The opinion
FILED
Sep 07, 2021
11:33 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
ANTWAN TAYLOR, ) Docket No 2020-06-1736
Employee, )
v. )
A1 FUN CYCLES ) State File No. 70251-2020
Employer, )
And )
WEST BEND MUT. INS. CO., ) Judge Robert Durham
Carrier, )
And )
ABIGAIL HUDGENS, )
Administrator, )
Subsequent Injury Fund. )
EXPEDITED HEARING ORDER
This case came before the Court on August 26, 2021, for an Expedited Hearing.
Mr. Taylor sought another doctor to treat shoulder and clavicle symptoms he alleged
stemmed from his work accident, as well as additional temporary disability benefits. A1
Fun Cycles contended that the authorized physician rescinded his recommendation for
further treatment based on the refusal of multiple specialists to treat him. The Court
holds that Mr. Taylor did not show he is likely to prove entitlement to additional
treatment from another specialist for his chest and shoulder complaints, but he is entitled
to additional temporary disability benefits.
History of Claim
Medical Treatment
On November 6, 2020, Mr. Taylor allegedly suffered injuries to his left shoulder
and clavicle after tires blew out on his delivery truck, causing the truck to strike a
guardrail. He received emergency treatment, including CT scans of his head, chest, and
neck. The scans did not reveal any acute injury. The emergency provider gave Mr.
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Taylor a sling for his left arm and prescribed pain medication.
Mr. Taylor continued to experience pain around his left clavicle. At a November
23 emergency room visit, he complained of severe pain as well as the sensation that the
clavicle was “popping out” when he moved his shoulder. The provider recommended he
see a specialist for his continued symptoms.
A1 Fun Cycles then authorized Mr. Taylor to treat with orthopedist Dr. Stephen
Rose without providing a panel. Dr. Rose obtained left shoulder x-rays that did not
reveal any abnormalities. He restricted Mr. Taylor to no use of his left arm and ordered
physical therapy. He later ordered a left-shoulder MRI and again restricted Mr. Taylor to
one-armed work. Although physical therapy somewhat improved Mr. Taylor’s
symptoms, he still complained of significant clavicle pain. Given that Dr. Rose could not
find anything wrong with Mr. Taylor’s shoulder, he referred him to a spine specialist to
determine if his complaints were due to cervical nerve root impingement. 1 Dr. Rose
issued a Form C-30A Final Medical Report on December 28, stating that Mr. Taylor had
reached maximum medical impairment with a 0% impairment and no anticipated need for
further treatment.
After Dr. Rose’s referral, A1 Fun Cycles provided Mr. Taylor a panel, and he
chose Dr. Daniel Burval. On his initial examination, Dr. Burval noted that Mr. Taylor
complained of such severe left-shoulder pain that he could barely lift his arm, and he
exhibited no range of motion to the left side of his neck due to neck pain. Dr. Burval did
not believe the pain was due to radiculopathy; nevertheless, he ordered a cervical MRI to
see if any impingement was present. He also restricted Mr. Taylor’s activities to no
driving or overhead work, and no lifting more than ten pounds.
When Dr. Burval saw Mr. Taylor again on December 30, he noted that the MRI
did not reveal any abnormalities consistent with Mr. Taylor’s subjective complaints, and
he did not have any treatment options. However, he recommended that Mr. Taylor see
Dr. Jason Evans to determine if trauma to the sternoclavicular joint had caused soft tissue
separation. He also kept Mr. Taylor off work until Dr. Evans evaluated him because he
suspected “sternoclavicular pathology.” Dr. Burval issued a Form C-30A on December
30, stating that Mr. Taylor was at maximum medical improvement for the spine only with
a 0% impairment, but noting that he might need treatment with Dr. Evans.
Upon receiving Dr. Burval’s referral, Dr. Evans refused to treat Mr. Taylor. Dr.
Burval made another referral to Dr. Phillip Kregor, who also refused to treat Mr. Taylor. 2
A1 Fun Cycles then attempted to schedule Mr. Taylor to see Dr. John Kuhn, an
1
The parties only made Dr. Rose’s Worklink Physician reports an exhibit. The Court gleaned much of
this information from Dr. Burval’s records.
2
The parties did not provide any communications from Dr. Evans or Dr. Kregor as to why they declined
to treat Mr. Taylor.
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orthopedic trauma specialist. Dr. Kuhn asked for Mr. Taylor’s medical records and then
sent the following email on January 25, 2021: “All of his imaging in normal. There is
nothing I can do to help him. Please do not make any appt to see me.”
In the meantime, Mr. Taylor visited his family physician with left clavicle
symptoms, and on February 24, went to the emergency room. X-rays were normal and
the provider did not find a clear dislocation. However, he did note “laxity” in the left
sternoclavicular joint and “subluxation” of the clavicle with movement. He provided a
sling and recommended follow-up with an orthopedist.
A1 Fun Cycles eventually sent a questionnaire to Dr. Burval asking whether
additional treatment was necessary given Dr. Kuhn’s refusal to see Mr. Taylor. Dr.
Burval responded on June 18. He noted that Dr. Kuhn is “chief of shoulder surgery,” and
Dr. Evans and Dr. Kregor are orthopedic trauma specialists. He then explained that he
did not believe additional treatment would benefit Mr. Taylor, since these specialists all
refused to see him because they did not feel further treatment would help.
Employment History
A1 Fun Cycles asserted that Mr. Taylor is not entitled to additional temporary
disability benefits because Dr. Burval rescinded his referral. It also contended it
terminated Mr. Taylor for cause before the referral, therefore eliminating its obligation to
provide temporary disability benefits after the termination. So, much of the hearing
testimony concerned Mr. Taylor’s employment, which the Court summarizes below.
Mr. Taylor began working for A1 Fun Cycles, and its owner, Thompson Ward, in
the summer of 2020. Mr. Taylor described their relationship as “rocky,” and Mr. Ward
agreed that it was often contentious. Mr. Ward fired Mr. Taylor after an altercation in
September but rehired him several days later.
The parties’ testimony differed significantly as to Mr. Taylor’s duties after his
accident. Mr. Taylor said that the job frequently required him to use his left arm in
violation of his restrictions. Mr. Ward said that if Mr. Taylor felt that a particular job
duty would cause too much discomfort, he was free to do something else, even if it only
involved talking with customers. Mr. Taylor countered that he was in so much pain, even
talking with customers was beyond him.
In any event, both agreed that Mr. Taylor only worked a few hours at a time for
two to four days from November 7 until his termination on December 26 for job
abandonment. Mr. Taylor testified that after losing his job, he did not work anywhere
until he started his own cleaning business on July 20, 2021. 3
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Mr. Taylor stated that he was only seeking temporary total disability benefits from December 8, 2020,
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Findings of Fact and Conclusions of Law
Mr. Taylor has the burden of showing he would likely prevail at trial on his
requests for medical treatment with another authorized physician and additional
temporary disability benefits. Tenn. Code Ann. § 50-6-239(d)(1) (2020); McCord v.
Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *9 (Mar. 27,
2015). The Court will address each issue in turn.
Tennessee Code Annotated section 50-6-204 governs an employer’s obligation to
provide medical treatment made “reasonably necessary” by a work injury. A1 Fun
Cycles agreed that Mr. Taylor suffered a work accident and is entitled to reasonable and
necessary medical treatment for injuries from that accident. Indeed, A1 Fun Cycles
confirmed that Drs. Rose and Burval remain authorized treating physicians. The question
is whether Mr. Taylor is likely to prove that another authorized provider to treat his
sterno-clavicular symptoms is reasonable and necessary. Given the evidence, the Court
holds he is not.
The issue of reasonable and necessary treatment is complicated by the fact that A1
Fun Cycles did not completely comply with the law in providing Mr. Taylor’s medical
care. Tennessee Code Annotated 50-6-204(a)(3)(A)(i) requires an employer to provide
an injured employee with a panel of three doctors from which the employee may choose
a treating physician. After Mr. Taylor’s initial care, A1 Fun Cycles authorized Dr. Rose
to treat him without giving Mr. Taylor a panel.
Of course, A1 Fun Cycles provided a panel of spine surgeons after Dr. Rose could
find nothing objective from a shoulder standpoint to explain Mr. Taylor’s symptoms, and
Mr. Taylor selected Dr. Burval. However, when Dr. Burval determined that Mr. Taylor
required further evaluation for his sternoclavicular complaints and referred him to Dr.
Evans and then Dr. Kregor, A1 Fun Cycles declined to provide a panel but instead
authorized Dr. Burval’s referrals.
To be clear, Tennessee Code Annotated section 50-6-204(a)(3)(ii) allowed A1 Fun
Cycles to do so. However, when Dr. Evans and then Dr. Kregor declined to provide
treatment, A1 Fun Cycles did not provide Mr. Taylor with a panel, nor does the evidence
show that Dr. Burval referred him to Dr. Kuhn. Further, Dr. Kuhn also refused to see Mr.
Taylor; therefore, he was never physically evaluated by an orthopedic trauma specialist.
However, even if Mr. Taylor established that A1 Fun Cycles failed to meet its
obligations under Tennessee Code Annotated 50-6-204, this does not necessarily mean
that he is entitled to another authorized doctor. See Berdnik v. Fairfield Glade Com’ty
until July 20, 2021.
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Club, 2017 Wrk. Comp. App. Bd., LEXIS 32, at *10-11 (May 18, 2017). In Berdnik, the
Appeals Board held that the first question that must be answered before ordering benefits
is whether the evidence presented showed that the employee is likely to prove at trial that
she is entitled to benefits. Id. at *11. Even though the employer failed to provide a
panel, the only medical evidence presented at the hearing proved that the employee’s
condition was not causally related to employment. Thus, the Appeals Board held that the
employee did not prove she was likely to prevail at trial and was not entitled to a panel of
doctors. Id.
Although the question in this case is about reasonable and necessary care, not
causation, the analysis remains the same as in Berdnik. It is Mr. Taylor’s burden to show
that he is likely to prove at trial that another authorized physician to treat his sterno-
clavicular complaints is reasonable and necessary. He must do so through expert medical
opinion.
The medical proof showed that Dr. Burval was satisfied that no additional
treatment was reasonable or necessary, based on Drs. Evans’s and Kregor’s refusal to see
Mr. Taylor, and Dr. Kuhn’s email that, after reviewing the diagnostic film, he had
nothing to offer Mr. Taylor. To counter this evidence, Mr. Taylor only offered his
testimony that he continues to suffer clavicle pain and discomfort, records from his
family provider documenting his complaints, and a recommendation in February from an
emergency provider that he follow up with an orthopedist. The Court holds Mr. Taylor’s
proof is insufficient to meet his burden, and denies his request to be treated by another
doctor.
In addition to medical benefits, Mr. Taylor also seeks temporary disability
benefits. There are two types of temporary disability: temporary partial disability and
temporary total disability. Tenn. Code Ann. § 50-6-207(1) and (2). The Court will
address the applicability of each in turn.
Mr. Taylor may be entitled to temporary partial disability benefits if his temporary
disability resulting from the work injury is not total. See Tenn. Code Ann. § 50-6-207(2).
“Temporary partial disability refers to the time, if any, during which the injured
employee is able to resume some gainful employment but has not reached maximum
recovery.” Hackney v. Integrity Staffing Solutions, Inc., 2016 TN Wrk. Comp. App. Bd.
LEXIS 29, at *11 (July 22, 2016). Mr. Taylor must also show the difference between
what he could have earned in his partially disabled state and his average weekly wage.
Tenn. Code Ann. § 50-6-207(2)(A).
Shortly after his accident, Dr. Rose and Dr. Burval placed Mr. Taylor under
significant restrictions that essentially restricted him from working with his left arm.
However, Mr. Ward, owner of A1 Fun Cycles, testified that he had work available for
Mr. Taylor that accommodated those restrictions, and he had the discretion to stop
5
performing a particular task if it caused him too much pain. Even if he could not perform
any physical tasks, Mr. Ward testified that Mr. Taylor could speak with customers and
answer their questions. The Court found Mr. Ward’s testimony credible on this point.
Mr. Taylor admitted that he only attempted to work twice for a few hours and did
not return to work after December 8, which led to his termination on December 26. He
explained that his shoulder and clavicle hurt so badly that he could not perform any task,
including talking with customers. However, he presented no medical proof to support
this assertion. The Court holds that his subjective perceptions alone are not enough to
justify his refusal to work within his medical restrictions. Thus, the Court denies Mr.
Taylor’s request for temporary partial disability benefits.
The Court now turns to the issue of temporary total disability benefits. To receive
these benefits, Mr. Taylor must show he is likely to prove: (1) a disability from working
as the result of a work injury; (2) a causal connection between the injury and the inability
to work; and (3) the duration of the period of disability. Shepherd v. Haren Const. Co.,
Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS 15, at *13 (Mar. 30, 2016). Stated another
way, Mr. Taylor must prove he was totally incapacitated from working by his injury to
receive temporary total disability benefits.
Here, the undisputed evidence is that on December 30, Dr. Burval took Mr. Taylor
off work until he was evaluated by an orthopedic specialist. Mr. Taylor argued that the
evaluation never happened, so he is entitled to temporary total disability benefits until
July 20, when he started his business.
A1 Fun Cycles argued against temporary total disability on the grounds that Mr.
Taylor was terminated for job abandonment on December 26, four days before Dr.
Burval took him off work. However, the termination for cause defense only applies in
situations where temporary partial disability benefits are sought and, but for the
termination, the employee could have returned to work despite his restrictions. See, e.g.,
Mace v. Express Servs., Inc., TN Wrk. Comp. App. Bd. LEXIS 49, at *8, 9 (Dec. 11,
2015). Thus, Mr. Taylor’s termination is irrelevant as to the issue of temporary total
disability.
Nevertheless, the Court holds that Dr. Kuhn’s records review satisfied Dr.
Burval’s intent to keep Mr. Taylor off work until he was evaluated by a specialist.
Therefore, Mr. Taylor is likely to prove entitlement to temporary total disability benefits
only from December 30 until January 25, when Dr. Kuhn sent the email declining to see
Mr. Taylor because his imaging was normal.
To determine the total benefit amount, the Court must first calculate Mr. Taylor’s
compensation rate based on the wage statement. In calculating the compensation rate, the
Court did not use the week Mr. Taylor was injured. Arguably, only those weeks Mr.
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Taylor worked after he was rehired in September should be used; however, the Court
believes that the entire wage statement is a more accurate reflection of Mr. Taylor’s
average weekly wage. The Court determines Mr. Taylor’s average weekly wage is
$426.64, resulting in a compensation rate of $277.71. Based on this rate, A1 Fun Cycles
shall pay $1,031.49 to Mr. Taylor in temporary total disability benefits.
Finally, the parties stated during the hearing that they did not anticipate the
Tennessee Subsequent Injury Fund would retain any liability in this case. Counsel for
SIF then moved for dismissal, and the parties agreed to the SIF’s dismissal without
prejudice. The Court holds that the SIF is dismissed without prejudice to refiling.
IT IS, THEREFORE, ORDERED:
1. Mr. Taylor’s request for another authorized physician is denied.
2. Mr. Taylor’s request for temporary partial disability benefits is denied. A1 Fun
Cycles shall pay Mr. Taylor temporary total disability benefits from December 30,
2020, until January 25, 2021, at the compensation rate of $277.71 for a total of
$1,031.49. Mr. Taylor’s counsel is awarded 20% of this award as attorney’s fees.
3. The Tennessee Subsequent Injury and Vocational Rehabilitation Fund is dismissed
without prejudice from this action.
4. This case is set for a Scheduling Hearing on Tuesday, November 9, 2021, at 9:00
a.m. Central Time. The parties must call 615-253-0010 or 855-689-9049 toll-
free to participate. Failure to appear might result in a determination of the issues
without the party’s participation.
5. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
with this Order must occur no later than seven business days from the date of entry
of this Order as required by Tennessee Code Annotated section 50-6-239(d)(3).
The Employer or Carrier must submit confirmation of compliance with this Order
to the Bureau by email to WCCompliance.Program@tn.gov no later than the
seventh business day after entry of this Order. Failure to submit the necessary
confirmation within the period of compliance may result in a penalty assessment
for noncompliance. For questions regarding compliance, please contact the
Workers’ Compensation Compliance Unit via email at
WCCompliance.Program@tn.gov.
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ENTERED September 7, 2021.
___________________________
ROBERT DURHAM, JUDGE
Court of Workers’ Compensation Claims
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APPENDIX
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Transfer Order
5. A1 Fun Cycle’s Witness and Exhibit List
6. A1 Fun Cycle’s Pre-Hearing Statement
7. Mr. Taylor’s Pre-Hearing Statement
8. SIF’s Pre-Hearing Statement
9. Mr. Taylor’s Witness and Exhibit List
Exhibits:
1. Mr. Taylor’s collective exhibit of records from various providers
2. Mr. Taylor’s affidavit
3. A1 Fun Cycle’s collective exhibit of medical records
4. Dr. Rose’s work statements
5. Wage Statement
6. A1 Fun Cycle’s Interrogatory Responses
7. September 2020 Separation Notice
8. December 2020 Separation Notice
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on September 7, 2021.
Name Certified Fax Email Service sent to:
Steve Karr X Steve@flexerlaw.com
Cindy@flexerlaw.com
Tiffany Sherrill X TBSherrill@mijs.com
clalmeida@mijs.com
Patrick Ruth X Patrick.Ruth@tn.gov
_____________________________________
PENNY SHRUM, COURT CLERK
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
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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