                                                                                  FILED
                                                                                Oct 23, 2019
                                                                               11:38 PM(CT)
                                                                             TENNESSEE COURT OF
                                                                            WORKERS' COMPENSATION
                                                                                   CLAIMS




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

KELLY GAUTREAUX,                            )   Docket No. 2018-06-0366
                                            )
             Employee,                      )
v.                                          )   State File No. 11346-2017
                                            )
HERMITAGE HALL,                             )
                                            )   Judge Joshua D. Baker
             Employer.                      )



          EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS



       On October 8, 2019, the Court convened an expedited hearing where Ms.
Gautreaux sought treatment from either Nashville-area psychiatrist Dr. Greg Kyser or a
panel of psychiatrists within her community from whom she could select a psychiatrist.
Hermitage Hall argued that Ms. Gautreaux is not entitled to treatment, and even if she
were, it already offered her a panel of psychiatrists. For the reasons below, the Court
orders Hermitage Hall to provide Ms. Gautreaux psychiatric treatment with Dr. Kyser.

                                    History of Claim

       The Court detailed this claim’s history in its previous expedited hearing order and
only recounts the facts that are central to resolving the present dispute.

       In that order, which Hermitage Hall appealed and the Appeals Board affirmed, the
Court ordered Hermitage Hall to provide Ms. Gautreaux psychiatric care as
recommended by the authorized treating physician, Dr. Strickland. Although Hermitage
Hall had offered the opinion of neurologist Dr. Steven Graham, who believed it
“unlikely” that Ms. Gautreaux had a work-related injury, the Court rejected that opinion
based its decision on a recommendation from Dr. Strickland, and on the opinion of Dr.
Kyser, a psychiatrist.
       Dr. Strickland recommended that Ms. Gautrtreaux stay off work “until seen by
psychiatry” and further recommended she see two see two specific “post-concussion
experts.” He also wrote that he would defer to those experts concerning her permanent
impairment and date of maximum medical improvement.

       Dr. Kyser, whom Ms. Gautreaux saw for an evaluation, deemed her condition
work-related and explained that previous concussions she suffered as a college athlete left
her susceptible to “worsening symptoms” and a “higher risk of developing long-term
difficulties from another concussion.” He also believed she should remain off work until
receiving psychiatric care.

       In an attempt to comply with the Court’s order, Hermitage Hall searched for
psychiatrists in Ms. Gautreaux’s community but alleged difficulty finding any that
accepted workers’ compensation. So ten days after the Appeals Board remanded the
case, the Court approved a joint request allowing Hermitage Hall an additional fifteen
days to comply.

       Approximately two weeks after the Court granted additional time, Hermitage Hall
provided Ms. Hall a panel of three psychiatrists who practiced outside the Nashville area.
One practiced in Memphis, another in Oak Ridge, and the third in Cleveland, Tennessee.
Ms. Gautreaux did not select a psychiatrist from the panel because she questioned the
panel’s validity due to the absence of psychiatrists in her community. She filed a request
for expedited hearing over the disputed panel.

       Approximately one month after she filed her request, Hermitage Hall sent a letter
to Dr. Strickland asking his opinion on Ms. Gautreaux’s need for psychiatric care or
evaluation in light of her “ability to play tennis, paddleboard, attend loud concerts with
flashing lights, and ride in cars for long distances[.]” Dr. Strickland said she needed
neither care nor evaluation but did not examine her before giving that opinion.1

       When Ms. Gautreaux testified at the expedited hearing, counsel for Hermitage
Hall asked her many questions about her activities since the last hearing, focusing mainly
on paddle boarding, tennis, and a car trip to Detroit to see a concert. On paddle boarding,
Ms. Gautreaux admitted she tried one time but was unable to stand and paddle. Instead
she was forced to lie down on the board and float on the lake. She also admitted playing
tennis once with her father as a bonding opportunity. Concerning the road trip to Detroit,
Ms. Gautreaux said that the trip was extremely hard on her and that she cried often. She
further admitted that the concert had lots of flashing lights and loud music but said she
was far away from the stage, spent most of the time in her seat, and could not enjoy the
experience because of anxiety.

1
    Upon receiving this opinion, Hermitage Hall terminated Ms. Gautreaux’s temporary disability benefits.


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       Aside from this testimony, Ms. Gautreaux’s remaining testimony coincided with
her testimony from the previous expedited hearing. She said she is still unable to work,
has difficulty riding in a car for even short periods of time, and is rarely able to engage
socially. She cried a lot during her testimony and appeared to be very tired, sometimes
leaning her head against the side of the bench as she sat in the witness box. She said she
spends the majority of her time in her apartment in bed.

       Concerning care since the last hearing, Ms. Gautreaux said she continued to see
her private psychiatrist in New Orleans for medication management but received no care
from him for the workplace condition. When asked why she had not sought care on her
own, she said she did not think the Workers’ Compensation Law would allow her to do
that.2

                            Findings of Fact and Conclusions of Law

       Ms. Gautreaux seeks either a panel of psychiatrists within her community or
appointment of Dr. Kyser as her authorized treating physician. She need not prove every
element of her claim by a preponderance of the evidence to receive relief. Instead, she
must present sufficient evidence showing that she would likely prevail at a final hearing.
McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at
*7-8, 9 (Mar. 27, 2015). The Court finds she carried this burden and orders Hermitage
Hall to provide treatment with Dr. Kyser.

      In this expedited hearing, Hermitage Hall raised two defenses for its failure to
abide by the Court’s order: (1) Dr. Strickland rescinded his recommendation that Ms.
Gautreaux receive psychiatric care; and (2) it could not assemble a panel in Ms.
Gautreaux’s community because no psychiatrists in Nashville would agree to treat her.
The Court finds neither persuasive.

       Regarding the first defense, Hermitage Hall asserts that Dr. Strickland has
rescinded his recommendation for psychiatric treatment so it no longer has to provide the
treatment. The Court disagrees.

       Hermitage Hall presented a second letter from Dr. Strickland where he rescinded
his previous treatment recommendation after being presented with conclusory statements
from counsel about Ms. Gautreaux’s current condition. The record does not reveal he
examined or even spoke with her before offering this new opinion. Although Dr.
Strickland is the authorized treating physician and his treatment recommendations are
presumed correct, the Court questions the probative weight it should assign the

2
 Ms. Gautreaux participated in a therapy program at Vanderbilt from August to October, 2018. Her
participation occurred before the last hearing, but the parties did not present the records until this hearing.

                                                      3
recommendation, as Dr. Strickland appears to have proffered it without inquiring of Ms.
Gautreaux regarding the details of the activities he considered. See Tenn. Code Ann. §
50-6-204(3)(H).

       Furthermore, Dr. Strickland relied in part on Dr. Graham’s opinion when changing
his recommendation. As stated before, this Court specifically credited Dr. Kyser’s
opinion over Dr. Graham’s, so Dr. Strickland’s reliance on Dr. Graham’s opinion only
weakens his latest opinion.

        In the end, because Dr. Strickland rescinded his recommendation for psychiatric
care, it puts his opinion directly at odds with Dr. Kyser’s. When faced with conflicting
opinions from two physicians, “it is within the discretion of the trial judge to conclude
that the opinion of certain experts should be accepted over that of other experts and that it
contains the more probable explanation.” In making that determination, the Court may
consider, “the qualifications of the experts, the circumstances of their evaluation, the
information available to them, and the evaluation of the importance of that information
by other experts.” See Darraj v. McKee Foods Corp., 2017 TN Wrk. Comp. App. Bd.
LEXIS 4, at *13-14 (Jan. 17, 2017). Here, the Court finds the pertinent factors all
mitigate in favor of the opinion of Dr. Kyser that Ms. Gautreaux requires psychiatric
treatment for her work-related injury.

       Most importantly, Dr. Kyser is a psychiatrist, so the Court considers his opinion
on the necessity of psychiatric treatment more informed than Dr. Strickland’s. He also
examined Ms. Gautreaux more recently than Dr. Strickland, so his information was more
current. Finally, Dr. Strickland made his opinion upon consideration of summary
statements from defense counsel without confirming their veracity. Therefore, the Court
credits Dr. Kyser’s opinion on necessary treatment over Dr. Strickland’s.

       Concerning the second defense, for a panel to be valid, the providers cannot
practice further than 125 miles from the employee’s home. See Tenn. Code Ann. § 50-6-
204(a)(3)(B). The panel provided to Ms. Gautreaux contained psychiatrists who practice
more than 125 miles from her home. Thus, the Court finds that the panel is invalid, and
despite Ms. Gautreaux’s responsibility to accept the medical care provided by the
employer, the Court holds she had no duty to select a physician from the panel. Further,
requiring someone in her condition to ride for hours in a car for treatment is not feasible
or effectual, as she testified about the negative effects of the long trip to Detroit and said
that even short trips are difficult.

      Almost one year ago, the Court ordered Hermitage Hall to provide Ms. Gautreaux
psychiatric treatment. Hermitage Hall attempted to assemble a valid panel but failed.
When it failed to provide a valid panel, it attempted to “undo” Dr. Strickland’s treatment
recommendation. Under these circumstances, with Hermitage Hall’s failure to abide by
this Court’s order and the prolonged effect it has had on Ms. Gautreaux, the Court

                                              4
appoints Dr. Kyser as the authorized treating physician and orders Hermitage Hall to
provide Ms. Gautreaux treatment with Dr. Kyser until she is released.

        Additionally, the Court refers Hermitage Hall to the compliance program for
consideration of assessment of a civil penalty under Tennessee Code Annotated section
50-6-118(a) for its failure to timely abide by this Court’s order. Although Hermitage
Hall tried after the Appeals Board’s decision to abide by the order, those efforts fell short
and arrived untimely. As mentioned above, the Court ordered Hermitage Hall to provide
this care almost a year ago.

       It is ORDERED as follows:

          1. Hermitage Hall shall provide Ms. Gautreaux psychiatric care with Dr.
             Kyser.

          2. Hermitage Hall is referred to the Bureau’s compliance program for
             consideration of assessment of civil penalty for its failure to comply with
             this Court’s December 11, 2018 expedited hearing order.

          3. 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. For questions regarding compliance,
             please contact the Workers’ Compensation Compliance Unit via email at
             WCCompliance.Program@tn.gov.


ENTERED ON OCTOBER 23, 2019.



                                          ______________________________________
                                          Judge Joshua Davis Baker
                                          Court of Workers’ Compensation Claims




                                             5
                                      APPENDIX


Exhibits:

   1.   Medical Records
   2.   Declaration of Ms. Gautreaux
   3.   Panel
   4.   Questionnaire Response from Dr. Strickland


Technical Record:

   1.   Request for Expedited Hearing filed August 13, 2019
   2.   Dispute Certification Notice
   3.   Petition for Benefit Determination
   4.   Expedited Hearing Order entered December 11, 2018




                                           6
                            CERTIFICATE OF SERVICE

      I certify that a correct copy of this Expedited Hearing Order was sent as indicated
on October 23, 2019.

 Name                      Certified    Fax       Email   Service sent to:
                            Mail
 Zachary Wiley,                                    X      zwiley@forthepeople.com
 Employee’s Attorney                                      rforrest@forthepeople.com
 Chris Brooks,                                     X      crbrooks@mijs.com
 Greg Fuller;                                             ghfuller@mijs.com
 Employer’s Attorneys




                                         ______________________________________
                                         PENNY SHRUM, COURT CLERK
                                         wc.courtclerk@tn.gov




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