                                                                                 FILED
                                                                               Feb 11, 2020
                                                                              11:41 AM(CT)
                                                                            TENNESSEE COURT OF
                                                                           WORKERS' COMPENSATION
                                                                                  CLAIMS




           TENNESSEE BUREAU OF WORKERS' COMPENSATION
          IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                             AT GRAY

MATTHEW KINSLER,                            )   Docket No. 2017-02-0591
       Employee,                            )
v.                                          )
ROGERS DEVELOPMENT and                      )   State File No. 78125-2017
WILLIAMS CONSTRUCTION,                      )
         Employers,                         )
and                                         )
BUILDERS MUTUAL INSURANCE,                  )   Judge Brian K. Addington
         Carrier.                           )


      EXPEDITED HEARING ORDER GRANTING MEDICAL BENEFITS


       The Court conducted an Expedited Hearing on February 6, 2020, on the issue of
whether Mr. Kinsler is entitled to a panel of physicians for a September 8, 2017 injury to
his scrotum and testes. The Court holds he presented sufficient evidence that he is likely
to prevail at trial and is entitled to a panel or urologists.

                                     Claim History

        Mr. Kinsler fell approximately ten feet through a floor onto a concrete slab. He
reported the accident to his uninsured employer, Williams Construction. His employer
tried to get him to walk off the pain and relax over the following days, but Mr. Kinsler
eventually went to the emergency room on September 10. There he complained of many
symptoms including pain in his scrotum. The physicians informed him that he fractured
his spine at L-1, ordered a brace, and released him. Mr. Kinsler returned to the
emergency room on September 14 with pain and swelling in his legs and testes. The
providers performed an ultrasound of his testes but found no abnormalities.

       Through the two emergency room visits, Mr. Kinsler treated on his own, but then
the general contractor, Rogers Development, accepted his claim for workers'
compensation benefits. Since the injury, he continued to experience swelling and a
pulling in his testes. His authorized back doctor, Richard Duncan, M.D., heard Mr.

                                            1
Kinsler's complaints and made a urological referral at his request, but Dr. Duncan could
not state whether the need for the referral primarily related to Mr. Kinsler's work-
accident.

       Although Mr. Kinsler does not suffer constant pain or swelling, he wishes to have
the condition evaluated, and his attorney requested the issue be included on the Dispute
Certification Notice from July 2018. On the other hand, Rogers Development refuses to
provide treatment because Mr. Kinsler has not always requested it and has not presented
any expert medical evidence that his condition is work-related.

                          Findings of Fact and Conclusions of Law

        Mr. Kinsler must present sufficient evidence establishing that he is likely to prove
at trial that he is entitled to the requested workers' compensation benefits. See Tenn.
Code Ann. § 50-6-239(d)(l) (2019). An employer is obligated to provide medical
benefits made reasonably necessary by the accident. Tenn. Code Ann. § 50-6-
204(a)(l)(A).

       The evidence establishes that the first and second time Mr. Kinsler sought medical
treatment after his injury, he complained about pain in his scrotum and testes. However,
Rogers Development has not provided any treatment for this concern, even though Mr.
Kinsler at times requested it. He also requested a referral to a specialist from Dr.
Duncan. 1

       Although Mr. Kinsler has not constantly complained of or demanded treatment for
his testicular pain, the Court cannot find anything in the Worker's Compensation Law
that requires an employee to constantly suffer pain and demand treatment before an
employer is obligated to provide necessary and reasonable medical treatment.

         Considering Mr. Kinsler complained of scrotum and testes pain soon after the
incident and testified that he continues to experience intermittent pain and pulling, and
because no medical opinion addressed the issue, the Court finds he would likely succeed
at trial as to whether Rogers Development should provide him a panel of physicians.

       The Court holds that Rogers Development shall provide Mr. Kinsler a panel of
urologists and set an appointment for evaluation and treatment that the physician
determines is reasonable and necessary due to his accident.




1
 The Court finds Dr. Duncan's opinion unpersuasive because he is not a urologist and he cannot state
whether the need for treatment is related to the injury.

                                                 2
IT IS, THEREFORE, ORDERED AS FOLLOWS:

   1. Mr. Kinsler's request for medical treatment is granted. Rogers Development shall
      provide him a panel of urologists and set an appointment for evaluation and
      treatment that the physician determines is reasonable and necessary due to his
      accident.

   2. 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 or Self-Insured 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
      WCComplianc .Program@tn .gov .

      ENTERED February 11,2020.



                                          /S/ BRIAN K. ADDINGTON
                                         BRIAN K. ADDINGTON, JUDGE
                                         Court of Workers' Compensation Claims


                                         APPENDIX
Exhibits:

      1. Affidavit of Matthew Kinsler
      2. First Report of Injury
      3. Wage Statement
      4. Time Sheet
      5. Employee' s Choice of Physician Form
      6. Medical Records of Dr. Richard Duncan
      7. Final Medical Report
      8. (Col.) Medical Records
              A. Dr. Richard Duncan
              B. Dr. Richard Duncan Questionnaire response
              C. Indian Path Medical Center
      9. (Col.) Records
              A. Recorded Audio Statement

                                           3
             B. Deposition Transcript
             C. Physician Panel (10/30/2018)
             D. Physician Panel ( 11/21/20 18)
             E. Employee's Responses to Interrogatories
             F. Employer's Responses to Requests for Production
             G. Dispute Certification Notice
             H. Settlement Check
             I. Wage Statement
             J. Request for Expedited Hearing and Affidavit
             K. Original and Amended PBD
             L. All medical Records filed by Employer
             M. Request for Medical Releases
      10. Counsel and Carrier notes
      11. Matthew Kinsler's Deposition Transcript
      12. Nurse Case Manager Notes
      13. Dr. Richard Duncan Questionnaire Response
      14. (Col.) Photos

Technical Record:

      1. Petition for Benefit Determination
      2. Dispute Certification Notice
      3. Employer's Notice of Filing of Medical Records for Expedited Hearing
      4. Employer's Tenn. Comp. Rules and Regs. Submission
      5. Employee's Pre-Expedited Hearing Submission
      6. Employee's Witness and Exhibit List
      7. Employee's Amended Pre-Expedited Hearing Submission
      8. Employee's Amended Witness and Exhibit Lists
      9. Employer's Reply to Employee's Amended Expedited Hearing Submission




                                         4
                             CERTIFICATE OF SERVICE

       I certify that copy of this order was sent on February 11, 2020.

Name                    Certified   Fax    Email    Service sent to:
                         Mail
Charlton DeVault,                             X     crdevault@charter .net
Employee's Attorn~)'_
Meredith Weaver,                              X     meredith. weaver@petersonwhite.com
Employer's Attorney
Williams                   X                        400 Elm Street
Construction                                        Mt. Carmel, TN 37645



                                          __& ffiUk--- -
                                          PENN~UM, Court Clerk
                                          WC.C;u~:6"erk@tn.gov




                                             5
