                                                                                     FILED
                                                                                   Jun 09, 2020
                                                                                   09:52 AM(CT)
                                                                                TENNESSEE COURT OF
                                                                               WORKERS' COMPENSATION
                                                                                      CLAIMS




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

 Rachel Ameri,                                 )   Docket No. 2019-06-1769
            Employee,                          )
 v.                                            )
 Denso Automotive Ohio, Inc.,                  )   State File No. 57967-2019
            Employer,                          )
 And                                           )
 The Hartford Accident & Indemnity             )   Judge Kenneth M. Switzer
 Co.,                                          )
            Carrier.                           )


                           EXPEDITED HEARING ORDER


        Rachel Ameri asked this Court to order Denso Automotive Ohio to provide another
panel of physicians, pay for emergency treatment, and provide temporary disability
benefits. The Court held an expedited hearing on June 4, 2020, and concludes that because
she signed the Choice of Physicians form and accepted treatment with that physician, she
is not entitled to a new panel. As for her emergency room visits, Denso is not responsible
for those expenses because she never introduced bills of the treatment into evidence.
Concerning temporary disability benefits, she failed to establish entitlement at this time.

                                     History of Claim

       Ms. Ameri testified that on August 5, 2019, a pallet full of parts fell on her, pushing
her to the ground and injuring her neck and shoulders. Afterward, she spoke with team
leader Ken Heiney and plant manager Brandon Hofmann, who offered a panel.

       The parties dispute the circumstances surrounding her choice of Dr. Alexander
Chernowitz. According to Ms. Ameri, Denso presented her with a panel form, which she
completed two days later. She testified that, on the date of injury, Mr. Heiney pointed to
Dr. Chernowitz’s name on the form and said she must choose him. According to Ms.
Ameri, Mr. Heiney then asked Mr. Hofmann if she must choose Dr. Chernowitz, and he
said yes. Ms. Ameri said that when she actually completed the form admitted into evidence

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(Ex. 2 at 6) on August 7, the layout of the document was different, and it listed different
physicians than were on the panel she saw on August 5. However, she admitted that the
form, dated August 5, contains her handwriting and signature. In contrast, Mr. Heiney’s
and Mr. Hofmann’s affidavits read, using virtually identical verbiage, that Ms. Ameri said
she did not wish to see the two doctors on the list who practice in Murfreesboro, so she
chose Dr. Chernowitz because his office is in Lebanon.

       She saw Dr. Chernowitz that same day. He assessed a contusion of the right
shoulder and cervical strain/sprain and restricted her to “work at a reduced pace.” The next
day, he added lifting and reaching restrictions. He took her off work and referred her to
physical therapy on August 9. After an August 13 visit, he placed restrictions again.
Neither party introduced treatment records from Dr. Chernowitz after that date.
Meanwhile, Ms. Ameri participated in regular physical therapy throughout the month of
August.

       Ms. Ameri’s next authorized medical visit was with orthopedist Dr. Brandon
Downs, whom she chose from a panel. According to a medical status form from this visit,
he referred her to Dr. Jeffrey Hazlewood.

      Dr. Hazlewood’s records are incomplete; the parties introduced only notes from Ms.
Ameri’s last visit on October 30. Dr. Hazlewood wrote:

       Severe complaints of extreme cervical pain with extreme range of motion
       deficits that I have no medical explanation for. I no longer feel that this is a
       continued soft tissue strain injury given the fact that I [sic] is essentially no
       better almost three months out, and she has been through extensive treatment.
       Her diagnosis is just a symptom of cervical pain, and I have no medical
       explanation. She has had a CT scan that was negative, and MRO scan that
       showed pre-existing degenerative changes. Examination shows no objective
       deficits. She has self limited effort and pain behavior.

Dr. Hazlewood placed her at maximum medical improvement, assigned no permanent
restrictions, and assessed a zero-percent impairment rating.

       As for her unauthorized treatment, Ms. Ameri testified without contradiction to a
pattern of delay on Denso’s part in providing authorized care. Specifically, on August 10,
she woke up in pain and called four times during the day to request additional treatment.
No one answered her calls by 5:00 p.m., so she went to the emergency room.1 Ms. Ameri

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  Ms. Ameri stated during closing argument that she called Denso on September 6 and attempted to speak
to the adjuster, who was unavailable, but someone else told her to go the doctor on her own and it would
be covered. The Court cannot consider this assertion as testimony, however, because the proof phase of
the case was already closed.
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filed a copy of the bill with the Court Clerk, but she did not introduce the bill into evidence
at the hearing.

        Ms. Ameri testified in her affidavit that Denso reassigned her to a different job to
accommodate her restrictions but it paid less. However, she offered no documentation or
live testimony regarding the new position, the amount of pay she earned in the previous
job and the new one, and when she began the new position.

       Ms. Ameri testified in her affidavit that she still suffers from neck pain, and she
asked that the Court order Denso to provide a new panel.

                        Findings of Fact and Conclusions of Law

      Ms. Ameri must show that she is likely to prevail at a hearing on the merits. See
Tenn. Code Ann. § 50-6-239(d)(1) (2019); McCord v. Advantage Human Resourcing, 2015
TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

        Turning first to Ms. Ameri’s contentions regarding the manner in which she chose
a physician, Tennessee Code Annotated section 50-6-204(a)(3)(A)(i) states in relevant part
that “[t]he injured employee shall accept the medical benefits afforded under this section;
provided that . . . the employer shall designate a group of three (3) or more independent
reputable physicians . . . from which the injured employee shall select one (1) to be the
treating physician.”

       Here, Mr. Heiney and Mr. Hofmann testified by affidavit that Ms. Ameri chose Dr.
Chernowitz due to his location in Lebanon. On close examination of these affidavits, the
Court notes that they contain nearly identical language in statements one through nine –
right down to the same misspellings. Although their testimony by affidavit complies with
the Court’s rules regarding their admissibility into evidence, this method of evidence
presentation left Ms. Ameri no opportunity to cross-examine them. For these reasons, the
Court gives little weight to either affidavit.

       In contrast, Ms. Ameri credibly testified that she received two panel forms, and that
with the first panel, her supervisors directed her to choose Dr. Chernowitz. Importantly,
however, only one panel was admitted into evidence, and Ms. Ameri acknowledged that it
bears her signature. Looking to the four corners of the panel form, the Court finds that
Denso offered a panel of three physicians, and Ms. Ameri selected Dr. Chernowitz, signed
the form, and accepted treatment from him. Under these circumstances, the Court finds
that Denso complied with the Workers’ Compensation Law and holds that Ms. Ameri is
not entitled to a new panel of physicians.

        The Court next turns to Ms. Ameri’s request that Denso pay for her emergency room
visits. An employer may risk being required to pay for unauthorized treatment if it does

                                              3
not provide the treatment made reasonably necessary by the work injury as required by
Tennessee Code Annotated section 50-6-204(a)(1)(A). Hackney v. Integrity Staffing
Solutions, 2016 TN Wrk. Comp. App. Bd. LEXIS 29, at *8-9 (July 22, 2016). However,
the employer must first be given an opportunity to provide the treatment, and “[w]hether
an employee is justified in seeking additional medical services to be paid for by the
employer without consulting the employer depends on the circumstances of each case.” Id.
at *9. As observed by the Tennessee Supreme Court, an “employee [should] do no less
than to consult [the] employer before incurring expenses called for by the statute if the
employee expects the employer to pay for them.” Id., citing Dorris v. INA Ins. Co., 764
S.W.2d 538, 541 (Tenn. 1989)

       In this case, Ms. Ameri credibly testified to delays in scheduling appointments when
she experienced pain. Specifically, the Court finds that she consulted Denso on August 10.
When it did not act promptly to provide treatment, she reasonably sought emergency care
on her own. However, since the medical bill was not admitted into evidence, the record
constrains the Court from ordering payment at this time.

      Finally, the Court considers Ms. Ameri’s request for temporary disability benefits.
Tennessee law recognizes two types of temporary disability benefits: temporary total and
temporary partial disability.

       Tennessee Code Annotated section 50-6-205(a) states that “no compensation shall
be allowed for the first seven days of disability.” Here, Ms. Ameri provided documentation
showing Dr. Chernowitz took her off work on August 9 through 13, four days, so she is
ineligible for temporary total disability benefits for that time. She did not provide any other
medical documentation taking her completely off work.

        An injured worker is entitled to temporary partial disability benefits when the
temporary disability is not total. See Tenn. Code Ann. § 50-6-207(1)-(2). Temporary
partial disability refers to the time, if any, during which the injured employee is able to
resume some gainful employment but has not reached maximum recovery. Frye v. Vincent
Printing Co., 2016 TN Wrk. Comp. App. Bd. LEXIS 34, at *15-16 (Aug. 2, 2016.) In Ms.
Ameri’s case, Dr. Chernowitz placed restrictions, which Denso accommodated by placing
her in a different position that she said paid less. However, she offered no testimony or
documentary proof to show when the new job started, how much less money she earned,
and for how long. On this record, the Court is unable to grant either temporary total or
temporary partial benefits at this time.

       In conclusion, Ms. Ameri has not presented sufficient evidence from which this
Court may conclude that she is likely to prevail at a hearing on the merits. Her requests
are denied at this time.



                                              4
       This case is set for a scheduling hearing on July 13, 2020, at 9:30 a.m. Central
Time. You must call 615-532-9552 or toll-free at 866-943-0025 to participate. Failure to
call might result in a determination of the issues without your participation.

      ENTERED June X
                   8, 2020.
                        9


                                 _____________________________________
                                 JUDGE KENNETH M. SWITZER
                                 Court of Workers’ Compensation Claims

                                     APPENDIX

Exhibits:
   1) Affidavit of Rachel Ameri
   2) Affidavit of Brandon Hofmann, with attached Choice of Physicians form and email
      resignation.
   3) Affidavit of Ken Heiney
   4) Medical Records filed by Employer
   5) Additional Medical Records

Technical record:
   1) Petition for Benefit Determination
   2) Dispute Certification Notice
   3) Order (setting a show-cause hearing)
   4) Order on Show Cause Hearing
   5) Request for Expedited Hearing
   6) Employer’s List of Anticipated Witnesses and Exhibits
   7) Employer’s Expedited hearing Position Statement
   8) Transfer Order and Order Setting Pretrial
   9) Pretrial Order




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                            CERTIFICATE OF SERVICE

       I certify that a copy of the Expedited Hearing Order was sent as indicated on June
8, 2020.


          Name             Certified   Regular     Email   Service sent to:
                            Mail        Mail
  Rachel Ameri,                          X           X     Rachelameri@aol.com
  Employee                                                 231B Hidden Acres Dr.
                                                           Lebanon, TN 37087
  Andrew Hebar, David                                X     ahebar@wimberlylawson.com
  Otten,                                                   dotten@wimberlylawson.com
  Employer’s attorneys                                     snunnally@wimberlylawson.com




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




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