                                                                                     FILED
                                                                                   Mar 27, 2020
                                                                                   02:16 PM(CT)
                                                                                TENNESSEE COURT OF
                                                                               WORKERS' COMPENSATION
                                                                                      CLAIMS




            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
           IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
                          AT MURFREESBORO

WENDY CUNNINGHAM                              )   Docket No.: 2019-05-1358
        Employee,                             )
v.                                            )
                                              )
TRUSTPOINT HOSPITAL, LLC,                     )   State File No.: 48297-2018
         Employer,                            )
                                              )
And                                           )
                                              )
ACE AMERICAN INS. CO.,                        )   Judge Dale Tipps
        Carrier.                              )



                           EXPEDITED HEARING ORDER
                               DENYING BENEFITS
                            (DECISION ON THE RECORD)


       This case came before the Court on March 24, 2020, for an Expedited Hearing on
the record without an in-person hearing. The central legal issue is whether Ms.
Cunningham is likely to establish at a hearing on the merits that she is entitled to return to
her original authorized treating physician (ATP). For the reasons below, the Court holds
Ms. Cunningham is not entitled to the requested benefits.

                                     History of Claim

      While working for Trustpoint on June 15, 2018, a patient assaulted Ms.
Cunningham. She reported an injury, and Trustpoint provided treatment with Dr. Frank
Thomas until he referred her to an orthopedic specialist.

       Following that referral, Ms. Cunningham treated with orthopedic surgeon, Dr.
Lucas Richie, until the following March. Dr. Richie’s treatment included de Quervain’s
release surgery. When Ms. Cunningham complained of continuing pain, Dr. Richie

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referred her for a second opinion.

        On Dr. Richie’s referral, Trustpoint provided a panel of orthopedic specialists, and
Ms. Cunningham selected Dr. Douglas Weikert on February 14, 2019. Dr. Weikert
treated Ms. Cunningham until April 10. At that time, he assessed residual right-wrist
pain following DeQuervain’s release, and her primary complaint was hand and arm
weakness. Dr. Weikert did not feel Ms. Cunningham was a surgical candidate, and he
released her with no permanent restrictions at maximum medical improvement. He also
said, “I will see her back in [the] clinic on an as needed basis from here on out. . . I have
instructed the patient to notify me immediately for any clinical change.”

       Ms. Cunningham began part-time work with a new employer but experienced
panic attacks when left alone with patients. She requested a return Dr. Thomas, but
Trustpoint denied her request. She seeks an Order allowing her to return to Dr. Thomas to
evaluate her need for psychiatric/psychological treatment.

      Trustpoint contends that Dr. Thomas is no longer Ms. Cunningham’s ATP. It
argued that Dr. Weikert remains the authorized provider. It also questions whether Ms.
Cunningham’s psychiatric symptoms are causally-related to her work injury.

      Ms. Cunningham filed an Expedited Hearing request on February 12, 2020.
Trustpoint filed a response opposing a hearing on the record.

        In a March 5 Docketing Notice, the Court determined it was appropriate to decide
the issues in this case upon a review of the written materials and without an evidentiary
hearing. It also identified the written materials it intended to consider and allowed the
parties seven business days to file position statements and any objections to the
admissibility of those materials. Neither party filed an objection, although Trustpoint
filed a position statement.

                       Findings of Fact and Conclusions of Law

      Ms. Cunningham must provide sufficient evidence from which this Court might
determine she is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-6-
239(d)(1) (2019); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App.
Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

        Regarding Ms. Cunningham’s request to see Dr. Thomas as her ATP, the Court
first notes that the parties submitted no proof as to whether she selected Dr. Thomas (or
Dr. Richie) from a panel. However, Ms. Cunningham acquiesced to treatment with Dr.
Thomas and seeks to return to him. Thus, the Court finds that Dr. Thomas was the first
authorized treating physician. The parties do not dispute that he referred Ms.
Cunningham for specialized orthopedic treatment, which eventually led her to Dr.

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Wiekert.

       This type of referral is specifically addressed in Tennessee Code Annotated
section 50-6-204(a)(3)(E):

      In all cases where the treating physician has referred the employee to a
      specialist physician, . . . the specialist physician . . . 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 . . . concludes and the employee has been referred back
      to the treating physician selected by the employee from the initial panel
      provided by the employer[.]

Under this section, Dr. Weikert became the ATP. The question then is whether he
referred Ms. Cunningham back to her first treating physician, Dr. Thomas. The Court
finds that he did not.

       Ms. Cunningham is correct that Dr. Weikert found her to be at maximum medical
improvement and released her with no permanent restrictions. This might meet the “until
treatment concludes” requirement of section 50-6-204(a)(3)(E). However, the statute
requires more than the conclusion of treatment. It also requires a referral back to the
original treating physician. Dr. Weikert made no explicit referral. Further, he said he
would see Ms. Cunningham “on an as needed basis from here on out. . . I have instructed
the patient to notify me immediately for any clinical change.” The Court cannot infer a
referral when the plain meaning of the words indicates his intent to continue treating Ms.
Cunningham if she has additional problems.

       For these reasons, Ms. Cunningham appears unlikely to prevail at trial in
establishing that she is entitled to return to Dr. Thomas at this time. Dr. Weikert remains
her authorized provider, and Ms. Cunningham can return to him for further treatment.

IT IS, THEREFORE, ORDERED as follows:

   1. Ms. Cunningham’s requested relief is denied at this time.

   2. This case is set for a Status Hearing on May 21, 2020, at 9:00 a.m. Please call
      toll-free at 855-874-0473 to participate. Failure to call or appear might result in a
      determination of the issues without your further participation. All conferences are
      set using Central Time.

      ENTERED March 27, 2020.



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                                 _____________________________________
                                 Judge Dale Tipps
                                 Court of Workers’ Compensation Claims


                                    APPENDIX

Exhibits:
   1. Ms. Cunningham’s Rule 72 Declaration Under Penalty of Perjury, including
      medical records contained in Exhibit A.
   2. February 14, 2019 Panel selection of Dr. Weikert.
   3. Exhibits to Trustpoint’s Objection to Request for Expedited Hearing and Decision
      on the Record.

Technical record:
   1. Petition for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing
   4. Ms. Cunningham’s Legal Brief in Support of Petition for Medical Benefits
   5. Trustpoint’s Objection to Request for Expedited Hearing
   6. Ms. Cunningham’s Reply Brief to Objection
   7. Trustpoint’s Position Statement




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                          CERTIFICATE OF SERVICE

      I certify that a copy of the Expedited Hearing Order was sent as indicated on
March 27, 2020.

Name                     Certified    Via      Service sent to:
                          Mail       Email
Christopher D. Markel,                 X       cmarkel@markelfirm.com
Employee’s attorney
Marcia Dawn McShane,                   X       mmcshane@constangy.com
Employee’s attorney



                                      _____________________________________
                                      Penny Shrum, Clerk of Court
                                      Court of Workers’ Compensation Claims
                                      WC.CourtClerk@tn.gov




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