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

            KATHERINE RODGERS,                          )   Docket No.: 2016-03-0449
                    Employee,                           )
            v.                                          )   State File No.: 33891-2016
            NHC HEALTHCARE,                             )
                     Employer,                          )   Judge Lisa Lowe Knott
            And                                         )
            PREMIER GROUP INSURANCE,                    )
                     Carrier.                           )


                              EXPEDITED HEARING ORDER
                 DENYING TEMPORARY DISABILITY BENEFITS AND PAYMENT OF
                   UNAUTHORIZED MEDICAL EXPENSES AND PRESCRIPTIONS
                                  (REVIEW OF FILE)


                    This matter came before the undersigned Workers' Compensation Judge on the
            Request for Expedited Hearing filed by the Employee, Katherine Rodgers, pursuant to
            Tennessee Code Annotated section 50-6-239 (2015) on June 29, 2016. The central legal
            issue is whether Ms. Rogers is entitled to temporary disability benefits and payment of
- - - -uBatltoor.i~a-eHl-8f-goo&y-Feern-e*r€HB€&-an4fwe-ser4ptffins..frem-these-v·i8it&.,.-----

                    Ms. Rodgers filed a Petition for Benefit Determination (PBD) on May 6, 2016,
            seeking reimbursement for medical expenses and temporary disability benefits. The
            parties did not resolve the disputed issues through mediation, and the Mediating
            Specialist filed a Dispute Certification Notice (DCN) on June 29, 2016. Ms. Rodgers
            filed a Request for Expedited Hearing for review of the file on June 29, 2016. There was
            an issue with Ms. Rogers serving her Request for Expedited Hearing on Employer, NHC
            Healthcare. Therefore, NHC did not file a response. The Court issued a docketing notice
            on September 1, 2016.

                   On September 12, 2016, NHC filed a Motion and a Response. NHC asserted that
            it did not receive the original Request for Expedited Hearing and only learned of the
            request upon receipt of the Court's docketing notice. NHC supported its assertion with

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the affidavits of NBC's Knoxville Directing of Nursing, Amy Morgan, and Attorney
Ford Little. (Exs. 3, 4.) Ms. Rodgers did not dispute that she did not serve her Request
for Expedited Hearing and supporting documents on NHC, its Carrier, or its attorney.
Therefore, the Court granted NBC's Motion to Reconsider Docketing Notice and on
September 13, 2016, the Court issued an Amended Docketing Notice (including NBC's
submissions) for On the Record Determination giving the parties until September 20,
2016, to file objections.

        On September 19, 2016, Ms. Rodgers filed a position statement with objections to
the information submitted by NHC. On September 26, 2016, NHC filed a Motion to
Strike and/or in the alternative Respond to Employee's Objection. NHC averred that
rather than asserting an objection and the legal basis, Ms. Rodgers' objection set forth
substantive facts and argument and included additional documents. The Court agrees that
Ms. Rodgers' September 19, 2016 Objection contained persuasive argument and facts
rather than objections "to the admissibility of any of the documents filed by NHC," as
required by the docketing notice. Therefore, NBC's Motion to Strike Ms. Rodgers'
September 19, 2016 Objection is granted and Ms. Rodgers' Objection is marked for
identification purposes only.

        This Court finds it needs no additional information to determine whether Ms.
Rodgers is likely to prevail at a hearing on the merits of the claim. Accordingly, pursuant
to Tennessee Code Annotated section 50-6-239( d)(2) (20 15), Tennessee Compilation
Rules and Regulations 0800-02-21-.14(l)(c) (2015), and Rule 7.02 of the Practices and
Procedures of the Court of Workers' Compensation Claims (20 15), the Court decides this
matter upon a review of the written materials.

        For the reasons set forth below, the Court finds Ms. Rodgers is not entitled to
temporary disability benefits and payment of unauthorized emergency room expenses and
prescriptions from those visits. 1

                                               History of Claim

         NHC employed Ms. Rodgers as a certified nursing assistant (CNA).

       On April 14, 2016, Ms. Rodgers tripped over a box while clocking out at the end
of her shift. As a result, she injured her right shoulder. That same day, NHC authorized
Ms. Rodgers to seek treatment at Tennova's Physicians Regional Medical Center. (Ex.
3.) The providers at Tennova discharged her with diagnoses of forearm, upper arm, and
knee contusions. (Ex. 13.) On April 16, Ms. Rodgers sought unauthorized treatment at
University of Tennessee Medical Center, where she was diagnosed with right shoulder

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

                                                          2
    pain. (Ex. 14.) On April20, NHC provided Ms. Rodgers with a panel of physicians from
    which she selected East Town Urgent Care (ETUC). (Ex. 6.) That same day, Ms.
    Rodgers received treatment at ETUC. She was diagnosed with right shoulder pain and
    advised to wear a splint. ETUC referred her to an orthopedic, recommended an MRI, and
    restricted her to lifting only two pounds. (Ex. 11.) NHC provided a panel of orthopedic
    physicians from which Ms. Rodgers selected Dr. Edwin Spencer. (Ex. 6.) NHC
    scheduled an appointment for Ms. Rodgers to see Dr. Spencer on May 24. (Ex. 3.)

        Before her appointment with Dr. Spencer, Ms. Rodgers went to Fort Sanders
Regional Medical Center Emergency Care on May 1. She was diagnosed with "Injury of
shoulder region." (Ex. 12.) When Ms. Rodgers saw Dr. Spencer, he provided authorized
treatment and ordered physical therapy. Dr. Spencer assigned initial restrictions of no
lifting; then, three days later, he stated Ms. Rodgers could return to work four-hour shifts
for two weeks, eight-hour shifts for two weeks, and then full twelve-hour shifts, with
lifting limited to zero pounds. On June 21, Dr. Spencer opined that Ms. Rodgers could
work eight hours per day with a five-pound restriction. Within a month, Ms. Rodgers
again sought treatment with Dr. Spencer, who returned her to full shift with no lifting.
(Ex. 15.)

       At issue in this matter are the expenses from Ms. Rodgers' unauthorized visits to
UT Medical Center on April 16, and Fort Sanders Regional Medical Center on May 1,
and expenses for medications prescribed during those visits. (Exs. 8, 15.) Ms. Rodgers
stated she went to University of Tennessee Hospital because she was still in a great deal
ofpain. 2 (Ex. 2.)

       In Ms. Morgan's affidavit, she stated NHC only authorized treatment with
Tennova Physicians Regional Medical Center on April 14, and the two panel providers,
East Towne Urgent Care and Dr. Spencer. NHC did not authorize Ms. Rodgers to seek
treatment at any other hospital, including UT Medical Center, and upon learning that Ms.
R: dg r 11cte an: naut hortzed vi it :M . M rgan ·ntbJnled h r it wasnotauthorizedand -
would be her responsibility to pay for the treatment. (Ex. 3.)

       Also at issue is Ms. Rodgers' claim for temporary disability benefits. Ms. Rodgers
alleged that NHC did not comply with her two-pound restriction because it asked her to
make beds, which she thinks was outside her restrictions because she had to lift
mattresses in excess of two pounds. (Ex. 2) NHC alleges it did accommodate Ms.
Rodgers' restrictions and provided a list of duties it provided within the restrictions. (Ex.
5.) In addition, Ms. Rodgers alleges she was out of work for a total of thirty-three days,
with twenty-seven of those days being during the time it took NHC to get her
appointment with Dr. Spencer. (Ex. 2.) Ms. Rodgers stated, "I sincerely believe that I did
2
 Ms. Rodgers provided the reason she went to Fort Sanders Regional Hospital in her Objection. However, the Couti
granted NHC's Motion to Strike Objection, and Ms. Rodgers did not provide the reason for her Fort Sanders
Regional Hospital visit in the previously filed materials.

                                                       3
the right thing by staying off of work until I received treatment from an orthopedic
doctor." /d.

                       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, Ms. Rodgers need not prove every element of 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, she must come forward with
sufficient evidence from which this Court might determine she is likely to prevail at a
hearing on the merits. /d.; Tenn. Code Ann.§ 50-6-239(d) (1) (2015).

        This Court turns first to the issue of Ms. Rodgers' entitlement to reimbursement of
unauthorized medical expenses and prescriptions. Under 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)(l)(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 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).

       NHC provided an initial panel of physicians and then a second panel of
orthopedic physicians. Therefore, NHC met its statutory obligation of providing
appropriate panels. Turning to the issue of the unauthorized medical treatment, Workers'
Compensation Law requires that before holding NHC responsible for unauthorized
medical expenses, an assessment must be made as to whether, under the circumstances,
Ms. Rodgers acted reasonably in seeking unauthorized care. US. Fid. & Guar. Co. v.
Morgan, 795 S.W.2d 653, 655 (Tenn. 1990). The conclusion depends on the
circumstances of each case. Dorris v. INA Ins. Co., 764 S.W. 2d 538, 541 (Tenn. 1989).

         The circumstances in this case lead the Court to conclude it was not reasonable
for Ms. Rodgers to seek unauthorized treatment without properly notifying NHC. The
only justification Ms. Rodgers provided for seeking unauthorized medical treatment was
that she was still in pain. The Court sympathizes with Ms. Rodgers but finds inadequate
justification for her unauthorized care without first checking with NHC. While Ms.
Rodgers does not have the burden of establishing the necessity of medical treatment or
the reasonableness of medical charges of East Towne Urgent Care or Dr. Spencer, she
would have the burden of establishing the necessity and reasonableness of charges
incurred from unauthorized providers, University of Tennessee Hospital and Fort Sanders
Regional Hospital. See Russell v. Genesco, 651 S.W.2d 206, 211 (Tenn. 1983). While
Ms. Rodgers provided some medical and prescription statements, she did not provide any

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information or documentation to establish the necessity and reasonableness of the charges
incurred from the unauthorized hospital visits. Since Ms. Rodgers did not establish she
acted reasonably in seeking unauthorized care and did not establish the necessity and
reasonableness of the charges, her claim for payment of unauthorized emergency room
expenses and prescriptions from those visits is denied.

        The next issue this Court must consider is Ms. Rodgers' eligibility for temporary
disability benefits. An injured worker is eligible for temporary disability benefits if: ( 1)
the worker became disabled from working due to a compensable injury; (2) there is a
causal connection between the injury and the inability to work; and (3) the worker
established the duration of the period of disability. Jones v. Crencor Leasing and Sales,
No. 2015-06-0332, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7 (Tenn. Workers'
Comp. App. Bd. Dec. 11, 2015) (citing Simpson v. Satterfield, 564 S.W.2d 953, 955
(Tenn. 1978)). Temporary total disability benefits are terminated either by the ability to
return to work or attainment of maximum recovery. !d.

        Temporary partial disability benefits, a category of vocational disability distinct
from temporary total disability, is available when the temporary disability is not total.
!d.; see also Tenn. Code Ann. § 50-6-207(1)-(2) (2015). Specifically, "[t]emporary
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." !d. (citing
Williams v. Saturn Corp., No. M2004-01215-WC-R3-CV, 2005 Tenn. LEXIS 1032, at *6
(Tenn. Workers' Comp. Panel Nov. 15, 2005)). Thus, in circumstances where the
treating physician has released the injured worker to return to work with restrictions prior
to maximum medical improvement, and the employer either ( 1) cannot return the
employee to work within the restrictions or (2) cannot provide restricted work for a
sufficient number of hours and/or at a rate of pay equal to or greater than the employee's
average weekly wage on the date of injury, the injured worker may be eligible for
temporary partial disability. !d.

        Ms. Rodgers' Affidavit addressed her claim for temporary disability benefits. She
stated, "I sincerely believe that I did the right thing by staying off of work until I received
treatment from an orthopedic doctor. The Doctor at [ETUC] had no verifiable evidence
to set the restrictions he set." By Ms. Rodgers' own admission, she substituted her
judgment for that of her authorized medical providers and even though no medical
provider took her off work, she chose not to work until she saw Dr. Spencer.

        Since no authorized treating provider took Ms. Rodgers completely off work, she
is not entitled to temporary total disability benefits. With regard to temporary partial
disability benefits, NHC provided affidavit testimony that it provided Ms. Rodgers work
within her restrictions. While Ms. Rodgers alleged that changing sheets exceeded her
two-pound restriction, she did not provide any information to substantiate her claim that


                                              5
she was required to lift the mattresses in order to be able to change the sheets. Therefore,
Ms. Rodgers' claim for temporary partial disability benefits is denied.

       After careful consideration, as a matter of law, Ms. Rodgers has not come forward
with sufficient evidence from which this Court can conclude that she is likely to prevail
at a hearing on the merits on the issues of temporary disability benefits and payment of
unauthorized Emergency Room expenses and prescriptions.

IT IS, THEREFORE, ORDERED as follows:

    1. Ms. Rodgers' claim against NHC Healthcare and its workers' compensation
       carrier for the requested payment of unauthorized medical treatment and
       temporary disability benefits is denied at this time.

   2. This matter is set for an Initial (Scheduling) Hearing on November 28, 2016, at
      9:30A.M. Eastern Time.

       ENTERED this the 3rd day of October, 2016.


                                                 ~ ~ illAt( ltMJif
                                          HON. LISA LOWE KNOTT
                                          Workers' Compensation Judge

Initial ( cheduling) Hearing:

        An Initial (Scheduling) Hearing has been set with Judge Lisa Lowe Knott, Court
of Workers' Compensation Claims. The parties must call865-594-0109 or 855-383-0003
toll free to participate in the Initial Hearing. Failure to appear by telephone may result in
a determination of the issues without your further participation.

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."

   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.

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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

           Technical Record:
                 • Petition for Benefit Determination, filed May 6, 20 16;
                 • Dispute Certification Notice, filed June 29, 2016;
                 • Request for Expedited Hearing, filed June 29, 2016;
                 • Docketing Notice for On-The-Record Determination, issued September 1,
                     2016;
                 • Amended Docketing Notice for On-The-Record Determination, issued
                     September 13, 2016;
                 • NHC's Motion to Reconsider Docketing Notice for On the Record
                     Determination and Response to Plaintiffs Motion for Expedited Hearing, filed
                     September 12, 2016; and
                 • NHC's Motion to Strike and/or in the alternative Response to Employee's
                     Objection.

                  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.

         Exhibits:
                • EXHIBIT 1: Affidavit of Katherine Rodgers;
                • EXHIBIT 2: Second Statement/Affidavit of Katherine Rodgers;
                • EXHIBIT 3: Affidavit of National Healthcare/Knoxville LLC Director of
                   Nursing Amy Morgan;
                • EXHIBIT 4: Affidavit of Attorney Ford Little;
                • EXHIBIT 5: List of Job Duties;
- - - - - - -• EXHUHT 6: Panels of Physician, form C-42, executed;
               • EXHIBIT 7: Wage Statement, Form C-41;
               • EXHIBIT 8: Prescription Record of Walgreens;
               • EXHIBIT 9: Therapy Orders ofOrthoTennessee;
               • EXHIBIT 10: Return to Work Status Reports of Knoxville Orthopedic Clinic;
               • EXHIBIT 11: Medical Records of East Towne Urgent Care;
               • EXHIBIT 12: Medical Records of Fort Sanders Regional Medical Center;
               • EXHIBIT 13: Medical Records and Expenses of Tennova Physicians Regional
                   Medical Center;
               • EXHIBIT 14: Medical Records of University of Tennessee Hospital;
               • EXHIBIT 15: Medical Records of Dr. Edwin Spencer of Knoxville Orthopedic
                   Clinic;
               • EXHIBIT 16: Medical Expenses;

                                                       8
       •   EXHIBIT 17: NBC/Premier Group Insurance's Proof of Payments; and
       •   Marked for Identification Purposes Only-EXHIBIT 18-Ms. Rodgers' January
           19, 2016 Objection.


                            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 3rd day of
October, 2016.


           Name            Certified    Via        Via    Service sent to:
                            Mail        Fax       Email
Katherine Rodgers,            X                           Katherine Rodgers
Self-Represented                                          832 W. Emerald Avenue
Employee                                                  Knoxville, TN 37921
Ford Little, Esq.,                                 X      flittle@wmbac.com
Employer's Attorney




                                                  PENNY SHRUM, Court Clerk
                                                    WC.Cou rtCierk@tn.gov




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