that Dr. Grebner, the referring physician, was
panel-selected. Under Tennessee Code Annotated section 50-6-204(a)(3)(A)(ii), Don
Ledford was not required to provide Mr. Miranda with a panel of neurosurgeons unless
Dr. Grebner was panel-selected. Therefore, the Court denies Mr. Miranda’s request to
designate his second opinion physician and his independent medical evaluation physician
as authorized treating physicians.
IT IS, THEREFORE, ORDERED as follows:
1. The Court denies Mr. Miranda’s request.
2. This case is set for a Status Hearing on Tuesday, April 21, 2020, at 1:00 p.m.
Eastern Time. The parties 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 the party’s participation.
ENTERED February 11, 2020.
Oe Mow ee awed
AUDREY A\HEADRICK
Workers’ Compensation Judge
Exhibits:
1.
2.
3.
CORP NAMN SF
APPENDIX
Affidavit of Dr. Miller
a. Physician’s Statement-Dr. Miller
Dr. Miller’s office visit, March 19, 2019
Affidavit of Dr. Dreskin
a. Physician’s Statement-Dr. Miller
b. Independent Medical Evaluation
Recorded Interview of Mr. Miranda, Page 4 of 9, taken September 27, 2018
Medical records of Physicians Care
Panel (Dr. Hutcheson)
Medical records of Dr. Grebner
Declaration of Dr. Hutcheson
Medical records of Dr. Hutcheson
Technical record:
1,
io
Petition for Benefit Determination
Dispute Certification Notice
Request for Expedited Hearing
Objection to the Request for an Expedited Hearing on the Record
Plaintiff's Additional Response to the Objection Filed on Behalf of the
Defendant to a Decision by the Court on the Record for Expedited Hearing
Docketing Notice
. Employer’s Response to Plaintiff's Reply to the Employer’s Objection to the
Request for an Expedited Hearing on the Record
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on February 11, 2020.
Employer’s Attorney
Name Certified | Email | Service sent to:
Michael A. Wagner, x maw(@wagnerinjury.com
Employee’s Attorney
Debra L. Fulton, x dfulton@fmsllp.com
Pv Susan N \entiaodin\?
PENNY SHRWM, 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: “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 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.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tr gov/workforce /injiries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.:
State File No.:
Date of Injury:
Employee
Vv.
Employer
Notice is given that
[List name(s) of all appealing partyfies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
0 Expedited Hearing Order filed on CO Motion Order filed on
1 Compensation Order filed on QO Other Order filed on
issued by Judge
Statement of the Issues on Apneal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Parties
Appellant(s) (Requesting Party}: CO Employerl_jEmployee
Address: Phone:
Email:
Attorney's Name: BPR#:
Attorney's Email: Phone:
Attorney’s Address:
* Attach an additional sheet for each additional Appeltant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
Employee Name: Docket No.» Date of Inj.:
Appellee(s) (Opposing Party}:. (J Employer (JEmployee
Appellee’s Address: Phone:
Email:
Attorney’s Name: .BPR#:
Attorney’s Email: Phone:.
Attorney's Address:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, , certify that | have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the day of , 20 .
[Signature of appellant or attorney for appellant}
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082
Tennessee Bureau of Workers' Compensation
220 French Landing Drive, 1-B
Nashville, TN 37243-1002
800-332-2687
AFFIDAVIT OF INDIGENCY
}, , having been duly swom 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;
Relatlonship:
Relationship:
Relationship:
6. | am employed by.
My employer's address Ia:
My employer's phone number ts:
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$
8. | receive of expect to receive money from tha following sources:
AFDC $ per month beginning
Ss] $ per month beginning.
Ratirement $ 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/)5) RDA 11082
9. My expenses are:
Rent/House Payment $ parmonth MedicalDental §
Groceries $ per month Telephone $
Electricity $ “_ per month School Supplies $
Water $ per month Clothing $
Gas $ per month Child Care $
Transportation $__ sper month Child Support $
Car $ per month
Other § per month (describe:
10. Assets:
Automabile $ (FMV)
Checking/Savings Acct. §
House 3 . (FMV)
Other $ Describe:
11. My debts are:
Amount Owed To Whom
per month
per manth
per month
per month
per month
par month
{ hereby declare under the penalty of porjury that the faregolng answors are true,
and that | am financially unable to pay the costs of this appaal.
APPELLANT
Sworn and aubscribed before me, a notary public, this
day of 20
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV 1/15)
correct, and complete
RDA 11082