Davis, Rayshelle v. Belcan Services Group , 2017 TN WC 211 ( 2017 )

FILED
November 21, 2017
TX COURT OF
WORKERS' COMPEXSATIOX
CLAIMS
Time ll:SSAM
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT CHATTANOOGA
Rayshelle Davis, ) Docket No.: 2017-01-0456
Employee, )
v. )
Belcan Services Group, ) State File No.: 44105-2016
Employer, )
And )
The Hartford, ) Judge Audrey A. Headrick
Carrier. )
EXPEDITED HEARING ORDER
(DECISION ON THE RECORD)
This matter came before the Court on a Request for Expedited Hearing filed by
Rayshelle Davis on October 23, 2017. The Court issued a docketing notice on November
7 allowing seven business days for the parties to file objections or submit position
statements. Neither side responded. The central legal issue is whether Ms. Davis is
likely to establish at a hearing on the merits that Belcan Services Group must provide her
with another panel of physicians. 1 This Court finds it needs no additional information to
determine this issue and holds Ms. Davis is not entitled to the requested benefit at this
time.
History of Claim
According to her affidavit, Ms. Davis was working on June 10, 2016, for Belean
Services Group (Belcan), a staffing agency, at Southern Media Filter, when a cuff
machine caught her right hand. Ms. Davis treated with Physicians Care until the medical
provider referred her for orthopedic care. 2 She selected Dr. Robert Mastey from a panel
and saw him twice.
1
This Court's holding makes it unnecessary to address the seven additional disputed issues raised by Ms.
Davis in the Dispute Certification Notice.
2
Ms. Davis' Petition for Benefit Determination reflects that she selected Physicians Care from a panel on
the day of her injury. However, neither party submitted the panel or the Physicians Care records.
Dr. Mastey made Ms. Davis feel "very uncomfortable and disrespected" during
her first visit. (Ex. 1.) She stated in her affidavit that Dr. Mastey made her husband and
children leave the exam room during the visit. Ms. Davis was also uncomfortable with
Dr. Mastey's questions regarding "the number and ages of [her] children and birth control
.... " (Ex. 1.) The office note indicates that Dr. Mastey "informed [Ms. Davis] that [her
complaints are] highly unusual as she has this right upper extremity dependent pain,
which is relieved with elevation without evidence of a vascular problem." (Ex. 3.) After
leaving Dr. Mastey's office, Ms. Davis asserted that Dr. Mastey personally called her on
the telephone "to see if he had the right name and number." (Ex. 1.)
Ms. Davis reported her discomfort with Dr. Mastey to the insurance adjuster and
requested another doctor. The adjuster denied her request. Ms. Davis asserted that the
adjuster told her a nurse case manager would attend her next appointment, but that did
not happen.
Ms. Davis returned to see Dr. Mastey approximately two weeks later. His office
note indicates that Ms. Davis returned "with her significant other Alonzo Johnson but
without her children stating that her hand is the same since her last visit." (Ex. 3.) Dr.
Mastey observed:
It is important to note that Rayshelle brought a very large purse on today's
visit, which she handled equally well with both her right and left hand
without any apparent discomfort. When talking on her cell phone, she was
holding the phone with her right hand without any apparent difficulties.
Id.
At that visit, Dr. Mastey placed Ms. Davis at maximum medical improvement, assigned a
0% impairment rating, and r lea d her to follow-up as needed. 3 Ms. Davis asserted that,
"[ d]espite ongoing problems with my hand, he did not provide or recommend any further
treatment." She continues to complain of problems with her right hand.
Findings of Fact and Conclusions of Law
General Legal Principles
Ms. Davis bears the burden of proof on all essential elements of her workers'
compensation claim. Scott v. Integrity Staffing Solutions, 2015 TN Wrk. Comp. App. Bd.
LEXIS 24, at *6 (Aug. 18, 2015). However, she is not required to prove every element of
3
His note reflects that the MRI performed "showed no evidence of a fracture or other acute posttraumatic
injury of the proximal right hand."
2
her claim by a preponderance of the evidence in order to obtain relief at an expedited
hearing. Rather, at an expedited hearing, Ms. Davis must come forward with sufficient
evidence from which this Court might determine that she 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).
Medical Benefits
Under the Workers' Compensation Law, the employer is required to "furnish, free
of charge to the employee, such medical and surgical treatment . . . made reasonably
necessary by accident[.]" When the treating physician refers the employee to a specialist
physician, the employer must provide a panel of specialists within three business days.
In cases where an employer provided a panel of specialists, the selected panel physician
"shall become the treating physician until treatment by the specialist physician . . .
concludes and the employee has been referred back to the treating physician selected by
the employee from the initial panel provided by the employer under subdivision
(a)(3)(A)." Tenn. Code Ann. § 50-6-204(a)(3)(A) and (E) (20 17).
Here, Belcan provided Ms. Davis with a panel of orthopedic physicians after
Physicians Care referred her. Ms. Davis does not dispute the validity of the panel.
Instead, she requests another panel of physicians because she is dissatisfied with her
panel selection, Dr. Mastey. However, Ms. Davis has not proven entitlement to another
panel of physicians under the present circumstances. Dr. Mastey indicated in his last
office note that Ms. Davis was to follow-up as needed. Therefore, Ms. Davis' request for
another panel of physicians is denied.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. Davis' requested relief is denied at this time.
2. This matter is set for a Status Hearing on January 9, 2018, at 10:00 a.m., Eastern
Time. You must call 423-634-0164 or toll-free at 855-383-0001 to participate.
Failure to call may result in a determination of the issues without your
participation.
3
ENTERED the 21st day of November, 2017.
Judge Audrey Headrick
Court of Workers' Compensation Claims
4
APPENDIX
Exhibits:
1. Affidavit ofRachelle N. Davis 4
2. Panel of physicians
3. Medical records of Robert D. Mastey, M.D.
4. Final Medical Report
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. Docketing Notice for On-The-Record Determination
4
Due to typographical errors, the affidavit reflects incorrect spellings of Ms. Davis' first name. However,
Ms. Davis signed her first name as "Rayshelle" and all other court filings reflect "Rayshelle" as the
correct spelling.
5
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 the 21st day of
November, 2017.
Name Certified Fax Email Service sent to:
Mail
Carmen Ware, X cvware@thewarelawfirm.com
Employee Attorney
Blair Cannon, X blair.cannon@thehartford .com
Employer Attorney
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PEN~UM,COURTCLERK
wc.co urtcJ ~i ' @tn. gov
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