Zimmerman, Steven v. 2G Staffing Services, Inc. , 2016 TN WC 119 ( 2016 )

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
STEVEN ZIMMERMAN ) Docket No.: 2015-05-0283
Employee, )
v. ) State File Number: 1045-2015
2G STAFFING SERVICES, INC. )
Employer. ) Judge Dale Tipps
)
EXPEDITED HEARING ORDER DENYING REQUESTED MEDICAL
BENEFITS
This matter came before the undersigned workers’ compensation judge on May
10, 2016, on the Request for Expedited Hearing filed by the employee, Steven
Zimmerman, pursuant to Tennessee Code Annotated section 50-6-239 (2015). The
present focus of this case is Mr. Zimmerman’s entitlement to additional medical
treatment. The central legal issue is whether the evidence is sufficient for the Court to
determine that Mr. Zimmerman likely to establish at a hearing on the merits the requested
treatment is medically reasonable and necessary. For the reasons set forth below, the
Court finds Mr. Zimmerman has not met his burden of establishing entitlement to the
requested medical benefits at this time.1
History of Claim
The following facts were established at the Expedited Hearing. Mr. Zimmerman
is a forty-six-year-old sheet-metal mechanic residing in Maury County, Tennessee. On
January 3, 2015, while installing ductwork on a construction site, he twisted his left knee
and felt a pop. He reported the injury to his supervisor, and his employer, 2G, sent him
for medical treatment at Maury Regional Hospital. The physicians at Maury Regional
provided a knee immobilizer and referred him to an occupational medicine specialist.
(Ex. 3.) 2G provided a panel of physicians, from which Mr. Zimmerman selected Dr.
Caleb Wallwork.
After examining Mr. Zimmerman on January 9, 2015, Dr. Wallwork ordered an
1
A complete listing of the technical record and exhibits admitted at the Expedited Hearing is attached to this Order
as an appendix.
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MRI and assigned light-duty work restrictions. He then referred Mr. Zimmerman to an
orthopedic specialist a few days later. (Ex. 4.) 2G provided another panel, and Mr.
Zimmerman selected orthopedic surgeon Dr. Thomas Tompkins.
Dr. Tompkins first saw Mr. Zimmerman on February 3, 2015. He noted Mr.
Zimmerman’s knee was stiff but found no swelling. The MRI showed a partial ACL tear,
but the knee felt stable. Dr. Tompkins ordered physical therapy for “range of motion,
ACL protocol.” (Ex. 5.)
Mr. Zimmerman returned on February 25, 2015. Dr. Tompkins’ notes include
information from the physical therapist, who reported Mr. Zimmerman was not bearing
weight and was reluctant to comply with weight-bearing activities. The therapist said
Mr. Zimmerman complained of unbearable pain and told her he wanted surgery. Dr.
Tompkins examined Mr. Zimmerman, who was on crutches, and noted, “some pain
behavior present. He is grimacing when I touch his knee; however, his left knee is not
swollen. It still feels very stable on ligament testing.” He reviewed Mr. Zimmerman’s x-
rays again and found they were normal. He stated, “Steven is having a lot of subjective
pain out of proportion to the injury. I think his knee is stable. I do not think he has a
significant ACL tear and I advised him to start getting serious about his physical
therapy.” Id.
Following a functional capacity evaluation (FCE), Mr. Zimmerman returned to Dr.
Tompkins on March 16, 2015. He reported increased pain in the back of his knee since
the FCE. He was using crutches, limping, and grimacing with pain “with the lightest of
touch.” Dr. Tompkins found no swelling, effusion, or fluid on the knee, and noted Mr.
Zimmerman had full extension and normal ligament testing. Dr. Tompkins felt Mr.
Zimmerman’s “symptoms are out of proportion to the physical findings and MRI
findings. He does not complain of any instability at all, just posterior pain.” He released
Mr. Zimmerman to return to work with a fifty-pound lifting restriction and occasional
kneeling and crouching. Id.
Mr. Zimmerman continued to follow up with Dr. Tompkins until April 24, 2015.
At that time, Dr. Tompkins reviewed a new MRI report, which showed some
degeneration of the ACL with a small cyst, decreased in size from the prior MRI. Dr.
Tompkins’ impression was:
Steven I think may have had a partial ACL tear, [but] the knee has always
been stable. The small chondral defect, I do not think it is the source for his
pain. [A]t least this small defect would not be enough to cause the amount
of pain that he is having and certainly would not be enough to cause him to
be on crutches now for 3½ months. As stated before, the subjective
complaints are not matched with the physical findings and objective
imaging results.
2
Dr. Tomkins found Mr. Zimmerman had reached maximum medical improvement (MMI)
and released him to return to full duty with no permanent impairment. Id.
Mr. Zimmerman disagreed with Dr. Tompkins’ conclusions and sought a private
second opinion with Dr. Jason Haslam on June 8, 2015. He reported intense pain and
difficulty bearing weight with his left knee since it popped at work on January 3, 2015.
Dr. Haslam examined Mr. Zimmerman and noted tenderness of the left knee with no
effusion, redness, or warmth. He found limited range of motion, but no instability. After
reviewing the January 16, 2015 MRI, he assessed a possible ACL tear, chondromalacia,
and acute pain. Dr. Haslam performed an injection and prescribed a Sterapred dosepak.
He also discussed the need for a reaction knee brace, as well as the need for Mr.
Zimmerman to bear weight on the knee and work on his range of motion. (Ex. 6.)
Mr. Zimmerman returned to Dr. Haslam on July 6, 2015, reporting no
improvement. Dr. Haslam noted Mr. Zimmerman had failed conservative treatment since
January and said Mr. Zimmerman “is insistent and would like to pursue surgical
intervention.” Dr. Haslam referred him for a surgical consultation with Dr. William
Fontenot. Id.
Mr. Zimmerman saw Dr. Fontenot on July 14, 2015. 2 Dr. Fontenot assessed a
rupture of the ACL of the left knee. He noted further, “this is plain and clear – he had an
injury at work with subsequent and current instability and an MRI [consistent with] an
ACL tear. ACL tears do not heal on their own. I strongly recommend surgical
reconstruction.” (Ex. 7.)
Mr. Zimmerman provided Dr. Haslam’s office records to 2G, who sent him back
to Dr. Tompkins on August 19, 2015. Dr. Tompkins reviewed the records and noted they
reflected no swelling or instability. He observed similar results in his own examination
of Mr. Zimmerman that day. His assessment was:
Subjective knee pain. Again, I do not find a good reason to proceed with
arthroscopy of his knee. He has had two MRIs of the knee neither of which
show a problem that a scope would help. He does not need ACL
reconstruction as his ACL exam is normal. The proposed surgery would be
strictly exploratory in nature. I told him my honest opinion is that I would
not recommend surgery on the knee. If another physician wants to do it
then he could proceed, but I would not recommend this. The
recommendation is based on multiple exams to the patient’s objective tests
such as MRI and x-ray and physical findings. I told him of course I could
2
The only medical record submitted from Dr. Fontenot apparently references this visit, but is dated January 14,
2016.
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be wrong, but I think it is more likely than not the intervention would not
be helpful.
(Ex. 5.)
In response to Mr. Zimmerman’s subsequent surgery requests, 2G provided
another panel for a second opinion, from which Mr. Zimmerman selected Dr. Brandon
Downs. Dr. Downs examined Mr. Zimmerman on March 3, 2016, and reviewed his
medical records and MRI results. He noted tenderness, but no swelling or effusion, near
full range of motion, and no instability of the knee. Dr. Downs issued a Preliminary
Report that indicated his initial diagnosis was left knee strain. He ordered another MRI
and a complete set of x-rays, a Depo Medrol injection, and he fitted Mr. Zimmerman with
an elastic brace. He instructed Mr. Zimmerman to return after the MRI was complete.
He also issued a physical therapy order for four weeks of physical therapy for a left knee
sprain and chondromalacia. (Ex. 8.)
Although Mr. Zimmerman testified he saw Dr. Downs and received another
injection on at least one other occasion, the parties submitted no additional records from
Dr. Downs. It appears, however, that 2G denied any further treatment with Dr. Downs,
as well as the physical therapy he prescribed. (Ex. 1.)
Mr. Zimmerman filed a Petition for Benefit Determination seeking additional
medical treatment. The parties did not resolve the disputed issues through mediation, and
the Mediating Specialist filed a Dispute Certification Notice. Mr. Zimmerman filed a
Request for Expedited Hearing, and this Court heard the matter on May 10, 2016.
At the Expedited Hearing, Mr. Zimmerman acknowledged that he and Dr.
Tompkins “clashed.” He is dissatisfied with Dr. Tompkins’ treatment and does not
believe Dr. Tompkins accurately diagnosed his problems. He disagrees with Dr.
Tompkins’ full-duty release and MMI opinion, noting that Dr. Downs put him back in a
knee brace and assigned light-duty restrictions. Mr. Zimmerman asserts 2G should allow
him to resume treatment with Dr. Downs for his work-related left knee injury. He said he
just wants to get his knee fixed and get back to work.
2G countered that Mr. Zimmerman is not entitled to any additional treatment with
Dr. Downs, as Mr. Zimmerman saw him only for a second opinion and Dr. Downs is not
the authorized treating physician (ATP). 2G confirmed that it has not denied Mr.
Zimmerman’s claim and he may return to his ATP, Dr. Tompkins, at any time, including
asking Dr. Tompkins to address Dr. Downs’ conclusions. 2G further relies on Tennessee
Code Annotated section 50-6-204(a)(3)(H), which provides that an ATP’s treatment
recommendations are presumed to be reasonable. 2G argues Mr. Zimmerman has not
presented sufficient proof to overcome that presumption.
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Findings of Fact and Conclusions of Law
The following legal principles govern this case. Because this case is in a posture
of an Expedited Hearing, Mr. Zimmerman need not prove every element of his claim by a
preponderance of the evidence in order to obtain relief. McCord v. Advantage Human
Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9
(Tenn. Workers’ Comp. App. Bd. Mar. 27, 2015). Instead, he must come forward with
sufficient evidence from which this Court might determine he is likely to prevail at a
hearing on the merits. Id.; Tenn. Code Ann. § 50-6-239(d)(1)(2015). In analyzing
whether he has met his burden, the Court will not construe the law remedially or liberally
in his favor, but instead shall construe the law fairly, impartially, and in accordance with
basic principles of statutory construction favoring neither Mr. Zimmerman nor 2G. See
Tenn. Code Ann. § 50-6-116 (2015).
Applying these principles to the facts of this case, the Court cannot find at this
time that Mr. Zimmerman is entitled to the requested medical benefits. It is undisputed
that Mr. Zimmerman selected Dr. Tompkins from a panel provided by 2G and Dr.
Tompkins provided authorized treatment. Dr. Tompkins is, therefore, the ATP, pursuant
to Tennessee Code Annotated section 5-6-204(a)(3)(A)(i) (2015), which provides:
The injured employee shall accept the medical benefits. . . provided that in
any case when the employee has suffered an injury and expressed a need
for medical care, the employer shall designate a group of three (3) or more
independent reputable physicians. . . from which the employee shall select
one (1) to be the treating physician.
Mr. Zimmerman expressed his belief during the hearing that Dr. Tompkins does
not wish to see him anymore. If true, Mr. Zimmerman would likely be entitled to select a
new treating physician. However, he submitted no evidence in support of this contention,
and Dr. Tompkins’ August 19, 2015 note concludes with the statement, “He is to
schedule a follow-up visit PRN.”
Further, the evidence submitted to date, including Mr. Zimmerman’s testimony
during the hearing, indicates that 2G provided Dr. Downs for a second opinion.
Tennessee Code Annotated section 5-6-204(a)(3)(C) (2015) establishes the right to
second opinions in some circumstances, but specifies, “The employee’s decision to
obtain a second opinion shall not alter the previous selection of the treating physician or
chiropractor.” Consequently, Dr. Downs’ evaluation of Mr. Zimmerman does not affect
Dr. Tompkins’ status as the treating physician.
“As a general rule, if the employee is dissatisfied with the treating doctor’s
findings, the employee may (1) move the court to appoint a neutral physician, (2) consult
with the employer and make other arrangements, or (3) go to a physician of his or her
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own choice, without consulting the employer, and thus be liable for such services.”
Consolidation Coal Co. v. Pride, 452 S.W.2d 349, 354 (Tenn. 1970). Further, “a
showing of a difference in professional opinions between the employer’s physician and
that of the employee, without more, does not prove that Plaintiff was receiving
inadequate care from the employer’s doctor.” Buchanan v. Mission Ins. Co., 713 S.W.2d
654, 658 (Tenn. 1986). Mr. Zimmerman presented differing medical opinions, but did
not submit any additional expert proof supporting his contention that Dr. Tompkins’
diagnosis was incorrect or his treatment unreasonable. 3 Accordingly, the Court cannot
find at this time that Mr. Zimmerman is likely to establish at a hearing on the merits that
he is entitled to the requested treatment with Dr. Downs.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Zimmerman’s claim against 2G and its workers’ compensation carrier for the
requested medical benefits is denied.
2. This matter is set for an Initial (Scheduling) Hearing on June 28, 2016, at 9:00
a.m.
ENTERED this the 17th day of May, 2016.
_____________________________________
Judge Dale Tipps
Court of Workers’ Compensation Claims
Initial (Scheduling) Hearing:
An Initial (Scheduling) Hearing has been set with Judge Dale Tipps, Court of
Workers’ Compensation Claims. You must call 615-741-2112 or toll free at 855-
874-0473 to participate.
Please Note: You must call in on the scheduled date/time to
participate. Failure to call in may result in a determination of the issues without
your further participation. All conferences are set using Central Time (CT).
3
The Court notes Dr. Fontenot stated that ACL tears do not heal themselves. However, it also appears his surgical
recommendation was based on Mr. Zimmerman suffering an “injury at work with subsequent and current instability
and an MRI [consistent with] an ACL tear.” This conclusion is suspect in the absence of any notation of instability
in any of Mr. Zimmerman’s medical records. Further, it does not appear from Dr. Fontenot’s note that he reviewed
either of Mr. Zimmerman’s MRI studies or was aware that the ACL tear was diagnosed as a partial tear only.
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Right to Appeal:
Tennessee Law allows any party who disagrees with this Expedited Hearing Order
to appeal the decision to the Workers’ Compensation Appeals Board. To file a Notice of
Appeal, you must:
1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal.”
2. File the completed form with the Court Clerk within seven business days of the
date the Workers’ Compensation Judge entered the Expedited Hearing Order.
3. Serve a copy of the Expedited Hearing Notice of Appeal upon the opposing party.
4. The appealing party is responsible for payment of a filing fee in the amount of
$75.00. Within ten calendar days after the filing of a notice of appeal, payment
must be received by check, money order, or credit card payment. Payments can be
made in person at any Bureau office or by United States mail, hand-delivery, or
other delivery service. In the alternative, the appealing party may file an Affidavit
of Indigency, on a form prescribed by the Bureau, seeking a waiver of the filing
fee. The Affidavit of Indigency may be filed contemporaneously with the Notice
of Appeal or must be filed within ten calendar days thereafter. The Appeals Board
will consider the Affidavit of Indigency and issue an Order granting or denying
the request for a waiver of the filing fee as soon thereafter as is
practicable. Failure to timely pay the filing fee or file the Affidavit of
Indigency in accordance with this section shall result in dismissal of the
appeal.
5. The parties, having the responsibility of ensuring a complete record on appeal,
may request, from the Court Clerk, the audio recording of the hearing for the
purpose of having a transcript prepared by a licensed court reporter and filing it
with the Court Clerk within ten calendar days of the filing of the Expedited
Hearing Notice of Appeal. Alternatively, the parties may file a joint statement of
the evidence within ten calendar days of the filing of the Expedited Hearing
Notice of Appeal. The statement of the evidence must convey a complete and
accurate account of what transpired in the Court of Workers’ Compensation
Claims and must be approved by the workers’ compensation judge before the
record is submitted to the Clerk of the Appeals Board.
6. If the appellant elects to file a position statement in support of the interlocutory
appeal, the appellant shall file such position statement with the Court Clerk within
five business days of the expiration of the time to file a transcript or statement of
the evidence, specifying the issues presented for review and including any
argument in support thereof. A party opposing the appeal shall file a response, if
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any, with the Court Clerk within five business days of the filing of the appellant’s
position statement. All position statements pertaining to an appeal of an
interlocutory order 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.
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APPENDIX
Exhibits:
1. Affidavit of Steven Zimmerman
2. Transcript of Deposition of Steven Zimmerman
3. Records from Maury Regional Hospital
4. Records from Workers’ Health of Columbia
5. Records from Tennessee Orthopaedic Alliance
6. Records from Seven Springs Orthopaedics & Sports Medicine
7. Records from Dr. William Fontenot
8. Records from Dr. Brandon Downs
9. C-42 Physician Panel
10. C-41 Wage Statement
11. Mileage Worksheet
12. Employee’s written statement and FCE Report
13. April, 12, 2016 written notice from Brenda Gilliam (Identification Only)
Technical record:4
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4
The Court did not consider attachments to Technical Record filings unless admitted into evidence during the
Expedited Hearing. The Court considered factual statements in these filings or any attachments to them as
allegations unless established by the evidence.
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CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Expedited Hearing Order
Denying Requested Medical Benefits was sent to the following recipients by the
following methods of service on this the 17th day of May, 2016.
Name Certified Via Via Service sent to:
Mail Fax Email
Steven Zimmerman X 211 Olive St.
Mt. Pleasant, TN 38474
Alex Morrison X abmorrison@mijs.com
_____________________________________
Penny Shrum, Clerk of Court
Court of Workers’ Compensation Claims
WC.CourtClerk@tn.gov
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