# Townsend, Timothy v. Universal Forest Products > Tennessee Court of Workers' Compensation Claims · February 7, 2024 · 2024 TN WC 5 URL: https://www.frixlaw.com/law-library/cases/9939749 ## Case - **Court:** Tennessee Court of Workers' Compensation Claims - **Decided:** February 7, 2024 - **Citations:** 2024 TN WC 5 - **Precedential status:** Published - **Opinion:** Opinion - **Judges:** Pamela B. Johnson - **Cited by:** 0 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9939749 ## Opinion text FILED Feb 07, 2024 03:26 PM(ET) TENNESSEE COURT OF WORKERS' COMPENSATION CLAIMS TENNESSEE BUREAU OF WORKERS’ COMPENSATION IN THE COURT OF WORKERS’ COMPENSATION CLAIMS AT KNOXVILLE TIMOTHY TOWNSEND, ) Docket No. 2022-03-0693 Employee, ) v. ) State File No. 35311-2022 UNIVERSAL FOREST ) PRODUCTS, ) Judge Pamela B. Johnson Employer. ) ORDER DENYING ATTORNEY FEES Timothy Townsend seeks attorney fees for Universal Forest Products’s delay in authorizing a recommended surgery under an open medical benefits provision in a settlement agreement. The authorized treating physician recommended surgery in late June; it took place in December. Whether that delay was too long is the subject of this order. For the reasons below, the Court finds that under these circumstances, it was not. Therefore, Mr. Townsend did not prove by a preponderance of the evidence that he is entitled to attorney fees. History of Claim Mr. Townsend injured his low back while operating a forklift at work on June 2, 2020. After the claim settled, his authorized treating physician, Dr. Paul Johnson, recommended surgery. Universal Forest did not immediately authorize it, so Mr. Townsend filed a petition seeking medical benefits and attorney fees. The parties did not introduce Dr. Johnson’s post-settlement office notes, including his surgery recommendation, or take his deposition. The facts are taken from the affidavits of Mr. Townsend and his attorney and the parties’ prehearing briefs. According to Mr. Townsend, Dr. Johnson recommended surgery in late June and scheduled it for early August. At the end of July, Universal Forest asked Dr. Johnson to address the cause for the 1 need for a “S1 joint arthrodesis” surgery. In its letter, it noted that a recent MRI did not show any obvious pathology explaining Mr. Townsend’s ongoing S1 joint pain. It asked Dr. Johnson whether the June 2, 2020 work accident contributed more than 50% in causing Mr. Townsend’s current need for S1 joint surgery. Dr. Johnson did not immediately respond to the letter. Near the end of August, Mr. Townsend sent his own letter to Dr. Johnson. He informed Dr. Johnson that he had lifetime medical benefits and asked whether the need for surgery arose primarily from the “work-related injury of August 1, 2019” and whether the surgery was both reasonable and medically necessary. (Emphasis added). The same day, Dr. Johnson replied “yes” to both questions. Mr. Townsend sent Dr. Johnson’s response to Universal Forest. After repeated requests for a response to its letter, Universal Forest received Dr. Johnson’s response on the last day of October. Dr. Johnson marked “yes” and wrote that Mr. Townsend’s S1 pain related to the L5-S1 fusion, which was necessitated by his work injury. He further noted that the normal MRI was additional evidence of his current problems not being due to other factors. Universal Forest notified Mr. Townsend in mid- November that it authorized the surgery. Mr. Townsend argued the delay in authorizing surgery was unreasonable and asked for attorney fees under Tennessee Code Annotated section 50-6-226(d). Findings of Fact and Conclusions of Law Mr. Townsend has the burden of proof on all essential elements of his claim. Scott v. Integrity Staffing Sols., 2015 TN Wrk. Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). He must prove by a preponderance of the evidence that he is entitled to the requested benefits. Tenn. Code Ann. § 50-6-239(c)(6). Under the settlement, Mr. Townsend is entitled to lifetime medical treatment. The treatment must be causally related to the original work injury and reasonable and necessary. Id. at -204(a)(1)(A). The parties did not introduce any post-settlement office notes from Dr. Johnson, including his surgery recommendation, and did not take his deposition. Instead, each party sent Dr. Johnson a letter asking him to address the cause of the need for the recommended surgery. 1 1 Letters addressing medical causation and/or the reasonableness and necessity of treatment may be excluded at a compensation hearing through valid objection under the Tennessee Rules of Evidence. Tenn. Comp. R. & Regs. 0800-02-21-.15(2) (2023). Neither party objected to the causation letter submitted by the opposing party. Therefore, the Court considers Dr. Johnson's response to each. 2 Dr. Johnson did not immediately answer the letter first sent by Universal Forest, which specifically asked him to explain the cause of the need for the recommended surgery considering a recent normal MRI. Dr. Johnson finally responded two months after the request, and after receiving his explanation, Universal Forest authorized the surgery. In the interim, Dr. Johnson replied to Mr. Townsend’s letter, which referenced an August 2019 injury date different from the June 2020 injury date in the settlement. Mr. Townsend’s letter did not ask for any explanation on why the most recent MRI was normal at the same level as the proposed surgery level. Considering the authorization delay at issue, Dr. Johnson purportedly recommended surgery in late June. Universal Forest sent Dr. Johnson its causation letter on that last day of July and received his response on the last day of October. Then, Universal Forest authorized the surgery in mid-November, which was performed a month later. Mr. Townsend argued that he is entitled to attorney fees under section 226(d)(1)(A) and (B). Section 226(d)(1) states that the Court may award attorney fees when the employer: (A) fails to furnish appropriate medical treatment to an employee provided for in a settlement or (B) unreasonably denies a claim or unreasonably fails to timely initiate medical benefits. Id. However, section 226(d)(1)(B) is inapplicable to post-settlement future medical disputes. In this case, only section 226(d)(1)(A) applies. Applying these facts to section 226(d)(1)(A), Universal Forest did not fail to furnish the recommended surgery. Instead, before authorizing the surgery, it asked Dr. Johnson to address the cause for the need for surgery when the recent MRI was normal. Under these circumstances, the Court cannot find Universal Forest’s delay in authorizing surgery unreasonable. Universal Forest authorized the surgery within two weeks of Dr. Johnson’s response to its letter, which explained with specificity the cause for the need for surgery. Moreover, Dr. Johnson’s response to Mr. Townsend’s causation letter related the need for surgery to a 2019 injury date, not the 2020 injury date with lifetime future medical benefits, and it did not explain the cause of the need for surgery considering the recent normal MRI. The Court concludes Mr. Townsend did not prove by a preponderance of the evidence that Universal Forest’s delay was unreasonable. Therefore, Mr. Townsend’s request for attorney fees is denied. 2 2 Mr. Townsend also requested that Universal Forest be referred to the Compliance Program for the imposition of penalties. However, this is not one of the benefits/remedies available to injured workers under sections 118, 204 or 207. In this case, since the Court did not find Universal Forest’s actions unreasonable, a penalty referral is unwarranted. 3 IT IS, THEREFORE, ORDERED as follows: 1. Mr. Townsend’s request for attorney fees is denied. 2. Universal Forrest Products shall pay the $150.00 filing fee within five business days of entry of this order, for which execution may issue. 3. Unless appealed, this order shall become final 30 calendar days after entry. ENTERED February 7, 2024. _____________________________________ JUDGE PAMELA B. JOHNSON Court of Workers’ Compensation Claims APPENDIX Technical Record: 1. Petition for Settlement Approval Only, June 21, 2022, (original award) with complete settlement documents attached 2. Petition for Settlement Approval Only, June 20, 2023, (increased benefits) with complete settlement documents attached 3. Petition for Benefit Determination, September 29, 2023 4. Employee’s Additional Issue to Dispute Certification Notice 5. Dispute Certification Notice 6. Expedited Hearing Request 7. Declaration of Timothy Townsend 8. Employee’s Prehearing Brief Ex. 1 Prior Settlement Documents (redacted as duplicates) Ex. 2 Employee’s Causation Letter from Dr. Paul Jonson Ex. 3 Unsigned Fee Affidavit of Attorney Michael Fisher 9. Employer’s Objection to Employee’s Expedited Hearing Request for On-The- Record Decision 10. Order Denying Expedited Hearing Request and Setting Scheduling Hearing 11. Docketing Notice for On-The-Record Compensation Hearing 12. Employer’s Notice of Filing Medical Opinion Letter from Dr. Paul Johnson 13. Employer’s Prehearing Brief 4 CERTIFICATE OF SERVICE I certify that a copy of the Order was sent as shown on February 7, 2024. Name Mail Email Service sent to: Michael Fisher X michael@rockylawfirm.com Employee’s Attorney Richard Clark X rclark@eraclides.com Employer’s Attorney ______________________________________ PENNY SHRUM, COURT CLERK wc.courtclerk@tn.gov 5 Compensation Order Right to Appeal: If you disagree with this Compensation Order, you may appeal to the Workers’ Compensation Appeals Board. To do so, you must: 1. Complete the enclosed form entitled “Notice of Appeal” and file it with the Clerk of the Court of Workers’ Compensation Claims within thirty calendar days of the date the Compensation Order was filed. When filing the Notice of Appeal, you must serve a copy upon the opposing party (or attorney, if represented). 2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten calendar days after filing 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 filing 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 your appeal. 3. You are responsible for ensuring a complete record is presented on appeal. The Court Clerk will prepare the technical record and exhibits for submission to the Appeals Board, and you will receive notice once it has been submitted. If no court reporter was present at the hearing, you may request from the Court Clerk the audio recording of the hearing for a $25.00 fee. A licensed court reporter must prepare a transcript, and you must file it with the Court Clerk within fifteen calendar days of filing the Notice of Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both parties within fifteen calendar days of filing the Notice of Appeal. The statement of the evidence must convey a complete and accurate account of the testimony presented at the hearing. The Workers’ Compensation Judge must approve the statement of the evidence before the record is submitted to the Appeals Board. If the Appeals Board must 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. After the Workers’ Compensation Judge approves the record and the Court Clerk transmits it to the Appeals Board, a docketing notice will be sent to the parties. You have fifteen calendar days after the date of that notice to file a brief to the Appeals Board. See the Rules governing the Workers’ Compensation Appeals Board on the Bureau’s website If neither party timely files an appeal with the Appeals Board, the trial court’s Order will become final by operation of law thirty calendar days after entry. Tenn. Code Ann. § 50-6- 239(c)(7). For self-represented litigants: Help from an Ombudsman is available at 800-332-2667. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9939749. Public record. Not legal advice.