The opinion
FILED
Aug 10, 2020
11:52 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
AREBIUS TURNER, ) Docket No. 2019-06-2251
Employee, )
V. )
ADVANTAGE HUMAN ) State File No. 108266-2019
RESOURCING, INC., )
Employer, )
) Judge Joshua Davis Baker
ACE AMERICAN INSURANCE )
COMPANY, )
Carrier. )
EXPEDITED HEARING ORDER
(DECISION ON THE RECORD)
Mr. Turner requested an expedited hearing on a review of the record without an in-
person evidentiary hearing, which Advantage Human Resourcing did not oppose. The
Court gave the parties until July 16, 2020, to file position statements and to object to the
admissibility of documents. Advantage filed a position statement.! Mr. Turner did not.
Mr. Turner requested medical benefits for a mght-thumb and mental injury.
Advantage argued it offered all the benefits to which Mr. Turner is entitled for his thumb
and denied the compensability of his alleged mental injury. For the reasons below, the
Court holds he is unlikely to prove at a final hearing that: his thumb injury requires
additional medical treatment, he suffered a compensable mental injury, or he is entitled to
a panel of physicians.
Claim History
' Advantage also filed records concerning child support. These records are irrelevant to this proceeding, so
the Court neither considered them nor included them in the record.
]
Mr. Turner lacerated and “shaved about 1/3 of the nail off his thumb” on machinery
at work. Advantage accepted his claim for a right-thumb laceration and nail avulsion.
Although Advantage authorized Dr. Malcolm Steele for treatment, Mr. Turner
alleged that he did not choose Dr. Steele from a panel of three doctors. Advantage
acknowledged it does not have a panel signed by Mr. Turner. Rather, it authorized
treatment with Dr. Steele because the emergency provider recommended Dr. Steele’s clinic
for follow-up in a “referral order.”
During treatment, Advantage accommodated Mr. Turner’s work restrictions but
kept him working on the machine that injured him, which Mr. Turner alleged caused a
mental injury. In his affidavit, he wrote, “I was put on light duty .. . on the same machine
I was injured on. . . and I was told to just use my other hand and I was constantly hit on
my injured thumb and hand by the man running the machine.” He asserted this caused
sweating, increased heartbeat, weakness and lightheadedness, trouble sleeping, and anger.
He relayed these symptoms to Dr. Steele, but the doctor only noted that he had high
blood pressure and recommended he see a family doctor. Mr. Turner then sought
unauthorized emergency treatment with a physician’s assistant, who urged him to “follow-
up with [his] regular doctor” for high blood pressure and anxiety, as “[t]here are many
conditions that can cause symptoms like these.”
To prove his mental injury, Mr. Turner submitted a signed letter from a nurse
practitioner. The letter explained that he receives treatment for post-traumatic stress
disorder (PTSD), and since the accident, he has “experienced intrusive, unwanted
memories/flashbacks from the accident, nightmares, hypervigilance, sense of impending
doom, generalized anxiety, and panic attacks.”
After about a dozen appointments and physical therapy, Dr. Steele released Mr.
Turner to full-duty work and recommended no further treatment. The doctor noted Mr.
Turner’s complaints of some “new symptoms” in his thumb but wrote, “[R]ight thumb
nailbed avulsion is now well healed.”
Findings of Fact and Conclusions of Law
To receive medical benefits, Mr. Turner need only present sufficient evidence at this
stage that he is likely to prevail at a final hearing. See Tenn. Code Ann. § 50-6-239(d)(1)
(2019); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS
6, at *9 (Mar. 27, 2015). He failed to present sufficient evidence.
Given the relief requested, the Court must decide three issues: 1) whether Mr.
Turner’s thumb presently requires treatment “made reasonably necessary” by his work
accident; 2) whether Mr. Turner’s employment contributed more than fifty percent in
2
causing high blood pressure and anxiety, considering all causes; and 3) whether
Advantage’s failure to provide a panel of physicians at the claim’s outset entitles Mr.
Turner to a panel of physicians now or the right to see another physician.
The Worker’s Compensation Law requires an employer to “furnish, free of charge
to the employee, such medical and surgical treatment . . . made reasonably necessary by
accident as defined in this chapter.” Tenn. Code Ann. § 50-6-204(a)(1)(A) (2019). When
an injury requires medical care, an employer is obligated to “designate a group of three (3)
or more... physicians .. . from which the injured employee shall select one to be the
treating physician.” /d. at § 50-6-204(a)(3)(A)(1).
The employer must offer the panel “as soon as is practicable but no later than three
(3) business days” after being notified of the injury and the request for medical care. Tenn.
Comp. R. & Regs. 0800-02-01-.06 (1) (2018). Where the employer fails to provide a panel,
the employer may be assessed a civil penalty. Tenn. Comp. R. & Regs. 0800-02-01-.06
(2).
Additionally, an injury is work-related when “the employment contributed more
than fifty percent (50%) in causing the injury, considering all causes.” Tenn. Code Ann. §
50-6-102(14)(B). An employee must present expert medical proof that an alleged injury
is causally related to employment when the case is not “obvious, simple [or] routine.”
Willis v. All Staff, 2015 TN Wrk. Comp. App. Bd. LEXIS 42, at *27 (Nov. 9, 2015).
Further, an employee’s testimony about causation is probative but insufficient alone to
meet his burden of proof in the absence of medical evidence. Arciga v. AtWork Pers.
Servs., 2016 TN Wrk. Comp. App. Bd. LEXIS 6, at *7 (Feb. 2, 2016).
First, the Court finds Mr. Turner is unlikely to prevail in proving he presently
requires treatment “made reasonably necessary” by his compensable thumb injury. Dr.
Steele returned him to full duty, noted how his thumb was healing, and recommended no
additional treatment. Mr. Turner presented no contrary medical evidence to contradict Dr.
Steele’s opinions. Simply put, the Court cannot substitute its, or Mr. Turner’s, medical
opinion or judgment for that of a trained physician. See Scott v. Integrity Staffing Solutions,
2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *8; see also Lurz v. Int’l Paper Co., 2018
TN Wrk. Comp. App. Bd. LEXIS 8, at *17 (Feb. 14, 2018).
Next, the Court holds Mr. Turner is unlikely to prevail in proving his employment
“contributed more than fifty percent (50%) in causing” his high blood pressure and anxiety
for two reasons. First, he offered only lay testimony to support his contention, since a
nurse practitioner is not an expert who can testify about medical causation. Dorsey v.
Amazon, 2015 TN Wrk. Comp. App. Bd. LEXIS 13, at *9 (May 14, 2015). Second, even
if the nurse practitioner could testify about medical causation, the nurse’s letter failed to
address it. Instead, the letter merely relayed that Mr. Turner received treatment for PTSD
and recounted his symptoms.
Lastly, the Court finds Mr. Turner is unlikely to prove at trial that he is entitled to
either a panel of physicians or another physician based on these circumstances. A panel is
not a practical remedy here, where Mr. Turner already received medical treatment that
healed his injury. Further, while the law required Advantage to provide a panel, its failure
to do so does not mean that Mr. Turner now receives one. Instead, by failing to give him
a panel, Advantage risked losing control of the course of Mr. Turner’s medical treatment
and being required to pay for treatment it never authorized. It also ran the risk of being
penalized. See Berdnik v. Fairfield Glade Cmty. Club, 2017 TN Wrk. Comp. App. Bd.
LEXIS 32, at *17 (May 18, 2017). Moreover, no evidence suggests that Dr. Steele refused
to provide further treatment, a circumstance that might entitle Mr. Turner to treatment from
another physician. See Limberakis v. Pro-Tech Sec., Inc., 2017 TN Wrk. Comp. App. Bd.
LEXIS 53, at *9 (Sept. 12, 2017). For these reasons, the Court declines to award a panel
or treatment with another physician.
However, the Court finds that Advantage ignored its legal obligations to provide
Mr. Turner a choice of physicians and should be penalized for this failure. The Court refers
Advantage to the Compliance Program of the Bureau of Workers’ Compensation for
appropriate action based on Advantage’s failure to provide a panel of physicians as
required by the Workers’ Compensation Law.
IT IS ORDERED as follows:
1. The Court denies Mr. Turner’s request for benefits at this time.
2. The Court refers Advantage Human Resourcing to the Compliance Program of the
Bureau of Workers’ Compensation for appropriate action based on Advantage’s
failure to provide a panel of physicians as required Tennessee Code Annotated
section 50-6-204(a)(3)(A)(i) and Tennessee Compilation Rules and Regulations
0800-02-01-.06 (1).
3. The Court sets this claim for a status conference on October 12, 2020, at 10:30
a.m. Central Time. The parties must call (615) 741-2113 or toll-free at (855) 874-
0474 to participate. Failure to call might result in a determination of the issues
without the party’s participation.
ENTERED August 10, 2020.
“a >
JoshuaDaAvis Baler. Judge
Court of Workers’ Compensation Claims
4
APPENDIX
Request for Expedited Hearing and Affidavit of Arebius Turner
Dispute Certification Notice
Petition for Benefit Determination
Medical Records
Written Statement
Wage Statement
Referral Order
NAW RB WN
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on August 10, 2020.
Name Certified | Via | Via _ | Service sent to:
Mail Fax | Email
Arebius Turner, xX turnerbaybay@yahoo.com
Employee
Stephen Morton, X | Stephen.morton@mgclaw.com,
Employer’s Attorney Amber.dennis@mgclaw.com
Compliance Program X | WCCompliance.Program@tn. gov
Penny Shriya, Court Clerk
Court of Workers’ Compensation Claims
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. 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/
we,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):
D Expedited Hearing Order filed on 0 Motion Order filed on
0 Compensation Order filed on O 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): [' 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