The opinion
FILED
Jan 31, 2023
12:27 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
BARBARA FOULKS, ) Docket No.: 2022-08-1051
Employee, )
v. )
ABM INDUSTRY GROUPS LLC, ) State File No.: 64828-2021
Employer, )
And )
INDEMNITY INSURANCE ) Judge Shaterra R. Marion
COMPANY OF AMERICA, )
Carrier. )
________________________________________________________________________
EXPEDITED HEARING ORDER GRANTING BENEFITS
The Court held an Expedited Hearing on January 11, 2023, to determine whether
temporary total disability benefits should be reinstated based on the treatment Ms. Foulks
is receiving from Dr. Michael Cody Scarbrough. The Court finds the evidence supports
Ms. Foulks’s contention that Dr. Scarbrough’s treatment entitles her to temporary total
disability payments, and therefore holds that she is likely to prevail at a hearing on the
merits.
History of Claim
The parties agreed that Ms. Foulks suffered a compensable injury to her ribs, right
foot, and right knee on July 28, 2021, while working for ABM. She selected Dr. John
Lochemes from a panel.
Ms. Foulks’s care with Dr. Lochemes consisted of foot x-rays, MRIs of her knees,
medication, and physical and massage therapy. Dr. Lochemes initially referred Ms. Foulks
to Dr. Scarbrough in October for “consideration of blocks for the nerve pain she is having,”
and she was again referred to Dr. Scarbrough two weeks later. However, according to his
notes Ms. Foulks stated that she did not wish to proceed with having a block done at that
time. Dr. Lochemes referred Ms. Foulks to Dr. Scarbrough again in December. Ms. Foulks
had her next and final visit with Dr. Lochemes on April 26, 2022. In his notes he stated:
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“the symptoms she is presenting with will continue to be treated by Dr. Scarbrough.” He
placed Ms. Foulks at maximum medical improvement from an orthopedic standpoint..
Dr. Scarbrough began seeing Ms. Foulks in December 2021. He prescribed
medication, ordered a repeat x-ray and a bone scan of her lower right extremity, and he
desired to enroll her in “extensive physical therapy including our IPRP setup with inclusion
of psychiatric care.” He noted her developing decreased range of motion and concerns of
an evolving complex regional pain syndrome.
She next visited Dr. Scarbrough in January 2022, where he stated she “never got
full treatment for her right foot and ankle” and later developed the CRPS symptoms of
dysesthesia, burning pain, decreased range of motion, skin changes, and swelling. He also
noted that portions of his recommendations were denied but reiterated the need for the
treatment, as Ms. Foulks “has significant lack of plantarflexion and dorsiflexion of the right
foot and ankle.” He again recommended “aggressive physical therapy interventions to
regain her overall functional status,” and noted, “I think we have lost some ground in terms
of her overall functional capacity given the significant delay in physical therapy.”
At this visit, Dr. Scarbrough stated that Ms. Foulks was adamant about not treating
her pain with ongoing medications or injections, and instead she wanted the aggressive
physical therapy interventions to regain her overall functional status.
Dr. Scarbrough expressed frustration in his notes from Ms. Foulks’s visit in March
due to the limits on what he had been able to get approved. He stated her need for treatment
was “desperate” and noted that she has started having “some low back discomfort
associated with her significant gait instability from her right foot and ankle pain.”
Ms. Foulks returned to Dr. Scarbrough in September, where he noted that she was
able to do some physical therapy in June, but he was still recommending the “intensive
rehabilitation program.” He stated that while she was placed at maximum medical
improvement from an orthopedic standpoint, she was not at maximum medical
improvement for her chronic pain, as “[w]e have yet to even begin appropriate treatment
strategies for her findings of the right foot and ankle.” He also recommended a nurse case
manager to discuss her care and a driver to take her to her appointments, and he reiterated
his desire for the triple phase bone scan and the x-ray. He additionally requested a nerve
block, as Ms. Foulks appeared ready for it.
Dr. Scarbrough received the x-rays and bone scan he had been requesting and
reviewed them with Ms. Foulks at her appointment in October. He requested a left foot and
ankle x-ray study due to the increased loadbearing placed on her left side. He again
requested the nerve block, as it had not been approved, along with the “extensive” physical
therapy, to “correct her gait and prevent any further deterioration” in function. He also
repeated Ms. Foulks’s need for a case manager and a driver.
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Ms. Foulks testified that Dr. Scarbrough wanted her to return to physical therapy
and give her a block. She additionally stated that she was on medication, but Dr.
Scarbrough “was trying to get me to go further.” As of the date of the hearing, she had
neither had the block nor the physical therapy.
The parties stipulated that Ms. Foulks’s compensation rate is $374.49, and that there
is a $16,070.07 temporary disability overpayment.
Ms. Foulks testified that she started working part-time on December 5, 2022. She
works 20 hours a week and makes $15 an hour. She further stated that she was off work
for the holidays. 1
Findings of Fact and Conclusions of Law
At this Expedited Hearing, Ms. Foulks must show she would likely prevail at a
hearing on the merits regarding her request for temporary total disability benefits. Tenn.
Code Ann. § 50-6-239(d)(1) (2022). The Court finds she likely would.
The issue is whether Ms. Foulks is entitled to temporary total disability benefits
after Dr. Lochemes, her authorized treating orthopedic, released her at maximum medical
improvement and she continues to treat with Dr. Scarbrough. Tennessee Code Annotated
section 50-6-207(1)(E) states that an employee “shall be conclusively presumed to be at
maximum medical improvement when the treating physician ends all active medical
treatment and the only care provided is for the treatment of pain or for a mental injury that
arose primarily out of a compensable physical injury.” (Emphasis added). Put another way,
the issue is whether Dr. Scarbrough’s treatment constitutes active treatment, or if he is only
providing care for the treatment of pain.
The central focus when interpreting any statute is to “ascertain and give effect to the
intention or purpose of the legislature as expressed in the statute.” In re Adoption of A.M.H.,
215 S.W.3d 793, 808 (Tenn. 2007). Unless the language is ambiguous, the Court must
derive legislative intent “from the natural and ordinary meaning of the statutory language
within the context of the entire statute without any forced or subtle construction that would
extend or limit the statute’s meaning.” Id.
Here, the natural and ordinary meaning of the statute, as indeed it is almost a
verbatim recitation of the statute, is that maximum medical improvement is presumed when
all active medical treatment has ended, and the only remaining treatment is for pain alone.
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The parties stipulated that the sole issue was whether Ms. Foulks is entitled to continued temporary total
disability. Therefore, the Court will not address whether Ms. Foulks is entitled to temporary partial
disability.
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It is therefore also true to say that maximum medical improvement is not presumed when
the medical treatment is not for pain alone, and returns us to the question of whether Dr.
Scarbrough’s treatment of Ms. Foulks constitutes active medical treatment, or passive
treatment for pain alone.
Black’s Law Dictionary defines active as “this is an action; that demands action;
actually subsisting; the opposite passive.” Black’s Law Dictionary 31 (5th ed. 1979) Black’s
defines passive as “As used in law, this term means inactive; permissive; consisting in
endurance or submission, rather than action.” Black’s Law Dictionary 1012 (5th ed. 1979).
Passive can further be defined as “not acting to influence or change a situation.”
Dictionary.Cambridge.org/us/,
https://dictionary.cambridge.org/us/dictionary/english/passive (last visited Jan. 20, 2023).
According to Dr. Scarbrough, Ms. Foulks never received full treatment for her right
foot and ankle and was continuing to lose function. His treatment plan is one of action, as
he is attempting to change Ms. Foulks’s situation by improving her function and gait, not
simply endure her situation from a pain standpoint.
ABM argued that section 50-6-207(1)(E) does not distinguish between active pain
management and pain management. However, the Court interprets the statute to mean that
if an employee is only treating for pain or a mental injury, then all active treatment has
ended. Here, active treatment has not ended, because the treatment is not for pain alone.
Further, ABM argued that Dr. Lochemes is the treating physician referenced in
section 50-6-207(1)(E). However, the parties have stipulated that Dr. Scarbrough is an
authorized treating physician under the Tennessee Workers’ Compensation Act, and case
law permits more than one treating physician. Johnson v. Inspire Brands d/b/a Blazin
Wings, Inc., 2022 TN Wrk. Comp. App. Bd. LEXIS 35, at *23 (Sept. 7, 2022). Therefore,
the Court finds that if Dr. Scarbrough’s treatment is active and more than for pain, then
Ms. Foulks is not conclusively presumed to be at maximum medical improvement.
In Tolbert v. MPW Industrial Services, Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS
14 (Mar. 24, 2016), the Appeals Board applied section 50-6-207(1)(E) in an initially similar
situation: the employee’s orthopedic physician placed him at maximum medical
improvement and referred him for pain management. The employee first saw the pain
management physician on November 11, 2015. After several visits, the pain management
physician assigned restrictions and wrote he anticipated maximum medical improvement
in approximately four weeks. The employee testified that he was offered no treatment
options other than controlling his pain with medication. Id. at *3. The trial court awarded
temporary total disability benefits from November 11, 2015, until he returned to work or
the pain management physician placed him at maximum medical improvement. The
Appeals Board found the conclusive presumption applied and reversed the trial court’s
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decision because the only treatment option offered was “trying to control the pain,” and
the employee was offered no treatment options other than pain management. Id. at *13.
Here, unlike in Tolbert, Dr. Scarbrough is doing more than trying to control Ms.
Foulks’s pain and has offered other treatment options. Specifically, Dr. Scarbrough has
ordered aggressive physical therapy interventions to regain her overall functional status,
correct her gait, and prevent any further deterioration in function. Dr. Scarbrough’s records
state that his objective is functional improvement and not just pain management.
Additionally, Ms. Foulks testified that Dr. Scarbrough “was trying to get me to go further”
than simply taking medication.
Therefore, the Court finds that Ms. Foulks is not at maximum medical improvement
per Tennessee Code Annotated section 50-6-207(1)(E) because her medical treatment is
still active, and the treatment is not only for pain. Therefore, temporary disability benefits
should be reinstated for the period that Ms. Foulks was off work.
The parties agreed that ABM overpaid Ms. Foulks temporary total disability
benefits in the amount of $16,070.07. Ms. Foulks has requested that the credit be applied
against any permanent partial disability benefits she is awarded. Due to the amount of the
overpayment credit and her compensation rate, the Court holds that the credit should be
applied against the temporary total disability benefits awarded in this order.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. Foulks is awarded temporary total disability benefits at the rate of $374.49 from
April 26, 2022, to December 5, 2022, which totals $11,876.68.
2. The owed benefits of $11,876.68, will be deducted from the $16,070.07 temporary
disability overpayment, reducing the overpayment to $4,193.39. Her attorney is
entitled to fees totaling twenty percent of this award.
3. The Court sets a status conference on April 24, 2023, at 9:30 a.m. Central Time.
The parties must call (866) 943-0014 to participate. Failure to call might result in a
determination of the issues without the party’s participation.
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
insurer 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 non-compliance. For
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questions regarding compliance, please contact the Workers’ Compensation
Compliance Program via email WCCompliance.Program@tn.gov.
ENTERED January 31, 2023.
________________________________________
Judge Shaterra R. Marion
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Joint Stipulations Filed by the Parties
2. Dr. John Lochemes’s medical records and response to Employer’s letter
3. Dr. Michael Cody Scarbrough’s medical records and response to Employee’s letter
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Hearing Request, along with Affidavit of Barbara Foulks
4. Employer’s Pre-Expedited Hearing Brief,
5. Employer’s Witness and Exhibit List
6. Employee’s Pre-Hearing Brief
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on January 31, 2023.
Name Certified U.S. Service sent to:
Mail Mail Email
Jonathan May, X jmay@forthepeople.com
Employee’s Attorney cwoods@forthepeople.com
David Deming, X ddeming@manierherod.com
Employer’s Attorney tjoiner@manierherod.com
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_____________________________________
Penny Shrum, Court Clerk
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 *
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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