            TENNESSEE BUREAU OF WORKERS’ COMPENSATION
               WORKERS’ COMPENSATION APPEALS BOARD


Wayne Timothy Newell                        )   Docket No. 2015-05-0091
                                            )
v.                                          )
                                            )   State File No. 88987-2014
Metro Carpets, LLC, et al.                  )
                                            )
                                            )
Appeal from the Court of Workers’           )
Compensation Claims                         )
Dale Tipps, Judge                           )


                   Affirmed and Remanded – September 28, 2016

In this interlocutory appeal, the employee’s authorized treating physician declined to
offer further treatment for the employee’s shoulder and knee conditions. The employer
asserted it was no longer responsible for providing medical benefits because the
employee misrepresented his pre-existing knee condition to the authorized treating
physician and because the employee sabotaged his relationship with the physician. The
trial court ordered the employer to add another physician to the original panel or provide
a new panel of orthopedic physicians for the employee to select a new treating physician
for his compensable shoulder condition. The employer has appealed. We affirm the trial
court’s determination and remand the case for any further proceedings that may be
necessary.

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

Michael L. Haynie, Nashville, Tennessee, for the employer-appellant, Metro Carpets,
LLC

Julie Reasonover, Nashville, Tennessee, for the employee-appellee, Wayne Timothy
Newell




                                            1
                                     Memorandum Opinion1

       Wayne Timothy Newell (“Employee”),2 a resident of Williamson County,
Tennessee, suffered a compensable work accident on November 10, 2014 when he fell
from the back of a truck. He received authorized treatment for various injuries, including
injuries to the left knee, left shoulder, and low back, from Dr. Robert Clendenin and Dr.
W. Blake Garside, among others.

       During the first several months of treatment, Employee did not inform Dr. Garside
of a prior injury to his left knee that had resulted in surgery and permanent medical
impairment in 2006. Employee testified during the expedited hearing that his prior left
knee injury occurred as part of a North Carolina workers’ compensation claim involving
multiple injuries and that he did not recall the left knee injury until several months after
he began treating with Dr. Garside. In April 2015, soon after undergoing shoulder
surgery performed by Dr. Garside, Employee posted a message on social media that was
sharply critical of Dr. Garside as a physician.

        On December 16, 2015, Dr. Garside executed an affidavit setting out his medical
opinions concerning the cause of employee’s left shoulder and left knee conditions.
While Dr. Garside opined that the left shoulder condition arose primarily out of and in the
course and scope of Employee’s employment, he concluded that Employee had a
previous left knee injury resulting in surgery and residual permanent impairment, and that
his pre-existing knee condition did not arise primarily from his November 10, 2014 work
injury. He released Employee from his care as of October 13, 2015, with no work
restrictions.

      On August 3, 2016, Dr. Garside issued a report in which he concluded, “[b]ased
on [Employee’s] objective findings at his last evaluation of October 13, 2015, and
previous discrepancy between patient history and objective medical records, I do not feel
an objective doctor/patient relationship is possible, and I am therefore declining to see
him for reevaluation.” Thereafter, Employee requested an expedited hearing, seeking a
new panel of orthopedic physicians for treatment of his left shoulder condition.

       Following an expedited hearing, the trial court issued an order requiring Employer
to either replace Dr. Garside on the original panel or provide a new panel of orthopedic

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.
2
  The record on appeal and documents filed with the Appeals Board identify Employee both as “Timothy
Wayne Newell” and “Wayne Timothy Newell.” In his testimony at the expedited hearing, Employee
testified his full name is “Wayne Timothy Alfred Newell.” We refer to him as “Wayne Timothy Newell.”
                                                   2
physicians for employee to select a new treating physician for his compensable left
shoulder injury. Employer has appealed.

       Employer’s primary argument on appeal is that “[Employee’s] conduct, including
his rant on social media, rises to the level of medical noncompliance, which merits
termination of his right to medical benefits.” Employer offers no legal authority to
support its position and we have found none. Instead, Tennessee Code Annotated section
50-6-204(d)(8) provides as follows:

      If the injured employee refuses to comply with any reasonable request for
      examination or to accept the medical or specialized services that the
      employer is required to furnish under this chapter, the injured employee’s
      right to compensation shall be suspended and no compensation shall be due
      and payable while the injured employee continues to refuse.

Tenn. Code Ann. § 50-6-204(d)(8) (2015) (emphasis added). Since at least 1940, the
Tennessee Supreme Court has interpreted this provision to mean that in circumstances
where an employee is noncompliant with medical treatment, “compensation shall be held
in abeyance, not terminated.” Blevins v. Pearson Hardwood Flooring Co., 144 S.W.2d
781, 783 (Tenn. 1940); see also Hughes v. All Weather Insulation Co., 394 S.W.2d 638
(Tenn. 1965) (employee’s refusal to undergo recommended surgery supported suspension
of compensation). Similarly, in circumstances where an authorized physician declines to
see an injured worker, such employee can request additional authorized treatment from
the employer. See, e.g., Bruce v. Tecumseh Prods. Co., No. 02-S-01-9604-CV-00042,
1997 Tenn. LEXIS 32 (Tenn. Workers’ Comp. Panel Jan. 23, 1997) (after release by
authorized treating physician, employee was justified in seeking treatment from her
personal physician when her employer declined to provide further medical treatment).

       In Rader v. Hurd Lock and Mfg. Co., No. 40, 1990 Tenn. LEXIS 427 (Tenn. Nov.
19, 1990), the employee reported a work-related knee injury and received treatment from
an authorized physician. Id. at *1-2. Thereafter, the employee expressed dissatisfaction
with her authorized physician, who then refused to see her. Id. at *9. The employer
declined the employee’s request for a second opinion, so she sought treatment on her
own. Id. at *9-10. On appeal, the Tennessee Supreme Court concluded that “under the
circumstances of this case the plaintiff was entitled to seek other medical services.” Id.

       In the present case, there is no evidence that Employee refused to comply with any
reasonable request for examination; nor is there evidence that Employee refused to accept
the medical or specialized services Employer was required to furnish. Although
Employee admitted he failed to inform Dr. Garside of his pre-existing left knee injury,
that failure in no way impacted the compensability of his left shoulder condition for
which he currently seeks medical treatment. Under the circumstances, we find no merit
in Employer’s argument that Employee’s strained relationship with Dr. Garside, and/or

                                            3
Dr. Garside’s subsequent refusal to evaluate or treat him, justifies a termination of the
medical benefits to which Employee is otherwise entitled pursuant to Tennessee Code
Annotated section 50-6-204.

        Finally, we conclude that Employer’s appeal, though not successful, was not
frivolous or taken solely for delay. Therefore, we deny Employee’s request for attorney’s
fees in accordance with Tenn. Comp. R. & Regs. 0800-02-22-.04(6) (2015).

                                      Conclusion

        We conclude that the evidence supports the trial court’s determination that
Employee is entitled to select a new authorized physician for treatment of his
compensable left shoulder condition. We therefore affirm the trial court’s order and
remand the case for any further proceedings that may be necessary. Employee’s request
for attorney’s fees is denied.




                                           4
                       TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                         WORKERS’ COMPENSATION APPEALS BOARD

Wayne Timothy Newell                                     )   Docket No.    2015-05-0091
                                                         )
v.                                                       )   State File No. 88987-2014
                                                         )
Metro Carpets, LLC, 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 28th day of September, 2016.
 Name                    Certified   First Class   Via   Fax       Via      Email Address
                         Mail        Mail          Fax   Number    Email

 Julie Reasonover                                                    X      julie@jstillman.com
 Michael L. Haynie                                                   X      mhaynie@manierherod.com
 Dale Tipps, 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: Matthew.Salyer@tn.gov
