                                                                                                FILED
                                                                                             Oct 21, 2019
                                                                                             01:16 PM(CT)
                                                                                          TENNESSEE COURT OF
                                                                                         WORKERS' COMPENSATION
                                                                                                CLAIMS




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

RICHARD SHIFLET,                                    )   Docket Number: 2019-02-0247
         Employee,                                  )
v.                                                  )
                                                    )
EMCOR GROUP, INC., d/b/a                            )   State File Number: 73240-2018
CHEROKEE MILLWRIGHT, INC.                           )
         Employer,                                  )
and                                                 )
AMERICAN CASUALTY COMPANY                           )   Judge Brian K. Addington
OF READING, PENNSYLVANIA,                           )
        Insurance Carrier.                          )


                               EXPEDITED HEARING ORDER
                               (DECISION ON THE RECORD)


        This case came before the Court on October 21, 2019, and requires it to determine
whether Richard Shiflet is entitled to temporary benefits and medical benefits, and
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whether he must undergo a neuropsychological examination at EMCOR's request.
Based on the record, the Court holds Mr. Shiflet is not entitled to temporary disability
benefits but should return to Dr. William Fly to determine reasonable and necessary
treatment options, and he is not required to undergo a neuropsychological examination at
this time.

                                            Claim History

       A metal beam fell on Mr. Shiflet's foot at work on September 18, 2018. He
received emergency treatment and then came under orthopedist Dr. William Fly's care,
who determined Mr. Shiflet suffered a fracture and extensive soft-tissue damage. After
the fracture healed, Dr. Fly recommended Lyrica to decrease his pain. When Mr.
1
  The Court scheduled an in-person expedited hearing, but the Judge's unexpected illness caused its
cancellation. Due to difficulty rescheduling, the Court informed the parties that it would make a decision
on the record.
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Shiflet's pain continued, Dr. Fly recommended injection therapy and a consultation with
Dr. Bruce Fly for a possible nerve block.

       Although Dr. Fly made the recommendation in December, EMCOR had not
approved the consult when he saw Mr. Shiflet again in January 2019. Dr. Fly noted that
Mr. Shiflet's problems might worsen because of the denial, and he mentioned for the first
time that he might be experiencing early complex regional pain syndrome (CRPS). He
re-requested the consult.

       EMCOR eventually approved the consult. Dr. Bruce Fry administered the nerve
block, which only provided two to three days of relief. Mr. Shiflet told Dr. William Fly
during his February 2019 appointment that his pain was 10 out of 10. Dr. William Fly
recommended another injection by Dr. Bruce Fly and a return appointment to see him.

        During the March follow-up appointment, Dr. William Fry noted the second
injection only provided two days of relief. He determined that Mr. Shiflet had CRPS
type 1_2 He placed him at maximu m medical improvement (MMI), found he suffered
fifteen-percent whole-body impairment from the work injury, and provided sedentary
work restrictions. He instructed Mr. Shiflet to obtain a Lyrica prescription from his
primary care provider, as he felt the prescription would be indefinite and he could not
write it permanently.3

       Mr. Shiflet's primary care provider could not provide the Lyrica prescription, so
EMCOR sent him to FNP Benjamin Meeks, who works in Dr. Tumey Williams's office.
Dr. Williams's office stopped the Lyrica because of its side effects. Instead, Dr.
Williams recommended a pain stimulator for which Mr. Shiflet needed a psychological
consult and stated he had developed depression from his injury. He also found Mr.
Shiflet was not at MMI.

       EMCOR denied the pain stimulator and the psychological consult, agreeing only
to provide Lyrica. It offered a panel of pain management physicians, but Mr. Shiflet
refused to choose a physician. 4 Instead, he sought an independent examination at the
Helen Ross McNabb Center, where Dr. Mamju Khanna found he was suffering from
depression and anxiety related to work.

       Similarly, EMCOR sought its own independent medical evaluation with Dr.
Jeffrey Hazlewood, who stated Mr. Shiflet might have CRPS, but he needs a

2
 The American Medical Association's Guides to the Evaluation of Permanent Impairment requires a one-
year diagnosis before a physician can confirm and rate CRPS.
3
    EM COR paid temporary total disability benefits until April 29, 2019.
4
    Dr. Williams was not a panel physician.

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neuropsychological examination to explore his complaints and CRPS diagnosis.
EMCOR filed a motion to compel the neuropsychological examination with Dr. Sidney
Alexander.

        Mr. Shiflet filed a Request for Expedited Hearing seeking additional temporary
total disability benefits, continued treatment with Dr. Williams, and a panel of physicians
for depression. He argued that EMCOR refused to provide the requested benefits even
though his providers now say he is not at MMI, and he needs a pain stimulator and
treatment for depression. He argued that EMCOR's request for the neuropsychological
examination by Dr. Alexander was merely "doctor-shopping."

      EMCOR argued that Mr. Shiflet is at MMI and not entitled to additional
temporary disability benefits. It asserted that Dr. William Fly only wanted him to see his
primary care provider for the Lyrica. It moved to compel the neuropsychological
examination based on Dr. Hazlewood's report.

                       Findings of Fact and Conclusions of Law

       Mr. Shiflet bears the burden of proof at all stages of his workers' compensation
claim. Buchanan v. Carlex Glass Co., 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6
(Sept. 29, 20 15). At an expedited hearing, a trial court may grant relief if the employee
has met the burden of showing that he or she is likely to prevail at a hearing on the
merits. !d. Here, Mr. Shiflet must show he is entitled temporarily temporary disability
benefits and that his request for medical treatment is reasonable and necessary.

       Concerning the request for temporary disability benefits, Mr. Shiflet affirmed
EMCOR paid him through April 29, 2019. Dr. Fly, the panel physician, placed him at
MMI in March 2019. Temporary total disability benefits are terminated when an
employee reaches MMI. Cleek v. Wal-Mart Stores, Inc., 19 S.W.3d 770, 776 (Tenn.
2000). Dr. William Fly, the panel physician, placed Mr. Shiflet at MMI, and EMCOR
paid Mr. Shiflet temporary benefits well after that determination. Mr. Shiflet has not
presented sufficient evidence that he is likely to succeed at a hearing on the merits
concerning temporary total disability benefits.

       As for the requested medical benefits, Mr. Shiflet has not recently seen the panel
physician, Dr. William Fly, who only recommended an indefinite Lyrica prescription.
Later authorized providers, not selected from a panel, discontinued that medication and
recommended additional treatment for pain and depression they relate to his injury.
EMCOR denied the recommendations but offered a pain management panel, which Mr.
Shiflet refused.

       The Workers' Compensation Law provides that a panel physician must make a
referral for psychological or psychiatric services. Tenn. Code Ann. § 50-6-204(h) (2019).

                                            3
Dr. William Fly never made this referral. Also, it has been months since he has seen Mr.
Shiflet, and he has not considered the additional treatment recommendations that later
authorized providers and Dr. Khanna made.              Considering the extent of these
recommendations versus Dr. William Fly's proposed Lyrica prescription, the Court finds
it reasonable for Mr. Shiflet to return to Dr. William Fly for further evaluation. Thus, the
Court holds that Mr. Shiflet shall return to him.

       Finally, concerning EMCOR's motion to compel Mr. Shiflet to attend a
neuropsychological examination, Dr. Hazlewood thinks Mr. Shiflet might have CRPS,
but he would need this exam to rule out the condition. The Court finds this issue
premature, as Mr. Shiflet's CRPS diagnosis is less than a year old, and he has had no
follow up with Dr. William Fly to confirm the diagnosis.

       IT IS, THEREFORE, ORDERED AS FOLLOWS:

       1. Mr. Shiflet's request for temporary and medical benefits is denied at this time.

       2. EMCOR's motion to compel is denied at this time.

       3. EMCOR shall make an appointment with Dr. William Fly to address Mr.
          Shiflet's complaints and other provider's recommendations. Should Dr. Fly
          refuse to see Mr. Shiflet, EMCOR shall provide Mr. Shiflet a panel of
          orthopedists.

       4. This case is set for a Status Conference on January 6, 2020, at 11:00 a.m.
          Eastern Time. The parties shall call 855-543-5044 to participate. Failure to
          call at the scheduled time might result in a determination of issues without the
          party's participation.

      ENTERED October 21, 2019.



                                           IS/ Brian K. Addington
                                          BRIAN K. ADDINGTON, JUDGE
                                          Court of Workers' Compensation Claims

                                        Appendix

Exhibits:
1. Mr. Shiflet's Affidavit
2. Ms. Stacy Baisden's Affidavit
3. Separation Notice
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