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

TIMOTHY WAYNE NEWELL,                                     )   Docket No.: 2015-05-0091
        Employee,                                         )
v.                                                        )   State File No.: 88987-2014
METRO CARPETS, LLC,                                       )
        Employer,                                         )
And                                                       )
AUTO OWNERS INSURANCE,                                    )
        Insurer/TPA.                                      )


             EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS


        This matter came before the undersigned workers’ compensation judge on August
9, 2016, on the Request for Expedited Hearing filed by the employee, Timothy Newell,
pursuant to Tennessee Code Annotated section 50-6-239 (2015). The present focus of
this case is whether Mr. Newell is entitled to additional medical treatment for his left
shoulder injury. The central legal issue is whether the evidence is sufficient for the Court
to determine that Mr. Newell is likely to establish at a hearing on the merits that Metro
Carpets must provide a replacement for his authorized treating physician (ATP). For the
reasons set forth below, the Court holds Mr. Newell is likely to prevail at a hearing and is
entitled to continuing medical treatment for his left shoulder injury.1

                                              History of Claim

       The parties established the following facts at the Expedited Hearing. Mr. Newell
was working for Metro Carpets on November 10, 2014, when he fell from his truck. He
alleged injuries to his back, left knee, and left shoulder. Metro Carpet accepted the claim
as compensable and provided a panel from which Mr. Newell selected Dr. Blake Garside
as his ATP for the knee and shoulder injuries. (Ex. 2.)

1
 A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.

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        Mr. Newell testified Dr. Garside performed surgery on his left shoulder, but it did
not relieve his pain. He testified he continues to have pain, but no new symptoms or any
additional injuries. Mr. Newell felt Dr. Garside behaved unprofessionally; namely, he
was vague and dismissive, and refused to answer Mr. Newell’s questions. As a result,
Mr. Newell posted uncomplimentary and critical comments about Dr. Garside on social
media.

       On cross-examination, Mr. Newell was questioned about a prior left knee injury.
He acknowledged suffering a previous knee injury that required surgery. Further, that
injury resulted in a personal injury settlement of $160,000.00 in 2006. Mr. Newell also
acknowledged he denied any prior knee problems when he began treating with Dr.
Garside.

       Dr. Garside treated Mr. Newell until October 13, 2015, at which time he placed
him at maximum medical improvement (MMI) and released him to regular duty. He
opined the left shoulder injury arose primarily out of and in course and scope of Mr.
Newell’s work for Metro Carpets. (Ex. 1.) Referring to the prior knee injury and
surgery, Dr. Garside also stated in his affidavit that Mr. Newell’s left knee condition did
not arise primarily from his November 10, 2014 work injury. Id.

       In his August 3, 2016 record, Dr. Garside stated he last saw Mr. Newell on
October 13, 2015. Noting that Mr. Newell initially denied any preexisting knee injury,
Dr. Garside’s subsequent review of his medical records confirmed “prior knee surgery,
permanent restrictions, and previous impairment rating.” As a result, Dr. Garside stated,
“I do not feel an objective doctor/patient relationship is possible, and I am therefore
declining to see him for reevaluation.” (Ex. 4.)2

       Mr. Newell filed two Petitions for Benefit Determination seeking temporary
disability and medical benefits. The Mediating Specialist filed a Dispute Certification
Notice, and Mr. Newell filed a Request for Expedited Hearing.

        At the Expedited Hearing, Mr. Newell asserted Dr. Garside’s refusal to treat him
entitles him to a new ATP because Metro Carpets does not dispute compensability of the
left shoulder injury. Further, Mr. Newell denied his conduct constituted noncompliance
and, even if it did, the Workers’ Compensation Law does not authorize termination of
medical treatment for noncompliance.

2
 Mr. Newell objected to the admissibility of Dr. Garside’s August 3, 2016 note, as it was not signed or verified and
because Metro Carpets failed to file it with the Court at least ten days before the hearing. The Court took the
objection under advisement and allowed Metro Carpets an opportunity to file a certified copy of the note, which it
did later on the same day. Because Metro Carpets only received the note on the Friday before the hearing, the Court
now overrules the objection, finding that Metro Carpets demonstrated good cause for failing to file the note earlier.
See Tenn. Comp. R. & Regs. 0800-02-21-.16(6)(a) (2015).


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       Metro Carpets countered that Mr. Newell is not entitled to any additional medical
treatment. It contended he made material misrepresentations to Dr. Garside about his
medical history. This raised significant questions about the compensability of his left
knee claim, long after Metro Carpets provided a substantial amount of medical treatment.
When coupled with Mr. Newell’s online attacks of Dr. Garside, Metro Carpets contended
Mr. Newell’s non-disclosure of his prior injury constituted noncompliance that caused
Dr. Garside to stop treating him. Metro Carpets argued allowing a claimant to sabotage a
doctor/patient relationship in order to “get a new bite at the apple” of compensability is
contrary to public policy because it would undermine an employer’s statutory right to
control medical treatment.

                       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. Newell need not prove every element of his/her claim by a
preponderance of the evidence in order to obtain relief. McCord v. Advantage Human
Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Tenn. Workers’ Comp. App. Bd. 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)(2015).

       To prove a compensable injury, Mr. Newell 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) (2015). In order to do so, 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) (2015).

        Applying these principles to the facts of this case, the Court first notes that Dr.
Garside specifically stated Mr. Newell’s left shoulder injury arose primarily out of and in
course and scope of his work. Though Metro Carpets questioned whether Mr. Newell’s
weight lifting or work activities might have resulted in a new injury, it provided no
medical opinion in support of this speculation. Therefore, based upon Dr. Garside’s
unrebutted opinion, the Court finds Mr. Newell appears likely to establish compensability
of his left shoulder claim at a hearing on the merits.

       Having established he is likely to prove a compensable left shoulder injury, Mr.
Newell is entitled to medical treatment for that injury.            Under the Workers’
Compensation Law, “the employer or the employer's agent shall furnish, free of charge to
the employee, such medical and surgical treatment . . . made reasonably necessary by
accident[.]” Tenn. Code Ann. § 50-6-204(a)(1)(A) (2015). “The injured employee shall
accept the medical benefits. . . provided that in any case when the employee has suffered
an injury and expressed a need for medical care, the employer shall designate a group of

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three (3) or more independent reputable physicians. . . from which the employee shall
select one (1) to be the treating physician.” Tenn. Code Ann. § 50-6-204(a)(3)(A)(i)
(2015).

      The only statutory exception to the requirement to provide medical treatment is
Tennessee Code Annotated section 50-6-204(d)(8) (2015), which provides:

       If the injured employee refuses to comply with any reasonable request for
       examination or to accept the medical or specialized medical services that
       the employer is required to furnish under this chapter, the injured
       employee’s right to compensation shall be suspended and no compensation
       shall be due and payable while the injured employee continues to refuse.

Metro Carpets presented no evidence that Mr. Newell refused to comply with any request
for examination or refused to accept medical services. As a result, neither his admitted
misrepresentation to Dr. Garside – whether intentional or not – nor his online behavior
constitute statutory noncompliance.

      As for its public policy argument, Metro Carpets provided no legal authority in
support of the proposition that a deteriorating doctor/patient relationship somehow
terminates an employee’s right to medical treatment under section 204. A careful review
of Tennessee case law reveals no such exception to an employer’s duty to provide
medical treatment. Creating a new exception is the province of the appellate courts, or
the Legislature; thus, this Court declines to do so. Even if there were legal authority
supporting Metro Carpets’ position, there is no evidence Mr. Newell intentionally
sabotaged his relationship with Dr. Garside. Instead, it appears the online behavior and
the misrepresentation occurred early in the doctor/patient relationship. Even so, Dr.
Garside continued to treat Mr. Newell until after he reached MMI.

       Based on the foregoing, the Court finds Mr. Newell is likely to prevail at a hearing
on the limited issue of whether he is entitled to a new ATP for his left shoulder injury.

IT IS, THEREFORE, ORDERED as follows:

   1. Metro Carpets or its workers’ compensation carrier shall provide Mr. Newell with
      medical treatment for his November 10, 2014 left shoulder injury as required by
      Tennessee Code Annotated section 50-6-204 (2015), to be initiated by Metro
      Carpets or its workers’ compensation carrier providing Mr. Newell with a new
      panel of orthopedic specialists or a substitute for Dr. Garside on the original panel.
      Medical bills shall be furnished to Metro Carpets or its workers’ compensation
      carrier by Mr. Newell or the medical providers.



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   2. This matter is set for an Initial (Scheduling) Hearing on September 22, 2016, at
      9:00 a.m.

   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) (2015). 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 12th day of August, 2016.


                                 _____________________________________
                                 Judge Dale Tipps
                                 Court of Workers’ Compensation Claims

Initial (Scheduling) Hearing:

      An Initial (Scheduling) Hearing has been set with Judge Dale Tipps, Court of
Workers’ Compensation Claims. You must call 615-741-2112 or toll free at 855-
874-0473 to participate.

       Please Note: You must call in on the scheduled date/time 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).


Right to Appeal:

       Tennessee Law allows any party who disagrees with this Expedited Hearing Order
to appeal the decision to the Workers’ Compensation Appeals Board. To file a Notice of
Appeal, you must:

   1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal.”

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2. File the completed form with the Court Clerk within seven business days of the
   date the Workers’ Compensation Judge entered the Expedited Hearing Order.

3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.

4. The appealing party is responsible for payment of a filing fee in the amount of
   $75.00. Within ten calendar days after the filing of a notice of appeal, payment
   must be received by check, money order, or credit card payment. Payments can be
   made in person at any Bureau office or by United States mail, hand-delivery, or
   other delivery service. In the alternative, the appealing party may file an Affidavit
   of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
   fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
   of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
   will consider the Affidavit of Indigency and issue an Order granting or denying
   the request for a waiver of the filing fee as soon thereafter as is
   practicable. Failure to timely pay the filing fee or file the Affidavit of
   Indigency in accordance with this section shall result in dismissal of the
   appeal.

5. The parties, having the responsibility of ensuring a complete record on appeal,
   may request, from the Court Clerk, the audio recording of the hearing for the
   purpose of having a transcript prepared by a licensed court reporter and filing it
   with the Court Clerk within ten calendar days of the filing of the Expedited
   Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
   the evidence within ten calendar days of the filing of the Expedited Hearing
   Notice of Appeal. The statement of the evidence must convey a complete and
   accurate account of what transpired in the Court of Workers’ Compensation
   Claims and must be approved by the workers’ compensation judge before the
   record is submitted to the Clerk of the Appeals Board.

6. If the appellant elects to file a position statement in support of the interlocutory
   appeal, the appellant shall file such position statement with the Court Clerk within
   five business days of the expiration of the time to file a transcript or statement of
   the evidence, specifying the issues presented for review and including any
   argument in support thereof. A party opposing the appeal shall file a response, if
   any, with the Court Clerk within five business days of the filing of the appellant’s
   position statement. All position statements pertaining to an appeal of an
   interlocutory order 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.

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                                               APPENDIX

Exhibits:
   1. Affidavit of Dr. William Garside
   2. C-42 Physician Panel dated November 25, 2014
   3. Affidavit of Dr. Robert Clendenin
   4. Dr. Garside’s August 3, 2016 Note to Chart

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




3
   The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as
allegations unless established by the evidence.



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                             CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the Expedited Hearing Order was
 sent to the following recipients by the following methods of service on this the 12th day
 of August, 2016.

Name                Certified Mail    Via Email           Email Address

Julie Reasonover,                               X         julie@jstillman.com
Attorney
Michael Haynie,                                 X         mhaynie@manierherod.com
Attorney



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




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