Lively, Jason v. Prudential Security, Inc. , 2017 TN WC 35 ( 2017 )

FILED
Februarv 24, 211JH.1
TN COURTOf
"Vi' ORKERS' CO:UPENSATIO
CLilliS
Time 7 :31AM
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT KNOXVILLE
JASON ALLEN LIVELY, ) Docket No. 2016-03-0759
Employee, )
v. )
PRUDENTIAL SECURITY, INC., ) State File No. 57260-2015
Employer, )
And )
QBE INSURANCE CORPORATION, ) Judge Lisa A. Lowe
Carrier. )
)
EXPEDITED HEARING ORDER
DENYING REQUESTED MEDICAL BENEFITS
This matter came before the undersigned Workers' Compensation Judge on
February 15, 2017, upon Mr. Lively's Request for Expedited Hearing. The central legal
issue is whether Mr. Lively is entitled to a panel of psychiatrists or psychologists for
evaluation of a potential mental injury. For the reasons set forth below, the Court finds
Mr. Lively failed to come forward with sufficient proof to show that he would likely
prevail at a hearing on the merits concerning his entitlement to a psychological
evaluation.
History of Claim
Mr. Lively is a thirty-four-year-old resident of Campbell County, Tennessee.
Prudential Security, Inc. employed Mr. Lively as a security officer. On July 20, 2015,
Prudential assigned Mr. Lively to provide security for Cherokee Health Systems. While
at Cherokee Health, Mr. Lively assisted in trying to calm a patient who became
unexpectedly combative and belligerent. During an attempt to restrain the patient, both
he and the patient fell to the floor, and Mr. Lively injured his shoulder.
Prudential accepted Mr. Lively's shoulder claim as compensable and provided a
panel of physicians. Mr. Lively selected Dr. Jon MacNaughton as the authorized treating
physician. Dr. MacNaughton treated Mr. Lively over a period of sixteen months. He
provided conservative treatment and performed surgery. Dr. MacNaughton's treatment
notes do not contain any reported complaints of anxiety or depression.
Mr. Lively obtained an independent medical evaluation with Dr. C.M. Salekin and
reported depressed mood and decreased interest in daily living activities for
approximately six months. Dr. Salekin found Mr. Lively suffered from adjustment
disorder/depression from chronic pain and physical disability caused by the work injury.
Mr. Lively obtained another independent medical evaluation with Dr. William
Kennedy. Dr. Kennedy recommended a psychiatrist evaluate Mr. Lively with regard to
his probable depression and anxiety. Dr. Kennedy noted,
It appeared that the traumatic nature of the incident of 7/20/15 combined
with the resulting losses of physical function described on page two of this
report warranted psychiatric consultation and possible treatment. I consider
such psychiatric consultation and possible treatment . to be both
appropriate and necessary in the care and treatment of Mr. Lively
attributable to the work related incident of July 20, 2015.
In his Affidavit, Mr. Lively stated that due to his treatment with Dr.
MacNaughton, he is significantly limited and experiences chronic pain. He stated he has
anxiety and depression from his pain and cannot perform his daily living activities. As a
result, he requests a psychological evaluation.
Findings of Fact and Conclusions of Law
Mr. Lively bears the burden of proving his entitlement to a psychological
evaluation. Because this case is in a posture of an Expedited Hearing, however, Mr.
Lively need not prove every element of his claim by a preponderance of the evidence in
order to obtain relief. McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *7-8, 9 (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 in proving his entitlement to an evaluation. !d.; Tenn. Code Ann. §
50-6-239(d)(l) (2016). The Court holds that Mr. Lively failed to demonstrate a
likelihood of success at a hearing on the merits and denies his request for a psychological
evaluation.
This case involves the interpretation and application of Tennessee Code Annotated
section 50-6-204(h) (2016). At the hearing, Mr. Lively's attorney argued the Court is not
constrained by section 50-6-204(h) (2016), which only allows for
psychological/psychiatric treatment upon referral by an authorized treating physician.
Rather, he stated the Court could order a psychological evaluation based on the reports of
Drs. Salekin and Kennedy. Prudential's attorney argued the Court is constrained by the
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referenced statute and as such, the requested referral is not provided for under the law.
Tennessee Code Annotated section 50-6-204(h) (2016) reads as follows, "All
psychological or psychiatric services available under subdivisions ( a)(l) and (b )(1) shall
be rendered only by psychologists or psychiatrists and shall be limited to those ordered
upon the referral a/physicians authorized under subdivision (a)(3)." (Emphasis added.)
Section (a)(3) contains the requirement that an employer provide a panel of physicians in
order for an employee to select an authorized treating physician.
When interpreting a statute, our Appeals Board directs the Court to begin its
analysis by looking to the language of the statute itself. Syph v. Choice Food Grp., Inc.,
2016 TN Wrk. Comp. App. Bd. LEXIS 18, at *9 (Apr. 21, 2016). In so doing, the Court
must define the statute's words by their plain and ordinary meaning in the context in
which they are used. It must avoid a construction that unduly restricts or expands the
meaning of the language used, as every word is presumed to have meaning and purpose.
!d. at *29-30 (Davidson, J., concurring). As the Appeals Board reminds, when the words
of a statute "clearly mean one thing, the courts cannot give them another meaning under
the guise of construing them." Hadzic v. Averitt Express, 2015 TN Wrk. Comp. App. Bd.
LEXIS 14 (May 18, 2015).
Here, the Court construes Tennessee Code Annotated section 50-6-204(h) (20 16)
to mean exactly what it says, which is that psychological evaluations are limited to cases
where the authorized treating physician identified as directed under section (a)(3) makes
a referral. In this case, it is undisputed that Dr. MacNaughton is the authorized treating
physician and he never referred Mr. Lively for a psychological evaluation. Presumably,
Dr. MacNaughton did not make a referral because his notes do not reflect that Mr. Lively
expressed any psychological symptoms or complaints. In fact, on several treatment dates
Dr. MacNaughton noted, "He reports no depression." Additionally, Mr. Lively continued
to treat with Dr. MacNaughton for approximately four months after he saw Dr. Salekin.
However, despite reporting to Dr. Salekin he was suffering from symptoms of
depression, Mr. Lively did not convey those symptoms or complaints to Dr.
MacNaughton during his follow-up visits.
Therefore, as a matter of law, Mr. Lively has not come forward with sufficient
evidence from which this Court concludes that he is likely to prevail at a hearing on the
merits. His request for a psychological evaluation is denied at this time.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Lively's claim against Prudential Security, Inc. and its workers' compensation
carrier for the requested psychological evaluation is denied at this time.
2. This matter is set for a Scheduling Hearing on June 6, 2017, at 9 a.m. Eastern
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Time. The parties must call 865-594-0109 or 855-383-0003 toll-free to participate
in the Scheduling Hearing. Failure to appear by telephone may result in a
determination of the issues without your further participation.
ENTERED this the 24th day of February, 2017.
HON. LISA A. LOWE
Workers' Compensation Judge
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APPENDIX
Exhibits:
1) Affidavit of Jason Lively
2) First Report of Work Injury, Form C-20
3) Standard Form Medical Report for Industrial Injuries, Fonn C-32 of Dr. C.M.
Sale kin
4) Medical Records of LaP ollette Medical Center
5) Medical Records of Dr. Jon MacNaughton
6) Medical Report of Dr. William E. Kennedy
7) December 21, 2015 Turkey Creek Medical Center record-marked for
identification only
Technical Record:
1) Petition for Benefit Determination
2) Dispute Certification Notice
3) Request for Initial Hearing
4) Request for Expedited Hearing
5) Employee's Motion to Compel Payment of Benefits
6) Notice of Objection to C-32 Report of Dr. C.M. Salekin
7) Employer's response to Employee's Motion to Compel Payment of Benefits
CERTIFICATE OF SERVICE
I hereby 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 24th day
ofFebruary, 2017.
Name Certified Via Via Service sent to:
Mail Fax Email
Ameesh A. Kherani, X akherani@davidhdunaway .com
Employee's Counsel
Jess Maples, X j ess .ma gles ~l ei tnerfi rm.co m
Employer's Counsel
/) )hUk---
~ ~HRUM, Court Clerk
WC.C ) utCierl<@tn.gov
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