Cintron, Adelino v. Wheeler Technologies, LLC , 2023 TN WC 14 ( 2023 )

FILED
Mar 14, 2023
02:42 PM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT CHATTANOOGA
Adelino Cintron, ) Docket No.: 2022-01-0565
Employee, )
v. )
Wheeler Technologies, LLC, ) State File No.: 111402-2020
Employer, )
And )
Donegal Insurance Group, ) Judge Audrey A. Headrick
Carrier. )
EXPEDITED HEARING ORDER
(DECISION ON THE RECORD)
Mr. Cintron asked the Court either to order Wheeler to authorize an evaluation with
Dr. Peter Lund or to provide a panel of hand specialists based on a direct referral. Wheeler
denied that Mr. Cintron is entitled to see a hand specialist, asserting his carpal tunnel
syndrome is not causally related to the work injury. For the reasons below, the Court holds
Mr. Cintron is entitled to see Dr. Lund for an evaluation.
Claim History
On November 19, 2020, Mr. Cintron attempted to climb from the bucket of a truck
onto a ladder that opened mid-air, causing him to jerk back and forth. He initially received
authorized treatment from Dr. Jay Jolley for his back injury. Dr. Jolley placed Mr. Cintron
at maximum medical improvement for his back in June 2021. At the June visit, Dr. Jolley
noted that Mr. Cintron complained of “numbness, tingling and weakness in his [upper
extremities]” as well as “loss of strength in his hands.”
Later, Mr. Cintron selected Dr. David Lowry, board-certified in physical medicine
and rehabilitation, from a panel to evaluate his neck complaints. Mr. Cintron reported neck
pain that radiated down his shoulders and arms, weakness in both hands, and numbness.
Dr. Lowry ordered an EMG, which showed moderate carpal tunnel syndrome and
peripheral neuropathy.
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In May 2022, Dr. Lowry referred Mr. Cintron to see Dr. Peter Lund, a hand
specialist within his practice, to evaluate his carpal tunnel syndrome. However, Wheeler
neither authorized Dr. Lowry’s direct referral nor offered a panel of hand specialists.
During his February 2023 deposition, Dr. Lowry testified about his referral. He
acknowledged he was unable to state that the work injury caused Mr. Cintron’s carpal
tunnel syndrome. However, Dr. Lowry stated he “would have to defer the ultimate
judgment [of causation] to Dr. Lund, who is the hand specialist, to tell if he thought [the
carpal tunnel syndrome] could be acute or traumatic.” Further, Dr. Lowry viewed Dr. Lund
as “better qualified to opine as to the cause of the carpal tunnel syndrome.”
Findings of Fact and Conclusions of Law
Mr. Cintron must prove he is likely to prevail at a hearing on the merits that he is
entitled either to see Dr. Lund or to receive a panel of hand specialists. See Tenn. Code
Ann. § 50-6-239(d)(1) (2022). The Court finds he carried this burden and orders Wheeler
to authorize Mr. Cintron to see Dr. Lund.
Wheeler argued that Mr. Cintron’s carpal tunnel syndrome resulting in Dr. Lowry’s
referral is not work-related. The Court is not persuaded. Wheeler presented no medical
proof to support its assertion. See Lurz v. Int’l Paper Co., 2018 TN Wrk. Comp. App. Bd.
LEXIS 8, at *16-18 (Feb. 14, 2018) (parties and their lawyers cannot rely solely on their
own medical interpretations of the evidence to successfully support their arguments). Dr.
Lowry acknowledged he cannot state the work injury caused the carpal tunnel syndrome.
Instead, he deferred the causation determination to Dr. Lund. At this stage, Mr. Cintron
does not have to prove causation to see a hand specialist. Instead, he must only show he is
likely to prevail on the issue of whether Dr. Lowry made a valid referral.
Wheeler’s argument relies on its belief that a referring doctor must establish
causation before the referral is authorized. It provided no authority for its assertion, which
flatly contradicts the statutory mandate that any treatment recommended by a panel
physician shall be presumed to be medically necessary. Tenn. Code Ann. § 50-6-
204(a)(3)(H). Moreover, when Dr. Lowry referred Mr. Cintron to Dr. Lund, Wheeler had
three business days to accept the direct referral or to provide a panel of hand specialists.
Tenn. Code Ann. § 50-6-204(a)(3)(A)(ii).
Here, Dr. Lowry referred Mr. Cintron to Dr. Lund in May 2022. Ten months passed
from the referral date to the Expedited Hearing. In the interim, Dr. Lowry testified that he
deferred the causation opinion to Dr. Lund. Wheeler chose not to offer a panel. Therefore,
the Court holds Mr. Cintron is likely to prove at trial that he is entitled to see Dr. Lund for
an evaluation. See also Williams v. People Ready, 2022 TN Wrk. Comp. App. Bd. LEXIS
23, at *8-10 (June 2, 2022) (where an employer fails to respond within three business days
of a direct referral as required by subsection 204(a)(3)(A)(ii), it is deemed to have accepted
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the referral, and the court properly designated the referral physician as the authorized
treating physician).
Finally, Wheeler failed to timely authorize Dr. Lowry’s direct referral or to provide
a panel of hand specialists, which delayed Mr. Cintron’s medical treatment. Therefore, the
Court refers this case to the Compliance Program for consideration of a penalty assessment,
including, but not limited to, Wheeler’s failure to promptly provide a panel in response to
Dr. Lowry’s referral and failure to continue to provide medical benefits. See Tenn. Code
Ann. § 50-6-118; Tenn. Comp. R. & Regs. 0800-02-01-.06(8) (May 2018).
IT IS, THEREFORE, ORDERED as follows:
1. Wheeler shall promptly authorize Mr. Cintron to see Dr. Lund for evaluation as
required by Tennessee Code Annotated section 50-6-204(a)(3)(A)(ii) on or before
March 24, 2023.
2. The case is referred to the Compliance Program for investigation as outlined above.
3. This case is set for a Status Hearing on May 10, 2023, at 10:30 a.m. Eastern Time.
The parties must call 423-634-0164 or toll-free at 855-383-0001 to participate.
Failure to call might result in a determination of the issues without the party’s
participation.
4. Unless interlocutory appeal of this Expedited Hearing Order is filed, compliance
with this Order must occur by seven business days 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 by email to
WCCompliance.Program@tn.gov by the compliance deadline. Failure to do so may
result in a penalty assessment for non-compliance.
5. For compliance questions, please contact the Workers’ Compensation Compliance
Unit by email at WCCompliance.Program@tn.gov.
ENTERED March 14, 2023.
________________________________________
Audrey A. Headrick
Workers’ Compensation Judge
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APPENDIX
Exhibits:
1. Rule 72 Declaration of Mr. Cintron
2. Deposition of Dr. Lowry
3. Medical records of Dr. Jolley
4. Medical records of Fast Access Healthcare
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Employer’s Response to Employee’s Request for Expedited Hearing
5. Order Setting Expedited Hearing
6. Employee’s Motion to Alter, Amend or Reconsider
7. Employer’s Response to Motion to Alter, Amend or Reconsider
8. Employee’s Reply Brief to Employer’s Response
9. Employee’s Motion to Set Status Conference and to Modify [Expedited Hearing]
10. Order Rescheduling Claim for Expedited Hearing
11. Docketing Notice for Decision on the Record
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CERTIFICATE OF SERVICE
I certify that a copy of this Expedited Hearing Order was sent as indicated on March 14,
2023.
Name U.S. Email Service sent to:
Mail
Chris Markel, X cmarkel@markelfirm.com
Employee’s Attorney
Ritchie Pigue, X rpigue@tpmblaw.com
Employer’s Attorney
Compliance Program X WCCompliance.Program@tn.gov
/s/Penny Shrum w/permission JD
______________________________________
Penny Shrum, Court Clerk
WC.CourtClerk@tn.gov
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