Bryan, David v. Ashley Distribution Services Ltd. ( 2019 )

FILED
Sep 20, 2019
02:30 PM(ET)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT KNOXVILLE
DAVID BRYAN, ) Docket No. 2018-03-0115
Employee, )
v. )
ASHLEY DISTRIBUTION )
SERVICES, LTD, ) State File No. 13790-2016
Employer, )
And )
HARTFORD CASUALTY )
INSURANCE COMPANY, ) Judge Pamela B. Johnson
Employee, )
EXPEDITED HEARING ORDER DENYING BENEFITS
Mr. Bryan seeks additional medical treatment, specifically a panel of physicians,
for continued treatment of his closed-head injury. 1 Ashley Distribution denied his
request for a new panel but offered to allow him to return to Dr. Jeffrey Uzzle for further
treatment. After an Expedited Hearing on September 4, 2019, the Court holds Mr. Bryan
failed to demonstrate that he is entitled to a new panel at this time.
History of Claim
Mr. Bryan was a truck driver with Ashley Distribution. On February 10, 2016,
he fell on ice while delivering furniture. Due to his fall, Mr. Bryan suffered insomnia,
headaches, tinnitus, dizziness, balance deficits, concentration difficulties, and emotional
instability. He timely reported his injury, and Ashley Distribution accepted his claim.
Mr. Bryan received authorized treatment with Dr. Robert L. Chironna, who
determined that Mr. Bryan suffered from post-concussive symptoms from a traumatic
brain injury. He treated Mr. Bryan's symptoms with prescription medication and various
1
The Dispute Certification also listed temporary disability benefits as an issue. However, at the
Expedited Hearing, Mr. Bryan stated he was only seeking additional medical benefits and reserved his
right to seek additional temporary disability benefits at a later date.
1
therapies. 2 On Dr. Chironna's recommendations, Mr. Bryan underwent physical therapy,
occupational therapy, speech and language therapy, vision therapy, and behavioral
medicine/psychotherapy. Dr. Chironna anticipated that Mr. Bryan was nearing maximum
medical improvement (MMI) during his last visit on June 26, 2017.
Unfortunately, Dr. Chironna died before he could assign MMI and assess
permanent medical impairment. Ashley Distribution did not provide a panel of
physicians to take over his care. Instead, the parties agreed that Mr. Bryan would see Dr.
Jeffrey Uzzle to determine whether Mr. Bryan had reached MMI and sustained a
permanent impairment. 3
Mr. Bryan saw Dr. Uzzle on February 6, 2018. 4 Dr. Uzzle examined Mr. Bryan
and reviewed his extensive treatment following the injury. He noted Dr. Malcolm Spica
evaluated him and found that Mr. Bryan had: (1) a normal neuropsychological
examination, no restrictions or limitations, and no findings of neurocognitive disorder
from a brain injury; (2) no significant mood disruption or other psychiatric features; and
(3) no neurocognitive or behavioral health dysfunction that rises to the level of
impairment. Similarly, Dr. Uzzle noted that Dr. Sidney Alexander conducted an
independent psychiatric evaluation resulting in his conclusion that Mr. Bryan was
malingering and did not require work restrictions or limitations.
Dr. Uzzle then determined that Mr. Bryan "probably" had a mild traumatic injury
or concussion from his work injury, which "completely resolved without residuals." Dr.
Uzzle stated Mr. Bryan's "ongoing subjective complaints are probably behavioral in
etiology and unrelated causally to the work injury." Dr. Uzzle placed Mr. Bryan at MMI
on February 6 and assigned a zero-percent impairment rating for his mild traumatic brain
injury. Dr. Uzzle also indicated Mr. Bryan needed no further treatment or restrictions
related to his work injury, and he stated he could return to work as a truck driver.
In response, Mr. Bryan testified that Dr. Uzzle only conducted a short examination
lasting ten minutes and did not have sufficient information to know what he was
experiencing due to his injury. Mr. Bryan said he continues to suffer ringing in his ears,
balance problems, visual disturbances, and headaches. He acknowledged that he is able
to drive his personal vehicle but denied that any physician cleared him for commercial
driving.
At the hearing, Mr. Bryan requested a panel. Ashley Distribution denied the
2
Mr. Bryan did not select Dr. Chironna from a panel.
3
Mr. Bryan did not select Dr. Uzzle from a panel.
4
In his report, Dr. Uzzle noted Ashley Distribution asked him to address causation, MMI, and impairment
rating.
2
request but offered a return visit to Dr. Uzzle.
Findings of Fact and Conclusions of Law
Mr. Bryan must show at an Expedited Hearing that he would likely prevail at a
hearing on the merits that he is entitled to a new panel of physicians. See Tenn. Code
Ann. § 50-6-239(d)(l) (2018).
The Workers' Compensation Law requires an employer to furnish medical
treatment made reasonably necessary by a work injury. Tenn. Code Ann. § 50-6-
204(a)(l)(A). A work injury causes the need for medical treatment only if it is shown to
a reasonable degree of medical certainty that the injury contributed more than fifty
percent in causing the need for medical treatment. "Shown to a reasonable degree of
medical certainty" means that, in the opinion of the physician, it is more likely than not
considering all causes. The causation opinion of the panel-selected physician is
presumed correct. See generally Tenn. Code Ann.§ 50-6-102(14).
Mr. Bryan argued that Dr. Chironna's opinion is entitled to a presumption of
correctness as the authorized treating physician. As the Workers' Compensation Appeals
Board held in Gilbert v. United Parcel Service, 2019 TN Wrk. Comp. App. Bd. LEXIS
20, at *13 (Jun. 7, 20 19), "Tennessee Code Annotated section 50-6-1 02(14 )(E) makes
clear that the rebuttable presumption of correctness attributable to a causation opinion
applies only to such opinions expressed by a treating physician selected by the employee
from the employer's designated panel of physicians pursuant to § 50-6-204(a)(3)."
Therefore, Dr. Chironna's opinion holds no presumption of correctness. Moreover, his
last office note contains no specific recommendation for further treatment or evaluation
that Ashley Distribution has not already provided.
Here, Dr. Uzzle determined Mr. Bryan did not recommend further treatment and
indicated he could return to truck driving without restrictions. Mr. Bryan offered no
expert opinion relating his need for medical treatment to the work injury. Thus, the Court
holds Mr. Bryan failed to demonstrate that he is likely to prevail at a hearing on the
merits concerning entitlement to the requested physician panel.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Bryan's request for a panel is denied at this time.
2. This case is set for a Scheduling Hearing on January 13, 2020, at 1:30 p.m.
Eastern Time. The parties must call 855-543-5041 (toll-free) to participate.
Failure to appear by telephone might result in a determination of the issues
without the party's participation.
3
ENTERED September 20,2019. ----
PAMELA B. JOHNSON, JUDGE
Court of Workers' Compensation Claims
APPENDIX
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Employer's Witness and Exhibit List
Exhibits:
1. Affidavit
2. Medical Records with Table of Contents 5
3. Medical Records ofDr. Chironna
CERTIFICATE OF SERVICE
I certify that a copy if this Order was sent as indicated as September 20, 2019.
Name Certified Fax Email Service sent to:
Mail
Jonathan W. Doolan, X j onathan@collinsdoolan.com
Employee's Attorney
Richard R. Clark, Jr., X RClark@eraclides.com
Employer's Attorney
fRUM, Court Cler
·Cierk@tn.gov
5
Page 7 of Dr. Uzzle's report was missing in original filing. The employer submitted page 7 at the
Court's request and added to this exhibit.
4
EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers' Compensation
www.tn .gov/lallor-wfd/wcomp.shlml
wc.courtclerk@tn.gov
1-800-332-2667
Docket#: _ _ __ _ _ _ _ __
State File #/YR: _ _ _ _ _ __
Employee
v.
Employer
Notice
Notice is given that - - - - - -- - - - - - - - -- - - -- - - - - - -- - -
[List name(s) of all appealing party(ies) on separate sheet if necessary]
appeals the order(s) of the Court of Workers' Compensation Claims at _ _ __ _ _ __ __
to the Workers' Compensation Appeals
~-``~-````-``--``~
Board. [List the date(s) the order(s) was filed in the court clerk's office]
Judge_ _ _ __ __ _____________________
Statement of the Issues
Provide a short and plain statement of the issues on appeal or basis for relief on appeal :
Additional Information
Type of Case [Check the most appropriate item]
D Temporary disability benefits
D Medical benefits for current injury
D Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party) :_______________ At Hearing: DEmployer DEmployee
Address: _ _ _ _ _ _ _ _ _ __ _ _ _ __ _ _ _ _ _ _ _ _ __ _ _ _ _ _ _ _ _ __
Party's Phone: _ _ _ _ _ _ _ __________ Email :_ _ __ _ _ _ _ __ _ __ _ _
Attorney's Name: _ _ _ _ _ __ _ _ __ _ _ __ _ _ _ __ _ BPR#: - - - - - - - - -
Attorney's Address:_ _ _ _ _ _ _ _ _ __ _ _ __ _ _ __ __ Phone:
Attorney's City, State & Zip code:_ __ _ __ _ _ _ _ _ _ _ _ __ _ _ _ _ _ __ _ _ __
Attorney's Email: _ __ _ _ _ __ _ _ _ _ _ _ _ _ __ _ _ __ _ _ _ _ __ __ _ __
'" Attach an additional sheet for each additional Appellant •
LB-1099 rev.10/18 Page 1 of 2 RDA 11082
Employee Name: _ _ __ __ _ _ _ _ __ SF#: _ _ __ _ _ _ _ _ _ DOl : _ _ _ _ __
Appelle,e (s)
Appellee (Opposing Party)._
· _ _ _ _ _ _ _ _ At Hearing: DEmployer DEmployee
Appellee's Address : _ _ _ _ __ _ _ __ __ _ _ _ _ __ __ _ _ __ _ _ _ __ _
Appellee's Phone:....:_ _ _ _ __ _ _ _ _ _ _ _ __ Email:_ _ _ _ _ _ __ _ _ _ _ __
Attorney's Name :....:--- - - - - - - - - -- - - -- - - - BPR#: _ _ _ _ __ _ _
Attorney's Address '-:- - -- - - - - - - - - -- - - - - - - Phone: _ _ _ _ _ _ __
Attorney's City, State & Zip code : - - - - -- - - - - - - - - - - - -- - - - -- -
Attorney's Email :,___ _ _ _ __ _ _ _ _ _ _ _ _ _ _ __ __ __ _ _ _ _ __ _ __
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
!,_ __ _ _ __ _ _ _ _ _ _ _ _, certify that I have forwarded a true and exact copy of this
Expedited Hearing Notice of Appeal by First Class, United States Mail, postage prepaid, to all parties
and/or their attorneys in this case in accordance with Rule 0800-02-22.01(2) of the Tennessee Rules
of Board of Workers' Compensation Appeals on this the day of , 20_
[Signature of appellant or attorney for appellant]
LB-1099 rev. 10/18 Page 2 of 2 RDA 11082
Tennessee Bureau ofWorkers' Compensation
220 French Landing Drive, 1-8
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 Comp.$ per month beginning
Other $ per month beginning
LB-11 08 (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
Expedi ted Hearin g Oi·der Ri ght to Ap peal:
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:
I. 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 lndigency (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 lndigency 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.