             TENNESSEE BUREAU OF WORKERS’ COMPENSATION
            IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                           AT MURFREESBORO

ANDREW DUPREE,                                        )   Docket No. 2016-05-1119
        Employee,                                     )
v.                                                    )
                                                      )
TEPRO, INC.,                                          )   State File No. 37148-2016
          Employer,                                   )
And                                                   )
SOMPO JAPAN INS.,                                     )   Judge Dale Tipps
          Insurance Carrier.                          )



                               EXPEDITED HEARING ORDER
                              GRANTING MEDICAL BENEFITS
                                (DECISION ON THE RECORD)


       This matter came before the undersigned workers’ compensation judge on
February 13, 2017, on the Request for Expedited Hearing filed by Andrew Dupree. The
present focus of this case is whether Mr. Dupree is entitled to medical benefits,
specifically treatment for his alleged gradual arm injuries. The central legal issue is
whether Mr. Dupree came forward with sufficient evidence demonstrating he is likely to
prevail at a hearing on the merits that he suffered an injury arising primarily out of and in
the course and scope of his employment. For the reasons set forth below, the Court holds
Mr. Dupree failed to do so, but he is entitled to a panel of physicians.

                                           History of Claim

       A review of Mr. Dupree’s affidavit shows that he has worked for Tepro for over
eighteen years. He claims he reported to Joe Saturn,1 “the safety man for Tepro,” that he
was having problems with both wrists, including a knot on his left wrist, in the spring of
2014. Over a year later, he suffered an injury to his left middle finger in November 2015.
1
  Joe Sattler, Tepro’s Environmental Health and Safety Manager, stated Tepro does not have an employee named
Joe Saturn. He therefore believes he is the “safety man” to whom Mr. Dupree referred in his affidavit.

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Tepro then provided a panel of physicians, from which Mr. Dupree selected Dr. Paul
Haidak.

       Tepro responded with the affidavit of Joe Sattler, Tepro’s Environmental Health
and Safety Manager, who confirmed that Tepro accepted Mr. Dupree’s left middle finger
injury as compensable and provided medical treatment with Dr. Haidak. He denied,
however, that Mr. Dupree reported a knot on his left wrist or problems with both wrists in
2014. Instead, he contended Mr. Dupree reported left wrist pain in March 2016, at which
time Mr. Sattler prepared a C20 First Report of Injury. He also provided a physician
panel, from which Mr. Dupree selected Dr. David Martin on May 5.

        Records from Dr. Haidak show that he began treating Mr. Dupree for a left middle
finger fracture on December 3, 2015. Among the examination notes is Dr. Haidak’s
observation that Mr. Dupree also had a large ganglion cyst on the left wrist. Dr. Haidak
treated the finger fracture over the next few months. On March 28, 2016, Mr. Dupree
returned for a maximum medical improvement (MMI) evaluation of the finger injury. At
that time, he also complained of bilateral hand pain that “has been getting worse over the
past year and he has noticed loss of grip strength and pinch over that time.” Mr. Dupree
also complained of pain and a large bump in his left wrist.

        Dr. Haidak ordered electrodiagnostic tests and saw Mr. Dupree again on April 14.
At that time, he found Mr. Dupree to be at MMI and released him to full duty. He also
noted Mr. Dupree wished to have his ganglion cyst removed, and he referred Mr. Dupree
for further EMG tests. Dr. Haidak recommended excision of the cyst on April 18.

        After selecting Dr. Martin from the second panel, Mr. Dupree saw him on May 27.
Dr. Martin’s note is titled “Independent Medical Evaluation” and states, “I had the
opportunity to provide an independent medical evaluation for Andrew Dupree on 5/27/16
for the sole purpose of evaluating the issues affecting his left upper extremity.” Although
he did not review any of Mr. Dupree’s medical records, he noted he was aware of a
carpal tunnel syndrome diagnosis by another doctor. “The issue in question, however,
involves a mass on the dorsal aspect of his left wrist,” which Mr. Dupree indicated,
“occurred in approximately February of 2016.” After examining Mr. Dupree, Dr. Martin
assessed a ganglion cyst on the dorsal aspect of the left wrist. He did not feel it was
related to the prior finger injury. He also noted, “I see no evidence that the development
of his dorsal wrist ganglion is directly related to his long-standing employment at Tepro.”

       Mr. Dupree continued to see Dr. Haidak until September 21. At that time, Dr.
Haidak noted that, in addition to the cyst excision, he believed Mr. Dupree would
eventually need surgery for bilateral carpal tunnel and cubital tunnel syndrome. Noting
Mr. Dupree’s history of many years of “severe repetitive motion at work,” Dr. Haidak
wrote, “it is clear that the patient’s bilateral carpal and cubital tunnel syndromes and large
ganglion dorsum left hand [cyst] and overall general bilateral hand pain are work related

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injuries secondary to repetitive motion.”

        Mr. Dupree filed a Petition for Benefit Determination (PBD) seeking medical
treatment for the ganglion cyst. The parties did not resolve the disputed issues through
mediation, and the mediating specialist filed a Dispute Certification Notice. Mr. Dupree
filed a Request for Expedited Hearing, seeking a decision on the record without an
evidentiary hearing. The Court issued a Docketing Notice on January 30, 2017,
identifying the documents it received for review and providing the parties until February
9 to file any objections to the admissibility of any of those documents.

       Mr. Dupree did not file a brief, but based on the PBD and his affidavit, it appears
he contends he suffered gradually-occurring injuries to both arms arising out of and in the
course and scope of his employment. He relies on the opinion of Dr. Haidak to establish
causation. It also appears he contends Dr. Haidak is his authorized treating physician
(ATP) for the alleged gradual injuries and, as such, his opinion is statutorily presumed to
be correct.

       Tepro contends it has provided all the workers’ compensation benefits to which
Mr. Dupree is entitled. It argues it accepted the finger injury as compensable and
provided all necessary medical treatment with Dr. Haidak. It does not address Mr.
Dupree’s claims of carpal and cubital tunnel syndrome, but relies on Dr. Martin’s opinion
that the ganglion cyst is not related to Mr. Dupree’s work. Tepro contends that Dr.
Martin is the ATP for the cyst and his opinion is entitled to the presumption of
correctness.

                       Findings of Fact and Conclusions of Law

       The following legal principles govern this case. Because this case is in a posture
of an Expedited Hearing, Mr. Dupree need not prove every element of his claim by a
preponderance of the evidence in order to obtain relief. McCord v. Advantage Human
Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
Instead, he must come forward with sufficient evidence from which this court might
determine he is likely to prevail at a hearing on the merits. Id.; Tenn. Code Ann. § 50-6-
239(d)(1) (2016).

        To prove a compensable injury, Mr. Dupree must show that his alleged injury
arose primarily out of and in the course and scope of his employment. Tenn. Code Ann.
§ 50-6-102(14). To do so, he must show his injury was caused by an incident, or specific
set of incidents, identifiable by time and place of occurrence. Tenn. Code Ann. § 50-6-
102(14)(A). Further, he must show, “to a reasonable degree of medical certainty that it
contributed more than fifty percent (50%) in causing the . . . disablement or need for
medical treatment, considering all causes.” Tenn. Code Ann. § 50-6-102(14)(C).
“Shown to a reasonable degree of medical certainty” means that, in the opinion of the

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treating physician, it is more likely than not considering all causes as opposed to
speculation or possibility. Tenn. Code Ann. § 50-6-102(14)(D).

        Applying these principles to the facts of this case, the Court cannot conclude at
this time that Mr. Dupree is likely to prevail at a hearing on the merits of his claim. The
Court first notes it is unnecessary to resolve the discrepancy in the affidavits regarding
whether Mr. Dupree reported the knot or any other problems with his wrists in early
2014, because Tepro offered Dr. Haidak to treat the finger injury only. Mr. Dupree
suffered a traumatic injury to his left middle finger on November 23, 2015, which was
severe enough to merit treatment in the Southern Tennessee Medical Center emergency
department on the day of the accident. He followed up with his panel selection, Dr.
Haidak, a few days later. Although Dr. Haidak observed the ganglion cyst, he did not
provide treatment for it or even include it in the “Reason for Appointment” section of his
treatment note. As such, he is not the ATP for Mr. Dupree’s cyst or the carpal and
cubital tunnel syndromes, and Dr. Haidak’s opinion regarding the cause of those
conditions is not entitled to the presumption of correctness.

       Even if Dr. Haidak’s opinion were presumed to be correct, it would not constitute
adequate medical proof of causation. At best, Dr. Haidak’s statement that Mr. Dupree’s
problems “are work related injuries secondary to repetitive motion” could only serve to
establish some unquantified relationship between his work and his condition. It is wholly
inadequate to meet Mr. Dupree’s burden of proving his work “contributed more than fifty
percent (50%) in causing the . . . disablement or need for medical treatment, considering
all causes.”

       For the foregoing reasons, Mr. Dupree has not demonstrated he is likely to prevail
at a hearing on the merits on the issue of causation. However, additional analysis is
necessary to address his claims of carpal and cubital tunnel syndrome, as well as
questions raised by Dr. Martin’s report. Specifically, the Court must determine whether
Mr. Dupree provided sufficient evidence to satisfy his “burden at this interlocutory stage”
that he is entitled to a panel of physicians.

       The Workers’ Compensation Law requires an employer to offer a panel of
physicians “from which the injured employee shall select one (1) to be the treating
physician.” See Tennessee Code Annotated section 50-6-204(a)(3)(A)(i). Further, an
employee does not have to prove compensability in order to establish the employer is
obligated to provide a panel. In McCord, the Workers’ Compensation Appeals Board
found that: “while Employee has not proven by a preponderance of the evidence that she
suffered an injury arising primarily out of and in the course and scope of employment,
she has satisfied her burden at this interlocutory stage to support an Order compelling
Employer to provide a panel of physicians.” McCord at *16, 17.

       Mr. Sattler’s affidavit and C20 First Report of Injury acknowledge that Mr.

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Dupree gave notice of “left wrist pain that he believed was due to his work at Tepro” in
March 2016. Even though this resulted in Mr. Dupree selecting Dr. Martin from a panel,
Dr. Martin clearly indicated that he was providing only an “Independent Medical
Evaluation . . . for the sole purpose of evaluating the issues affecting his left upper
extremity.” Further, even though he noted that Mr. Dupree had been told he had
symptoms of carpal tunnel syndrome, Dr. Martin stated, “The issue in question, however,
involves a mass on the dorsal aspect of his left wrist.” His diagnosis only related to the
cause of the cyst, and he did not address Mr. Dupree’s wrist pain or carpal tunnel
symptoms at all. Therefore, the only information available at this time indicates Tepro
failed to provide Mr. Dupree with a “treating physician” for his complaints of left wrist
pain, as required by section 50-6-204(a)(3)(A)(i).

      As noted above, there is a dispute as to whether Mr. Dupree reported right wrist
problems to Mr. Sattler prior to his finger injury. However, because Mr. Dupree alleges a
gradual injury, he is only required to give notice of the injury within thirty days after he:

   (1) Knows or reasonably should know that he has suffered a work-related
       injury that has resulted in permanent physical impairment; or

   (2) Is rendered unable to continue to perform his normal work activities as the
      result of the work-related injury and knows or reasonably should know that
      the injury was caused by work-related activities.

See Tennessee Code Annotated section 50-6-201(b).

       Subsection (2) is inapplicable as it appears Mr. Dupree continues to work for
Tepro. As to subsection (1), the parties submitted no information suggesting Mr. Dupree
has any permanent physical impairment resulting from his carpal tunnel syndrome, much
less when he knew or should have known about it. Therefore, even if Tepro were
previously unaware of any right arm claim, its receipt of Mr. Dupree’s affidavit was
sufficient notice of a gradual injury claim. In spite of this notice, Tepro failed to provide
the requisite medical panel.

       For the foregoing reasons, the Court finds Mr. Dupree provided sufficient
evidence to satisfy his burden at this interlocutory stage that he is entitled to a panel of
physicians from which to choose an authorized physician for evaluation and, if necessary,
treatment of any causally-related gradual injuries in accordance with Tennessee Code
Annotated section 50-6-204(a)(1)(A).

IT IS, THEREFORE, ORDERED as follows:

   1. Tepro or its workers’ compensation carrier shall provide Mr. Dupree with medical
      treatment for any work-related arm or wrist injuries as required by Tennessee

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   Code Annotated section 50-6-204, to be initiated by Tepro or its workers’
   compensation carrier providing Mr. Dupree with a panel of physicians as required
   by that statute. Medical bills shall be furnished to Tepro or its workers’
   compensation carrier by Mr. Dupree or the medical providers.

2. This matter is set for a Scheduling Hearing on April 5, 2017, at 9:30 a.m. You
   must call 615-741-2112 or toll free at 855-874-0473 to participate. Failure to call
   in may result in a determination of the issues without your further
   participation. All conferences are set using Central Time (CT).

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 entry of this Order as required by Tennessee Code
   Annotated section 50-6-239(d)(3) (2016). 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 may result in a
   penalty assessment for non-compliance.

4. For questions regarding compliance, please contact the Workers’ Compensation
   Compliance Unit via email WCCompliance.Program@tn.gov or by calling (615)
   253-1471 or (615) 532-1309.


   ENTERED this the 17th day of February, 2017.


                              _____________________________________
                              Judge Dale Tipps
                              Court of Workers’ Compensation Claims




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                                     APPENDIX

Exhibits:
   1. Records from Middle Tennessee Plastic and Hand
   2. April 26, 2016 C-30A Final Medical Report
   3. June 6, 2016 C-30A Final Medical Report
   4. Records from Star Physical Therapy
   5. C-20 First Report of Injury
   6. C-23 Notice of Denial
   7. C-41 Wage Statement
   8. C-42 Choice of Physician form
   9. Technician Job Description
   10. IME report of Dr. David Martin
   11. Records from Harton Regional Medical Center
   12. Affidavit of Andrew Dupree
   13. Affidavit of Joe Sattler
   14. Employee’s Report of Injury


Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing




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                           CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Expedited Hearing Order
Granting Medical Benefits was sent to the following recipients by the following methods
of service on this the 17th day of February, 2017.

Name                 Certified   Via Fax   Via       Service Sent to:
                     Mail                  Email
Andrew Dupree           X                            3231 Baxter Hollow Rd.
                                                     Belvidere, TN 37306
Gregory Ramos,                                 X     gramos@nprattorneys.com
Employer Attorney




                                        _____________________________________
                                        Penny Shrum, Clerk of Court
                                        Court of Workers’ Compensation Claims
                                        WC.CourtClerk@tn.gov




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