Freeman, Joshua v. Certified Maintenance, Service, Inc.

FILED
Aug 05, 2022
09:33 AM(CT)
TENNESSEE COURT OF
WORKERS' COMPENSATION
CLAIMS
TENNESSEE BUREAU OF WORKERS’ COMPENSATION CLAIMS
IN THE COURT OF WORKERS’ COMPENSATION CLAIMS
AT MURFREESBORO
JOSHUA FREEMAN, ) Docket No. 2021-05-0645
Employee, )
v. )
)
CERTIFIED MAINTENANCE, ) State File No. 20077-2019
SERVICE, INC., )
Employer, )
and )
)
ACCIDENT FUND GEN. INS. CO., ) Judge Dale Tipps
Carrier. )
EXPEDITED HEARING ORDER DENYING BENEFITS
The Court held an Expedited Hearing on August 2, 2022, to determine whether Mr.
Freeman is entitled to additional medical treatment, specifically the scapular MRI
recommended by one of his authorized physicians. The Court finds the evidence does not
support Mr. Freeman’s contention that the MRI is reasonable and necessary treatment for
his compensable injury. Therefore, the Court cannot hold that he is likely to prevail at a
hearing on the merits.
History of Claim
The parties agreed that Mr. Freeman suffered a compensable back injury on March
16, 2019. CMS accepted the claim and provided medical benefits, including treatment with
Dr. Stanley Hopp, an orthopedic specialist he selected from a panel.
After physical therapy and an MRI, Dr. Hopp assessed thoracic strain and
underlying degenerative disc disease with no objective radiculopathy. He released Mr.
Freeman at maximum medical improvement. When Mr. Freeman returned with continuing
complaints, Dr. Hopp made a physiatry referral. In response to a letter from the carrier,
Dr. Hopp said that, although the thoracic strain was more than fifty percent caused by the
work injury, “his ongoing complaints at this time are related to the degenerative disc in the
thoracic spine.”
1
Despite Dr. Hopp’s response, CMS provided a panel of physiatrists, and Mr.
Freeman selected Dr. Robert Todd. He told Dr. Todd that his pain began in the low thoracic
spine, but over time, it migrated to his left periscapular region and the base of his neck. He
also described intermittent numbness and tingling in his small left toe and small left finger.
Dr. Todd prescribed more physical therapy and ordered cervical and lumbar MRIs.1
When Mr. Freeman returned, Dr. Todd told him that both MRIs were essentially
normal, with only mild facet arthrosis in the lumbar region. Dr. Todd found no significant
nerve impingement and placed Mr. Freeman at maximum medical improvement.
However, because of continued neurological complaints, he referred Mr. Freeman to a
neurologist.
Like Dr. Hopp, Dr. Todd also responded to questions from the carrier about the
cause of Mr. Freeman’s symptoms. He said that the referral to chiropractic treatment was
more than fifty percent related to the work injury, but he was unable to “say with more than
50% certainty” the neurological symptoms were related to it. However, Dr. Todd felt the
neurological referral was reasonable because Mr. Freeman did not have those problems
before the injury.
Even though Dr. Todd could not say the neurological symptoms were primarily
caused by the work injury, CMS provided a neurology panel, and Mr. Freeman selected
Dr. Larry Gibson. The EMG and nerve conduction studies ordered by Dr. Gibson were
normal, as was a left shoulder MRI. As a result, Dr. Gibson completed a Final Medical
Report and assigned an impairment rating. However, less than two weeks later, he
recommended an MRI of the left scapular and chest region.
Dr. Gibson gave a deposition, where he explained that he ordered the scapular MRI
because Mr. Freeman called his office and requested it. Although he said it was an effort
to find some answers and develop a plan of treatment, he was skeptical “that we were going
to find anything that was going to explain everything.” He was unable to say that the MRI
was medically necessary because of the work accident. Dr. Gibson was also asked whether,
from a neurological standpoint, any additional treatment or tests related to the work
accident would be reasonable. He responded “No.”
At the conclusion of the hearing, Mr. Freeman noted that Dr. Gibson was unable to
say whether his problems are related to the work injury. As a result, he contended that
CMS has a duty to provide the scapular MRI in order to determine the cause of his
continued symptoms. CMS, on the other hand, contended that Mr. Freeman is not entitled
to the MRI because he presented no medical proof that it was made reasonably necessary
by his work injury.
1
It appears that CMS also provided chiropractic treatment during this period.
2
Findings of Fact and Conclusions of Law
For the Court to grant Mr. Freeman’s request, he must prove he is likely to prevail
at a hearing on the merits. Tenn. Code Ann. § 50-6-239(d)(1) (2021); McCord v.
Advantage Human Resourcing, 2015 TN Wrk. Comp. App. Bd. LEXIS 6, at *7-8, 9 (Mar.
27, 2015).
CMS did not contest the compensability of Mr. Freeman’s claim but contended that
he is not entitled to the scapular MRI. Thus, the specific question before the Court is
whether Mr. Freeman is likely to prove that the MRI is reasonable and necessary treatment
for his work injury.
The Workers’ Compensation Law requires an employer to provide reasonable,
necessary treatment at no cost to the injured worker. Tenn. Code Ann. § 50-6-
204(a)(1)(A). Further, any treatment recommended by a panel physician “shall be
presumed to be medically necessary for the treatment of the injured employee.” Tenn.
Code Ann. § 50-6-204(a)(3)(H).
Applying this standard to Mr. Freeman’s claim, the Court finds that he presented no
evidence the MRI is currently reasonable and necessary. It is true that Dr. Gibson initially
ordered the procedure at Mr. Freeman’s request, and that recommendation would have
been entitled to a presumption of medical necessity. However, he effectively withdrew the
recommendation when he testified that he could not say that any treatment or test, including
the MRI, was medically necessary because of the work accident. Mr. Freeman thus has no
medical opinion supporting his request.
The Court recognizes Mr. Freeman’s frustration with his continuing symptoms and
understands his contention that testing should continue until the doctors can explain the
cause. However, this approach is not supported by existing law. The statute requires expert
proof that treatment is medically necessary and reasonable and arises primarily out of the
work injury. Because Mr. Freeman did not present that evidence, the Court cannot find he
is likely to prove entitlement to the scapular MRI.
IT IS, THEREFORE, ORDERED as follows:
1. Mr. Freeman’s claim against Certified Maintenance Service for the scapular MRI is
denied at this time.
2. This case is set for a Scheduling Hearing on October 12, 2022, at 9:00 a.m. You
must call toll-free at 855-874-0473 to participate. Failure to call might result in a
determination of the issues without your further participation. All conferences are
set using Central Time.
3
ENTERED August 5, 2022.
______________________________________
DALE TIPPS, JUDGE
Court of Workers’ Compensation Claims
Exhibits:
1. Mr. Freeman’s Rule 72 Declaration
2. Transcript of Dr. Larry Gibson’s deposition
3. Concentra Records (identification only)
4. Employer’s indexed medical records
Technical record:
1. Petition for Benefit Determination
2. Dispute Certification Notice
3. Request for Expedited Hearing
4. Employer’s Pre-Hearing Brief
5. Employer’s Exhibit List
6. Employer’s Witness List
7. Employee’s Witness List
CERTIFICATE OF SERVICE
I certify that a copy of the Order was sent as indicated on August 5, 2022.
Name Certified Fax Email Service sent to:
Mail
Joshua Freeman X Jafreeman72@gmail.com
Cole Stinson, X Cole.stinson@afgroup.com
Employer’s Attorney
______________________________________
PENNY SHRUM, COURT CLERK
wc.courtclerk@tn.gov
4
Expedited Hearing Order Right to Appeal:
If you disagree with this Expedited Hearing Order, you may appeal to the Workers’
Compensation Appeals Board. To appeal an expedited hearing order, you must:
1. Complete the enclosed form entitled: “Notice of Appeal,” and file the form with the
Clerk of the Court of Workers’ Compensation Claims within seven business days of the
date the expedited hearing order was filed. When filing the Notice of Appeal, you must
serve a copy upon all parties.
2. You must pay, via check, money order, or credit card, a $75.00 filing fee within ten
calendar days after filing of 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 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 the appeal.
3. You bear the responsibility of ensuring a complete record on appeal. You may request
from the court clerk the audio recording of the hearing for a $25.00 fee. If a transcript of
the proceedings is to be filed, a licensed court reporter must prepare the transcript and file
it with the court clerk within ten business days of the filing the Notice of
Appeal. Alternatively, you may file a statement of the evidence prepared jointly by both
parties within ten business days of the filing of the Notice of Appeal. The statement of
the evidence must convey a complete and accurate account of the hearing. The Workers’
Compensation Judge must approve the statement before the record is submitted to the
Appeals Board. If the Appeals Board is called upon to 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. If you wish to file a position statement, you must file it with the court clerk within ten
business days after the deadline to file a transcript or statement of the evidence. The
party opposing the appeal may file a response with the court clerk within ten business
days after you file your position statement. All position statements should include: (1) a
statement summarizing the facts of the case from the evidence admitted during the
expedited hearing; (2) a statement summarizing the disposition of the case as a result of
the expedited hearing; (3) a statement of the issue(s) presented for review; and (4) an
argument, citing appropriate statutes, case law, or other authority.
For self-represented litigants: Help from an Ombudsman is available at 800-332-2667.
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
Tennessee Bureau of Workers’ Compensation
220 French Landing Drive, I-B
Nashville, TN 37243-1002
800-332-2667
AFFIDAVIT OF INDIGENCY
I, ________________________________________, having been duly sworn according to law, make oath that
because of my poverty, I am unable to bear the costs of this appeal and request that the filing fee to appeal be
waived. The following facts support my poverty.
1. Full Name: 2. Address:
3. Telephone Number: 4. Date of Birth:
5. Names and Ages of All Dependents:
______________________________________ Relationship:
______________________________________ Relationship:
______________________________________ Relationship:
______________________________________ Relationship:
6. I am employed by:
My employer’s address is:
My employer’s phone number is:
7. My present monthly household income, after federal income and social security taxes are deducted, is:
$ ___________________
8. I receive or expect to receive money from the following sources:
AFDC $ ________ per month beginning
SSI $ ________ per month beginning
Retirement $ ________ per month beginning
Disability $ ________ per month beginning
Unemployment $ ________ per month beginning
Worker’s Comp.$ ________ per month beginning
Other $ ________ per month beginning
LB-1108 (REV 11/15) RDA 11082
9. My expenses are:
Rent/House Payment $ ________ per month Medical/Dental $ ___________ per month
Groceries $ ________ per month Telephone $ per month
Electricity $ ________ per month School Supplies $ per month
Water $ ________ per month Clothing $ per month
Gas $ ________ per month Child Care $ per month
Transportation $ ________ per month Child Support $ per month
Car $_________ per month
Other $ _______ per month (describe: )
10. Assets:
Automobile $ (FMV)
Checking/Savings Acct. $
House $ (FMV)
Other $ Describe:
11. My debts are:
Amount Owed To Whom
I hereby declare under the penalty of perjury that the foregoing answers are true, correct, and complete
and that I am financially unable to pay the costs of this appeal.
_
APPELLANT
Sworn and subscribed before me, a notary public, this
_______ day of , 20_______.
NOTARY PUBLIC
My Commission Expires:
LB-1108 (REV 11/15) RDA 11082