The opinion
FILED
Mar 18, 2022
07:15 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
CORNELIUS WILLIAMS, ) Docket No. 2021-08-0990
Employee, )
v. )
)
PEOPLE READY, INC., )
Employer, )
And ) State File No. 50315-2021
)
AIU INSURANCE CO., )
Carrier, )
And )
ABIGAIL HUDGENS, Administrator )
of the Bureau of Workers’ ) Judge Deana Seymour
Compensation, Subsequent Injury )
Fund. )
EXPEDITED HEARING ORDER
The Court held an Expedited Hearing on March 2, 2022, to determine Cornelius
Williams’s entitlement to medical treatment and temporary disability benefits from a left-
knee injury. People Ready denied benefits because Mr. Williams refused to select a panel
physician. Based on the proof, the Court holds Mr. Williams is likely to prevail at trial on
his claim for medical treatment but not temporary disability benefits.
History of Claim
On June 24, 2021, Mr. Williams injured his left knee at work. People Ready
accepted the claim and directed him to a walk-in clinic. Neither People Ready nor its carrier
provided a panel of physicians. The medical provider diagnosed a left-knee contusion and
sprain, and an acute neck strain.
Mr. Williams returned to the clinic four days later with left knee and neck pain. His
physician recommended an MRI and physical therapy. After physical therapy treatment,
Mr. Williams still had left-knee pain, and his MRI showed a torn medial meniscus, an ACL
tear, and osteoarthritis. The provider referred him for orthopedic treatment.
Per Mr. Williams, the walk-in clinic staff scheduled an appointment with
orthopedic surgeon Dr. John Lochemes and gave him an appointment card with a map and
directions to Dr. Lochemes’s office.
After reviewing records and performing an exam, Dr. Lochemes recommended
surgery. 1 People Ready denied surgery, refused to pay for the unauthorized visit, and
offered him a panel of orthopedic surgeons instead. Mr. Williams testified since he had
confidence in Dr. Lochemes, he did not select a doctor from the panel.
Concerning temporary disability benefits, Mr. Williams stated People Ready
offered work with restrictions at his pre-injury wage but with fewer hours, until November.
It then refused to accommodate his restrictions and initiated temporary disability benefits.
People Ready’s adjuster, Alexandra Booher, testified by Rule 72 Declaration about
why she denied surgery and offered the panel instead. Dr. Lochemes’s office called for
authorization, but she denied authorization because she did not have notice of a direct
referral. 2 She then sent a panel of physicians to Mr. Williams, informing him treatment
would be authorized with a panel-selected physician.
Findings of Fact and Conclusions of Law
At this Expedited Hearing, Mr. Williams must show he would likely prevail at a
hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(1) (2021).
The primary issue is whether Mr. Williams is entitled to medical treatment with Dr.
Lochemes. Both parties look to Tennessee Code Annotated section 50-6-204(a)(3)(A)(ii)
for guidance on whether the walk-in clinic directly referred Mr. Williams to Dr. Lochemes.
This section provides, in part:
When necessary, the treating physician selected in accordance with this
subsection (a)(3)(A) shall make referrals to a specialist physician, surgeon,
or chiropractor and immediately notify the employer. The employer shall be
deemed to have accepted the referral, unless the employer, within three (3)
business days, provides the employee a panel of three (3) or more
1
Dr. Lochemes’s medical record included contact and claim reference information for People Ready and its
carrier, ESIS, including adjuster Alexandra Booher. It also noted, “sedentary duty – left knee arthroscopy
– medial meniscectomy planned.”
2
The date of that request was not in evidence.
independent reputable physicians, surgeons, chiropractors or specialty
practice groups.
Tenn. Code Ann. § 50-6-204(a)(3)(A)(ii)(Emphasis added).
In this case, People Ready directed Mr. Williams to the walk-in clinic instead of
providing a panel under Tennessee Code Annotated section 50-6-204(a)(3)(A)(i). 3 Thus,
by its specific terms, section 50-6-204(a)(3)(A)(ii) does not apply to these facts.
The question becomes whether the facts justify designating Dr. Lochemes the
authorized physician or whether Mr. Williams must select a physician from the panel.
In Ducros v. Metro Roofing and Metal Supply Co. Inc., 2017 TN Wrk. Comp. App.
Bd. LEXIS 62, at *10 (Oct. 17, 2017), the Appeals Board wrote:
It is a long-settled principle of Tennessee’s workers’ compensation law that
an employer who does not timely provide a panel of physicians risks being
required to pay for treatment an injured worker receives on his own. ‘An
employer who attempts to claim the benefits of [Tennessee Code Annotated
section] 50-6-204 must also comply with the statute.’ Simpson v. Frontier
Cmty. Credit Union, 810 S.W.2d 147, 150 (Tenn. 1991). Moreover,
‘[r]eferring the employee to a single physician does not comply with the
statute; it is an usurpation of the privilege of the employee to choose the
ultimate treating physician.’ Employers Ins. Of Wausau v. Carter, 522
S.W.2d 174, 176 (Tenn. 1975).
Importantly, the Appeals Board added, “[A] belated attempt to insist that an injured worker
treat with a panel physician after the worker has established a doctor-patient relationship
with another physician will not succeed, particularly when the employer has pointed to no
rationale to require the change in physicians other than an assertion of its statutory right.
Ducros, 2017 TN Wrk. Comp. App. Bd. LEXIS 62, at *11; see also Goodman v. Oliver
Springs Mining Co., 595 S.W.2d 805, 808-09 (Tenn. 1980).
Here, People Ready knew Mr. Williams needed medical treatment for his work
injury but did not provide a panel of physicians. Instead, it directed him to a walk-in clinic.
Mr. Williams complied with that request. The provider wrote that Mr. Williams needed to
see an orthopedic after reviewing his MRI. The walk-in clinic staff made an appointment
for Mr. Williams to see Dr. Lochemes. People Ready did not offer a panel until Dr.
3
Tennessee Code Annotated section 50-6-204(a)(3)(A)(i) reads, “[W]hen the employee has suffered an
injury and expressed a need for medical care, the employer shall designate a group of three (3) or more
independent reputable physicians, surgeons, chiropractors or specialty groups . . . from which the injured
employee shall select one (1) to be the treating physician.”
Lochemes recommended surgery.
The Court holds that People Ready’s belated panel does not comply with the statute.
Because People Ready failed to provide an initial panel, it was reasonable for Mr. Williams
to treat with Dr. Lochemes. Mr. Williams testified that he has confidence in Dr. Lochemes
and wants him to perform the recommended surgery. Thus, the Court holds that Dr.
Lochemes is the authorized treating physician, and People Ready shall be responsible for
the August 23 treatment, and ongoing reasonable, necessary, and related treatment.
Turning to temporary disability benefits, to receive temporary total disability
benefits, Mr. Williams must prove (1) he became disabled from working due to a
compensable injury; (2) a causal connection between his injury and his inability to work;
and (3) his period of disability. For temporary partial disability benefits, he must show that
his treating physician returned him to work with restrictions that People Ready either could
not or would not accommodate. See Jones v. Crencor Leasing and Sales, 2015 TN Wrk.
Comp. App. Bd. LEXIS 48, at *7, 8 (Dec. 11, 2015).
The proof showed People Ready accommodated his restrictions until November. It
then initiated benefits it continued to pay as of this hearing. Mr. Williams testified his wage
rate remained the same, but he worked fewer hours. However, he offered no proof of
reduction in earnings. Thus, the Court holds he is unlikely to prevail at a hearing on his
claim for temporary disability benefits.
Compliance Program Referral
The Compliance Program is specifically authorized to assess penalties under the
Workers’ Compensation Law as well as the General Rules of the Workers’ Compensation
Program. The Court refers this matter to the Compliance Program for consideration of
possible penalty assessment under Tennessee Code Annotated section 50-6-118, for People
Ready’s failure to timely offer a panel.
IT IS ORDERED as follows:
1. Mr. Williams’s request for medical treatment with Dr. John Lochemes is granted.
People Ready shall pay Dr. Lochemes’s bill for medical services on August 23, and
Dr. Lochemes is designated as authorized treating physician for reasonable,
necessary, and related treatment.
2. Mr. Williams’s request for temporary disability benefits is denied at this time.
3. The Court refers this case to the Compliance Program for consideration of penalties.
4. For questions regarding compliance, please contact the Workers’ Compensation
Compliance Unit via email at WCCompliance.Program@tn.gov.
5. This case is set for a Status Hearing on April 25, 2022, at 11:00 a.m. Central Time.
The parties must call 615-532-9550 or 866-943-0014 to participate.
ENTERED March 18, 2022.
____________________________________
Judge Deana C. Seymour
Court of Workers’ Compensation Claims
APPENDIX
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Hearing Request
4. Employer’s Expedited Hearing Brief
5. Employer’s Witness and Exhibit List
6. Subsequent Injury Fund’s Response to Employee’s Request for Expedited Hearing
Exhibits:
1. Medical records of Concentra
2. Medical records of Dr. John Lochemes
3. Affidavit of Mr. Williams
4. Rule 72 Declaration of Alexandra Booher
5. Employee’s Choice of Physician form (unsigned)
6. Wage Statement
7. Petition for Benefit Determination
8. Temporary Disability Benefits Payment Log
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on March 18, 2022.
Name Mail Service sent to:
Andrew Wener, X awener@wenerlawfirm.com
Employee’s Attorney
David Goudie, X dgoudie@morganakins.com
Employer’s Attorney
Timothy Kellum, X Timothy.Kellum@tn.gov
SIF Attorney
Compliance Program X WCCompliance.Program@tn.gov
_____________________________________
Penny Shrum, Court Clerk
Court of Workers’ Compensation Claims
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
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.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