            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD

James Ducros                                 ) Docket No. 2017-01-0228
                                             )
v.                                           ) State File No. 70424-2016
                                             )
Metro Roofing and Metal                      )
Supply Co., Inc., et al.                     )
                                             )
                                             )
Appeal from the Court of Workers’            )
Compensation Claims                          )
Audrey A. Headrick, Judge                    )

                  Reversed and Remanded - Filed October 17, 2017

The employee, a truck driver, injured his right wrist while performing his work duties.
His employer accepted the claim as compensable, but rather than provide a panel of
physicians for medical treatment, the employer directed the employee to a medical
facility where he treated with a family physician before being referred to a “hand clinic.”
The employer paid for treatment with an orthopedic specialist at a hand clinic, but
following the employee’s second visit with the specialist, the employer provided a panel
of orthopedic physicians and insisted the employee select a treating physician from the
panel. The employee claimed he selected a physician from the panel “under duress,” and
when, after three visits, the panel physician suggested the employee obtain a second
opinion, the employee requested to resume treatment with the specialist with whom he
had originally treated. The employer refused to authorize treatment with that physician
on the basis the panel physician was the only authorized physician, and the employer
informed the employee that any future care must be with the panel physician. The
employee filed a request for expedited hearing seeking to have the original specialist
designated as the treating physician. The trial court denied the employee’s requested
relief based upon its determination that, irrespective of the employer’s delay in providing
a panel of physicians, the employee had a statutory duty to accept the medical care
offered to him. The employee has appealed. We reverse the trial court’s decision and
remand the case for further proceedings as may be necessary.

Judge David F. Hensley delivered the opinion of the Appeals Board in which Presiding
Judge Marshall L. Davidson, III, and Judge Timothy W. Conner joined.

R. Lew Belvin, Chattanooga, Tennessee, for the employee-appellant, James Ducros

                                            1
Nicholas S. Akins and Ryan L. Sarr, Nashville, Tennessee, for the employer-appellee,
Metal Roofing and Metal Supply Co., Inc.

                         Factual and Procedural Background

      James Ducros (“Employee”) was working as a truck driver for Metal Roofing and
Metal Supply Co., Inc. (“Employer”), when he injured his right wrist “pulling shingles”
on September 8, 2016. Employer accepted the claim as compensable and initiated
medical treatment by directing Employee to Dodson Avenue Community Health where
he was treated by Dr. Naina Sharma, a family physician.

        Employee first saw Dr. Sharma on September 9, 2016, at which time Dr. Sharma
recommended conservative treatment and instructed Employee to follow up in two weeks
if his wrist had not improved. Employee returned to Dr. Sharma on September 15, 2016,
reporting that he had been wearing the wrist brace and taking ibuprofen as instructed, but
that his wrist continued to hurt. At that visit, Dr. Sharma noted that Employee “would
like to get a referral to see a specialist about his right wrist” and ordered a referral to
“Hand Clinic.”

       On September 22, 2016, Employee was seen by Dr. Woodfin Kennedy at Hayes
Hand Center. Dr. Kennedy’s initial office note indicates Employee was referred by Dr.
Sharma. He diagnosed Employee with a right wrist sprain, administered an injection in
Employee’s wrist, and returned him to work with restrictions. Employee returned to Dr.
Kennedy on September 29, 2016, and Dr. Kennedy noted at that time that Employee “has
positive median nerve compression test and positive Tinel’s over the wrist.” He ordered
diagnostic testing, including a nerve conduction study and an MRI, and he again returned
Employee to work with restrictions.

       Employer did not authorize the testing recommended by Dr. Kennedy. Instead, it
provided Employee a panel of orthopedic physicians and requested he select a treating
physician from the panel. Employee’s affidavit filed in support of his request for hearing
stated that he was informed by Employer’s representative that he “could not continue
treating with Dr. Kennedy,” and that “if [he] did not select a new physician off the form,
[Employer] could deny [his] claim.” Additionally, Employee’s affidavit stated that “[t]he
only reason [he] selected [a panel physician] is because of the representations made to
[him] that [his] claim could be denied if [he] did not.” Employer presented no evidence
disputing these assertions. On October 18, 2016, Employee selected Dr. Peter Lund from
the employer-provided panel.

       Employee saw Dr. Lund three times from October 2016 through December 2016,
with the first visit being on October 21, 2016. The record discloses that Dr. Lund
arranged for diagnostic testing to be performed similar to the testing Dr. Kennedy had


                                            2
recommended. In addition, the record indicates that at Employee’s December 2016 visit
with Dr. Lund, the doctor recommended Employee get a second opinion.

        Following the December 2016 visit with Dr. Lund, Employee expressed
dissatisfaction with Dr. Lund and asked Employer to allow him to return to Dr. Kennedy.
Employer declined, indicating it would authorize additional treatment with Dr. Lund, but
that no further care with Dr. Kennedy would be approved. Employer did, however,
authorize Employee to be seen by Dr. Justin Arnold for a second opinion. On February
8, 2017, Employee was seen by Dr. Arnold, at which time Dr. Arnold administered a
wrist injection. Employee stated in his affidavit that the last treatment he received for his
September 8, 2016 wrist injury “was an injection which was beneficial and given to me
by Dr. Justin Arnold on Feb. 8, 2017.”

      On April 3, 2017, Employee filed a petition for benefit determination seeking an
order requiring Employer to authorize additional treatment with Dr. Kennedy. He
subsequently requested a hearing concerning the medical benefits and asked the court to
issue a decision on the record without an evidentiary hearing. 1 Concluding that it did not
need additional information to render a decision in the case, the trial issued an order
declining to require Employer to authorize Dr. Kennedy to treat Employee, stating that,
“while [Employer’s] delay in offering a panel subjects it to a possible penalty assessment,
it does not negate [Employee’s] statutory duty to accept the medical benefits offered to
him.” In addition, the trial court noted that “to date, [Employee] has treated with Dr.
Lund for almost a year.” Employee has appealed.

                                         Standard of Review

       The standard we apply in reviewing a trial court’s decision presumes that the
court’s factual findings are correct unless the preponderance of the evidence is otherwise.
See Tenn. Code Ann. § 50-6-239(c)(7) (2016) (“There shall be a presumption that the
findings and conclusions of the workers’ compensation judge are correct, unless the
preponderance of the evidence is otherwise.”). However, we review questions of law de
novo with no presumption of correctness. See Am. Mining Ins. Co. v. Campbell, No.
M2015-01478-SC-R3-WC, 2016 Tenn. LEXIS 907, at *18 (Tenn. Workers’ Comp. Panel
Dec. 9, 2016) (“A trial court’s conclusions of law are reviewed de novo upon the record
with no presumption of correctness.”). Moreover, the interpretation and application of
statutes and regulations concern issues of law, which we review de novo with no
presumption of correctness afforded to the trial court’s findings. See Seiber v. Reeves
Logging, 284 S.W.3d 294, 298 (Tenn. 2009); Hadzic v. Averitt Express, No. 2014-02-

1
 See Tennessee Code Annotated section 50-6-239(d)(2) (2016) (“A workers’ compensation judge is not
required to hold a full evidentiary hearing before issuing an interlocutory order for temporary disability or
medical benefits.”); Tenn. Comp. R. & Regs. 0800-02-21-.14(1)(f) (2016) (“Any party may request that
the court issue a decision on the record, in lieu of convening an evidentiary hearing, for any request for
expedited hearing.”).
                                                     3
0064, 2015 TN Wrk. Comp. App Bd. LEXIS 14, at *9 (Tenn. Workers’ Comp. App. Bd.
May 18, 2015).

                                              Analysis

        Employee raises a single issue in his notice of appeal: “[w]hether [Employee] is
entitled to have Dr. Woody Kennedy designated as his authorized treating physician.” In
his brief on appeal, however, Employee frames the issue differently, stating that he was
“referred to a particular specialist group and [Employer] never offered a panel during [its]
three (3) business-day window.” Employee concludes that, based upon Employer’s
failure to timely provide a panel, he “is entitled to have the direct referral honored and
treatment with Dr. Kennedy authorized going forward.”

       Although not expressly asserting that this case is governed by Tennessee Code
Annotated section 50-6-204(a)(3)(A)(ii) (2016), Employee’s issue as framed in his brief
implies that the statute is applicable. That section provides, in part, that,

       [w]hen necessary, the treating physician selected in accordance with this
       subdivision (a)(3)(A) shall make referrals to a specialist physician, surgeon,
       or chiropractor and immediately notify the employer. The employer shall
       be deemed to have accepted the referral, unless the employer, within three
       (3) business days, provides the employee a panel of three (3) or more
       independent reputable physicians, surgeons, chiropractors or specialty
       practice groups.

(Emphasis added.) In this case, the referring physician, Dr. Sharma, was not selected
from a panel of physicians in accordance with Tennessee Code Annotated section 50-6-
204(a)(3)(A)(i) (“[W]hen the employee has suffered an injury and expressed a need for
medical care, the employer shall designate a group of three (3) or more independent
reputable physicians, surgeons, chiropractors or specialty practice groups . . . from which
the employee shall select one (1) to be the treating physician.”). Thus, by its express
terms, section 50-6-204(a)(3)(A)(ii) is not applicable under the facts and circumstances
presented. 2

       However, that does not end our inquiry. We must consider whether the facts and
circumstances justify Dr. Lund’s continuing as Employee’s authorized treating physician
or whether Employee is entitled to have Dr. Kennedy designated as his treating
physician. For the reasons that follow, we conclude Dr. Kennedy was an authorized
treating physician and that Employee is entitled to resume treatment with Dr. Kennedy.
2
  We note that 50-6-204(a)(3)(A)(ii) does not expressly include “specialist groups” in the listing of
providers to whom a treating physician selected in accordance with subdivision (a)(3)(A) “shall make
referrals” when necessary, and we express no opinion concerning whether a referral to a specialty group
may be subject to this subdivision.
                                                  4
        Employee asserts that he was directed to treat with Dr. Sharma by Employer and
that, upon his referral to a hand clinic by Dr. Sharma, he came under the care of Dr.
Kennedy. He further asserts that Employer paid for the treatment he received from both
Dr. Sharma and Dr. Kennedy. Only after Dr. Kennedy recommended diagnostic testing
on Employee’s second visit did Employer provide a panel of physicians to Employee and
insist that he select a doctor from the panel for any additional treatment. Employee’s
affidavit reflects that a representative of Employer or its workers’ compensation
insurance carrier informed him that, if he refused to select a physician from the panel
offered by Employer, the claim could be denied. Employer has provided no testimony or
documentary evidence to contradict any of Employee’s assertions. Instead, Employer
argues that Employee’s “claims of coercion are unfounded and irrelevant,” as the
selection from a panel was made and treatment was authorized.

       It is a long-settled principle of Tennessee’s workers’ compensation law that an
employer who does not timely provide a panel of physicians risks being required to pay
for treatment an injured worker receives on his own. “[A]n employer who attempts to
claim the benefits of [Tennessee Code Annotated section] 50-6-204 must also comply
with the statute.” Simpson v. Frontier Cmty. Credit Union, 810 S.W.2d 147, 150 (Tenn.
1991). Moreover, “[r]eferring the employee to a single physician does not comply with
the statute; it is an usurpation of the privilege of the employee to choose the ultimate
treating physician.” Employers Ins. of Wausau v. Carter, 522 S.W.2d 174, 176 (Tenn.
1975).

        Where the employer fails to give the employee the opportunity to choose
        the ultimate treating physician from a panel of at least three physicians, the
        employer runs the risk of having to pay the reasonable cost for treatment of
        the employee’s injuries by a physician of the employee’s choice. Since [the
        employer] failed to designate three approved physicians, the [employee]
        was justified in seeking medical treatment elsewhere. [The employer]
        knew about [the employee’s] injury and knew that he was seeking medical
        care.

Lindsey v. Strohs Cos., 830 S.W.2d 899, 902-03 (Tenn. 1992) (citations omitted). 3
Furthermore, a belated attempt to insist that an injured worker treat with a panel
physician after the worker has established a doctor-patient relationship with another
physician will not succeed, particularly when the employer has pointed to no rationale to
require the change in physicians other than an assertion of its statutory right. See, e.g.,
Goodman v. Oliver Springs Mining Co., 595 S.W.2d 805, 808-09 (Tenn. 1980).

3
 We do not suggest that an employee can insist on successive physicians to be paid by an employer if the
employer has properly discharged its statutory obligation to provide the medical benefits made reasonably
necessary by accident. See Tenn. Code Ann. § 50-6-204(a)(1)(A). If an employer has properly
discharged its statutory obligation, the employee is obligated to accept the benefits. See Tenn. Code Ann.
§ 50-6-204(a)(3)(A)(i).
                                                    5
       In this case, Employer did not provide a panel of physicians when it became aware
of Employee’s injury, directing him instead to a particular medical facility. When
Employee was referred for specialized care, Employer still did not provide a panel of
physicians, but paid for the medical treatment Employee received from the specialist, Dr.
Kennedy. Employer has offered no rationale for refusing to authorize further treatment
with Dr. Kennedy and requiring Employee to begin treating with another physician other
than to assert its statutory right to provide a panel of physicians and Employee’s selection
of a physician from the panel. Although Employee complied with Employer’s request
that he choose a physician from the panel, the record reflects he did so upon the
understanding that his benefits could be terminated if he did not select a physician from
Employer’s belatedly-offered panel.

       Additionally, we find the trial court’s rationale that Employee “treated with Dr.
Lund for almost a year” to be unpersuasive, as Employee saw Dr. Lund only three times,
with the last visit being in December 2016, which was approximately three months after
Employee’s last visit with Dr. Kennedy and just over two months from the date
Employee selected Dr. Lund from Employer’s panel. Under the facts and circumstances
presented, we conclude that Employer failed to timely meet its statutory obligation to
provide a panel of physicians and, therefore, Employer shall remain responsible for
reasonable and necessary medical care for Employee’s work-related injury with Dr.
Kennedy as the treating physician.

                                       Conclusion

        For the foregoing reasons, we hold that the evidence preponderates against the
trial court’s determination that Employer’s delay in offering a panel does not negate
Employee’s statutory duty to accept the medical treatment from the physician Employee
selected from the panel six weeks after his work-related injury. Accordingly, the trial
court’s decision is reversed, and the case is remanded for any further proceedings that
may be necessary.




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                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD


James Ducros                                               )   Docket No.    2017-01-0228
                                                           )
v.                                                         )   State File No. 70424-2016
                                                           )
Metro Roofing and Metal                                    )
Supply Co., Inc., et al.                                   )

                                       CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the
referenced case was sent to the following recipients by the following methods of service
on this the 17th day of October, 2017.
     Name                  Certified   First Class   Via   Fax       Via     Email Address
                           Mail        Mail          Fax   Number    Email

     R. Lew Belvin, III                                                X     lew.belvin@mcmahanlawfirm.com
     Nicholas S. Akins                                                 X     nakins@morganakins.com
     Ryan L. Sarr                                                            rsarr@morganakins.com
     Audrey A. Headrick,                                               X     Via Electronic Mail
     Judge
     Kenneth M. Switzer,                                               X     Via Electronic Mail
     Chief Judge
     Penny Shrum, Clerk,                                               X     Penny.Patterson-Shrum@tn.gov
     Court of Workers’
     Compensation Claims




Matthew Salyer
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov
