Oteey, Eddie v. Asplundh Tree Expert Company , 2022 TN WC 40 ( 2022 )

FILED
May 05, 2022
07:07 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT GRAY
EDDIE OTEY, ) Docket No. 2021-02-0655
Employee, )
v. )
ASPLUNDH TREEE EXPERT )
COMPANY, ) State File No. 8267-2021
Employer, )
And )
XL INSURANCE AMERICA )
INCORPORATED, ) Judge Brian K. Addington
Carrier. )
EXPEDITED HEARING ORDER
The Court held an expedited hearing on April 28, 2022, for payment of authorized
medical bills, including charges for prescription medication, as well as penalties for late
payment of benefits. Asplundh Tree Expert Company asserted the medical bills were not
disputed, but it also contended that it should not be penalized for their late payment.
Since Asplundh does not dispute the bills in question, the Court finds that Mr. Otey
is likely to succeed at a hearing on the merits in proving that it should pay them. The Court
also refers this case to the Compliance Program for consideration of an assessment of a
penalty.
Claim History
Mr. Otey was working for Asplundh on January 18, 2021, when he fell on uneven
ground, causing him to lose a tooth and injure multiple body parts.
Asplundh authorized treatment for all his injuries, but three of the providers sought
payment from Mr. Otey. First, Dr. Stephanie Snelson, DDS, had previously treated Mr.
Otey for non-work-related dental problems. Her office sent him bills totaling $439.09 and
resorted to calling him for payment even after he informed her office that the treatment was
for a work-related injury. Second, Dr. Paul Jett, a panel physician, also sent bills to Mr.
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Otey, incorrectly stating that the charges were for a second opinion with the option to treat.
His bill is $750.00, but his office has not contacted Mr. Otey demanding payment. Third,
Dr. Rebekah Austin, another panel physician, sent bills to Mr. Otey for his work-injury.
Her bill is $37.80. Her office has not contacted Mr. Otey demanding payment.
Mr. Otey also testified that he cannot obtain payment for certain prescription
medication prescribed by his authorized providers, although he did not present medical or
billing records documenting the requested charges.
Asplundh did not dispute the doctors’ charges but argued that the physicians
miscoded their payment requests. It did not offer evidence to support its argument. It did
not respond to the prescription issue because Mr. Otey did not provide specific
documentation.
Findings of Fact and Conclusions of Law
For the Court to grant Mr. Otey’s requests, he must prove he is likely to prevail at a
hearing on the merits. See Tenn. Code Ann. § 50-6-239(d)(1) (2021); McCord v. Advantage
Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (March 27, 2015).
Concerning the medical bills, Tennessee Code Annotated section 50-6-204(a)
requires the employer to provide, “free of charge to the employee,” treatment of all injuries
that arise out of and in the course and scope of employment. Asplundh did not contest the
amounts owed for authorized treatment but limited its argument to defending against a
penalty for late payment. Therefore, the Court holds Mr. Otey is likely to prove at a hearing
on the merits that he is entitled to payment of Drs. Snelson’s, Jett’s, and Austin’s bills.
As for the prescription charges, the Court holds that, without documentation, Mr.
Otey is not likely to prove at a hearing on the merits that he is entitled to payment for these
prescriptions.
Finally, Asplundh did not provide evidence justifying its failure to pay the bills or
why a penalty would be inappropriate. Regardless, it is not for this Court to make that
determination. The Court refers this case to the Compliance Program under Tennessee
Compilation Rules and Regulations 0800-02-24.03 (March, 2015) for consideration of an
administrative penalty for late payment of authorized medical treatment.
The Court also refers Dr. Snelson to the Compliance Program because her office
contacted Mr. Otey and demanded payment from him for treatment of his work-related
injury.
IT IS, THEREFORE, ORDERED as follows:
1. Asplundh shall pay Dr. Snelson $439.09, Dr. Jett $750.00, and Dr. Austin $37.80 under
Tennessee Code Annotated Section 50-6-204.
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2. The Court denies Mr. Otey’s request for payment of prescription medications at this
time. However, Asplundh shall provide all authorized medical benefits, including
prescriptions, as required by Tennessee Code Annotated Section 50-6-204.
3. The Court refers Asplundh to the Compliance Program for consideration of a penalty
for failing to pay the bills in question.
4. The Court refers Dr. Snelson to the Compliance Program for consideration of a penalty
for contacting and demanding payment from Mr. Otey.
5. A status hearing will take place on June 16, 2022, at 10:00 a.m. Eastern Time. The
parties must call 855-543-5044 to participate. Failure to call might result in a
determination of issues without your participation.
6. Unless an 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 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 confirmation within seven business days may result in a
penalty assessment for non-compliance. For questions regarding compliance, contact
the Workers’ Compensation Compliance Unit via email at
WCComplaince.Program@tn.gov.
It is ORDERED.
ENTERED May 5, 2022.
______________________________________
BRIAN K. ADDINGTON, JUDGE
Court of Workers’ Compensation Claims
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APPENDIX
Exhibits:
1. Affidavit of Dr. Stephanie Snelson, DDS
2. Affidavit of Dr. Paul L. Jett
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Hearing Request with Attachments
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent to the recipients below as indicated on
May 5, 2022.
Name Certified Fax Email Service sent to:
Mail
Michael Large, X michael@largelaw.com
Employee’s Attorney marlene@largelaw.com
Richard Clark, X rclark@eraclides.com
Employer’s Attorney jenniferdavis@eraclides.com
Compliance Program X wccompliance.program@tn.gov
______________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@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