                                                                                              FILED
                                                                                           Sep 06, 2019
                                                                                           10:52 AM(ET)
                                                                                        TENNESSEE COURT OF
                                                                                       WORKERS' COMPENSATION
                                                                                              CLAIMS




                TENNESSEE BUREAU OF WORKERS' COMPENSATION
                 COURT OF WORKERS' COMPENSATION CLAIMS
                            AT CHATTANOOGA

Mark A. Rollins,                                    )   Docket No.: 2017-01-0638
            Employee,                               )
v.                                                  )
Scenic City Concrete Pumping, LLC,                  )   State File No.: 4460-2017
             Employer,                              )
And                                                 )
FFVA Mutual Insurance Company,                      )   Judge Audrey A. Headrick
             Insurance Company.                     )




                              EXPEDITED HEARING ORDER
                               (DECISION ON THE RECORD)


       This case came before the Court on Mark Rollins's Request for an Expedited
Hearing on the record. 1 The only issue is whether Mr. Rollins is likely to establish at trial
that he is entitled to see Dr. Jerry Smith for an impairment rating based upon Dr.
Matthew Buchanan's direct referral. For the reasons below, the Court holds he is not.

                                         History of Claim

        While working on January 16, 2017, Mr. Rollins fractured his right ankle when a
ratchet strap broke, causing him to fall. Mr. Rollins received authorized treatment,
including surgery, from orthopedist Dr. Benji Miller. Dr. Miller placed Mr. Rollins at
maximum medical improvement on April 26 and assigned a four-percent impairment
rating to the body.

       Due to Mr. Rollins's continued complaints of muscle pain and tingling, Dr. Miller
referred him to see Dr. Buchanan, a foot and ankle specialist in his orthopedic group, "to

1
 The Court issued a docketing notice allowing the parties until September 4 to file objections or submit
position statements.
evaluate him for a second opinion." After treating Mr. Rollins conservatively, Dr.
Buchanan made a June 7, 2018 "impairment rating referral" to Dr. Smith, a physical
medicine and rehabilitation specialist, because Mr. Rollins "received a rating from Dr.
Miller but is questioning the amount determined." Scenic City did not authorize the
referral.

       Dr. Buchanan made several additional referrals in 2019. In April, he made an
"orthopedic referral." Scenic City provided Mr. Rollins with an orthopedic panel the next
day, but he did not make a selection. In May, Dr. Buchanan made another "impairment
rating referral" to Dr. Smith. Ten days later, he made an "orthopedic referral" to Dr.
Smith, who he acknowledged is not an orthopedist, "for additional treatment
considerations" because Mr. Rollins "is still having issues with his foot." Two days later,
Scenic City provided Mr. Rollins with a panel that did not include Dr. Smith, but again
he did not make a selection.

        Mr. Rollins asked the Court to designate Dr. Smith as an authorized physician
based on Dr. Buchanan's direct referral since Dr. Miller did not consider nerve damage in
his impairment rating. Scenic City argued the law only requires it to authorize referrals
for treatment and not impairment ratings.

                       Findings of Fact and Conclusions of Law

                                    Standard Applied

       To prevail at an expedited hearing, Mr. Rollins must provide sufficient evidence to
show the likelihood of prevailing at a hearing on the merits in establishing entitlement to
a direct referral for an impairment rating. See Tenn. Code Ann. § 50-6-239(d)(l) (2018).
The Court holds he did not.

                                     Medical Benefits

       The sole issue is Mr. Rollins's request to see Dr. Smith for an impairment rating
based upon Dr. Buchanan's direct referral. Under the Workers' Compensation Law, the
employer is required to "furnish, free of charge to the employee, such medical and
surgical treatment ... made reasonably necessary by accident[.]" (Emphasis added.)
Tenn. Code Ann. § 50-6-204(a)(l)(A). Upon referral and acceptance, specialist
physicians shall become treating physicians until their treatment concludes. Tenn. Code
Ann. § 50-6-204(a)(3)(A) and (E). Further, "[a]ny treatment recommended" by a panel
selected physician or by referral "shall be presumed to be medically necessary for
treatment of the injured employee." (Emphasis added.) !d. at§ 50-6-204(a)(3)(H).

       Here, the evidence submitted is sufficient to show that Dr. Buchanan specifically
referred Mr. Rollins to Dr. Smith for an impairment rating because Mr. Rollins disagreed


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with Dr. Miller's rating. The law does not require Scenic City to authorize Mr. Rollins to
see Dr. Smith for an impairment rating. Instead, the law only requires Scenic City to
provide Mr. Rollins with treatment for the work injury. Given Dr. Buchanan's repeated
referrals for an impairment rating, the Court is unpersuaded by his last purported referral
to Dr. Smith for treatment purposes. Regardless, Scenic City provided a panel in
response.

      Based on the evidence submitted, Mr. Rollins is not entitled to see Dr. Smith for
an impairment rating.

IT IS, THEREFORE, ORDERED as follows:

   1. The Court denies Mr. Rollins's request.

   2. This case is set for a Status Hearing on Thursday, November 7, 2019, at 10:00
      a.m. Eastern Time. The parties must call (423) 634-0164 or toll-free at (855) 383-
      0001 to participate. Failure to call may result in a determination of the issues
      without your participation.

ENTERED September 6, 2019.




                                          Workers' Compensation Judge




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                                       APPENDIX

Exhibits:
       1.   First Report
       2.   Medical records of Dr. Matthew Buchanan
       3.   Medical records of Dr. Benjamin Miller
      4.    Medical records of Dr. Larry Gibson
       5.   Dr. Buchanan's May 10, 2019 referral order
       6.   Affidavit of Ronald J. Berke
       7.   Table of Contents
                a. Dr. Buchanan's June 7, 2018 treatment note and referral order
                b. Dr. Buchanan's April9, 2019 referral order
                c. April 10, 2019 letter enclosing panel
                d. Dr. Buchanan's May 20, 2019 referral order
                e. May 22, 20 19 letter enclosing panel


Technical record:
      1. Petition for Benefit Determination
      2. Dispute Certification Notice
      3. Request for Expedited Hearing
      4. Notice of Expedited Hearing
      5. Employer's Motion to Dismiss
      6. Motion for Additional Time
      7. Employer's Response to Employee's Motion for Additional Time
      8. Order Denying Motion for Additional Time
      9. Employer' s Pre-Hearing Brief and Request for a Decision on the Record
      10.Employer's Notice ofFiling of Medical Records for Expedited Hearing
      11. Employer's Witness and Exhibit List for Expedited Hearing
      12. Order Cancelling August 28 Expedited Hearing and Granting Request for a
          Decision on the Record
      13.Employee' s Pre-Hearing Brief
      14. Docketing Notice
      15.Employer's Brief for Decision on the Record and Reply to Employee's Pre-
          Hearing Brief
      16.Employee's Response to Employer's Brief for Decision on the Record and
          Reply to Employee's Pre-Hearing Brief




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                            CERTIFICATE OF SERVICE

       I certify that a copy of this Order was sent as indicated on September 6, 2019.

Name                         Certified   Email     Service sent to:
                             Mail

Ronald J. Berke,                           X       ronnie('Q),berkeanys.com
Employee Attorney                                  margo@,berkeattys .com
Alex B. Morrison,                          X       abmorrison@mijs.com
Employer Attorney




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                                               PENNYSHRM:couRT CLERK 1
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                                                  wc.courtclerk@tn.gov




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