                                                                                                           FILED

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                                                                                                          Time 8::31 All
               TENNESSEE BUREAU OF WORKERS' COMPENSATION
              IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                             AT CHATTANOOGA

GEORGE DAVID NUNLEY,                                       )    Docket No.: 2016-01-0471
        Employee,                                          )
v.                                                         )
SEQUATCHIE FARMERS                                         )    State File Number: 70707-2015
COOPERATIVE,                                               )
                                                           )
         Employer,                                         )    Judge Thomas Wyatt
And                                                        )
SENTRY INSURANCE CO.,                                      )
         Carrier.                                          )


    EXPEDITED HEARING ORDER DENYING MEDICAL BENEFITS (REVIEW
                        OF THE FILE ONLY)


      This matter came before the undersigned Workers' Compensation Judge upon a
Request for Expedited Hearing filed by George David Nunley pursuant to Tennessee
Code Annotated section 50-6-239 (2015). The sole issue raised by Mr. Nunley was
whether he is entitled to receive a panel of physicians from which to select a surgeon
when his authorized treating physician referred him to another physician in his practice
group for additional surgery. On November 23, 2016, the Court conducted a Status
Conference to assist it in considering the appropriateness of Mr. Nunley's request that it
decide the Request for Expedited Hearing on review of the file only without an
evidentiary hearing. 1 For the following reasons, the Court determines Mr. Nunley is not


1
  The Court conducted the Status Conference to determine the position of the employer, Sequatchie Farmers
Cooperative, as to whether the Court should decide Mr. Nunley's Request for Expedited Hearing without an
evidentiary hearing. Sequatchie agreed that a decision on a review of the file was appropriate. (T.R. 3.) During the
Status Conference, the Court asked the parties if they objected to any of the evidence submitted with the Court Clerk
for consideration on this issue. Neither party objected to the submitted evidence. After reviewing the submitted
evidence and obtaining the parties' input as to the nature of the issue raised for decision, the Court determined it did
not need additional evidence to decide the issue before it.


                                                           1
entitled to the requested relief. 2

                                               History of Claim

       Mr. Nunley is a thirty-nine-year-old resident of Dunlap, Sequatchie County,
Tennessee, who injured his lumbar spine lifting tires in the course and scope of his
employment by Sequatchie Farmers Cooperative. (T.R. 1 at 1.) Sequatchie and its
carrier accepted the compensability of the claim and proffered Mr. Nunley a panel from
which he selected neurosurgeon Dr. Timothy Strait as the authorized treating physician.
(Ex. 1.) Mr. Nunley subsequently underwent two back surgeries under Dr. Strait's care.
(Ex. 3 at 1-4.)

       When Mr. Nunley continued with significant symptoms following the second
surgery, Dr. Strait referred him to a physician within his practice group, Dr. Joseph
Miller, for consideration of whether he needed to undergo spinal fusion surgery. (Ex. 3 at
8.) Dr. Strait stated in his medical notes that he referred Mr. Nunley to Dr. Miller
because fusion surgery "is a procedure that [Dr. Miller] performs." Id. Dr. Strait noted
that he would contact the insurance carrier to arrange for Mr. Nunley to see Dr. Miller.
!d.

       Ty Cobbs, adjuster for Sequatchie's carrier, stated by affidavit that he received a
"direct referral from Dr. Strait to Dr. Miller." (Ex. 5 at 1.) Mr. Cobbs "accepted the
referral and chose not to issue a new panel of physicians." !d. He scheduled Mr. Nunley
to see Dr. Miller and Mr. Nunley attended the appointment. (Ex. 3 at 9-10.)

       Dr. Miller recommended the fusion surgery, but Mr. Nunley requested a second
opinion before defmitively deciding whether to undergo the surgery. (Ex. 3 at 10.) Dr.
Miller recommended Dr. Richard Pearce for the second opinion. Id. Sequatchie's carrier
proffered a panel that included Dr. Pearce, and Mr. Nunley selected him for the second
opinion. 3 (Ex. 4 at 2.)

       Mr. Nunley subsequently decided he wanted Dr. Pearce to become his treating
physician (Ex. 4 at 2) and filed a Petition for Benefit Determination seeking to
accomplish the above goal. (T.R. 1l During the November 23 Status Conference, Mr.
Nunley's attorney contended he believed the spirit of the law entitled his client to a panel

2
 A complete listing of the technical record and the exhibits admitted into evidence is attached as an appendix to this
Order.
3
  The submitted evidence indicates Sequatchie's carrier sent information for Dr. Pearce to consider in deciding
whether he will agree to provide a second opinion. (Ex. 5 at 2.) As of the latest information indicated in the
submitted evidence, Dr. Pearce has not made a decision whether to provide the second opinion.
4
 1t appears Mr. Nunley wants the Court to consider the panel Sequatchie's carrier gave him to select a physician to
provide a second opinion as a panel for a physician to comply with Dr. Strait's referral to another surgeon.

                                                          2
from which to select the surgeon who would operate on him should he opt to undergo the
recommended surgery.

       Sequatchie's attorney countered that the referral statute in the Workers'
Compensation Law does not entitle an employee to a panel when the authorized treating
physician makes a referral to a specific physician. She asserted her clients followed the
law in accepting the referral from Dr. Strait to Dr. Miller and, as such, Dr. Miller now
properly fulfills the role of Mr. Nunley's authorized treating physician. Finally,
Sequatchie argued that it followed the law in providing Mr. Nunley a panel from which to
select a physician to give a second opinion on whether he should undergo the surgery
recommended by Dr. Miller. Accordingly, it asserts Mr. Nunley's argument that
Sequatchie intended to allow him to select a treating surgeon from the panel is without
basis.

                       Findings of Fact and Conclusions of Law

        Here, the parties asked the Court to interpret the statutory scheme regarding the
selection of treating physicians and second-opinion physicians in the context of
recommendations for surgery. There is no fact in dispute.

       The subject of referrals by authorized treating physicians is addressed in
Tennessee Code Annotated section 50-6-204(3)(A)(ii) (2015), which provides that the
employer, and not the employee, has the right to substitute a timely-submitted panel of
physicians as an alternative to accepting the authorized treating physician's referral to a
specific physician. A review of the Tennessee Workers' Compensation Law fails to
reveal any statutory provision that provides the employee a corresponding right to require
an employer to provide a panel when the employee does not want to see the referral
physician specified by the authorized treating physician.

       Mr. Nunley rests his argument for a panel here on the premise that it is unfair for
the employer to escape a treating physician's direct referral by proffering a panel when
the employee cannot likewise do so. In other words, what is good for the goose is good
for the gander. Mr. Nunley's position, however, ignores the plain language of the
Workers' Compensation Law.

       Mr. Nunley's reliance on the Supreme Court's decision in Employers Ins. of
Wausau v. Carter, 522 S.W.2d 174 (Tenn. 1975), is misplaced. The Supreme Court in
Carter described an employer's provision of medical benefits without allowing an
employee to select the treating physician from a panel as a "usurpation of the privilege of
the employee to choose the ultimate treating physician," but it did so in the instance of
the employer's failure to provide a panel at the outset of the employee's treatment.
Carter, supra, at 176. For this reason, the Carter opinion is inapplicable here since
Sequatchie and its carrier complied with its obligation to provide Mr. Nunley a panel

                                            3
from which he selected Dr. Strait as his initial authorized treating physician. 5

        Mr. Nunley's argument that Sequatchie intended the panel from which he selected
Dr. Pearce as a panel for selection of a referral surgeon is without merit. Dr. Miller's
initial treatment note discussed the fact Mr. Nunley asked for a second opinion on the
issue of whether he should undergo the fusion surgery recommended by Dr. Miller. The
note itself indicates that Dr. Miller recommended Dr. Pearce, but only for the second
opinion, and not to perform the surgery. Tennessee Code Annotated section 50-6-
204(3)(C) (2015) provides that an employee may require the employer to pay for a
second opinion on recommended surgery, but clearly states that an employee's utilization
of the statutory procedure "shall not alter the previous selection of the treating physician
or chiropractor."

       There is no evidence in the file to indicate that Sequatchie proffered the panel
from which Mr. Nunley selected Dr. Pearce for any reason other than to comply with its
obligation to provide Mr. Nunley a second opinion on surgery under section 50-6-
204(3)(C). As stated previously, Sequatchie was within its statutory right to accept Dr.
Miller as referral physician without offering Mr. Nunley a panel and the record indicates
no evidence indicating Sequatchie waived this right in proferring the panel from which
Mr. Nunley selected Dr. Pearce. In view of the above-stated factors, the Court finds Mr.
Nunley's selection of Dr. Pearce shall be for a second opinion on surgery only.

       Lastly, Mr. Nunley argued that Dr. Strait's referral to Dr. Miller meant Dr. Strait
would no longer treat him and, as such, Mr. Nunley contends Tennessee Code Annotated
section 50-6-204(a)(3)(G) (2015) entitles him to a panel from which to select a new
authorized treating physician. The Court holds this argument fails for two reasons. First,
while Dr. Strait's referral note is silent on whether he will resume Mr. Nunley's treatment
if and when Dr. Miller refers him back, it does not indicate Dr. Strait has declined to
further treat Mr. Nunley.

       Also, section 204(a)(3)(G) is inapplicable because it applies only where a provider
included on the employer's initial panel "declines to accept the employee as a patient."
(Emphasis added.) The plain language of this subparagraph indicates it applies to
circumstances occurring before a physician begins treating an employee and not after a
period of treatment has already occurred. Here, Dr. Stait accepted Mr. Nunley as his
patient and, in fact, performed two surgeries before referring him to Dr. Miller for
consideration of a surgical procedure that Dr. Stait did not perform. Accordingly, this
provision offers Mr. Nunley no basis for obtaining the relief he requested.

5
  The Workers' Compensation Appeals Board has confirmed the viability of the above-referenced holding in Carter
under the new law, but only in the context of holding an employer cannot dictate treatment by a single provider at
the outset of the claim. See Lamm v. E. Miller Construction, Inc., No. 2015-01-0429, 2016 TN Wrk. Comp. App.
Bd. LEXIS 83, at *17-18 (Tenn. Workers' Comp. App. Bd. Nov. 8, 2016).


                                                        4
       The statutory scheme employed here by the general assembly indicates that it did
not intend section 204(a)(3)(G) to apply to a referral situation. Instead, Tennessee Code
Annotated section 50-6-204(a)(3)(E) (2015) provides for a seamless continuity of
treatment in the referral context by establishing the referral physician as the authorized
treating physician until the referral physician refers the employee back to the initial
authorized treating physician. Here, that has not happened. 6

        In view of the above, the Court finds Mr. Nunley will not likely prevail in
establishing at trial his entitlement to the requested relief. Accordingly, the Court denies
the relief he sought.

        IT IS, THEREFORE, ORDERED as follows:

    1. Mr. Nunley's request for a panel from which to select a referral physician is
       denied.

    2. This matter is set for a Status Hearing on February 3, 2017, at 10:00 a.m.
       Eastern Time.


        ENTERED this the 6th day of December, 2016.



                                                     Judg4~
                                                     Court of Workers' Compensation Claims


Status Rearing:

       A Status Hearing has been set with Judge Thomas Wyatt, Court of Workers'
Compensation Claims. You must call toll-free at 855-747-1721 or 615-741-3061 to
participate in the Status Hearing.

       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.



6
 Nothing in this order precludes Mr. Nunley from requesting a new panel of treating physicians should Dr. Strait
decline to treat him if and when Dr. Miller refers him back to Dr. Strait.

                                                         5
         Right to Appeal:

       Tennessee Law allows any party who disagrees with this 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.

       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

                                             6
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.



                                                  APPENDIX

Exhibits:

    1. Agreement Between Employer/Employee Choice of Physician (C-42) for
         authorized treating physician;
    2.   Agreement Between Employer/Employee Choice of Physician (C-42) for second
         opinion;
    3.   Medical Records of Erlanger Health System-Neurosurgery Group/Drs. Timothy
         Strait and Joseph Miller;
    4.   Affidavit of George David Nunley; and
    5.   Affidavit of Ty Cobbs.

Technical record: 7

    1.   Petition for Benefit Determination;
    2.   Dispute Certification Notice;
    3.   Employee's Brief Supporting Petition for Benefit Determination;
    4.   Request for Expedited Hearing;
    5.   Employer's Notice Regarding Motion for Expedited Hearing; and
    6.   Employer's Brief in Opposition to Motion for Expedited Hearing (without exhibits
         originally attached to the brief, which the Court made part of the record as
         evidentiary exhibits).




7
  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.

                                                     7
                              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 6th day of
December, 2016.


               Name                     Via Email                  Service sent to:
 Lew Belvin,                                X            lew.belvin@mcmahonlawfirm.com
 Attorney
 Lee Anne Murray,                           X            leeamurray@feeneymurray.com
 Attorney



                                                     1   m, Clerk of Court
                                                         orkers' Compensation Claims




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