                                                                                           FILED
                                                                                         Jan 16, 2020
                                                                                        01:20 PM(ET)
                                                                                     TENNESSEE COURT OF
                                                                                    WORKERS' COMPENSATION
                                                                                           CLAIMS




             TENNESSEE BUREAU OF WORKERS' COMPENSATION
               COURT OF WORKERS' COMPENSATION CLAIMS
                          AT CHATTANOOGA

Carl Swafford,                                    )   Docket No. 2018-01-0036
            Employee,                             )
v.                                                )
Wal-Mart Associates, Inc.,                        )   State File No. 1581-2017
           Employer,                              )
And                                               )
New Hampshire Insurance Company,                  )   Judge Audrey A. Headrick
           Carrier.                               )



                              EXPEDITED HEARING ORDER
                               (DECISION ON THE RECORD)


        This case came before the Court on Carl Swafford' s Request for an Expedited
Hearing on the record. Mr. Swafford requested a valid panel of physi cians and penalty
assessment for failure to provide a valid panel.' Wal-Mart denied that Mr. Swafford is
entitled to another panel, and the Court agrees.

                                        History of Claim

       While using a pallet jack on January 6, 2017, Mr. Swafford injured his right hip?
After receiving emergency treatment, Mr. Swafford treated with Physicians Care, who
referred him to an orthopedist.




1
  Mr. Swafford requested a valid wage statement since he worked for Wal-Mart for fewer than fifty-two
weeks preceding his injury. Wai-Mart later filed the wage statement of a similarly-situated employee,
who earned the same hourly rate as Mr. Swafford. Mr. Swafford also requested a "valid impairment
rati ng, which he can request th ro ugh the Medicall mpainnent Rating Registry.
2
  The parties dispute whether the correct date of inj ury is January 5 or 6.
       Wai-Mart provided Mr. Swafford, who resides in Hixson, with an orthopedic
panel located in McMinnville, Hixson, and Chattanooga. McMinnville is located
approximately sixty-seven miles from Mr. Swafford's home. Mr. Swafford ultimately
selected Dr. Matthew Bernard at the Center for Sports Medicine in Hixson.

       After reviewing a right-hip MRI, Dr. Bernard diagnosed a labral tear, stated with
"greater than 50% probability that [it was] directly related to his work related injury," and
referred Mr. Swafford to Dr. Benjamin Miller in his practice for surgical consideration.
In addition to the labral tear, Dr. Miller diagnosed a gluteus medius tendonitis and
provided an injection. Dr. Miller referred Mr. Swafford to his practice partner, Dr. Shay
Richardson, for a Tenex procedure.

        After Mr. Swafford underwent the Tenex procedure, Drs. Richardson, Bernard,
and Miller continued to intermittently treat him. Although Dr. Bernard stated in
November 2017 that Mr. Swafford's hip did "not demonstrate osteoarthritis," Dr. Miller
determined in May 2018 that his main problem was osteoarthritis. Dr. Miller
recommended a total hip arthroplasty and referred him to Dr. Bernard for a surgical
opmwn. Dr. Bernard recommended the surgery but only if a cortisone injection provided
relief.

       The cortisone injection did not provide relief, so Dr. Bernard did not recommend
surgery. Instead, he diagnosed Mr. Swafford with "[h]ealed tendinosis" and "underlying
chronic non-job related osteoarthritis." As to the osteoarthritis, Dr. Bernard released him
to return on an as-needed basis. Dr. Bernard reiterated that he did "not believe [the
osteoarthritis was] causally related at all to his injury and [was] simply an incidental
finding on MRI." 3 Since Dr. Richardson treated Mr. Swafford s tendonitis and
performed the Tenex procedure, Dr. Bernard deferred to his opinion on causation,
treatment, maximum medical improvement, and impairment.

        Dr. Richardson agreed with Dr. Bernard that Mr. Swafford's osteoarthritis was not
work-related but determined that his tendinosis was more than fifty percent related to his
work injury. He also concluded that "the majority of [Mr. Swafford's] pain [was] due to
his arthritic hip joint, and not workers comp related." While Dr. Richardson indicated on
the Final Medical Report that he anticipates the need for future medical treatment, his last
office note contained no recommendation for further treatment or evaluation for the
tendinosis.



3
  In its response, Wal-Mart moved to dismiss Mr. Swafford's right-hip osteoarthritis claim on grounds of
compensability. However, the expedited hearing process is designed to address interlocutory issues.
Wai-Mart relied on matters outside of the pleadings, which converts it to a Rule 56 motion for summary
judgment. A Rule 56 motion requires a statement of undisputed facts. Therefore, the Court denies the
motion to dismiss.


                                                   2
       Later, at Mr. Swafford's request, Wal-Mart offered him a new panel of
orthopedists located in Chattanooga and Cleveland. Cleveland is approximately thirty
miles from Mr. Swafford's home. He declined to make a selection, asserting it did not
contain physicians located in his community.

                       Findings of Fact and Conclusions of Law
                                   Standard Applied

      Mr. Swafford must present sufficient evidence from which the Court can
determine he is likely to prevail at a hearing on the merits. Tenn. Code Ann. § 50-6-
239(d)(l) (2019). The Court holds he did not.

                                       Analysis
                                    Medical Benefits

       The preliminary issue is whether Wal-Mart provided a valid panel of orthopedic
physicians to Mr. Swafford, who lives in Hixson. The original panel listed providers
located in McMinnville, Hixson, and Chattanooga with the McMinnville practice located
approximately sixty-seven miles from Mr. Swafford's home. Tennessee Code Annotated
section 50-6-204(a)(3)(A)(i) requires that an employer "shall designate a group of three
(3) or more independent reputable physicians ... if available in the injured employee's
community." (Emphasis added). The Court finds that the original panel listing a
McMinnville practice was invalid and did not comply with the statute.

       The Court next turns to the validity of the subsequent orthopedic panel. The new
panel listed physicians located in Chattanooga and Cleveland, with the Cleveland practice
located within thirty miles of Mr. Swafford's home. While the distance from Mr.
Swafford's home may have been inconvenient, the Court finds that Wal-Mart remedied
the defective panel by providing one that was reasonably within his community. The
Court holds that Mr. Swafford shall select a physician from the newly-submitted panel
for evaluation and treatment of his work-related right-hip condition. Therefore, the Court
denies Mr. Swafford's request for another panel.

        IT IS, THEREFORE, ORDERED as follows:

   1. The Court denies Mr. Swafford's request and declines to refer Wal-Mart for
      consideration of possible penalty assessment.

   2. This case is set for a Status Hearing on Wednesday, March 25, 2020, at 2:00
      p.m. Eastern Time. The parties must call (423) 634-0164 or toll-free at (855)
      383-0001 to participate. Failure to call may result in a determination of the issues
      without the party's participation.



                                            3
ENTERED January 16,2020.




                           Workers' Compensation Judge




                             4
                                      APPENDIX

Exhibits:
       1.   First Report
       2.   Panels (Center for Sports Medicine; Physicians Care)
       3.   Responses of Dr. Shay Richardson dated February 28,2019
       4.   Medical records of Physicians Care
       5.   Medical records of Center for Sports Medicine & Orthopaedics
       6.   Declaration of Betty Miller:
                a. Medical records
                b. Wage Statement
                c. Affidavit of Carl Swafford

Technical record:
      1. Petition for Benefit Determination
      2. Dispute Certification Notice
      3. Request for Expedited Hearing
      4. Employee's Position Statement
      5. Docketing Notice
      6. Motion for Time Extension
      7. Proposed Agreed Order Allowing Time Extension
      8. Employer's Response in Opposition to Employee's Request for Expedited
          Hearing and Motion to Dismiss




                                            5
                             CERTIFICATE OF SERVICE

       I certify that a copy of this Order was sent as indicated on January 16, 2020 .

         Name               Certified     Email     Service sent to:
                             Mail
Scott N. Davis,                             X       sdavis@noogalaw .com
Employee's Attorney
Celeste M. Watson,                          X       celeste@cmwatsonlaw .com
Employer's Attorney




                                                  ?~
                                              PENNY SHR . M, COURT CLERK
                                                                                     w\~u~)
                                                  wc.courtclerk@tn.gov




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