                IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                                 AT KINGSPORT

Rebecca Rouillier                                           )    Docket No.: 2015-02-0256
           Employee,                                        )
v.                                                          )    State File Number: 88043-2014
Hallmark Marketing Corporation                              )
           Employer,                                        )    Judge Brian K. Addington
And                                                         )
Liberty Mutual Insurance Company                            )
            Insurance Carrier.                              )
                                                            )

                           EXPEDITED HEARING ORDER GRANTING
                              REQUESTED MEDICAL BENEFITS


       This case came before the undersigned Workers' Compensation Judge on the
Request for Expedited Hearing filed by the employee, Rebecca Rouillier, pursuant to
Tennessee Code Annotated section 50-6-239 (2015). The present focus of this case is
Ms. Rouillier's entitlement to medical benefits. The central legal issue is whether Ms.
Rouillier is entitled to a second opinion with regard to treatment of her work injury. 1 For
the reasons set forth below, the Court finds Ms. Rouillier is entitled to the second
opm10n.

                                                 History of Claim

       Ms. Rouillier is a thirty-four-year-old resident of Washington County, Tennessee.
(T.R. 1 at 1.) She testified that she worked for Hallmark Marketing Corporation as a
stocker, when on November 3, 2014, she felt a pop in her lower back when she lifted
shelving above her head. Ms. Rouillier promptly reported the incident to her manager.

      A few days later, Hallmark provided Ms. Rouillier a panel of physicians, and on
November 12, 2014, she chose First Assist Urgent Care. (Ex. 3.) Ms. Rouillier testified
that when there was an issue with the providers at First Assist Urgent Care seeing her
immediately, Hallmark scheduled an appointment with Doctor's Care instead. She went

1
    Additional information is attached to this Order as an Appendix.
to Doctor's Care without objection.

        The providers at Doctor's Care saw Ms. Rouillier on several occasions. (Ex. 10 at
1-36.) Ms. Rouillier primarily saw nurse practitioner (NP) Karie Dickerson under the
supervision of Dr. Erin Bryant. !d. The providers diagnosed lumbrosacral back pain. !d.
at 4. Following a period of physical therapy, Ms. Rouillier underwent the MRI on
February 6, 2015; the impression of the radiologist was an "unremarkable lumbar MRI."
!d. at 23, 99.

       Mr. Rouillier returned to Doctor's Care on February 11, 2015, with continued
pain, arid the providers returned her physical therapy. !d. at 17. Following the physical
therapy, Ms. Rouillier returned to Doctor's Care on March 23, 2015, and reported some,
but not complete, improvement. !d. at 33.

      Following the examination on March 23, Ms. Rouillier testified NP Dickerson
wanted to refer her to an orthopedic specialist. She testified the nurse case manager,
Monica Ford, suggested sending her to Watauga Orthopedics or providing a panel of
orthopedists.

       There are two records from Doctor's Care that address NP Dickerson's referral.
The physician notes state, "Will refer to ortho. Adjuster able to schedule an appt. with
Dr. Duncan with ortho." !d. at 35. In the release form for workers' compensation, the
provider checked the box labeled "scheduled for re-evaluation/specialist referral with,"
and wrote "ortho" beside the box. !d. at 36. Hallmark did not provide a panel of
physicians but scheduled an appointment with Dr. Richard Duncan at Watauga
Orthopedics. Ms. Rouillier did not object to seeing Dr. Duncan.

       Ms. Rouillier saw Dr. Duncan once on April 17, 2015. She testified the
appointment only lasted twenty minutes, and in her opinion, he did not perform the
proper tests to fully address her complaints. Dr. Duncan reviewed the MRI scan and
opined, "It shows degenerative changes, mild at 4-5 and 5-1. It looks like there is a sacral
arachnoid cyst down at S 1 and S2. I do not see any stenosis or herniated disc. This looks
pretty normal for age. I also reviewed the report." !d. at 87. Dr. Duncan diagnosed
degeneration of lumbar or lumbrosacral intervertebral disc, placed Ms. Rouillier at
maximum medical improvement (MMI), and requested a functional capacity
examination. !d. The results of the functional capacity examination indicated Ms.
Rouillier could not lift over forty pounds. /d. at 92.

       Following her visit to Dr. Duncan, Ms. Rouillier she sought a second opinion from
Hallmark. Hallmark provided two panels of physicians for a second opinion. One
contained Dr. Duncan and Dr. Matthew Hannibal in Boone, N.C. (Ex. 6.) The other
contained Dr. Matthew Wood and Dr. Jim Brasfield, both located in Bristol, TN. (Ex. 7.)
Ms. Rouillier testified she did not choose a physician from either panel.

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       In an attempt to find pain relief, Ms. Rouillier sought unauthorized medical
treatment with Dr. Elizabeth Palmer at Holston Medical Group on April 22, 2015. (Ex.
10 at 101.) Ms. Rouillier complained of low back pain following the incident at work.
ld. Dr. Palmer diagnosed muscle spasm and SI joint dysfunction and recommended pain
management. !d. at 103.

       Ms. Rouillier saw Dr. Turney Williams on July 21 and August 4, 2015, for pain
management. !d., at 109, 112. She underwent a right sacroiliac joint injection on August
4, 2015. !d. at 112.

       Following the unauthorized treatment, Ms. Rouillier filed a Petition for Benefit
Determination seeking a second opinion and additional medical treatment. (T.R. 1.) The
parties did not resolve the disputed issues through mediation, and the Mediating
Specialist filed a Dispute Certification Notice. (T.R. 2.) Ms. Rouillier filed a Request for
Expedited Hearing pursuant to Tennessee Code Annotated section 50-6-239 (20 15), and
this Court heard the matter on March 11, 2016.

       During the Expedited Hearing Ms. Rouillier asserted Dr. Duncan misdiagnosed
her condition and opined an inappropriate MMI date. She asserted entitlement to past
and ongoing treatment with Dr. Williams because of Dr. Duncan's misdiagnosis. 2 She
asserted both of the panels Hallmark provided for a second opinion were inappropriate
because one contained Dr. Duncan, and a choice from the other would have caused issues
with childcare. Thus, she continued her request for a second opinion.

       Hallmark asserted during the Expedited Hearing that Dr. Duncan's diagnosis and
MMI date were correct. It contended it had provided Ms. Rouillier two physician panels
for second opinions, but she refused to choose from the panels. It further asserted it is
not responsible for payment of any authorized medical treatment.

                             Findings of Fact and Conclusions of Law

        Ms. Rouillier has the burden of proof on all essential elements of a claim. Scott v.
Integrity Staffing Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd. LEXIS
24, at *6 (Tenn. Workers' Comp. App. Bd. Aug. 18, 2015).

       Ms. Rouillier need not prove every element of her claim by a preponderance of the
evidence in order to obtain relief at an expedited hearing. 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). At this Expedited Hearing, Ms.
Rouillier has the burden to come forward with sufficient evidence from which the trial
2
  The issues concerning the correctness of the Dr. Duncan's diagnosis, the MMI date, and payment for past and
ongoing medical treatment were not listed on the Dispute Certification Notice. The Court will not consider those
issues.

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court can determine that she is likely to prevail at a hearing on the merits. !d.

       Ms. Rouillier requests a second opinion, given her continued pain and Dr.
Duncan's determination that she reached MMI. Tennessee Code Annotated section 50-6-
204(a)(3)(C) (2015) governs second opinions. It states in relevant part:

       When tJle treating physician or chiropractor refers the injured employee, the
       employee shall be entitled to have a second opinion on the issue of surgery
       and diagnosis from a physician or chiropractor 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 or
       chiropractor.

       The statute requires a treating physician or chiropractor to refer the injured worker
for a second opinion before the worker becomes entitled to same; otherwise, there is no
statutory right to a second opinion.

        In this case, Ms. Rouillier established by evidence Doctor's Care made a referral
for orthopedic evaluation. She is entitled, therefore, to a second opinion. Hallmark
provided two panels. One panel contained Dr. Duncan, who has already seen Ms.
Rouillier. It appears to the Court that the panel containing Dr. Matthew Wood and Dr.
Jim Brasfield is the appropriate panel from which Ms. Rouillier may choose a physician
for a second opinion.

       Because Ms. Rouillier has come forward with sufficient evidence from which this
Court may conclude she is likely to prevail at a hearing on the merits, her request for
additional medical benefits in the form of a second opinion is granted.

IT IS, THEREFORE, ORDERED as follows:

1. Ms. Rouillier's request for a second opinion is granted. She shall choose Dr. Matthew
   Wood or Dr. Jim Brasfield and return the choice of physician form to Hallmark.
   Hallmark shall schedule the second opinion with the chosen physician.

2. This matter is set for an Initial (Scheduling) Hearing on Aprill9, 2016, at 10:30 a.m.
   Eastern Time.

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 Division by email to WCCompliance.Progranvwtn.gm no later than the

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   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 WCCom1 liar h:l:.J>rounHll ci'ln.gov or by calling (615) 253-
   1471.


       ENTERED this the 17 1h day of March, 2016.


                                           /~~
                                  Judge Brian K. Addington
                                                                                 =
                                  Court of Workers' Compensation Claims

Initial (Scheduling) Hearing:

       A Scheduling Hearing has been set with Judge Brian K. Addington, Court of
Workers' Compensation Claims. You must call toll-free at 855-543-5044 to
participate in the Initial 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. All conferences are set using Eastern Time (ET).


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.

   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

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   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
   apt>eal.

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. Ms. Rouillier's affidavit;
   2. Medical Records: Doctor's Care for March 23, 2015;
   3. Original Panel of Physicians;
   4. Medical Records: Dr. Duncan for April 17, 2015;
   5. Medical Records: Doctor's Care March 23, 2015;
   6. First Panel of Physicians for Second Opinion;
   7. Second Panel of Physicians for Second Opinion;
   8. Wage Statement;
   9. Employer' s Cumulative Medical Records; and,
   10. Employee's Cumulative Medical Records.

Technical Record: 3
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing
   4. Pre-Hearing Order




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 17th day
ofMarch, 2016.

Name                     Certified Mail         Email      Service Sent to:
Rebecca Rouillier,              X                 X        1546 Rocky Hollow Road
Self-Represented                                           Jonesborough, TN 37659
                                                           becca.rouillier_@gmail.com
Eric Shen, Esq.                                   X        eric.shen@libertymutual.com




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