The opinion
FILED
Feb 17, 2023
08:19 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT GRAY
STEPHEN BASSHAM, ) Docket Number: 2022-02-0210
Employee, )
v. ) State File Number: 800835-2022
LOWE’S HOME CENTERS, INC., )
Employer. ) Judge Brian K. Addington
EXPEDITED HEARING ORDER
During an expedited hearing on February 14, 2023, Stephen Bassham sought a
second opinion for medical treatment for injuries to his wrists. Lowe’s asserted that Mr.
Bassham is not entitled to a second opinion. For the reasons below, the Court denies Mr.
Bassham’s request.
Claim History
Mr. Bassham began working for Lowe’s in October 2020. A few months later,
Lowes assigned him to building and dismantling various steel shelving throughout the
store. Mr. Bassham testified that he removed and relocated racks and large steel beams
used to display merchandise. He stated he had to pound the display racks with his
hands/wrists to remove and reinstall them. He worked in this position for approximately
two months, but Lowes eventually assigned him to setting up displays for different
products.
Mr. Bassham testified that he noticed pain in his wrists while golfing in spring 2021.
He discussed the symptoms with his primary care doctor. She sent him for an EMG. Mr.
Bassham said the EMG did not show nerve damage, so he was referred to an orthopedist.1
1
The EMG report and primary care doctor’s notes were not in the record.
1
Mr. Bassham went to an orthopedic walk-in clinic in March 2022 and saw Dr.
Timothy Jenkins.2 After reviewing x-rays, Dr. Jenkins asked Mr. Bassham if he had
suffered an acute injury. Mr. Bassham testified it was at that moment he realized the
repeated removal and installation of shelving at Lowe’s had caused his wrist pain. Dr.
Jenkins diagnosed complete bilateral ligament tears, recommended physical therapy, and
an MRI.
After Mr. Bassham notified his supervisor of the injury, Lowe’s offered a physician
panel, and Mr. Bassham saw Dr. Clarence Goulding.3 Dr. Goulding was under the
impression that Dr. Jenkins believed Mr. Bassham’s injury was work-related, so he referred
him back to Dr. Jenkins and wrote: “Further evaluation care and treatment will be as per
Dr. Jenkins the orthopedist who has been working with the patient for the past two months.”
Mr. Bassham returned to Dr. Jenkins in June, and he noted, “Patient has bilateral
scapholunate tears. He feels these are [a] work-related event.” Dr. Jenkins reviewed the
MRI results and referred him to Dr. Kent Lord, a hand specialist. Lowes accepted the
referral to Dr. Lord.
The meeting with Dr. Lord did not proceed as Mr. Bassham hoped, because
according to him Dr. Lord was in a bad mood. Regardless, Dr. Lord reviewed the MRI,
recommended an injection, and diagnosed bilateral wrist arthritis with traumatic ligament
ruptures. Mr. Bassham received the injection the same day and was told to return “as
needed.”
In August, Lowes asked Dr. Lord to provide a work status report. In it, he placed
restrictions of no lifting, pushing, or pulling greater than five pounds. He also wrote that
Mr. Bassham had reached maximum medical improvement without a permanent
impairment.
In November, Lowes sent Dr. Lord a questionnaire about Mr. Bassham’s injury. Dr.
Lord responded that the injury occurred gradually. He answered yes to the question,
“Considering the MRI, do you opine to a reasonable degree of medical certainty that Mr.
Bassham’s arthritis is more likely than not an underlying pre-existing condition?” Dr. Lord
affirmed his previous conclusion that Mr. Bassham reached maximum medical
improvement on August 31, 2022.
2
Mr. Bassham asked the Court to allow the late filing of the remaining portion of Dr. Jenkins’s office note.
Lowe’s objected, and the Court sustained the objection. The office note was accepted for identification
purposes only.
3
Due to the impending retirement of the physician that Mr. Bassham chose, the parties agreed for Mr.
Bassham to see Dr. Goulding instead.
2
Mr. Bassham last received treatment in June 2022. He requested Lowes provide an
independent doctor to explore options for treating his condition. In other words, he asked
for a second opinion.
Lowes argued that Mr. Bassham is not entitled to a second opinion because his
authorized doctor did not recommend surgery or refer him for a second opinion.
Findings of Fact and Conclusions of Law
At an expedited hearing, Mr. Bassham must show he would likely prevail at a
hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(1) (2022).
Here, Mr. Bassham requested a second opinion. Under Tennessee Code Annotated
section 50-6-204(a)(3)(C): “When the treating physician . . . refers the injured employee,
the employee shall be entitled to have a second opinion on the issue of surgery and
diagnosis . . . from a panel of two (2) physicians practicing in the same specialty as the
physician who recommended the surgery.” (Emphasis added).
The Tennessee Workers’ Compensation Appeals Board determined that, “The
phrase ‘as the physician who recommended the surgery’ necessarily requires there to be an
opinion of a specialist recommending surgery before an injured worker is entitled to a
second opinion on the issue of surgery and diagnosis.” Petty v. Convention Prod. Rigging,
2016 TN Wrk. Comp. App. Bd. LEXIS 95, at *21 (Dec. 29, 2016).
In this case, none of the physicians recommended surgery. Dr. Jenkins may have
implied that surgery was an option when he referred Mr. Bassham to Dr. Lord, but he did
not record any recommendations in his medical record. Additionally, the fact that Dr.
Jenkins referred Mr. Bassham to a “hand specialist” leads the Court to conclude that he
was unsure of treatment options available to Mr. Bassham.
The Court finds Mr. Bassham sincere in his belief that his condition may require
surgery. However, the Court holds that he is unlikely to succeed at a hearing on the merits
in proving he is entitled to a second opinion at this time. Dr. Lord remains the authorized
treating physician, as he has not refused to treat him further.
IT IS THEREFORE, ORDERED.
1. Mr. Bassham’s request that the Court order a second opinion is denied.
2. The Court sets a status hearing on April 10, 2023, at 10:00 a.m. Eastern Time. The
parties must call (855) 543-5044. Failure to call might result in a determination of
the issues without the party’s participation.
3
ENTERED February 17, 2023.
/s/ Brian K. Addington
______________________________________
BRIAN K. ADDINGTON, JUDGE
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Affidavit of Stephen Bassham
2. Employee’s Choice of Physician form
3. Final Medical Report-Dr. Kent Lord
4. Medical record Dr. Clarence Goulding
5. Medical record Watauga Orthopeadics, Drs. Timothy Jenkins, and Kent Lord
6. Medical questionnaire Dr. Kent Lord, November 15, 2022
7. (Identification only) Medical record Dr. Timothy Jenkins, March 30, 2022
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Hearing Request
4. Employer’s Pre-Hearing Brief
CERTIFICATE OF SERVICE
I certify that a correct copy of this Order was sent on February 17, 2023.
Name Certified Fax Email Service sent to:
Samuel McPeak, X sam@hbm-lawfirm.com
Employee’s Attorney sandy@hbm-lawfirm.com
Allison Tomey, X aptomey@mijs.com
Employer’s Attorney lsgwinn@mijs.com
______________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
4
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