Tipton Vaulx, Betty v. Dynametal Technologies

FILED
Oct 31, 2022
12:41 PM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT JACKSON
BETTY TIPTON, ) Docket No. 2018-07-0202
Employee, )
v. )
DYNAMETAL TECHNOLOGIES, ) State File No. 86668-2016
Employer, )
And )
ACCIDENT FUND INS. COMPANY, ) Judge Joshua Davis Baker
Carrier. )
COMPENSATION HEARING ORDER
The Court held a compensation hearing on October 20, 2022, to consider Ms.
Vaulx’s request for a new panel of physicians.1 Dynametal opposed the request, arguing
that it has provided all medical care required by this Court’s earlier ruling. The Court
agrees and denies her request for a panel of physicians.
History of Claim
Ms. Vaulx, who went by her maiden name Tipton then, hurt her back while working
for Dynametal. After a compensation hearing, the Court awarded permanent disability
benefits as well as continuing medical care with Dr. James Brophy, the authorized treating
physician.2 The Court relied on the opinion of a non-treating physician to award benefits
rather than Dr. Brophy, who had assigned Ms. Vaulx no permanent impairment.
1
Ms. Vaulx filed a request for expedited hearing to determine this post-judgment medical dispute. At the
hearing, the parties agreed that this should have been a request for compensation hearing and agreed to have
the case determined under the standard of proof applicable to that proceeding.
2
Ms. Vaulx testified she did not select Dr. Brophy from a panel. Because the Court in its previous order
determined that she did, and the order was not appealed, this issue is not subject to review.
Ms. Vaulx saw Dr. Brophy only once before going to her primary care physician for
treatment and paying those expenses out of pocket. She did not request further treatment
from Dr. Brophy before treating with her personal physician.
At about the same time she saw her primary care physician, Ms. Vaulx filed a
request for a new doctor. She claimed she needs a new doctor because Dr. Brophy does
not believe she needs additional treatment. It was evident from her testimony that she
disagrees with Dr. Brophy’s opinion about her treatment needs. Also, she and her husband
both testified she still suffers from her injury and that the associated pain interferes with
her ability to conduct her daily activities.
Ms. Vaulx filed a letter from Dr. Emmanuel Obi concerning treatment:
Dynametal argued that it offered Ms. Vaulx treatment with Dr. Brophy as required
by the Court’s order, but she declined. Further, Dynametal maintained Ms. Vaulx can
return to Dr. Brophy and is not entitled to a new panel of physicians.
Findings of Fact and Conclusions of Law
The only issue in this compensation hearing is whether Dynametal must provide
Ms. Vaulx a new panel of doctors. Scott v. Integrity Staffing Solutions, 2015 TN Wrk.
Comp. App. Bd. LEXIS 24, at *6 (Aug. 18, 2015). Ms. Vaulx must prove her entitlement
to a new panel of doctors by a preponderance of the evidence. Tenn. Code Ann. § 50-6-
239(c)(6) (2022) (“[T]he employee shall bear the burden of proving each and every element
of the claim by a preponderance of the evidence.”). She did not carry this burden.
The Workers’ Compensation Law requires an injured employee “to accept the
medical benefits” provided by the employer, which includes a panel of “three or more
independent reputable physicians . . . from which the employee shall select one to be the
treating physician.” Tenn. Code Ann. § 50-6-204(3)(A)(i). Once selected, that physician
is the authorized treating physician until the physician declines to continue treating the
employee. Limberakis v. Pro-Tech Sec., Inc., 2017 TN Wrk. Comp. App. Bd. LEXIS 53,
at *8-10 (Sept. 12, 2017). The employer may also voluntarily provide a new panel of
physicians.
2
Neither situation occurred in Ms. Vaulx’s case. Ms. Vaulx offered no evidence that
Dr. Brophy has declined to see her. And, Dynametal refused to provide a new panel.
In support of her position, Ms. Vaulx offered the letter from Dr. Obi. His letter does
not sway the Court’s opinion for several reasons. First, while the letter details treatment
he provided, it does not state that Dynametal declined to provide this treatment through Dr.
Brophy. Second, the letter does not prove that the treatment outlined in the letter is
reasonable and necessary for treatment of her work injury. Finally, the letter, although
agreed upon by the parties as admissible in this hearing, does not meet required standards
for a judge’s consideration at a compensation hearing, as it is neither deposition testimony
nor included in a form C-32. Tenn. Code Ann. § 50-6-235 (allowing admission of a
doctor’s testimony on this form instead of a deposition.).
In sum, Ms. Vaulx has not carried her burden of proving her entitlement to a new
panel of physicians.
IT IS, THEREFORE, ORDERED as follows:
1. Ms. Vaulx’s request for a new panel of doctors is denied.
2. The Court assesses the $150.00 filing fee against Dynametal, for which execution
might issue as necessary. Dynametal shall pay the filing fee to the Clerk within five
business days of this order becoming final.
3. Unless appealed, this order shall become final thirty days after issuance.
ENTERED October 31, 2022.
____________________________________
Judge Joshua Davis Baker
Court of Workers’ Compensation Claims
3
APPENDIX
Exhibits:
1. Ms. Vaulx’s Rule 72 Declaration
2. Medical Records filed October 3, 2022
3. Dr. Emmanuel Obi letter
4. Compensation order dated February 15, 2019
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Order to Show Cause
4. Request for Expedited Hearing
5. Employer’s Motion for an Evidentiary Hearing
4
CERTIFICATE OF SERVICE
I certify that a copy of this Order was sent as indicated on October 31, 2022.
Name Certified First Via Service sent to:
Mail Class Email
Mail
Betty Tipton Vaulx, X 1080 Wallace Rd. Apt, 5
Employee Jackson, TN 38305
stevenvaulx@gmail.com
Gordon Aulgur, X gordon.aulgur@accidentfund.com
Employer’s Attorney
_____________________________________
Penny Shrum, Clerk
Court of Workers' Compensation Claims
WC.CourtClerk@tn.gov
5
Compensation Order Right to Appeal:
If you disagree with this Compensation Order, you may appeal to the Workers’
Compensation Appeals Board. To do so, you must:
1. Complete the enclosed form entitled “Notice of Appeal” and file it with the Clerk of the
Court of Workers’ Compensation Claims within thirty calendar days of the date the
Compensation Order was filed. When filing the Notice of Appeal, you must serve a copy
upon the opposing party (or attorney, if represented).
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten calendar
days after filing the Notice of Appeal. Payments can be made in-person at any Bureau office
or by U.S. mail, hand-delivery, or other delivery service. In the alternative, you may file an
Affidavit of Indigency (form available on the Bureau’s website or any Bureau office)
seeking a waiver of the filing fee. You must file the fully-completed Affidavit of Indigency
within ten calendar days of filing the Notice of Appeal. Failure to timely pay the filing
fee or file the Affidavit of Indigency will result in dismissal of your appeal.
3. You are responsible for ensuring a complete record is presented on appeal. The Court Clerk
will prepare the technical record and exhibits for submission to the Appeals Board, and you
will receive notice once it has been submitted. If no court reporter was present at the hearing,
you may request from the Court Clerk the audio recording of the hearing for a $25.00 fee.
A licensed court reporter must prepare a transcript, and you must file it with the Court Clerk
within fifteen calendar days of filing the Notice of Appeal. Alternatively, you may file a
statement of the evidence prepared jointly by both parties within fifteen calendar days of
filing the Notice of Appeal. The statement of the evidence must convey a complete and
accurate account of the testimony presented at the hearing. The Workers’ Compensation
Judge must approve the statement of the evidence before the record is submitted to the
Appeals Board. If the Appeals Board must review testimony or other proof concerning
factual matters, the absence of a transcript or statement of the evidence can be a significant
obstacle to meaningful appellate review.
4. After the Workers’ Compensation Judge approves the record and the Court Clerk transmits
it to the Appeals Board, a docketing notice will be sent to the parties. You have fifteen
calendar days after the date of that notice to file a brief to the Appeals Board. See the Rules
governing the Workers’ Compensation Appeals Board on the Bureau’s website
If neither party timely files an appeal with the Appeals Board, the trial court’s Order will
become final by operation of law thirty calendar days after entry. Tenn. Code Ann. § 50-6-
239(c)(7).
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.