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Bishop, William v. ARJ, INC. d/b/a MR. ROOTER PLUMBING ( 2023 )


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  •                                                                                   FILED
    Aug 15, 2023
    11:45 AM(CT)
    TENNESSEE COURT OF
    WORKERS' COMPENSATION
    CLAIMS
    TENNESSEE BUREAU OF WORKERS’ COMPENSATION
    IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
    AT MEMPHIS
    WILLIAM BISHOP,                     )       Docket No.: 2022-08-1388
    Employee,                )
    v.                                  )
    ARJ, INC. d/b/a MR. ROOTER          )
    PLUMBING,                           )       State File No.: 801267-2022
    Employer,                )
    And                                 )
    BRIDGEFIELD CASUALTY                )
    INSURANCE COMPANY,                  )        Judge Shaterra R. Marion
    Carrier.                )
    ________________________________________________________________________
    EXPEDITED HEARING ORDER GRANTING BENEFITS
    Mr. Bishop requested medical benefits for a right arm, elbow and shoulder injury.
    ARJ denied his claim on grounds that it participated in Tennessee’s Drug Free Workplace
    Program (DFWP) and Mr. Bishop refused a drug test. Further, Mr. Bishop seeks elbow
    surgery recommended by Dr. Norfleet Thompson and attorney’s fees for wrongful denial
    of his claim.
    The Court finds that ARJ did not submit proof that it participated in the DFWP. The
    Court also holds that Mr. Bishop likely would prevail at a hearing on the merits as to his
    entitlement to elbow surgery. The Court declines to award attorney’s fees at this time.
    History of Claim
    Mr. Bishop injured his right arm, elbow, and shoulder on March 24, 2022, when he
    fell from a ladder. The parties agreed that Mr. Bishop returned to the office and reported
    the injury to General Manager Lynn Reese, but from there, accounts differ.
    Mr. Bishop testified that he told Ms. Reese he was not injured and did not need to
    file a workers’ compensation claim. He stated that on his drive home, he started to feel
    pain, and he called Ms. Reese stating that he needed to go to the doctor. He further said
    1
    that no one asked him to take a drug test after his injury, so he never refused drug testing.
    During his employment with ARJ, he had taken multiple drug tests without incident.
    Ms. Reese, on the other hand, testified that she directed Mr. Bishop to the individual
    who handles ARJ’s workers’ compensation to submit a claim. Ms. Reese further said she
    informed Mr. Bishop if he wanted to pursue workers’ compensation, he would have to
    undergo an immediate drug screening. She stated that after being informed of this, he
    declined to pursue his claim.
    Ms. Reese testified that ARJ participates in the DFWP. As proof of its status, ARJ
    entered into evidence a Drug Free Workplace application dated July 26, 2021, and a
    memorandum of acceptance. The application lists “Johnson Appliance Company, LLC” as
    the applicant, and the memorandum notes that the Bureau of Workers’ Compensation
    accepted the DFWP application of “Johnson Appliance Company, LLC.”
    Initial treatment for Mr. Bishop included x-rays on the date of injury, which showed
    no fractures or acute findings. Mr. Bishop returned a week later with pain in his elbow and
    right arm weakness, and he was referred to an orthopedic. Andrew Johnson, President of
    ARJ, testified he told Mr. Bishop to go to Campbell Clinic and offered to pay for his
    orthopedic treatment outside of workers’ compensation.
    Mr. Bishop saw orthopedic Dr. Henry Sherman at Campbell Clinic two weeks later.
    Dr. Sherman diagnosed a right elbow effusion with a probable elbow fracture. Dr. Sherman
    referred Mr. Bishop to physical therapy and gave him a splint. Dr. Sherman ordered an
    MRI, which showed a partial extensor tendon tear, and he then referred Mr. Bishop to Dr.
    Thompson. 1
    Dr. Thompson began conservative treatment, which included physical therapy and
    providing a strap for Mr. Bishop’s use. Dr. Thompson also requested an ultrasound of the
    elbow. Utilization review denied the ultrasound initially but authorized it after Mr. Bishop
    appealed the denial. Dr. Thompson next injected Mr. Bishop’s elbow, but when that did
    not help, he recommended surgery. 2
    Utilization review denied the elbow surgery because Mr. Bishop had not completed
    twelve months of conservative treatment as recommended by the official disability
    guidelines (ODG). Mr. Bishop appealed the denial, but the medical director upheld the
    denial. The appeal denial stated that the medical records suggest that right shoulder surgery
    is pending, and after therapy the elbow should be reevaluated.
    1
    At the hearing, both parties agreed that Dr. Thompson is the authorized treating physician.
    2
    Dr. Thompson also recommended a separate injection for Mr. Bishop’s shoulder and said these two
    recommendations would not interfere with each other.
    2
    Dr. Thompson wrote a letter giving his reasons supporting the medical necessity of
    the elbow surgery. He explained that his extensive treatment plan had progressed from
    conservative care to surgery. Specifically, Mr. Bishop had not improved after injections,
    physical therapy, work restrictions, and persistent symptoms for more than a year.
    Findings of Fact and Conclusions of Law
    Andrew Johnson’s Testimony
    ARJ sought to exclude Mr. Johnson’s testimony from the record. ARJ initially
    included Mr. Johnson on their list of witnesses they might call at the hearing. ARJ
    ultimately decided not to call Mr. Johnson, but Mr. Bishop called Mr. Johnson to testify as
    part of his evidence. ARJ objected on the grounds that Mr. Bishop did not disclose Mr.
    Johnson as a witness. Mr. Bishop argued that he could call Mr. Johnson as ARJ’s party
    representative.
    An injured worker must list any witnesses he intends to call at the expedited hearing
    on the request for the hearing under Tennessee Compilation Rules and Regulations 0800-
    02-21-.15(1) (February, 2022). Subsection -.15(1)(b) says that witnesses not disclosed in
    this way will not be considered unless good cause is shown for why the witness was not
    disclosed.
    Here, Mr. Johnson, as party representative, was a valid witness for Mr. Bishop to
    call. Additionally, he was on ARJ’s witness list and appeared at the hearing. This shows
    he was on notice that he might give testimony, albeit during ARJ’s case-in-chief and not
    Mr. Bishop’s. For these reasons, the Court finds good cause for why Mr. Bishop did not
    disclose Mr. Johnson as a witness and allows his testimony.
    Drug Free Workplace Program
    An employee may not recover benefits when the injury was due to his intoxication
    or illegal drug use. 
    Tenn. Code Ann. § 50-6-110
    (a)(3) (2023).
    If the employer participates in the DFWP and the injured worker refuses to take a
    drug test, “it shall be presumed, in the absence of clear and convincing evidence to the
    contrary, that the proximate cause of the injury was the influence of drugs[.]” 
    Id.
     at -
    110(c)(2). If an employer does not participate in the DFWP, the employer bears the burden
    of proving that the employee’s intoxication or drug use was the proximate cause of the
    accident to avoid paying benefits. 
    Id.
     at -110(b).
    An employer seeking to participate in the DFWP must complete and file a drug free
    workplace application. 
    Tenn. Code Ann. § 50-9-104
    (b). Where no evidence suggests that
    the employer filed an application for the DFWP covering the employee’s date of injury,
    3
    the employer cannot be considered a participant of the DFWP, even if it complied with the
    program’s requirements in previous years. Bowlin v. Servall, LLC, 2018 TN Wrk. Comp.
    App. Bd. LEXIS 6, at *11-12 (Feb. 8, 2018).
    Close to a year after Mr. Bishop’s injury, ARJ denied Mr. Bishop’s claim due to a
    violation of ARJ’s drug free workplace policy. Mr. Bishop argued that ARJ did not fully
    comply with the DFWP.
    Here, ARJ provided a First Report of Injury for Mr. Bishop’s injury, a DFWP
    application, and a memorandum from the Bureau noting acceptance of the DFWP
    application. The employer listed on the First Report of Injury and Petition for Benefit
    Determination is “ARJ, Inc.” However, on both the DFWP application and the
    memorandum from the DFWP, the employer listed is “Johnson Appliance Company,
    LLC.”
    The Court finds these are legally separate entities, and ARJ provided no proof it
    submitted a valid DFWP application that would cover Mr. Bishop’s date of injury. Thus,
    under Bowlin, ARJ cannot be considered a participant of the DFWP.
    As ARJ did not participate in the DFWP at the time of Mr. Bishop’s injury, it bears
    the burden of proof that Mr. Bishop’s injury was caused by intoxication or drug use. No
    evidence shows that Mr. Bishop was intoxicated at the time of his injury. The Court holds
    that Mr. Bishop is entitled to workers’ compensation benefits for his injury. 3
    Medical Necessity of Surgery
    An employer has the right to submit medical treatment recommended by the
    authorized treating physician to utilization review for “evaluation of the necessity,
    appropriateness, efficiency and quality of medical care services[.]” 
    Tenn. Code Ann. § 50
    -
    6-102(18). Dr. Thompson, as the authorized treating physician, has a presumption of
    medical necessity for his proposed elbow surgery under Tennessee Code Annotated section
    50-6-204(a)(3)(H).
    In Morgan v. Macy’s, 2016 TN Wrk. Comp. App. Bd. LEXIS 39 (Aug. 31, 2016),
    the Appeals Board discussed rebutting this presumption. It gave two methods by which
    ARJ might rebut the presumption of necessity of the proposed surgery. First, if the treating
    physician’s recommended treatment does not “explicitly follow,” or if it is not “reasonably
    derived,” from the ODG, the employer can rebut the authorized physician’s
    recommendation by a preponderance of the evidence. 
    Id. at *19
    . Second, if the employee
    shows that the authorized physician followed the ODG in recommending treatment, the
    3
    ARJ introduced evidence that Mr. Bishop has been prescribed opiates for an unrelated back injury.
    However, it offered no testimony that he was under the influence of opiates at the time of the injury.
    4
    employer must rebut the presumption of medical necessity by clear and convincing
    evidence. 
    Id.
    Here, the ODG recommends surgery after twelve months of failed conservative
    treatment. At the time that ARJ submitted Mr. Bishop’s proposed elbow surgery to
    utilization review, it had been about nine months since his date of injury. However, Dr.
    Thompson’s notes explain the extensive nonsurgical, conservative treatment that Mr.
    Bishop had undergone with no success.
    The ODG are “guidelines” and not a “standard” or “mandate.” Stephens v. Quality
    Private Care d/b/a Volunteer Staffing, Inc., 2021 TN Wrk. Comp. App. Bd. LEXIS 20, at
    *13 (July 6, 2021). Further, “each individual clinical situation and patient [are] unique, and
    a proper application of the guidelines requires judgment.” 
    Id.
     (interior quotations omitted).
    Importantly, ARJ offered no proof, other than the utilization review report, on the medical
    necessity of the elbow surgery.
    The Court finds that Dr. Thompson’s elbow surgery recommendation, while not
    explicitly following the ODG, was reasonably derived from the guidelines. ARJ must then
    prove by clear and convincing evidence that the elbow surgery was not medically
    necessary. The Court holds that it did not, and thus the proposed elbow surgery is medically
    necessary.
    Attorney’s Fees
    The Court may award attorney’s fees where the employer “[w]rongfully denies a
    claim.” 
    Tenn. Code Ann. § 50-6-226
    (d)(1)(B). An award of attorney’s fees at an
    interlocutory stage “should only be made in extremely limited circumstances” due to the
    incompleteness of proof at this stage, the standard of proof at expedited hearings, and the
    uncertainties inherent in litigation. Thompson v. Comcast Corp., 2018 TN Wrk. Comp.
    App. Bd. LEXIS 1, at *28-29 (Jan. 30, 2018).
    Here, the Court finds that this case does not present one of the “extremely limited
    circumstances” contemplated in Thompson and thus declines to award Mr. Bishop
    attorney’s fees at this time. He may renew the request at the compensation hearing.
    IT IS THEREFORE ORDERED as follows:
    1. Mr. Bishop’s request for medical benefits, including the elbow surgery
    recommended by Dr. Thompson, is approved.
    2. The Court sets a status hearing for October 30, 2023, at 10:45 a.m. Central Time.
    You must call 866-943-0014 to participate.
    5
    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
    Employer and/or the carrier 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
    noncompliance. For questions regarding compliance, please contact the Workers’
    Compensation Compliance Unit via email at WCCompliance.Program@tn.gov.
    ENTERED August 15, 2023.
    ________________________________________
    Judge Shaterra R. Marion
    Court of Workers’ Compensation Claims
    APPENDIX
    Exhibits:
    1. Employee’s Medical Records
    2. Midsouth Pain and Treatment Center Medical Records
    3. Utilization Review Collective Records
    4. First Report of Injury
    5. Notice of Denial
    6. Separation Notice
    7. Drug Free Workplace Application and Memorandum
    8. Drug Free Acknowledgement signed by William Bishop
    9. Drug Test done at time of Mr. Bishop’s hire
    10. Drug Free Workplace Notice displayed at ARJ, Inc.
    Technical Record:
    1. Petition for Benefit Determination
    2. Dispute Certification Notice with additional issue email
    3. Request for Hearing with Affidavit of William Bishop
    4. Order Setting Expedited Hearing
    6
    5. Employee’s Pre-Hearing Brief
    6. Employer’s Witness and Exhibit List
    7. Employer’s Pre-Hearing Brief
    CERTIFICATE OF SERVICE
    I certify that a copy of this Order was sent as indicated on August 15, 2023.
    Name                      Email    Service sent to:
    Monica Rejaei,             X       mrejaei@nstlaw.com
    Employee’s Attorney                atarbania@nstlaw.com
    Lauren Spicer,              X      lsspicer@mijs.com
    Employer’s Attorney                jkprendergast@mijs.com
    _____________________________________
    Penny Shrum, Court Clerk
    Court of Workers’ Compensation Claims
    WC.CourtClerk@tn.gov
    7
    NOTICE OF APPEAL
    Tennessee Bureau of Workers’ Compensation
    www.tn.gov/workforce/injuries-at-work/
    wc.courtclerk@tn.gov | 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.]
    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):
    □ Expedited Hearing Order filed on _______________ □ Motion Order filed on ___________________
    □ Compensation Order filed 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 ☐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 Inj.: _______________
    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 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
    

Document Info

Docket Number: 2022-08-1388

Judges: Shaterra Reed Marion

Filed Date: 8/15/2023

Precedential Status: Precedential

Modified Date: 8/17/2023