TOLBERT, GLENDY v. WESTERN EXPRESS, INC. , 2020 TN WC 89 ( 2020 )

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT NASHVILLE
GLENDY TOLBERT, ) Docket No. 2019-06-2057
Employee )
Vv. )
WESTERN EXPRESS, INC., ) State File No. 89600-2018
Employer, )
And, )
PMA INSURANCE COMPANY, ) Judge Joshua Davis Baker
Carrier. )
EXPEDITED HEARING ORDER
The Court held an expedited hearing on August 6, 2020, to consider Mr. Tolbert’s
request for additional medical and temporary disability benefits for injuries he suffered in
a tractor-trailer collision. The Court denies his request as he failed prove he would likely
succeed at a hearing on the merits in proving the cause of his injury and the need for further
medical treatment.
Claim History
On November 7, 2018, Mr. Tolbert allegedly suffered various injuries, including
injuries to both shoulders, in an accident in Joplin, Missouri while working as an over-the-
road truckdriver for Western Express. He reported his accident and continued his route.
Five days later, Mr. Tolbert contacted Western Express and said he was in a great deal of
pain. He asked to see his family doctor in Texas, where he lived.
Judy Larson, Western Express’s workers’ compensation manager, told Mr. Tolbert
he would need to see an approved physician. He informed her that he was in Denver,
Colorado but would soon be returning home to Missouri City, Texas. Ms. Larson said she
would look for a provider near there.
Later that day, Ms. Larson told Mr. Tolbert that he could go to a Concentra office
in San Antonio after he made his delivery there. Mr. Tolbert agreed and went to the
appointment on November 16. Around this time, Ms. Larson provided a panel of medical
providers.
At Concentra, a nurse practitioner diagnosed Mr. Tolbert with a shoulder strain and
cervicalgia. He released Mr. Tolbert to return to work but recommended physical therapy.
Mr. Tolbert attended several therapy sessions and began seeing Dr. Peter Nguyen at Ms.
Larson’s direction. The medical records show no referral to Dr. Nguyen from any medical
provider.
At the first visit, Dr. Nguyen ordered x-rays and placed restrictions that prohibited
Mr. Tolbert from bending, stooping, climbing ladders, and lifting more than five pounds.
He set the restrictions to expire on December 19, when Mr. Tolbert was to return and
discuss his x-ray results.
When Mr. Tolbert returned to Dr. Nguyen on that day, a strange series of events
took place. According to the medical records, Mr. Tolbert spoke and acted in a manner
that concerned the office staff. The records stated that Mr. Tolbert swore at staff members,
acted in an aggressive manner, and threatened to sue them for unspecified reasons.
After the visit, Dr. Nguyen wrote a lengthy note stating that he could not examine
Mr. Tolbert because of his aggressive behavior. He further wrote that he told Mr. Tolbert
about the x-ray results—which were negative—before having him removed from the
office, and that Mr. Tolbert showed “no evidence of having any pain issues.” Dr. Nguyen
discharged Mr. Tolbert “due to inappropriate behavior” and suggested he “seek another
provider if he feels the need.” He also released him to return to work without restrictions.
Mr. Tolbert denied that the altercation occurred. He also argued that he was entitled
to a panel of orthopedic physicians. In support of this request, he pointed out that the
physical therapist recommended orthopedic treatment. Additionally, he asked for
temporary disability benefits for the time he missed work.
Western Express asked the Court to deny Mr. Tolbert’s requests. It argued that Mr.
Tolbert’s condition arose from a preexisting condition due to a prior work accident. It
presented medical records showing he suffered essentially the same injuries in a previous
trucking accident. Thus, Western Express contended Mr. Tolbert did not meet his burden
of proof regarding causation. For his part, Mr. Tolbert denied his prior accident impacted
his current injury and claimed that even if it did, Western Express should still be
responsible for treatment.
Turning to the panel issue, Western Express admitted that the panel Ms. Larson gave
Mr. Tolbert consisted of Nashville providers. However, it argued the panel was still valid
because the providers were all members of national chains, and Mr. Tolbert could have
picked from any location in the country. Western Express also said he offered no proof he
needs further treatment because Dr. Nguyen released him to return to work.
Western Express denied it owed Mr. Tolbert any temporary disability benefits
because he refused to accept a light-duty assignment. In Ms. Larson’s affidavit and text
messages, she said she offered Mr. Tolbert a light-duty job and warned he would not be
paid if he declined. She said he refused the job. In response, Mr. Tolbert said the light-
duty offer was unreasonable, since Ms. Larson offered a position grooming cats, and he is
allergic. He also said he needed to ask his doctor if he could perform the work while under
restrictions.
Findings of Fact and Conclusions of Law
To prevail at this expedited hearing, Mr. Tolbert must present sufficient evidence
that he would likely succeed at a final hearing. See Tenn. Code Ann. § 50-6-239(d)(1)
(2019); McCord v. Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS
6, at *9 (Mar. 27, 2015). In this particular case, he must present sufficient evidence: 1) that
he requires further treatment “made reasonably necessary” by his work accident; 2) if so,
that Western Express must provide him a panel of physicians; and 3) that he is owed
temporary disability benefits.
First, the Worker’s Compensation Law requires an employer to “furnish, free of
charge to the employee, such medical and surgical treatment . .. made reasonably necessary
by accident[.]” Tenn. Code Ann. § 50-6-204(a)(1)(A) (2019). The Court finds Mr. Tolbert
is unlikely to prevail in proving further treatment is necessary. Dr. Nguyen diagnosed his
condition, determined he needed no additional treatment, and returned him to full-duty
work. While he disputed the circumstances of his release and claims he needs further
treatment, Mr. Tolbert presented no medical evidence to contradict Dr. Nguyen’s opinion.
Simply put, the Court cannot substitute its, or Mr. Tolbert’s, opinion or judgment for that
of a trained physician. See Scott v. Integrity Staffing Solutions, 2015 TN Wrk. Comp. App.
Bd. LEXIS 24, at *8 (Aug. 18, 2015).
Second, the Court finds Mr. Tolbert is unlikely to prove at trial that he is entitled to
a panel of physicians. Generally, when an employee reports a workplace accident, an
employer must “designate a group of three (3) or more. . . reputable physicians, surgeons,
chiropractors or specialty practice groups if available in the employee’s community .. .
from which the injured employee shall select one to be the treating physician.” Jd. at § 50-
6-204(a)(3)(A)G). The employer must designate the physicians on form C-42 and give the
form, commonly referred to as a panel, to the employee no later than three days after
receiving notice of the accident. Tenn. Comp. R. & Regs. 0800-02-01-.06(1) (May, 2018).
If the employer fails to do so, it may be assessed a civil penalty. /d. at 0800-02-01-.06(2).
A panel is not a practical remedy here, since Dr. Nguyen released Mr. Tolbert to
return to work and recommended no additional treatment. The Court finds the physical
therapist’s recommendation insufficient to support Mr. Tolbert’s request for further care.
Moreover, the medical records from his prior accident call into question whether his current
condition arose from this work accident. The Court, therefore, denies Mr. Tolbert’s request
for additional treatment.
However, the Court finds that Western Express failed in its legal obligation to
provide Mr. Tolbert a proper panel. Western gave Mr. Tolbert a panel consisting entirely
of physicians in Tennessee rather than his community of residence. The Court is not
persuaded by Western’s argument that the panel was valid because it listed providers who
are part of national chains. The Court refers Western Express to the Compliance Program
of the Bureau of Workers’ Compensation for investigation based on Express’s failure to
provide a panel of physicians.
Third and finally, Mr. Tolbert is not entitled to temporary disability benefits. To
qualify, an employee must have been prevented from working due to a work-related injury.
While Western Express accepted this claim and provided benefits, at this time the medical
proof is insufficient regarding the cause of his need for treatment. The medical records
from Mr. Tolbert’s previous workplace accident document permanent injuries similar to
those alleged in this clam. As Mr. Tolbert bears the burden of proving he would likely
prevail at a final hearing on the issue of temporary disability benefits, the Court holds the
medical records show a clear question of medical cause.
IT IS ORDERED as follows:
1. The Court denies Mr. Tolbert’s request for benefits at this time.
2. The Court refers Western Express to the Compliance Program of the Bureau of
Workers’ Compensation for investigation based on its failure to provide a panel of
physicians as required by Tennessee Code Annotated section 50-6-204(a)(3)(A)()
and Tennessee Compilation Rules and Regulations 0800-02-01-.06 (1).
3. The Court sets this claim for a status conference on November 2, 2020, at 10:30
a.m. Central Time. The parties must call (615) 741-2113 or toll-free at (855) 874-
0474 to participate. Failure to call might result in a determination of the issues
without the party’s participation.
ENTERED September 16, 2020.
( % or —.
Joshua Davis Baker, Judge
Court of Workers’ Compensation Claims
APPENDIX
Exhibits
1) Affidavit of Mr. Tolbert
2) Employee’s Employment Application
3) Pre-employment Medical Examination Report
4) First Report of Injury
5) Wage Statement
6) Employee’s Written Discovery Responses
7) Qualcomm Correspondence
8) Affidavit of Judy Larson and Standard Choice of Physicians Form
9) Concentra Pre-visit Authorization
10) Concentra records dated November 16, 2008
11)Email communication concerning light-duty
12)Medical Report of Dr. Peter Nguyen dated 12/5/18
13)Medical Report of Dr. Peter Nguyen dated 12/19/18
14) X-ray reports of Dr. Steven Tibbitts regarding Employee’s low back and shoulder
15)Physical Therapy Reports
16)Notice of Withdrawal of Representation of Employee’s previous counsel in Texas
17)Photographs filed by Mr. Tolbert
18)Excel Sport Therapy records, 15 pages
19) Medical Records dated 11/15/18, collective exhibit
Technical Record
1) Petition for Benefit Determination
2) Dispute Certification Notice
3) Request for Expedited Hearing
4) Court Order to Show Cause
5) Motion to Compel Discovery
6) Motion to Appear by Telephone
7) Response to Motion for Discovery
8) Order Granting Motion to Compel
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on September 16, 2020.
Name Certified | Via | Via Address
Mail Fax | Email
Glendy Tolbert, x glendytolbertjr@yahoo.com
Self-represented
employee
Drew Saulters, xX dsaulters@ortalekelley.com,
Employer’s Attorney jarmstrong @ortalekelley.com
Compliance Program x WCCompliance.program@tn. gov
“tyny
bg
hu yw
PENNY SH&UM, COURT CLERK
we.courtclerk@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: “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
conceming 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.
NOTICE OF APPEAL
Tennessee Bureau of Workers’ Compensation
www.tn.gov/workforce/injuries-at-work/
we.courtclerk@tn.gov | 1-800-332-2667
Docket No.:
State File No.:
Date of Injury:
Employee
Employer
Notice is given that
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appeals the following order(s) of the Tennessee Court of Workers’ Compensation Claims to the
Workers’ Compensation Appeals Board (check one or more applicable boxes and include the date file-
stamped on the first page of the order(s) being appealed):
D Expedited Hearing Order filed on UO) Motion Order filed on
O Compensation Order filed on 0 Other Order filed on
issued by Judge
Statement of the Issues on Appeal
Provide a short and plain statement of the issues on appeal or basis for relief on appeal:
Parties
Appellant(s) (Requesting Party): ['Employer!” Employee
Address: Phone:
Email:
Attorney’s Name: BPR#:
Attorney’s Email: Phone:
Attorney’s Address:
* Attach an additional sheet for each additional Appellant *
LB-1099 rev. 01/20 Page 1 of 2 RDA 11082
Employee Name: Docket No.: Date of !nj.:
Appellee(s) (Opposing Party): [| Employer |~ Employee
Appellee’s Address: Phone:
Email:
Attorney’s Name: BPR#:
Attorney’s Email: Phone:
Attorney’s Address:
* Attach an additional sheet for each additional Appellee *
CERTIFICATE OF SERVICE
I, , certify that | have forwarded a
true and exact copy of this Notice of Appeal by First Class mail, postage prepaid, or in any manner as described
in Tennessee Compilation Rules & Regulations, Chapter 0800-02-21, to all parties and/or their attorneys in this
case on this the day of , 20
[Signature of appellant or attorney for appellant]
LB-1099 rev. 01/20 Page 2 of 2 RDA 11082