                                                                                            FILED
                                                                                          May 21, 2019
                                                                                          10:36 AM(CT)
                                                                                      TENNESSEE COURT OF
                                                                                     WORKERS' COMPENSATION
                                                                                            CLAIMS




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

EARY JONES,                                               )   Docket No. 2019-08-0010
    Employee,                                             )
v.                                                        )
TECHNICOLOR,                                              )   State File No. 41687-2017
     Employer,                                            )
And                                                       )
ACE AMERICAN INS. CO.,                                    )   Judge Allen Phillips
     Carrier.                                             )


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


       This case came before the Court on Mr. Jones's Request for an Expedited Hearing
on the record. Technicolor did not oppose a record review, and the Court determined it
needed no additional evidence to decide the issue. The Court allowed the parties until
May 8, 2019, to file position statements. The contested issue is whether Mr. Jones may
return to Dr. Apurva Dalal, a physician he chose from a pane1. 1 For the following
reasons, the Court holds Mr. Jones would likely prevail at a hearing on the merits and
orders that Technicolor allow him to return to Dr. Dalal.

                                             History of Claim

       On May 30, 2017, Mr. Jones fell from a loading dock, landing on his right leg and
lower back. After an initial medical evaluation, Technicolor provided a panel of
physicians from which he chose Dr. John Lochemes.

      Dr. Lochemes noted Mr. Jones complained primarily of right-hip and thigh pain.
He diagnosed a right-hip contusion and recommended an MRI of the right hip and leg,
both of which were negative for an acute injury. Dr. Lochemes recommended a second

1
    Mr. Jones also requested attorney's fees for wrongful denial.
opinion by stating that a physician who treats hip injuries "would be a likely pick." He
said he would "follow-up" with Mr. Jones after the second opinion.

        Technicolor arranged a second opinion with Dr. Tyler Cannon, who described his
evaluation "as a second opinion with a potential to treat." He found "the focal point" of
Mr. Jones's pain was "over the mid-thigh," so he recommended an MRI of the right
thigh. It "demonstrated no abnormalities." No other notes from Dr. Cannon appear in the
record.

       Technicolor then offered Mr. Jones a second panel that included Dr. Dalal. Dr.
Dalal recorded Mr. Jones's history and reviewed the records of Drs. Lochemes and
Cannon. He ordered MRis of both the knee and back. At a follow-up, Dr. Dalal reviewed
the knee MRI but noted the back MRI had not been performed. He asked the case
management nurse to schedule the back MRI and indicated he would see Mr. Jones
afterward. No other notes from Dr. Dalal appear in the record.

        Technicolor then scheduled an "independent medical evaluation" with Dr.
Christopher Ferguson. An incomplete note indicates that he, like Dr. Dalal, recommended
an MRI of Mr. Jones's back, and he also requested a right-leg EMG. The EMG was
normal, and the back MRI showed only degenerative changes. Dr. Ferguson later stated
the following in response to questions posed by Technicolor:

   •   Mr. Jones reached maximum medical improvement.
   •   He had no permanent impairment.
   •   Mr. Jones underwent a complete workup for his injuries.
   •   He needed no further treatment.
   •   Mr. Jones could return to work without restrictions.

       Mr. Jones then returned to Dr. Lochemes, who stated the right-hip contusion had
resolved and assigned an impairment rating. Dr. Lochemes released Mr. Jones to return to
work without restriction but added he "was at a loss to explain all of our negative
testing." Although Dr. Lochemes stated he made the referral to Dr. Ferguson, the Court
found no record of that referral. Dr. Lochemes injected Mr. Jones's right hip in "another
attempt at trying to offer the patient some relief."

         Based on this record, Mr. Jones argued the Court should compel Technicolor to
allow him to return to Dr. Dalal for evaluation and any necessary treatment. He
contended that his selection of Dr. Dalal from a panel made him an authorized treating
physician. As a result, the treatment recommended by Dr. Dalal, including a follow-up
visit, is presumed reasonable and necessary under Tennessee Code Annotated section 50-
6-204(a)(3)(H) (2018). Finally, Mr. Jones argued that Technicolor wrongfully denied his
claim, and he should receive attorney's fees and costs under Tennessee Code Annotated
section 50-6-226(d)(l)(B).
                                            2
       For its part, Technicolor contended Mr. Jones was not entitled to return to Dr.
Dalal because Dr. Lochemes did not intend to "transfer" care by requesting the second
opinion. Instead, Dr. Lochemes stated he would see Mr. Jones after the second opinion.
Further, Tennessee Code Annotated section 50-6-204(a)(3)(C) provides that an
employee's decision to obtain a second opinion "shall not alter the previous selection of
the treating physician or chiropractor." Thus, Technicolor argued Dr. Lochemes remains
the authorized physician, and he and Dr. Ferguson completely evaluated Mr. Jones's hip
condition. Finally, Technicolor argued that Mr. Jones did not rebut Dr. Lochemes's
opinions regarding causation and impairment by a preponderance of the evidence.

                        Findings of Fact and Conclusions of Law

       Mr. Jones must present sufficient evidence that he is likely to prevail at a hearing
on the merits. Tenn. Code Ann. § 50-6-239(d)(l). The Court holds he did.

        Specifically, the Court finds the facts of this case are virtually identical to those in
Ledford v. Mid-Georgia Courier, Inc., 2018 TN Wrk. Comp. App. Bd. LEXIS 28 (June
4, 20 18). There, the authorized treating physician believed the employee "would benefit
from a second opinion and the physician who provided the second opinion would have an
option to treat." !d. at *5. The employer argued that the referring physician remained the
authorized physician and the other "was merely asked to provide a second opinion." !d. at
*4. Further, that employer argued that, under Tennessee Code Annotated section 50-6-
204(a)(3)(C), the "employee's decision to obtain a second opinion" did not change the
status of the authorized physician. !d. at *5.

       The Appeals Board disagreed. It held that section (a)(3)(C) applies when an
employee requests a second opinion regarding surgery or diagnosis but not when a
physician makes a referral to another. Instead, the Board ruled that section (a)(3)(A)(ii) is
controlling. Namely, when a physician makes a referral, then the employer is deemed to
have accepted the referral unless it provides a panel within three days. !d. at *7. Even
though the employer in Ledford did not provide a panel within three days, the Board
found it provided one and the employee selected a physician from it. !d. at *6. Thus, the
Board held: "When an employer offers a panel of physicians pursuant to section 50-6-
204(a)(3)(A)(ii) ... the new physician becomes an authorized treating physician pursuant
to Tennessee Code Annotated section 50-6-204(a)(3)(E)." !d.

       In this case, Dr. Lochemes recommended a second opmwn, and Technicolor
provided one from Dr. Cannon. The record is silent as to why it later provided a second
panel that included Dr. Dalal. However, regardless of the reason, Technicolor provided
the panel from which Mr. Jones chose Dr. Dalal. At that point, Dr. Dalal became an
authorized treating physician whose treatment is presumed medically necessary under
Tennessee Code Annotated section 50-6-204(a)(3)(H). Thus, the Court holds that Mr.
Jones is entitled to return to Dr. Dalal.

                                               3
       Before concluding, the Court holds that Mr. Jones's request for attorney's fees for
wrongful denial is inappropriate at this time. In Thompson v. Comcast Corp., 20 18 TN
Wrk. Comp. App. Bd. LEXIS 1, at *29 (Jan. 30, 2018), the Appeals Board held that
awards of attorney's fees are inappropriate at the interlocutory stage absent "extremely
limited circumstances." The Court holds this case does not fall within "extremely limited
circumstances" to justify an award of attorneys' fees at this interlocutory stage. Thus, the
Court denies this request at this time.

IT IS, THEREFORE, ORDERED as follows:

   1. Mr. Jones's request to return to Dr. Dalal is granted. Technicolor shall approve the
      return appointment and provide any reasonable and necessary treatment under
      Tennessee Code Annotated section 50-6-204(a)(l)(A) as recommended by Dr.
      Dalal.

   2. Mr. Jones's request for attorney's fees is denied at this time.

   3. This matter is set for a Status Hearing on Monday, August 26, 2019, at 9:00a.m.
      Central time. The parties must call 731-422-5263 or toll-free 855-543-5038 to
      participate in the Hearing.

   4. 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 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.

   5. For questions regarding compliance, please contact the Workers' Compensation
      Compliance Unit via email at WCCompliance.Program@tn.gov.

      ENTERED May 21, 2019.




                                                                  mpensation Claims



                                             4
                                         APPENDIX

   The Court considered the following record:

      1. Petition for Benefit Determination
      2. Dispute Certification Notice, including Technicolor's additional defenses
      3. Request for Expedited Hearing
      4. Affidavit ofEary Jones
      5. Employer's Position Statement to mediator
      6. Collective Medical Records
      7. Dr. Lochemes's Opinion Letter
      8. Employee's Choice of Physician Form (Form C-42) (including Dr. Dalal)
      9. Wage Statement
      10. Employee's Expedited Hearing Brief
      11. Employer's Position Statement


                               CERTIFICATE OF SERVICE

   I certify that a copy of this Expedited Hearing Order was sent to the following recipients
   on May 21,2019.
                Name                         Email      Service Sent To:

Monica R. Rejaei,                               X       mrejaei@nstlaw .com
Employee's Attorney                                     jkamovich@nstlaw .com

Scott Vincent,                                  X       Scott. vincent@mgclaw .com
Employer's Attorney                                     J aclyn.bogart@mgclaw .com




                                                5
                           Exp dited Hearing Order Right to AppeaJ:

     If you disagree with this Expedited Hearing Order, you may appeal to the Workers'
Compensation Appeals Board. To appeal an expedited hearing order, you must:

    l. Complete the enclosed form entitled: "Expedited Hearing Notice of Appeal," and file the
       form with the Clerk of the Court of Workers' Compensation Claims within seven
       business days of the date the expedited hearing order was filed. When filing the Notice
       of Appeal, you must serve a copy upon all parties.

   2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
      calendar days after filing of the Notice of Appeal. Payments can be made in-person at
      any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
      alternative, you may file an Affidavit of Indigency (form available on the Bureau's
      website or any Bureau office) seeking a waiver of the fee. You must file the fully-
      completed Affidavit of Indigency within ten calendar days of filing the Notice of
      Appeal. Failure to timely pay the filing fee or file the Affidavit of lndigency will
      result in dismissal of the appeal.

   3. You bear the responsibility of ensuring a complete record on appeal. You may request
      from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
      the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
      it with the court clerk within ten business days of the filing the Notice of
      Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
      parties within ten business days of the filing of the Notice of Appeal. The statement of
      the evidence must convey a complete and accurate account of the hearing. The Workers'
      Compensation Judge must approve the statement before the record is submitted to the
      Appeals Board. If the Appeals Board is called upon to review testimony or other proof
      concerning factual matters, the absence of a transcript or statement of the evidence can be
      a significant obstacle to meaningful appellate review.

   4. If you wish to file a position statement, you must file it with the court clerk within ten
      business days after the deadline to file a transcript or statement of the evidence. The
      party opposing the appeal may file a response with the court clerk within ten business
      days after you file your position statement. All position statements should include: (1) a
      statement summarizing the facts of the case from the evidence admitted during the
      expedited hearing; (2) a statement summarizing the disposition of the case as a result of
      the expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an
      argument, citing appropriate statutes, case law, or other authority.




For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
   Filed Date Stamp Here                      EXPEDITED HEARING NOTICE OF APPEAL
                                                  Tennessee Division of Workers' Compensation
                                                                                                     Docket I: - - - - - - - - - -
                                                      www.t n.gev/la bor-wfd/wcomp.shtml
                                                                                                     State File #/YR: - - - - - - - -
                                                             wc.courtclerk@tn.gov
                                                                1-800-332-2667                       RFAI#: ___________________

                                                                                                     Date of lojury: - - - - - - - - -
                                                                                                     SSN: ____________________




                      Employee


                      Employer and Carrier

          Notice
          Notice is given that ____________________________ _ __
                                    [List name(s) of all appealing party(ies) on separate sheet if necessary]

          appeals the order(s) of the Court of Workers' Compensation Claims at _ __

           - - - - - - - - - - - - - - - - - - -to the Workers' Compensation Appeals Board.
           [List the date(s) the order(s) was filed in the court clerk's office]

          Judge______________________________________________

          Statement of the Issues
          Provide a short and plain statement of the issues on appeal or basis for relief on appeal:




          Additional Information
          Type of Case [Check the most appropriate item]

                             0   Temporary disability benefits
                             0   Medical benefits for current injury
                             0   Medical benefits under prior order issued by the Court

          List of Parties
          Appellant (Requesting Party): ________________;At Hearing: DEmployer DEmployee
          Address: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

          Party's Phone: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _.Email:_ _ _ _ _ _ __ _ _ _ _ _ __

          Attorney's Name:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ BPR#: - - - - - - - -
          Attorney's Address:. _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __                               Phone:
          Attorney's City, State & Zip code:._ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
          Attorney's Email: _________________________________

                                        "Attach an addft{onal sheet for each additional Appellant"

LB-1099    rev.4/15                                       Page 1 cf 2                                                       RDA 11082
                                                  SF#: _ _ _ _ _ _ _ _ _ _ 001: _ _ _ _ __
Employee Name: - - - - - - - - - - -




Aopellee(s)
Appellee (Opposing Party): _ _ _ _ _ _ _ _ At Hearing: OEmployer DEmployee



Appellee's Address: - - - - - - - - - - - - - - -- - - - - - - - - - - - - - -
Appellee's Phone:._ _ _ _ _ _ _ _ _ _ _ _ _ _Email:_ _ _ _ _ _ _ _ _ _ _ _ __

Attorney's Name: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ BPR#: - - - - - - - -

Attorney's A d d r e s s : ' - - - - - - - - - - - - - - - - - - - - Phone:

Attorney's City, State & Zip code: - - - - - - - - - - - -- - -- - - - - - - - - -
Attorney's Email:_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __

                       * Attach an additional sheet for each additional Appellee *


CERTIFICATE OF SERVICE

I,                                             certify that I have forwarded a true and exact copy of this
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules of
Board of Workers' Compensation Appeals on this the              day o f - J 20_.




[Signature of appellant or attorney for appellant]




LB-1099   rev.4/15                                Page 2 of2                               RDA 11082
                                Tennessee Bureau of Workers' Compensation
                                       220 French Landing Drive, 1-B
                                         Nashville, TN 37243-1002
                                               800-332-2667


                                          AFFIDAVIT OF INDIGENCY


I,                                                , having been duly sworn according to law, make oath that
because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.

1. Full Name:_ _ _ _ _ _ _ _ _ _ __                      2. Address: - - - - - - - - - - - - -

3. Telephone Number: - - - - - - - - -                   4. Date of Birth: - - - - - - - - - - -

5. Names and Ages of All Dependents:

        - - - - -- - -- - - - - - - - - Relationship:-- - - - - - - - - - -

        - - - - - - - -- - - - - - - - - Relationship: - - - - -- -- - - - - -

        - - - - - -- - -- - - - - - - - Relationship: - - - - - - - - - - - - -

        - - - -- - -- - - - - - - -- - Relationship: - - - - - - - - -- - - -

6. I am employed by: - - - - - - - - - - - - - - - - - - - - -- -----.........,.-

        My employer's address is: - - - - - - -- -- - - - - - -- -- - - - - - -

        My employer's phone number is: - - - -- - - - - - - - - - -- - - - - - - -

7. My present monthly household income, after federal income and social security taxes are deducted, is:
$ _ _ __ _ __

8. I receive or expect to receive money from the following sources:

        AFDC            $            per month           beginning
        SSI             $            per month           beginning
        Retirement      $            per month           beginning
        Disability      $            per month           beginning
        Unemployment $               per month           beginning
        Worker's Comp.$              per month           beginning
        Other           $            per month           beginning



LB-11 08 (REV 11115)                                                                              RDA 11082
9. My expenses are: , :                                                       .,


        Rent/House Payment$ _ _ __ per month            Medical/Dental $ _ _ _ _ _ per month

        Groceries         $         per month           Telephone       $ - - - - - per month
        Electricity       $         per month           School Supplies $ _ _ _ _ _ per month
        Water             $         per month           Clothing        $ _ _ _ _ _ per month
        Gas               $         per month           Child Care      $ _ _ _ _ _ per month
        Transportation $            per month           Child Support   $ _ _ _ _ _ per month
        Car               $_ _ _ _ per month
        Other             $         per month (describe:   --------------L

10. Assets :

        Automobile              $ _ _ _ __
                                                        (FMV) - - - - --           ----
        Checking/Savings Acct. $ _ _ _ __
        House                   $ _ _ _ __              (FMV) - - - - - - -- --
               )
        Other                   $ _ _ __                Describe:_ _ _ _ _ _ _ __ _ _


11. My debts are:

        Amount Owed                     To Whom




I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.




APPELLANT



Sworn and subscribed before me, a notary public, this
_ _ _ dayof _ _ _ _ _ _ _ _ _ _ _ _ ,20_ __




NOTARY PUBLIC

My Commission Expires:_ _ _ _ _ _ ___




LB-1108 (REV 11/15)                                                                          RDA 11082
