     FILED
    Jul 16, 2019
   02:35 PM(CT)
 TENNESSEE COURT OF
WORKERS' COMPENSATION
       CLAIMS
        Because his pain worsened over the next few days, Mr. Campbell saw Dr.
William DeVries, an orthopedic surgeon, on March 12. Notes from that visit provided
the following history:

       He works as a nurse in the critical care setting. He does a lot of lifting and
       has developed onset of pain involving his right lower extremity that began
       about 5 days ago. . . . He does have a Worker's Compensation claim for
       his back for which he underwent recent treatment.

(Ex. 6 at 1092.) Dr. DeVries diagnosed lumbar arthritis with right lower-extremity
radicular symptoms. Id. He took Mr. Campbell off work until March 26. Id. at 1095.
Dr. DeVries noted "it does appear to be a low back source and he may want to pursue
that through his Worker's Compensation claim." Id. at 1092.

      Mr. Campbell accepted Dr. DeVries's suggestion. On the same day, Mr.
Campbell went to Ten.nova to see the occupational health nurse, Kimber Melton.
According to his affidavit, he completed a 'report of injury" form. 2 Instead of
completing a First Report of Injury with a new date of injury or offering a panel, Ms.
Melton directed him to Tennova's occupational medicine physician, Dr. Huffman. Dr.
Huffman had treated Mr. Campbell for the previous injury to his thoracic spine and mid-
back.

      Dr. Huffman found a new injury, which is unrelated to the February injury. 3 His
medical records characterized the visit as a "WC follow-up." Id. at 551. The records
provided the following history:

        He is here today because he was having severe pain in his [right] hip and
        right lower back ...... [sic] especially when sitting for too long and getting
        in/out of vehicle. He went to see Dr[.] Devries [sic] this morning for his
        hip pain and was told it may be sciatica aggravated by his injury. He states
        that even though the WC claim has been closed, they felt it would be best
        for him to have another FU appointment for this .... [H]e has known lower
        back pain[,] which is managed by PCP.

Id. at 552.      Dr. Huffman diagnosed resolved upper-back injury and "lumbrosacral

2
   Mr. Campbell attempted to introduce a copy of this form into evidence during his rebuttal to Tennova's
 closing argument. Tennova objected in part because the proof phase of the hearing was closed. The
 Court sustained the objection.
 3
   The records are electronically signed by Dr. Bradley Vander Veen. However, Mr. Campbell testified
 that he saw Dr. Huffman. The parties said they believe Dr. Vander Veen is also associated with Premier
 Medical Group.
                                                    2
radiculitis - this is new and would not be related to the prior thoracic injury.
Recommend he follow up with PCP and/or ortho for continued treatment, work
restrictions etc." Id. at 553 (Emphasis added).

       On a separate form that states "DOI 2/8/18," Dr. Huffman wrote that he examined
Mr. Campbell for lumbar radiculitis. Id. at 555. He noted "[m]od duty per orthopedics"
and assigned no specific restrictions. On the same form, Dr. Huffman wrote, "This
current episode can not [sic] be considered work related due to the Feb 8, 2018 incident[,]
which was only Thoracic in nature." Id. Mr. Campbell took the restriction notes from
Drs. DeVries and Huffman back to Tennova, which took him off the work schedule.

        Mr. Campbell continued treating with Dr. DeVries, who discharged him with
lifting restrictions at the end of April. Id. at 1056. The notes do not contain an
impairment rating. Mr. Campbell did not think he could safely perform his work duties
with the restrictions, so he retired.

       Mr. Campbell filed a Petition for Benefit Determination on February 11, 2019.
Tennova filed a First Report of Injury on February 18. Notably, the First Report
completed by Ms. Melton listed the date Tennova received notice of the injury as March
12, 2018. It denied the claim on February 28, 2019.

       Before the denial, Mr. Campbell gave a recorded statement to the carrier. Due to
questions about the accuracy of a typed transcript of that recording, Tennova introduced
the actual recording as evidence. Post-hearing, the Court listened to the recording.

        The recording revealed that Mr. Campbell told the adjuster he reported the injury
on March 12, 2018. He recalled that at the March 12 visit with Dr. DeVries, "I told him
that I'd been suffering pain over a period of days, that work had aggravated the pain."
Mr. Campbell further stated that he went to Tennova after this visit and saw Ms. Melton.
He told the adjuster he "filled out an evaluation form [or] a report of injury form."

       On cross-examination during the hearing, Mr. Campbell conceded that no specific
incident caused his pain in March 2018. He acknowledged a diagnosis of osteoarthritis in
2013 and back surgery in February 2017. Further, Mr. Campbell confirmed he sought
treatment for low-back pain and other conditions with his primary care doctor before
March 2018 and that he had made two pi-evious workers ' compensation claims. 4 He said
his job duties brought on regular "aches and pains," but the March 5 pain was of greater
severity and to specific body parts. Mr. Campbell agreed that no physician said that his
March 5 injury arose primarily out of employment with Tennova.


 4
     These claims were the February 2018 thoracic back injury and a knee injury in November 2014.


                                                      3
      Mr. Campbell introduced medical bills and a recap of his mileage from his past
treatment for the March 2018 injury into evidence without objection from Tennova.

       Tennova raised a notice defense. It contended that when Mr. Campbell came to
Tennova on March 12, he did not report a new injury. Tennova additionally argued that
Mr. Campbell did not allege a specific incident that caused his injury, the injury was pre-
existing, and no physician stated that Mr. Campbell's condition arose primarily out of his
employment. As for the medical bills and mileage, Tennova argued that, because it
contests compensability, payment at the interlocutory stage is inappropriate.

                       Findings of Fact and Conclusions of Law

       Mr. Campbell must present sufficient evidence that he is likely to prevail at a
hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(l) (2018); McCord v.
Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Mar. 27, 2015).

                                          Notice

      The Court first turns to Tennova's notice defense. Tennova contended that Mr.
Campbell did not characterize his condition as a new injury during the March 12, 2018
conversation with Ms. Melton. Importantly, Tennova did not call Ms. Melton as a
witness.

       Thus, the issue turns, in part, on Mr. Campbell's credibility. In Kelly v. Kelly, 445
S.W.3d 685, 694-695 (Tenn. 2014), the Tennessee Supreme Court instructed trial courts
to consider whether a witness is "calm or agitated, at ease or nervous, self-assured or
hesitant, steady or stammering, confident or defensive, forthcoming or deceitful,
reasonable or argumentative, honest or biased." The Court observed Mr. Campbell's
demeanor and finds he was calm, at ease, self-assured, steady, confident, forthcoming,
reasonable and honest.

         Although Mr. Campbell offered no written proof that he told Ms. Melton he
 suffered a new injury in their March 12 conversation, his affidavit states that he
 completed an injury report at that time. He also told the adjuster that he reported the
 injury on March 12, which Ms. Melton wrote on the First Report of Injury. Further,
 although Tennova disclosed Ms. Melton as a potential witness, it did not call her to
 testify. Tennessee law supports a finding that the failure of a party to call a witness
 peculiarly within its power to produce, and whose testimony "would naturally be
 favorable" to it, "creates an adverse inference that the testimony would not favor his
 contentions." State v. Middlebrooks, 840 S.W.2d 317, 334 (Tenn. 1992) (superseded by
 statute on other grounds). Therefore, the Court finds Tennova received timely notice of
 the new, low-back injury on March 12, 2018.

                                              4
                                  Medical Causation

       The next question is whether Mr. Campbell suffered an injury as defined in the
Workers' Compensation Law. Tennova argued that he failed to allege a specific, injury-
causing event. While that is true, the statutory definition of "injury" provides that, in
addition to a specific event, an injury may include an aggravation of a pre-existing
condition or a gradually-occurring injury. Tenn. Code Ann. § 50-6-102(14)(A). Further,
under the statute, the employee must show "by a preponderance of the evidence that the
employment contributed more than fifty percent (50%) in causing the injury, considering
all causes." Id. at§ 50-6-102(14)(B).

       Here, Tennova argues that no physician provided an opinion that satisfies the
above statutory requirements. The Court agrees. However, at the interlocutory phase,
Mr. Campbell is not required to do so. In McCord, the Appeals Board concluded that, at
an expedited hearing, an employee need not prove each and every element of his claim by
a preponderance of the evidence but instead has the burden to come forward with
sufficient evidence from which the trial court can determine he is likely to prevail at a
hearing on the merits. Id. at *9. The Board explained:

       [W]hether the alleged work accident resulted in a compensable injury has
       yet to be determined. Therefore, while Employee has not proven by a
       preponderance of the evidence that she suffered an injury arising primarily
       out of and in the course and scope of employment, she has satisfied her
       burden at this interlocutory stage to support an Order compelling Employer
       to provide a panel of physicians.

Id. at * 17 (emphasis added).     Thus, the question becomes whether Mr. Campbell
provided sufficient evidence to satisfy his "burden at this interlocutory stage" that he is
entitled to medical benefits.

       Mr. Campbell plausibly testified he associated frequent, heavy lifting at Tennova
with his onset of low-back pain. This Court found he provided adequate notice of the
alleged injury to his low back, but Tennova failed to offer a panel. On this record, the
Court holds Mr. Campbell provided sufficient evidence to satisfy his burden at this
interlocutory stage that he is entitled to medical benefits. See also Lewis v. Molly Maid,
2016 TN Wrk. Comp. App. Bd. LEXIS 19, at *5-6 (Apr. 20, 2016) (Where the
employee's unrefuted testimony was that she experienced back pain after operating the
employer's equipment, the employee did not come forward with sufficient evidence to
establish that she suffered a compensable injury but did provide sufficient evidence to
establish her entitlement to a panel of physicians).

                                             5
      As for Tennova's argument that the injury was pre-existing, no physician has
made this determination yet. Thus, the Court rejects this contention at this time.

                                    Requested Relief

       Ordinarily this Court would order that Tennova offer a panel. However, "[i]n
circumstances where an employer refuses to provide medical treatment and/or denies an
employee's claim, such employer runs the risk that a physician of the employee's
choosing will be designated the authorized physician and that the employer will be
responsible for paying for treatment provided by that physician." Blevins v. S. Champion
Tray, LP, 2019 TN Wrk. Comp. App. Bd. LEXIS 29, at *16-17 (July 1, 2019). Here, Mr.
Campbell reasonably obtained treatment with another physician. Having established a
doctor-patient relationship with Dr. DeVries, he should not now be required to choose a
different treating physician. Thus, Dr. DeVries shall become the authorized treating
physician.

       As for the medical bills and mileage, the Court agrees with Tennova that ordering
their payment is premature at the interlocutory stage and denies this request at this time.

       Mr. Campbell also seeks temporary disability benefits. To receive these, he must
prove (1) total disability from working as the result of a compensable injury; (2) a causal
connection between the injury and the inability to work; and (3) the duration of the period
of disability. Shepherd v. Haren Constr. Co., Inc., 2016 TN Wrk. Comp. App. Bd.
LEXIS 15, at *13 (Mar. 30, 2016). Here, Mr. Campbell has yet to show that Dr. DeVries
believes his injury is work-related. Therefore, the Court holds this request is likewise
premature but may be revisited.

                                     Penalty Referral

      The Court previously found that Mr. Campbell gave notice of his injury to
Tennova on March 12, 2018. He filed his Petition for Benefit Determination in February
2019. Later that same month, Tennova filed a First Report of Injury and a denial of the
claim. The Court is concerned that Tennova might have violated three of the Bureau's
Claims Handling Standards.

       First, Tennessee Compilation Rules and Regulations 0800-02-01-.05(2) (May,
2018) provides: "[E]mployers shall report all known or reported accidents or injuries to
their adjusting entity within one (1) business day of knowledge of injury." Tennova's
First Report of Injury and denial were not completed until February 2019, almost one
year after the alleged date of injury. The Court does not know whether Tennova reported
Mr. Campbell's injury to its adjusting entity within one business day of knowledge of the
injury, which the Court found as March 12, 2018. The question warrants further

                                             6
investigation.

       Second, the rules state, "Decisions on compensability shall be made by the
adjusting entity within fifteen (15) calendar days of the verbal or written notice of
injury." Tenn. Comp. R. & Regs. 0800-02-14-.04(6) (August, 2018). Mr. Campbell did
not receive notice of the denial within fifteen days of reporting the injury on March 12,
2018. The question warrants further investigation.

       Third, Tennessee Code Annotated section 50-6-204(a)(3)(A)(i) states, "[In] any
case when the employee has suffered an injury and expressed a need for medical care, the
employer shall designate a group of three (3) or more independent reputable physicians ..
. from which the injured employee shall select one ( 1) to be the treating physician." The
Court finds that Tennova failed to offer a panel but rather directed Mr. Campbell to Dr.
Huffman. This question also warrants further investigation.

      For these reasons, the Court refers this case to the Compliance Unit to consider the
imposition of penalties.

IT IS, THEREFORE, ORDERED as follows:

    1. Tennova or its carrier shall provide additional treatment of Mr. Campbell's low-
       back injury with Dr. DeVries.

    2. Mr. Campbell's requests for payment of past medical and mileage expenses and
       temporary total disability benefits are denied at this time.

    3. This case is referred to the Compliance Unit to consider the imposition of
       penalties.

    4. This matter is set for a Scheduling Hearing on August 26, 2019, at 9:45 a.m.
       Central. The parties must call 615-532-9552 or toll-free at 866-943-0025 to
       participate. Failure to call might result in a determination of the issues without the
       party's participation.

    5. Unless an 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 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 confirmation within seven
       business days may result in a penalty assessment for non-compliance. For
       questions regarding compliance, contact the Workers' Compensation Compliance
       Unit via email at WCComp lianceJ rogram .-..,tu.gov.

                                              7
      ENTERED July 16, 2019.




                                 Court of Workers' Compens

                                        APPENDIX

Exhibits:
   1. Affidavit
   2. Notice of Denial
   3. Wage Statement
   4. First Report of Injury, February 9, 2018
   5. First Report of Injury, February 18, 2019
   6. Composite medical records
   7. Optum/Gallagher Bassett notice about benefits (Identification only)
   8. Medical bills and mileage
   9. Recording of Mr. Campbell's statement to adjuster

Technical record:
   1. Petition for Benefit Determination
   2. Employer's position statement
   3. Dispute Certification Notice
   4. Request for Expedited Hearing
   5. Employer's Witness and Exhibit List
   6. Employer's Pretrial Brief

                            CERTIFICATE OF SERVICE

       I certify that a copy of the Expedited Hearing Order was sent as indicated on July
16, 2019.

 Name                       Certified     Via     Service sent to:
                             Mail        Email
 Michael Campbell, self-        x         x       Cam12be11 393@bellsouth .net
 represented employee                             2625 Rawlings Road, Woodlawn TN
                                                  37191
 Terri Bernal, employer's                 x       tbemal@chorn¥elIlaw .com
 attorney


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P nny Shrum Court Clerk
WC.Court'Clerk@tn.gov




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