The opinion
FILED
Apr 08, 2022
08:57 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
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
GRANTING BENEFITS
(DECISION ON THE RECORD)
This case came before the Court on Wendy Cunningham’s Request for an Expedited
Hearing on the record. The sole issue is whether Ms. Cunningham is likely to prove at a
hearing on the merits that Trustpoint must pay for treatment provided by Dr. Keith Caruso.
For the reasons below, the Court holds she is likely to meet this burden.
History of Claim
This is the fourth expedited hearing in this case. Most recently, the Court issued an
Expedited Hearing Order on August 10, 2021, requiring Trustpoint to provide a panel of
psychiatrists. Ms. Cunningham selected Dr. Caruso from the panel and began treatment.
After treating with Dr. Caruso for a few months, Ms. Cunningham filed this Request
for Expedited Hearing. Trustpoint filed no response. The Court issued a docketing notice
allowing the parties until April 6, 2022, to file objections or submit position statements.
Neither party filed any response or objections.
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Findings of Fact and Conclusions of Law
Ms. Cunningham must present sufficient evidence showing she is likely to prevail
at a hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1) (2021).
The Workers’ Compensation Law provides that “the employer or the employer’s
agent shall furnish, free of charge to the employee, such medical and surgical treatment . .
. made reasonably necessary by accident[.]” Tenn. Code Ann. § 50-6-204(a)(1)(A). Thus,
the specific questions before the court are whether Dr. Caruso is Ms. Cunningham’s
authorized physician and, if so, whether Trustpoint has provided the treatment required
under Section 204(a)(1)(A).
Regarding the first question, Ms. Cunningham’s Rule 72 Declaration shows that Dr.
Caruso is her authorized treating psychiatrist. Because this was the only proof submitted,
the Court finds that she is likely to prove this element of her claim.
Next, the Court considers whether Trustpoint provided the treatment required under
Section 204(a)(1)(A). Dr. Caruso’s treatment note and emails show that he recently
suspended Ms. Cunningham’s treatment because Trustpoint failed to pay his invoices
dating back to November. Again, the undisputed proof suggests Ms. Cunningham is likely
to show that Trustpoint failed to pay for her authorized medical treatment. The Court finds
that this is tantamount to failing to provide treatment.
Because of Trustpoint’s failure to pay for medical treatment previously ordered by
the Court, the Court refers this case to the Compliance Program for investigation and
potential assessment of a civil penalty. Upon its issuance, a copy of this Order will be sent
to the Compliance Program. See Tenn. Comp. R. & Regs. 0800-02-24-.03.
IT IS, THEREFORE, ORDERED as follows:
1. Trustpoint shall provide Ms. Cunningham with medical treatment made reasonably
necessary by her June 15, 2018 injury, including continuing treatment with Dr.
Caruso. This treatment shall include payment of Dr. Caruso’s outstanding bills
within ten days of this order.
2. This case is referred to the Compliance Program for consideration of the imposition
of a penalty regarding Trustpoint’s failure to provide authorized medical treatment
as ordered by the Court.
3. This case remains set for a Status Hearing on May 4, 2022, at 9:30 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.
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4. 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 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 might result in a penalty assessment for non-compliance. For
questions regarding compliance, please contact the Workers’ Compensation
Compliance Unit via email at WCCompliance.Program@tn.gov.
ENTERED April 8, 2022.
_____________________________________
Judge Dale Tipps
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Ms. Cunningham’s March 4, 2022 Rule 72 Declaration Under Penalty of Perjury
2. Exhibits to the March 7 Request for Expedited Hearing
3. Exhibits admitted into evidence during prior expedited hearings
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Ms. Cunningham’s Legal Brief in Support of Petition for Medical Benefits
5. Trustpoint’s Objection to Request for Expedited Hearing
6. Ms. Cunningham’s Reply Brief to Objection
7. Trustpoint’s Position Statement
8. July 9, 2021 Request for Expedited Hearing
9. Trustpoint’s July 16, 2021 Response to Request for Expedited Hearing
10. Ms. Cunningham’s July 19, 2021 Reply
11. July 27, 2021 Docketing Notice
12. Trustpoint’s August 5, 2021 Additional Response to Request for Expedited
Hearing
13. Ms. Cunningham’s March 7, 2022 Request for Expedited Hearing
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CERTIFICATE OF SERVICE
I certify that a copy of the Expedited Hearing Order was sent as indicated on April
8, 2022.
Name Certified Via Service sent to:
Mail Email
Christopher D. Markel, X cmarkel@markelfirm.com
Employee’s attorney
Kitty Boyte, X kboyte@constangy.com
Employer’s attorney
Compliance Program X WCCompliance.Program@tn.gov
_____________________________________
Penny Shrum, Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
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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