             TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                WORKERS’ COMPENSATION APPEALS BOARD

Tonya Baker                                  ) Docket No. 2017-06-0070
                                             )
v.                                           ) State File No. 72513-2016
                                             )
Electrolux, et al.                           )
                                             )
                                             )
Appeal from the Court of Workers’            )
Compensation Claims                          )
Joshua D. Baker, Judge                       )

                     Reversed and Remanded—Filed October 20, 2017

The issue in this interlocutory appeal is whether the employee is entitled to a second
authorized treating physician after becoming dissatisfied with the physician the employee
selected from a panel. The employer declined to provide a new treating physician,
asserting it had met its statutory obligation of providing reasonable and necessary
medical care for the employee’s work accident and that, if the employee needed
additional medical care, she could return to the physician she selected from a panel. The
trial court ordered the employer to allow the employee to select another treating
physician based on a finding that the employee had no authorized treating physician to
address her continuing symptoms. We reverse the trial court’s decision and remand the
case.

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

Richard R. Clark, Jr., Nashville, Tennessee, for the employer-appellant, Electrolux

Tonya Baker, Springfield, Tennessee, employee-appellee, pro se

                          Factual and Procedural Background

       Tonya Baker (“Employee”) suffered an injury to her back on September 19, 2016,
when she slipped and fell in water on the floor of Electrolux’s (“Employer”) facility.
Employer accepted the claim as compensable, and Employee received authorized medical
care from Dr. Daniel Burval, an orthopedic surgeon whom Employee selected from a
panel of physicians.

                                            1
        Employee first saw Dr. Burval on September 21, 2016. The office note from that
visit reveals complaints of low back pain with numbness down Employee’s right leg. Dr.
Burval’s impression was a lumbar strain and low back pain with sciatica. He felt
“confident this [was] a muscle stretch related injury” and ordered physical therapy and
returned Employee to work with restrictions. Employee subsequently returned to Dr.
Burval with continued complaints of low back pain. Dr. Burval noted there was “no
change in her reflexes or her strength, and she has not had any new injuries.” He found
“no objective evidence of any neurological compression or instability that could cause the
sciatica.”

        While still seeing Dr. Burval, Employee sought unauthorized treatment at an
emergency room and with her primary care physician, though the records of that
physician are not included in the record on appeal. Records from the emergency room
reflect a diagnosis of “sciatica.” The report of a CT scan indicates Employee had disc
space narrowing associated with a disc bulge, and a subsequent MRI performed at Dr.
Burval’s request revealed “degenerative changes at L4-L5 and L5-S1 without evidence of
nerve root impingement or canal stenosis.” The record also contains a note from a nurse
practitioner indicating that Employee had not complained of low back problems prior to
her fall at work and that her complaints were related to her fall.

      Employee became dissatisfied with Dr. Burval because she believed he was not
being thorough and because she did not like the way he examined her. She
acknowledged that Dr. Burval had examined her, treated her with medication, ordered
physical therapy, and ordered an MRI. She also testified that she missed several days of
work because Employer told her “to stay at home and find out what’s wrong with [her on
her] own.” Although Employee had requested another treating physician, she
acknowledged that “no one has told me I can’t go back to Dr. Burval.” She did not
inform Employer she had sought unauthorized treatment.

       Following a hearing, the trial court directed Employer to provide Employee a new
panel of physicians. In reaching that conclusion, the trial court observed that Dr. Burval
did not indicate a plan for Employee to follow up with him and that he “maintained that
[Employee] did not have sciatica, despite her sciatic symptoms.” The trial court further
noted that Employer had fulfilled its obligation to provide authorized medical care, but
“when the care failed to resolve the pain she experienced following her work injury,
instead of referring [Employee] for other treatment options, Dr. Burval released her from
care.” The court concluded that Employee had no authorized treating physician to
address her complaints.1 Employer has appealed.



1
  Employee requested temporary disability benefits and payment of her unauthorized medical care. The
trial court declined to award those benefits, and Employee has not appealed that decision.

                                                 2
                                  Standard of Review

       The standard we apply in reviewing a trial court’s decision presumes that the
court’s factual findings are correct unless the preponderance of the evidence is otherwise.
See Tenn. Code Ann. § 50-6-239(c)(7) (2016) (“There shall be a presumption that the
findings and conclusions of the workers’ compensation judge are correct, unless the
preponderance of the evidence is otherwise.”). When the trial judge has had the
opportunity to observe a witness’s demeanor and to hear in-court testimony, we give
considerable deference to factual findings made by the trial court. Madden v. Holland
Grp. of Tenn., Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, a trial court’s
conclusions of law are reviewed de novo with no presumption of correctness. See Am.
Mining Ins. Co. v. Campbell, No. M2015-01478-SC-R3-WC, 2016 Tenn. LEXIS 907, at
*18 (Tenn. Workers’ Comp. Panel Dec. 9, 2016). Moreover, the interpretation and
application of statutes and regulations concerns issues of law, which we review de novo
with no presumption of correctness afforded to the trial court’s conclusions. See Seiber v.
Reeves Logging, 284 S.W.3d 294, 298 (Tenn. 2009); Hadzic v. Averitt Express, No.
2014-02-0064, 2015 TN Wrk. Comp. App Bd. LEXIS 14, at *9 (Tenn. Workers’ Comp.
App. Bd. May 18, 2015).

                                        Analysis

                                            A.

        Initially, we note that Employer cites Tennessee Code Annotated section 50-6-
217(a)(3) (2016) (repealed 2017) in support of its argument that the trial court’s decision
is not supported by substantial and material evidence. Section 50-6-217(a)(3) authorized
us to reverse or modify a trial court’s decision if the rights of a party were prejudiced
because the findings of the trial judge were “not supported by evidence that is both
substantial and material in light of the entire record.” However, this code section was
repealed effective May 9, 2017. Consequently, as noted above, the standard we apply in
reviewing the trial court’s decision presumes that the trial judge’s factual findings are
correct unless the preponderance of the evidence is otherwise. Tenn. Code Ann. § 50-6-
239(c)(7).

                                            B.

       Turning to the merits of this appeal, our task is to decide whether the trial court
erred in requiring Employer to provide a second panel of physicians from which
Employee could select a new treating physician. There is no dispute that Employee
suffered a compensable injury or that Employer provided a panel of physicians in
accordance with Tennessee Code Annotated section 50-6-204(a)(1)(A) from which
Employee selected Dr. Burval. Nor is there any dispute that Employee is entitled to
reasonable and necessary medical care stemming from her work accident. Rather,

                                            3
Employer maintains that Employee is not entitled to another authorized treating physician
given that she can return to Dr. Burval if she continues to have problems related to her
fall. We agree.

       The Tennessee Workers’ Compensation law contains several statutory provisions
governing medical benefits, two of which are involved in this appeal. First, Tennessee
Code Annotated section 50-6-204(a)(1)(A) requires an employer to provide injured
workers “such medical and surgical treatment . . . as ordered by the attending physician . .
. made reasonably necessary by accident as defined in this chapter.” Second, injured
workers are required to “accept the medical benefits afforded under this section; provided
that 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, surgeons, chiropractors or specialty practice groups . . . from which
the injured employee shall select one (1) to be the treating physician.” Tenn. Code Ann.
§ 50-6-204(a)(3)(A)(i). We recently applied these statutes and found that an employer
was required to provide an employee with a new authorized treating physician when the
physician selected from a panel refused to see the employee for his continuing symptoms.
See Limberakis v. Pro-Tech Security, Inc., No. 2016-08-1288, 2017 TN Wrk. Comp.
App. Bd. LEXIS 53 (Tenn. Workers’ Comp. App. Bd. Sept. 12, 2017).

       However, the circumstances in this case are different from those in Limberakis. In
that case, the proof was clear that the employee’s authorized physician had refused to
continue seeing him, despite the employee’s on-going complaints and repeated attempts
to return for more treatment. Here, there is no proof that Dr. Burval has declined to see
Employee or that she has made any attempt to continue seeing him. Employee
acknowledged that “no one has told me I can’t go back to Dr. Burval,” and the record
contains nothing to suggest that Employee has no other option but to seek unauthorized
treatment. To the contrary, Employer remains ready and willing to authorize additional
reasonable and necessary medical treatment with Dr. Burval. Given these circumstances,
we have no difficulty concluding that Employee has an authorized treating physician in
compliance with Tennessee Code Annotated section 50-6-204 and is not entitled to a new
one.

        In addition, the trial court’s decision was based in part on its conclusion that
“[w]hile Dr. Burval maintained [Employee] did not have sciatica, an emergency room
physician and a nurse practitioner disagreed.” The trial judge explained that “two
providers say she does [have sciatica] and the authorized treating physician says she does
not.” The record does not support this conclusion. Specifically, Dr. Burval’s records do
not reflect a belief that Employee does not have sciatica. To the contrary, he stated that
her symptoms were indicative of sciatica, but that he could not identify an objective
reason for those symptoms. The fact that an emergency room provider and a nurse
practitioner diagnosed Employee with sciatica does not conflict with Dr. Burval’s
findings and is not sufficient to entitle Employee to a new panel of physicians.

                                             4
       In short, while Employee may be dissatisfied with her panel selection, she has
pointed to no authority that would require Employer to provide another panel of
physicians under the circumstances presented. The record contains no evidence to
suggest that Dr. Burval is unable or unwilling to treat Employee or that Employee has
unsuccessfully attempted to see him. Employer has discharged its statutory obligation to
provide medical benefits made reasonably necessary by accident, and Employee is
obligated to accept those benefits. See Tenn. Code Ann. §§ 50-6-204(a)(1)(A) and
(a)(3)(A)(i).

                                       Conclusion

        For the foregoing reasons, we hold that the evidence preponderates against the
trial court’s decision. Accordingly, the trial court’s decision is reversed, and the case is
remanded for any further proceedings that may be necessary.




                                             5
                      TENNESSEE BUREAU OF WORKERS’ COMPENSATION
                        WORKERS’ COMPENSATION APPEALS BOARD


Tonya Baker                                               )   Docket No.   2017-06-0070
                                                          )
v.                                                        )   State File No. 72513-2016
                                                          )
Electrolux, 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 20th day of October, 2017.
 Name                     Certified   First Class   Via   Fax      Via     Email Address
                          Mail        Mail          Fax   Number   Email

 Tonya Baker                X                                        X     806 Perry Drive
                                                                           Springfield, TN 37172
                                                                           tbigbee2015@gmail.com
 Richard Clark                                                       X     rclark@eraclides.com
 Joshua D. Baker, 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




Jeanette Baird
Deputy Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-0064
Electronic Mail: WCAppeals.Clerk@tn.gov
