Brown, Binnie v, Whole Foods Markets, Inc.

TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT CHATTANOOGA
Bonnie Brown, ) Docket No.: 2016-01-0139
Employee, )
v. )
Whole Foods Markets, Inc., ) State File No.: 58807-2015
Employer, )
And )
Ace American Ins. Co., ) Judge Thomas Wyatt
Carrier. )
)
EXPEDITED HEARING ORDER
On February 22, 2023, Bonnie Brown asked to see a psychiatrist for evaluation of
any impairment she retains from an alleged mental injury. She also requested ongoing
treatment for that injury. Whole Foods urged the Court to reject Ms. Brown’s requests
because: (1) no authorized provider has referred her to a psychiatrist, and (2) she did not
prove the work-relatedness of her mental injury or that she needs treatment of it. Whole
Foods based its causation defense principally on an alleged lack of medical evidence.
For the reasons below, the Court orders Whole Foods to provide ongoing treatment
as described for Ms. Brown’s mental injury.
History of Claim
Ms. Brown worked for Whole Foods for approximately twenty months. About a
year into her employment, Whole Foods transferred her to a store in Chattanooga to work
as a cook. She testified that cooking was her dream job and that her network of friends in
Chattanooga consisted of Whole Foods co-employees. Before Whole Foods, Ms. Brown
maintained regular employment for twenty-three years.
On July 22, 2015, Ms. Brown injured her lumbar spine while lifting a forty-pound
box of frozen turkeys. Whole Foods authorized care, including spinal fusion surgery in
1
2016. The pain and the weakness in her spine and legs remained after surgery, and she
was unable to return to work.
During post-surgery care in 2016, an authorized physician referred her for
“psychological evaluation” when she exhibited tearfulness and depression. Whole Foods
authorized the referral, and the psychologist diagnosed Ms. Brown with a “major
depressive disorder—single episode,” described as severe but without psychotic features.
The psychologist noted Ms. Brown had developed weeping and insomnia and could not
return to work.1
Ms. Brown testified that she had enjoyed mostly good mental health until her back
and leg pain persisted after surgery. The exception consisted of three months of treatment
in 2010-11 for depression and anxiety caused by Ms. Brown’s partner moving out with a
child whom Ms. Brown considered her “son.” 2 A November 10, 2010 treatment note from
Village Medical Center documented that Ms. Brown was prescribed medication for
depression and anxiety. By January 15, 2011, the last recorded visit, Ms. Brown reported
being “much better” because her “partner moved back into the house with her and they are
living as roommates, getting along ok.” Thus, the provider at Village recommended that
she wean off prescribed medication, which she did.
As to Ms. Brown’s treatment under workers’ compensation, Whole Foods
authorized twelve counseling sessions with a psychologist, who diagnosed moderate major
depression and a pain disorder with psychological factors. This psychologist diagnosed
“depression related to work injury” with an onset date of June 2015.
Ms. Brown has also received authorized pain management treatment from three
different practices. In June 2019, an authorized pain management physician recommended
narcotic pain medication and medication for depression and anxiety. Ms. Brown testified
she declined the narcotics because she did not want to become addicted. Occasionally, the
pain management physicians prescribed medication to treat depression and anxiety.
Further, multiple drug tests performed during pain management were positive for
marijuana.3
Sometime in 2019, Ms. Brown moved to Texas to be near family, including the
child she considers her son. Then, beginning in January 2020, Whole Foods authorized
1
The parties did not introduce evidence that Ms. Brown selected any of the psychologists who treated her
from a panel. It appears she saw the psychologists through direct referrals authorized by Whole Foods.
2
Ms. Brown testified she was present at the child’s birth and, except for the brief period of separation, has
always been in the child’s life. Ms. Brown currently enjoys regular visitation with the child, who is now
fourteen years old.
3
Ms. Brown disclosed her marijuana use to her physicians. She testified she has used marijuana
approximately once per month for forty years. She said that it makes her happy, not depressed. She testified
she knew that her marijuana use violated the pain management contracts she signed.
2
treatment by psychologist Lauren Henriksen, Ph.D. Ms. Brown wrote on an intake sheet
on her initial visit: “This back injury has changed my quality of life. Everything has
changed for me. I’ve lost all my friends, I can no longer do the things I love. Walking is
difficult. Bending is hard for me. I’ve lost my job, my car. I am just existing, not living.”
Dr. Henriksen performed an initial evaluation and psychological testing, and she
and others in her practice counseled Ms. Brown twelve times through late May 2020.
Dr. Henriksen diagnosed depression and anxiety that caused kineisiophobia (fear of
reinjury) and grief over loss of her former level of physical function. She testified that
psychological testing showed Ms. Brown’s depression and anxiety were severe, causing
feelings of uselessness, worry, apprehension, and loss of confidence in her ability to
recover.
In late May 2020, Dr. Henriksen recommended that Ms. Brown participate in an all-
day chronic pain/functional restoration program. Ms. Brown responded that she could not
because she had nobody to look after her dogs and her “son” during the all-day sessions. 4
Dr. Henriksen said that she expected Ms. Brown would have continued to improve, had
she undergone the recommended program. Dr. Henriksen’s practice discharged Ms.
Brown at the end of May 2020 but wrote that she could return if needed.
Both parties asked Dr. Henriksen about causation. In response to a question by
Whole Foods’ counsel, Dr. Henriksen stated:
[W]hen people come in with a work-related injury, they’re grieving
their former self because they’re not able to do the things they used to do —
so bend, lift — and it causes a great deal of pain. And pain itself can cause
depression so that was a big part of it [with Ms. Brown.]
I think I even documented in the notes that she loved her job so there’s
some of that[.] [A] big part of it was due to the chronic pain, not being able
to recover, not recovering from the surgery in terms of bouncing back
physically. So, a great deal of it was due to the pain.
Ms. Brown’s counsel had Dr. Henriksen document the psychological symptoms that
Ms. Brown reported, including severe depression, worry, anxiety, loss of self-confidence,
and difficulties coping with her pain and physical limitations. Dr. Henriksen responded,
“Correct” to counsel’s question whether she noted in her records that “all of these problems
[are] proximally caused by [Ms. Brown’s] July 22, 2015 work injury.”
4
Dr. Henriksen stated that her file did not show that Whole Foods authorized the all-day program.
3
The single departure in Dr. Henriksen’s testimony relating Ms. Brown’s mental
symptoms to her spine injury occurred when Whole Foods’ counsel asked if she knew that
Ms. Brown “had a history of depression or anxiety dating back to at least 2010.” Counsel
did not detail the underlying facts of this “history” or give Dr. Henriksen the Village
records to review.
Dr. Henriksen responded that Ms. Brown told her she had “no previous
psychological diagnoses.” She testified that she would have related all the mental
symptoms she treated to the work injury if Ms. Brown had no past psychological history.
But, if Ms. Brown had a history of psychological treatment, Dr. Henriksen did not know
whether the work injury accounted for more than fifty percent of the cause of Ms. Brown’s
depression and anxiety.
Ms. Brown’s counsel also asked whether Dr. Henriksen’s practice had a psychiatrist
who could assess impairment as required by Tennessee law. She said no, but she had made
referrals to psychiatrists in the past and could do so here.
For her part, Ms. Brown testified that she has concerns about her mental status and
needs “someone to talk to.” She said that she did not ask for additional counseling earlier
because her attorney’s representative told her two years ago that the case was ending, and
she was “on her own” for treatment. Further, Ms. Brown testified she moved to another
part of Texas and is no longer in the community in which Dr. Henriksen practices. 5 Ms.
Brown has received recent mental-related treatment on her own through programs operated
by the State of Texas.
Whole Foods offered the report of physical and rehabilitation physician Dr. Jeffrey
Hazlewood. He reviewed records and stated that Ms. Brown’s work injury did not cause
at least fifty percent of her need for a psychiatric referral. He also questioned whether Ms.
Brown had ongoing symptoms because she has not received treatment for a lengthy period.
Finally, he suggested that family problems contributed at least fifty percent to any ongoing
symptoms and stated that marijuana can cause or contribute to depression in some patients.
Findings of Fact and Conclusions of Law
To recover, Ms. Brown must show she would likely prevail at a hearing on the
merits. Tenn. Code Ann. § 50-6-239(d)(1) (2022).
The Court first considers Ms. Brown’s request to see a psychiatrist for an
impairment evaluation. Tennessee law provides benefits for “a loss of mental faculties or
[a] behavioral disorder, arising primarily out of a compensable physical injury[.]” Tenn.
5
Whole Foods’ counsel suggested that it might authorize additional counseling by a psychologist but stated
that a return to Dr. Henriksen was not feasible because of Ms. Brown’s relocation.
4
Code Ann. § 50-6-102(15). Those benefits include an award of permanent partial disability
benefits if the employee’s mental injury results in “disability partial in character but
adjudged to be permanent.” Tenn. Code Ann. § 50-6-207(3).
The number of weeks of an employee’s original award of permanent partial
disability benefits is “determined by multiplying the employee’s impairment rating by four
hundred fifty (450) weeks.” Id. (Emphasis added). Thus, an impairment rating is essential
for the determination of the disability benefits to which an employee may be entitled by
law.
The importance of impairment evaluation in workers’ compensation cases is
underscored by Tennessee Compilation Rules & Regulations 0800-02-17-.25(1)-(2)
(September 2021), which provides, “The authorized treating physician is required and
responsible for the employee’s maximum medical improvement (MMI) date and providing
the employee’s impairment rating for the injury the physician is treating.” (Emphasis
added).
Despite the above clear statutory pronouncements of the importance of impairment
assessment under Tennessee law, obtaining assessment of mental impairment where, as
here, all authorized mental-related treatment has been provided by psychologists is
problematic. Tennessee Code Annotated section 50-6-204(k)(1) limits the authority to give
impairment ratings to “the treating physician or chiropractor.” Psychologists cannot
provide opinions regarding causation and permanency because they are not physicians.
Gates v. Jackson Appliance Co., No. W1999-00743-SC-WCM-CV, 2001 Tenn. LEXIS
522, at *16 (Tenn. Workers’ Comp. Panel June 27, 2001); see also Creasman v. Waves,
Inc., 2018 TN Wrk. Comp. App. Bd. LEXIS 13, n.1 (Apr. 16, 2018).
Here, Ms. Brown argues that justice and good sense mandate that Whole Foods give
her a panel from which she will select a psychiatrist to assess her impairment. Whole
Foods counters that she can see a psychiatrist only upon referral from an authorized
physician, which has not happened.
Barring oversight, the Court cannot explain why the General Assembly did not
provide a mechanism for impairment assessment where an employer provides only non-
physician providers to treat an employee’s mental injury. Be that as it may, the Workers’
Compensation Law does not provide this mechanism. In interpreting statutory enactments,
a court is to give meaning and purpose to every word used in the statute if that can be done
without arriving at an absurd result contrary to the statute’s obvious intent. In re C.K.G.,
173 S.W.3d 714, 722 (Tenn. 2015). Here, the Court has done that and finds no mechanism
for ordering Whole Foods to provide a psychiatrist panel solely for the purposes of
assessing impairment.
5
In Pool v. Jarmon D&Q Transport, 2016 TN Wrk. Comp. App. Bd. LEXIS 1, at *9
(Jan. 4, 2016), the Appeals Board considered whether an employee may require an
employer to pay for a causation opinion. The Board held, “[T]here is no ‘right to a
causation opinion’ as such. It is the parties’ responsibility to secure expert opinions or
other evidence necessary to address any applicable burden of proof.” Consistent with the
above opinion, the Court holds that, while seemingly unfair, Ms. Brown cannot compel
Whole Foods to provide her a panel for psychiatric assessment of impairment.
The Court now turns to the causation issue raised by Whole Foods. The parties
questioned Dr. Henriksen thoroughly on causation but, not being a physician, her causation
opinion is inadmissible. See Gates, supra. The Court gives no weight to Dr. Hazlewood’s
causation opinion because he is not a psychiatrist. See Tenn. Code Ann. § 50-6-204(h)
(“all psychological or psychiatric services available [under the law] shall be rendered only
by psychologists and psychiatrists and shall be limited to those ordered upon the referral
of [authorized] physicians[.]”).
Here, Whole Foods authorized treatment by psychologists, apparently in direct
referral from the physician authorized to treat Ms. Brown’s spinal injury. That
authorization included treatment by Dr. Henriksen, who testified that Ms. Brown could
return to her for care if needed. Until Ms. Brown requested to see a psychiatrist to assess
impairment, Whole Foods never denied authorization to Ms. Brown for care by
psychologists, nor did it challenge the causation of her mental symptoms.
Ms. Brown testified credibly as to her need for additional psychological treatment.
Dr. Henriksen’s records and testimony corroborated the mental symptoms to which Ms.
Brown testified. The fact that she has obtained unauthorized treatment for mental
symptoms in her new community corroborates her testimony about needed ongoing
mental-related treatment. The Village records also supported her testimony about the three
months of mental-related treatment she received more than ten years ago. Ms. Brown
testified directly and openly about that previous treatment, and about her use of marijuana,
even though Whole Foods sought to use those facts to discredit her.
For the above reasons, the Court holds that, at a hearing on the merits, Ms. Brown
will prevail in establishing her need for ongoing psychological care.
IT IS, THEREFORE, ORDERED as follows:
1. Whole Foods shall authorize Ms. Brown to return to Dr. Henriksen for
assessment of her need for ongoing care and possible referral to a psychologist
or psychiatrist in Ms. Brown’s community. Alternatively, it may provide Ms.
Brown a panel consisting of psychologists and/or psychiatrists in her current
community so that she may select a provider for assessment of her need for
ongoing care and/or referral to a psychiatrist. Whole Foods shall authorize and
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arrange for the visit with Dr. Henriksen or provide the described panel no later
than twenty business days after issuance of this order.
2. 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 Insurer or Self-Insured Employer 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 non-compliance.
For questions regarding compliance, please contact the Workers’ Compensation
Compliance Unit via email at WCCompliance.Program@tn.gov.
ENTERED March 3, 2023.
_____________________________________
Judge Thomas Wyatt
Court of Workers’ Compensation Claims
APPENDIX
Technical Record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Joint Motion to Continue Compensation Hearing
4. Request for Expedited Hearing
5. Notice of Late-Filed Exhibit (Affidavit of Bonnie Brown)
6. Motion to Allow Telephone Appearance
7. Employer’s Opposition to Telephone Appearance
8. Order
9. Order Setting Expedited Hearing
10. Motion to Quash Medical Report of Dr. Jeffrey Hazlewood
11. Motion to Compel
12. Employer’s Response to Motion to Quash
13. Employer’s Response to Motion to Compel
14. Order
15. Notice of Expedited Hearing
16. Motion to Continue Expedited Hearing
17. Order Denying Motion to Continue
18. Employer’s Expedited Hearing Brief
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Exhibits:
1. Affidavit of Bonnie Brown
2. Transcript of Deposition, plus attached exhibits, of Lauren Henriksen, Ph.D.
3. Employer’s Compilation of Exhibits for Expedited Hearing
 Report of Dr. James Little (overruled objection based on lack
of relevancy)6
 Report of Dr. Jeffrey Hazlewood (overruled objection based
on lack of relevancy)
 Medical records of Village Medical Centers
 Medical records of Ancola Pain Management (Dr. Dykes)
(overruled objection based on lack of relevancy)
 Medical records of Siskin Rehabilitation (Dr. Delgardo)
 Medical records of Woodlands Rehabilitation Center (Dr.
Allanell) (overruled objection on lack of relevancy)
 Medical records of Newbridge Psychology Associates (Dr.
Flanagan)
4. Pain Management Agreement
5. Records of Chattanooga Orthopedic Group (Dr. Richardson)
6
Ms. Brown objected to the relevancy of the records because the providers did not treat Ms. Brown’s mental
injury. The Court overruled the objections because the providers noted, and in some form discussed, the
mental injury.
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CERTIFICATE OF SERVICE
I certify that a copy of the Order was sent as indicated on March 3, 2023.
Name Certified Email Service sent to:
Mail
Ronnie Berke X ronnie@berkeattys.com
Employee’s Attorney margo@berkeattys.com
Kenny Veit X Kenny.veit@leitnerfirm.com
Employer’s Attorney Magi.guinane@leitnerfirm.com
______________________________________
Penny Shrum, Court Clerk
WC.CourtClerk@tn.gov
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