Milliken, Ronald v. Wayne Day Enterprises , 2017 TN WC 23 ( 2017 )

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TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT NASHVILLE
Ronald Milliken, ) Docket No. 2016-06-1437
Employee, )
v. ) State File No. 622-2015
Wayne Day Enterprises, )
Employer, ) Judge Kenneth M. Switzer
And )
Union Standard Insurance Group, )
Carrier. )
EXPEDITED HEARING ORDER
This case came before the undersigned Workers' Compensation Judge on
February 8, 2017, on Mr. Milliken's Request for Expedited Hearing. The present focus is
his entitlement to a second opinion and temporary disability benefits. The Court holds
Mr. Milliken failed to introduce sufficient evidence to satisfy his burden and denies his
request.
History of Claim
This dispute involves an accepted claim and the next steps, if any, m Mr.
Milliken's treatment.
Mr. Milliken worked at Wayne Day Enterprises as a construction worker. He
injured his low back and right leg at work on January 2, 2015. Shortly afterward, Mr.
Milliken began treating with Dr. Rodney Wachter, a chiropractor, whom he stated he
chose from a panel. At his last visit, Dr. Wachter referred him to a specialist. An
unsigned, undated Choice of Physicians form indicates Mr. Milliken selected Dr. R.
Christopher Glattes from a panel; Mr. Milliken testified that he likely signed the form but
simply did not have a signed copy. He did not dispute Dr. Glattes' status as a treating
physician.
Mr. Milliken saw Dr. Glattes on four occasions from February through May. At
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the first visit, Dr. Glattes placed him on restrictions and noted "assessment: pain lumbar .
. . Radiculopathy- Lumbar rt leg due to work injury." At Mr. Milliken's final visit, Dr.
Glattes continued the work restrictions and referred him directly to physiatry under Dr.
Jeffrey Hazlewood. (Ex. 2 at 60.) Dr. Glattes additionally noted a follow-up
appointment was "[n]ot required. He is to continue care through Physiatry. PRN (as
needed) -Patient instructed to contact us with any questions or concerns, and a follow up
appointment may then be scheduled." Jd. Mr. Milliken testified that Dr. Glattes
expressed concern, but overall Dr. Glattes' treatment did not relieve his pain.
Mr. Milliken saw Dr. Hazlewood on four occasions from July through December.
Mr. Milliken testified regarding the poor doctor-patient relationship between them.
Specifically, he took issue with the accuracy of Dr. Hazlewood's records, explaining that
he told Dr. Hazlewood he wanted to return to his job, but the records suggest he did not
want to work.
Per the records, at the first visit, Dr. Hazlewood reviewed both the actual images
from and a report of an MRI, which he characterized as an "unremarkable study." He
noted Dr. Glattes recommended against surgery, and, "at no point in the records did Dr.
Glattes get an objective radiculopathy, it appears." Dr. Glattes' records recommended
EMG testing, which Dr. Hazlewood agreed to perform. Dr. Hazlewood administered
injections, referred Mr. Milliken for physical therapy, and kept him on restricted duty.
In subsequent visits, Dr. Hazlewood performed an EMG that yielded
"unremarkable" results. Dr. Hazlewood noted he "cannot explain pain and lack of
improvement," but nonetheless recommended Mr. Milliken continue physical therapy.
Later, Dr. Hazlewood noted that Mr. Milliken's pain was worsening and he "cannot
explain why." (See generally Ex. 2 at 85-87.) He placed Mr. Milliken at maximum
medical improvement and assigned a zero-percent whole-body impairment rating with no
permanent restrictions. Dr. Hazlewood's note explained:
To provide more than a 0% impairment in a case such as this, one must
have consistency, reliability and validity of presentation. The fact he is
getting worse, not better, has no objective findings, and really stresses
today, "I can't return to work" make [sic] me concerned about subjective
reliability here.
At some point afterward, Mr. Milliken sought treatment from his primary care
physician, who referred him to Dr. John Spooner, a neurosurgeon. Mr. Milliken
introduced Dr. Spooner's April 13, 2016 order for x-rays (Ex. 1 at 3), but no additional
medical records from either Dr. Spooner or his PCP. He did not introduce notes
documenting the x-ray results. Mr. Milliken testified, without objection, that his PCP
reviewed results of an unauthorized MRI and told him his back condition is work-related.
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At his final visit with Dr. Hazlewood, he and Mr. Milliken disagreed regarding the
circumstances surrounding Mr. Milliken obtaining the subsequent, unauthorized MRI and
its results. Dr. Hazlewood documented their disagreement in his records. Mr. Milliken
disputed Dr. Hazlewood's account and his willingness to treat him during his testimony,
stating, "After speaking with him that very last time, I've seen that he is not for me." Dr.
Hazlewood's notes from that visit state twice that Mr. Milliken sought "secondary gain"
from his injury.
Mr. Milliken testified that he enjoyed his job, remains friendly with his supervisor
and the owner of the business, Wayne Day, and considers him a father figure. He
attempted to return to work for another employer driving a dump truck, but he found the
pain made it impossible and quit after one day. Mr. Milliken said, "I want to get over this
and get back to a normal life." He further stated that repetitive motion, such as washing
dishes, causes him pain. He asked the Court to order Wayne Day to authorize a second
opinion. For its part, Wayne Day argued the Workers' Compensation Law does not
allow for a second opinion on diagnosis alone and it has provided all benefits to which
Mr. Milliken is entitled.
Findings of Fact and Conclusions of Law
In general, Mr. Milliken, as the employee, bears the burden of proof on all prima
facie elements of his workers' compensation claim. Tenn. Code Ann. § 50-6-239(c)(6)
(2016); see also Buchanan v. Carlex Glass Co., 2015 TN Wrk. Comp. App. Bd. LEXIS
39, at *5 (Sept. 29, 2015). At an expedited hearing, Mr. Milliken has the burden to come
forward with sufficient evidence from which this Court can determine that he is likely to
prevail at a hearing on the merits. McCord v. Advantage Human Resourcing, 2015 TN
Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
The evidence demonstrated that after Mr. Milliken's injury, Wayne Day accepted
the claim and provided two panels of physicians. Mr. Milliken selected Drs. Wachter and
Glattes, respectively, as his authorized treating physicians from the panels as required
under Tennessee Code Annotated section 50-6-204(a)(3)(A)(l).
Mr. Milliken complained he did not select Dr. Hazlewood from a panel. However,
the statute does not require Wayne Day to offer a panel under these circumstances.
Section 50-6-204(a)(3)(A)(ii) states in pertinent part, "When necessary, the treating
physician selected in accordance with this subdivision . . . shall make referrals to a
specialist physician[.]" Per the medical records, the Court finds Dr. Glattes referred Mr.
Milliken directly to Dr. Hazlewood for specialty care, physiatry.
The statute further states that, where the treating physician has referred the
employee to a specialist, that specialist becomes the treating physician until the
specialist's treatment concludes and the employee is referred back to the original treating
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physician. Tenn. Code Ann. § 50-6-204(a)(3)(E). Here, Dr. Hazlewood has not
concluded his treatment, since he noted he would see Mr. Milliken back as needed.
Further, he has not referred Mr. Milliken back to Dr. Glattes. Because section 50-6-
204(a)(3)(H) provides any treatment recommended by a physician selected from a panel,
or by referral, shall be presumed necessary, and because Dr. Hazlewood expressed a
willingness to further treat Mr. Milliken, Mr. Milliken remains entitled to medical
benefits with Dr. Hazlewood.
The Court is well aware the records clearly document Dr. Hazlewood's mistrust of
both Mr. Milliken's motives and truthfulness. These assessments are not medical
judgments but personal opinions of the caregiver. They are not the province of the
caregiver, are better left to the trier of fact and carry no weight with this Court. In
contrast, this Court finds Mr. Milliken credible. During his testimony, he sounded calm,
at-ease, self-assured, steady, confident, forthcoming, reasonable and honest, all of which
are indicia of credibility. See Kelly v. Kelly, 455 S.W.3d 685, 694-5 (Tenn. 2014). Mr.
Milliken testified that he still experiences disabling pain. The testimony of the employee
as to his physical limitations "must always be taken into consideration." Lambdin v.
Goodyear Tire & Rubber Co., 468 S.W.3d 1, at *13 (Tenn. 2015).
The Court is sensitive to Mr. Milliken's likely reluctance to return to Dr.
Hazlewood because of their strained doctor-patient relationship. Regardless, the statute
leaves this Court no alternative regarding Mr. Milliken's request for a second opinion.
Section 204(a)(3)(C) entitles an injured worker to a second opinion only "on the issue of
surgery and diagnosis." The Appeals Board recently held there is no entitlement to a
second opinion on the issue of diagnosis alone. Petty v. Convention Prod. Rigging, 2016
TN Wrk. Comp. App. Bd. LEXIS 95, at *21 (Dec. 29, 2016). Therefore, the Court
cannot order a second opinion regarding the sole question of diagnosis.
Finally, Mr. Milliken testified that his primary care physician and Dr. Spooner,
reached different conclusions than those of Dr. Hazlewood regarding proper diagnosis
and treatment. However, Mr. Milliken's only documentary evidence -an order for x-
rays - is several months old and offers neither a rationale for the testing nor an
explanation that the testing was necessary for treatment of a work-related injury. Thus,
Mr. Milliken failed to satisfy his burden of proof when he introduced no medical records
to substantiate this claim. The Court is constrained to the record before it, because
''judges, like lawyers, are poorly positioned to formulate expert medical opinions." Love
v. Delta Faucet Co., et al., 2016 TN Wrk. Comp. App. Bd. LEXIS 45, at *15-16 (Sept.
19, 2016); and see Scott v. Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd.
LEXIS 24, at *8 (Aug. 18, 2015) ("Judges are not well-suited to second-guess a medical
expert's treatment, recommendations, and/or diagnoses absent some conflicting medical
evidence or some other countervailing evidence properly admitted into the record.")
(emphasis added).
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In conclusion, Mr. Milliken has not come forward with sufficient evidence from
which this Court might conclude he is likely to prevail at a hearing on the merits
regarding his entitlement to a second opinion.
As for his request for additional temporary total disability benefits, Mr. Milliken
made no arguments. Arguably, he waived the issue. Regardless, he failed to establish
any "disability" after Dr. Hazlewood placed him under no restrictions on August 27,
2015. See Jones v. Crencor, 2015 TN Wrk. Comp. App. Bd. LEXIS 48, at *7-8 (Dec. 11,
20 15) ("An injured worker is eligible for temporary disability benefits if: (1) the worker
became disabled from working due to a compensable injury[.]") (emphasis added).
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Milliken's claims against Wayne Day and its carrier for a second opinion and
temporary disability benefits are denied at this time, although he remains entitled
to additional medical benefits in the form of treatment with Dr. Hazlewood.
2. This matter is set for a Scheduling Hearing on March 27, 2017, at 8:30 a.m.
Central time. You must call 615-532-9552 or toll-free at 866-943-0025 to
participate in the Hearing. 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.
ENTERED this the 13th day of February, 2017.
dge Kenneth M. S itzer
Court of Workers' Compensati
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APPENDIX
Exhibits:
1. Affidavit
2. Composite medical records
3. First Report of Injury
4. Wage statement
5. Choice of Physician form
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Employer's Position Statement
5. Employer's Witness and Exhibit List
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.
CERTIFICATE OF SERVICE
I certify that a true and correct copy of the Expedited Hearing Order was sent to
the following recipients by the following methods of service on this the 13th day of
February, 2017.
Name Regular Via Via Email Service sent to:
Mail Fax
Ronald Milliken, X X ronmilliken@yahoo.com;
Self-Represented 604 Mason Court, Whitehouse
TN 37072
Anne McKnight, X amcknight@wimberlylawson.com
Employer's
Counsel
Clerk of Court
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