            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD
                (HEARD OCTOBER 11, 2017, AT KNOXVILLE)


Shane Tapley                                  ) Docket No. 2016-05-1050
                                              )
v.                                            ) State File No. 99006-2015
                                              )
Transport National, et al.                    )
                                              )
                                              )
Appeal from the Court of Workers’             )
Compensation Claims                           )
Robert V. Durham, Judge                       )


                   Affirmed and Remanded – Filed October 19, 2017

In this interlocutory appeal, the employer asserts the trial court erred in not designating a
certain physician as an “authorized treating physician” and in not acknowledging a
referral from an authorized physician as a “direct referral” for “pain management”
pursuant to Tennessee Code Annotated section 50-6-204(a)(3)(A)(ii) (2016) or Tennessee
Code Annotated section 50-6-204(j). Upon careful consideration of the record and the
statutes at issue, we affirm the decision of the trial court and remand the case for further
proceedings.

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

A. Allen Grant, Nashville, Tennessee, for the employer-appellant, Transport National

Michael Fisher, Nashville, Tennessee, for the employee-appellee, Shane Tapley

                             Factual and Procedural Background

       Shane Tapley (“Employee”), a forty-eight-year-old resident of Franklin County,
Tennessee, worked for Transport National (“Employer”) as a truck driver and loader. On
December 16, 2015, he suffered pain in his left knee after stepping through a rotten deck
board on a loading dock. Employer accepted his claim as compensable, and Employee
received authorized medical treatment with Dr. Martin Fiala. Following an examination

                                             1
and diagnostic testing, Dr. Fiala diagnosed “traumatic degenerative changes,” a lateral
meniscus tear related to the work accident, and pre-existing arthrosis in the knee.
Employee underwent surgery to repair the torn meniscus and remove loose bodies in the
knee. Thereafter, according to Dr. Fiala’s March 11, 2016 report, Employee’s progress
was “not encouraging.” Over the next several months, although Employee was released
to return to work, he continued to experience significant symptoms in his knee.

       On January 10, 2017, Employee underwent a total knee arthroplasty. In a March
22, 2017 report, Dr. Fiala noted the joint replacement was in “good condition,” but
Employee continued to report significant pain. In an April 12, 2017 report, Dr. Fiala
discussed the possibility that Employee was suffering from complex regional pain
syndrome (“CRPS”) and recommended that Employee be referred to Dr. Jeffrey
Hazlewood “to help aseess [sic] and make RX rec and help manage if he agreed with
CRPS.” Significantly, the report also stated, “FU 1 mo or as soon as approved and
consult with Hazelwood [sic] complete.”

       Employer scheduled an appointment for Employee to see Dr. Hazlewood, but
Employee objected and instead requested a panel of pain management specialists. When
no agreement could be reached on this issue, Employee filed a petition for benefit
determination and, following the issuance of a dispute certificate notice, a motion to
compel a panel of physicians. In the meantime, Employee consented to see Dr.
Hazlewood because, according to Employee, Employer threatened to terminate his
benefits if he missed the appointment. Nevertheless, Employee continued to pursue his
motion to compel Employer to provide a panel of pain management specialists.

       Following a motion hearing, the trial court concluded that: (1) Dr. Fiala’s request
for a “consult” with Dr. Hazlewood did not constitute a referral for pain management
pursuant to Tennessee Code Annotated section 50-6-204(j); (2) Dr. Fiala did not express
any intent to “transfer care” of Employee to another physician; and (3) Dr. Fiala did not
make a “direct referral” to Dr. Hazlewood. Consequently, the trial court did not order
Employer to provide a panel of pain management specialists. Employer has appealed,
arguing the trial court erred in not finding that a “pain management” referral occurred,
not finding a “direct referral” from Dr. Fiala to Dr. Hazlewood, and not identifying Dr.
Hazlewood as an “authorized treating physician.”

                                  Standard of Review

       The standard we apply in reviewing a trial court’s decision presumes that the
court’s factual findings are correct unless the preponderance of the evidence is otherwise.
See Tenn. Code Ann. § 50-6-239(c)(7) (2016) (“There shall be a presumption that the
findings and conclusions of the workers’ compensation judge are correct, unless the
preponderance of the evidence is otherwise.”). However, we review questions of law de
novo with no presumption of correctness. See Am. Mining Ins. Co. v. Campbell, No.

                                            2
M2015-01478-SC-R3-WC, 2016 Tenn. LEXIS 907, at *18 (Tenn. Workers’ Comp. Panel
Dec. 9, 2016) (“A trial court’s conclusions of law are reviewed de novo upon the record
with no presumption of correctness.”). Moreover, the interpretation and application of
statutes and regulations concerns issues of law, which we review de novo with no
presumption of correctness afforded to the trial court’s findings. See Seiber v. Reeves
Logging, 284 S.W.3d 294, 298 (Tenn. 2009); Hadzic v. Averitt Express, No. 2014-02-
0064, 2015 TN Wrk. Comp. App Bd. LEXIS 14, at *9 (Tenn. Workers’ Comp. App. Bd.
May 18, 2015).

                                               Analysis

        The Tennessee Workers’ Compensation law contains several statutory provisions
governing medical benefits. First, Tennessee Code Annotated section 50-6-204(a)(1)(A)
requires an employer to provide injured workers “such medical and surgical treatment . . .
as ordered by the attending physician . . . made reasonably necessary by accident as
defined in this chapter.” Second, injured workers are required to “accept the medical
benefits afforded under this section; 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, surgeons, chiropractors or
specialty practice groups . . . from which the injured employee shall select one (1) to be
the treating physician.” Tenn. Code Ann. § 50-6-204(a)(3)(A)(i).1

        In addition, there are several statutory provisions regarding medical referrals.
Pertinent to this case, section 50-6-204(a)(3)(A)(ii) states that, when appropriate, a
“treating physician selected in accordance with this subdivision (a)(3)(A) shall make
referrals to a specialist physician, surgeon, or chiropractor and immediately notify the
employer.” When such a referral is made, “[t]he employer shall be deemed to have
accepted the referral, unless the employer, within three (3) business days, provides the
employee a panel of three (3) or more independent reputable physicians, surgeons,
chiropractors or specialty practice groups.” Tenn. Code Ann. § 50-6-204(a)(3)(A)(ii).
Moreover, the statute provides that in such cases where the employer provides a panel,
“the employee may choose a specialist, physician, surgeon, chiropractor or specialty
practice group to provide treatment only from the panel provided by the employer. Id.
(emphasis added).

       Finally, section 50-6-204(j) addresses medical referrals in a particular subset of
cases, where the treating physician “determines that pain is persisting for an injured or
disabled employee beyond an expected period for healing.” Tenn. Code Ann. § 50-6-
204(j)(1). In such circumstances, the treating physician may either undertake such care

1
  We also note that the law affords a presumption of correctness to medical causation opinions offered by
treating physicians who are “selected by the employee from the employer’s designated panel of
physicians pursuant to § 50-6-204(a)(3).” Tenn. Code Ann. § 50-6-102(14)(E) (2016).

                                                   3
himself or herself, or “refer such injured or disabled employee for pain management
encompassing pharmacological, nonpharmacological and other approaches to manage
chronic pain.” Id. (emphasis added). If such a referral is made, the employee is entitled
to a panel of pain management specialists as provided in section 50-6-204(j)(2)(A).

       The determinative issue in this case is whether Dr. Fiala, in requesting a “consult”
with Dr. Hazlewood, made a referral for pain management treatment as contemplated in
section 50-6-204(j)(1) and/or made a “direct referral” to a specific physician pursuant to
section 204(a)(3)(A)(ii).2 Although both parties stated during the motion hearing that Dr.
Fiala’s request for a consult with Dr. Hazlewood constituted a referral for pain
management, the trial court disagreed, concluding instead that no such referral had been
made.3 As a result, the trial court found it unnecessary to rule on Employee’s motion to
compel a panel of pain management specialists or to address the arguments of counsel
regarding the correct interpretation of the various statutes concerning medical referrals.
We agree with the trial court.

       The term “referral” is defined in neither the statutes nor the Medical Treatment
Guidelines contained in Tenn. Comp. R. & Regs. 0800-02-25 (2016). Thus, we must
consider the plain and ordinary meaning of that term. See Maupin v. Methodist Med.
Ctr., No. E1999-02181-WC-CV, 2000 Tenn. LEXIS 102, at *4 (Tenn. Workers’ Comp.
Panel Mar. 2, 2000) (“In construing a statute, proper interpretations should give effect to
the entire statute by giving its words their natural and ordinary meaning.”). According to
Black’s Law Dictionary, the term “referral” means “[t]he act or an instance of sending or
directing to another for information, service, consideration, or decision.” Black’s Law
Dictionary (10th ed. 2014). Merriam-Webster defines “referral” as “the process of
directing or redirecting (as a medical case of a patient) to an appropriate specialist or
agency for definitive treatment.” Merriam-Webster Dictionary, https://www.merriam-
webster.com/dictionary/referral#medicalDictionary (last visited Oct. 19, 2017). It is
equally important to consider the plain and ordinary meaning of any particular statutory
language in the broader context of the statute in which it resides. See, e.g., Lee Med., Inc.
v. Beecher, 312 S.W.3d 515, 526 (Tenn. 2010) (“[B]ecause [the words in a statute] are
known by the company they keep, courts must also construe these words in the context in
which they appear in the statute and in light of the statute’s general purpose.”).

       In the present case, Employer argues that the phrase “shall make referrals to a
specialist physician” as used in subsection 204(a)(3)(A)(ii) does not specify the type of
referral being described; therefore, in Employer’s view, all referrals, whether for
treatment, evaluation, consultation, or for any other reason, are governed by this statute.
2
 Employer describes subsection 204(a)(3)(A)(ii) as the “direct referral statute,” although that phrase does
not appear in the statute itself.
3
  During the motion hearing, Employee offered an alternative argument that if Dr. Fiala did not make a
referral for pain management, he had requested a “second opinion.”

                                                     4
Employer further asserts that “it would appear quite obvious that a referral would be
made by a treating physician when he or she sends or directs a patient to another medical
doctor for further evaluation or treatment, as was the case in this instance.”

       However, Employer’s argument implicitly asks us to ignore the rest of that
subsection, which states that in circumstances where an employer provides a panel in
response to a referral from an authorized physician, the employee “may choose a
specialist physician . . . to provide treatment only from the panel provided by the
employer.” Tenn. Code Ann. § 50-6-204(a)(3)(A)(ii) (emphasis added). The words
“opinion,” “consultation,” or “evaluation” appear nowhere in subsection 204(a)(3)(A)(ii).
Thus, when the language on which Employer relies is read in context and in its entirety, it
is reasonable to conclude that it is when an authorized physician makes a referral to a
specialist physician for treatment that the terms of subsection 204(a)(3)(A)(ii) control.4

       Here, Dr. Fiala used both “referral” and “consult” in his April 12, 2017 report.
Although he sought Dr. Hazlewood’s opinion as to whether Employee suffered from
CRPS, he conditioned his request for assistance in the treatment of Employee’s case on
Dr. Hazlewood’s agreement with that potential diagnosis. This interpretation is further
supported by Dr. Fiala’s request that Employee return to his office the following month
or as soon as a “consult with Hazelwood [sic] [is] complete,” indicating he did not intend,
as of that date, to end active treatment or transfer Employee’s care to another physician.
Therefore, we agree with the trial court that Dr. Fiala’s April 12, 2017 report, on which
both parties relied, did not constitute a referral for pain management treatment as
described in Tennessee Code Annotated section 50-6-204(j)(1) and did not fall within
subsection 204(a)(3)(A)(ii).

                                              Conclusion

       Based on the foregoing, we affirm the trial court’s determination and remand the
case for any further proceedings that may be necessary.




4
  We offer no opinion on what the word “treatment” encompasses, but we conclude that, based on the
facts and circumstances presented in this case, it was not error for the trial court to conclude that Dr.
Fiala’s request for an opinion from Dr. Hazlewood as to a particular diagnosis did not constitute a referral
for treatment.

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                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD


Shane Tapley                                             )   Docket No.   2016-05-1050
                                                         )
v.                                                       )   State File No. 99006-2015
                                                         )
Transport National, et al.                               )


                                     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 19th day of October, 2017.
 Name                    Certified   First Class   Via   Fax      Via     Email Address
                         Mail        Mail          Fax   Number   Email

 Michael Fisher                                                     X     mfisher@ddzlaw.com
 A. Allen Grant                                                     X     agrant@eraclides.com
 Robert V. Durham,                                                  X     Via Electronic Mail
 Judge
 Kenneth M. Switzer,                                                X     Via Electronic Mail
 Chief Judge
 Penny Shrum, Clerk,                                                X     Penny.Patterson-Shrum@tn.gov
 Court of Workers’
 Compensation Claims




Jeanette Baird
Deputy Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-0064
Electronic Mail: WCAppeals.Clerk@tn.gov
