Ramsey, Jack D. v. Averitt Express, Inc. , 2018 TN WC 171 ( 2018 )

FILED
Oct 22, 2018
02:03 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT COOKEVILLE
JACK D. RAMSEY, ) Docket No. 2018-04-0155
Employee, )
v. ) State File No. 1329-2018
AVERITT EXPRESS, INC. )
Employer. ) Judge Robert Durham
EXPEDITED HEARING ORDER DENYING REQUESTED BENEFITS
(ON THE RECORD)
This case came before the Court on Mr. Ramsey's Request for Expedited Hearing
on the record. Averitt agreed to a record review. On October 8, 20 18, the Court sent a
Docketing Notice to the parties regarding the contents of the record offered for
consideration. 1 The issue is whether Mr. Ramsey is entitled to treatment for his asserted
work-related back injury from unauthorized physicians and to temporary disability
benefits. The Court holds that he is not likely to establish his entitlement to the requested
benefits at this time. However, he is entitled to a panel of orthopedists within his
community from which he may select an authorized physician.
History of Claim
Mr. Ramsey worked as a driver for Averitt for approximately six weeks when he
allegedly suffered a low back injury on January 26, 2018, after slipping on ice while
strapping down a load in Michigan. He asserted he tried to work through the pain, but
upon his return home to Florida, the pain grew so severe that he reported it to his
supervisor. Averitt authorized him to visit a walk-in clinic, which ordered an MRl and
physical therapy. The MRl report stated Mr. Ramsey suffered from low back pain that
radiated down both legs as a result of a hyper-extension/fall. It concluded that he had
multi-level degenerative disc disease, with the most significant abnormality at L5-S1
1
After reviewing the record, the Court found that it required additional evidence as to whether Mr.
Ramsey chose the authorized physician from a panel and held a brief hearing by telephone to clarify this
issue. After the hearing, Averitt submitted a Choice of Physician Form along with an email chain
regarding Mr. Ramsey's selection. In addition, Averitt objected to the admissibility of several of the
documents submitted by Mr. Ramsey. With the exception of the pre-employment back evaluation, the
Court overruled Averitt's objections.
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where he suffered from "eburnation inflammatory change associated with degenerative
disc disease," as well as mild bilateral foramina! encroachment.
Physical therapy only slightly alleviated Mr. Ramsey's symptoms, so Averitt
provided an orthopedic panel. However, they were all located in Orlando, about a
hundred miles from Mr. Ramsey's residence. He requested doctors closer to home, and
the adjuster substituted Dr. Mark Gillespy in Daytona Beach for one of the Orlando
orthopedists. Mr. Ramsey chose Dr. Gillespy but stated he felt "funneled" to him.
Following examination, Dr. Gillespy stated Mr. Ramsey appeared to suffer from
a lumbar sprain "superimposed upon pre-existing degenerative changes." He further
believed that the sprain was not the "major contributing cause" for necessary treatment.
Thus, he concluded Mr. Ramsey's condition was "partially" work-related. Dr. Gillespy
placed him at maximum medical improvement (MMI) from his work-related injury and
assigned three-percent impairment. He concluded that Mr. Ramsey would not benefit
from further treatment of his work-related injury from an "orthopedic surgical
standpoint." Finally, he felt that Mr. Ramsey could no longer work as a driver due to pre-
existing degenerative changes, although this condition might have been exacerbated by
his work injury. He encouraged Mr. Ramsey to speak with a primary care doctor about
treating his underlying osteoarthritic/degenerative disc disease.
Afterward, Averitt sent Mr. Ramsey's records to Dr. Toney Hudson, a physiatrist
in Cookeville, Tennessee, for his opinion as to whether Mr. Ramsey could return to work
as a driver. Dr. Hudson noted that the MRI film actually showed fewer degenerative
changes than he would expect due to Mr. Ramsey's age and obesity. However, given that
he experienced three back injury events in the short time he worked for Averitt, he would
be at high risk for recurrent back injuries. Thus, he agreed with Dr. Gillespy that Mr.
Ramsey should not return to commercial truck driving. He also agreed that he was at
MMI with three-percent impairment.
Mr. Ramsey sought treatment on his own with Dr. Sonia Millan Pinzon. She
diagnosed lumbar radiculopathy vs. piriformis pain and recommended pain management
as well as physical therapy.
Mr. Ramsey obtained pain management with Dr. Manuel Lopez-Diez. He
diagnosed lumbar radiculopathy, right-sided sciatica and a lumbar disc herniation. Dr.
Lopez-Diez ordered a transforaminal steroid injection and pain medication. Mr. Ramsey
also underwent several sessions of physical therapy, which he testified greatly alleviated
his symptoms.
Findings of Fact and Conclusions of Law
Mr. Ramsey need not prove every element of his claim by a preponderance of the
2
evidence to obtain relief at an expedited hearing. Instead, he must present sufficient
evidence that he is likely to prevail at a hearing on the merits. See Tenn. Code Ann. § 50-
6-239(d)(1) (2018); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015).
The issues are whether Mr. Ramsey is entitled to additional medical treatment and
temporary disability benefits. As to medical benefits, the evidence established that
Averitt provided Mr. Ramsey with a panel of orthopedists as required by Tennessee Code
Annotated section 50-6-204(a)(3)(A)(i) only after initial conservative care failed. Even
then, however, the initial panel did not meet the statute's requirement that the doctors be
"in the employee's community." Instead, it consisted entirely of orthopedists in Orlando,
about 100 miles from Mr. Ramsey's home. When he specifically asked for doctors closer
to home, Averitt substituted Dr. Gillespy from Daytona Beach but kept two orthopedists
from Orlando on the panel. Thus, if Mr. Ramsey wished to see a doctor within in his
community, as was his statutory right, he had no choice but Dr. Gillespy.
In Lamm v. E. Miller Constr. Co., Inc., 2016 TN Wrk. Comp. App. Bd. LEXIS 83,
at *16-18 (Nov. 8, 2016), the Appeals Board addressed the possible consequences of an
inadequate panel:
[Tennessee Code Annotated section 50-6-204] authorizes the employer to
choose a panel of three physicians, but the employee is given the privilege
to make the final choice of the attending physician from the panel of three.
. . . Referring the employee to a single physician does not comply with the
statute; it is a usurpation of the privilege of the employee to choose the
ultimate treating physician. An employer who would claim the benefits of
the statute should, himself, be required to comply with it.
Here, the Court finds that the Orlando orthopedists on the panel did not fall within
the requirement of being "in the employee's community" as required by statute. Averitt
effectively gave Mr. Ramsey the option of only a single physician, which was a
"usurpation" of his privilege to choose his treating doctor. Thus, Averitt is not entitled to
the benefits afforded an employer that is in compliance with the statute.
However, the question remains whether Mr. Ramsey is entitled to another panel or
reimbursement of expenses and continued care with, Drs. Millan Pinzon and Lopez-Diez.
Whether an employee is justified in seeking payment for unauthorized medical expenses
from an employer depends upon the circumstances. Hackney v. Integrity Staffing
Solutions, 2016 TN Wrk. Comp. App. Bd. LEXIS 29, at *8-9 (July 22, 2016).
Here, neither Dr. Millan Pinzon nor Dr. Lopez-Diez gave an opinion that their
treatment is reasonable and necessary to treat symptoms primarily caused by Mr.
Ramsey's work injury. Thus, the Court holds that the circumstances do not justify
3
compelling Averitt to authorize them as his authorized doctors. However, the Court
holds that Mr. Ramsey is entitled to a panel of orthopedists in compliance with Tennessee
Code Annotated section 50-6-204(a)(3)(A)(i) from which he may choose an authorized
physician, and Averitt shall provide it to him.
Finally, as to temporary disability benefits, Mr. Ramsey provided no medical
evidence that he is temporarily disabled as a result of his work injury. Thus, his request
is denied at this time.
IT IS, THEREFORE, ORDERED that:
1. Averitt shall provide Mr. Ramsey with a panel of orthopedists located within his
community from which he can choose an authorized physician. Mr. Ramsey's
request for reimbursement of unauthorized expenses and to allow Drs. Millan
Pinzon and Lopez-Diez be his authorized physicians, as well as his request for
temporary disability benefits, is denied at this time.
2. This matter is set for a Scheduling Hearing on December 3, 2018, at 2:30 p.m.
C.S.T. The parties or their counsel must call 615-253-0010 or toll-free at 855-
689-9049 to participate in the hearing. Failure to call may result in a
determination of the issues without your participation.
3. Unless interlocutory appeal of the Expedited Hearing Order is filed, compliance
with this Order must occur no later than seven business days from the date 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
with this Order to the Bureau by email to WCCompliance.Program@tn.gov no
later than the seventh business day after entry of this Order. Failure to submit the
necessary confirmation within the period of compliance may result in a penalty
assessment for non-compliance. For questions regarding compliance, please
contact the Workers' Compensation Compliance Unit vta email at
WCCompliance.Program@tn.gov.
ENTERED OCTOBER 22, 2018.
1!:;-j;;rt !Judge
Court of Workers' Compensation Claims
APPENDIX
4
Technical Record
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Averitt's Response to Request for Expedited Hearing
5. Docketing Notice
6. Mr. Ramsey's Pre-Hearing Statement
7. Averitt's Pre-Hearing Brief and Objections to the Record
Exhibits
1. Mr. Ramsey's affidavit
2. Medical Treatment Reporting Form from U.S. Healthworks
3. MRI Report
4. Dr. Gillespy's records
5. Dr. Millan Pinzon's records
6. Dr. Lopez-Diez's records
7. C-42 Choice of Physician Form with attached e-mail chain
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 October 22, 2018.
Name Certified Via Service sent to:
Mail Email
Jack D. Ramsey X X 1 Morington Lane
Flagler Beach, FL 32136
J ackramsey91 O@}yahoo.com
Elizabeth G. Hart X betsy@swaffordlawfirm.com
. /)
~' ~
JJv~ -
urt Clerk
Court of Wor ,rs' Compensation Claims
5
Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Expedited Hearing Notice of Appeal,” and file the
form with the Clerk of the Court of Workers’ Compensation Claims within seven
business days of the date the expedited hearing order was filed. When filing the Notice
of Appeal, you must serve a copy upon all parties.
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of the Notice of Appeal. Payments can be made in-person at
any Bureau office or by U.S. mail, hand-delivery, or other delivery service. In the
alternative, you may file an Affidavit of Indigency (form available on the Bureau’s
website or any Bureau office) seeking a waiver of the fee. You must file the fully-
completed Affidavit of Indigency within ten calendar days of filing the Notice of
Appeal. Failure to timely pay the filing fee or file the Affidavit of Indigency will
result in dismissal of the appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business days of the filing of the Notice of Appeal. The statement of
the evidence must convey a complete and accurate account of the hearing. The Workers’
Compensation Judge must approve the statement before the record is submitted to the
Appeals Board. If the Appeals Board is called upon to review testimony or other proof
concerning factual matters, the absence of a transcript or statement of the evidence can be
a significant obstacle to meaningful appellate review.
4. If you wish to file a position statement, you must file it with the court clerk within ten
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements 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.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
.
ll .I
Tennessee Bureau of Workers' Compensation
220 French Landing Drive, 1-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
I, , having been duly sworn according to law, make oath that
because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name:_ _ _ _ _ _ _ _ _ _ __ 2. Address: - - - - - - - - - - - - -
3. Telephone Number: - - - - - - - - - 4. Date of Birth: - - - - - - - - - - -
5. Names and Ages of All Dependents:
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
- - - - - - - - - - - - - - -- - Relationship: - - - - - - - - - - - --
- - - - - - - - - - - - - - - - - Relationship: - - - - - - - - - - - - -
6. I am employed by: - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - , -
My employer's address is: - - - - - - - - - - - - - - - - - - - - - - - - -
My employer's phone number is: - - - - - - - - - - - - - - - - - - - - - - -
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$ _ _ _ _ _ _ ___
8. I receive or expect to receive money from the following sources:
AFDC $ per month beginning
SSI $ per month beginning
Retirement $ per month beginning
Disability $ per month beginning
Unemployment $ per month beginning
Worker's Camp.$ per month beginning
Other $ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are: ' ; !•
'
Rent/House Payment $ per month Medical/Dental $ per month
Groceries $ per month Telephone $ per month
Electricity $ per month School Supplies $ per month
Water $ per month Clothing $ per month
Gas $ per month Child Care $ per month
Transportation $ per month Child Support $ per month
Car $ per month
Other $ per month (describe:
10. Assets:
Automobile $ _ _ __ _
(FMV) - - - - - -- - - -
Checking/Savings Acct. $ _ _ _ __
House $ _ _ _ __
(FMV) - - -- - - -- - -
)
Other $ _ _ _ __ Describe:_ _ _ __ _ _ _ _ __
11. My debts are:
Amount Owed To Whom
I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.
APPELLANT
Sworn and subscribed before me, a notary public, this
_ _ _ dayof _____________ ,20____
NOTARY PUBLIC
My Commission Expires:_ _ _ _ _ __ _
LB-1108 (REV 11/15) RDA 11082