Yow, James v. Lowe's Investment Corp. ( 2023 )

FILED
Aug 18, 2023
09:40 AM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
James Yow ) Docket No. 2022-08-1050
)
v. ) State File No. 33104-2020
)
Lowe’s Investment Corp., et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Thomas L. Wyatt, Judge )
Affirmed and Remanded
In this interlocutory appeal, the employer challenges the trial court’s order compelling it
to provide the employee a panel of physicians in the geographic area where he now lives.
The employer argues that the employee’s original treating physicians indicated they did
not reasonably anticipate a need for future medical care and that the employee did not
come forward with evidence that additional medical care is reasonable and necessary as a
result of the work accident. In rejecting the employer’s argument, the trial court reasoned
that the Workers’ Compensation Law requires an employer to provide a new panel of
physicians under these circumstances. The employer has appealed. We affirm the trial
court’s order and remand the case.
Presiding Judge Timothy W. Conner delivered the opinion of the Appeals Board in which
Judge Pele I. Godkin and Judge Meredith B. Weaver joined.
W. Troy Hart, Knoxville, Tennessee, for the appellant, Lowe’s Investment Corp.
Charles R. Patrick, Memphis, Tennessee, for the appellee, James Yow
Factual and Procedural Background
James Yow (“Employee”) sustained a compensable injury on May 27, 2020, while
working for Lowe’s Investment Corp. (“Employer”), when a door display fell and struck
him in the head. 1 Medical benefits were provided, and Employee received treatment
1
In various places in the record, the employer is referred to as Lowes, Lowe’s Investment Corporation, or
Lowe’s Home Centers, Inc. Because there is no motion to amend the pleadings or an order clarifying the
employer’s correct name, we have styled our opinion consistent with the trial court’s interlocutory order.
1
from Dr. Jon G. Staffel, an ear, nose, and throat specialist, and Dr. Rance Wilbourne, a
neurologist. Employee’s diagnoses included displaced fractures of facial bones, a facial
laceration, headaches, neuralgia, cervicalgia, and TMJ joint dysfunction. Dr. Wilbourne
placed Employee at maximum medical improvement (“MMI”) on October 2, 2020, and
Dr. Staffel placed Employee at MMI on May 27, 2022.
In 2022, Employee moved his residence to Florida and asked Employer to provide
new panels of physicians for continuing treatment of his work-related injuries. Employer
declined to do so. In support of its decision, Employer submitted Dr. Staffel’s and Dr.
Wilbourne’s responses to written questionnaires forwarded to them by Employer’s
counsel. On those questionnaires, both Dr. Staffel and Dr. Wilbourne checked “yes” in
response to the following question:
Considering that there has been no anatomical change in Mr. Yow’s
condition, do you anticipate that if Mr. Yow will need future medical
treatment, it will be for a personal reason and in no way related to his work-
related injury?
In addition, Dr. Wilbourne included several handwritten notes in his responses related to
Employee’s TMJ joint complaints, one of which stated, “The work-related accident likely
exacerbated an underlying chronic issue,” and another stated, “Again, [the work accident]
likely exacerbated [Employee’s pre-existing TMJ issue] acutely.”
After Employer declined to provide a new panel of physicians, Employee was
seen at a Florida emergency room, where he reported his history of a work-related injury
and complained of dizziness and nausea. Emergency room personnel referred Employee
to a neurologist. Thereafter, Employee filed a petition, and the court issued a docketing
notice indicating it would decide the matter on the record without holding an in-person
hearing. Neither party objected to the court’s notice of an on-the-record determination,
and both parties submitted position statements and documentation for the court’s
consideration. In its expedited hearing order, the court concluded Employer had a
statutory obligation to offer Employee a new panel of physicians in these circumstances,
and Employer has appealed. 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) (2022). When the trial judge has had the
2
In its expedited hearing order, the trial court also concluded Employee was entitled to an award of
attorneys’ fees and costs and instructed Employee to file an appropriate petition for such fees and costs.
Employer did not appeal that aspect of the trial court’s order. As of the date the notice of appeal was
filed, Employee’s petition for fees and costs remained pending.
2
opportunity to observe a witness’s demeanor and to hear in-court testimony, we give
considerable deference to factual findings of the trial court. Madden v. Holland Grp. of
Tenn., Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, “[n]o similar deference need
be afforded the trial court’s findings based upon documentary evidence.” Goodman v.
Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at *6 (Tenn.
Workers’ Comp. Panel Jan. 18, 2018). The interpretation and application of statutes and
regulations are questions of law that are reviewed de novo with no presumption of
correctness afforded the trial court’s conclusions. See Mansell v. Bridgestone Firestone
N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are also mindful of our
obligation to construe the workers’ compensation statutes “fairly, impartially, and in
accordance with basic principles of statutory construction” and in a way that does not
favor either the employee or the employer. Tenn. Code Ann. § 50-6-116 (2022).
Analysis
On appeal, Employer asserts the trial court made a “clearly erroneous
interpretation of [Tennessee Code Annotated section] 50-6-204(a)(3)(F).” For his part,
Employee asserts that Employer’s appeal is frivolous and that it should be held liable for
“damages,” including but not limited to additional attorneys’ fees and costs on appeal.
Order for Panel of Physicians
In essence, Employer argues on appeal that, in circumstances where an authorized
treating physician has expressed an opinion that no future medical care is reasonably
anticipated, Employee has the burden of proving that additional medical care is
reasonable, necessary, and causally related to the work accident before Employer will
have any further obligation to authorize medical treatment. We disagree.
Tennessee Code Annotated section 50-6-204(a)(1)(A) obligates an employer to
provide an injured worker “free of charge . . . such medical and surgical
treatment . . . made reasonably necessary by accident as defined in this chapter.” The
various obligations of the employee and the employer are described in Tennessee Code
Annotated section 204(a)(3)(A)(i), which requires the employee to “accept the medical
benefits afforded under this section” and the employer to “designate a group of three (3)
or more physicians . . . from which the injured employee shall select one (1) to be the
treating physician.” Further, the rules applicable to Tennessee’s workers’ compensation
program mandate the provision of a panel of physicians “[f]ollowing receipt of notice of
a workplace injury and the employee expressing a need for medical care.” Tenn. Comp.
R. & Regs. 0800-02-01-.06(1). Finally, in circumstances where an injured employee
“changes the employee’s community of residence after selection of a physician under this
subdivision (a)(3), the employer shall provide the employee, upon written request, a new
panel of reputable physicians . . . from which the employee shall select one (1) to be the
treating physician.” Tenn. Code Ann. § 50-6-204(a)(3)(F) (emphasis added.)
3
We have previously addressed employers’ obligations to provide panels of
physicians. For example, in Hawes v. McLane Co., Inc., No. 2021-08-0170, 2021 TN
Wrk. Comp. App. Bd. LEXIS 30, at *9-11 (Tenn. Workers’ Comp. App. Bd. Aug. 25,
2021), we explained as follows:
Employer contends it has an absolute right to decline providing a panel of
physicians when the employer has evidence establishing a defense to the
employee’s alleged work-related injury. While we agree an employer has a
right to investigate and deny an employee’s claim based on its factual
assertion that the alleged work accident did not occur as reported, or as the
result of asserting an affirmative defense, see Tennessee Code Annotated
section 50-6-110, an employer’s assertion that an employee has no medical
evidence supporting his or her claim does not, standing alone, excuse it
from the statutory obligations under section 50-6-204(a)(1)(A). In Lindsey
v. Strohs Companies, 830 S.W.2d 899[, 902-03] (Tenn. 1992), the
Tennessee Supreme Court explained the concomitant duties of the parties
with respect to medical treatment:
Under Tenn. Code Ann. § 50-6-204 . . ., an employer has a duty
to furnish medical and surgical treatment reasonably necessary
to treat a work-related injury. Under the same statute, the
injured employee has a corresponding duty to accept the
medical benefits provided by the employer, but only if the
employer provides a list of three or more physicians or
surgeons from which the employee has the privilege of
selecting the operating surgeon or attending physician.
(Internal quotation marks omitted.)
Further, we addressed an employer’s obligations to provide a new panel of
physicians in circumstances where the original panel-selected physician was no longer
willing or able to provide authorized treatment. In 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), the panel-selected physician advised the employee that he had
no other treatment to offer and refused to schedule another appointment “despite repeated
requests.” Id. at *3. The employer took the position that it had no further obligation to
provide medical benefits and, in support of this position, produced a letter from the
treating physician indicating that the doctor “did not believe [the employee] ‘will require
further medical treatment as it directly relates to . . . the work-related injury.’” Id. In
rejecting Employer’s argument, we explained:
[A]n employer cannot unilaterally terminate an employee’s entitlement to
reasonable and necessary medical benefits following a compensable work
4
injury. As explained by the Workers’ Compensation Appeals Panel, “[i]n
the absence of evidence directed specifically to the issue of termination of
treatment, the employer must provide [the employee with] future, free
reasonably necessary medical . . . treatment.” Kennedy v. Lakeway Auto
Sales, Inc., E2010-02422-WC-R3-WC, 2011 Tenn. LEXIS 842, at *8
(Tenn. Workers’ Comp. Panel Aug. 30, 2011).
Id. at *6. We then concluded, “Unless a court terminates an employee’s entitlement to
medical benefits or approves a settlement in which the parties reach a compromise on the
issue of future medical benefits, an injured worker remains entitled to reasonable and
necessary medical treatment causally related to the work injury.” Id. at *7 (emphasis
added).
Here, Employer argues that, even in circumstances where it has accepted the
compensability of an employee’s claim, if a panel-selected physician indicates that he or
she does not reasonably anticipate a need for further medical care, the employer’s
obligation to provide medical benefits is suspended, and the employee has the burden of
proving that further medical care is reasonable and necessary. We conclude Employer
has misconstrued Tennessee law on this issue.
First, Tennessee Code Annotated section 50-6-204(a)(3)(F) requires an employer
to provide a new panel of physicians in compensable cases where the injured worker has
moved his or her residence to a new community. Thus, in circumstances where an
injured worker with a compensable claim moves to a new locality, the employer shall
provide a new panel of physicians, and it is that physician’s duty to determine whether
additional medical treatment is reasonable, necessary, and causally related to the work
accident. Further, section 50-6-204(a)(3)(H) creates a rebuttable presumption that
treatment recommended by a panel-selected physician is reasonable and necessary.
Second, we note that the questionnaires Employer sent to the panel-selected
physicians in the present case contained a significant caveat. In asking whether the
physicians reasonably anticipated any need for additional treatment, Employer asked the
physicians to presume that “there has been no anatomical change” in Employee’s
condition. However, Employer offered no factual basis for this assertion, and each
physician would have personal knowledge of Employee’s physical condition only as of
the last date that physician examined Employee. Further, Employee presented medical
records indicating he had sought treatment at an emergency room in Florida in August
2022 for vision changes and “intermittent bouts of dizziness” with “occasional nausea”
after having “suffered a closed head injury 2 years ago . . . that resulted in a concussion
and nasal reconstruction.” Emergency room personnel referred Employee to a
neurologist. There is no indication in the record that either Dr. Wilbourne or Dr. Staffel
was aware of or reviewed these hospital records prior to responding to the questions
posed to them by Employer’s counsel.
5
We conclude, based on the totality of the circumstances and the evidence
presented, that Employer was obligated by Tennessee Code Annotated section 50-6-
204(a)(3)(F) to provide Employee a panel of physicians in his new locality. It will be the
selected physician’s responsibility to determine whether Employee needs additional
medical treatment that is reasonable, necessary, and causally related to the 2020 work
accident. Further, the selected physician’s opinion will be entitled to a presumption of
correctness in accordance with section 204(a)(3)(H), but that presumption is rebuttable by
a preponderance of the evidence. Rhea v. Titan Transfer, Inc., No. 2022-08-0514, 2023
TN Wrk. Comp. App. Bd. LEXIS 16, at *8 (Tenn. Workers’ Comp. App. Bd. Apr. 11,
2023). Thus, we agree with the trial court’s determination that Employer is statutorily
obligated to provide Employee a panel of neurologists in his new locality and to authorize
any treatment that the selected physician concludes is reasonable, necessary, and causally
related to the work accident.
Frivolous Appeal Claim
Finally, Employee asserts that Employer’s appeal is frivolous and, therefore,
Employee should be awarded “damages,” including attorneys’ fees and costs, associated
with this appeal. A frivolous appeal is one that is devoid of merit or brought solely for
delay. See, e.g., Yarbrough v. Protective Servs. Co., No. 2015-08-0574, 2016 TN Wrk.
Comp. App. Bd. LEXIS 3, at *11 (Tenn. Workers’ Comp. App. Bd. Jan. 25, 2016); see
also Burnette v. WestRock, No. 2016-01-0670, 2017 TN Wrk. Comp. App. Bd. LEXIS
66, at *15 (Tenn. Workers’ Comp. App. Bd. Oct. 31, 2017) (“Stated another way, a
frivolous appeal is one that . . . had no reasonable chance of succeeding.”). Litigants
“should not be required to endure the hassle and expense of baseless litigation. Nor
should appellate courts be required to waste time and resources on appeals that have no
realistic chance of success.” Yarbrough, 2016 TN Wrk. Comp. App. Bd. LEXIS 3, at
*16-17 (internal citations omitted). Based on the record before us, we conclude that,
although the issue is close, Employer’s appeal is not frivolous, and we decline to award
attorneys’ fees or costs arising from Employer’s appeal.
Conclusion
For the foregoing reasons, we affirm the trial court’s order and remand the case.
Costs on appeal are taxed to Employer.
6
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
James Yow ) Docket No. 2022-08-1050
)
v. ) State File No. 33104-2020
)
Lowe’s Investment Corp., et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Thomas L. Wyatt, Judge )
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 18th day
of August, 2023.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Charles Patrick X cpatrick@forthepeople.com
ccritter@forthepeople.com
Allison Tomey X aptomey@mijs.com
abhaley@mijs.com
Thomas L. Wyatt, Judge X Via Electronic Mail
Kenneth M. Switzer, Chief Judge X Via Electronic Mail
Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov
Workers’ Compensation Claims
Matthew Keene
Acting Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-532-1564
Electronic Mail: WCAppeals.Clerk@tn.gov