Tate, Meshia v. Daryl Doney d/b/a Middle Tennessee Respiratory

FILED
Feb 23, 2021
01:12 PM(CT)
TENNESSEE
WORKERS' COMPENSATION
APPEALS BOARD
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Meshia Tate ) Docket No. 2019-01-0399
)
v. ) State File No. 88407-2018
)
Daryl Doney d/b/a Middle Tennessee )
Respiratory, et al. )
)
)
Appeal from the Court of Workers’ ) Heard January 28, 2021
Compensation Claims ) via WebEx
Thomas L. Wyatt, Judge )
Reversed and Remanded
The employee suffered work-related injuries to her left wrist when she fell from a
stepladder, requiring emergency surgery. The employer provided ongoing medical
treatment with the physician who performed the emergency surgery. After returning to
work, the employee complained of right knee pain and swelling. An MRI revealed
meniscal tears that the authorized doctor said were caused by the employee’s fall. The
employee underwent knee surgery but continued to experience symptoms with her knee.
The authorized doctor placed the employee at maximum medical improvement and
returned her to work, stating arthritis and other changes in her knee seen during surgery
were degenerative and not work-related. Without advising the employer, the employee
sought further treatment for her wrist and knee with an unauthorized doctor who
recommended a referral to a wrist specialist and a second arthroscopic knee surgery for a
meniscal tear seen in a more recent MRI. The employee requested a hearing in which she
sought to replace her authorized doctor with the physician from whom she sought
unauthorized treatment and to obtain the additional treatment he recommended. Following
an expedited hearing, the trial court accepted the causation opinion of the physician
selected by the employee, concluding the employee would likely prevail at trial in
establishing that the meniscal tear seen in the more recent MRI arose out of her
employment. Further, the court determined that the authorized doctor failed to treat the
employee’s ongoing symptoms and that this failure justified a change in the treating
physician. The employer has appealed. We reverse the trial court’s decision and remand
the case.
Judge David F. Hensley delivered the opinion of the Appeals Board in which Presiding
Judge Timothy W. Conner and Judge Pele I. Godkin joined.
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Richard R. Clark, Jr., and Lauren Ray Hall, Nashville, Tennessee, for the employer-
appellant, Daryl Doney d/b/a Middle Tennessee Respiratory
Benjamin Newman, McMinnville, Tennessee, for the employee-appellee, Meshia Tate
Factual and Procedural Background
Meshia Tate (“Employee”) worked as a technician for Daryl Doney d/b/a Middle
Tennessee Respiratory (“Employer”) for several years delivering and setting up home
health equipment. On November 13, 2018, she was on a stepladder reaching for a piece of
equipment when she lost her balance and fell onto her outstretched left arm, resulting in a
comminuted fracture of her distal radius. She was transported to a local hospital and
underwent emergency surgery by Dr. Martin Fiala to address her fractured wrist.
It is undisputed that Employer never offered Employee a panel of physicians on the
state-prescribed form. Employer asserted that an adjuster from its workers’ compensation
insurance carrier spoke with Employee on the phone about a panel of physicians and that
Employee elected to continue treating with Dr. Fiala. Employee disputes that she was ever
given a choice of physicians. Nonetheless, Employee continued to treat with Dr. Fiala.
On January 11, 2019, Dr. Fiala released Employee to return to light duty work
performing a desk job and answering phones. He restricted her from lifting with her left
hand and stated that if the restriction could not be accommodated, she would need to remain
off work. Employer was able to accommodate the restriction. At an office visit with Dr.
Fiala on February 8, 2019, Employee complained of right knee pain for the first time. She
noted that she had been experiencing problems with her knee since she returned to work
and said she did not know if she had aggravated her knee after returning to work or if the
complaints were related to her November 2018 fall. Dr. Fiala informed Employee he was
not authorized to evaluate her knee and told her he would see her for her knee complaints
if it was approved by the workers’ compensation insurer.
Employer initially denied treatment of Employee’s knee but later authorized an
evaluation by Dr. Fiala. While Employee was seeking authorization for treatment of her
knee, she continued to treat with Dr. Fiala for her wrist injury, complaining of ongoing
symptoms with her wrist. In a March 1, 2019 office note, Dr. Fiala stated that Employee
had scar tissue adhesions in her wrist and instructed her to massage the area to release the
tissue. He indicated that, “[i]n two weeks,” he would “try to get her back to work doing
her usual duties” and would follow up with her two weeks afterwards to see how she was
doing. At a March 29, 2019 visit, Employee continued to complain of ongoing symptoms
with her wrist. Dr. Fiala ordered a functional capacity evaluation (“FCE”) and indicated
he would see Employee after the evaluation “before I release her and give her an
impairment rating.” Following the FCE, Dr. Fiala completed a final medical report
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indicating Employee was returned to unrestricted work on March 15, 2019, and that she
had a three percent medical impairment as a result of her wrist injury.
On April 24, 2019, Dr. Fiala evaluated Employee’s right knee. He noted that
Employee had not initially recognized a knee injury because of the severity of her wrist
injury and indicated that, as Employee’s wrist began to heal and she returned to work, she
noticed increasing difficulty with her knee. Employee had obtained an MRI of her knee
on her own, which Dr. Fiala stated confirmed a meniscal tear and would require surgery.
Addressing the cause of Employee’s meniscal tear, Dr. Fiala stated the following:
Generally speaking[,] if she had a meniscal tear that preexisted the injury
date, she would likely have been symptomatic enough and sought medical
care. Most people cannot function with a torn meniscus in their knee, and
that seems to be [the] case for [Employee] as a result of the fall. The medical
certainty is virtually 100%.
On May 29, 2019 Employee filed a petition seeking medical treatment for her knee.
Employer ultimately accepted the knee injury as being compensable, and Dr. Fiala
performed arthroscopic surgery on Employee’s right knee on September 10, 2019. The
pre- and post-operative diagnoses were “[r]ight knee medial and lateral meniscal tears.”
At subsequent appointments, Employee continued to complain of pain, tightness, and
swelling in her knee, particularly following physical therapy sessions at which she
performed lunges and squats.
In Dr. Fiala’s November 13, 2019 report, he stated that Employee’s knee “will not
be normal as a result of its arthritic degenerative process, cumulative injuries and knee
scope.” He stated that arthritis, bone spurs, and “widespread chondral injury” were pre-
existing, although he noted that the meniscal tears were “more likely” acute. The report
went on to say that “[a]ny knee replacement [i]n the near future is not something that would
be covered by [workers’] compensation because of the preexisting components.” He
returned Employee to work without restrictions at the November 13 visit, indicating she
was at maximum medical improvement and had a four percent medical impairment for her
knee conditions. The report stated that Employee was welcome to return if she needed
additional treatment, although Dr. Fiala recommended she obtain private health insurance
for future treatment of her knee. Employee testified Dr. Fiala did not offer any more
treatment for her knee after the November 13 visit and that she would not return to him for
treatment because “he won’t listen to what you have to say.” She admitted on cross-
examination she had not asked to go back to Dr. Fiala but insisted she had asked Employer
for a different doctor “numerous times.”
On February 18, 2020, Employee sought a second opinion on her own with Dr.
Jeffrey Peterson, an osteopathic surgeon, for both her wrist and knee. Dr. Peterson ordered
MRIs, and on March 10, 2020, Employee returned to Dr. Peterson. With respect to her left
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wrist, Dr. Peterson stated he decided to “move forward with a referral to a hand specialist
due to the complexity of the situation in [Employee’s] wrist.” Addressing Employee’s
right knee, Dr. Peterson noted a complex tear of the posterior horn of the medial meniscus
revealed by the most recent MRI and recommended Employee “move forward with a right
knee arthroscopy – diagnostic and surgical.” His report stated that, “[r]egarding
[Employee’s] right knee, [he does] feel as well that this issue is associated more than 50%
from her previous work injury.” (Emphasis added.)
Employer declined to authorize a second knee surgery. As a result, Employee
requested an expedited hearing, seeking to replace her treating physician with Dr. Peterson
based on her assertion that Dr. Fiala was not providing ongoing care. Employee
additionally sought to obtain additional treatment for her wrist and knee. The parties
deposed both physicians in preparation for the expedited hearing.
Dr. Peterson testified that Employee needed to see a hand specialist for her ongoing
wrist complaints. He stated that “when you get to a certain point, you’re like, I’ve maxed
out what I can do. I need help on this one. So we do a referral.” He indicated Employee
had reached this point in her treatment with Dr. Fiala and needed the expertise of a hand
specialist. Dr. Peterson also testified that Employee had voiced dissatisfaction with her
treatment with Dr. Fiala and did not want to return to him. He expressed the opinion that,
when a patient has lost confidence in a physician, the ultimate outcome of any treatment
plan is less successful.
Addressing Employee’s right knee complaints, Dr. Peterson recommended
additional surgical evaluation and treatment of the tear of the posterior horn of Employee’s
medial meniscus as seen on the most recent MRI. He testified it is sometimes appropriate
to perform a second arthroscopy to determine whether there is a new tear or one that was
missed at the time of the earlier surgery. To determine whether the tear indicated on the
most recent MRI was present at the time of the earlier surgery, he stated he would “have
to see the pictures of the before and after from the arthroscopy.” With respect to causation,
Employee’s attorney and Dr. Peterson had the following exchange:
Q: . . . The arthritis that she has, could that be caused by the lack in
treatment, the ongoing issue of that torn meniscus?
A: It’s possible.
Q: In your opinion, is it greater than – or 51 percent or greater? That’s the
new law –
A: It is.
Q: – the work comp that we have to go by.
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A: Absolutely.
Q: Okay. We can’t use the “more likely than not.”
A: Yeah, it’s 51 percent or more.
Q: Considering all other factors?
A: Yeah.
On cross-examination, Dr. Peterson was asked about the impact Employee’s weight
may have had on her knee and responded, “that’s the hard part. We don’t know. We don’t
know, at this point, was it from the work issue? Was it a recurrent tear? Was it something
that was not addressed at the time of [the] index procedure, or was it something that came
on further along? I can’t tell you.” He additionally testified that Employee’s meniscal
tears are “[m]ost likely” related to the work injury and that “with good common sense” he
would believe the tear of the posterior horn of Employee’s meniscus “has to most likely be
associated with that prior issue.” (Emphasis added.)
Dr. Fiala was deposed four months later. Addressing Employee’s wrist, Dr. Fiala
said that, based on the most recent MRI from March 2020, he would not recommend any
additional treatment for Employee’s left wrist and “certainly not” surgical intervention. He
testified the value of physical therapy in “regain[ing] a joint’s range of motion and strength
beyond so many months becomes suspect.” He explained that, when someone falls on an
outstretched arm in the manner Employee fell, “[a]ll of that cartilage gets absolutely
pulverized,” and the “trauma to that cartilage is irretrievable. Can’t operate it away, can’t
physical therapy it away.”
With respect to Employee’s knee injury, Dr. Fiala testified that arthroscopic
evaluation will always reveal more issues in a joint than can be seen on an MRI. He
testified about the instruments used in the 2019 surgery, including a camera, stating “[w]e
photograph as we sweep through the knee, from medial to the middle of the knee, to lateral,
and then up into the kneecap.” He said the camera “allows us to lay an eyeball on what’s
actually going on in there. And no matter what an MRI shows, it’s always going to be
worse.”
Addressing the meniscal tears that he repaired in the 2019 surgery, Dr. Fiala said
Employee “had tears involving both of them; the medial side was more so than the lateral
side.” He stated that “[w]hat was really stunning to [him] was the extent of the wear and
tear that was throughout the rest of her knee. In all three components, cartilage [was]
missing, you know, shredded away.” Further, he testified “there’s no question the arthritic
degenerative component of [Employee’s] knee condition is pre-existing. Absolutely no
question. That stuff takes years to look like hers looks; not six months, not three months,
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but years.” Addressing whether the tears he repaired in 2019 could have come from the
work-related fall off the ladder, he said they “could,” and that “this kind of a knee is the
kind of knee that, going forward, will always, forever have meniscal cartilage at risk for
tearing again.”
Turning to the tear described in Employee’s March 2020 MRI as a “[c]omplex tear
of the posterior horn of the medial meniscus,” Dr. Fiala testified he did not believe the tear
was present at the time he performed the September 2019 arthroscopy.
Q: . . . And when you performed that right knee scope that you conducted or
that you took care of in 2019 and you were there visually inspecting the
knee, can you state whether or not that posterior horn meniscus tear was
present at that time?
A: Don’t believe so. And, you know, a complex tear means it’s not subtle,
it’s pretty extensive. You know, and once you do these things after you
do a meniscal trimming or whatever it is you’re in there doing, you have
a little probe and a hook and you tug on things to make sure something is
not still going on and make sure things are stable. And so, you know, a
complex tear of the posterior horn of the medial meniscus, I would submit
she probably retore it or tore it some more.
Q: And the main thing, though, to your knowledge, that posterior horn –
when you visually inspected the knee in 2019 to repair the meniscus at
the medial and lateral side, you did not witness or see a posterior horn
tear of the meniscus?
A: Correct
Dr. Fiala testified he did not think the tear of the posterior horn seen in the March 2020
MRI was related to Employee’s work, stating “the MRI from March [2020] is not reflective
of the photographs and the surgery I did for her in September of 2019.” Further, he said
“[t]hat injury, that tear was not there in those photographs on September 10th, 2019.”
Dr. Fiala explained why he reversed his initial opinion that Employee’s knee
condition was “100%” related to her work injury:
It’s hard to know now. That knee certainly puts her knee at risk for tearing
a meniscus. A fall off a ladder and not being able to work for several months
and not being able to exploit that problem in the knee to know about it sooner
could certainly be in play, too.
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If I hadn’t scoped her knee and we just purely had a discussion about could
this meniscal tear on the MRI – the first MRI, could that MRI be referencing
a meniscal tear that happened when she fell off the ladder, in the absence of
a knee scope or these pictures, I think I could’ve told you, beyond a
reasonable doubt, probably related to the fall.
But now that I know what this looks like, and I know that this can also put
her meniscus at risk, I have a hard time digging in my heel and saying without
a doubt it was the fall off the ladder. It’s just – it’s harder for me to say that.
Could it be related to that? It could be. Is it for sure? I don’t know.
Finally, Dr. Fiala expressed his willingness to continue to see Employee and to provide
whatever treatment she may need with respect to both her wrist and her knee.
Employee was the only witness to testify in person at the expedited hearing. She
acknowledged that, since the date Dr. Fiala placed her at maximum medical improvement
for her injuries and released her to return to work, she had not attempted to return to Dr.
Fiala for additional care. During the hearing, Employee objected to the admission into
evidence of photographs taken during the 2019 knee surgery. Employee’s counsel argued
he had requested that Dr. Fiala provide his medical records, but the photographs were not
sent. He acknowledged that Dr. Fiala did not send the photographs to either party and
argued that, because the photographs were not made available to him, he could not provide
them to his expert for review. The trial court sustained the objection “as it relates to Dr.
Peterson being cross-examined” about whether the photographs would “be helpful” to Dr.
Peterson, but otherwise overruled the objection.
The trial court found that Employer failed to provide Employee with a panel of
physicians and concluded that Dr. Fiala’s “failure to treat [Employee’s] ongoing
symptoms” justified designating a new treating physician. In support of that conclusion,
the court noted that
Dr. Fiala declined to treat [Employee’s] ongoing wrist pain for several
months after he returned her to work without restrictions. He also released
her without restrictions despite her right-knee complaints. Significantly, Dr.
Fiala counseled [Employee] when he released her that she should get private
health insurance to pay for “any further concerns” with her knee. The Court
holds those circumstances communicated to [Employee] that Dr. Fiala had
nothing else to offer under workers’ compensation for ongoing treatment.
....
Here, Dr. Fiala dismissed [Employee] from his care, despite her ongoing
complaints, without even trying to determine the cause of her pain or if
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further treatment was in order. Further, Dr. Fiala released [Employee] for
her knee under the unsubstantiated assumption that workers’ compensation
would not pay for any other treatment.
The court concluded these circumstances justified allowing Employee to select her own
treating physician.
The trial court additionally ordered Employer to provide treatment for Employee’s
right knee, reasoning that the court
also considered Dr. Fiala’s testimony that he did not find a posterior-horn
tear during surgery. The Court gives little weight to that testimony because
the pre-surgery MRI of [Employee’s] right knee showed both lateral and
medial tears that extended into the posterior horn. The Court also discounted
Dr. Fiala’s testimony because he so radically changed his causation opinion.
Before [Employer] authorized surgery, he was “100%” certain that the
meniscal tears were from the fall. It was only after he performed surgery that
he felt he could not attribute any of the meniscal tears to the work-related
fall.
The court stated that, because of those findings, the court “accepts Dr. Peterson’s opinion
that the current posterior-horn tear arose primarily from the fall.” Employer has appealed.
Standard of Review
The standard we apply in reviewing a 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, “[n]o similar deference need be
afforded the trial court’s findings based upon documentary evidence.” 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
Employer raises two issues: (1) whether the trial court erred in determining that the
posterior horn meniscal tear identified in the March 2020 MRI arose primarily out of the
November 2018 work accident; and (2) whether the trial court erred in replacing Dr. Fiala
with Dr. Peterson as Employee’s authorized physician.
Whether the Current Posterior Horn Tear Arose Primarily out of the Employment
Generally, to be compensable, an injury must arise primarily out of and in the course
and scope of employment and must cause disablement, death, and/or the need for medical
treatment of the employee. Tenn. Code Ann. § 50-6-102(14) (2020). Furthermore, “[a]n
injury ‘arises primarily out of and in the course and scope of employment’ only if it has
been shown by a preponderance of the evidence that the employment contributed more
than fifty percent (50%) in causing the injury, considering all causes.” Tenn. Code Ann. §
50-6-102(14)(B). Here, Employer accepted the compensability of the wrist injury and the
medial and lateral meniscal tears in the right knee disclosed in the April 2019 MRI and
authorized Dr. Fiala to perform arthroscopic surgery. However, Employer disputed the
compensability of the posterior horn tear identified in the March 2020 MRI. The trial court
concluded Employee had established she would likely prevail in proving the posterior horn
tear was causally related to the employment. We disagree.
Prior to performing the September 2019 arthroscopy, Dr. Fiala expressed with a
great degree of certainty that Employee’s meniscal tears identified in the April 2019 MRI
were the result of her November 2018 work-related accident. However, after performing
surgery and inspecting the condition of Employee’s knee through the camera used during
the surgery and reviewing the photographs of the procedure, Dr. Fiala concluded the
degenerative condition of Employee’s knee suggested her torn menisci may not have been
causally related to the November 2018 accident. The trial court accepted what it described
as “Dr. Peterson’s opinion that the current posterior-horn tear arose primarily from the
[November 2018] fall” and cited two reasons for the court’s conclusion that Dr. Fiala’s
causation opinion was entitled to “little weight.”
First, the court gave little weight to Dr. Fiala’s testimony that he did not find a
posterior horn tear during the 2019 surgery, stating “the pre-surgery MRI of [Employee’s]
right knee showed both lateral and medial tears that extended into the posterior horn.”
(Emphasis added.) Second, the trial court “discounted Dr. Fiala’s testimony because he so
radically changed his causation opinion.” We conclude that, in reaching its conclusion, the
trial court failed to give sufficient weight to the expert testimony concerning the
photographs of the September 2019 surgery and to Dr. Fiala’s testimony concerning his
intra-operative inspection of Employee’s knee.
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Addressing Dr. Peterson’s causation testimony, the trial court stated, “Dr. Peterson
testified that all the meniscal tears in [Employee’s] right knee, including the unrepaired
tear, arose primarily out of and in the course and scope of her work-related fall.” Despite
a diligent search, we do not find this testimony in the record. During oral arguments, we
asked Employee where in the record this testimony appears, and counsel referred us to the
following colloquy in his direct examination of Dr. Peterson:
Q: [Employee] has, I think you said, more arthritis than somebody that age?
A: Yeah, she does.
Q: And we talked about that, that this happened – if this injury happened
11/13 of ’18, she doesn’t get treatment for it until –
A: At least a year.
Q: – almost a year later. The arthritis that she has, could that be caused by
the lack in treatment, the ongoing issue of that torn meniscus?
A: It’s possible.
Q: In your opinion, is it greater than – or 51 percent or greater? That’s the
new law –
A: It is.
Q: – the work comp that we have to go by.
A: Absolutely.
Q: Okay. We can’t use the “more likely than not.”
A: Yeah, it’s 51 percent or more.
Q: Considering all other factors?
A: Yeah.
This testimony does not address the cause of the “unrepaired tear” in Employee’s
knee, and it does not address the cause of “all the meniscal tears in [Employee’s] right
knee.” We conclude the trial court erred in stating that “[r]egarding causation, Dr. Peterson
testified that all the meniscal tears in [Employee’s] right knee, including the unrepaired
tear, arose primarily out of and in the course and scope of her work-related fall.” Dr.
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Peterson testified about the cause of the tear revealed in the 2020 MRI, but only associated
the tear with Employee’s “prior issue.”
A: . . . Is it possible that just her weight and her activity caused a new tear in
this meniscus? I understand the question. So that – that’s the hard part.
We don’t know. We don’t know, at this point, was it from the work issue?
Was it a recurrent tear? Was it something that was not addressed at the
time of [the] index procedure, or was it something that came on further
along? I can’t tell you.
Q: Okay.
A: Does it seem likely, with the issues that she never really got better after
the surgery? Does it seem plausible that that is associated with that work
injury and then continued pain even after the knee scope? Most likely,
because I don’t have any documentation from her that there was any other
falling, twisting injury, or anything else like that that would, you know,
tell me that, oh, this is a new issue. You know what I’m saying?
Q: Yes, sir.
A: So I have to, with good common sense, think back, well, this has to most
likely be associated with that prior issue.
The court discounted Dr. Fiala’s testimony that he did not find a posterior horn tear
during surgery based on the court’s review of the April 2019 MRI report. The court stated
that the MRI “showed both lateral and medial tears that extended into the posterior horn.”
(Emphasis added.) However, neither expert testified that the 2019 MRI showed a posterior
horn tear. Dr. Fiala testified that he did not believe the posterior horn tear was present
when he performed the 2019 surgery. Dr. Peterson testified the 2019 MRI showed a medial
meniscus tear, adding that the “[l]ateral meniscus has a questionable tear as well.” He did
not testify that the tear of the posterior horn was present at the time of the 2019 surgery; he
merely suggested that it might have been present and overlooked during the surgery. As
we have discussed previously, judges are not well-suited to giving medical opinions. See
Scott v. Integrity Staffing Solutions, No. 2015-01-0055, 2015 TN Wrk. Comp. App. Bd.
LEXIS 24, at *8 (Tenn. Workers’ Comp. App. Bd. Aug. 18, 2015). The trial court’s
conclusion that the posterior horn tear was present at the time of the 2019 surgery is not
supported by the expert medical testimony or by the record as a whole.
Even if Dr. Fiala’s testimony were to be discounted, Dr. Peterson’s testimony was
insufficient to establish causation. Dr. Peterson testified on direct examination that it
would be helpful for him to see pictures of the surgery to determine whether he believed
Dr. Fiala overlooked the posterior horn tear during surgery. His testimony, considered as
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a whole, is that he does not know what caused the posterior horn tear indicated by the 2020
MRI. His testimony is insufficient to establish Employee will likely prevail at trial in
showing the posterior horn tear arose primarily out of the employment. Accordingly, we
conclude the evidence at this interlocutory stage of the case preponderates against the trial
court’s determination that the current posterior horn tear “arose primarily from the [2018]
fall.”
Replacement of Dr. Fiala with Dr. Peterson
It is undisputed that Employer did not provide a panel of physicians to Employee
on the state-prescribed form but, instead, authorized ongoing treatment with the physician
who performed her emergency surgery. Although Employee testified that she asked for a
different doctor on multiple occasions, there is no proof of that in the record beyond her
testimony. Indeed, to date, there is no evidence Employee has requested a panel of
physicians, and the court did not address whether it should order Employer to provide a
panel of physicians from which Employee could select a treating physician to replace Dr.
Fiala. Further, no one has asserted on appeal that the trial court should have ordered
Employer to provide a panel of physicians. As stated in the trial court’s order, the court
held a hearing “in which [Employee] sought to replace her authorized treating physician
for not providing ongoing care and [to] obtain treatment for a meniscal tear.” The trial
court ordered that Employer “authorize Dr. Jeffrey Peterson to replace Dr. Martin Fiala as
[Employee’s] authorized treating physician.” Thus, the only issue presented as to the
treating physician is whether the trial court erred in replacing Dr. Fiala with Dr. Peterson
as the authorized treating physician.
The trial court based its decision to change the authorized physician on two primary
considerations. First, the trial court correctly noted that Employer “did not comply with
the law by providing [Employee] a choice of physicians” for either her wrist or knee
injuries. Second, the trial court agreed with Employee’s contention that “Dr. Fiala’s failure
to treat her ongoing symptoms justifie[d] a change in [the] treating physician.” The court
stated that Dr. Fiala declined to treat Employee’s ongoing wrist pain for several months
after he returned her to work; that Dr. Fiala released Employee without restrictions “despite
her right-knee complaints”; and that Dr. Fiala “counseled [Employee] when he released
her that she should get private health insurance to pay for ‘any further concerns’ with her
knee.” According to the trial court, “[t]hose circumstances communicated to [Employee]
that Dr. Fiala had nothing else to offer under workers’ compensation for ongoing
treatment.” However, as noted by the trial court, Employer’s “failure to provide a panel
for treatment, standing alone, does not mandate a change in authorized physicians.” See
Ducros v. Metro Roofing and Metal Supply Co., Inc., No. 2017-01-0228, 2017 TN Wrk.
Comp. App. Bd. LEXIS 62, at *11 (Tenn. Workers’ Comp. App. Bd. Oct. 17, 2017).
As previously noted, Dr. Fiala’s initial treatment included emergency surgery
performed on the day of Employee’s accident. He continued treating Employee, seeing
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her multiple times in the months following her wrist surgery for follow-up, removing
hardware placed during surgery, prescribing physical therapy, and assigning restrictions.
On May 29, 2019, Employee filed a petition for benefits through her attorney, but a
change in the authorized physician was not requested. The record on appeal includes the
petition but does not include an attachment referenced in the petition. However, the dispute
certification notice identified the disputed issues as compensability and medical benefits.
Nothing in the petition for benefits or the dispute certification notice suggests Employee
was dissatisfied with Dr. Fiala, was requesting a panel of physicians, or wished to see
another physician. Although an expedited hearing was scheduled, Employer ultimately
accepted the knee injury as a compensable injury, and, presumably, the expedited hearing
was cancelled. 1 Once Employer accepted Employee’s right knee claim as compensable,
Employee treated with Dr. Fiala for those complaints, undergoing surgery to repair her
meniscal tears on September 10, 2019.
Employee saw Dr. Fiala on many occasions for both left wrist and right knee
complaints over the course of approximately one year. Dr. Fiala’s notes are silent with
respect to any disagreement he may have had with Employee or any dissatisfaction she
may have expressed concerning her care. At no point during these visits did Dr. Fiala
indicate he was unwilling or unable to continue treating her for either her left wrist or right
knee injuries. Employee testified she repeatedly requested a new physician, but, aside from
her testimony, the record does not reflect any such requests being made either by Employee
prior to being represented by counsel or through counsel after he entered the case. Dr.
Fiala performed surgery on Employee’s wrist and knee, and he continued his treatment
until he thought Employee had reached maximum medical improvement for her work-
related injuries. Rather than request additional doctor visits, Employee sought
unauthorized medical care and requested the court to change her treating physician.
Further, contrary to the trial court’s conclusions, there is no evidence that Dr. Fiala
released Employee “without even trying to determine the cause of her pain or if further
treatment was in order.” Rather, Dr. Fiala’s records reflect that he provided treatment he
believed was reasonable and necessary and causally related to the employment. The fact
that Employee continues to have complaints is not evidence that Dr. Fiala did not provide
appropriate treatment. Moreover, Dr. Fiala did not dismiss Employee from his care. He
indicated both in his treatment notes and in his deposition that he would be happy to
continue treating her. The record does not support the court’s interpretation of Dr. Fiala’s
suggestion that Employee obtain private health insurance as an indication he had nothing
further to offer her in the way of treatment. The court concluded that Dr. Fiala’s statement
about private insurance indicated an “unsubstantiated assumption that workers’
compensation would not pay for any other treatment.” However, it is clear from Dr. Fiala’s
1
Employee returned to Dr. Fiala on August 29, 2019 and, according to the report, the August 21 expedited
hearing “was derailed by work comp accepting responsibility for the knee injury.”
13
records and deposition that his recommendation that Employee obtain private insurance
was made not because he believed workers’ compensation would not pay for further care
but because he did not believe that Employee’s ongoing knee complaints arose primarily
out of her employment. Employee has presented no evidence to support the trial court’s
conclusion that Employer should authorize Dr. Peterson to provide ongoing medical care
in light of Dr. Fiala’s longstanding treatment of Employee’s injuries and his willingness to
continue to provide treatment for her work-related injuries. See Buchanan v. Mission Ins.
Co., 713 S.W.2d 654, 657 (Tenn. 1986).
Again, we note that both in the trial court and on appeal, Employee did not request
a panel of physicians; rather, she sought to replace the authorized physician with the
physician she selected on her own without notice to or consultation with Employer. Under
these circumstances, we conclude the evidence was insufficient for the trial court to change
the authorized treating physician.
Conclusion
The preponderance of the evidence at this interlocutory stage does not support the
trial court’s conclusions that Employee is likely to prevail at trial in establishing a causal
connection between her employment and her posterior horn tear or in establishing she is
entitled to ongoing treatment with Dr. Peterson as her authorized physician. Accordingly,
we reverse the trial court’s order and remand the case. Costs on appeal are taxed to
Employee.
14
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
WORKERS’ COMPENSATION APPEALS BOARD
Meshia Tate ) Docket No. 2019-01-0399
)
v. ) State File No. 88407-2018
)
Daryl Doney d/b/a Middle Tennessee )
Respiratory, et al. )
)
)
Appeal from the Court of Workers’ ) Heard January 28, 2021
Compensation Claims ) via WebEx
Thomas L. Wyatt, 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 23rd
day of February, 2021.
Name Certified First Class Via Via Sent to:
Mail Mail Fax Email
Benjamin R. Newman X bnewman@galligannewmanlaw.com
Sharon Kelley skelley@galligannewmanlaw.com
Richard R. Clark, Jr. X rclark@eraclides.com
Lauren Ray Hall lrayhall@eraclides.com
Thomas L. Wyatt, 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