Hawes, James v. McLane Company, Inc.

FILED
Aug 25, 2021
10:45 AM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
James Hawes ) Docket No. 2021-08-0170
)
v. ) State File No. 2742-2021
)
McLane Company, Inc., et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Allen Phillips, Judge )
Affirmed and Remanded--Corrected
In this appeal, the employer disputes the trial court’s order requiring it to provide the
employee a panel of physicians. The employee alleged he injured his back while lifting a
box at work. Before providing the employee with a panel of physicians, the employer
arranged for a test called an “electrodiagnostic functional assessment” to be performed.
That test was interpreted to indicate that the employee did not suffer any acute work-related
injury, and, as a result, the employer declined to provide a panel of physicians, asserting it
had a valid defense to the claim based on the testing results. The employee argued the
testing was not a sufficient basis for the employer to avoid its statutory obligation to
provide a panel. Following an expedited hearing, the trial court determined the employee
was entitled to a panel of physicians pursuant to Tennessee Code Annotated section 50-6-
204(a)(3)(A)(i). The employer has appealed. Having carefully reviewed the record, we
affirm the trial court’s decision and remand the case.
Pele I. Godkin delivered the opinion of the Appeals Board in which Presiding Judge
Timothy W. Conner and Judge David F. Hensley joined.
Kyle I. Cannon, Memphis, Tennessee, for the employer-appellant, McLane Company, Inc.
Jonathan L. May, Memphis, Tennessee, for the employee-appellee, James Hawes
Factual and Procedural Background
James Hawes (“Employee”) alleged he injured his back on December 8, 2020, while
working for McLane Company, Inc. (“Employer”). Employee reported the incident and
participated in a “triage call” arranged by Employer that same day. A report of the triage
1
call detailed a history of Employee “pulling some cases [when] he felt a pinch in the left
side of [his] lower back” and Employee’s report of numbness in his leg. According to the
report, the “[d]octor said [Employee] needs to take an [electrodiagnostic functional
assessment] test . . . [and] apply heat and take Advil.” The report did not specify who
spoke with Employee during the triage call but referenced an attempt to call a Dr. Badhi
with “[n]o answer.”
Three days later, on December 11, 2020, Employee underwent an electrodiagnostic
functional assessment (“EFA”) that was performed by a technician under the remote
supervision of Dr. Naiyer Imam, a Tennessee-licensed neuroradiologist located out of state.
A separate physical examination was performed by the technician during the December 11,
2020 visit under the supervision of Dr. Imam using “EFA guided technology.” In a
summary of the EFA, Dr. Imam noted that “both evaluations demonstrated chronic changes
as evidenced by the bilateral inappropriate muscle usage” and “hyperactivity with range of
motion and positional changes as well as inappropriate muscle usage.” Dr. Imam compared
Employee’s December 2020 EFA test results with a baseline EFA that had been performed
on August 21, 2020, when Employee was hired and determined “there was no acute
pathology or change in [Employee’s] condition.” Dr. Imam stated in his summary that
“there does not appear to be a need for treatment on an industrial basis.”
The results of Employee’s EFA were included in an “Electrodiagnostic Functional
Assessment Report,” dated December 11, 2020, that was signed by MaryRose Reaston,
Ph.D. and Clay Everline, M.D. 1 In the report, both Drs. Reaston and Everline agreed the
EFA demonstrated no acute pathology or change in Employee’s condition from the
baseline test but cautioned that “[c]linical correlation and screening for any
contraindications to suggested treatment modalities is recommended.” Based on the report,
Employer concluded Employee’s alleged work injury was not compensable and declined
to provide workers’ compensation benefits.
Thereafter, Employee filed a petition for benefit determination on February 9, 2021,
seeking medical benefits and a panel of physicians. Following an unsuccessful mediation,
an expedited hearing was held that included testimony from Employee and Dr. Reaston.
During the hearing, Employee testified he was not provided a panel of physicians after
reporting his injury but instead was seen by a “technician” who performed the examination
under the supervision of a doctor participating by Zoom. Employee testified that during
the test the technician “[placed] leads on certain parts of my back, and he asked me to do
certain movements as far as touch[ing] my toes and rais[ing] my toes, and he would ask
would I be in - - was I in pain. I told him yes, I was in pain, and he also noted that down
1
Dr. Reaston is the Chief Executive Officer, Co-Founder, and Chief Science Officer of Emerge
Diagnostics. Dr. Reaston obtained her undergraduate degree, Master’s, and Ph.D. in Psychology as well as
a Certificate of Electromyography and Clinical Neurophysiology. Dr. Clayton Everline is a medical doctor
located in the state of Hawaii and is not licensed to practice medicine in Tennessee.
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as well.” Employee confirmed that he participated in a similar test when he was hired but
testified that no doctor was involved in the testing.
Dr. Reaston testified she was the “chief executive officer, co-founder, and chief
science officer” of Emerge Diagnostics, a company “in the business of providing better
diagnostics for musculoskeletal disorders and performing electrodiagnostic functional
assessment services.” Dr. Reaston explained the methodology of an EFA, testifying that it
“measures muscle function [and] indirectly measures nerves and [the] clinical significance
of disc pathology,” among other things. Dr. Reaston confirmed that “medical personnel”
place the electrodes on patients but stated the test is ordered by a medical doctor. Dr.
Reaston acknowledged that Employee did not select Dr. Imam to conduct the December
2020 EFA telemedicine visit.
Following the expedited hearing, the trial court ordered Employer to provide a panel
of physicians pursuant to Tennessee Code Annotated section 50-6-204(a)(3)(A)(i). The
court stated in its order that the referral of an employee to a single physician “does not
comply with the statute” and that Employer “obtained the EFA by failing to comply with
the statute when it referred [Employee] to a single physician, thus usurping his privilege to
choose one from a panel.” Employer has appealed.
Standard of Review
The standard we apply in reviewing the trial court’s decision presumes that the
court’s factual findings are correct unless the preponderance of the evidence is otherwise.
See Tenn. Code Ann. § 50-6-239(c)(7) (2020). When the trial judge has had the
opportunity to observe a witness’s demeanor and to hear in-court testimony, we give
considerable deference to factual findings made by the trial court. Madden v. Holland Grp.
of Tenn., Inc., 277 S.W.3d 896, 898 (Tenn. 2009). However, a trial court’s findings based
upon documentary evidence is reviewed do novo with no presumption of correctness.
Goodman v. Schwarz Paper Co., No. W2016-02594-SC-R3-WC, 2018 Tenn. LEXIS 8, at
*6 (Tenn. Workers’ Comp. Panel Jan. 18, 2018). Similarly, the interpretation and
application of statutes and regulations are questions of law that are reviewed de novo with
no presumption of correctness afforded the trial court’s conclusions. See Mansell v.
Bridgestone Firestone N. Am. Tire, LLC, 417 S.W.3d 393, 399 (Tenn. 2013). We are also
mindful of our obligation to construe the workers’ compensation statutes “fairly,
impartially, and in accordance with basic principles of statutory construction” and in a way
that does not favor either the employee or the employer. Tenn. Code Ann. § 50-6-116(2020).
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Analysis
The single issue raised on appeal is whether the trial court erred in determining
Employee is entitled to a panel of physicians in accordance with Tennessee Code
Annotated section 50-6-204. Section 50-6-204(a)(3)(A)(i) provides, in pertinent part:
[I]n any case when the employee has suffered an injury and expressed a need
for medical care, the employer shall designate a group of three (3) or more
independent reputable physicians, surgeons, chiropractors or specialty
practice groups if available in the injured employee’s community or, if not
so available, in accordance with subdivision (a)(3)(B), from which the
injured employee shall select one (1) to be the treating physician.
Moreover, Rule 0800-02-01-.06(1) of the rules governing the Bureau of Workers’
Compensation requires an employer to provide the employee a panel of physicians
“[f]ollowing receipt of notice of a workplace injury and the employee[’s] expressing a need
for medical care.” Tenn. Comp. R. & Regs. 0800-02-01-.06(1). In the present case,
Employee alleged he sustained an injury and reported the work accident in a timely manner.
Employer did not dispute the occurrence of the underlying work incident but instead
arranged for and directed Employee to participate in a “triage call” and subsequent EFA
with providers it selected. It is undisputed Employee was never provided a panel of
physicians, and it was not until after the EFA was conducted that Employer disputed the
compensability of Employee’s claim.
Noting that it is responsible for investigating an employee’s alleged injury to
determine whether the injury arose out of and occurred in the course and scope of
employment, Employer asserts that “[t]he ultimate decision made by the employer is
determinative, at least as a preliminary matter, [as] to whether the employee is entitled to
receive the benefits and remedies afforded by the Workers’ Compensation Laws.” In its
brief on appeal, Employer relies on Tenn. Comp. R. and Regs. 0800-02-01-.06(4), which
provides, in part, that “Employers may direct injured employees to onsite, in-house or other
similar employer-sponsored medical providers prior to providing an initial panel of
physicians for an examination as allowed in [Tennessee Code Annotated section] 50-6-
204(d)(1).”
In its brief, Employer acknowledges that Tenn. Comp. R. and Regs. 0800-02-01-
.06(4) also provides that the examination “does not satisfy nor alleviate the requirement
for providing an appropriate panel within three (3) business days referenced in 0800-02-
01-.06(2).” (Emphasis added.) However, Employer argues that if its initial examination
“is undertaken in accordance with Tenn. Code Ann § 50-6-204(d)(1) and Tenn. Comp. R.
and Regs. 0800-02-01-.06(4) and . . . leads to evidence that supports a valid defense to an
employee’s alleged injury, then a denial of the injury is in order and no panel need to be
provided.”
4
Employee contends that Employer’s “evidence that this is not a compensable injury
arises from its very failure to comply with the law.” Employee concedes there are instances
in which an employee’s claim of a workplace injury could be denied prior to the provision
of a panel of physicians but maintains that “[i]n each scenario, the basis for the denial is
not intrinsically tied to the question of medical causation, but rather to the facts surrounding
the incident.”
We conclude that while an employer may direct an employee to see an “employer-
sponsored medical provider” prior to the provision of a panel, this examination does not
replace a panel or relieve that employer of its obligation to provide a panel of physicians
as contemplated in Tennessee Code Annotated section 50-6-204(d)(1) and Tenn. Comp. R.
and Regs. 0800-02-01-.06(1). Rather, the rule is consistent with the statute and requires
an employer to provide a panel that meets statutory requirements, thus ensuring an
employee has an opportunity to select a physician. An employer who fails to provide a
panel of physicians runs the risk of having to pay for unauthorized medical care in the event
the trial court determines that a panel should have been provided. See, e.g., Young v. Young
Elec. Co., No. 2015-06-0860, 2016 TN Wrk. Comp. App. Bd. LEXIS 24, at *16 (Tenn.
Workers’ Comp. App. Bd. May 25, 2016).
Employer contends it has an “absolute right to decline providing a panel of
physicians when the employer has ‘evidence establishing a defense’ to the employee’s
alleged work-related injury.” (Emphasis omitted.) While we agree an employer has a right
to investigate and deny an employee’s claim based on its factual assertion that the alleged
work accident did not occur as reported, or as the result of asserting an affirmative defense,
see Tennessee Code Annotated section 50-6-110, an employer’s assertion that an employee
has no medical evidence supporting his or her claim does not, standing alone, excuse it
from the statutory obligations under section 50-6-204(a)(1)(A). In Lindsey v. Strohs
Companies, 830 S.W.2d 899 (Tenn. 1992), the Tennessee Supreme Court explained the
concomitant duties of the parties with respect to medical treatment:
Under Tenn. Code Ann. § 50-6-204 . . ., an employer has a duty to furnish
medical and surgical treatment reasonably necessary to treat a work-related
injury. Under the same statute, the injured employee has a corresponding
duty to accept the medical benefits provided by the employer, but only if the
employer provides a list of three or more physicians or surgeons from which
the employee has the privilege of selecting the operating surgeon or attending
physician. Where the employer fails to give the employee the opportunity to
choose the ultimate treating physician from a panel of at least three
physicians, the employer runs the risk of having to pay the reasonable cost
for treatment of the employee’s injuries by a physician of the employee’s
choice.
Id. at 902-03.
5
As we explained in McCord v. Advantage Human Resourcing, No. 2014-06-0063,
2015 TN Wrk. Comp. App. Bd. LEXIS 6 (Tenn. Workers’ Comp. App. Bd. Mar. 27, 2015):
[A]n employee need not prove each and every element of his or her claim by
a preponderance of the evidence at an expedited hearing to be entitled to
temporary disability or medical benefits but must instead present evidence
sufficient for the trial court to conclude that the employee would likely
prevail at a hearing on the merits in accordance with the express terms of
section 50-6-239(d)(1). A contrary rule would require many injured workers
to seek out, obtain, and pay for a medical evaluation or treatment before his
or her employer would have any obligation to provide medical benefits. The
delays inherent in such an approach, not to mention the cost barrier for many
workers, would be inconsistent with a fair, expeditious, and efficient
workers’ compensation system.
Id. at *9-10 (internal citation omitted).
In Berdnik v. Fairfield Glade Cmty. Club, No. 2016-04-0328, 2017 TN Wrk. Comp.
App. Bd. LEXIS 32 (Tenn. Workers’ Comp. App. Bd. May 18, 2017), the employee
alleged she suffered a low back injury while reaching into an ice machine. She was not
provided a panel of physicians and sought treatment on her own. A subsequent MRI
ordered by her physician revealed degenerative disc disease, central canal stenosis, and
“evidence of a prior surgery.” Id. at *3. The employee did not dispute a history of back
problems, including a lumbar fusion that was performed prior to her work incident. After
taking a statement from the employee, the employer denied the claim and, several months
later, scheduled a medical examination with an orthopedic physician of the employer’s
choice. Id. at *4. The physician selected by the employer reviewed diagnostic studies,
including x-rays and an MRI, and concluded there was no objective evidence that the
employee’s complaints were related to a work-related injury. Id. at *5. As a result of this
expert’s opinions, the trial court concluded the employee was not likely to prevail at trial
in proving entitlement to medical or temporary disability benefits. Id. at *5-6.
Nevertheless, the trial court ordered the employer to provide a panel of physicians. Id. at
*6.
On appeal, we affirmed the trial court’s underlying determination that the employee
was unlikely to prevail at trial but reversed the trial court’s order for a panel of physicians,
explaining our reasoning as follows:
In awarding medical benefits in this case, the trial court relied upon McCord
v. Advantage Human Resourcing, No. 2014-06-0063, 2015 TN Wrk. Comp.
App. Bd. LEXIS 6 (Tenn. Workers’ Comp. App. Bd. Mar. 27, 2015). There
is, however, a key distinction between the facts and circumstances of this
case and those in McCord. In that case, there was no medical proof either
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establishing or refuting causation. The employer in that case had provided a
panel of physicians but had refused to schedule an appointment with the
physician the employee chose. Id. at *5. Here, however, there is a medical
opinion addressing causation, and that opinion is uncontradicted at this stage
of the case. To order medical benefits under these circumstances is to ignore
the only expert medical proof in the record, which we cannot do.
Id. at *14.
The circumstances of Berdnik are distinguishable from the present case. In Berdnik,
the employee sought treatment on her own for several months after the alleged work
incident and had ample opportunity to present expert medical proof at the expedited hearing
to refute the causation opinion of the employer’s expert. Moreover, the employer’s expert
was a board-certified, Tennessee-licensed orthopedic surgeon who personally examined
the employee and expressed an opinion that the employee’s medical complaints were
related to a preexisting, previously symptomatic back condition.
Here, Employee alleged a work injury, which he timely reported, and Employer did
not contest the occurrence of the underlying incident. Instead of providing Employee with
a panel of physicians prior to denying the claim, Employer directed Employee to a
particular medical technician who, under the supervision of a physician located out of state,
conducted a single diagnostic test. Employer then relied on those findings as a basis to
deny Employee’s claim and refused to provide a panel of physicians.
Importantly, the testing ordered by Employer’s provider did not establish that no
compensable work accident occurred; instead, it purported to show that there were no
recent, acute physiological changes caused by the reported work accident. While the
technology and test results relied upon by Employer may be relevant in determining the
ultimate compensability of Employee’s claim, it does not relieve Employer of its statutory
obligation to provide a panel of physicians when a work accident has been reported,
Employer has no factual evidence to contest the occurrence of the reported accident, no
affirmative defense has been asserted, and medical treatment has been requested. 2 Thus,
under the particular circumstances presented at this stage of the proceedings, we conclude
the preponderance of the evidence supports the trial court’s determination that Employee
is entitled to a panel of physicians.
2
Employer’s argument conflates the occurrence of a work-related accident with the potential injurious
results of that accident. See Tenn. Code Ann. § 50-6-204(a)(1)(A) (an employer is obligated to provide
medical benefits “made reasonably necessary by accident as defined in this chapter”) (emphasis added).
This does not, of course, foreclose the possibility that an employer may subsequently prove no injury arose
primarily from the work accident, as Employer is seeking to prove here.
7
Conclusion
For the foregoing reasons, the trial court’s order is affirmed, and the case is
remanded. Costs on appeal are taxed to Employer.
8
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
James Hawes ) Docket No. 2021-08-0170
)
v. ) State File No. 2742-2021
)
McLane Company, Inc., et al. )
)
)
Appeal from the Court of Workers’ )
Compensation Claims )
Allen Phillips, Judge )
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the Appeals Board’s decision in the referenced
case was sent to the following recipients by the following methods of service on this the 26th day
of August, 2021.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Kyle Cannon X kcannon@gwtclaw.com
Jonathan May X jmay@forthepeople.com
Christina Woods cwoods@forthepeople.com
Allen Phillips, Judge X Via Electronic Mail
Kenneth M. Switzer, Chief Judge X Via Electronic Mail
Penny Shrum, Clerk, Court of X penny.patterson-shrum@tn.gov
Workers’ Compensation Claims
Olivia Yearwood
Clerk, Workers’ Compensation Appeals Board
220 French Landing Dr., Ste. 1-B
Nashville, TN 37243
Telephone: 615-253-1606
Electronic Mail: WCAppeals.Clerk@tn.gov