The opinion
FILED
Mar 18, 2024
10:32 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT GRAY
BRADLEY PAINTER, ) Docket Number: 2023-02-8127
Employee, )
v. )
AMERICAN MECHANICAL )
CONTRACTORS INCORPORATED, ) State File Number: 60711-2023
Employer, )
and )
BUILDERS MUTUAL INSURANCE )
COMPANY, ) Judge Brian K. Addington
Carrier. )
EXPEDITED HEARING ORDER
DECISION ON THE RECORD
American Mechanical filed a Petition for Benefit Determination and a Motion to
Stay Enforcement of Medical Director Order authorizing a right-shoulder surgery. The
court stayed enforcement of that order to allow American Mechanical to take the deposition
of Mr. Painter’s authorized treating physician.
After the deposition, the parties agreed to a decision on the record. For the reasons
below, the Court finds Mr. Painter is entitled to the right shoulder surgery.
Claim History
Mr. Painter alleged an injury to his right shoulder on July 27, 2023, while working
for American Mechanical. The authorized treating physician, Dr. Jeffrey France, ordered
shoulder surgery on September 22. American Mechanical submitted the order for
utilization review, and the reviewing physician did not certify the surgery. Dr. France
appealed the denial to the Bureau’s Medical Director, who approved the surgery on
November 13.
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On November 20, American Mechanical filed the petition and the Motion to Stay
because it “dispute[d] causation and compensability of employee’s right shoulder
symptoms based on the MRI findings and contradicting physical examination performed
by Dr. France.”
American Mechanical later deposed Dr. France, during which he primarily related
Mr. Painter’s injury and need for right shoulder surgery to his work at American
Mechanical.
Findings of Fact and Conclusions of Law
Mr. Painter must prove he is likely to prevail at a hearing on the merits. Tenn. Code
Ann. § 50-6-239(d)(1) (2023); McCord v. Advantage Human Resourcing, 2015 TN Wrk.
Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
The issue is whether Mr. Painter is entitled to the surgery ordered for his right
shoulder. American Mechanical must furnish Mr. Painter reasonable and necessary
medical benefits from his work injury. Tenn. Code. Ann. § 50-6-204(a)(1)(A). Dr.
France’s right shoulder surgery recommendation is considered medically necessary under
section 50-6-204(a)(3)(H), and American Mechanical has the burden of rebutting this
presumption.
American Mechanical relied on the utilization review report, in which the doctor
recommended physical therapy and injections instead of the surgery. However, Dr. France
appealed the decision, and the Bureau’s medical director approved the surgery. After the
Court stayed the medical director’s decision, the parties deposed Dr. France’s, and he
primarily related Mr. Painter’s right-shoulder condition and the need for surgery to his
work.
Dr. France confirmed that the injury and need for surgery is primarily related to Mr.
Painter’s work, so American Mechanical, by standing on the utilization review report
alone, did not overcome the presumption that the surgery is medically necessary. Also,
considering the facts and the law, Tennessee law generally concludes that the physician
having greater contact with an injured employee has a more accurate opinion. Bass v.
Home Depot U.S.A., Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 36, at * 14 (May 26,
2017). Therefore, the Court finds Dr. France’s opinion along with the medical director’s
opinion more persuasive than the utilization review physician’s.
Thus, the Court holds Mr. Painter is likely to prevail at a hearing on the merits in
proving his entitlement to the surgery Dr. France recommended.
IT IS, THEREFORE ORDERED as follows:
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1. American Mechanical shall approve and provide the right shoulder surgery as
ordered by Dr. France. American Mechanical shall inform Mr. Painter of the date
of the surgery.
2. The parties shall appear for a Status Hearing on April 24, 20024, at 2:00 p.m.
Eastern. You must call 855-543-5044 to participate in the hearing. Failure to call
in may result in a determination of the issues without your further participation.
3. 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 the
entry of this order as required by Tennessee Code Annotated section 50-6-239(d)(3).
The insurer or self-insured employer must submit confirmation of compliance by
email to WCCompliance.Program@tn.gov by the compliance deadline. Failure to
do so may result in a penalty assessment for non-compliance.
4. For compliance questions, please contact the Workers’ Compensation Compliance
Unit by email at WCCompliance.Program@tn.gov.
Entered March 18, 2024.
/s/ Brian K. Addington
______________________________________
BRIAN K. ADDINGTON, JUDGE
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
1. Utilization Review report
2. Medical Director’s decision
3. Causation opinion questionnaire by Dr. France
4. Occupational Medicine Clinic Visit
5. Medical Care Radiology
6. Watauga Orthopaedics
7. Deposition of Dr. Jeffrey France
8. Rule 72 Declaration of Stanley Arnold
9. Statement by Stanley Arnold
10. Photo (elevator)
11. Photo (scales)
12. Deposition of Bradley Painter
Technical Record:
1. Petition for Benefit Determination
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2. Dispute Certification Notice
3. Request for Stay of Enforcement of Medical Director’s Order
4. Order Granting Motion to Stay and Scheduling Expedited Hearing
5. Employer’s Witness and Exhibit List
6. Employer’s Expedited Hearing Brief
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent on March 18, 2024.
Name Certified Fax Email Service sent to:
Daniel Minor, X dan@danielbminor.com
Employee’s Attorney maria@danielbminor.com
Jeffery Foster, X jfoster@morganakins.com
Employer’s Attorney jtallent@morganakins.com
Jaime Weatherly, X jaime.weatherly@tn.gov
Mediator
______________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
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Right to Appeal:
If you disagree with the Court’s 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 before the expiration of the deadline.
If the order being appealed is “expedited” (also called “interlocutory”), or if the
order does not dispose of the case in its entirety, the notice of appeal must be filed
within seven (7) business days of the date the order was filed.
If the order being appealed is a “Compensation Order,” or if it resolves all issues
in the case, the notice of appeal must be filed within thirty (30) calendar days of
the date the Compensation Order was filed.
When filing the Notice of Appeal, you must serve a copy on 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. 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. If you choose to submit a transcript as part of your
appeal, which the Appeals Board has emphasized is important for a meaningful review of
the case, a licensed court reporter must prepare the transcript, and you must file it with the
Court Clerk. The Court Clerk will prepare the record for submission to the Appeals Board,
and you will receive notice once it has been submitted. For deadlines related to the filing of
transcripts, statements of the evidence, and briefs on appeal, see the applicable rules on the
Bureau’s website at https://www.tn.gov/wcappealsboard. (Click the “Read Rules” button.)
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.
If neither party timely files an appeal with the Appeals Board, the Court Order
becomes enforceable. See Tenn. Code Ann. § 50-6-239(d)(3) (expedited/interlocutory
orders) and Tenn. Code Ann. § 50-6-239(c)(7) (compensation orders).
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