                IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                        AT COOKEVILLE BY INTERCHANGE

Bryne Hill,                                                  )    Docket No.: 2015-02-0197
                     Employee,                               )
v.                                                           )    State File No.: 49978-2014
                                                             )
Cocke County Hwy. Dept.,                                     )
           Employer.                                         )    Judge Robert Durham


                EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS


    · THIS CAUSE came before the undersigned Workers' Compensation Judge upon
the Request for Expedited Hearing filed by the employee, Bryne Hill, on October 20,
2015, pursuant to Tennessee Code Annotated section 50-6-239 (2014) to determine if the
employer, Cocke County Highway Department (Cocke County), is obligated to provide
additional medical benefits.

       The dispositive issue is whether the law requires Mr. Hill to continue treating with
Dr. Luke Madigan as his authorized treating physician. The Court finds the evidence
submitted by Mr. Hill is sufficient to establish he is likely to prevail on the issue of
receiving authorized medical care from Dr. Patrick Bolt at a hearing on the merits. 1

                                                 History of Claim

        Mr. Hill is a thirty-nine-year-old resident of Cocke County, Tennessee who
worked as a heavy equipment operator for the Cocke County Highway Department.
(T.R. at 1.) Mr. Hill testified that on July 1, 2014, he attempted to dismount from his
road grader when his foot, slippery from oil, slid off the back tire, causing him to fall to
the ground five feet below. Mr. Hill felt immediate pain in his low back, which he
reported to his supervisor. Tammy Holdway, administrative assistant for Cocke County,
testified she provided Mr. Hill with a panel of authorized physicians from which he chose
Dr. Michael Hood. (Ex. 7 at 1.)


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    Additional information regarding the technical record and exhibits is attached to this Order as an Appendix.

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       Mr. Hill saw Dr. Hood on the day of the accident, complaining of low back pain.
(Ex. 1 at 151.) Dr. Hood diagnosed him with a low back sprain, recommended Advil and
Tylenol, and took him off work for a week. (Ex. 1 at 148.) Dr. Hood did not recommend
physical therapy. (Ex. 1 at 151.)

       Mr. Hill returned to Dr. Hood on July 8, complaining of low back pain radiating
into his legs. (Ex. 1 at 143.) Dr. Hood ordered an MRI to rule out a disc problem and
prescribed Prednisone and Hydrocodone for pain relief. He also kept Mr. Hill off work
for another two weeks. (Ex. 1 at 145.) Mr. Hill underwent the MRI on July 17. It
revealed degenerative changes at L5-S 1 without obvious nerve root impingement, as well
as mild disc protrusions at L3-L4 and L4-L5, also without evidence of any impingement.
(Ex. 1 at 152.)

        Dr. Hood saw Mr. Hill again on July 22. (Ex. 1 at 140.) Mr. Hill told Dr. Hood
the pain radiating from his back to his legs was the same, and the prescribed Prednisone
aggravated a boil in his armpit. /d. Dr. Hood opined that the boils precluded the use of
prednisone or epidural steroid injections. (Ex. 1 at 142.) He also opined surgery would
not be helpful, and did not recommend any referrals, except for a second opinion if
desired. /d. He prescribed conservative care, including muscle relaxers and NSAIDs,
and stated it would probably take two months for the condition to resolve. /d. Mr. Hill
testified Dr. Hood took him off work for another month.

        Shortly before the July 22 appointment, Kathy Kinard, adjuster for Cocke
County's insurer, retained Rhoe Saporito, R.N. to act as nurse case manager for Mr.
Hill's claim. (Ex. 6 at 1.) On July 22, after Mr. Hill's appointment, Ms. Saporito
contacted Dr. Hood to speak with him . about Mr. Hill's condition. (Ex. 6 at 3.)
According to her notes, Ms. Saporito, "questioned treatment and Dr. Hood indicated
nothing and he can return in one month indicating it can take 2-3 months for MMI.
Again, CM questioned treatment and RTW status, and Dr. Hood said he will evaluate at
his follow-up appointment." /d. Ms. Saporito then contacted Ms. Kinard and relayed her
conversation with Dr. Hood. Ms. Kinard asked Ms. Saporito to contact Dr. Hood again
"with regards to treatment plan." /d.

        The next day, Ms. Saporito contacted Dr. Hood's office again to discuss his
treatment plan. (Ex. 6 at 4.) At the hearing, Ms. Saporito denied that she called to
persuade Dr. Hood to order physical therapy, but stated she simply wanted him to clarify
his treatment plan. According to her notes, she spoke to Dr. Hood after waiting for some
time on the telephone, and he told her he felt physical therapy would be appropriate, but
he did not think the carrier would approve it. /d. Ms. Saporito requested he send an
order for therapy, and Dr. Hood complied. !d.

       Mr. Hill underwent several physical therapy visits, but informed Ms. Saporito that
he felt his pain increased following therapy. !d. at 6. On August 13, Ms. Saporito

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informed Ms. Kinard that Mr. Hill claimed no improvement from physical therapy. !d.
Ms. Kinard then "advised that Mr. Hill will be forwarded a panel in order to choose an
orthopedic surgeon and he was not improving with therapy, then he can discontinue." !d.
Ms. Kinard further instructed Ms. Saporito to try to schedule an appointment with the
orthopedist by the following week. !d. Mr. Hill testified he received the panel of
orthopedists from Ms. Holdway, but he did not choose right away because he wanted to
do some research.

       On August 15, Ms. Saporito talked with Mr. Hill, who advised her he received the
panel, and, based on his research, he did not like any of the doctors on it. (Ex. 6 at 7.)
Nevertheless, Mr. Hill told her he chose Dr. Patrick Bolt from the panel. !d. However,
Mr. Hill continued to complain, stating he felt he should be able to choose his own
physicians and that, since Dr. Hood did not originally prescribe physical therapy, he
should not have to go. !d. Ms. Saporito informed him that if he did not feel therapy
helped, he did not have to attend. !d. Mr. Hill also continued to complain of pain and
asked for an appointment with Dr. Hood to refill his medication. !d. Ms. Saporito told
him Ms. Kinard would have to authorize such an appointment. !d.

       Later that day, Ms. Saporito contacted Dr. Bolt's secretary, who informed her that
Dr. Bolt would not be available until October. Ms. Saporito then called Ms. Kinard, who
told her she would "replace Dr. Bolt with another physician." !d. Ms. Saporito let Mr.
Hill know, and he asked for the name of the adjuster because he did not feel he was being
treated fairly, since he could not go to the doctor he had selected. (Ex. 3 at 8.)

       On August 18, Mr. Hill signed a Choice of Physician form selecting Dr. Bolt as
his authorized physician. (Ex. 7 at 7.) He also testified he called Dr. Bolt's secretary,
who told him there were appointments available in August. He asserted that, when he
told Ms. Saporito, she became upset. Ms. Saporito denied this, and testified she
contacted Dr. Bolt's office through a conference call with Mr. Hill, and the nurse
informed them those appointments were not for initial visits.

       Later that day, Mr. Hill and Ms. Saporito visited Dr. Hood. Mr. Hill testified Ms.
Saporito and Dr. Hood got into a heated discussion regarding the recommended treatment
plan for Mr. Hill. Ms. Saporito agreed there was a discussion, but denied arguing with
Dr. Hood. According to her notes, Dr. Hood "questioned" the decision to send Mr. Hill
to an orthopedist, and stated he "may need to be seen by Dr. Harris for pain
management/injections." (Ex. 6 at 10.) Dr. Hood noted in his records that, "the advisor
with the patient tells me the history is that he is getting worse and the insurance company
has decided to send him to a specialist since he is getting worse." (Ex. 3 at 137.) Dr.
Hood further noted that, "the insurance company has decided to take this case out of my
hands so I will sign off at this time. I have advised stopping PT since the patient says it is
making to [sic] problem worse." (Ex. 3 at 139.)


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        On August 19, Ms. Saporito spoke with Ms. Kinard, who told her she was adding
Dr. Edward Kahn to the panel. (Ex. 6 at 10.) Mr. Hill stated he wished to do some
research before choosing. Id. In the meantime, Ms. Saporito attempted to obtain an
earlier appointment with Dr. Bolt, but he wished to review the medical records before
agreeing to see Mr. Hill. Id.

        Mr. Hill testified that at some point, both Ms. Kinard and Ms. Saporito told him
that if he did not sign the Choice of Physician form and treat with Dr. Madigan, he would
lose his temporary disability benefits. He further testified he never wanted to see Dr.
Madigan, and he would have been willing to wait to see Dr. Bolt.

       According to Ms. Holdway's affidavit, "Mr. Hill was consistently complaining of
pain. Therefore, when it was learned that an appointment could be obtained with Dr.
Madigan sooner, he was offered a choice to change his authorized treating physician to
Dr. Madigan." (Ex. 7 at 2.) Ms. Holdway then testified she called Mr. Hill to discuss it
with him, and he agreed to see Dr. Madigan and sign a new panel. Id. However, he
never did so. Id.

        Mr. Hill and Ms. Saporito saw Dr. Madigan on September 2. Dr. Madigan
diagnosed Mr. Hill with a lumbar muscle strain and trochanteric bursitis caused by the
fall, and pre-existing spondylolisthesis. (Ex. 4 at 93.) He recommended four weeks of
work hardening. Id. Following the appointment, Mr. Hill confirmed he never signed the
second panel because he was not sure he wanted to treat with Dr. Madigan. (Ex. 6 at 14.)
He asked Ms. Saporito if he could get a second opinion. Id.

        Mr. Hill went through work hardening with little effect. (Ex. 3 at 95.) He
returned to Dr. Madigan on October 2. !d. Dr. Madigan released him at maximum
medical improvement with no restrictions and a one percent impairment. Id. Mr. Hill
testified he did not seek any additional treatment from Dr. Madigan following this
appointment. He further testified he made no attempt to see Dr. Bolt on his own. Mr.
Hill returned to work for Cocke County until his termination in July 2015. He testified
he still experiences back pain that radiates down his right leg, which limits his daily
activities.

       Mr. Hill filed a Petition for Benefit Determination seeking medical benefits. The
parties did not resolve the disputed issues through mediation, and the Mediating
Specialist filed a Dispute Certification Notice. Mr. Hill filed a Request for Expedited
Hearing, and the Court heard the matter on December 9, 2015. At the Expedited
Hearing, Mr. Hill asserted he never signed the second panel and he never voluntarily
chose Dr. Madigan as his authorized physician; therefore, the law entitles him to
treatment by Dr. Bolt. Cocke County countered that while Mr. Hill did not sign the
second panel choosing Dr. Madigan as his authorized physician, he did voluntarily see
him twice, thus making Dr. Madigan the authorized physician pursuant to Tennessee

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Code Annotated section 50-6-204(a)(3)(D)(ii) (2014).

                              Findings of Fact and Conclusions of Law

       The Workers' Compensation Law shall not be remedially or liberally construed in
favor of either party but shall be construed fairly, impartially and in accordance with
basic principles of statutory construction favoring neither the employee nor
employer. Tenn. Code Ann. § 50-6-116 (2014). The employee in a workers'
compensation claim has the burden of proof on all essential elements of a claim. Tindall
v. Waring Park Ass 'n, 725 S.W.2d 935, 937 (Tenn. 1987); 2 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).

       An employee need not prove every element of his or 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 an expedited hearing, an
employee has the burden to come forward with sufficient evidence from which the trial
court can determine that the employee is likely to prevail at a hearing on the merits. !d.
This lesser evidentiary standard "does not relieve an employee of the burden of
producing evidence of an injury by accident that arose primarily out of and in the course
and scope of employment at an expedited hearing, but allows some relief to be granted if
that evidence does not rise to the level of a 'preponderance of the evidence."' Buchanan
v. Car/ex Glass Co., No. 2015-01-0012, 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6
(Tenn. Workers' Comp. App. Bd. Sept. 29, 2015).

        Tennessee Code Annotated section 50-6-204(a)(1)(A) (2014) requires an employer
to provide an employee with "such medical and surgical treatment ... made reasonably
necessary by accident." In order to meet this requirement, the employer must begin by
providing the employee with a panel of physicians from which the employee can choose
a treating doctor. Tenn. Code Ann. § 50-6-204(a)(4)(A) (2014). The parties agree Cocke
County provided a panel of physicians to Mr. Hill on the day of his accident, and he
chose Dr. Hood as his authorized physician. (Ex. 7 at 1.)

      Tennessee Code Annotated section 50-6-204(a)(3)(H) (2014) states: "[a]ny
treatment recommended by a physician or chiropractor selected pursuant to this
subdivision (a)(3) or by referral, if applicable, shall be presumed to be medically

2
  The Tennessee Workers' Compensation Appeals Board allows reliance on precedent from the Tennessee Supreme
Court "unless it is evident that the Supreme Court's decision or rationale relied on a remedial interpretation of pre-
July 1, 2014 statutes, that it relied on specific statutory language no longer contained in the Workers' Compensation
Law, and/or that it relied on an analysis that has since been addressed by the general assembly through statutory
amendments." McCord v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd.
LEXIS 6, at *13 n.4 (Tenn. Workers' Comp. App. Bd. Mar. 27, 2015).

                                                          5
necessary for treatment of the injured employee." Therefore, the law obligates the
employer to follow the treatment regimen recommended by the treating physician unless
there is sufficient evidence to overcome the presumption that the treatment is reasonable
and necessary. !d. Dr. Hood made it clear on July 22 that he felt Mr. Hill's condition
was non-operable, and he recommended conservative care with over-the-counter pain
relievers and NSAIDs and rest. (Ex. 1 at 143.) He took Mr. Hill off work for another
month and specifically declined to make any additional referrals, stating it could take up
to two months for Mr. Hill to recover. !d.

       Ms. Kinard retained Ms. Saporito to act as nurse case manager. From the outset,
Ms. Saporito, at the instruction of Ms. Kinard, repeatedly interfered with Dr. Hood's
treatment of Mr. Hill. While Ms. Saporito vehemently denied she repeatedly called Dr.
Hood to "get him" to order physical therapy, the Court finds it unlikely Dr. Hood would
have done so at this stage without her persistent efforts, at the insistence of Ms. Kinard,
to promulgate a "treatment plan." (Ex. 6 at 4.)

       Ms. Kinard's interference with Dr. Hood's treatment did not end there. When Ms.
Saporito advised her that Mr. Hill was making little progress in physical therapy, Ms.
Kinard decided to provide him with a panel of orthopedists. (Ex. 6 at 6.) There is no
evidence Mr. Hill requested an orthopedist or that Dr. Hood had recommended one. In
fact, Dr. Hood argued with Ms. Saporito about the need for an orthopedist and noted, "the
insurance company has decided to take this case out of my hands so I will sign off at this
time." (Ex. 3 at 137.) The Court finds Dr. Hood did not voluntarily choose to end his
treatment of Mr. Hill, nor did he agree with the decision to send him to an orthopedist.
Ms. Kinard simply decided it was time to move Mr. Hill to another doctor as soon as
possible, and directed Ms. Saporito to schedule an appointment for him by the following
week. !d.

       Mr. Hill eventually chose Dr. Bolt from the panel provided. (Ex. 6 at 7.) When
Ms. Saporito discovered Dr. Bolt had no available appointments until October, she called
Ms. Kinard, who told her she would "replace Dr. Bolt with another physician." !d. Mr.
Hill became upset at this development because he could not go to the doctor he selected.
(Ex. 3 at 8.) Furthermore, he still signed the original choice of physician form selecting
Dr. Bolt, even though he knew Ms. Kinard planned to send him another panel. (Ex. 7 at
7.) Finally, Mr. Hill declined to sign the revised panel naming Dr. Madigan as his
authorized physician because he was not sure he wanted to treat with him. (Ex. 6 at 14.)

        The Court finds Mr. Hill did not want to make a choice from another panel. He
testified he never chose Dr. Madigan as his treating physician, and he would have waited
for an appointment with Dr. Bolt. Mr. Hill testified he only saw Dr. Madigan because
Ms. Saporito and Ms. Kinard advised him his temporary disability benefits would be
terminated if he refused. Ms. Saporito denied making such a statement; however, the
Court finds Mr. Hill to be credible on this issue given the weight of corresponding

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evidence.

        The Court finds that on multiple occasions, Ms. Kinard unjustifiably abridged Mr.
Hill's right to treatment from a physician duly selected from a panel in accordance with
Tennessee Code Annotated section 50-6-204(a)(3) (2014). These violations began with
her dissatisfaction with Dr. Hood's course of treatment and her unilateral decision to
remove Mr. Hill from Dr. Hood's care, and culminated with her insistence that Mr. Hill
treat with Dr. Madigan instead of Dr. Bolt.

        In Carter v. Shoney's, Inc., 845 S.W.2d 740, 741 (Tenn. 1992), the employer
initially authorized the employee to seek chiropractic care, but later informed the
chiropractor that it would no longer pay for her services. The trial court ordered the
employer to continue paying for the employee's chiropractic treatment. !d. The Court
found the employer obligated to pay for continuing chiropractic treatment, stating: "[t]he
appellant essentially, and in hindsight, is seeking judicial absolution for its earlier
asserted misjudgment in approving chiropractic treatment by Dr. Ellis. In the absence of
evidence directed specifically to the issue we cannot arbitrarily order that chiropractic
treatment be terminated." !d. at 742.

        Thus, Ms. Kinard could not refuse Mr. Hill's selection of Dr. Bolt from the panel
provided to him by her without Mr. Hill's consent. Perhaps it was "misjudgment" on her
part to include Dr. Bolt on the panel without first checking as to his availability, but that
is insufficient to require Mr. Hill to change the selection to which he is entitled pursuant
to Tennessee Code Annotated section 50-6-204(a)(3). Carter, supra, at 742.

        If Mr. Hill had voluntarily chosen to see Dr. Madigan, Cocke County would be
correct in its assertion that Dr. Madigan would be the authorized physician despite the
fact that Mr. Hill did not sign the second panel. Tenn. Code Ann. § 50-6-204(a)(3)(D)(ii)
(2014). However, the Court finds Mr. Hill never wanted to see Dr. Madigan, and only
agreed to do so because he feared Ms. Kinard would terminate his temporary disability
benefits otherwise. Thus, the Court finds his actions did not "constitute acceptance" of
Dr. Madigan as required by statute. !d. Therefore, Dr. Bolt remains Mr. Hill's
authorized treating physician pursuant to Tennessee Code Annotated section 50-6-
204(a)(3).

 IT IS, THEREFORE, ORDERED as follows:

 1.   Dr. Patrick Bolt is designated as Mr. Hill's authorized treating physician for his
      work-related injury of July 1, 2014, and Cocke County shall pay for any
      reasonable and necessary treatment recommended by Dr. Bolt in accordance with
      Workers' Compensation Law. Should Dr. Bolt decline to treat Mr. Hill, Cocke
      County shall provide a panel of orthopedists from which Mr. Hill may select an
      authorized treating physician.

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   3.   This matter is set for Initial Hearing on January 27, 2016, at 9:00a.m. C.T, 10:00
        a.m.E.T.

 ENTERED THIS THE 18th DAY OF DECEMBER, 2015.



                                4iie.~~
                                   Court of Workers' Compensation Claims


 Initial Hearing:

       An Initial Hearing has been set with Judge Robert Durham, Court of
 Workers' Compensation Claims. You must call 615-253-0010 or toll-free at 866-
 689-9049 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 Central Time (CT).


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
       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

                                             8
   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
   appeal.

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.




                                         9
                                    APPENDIX

Exhibits:

1.    Medical records:
      Benchmark Rehab Partners;
      Knoxville Orthopedic Clinic;
      Knoxville Medical Center;
      Dr. Michael T. Hood;
2.    Affidavit of Bryne Hill;
3.    Affidavit of Tammy Holdway;
4.    Affidavit ofRhoe Saporito, R.N.;
5.    Initial Case Management Note;
6.    Case Management notes; and,
7.    Affidavit of Tammy Holdway with attachments.

Technical Record:

1.    Petition for Benefit Determination;
2.    Mr. Hill's Mediation Statement;
3.    Cocke Co.'s Mediation Statement Reply;
4.    Dispute Certification Notice;
5.    Request for Expedited Hearing;
6.    Transfer Order;
7.    Cocke Co.'s Pre-Hearing Brief;
8.    Cocke Co.'s Witness and Exhibit List; and,
9.    Mr. Hill's Position Statement.




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                            CERTIFICATE OF SERVICE

       I hereby certify that a true and correct copy of the Expedited Hearing Order for
Medical Benefits was sent to the following recipients by the following methods of service
on this the _th
            18 day of December, 2015.

Name                      Certified    Via         Via    Service sent to:
                           Mail        Fax        Email
William Evans                                      X      Williamevansesq@Jgmail .com
Terri Bernal                                       X      TBemal@wimberlylawson.com


                                         Penny Shrum, Clerk of Court
                                         Court of Workers' Compensation Claims
                                         WC.CourtCierk@tn.gov




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