The opinion
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
WENDY CUNNINGHAM ) Docket No.: 2019-05-1358
Employee, )
V. )
)
TRUSTPOINT HOSPITAL, LLC, ) State File No.: 48297-2018
Employer, )
)
And )
)
ACE AMERICAN INS. CO., ) Judge Dale Tipps
Carrier. )
EXPEDITED HEARING ORDER
DENYING BENEFITS
(DECISION ON THE RECORD)
This case came before the Court on March 24, 2020, for an Expedited Hearing on
the record without an in-person hearing. The central legal issue is whether Ms.
Cunningham is likely to establish at a hearing on the merits that she is entitled to return to
her original authorized treating physician (ATP). For the reasons below, the Court holds
Ms. Cunningham is not entitled to the requested benefits.
History of Claim
While working for Trustpoint on June 15, 2018, a patient assaulted Ms.
Cunningham. She reported an injury, and Trustpoint provided treatment with Dr. Frank
Thomas until he referred her to an orthopedic specialist.
Following that referral, Ms. Cunningham treated with orthopedic surgeon, Dr.
Lucas Richie, until the following March. Dr. Richie’s treatment included de Quervain’s
release surgery. When Ms. Cunningham complained of continuing pain, Dr. Richie
1
referred her for a second opinion.
On Dr. Richie’s referral, Trustpoint provided a panel of orthopedic specialists, and
Ms. Cunningham selected Dr. Douglas Weikert on February 14, 2019. Dr. Weikert
treated Ms. Cunningham until April 10. At that time, he assessed residual right-wrist
pain following DeQuervain’s release, and her primary complaint was hand and arm
weakness. Dr. Weikert did not feel Ms. Cunningham was a surgical candidate, and he
released her with no permanent restrictions at maximum medical improvement. He also
said, “I will see her back in [the] clinic on an as needed basis from here on out. . . I have
instructed the patient to notify me immediately for any clinical change.”
Ms. Cunningham began part-time work with a new employer but experienced
panic attacks when left alone with patients. She requested a return Dr. Thomas, but
Trustpoint denied her request. She seeks an Order allowing her to return to Dr. Thomas to
evaluate her need for psychiatric/psychological treatment.
Trustpoint contends that Dr. Thomas is no longer Ms. Cunningham’s ATP. It
argued that Dr. Weikert remains the authorized provider. It also questions whether Ms.
Cunningham’s psychiatric symptoms are causally-related to her work injury.
Ms. Cunningham filed an Expedited Hearing request on February 12, 2020.
Trustpoint filed a response opposing a hearing on the record.
In a March 5 Docketing Notice, the Court determined it was appropriate to decide
the issues in this case upon a review of the written materials and without an evidentiary
hearing. It also identified the written materials it intended to consider and allowed the
parties seven business days to file position statements and any objections to the
admissibility of those materials. Neither party filed an objection, although Trustpoint
filed a position statement.
Findings of Fact and Conclusions of Law
Ms. Cunningham must provide sufficient evidence from which this Court might
determine she is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-
239(d)(1) (2019); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App.
Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Regarding Ms. Cunningham’s request to see Dr. Thomas as her ATP, the Court
first notes that the parties submitted no proof as to whether she selected Dr. Thomas (or
Dr. Richie) from a panel. However, Ms. Cunningham acquiesced to treatment with Dr.
Thomas and seeks to return to him. Thus, the Court finds that Dr. Thomas was the first
authorized treating physician. The parties do not dispute that he referred Ms.
Cunningham for specialized orthopedic treatment, which eventually led her to Dr.
2
Wiekert.
This type of referral is specifically addressed in Tennessee Code Annotated
section 50-6-204(a)(3)(E):
In all cases where the treating physician has referred the employee to a
specialist physician, . . . the specialist physician . . . to which the employee
has been referred, or selected by the employee from a panel provided by the
employer, shall become the treating physician until treatment by the
specialist physician . . . concludes and the employee has been referred back
to the treating physician selected by the employee from the initial panel
provided by the employer[.]
Under this section, Dr. Weikert became the ATP. The question then is whether he
referred Ms. Cunningham back to her first treating physician, Dr. Thomas. The Court
finds that he did not.
Ms. Cunningham is correct that Dr. Weikert found her to be at maximum medical
improvement and released her with no permanent restrictions. This might meet the “until
treatment concludes” requirement of section 50-6-204(a)(3)(E). However, the statute
requires more than the conclusion of treatment. It also requires a referral back to the
original treating physician. Dr. Weikert made no explicit referral. Further, he said he
would see Ms. Cunningham “on an as needed basis from here on out. . . I have instructed
the patient to notify me immediately for any clinical change.” The Court cannot infer a
referral when the plain meaning of the words indicates his intent to continue treating Ms.
Cunningham if she has additional problems.
For these reasons, Ms. Cunningham appears unlikely to prevail at trial in
establishing that she is entitled to return to Dr. Thomas at this time. Dr. Weikert remains
her authorized provider, and Ms. Cunningham can return to him for further treatment.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. Cunningham’s requested relief is denied at this time.
2. This case is set for a Status Hearing on May 21, 2020, at 9:00 a.m. Please call
toll-free at 855-874-0473 to participate. Failure to call or appear might result in a
determination of the issues without your further participation. All conferences are
set using Central Time.
ENTERED March 27, 2020.
(FLEE
Judge Dale Tipps
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1.
2.
3.
Ms. Cunningham’s Rule 72 Declaration Under Penalty of Perjury, including
medical records contained in Exhibit A.
February 14, 2019 Panel selection of Dr. Weikert.
Exhibits to Trustpoint’s Objection to Request for Expedited Hearing and Decision
on the Record.
Technical record:
NAW RYN
Petition for Benefit Determination
Dispute Certification Notice
Request for Expedited Hearing
Ms. Cunningham’s Legal Brief in Support of Petition for Medical Benefits
Trustpoint’s Objection to Request for Expedited Hearing
Ms. Cunningham’s Reply Brief to Objection
Trustpoint’s Position Statement
CERTIFICATE OF SERVICE
I certify that a copy of the Expedited Hearing Order was sent as indicated on
March 27, 2020.
Name Certified Via Service sent to:
Mail Email
Christopher D. Markel, x cmarkel @ markelfirm.com
Employee’s attorney
Marcia Dawn McShane, xX mmecshane @constangy.com
Employee’s attorney
jog
Penny Shrum, Clerk of Court
Court of Workers’ Compensation Claims
WC.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. 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
conceming 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.tn.gov/workforce/injuries-at-work/
wce.courtclerk@tn.gov | 1-800-332-2667
Docket No.:
State File No.:
Date of injury:
Employee
Employer
Notice is given that
[List name(s) of all appealing party(ies). 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 O Motion Order filed on
0 Compensation Order filed on C1 Other Order filed on
issued by Judge
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Parties
Appellant(s) (Requesting Party): fo Employer] ‘Employee
Address: Phone:
Email:
Attorney’s Name: BPR#:
Attorney's Email: Phone:
Attorney's Address:
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page lof 2 RDA 11082
Employee Name: Docket No.: Date of Inj.:
Appellee(s) (Opposing Party): [| Employer [- ‘Employee
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