Gautreax, Kelly v. Hermitage Hall ( 2019 )

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
KELLY GAUTREAUX, ) Docket No. 2018-06-0366
)
Employee, )
V. ) State File No. 11346-2017
)
HERMITAGE HALL, )
) Judge Joshua D. Baker
Employer. )
EXPEDITED HEARING ORDER FOR MEDICAL BENEFITS
On October 8, 2019, the Court convened an expedited hearing where Ms.
Gautreaux sought treatment from either Nashville-area psychiatrist Dr. Greg Kyser or a
panel of psychiatrists within her community from whom she could select a psychiatrist.
Hermitage Hall argued that Ms. Gautreaux is not entitled to treatment, and even if she
were, it already offered her a panel of psychiatrists. For the reasons below, the Court
orders Hermitage Hall to provide Ms. Gautreaux psychiatric treatment with Dr. Kyser.
History of Claim
The Court detailed this claim’s history in its previous expedited hearing order and
only recounts the facts that are central to resolving the present dispute.
In that order, which Hermitage Hall appealed and the Appeals Board affirmed, the
Court ordered Hermitage Hall to provide Ms. Gautreaux psychiatric care as
recommended by the authorized treating physician, Dr. Strickland. Although Hermitage
Hall had offered the opinion of neurologist Dr. Steven Graham, who believed it
“unlikely” that Ms. Gautreaux had a work-related injury, the Court rejected that opinion
based its decision on a recommendation from Dr. Strickland, and on the opinion of Dr.
Kyser, a psychiatrist.
Dr. Strickland recommended that Ms. Gautrtreaux stay off work “until seen by
psychiatry” and further recommended she see two see two specific “post-concussion
experts.” He also wrote that he would defer to those experts concerning her permanent
impairment and date of maximum medical improvement.
Dr. Kyser, whom Ms. Gautreaux saw for an evaluation, deemed her condition
work-related and explained that previous concussions she suffered as a college athlete left
her susceptible to “worsening symptoms” and a “higher risk of developing long-term
difficulties from another concussion.” He also believed she should remain off work until
receiving psychiatric care.
In an attempt to comply with the Court’s order, Hermitage Hall searched for
psychiatrists in Ms. Gautreaux’s community but alleged difficulty finding any that
accepted workers’ compensation. So ten days after the Appeals Board remanded the
case, the Court approved a joint request allowing Hermitage Hall an additional fifteen
days to comply.
Approximately two weeks after the Court granted additional trme, Hermitage Hall
provided Ms. Hall a panel of three psychiatrists who practiced outside the Nashville area.
One practiced in Memphis, another in Oak Ridge, and the third in Cleveland, Tennessee.
Ms. Gautreaux did not select a psychiatrist from the panel because she questioned the
panel’s validity due to the absence of psychiatrists in her community. She filed a request
for expedited hearing over the disputed panel.
Approximately one month after she filed her request, Hermitage Hall sent a letter
to Dr. Strickland asking his opinion on Ms. Gautreaux’s need for psychiatric care or
evaluation in light of her “ability to play tennis, paddleboard, attend loud concerts with
flashing lights, and ride in cars for long distances[.]”’ Dr. Strickland said she needed
neither care nor evaluation but did not examine her before giving that opinion.’
When Ms. Gautreaux testified at the expedited hearing, counsel for Hermitage
Hall asked her many questions about her activities since the last hearing, focusing mainly
on paddle boarding, tennis, and a car trip to Detroit to see a concert. On paddle boarding,
Ms. Gautreaux admitted she tried one time but was unable to stand and paddle. Instead
she was forced to lie down on the board and float on the lake. She also admitted playing
tennis once with her father as a bonding opportunity. Concerning the road trip to Detroit,
Ms. Gautreaux said that the trip was extremely hard on her and that she cried often. She
further admitted that the concert had lots of flashing lights and loud music but said she
was far away from the stage, spent most of the time in her seat, and could not enjoy the
experience because of anxiety.
" Upon receiving this opinion, Hermitage Hall terminated Ms. Gautreaux’s temporary disability benefits.
Aside from this testimony, Ms. Gautreaux’s remaining testimony coincided with
her testimony from the previous expedited hearing. She said she is still unable to work,
has difficulty riding in a car for even short periods of time, and is rarely able to engage
socially. She cried a lot during her testimony and appeared to be very tired, sometimes
leaning her head against the side of the bench as she sat in the witness box. She said she
spends the majority of her time in her apartment in bed.
Concerning care since the last hearing, Ms. Gautreaux said she continued to see
her private psychiatrist in New Orleans for medication management but received no care
from him for the workplace condition. When asked why she had not sought care on her
own, she said she did not think the Workers’ Compensation Law would allow her to do
that.
Findings of Fact and Conclusions of Law
Ms. Gautreaux seeks either a panel of psychiatrists within her community or
appointment of Dr. Kyser as her authorized treating physician. She need not prove every
element of her claim by a preponderance of the evidence to receive relief. Instead, she
must present sufficient evidence showing that she would likely prevail at a final hearing.
McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at
*7-8, 9 (Mar. 27, 2015). The Court finds she carried this burden and orders Hermitage
Hall to provide treatment with Dr. Kyser.
In this expedited hearing, Hermitage Hall raised two defenses for its failure to
abide by the Court’s order: (1) Dr. Strickland rescinded his recommendation that Ms.
Gautreaux receive psychiatric care; and (2) it could not assemble a panel in Ms.
Gautreaux’s community because no psychiatrists in Nashville would agree to treat her.
The Court finds neither persuasive.
Regarding the first defense, Hermitage Hall asserts that Dr. Strickland has
rescinded his recommendation for psychiatric treatment so it no longer has to provide the
treatment. The Court disagrees.
Hermitage Hall presented a second letter from Dr. Strickland where he rescinded
his previous treatment recommendation after being presented with conclusory statements
from counsel about Ms. Gautreaux’s current condition. The record does not reveal he
examined or even spoke with her before offering this new opinion. Although Dr.
Strickland is the authorized treating physician and his treatment recommendations are
presumed correct, the Court questions the probative weight it should assign the
° Ms. Gautreaux participated in a therapy program at Vanderbilt from August to October, 2018. Her
participation occurred before the last hearing, but the parties did not present the records until this hearing.
3
recommendation, as Dr. Strickland appears to have proffered it without inquiring of Ms.
Gautreaux regarding the details of the activities he considered. See Tenn. Code Ann. §
50-6-204(3)(H).
Furthermore, Dr. Strickland relied in part on Dr. Graham’s opinion when changing
his recommendation. As stated before, this Court specifically credited Dr. Kyser’s
opinion over Dr. Graham’s, so Dr. Strickland’s reliance on Dr. Graham’s opinion only
weakens his latest opinion.
In the end, because Dr. Strickland rescinded his recommendation for psychiatric
care, it puts his opinion directly at odds with Dr. Kyser’s. When faced with conflicting
opinions from two physicians, “it is within the discretion of the trial judge to conclude
that the opinion of certain experts should be accepted over that of other experts and that it
contains the more probable explanation.” In making that determination, the Court may
consider, “the qualifications of the experts, the circumstances of their evaluation, the
information available to them, and the evaluation of the importance of that information
by other experts.” See Darraj v. McKee Foods Corp., 2017 TN Wrk. Comp. App. Bd.
LEXIS 4, at *13-14 (Jan. 17, 2017). Here, the Court finds the pertinent factors all
mitigate in favor of the opinion of Dr. Kyser that Ms. Gautreaux requires psychiatric
treatment for her work-related injury.
Most importantly, Dr. Kyser is a psychiatrist, so the Court considers his opinion
on the necessity of psychiatric treatment more informed than Dr. Strickland’s. He also
examined Ms. Gautreaux more recently than Dr. Strickland, so his information was more
current. Finally, Dr. Strickland made his opinion upon consideration of summary
statements from defense counsel without confirming their veracity. Therefore, the Court
credits Dr. Kyser’s opinion on necessary treatment over Dr. Strickland’s.
Concerning the second defense, for a panel to be valid, the providers cannot
practice further than 125 miles from the employee’s home. See Tenn. Code Ann. § 50-6-
204(a)(3)(B). The panel provided to Ms. Gautreaux contained psychiatrists who practice
more than 125 miles from her home. Thus, the Court finds that the panel is invalid, and
despite Ms. Gautreaux’s responsibility to accept the medical care provided by the
employer, the Court holds she had no duty to select a physician from the panel. Further,
requiring someone in her condition to ride for hours in a car for treatment is not feasible
or effectual, as she testified about the negative effects of the long trip to Detroit and said
that even short trips are difficult.
Almost one year ago, the Court ordered Hermitage Hall to provide Ms. Gautreaux
psychiatric treatment. Hermitage Hall attempted to assemble a valid panel but failed.
When it failed to provide a valid panel, it attempted to “undo” Dr. Strickland’s treatment
recommendation. Under these circumstances, with Hermitage Hall’s failure to abide by
this Court’s order and the prolonged effect it has had on Ms. Gautreaux, the Court
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appoints Dr. Kyser as the authorized treating physician and orders Hermitage Hall to
provide Ms. Gautreaux treatment with Dr. Kyser until she is released.
Additionally, the Court refers Hermitage Hall to the compliance program for
consideration of assessment of a civil penalty under Tennessee Code Annotated section
50-6-118(a) for its failure to timely abide by this Court’s order. Although Hermitage
Hall tried after the Appeals Board’s decision to abide by the order, those efforts fell short
and arrived untimely. As mentioned above, the Court ordered Hermitage Hall to provide
this care almost a year ago.
It is ORDERED as follows:
1. Hermitage Hall shall provide Ms. Gautreaux psychiatric care with Dr.
Kyser.
2. Hermitage Hall is referred to the Bureau’s compliance program for
consideration of assessment of civil penalty for its failure to comply with
this Court’s December 11, 2018 expedited hearing order.
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 via email at
WCCompliance.Program @tn. gov.
ENTERED ON OCTOBER 23, 2019.
CN
Judge Joshua Davis Baker
Court of Workers’ Compensation Claims
APPENDIX
Exhibits:
WNP
Medical Records
Declaration of Ms. Gautreaux
Panel
Questionnaire Response from Dr. Strickland
Technical Record:
wn SP
Request for Expedited Hearing filed August 13, 2019
Dispute Certification Notice
Petition for Benefit Determination
Expedited Hearing Order entered December 11, 2018
CERTIFICATE OF SERVICE
I certify that a correct copy of this Expedited Hearing Order was sent as indicated
on October 23, 2019.
Employer’s Attorneys
Name Certified | Fax Email | Service sent to:
Mail
Zachary Wiley, x zwiley @ forthepeople.com
Employee’s Attorney rforrest @forthepeople.com
Chris Brooks, xX crbrooks @mijs.com
Greg Fuller; ghfuller@ mijs.com
Jos dum
PENNY SHR UM, COURT CLERK
wce.courtcle b/@tn.gov
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.
LB-1099
EXPEDITED HEARING NOTICE OF APPEAL
Tennessee Division of Workers’ Compensation
www. tn.gov/labor-wid/weomp.shtml
wce.courtclerk@tn.gov
1-800-332-2667
Docket #:
State File #/YR:
Employee
Vv.
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]
L] Temporary disability benefits
L] Medical benefits for current injury
LC Medical benefits under prior order issued by the Court
List of Parties
Appellant (Requesting Party): At Hearing: LJEmployer LJEmployee
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 *
rev. 10/18 Page 1 of 2 RDA 11082
Employee Name: SF#: DOI:
Appellee(s)
Appellee (Opposing Party): At Hearing: L]JEmployer LJEmployee
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
I,
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
, certify that | have forwarded a true and exact copy of this
[Signature of appellant or attorney for appellant]
LB-1099 rev. 10/18 Page 2 of 2 RDA 11082
Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, I-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, | 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 Ail Dependents:
Relationship:
Relationship:
Relationship:
Relationship:
6. lam 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. | receive or expect to receive money from the following sources:
AFDC $ per month beginning
ssl $ 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-1108 (REV 11/15) RDA 11082
9. My expenses are:
Rent/House Payment $ permonth 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
| 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
day of , 20
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV 11/15) RDA 11082