Opinion

Baxter, Shanta v. Federal Express Corp.

  • 2021 TN WC 204
Court
Tennessee Court of Workers' Compensation Claims
Filed
Jul 21, 2021
Status
Published
On the bench
Dale Tipps
Cited by
0 cases

The opinion

FILED

Jul 21, 2021

02:02 PM(CT)

TENNESSEE COURT OF

WORKERS' COMPENSATION

CLAIMS

TENNESSEE BUREAU OF WORKERS’ COMPENSATION CLAIMS

IN THE COURT OF WORKERS’ COMPENSATION CLAIMS

AT MURFREESBORO

SHANTA BAXTER, ) Docket No. 2020-05-0697

Employee, )

v. )

)

FEDERAL EXPRESS CORP., ) State File No. 98745-2017

Employer, )

and )

)

AGRI GENERAL INS. CO., ) Judge Dale Tipps

Insurance Carrier. )

EXPEDITED HEARING ORDER DENYING BENEFITS

This case came before the Court on July 20, 2021, for an Expedited Hearing on

whether Ms. Baxter is likely to prove at a hearing on the merits that she is entitled to

psychiatric treatment. To receive these benefits, she must show that her panel physician

made a referral and that her need for the requested treatment arose primarily out of and in

the course and scope of her employment. The Court holds that Ms. Baxter was unable to

meet this burden and denies the requested benefits at this time.

History of Claim

Ms. Baxter suffered shoulder and arm injuries while working for FedEx on

December 18, 2017. FedEx accepted the claim as compensable and provided medical

benefits, including treatment for cervical pain, by panel physician Dr. Colin Crosby.

On August 2, 2019, Dr. Crosby placed Ms. Baxter at maximum medical

improvement. He concluded his note with the following: “She is having psychological

stress due to the failure of her to improve from her work-related injury and has requested

to see a psychiatrist which is reasonable.”

Ms. Baxter testified that FedEx initially authorized psychiatric treatment but then

denied it before she could attend an appointment. She claimed she is still suffering from

anxiety and asked to see Dr. Keith Caruso.

FedEx responded that Ms. Baxter is not entitled to the requested treatment because

her physical injuries were gradually occurring, and a mental injury that is the result of

gradual events is not compensable. It also argued that the statutory definition of “injury”

specifically excludes a “psychological or psychiatric response due to the loss of

employment or employment opportunities.”

Findings of Fact and Conclusions of Law

In this expedited hearing, Ms. Baxter 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) (2020); McCord v. Advantage Human Resourcing, 2015 TN

Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

Ms. Baxter seeks an order for psychiatric treatment. Tennessee Code Annotated

section 50-6-204(h) provides: “All psychological or psychiatric services available under

subdivisions (a)(1) and (b)(1) shall be rendered only by psychologists or psychiatrists and

shall be limited to those ordered upon the referral of physicians authorized under

subdivision (a)(4).” As the Appeals Board noted in Beech v. G4S Secure Solutions (USA),

2020 TN Wrk. Comp. App. Bd. LEXIS 71, at *9 (Dec. 16, 2020), this means the only issue

before the Court at this stage is “whether [Ms. Baxter] came forward with sufficient proof

from which the trial court could conclude a panel-selected treating physician made a

referral to a specialist.”

The only proof before the Court on this issue is a single sentence from Dr. Crosby:

“She is having psychological stress due to the failure of her to improve from her work-

related injury and has requested to see a psychiatrist which is reasonable.” The question

then is whether this statement constitutes a “referral” under section 50-6-204(h). The Court

finds that it does not.

A plain reading of Dr. Crosby’s comment shows that, at most, Ms. Baxter requested

to see a psychiatrist, and that the doctor felt the request was reasonable. In view of the

statute’s very specific referral requirement, Dr. Crosby’s mere agreement with the

reasonableness of Ms. Baxter’s desire to see a psychiatrist is insufficient to require FedEx

to provide a panel. The Court is not suggesting that any specific phrase or wording is

required, but a doctor noting the reasonableness of a patient’s request does not constitute

an affirmative, intentional referral.

Therefore, without additional medical proof, Ms. Baxter has not shown she is likely

to succeed on a claim for psychiatric treatment.

IT IS, THEREFORE, ORDERED as follows:

1. Ms. Baxter’s claim against FedEx for additional medical benefits is denied at this

time.

2. This case is set for a Scheduling Hearing on September 16, 2021, at 9:00 a.m. The

parties must call toll-free at 855-874-0473 to participate. Failure to call might result

in a determination of the issues without your further participation. All conferences

are set using Central Time.

ENTERED July 21, 2021.

_____________________________________

Judge Dale Tipps

Court of Workers’ Compensation Claims

APPENDIX

Exhibits:

1. Ms. Baxter’s Affidavit

2. Dr. Samuel Crosby’s October 31, 2019 progress note

3. Dr. Colin Crosby’s August 2, 2019 progress note

4. Medical appointment documents

Technical record:

1. Petition for Benefit Determination

2. Dispute Certification Notice

3. Request for Expedited Hearing

4. FedEx’s Pre-Expedited Hearing Statement

CERTIFICATE OF SERVICE

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

21, 2021.

Name Certified Fax Email Service sent to:

Mail

Shanta Baxter, X X 3000 Windsor Drive

Employee Columbia, TN 38401

shayb301@yahoo.com

James Tucker, X jtucker@manierherod.com

Employer’s Attorney cc: dstevens@manierherod.com

______________________________________

PENNY SHRUM, COURT CLERK

wc.courtclerk@tn.gov

NOTICE OF APPEAL

Tennessee Bureau of Workers’ Compensation

www.tn.gov/workforce/injuries-at-work/

wc.courtclerk@tn.gov | 1-800-332-2667

Docket No.: ________________________

State File No.: ______________________

Date of Injury: _____________________

___________________________________________________________________________

Employee

v.

___________________________________________________________________________

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):

□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________

□ Compensation Order filed on__________________ □ 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 1 of 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 I 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

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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