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

JIMMY MORRIS,                                )   Docket No: 2017-05-0041
         Employee,                           )
v.                                           )
SPEC PERSONNEL, LLC,                         )   State File Number: 3541-2017
         Employer,                           )
And                                          )
TECHNOLOGY INS. CO.,                         )   Judge Dale Tipps
         Insurance Carrier.                  )
                                             )

             EXPEDITED HEARING ORDER GRANTING BENEFITS


        This matter came before the Court on September 14, 2017, for an Expedited
Hearing. The present focus of this case is whether Mr. Morris is entitled to medical and
temporary disability benefits for his right carpal tunnel syndrome (CTS). The central
legal issue is whether Mr. Morris is likely to establish at a hearing on the merits that his
CTS arose primarily out of and in the course and scope of his employment. For the
reasons set forth below, the Court holds Mr. Morris met this burden and is entitled to
medical benefits, but not temporary disability benefits, at this time.

                                    History of Claim

       Mr. Morris, a truck driver for Spec Personnel, began having pain, numbness and
tingling in his right arm. He reported these problems to his supervisor, Melissa States, on
December 2, 2016. Ms. States and Mr. Morris disagreed as to whether he related his
problems to his work and requested medical treatment when he spoke to her on that date.
However, Ms. States testified that she believed Spec submitted the matter to its workers’
compensation carrier on December 2.

       Spec did not provide a panel of physicians, so Mr. Morris began treating with his
personal physician on December 12. His doctor diagnosed CTS and referred Mr. Morris
to Dr. Muylwa Adedokun on December 27. Dr. Adedokun performed carpal tunnel
release surgery on February 15, 2017. He later responded “yes” to a letter from Mr.

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Morris’ attorney asking whether his CTS arose primarily out of and in the course and
scope of his employment.

       While Mr. Morris treated with his own doctors, he also filed a Petition for Benefit
Determination (PBD) on January 12, which resulted in Spec completing an Employer’s
Report of Injury on January 20. After several weeks, the Mediator closed the matter on
March 13 by issuing a Notice of Mediated Agreement that provided Spec would provide
a panel of physicians “for the purpose of determining causation.” Spec provided that
panel, but Mr. Morris did not make a selection. He subsequently filed an amended PBD
on March 27 seeking medical and temporary disability benefits.

       Mr. Morris requested that the Court award temporary disability benefits and
mileage for his travel to medical appointments, and designate Dr. Adedokun as his
authorized treating physician (ATP).

        Spec countered that Mr. Morris is not entitled to workers’ compensation benefits.
It contended it initially had no duty to provide a panel or other benefits because Mr.
Morris did not make it clear that he was reporting a work injury. Further, Spec argued
that Mr. Morris’ decision to undergo unauthorized surgery while his first PBD was
pending was unreasonable because it was not an emergency procedure. Finally, Spec
contended Mr. Morris should not receive any benefits because his failure to select a
doctor from the panel prejudiced Spec’s ability to evaluate causation. Alternatively, in
the event the Court orders any benefits, Spec argued Mr. Morris should be required to
select an ATP from the proffered panel.

                       Findings of Fact and Conclusions of Law

        Because this case is in a posture of an Expedited Hearing, Mr. Morris need not
prove every element of his claim by a preponderance of the evidence in order to obtain
relief. Instead, he must come forward with sufficient evidence from which this Court
might determine he is likely to prevail at a hearing on the merits. See Tenn. Code Ann. §
50-6-239(d)(1) (2016); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

                                      Compensability

         To prove a compensable injury, Mr. Morris must show that his alleged injury
arose primarily out of and in the course and scope of his employment. To do so, he must
show his injury arose primarily out of a work-related incident, or specific set of incidents,
identifiable by time and place of occurrence. Further, he must show, “to a reasonable
degree of medical certainty that it contributed more than fifty percent (50%) in causing
the . . . disablement or need for medical treatment, considering all causes.” “Shown to a
reasonable degree of medical certainty” means that, in the opinion of the treating

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physician, it is more likely than not considering all causes as opposed to speculation or
possibility. See Tenn. Code Ann. § 50-6-102(14).

        Applying these principles, the Court first finds that Spec presented no material
proof to contradict Mr. Morris’ claim that he began suffering right arm pain and
numbness while driving on December 2. In fact, Ms. States believed Spec reported this
claim to its carrier on the same date. Further, the Employer’s Report of Injury noted
December 2 as the injury date and stated, “He was driving a truck and started
experiencing numbness right hand.” Thus, Mr. Morris established a specific incident,
identifiable by time and place. The question to be resolved, therefore, is whether he
appears likely to prove at a hearing on the merits that his work was the primary cause of
the injury. The Court finds that Mr. Morris is likely to meet this burden.

      The only medical proof regarding causation was Dr. Adedokun’s opinion that Mr.
Morris’ CTS arose primarily out of his employment. Spec attacked Dr. Adedokun’s
opinion asserting that it is biased but presented no actual proof of bias. Perhaps more
importantly, Spec presented no evidence to counter Dr. Adedokun’s causation opinion.
Absent any evidence to the contrary, Mr. Morris appears likely to prevail at a hearing on
the merits that his workplace accident was the primary cause of his injury.

                                    Medical Benefits

        The Court now addresses Mr. Morris’ request for medical benefits. Under the
Workers’ Compensation Law, “the employer or the employer’s agent shall furnish, free
of charge to the employee, such medical and surgical treatment . . . made reasonably
necessary by accident[.]” Tenn. Code Ann. § 50-6-204(a)(1)(A). Employers are also
required to offer a panel of physicians “from which the injured employee shall select one
(1) to be the treating physician.” See Tenn. Code Ann. § 50-6-204(a)(3)(A)(i).

        Although Spec eventually provided a panel of physicians, it failed to do so within
a reasonable time. Instead, it offered the panel over three months after the injury, over
two months after Mr. Morris began treating with his personal physicians, and a month
after he already underwent surgery. Therefore, Spec must pay for the medical expenses
Mr. Morris incurred as a result of its failure to comply with its statutory duty to provide
treatment. See McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App.
Bd. LEXIS 6, at *13 (Mar. 27, 2015) (“an employer who elects to deny a claim runs the
risk that it will be held responsible for medical benefits obtained from a medical provider
of the employee’s choice”).

       Spec made several contrary arguments, but the Court finds them unpersuasive.
The first of these, that Spec had no duty to provide a panel because Mr. Morris did not
make it clear that he was reporting a work injury, is belied by several facts. As noted
above, it appears likely that Mr. Morris, in fact, reported a work injury on December 2.

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Even if this were not so, Ms. States testified that she discussed the claim with Spec’s
workers’ compensation carrier between December 2 and January 20. Finally, at a
minimum, any confusion as to Mr. Morris’ claim would have been resolved by the PBD
filing on January 20. In spite of this, Spec still failed to provide a panel for two months
after the PBD filing.

        Spec’s second argument involved Mr. Morris’ decision to undergo surgery while
his first PBD was pending. It contended this was unreasonable because it was not an
emergency procedure. The inference appears to be that, once an employee files a PBD,
he should not continue with his unauthorized medical treatment until that PBD is
resolved. Spec submitted no authority for the proposition that a pending PBD somehow
tolls an employer’s duty to provide panel or other benefits. Instead, the opposite appears
to be true to this Court – a PBD filing should actually focus an employer on satisfying its
statutory duties in a timely manner. An employer cannot simply assume an employee
will suspend treatment or postpone surgery when he files a PBD, especially when the
employer’s denial of treatment is what forced him to seek assistance with the Bureau in
the first place.

       Next, Spec contended Mr. Morris should not receive any benefits because his
failure to select a doctor from the panel prejudiced Spec’s ability to evaluate causation.
This argument is specious because Mr. Morris had already undergone surgery long before
Spec ever offered a panel. Mr. Morris incurred his medical expenses during the period
when he was trying to get Spec to provide the panel it was legally required to offer. His
refusal to select a doctor from the belated panel “for the purpose of determining
causation” did not cause the unapproved treatment, nor has Spec demonstrated any actual
prejudice to its ability to seek contrary causation opinions going forward.1

       Finally, in the event the Court orders any benefits, Spec argued Mr. Morris should
be required to select an ATP from the proffered panel. Spec characterized Mr. Morris’
refusal to select a physician as a “flagrant refusal to comply with the rules” and urged that
he should “be required to follow the proper channels.” In view of Spec’s handling of Mr.
Morris’ claim, this is a remarkable argument. Spec contended it never denied Mr.
Morris’ claim, and this appears to be true. However, whether it somehow failed to
investigate the claim or merely ignored it, Spec’s three-month failure to take any action
effectively operated as a denial and forced Mr. Morris to seek his own treatment. Its
claim that the delay occurred because “nobody knew what caused the condition” is
irrelevant to Spec’s statutory duty to offer a panel, especially since compliance with this
duty would have provided the very information Spec contended it needed. Further, this
argument overlooks the well-established principle that when an employer initially fails to
provide a panel, the employer cannot belatedly seek to control selection of the treating

1
 The Court also notes that it is not altogether clear whether a panel offered solely for “for the purpose of
determining causation” would satisfy the requirements of Tenn. Code Ann. § 50-6-204(a)(3)(A)(i).
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physician by the late provision of a panel. See Lambert v. Famous Hospitality, Inc., 947
S.W.2d 852 (Tenn. 1997). Spec insisted Lambert is inapplicable because it involved a
claim where the employer denied the claim. This is a distinction without any difference
because, as already noted, Spec effectively denied Mr. Morris’ claim when it took no
action whatsoever. The Court therefore declines to require a panel selection and
designates Dr. Adedokun as Mr. Morris’ ATP.

        As for Mr. Morris’ claim for mileage, he submitted no itemization or other
information regarding his mileage expenses. This means that, even though he appears
likely to prove entitlement to payment of past medical benefits, including any qualifying
mileage reimbursement, the Court cannot enter an order for that reimbursement at this
time.

                              Temporary Disability Benefits

       Mr. Morris also seeks payment of temporary disability benefits. An injured
worker is eligible for temporary total disability (TTD) benefits if: (1) the worker became
disabled from working due to a compensable injury; (2) there is a causal connection
between the injury and the inability to work; and (3) the worker established the duration
of the period of disability. Jones v. Crencor Leasing and Sales, TN Wrk. Comp. App.
Bd. LEXIS 48, at *7 (Dec. 11, 2015). Temporary partial disability (TPD) benefits are a
category of vocational disability distinct from temporary total disability and are available
when the temporary disability is not total. See Tenn. Code Ann. § 50-6-207(2).

       Mr. Morris submitted no medical records stating that his physicians took him off
work or assigned any temporary work restrictions. Without evidence that he was totally
or partially disabled from working, Mr. Morris has not proven he is likely to succeed on a
claim for TTD or TPD benefits at a hearing on the merits.

IT IS, THEREFORE, ORDERED as follows:

   1. Spec shall provide Mr. Morris with medical treatment made reasonably necessary
      by his December 2, 2016 injury in accordance with Tennessee Code Annotated
      section 50-6-204. The Court designates Dr. Adedokun as the authorized treating
      physician.

   2. Mr. Morris’ requests for mileage and temporary disability benefits are denied at
      this time.

   3. This matter is set for a Scheduling Hearing on October 31, 2017, at 9:00 a.m. The
      parties must call 615-741-2112 or toll free at 855-874-0473 to participate. Failure
      to call in may result in a determination of the issues without the parties’
      participation. All conferences are set using Central Time (CT).

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   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).
      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 WCCompliance.Program@tn.gov.

      ENTERED this the 21st day of September, 2017.



                                  _____________________________________
                                  Judge Dale Tipps
                                  Court of Workers’ Compensation Claims


                                      APPENDIX

Exhibits:
   1. Indexed medical records
   2. Employer’s Report of Injury
   3. Choice of Physician form
   4. Notice of Mediated Agreement
   5. Affidavit of Melissa States
Technical record:
   1. Petitions for Benefit Determination
   2. Dispute Certification Notice
   3. Request for Expedited Hearing




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                             CERTIFICATE OF SERVICE

        I hereby certify that a true and correct copy of the Expedited Hearing Order was
sent to the following recipients by the following methods of service on this the 21st day of
September, 2017.


 Name                      Certified    Via        Via    Service sent to:
                            Mail        Fax       Email
 Robyn Lee                                          X     rlee@alexandershunnarlaw.com

 Tiffany Sherrill                                  X      tbsherrill@mijs.com




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




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