Randolph, Kevin v. R & M ELECTRIC, INC. , 2020 TN WC 98 ( 2020 )

FILED
Sep 28, 2020
09:27 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS' COMPENSATION
IN THE COURT OF WORKERS' COMPENSATION CLAIMS
AT NASHVILLE
KEVIN RANDOLPH, ) Docket No. 2020-06-0867
Employee, )
v. )
)
R & M ELECTRIC, INC., )
Employer, ) State File No. 68339-2018
)
And )
)
THE HARTFORD, )
Insurance Carrier. ) Judge Joshua Davis Baker
EXPEDITED HEARING ORDER DENYING MEDICAL BENEFITS
In a September 10, 2020, expedited hearing, Mr. Randolph requested treatment with
Dr. Sravani Mehta, a specialist in traumatic brain injuries. R & M argued it has no duty to
provide treatment with Dr. Mehta because the authorized treating physician never referred
Mr. Randolph to her . The Court agrees and denies Mr. Randolph's request for treatment
with Dr. Mehta.
History of Claim
Mr. Randolph suffered a severe injury when he fell approximately fifteen feet while
working on a light fixture. R & M provided authorized medical treatment with various
doctors, including Dr. Anna-Louise Mollete, a pain-management physician whom Mr.
Randolph selected from a panel. However, he also treated with a neuro-ophthalmologist,
a psychiatrist, a neurologist, and an orthopedic surgeon.
Dr. James Ho, an optometrist, recommended Dr. Mehta to treat Mr. Randolph's
alleged traumatic brain injury and asked Dr. Mollete to make this referral. Dr. Molette
never made the referral, nor did any other physician. 1
Despite this, the insurance adjuster believed Dr. Molette made the referral, so she
contacted Dr. Mehta's office to schedule an appointment. Afterward, she canceled the
appointment when learning no referral was made.
Although Dr. Molette never referred Mr. Randolph to Dr. Mehta, he argued that R
& M waived its right to object to non-physician referrals through its course of conduct in
this case. R & M honored non-physician referrals at other times during his treatment. For
example, R & M honored a referral from a physical therapist to a neurologist for
neurodiagnostic testing to look for evidence of traumatic brain injury. It also honored a
previous referral from Dr. Ho for occupational therapy.
R & M denied its past actions dictate its obligations now, claiming it has the
authority to either honor or ignore these referrals according to Mr. Randolph's medical
needs. In short, accepting non-physician referrals deemed necessary for reasonable and
necessary treatment does not mandate acceptance of all non-physician referrals.
Findings of Fact and Conclusions of Law
Mr. Randolph seeks treatment with Dr. Mehta through workers' compensation. To
receive this treatment, he must show he would likely prevail at a compensation hearing on
his request for the treatment. McCord v. Advantage Human Resourcing, 2015 TN Wrk.
Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar. 27, 2015). The Court holds Mr. Randolph
failed to carry this burden and denies his request.
Mr. Randolph admitted that Dr. Molette never referred him to Dr. Mehta but argued
that Dr. Ho's referral is sufficient for three reasons: 1) the Court should extend to an
optometrist the statutory authority of chiropractors, another non-physician provider, to
make referrals; 2) R & M waived its opposition of the referral when the adjuster asked Dr.
Mehta to accept him as a patient; and, 3) Dr. Molette provided substandard care by placing
him at maximum medical improvement without impairment when Dr. Ho expressed the
need for more treatment.
R & M contended Dr. Ho cannot make a referral because she is not a physician, and
the adjuster 's contact with Dr. Mehta did not constitute an offer of authorized treatment
because it was made in error. Further, R & M argued that the law permits an employer to
direct treatment when providing authorized care, and an employer can approve non-
physician referrals when it determines the referrals are needed to ensure effective
1
An optometrist is not a "physician" as defined by workers compensation law.
2
treatment. R & M also argued that even if Dr. Molette provided "substandard care," her
treatment was only a small part of the overall, excellent treatment provided to Mr.
Randolph by multiple physicians. He can return to any of them if he requires further
treatment.
Regarding Mr. Randolph's argument that Dr. Ho's referral to Dr. Mehta is valid, the
Court will first determine whether an optometrist can make a referral that an employer must
honor. This requires review of the relevant statutes and application of statutory
construction rules.
When an injured employee needs treatment, the Workers' Compensation Law
requires the employer to "designate a group of three (3) or more independent reputable
physicians, surgeons, chiropractors or specialty practice groups . . . from which the injured
employee shall select one (1) to be the treating physician." Tenn. Code Ann. § 50-6-
204(a)(3)(A)(i) (2019). After the employee selects a physician, that physician may make
referrals to other specialist physicians when necessary. Id. at § 50-6-204(a)(3)(A)(ii).
Several basic principles govern construction of Tennessee statutes. The central
focus when construing any statute, however, is to "ascertain and give effect to the intention
or purpose of the legislature as expressed in the statute." In re Adoption of A.M.H., 215
S.W.3d 793, 808 (Tenn. 2007) (citing State ex rel. Rector v. Wilkes, 436 S.W.2d 425, 427
(Tenn. 1968)). So, unless the language is ambiguous, the Court must derive legislative
intent "from the natural and ordinary meaning of the statutory language within the context
of the entire statute without any forced or subtle construction that would extend or limit
the statute's meaning." Id. citing State v. Flemming, 19 S.W.3d 195, 197 (Tenn. 2000).
The language of Tennessee Code Annotated subsections 50-6-204(a)(3)(A)(i) and
(ii) is unambiguous. The Court must, therefore, apply the plain and ordinary meaning of
the statutory language. The language allows referrals only from physicians or chiropractors
but no other non-physician providers, such as optometrists. The Court finds that omission
of other non-physician providers prohibits those providers from making referrals that an
employer must honor. The Court, therefore, holds that Tennessee Code Annotated
subsections 50-6-204(a)(3)(A)(i) and (ii) do not require R & M to honor Dr. Ho 's referral
to Dr. Mehta.
Mr. Randolph next argues that R & M waived its right to oppose Dr. Ho's referral
because it honored prior referrals from non-physician providers. The Court disagrees.
Tennessee case law defines waiver as "a voluntary relinquishment or abandonment
of a known right or privilege." Faught v. Estate of Faught, 730 S.W.2d 323, n.5 (Tenn.
1987). Waiver "may be proved by express declaration; or by acts and declarations
manifesting an intent and purpose not to claim the supposed advantage; or by course of
acts and conduct, or by so neglecting and failing to act, as to induce a belief that it was [the
3
party's] intention and purpose to waive." Baird v. Fidelity-Phenix Fire Ins. Co., 162
S.W.2d 384, 288 (Tenn. 1942). There can be no waiver of a right or privilege without an
intent to do so. See Faught, 730 S.W.2d at n.6.
Although R & M assented to referrals by other non-physician providers, here it
opposed Mr. Randolph's request to treat with Dr. Mehta. These referrals were for
additional testing and occupational therapy. By merely accepting a non-physician referral
in the past, R & M did not waive its right to deny other non-physician referrals for which
they have no statutory obligation to accept. The Court holds R & M did not waive
opposition of Dr. Ho's referral to Dr. Mehta. This conclusi on is consistent "with an
important public policy underlying the workers compensation system in general, namely,
an employer 's right to control medical treatment " Rhodes v. Amazon.com, LLC,
2019 TN Wrk. Comp. App. Bd. LEXIS 24, at *18 (June 11, 2019).
Finally, Mr. Randolph argues he should be allowed to treat with Dr. Mehta because
Dr. Molette provided substandard care. However, while Mr. Randolph thinks this, he
offered no medical proof to support his argument. Further, even if it were substandard,
Mr. Randolph can still receive treatment from several other physicians from which he made
no complaint about the quality of their care. For this reason, the Court finds the substandard
care argument non-persuasive.
It is ORDERED as follows:
1. The Court denies Mr. Randolph's request for treatment with Dr. Mehta.
2. The Courts sets this claim for a status conference on November 2, 2020, at 9:00
a.m. (CST). The Court will hold the status conference via telephone. The
parties must call (615) 741-2113 or (855) 874-0474 to participate.
ENTERED SEPTEMBER 28, 2020.
Judge
dge Joshua
shua Davis
Davis Baker
Baker
Court of Workers ' Compensation Claims
4
APPENDIX
Exhibits:
1. Affidavit of Mr. Randolph
2. Affidavit of Lee Ann Negron
3. Medical records (94 pages)
4. Dr. Mehta C-32
5. Dr. James Ho C-32 (offer of proof excluded)
6. Panel C-42
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Employer's Response to Employee's Petition for Benefit Determination and
Request for Expedited Hearing
5. Motion to Appear by Telephone
5
CERTIFICATE OF SERVICE
I certify that a copy of this order was sent as indicated on September 28, 2020.
Name Certified Fax Email Service sent to:
Mail
Jesse Waterman, X jesse@tnlaw.com
Employee's Attorney
L. Blair Cannon, X l.blair.cannon@thehartford.com
Employer's Attorney
______________________________________
Penny Shrum,, Court
Court Clerk
Cieri
orkers' Compensation Claims
wc.courtclerk@tn.gov
6
.••··· .
{ i
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 fonn 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 (fonn 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-represente,l litiga1tts: Help from an Ombtulsman is available at 800-332-2667.
NOTICE OF APPEAL
Temessee Bureau of Workers' Com pensa tlon
www.tn.gov/workforce/injuries-at-work/
wc.courtclerk@tn.gov I 1-800-332-2667
Docket No.: _ _ _ _ _ _ _ __ _
State File No.: _ _ _ _ _ _ __ _
Date of Injury: _ _ _ _ _ __ _ _
Employee
v.
Employer
Notice is given that _ __ _ _ _ _ _ __ __ __ _ _ _ _ _ __ _ __ _ _ __ _ __
[List name(s) of all appealing party(ies). Use separate sheet if necessary.]
appea ls 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 fil e-
stamped on the first page of the order(s) being appealed):
□ Exped ited Hearing Order filed on _ _ __ _ __ □ Motion Order fil ed on _ _ __ _ _ _ __
□ Compensation Order fi led on _ _ _ _ _ _ __ □ 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 1 :Employee n
Address: Phone : _ _ _ _ _ __ _ _
Email: _ __ _ __ _ _ _ _ _ _ __ _ __ _ _ _ _ _ __ _ _
Attorney' s Name: _ _ _ _ __ _ __ __ _ _ _ _ _ _ _ __ _ BPR#: _ _ _ _ _ _ __ __ _
Attorney's Ema il: Phone: _ _ _ _ _ __ __ _
Attorney's Address: - - - -- - - - - - - - -- -- - -- -- - - - - -- - - -- --
* Attach an additional sheet for each additional Appellant *
LB-1099 re-1. 01/20 Page 1 of 2 RDA 11082
Employee Name: _ _ _ _ _ _ _ _ _ _ _ _ _ _ Docket No. : _ _ _ _ _ _ _ _ Date of lnj.: _ _ _ __
Appellee(s) (Opposing Party) : _ _ _ __ _ _ _ _ __ _ _ _ _ __ n 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 I 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