     FILED
    Jan 07, 2019
   09:16 AM(ET)
 TENNESSEE COURT OF
WORKERS' COMPENSATION
       CLAIMS
treat under workers' compensation. After an in-person hearing, the Court ordered OMH
to provide a compliant psychiatric panel. OMH did so, and Mr. Newton selected
Knoxville psychiatrist Dr. John Robertson.

       Mr. Newton saw Dr. Robertson on September 16, 2018. Dr. Robertson diagnosed
post-traumatic stress disorder and ordered: "Psychotherapy twice weekly with trauma
focus and EMDR therapy." When OMH failed to provide a panel of psychotherapists
after two months, Mr. Newton requested an on-the-record Expedited Hearing seeking a
psychotherapist panel. 2

       OMH contended that Mr. Newton did not establish that Dr. Robertson was not
providing, or would not provide, the psychotherapy described in his order. It further
contended it does not owe Mr. Newton a panel of psychotherapists because the law limits
treatment of psychological injuries to that provided by psychiatrists or psychologists.

                         Findings of Fact and Conclusions of Law

       Mr. Newton is entitled to a panel of psychotherapists if he shows he is likely to
prevail at a hearing on the merits in establishing his entitlement to the requested panel.
McCord v. Advantage Human Resourcing, 2015 1N Wrk. Comp. App. Bd. LEXIS 6, at
*7-8, 9 (Mar. 27, 2015). Here, the unrebutted evidence shows that the authorized treating
psychiatrist ordered Mr. Newton to undergo psychotherapy. However, OMH contends
that Mr. Newton did not meet his burden of proof because he failed to establish that ( 1)
Dr. Robertson is unwilling to provide the prescribed psychotherapy, and (2) Dr.
Robertson's psychotherapy order is not expressly limited to therapy by a psychiatrist or
psychologist.

       Tennessee Code Annotated subsection 50-6-204(a)(1)(A) (2018) provides that the
employer "shall furnish, free of charge to the employee, such medical and surgical
treatment . . . including . . . psychological services as ordered by the attending
physician[.]" (Emphasis added.) In addition, Tennessee Code Annotated subsection 50-
6-1 02(h) limits treatment for work-related psychological injuries to that "rendered only
by psychologists and psychiatrists[.]"

        OMH has denied the psychotherapy ordered by Dr. Robertson, the authorized
treating psychiatrist, for three and one-half months. Its reason is alleged ambiguities in
the doctor's handwritten order. However, OMH submitted no evidence to support its
claim that Dr. Robertson's order is fata11y ambiguous. OMH likewise introduced no
evidence that it made any effort to clarify the alleged ambiguities.


2
 Mr. Newton filed a separate Request for Expedited Hearing seeking temporary disability benefits. He
withdrew it after OMH agreed to pay benefits from the date of injury.

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       The Court holds that Mr. Newton will likely prevail at a hearing on the merits that
Dr. Robertson ordered Mr. Newton to undergo psychotherapy from a provider other than
Dr. Robertson himself. Mr. Newton's affidavit indicated that he understood the
psychotherapy order included a referral to a provider other than Dr. Robertson. This
understanding is logical, in that Mr. Newton lives more than 100 miles away from Dr.
Robertson's office. In any event, OMJ-I could have contacted Dr. Robertson to clarify
any perceived ambiguity, but it did not do so.

       OMH's contention that it had no obligation to act upon Dr. Robertson's order
because he did not specify treatment by a psychiatrist or psychologist is without merit.
Instead, OMH had a duty to make a reasonable effort to compile a panel of psychiatrists
or psychologists from which Mr. Newton could select a provider for the prescribed
psychotherapy. Thus, the Court orders that OMH promptly provide Mr. Newton a panel
of psychotherapists in compliance with the Workers' Compensation Law, and that it
schedule an appointment with the selected provider as soon as possible.

       The Court is troubled by the pattern of delay by OMH and/or its carrier in
providing Mr. Newton the benefits to which he is entitled. Mr. Newton was previously
forced to request an Expedited Hearing and participate in an in-person hearing due to
OMJ-I's delay in providing a psychiatric panel. OMH's defense was that it could not
locate three psychiatrists willing to treat Mr. Newton under workers' compensation;
however, it located three psychiatrists willing to treat under workers' compensation after
the Court ordered it to do so. Finally, OMH did not pay temporary disability benefits
until almost a year after Mr. Newton's injury, and then only after he requested an
Expedited Hearing.

       Here, OMH's delay in providing a psychotherapy panel forced Mr. Newton to
again seek relief from the Court. This delay was lengthened by OMJ-I' s request for
additional time to submit responsive evidence, which the Court granted, but OMH did not
use.

       Tennessee Code Annotated section 50-6-118(a)(ll) provides that "[t]he bureau of
workers' compensation shall ... establish and collect penalties for ... [the] [f]ailure of
any employer to timely provide medical treatment made reasonably necessary by the
accident and recommended by the authorized treating physician[.]" Here, OMH failed to
timely provide treatment recommended by the authorized physician, and the Court refers
the case to the Bureau's Compliance Unit for consideration of a penalty.




                                            3
IT IS THEREFORE ORDERED THAT:

  1. OMH and/or its carrier shall promptly provide a panel of psychiatrists or
     psychologists for psychotherapy. After Mr. Newton's selection, OMH and/or its
     carrier shall immediately schedule an appointment.

  2. This matter is referred to the Compliance Unit of the Bureau of Workers'
     Compensation for assessment of a penalty in the amount it deems appropriate to
     address OMH's delay in providing the services prescribed by Dr. Robertson.

  3. This matter is set for a Status Hearing at 10:00 a.m. Eastern Standard Time on
     March 1, 2019. The parties must call (615) 741-3061 or toll-free at (855) 747-
     1721 to participate in the Status Hearing. Failure of a party to call may result in a
     determination of the issues without that party's further participation.

  4. 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)
     (2018). The Insurer or Self-Insured Employer must submit confirmation of
     compliance      with    this     Order    to   the    Bureau     by    email     to
     WCCompliance.Program@tn.gov no later than the 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.

  5. For questions regarding compliance, please contact the Workers' Compensation
     Compliance Unit via email at WCCompliance.Proo;-ram@ln .go or by calling
     (615) 253-1471 or (615) 532-1309.

     ENTERED January J, 2019.




                                 Court of Workers' Compensation Claims




                                           4
                                     ADDENDUM

Technical Record:
          1. Petition for Benefit Determination
          2. Dispute Certification Notice
          3. Expedited Hearing Order for Medical Benefits
          4. Request for Expedited Hearing (On-the Record Decision)-Medical Benefits

Exhibits:
            1. Affidavit of Cameron Newton
            2. Typed statement of Cameron Newton
            3. Written psychotherapy order of Dr. John Robertson

                                  Certificate of Service

       I certify that a true and correct copy of the Order was sent to the following
recipients by the following methods of service on Januarf1, 2019:

            Name              Certified Fax     Email      Service sent to:
                              Mail
Christopher Markel,                                X       cmarkel@markelfum.com
Employee's Attorney
L. Blair Cannon,                                   X       blair.cannon@thehart ford.com
employer's attorney,
Employer's Attorney
Compliance Unit                                    X       Wccomp_liance.orogram@tn. e.ov



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