                                                                                              FILED
                                                                                            Jun 04, 2018
                                                                                            04:30 PM(CT)
                                                                                            TENNESSEE
                                                                                       WORKERS' COMPENSATION
                                                                                          APPEALS BOARD

             TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                WORKERS’ COMPENSATION APPEALS BOARD

George Ledford                                     )   Docket No. 2017-01-0740
                                                   )
v.                                                 )   State File No. 87418-2016
                                                   )
Mid Georgia Courier, Inc., et al.                  )
                                                   )
                                                   )
Appeal from the Court of Workers’                  )
Compensation Claims                                )
Thomas Wyatt, Judge                                )

                       Affirmed and Remanded—Filed June 4, 2018

The employee, a delivery driver, suffered a compensable injury to his left shoulder while
performing his duties for the employer. The employer provided medical care with an
authorized physician who ultimately referred the employee for a second opinion. The
employer declined to authorize a surgical procedure recommended by the physician to
whom the employee was referred. The trial court concluded the employee was entitled to
the recommended procedure. The employer has appealed. We affirm the trial court’s
decision and remand the case.

Presiding Judge Marshall L. Davidson, III, delivered the opinion of the Appeals Board in
which Judge David F. Hensley and Judge Timothy W. Conner joined.

A. Allen Grant, Nashville, Tennessee, for the employer-appellant, Mid Georgia Courier,
Inc.

Matthew G. Coleman, Cleveland, Tennessee, for the employee-appellee, George Ledford

                                     Memorandum Opinion1

      George Ledford (“Employee”) suffered an injury to his left shoulder on June 6,
2016, while loading pallets onto a truck in the course of his work for Mid Georgia
Courier, Inc. (“Employer”). Employer accepted the claim as compensable and provided
1
 “The Appeals Board may, in an effort to secure a just and speedy determination of matters on appeal and
with the concurrence of all judges, decide an appeal by an abbreviated order or by memorandum opinion,
whichever the Appeals Board deems appropriate, in cases that are not legally and/or factually novel or
complex.” Appeals Bd. Prac. & Proc. § 1.3.

                                                   1
medical treatment with Dr. Peter Lund, an orthopedic surgeon selected by Employee
from a panel of physicians.

       Dr. Lund diagnosed Employee with adhesive capsulitis and gave him injections,
ordered physical therapy, and manipulated his shoulder under anesthesia. Employee
continued to complain of pain. Dr. Lund expressed uncertainty about a “clear pathway to
additional treatment” and believed Employee “would benefit from a second opinion.”
Thus, Dr. Lund referred Employee for a second opinion with “an option to treat.”

       Employer provided Employee a panel of physicians from which he selected Dr.
Chad Smalley, also an orthopedic surgeon, to provide the second opinion. Dr. Smalley
recommended an arthroscopy to address the adhesive capsulitis. Thereafter, Employee
returned to Dr. Lund, who noted Employee “apparently got rescheduled with [him] for
reasons that are not entirely clear.” After observing that Dr. Smalley’s recommended
course of treatment was reasonable, Dr. Lund stated he would “turn [Employee’s] care
over to Dr. Smalley . . . [and Employee may] follow-up with [Dr. Lund] as needed.”

        Employer refused to authorize the recommended surgery with Dr. Smalley on the
theory that he merely provided a second opinion and that Dr. Lund remained the
authorized physician. Employer also submitted Dr. Smalley’s surgical recommendation
to utilization review, which declined to approve the procedure because the treatment
guidelines “do not currently recommend surgery for adhesive capsulitis.” Employee
appealed the denial to the Medical Director, who upheld the denial.

       Employee filed a petition for benefit determination seeking to require Employer to
authorize the recommended surgery because Drs. Lund and Smalley, both authorized by
Employer, found it medically necessary. He also asked the trial court to designate Dr.
Smalley as his treating physician based on Dr. Lund’s referral.

        The trial court concluded that Dr. Lund made a referral to Dr. Smalley for ongoing
treatment and that Employer’s failure to timely object to that referral obligated it to
authorize the treatment recommended by Dr. Smalley. In finding that Employee was
entitled to the recommended surgery, the trial court gave more weight to the opinions of
Dr. Lund and Dr. Smalley regarding the reasonableness and necessity of the
recommended procedure than to the opinions of the utilization review physician and
Medical Director. Employer has appealed.

                                            I.

       Initially, we note that Employer cites Tennessee Code Annotated section § 50-6-
217(a)(3) (2016) (repealed 2017) in support of its argument that the trial court’s decision
should be reversed. Section 50-6-217(a)(3) authorized us to reverse or modify a trial
court’s decision if the rights of a party were prejudiced because the findings of the trial

                                            2
judge were “not supported by evidence that is both substantial and material in light of the
entire record.” However, as we have observed on numerous occasions, this code section
was repealed effective May 9, 2017.2 Consequently, as noted above, the standard we
apply in reviewing the trial court’s decision presumes that the trial judge’s factual
findings are correct unless the preponderance of the evidence is otherwise. Tenn. Code
Ann. § 50-6-239(c)(7).

                                                II.

      Employer argues that Dr. Smalley was merely asked to provide a second opinion
and that Dr. Lund remains the authorized physician. Employer asserts that when Dr.
Lund ordered a second opinion, it provided a panel consistent with the requirements of
Tennessee Code Annotated section 50-6-204(a)(3)(C) (2017), which states that

       [w]hen the treating physician . . . refers the injured employee, the employee
       shall be entitled to have a second opinion on the issue of surgery and
       diagnosis from a physician . . . from a panel of two (2) physicians
       practicing in the same specialty as the physician who recommended the
       surgery. . . . The employee’s decision to obtain a second opinion shall not
       alter the previous selection of the treating physician. (Emphasis added.)

       However, this statutory provision does not apply to these facts. The panel for a
second opinion was not offered to Employee because of a recommendation for surgery by
Dr. Lund. In fact, there is no evidence in the record that Employee requested a second
opinion for any reason. Rather, Dr. Lund observed that he believed Employee would
benefit from a second opinion and the physician who provided the second opinion would
have an option to treat. Thus, rather than falling within the scenario contemplated by
section 50-6-204(a)(3)(C), the circumstances of this case fall within section 50-6-
204(a)(3)(A)(ii), which provides that “[w]hen necessary, the treating physician . . . shall
make referrals to a specialist . . . . The employer shall be deemed to have accepted the
referral, unless the employer, within three (3) business days, provides the employee a
panel” of physicians. Here, because Dr. Lund felt he had no additional treatment options
2
  See, e.g., Duignan v. Stowers Machinery Corp., No. 2017-03-0080, 2018 TN Wrk. Comp. App. Bd.
LEXIS 25, at *8 (Tenn. Workers’ Comp. App. Bd. May 29, 2018); Ogden v. McMinnville Tool & Die,
No. 2016-05-1093, 2018 TN Wrk. Comp. App. Bd. LEXIS 14, at *9-10 (Tenn. Workers’ Comp. App. Bd.
May 7, 2018); Edwards v. Fred’s Pharmacy, No. 2017-06-0526, 2018 TN Wrk. Comp. App. Bd. LEXIS
9, at *5-6 (Tenn. Workers’ Comp. App. Bd. Feb. 14, 2018); Bowlin v. Servall, LLC, No. 2017-07-0224,
2018 TN Wrk. Comp. App. Bd. LEXIS 6, at *6-7 (Tenn. Workers’ Comp. App. Bd. Feb. 8, 2018);
Thompson v. Comcast Corp., No. 2017-05-0639, 2018 TN Wrk. Comp. App. Bd. LEXIS 1, at *12-13
(Tenn. Workers’ Comp. App. Bd. Jan. 30, 2018); Baker v. Electrolux, No. 2017-06-0070, 2017 TN Wrk.
Comp. App. Bd. LEXIS 65, at *5-6 (Tenn. Workers’ Comp. App. Bd. Oct. 20, 2017); Butler v. AAA
Cooper Transportation, No. 2016-07-0459, 2017 TN Wrk. Comp. App. Bd. LEXIS 54, at *5-6 (Tenn.
Workers’ Comp. App. Bd. Sept. 12, 2017); Glasgow v. 31-W Insulation Co., Inc., No. 2017-05-0225,
2017 TN Wrk. Comp. App. Bd. LEXIS 51, at *11-12 (Tenn. Workers’ Comp. App. Bd. Sept. 6, 2017).

                                                3
to offer Employee, he deemed a second opinion to be an appropriate step. Although it
appears Employer did not provide a panel within three business days of the referral for a
second opinion, it nonetheless provided a panel from which Employee selected a
physician.3

       When an employer offers a panel of physicians pursuant to section 50-6-
204(a)(3)(A)(ii), as happened here, the new physician becomes an authorized treating
physician pursuant to Tennessee Code Annotated section 50-6-204(a)(3)(E).4 After
Employee saw Dr. Smalley, he returned to Dr. Lund, who stated that Employee had been
rescheduled with him “for reasons that are not entirely clear.” He then stated he would
“turn [Employee’s] care over to Dr. Smalley.” Dr. Lund’s intention is clear. He reached
a point in Employee’s treatment where he felt he had nothing further to offer. He felt a
second opinion was warranted and noted that the second opinion physician would, if
appropriate, have the option to assume Employee’s care. Dr. Lund was somewhat
perplexed when Employee returned to see him, as it appears he believed he had
transferred Employee’s care to another physician. Dr. Lund also made clear that he
believed the course of treatment recommended by Dr. Smalley was reasonable.

       In short, Employer provided an appropriate panel, Employee selected a physician,
and that physician became Employee’s authorized treating physician.

                                                    III.

        Employer also argues that the trial court erred in giving greater weight to the
opinions of Drs. Lund and Smalley than to the opinion of the utilization review physician.
In evaluating expert medical opinions, a trial judge may consider, among other things, the
qualifications of the experts, the circumstances of their evaluation, the information
available to them, and the evaluation of the importance of that information by other
experts. Venable v. Superior Essex, Inc., No. 2015-05-0582, 2016 TN Wrk. Comp. App.
Bd. LEXIS 56, at *6 (Tenn. Workers’ Comp. App. Bd. Nov. 2, 2016). As stated by the
Tennessee Supreme Court, “[w]hen faced . . . with conflicting medical testimony . . ., it is
within the discretion of the trial judge to conclude that the opinion of certain experts
should be accepted over that of other experts and that it contains the more probable
explanation.” Thomas v. Aetna Life and Cas. Co., 812 S.W.2d 278, 283 (Tenn. 1991)
(citation omitted) (internal quotation marks omitted).

3
    Employee does not argue that the second panel provided by Employer was defective or untimely.
4
 Section 50-6-204(a)(3)(E) states: “In all cases where the treating physician has referred the employee to
a specialist physician, surgeon, chiropractor or specialty practice group, the specialist physician, surgeon,
or chiropractor to which the employee has been referred, or selected by the employee from a panel
provided by the employer, shall become the treating physician until treatment by the specialist physician,
surgeon, or chiropractor concludes and the employee has been referred back to the treating physician
selected by the employee from the initial panel provided by the employer.”

                                                     4
       Here, Employer asserts that the trial court “misjudged the weight to be afforded to
the respective medical opinions.” The crux of Employer’s argument is that the trial court
relied too heavily on the fact that Drs. Lund and Smalley had personally evaluated
Employee. We are not persuaded the trial court abused its discretion in giving more
weight to the opinions of Drs. Lund and Smalley because they personally evaluated
Employee or in its ultimate conclusion as to the medical necessity of the recommended
treatment.

      We hold that the evidence does not preponderate against the trial court’s decision.
Accordingly, the trial court’s decision is affirmed and the case is remanded.




                                            5
                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD

George Ledford                                             )   Docket No. 2017-01-0740
                                                           )
v.                                                         )    State File No. 87418-2016
                                                           )
Mid Georgia Courier, Inc., et al.                          )
                                                           )
                                                           )
Appeal from the Court of Workers’                          )
Compensation Claims                                        )
Thomas Wyatt, Judge                                        )

                                     CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the Appeals Board’s decision in the
referenced case was sent to the following recipients by the following methods of service
on this the 4th day of June, 2018.
 Name                    Certified   First   Class   Via   Fax       Via     Sent to:
                         Mail        Mail            Fax   Number    Email

 Matthew Coleman                                                       X     mcoleman@loganthompsonlaw.com
 A. Allen Grant                                                        X     agrant@eraclides.com
 Thomas Wyatt, Judge                                                   X     Via Electronic Mail
 Kenneth M. Switzer,                                                   X     Via Electronic Mail
 Chief Judge
 Penny Shrum, Clerk,                                                   X     Penny.Patterson-Shrum@tn.gov
 Court of Workers’
 Compensation Claims




Matthew Salyer
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov
