Shiflet, Richard v. EMCOR Group, Inc, d/b/a Cherokee Millwright, Inc. , 2019 TN WC 150 ( 2019 )

FILED
Oct 21, 2019
01:16 PM(CT)
TENNESSEE COURT OF
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT GRAY
RICHARD SHIFLET, ) Docket Number: 2019-02-0247
Employee, )
Vv. )
)
EMCOR GROUP, INC., d/b/a ) State File Number: 73240-2018
CHEROKEE MILLWRIGHT, INC. )
Employer, )
and )
AMERICAN CASUALTY COMPANY )_ Judge Brian K. Addington
OF READING, PENNSYLVANIA, )
Insurance Carrier. )
EXPEDITED HEARING ORDER
(DECISION ON THE RECORD)
This case came before the Court on October 21, 2019, and requires it to determine
whether Richard Shiflet is entitled to temporary benefits and medical benefits, and
whether he must undergo a neuropsychological examination at EMCOR’s request. '
Based on the record, the Court holds Mr. Shiflet is not entitled to temporary disability
benefits but should return to Dr. William Fly to determine reasonable and necessary
treatment options, and he is not required to undergo a neuropsychological examination at
this time.
Claim History
A metal beam fell on Mr. Shiflet’s foot at work on September 18, 2018. He
received emergency treatment and then came under orthopedist Dr. William Fly’s care,
who determined Mr. Shiflet suffered a fracture and extensive soft-tissue damage. After
the fracture healed, Dr. Fly recommended Lyrica to decrease his pain. When Mr.
' The Court scheduled an in-person expedited hearing, but the Judge’s unexpected illness caused its
cancellation. Due to difficulty rescheduling, the Court informed the parties that it would make a decision
on the record.
WORKERS' COMPENSATION
Shiflet’s pain continued, Dr. Fly recommended injection therapy and a consultation with
Dr. Bruce Fly for a possible nerve block.
Although Dr. Fly made the recommendation in December, EMCOR had not
approved the consult when he saw Mr. Shiflet again in January 2019. Dr. Fly noted that
Mr. Shiflet’s problems might worsen because of the denial, and he mentioned for the first
time that he might be experiencing early complex regional pain syndrome (CRPS). He
re-requested the consult.
EMCOR eventually approved the consult. Dr. Bruce Fry administered the nerve
block, which only provided two to three days of relief. Mr. Shiflet told Dr. William Fly
during his February 2019 appointment that his pain was 10 out of 10. Dr. William Fly
recommended another injection by Dr. Bruce Fly and a return appointment to see him.
During the March follow-up appointment, Dr. William Fry noted the second
injection only provided two days of relief. He determined that Mr. Shiflet had CRPS
type 1.” He placed him at maximum medical improvement (MMI), found he suffered
fifteen-percent whole-body impairment from the work injury, and provided sedentary
work restrictions. He instructed Mr. Shiflet to obtain a Lyrica prescription from his
primary care provider, as he felt the prescription would be indefinite and he could not
write it permanently.*
Mr. Shiflet’s primary care provider could not provide the Lyrica prescription, so
EMCOR sent him to FNP Benjamin Meeks, who works in Dr. Turney Williams’s office.
Dr. Williams’s office stopped the Lyrica because of its side effects. Instead, Dr.
Williams recommended a pain stimulator for which Mr. Shiflet needed a psychological
consult and stated he had developed depression from his injury. He also found Mr.
Shiflet was not at MMI.
EMCOR denied the pain stimulator and the psychological consult, agreeing only
to provide Lyrica. It offered a panel of pain management physicians, but Mr. Shiflet
refused to choose a physician.’ Instead, he sought an independent examination at the
Helen Ross McNabb Center, where Dr. Mamju Khanna found he was suffering from
depression and anxiety related to work.
Similarly, EMCOR sought its own independent medical evaluation with Dr.
Jeffrey Hazlewood, who stated Mr. Shiflet might have CRPS, but he needs a
* The American Medical Association’s Guides to the Evaluation of Permanent Impairment requires a one-
year diagnosis before a physician can confirm and rate CRPS.
> EMCOR paid temporary total disability benefits until April 29, 2019.
*Dr. Williams was not a panel physician.
neuropsychological examination to explore his complaints and CRPS diagnosis.
EMCOR filed a motion to compel the neuropsychological examination with Dr. Sidney
Alexander.
Mr. Shiflet filed a Request for Expedited Hearing seeking additional temporary
total disability benefits, continued treatment with Dr. Williams, and a panel of physicians
for depression. He argued that EMCOR refused to provide the requested benefits even
though his providers now say he is not at MMI, and he needs a pain stimulator and
treatment for depression. He argued that EMCOR’s request for the neuropsychological
examination by Dr. Alexander was merely “doctor-shopping.”
EMCOR argued that Mr. Shiflet is at MMI and not entitled to additional
temporary disability benefits. It asserted that Dr. William Fly only wanted him to see his
primary care provider for the Lyrica. It moved to compel the neuropsychological
examination based on Dr. Hazlewood’s report.
Findings of Fact and Conclusions of Law
Mr. Shiflet bears the burden of proof at all stages of his workers’ compensation
claim. Buchanan v. Carlex Glass Co., 2015 TN Wrk. Comp. App. Bd. LEXIS 39, at *6
(Sept. 29, 2015). At an expedited hearing, a trial court may grant relief if the employee
has met the burden of showing that he or she is likely to prevail at a hearing on the
merits. Jd. Here, Mr. Shiflet must show he is entitled temporarily temporary disability
benefits and that his request for medical treatment is reasonable and necessary.
Concerning the request for temporary disability benefits, Mr. Shiflet affirmed
EMCOR paid him through April 29, 2019. Dr. Fly, the panel physician, placed him at
MMI in March 2019. Temporary total disability benefits are terminated when an
employee reaches MMI. Cleek v. Wal-Mart Stores, Inc., 19 S.W.3d 770, 776 (Tenn.
2000). Dr. William Fly, the panel physician, placed Mr. Shiflet at MMI, and EMCOR
paid Mr. Shiflet temporary benefits well after that determination. Mr. Shiflet has not
presented sufficient evidence that he is likely to succeed at a hearing on the merits
concerning temporary total disability benefits.
As for the requested medical benefits, Mr. Shiflet has not recently seen the panel
physician, Dr. William Fly, who only recommended an indefinite Lyrica prescription.
Later authorized providers, not selected from a panel, discontinued that medication and
recommended additional treatment for pain and depression they relate to his injury.
EMCOR denied the recommendations but offered a pain management panel, which Mr.
Shiflet refused.
The Workers’ Compensation Law provides that a panel physician must make a
referral for psychological or psychiatric services. Tenn. Code Ann. § 50-6-204(h) (2019).
3
Dr. William Fly never made this referral. Also, it has been months since he has seen Mr.
Shiflet, and he has not considered the additional treatment recommendations that later
authorized providers and Dr. Khanna made. Considering the extent of these
recommendations versus Dr. William Fly’s proposed Lyrica prescription, the Court finds
it reasonable for Mr. Shiflet to return to Dr. William Fly for further evaluation. Thus, the
Court holds that Mr. Shiflet shall return to him.
Finally, concerning EMCOR’s motion to compel Mr. Shiflet to attend a
neuropsychological examination, Dr. Hazlewood thinks Mr. Shiflet might have CRPS,
but he would need this exam to rule out the condition. The Court finds this issue
premature, as Mr. Shiflet’s CRPS diagnosis is less than a year old, and he has had no
follow up with Dr. William Fly to confirm the diagnosis.
IT IS, THEREFORE, ORDERED AS FOLLOWS:
1. Mr. Shiflet’s request for temporary and medical benefits is denied at this time.
2. EMCOR’s motion to compel is denied at this time.
3. EMCOR shall make an appointment with Dr. William Fly to address Mr.
Shiflet’s complaints and other provider’s recommendations. Should Dr. Fly
refuse to see Mr. Shiflet, EMCOR shall provide Mr. Shiflet a panel of
orthopedists.
4. This case is set for a Status Conference on January 6, 2020, at 11:00 a.m.
Eastern Time. The parties shall call 855-543-5044 to participate. Failure to
call at the scheduled time might result in a determination of issues without the
party’s participation.
ENTERED October 21, 2019.
/S/ Brian K. Addington
BRIAN K. ADDINGTON, JUDGE
Court of Workers’ Compensation Claims
Appendix
Exhibits:
1. Mr. Shiflet’s Affidavit
2. Ms. Stacy Baisden’s Affidavit
3. Separation Notice
4. Physician Panel
5. Smyth Co. Community Hospital Medical Records
6. Lakeway Regional Hospital Medical Records
7. Ortho Tennessee/Dr. William Fly Medical Records
8. Final Medical Report
9. Rural Health Services/Leslie Elliott, FNP Medical Records
10. Pain Medicine Associates Medical Records
11. Dr. Jeffrey Hazlewood Medical Records
12. Helen Ross McNabb Center, Inc. Medical Records
13. Hamblen Co. Clinic Medical Records
14. Emails between Sedgwick and Pain Management Associates
15. Text messages
Technical Record:
1. Request for Expedited Hearing
2. Petition for Benefit Determination
3. Dispute Certification Notice
4. ER’s Pre Hearing Statement
5. Supplement to the Position Statement of Employee
6. Employer’s Supplemental Brief
CERTIFICATE OF SERVICE
I certify a copy of this Order was sent as indicated on October 21 , 2019.
Name Certified | Fax | Email Service sent to:
Mail
Phillip Boyd, x lisa@boydlawoffice.net
Employee’s Attorney
Allen Grant, x agrant@eraclides.com
Employer’s Attorney
f ) |
a
Stuy Ri (Aum
PENNY/SHRUM, COURT CLERK
we.couricierk@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