Hwes, James v. McLane Co., Inc. , 2021 TN WC 181 ( 2021 )

FILED
May 28, 2021
09:34 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MEMPHIS
JAMES HAWES, ) Docket No. 2021-08-1017
Employee, )
)
) State File No. 2742-2021
v. )
McLANE CO., INC., )
Employer. ) Judge Allen Phillips
EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS
This case came before the Court for an Expedited Hearing on May 10, 2021. Mr.
Hawes requested an order compelling McLane to provide him a panel of physicians for a
back injury. He also requested attorney’s fees and a penalty for wrongful denial. McLane
asserted that the injury did not arise out of the employment. For the following reasons, the
Court holds Mr. Hawes is entitled to a panel of physicians. The Court reserves the issues
of attorney’s fees and penalties for later determination.
History of Claim
On December 8, 2020, Mr. Hawes felt back pain when lifting a box. He immediately
reported the incident, and McLane completed a First Report of Work Injury.
Later that day, McLane arranged a telephone “triage call” with Emerge Diagnostic.
A report from that call documents the history of injury and Mr. Hawes’s symptoms. It also
included a notation that Mr. Hawes was not referred to “in-person care,” but instead was
referred for an “EFA test.” The report is not clear as to who spoke with Mr. Hawes or who
completed the report. It concluded with: “no answer calling Dr. Badii.”
On December 11, McLane arranged a “Telemedicine Visit” with FMCA-PA,
located in Hollis, New York according to a written report. In the report, Dr. Naiyer Imam
said Mr. Hawes had normal range of motion of his back. The doctor then said, “[a] physical
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examination was conducted using EFA guided technology.” In an “EFA Summary,” he
stated that “both evaluations demonstrated chronic changes” and “inappropriate muscle
usage.” Dr. Imam concluded: “The EFA findings concur with my examination. Based on
the comparison of the baseline EFA and today’s EFA there was no acute pathology or
change in condition. Therefore there does not appear to be a need for treatment on an
industrial basis.”
Dr. Imam’s findings regarding the EFA were incorporated in an “Electrodiagnostic
Functional Assessment Report” also dated December 11. That report was signed by Dr.
MaryRose Reaston, PhD. and Dr. Clay Everline, MD. The report began with a “Brief
explanation [sic] of Evaluation” that read as follows:
The Electrodiagnostic Functional Assessment (EFA) is designed to evaluate
the functional capacity of the musculoskeletal system. The EFA is a modality
that gives the diagnostician an opportunity to monitor the voluntary and
involuntary responses of muscle groups in direct correlation with the
patient’s range of motion . . . The EFA-STM Program allows for comparison
of the baseline test with the second test to determine acute pathology or
change in condition.
The report documented that Mr. Hawes underwent a “baseline test” (EFA) on
August 21, 2020, when McLane hired him, and the second EFA on December 11. The
report stated that, “comparisons were made to the baseline to determine changes, if any.”
Based on the findings of the second EFA ̶ the appearance of chronic changes and
inappropriate muscle usage documented by Dr. Imam ̶ Drs. Reaston and Everline agreed
that the EFA demonstrated no acute pathology or change in condition from the baseline
test. Thus, they concluded that Mr. Hawes needed no treatment “on an industrial basis.”
They did note that, “[c]linical correlation and screening for any contraindications to
suggested treatment modalities is recommended.”
At the hearing, Dr. Reaston detailed her qualifications, explaining she held
Bachelors, Masters and Doctoral degrees in psychology. She also obtained a certificate in
electromyography and clinical neurophysiology after completing a three-month course
through Harvard Medical School. She and her husband founded Emerge Diagnostic, and
they hold patents on several of the technologies used in EFA testing. The company has
numerous clients who use the testing, many of which, like McLane, utilize the EFA
protocol at the time an employee is hired to establish a “baseline” of neuromuscular
function. That baseline testing might be used for comparison to a post-injury EFA to
determine if an injury caused change in neuromuscular function, indicating the presence or
absence of injury.
Dr. Reaston explained that EFA testing is superior to traditional electromyography,
in that it tests a wider spectrum of neuromuscular functions. She said “medical personnel”
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actually place the electrodes on the examinee but the test is ordered by a medical doctor.
She said the error rate of baseline and post-injury testing is “+/- 5%.”
On cross-examination, Dr. Reaston admitted that Drs. Imam and Everline are not
located in Tennessee and both are affiliated with Emerge. She admitted to marketing
Emerge by emphasizing to employers that EFA reveals a significant percentage of
employees have not sustained an injury. Further, she appears in court at no additional
charge to defend EFA test results.
For his part, Mr. Hawes explained that he was directed to participate in the EFA
test. He did not know the identity of the technician who actually placed electrodes on his
body. The EFA performed when McLane hired him was similarly conducted, and it too
was performed in the absence of a medical doctor. Mr. Hawes said no one told him of the
EFA results until after he learned his claim was denied. McLane denied the claim as
documented in a Notice of Denial (Form C-23) on January 14, 2021, stating as the basis,
“no injury arose out of or occurred in the course and scope of employment.”
Based on this evidence, Mr. Hawes asked for a panel of physicians. He stated he
suffered ongoing back pain that prevented him from working. His counsel forcefully
argued that Emerge marketed the testing as a means for employers to avoid their statutory
duty to provide medical benefits. He called EFA, “advocacy dressed up as science” and
counsel claimed his “job is to kill this in the crib” and “send a clear message that this is not
how it’s done in Tennessee.” However, counsel conceded that the science of EFA testing
was ultimately not the issue, but rather whether McLane was obligated to provide a panel.
McLane contended that the issue was not one of policy, but instead argued the focus
should be whether Mr. Hawes’s injury arose out of his employment. Because the EFA
showed no injury, McLane argued it had a valid defense and was not required to provide a
panel.
Findings of Fact and Conclusions of Law
Panel of physicians
Under Tennessee Code Annotated section 50-6-204(a)(1)(A), an employer must
furnish medical treatment made reasonably necessary by an injury. However, referring an
employee to a single physician does not comply with the statute. Ducros v. Metro Roofing
and Metal Supply Co., Inc., 2017 TN Wrk Comp App Bd LEXIS 62, at *10 (Oct. 17, 2017),
citing Employers Ins. of Wausau v. Carter, 522 S.W.2d 174, 176 (Tenn. 1975). Instead,
section 204(a)(3)(A)(i) requires that when an “employee has suffered an injury and
expressed a need for medical care, the employer shall designate” a panel of physicians
from which the employee may select one for treatment. (Emphasis added). The emphasized
word, “shall,” is plain and unambiguous; an employer is required by statute to provide a
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panel. See, Thomas v. Zipp Express, 2017 TN Wrk. Comp. App. Bd. LEXIS 22, at *11 n.4
(Mar. 15, 2017) (the word “shall” is plain and unambiguous).
Here, Mr. Hawes claimed an injury, he timely reported it, and McLane did not
contest the underlying incident. However, rather than providing a panel of physicians,
McLane provided a telehealth evaluation with a physician of its choosing who supervised
the performance of the EFA. Because the EFA showed Mr. Hawes did not sustain an injury,
McLane contended it was not required to provide a panel. The Court disagrees. McLane
obtained the EFA by failing to comply with the statute when it referred Mr. Hawes to a
single physician, thus usurping his privilege to choose one from a panel. Failure to abide
by the law cannot form the basis of a defense.
Further, Tennessee law is clear that an employee need not prove every element of
his claim by a preponderance of the evidence at an expedited hearing. Instead, he must
show he would likely prevail at a hearing on the merits. Tennessee Code Annotated section
50-6-239(d)(1) (2020). In McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *9 (Mar. 27, 2015), the Appeals Board explained that “a contrary
rule would require many injured workers to seek out, obtain, and pay for a medical
evaluation or treatment before his or her employer would have any obligation to provide
medical benefits. The delays inherent in such an approach, not to mention the cost barrier
for many workers, would be inconsistent with a fair, expeditious, and efficient workers'
compensation system.”
In McCord, the Appeals Board noted that, “whether the alleged work accident
resulted in a compensable injury [had] yet to be determined.” Nevertheless, the Board
found the employee came forward with sufficient evidence supporting an order for a panel
when the employee established that she reported an injury and the employer offered
nothing to rebut the occurrence. Id. at *18. The same is true here, and the Court orders
McLane to provide Mr. Hawes a panel.
Attorney’s fees and penalty referral
Mr. Hawes’s attorney requested fees for wrongful denial under Tennessee Code
Annotated section 50-6-226(d)(1)(B). The Court cannot award those fees because the date
of injury is December 8, 2020, a date to which section 226(d)(1)(B) did not apply.
Specifically, under the applicable version of section 226(d)(2), the Court might award
attorney’s fees only for injuries that occurred between July 1, 2016 and June 20, 2020.
Counsel also requested McLane be penalized for wrongful denial of the claim.
Tennessee Code Annotated section 50-6-118 provides penalties for certain actions or
inactions of parties. It does not specifically provide for “wrongful denial” of a claim.
However, under section 118(a)(12), an employer may be sanctioned for failure to timely
provide a panel of physicians meeting the statutory requirements. Further, Tennessee
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Compilation Rules and Regulations 0800-02-01-.06(1) (May, 2018) provides: “Following
receipt of notice of a workplace injury and the employee expressing a need for medical
care, an employer shall, as soon as practicable but no later than three (3) business days after
receipt of such request, provide the employee a panel of physicians as prescribed in T.C.A.
§ 50-6-204.” The Court finds McLane failed to do so and refers it to the Compliance
Program for consideration of a penalty.
IT IS, THEREFORE, ORDERED AS FOLLOWS:
1. McLane shall provide Mr. Hawes a panel of physicians under Tennessee Code
Annotated section 50-6-204(a)(3)(A)(i).
2. The Court refers McLane to the Compliance Program for its consideration of a
penalty under Tennessee Code Annotated section 50-6-118(12) and Tennessee
Compilation Rules and Regulations 0800-02-01-.06(1) (May, 2018) for failure to
timely provide a panel of physicians under law.
3. The Court denies Mr. Hawes’s request for attorney’s fees for wrongful denial at this
time.
4. The Court sets a Status Hearing on Monday, July 26, 2021, at 10:30 a.m. Central
Time. The parties must call 731-422-5263 or toll-free at 855-543-5038 to
participate in the Hearing. Failure to call might result in a determination of any
issues without the party’s participation.
5. 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 by email at WCCompliance.Program@tn.gov.
ENTERED May 28, 2021.
______________________________________
JUDGE ALLEN PHILLIPS
Court of Workers’ Compensation Claims
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APPENDIX
Exhibits
1. Collective Medical Records
2. First Report of Work Injury with attachments
3. Notice of Denial (C-23)
4. Dr. Reaston’s CV
5. Research Article regarding muscle activity patterns
Technical record
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Employer’s Motion to Allow Expedited Hearing Testimony by Telephone
5. Order Granting Motion to Allow Telephone Testimony
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on May 28, 2021.
Name Via Email Service Sent To:
Jonathan May, X jmay@forthepeople.com
Employee’s Attorney cwoods@forthepeople.com
Kyle I. Cannon, X kcannon@gwtclaw.com
Employer’s Attorney
Compliance Program X WCCompliance.Program@tn.gov
______________________________________
Penny Shrum, Court Clerk
Wc.courtcler@tn.gov
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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: “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.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov | 1-800-332-2667
Docket No.: ________________________
State File No.: ______________________
Date of Injury: _____________________
___________________________________________________________________________
Employee
v.
___________________________________________________________________________
Employer
Notice is given that ____________________________________________________________________
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
□ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
□ Compensation Order filed on__________________ □ Other Order filed on_____________________
issued by Judge _________________________________________________________________________.
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
________________________________________________________________________________________
Parties
Appellant(s) (Requesting Party): _________________________________________ ☐Employer ☐Employee
Address: ________________________________________________________ Phone: ___________________
Email: __________________________________________________________
Attorney’s Name: ______________________________________________ BPR#: _______________________
Attorney’s Email: ______________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
Employee Name: _______________________________________ Docket No.: _____________________ Date of Inj.: _______________
Appellee(s) (Opposing Party): ___________________________________________ ☐Employer ☐Employee
Appellee’s Address: ______________________________________________ Phone: ____________________
Email: _________________________________________________________
Attorney’s Name: _____________________________________________ BPR#: ________________________
Attorney’s Email: _____________________________________________ Phone: _______________________
Attorney’s Address: _________________________________________________________________________
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, _____________________________________________________________, certify that I have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the __________ day of ___________________________________, 20 ____.
______________________________________________
[Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082