                                                                                                      FILED
                                                                                                    Oct 17, 2018
                                                                                                   08:37 AM(CT)
                                                                                                TENNESSEE COURT OF
                                                                                               WORKERS' COMPENSATION
                                                                                                      CLAIMS




              TENNESSEE BUREAU OF WORKERS' COMPENSATION
             IN THE COURT OF WORKERS' COMPENSATION CLAIMS
                             AT COOKEVILLE

STACY MOODY,                                            )    Docket No. 2018-04-0014
        Employee,                                       )
v.                                                      )    State File No. 35191-2015
CUMBERLAND CTY. SCH. DIST.                              )
        Employer.                                       )    Judge Robert Durham


         EXPEDITED HEARING ORDER DENYING MEDICAL BENEFITS


        This case came before the Court for an Expedited Hearing on October 12, 2018.
The issue is whether Ms. Moody is entitled to treatment for her work-related knee injury
from a doctor other than the authorized physician. The Court holds that Ms. Moody is not
likely to establish that Cumberland County is required to authorize another physician at
this time. Thus, it denies her request.

                                             History of Claim

        Ms. Moody worked as an elementary school teacher for Cumberland County for
26 years. On May 7, 2015, she injured her left knee while playing in a faculty versus
staff basketball game. Cumberland County accepted her claim and provided her with a
panel of orthopedists from which she chose Dr. John Turnbull. He found an almost
complete tear of Ms. Moody's anterior cruciate ligament and performed an ACL
reconstruction after six weeks of therapy to strengthen her leg.

       Post-operatively, Ms. Moody underwent extensive physical therapy in an attempt
to regain motion and lessen her knee pain. 1 She testified that she continued to have
significant problems with pain and lack of motion following therapy. When she
questioned Dr. Turnbull about it, he told her that he had "done his job" and it was up to
her to work harder in physical therapy if she wanted to improve. Ms. Moody took issue
with this statement. She pointed out at the hearing that her PT notes reflected she gave
maximum effort. She felt Dr. Turnbull gave little regard to her complaints and concerns.

1
 Ms. Moody also asserted she began experiencing back pain while on the recovery table following her knee surgery.
Cumberland County accepted this injury as a compensable claim and provided her with treatment with authorized
physicians. Ms. Moody is not seeking additional benefits regarding her back at this time.

                                                       1
For example, she testified that she obtained authorization for a follow-up MRI from
Cumberland County's carrier, but Dr. Turnbull did not think it necessary and refused to
order it.

       Dr. Turnbull's perspective is somewhat different. In his affidavit, he noted that on
June 26, 2016, Ms. Moody's examination revealed good stability and range of motion
with no swelling; her primary complaint was that she could not sit cross-legged on the
floor with her students. He found that she had reached maximum medical improvement
with no impairment and released her to return to work without restrictions. He informed
her she could return to see him as needed.

      Ms. Moody testified that although she has returned to work, she continues to have
problems with her knee. She still experiences significant pain and is limited in her ability
to bend, squat, sit on the floor, or walk on uneven terrain or stairs. Despite these
problems, however, she did not seek additional evaluation or treatment from either Dr.
Turnbull or an unauthorized physician. She testified that she did not return to Dr.
Turnbull because she felt he made it clear that there was nothing more he could do for
her. As for seeing unauthorized doctors, Ms. Moody testified she has not done so
because her personal health insurance would not cover it given that her problems
stemmed from a workers' compensation injury.

       On March 1, 2018, Ms. Moody sustained another injury when a student
accidentally struck her left knee causing pain on the posterolateral side. Cumberland
County accepted the injury as compensable and provided Ms. Moody with a panel of
orthopedists from which she chose Dr. Jonathon Cornelius; however, it only authorized
Dr. Cornelius to treat the 2018 injury.

       On his initial exam, Dr. Cornelius observed tenderness and limited mobility,
which he related primarily to the 2018 injury. He reviewed a recent MRI and noted Ms.
Moody's 2015 ACL reconstruction was intact. Although she had moderate arthritis, he
did not observe any acute changes. In his deposition, he stated that her arthritis was due
to either her 2015 injury or her age. He injected cortisone into her knee and ordered
physical therapy with the goal of returning Ms. Moody's symptoms back to baseline
before her 2018 injury. Dr. Cornelius saw her for a final time on May 9. He felt that her
knee had returned to the condition it was in before the 2018 injury. He placed her at
maximum medical improvement and released her to return to work without restrictions or
impairment.

       On May 15, Dr. Cornelius wrote a letter stating that he believed Ms. Moody still
suffered from symptoms stemming from her 20 15 injury and would benefit from
viscosupplementation injections in her knee. He also stated he would be happy to assume
Ms. Moody's care for the 2015 injury. Cumberland County declined his offer.


                                             2
                       Findings of Fact and Conclusions of Law

      Ms. Moody need not prove every element of her claim by a preponderance of the
evidence to obtain relief at an expedited hearing. Instead, she must present sufficient
evidence that she is likely to prevail at a hearing on the merits. See Tenn. Code Ann. §
50-6-239(d)(1) (2017); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).

       The sole issue is whether Ms. Moody is entitled to another authorized physician,
specifically Dr. Cornelius, for treatment of her 2015 work injury. The evidence
established that Cumberland County provided Ms. Moody with a panel of physicians
under Tennessee Code Annotated section 50-6-204(a)(3)(A)(i) from which she
voluntarily chose Dr. Turnbull as her authorized physician. However, Ms. Moody argues
that she is entitled to treat with another doctor, preferably Dr. Cornelius, given Dr.
Turnbull's dismissive attitude toward her continued symptoms and Dr. Cornelius's
willingness to provide treatment for her complaints.

Whether an employee is justified in seeking payment for unauthorized medical expenses
from an employer depends upon the circumstances. Hackney v. Integrity Staffing
Solutions, 2016 TN Wrk. Comp. App. Bd. LEXIS 29, at *8-9 (July 22, 2016). Here, the
Court finds that the circumstances do not yet justifY compelling Cumberland County to
provide treatment with an orthopedist other than Dr. Turnbull. Before unauthorized
treatment can be compelled, the employer must first be given an opportunity to determine
whether the treatment is reasonable and necessary for the work injury. !d. By refusing to
seek any additional care from Dr. Turnbull, Ms. Moody has not given Cumberland
County the opportunity to provide further authorized treatment should the circumstances
warrant. The Court acknowledges that Ms. Moody feels Dr. Turnbull marginalized her
complaints and questioned her credibility during his course of treatment; however, those
feelings alone do not justifY transferring her care to another doctor without an attempt to
return to Dr. Turnbull. See Baker v. Electrolux, 2017 TN Wrk. Comp. App. Bd. LEXIS
65, at *8-9 (Oct. 20, 2017) (employee's dissatisfaction with authorized doctor's care not
enough to require the employer to authorize treatment with another physician).

      IT IS, THEREFORE, ORDERED that:

   1. Ms. Moody's request for another authorized physician is denied at this time.

   2. This matter is set for a Scheduling Hearing on December 3, 2018, at 2:00p.m.
      C.S.T. The parties or their counsel must call 615-253-0010 or toll-free at 855-
      689-9049 to participate in the hearing.         Failure to call may result in a
      determination of the issues without your participation.



                                            3
ENTERED OCTOBER 16,2018.




                                              . am, Judge
                                 Court of Workers' Compensation Claims


                                     APPENDIX

Technical Record

   1.   Petition for Benefit Determination
   2.   Dispute Certification Notice
   3.   Cumberland County's Witness and Exhibit List
   4.   Cumberland County's Expedited Hearing Brief

Exhibits

   1. First Report of Injury
   2. Employee Accident Report
   3. Choice of Physician Form
   4. Physical Therapy Records
   5. Ms. Moody's submitted medical records
   6. Causation letter and treatment recommendations from Dr. Cornelius
   7. Mrs. Moody's affidavit
   8. Mr. Moody's affidavit
   9. Patricia Edington's affidavit (for I.D. only)
   10.Dr. Cornelius's deposition with attachments
   11. Dr. Turnbull's affidavit with attachments
   12. Dr. Mackey's deposition (for back complaints) with attachments.




                                          4
                            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 October 16,2018.

Name                Certified   Via        Service sent to:
                    Mail        Email
Stacy Moody            X           X       55 Southway
                                           Crossville, TN 38555
                                           srstacymoody@Jgmail.com
Terri Bernal                        X      tbemal@Jcharwelllaw .com




                                  Pen~u ~:.:;'
                                  Court of
                                                  ,
                                                 rkers' Compensation Claims




                                             5
                           Expedited Hearing Order Right to Appeal:

     If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:

   1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
      form with the Clerk of the Court of Workers’ Compensation Claims within seven
      business days of the date the expedited hearing order was filed. When filing the Notice
      of Appeal, you must serve a copy upon all parties.

   2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
      calendar days after filing of the Notice of Appeal. Payments can be made in-person at
      any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
      alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
      website or any Bureau office) seeking a waiver of the fee. You must file the fully-
      completed Affidavit of Indigency within ten calendar days of filing the Notice of
      Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
      result in dismissal of the appeal.

   3. You bear the responsibility of ensuring a complete record on appeal. You may request
      from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
      the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
      it with the court clerk within ten business days of the filing the Notice of
      Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
      parties within ten business days of the filing of the Notice of Appeal. The statement of
      the evidence must convey a complete and accurate account of the hearing. The Workers’
      Compensation Judge must approve the statement before the record is submitted to the
      Appeals Board. If the Appeals Board is called upon to review testimony or other proof
      concerning factual matters, the absence of a transcript or statement of the evidence can be
      a significant obstacle to meaningful appellate review.

   4. If you wish to file a position statement, you must file it with the court clerk within ten
      business days after the deadline to file a transcript or statement of the evidence. The
      party opposing the appeal may file a response with the court clerk within ten business
      days after you file your position statement. All position statements should include: (1) a
      statement summarizing the facts of the case from the evidence admitted during the
      expedited hearing; (2) a statement summarizing the disposition of the case as a result of
      the expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an
      argument, citing appropriate statutes, case law, or other authority.




For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
 .
ll                                                                                                                 .I




                                    Tennessee Bureau of Workers' Compensation
                                           220 French Landing Drive, 1-B
                                             Nashville, TN 37243-1002
                                                   800-332-2667


                                               AFFIDAVIT OF INDIGENCY


     I,                                                , having been duly sworn according to law, make oath that
     because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
     waived. The following facts support my poverty.

     1. Full Name:_ _ _ _ _ _ _ _ _ _ __                      2. Address: - - - - - - - - - - - - -

     3. Telephone Number: - - - - - - - - -                   4. Date of Birth: - - - - - - - - - - -

     5. Names and Ages of All Dependents:

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

             - - - - - - - - - - - - - - -- -                 Relationship: - - - - - - - - - - - --

             - - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -

     6. I am employed by: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , -

             My employer's address is: - - - - - - - - - - - - - - - - - - - - - - - - -

             My employer's phone number is: - - - - - - - - - - - - - - - - - - - - - - -

     7. My present monthly household income, after federal income and social security taxes are deducted, is:

     $ _ _ _ _ _ _ ___

     8. I receive or expect to receive money from the following sources:

             AFDC            $            per month           beginning
             SSI             $            per month           beginning
             Retirement      $            per month           beginning
             Disability      $            per month           beginning
             Unemployment $               per month           beginning
             Worker's Camp.$              per month           beginning
             Other           $            per month           beginning



     LB-1108 (REV 11/15)                                                                               RDA 11082
9. My expenses are: ' ;                                                     !•
                                                                             '

        Rent/House Payment $              per month     Medical/Dental $            per month

        Groceries         $         per month           Telephone       $           per month
        Electricity       $         per month           School Supplies $           per month
        Water             $         per month           Clothing        $           per month
        Gas               $         per month           Child Care      $           per month
        Transportation $            per month           Child Support   $           per month
        Car               $          per month
        Other             $         per month (describe:


10. Assets:

        Automobile              $ _ _ __ _
                                                        (FMV) -    - - - - -- - - -
        Checking/Savings Acct. $ _ _ _ __
        House                   $ _ _ _ __
                                                        (FMV) - - -- - - -- - -
              )
        Other                   $ _ _ _ __              Describe:_ _ _ __ _ _ _ _ __


11. My debts are:

        Amount Owed                     To Whom




I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.




APPELLANT



Sworn and subscribed before me, a notary public, this

_ _ _ dayof _____________ ,20____




NOTARY PUBLIC

My Commission Expires:_ _ _ _ _ __ _




LB-1108 (REV 11/15)                                                                         RDA 11082
